A gross oversimplification of the English common law system is that the law aims to punish evil and protect property. More often than not this gets shunted into the categories of criminal and civil law. In the age of monarchy and feudal obligations, the legal profession was relegated to an even smaller minority of literate people. Often times this minority was composed of clerics from which we get the word “clerk.1” The legal system was extremely formalized and even minor derivations from the prescribed form may result in a case being tossed out. The power of the law was limited in the types of remedies it could provide. To achieve greater fairness or equity, at least since King Edward IV the Crown established the court of Chancery to adjudicate a variety of property cases2.

In England, the Chancellor was a special judge appointed by the Crown to oversee these cases. The Lord chancellor still exists in England to this day. The Chancery courts were different from the “courts of law” in evidentiary requirements, procedure, and most notably the relief they could provide. The Chancery focused almost exclusively on issues of property and contract, thus the remedies are focused on those issues. Equitable remedies included injunctions, specific performance, rescission of contracts, and restitution. For example, if you entered into a contract for the sale of land and a person refused to honor that contract the Chancellor could force the sale. Another example is if a neighbor is repeatedly violating your property by stealing your fruit the court of Chancery could issue an injunction on the neighbor. If the neighbor violated that injunction they could be subject to punishments for contempt of court.

In the United States, the courts of Chancery became fused together with courts of law. Thus, if an individual is seeking both monetary damages, which is a function of law, and an injunction, which is a function of equity, they can achieve both in a single court. A notable exception is that the US still has bankruptcy courts which were traditionally an issue of equity. An even more notable exception is Delaware which still has courts of Chancery. This is part of why so many businesses are incorporated there.

In the late 19th Century with the rise of capitalism, an investor seeking to profit off a venture would purchase a portion of a company. These cumulative shares comprise an individual’s equity in the company. Equity in this instance means the ownership of the company. In bankruptcy, the remaining assets are distributed to those who have equity.

As you can probably imagine this is a very very simplified version of the history of equity. However, I think the key points to remember are that (1) Courts of law and equity were separate. (2) Courts of equity called the Chancery focused on providing a set of remedies relating to property and contracts. (3) Issues of equity are functionally different from law even if today they may be adjudicated in a court of law.

Next time we will look at definitions of equity as it is presently used and distinguish it from its historical and etymological roots.

1. Oxford, The Oxford Dictionary of English Etymology 181 (C.T. Onions, 1966)
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2. Thomas A. Robers, Esq., The Principles of the High Court of Chancery, and The Powers and Duties of Its Judges; Designed as The Student’s First Book on Equity Jurisprudence 5 (Wildly and Sons, 1852).
For the remainder of this post, you can assume I am getting my information from this book. If you wish to read it yourself there is a free copy available here.
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Examining the etymology of a word can reveal a lot about the relationships it has with other ideas. If you’re in a relationship, a significant milestone is meeting the parents of your romantic partner. As you get to know your partner’s parents you learn more about your partner. Likewise, a word is born from a specific cultural and historical context. How a word has been shaped and changed over time can also give clues about the values and ideas informing the context we currently inhabit.

Evolution of equityThe word equity (n.), like most of our legal words, comes to us from Latin through Old French. The Latin term aequitas (n. f. nom. sing.) entered Old French and became equite which over the march of history eventually became the English equity.1 The Latin root of the word aequitas is aequus (adj.) which means “level, even, equal, like, just, kind, favorable, impartial, fair, patient, contented.2” Aequus is also where we get the English word equal (adj.)3.

There are three things to note here. First, the root Latin word aequus and the subsequent English word equal are adjectives. They describe something. They can also be adverbs describing an action. For example: “Judge Posner ruled equitably.” Only later did these terms become nouns perhaps after being associated with the procedural institutions that now bear their name. Even when they are nouns, they still serve as modifiers of another term. For example, “She wants equity.” Inevitably, what our hypothetical person wants is for something to be equitable. It is a feature of English grammar to turn descriptive words into nouns. That in turn can distort our understanding of the terms themselves by making them objects abstracted from the realities in which they adhere.

