The Online Edition features short and medium length professional articles submitted to the journal and concise recent developments written by our student staff. All Online Edition articles must meet the same rigorous standards as those published in our print issues.
Online Edition Articles
Recent Development: IMS Health, Inc. v. Ayotte: Small Step For Privacy, Giant Leap Still Needed for Prescription Data Privacy
NC JOLT Online Edition, Volume 10, Page 96 (May 2009)
Abstract
Electronic data use in United States industries provides a means by which businesses aggregate, track, and manage consumer information. In the health care industry, data mining companies, pharmacies, and pharmaceutical manufacturers have adopted electronic data use with prescription information. The use of electronic prescription data as a commodity raises privacy concerns which have prompted the formation of state laws restricting its use. Data mining companies recently challenged a New Hampshire law restricting the commercial use of prescription data. In IMS Health, Inc. and Verispan, L.L.C. v. Kelly A. Ayotte the First Circuit held that a state has the right to prohibit the transfer, sale, and use of patient and prescriber-identifiable drug data for commercial purposes. This Recent Development examines the authority of and need for Congress to enact federal legislation to achieve effective prescription data privacy, augmenting New Hampshire’s law and ensuring privacy throughout the country. This analysis considers the effects of the court’s narrow statutory interpretation and extent to which states can curtail the commercial use of prescription data. Moreover, existing federal health information privacy protections do not go far enough to protect prescriber-identifiable data, and federal law should address the gap, especially as the health care industry transforms and data management becomes borderless.
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Recent Development: Lights, Camera . . . Ticket: Red Light Cameras After Idris v. City of Chicago
NC JOLT Online Edition, Volume 10, Page 119 (May 2009)
Abstract
Red light camera technology is in use in many jurisdictions throughout the United States. For some, this technology represents a powerful tool for improving road safety. For others, its use represents overreaching by governments searching for ways to generate additional revenue. In Idris v. City of Chicago, the Seventh Circuit Court of Appeals examined the constitutionality of Chicago’s red light camera ordinance and held, in part, that the ordinance did not violate the substantive due process or equal protection clauses of the Fourteenth Amendment. Going forward, the Idris decision will likely limit the effectiveness of Fourteenth Amendment challenges pursued by red light camera opponents.
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Note: Rainwater Collection, Water Law, and Climate Change: A Flood of Problems Waiting to Happen?
NC JOLT Online Edition, Volume 10, Page 74 (April 2009)
Abstract
The Earth’s climate is changing rapidly, affecting the distribution of and increasing the pressures placed on natural resources in entirely new and unpredictable ways. Recognizing that water in the United States is not immune to this fate, environmentally conscious citizens are increasingly turning to rainwater collection as a means of securing a precious resource for their reasonable personal use. Government encouragement of such water conservation activity has developed in the form of financial incentives, rebates, and a push for green building. However, water laws can differ significantly from one state or region to another, which can lead to frustration of these recent eco-friendly movements in parts of the country. These factors form significant obstacles to the efforts of those interested in harvesting rainwater, which at times makes such efforts illegal. This growing tension between landowners’ water rights and existing legal restrictions is made even more prescient in light of what it represents in the abstract. Climate change, population growth, and a comprehensive social focus on sustainability are advancing toward an enemy seemingly ill-equipped to deal with their combined demands: existing water law.
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Recent Development: Markovich v. Secretary of Health and Human Services: An Ounce of Cure for a Pound of Prevention
NC JOLT Online Edition, Volume 10, Page 59 (January 2009)
Abstract
There’s an old saying that “an ounce of prevention is worth a pound of cure.” Vaccinations seem to exemplify this, allowing people to avoid diseases entirely by submitting to a simple injection, rather than forcing them to worry about the more difficult alternative of treating the disease once it is contracted. Markovich v. Secretary of Health and Human Services is a case in which an infant suffered severe injuries resulting from a vaccination. To address such rare situations, the National Childhood Vaccine Injury Act establishes a system through which injured parties may recover medical costs from the government. This Recent Development examines a failure of that system to serve its intended purpose. It looks at ways in which the court’s decision in Markovich runs counter to the policies underlying the creation of the system. It also considers the court’s erroneous interpretation of statutory language and the injustice of denying compensation to infants injured by vaccines that results from this misapplication. Markovich illustrates how the few children injured by vaccines may be offered precious little financial restitution for the unintended consequence of a technology that keeps the rest of us healthy.
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Note: Nuclear vs. Big Solar: Government Funding of 21st Century Energy Production
NC JOLT Online Edition, Volume 10, Page 49 (January 2009)
Abstract
The government incentivizes investment in carbon-free energy production facilities by creating tax schemes designed to make renewable energy more attractive for investors. The Energy Policy Act of 2005 created a number of tax incentives for nuclear facilities, including one tax credit based on the amount of electricity produced at the facility. The Energy Policy Act also created new incentives for solar energy production. In 2008, as part of the “bailout” of the foundering financial sector, the Energy Improvement and Extension Act of 2008 was made law. This extended the deadline on some tax incentives for solar energy facilities, but failed to increase the timelines of other solar tax incentives. Because of the 2008 law, investment in nuclear energy facilities is now more highly incentivized than the same investment in solar energy. Eliminating this disparity will encourage an even-handed approach toward innovation in carbon-free energy production.
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Article: Conflicting Objectives: The Patent Office’s Quality Review Initiative and the Examiner Count System
NC JOLT Online Edition, Volume 10, Page 28 (January 2009)
Abstract
During fiscal years 2004 and 2005, the United States Patent and Trademark Office implemented an enhanced quality review initiative as an additional level of oversight over the patent examination process. As a result of this initiative, in fiscal year 2006, the patent allowance rate was reduced to 54%, down from a patent allowance rate of 72% in fiscal year 2000. However, this enhanced quality review initiative conflicts with the current examiner production goals or examination quotas. Likely unintended consequences of this conflict include an increasing backlog of unexamined patent applications, concerns over examiner attrition, and an increasing number of continuing applications and patent appeals. This article proposes reforming the examiner production goals to align them with the enhanced quality review initiative.
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Articles by Category
- Biotechnology (3)
- Constitutional Law (1)
- Copyright (5)
- Cyber Law (3)
- E-Commerce (1)
- Evidence (1)
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