The Nature of Protesting

As long as opinions exist human beings will engage in protests against those things with which they disagree. Unfortunately for protesters the general rate of success is rather dismal because most protesters have seemingly forgotten the purpose of protesting and its inherent limitations, especially in modern society. How can protesting become a useful tool for establishing change versus simply being a mobile echo chamber of time wasting annoyance and/or criminal behavior?

The major purpose of protesting is to cast attention to a given issue and either inform others who have the power to influence change or those who are also affected by the issue of its importance and the need for change, but may not already be aware of it. In modern society, especially a Republic or Democracy, the secondary goal of a protest is to act as a persuasion tool to convince others that the issue of the protest is meaningful and worthy of attention. This attention hopefully will lead to a stronger and more unified front for change against the particular issue increasing the probability that there is change.

One of the chief problems with modern protesting is it is imbued with too much emotion and not enough logic. It is understandable that there is an emotional element to protesting for either the acute veracity of a singular event or chronic weight of numerous smaller events typically produces an emotional driver to facilitate individuals into taking the time and effort to publicly air their grievances. However, this emotional aspect of the event(s) underlying the motivation for the protest has lead protesters to make disadvantageous decisions and actions in the process and/or administration of the protest.

Emotional responses and drivers apply an illogical conclusion to believe in a greater necessity to increased frequency of protesting, which relative to the purpose of protesting is commonly detrimental. Basically protesters protest action/policy “y” at greater frequency than they should, because the cause is so emotionally important to them. However, when major protest events occur within close temporal proximity, the impact of those protests towards those not already in support of the “cause” is lessened and even potentially damaging to the success of the cause. For example the group known as “Black Lives Matter” have fallen into this pitfall in their recent activity.

Part of the problem with multiple protest events over a short period of time is it portrays the organization as disingenuous to actively seeking change versus just simply seeking personal attention or notoriety. Most major protests, especially those that spawn organizations to manage the desired change, focus on a meaningful, yet large-scale issue that requires time, resources and effort to produce change. However, multiple protests over a short period of time lead those who do not immediately agree with the protests to conclude, somewhat correctly, that the protesters are not serious about their so-called desire to produce change because they do not understand the process in which that change will occur, if it occurs at all. This attitude will lead individuals to conclude that the organization and perhaps even the cause itself is not worth focusing on, especially in a world where there are already so many other “meaningful” problems.

Some may counter that protests do not just serve as a means to cast attention on a given issue or even rally like-minded individuals and convince “on the fence” individuals, but also to provide an avenue to a frustrated demographic to vent… so to speak. While this initial argument has some merit, its value is only relevant so long as the protests do not significantly interfere with the lives of others in society, for example by stopping/blocking traffic or reducing the effectiveness of economic activity. One may like to punch the air to vent; however, it is not appropriate to punch air that another person’s face is filling. Using violations of the law as a means to “burn off steam” is clearly inappropriate and heavily limits the credibility of any protest and the individuals and/or organizations responsible for it. Therefore, the argument that mass-scale protests can be used as a means to vent is an invalid one that is simply used as a flimsy excuse.

Also these types of protests that block traffic and/or generally inconvenience others are rather foolish from a standpoint of cost-benefit. By inconveniencing others, especially numerous times over a short time period, the protesters are significantly increasing the probability of producing more enemies to their cause. This behavior is meaningful because whereas an individual may have remained on the proverbial sidelines for the protester’s fight, now thanks to the slight by the protesters, either directly or indirectly, that individual may work against the motives of the protesters, perhaps simply out of spite alone. Some could counter that “you can’t make an omelet without breaking a few eggs” (i.e. disruption of the status-quo is necessary for change), but there is definitely a difference between intelligent disruption and needless/foolish disruption and most protest organizations seem to not understand the difference limiting the validity of that argument in relation to their activities.

Overall mass-scale public protesting is only step 1 in the process of producing change by demonstrating that something is a problem and creating a mindset among the populous that the problem must be addressed with haste in the future. However, the real work to change the problem occurs after step 1, for step 1 does not actually achieve any change. Not surprisingly though the steps beyond public protesting are much more difficult both in their initiation and in determining and demonstrating any actual progress towards the goal/change in question.

Unfortunately these challenges appear to trip up most organizations that materialize in the space of step 1. Either these organizations are not capable of transitioning beyond step 1 or they do not care about the events beyond step 1. This lack of skill, ability, influence, etc. traps most organizations in step 1 for through the act of public protesting, these organizations can continue to demonstrate their so-called relevance for public protesting is easy, especially with access to the Internet and the existence of a non-authoritative government. However, as time goes by these organizations are simply lying to their supporters about their relevance because continued public protests on their own will not produce success towards addressing the change these protests claim to desire. Prominent recent examples of this trap are both Black Lives Matter and Occupy Wall Street.

Perhaps that is one of the more unfortunate problems with these organizations, the idea that the “leaders” of these organizations realize that the organization is ill-equipped to accomplish the change, yet cannot acknowledge that it is time to disband or evolve the organization under the idea that such action would be regarded as failure by supporters. Recall it is much more difficult to demonstrate success from meetings in a boardroom than holding up traffic on the street. Therefore, these leaders instead aim to maintain their positions and any benefits that come from those positions, by simply continuing to focus on step 1 in an attempt to obfuscate their own lack of ability and competency by turning the attention of their supporters to the “evil” of the so-called opponent.

While the above position is rather cynical, it is also true that certain organizations function under such a mindset. However, the transition beyond step 1 has also proven difficult for those non-self-aggrandizing organizations. Thus, these organizations must focus not only on pointing out the problem(s), but proposing detailed and valid solutions to the problem. Unfortunately this is not the case for a vast majority of situations. In a sense the step 1 attitude by most of these organizations can be viewed as similar to Homer Simpson’s campaign slogan in “The Simpsons” when he ran for Springfield sanitation commissioner… “Can’t Someone Else Do It”. Basically the organizations state that they have done the “hard” work of pointing out the problem exist, now someone else can actually fix the problem which the organization will take credit for it.

Even when organizations propose solutions, those solutions are typically lacking with a variety of holes, usually on the details end and probability of application due to the general lack of information and/or bias. For example The Urban League proposed a “10-Point Justice Plan” to address the negative relationship between the black populous and law enforcement. Unfortunately this “solution” was heavily lacking in detail largely associated with general application. It promoted a lot of “universally applied” ideas merely by citing either one program in one particular city or one un-passed existing piece of Federal legislation. Also it was rather bias and generally naïve. A number of elements to the “solution” could be viewed merely as quasi-demands over actual genuine attempts to solve the problem.

However, for all of the problems of the “10-Point Justice Plan”, at least the Urban League produced a starting point in which to produce solutions. Unfortunately the fact that organizations like Black Lives Matter continue to reside in step 1, protest, draws resources and attention away from that starting point, thereby heavily reducing the probability that a long-term solution even materializes in the first place. This type of behavior goes to demonstrate the disconnect between organizations in step 1 and organizations that have moved beyond it, but claim to be “working” towards a solution to the same concern/problem.

Another concern with most protests is the tone and lack of awareness for the existing problem. For example the negative relationship between the black populous and police officers in the eyes of the black populous is thought to be entirely the fault of the police. Of course this is not correct for the black populous certainly does not treat the police with the appropriate level of respect and decorum that is expected for the position, which not surprisingly exasperates problems in the relationship. Part of the problem is a number of individuals in the black populous fall into the same pitfall they claim the police do: stereotyping all police as out to get them racist, just as they believe police believe all blacks are scum-criminals up to no good. Until the black populous acknowledges and corrects this behavior of stereotyping police officers as racists, among other things, the relationship between the black populous and the police will remain strained for it is not a one-sided problem.

Furthermore some may believe that protesting works because they look to the past and see the fruits and successes of protests. Unfortunately in the process of looking upon days long gone there is a lack of understanding in how society has evolved. These successful protest movements were able to demonstrate the power of the protesters to effectively influence society due to their integral role in society. For example The Montgomery Bus Boycott was built entirely around the fact that the general economic survival of the bus company was dependent on its black customers.

Unfortunately for protesters, over the last few decades economic development and technology has significantly altered the way the economy functions. Globalization and the Internet have generally decoupled major business from their proximity and those local consumers. Therefore, local protests tend to only impact local businesses, which frequently only damages the local infrastructure, which can cause more harm overall than what the protesters are protesting against. So while in the past, protests could apply more direct pressure, now the manner in which society has changed mitigates a lot of that direct influence and power. In some respects it can be argued that there are just too many people for protests and boycotts to really have any significant influence economically. Now such influence is regarded more as mere annoyance to outright criminal behavior that does not win allies.

In a democracy change demands voting and placing individuals in power that will produce that change. Unfortunately while step 1 attempts to create the necessary attention to get prospective voters to care about the issue, it does nothing beyond this element. A lack of voting is definitely one of the major reasons why despite all of the protesting in the world, so little genuine and meaningful change has actually occurred on most issues.

This voting issue has been largely noted in minority communities with reference to the local governing body via claims that minority demographic x makes up 72% of the voting eligible population, but the local government is 80% white and how this is wrong. However, this point is rather devious and inappropriate. It is important to note that that it is bias behavior if an individual with demographic characteristic x votes for a candidate solely because he/she shares that demographic characteristic (i.e. a black person votes for a black candidate solely because he/she is black or a Jewish person votes for a Jewish candidate solely because he/she is Jewish, etc.)

This demographical point is rather idiotic to make because a democracy is not structured in such a way that government officials should proportionally represent the electorate demographic; the point of a democracy is government officials should pass policies and govern in a manner that is approved by the majority of voters. However, the above statement commonly made by minority “activists” regarding certain communities being 72% x, yet 80% of government/civil servant positions being white portrays a racist/bias mindset of x should be represented in more government positions solely because the electorate is some % of x. Therefore, it is important that individuals vote and that are informed enough that they vote for officials that will best represent their interests regardless of whether or not those individuals share certain characteristics.

In the end individuals/organizations who seek to produce change by initiating protests must understand that protesting can only cast attention to a given issue. Gone are the days when only protesting can produce valid and meaningful solutions. These solutions are produced later through honest detailed analysis of the problem to produce an appropriate guideline and outline of a solution and then hard work and commitment to turning that guideline into a functioning solution. protesters must be wary though of alienating both potential allies and advisories through excessive protesting, especially the latter. Excessive protesting can definitely spur the passions of potential advisories to work harder to defeat the protester(s), not necessarily because they passionately disagree with the idea/object of the protest, but because of scorn directly towards the protesters themselves. Overall protesters must focus on advancing detailed and thorough solutions to issues they view as problems rather than focusing on simply protesting those problems with no or only piecemeal superficial solutions.

