Monthly Archives: May 2013

Back to the Future

Robert L. Jones, Lessons from a Lost Constitution, 27 J.L. & Pol. 459 (2012), available at SSRN.

Ian Ayres and Joe Bankman begin one of their articles with a Dilbert cartoon (reproduced below). They use the cartoon to show that firm insiders may use nonpublic information to trade not only their own company stock, but the stock of competitors, rivals, and suppliers. Ayres and Bankman ultimately conclude that insider trading of such stock substitutes is inefficient and should be prohibited, but they acknowledge the argument that insider trading may “produce more accurate stock prices.” Presumably one could learn a lot about a company by paying attention to how its insiders treat substitutes for the company’s stock.

Dilbert Continue reading "Back to the Future"

Out of the Mouths of Babes: Studying Children’s Judgments about Creativity, Ideas, and Ownership

Alex Shaw, Vivian Li & Kristina R. Olson, Children Apply Principles of Physical Ownership to Ideas, 36 Cognitive Science 1383 (2012), available at Yale University.

Legal scholars who study intellectual property rarely think about children.  Children are almost never inventors of patented technologies, and, although children’s drawings technically receive copyright protection the moment they are created, children rarely appear as litigants in disputes.

But recent research coming from psychologist Kristina Olson’s lab suggests that we should be thinking more about children.  In their new paper, Olson and her graduate students Alex Shaw and Vivian Li, report the results of experiments testing children’s intuitions about the ownership of ideas.  This paper provides an interesting insight into the development of our ideas about intellectual property and creativity, and it should be widely read by IP scholars. Continue reading "Out of the Mouths of Babes: Studying Children’s Judgments about Creativity, Ideas, and Ownership"

Does Disclosure Protect Patients from Their Physicians’ Conflicts of Interest?

Empirical research often teaches us that our intuitions are misleading. In an important discussion of her recent studies, Sunita Sah provides good reason to believe that public policy has gone down the wrong track when addressing physicians’ conflicts of interest.

As conflicts of interest for physicians have come under greater scrutiny, regulators commonly turn to disclosure as a remedy for the problem. If patients know about their doctors’ conflicts, the patients can take the conflicts into account when making their health care decisions. Patients can discount a conflicted physician’s advice or seek a second opinion. In addition, disclosure may discourage physicians from accepting payments or making investments that put them in conflicted positions. As it is said, sunshine can be an effective disinfectant. Continue reading "Does Disclosure Protect Patients from Their Physicians’ Conflicts of Interest?"

Colonial and Postcolonial Constructions of Family Law

Sylvia Wairimu Kang’ara, Beyond Bed And Bread: Making The African State Through Marriage Law Reform — Constitutive And Transformative Influences of Anglo-American Legal Thought, 9 Hastings Race & Poverty L. J. 353 (2012), available at Comparative L. Rev.

Western legal regimes tend to characterize family law as a field regulating private relations between adults, as well as between adults and their children and as “the opposite” of both public law and the law of market exchange. During the latter part of the twentieth century, feminists analyzed how the legal treatment of family relations as private amounted to a public endorsement of private coercion.1 More recently, comparative law scholars have begun to study and understand the emergence of family law as a distinct field in western legal thought.2 Over and over again, the emergence of family law, a surprisingly recent phenomenon, is associated with constitutive moments in the making of modern states: from federalism in the U.S. to the construction of nation-states in Europe. Sylvia Wairimu Kang’ara’s Beyond Bed and Bread: Making the African State Through Marriage Law Reform is an important new contribution to this literature, demonstrating the central role that reforming marriages played in the construction of colonial and post-colonial states in the parts of sub-Saharan Africa colonized by Britain.

The Article begins by analyzing the central role that the invalidation of customary marriages in Africa played in colonial administration. During the initial legal encounter between common law and African customary laws, judges invalidated large swaths of prior legal relations. In a (professed) effort to align colonial practices with English morality, colonial administrations superimposed a classical legal scheme of thinking about the family and the market at a moment when most of the African economy depended upon a different household model.  Instead of the separate spheres ideology that characterized family law of the classical legal tradition, African customary marriages were based on an economically active household—often composed of polygamous units engaging in economically important exchanges of property through marriage, such as the bride-price. Starting from an assumption that individual free will was the building block for any civilized legal system, colonial judges invalidated customary marriages as repugnant to English colonial morality. They looked hard, but did not seem to find any African subjects capable of becoming “individual holders of exclusive and absolute rights” in the classical legal tradition.  Critically, customary marriage’s failure to cultivate subjects that were suitable rightsholders marked the first step toward property expropriation in the name of empire building. Continue reading "Colonial and Postcolonial Constructions of Family Law"

Provoked Intimate Femicides: A Privatized Version of “Honour”?

