Monthly Archives: October 2016

What’s “Private” about the Rule of Law?

Gillian K. Hadfield & Barry R. Weingast, Is Rule of Law an Equilibrium Without Private Ordering? (USC L. Legal Stud. Paper No. 16-18; Stan. L. & Econ. Olin Working Paper No. 493, 2016), available at SSRN.

In their new paper, Is Rule of Law an Equilibrium Without Private Ordering?, Gillian Hadfield and Barry Weingast make a provocative claim about the rule of law: that private ordering is what produces and sustains it, not the institutions of government. This is an important contribution to rule of law debates, which are so heavily focused on public institutions and public law while leaving the role of private ordering and private law undertheorized. But see Private Law and The Rule of Law (Lisa M. Austin & Dennis Klimchuk eds.).

Hadfield and Weingast are social scientists, not legal philosophers. However, their work engages with many different strands of theoretical literature on the rule of law, including analytic jurisprudence, and generates interesting conclusions for theorists and not just social scientists. The heart of their argument is the claim that “[m]ost regimes with fully centralized enforcement do not predictably achieve rule of law as a consequence of the structure of the regime itself.” If the rule of law is achieved, it is not because of institutions but because of “the peculiar, historical and contingent facts of individual identity or the balance of power.” (P. 25.) In other words, if we think that government is “a single body with the power to both make and enforce the law” then we should not expect the rule of law to emerge. (P. 27.) What is needed for the rule of law to reliably emerge, they argue, “is an essential role for private, decentralized, enforcement of law.” (P. 27.) Continue reading "What’s “Private” about the Rule of Law?"

Sheltering the Public From Intellectual Property

Sam Halabi, International Intellectual Property Shelters90 Tul. L. Rev. 903 (2016).

Often formulating a legal policy response to a problem starts with finding the correct vocabulary. While complex economics, political, and sociological crises do not get managed with magic words, failure to give a name to a problem makes solutions elusive. In the case of international intellectual property, the problem of overly expansive intellectual property rights, sometimes adopted by nation states under trade and finance pressures, is seen solely as a solution to the ubiquity of piracy and theft of economic value. Values of access and commons management offer some countermeasures to broad property rights. But these responses sometimes feel piecemeal and less than systematic.

Enter Professor Sam Halabi, a scholar and teacher of international health law at University of Tulsa Law School, shifting to University of Missouri, Columbia Law School in January 2017. His recent article in the Tulane Law Review is one I like a lot, and I hope others active in international intellectual property law and health policy do as well. Professor Halabi’s contributions are conceptual and linguistic. International Intellectual Property Shelters, although with unfortunate resonances of “tax shelters,” describes pockets created by treaties and national law of exceptions to strong intellectual property rights. These pockets permit access to medicines, promotion of biodiversity, regulation of neonatal care, and control of tobacco—each threatened by the rampant spread of intellectual property rights. Upon this neologism, Professor Halabi delineates an established international intellectual regime that governs and limits intellectual property rights. His article not only informs us about the key features of this regime and the legal, political, and economic mechanisms that drive it. Continue reading "Sheltering the Public From Intellectual Property"

Sheltering the Public From Intellectual Property

Sam Halabi, International Intellectual Property Shelters90 Tul. L. Rev. 903 (2016).

Often formulating a legal policy response to a problem starts with finding the correct vocabulary. While complex economics, political, and sociological crises do not get managed with magic words, failure to give a name to a problem makes solutions elusive. In the case of international intellectual property, the problem of overly expansive intellectual property rights, sometimes adopted by nation states under trade and finance pressures, is seen solely as a solution to the ubiquity of piracy and theft of economic value. Values of access and commons management offer some countermeasures to broad property rights. But these responses sometimes feel piecemeal and less than systematic.