Should the United States adopt a different system from the current Opt-In system for organ procurement?

One of the more acknowledged problems in healthcare that receives some attention yet little is actually done about is the lack of available organs for transplant. Based on recent data at least 114,000 people in the United States are waiting for an organ transplant that will significantly increase their remaining lifespan.1,2 Unfortunately most of those waiting will die before receiving that desired organ due to the dramatic gap between the available supply of organs for transplant and those waiting for one.

To understand and appreciate the extent of this gap according to the Scientific Registry of Transplant Recipients (SRTR) between 2000 and 2009 the annual number of deceased organ donors (the most viable for most types of transplants) in the U.S. increased from 5,985 to 8,022 whereas the number of individuals waiting for a transplant increased from 74,635 to 111,027.3 In the first half of 2010s there was not significant deviation from this trend. Note that this increase in the waiting list occurred despite an increase in organ transplants. In either absolute numbers or relative percent change, there is an increasing gap between available organs and those who need them. While various aspects of biological research are working to create an environment where new organs can be grown in a lab with low rejection probabilities, thus significantly mitigating this supply problem, such a reality still appears to be a long way off. Therefore, should changes be made to the current organ donation system to speed the closure of this gap and save lives?

While each state has their own laws on organ donation the general model has always followed the Uniform Anatomical Gift Act (UAGA), which was first passed in 1968 and amended in both 1987 and 2006. UAGAs are created by the National Conference of Commissioners on Uniform State Laws (NCCUSL) as a means to create uniformity among states on various laws where uniformity makes sense due to a lack of special circumstances; however in the end states have the option to adopt, decline, or simply use the act as a skeleton for their own laws. The original 1968 UAGA established the general goal of organ donation as a system based on altruism through voluntarism due to the opt-in nature of the program and created legislative guidelines for donation of fetal organs and tissues.4

In 1987 the UAGA experienced two significant changes among other smaller changes: first it was amended to forbid persons from “knowingly, for valuable consideration, purchase or sell a part for transplantation or therapy, if removal of the part is intended to occur after the death of the decedent.” Second, a narrow form of presumed consent was added whereby a medical examiner could remove any needed organs or tissue in the absence of any objection by the decedent or decedent’s next of kin.5 This presumed consent addition was not unique for numerous states already had similar types of regulations in their organ donation laws mostly concerning cornea removal.

In 2006 the UAGA was further revised to remove the presumed consent regulations largely due to a number of lawsuits filed against those measures.6,7 Almost all states followed the pattern of the UAGA by either officially enacting its recommendations or making changes to their own state laws to flow in close proximity with its recommendations including the removal their own presumed consent regulations as well, with only a few states retaining very restrictive guidelines concerning cornea removal.6

As noted above while the idea of characterizing organ donation as an altruistic gesture is certainly a nice idea in theory, especially when 90+% of people support organ donation and 70+% of polled individuals would consider being an organ donor; in reality when only about 42% of U.S. adults are registered organ donors when lives are on the line, clearly theory and reality are in conflict.1,2

The difference between those who claim to be interested in being a donor and those who actually are donors suggest some significant problems with the opt-in system. One of the major issues appears to be physicians adhering to the wishes of next of kin to not harvest organs even though the decedent was an organ donor; a decision that makes no sense. Also there can be problems with organ procurement agents obtaining referrals from donors.7 A lack of public campaigning to raise awareness regarding the organ shortfall and the benefits of organ donation has also played a role in the lower than expected donor rates. Finally another less fixable problem is the psychological reluctance of most individuals to contemplate death and plan appropriately for it. This “kicking the can” strategy concerning death typically creates numerous problems when handling end of life decisions, including issues involving organ donation. So, if these are the problems associated with the opt-in system, what are other options that could increase the number of individuals willing to donate?

One way to close the gap and improve donation rates is to provide an incentive for individuals to be “altruistic” (the irony of having to provide incentives for individuals to be altruistic is somewhat hilarious). However, with the sale of organs illegal, incentives must be creative in a sense, but also be of significant value. Israel and Singapore are two countries that utilize a low-cost incentive program that involves influencing organ allocation. In the U.S. a national waiting list is maintained where transplant candidates are ranked largely based their overall health (how long they have left to live without the organ) and when their name was placed on the list. However, in the determination of who receives an organ there is no “bonus” to those who are donors. The priority rule or preferred donation system used by Israel and Singapore provides some level of preference to future donors over those who do not plan to be future donors.

For example in Israel potential organ recipients are rated on a multiple point scale and whether or not they are planning to be a donor is also part of that criteria.8 Additional consideration can be gained if a direct family member of a potential recipient has signed a donor card or has already donated in the past be it as a live non-designated donor or a deceased donor.8 In Israel this program largely arose from the perceived repugnant behavior that a number of individuals were willing to accept an organ transplant, but would never be willing to donate an organ even after death. For Israel this program, as well as other supplemental small incentive programs, dramatically increased the rate of organ donations, especially in its early years of its adoption 2011 and 2012.9

While the initial logic associated with the priority rule program appears sound, for it makes sense that future organ donors should receive some level of priority over those who do not plan to donate, there are some important issues. The first problem is the system in Israel is not legally binding in that an individual can agree to become a donor, but back out later. This type of system creates problems on both fronts because instituting a rule that once a person has agreed to be a donor then that individual can never withdraw from being a donor would see an immediate court challenge that would probably result in the elimination of such a condition. However, if the system remains as such one can simply declare donor intentions when it is advantageous and withdraw when it is no longer advantageous making a mockery of the system. One way to address this issue may be instituting a time limit where no benefits are acquired until an individual has declared donor intentions for at least x number of years, thus at least eliminating individuals who join solely for selfish short-term reasons.

The second problem is such a system raises potential moral questions when non-medical elements outside of time are introduced into the organ selection process. While on its face such a system appears to have a “tit-for-tat” characteristic, it would not be hard for one to produce a potential slippery slope argument. A common argument would be that the individual who agrees to become a donor is receiving some form of preferential treatment because he/she is offering something of value to the organ bank, replacing the used organ as well as offering others. Some could argue that in this environment how is it justified for an alcoholic poor person to receive a liver over a philanthropic millionaire? The millionaire provides dramatically more benefit to society if he/she survives over the alcoholic. While this argument should be irrelevant because the priority rule system only addresses organ donation specifically… sometimes certain parties just need a small window of opportunity to change a system significantly and the United States does not have a quality track record for societal fairness.

The third problem is such a system could be unconstitutional on the grounds that it would violate equal protection in that government could provide an organ to one individual over another based on non-medical factors. For a violation of equal protection it must be determined that the groups being compared are similarly situated otherwise government or another agency can apply different standards as long as those standards are not discriminatory.10 It is unknown how a court would rule in this case because providing a benefit only based on the notion that the receiver made a non-binding declaration of donation would require the court to determine the intent of the parties and whether that intent makes other groups distinguishable, which could potentially open a nasty can of legal worms.7 Any “perks” for donor kin would be an instant no-go because granting a benefit to someone simply on the basis of relation is inherently discriminatory.

The fourth and final major issue is would religious objections to organ donations cause problems for such a system in a discriminatory fashion? Initially it appears that religious objections should not cause a significant problem because discriminatory intent requires that the principal purpose of creating a law in the eyes of its creators be to produce discrimination; if the law is neutral and indirect discrimination is simply derived from its enforcement then no legal discrimination exists. This general legal structure was noted in Personnel Administrator of Massachusetts v. Feeney.11 However, while religious objections should not be a problem, religion can make these types of things more complicated.

Overall these potential issues do raise the question of the true value of changing the existing opt-in system to a priority rule donation system. So if a priority rule system is not preferred what other options remain? Another possible system for donor expansion removes the passivity from the opt-in system while maintaining its spirit, the mandated choice system.

Execution of the mandated choice system is rather straight-forward; when individuals over the age of 18 acquire or renew their driver’s license they are asked whether or not they wish to be an organ donor. This system attempts to maintain the altruistic characteristic of organ donation while eliminating the obligation of the potential donor to initiate the process to become a donor. Such a system has been utilized in both Texas and Virginia before other systems replaced them and is currently operating in Illinois, Colorado and California.12 Of course there are certain conditions that must be followed outside of simply asking “Do you want to be an organ donor.”

For example the American Medical Association has noted that in the mandated choice system the asked individual must be properly informed regarding the elements that are involved in organ donation to ensure that the individual understands the procedure and can be regarded as meeting the principles of informed consent.13 Also some might argue that a mandated choice system is not constitutional on First Amendment grounds in that an individual has the right not to speak and asking the question of organ donation without providing a means to simply not answer without consequence would be unlawful.

Realistically the First Amendment argument more than likely fails if the question embodying the mandated choice system is asked in a neutral manner with no legitimate attempt to favor a particular decision. With this condition in mind the question medium would more than likely have to be paper for one could interpret certain pressures upon an individual when asked verbally whether or not they want to be an organ donor. Such pressures are commonly associated with “being put on the spot”, which can favor a yes response over a no response, especially with a moral issue like organ donation and being asked by a government official (DMV employee). The question itself should simply ask “Would you like to make your organs available for transplant into other parties after your death?” or something similar, just a neutral question with no positive or negative overtones.

The success level of mandated choice programs have varied over time for both Texas and Virginia eventually overturned their programs because of strong negative reaction from the public including an increase in donation rejection in Texas up to 80%.14 Whereas in Illinois organ donation participants have increased to 60%.7 It is difficult to reconcile these two results. The best potential explanation may simply be political in the context of how individuals view government involvement in society. Both Texas and Virginia lean more conservatively and some may simply be offended that government even asks in the first place while the more liberal leaning Illinois is not offended by such behavior. Overall if this is the case then it is difficult to see how a mandate choice program would make significant in-roads towards increasing organ donation rates as potential increases in some places may be offset by other potential decreases in others.