Pascale Fournier, Pascal McDougall & Anna R. Dekker, Dishonour, Provocation and Culture: Through the Beholder’s Eye?, 16(2) Can. Crim. L. Rev. 161 (2012), available at the University of Ottawa.

In their thought-provoking work Dishonour, Provocation and Culture: Through the Beholder’s Eye?, Pascale Fournier, Pascal McDougall and Anna R. Dekker use a unique blend of historical, cross-cultural and empirical analysis to reveal the connections between so-called “honour killings” and intimate femicides where the defence of provocation is invoked.  While “honour killings” typically involve “non-Western” defendants, and concerns about gender equality are more explicit, intimate femicides raise similar equality concerns which are often unrecognized and concealed.  The authors acknowledge that there are differences between our typical conception of honour killings and the spousal homicides in which provocation is raised by Western defendants.  For example, traditional honour killings invoke the idea of public honour, whereas in the provoked intimate femicides, “the locus of honour has shifted from the traditional extended family to the individual man” (178). However, there are underlying features that link spousal homicides to honour killings: both are “cultural claims tied to male domination of the family” (180) and both turn on the desire to control women’s sexuality. In essence, the defence of provocation is portrayed as a privatization of honour, with aspects of honour manifested through Western understandings of “passion”.

The defence of provocation in Canada has not been explicitly linked to male honour in the case law.  Instead, the defence is viewed as making concessions to human frailty, and is limited by the concept of the “ordinary person”.  The insult which triggers the killing must be grave enough to cause the ordinary person to lose self-control, and the accused must have reacted suddenly, before there was time for his “passions to cool”.  But this concession to human frailty masks the historical basis of the defence and the meaning embedded in spousal homicide cases. The idea of women and children as property of their male partners looms large even in recent cases.1 The public framing of honour killings as something “other” than Western obscures the foundations of spousal femicides in Canada, which are rooted in individual conceptions of male honour. Continue reading "Provoked Intimate Femicides: A Privatized Version of “Honour”?"

The Care and Feeding of Sticky Defaults in Information Privacy Law

Lauren Willis, When Nudges Fail: Slippery Defaults, 80 U. Chi. L. Rev. ___ (forthcoming 2013) available at SSRN.

If Jotwell is meant to surface obscure gems of legal scholarship, which might go unnoticed otherwise, I might be missing the point by highlighting a work forthcoming in the not-so-obscure University of Chicago Law Review on the au courant topics of nudges and liberal paternalism. But Lauren Willis’s new article, When Nudges Fail: Slippery Defaults, might escape the attention and acclaim it deserves as a work of information privacy law, so it is in that field I hope to give the article its due.

Willis’s article takes on the pervasive idea that all default choices are sticky. Defaults can sometimes be sticky, but Willis carefully deconstructs the economic, social, and technological preconditions that tend toward stickiness, and then demonstrates how firms can manipulate those conditions to render defaults quite slippery. Continue reading "The Care and Feeding of Sticky Defaults in Information Privacy Law"

The Brave New World of Identification

Margaret Hu, Biometric ID Cybersurveillance, 88 Indiana L.J.__ (forthcoming 2013), available at SSRN.

The memory seems almost quaint.  While waiting with prosecutors in the hallway between indictments, an excellent customs and border protection agent would entertain and impress with his uncanny ability to pick out fake passports from real ones.  Part of this skill came from a keen mind capable of decoding the patterns of passport numbers and comparing them against the algorithm used in official passports.  Part of this talent came from the wisdom and judgment honed by experience.

The dystopian world of “biometric ID cybersurveillance” that Margaret Hu envisions makes the old passports and smart agents seem old-fashioned.  She catalogues the many ways the government is working toward expanding its “virtual cybersurveillance and dataveillance capacities.”  She maps out emerging forms of “bureaucratized cybersurveillance” – more pervasive ways of technology-assisted identity verification and tracking.  For example, instead of those stodgy information-limited modes of ID checks such as reviewing paper passports, alien identity papers, social security cards and driver’s licenses, she writes of biometric ID checks, digitalized IDs and other more information-laden methods of identification. Automated checks, database screening and biometric IDs may even “remove[] the matching process from the trained expertise of specific forensic experts,” leaving us at the mercy of glitchy and hard-to-contest hardware and software. Continue reading "The Brave New World of Identification"

Celebrating Federal Civil Rulemaking

Lonny Hoffman, Rulemaking in the Age of Twombly and Iqbal, U.C. Davis L. Rev. (forthcoming, 2013) available at SSRN.