Enter Professor Sam Halabi, a scholar and teacher of international health law at University of Tulsa Law School, shifting to University of Missouri, Columbia Law School in January 2017. His recent article in the Tulane Law Review is one I like a lot, and I hope others active in international intellectual property law and health policy do as well. Professor Halabi’s contributions are conceptual and linguistic. International Intellectual Property Shelters, although with unfortunate resonances of “tax shelters,” describes pockets created by treaties and national law of exceptions to strong intellectual property rights. These pockets permit access to medicines, promotion of biodiversity, regulation of neonatal care, and control of tobacco—each threatened by the rampant spread of intellectual property rights. Upon this neologism, Professor Halabi delineates an established international intellectual regime that governs and limits intellectual property rights. His article not only informs us about the key features of this regime and the legal, political, and economic mechanisms that drive it. Continue reading "Sheltering the Public From Intellectual Property"

Patenting the Social: A Non-Economic Take on Alice

Laura R. Ford, Patenting the Social: Alice, Abstraction, & Functionalism in Software Patent Claims, 14 Cardozo Pub. L. Pol’y & Ethics J. 259 (2016).

“Where does technology stop and humanity begin?” This is the weighty opening question in Laura Ford’s recent article Patenting the Social. Ford, a sociologist and lawyer, offers a novel contribution to the debates raging in the courts and law reviews after the Supreme Court opinion in Alice v. CLS Bank about what constitutes a patent-ineligible abstract idea and, relatedly, why abstract ideas should be patent-ineligible. She proposes that claims describing novel computer-mediated social relationships and interactions (“the social”) are core examples of claims to abstract ideas, but that claims to novel means of achieving those social ends are not. Ford then draws on sociological concerns and moral theory to defend her interpretation of Alice. She argues that patents that privatize social progress, as opposed to the technological progress, are bad policy based on concerns about human flourishing, politics, and culture—i.e., reasons other than the conventional, economically oriented reasons for limits on patentability that focus on innovation incentives.

I found Patenting the Social to be both interesting and timely for two reasons. First, I believe that defining the abstract with reference to the social offers a plausible story for explaining, at least in part, why the Supreme Court reached the conclusion that it did in its Alice opinion and, perhaps more importantly, its earlier opinion in Bilski v. Kappos, on which Alice relies. The Court’s choice not to even attempt to define an abstract idea in these opinions is by now infamous. Whether you personally agree with it as a policy matter or not, this hypothesis that the Court’s discomfort with the privatization of new patterns of contractual commitments—which are nothing but legally enforceable patterns of social obligations—is grounded in part in non-economic reasoning should not be lightly dismissed. Patenting the Social gives voice to this hypothesis more thoroughly than other academics have to date managed to do. Second, I find the notion that privatization of the social is problematic to be an interesting counterpoint to the message of the Supreme Court’s other opinions on patent-ineligibility in Association for Molecular Pathology v. Myriad Genetics and Mayo v. Prometheus. In these biomedical cases, the Court focused on the privatization of the natural as the crux of the problem that limits on patent-eligibility can solve. Under Ford’s interpretation, Bilski and Alice provide an intriguing bookend to Myriad and Mayo: both the social and the natural are off limits. Continue reading "Patenting the Social: A Non-Economic Take on Alice"

A Definitive Primer and Prescription on Social Determinants of Health

Wendy K. Mariner, Beyond Lifestyle: Governing the Social Determinants of Health, 42 Am. J.L. & Med. 284 (2016).

I recently received a call from my university’s general counsel’s office, looking for health law advice about patient no-shows at a campus community health clinic. We discussed tort theories, including establishment of the physician-patient relationship and patient abandonment, as well as privacy issues with respect to contacting patients via email, phone, or a friend or relative. I then offered that the clinic might consider looking more deeply at the reasons for the patients’ lack of follow-through with appointments and treatment, including various social, economic, transportation, childcare, and other lifestyle barriers. I roughly described the concept of “social determinants of health,” which captures the problems to which I was referring. I explained how our law students working with medical-legal partnership clinics face similar challenges: clients may initially present with significant legal needs, which they are highly motivated to address, but then fail to keep follow-up appointments. The attorney was intrigued and asked me to forward some relevant literature on the various issues that I had identified.

It was easy enough to find cites for the torts and privacy topics, but surprisingly more difficult to identify a clear, definitive article describing the essential concept of social determinants of health. Given the increasing prevalence of the term within not only public health but also health law circles, I was surprised at my difficulty finding literature that explained this now-essential concept in a way that the uninitiated could understand. Thus, I was delighted last week to come across Wendy K. Mariner’s Beyond Lifestyle: Governing the Social Determinants of Health. Continue reading "A Definitive Primer and Prescription on Social Determinants of Health"

A Definitive Primer and Prescription on Social Determinants of Health

Wendy K. Mariner, Beyond Lifestyle: Governing the Social Determinants of Health, 42 Am. J.L. & Med. 284 (2016).