The final major option to increase organ donation rates would be to simply return to the presumed consent days (i.e. Opt-Out over Opt-In), yet expand the program to include all organs not simply corneas or John/Jane Does. Clearly to ensure significant positive changes this presumed consent program would have to be hard/strong (after death if the individual did not opt-out then next of kin have no say in the issue of organ donation) versus soft/weak (next of kin can still reject organ donation for the deceased). Not surprisingly such a change could produce strong objections from some individuals for presumed consent/opt-out would in essence redefine the rule of who owns a deceased’s organs from next of kin to the government. Others would argue that such a policy poses a direct attack on individual liberty, autonomy and privacy by restricting freedom of choice, the very factors that some believe grant acceptability to an opt-in system.

The notion that an individual loses liberty, autonomy and privacy in an opt-out system is basically ridiculous. In short there is no threat to these elements in such a system because the individual has sufficient opportunity to declare their intentions to not be an organ donor while still alive. Once an individual dies the rights associated with liberty, autonomy, privacy, etc. are heavily handicapped, thus eliminating any meaningful violations in this circumstance.

Any minor opposition on the grounds that legislating altruism is not a responsibility of the government is a non-starter because the issue of establishing an opt-out system over the current opt-in system is a matter of public health due to the significant gap between available organs and individual need, not altruism and again there is no violation of personal autonomy because the individual is dead, thus the individual no longer possesses the capacity for autonomy.

Also some could argue that soft/weak presumed consent provide respect for the decedent’s relatives who are more than likely grieving the loss by allowing them to preserve the state of the loved one. However, there is a notion of hypocrisy in this idea for individuals in a presumed consent system can opt-out, thus why is it alright that the wishes of the next of kin supercede the wishes of the decedent if the decedent never opted out? Any “psychological” detriment born by the next of kin due to a hard/strong presumed consent system is the fault of their own selfishness and/or arrogance, not the system.

A more relevant issue is the question of next of kin property rights. Although it may sound grizzly, when an individual dies the body and its contents (in a sense) basically become property of the next of kin, especially with relation to burial rights. Some next of kin could challenge a presumed consent system on the grounds that it interferes with property rights or even religious services. However, in case of previous presumed consent laws, courts almost always side against such claims. For example in Tillman v. Detroit Receiving Hosp, a Michigan court ruled that the state’s presumed consent law for cornea extraction did not violate the privacy right of the decedent or her next of kin and the cornea removal did not constitute sufficient mutilation to void such action.15

However, one could argue that this case only involved cornea extraction not the extraction of numerous and various other organs, which would occur in a more thorough presumed consent system. While there certainly would be more incisions made in the individual, the individual would receive the appropriate remediation treatment through stitches and if properly dressed should have no significant mutilation or ascetical issues apart from an individual who simply had corneas removed.

Moreover pertaining to the issue of next of kin property, government should be able to utilize eminent domain to support the acquisition of the decedent’s organs. Eminent domain is the power of government to take private property for public use and while it commonly refers to land, it should also be applicable in a presumed consent environment when the individual did not choose to opt-out as a donor. Clearly in the case of a presumed consent environment the government would exert authority for the organs, but not the body, unless legally required.

How could the government manage the Takings Clause of the Fifth Amendment in such a scenario? Overall one could simply validate the acquisition of the organs under the “public use” requirement, for the organs are certainly going to be used for a “public purpose” through the increase of deceased organ donation rates resulting in more lives saved. From a standpoint of organ value, if one wanted to, realistically no monetary compensation could be expected. For the next of kin, who would own the organs, have a product with ephemeral functionality and due to the fact that one cannot legally sell an organ, a monetary value of zero dollars.

The ephemeral nature of organ functionality is important because it cannot be argued that the organs may have monetary value later due to a change in the law, thus compensation would be required to satisfy this potential future value. Therefore just compensation or “fair market value” is simply zero dollars. This reality is helpful because it avoid questions regarding organ value in the context of the various associated parties like the government, the next of kin or a potential recipient. However, while it can be argued that technically the government would not have to pay any monetary sum to the next of kin for the acquisition of the organs, it stands to reason that the government could make a small good-faith gesture tied to addressing funeral costs (i.e. 200-500 dollars).

A final initial question regarding a presumed consent system would be whether or not it actually increases the number of available organs. Official literature can be somewhat murky on this issue for some studies find that when controlling outside factors presumed consent does increase organ donations rates significantly,16,17 but others suggest that the casual link is not appropriate due to the level of heterogeneity that exists in transplantation systems throughout the world.19

The chief problem with analyzing existing systems is the lack of strong data regarding hard/strong presumed consent. Of the more studied presumed consent systems in Europe (Austria, Belgium, France, Italy, Norway, Spain and Sweden), only Austria typically sees genuine practice as a hard/strong presumed consent system whereas the others are either soft/weak or physicians almost default to a soft/weak system for various reasons.12 Unfortunately most soft/weak systems have few differences from an opt-in system, thus identifying any significant differences becomes quite difficult limiting the value of the analysis.

Interestingly enough the studies focus so much on potential confusion associated with multiple factors in the donation environment that they discard simple logic in that under a strong presumed consent system everyone who does not opt-out will become a donor upon death, thus it stands to reason that donation rates would significantly increase on two counts of logic. First, no one who has opted-in should opt-out, thus theoretically the worst a presumed consent system does is break-even. Second, studies have shown that most of the time people often choose the assigned default option, among various instances, possibly due to a lack of strong feelings or a lack of desire to spending the resources and time required to change the option.19-22

In the end among the three major donation methods, beyond opt-in, that could potentially increase the number of available organs for transplant, all three have their positives and negatives. Priority rule systems incentivize the donation process, but have numerous holes in how this incentive is effectively applied and could have a number of potential constitutional issues associated with their application. Mandated response systems are able to effectively transfer the initiation of the donation process from the individual to the government significantly eliminating situations of ignorance to the existence and operation of the donation system. However, there are questions to how effective such a system is in actually increasing the available number of organs for donation. Presumed consent systems increase the available number of organs as well as do not appear to have any obvious legal issues, but must address elements of methodological opposition largely brought on by government paranoia and contempt in some camps as witnessed by the failure to establish such a system in New York, Illinois, and Colorado.

Overall it appears that a presumed consent program is the best option for quickly increasing the total number of available organs for transplant, but pursuit of this strategy must involve a strong commitment to establishing such a system over the personal objections of a number of individuals despite the ability to opt-out.


Citations –

1. 2012 National Donor Designation Report Card by the Donate Life America: http://donatelife.net/2012-national-donor-designation-report-card-released/

2. 2013 National Donor Designation Report Card by the Donate Life America:
http://donatelife.net/2013-national-donor-designation-report-card-released/

3. Scientific Registry of Transplant Recipients 2012: http://srtr.transplant.hrsa.gov/annual_reports/2012/Default.aspx

4. Uniform Anatomical Gift Act (1968). http://www.uniformlaws.org/shared/docs/anatomical_gift/uaga%201968_scan.pdf

5.Revised Uniform Anatomical Gift Act (1987). http://www.uniformlaws.org/shared/docs/anatomical_gift/uaga87.pdf

6. Revised Uniform Anatomical Gift Act (2006).
http://www.uniformlaws.org/shared/docs/anatomical_gift/uaga_final_aug09.pdf

7. August, J. “Modern Models of Organ Donation: Challenging Increases of Federal Power to Save Lives.” 394 Hastings Constitutional Law Quarterly Vol. 40:2 393-422.

8. Lavee, J. “A New Law for Allocation of Donor Organs in Israel.” The Lancet. 2010. 375(9720):1131-1133.

9. Even, D. “Dramatic Increase in Organ Transplants Recorded in Israel in 2011.” Haaretz. Jan. 12, 2012. http://www.haaretz.com/dramatic-increase-in-organ-transplants-recorded-in-israel-in-2011-1.406824

10. Vacco v. Quill, 521 U.S. 793, 799. 1997.

11. Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256. 1979.

12. Rodriguez, S. “No Means No, But Silence Means Yes? The Policy and Constitutionality of the Recent State Proposals for Opt-Out Organ Donation Laws.” FIU Law Review. 7:149-186.

13. AMA Recommendation. Opinion 2.155 – Presumed Consent and Mandated Choice for Organs from Deceased Donors. American Medical Association. http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion2155.page?

14. Siminoff, L, and Mercer, M. “Public Policy, Public Opinion, and Consent for Organ Donation.” Camb Q Healthc Ethics. 2001. 10(4):377-86.

15. Tillman v. Detroit Receiving Hosp., 360 N.W.2d 275, 277. 1984.

16. Hawley, Z, Li, D, and Schnier, K. “Increasing Organ Donation via Changes in the Default Choice or Allocation Rule.” Journal of Health Economics. 2013. 32.6:1117-1129.

17. Abadie, A, and Gay, S. “The Impact of Presumed Consent Legislation on Cadaceric Organ Donation: A Cross-Country Study. Journal of Health Economics. 2006. 25.4:599-620.

18. Boyarsky, B, et Al. “Potential Limitations of Presumed Consent Legislation.” Transplantation. 2012. 93.2:136-140.

19. Samuelson, W, and Zeckhauser, R. “Status Quo Bias in Decision Making.” Journal of Risk and Uncertainty. 1988. 1(1):57-59.

20. Madrian, B, and Shea, D. “The Power of Suggestion: Inertia in 401(k) Participation and Savings Behavior.” Quarterly Journal of Economics. 116(4): 1149-1187.

21. Johnson E, and Goldstein, D. “Defaults and Donation Decisions.” Transplantation. 2004. 78(12): 1713-1716.

22. Gäbel, H. “Donor and Non-Donor Registries in Europe.” Stockholm, Sweden: on behalf of the committee of experts on the Organizational Aspects of Co-operation in Organ Transplantation of the Council of Europe. 2002.

The "Cost" of Morality in Society

One of the interesting aspects of how society has developed involves the apparent evolution of morality and its role in society. It would be reasonable to conclude that the formation of an individual’s moral beliefs is mostly derived from two sources. First, as a child, individual morality is heavily influenced by parents along with the culture/traditions of their environment. Second, as the child grows the influence of these initial defining factors can increase or decrease as life experience supports or challenges those original beliefs. Therefore, an individual’s morality is largely defined by the morals of parents/community and how life experiences interact with those initial drivers.

