Citizens have right to improve technologies without fear of legal action, professor says

Tuesday, October 13, 2015

LAWRENCE — The time has come for a philosophical change in the way the American legal system, government and private business view innovations created by private citizens, a University of Kansas professor argues in a new law review article. “Citizen innovators” have the legal right to develop new and better technologies without fear of interference from overregulation and excessive intellectual property. The “right to innovate” flows from the U.S. Constitution, the common law, federal laws called “organic statutes” and presidential executive orders.

Andrew Torrance, Earl B. Shurtz Research Professor at KU School of Law and visiting scientist at the MIT Sloan School of Management, and his colleague, Eric von Hippel, T. Wilson Professor of Management at the MIT Sloan School of Management, have co-authored “The Right to Innovate,” a Michigan State Law Review article that offers three approaches to protecting “citizen innovators” and their right to engage in noncommercial innovation to satisfy their own needs and to share their innovations freely for the betterment of society.

Technology has greatly leveled the playing field of innovation. Whereas private companies and government were formerly believed to create almost all new products and technologies, von Hippel’s pioneering economic research on “user innovation” has revealed that private citizens can, and do, also produce new medicines, medical devices, software, automotive improvements, educational methods and myriad other useful inventions in their own homes. As long as they are not endangering anyone or profiting from their work, their innovative activities are largely beyond the jurisdiction of regulatory agencies and intellectual property owners, the authors argue.

“Citizens have a robust legal right to innovate in all sorts of ways. From medical devices to drones, to better ways to irrigate fields, the sky is the limit,” Torrance said. “The pressure they face from government is unwelcome, chilling and often illegitimate. The right to innovate benefits all of society and is one of the rights of citizenship.”

The authors use the metaphor of “innovation wetlands” in their work. Historically in the United States, wetlands were viewed as barriers, wastefully unusable lands or even health hazards. They were denigrated at “malarial swamps” and feared as breeding grounds for diseases. The only good swamp was a drained or filled-in swamp. However, biological science eventually discovered they, in fact, provide numerous vital ecological amenities, such as cleaning water, providing refuge for migrating birds, acting as nurseries for young fish and buffering against floods. These discoveries in time led to the Clean Water Act of 1972 that protects wetlands.

Whereas private citizens who develop their own products and improve existing products, were long thought to pose nuisances or cause harm to businesses and government, a vast body of empirical evidence now shows that citizen innovation is, in fact, greatly beneficial to society, Torrance says. Some studies suggest that most useful innovation originates from noncommercial citizen innovation rather than corporate and governmental research and development efforts.

Torrance shares the example of NightScout, a group of software engineers who successfully hacked a Food and Drug Administration-approved medical device designed to make careful measurements of blood sugar in individuals with Type-1 diabetes. NightScout then was able to improve the device by allowing its output to be viewed on any smartphone via a custom-written app. Using this app, loved ones could monitor the blood-glucose levels of their children, spouses or friends. In fact, NightScout is named after the need to monitor blood-glucose levels of Type-1 diabetics while they sleep – a dangerous time for these people due to the constant threat of falling into a diabetic coma, or dying, while asleep. Though the technology was made available to anyone for free, the FDA initially tried to stop such innovation, which they see as potentially dangerous. In the end, the FDA seemed to conclude that they lack jurisdiction to stop such innovation.

“Even the FDA realizes there is not much you can do to stop citizen innovation. If you think about it from an ethical perspective, regulatory agencies should generally celebrate, not try to stop, such improvements,” Torrance said. “As a default position, government agencies often assume they have the legal right to stop citizen innovation. A proper reading of the law, including both constitutional and venerable common law principles concerning commerce, liberty, autonomy, privacy, free association and free speech, shows this socially harmful attitude to be legally unjustified. The right of citizens to innovation to satisfy their own needs, and then freely share their innovations with others, is quite strong.”

Private companies do need governmental permission when developing new technologies because they intend to profit from them. If money crosses state lines in association with such innovation, regulatory agencies do have jurisdiction over such activities. Noncommercial citizen innovation, however, is largely free of such oversight.