The Federal Rules of Civil Procedure are 75 years old this year. Imagine a fete thrown in their honor-mini rule books as party favors, balloons emblazoned with Rule numbers 1-86, and a cake decorated with the words “Just, Speedy, and Inexpensive.”  If there ever where such a party, Lonny Hoffman’s article, Rulemaking in the Age of Twombly and Iqbal, should be the opening toast.  No, his article does not begin with a pithy joke; although, that might be fun. What it does is address the federal civil rulemaking process, an important — but often less discussed — aspect of the civil rules.

Hoffman’s article uses Rule 8’s pleading standard and the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal as an entry point for his discussion of the federal civil rulemaking process.  First, he provides a thorough historical account of Rule 8.  He relies on primary source material and weaves a rich recounting of the original rulemakers’ Rule 8 deliberations.  The original civil rulemaking committee made a choice in Rule 8 by using the word “claim” in the text as opposed to “fact.”  It chose this language for maximum flexibility and minimum technical wrangling.  This much we already knew. But Hoffman’s account reminds us of Rule 8’s origin before summarizing how the civil rulemaking committee treated Rule 8 over time.  What his account tells us is that the rulemakers had multiple occasions to reconsider the policy choices made in the original Rule 8.  He documents how rulemakers confirmed Rule 8 again and again from the 1970s until just before Twombly was decided in 2007.  While the reasoning of each committee varied a bit — some citing the practical difficulty of amending the rule, some questioning the empirical basis for changing the rule, and some arguing that heightened pleading would be antithetical to the rule’s purpose — it is safe to say that, overall, the rulemakers actively decided to keep Rule 8 as it was. Continue reading "Celebrating Federal Civil Rulemaking"

Test #5 At 10:34am

Both U.S.v Jones and Florida v. Jardines suggest that some members of the Supreme Court would like a property-based rationale that might protect enclaves of privacy, particularly the home. So far, neither case articulates a theory adequate to the tasks that this paper is mainly concerned with: they say little about privacy in public, and less about data privacy. To the extent that the cases link trespass and search, they suggest parallel protections from public and private intrusions. But the issue I am concerned with here is not primarily “intrusion” in the sense of coming on the property or the person. Rather it is the Kyllo facts – machine-aided perception, usually from a distance – plus cognate privacy in virtual public spaces.

As is well-known, however, Kyllo’s expectation-based rationale cannot be a long run solution to the privacy problem because it creates a one-way ratchet: as a technology becomes sufficiently common, we no longer have an expectation of privacy based on its non-use. Therefore, over time, any widely deployed technology can be deployed without a warrant, as it will no longer be a search.

Test #4, Tuesday 5/14 rev2


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Revised – once, twice

Zetasec Test

Work in Progress, Upub.

Personal privacy in developed countries is disappearing faster than the polar ice caps.  The rapid growth in the number and breadth of databases, the continuing drop in the costs of information processing, the spread of cheap sensors and of self-identification practices, all have combined to make this the era of Big Data.  Much like global warming, drift-net data collection and collation creates wide-spread harms substantially caused by actions not visible to most of those affected. Market failures, information asymmetries, and collective action problems characterize many aspects of the privacy problem.

Current US regulatory structures are not just unprepared for this data collection deluge, but almost totally incapable of responding to it because they tend to focus on data sharing rather than data collection and because US law currently has relatively few privacy-protecting rules.  Although courts have found a limited right to privacy in the Constitution, that right finds most of its expression in the context of bodily integrity, and the traction in the information privacy arena is speculative and limited at best.  Some members of the Supreme Court have signaled an interest in an evolution of privacy law, but if the law works at its usual pace those developments are still far in the future — if they ever come at all.  Tort law has little to offer, as the classic privacy torts are somewhat limited and generally do not apply to the major data collection efforts that occur in (or through) public spaces.  Nor do privacy torts have much traction against the often-unseen consequences of contractual agreements, most notably those relating to cell phones and internet-based technologies.  Both Contract and Property-rights based approaches have to date yielded little due to a combination of factors ranging from transactions costs to the bounded rationality of consumers to problems inherent in domains where who owns what is at best contested.  The fact is, it is increasingly difficult to defend one’s privacy in industrialized countries: sensor technologies and data aggregation technology are winning an arms race against privacy enhancing technologies, an arms race that most consumers are only dimly aware they are involved in. Continue reading "Zetasec Test"