While some may argue the finer points, humans like to believe that they reside in a society built upon the idea of a meritocracy in that an individual can become successful regardless of upbringing or circumstance by simply working hard and/or smart. However, for such a belief to represent reality instead of one’s mere false perception of reality, society must adhere to a specific set of rules to ensure that this ideal is met. Thus, the development and administration of morals for a particular society is different than that of those who comprise society because there cannot be variance in their application. Basically society must have one set of rules that is enforced universally for the idea of a meritocracy-based society to have any level of validity. Note that this condition is not the only element that is required to establish a legitimate meritocracy, but is only one of the numerous conditions that are required.

Unfortunately the law itself does not singularly define morality in a society because those who comprise society directly influence the law, both in its development and enforcement. With this in mind it is important to understand how individuals react to violations of the law, i.e. the moral code of society. This understanding can be difficult because of mischaracterizations of interpretation. For example one of the most famous “moral” structures is The Golden Rule: Do unto others as you would have them do unto you. However, nowhere within The Golden Rule does it actually say that one must or even should be altruistic or fair to others. If an individual does not care about the prospect of being screwed over in his/her relationships and interactions, then that person can screw people over as many times as he/she wants and still be in accordance with The Golden Rule. The quid pro quo nature of The Golden Rule demonstrates a murky issue regarding morality in society.

Another critical component of The Golden Rule is the idea of reciprocation. Negative actions are only relevant to The Golden Rule if another party can act in response to the pronounced negative action. Basically Person A is free to screw over anyone he/she wants if no one is able to retaliate. This realization is critical to the very notion of justice. For there to be justice an entity must exist that produces a certain morality and has the power to enforce that morality. In a society that entity is society itself, so when society has a fractured morality the ability to execute justice becomes more difficult and less certain. Therefore, it is important to ask how society responds to immorality in society.

When the public concludes that an individual has committed an immoral act(s), a vast majority of the time that individual responds in one of three ways. First, the individual acknowledges the immoral nature of the action, apologizes for it and commonly professes to be more vigilant in the future regarding these types of issues. Interestingly enough the public seems amazingly forgiving, especially to those in power be it benign power like celebrities or real power like politicians. Such forgiveness might be misplaced based on how aware the offender was to the original immorality of the action for rarely are immoral actions that demand a public apology to society “mistakes”. Sometimes the individual in question really is genuinely sorry and does live up to their vigilance pledge while other times they are not genuine and are simply attempting to minimize the detriment associated with their malfeasance.

Second, the individual holds steadfast to the idea that the action is not immoral and either ignores the characterization or tries to explain the action based on his/her analysis of the action and the motivations behind it. This action typically generates polarization between those who agree with the explanation or support the individual in general versus those who do not because they believe that the action is immoral and due to the lack of acknowledgment of its immorality the action will more than likely be repeated. Sadly this decision appears to be the most commonly selected among the three because the individual recognizes this split, which limits the power available to impose consequences on the individual for the action. Basically instead of admitting to doing something wrong the individual claims to have done nothing wrong.

Third, the individual defends the action by citing similar or worse actions that have been taken by other individuals in the past, making an effort to limit the “severity” of their violation. This strategy is commonly used by politicians and their defenders and sometimes falls under the understanding of “it’s not a big deal because everybody does it”; yet this strategy is inherently counterproductive and foolish. The main problem with this strategy is that the initial action is never actually justified or explained in a moral context; also the action is indirectly confirmed using “hypothetical” preambles like, “even if I did it…” Why would one attempt to lessen the presumed severity of an action if one did not take that action and did not believe its perceived morality to be controversial?

Furthermore not only does the individual indirectly admit to committing the questionable action, but a rational bystander observing the situation can only come to one conclusion. That conclusion is not “Oh that is why that action was taken, I understand now (agreement or disagreement follows)”, but instead “Oh, so you are an immoral scumbag, but according to you individual C is also an immoral scumbag”. Thus, society is given not a rational explanation for individual A’s actions followed by appropriate consequences, but a battle in the scales of immorality. Using rational analysis this strategy is clearly flawed, so how is it that politicians are still able to get away with criticizing the morality of their opponent’s to explain their own moral shortcomings?

Avoiding the easy answer of society does not function rationality, one important possible explanation for the lack of consequences to numerous violations of morality is that, whether or not society cares about an individual’s morality is subjective. There are telling signs that modern society has reached an impasse between morality and success. For example is there any real advantage to being moral if society views you as a successful individual?

There appear to be two major advantages that stem from moral behavior and the resultant “moral” characterization given to such an individual: 1) moral individuals tend not to violate social norms and the law, which significantly reduces the probability of criminal and civil action against them; a secondary element to this point is that moral individuals are rarely swindled, speaking to the old adage “you cannot con an honest man”; 2) moral individuals seem to have inherent advantages when cultivating allies for social and economic proposals largely based on perceived trustworthiness;

Unfortunately it could be argued that for rich individuals neither one of these advantages are meaningful. Simply looking at numerous examples in the criminal justice system demonstrates that the ability to be successfully prosecuted for a crime is inversely proportional to an individual’s net worth; successful individuals typically have larger amounts of wealth than average individual and are more difficult to prosecute for their transgressions, thus heavily limiting the first advantage to being moral. Also with large amounts of money and resources even if another swindles a successful individual, the losses are typically insignificant.

Also due to the fascination and allure most members of the general public have towards success and wealth, rich and successful individuals have far less trouble recruiting allies to their personal crusades both through their utilization of resources or perceived charisma. Thus having money and success can achieve the advantages associated with moral behavior via different pathways. However, having money and success also produce other meaningful advantages for individuals that are not associated with moral behavior. Further troubling is that behaving in a moral manner provides obstacles to becoming successful for they restrict passage along the shorter less scrupulous paths to acquiring success. It is much easier to swindle someone out of 5,000 dollars either directly through fraud or indirectly through influencing public policy over working 250 hours at 20 dollars an hour for a gross 5,000 dollars.

Therefore, with the simple understanding that morality and success overlap the same advantages, with additional advantages associated with success alone and with potential conflict between morality and success, for a number of individuals immoral behavior is justified in the attempt to achieve success. Achieving success is the critical element for the viability of immoral behavior, for while society tends to look the other way regarding the moral transgressions committed by successful individuals either in the pursuit of success or after achieving success, if an individual fails to become successful then society looks to punish the individual for those transgressions. In some respects modern society views moral behavior under a lens of “the ends justify the means.”

So what drives an individual to commit an action that could be regarded as immoral? For the individual in question an immoral action can be justified one of two ways: 1) psychological defense mechanisms are applied that allow that individual to perceive their action as moral and/or justified; 2) the individual does not care about the morality of the action and simply takes it to produce some form of advantage to get closer to becoming successful. Interestingly enough a number of individuals apply both methods first using psychological defenses then qualifying the defense with an “ends justify the means” attitude to support achieving the advantage through the immoral behavior.

The second “justification” has multiple iterations with some experiencing a slippery slope evolution starting with small violations that are more justifiable and slowly increase their tolerance for justification whereas others simply invoke the “ends justify the means” attitude from the beginning. To investigate this slippery slope element more, largely because it is actually worth investigating for those with a large-scale “ends justify the means” attitude are simply insecure fools, why does an individual speed when driving?

Clearly moral behavior involves not violating the law, but many people each day elect not to be moral, so how do they justify such a decision? Looking at morals in general, the problem with morality seems to be that people tend not to associate many tangible or even intangible rewards or gains with being a moral person. In addition to the perceived lack of advantage to being moral, individuals will frequently reason that they also give up something to be moral, the gains that would come from not being moral, i.e. the perceived shorter pathway to success.

Using the speeding example, suppose there are two individuals John and Smith who both travel to work approximately 63 miles away, with 60 of those miles on an expressway with a 55 mph speed limit. John elects to following the speed limit of 55 mph where as Smith decides to travel at 65 mph. In this example by being moral and following the law John loses about 10 minutes in relation to Smith in extra travel time. Of course there are consequences to being immoral for if Smith is caught in violation of the law by an appropriate agent Smith not only loses the time he would have gained by breaking the law, he will also lose additional time and be penalized financially. Also Smith increases the probability of getting into an accident of some sort. So with these potential consequences, why does Smith elect to be immoral? Smith would more than likely use a cost-benefit analysis with an associated severity and certainty of consequence analysis. Does such a methodology cheapen morality?

In a cost-benefit analysis morality could either be considered a benefit or a cost depending on the overall characterization of the action. If the considered action is in-line with the general character of the actor then morality will be viewed as an intangible benefit because it will help solidify that particular trait. If the considered action is opposed to the general character of the actor then morality can be viewed as an intangible cost because it could challenge any developed morality of the individual. The cost classification of morality can change if the individual changes his/her values, something that may happen with certain immoral actions to compensate for taking those actions. Not surprisingly the comparison between morality as a benefit versus a cost tends not to be equal because typically in human psychology positive elements are overestimated in their importance and negative elements are underestimated in their importance, which applies significant bias to this analysis.

What rationalization does an individual use to reduce the significance of morality in the decision-making process? One common strategy is the 'white-lie' rationalization. The decision-maker simply isolates everyone else from the consequences of the decision typically with the reasoning that taking the action will not hurt anyone. For example Smith may elect to speed when traveling alone because he will be the sole receiver of any potential benefits or consequences. With highway statistics and common physics reporting that the faster a vehicle is traveling when colliding with another vehicle the greater the probability for fatalities this “I am the only one bearing responsibility for speeding” reasoning is clearly flawed.

However, Smith may hold on to this flawed reasoning because of what he determines to be a small probability of an accident occurring, thus the more probable benefits and consequences still remain reserved for him and him alone. Of course a simple severity argument removes any remaining reason for Smith to speed in a typical situation because although the probability of an accident is low, the severity of the result more than eclipses any time benefit acquired by speeding in the first place, especially since the utilization of the saved time will be generally irrelevant. For example the additional 10 minutes of time that Smith saves each day in transit will commonly be squandered doing some unnecessary and superficial task; the acquisition of the additional time serves no real benefit, thus legitimizing the severity over the certainty of the consequence because the benefit is meaningless; i.e. there is additional risk for only superficial reward.

So what can be done to address the waning value of morals in modern society beyond writing analysis about the flaws in the logical processing of advantage over disadvantage similar to that seen above? One option is to increase the rate of punishment for rich individuals based on the presumptive moral structure that because the value of immoral action is largely applied to increasing the probability that one becomes successful, the more successful an individual the less reason that individual has to behave immorally. Therefore, immoral behavior by wealthy individuals can be viewed as more severe than immoral behavior by poor individuals. Interestingly enough such a mindset would almost be opposite the popular current mindset, for the transgressions of poor people seem to be more amplified in society than the transgressions of rich people.