I recently received a call from my university’s general counsel’s office, looking for health law advice about patient no-shows at a campus community health clinic. We discussed tort theories, including establishment of the physician-patient relationship and patient abandonment, as well as privacy issues with respect to contacting patients via email, phone, or a friend or relative. I then offered that the clinic might consider looking more deeply at the reasons for the patients’ lack of follow-through with appointments and treatment, including various social, economic, transportation, childcare, and other lifestyle barriers. I roughly described the concept of “social determinants of health,” which captures the problems to which I was referring. I explained how our law students working with medical-legal partnership clinics face similar challenges: clients may initially present with significant legal needs, which they are highly motivated to address, but then fail to keep follow-up appointments. The attorney was intrigued and asked me to forward some relevant literature on the various issues that I had identified.

It was easy enough to find cites for the torts and privacy topics, but surprisingly more difficult to identify a clear, definitive article describing the essential concept of social determinants of health. Given the increasing prevalence of the term within not only public health but also health law circles, I was surprised at my difficulty finding literature that explained this now-essential concept in a way that the uninitiated could understand. Thus, I was delighted last week to come across Wendy K. Mariner’s Beyond Lifestyle: Governing the Social Determinants of Health. Continue reading "A Definitive Primer and Prescription on Social Determinants of Health"

Where the “Normal” Is Gendered and Unjust

Do you want that with fries, salad, or a side order of sexual harassment? Kaitlyn Matulewicz’s paper on sexual harassment in the restaurant industry prodded me to look differently at interactions with servers and to reflect more broadly on the burdens placed on those who experience harassment. Her starting point is the legal standard by which, to qualify as sexual harassment, workplace conduct must be objectively “unwelcome” and outside the “normal.” Drawing on interviews with women full-service restaurant workers, Matulewicz argues that the organization of restaurant work makes women vulnerable to enduring sexual harassment. Structuring elements of restaurant work – hiring and dressing practices, the focus on customer service, and the legally approved wage-tip relation – normalize women workers’ subjection to unwanted sexualized experiences.

Matulewicz gives plenty of space to the women interviewed, allowing us to hear their voices. I appreciated her methodological decision not to ask the participants outright whether they had experienced sexual harassment. Instead, she asked them to talk about their work and to describe their interactions with customers, co-workers, and management. That decision was crucial to the project because her participants “often struggled in defining sexual harassment and thinking about their own experiences in relation to it.” (P. 135.) One reason for this struggle is that sexualized conduct is so “normal” in their workplaces – and that the workers need to please their customers. Continue reading "Where the “Normal” Is Gendered and Unjust"

Where the “Normal” Is Gendered and Unjust

Do you want that with fries, salad, or a side order of sexual harassment? Kaitlyn Matulewicz’s paper on sexual harassment in the restaurant industry prodded me to look differently at interactions with servers and to reflect more broadly on the burdens placed on those who experience harassment. Her starting point is the legal standard by which, to qualify as sexual harassment, workplace conduct must be objectively “unwelcome” and outside the “normal.” Drawing on interviews with women full-service restaurant workers, Matulewicz argues that the organization of restaurant work makes women vulnerable to enduring sexual harassment. Structuring elements of restaurant work – hiring and dressing practices, the focus on customer service, and the legally approved wage-tip relation – normalize women workers’ subjection to unwanted sexualized experiences.

Matulewicz gives plenty of space to the women interviewed, allowing us to hear their voices. I appreciated her methodological decision not to ask the participants outright whether they had experienced sexual harassment. Instead, she asked them to talk about their work and to describe their interactions with customers, co-workers, and management. That decision was crucial to the project because her participants “often struggled in defining sexual harassment and thinking about their own experiences in relation to it.” (P. 135.) One reason for this struggle is that sexualized conduct is so “normal” in their workplaces – and that the workers need to please their customers. Continue reading "Where the “Normal” Is Gendered and Unjust"

What is the Path to Freedom Online? It’s Complicated

Yochai Benkler, Degrees of Freedom, Dimensions of Power, Daedelus (2016).