Grammatical diagram of equitySecond, even when we use the term as an adjective or adverb, the word is rooted in physical metaphor. The most tangible is the metaphor of even ground. This is conceptually related to the idea of similarity. The ground is level when it is uniform or similar. By abstraction, we think of a game as equitable when it is on a “level playing field.” When there is no slant towards one side. As a bizarre coincidence, the term inequitable has its origin in the Latin word inequabilis which is rooted in the similar-sounding term equus which means “horse.” For the ground to be inequitable also meant it was impassable for a horse4.

Diagram of logical distinction of justice, equity, and equalityThird, equity is related, both conceptually and grammatically, to equality. Likewise, they are conceptually related and similar in grammatical function to the term justice. However, they are also distinct. As we explore the history of equity more fully we will see how to distinguish these concepts and terms more precisely. Initially, it is worth noting justice is more extensive and contains equity, while equality overlaps the two while not being contained by either5.

Next time we will look at the history of equity in the legal system.

1. Etymonline: equity
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2. Oxford, Latin Desk Dictionary, 7 (2005)
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3. Etymonline: equal
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4. Etymonline: inequitable
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5. E1 = Equity, J = Justice, and E2 = Equality. (E1 ⊂ J) | (E2 ∪ E1) | (E2 ∪  J) where E1 ≠ J ∧ ∀x, x ∈ E1 ⇒ x ∈ J. 
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I. Introduction

There is a crisis of attention according to Matthew Crawford. Today, it’s a well-worn cliche that we are in an age of ever-increasing distraction. Many, if not most of us start on tasks only to be interrupted by a series of distracting notifications or internal itches to look at social media or other digital enticements. Those of us in the legal profession have a special obligation to make sure we pay attention to what is relevant. The purpose of this blog is to understand this new digital beast we find ourselves on. Ultimately, the food of this monster is data. If we want to steer it towards some semblance of justice, we need to get a handle on how it works, and how the law can or could reign it in. It’s either that or get swallowed up without even realizing it. That’s why I first want to lay the groundwork on understanding data and how it relates to equity.

This is an extensive topic with many dynamic parts. Each of these pieces could easily be a book on its own. Nevertheless, I think it is important for interested people to understand the framework I am using, even if it is ultimately incomplete.

The method we are going to use will examine the following: (1) the etymology of terms; (2) the history of the concept; (3) the functional definition; and (4) the application. The general framework I use is Aristotelean. Everything that exists has a cause. For Aristotle, there are four types of causes: (a) material, (b) efficient, (c) formal, and (d) final. (See Physics, 194b-195b, Aristotle, from The Complete Works of Aristotle edited by Jonathan Barnes, Sixth edition 1995). Etymology and history roughly correspond to the efficient cause or how it came to be. The definition more pertains to the form, essence, and matter of a subject. Thus, part of that is usually situating it in the genus and species. Finally, the analysis of the application deals with the effect and telos of a subject. The ultimate reason and goal for even discussing an idea.

All words retain the echo of history. In order to see things clearly, the lenses we use must be clean and firmly grounded. To be firmly grounded means to be rooted in history. Otherwise, everything will just be a blur. The tradition of looking at the origin of words stretches back thousands of years to at least the time of Plato. (See Cratylus, 404c, Plato, from Plato The Collected Dialogues, edited by Edith Hamilton and Huntington Cairns, twentieth edition, 2009). By better understanding the past we can then look to shape the future.

Next week we will begin by looking at the etymology of equity.