The immediate problem with such a strategy is that executing a more severe punishment against individual A than individual B for the same infraction solely on the basis of income differential is not indicative of a fair and practical criminal justice system. Fortunately increasing punishment to the rich and successful can be a viable strategy by simply ensuring that lawbreakers are punished justly. Basically if the criminal justice system actually lived up to the ideal of being fair and practical, successful individuals will have a higher probability of being punished for their transgressions opposed to the current system, which produces unfair advantages for the rich and successful.

In addition crimes associated with avoiding the investigation of the truth behind an action, most notably perjury and obstruction of justice, should have increased penalties versus those that currently enforced in society. One of the principal ways individuals avoid prosecution for their crimes is committing these two above offenses in effort to limit the ability of the criminal justice system to produce sufficient evidence to convict and rich/successful individuals have a higher probability of executing these strategies due to their additional resources and contacts. Increasing the penalties associated with perjury and obstruction of justice will at least reduce the probability that individuals engage in these tactics and make punishment for such action meaningful against those who still choose to take them.

Also society must reduce the allure and admiration for the rich and “celebrity” in general for such a change will reduce the behavior of blindly following ideas by rich individuals solely because they are rich. Furthermore society must acknowledge the value of morality by applying associated pressure to wrongdoers. While the adage of “everyone deserves a second chance” is fine and appropriate, the number of chances one seems to get from society is directly proportional to level of success; in that the richer someone is the more immoral behavior is accepted both in magnitude and frequency. Society must change this perception, no more “fourth, fifth, sixth, etc.” chances.

Finally the societal attitude regarding success and the allowed lack of morality in its pursuit is interesting in association with the frequent complaints that are heard regarding the number of individuals that are incarcerated in this country. It should be of little surprise that there are so many people in jail because society has created a flippant mindset regarding the law regardless of the magnitude of the crime. When looking at the number of individuals in jail very few have been convicted of crimes they did not commit, thus they are criminals. This creates an element of hypocrisy because one cannot complain about the number of individuals in jail and yet not argue against the “succeed at any cost” attitude that society has developed.

Overall society has two paths to choose from: 1) accept society as it is now and the simple fact that such a society reduces the value of morals as well as increases the probability of significant divisions between classes and races, which will also inherently result in more criminal activity (whether or not this criminal activity is prosecuted remains to be seen); 2) reject this aspect of society and seek to eliminate the advantage cross-over between morality and success, thus at least restoring the character intangible values of morality to society, which should have a negative effect on criminality. Unfortunately as it currently stands the idea of hoping that morality somehow wins out in the end over the pursuit of success is a pipe dream; society must decide what it values more and if it wants to view itself as a meritocracy where success is determined by the power of an individual outperforming others under a consistent set of rules, thus making that success matter in any real psychological sense, then morality must win out.

One Sexual Offense Fits All?

It has been said, ““precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” [Weems v. United States]. However, punishment for a crime is not exclusive to the domain of incarceration. For most criminals there is the social stigma of being a criminal, which significantly limits their economic, political and societal power and influence. In the case of individuals convicted of sexual based offenses this stigma is typically enhanced. While nothing can be done about the subjective stigmas assigned to criminals by other individuals regardless of the type of offense, when one looks at the administrative burdens applied to individuals convicted of sex offenses versus other types of crimes, including murder, one wonders whether or not such exclusive and additional punishment is a violation of the Eighth Amendment of the Constitution.

After the period of incarceration for a sex offender has concluded the typical administrative burdens applied to that individual encompass restrictions on residency based on the surrounding area most notably they cannot reside within some fixed specified distance from common areas where children congregate like schools, daycare centers, parks, bus stops, etc; in some situations if such an area is constructed after the individual has established residency in a particular location the individual will be forced to move (some states have grandfather clauses that do not require a move some do not). In addition sex offenders must check in with local law enforcement when moving to a new address, changing employment, changing their legal name, etc., and depending on the state have to reaffirm these notifications after a certain period of time. Finally their names are listed on a public database for a period of time that may not be commensurate with their current relationship with their local environment. Basically their name could be on this list 8 years after the incident that resulted in their conviction and after moving to an entirely new community in which these individuals have lived without incident.

To understand these administrative requirements one must attempt to understand their philosophical origins. Most sexually based crimes illicit a guttural and emotional reaction typically leading to a characterization of repugnance, that strangely enough at times, exceed the disgust one feels towards murder or other higher level crimes. The original intent of the sex offender registration list appears born from at best a psychological compromise to provide a level of deterrence from recidivism by limiting the available opportunities that could lead the individual to repeat such criminal action or at worst as an additional punitive measure because it was not legally viable to incarcerate such an individual for a period of time typically demanded/anticipated by the public in reaction to the crime.

Unfortunately this compromise has evolved into a “one size fits all” punishment moving beyond the once applied standard judicial review and discretion. It tends to no longer take the nature of the sexual offense into consideration beyond broad “milestones”. For example all would agree that there is a significant difference between a 19 year-old male having sex with a consenting 16 year-old female and a 29 year-old male raping a 16 year-old female via a drugged beverage. While these differences are certainly reflected in the incarceration portion of the punishment they typically are not reflected in the administrative/societal portion of the punishment.

Basically while both individuals from the above example are technically sex offenders, the fact is that in most situations there is a tiered structure that is so broad in its administrative penalties that the level of judicial discretion is non-existent. In a sense the application of administrative punishment can be viewed as generally lazy, disinterested in determining the actual threat posed by the individual to the community instead labeling all as viable and credible threats.

There are two pertinent court cases pertaining to the issue of sex offense and the Eighth Amendment. First, in Graham vs. Florida the United States Supreme Court adopted the position that non-capital sentences for minors, adding to capital sentences held in Roper vs. Simmons, could be found unconstitutional under a proportionality review. This proportionality review can fall within two general classifications: 1) challenges to the length of a sentence dependent on the circumstances surround the case in question; 2) cases in which the Court implements the proportionality standard by certain categorical restrictions. The important element to Graham vs. Florida with regards to the above topic is that it set the precedence that categorical Eighth Amendment proportionality reviews could be applied to non-capital offenses, moving beyond the idea of “death is different”.1

Second, in Ohio v. Blankenship the defendant claimed that his classification as a Tier II sex offender pertaining to the crime of having a sexual relationship as a 21 year-old with a consenting 15 year-old with full knowledge of her age resulting in a conviction of a single count unlawful sexual conduct was cruel and unusual punishment. This claim was based on the administrative penalties associated with that classification (largely associated with having to register as a sex offender for 25 years) in contrast to the threat he provided as a possible future repeat offender.

The Ohio Court of Appeals ruled against Blankenship determining that existing legal remedies were not available because he was an adult when he committed the crime versus being a juvenile, thus a previous ruling (related to C.P., 131 concerning juveniles) was not applicable and that he was in fact a sex offender, thus the current legal structure in Ohio was applicable. Blankenship appealed to the Ohio Supreme Court, which held arguments in early March 2015; as of this posting it appears that no ruling has been made regarding this case, but a number of individuals believe that the ruling could go either way. So currently while it is legally and theoretically possible to find the administrative penalties associated with conviction as a sex offender unlawful via the 8th Amendment, no court has current done so.

Some could argue that there is an important distinction in statutory rape cases between an individual who has accurate knowledge of the age of his/her sexual partner versus having inaccurate knowledge through deception or misinformation. On this issue the point of willing culpability is irrelevant. For example there is no meaningful difference between a 19 year-old having sex with a 15 year-old where both parties are fully aware of the age of the other versus a 19 year-old having sex with a 15 year-old who has lied to the 19 year-old claiming an age of consent (18 year-old).

Such consideration would be akin to facilitating punishment based on whether or not an individual was aware that he/she was speeding. Whether or not the individual knows he/she is speeding is irrelevant to the fact that the individuals was speeding and violating that particular law. Furthermore the issue is not whether or not an individual who commits statutory rape or a similar low level sex-based crime is a sex offender. By law the individual is a sex offender, the issue is the assigning the appropriate punishment for the committed crime in all aspects, i.e. is it appropriate that an individual convicted of sexting receives the same administrative punishment as an individual convicted of rape?

An interesting point of fact pertaining to the validity of the administrative penalties associated with non-violent sex offenders is that the general recidivism rate for sex offenders has been demonstrated numerous times to be lower than any other crime except murder.2-3 An interesting point of contention could be made regarding this data between parties that agree with board mandatory classifications and parties that disagree.

Proponents of the administrative penalties could argue that this lack of recidivism is due to the harsh administrative restrictions placed on sex offenders heavily reducing the temptations and opportunities for recidivism. Opponents of these penalties could counter-argue that this lack of recidivism is because most sex offenders are not sexual predators, but simply do something stupid early in their lives that get them labeled and convicted as a sex offender through some basic non-violent sex-related crime like sexting a consenting individual or statutory rape with a consenting partner. While the truth is unknown, opponents are more likely correct than proponents because the data encompasses a time frame for some of these analyses where the harsher administrative penalties were not entirely applicable.

An important element to whether or not the 8th Amendment can be applied on this particular issue, especially with regards to the sex offender registry is whether the registration is viewed as punitive or civil; a characterization as punitive should increase the probability of relevance in applying the 8th Amendment versus a civil characterization. In most cases it is difficult to argue that the registry is not punitive in nature with the administrative hurdles that are assigned to those on the list, especially concerning the living restrictions. It stands to reason that if the only demand of the list was public access and an accurate name and address then it would be more civil in nature; however that is currently not the case.

Based on existing information it is difficult to argue that the sex offender registry serves an important role in protecting society from a large number of individuals convicted of sex offenses because those individuals are not a threat to society. Furthermore the additional elements of societal stigma and restrictions of freedom produced through association with the list could constitute a disproportional punitive response to the crime, especially when that association is not subject to judicial review, but mandated by a state or the Federal government. For example it could be argued successfully that for a vast majority of individuals who are convicted for the first time on a single count of a non-violent sexual-based crime, registration as a sex offender is not appropriate, therefore could be appropriately challenged as a violation of the 8th Amendment.