Citizen innovators often abandon inventing when faced with governmental scrutiny or legal action because they are either unaware of their rights or lack the resources to hire attorneys to defend them. This sort of overregulation and overlitigation stifles innovation and harms society, the authors argue. To combat this chilling effect, the authors include a “toolkit” for innovators to help them understand their rights.

The toolkit outlines the right to liberty; privacy; First Amendment rights to free speech, press and association; the Fourth Amendment, and rights reserved to the people, among other legal principles protective of citizen innovation. Innovators often are not aware of their rights, such as a right to privacy, which discourages governments and others from prying into activities carried out in citizens’ own homes. Knowledge of those rights is vital as there are millions of citizen innovators, and their activities vastly outweigh those of all private and governmental research and developmental employees combined, Torrance said.

The authors also outline common law rights that protect innovation among private citizens, discuss ways in which governments should account for the benefits of citizen innovation and the costs of overregulating it, in their own cost-benefit analyses, and the benefit of designing regulations that citizen innovators can comply with at very low costs.

Technology has rapidly evolved, drastically changing the paradigm of innovation.  As von Hippel has written, this has “democratized” innovation. Whereas only government or academics were able to access computers and sophisticated technical equipment in the past, people can now program software on their smartphones, scan and replicate physical objects at home, and even engage in biotechnological research and development once impossible outside expensive laboratories. Torrance and von Hippel argue it is time for the law to evolve and recognize that a “democratization of innovation” is not only legal, but it is beneficial as well.

“The fact that innovation is coming from new sources is wonderful for society,” Torrance said. “But the legal system is better at crushing citizen innovation than fostering and protecting it. What Eric and I are concerned about is that, if you don’t recognize this vital source of innovation, and protect it from overregulation and overzealous application of intellectual property, you risk destroying it just as we used to destroy wetlands. In both cases, we need to celebrate these valuable amenities and enlist the law to ensure they survive and thrive.”

U.S. Supreme Court justices appalled by details of Kansas murder cases

"The U.S. Supreme Court on Wednesday seemed likely to rule against three Kansas men who challenged their death sentences in what one justice called 'some of the most horrendous murders' he’s ever seen from the bench.


Kansas Solicitor General Stephen McAllister, who is also a professor at Kansas University’s School of Law, argued that requiring the state to conduct separate sentencing hearings would lead to inconsistent results and unfairly allow defendants to preview the state’s evidence."

KDHE Issues Birth Certificates to Same-Sex Kansas Couples

"The Kansas Department of Health and Environment has agreed to issue birth certificates for two same-sex couples. In both cases, the women had children through artificial insemination. Kansas law says a married couple can both be listed on the birth certificate for a child born through artificial insemination, but KDHE initially declined to list two women as the parents.

Attorney David Brown represents a Lawrence couple in a lawsuit over the issue.

Sue the Bank? You May Get Your Shot

"The Consumer Financial Protection Bureau is moving toward new rules giving borrowers more rights to sue banks and credit-card companies, the agency's latest attempt to shift the balance of power to consumers from financial institutions.


The proposals under consideration would ban companies from including arbitration clauses that block class-action lawsuits in their consumer contracts for a broad range of financial products.


TPP Should Alarm Gulf States as US Turns to Pacific Rim

"On Monday, 12 Pacific Rim countries, including the United States, reached a consensus on the wording and subject matter of the TPP free trade agreement.

'This TPP ought to send shockwaves across the Gulf, because… it is showing that the United States is serious about re-balancing its focus out of the Middle East and towards the Asia Pacific region,' Raj Bhala, who is also a University of Kansas Law Professor, said."


Kansas A.G. Derek Schmidt: 'State has a very strong argument' in Carr brothers case

"Carr, along with his brother, Reginald, had been arrested as suspects in a crime spree that included the abduction, sexual assault and murder of four people in an abandoned soccer field in Wichita. The brothers were charged, convicted and sentenced to die for the crimes.

Fifteen years later, the fate of the Carr brothers remains irresolute. On Wednesday, the U.S. Supreme Court will hear two hours of oral arguments in which the state of Kansas will attempt to convince the nation’s high court that the Kansas Supreme Court erred in vacating the brothers’ death sentences.

Carr cases to be heard by a U.S. Supreme Court increasingly skeptical of the death penalty

"On the final day of a U.S. Supreme Court term that will long be remembered for legalizing same-sex marriage, two justices boldly and bluntly challenged the constitutionality of the death penalty in America.