Environmental Law is predicated on the assumption that the government can effectively motivate its citizens to perform or abstain from certain activities. The question is how incentives and punishments should be used to achieve and ensure the greatest effect. There is evidence to suggest that excessive reliance on the threat of punishment alone is not only insufficient but counterproductive. Furthermore, without having clear metrics, it is unreliable to use any mixture of deterrent or incentive. This is especially true for the transportation sector.
The US EPA and other state and local regulatory agencies do not have sufficient resources to thoroughly police all individuals and organizations to ensure total compliance. As a consequence, many individuals and organizations intentionally avoid compliance often through deceptive means. On the smallest level, it is not uncommon for individuals in California to cheat on smog tests as evidenced by internet forums discussing how to get around smog checks. On a larger scale, there was the major scandal with Volkswagen cheating US EPA regulations by programming their vehicles to detect drive cycles and adjust engine performance to produce a different emission pattern than regular driving. People ex rel. Madigan v. Volkswagen Aktiengesellschaft. If it was not for independent research, this scandal may never have been exposed.
Why do these occur? In large part, it is because the regulatory and economic circumstances converged to incentivize individuals and organizations to take the risk of non-compliance. The risk of non-compliance appeared less likely than the reward. When government regulations produce perverse incentives they need to be restructured if they are going to be effective. Does that mean harsher penalties? Perhaps not. B.F. Skinner discovered with a variety of organisms that the threat of punishment is less effective than using various schedules of positive reinforcement. Further studies in management have revealed there are ideal ratios of positive reinforcement and criticism. There is further evidence of this with the adoption of electric vehicles due to government incentives.
Any approach should involve meticulously collecting and analyzing quantifiable data to demonstrate with a reasonable degree of statistical probability if a given regulation or incentive is actually achieving its intended effect. In many respects, the relative success of the Clean Air Act was the insistence on quantifiable data. Another aspect of the CAA was the tangibility of what they were trying to avoid. It is much easier to grasp why thick smoke is harmful to health than why invisible emissions are causing climate change. More so than other pollutants proposals to reduce greenhouse gas emissions must involve the development and adoption of technology. That necessarily means any Environmental Law must correctly produce the ratio of punishment to the incentive.
In the 1990s President Clinton initiated the Clean Car Program to spur green innovation within the automotive industry. This led to the EPA developing technology with the public sector in public partnerships through their Clean Automotive Technology program. Despite some of this technology being commercialized, the program was eventually terminated. The primary reason for this shutdown was because of greater regulatory power during the Obama administration. What was the point of using taxpayer dollars to help companies innovate when the government could just force them to increase fuel efficiency? I argue that kind of thinking is what lead to the disaster with VW. It also enabled the current administration to shut out valuable research for establishing fuel economy standards.
Automakers face enormous constraints from both the government and the market. Government threats are crippling, market threats are existential. The data indicates many of these regulations resulted in millions of vehicles are produced which are less popular. The total environmental effect of creating unused vehicles is arguably more catastrophic.
A better way to draft an effective policy is to approach the problem from a multi-disciplinary approach and have concrete metrics associated with each discipline. The problems that policy attempts to solve involve just as much complexity, if not more, than the vehicles that those policies are meant to regulate. Every vehicle is composed of thousands of parts from a long supply chain of plastics, metals, electronics, aerodynamics, material science, and more. An inaccurate model will lead to a vehicle that cannot drive or will quickly fall apart. Likewise, for the policy, there need to be network models that involve at minimum variables from disciplines of psychology, sociology, game theory, macroeconomics, supply-chain, and manufacturing. Yet, most of the policies that are introduced reflect a model of governance that still has not grappled with the vast potentials of data science and machine learning.
At present many policies appear to be drafted from a simplistic view of wanting to achieve a simple metric, say increase fuel-economy, through bureaucratic enforcement and incentives. A metric that ignores the greater environmental harm that may be occurring as a consequence of attainment or nonattainment. For the policy of the future to be effective it must be as sophisticated as the reality it hopes to regulate and as precise as the goal it seeks to achieve.
The startup world has demonstrated customer discovery is essential. Virtually any product is doomed to fail, no matter how innovative or sophisticated, without first talking to the end-user. A more sophisticated technical model combined with a willingness to actually speak with the people these policies aim to influence is where it all comes together.
Ultimately policy should be crafted using sophisticated models with tangible metrics that recognize the incentives across multiple domains through conversations with the people it aims to regulate and motivate. Without a robust balance of interpersonal communication and statistical analysis, we risk not only failing to achieve our goals but potentially making things worse.