An interesting side note is that defining mandatory registration as a sex offender as a violation of the 8th Amendment may be necessary to properly apply justice even if it not legally appropriate. In short associating this scale of punishment to the 8th Amendment may be the only way to give politicians the political cover they need to continue to publicly assert their “tough stance” against sex offenders of all shapes and sizes, but also have appropriate punitive punishment based on the type of sexual offense. Basically while applying an analytical system of judgment regarding the threat potential of a sexual offender to “relapse” is logical and compliant with justice, forcing such a system on states through association with the 8th Amendment may be necessary due to political concerns.

However, while the courts have almost always been at the forefront for social change, would it be appropriate to make this association even if it were not valid? What type of slippery slope would that produce? On an even larger scale what can be done in a democracy when the majority is not interested in changing its opinion regardless of any arguments counter to their opinion? Overall when thinking from a non-emotional logical perspective mandatory registration for most single count sex offenders appears inappropriate, not surprisingly producing a path to properly appreciate that viewpoint legally is the more difficult problem.

Citations –

1. Shepard, R. “Does the punishment fit the crime? Applying eighth amendment proportionality analysis to Georgia’s sex offender registration statute and residency and employment restrictions for juvenile offenders”. Georgia State University Law Review. 2011. 28(2) Article 7. 529-557.

2. BOJ Recidivism of Sex Offenders Released from Prison in 1994, November 2003 http://bjs.ojp.usdoj.gov/content/pub/pdf/rsorp94.pdf

3. U.S. Department of Justice Criminal Offenders Statistics: Recidivism, statistical information from the late 1990s and very early 2000s.

Defamation and Internet Reviews

The balance between free speech and defamation has frequently been a tricky one with free speech understandably given significant lenience. However, as times have changed and the power of the Internet as a commercial tool continues to grow the emergence of social critiquing websites have become important enough that a positive majority opinion can result in millions in additional revenue and a negative majority opinion can result in millions of lost dollars for authors as well as consumer and service businesses.

Unfortunately the anonymity provided by these websites and the general simplistic nature of their review system has created an environment where the “public” evaluation of services and products can be easily manipulated by political and/or competitive elements. Sadly still there are frequent instances when these websites do not behave as reasonable and rational stewards when issues of defamation arise continuously differing to 1st Amendment protection for their users failing to even ask the question of whether or not an act of defamation has even taken place, an obvious abdication of their responsibility.

Defamation occurs when an individual(s) make false statements about another individual or group that harms its reputation. There are typically three elements to supporting a defamation charge: the statement must be false, cause harm psychologically, socially or financially and be made negligently and/or deliberately (i.e. the individual did not take time to determine the truthfulness of the statement or flat out lied). Also defamation is commonly divided between written statements (libel) and spoken statements (slander). With respect to the Internet almost all defamation cases are libel due to written statements on message boards or review websites and because almost all products reviewed cannot be viewed as “public entities or officials” proving malice is not necessary to prove defamation. Finally with the commercial nature of these types of product review statements neither type of privilege, absolute or qualified, can be applied to avoid defamation charges.

The most common defense against defamation charges, and only real defense with regards to reviewing a product, is that the statement rendered is simply an opinion rather than a statement of fact. Frequently opinions, due to their personal and somewhat subjective nature, are not viewed as falsifiable. However, the Supreme Court has ruled that the “opinion defense” has certain conditions and cannot be treated as a third universal privilege. Other common defenses for defamation where individuals believed in statement accuracy due to a secondary source provider (i.e. newspaper or television report) or emotional/satiric utterance are not applicable to reviews because there is no secondary source provider and the review is considered a statement that is supposed to be believed.

Beyond opinion the only other reasonable defense for libel in a product review environment is if the reviewed product is not reasonably capable of further damage to its reputation. Obviously if the reputation of an entity has “bottomed out” in the eyes of the public then no further negative statements regarding that entity, true or not, can damage the reputation of that entity. However, for this defense to work the accused individual must demonstrate that the review did not create a “chain-reaction” that caused the reputation to bottom out due to the “pile-on” nature of the Internet.

So if there is no opinion privilege what defines a review that is negative and legal versus one that is negative and libel? Largely the deciding factor is whether or not the review contained information that a reasonable analysis could disprove. Basically the more detailed an opinion the less likely an individual is able to make a successful “opinion” defense against a libel charge. Of course this characterization is an interesting element because the most valuable reviews are those that are thoroughly detailed.

Reviewing in general, but especially online reviews, typically creates a reverse bell curve in the respondent spread that then creates an intermediate based mean. This characteristic occurs because most people do not take the time to review products they view as average (i.e. 2 – 3.5 stars). Instead most non-paid reviewers have to feel strongly about what they are reviewing, which commonly will result in 1, 4 or 5 star reviews. Therefore, for a number of products these reviewers tend to somewhat neutralize each other resulting in a large number of products receiving an average 2.5-3.5 star ranking (out of 5). With this typical result it is important that reviewers be expected to provide sufficient reasoning for why their experience with the reviewed product/service was positive or negative for the general extreme nature of these reviews can produce significant movement for products that lack a large number of reviews.

Unfortunately a number of reviewers do not provide sufficient depth, reasoning and logic to their reviews instead substituting emotion and personal political/philosophical beliefs, which are subjective and uncharacteristic to all potential future users. In addition this reasoning is marred by a lack of consistency in the rationalization. The lack of a consistent format in the review process can also lead to confusion and inaccuracy when determining why an individual enjoyed or did not enjoy a particular experience. This confusion and inaccuracy can then result in libel suits. Realistically this problem should be solved by all websites that conduct structured product reviews having a universal format. The following format is an example of what could be used in the future:


User Name:

Location:

Ranking the Experience (out of 5 stars in half star increments):


Reason 1 for the Above Ranking
Subject:
Text/Rationality:


Reason 2 for the Above Ranking
Subject:
Text/Rationality:


Additional Comments:


While it would be preferable for individuals to use their real names when reviewing items/services, it is not required because the important element is the content of the review not the simple star measure. If the generally used star system is retained then it should include the ability to evaluate with half star increments because there are a number of times when an experience is not bad enough to warrant 2-stars, but not quality enough to earn 3-stars. Without the ability to award a 2.5-star ranking the review is inherently inaccurate.

In all types of reviews the rationality for why an experience produces a certain ranking is paramount. There should be at least two major rationalizations to why an individual evaluated the experience his/her particular way. These reasons need to be clearly identified and transparent instead of potentially hiding in a large wall of text. Initially some may argue that contemplating at least two significant reasons why the product/experience was good or bad is too much work. This reasoning is foolish because if one cannot met this requirement then why is that individual taking the time to write a review in the first place because clearly the product/experience was not memorable or did not have a significant impact.

Also these reasons need to be included for the review to be accepted by the particular website. Basically these reviews would be encoded as required fields. If additional commentary is desired a non-required space would be available after the two principle rationality sections. This additional commentary section is largely reserved for individuals that had a significantly positive or negative experience.

This new review format would create significant transparency and clarity behind the rationality leading to the ranking produced by the reviewer. In addition this new format actually demands the reviewer apply some effort to the review of the product eliminating the “drive by” review of a single sentence stating that the product is “awesome” or “sucks” thereby eliminating poor quality reviews, either positive or negative, from consideration for the average ranking. This elimination is important because not all reviews provide equal value, yet in the simplistic “average score” system used by review websites they are treated equally. Changing the format of the review process should not be difficult for these review websites. Reviews using the old method could remain in the database, but would need to be isolated into a separate category where a viewer could select to view either reviews with the old system or reviews with the new system.

It is also important to note that defamation is a legitimate challenge to the 1st Amendment. There are some individuals who seem to believe that attacking any negative comment on a review website is a violation of the 1st Amendment and is somehow inherently bad business. The common statement by these individuals to that effect is something along the lines of:

“How does company A expect to get more customers when they are suing review website A over some bad reviews. Clearly company A cannot take criticism, so they lack flexibility and cannot cater to their potential customer base. Instead of adapting their only response is to sue. I would never do business with company A.”

Of course this statement is inherently flawed because it assumes all negative comments as valid, truthful and constructive criticism. Clearly any rational person who has ever viewed the comments that certain products receive on these review websites understands that this assumption is frequently not valid. Basically these individuals need to understand that there is a difference between a justified negative review that uses facts and evidence to support its stance and an unjustified negative review that embellishes and lies to “support” its stance. All parties should herald the above changes to the review process because it makes defining and supporting a defamation charge easier by eliminating the ambiguity that sometimes leads to fair negative reviews drawing legal attacks from individuals/groups.

Overall one of the biggest problems in the relationship between professional review websites and the businesses/products that are reviewed on them is that the review websites largely view themselves as only a platform to host the reviews with no responsibility for the content of those reviews. It is this attitude that leads to the “surprise” when they receive numerous complaints from individuals and companies for libel reviews. Changing the review system to demand more clear and transparent rationality from reviewers would be a significant step in better controlling the content of a review while no stripping the ability of reviewers to make a positive or negative review on a whole. This change should also limit the tension between these review websites and product developers/companies changing the certainty and validity among the number of complaints and potential libel inquiries and lawsuits. In the end something needs to change in the way these review websites handle their roles in modern business otherwise the merry-go-round of complaint/lawsuit – denial – complaint/lawsuit will continue, simply with continuously increasing stakes.

Addressing Improper Patent Litigation

Non-practicing entity (NPE) or patent assertion entity (PAE) are organizations that are most commonly lumped into the debate about patent trolls. Patent trolls are regarded as individuals or companies that have little to no research base, but purchase patents from other companies and then enforce those patents against alleged infringers in an overly aggressive and illegitimate matter because the patent holder has no intention of making commercial use of the patent themselves. Instead the threat of litigation is typically used to extort higher than appropriate licensing fees so the NPE can collect a quick dollar. While some praise NPEs for allowing startups and other small businesses an opportunity to better enforce their patents, enforcing a patent against others with no intention to commercialize or license the patented idea/technology at a fair price defiles the very purpose of the patent and is an inherent detriment on society both economically and culturally. Unfortunately there are too many individuals/companies that care only about their personal finances, not about the positive development of society; therefore, it is important to develop strategies to eliminate the benefits for behaving like a patent troll. Note that it must be understood that not all NPEs are patent trolls.

