University of Colorado Law Review

Volume 79, Issue 2, Spring 2008

FOREWORD

In our lead article, Accounting for Federalism in State Courts: Exclusion of Evidence Obtained Lawfully by Federal Agents, Professor Robert M. Bloom and Hillary Massey examine the implications of the Tenth Amendment reservation clause and Article VI’ Supremacy Clause on state courts’ decisions to exclude evidence that was obtained by federal agents legally under federal law but in violation of state law.  They contend that this has become an important issue because after 9/11, the U.S.A. Patriot Act has expanded the powers of federal agents, and many states have responded by interpreting their own constitutions more narrowly.  After surveying recent U.S. Supreme Court decisions dealing with federalism issues, Bloom and Massey argue that state courts cannot simply ignore federalism concerns and decide to suppress this type of evidence based on state evidentiary principles.  Instead, they propose that state courts addressing this issue employ a framework similar to that of Erie Railroad Co. v. Tompkins, which would weigh federal interests against state substantive interests.  In the view of the authors, this approach would successfully avoid federalism issues while still allowing state courts the opportunity to suppress evidence obtained legally under federal law but in violation of state law.

Our next article, The iPod Tax: Why the Digital Copyright System of American Law Professors' Dreams Failed in Japan, by Professor Salil K. Mehra, discusses the problems with current conceptions of an “iPod tax”—a tax on digital copying and transmissions facilitated by clearinghouse that would collect proceeds from users in exchange for a “blanket license” and then pay out individual rights-holders from a general fund.  Professor Mehra bursts the collective bubble of American law professors who view the idea as a panacea, pointing to a similar system in Japan, which faltered due to regulatory breakdowns.  Further, he discusses the findings of Japanese experts, mostly law professors, who rejected a proposal to make the Japanese system more like the recent conceptions of the iPod tax by American law professors.  Professor Mehra, however, does not suggest that the idea of an iPod tax be discarded altogether.  Rather, he proposes that the digital clearinghouse feature of this plan be structured as a user-owed cooperative, which, he argues, would successfully avoid the problems of the Japanese system.  

In our third article, Users as Innovators: Implications for Patent Doctrine, Professor Katherine J. Strandburg argues that subjecting user innovators—and especially those whose inventions can be used as research tools—to infringement liability does not advance the policies behind patent doctrine and creates unnecessary social costs.  She suggests that patent policy is dominated by the desire to allow inventors to recoup the benefit of their efforts to the exclusion of free-riding competitors so that inventors have sufficient incentives to continue to invent and innovate.  In contrast to inventors trying to sell their inventions on the market, however, Professor Strandburg explains that some users innovators innovate solely for their own purposes, and thus, further incentives in these instances are not necessary.  In seeking to remedy this inconsistency, she suggests the possibility of establishing a blanket exemption for all research uses of patented inventions from infringement liability.  Professor Strandburg, however, recognizes that some may be concerned that a blanket exemption might still reduce incentives for commercial researchers. Thus, she proposes, as an more modest alternative, the exemption of all non-commercial research uses of patented inventions and of all research uses of inventions by non-profit inventors.  

Can Granny Have a New Home? Resolving the Dilemma of Dementia and Domicile in Federal Diversity Jurisdiction Cases
, by Professor Angela Upchurch, examines the issue of whether an incompetent adult’s citizenship for purposes of diversity jurisdiction in federal court changes when her guardian relocates her to another state.  Professor Upchurch notes that this issue will continue to become increasingly important as the life spans of Americans become longer and the number of dementia sufferers continues to increase.  After discussing the general domicile standard for asserting federal diversity jurisdiction—which includes the element of intent to remain in the state—Professor Upchurch analyzes the current circuit court split over how to resolve citizenship determinations involving incompetent adults, who are deemed incapable of forming the requisite intent.  She explains that some circuits have decided on a per se rejection of changes in domicile in this context, while others have looked to what is in the best interests of the incompetent adult, and yet still others have focused on the motivations of the guardian in making the relocation decision. Ultimately, Professor Upchurch rejects these approaches, finding them to be both reactionary and inadequate to properly protect the interests of incompetent adults.  Instead, she recommends that federal courts uniformly hold that incompetent adults have changed their citizenship when they have relocated to another state and when there are objective indicia that suggest the relocation is a permanent one.

In our first student piece, Reverse 404(B) Evidence: Exploring Standards When Defendants Want to Introduce Other Bad Acts of Third Parties, Jessica Broderick offers solutions aimed at resolving the disagreement among federal courts regarding the ability of defendants to use “reverse” 404(b) evidence.  She explains that typically, Federal Rule of Evidence 404(b) is used to prohibit prosecutors from introducing evidence of a defendant’s “other bad acts,” unless, for instance, it is being introduced to establish a defendant’s intent, motive, identity, or plan.  Ms. Broderick states that reverse 404(b) evidence, on the other hand, is evidence of a third party’s other bad acts that the defendant introduces to show that the third party either committed the crime in question or coerced the defendant into committing it.  Following a discussion of the different approaches federal courts have formulated, Ms. Broderick focuses on the conflicting methods that Colorado and Kansas state courts have devised to resolve this issue.  In the end, though, she rejects these approaches and proposes two alternative solutions that she suggests will promote consistency and better balance the interests of the parties involved. 

Finally, in his casenote, An End to Federal Funding of For-Profit Charter Schools, Mark D. Evans discusses the potential implications of the Ninth Circuit case, Arizona State Board for Charter Schools v. U.S. Department of Education, which upheld a U.S. Department of Education policy deeming for-profit charter schools ineligible for federal funding under the Individuals with Disabilities Education Act and Title I of the Elementary and Secondary Education Act.  In particular, Mr. Evans focuses on the way in which the Ninth Circuit’s holding, if adopted by other circuits across the country, may inhibit the growth of charter schools, especially in states like Colorado, where there are no requirements that such schools be formed as nonprofit entities.  He argues that the Department of Education’s policy is problematic because it limits the ability of for-profit charter schools to educate special needs and economically disadvantaged students and oddly encourages the formation of essentially for-profit charter schools that create only the illusion of being nonprofit through their use of nonprofit governing boards.  Mr. Evans concludes by suggesting ways in which operators of for-profit charter schools can address and mitigate the problems presented by the Department of Education’s policy and its affirmation by the Ninth Circuit.

James P. Eckels
Editor-in-Chief