Dissenting from the majority in Glossip v. Gross, a case centered on Oklahoma’s use of the drug midazolam in executions, Justice Stephen Breyer wrote June 29 that “the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishment.’ ” Justice Ruth Bader Ginsburg concurred with Breyer’s dissent.

Law professor will argue death penalty, bank discrimination cases before Supreme Court

Monday, October 05, 2015

LAWRENCE — A University of Kansas law professor will argue before the U.S. Supreme Court twice this week in a pair of cases: one involving the Eighth Amendment and capital punishment, and the other alleged discrimination in banking.

Stephen McAllister, the E.S. & Tom W. Hampton Distinguished Professor of Law, will appear before the court today, Oct. 5, in the case Hawkins v. Community Bank of Raymore. On Wednesday, Oct. 7, he will appear on behalf of the state of Kansas in Kansas v. Jonathan Carr and Kansas v. Reginald Carr Jr. These arguments will be McAllister’s eighth and ninth appearances before the high court, respectively.

The Carr case is centered on brothers Jonathan and Reginald Carr, who were convicted of capital murder for brutal quadruple murders they committed in Wichita in December 2000. They were sentenced to death, but the Kansas Supreme Court overturned their sentences in 2014, holding both that the jury instructions in the Carrs’ sentencing were inadequate and they should not have been tried jointly in the same proceeding.

“They are arguing the jury instructions were erroneous because they may have misled the jury into believing it could not consider some evidence in favor of imposing a sentence less than death,” McAllister said of representatives of the Carrs. Kansas Attorney General Derek Schmidt will argue for Kansas on what the Supreme Court has labeled the “mitigation instruction” issue.

The second issue in the cases is whether it was constitutional error to determine the Carr brothers’ sentences in a single proceeding, rather than severing those proceedings so that each brother had his own sentencing proceeding. McAllister will be arguing for Kansas on this question, which the Supreme Court has labeled the “severance question.” He argues that the joint proceeding was consistent with the Eighth Amendment, is part of a longstanding tradition in the United States of joint trials and that jury instructions properly informed the jury to determine each brother’s ultimate sentence on an individual basis.

McAllister, who is also Kansas Solicitor General, will have 20 minutes to make his argument in the Carr cases, and Kansas is supported in its argument by the United States, which frequently conducts joint capital proceedings under federal law.

Two days prior to his appearance regarding capital punishment, McAllister will argue on behalf of the bank at the center of Hawkins v. Community Bank of Raymore. The case is a test of the Equal Credit Opportunity Act, designed to prevent discrimination in lending against women based on gender, marital status and other factors. The plaintiffs in the case originally sued because they claimed female spouses were required to sign guaranties for loans to their husbands’ business. The federal statute, however, allows only the “applicant” for  credit to bring a claim against the bank, and lower courts held that the spousal guarantors are not applicants and thus could not bring a claim, although the business itself that received the loan could do so. McAllister is arguing for the bank and defending the holding of the lower courts. Allowing extra parties, who did not receive the credit, to bring suit would “open Pandora’s box” in terms of banking litigation.

“Bottom line, the statute makes clear that it is only the person who applies for the credit and is denied, or who receives credit on discriminatory terms, who has the claim and should be able to bring suit,” McAllister said.

McAllister said that while two appearances before the court in three days may be unusual, it will provide both unique professional experience and invaluable teaching material he can bring to his classes. Both cases involve issues he teaches and writes about, including federal constitutional law.

The cases are both scheduled for argument the first week of the Supreme Court’s term, and decisions may be issued anywhere from a few months to several months after the arguments, although certainly by the end of June 2016.

Editor’s note: McAllister is in Washington, D.C., this week arguing cases before the Supreme Court and not available for interviews. Elizabeth Cateforis, clinical associate professor of law and supervising attorney in the Paul E. Wilson Project for Innocence and Post-Conviction Remedies in the KU School of Law, is available to speak with media about capital punishment, the Carr brothers and Gleason cases and Kansas death penalty statutes. To schedule an interview with McAllister upon his return or with Cateforis, contact Mike Krings at 785-864-8860 or


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