In addition to providing an unnecessary cultural and creative developmental barrier the quantitative economic costs facilitated by patent trolls are enormous estimated at 29 billion dollars in the U.S. in 2011 (note this estimate does not include opportunity costs only direct capital costs).1 In fact “patent trolling” was thought to make up approximately 61% of all patent litigation in 2011 and 2012.2 However, this economic damage could have been worse if not for the ruling from eBay v. MercExchange in 2006, which eliminated blanket permanent injunctions simply for patent infringement instead reaffirming the necessity of the four factors judgment when determining the level and length of injunction, if any at all.3 This decision limited the ability of patent trolls to “threatened” permanent injunctions as a negotiation tool during possible licensing agreements, which has been thought to limit the boldness of the settlement demands.

Another one of the problems with patent trolls is the structure of their organization limits the “defensive” options of the alleged infringer individual/company. The lack of manufacturing limits the ability to monitor activities by competitors and their existing patents to searching patent databases, thus infringement might only be recognized after significant investment is made in production and infrastructure. Also counter-suits typically lack significance against individuals/companies that generate income from litigation over direct commerce. Litigation costs for these types of plaintiffs are typically less than for the defense limiting mutual assured destruction tactics (i.e. litigation costs bankrupting both parties). Finally patent misuse claims are also difficult because of the necessity of anti-trust violations born from manufacturing dominance, which is lacking for a patent troll due to a limited/non-existent manufacturing basis.

In one attempt to combat patent trolls, in September 2011 the Leahy-Smith America Invents Act (AIA) officially became law with its central provisions going into effect last March (officially March 16, 2013). The most important features of this legislation are a change in patent prominence from “first to invent” (FTI) to “first inventor to file” (FITF) system, which also eliminated interference proceedings and an expansion of post-grant opposition options for outside parties. While this legislation has good intentions, there is little reason to suspect that it will have a significant impact on reducing improper patent litigation over the coming years and in fact it may create more problems than solutions in the overall patent environment.

For example switching prominence from FTI to FITF demonstrates no real advantages (it is somewhat ironic that this is the system utilized by the rest of the world sans the Philippines). The original idea was to eliminate interference costs and procedures as well as reduce costs and increase efficiency for acquisition of foreign patents. For example FTI focuses on when a patent applicant can prove “invention” of the idea through documentation of when it was put into practice (i.e. prototype construction). If two inventors file patent applications on the same invention an interference hearing is conducted to determine which inventor conceived of the patentable concept first in appropriate form. Basically even if inventor A applied for a patent a month after inventor B, if inventor A created a prototype two years before inventor B, inventor A would be first in line for receiving the patent. Interestingly enough while interference hearings can be expensive they are actually quite rare relative to the number of patent applications filed each year.

Under FITF interference costs are eliminated because the date of idea conception is no longer relevant only the official date of application for the patent matters. Unfortunately this system gives rise to derivation proceedings, which can more expensive than interference hearings. Derivation proceedings are exactly what they sound like, individual/company A has a patent application challenged by individual/company B on the grounds that individual/company A independently conceived of the patentable idea. Most derivation proceedings will focus on the petitioner claiming that the defendant developed the idea from ideas conceived by the plaintiff.

One of the chief problems with FITF is that the need for the inventor to file creates a “race to the Patent Office” mentality, which more than likely will decrease patent quality (ideas must be kept secret for fear of being scooped on the patent) and increase overall work for the USPTO because of fear that similar ideas may cast a broad net eliminating the patentability of other ideas. In these patent office races larger companies with in-house patent lawyers have a huge advantage over smaller companies that have to contract out patent applications to independent patent lawyers. The idea of “best mode” disclosure is also handicapped by FITF. Also new prior art published after the invention date but before the filing date could eliminate the validity of valid patentable ideas. Finally it will be interesting in the future to see if any patent attorneys are sued by a prospective patent holder for filing the appropriate patent application paperwork after a second company despite receiving the material earlier.

Some could counter that FITF eliminates hidden prior art and their ability to unfairly restrict other patent applications. Hidden prior arts are inventions that have no patent application filling, thus cannot be found through a database search, but in FTI would force the rejection of all relevant patents issued before the filing, but after the invention. However, to address this fear by changing FTI to FITF is similar in ridiculousness to how Republicans try to deal with alleged voter fraud through forcing the use of voter IDs. Basically both systems punish millions of individuals/companies for the bad behavior of say seven people because both incidents of violation are so incredibly rare. In both situations there are much better and fairer solutions if one is genuinely interested in actually addressing those rare outliers. Overall changing FTI to FITF was perplexing and more than likely will create more problems than solutions.

Some believe that AIA policy of restricting plaintiffs from filing large multi-defendant lawsuits versus filing multiple serial lawsuits will limit litigation abuse of bad patents. Another element thought to be limiting are executive orders requiring the USPTO to create a structured policy governing more frequent updates to patent ownership and NPEs having to publicly file their demand letters. Unfortunately there are problems with expecting significantly limitation from these new policies.

First, NPEs have already adjusted to the lack of multi-defendant filing capacity by asking for courts to consolidate pre-trial proceedings through multi-district litigation filings (a strategy allowed by the United States Judicial Panel on Multidistrict Litigation), which limits the disadvantages of disallowing multi-defendants. Second, the public demand letter issue is rather irrelevant because NPEs can simply file a lawsuit before sending a demand letter eliminating any detriment born from a public announcement, especially because the threat of a lawsuit is the power behind the letter and lawsuits are much less expensive for NPEs. Third, these changes do not influence the use of “exclusive licensees” as the motivator behind the initiation of infringement litigation.

The expansion of post-grant opposition options also appeared positive initially, but has not produced and probably will not produce the anticipated results. The principle element to post-grant opposition changes is allowing a third party to challenge patent validity. There are three significant elements to this third party challenge potential: 1) pre-issuance third-party submissions; 2) post-grant review; 3) inter partes review. Unfortunately despite these changes the probability that they will reduce the approval of bad patents or litigation involving bad patents is questionable.

First, for pre-issuance third-party challenges it is rare that a third party will have sufficient knowledge of ongoing patent applications, unless that third party is a plant or sponsored by some organization, because such applications are difficult to locate and track. Second, most patents only become relevant after an individual or company begins producing a marketable product, not while a patent is pending. This behavior also limits the effectiveness of the time period (nine months) associated with the post-grant review process. After the expiration of the nine-month initial post-grant review period the AIA allows for inter partes review. However, this type of review is not the same as the current inter partes review in the reexamination process as judgment responsibilities are transferred from the USPTO to administrative law judges on the Patent Trial and Appeals Board and the review standard is raised from “substantial new question of patentability” to “reasonable likelihood” with regards to whether or not the patent will be overturned upon actual reexamination.4 These two changes should reduce the number of inter partes reexaminations granted due to third party request.

Furthermore reexamination requests are typically utilized as supplement to patent litigation not substitution for it. For example in 2008 30% of ex parte reexaminations and 62% of inter partes reexaminations were enacted due to pending litigation.5 Also expansion of post-grant reexaminations could hurt the patent process as companies have greater opportunity to file oppositions for the purpose of wasting time and financial resources of their competitors reducing their ability to compete. A quick side note: ex partes examinations of a given patent are triggered by petition of a third party, the patent holder or the director of the USPTO, but once the examination begins only the holder and the assigned patent agent for the reexamination conduct the reexamination. Inter partes can be triggered similar to ex partes, but third parties are allowed to participate in the reexamination.

Finally one of the most important aspects of these new conditions is there is no change or hastening of the review process itself. While the legislation attempts to install a maximum time period of 18 months for disposition few actually believe the USPTO will be able to conduct an effective review in such a time period. Existing inter partes reviews typically take 34 to 53 months for non-reworked patents without appeals to be settled and five to eight years for appealed cases.6 The demanded “special dispatch” status of inter partes reexaminations is irrelevant because the USPTO is overworked and because the AIA expands inter partes to include discovery and a hearing in the Patent Trial and Appeal Board further increasing the take taken to resolve these types of reviews.4,6

In addition when infringement litigation and inter partes reviews are co-pending federal courts can grant a stay (the probability that a stay is granted depends largely on the court), which eliminates the ability for the patent owner to collect damages from the potential infringer. Thus smaller companies/individuals may be placed under great financial strain and have to declare bankruptcy before a ruling, thereby mitigating any value in eventually receiving redress from victory in the infringement litigation. Overall while some thought the AIA would be useful for battling NPEs most of the provisions in the AIA appear to be more detrimental than beneficial.

One proposed solution to addressing patent trolling litigation that has been floated is to invoke a mandatory patent reexamination for all contested patents that are the subject of litigation.4 In this proposal the plaintiffs bringing an infringement lawsuit will be responsible for all elements associated with the reexamination including the fee. Proponents of such an idea believe that the “extortion” effect of trial would be heavily mitigated by the specter of reexamination revoking the patent, thus reducing the probability that bad patent holders attempt to litigate. While this belief is true for bad patents there are a few concerns with such a strategy as well. First, the costs associated with a reexamination are not cheap, ex parte reexamination is $2,250, and an inter partes reexamination costs $8,800.4 Fortunately this cost is not a large issue for most patent suit plaintiffs.

Second, it will delay the ability of the patent holder to enforce his/her patents against infringing parties. As highlighted above both ex parte and inter parte reviews take years to complete, which could significantly handicap start-ups and small businesses against larger competitors. During this delay larger competitors with greater manufacturing, marketing and distribution capacity could completely sweep smaller competitors from the market after copying the patented technology and/or process crippling them to the point that even after reexamination and litigation are completed (5+ years later) the plaintiff company will be unable to recover. This scale effect is also why the elimination of process patents, championed by some, is foolish if one wants to create an environment where smaller companies have any chance to succeed against the “big boys”.

Some proponents have proposed additional safeguards including vacating the mandatory reexamination if a preliminary injunction could be obtained or an initial showing can be made that the patent is being asserted against a direct competitor or potential competitor.4 The one immediate concern is how the second voiding strategy is constructed because while most NPEs initially lack manufacturing capacity to compete with most of the companies they litigate against depending on how this provision is written they could “dummy” up some manufacturing to achieve this second condition, thus allowing any bad patents to skip the mandatory reexamination. Overall for the above suggestion the key question is how can this provision be attained by a small business or start-up that may not have any manufacturing yet, but plans to in the future versus restricting it from NPEs that have no future intention of manufacturing a product that utilizes information from the patent in question?

Third, there is a minor concern about court venue coming out from reexamination where the plaintiff may no longer have the ability to determine venue instead initiating a “race to the court house” mentality. Fortunately this “concern” is rectified in another suggestion later.

