Monthly Archives: May 2014
“Why should women live in anticipatory dread and hypervigilence?” Elizabeth Sheehy writes in the concluding chapter of her important new book Defending Battered Women on Trial: Lessons from the Transcripts. Instead, she argues, the legal system should “shift the risk of death to those men whose aggressions have created such dehumanizing fear in their female partners”.
In Defending Battered Women on Trial: Lessons from the Transcripts, Sheehy offers a compelling and startling account of the criminal justice system’s failure to protect women from the men who batter them. She begins the book by situating the issue in its historical legal context. Making the work accessible to an audience much broader than just those well-versed in criminal law, Sheehy provides the reader with ample background to understand the legal context in Canada both prior to and in the years following the Supreme Court of Canada’s 1990 recognition of battered women syndrome in R. v Lavallee. Continue reading "It is Not Open Season on Men"
Graeme B. Dinwoodie, Secondary Liability for Online Trademark Infringement: The International Landscape
, 36 Colum. J.L. & Arts
(forthcoming 2014), available at SSRN
Although we live in a global, interconnected world, legal scholarship – even scholarship about the Internet – often focuses on domestic law with little more than a nod to developments in other jurisdictions. That’s not necessarily a bad thing; after all, theoretically robust or historically thorough works can rarely achieve their goals while surveying the landscape across multiple countries with disparate traditions and laws. But as a student of U.S. law, I appreciate articles that explain how other legal systems are addressing issues that perplex or divide our scholars and courts. Given the tumult over intermediary liability in recent years, comparative commentary on that topic has special salience.
In this brief (draft) article, Graeme Dinwoodie explores both structural and substantive differences in how the United States and Europe approach intermediary trademark liability in the Internet context. To an outsider, the European web of private agreements, Community Directives, CJEU opinions, and sundry domestic laws can appear daunting and sometimes self-contradictory. Dinwoodie puts them all into context, offering a coherent explanation of the interaction between Community law, member state law, and private ordering, and situating the overall picture within a broad normative framework. And he contrasts that picture with the one emerging through common law in the United States. The result is a readable, informative study of two related but distinct approaches to intermediary trademark law. Continue reading "Intermediary Trademark Liability: A Comparative Lens"
Pharmaceutical companies represent the poster-child defendant for whether public-private enforcement works. While subject to FDA prosecution for violation of the Food Drug Cosmetic Act, they more often face qui tam suits by private relators, usually but not exclusively for off-label promotion. DOJ may or may not choose to intervene, but if it does jump in, the Department operates with the advantage of a 90% success rate (frequently as a result of settlement because the companies can’t risk debarment). Before the case is concluded, it may have been joined by some combination of the Veterans Administration, state Medicaid Fraud Units or relators under mirror state-law False Claims Acts for recovery of Medicaid dollars, as well as by private insurance companies under RICO, and states’ attorneys general under consumer protection laws. The Department of Health and Human Services Office of Inspector General (HHS OIG) will likely be at any settlement negotiations to hammer out a 100-page Corporate Integrity Agreement (CIA). If the company’s activities are really offensive, DOJ may throw in a mail or wire fraud charge. When the fines are announced, and the CIA is signed, shareholders will file a derivative suit against the directors seeking reimbursement, claiming that if they weren’t asleep on the job the company would have avoided what often exceed billion dollar fines. And that’s just for off-label activity. The enforcement regime currently policing the life sciences industry is mind-bogglingly complex, representing a new and clearly unimagined era in “public-private enforcement.”
A must-read for health academics is David Freeman Engstrom’s trilogy of articles about public-private enforcement, focusing specifically on the False Claims Act (FCA), the “gold standard” of hybrid enforcement: Harnessing the Private Attorney General: Evidence from Qui Tam Litigation, found in Columbia Law Review, Public Regulation of Private Enforcement: Empirical Analysis of DOJ Oversight of Qui Tam Litigation Under the False Claims Act, appearing in Northwestern Law Review, and Agencies as Gatekeepers, published in Yale Law Journal. Unsurprisingly, healthcare cases comprise a disproportionate share of FCA cases, thereby making Engstrom’s work extremely important to the health law academy. These articles represent a breath-taking amount of work, providing a theoretical framework from which to analyze the balance and effectiveness of a public-private enforcement regime as well as empirical data to assess both fans’ and critics’ perspectives of FCA prosecution as well as relators’ and DOJ’s roles. Continue reading "The Public-Private Enforcement Regime: Does the False Claims Act Work?"
Have you heard any of these arguments lately? Consumers willingly pay for the wonderful free services they enjoy using the currency of their personal information. We can’t trust surveys that say that consumers despise commercial tracking practices, because the revealed preferences of consumers demonstrate that they are willing to tolerate tracking in return for free social networking services, email, and mobile apps. If privacy law X were implemented, it would kill the free Internet (or more immodestly, the Internet).