In recent years, the internet has strengthened the ability of state and corporate actors to control the behavior of end users and developers. How can freedom be preserved in this new era? Yochai Benkler’s recent piece, Degrees of Freedom, Dimensions of Power, is a sharp analysis of the processes that led to this development, which offers guidelines for what can be done to preserve the democratic and creative promise of the internet.

For over two decades the internet was synonymous with freedom, promising a democratic alternative to dysfunctional governments and unjust markets. As a “disruptive technology,” it was believed to be capable of dismantling existing powers, displacing established hierarchies, and shifting power from governments and corporations to end users. These high hopes for participatory democracy and new economic structures have been largely displaced by concerns over the rise of online titans (Facebook, Google, Amazon), mass surveillance and power misuse. The power to control distribution and access no longer resides at the end-nodes. Instead it is increasingly held by a small number of state and corporate players. Governments and businesses harvest personal data from social media, search engines and cloud services, and use it as a powerful tool to enhance their capacities. They also use social media to shape public discourse and govern online crowds. The most vivid illustration of this trend was provided during the recent coup attempt in Turkey, when President Recep Tayyip Erdoǧan used social media to mobilize the people of Turkey to take to the streets and fight against the plotters. Continue reading "What is the Path to Freedom Online? It’s Complicated"

What is the Path to Freedom Online? It’s Complicated

Yochai Benkler, Degrees of Freedom, Dimensions of Power, Daedelus (2016).

In recent years, the internet has strengthened the ability of state and corporate actors to control the behavior of end users and developers. How can freedom be preserved in this new era? Yochai Benkler’s recent piece, Degrees of Freedom, Dimensions of Power, is a sharp analysis of the processes that led to this development, which offers guidelines for what can be done to preserve the democratic and creative promise of the internet.

For over two decades the internet was synonymous with freedom, promising a democratic alternative to dysfunctional governments and unjust markets. As a “disruptive technology,” it was believed to be capable of dismantling existing powers, displacing established hierarchies, and shifting power from governments and corporations to end users. These high hopes for participatory democracy and new economic structures have been largely displaced by concerns over the rise of online titans (Facebook, Google, Amazon), mass surveillance and power misuse. The power to control distribution and access no longer resides at the end-nodes. Instead it is increasingly held by a small number of state and corporate players. Governments and businesses harvest personal data from social media, search engines and cloud services, and use it as a powerful tool to enhance their capacities. They also use social media to shape public discourse and govern online crowds. The most vivid illustration of this trend was provided during the recent coup attempt in Turkey, when President Recep Tayyip Erdoǧan used social media to mobilize the people of Turkey to take to the streets and fight against the plotters. Continue reading "What is the Path to Freedom Online? It’s Complicated"

Racketeers, Mobsters, & Plaintiffs’ Mass-Action Attorneys

Briana Rosenbaum, The RICO Trend in Class Action Warfare, 102 Iowa L. Rev. (forthcoming 2016), available at SSRN.

A racketeer, a mobster, and a plaintiffs’ mass-action attorney walk into a bar. What might be a decent setup for a joke is actually dead serious. Like members of organized crime, plaintiffs’ mass-action attorneys are being sued under the federal Racketeer Influenced and Corrupt Organizations (RICO) statutes. Briana Rosenbaum’s The RICO Trend in Class Action Warfare carefully considers existing remedies for frivolous litigation and critiques what she sees as the inefficacy of “the RICO reprisal.”

Rosenbaum readily admits that some mass-action attorneys include frivolous claims among meritorious ones in an attempt to obtain a larger settlement, otherwise known as “specious claiming.” But Rosenbaum argues that remedies for abusive litigation already exist. There are tort remedies such as malicious prosecution and abuse of process, and procedural remedies such as Fed. R. Civ. P. 11 and 28 U.S.C. § 1927. Rosenbaum posits that this existing remedial structure for vexatious litigants, while imperfect, was at least created with important countervailing policy considerations in mind, such as access to justice and administrative efficiency. Continue reading "Racketeers, Mobsters, & Plaintiffs’ Mass-Action Attorneys"