Fourth, reexaminations do not have the same level of stringency as court proceedings regarding the types of invalidity that can be applied. For example under 37 CFR 1.552 prior art rejections are only made due to prior art patents or printed publication not on prior use, sale or inventorship. Therefore, reexamination may miss certain issues of invalidity giving both the plaintiff and defendant the false impression that the patent is high quality entering into litigation.

Fifth, similar to the second concern, is that mandatory reexamination proposals will force more work on an already overtaxed USPTO. Some argue that because on average only about 2,500 patent infringement lawsuits are filed each year7 the additional work is minimal relative to the overall number of patent applications filed each year [500,000-600,000 (applications have increased significant in recent years)].8 Unfortunately the problem with this mindset is that the USPTO is already supersaturated in its workload thus even a small increase does not act as a linear increase, but an exponential increase in time allotment.

Some have argued that the USPTO can address these additional issues by increasing fees for these mandatory reexaminations. There are two concerns with such a strategy: first, again small businesses may have trouble paying the fee when enforcing their patents and unable to acquire a waiver. Second, the total additional funds from this increase is dynamic, thus there is no guarantee regarding revenue. What happens if revenue falls short on a given year, will various patent examiners become yo-yos hired and fired on a yearly basis? Overall a mandatory reexamination is an interesting idea, but there are some concerns chiefly how to manage the additional workload for the USPTO and how to differentiate between patents owned by start-ups and patents owned by NPEs with no economic manufacturing intent.

Clearly another means to address future bad patent litigation is to reform the USPTO itself so bad patents are not granted in the first place. While this suggestion is obvious the key to USPTO reform is simple funding. There is not enough money to hire or retain enough quality patent examiners, especially when considering the cost of living in Alexandria, Virginia or surrounding areas. The planned PTO “branch offices” are uncertain in their ability to alleviate patent backlog. Unfortunately U.S. Congress has not demonstrated any desire to increase USPTO funding; in fact as time passes Congress has become more likely to cut funding from the USPTO over increase it. In fact due to a lack of funding the USPTO invoked a hiring freeze in 2009 and has expanded that freeze in 2013 partially due to the Federal Government sequestration resulting in the USPTO facing an approximate 140 million dollar shortfall (requiring further cuts).9

If improving monetary availability is not practical then systematic changes within the USPTO can be administered to reduce the probability that bad patents are left to the court for termination. For example Congress can grant the USPTO the mandate to reject the use of broad/generic language in an application when disclosure only focuses on a very specific improvement to an existing art. The highly criticized “sealed crustless sandwich” patent would have been rejected during the initial examination due to this mandate instead of during reexamination. Also the office could reorganize so that two examiners need to sign off on an application in that one examiner would do all of the standard work and the second examiner would “edit” that work so to speak. A second perspective can see things that might have been missed or ask questions on the methodology of the first examiner. Such editing would be cursory, thus not adding significant time expenditure.

Expansion and reorganization of the USPTO search database would help both examiners and applicants regarding existing prior art and the probability that a patent will be/should be approved. Also the official declaration of specific terms for given subjects (think a glossary of sorts) should dramatically reduce the ability of certain patent holders to hide behind ambiguity to avoid prior art eliminations or expand their patent to cover more than it should.

Additionally Congress could convene various panels of industry experts to review all existing patents in their respective fields to make recommendations on whether or not the patent is legitimately proprietary and suggest whether or not a reexamination of the given patent should occur. Industry, with their mega-profits, could provide the funding for such panels if needed because industry is most affected by patent trolls. Such a process could clarify the legality of numerous patents greatly increasing potential patent litigation efficiency and limiting total patent trolling in those given subjects.

One misconception is that patent trolls prey on the large corporations looking for the big payoff, but because most patent trolls do not want to actually go through the process of litigation about 55% of the NPE defendants have a net worth of $10 million or less.10 The reason for this targeting is officially unknown, but it can be assumed that these smaller companies have less experience and financial resources to actually engage in litigation and are more likely to avoid litigation by signing a large licensing fee. The large costs associated with defending an infringement suit and the uncertainty of outcome are the chief problems with bad patents. For NPEs plaintiff litigation costs are minimized because the lack of manufacturing and business operations limits the necessary work hours associated with discovery and data mining. Counter-suits are not typically available to defendants further lowering costs. Also NPEs consistently employ lawyers who work on contingency versus hourly fees11 in these infringement suits as well as sue multiple defendants with the same patent infringement claim (while they can no longer sue multiple defendants in the same action, litigation “reach” has not changed).

While NPEs use the above strategies to reduce their costs, they also apply various legal strategies to increase the defendant costs. First, NPEs demand maximum discovery even if most of their request is irrelevant.11 Second, they frequently assert infringement against multiple patents, which places pressure on the defense increasing resource expenditure. Third, because the plaintiff controls the jurisdiction due to patent infringement being a federal procedure an inconvenient venue can be selected to increase transportation costs. However, this strategy is typically foregone for selecting the Eastern District of Texas officially because of its expertise in patent issues, but realistically because it tends to favor plaintiffs in patent-based litigation.

A survey by the American Intellectual Property Law Association determined that for smaller companies a claim that would net a most 1 million dollars generally cost $650,000 to defend, a $1 to $25 million dollar claim generally cost $2.5 million and a claim exceeding $25 million cost approximately $5 million.12 With these general benchmarks as expected litigation costs, it is not surprising that numerous defendants sign licensing fees at above market value to avoid these costs; even if the defendant is in the right, the costs of the patent litigation could cripple them.

One means to counter high defendant litigation costs is if the defendant is found not guilty of patent infringement and the plaintiff is found lacking cause to bring the infringement suit in the first place, the plaintiff will be obligated to pay the defendant one and half times his court costs. This idea has been floated before, but usually only the English system of redress is utilized where the loser pays the court costs of the winner. The concern with only limiting the reimbursement to “at cost” instead of some multiplier of cost is that a majority of the charged defendants would have to defend themselves and win for it to provide a negative motivation factor, which even with “loser pays” could still be risky due to the uncertainty of court decisions. Another concern is that recent suggested legislative action (i.e. SHIELD) would restrict “loser pays” to only corporations not individuals. Although difficult to speculate at this time, such a condition could completely mitigate any benefits of such a system in that NPEs could sell patents to individuals associated with the company and then that individual could file the infringement suit avoiding the “loser pays” aspect.

The federal government could also establish a specific loan for individuals/companies at 3% interest to cover court fees pertaining for patent litigation (clearly the loan would need to be evaluated for the bad patent potential). The projected interest related costs should not be significant concern for those defending against genuine patent trolls if there is some form of “loser pays” system because even if there is no multiplier the interest cost will typically be less than the licensing fee demanded by the plaintiff. Another possibility is that the federal government could provide lawyers on retainer (working for the federal government) to mitigate costs for needy individuals/companies (these lawyers would also receive a 3% commission from won cases). This lawyer pool could be an interesting idea because the vast majority of costs associated with patent litigation are lawyer fees.

As mentioned above litigation history has demonstrated that plaintiffs overwhelmingly prefer to select the United States District Court for the Eastern District of Texas largely because it tends to favor plaintiffs in patent-based litigation. Therefore, one means to discourage patent trolling is to allow for random selection from the venue pool eliminating the ability of the plaintiff or defendant to select the venue for future litigation. Removing the ability of the plaintiff to select what may be regarded as a “home court advantage” would inherently reduce the attractiveness of a frivolous patent lawsuit. Finally one means for the government to “strong-arm” a reduction in bad patent litigation is to force licensing arbitration between conflicting parties to limit the overall extortion and litigation costs. However, such a strategy would have to be carefully constructed because numerous groups would seek to manipulate it in some way if enacted.

The cost of patent trolls and their actions are a drain on society both from a creative and economic standing. However, one must be careful when dealing with patent trolls; while most patent trolls are NPEs, not all NPEs are patent trolls. NPEs can provide a useful service as a middleman to allow smaller companies a better opportunity to enforce their patents. Dealing with patent trolls demands dealing with bad patents. One critical element for addressing bad patents is to neutralize them as bad or obvious ideas before they become patents in the first place hence more vigilance at the USPTO and providing improved resources to allow for this vigilance. However, USPTO reform will not address existing bad patents. Mandatory reexaminations are one means of addressing currently existing bad patents, but the better way may be through litigation with some form of loser pays system and government loaned funds. Overall addressing patent trolls appears straightforward, society simply must be realistic about doing what needs to be done.


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Citations –

1. Bessen, J and Meurer, M. “The direct costs from NPE disputes.” Boston Univ. School of Law, Law and Economics Research Paper No. 12-34 - Cornell Law Review. 2014. Vol:99. Forthcoming.

2. Goldman, D. “Patent troll: ‘I’m ethical and moral.’” CNN. July 2, 2013.

3. Wikipedia – “EBay Inc. v. MercExchange, L.L.C.” Accessed August 9th, 2013.

4. Bradford, B and Durkin, S. “A proposal for mandatory patent reexaminations.” The Intellectual Property Law Review. 2012. 52(2): 135-166.

5. Guest Post: Hot Topics in US Patent Reexamination. Patentlyo. http://www.patentlyo.com/patent/2009/03/guest-post-hot-topics-in-us-patent-reexamination. html?cid=6a00d8341c588553ef011168d0dd50970c

6. Reexamining Inter partes Reexam. Institute for Progress. http://www.iam-magazine.com/blog/IAMBlogInterPartesReexamWhitepaper.pdf

7. Lemley, M. “Where to file your patent case.” AIPLA. 2010. 401(38): 404.

8. U.S. Patent Statistics Chart Calendar Years 1963 – 2012. http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm

9. Welcome Back Fee Diversion: USPTO Likely to Begin Sending Collected Fees back to Treasury. Patentlyo. April 2013. http://www.patentlyo.com/patent/2013/04/welcome-back-fee-diversion-uspto-likely-to-begin-sending-collected-fees-back-to-treasury.html

10. Chien, C. “Patent Trolls by the Numbers.” Patentlyo. Mar. 14, 2013. http://www.patentlyo.com/patent/2013/03/chien-patent-trolls.html

11. Sudarshan, R. “Nuisance-value patent suits: an economic model and proposal.” Santa Clara Computer and High Tech L.J. 2008. 159(25):160.

12. American Intellectual Property Law Association. “Patent litigation costs: Report of the Economic Survey.” 2011. http://www.aipla.org/learningcenter/library/books/econsurvey/2011/Pages/default.aspx