This is a summary of the 5G conference that took place on February 28, 2020, at the USD school of law.

What is 5G?

5G is the next generation of wireless communication technology systems or “ecosystem.” It promises three improvements: (1) Speed (2) Bandwidth (3) Latency.

What is the difference between speed, bandwidth, and latency?

If you imagine the internet as a series of interconnected highways you can think of the connections in terms of roads. The bandwidth or density is akin to the number of lanes. It is the measurement of how many cars can fit on the highway or how much information can be transferred at once. The speed is how quickly a car can get from point A to point B. The latency is the measure of the delay for that car to make the round trip.Bandwith Speed Latency Image

These measures are dependent on each other, which is why it is a technology ecosystem. The speed of your machine or server receiving and sending signals will affect the overall latency. Likewise, the bandwidth of the connection will affect the latency.

In general, you want HIGH bandwidth, HIGH speed, and LOW latency. 5G promises to improve these by a factor of 10 to 100. For example with 4G,  you can download a two-hour movie in 40 minutes, whereas with 5G it will take less than 10 minutes.

Low latency is most critical for new applications. 4G has a latency of 50ms while 5G offers a lower latency of 1ms. With low latency, devices can more easily communicate with servers and each other. For example, an autonomous vehicle quickly processes a sensor input to avoid colliding with another vehicle. Thus, 5G will open up the application for the internet of things or IoT.

IoT Mesh networks?

Mesh Network Diagram

One of the biggest challenges of IoT is how devices communicate with one another. 5G reduces that latency to allow for more devices to transmit information more quickly and reliably. Furthermore, 5G allows devices to communicate directly with each other without requiring them to go through a server. This has huge implications for the future of autonomous vehicles in particular. If cars can instinctively communicate directly with other vehicles or smartphones many of the current challenges with autonomous vehicles could be solved. Emergency response systems could be greatly improved by decreasing delays from sensors to response teams. Drones could form mesh networks to give real-time information for emergency managers.

Wearable Device ImageFor your everyday consumer, a low latency highly reliable mesh network means the advent of augmented reality devices. At the moment,  a major hurdle of augmented devices is the data processing of input data from sensors. If the local device needs to compute that data it adds substantial physical weight in order to provide sufficient computing power. Whereas if the device is integrated into a wireless network all it needs to do is send data, receive the processed data, and display the results. Meaning you could wear a light pair of glasses equipped to record your surroundings and display real-time information.

5G Development and Deployment

Research, Standards then CommercialAs one might expect 5G technology is complicated. It should not come as a shock the legal dynamics are also complicated. Those legal issues were the focus of the recent 5G conference at USD. There are three broad stages to 5G coming to a device near you. Research, standardization, and commercialization. Various companies, many of whom were represented at the conference, are involved in the 5G research and development stage. As a consequence, billions of dollars are spent to develop technologies that can be patented.

Patents, FRAND, LicensingThese various companies who develop 5G technology come together to oversee standards in organizations, such as the International Telecommunications Union and the Institute of Electrical and Electronics Engineers. The standards organizations set technical standards enabling the various technologies to work together. The standards are like a building code. From there the inventors and producers of devices can build the specific devices and physical tech. Converging Patents DiagramAs part of the standardization agreement, these companies who hold these patents agree to Fair Reasonable and Non-Discriminatory licensing agreements (FRANDs). In theory, this should make it easier for manufacturers to license from the patent holders. Unfortunately, that is rarely the case. Smaller manufacturers, in particular, have a significant disadvantage in determining who to license from and negotiating a reasonable rate that will actually be accepted by the market.

To make matters worse, oftentimes a single piece of technology is built on stacks of patents that are held by different companies. This extremely complicated bundle of patents with seemingly endless numbers of patents is referred to as the “patent thicket.”