Two recent articles take on all of these arguments and more in the context of the privacy of information collected online by private corporations. The articles are similarly entitled (before their subtitle colons), Free and Free Fall. Both are written by excellent interdisciplinary scholars, Free by Chris Hoofnagle and Jan Whittington and Free Fall by Kathy Strandburg. These articles, individually but even more taken together, present a thorough, forceful, and compelling rebuttal to pervasive libertarian paeans to the supposed well-functioning online market for personal information. Continue reading "Free for the Taking (or Why Libertarians are Wrong about Markets for Privacy)"
The “grand social experiment” that is hyper-incarceration in the United States is coming to an end, and we need to be ready to reinvest correctional resources in more community-oriented programs. That, in a nutshell, is the message of The Punishment Imperative: The Rise and Failure of Mass Incarceration in America, by Todd Clear and Natasha Frost, well-known criminologists who have been writing about punishment practices for decades. Many of the general points made in this book will be familiar to criminal justice lawyers and professors who have paid any attention to the literature on punishment. But the book’s 200 pages of detail and its prescriptions will be intriguing even to those who know the field.
Here is the authors’ summary of research about the effects of this country’s four-decade obsession with putting increasing numbers of people behind bars for increasingly longer periods of time (Pp. 152–53):
- “Longer prison sentences do not deter the people who receive them from crime; there is almost no relationship between the length of a prison stay and the likelihood of recidivism.”
- “Going to prison does not deter; people who receive probation are no more likely (and may be slightly less likely) to recidivate.”
- “Incapacitation effects of prison are small, primarily due to replacement.”
- “Rehabilitation programs offered in prison are less effective than when they are offered in the community.”
- Victims are no happier with the (more punitive) criminal justice system today than they were forty years ago.
- Expanding the prison system has contributed to intergenerational criminality, broken families, problems in school, sexually transmitted diseases, teenage births, anti-conventional attitudes, depleted labor markets, racial inequality and crime.
In short, government policies such as truth-in-sentencing, mandatory minima, three-strikes laws, increased collateral consequences, and imprisonment after technical parole violations have not made communities safer and probably have aggravated the crime problem.
Thus, the authors conclude, our four-decades-long “social experiment” in criminal justice policy has been an abject failure. Clear and Frost also caution that, even if, as they claim, the experiment is wrapping up, its consequences will be with us for decades. The carnage to individuals and neighborhoods that has resulted from imprisoning tens of thousands of non-violent offenders—most of them people of color—will have long-term effects. Likewise, the damage to hundreds of thousands of offenders and their families caused by federal and state legislation barring ex-offenders from jobs, scholarships, housing, and custody of their children is not likely do dissipate soon. Continue reading "What Comes After Mass Incarceration?"
Whether the Federal Rules of Civil Procedure should be trans-substantive (as they ostensibly are) has been hotly debated since the Rules’ inception. One wonders, after three-quarters of a century, if another article examining this central tenet of the American civil litigation system can make a unique contribution to the literature. David Marcus’s recent article, Trans-Substantivity and the Processes of American Law, demonstrates that the answer is “yes.” Building on his excellent 2010 article, The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure, Marcus challenges proceduralists to broaden their examination of trans-substantivity beyond the confines of civil procedure law.
This article examines the principle of trans-substantivity in the context of what Marcus calls “process law” —which includes not only procedural law, but administrative and interpretive law as well. Marcus uses the Supreme Court’s 2009 decision in Ricci v. DeStefano to illustrate how the Court may draw upon federal civil procedure, federal administrative law, and statutory interpretation doctrine in a single case. He draws upon this example to encourage scholars not to cabin their understanding of the pros and cons of trans-substantivity to a single species of process law. The interrelationship and overlap of these doctrines are significant. Continue reading "Trans-Substantivity Beyond Procedure"
I would not normally think of a casebook as appropriate for JOTWELL. It is the particular fit between a teacher’s ambitions and the material in the casebook that makes a teacher like the casebook, perhaps even a lot. A good casebook is a shell that the teacher and students can inhabit and learn to carry. It is not a well-formed argument of general applicability, such as would be found in the work that JOTWELL generally applauds.
Yet, in JOTWELL, I commend to your attention Geoffrey Miller’s The Law of Governance, Risk Management, and Compliance. This casebook is a convincing argument that compliance and risk management are fields of study appropriate for legal education. It expands the law school field of corporate governance from its current restricted view, discussing shareholders and boards, to one that encompasses all the actors within and without corporations who have an impact on compliance. Continue reading "New Law School Fields of Study: Compliance and Risk Management"
Emily J. Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (Princeton University Press, 2013).