If you’re a manufacturer there is an incentive to commit what is termed an “efficient breach.” Ever since Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 172 L.Ed.2d 249, 555 U.S. 7 (2008) getting an injunction against infringement is much more difficult for patent holders. This allows some unscrupulous manufacturers to intentionally violate patents and just pay fees if they ever get caught. Some businesses rely on a business model in which their whole source of revenue comes from licensing. On the other hand, there are patent trolls who intentionally exploit manufacturers. A patent troll will often buy patents for the sole purpose of exploiting manufacturers who have unwittingly violated those patents.

One solution that has been proposed is patent pools. In that scenario, the various patent holders create a pool that allows manufacturers to come to one place, pay one licensing fee, and move on to commercialization. The problem with that is the competing interests of the patent holders. Many patent holders have spent billions of dollars in research and development and understandably want to recoup that investment. Thus original patent holders are inclined to demand a larger piece of the pie. Sometimes they want to secretly recoup all of their research and development costs, even if it was not directly useful or fruitful. Thus they put a bigger price tag on their patents than it may well deserve.

The other issue is how to determine if the licensing fee is correct. Should it be licensed at the unit level? If so should the different units be licensed differently? For example, should a chip on a drone cost more than on a cell phone? All of these licensing agreements are supposed to be made in advance of commercialization which means the manufacturer takes a gamble that the licensing fee, along with the other costs of manufacturing will be accepted by the market.

Supply Chain Diagram

Thus, a licensing fee sometimes reflects the demands of the companies who are trying to recoup their investments more so than what an end-user would actually be willing to pay.

The other problem is that because these are often merely pieces of a given device, the value of that piece can be overblown. The analogy frequently given is how much would you be willing to pay for a car with windshield wipers vs. one without wipers? Should that price difference be reflected in the licensing fee? Yet any given device is greater than the sum of its parts. If all the components in a vehicle are priced based on the amount consumers are willing to pay more for that component given the option of not having it, what emerges is a complete vehicle more expensive than any consumer would be willing to pay. In other words, the price of the components is determined by the price of the whole.

National Security Interests

The United States has accused one of the biggest developers of 5G, Huawei, of creating back doors in their 5G technology. Chinese companies have spent an astonishing amount of money in developing this technology and are racing to get it implemented. The US has effectively banned any use of the 5G tech in the united states over fears of espionage and interference.

In recent years China has increased its respect for intellectual property and has begun implementing a much more reliable enforcement mechanism. It is certainly conceivable that some of the patents necessary to the deployment of 5G are held by the Chinese who may be a lot less willing to cooperate. Furthermore, China is much more efficient with deployment because the government can force cooperation within their tech sphere. Thus, the complications described above become less thorny and as a result,  China will likely have 5G before we do. Thus, putting the US at a distinct disadvantage technologically and by extension, economically. Despite the credible evidence put forward by the US, Europe has still decided to move forward with implementing Huawei’s 5G technology. That means Europe may also have 5G before the US does. Nevertheless, many European companies like Eriksson and Nokia, who had representatives at the conference, are very interested in their 5G technology being used in the US and abroad.

Moving Forward

There are organizations that are dedicated to simplifying the licensing process. Unified Patents, for example, provides a patent search using artificial intelligence to identify potential patent holders that might be essential to proper licensing. They also bring suit against patent trolls and other companies that hold suspect patents that should be invalidated. Unsurprisingly, representatives from Unified Patents got into a rather heated exchange with some of the other companies represented at the conference.

The copyright system has effectively overcome an analogous problem with the use of mechanical royalties. While a one-size-fits-all fee will be unlikely to be profitable for the patent holders a similar process might be necessary to streamline the licensing process for innovators and manufacturers. Given the significance of this technology, bipartisan interest in the issue should overcome some of the intransigences in passing federal legislation to streamline these issues. Various agencies, such as the FCC, USPTO, FTC, and NSA have proven to be surprisingly cooperative with telecommunications issues. The law always lags behind technology, but perhaps a little legal creativity and innovation can reduce that latency. This is a field that any law student with an interest in IP and technology should pay very close attention to.