I am on the prowl. It’s 1 a.m. and I’ve been looking for Mr. (or Ms.) Rights all night. I’ve been hanging out in every Article of the Constitution of the United States and I have been deep into the pages of the United States Reports and the Federal Reporter. Oh, I have found plenty of negative rights, like the right to be free from cruel and unusual punishment and the right not to be twice placed in jeopardy for the same criminal act. But I need something more positive in my life. I want those things that make a person happy, like medical care, clean air and water, good working conditions, and a good education for my kids. I want positive rights.
Even though I turn on my hundred-watt charm, the federal courts keep turning me down. Then the person next to me slaps a book on the bar and says, “Take a look at this. I think it’ll get you what you want—or at least what you need.” Continue reading "Looking for Mr. (or Ms.) Rights"
Kathryn E. Kovacs, Superstatute Theory and Administrative Common Law
, 90 Indiana L. J.
(forthcoming 2014), available at SSRN
Most administrative law aficionados would think of the Administrative Procedure Act as a “superstatute,” but they might not all focus on what that might mean. Kathryn Kovacs has undertaken to tease the meaning of the APA as a superstatute and address the implications of such a characterization. They might not be what you would imagine.
Professor Kovacs begins by asking to what extent is administrative law “common law.” The APA is, of course, a statute, but it is viewed as largely codifying the then-existing common law. Moreover, after its passage courts continued to develop a common law of administrative law both to flesh out the ambiguous provisions of the APA and quite clearly to add on to them. While Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), may have drawn the curtain on new judicial inventions to administrative common law, it did not repeal those that had become well ingrained in the case law. Professor Kovacs focuses on two such inventions that have no basis in the text or history of the APA: deference to the military in matters subject to the APA and the ripeness doctrine. Continue reading "The APA as “Superstatute” and What Does That Mean?"
David Weil’s new book on the fragmenting of internal labor markets in many American industries, The Fissured Workplace, should be read by all who wish to understand how the challenges to enforcing laws designed to protect American workers have become greater as the institutional structures and processes through which American businesses produce and deliver goods and services have continued to evolve. This book should be read not primarily because President Obama last year nominated Weil, a Boston University School of Management Professor, to head the Wage and Hour Division of the Department of Labor or because the book includes several chapters stressing the importance of strategic public enforcement and the role of unions and other non-governmental worker advocacy groups in changing workplace culture. Rather, the primary value of the book is its rich description of the variant ways by which successful American businesses that sell branded goods and services have externalized the costs of employment law violations by delegating to other businesses the responsibility for providing and supervising the labor input for their branded products. This description supports the book’s most important recommendation, a recommendation that would require—beyond stronger enforcement of current laws—a re-internalization of the costs of employment law violations to those businesses that monitor and control the production of goods and services sold under their brands.
Weil describes three kinds of externalization: subcontracted workplaces, outsourced supply chains, and franchised retail operations. For each, he provides examples of lead businesses that use externalization to concentrate on their core competencies of branded product design, development, and marketing, as well as to escape certain costs, including labor costs, that would have to be incurred without externalization. Weil explains how externalization has been facilitated by technological developments that enable lead businesses to protect differentiated brands, and associated high profit margins, through close monitoring and coordination of the quality and timely production of branded goods and services. Modern computer-based technology provides this brand protection without some of the higher labor costs of non-union, as well as unionized, large internal labor markets. Furthermore, as long as the lead company delegates actual control over a subcontractor’s or franchisee’s workforce to the subcontractor or franchisee, it can escape at least some of the costs of compliance with employment laws like FLSA and OSHA, in addition to potential workers’ compensation liability. There is good reason to think that subcontractors and franchisors often cannot pass on employment law compliance costs to the dominant branding companies with which they are in business. While subcontractors’ and franchisors’ reduced concern with reputational costs and their tight profit margins encourage their non-compliance, their relatively small size and less permanent work forces make enforcement less likely. Further, lead companies with differentiated brands generally can transfer their business to competing contractors or other potential franchisees. Continue reading "Internalizing The Costs Of Employment Law Violations"
Imagine you are trying to write a mission statement for tort law. What aspiration would you put on paper? Tort theorists will find Linda Radzik’s answer at once familiar and foreign. In Tort Processes and Relational Repair, Radzik suggests that tort should pursue corrective justice. But she rejects the familiar Aristotelian conception of corrective justice, on which wrongdoing calls for compensation that offsets the harm caused. Instead, she suggests that corrective justice requires reconciliation. According to Radzik, tort should aim to repair the relationships ruptured by wrongdoing, rather than the harms that result from it.
The problem with the Aristotelian picture of corrective justice, Radzik says, is that it mistakes what’s wrong with wrongdoing. If you think that corrective justice consists in compensation for harm done, Radzik explains, then you are apt to think that what is wrong with wrongdoing is that it damages something that belongs to the victim, or deprives her of something she is entitled to have. But, as Radzik points out, there are wrongs that do not result in harms, and harms that did not result from wrongs, so it hardly seems like harm could be the essence of wrongdoing. Continue reading "Patching Things Up"