Monthly Archives: July 2018
Daniel J. Hemel and Lisa Larrimore Ouellette, Innovation Policy Pluralism
, 128 Yale L. J.
(forthcoming), available at SSRN
In previous work, Daniel J. Hemel and Lisa Larrimore Ouellette explored the range of tools available to regulators interested in promoting innovation. (See Ted Sichelman’s jot.) While legal scholars addressing innovation policy frequently focus solely on patent law—in fact, the term “intellectual property” is often employed as a synecdoche to refer to the broader scholarly field of innovation policy—Hemel and Ouellette argued that viewing patents, prizes, grants, and tax credits as imperfect substitutes allows the public goods problem that underlies innovation policy to be solved in a variety of different ways, each with its own advantages and disadvantages.
In their most recent work, Innovation Policy Pluralism, Hemel and Ouellette push their earlier argument one step further. They again increase the number of tools in the innovation-policy toolkit by developing a divide-and-recombine approach to intellectual property and its quasi-substitutes. They argue that any given tool for promoting innovation has two “separate and separable” components. First, it has an innovation incentive or a “payoff structure for the producers of knowledge goods.” Second, it has an allocation mechanism that “establish[es] the conditions under which consumers can use knowledge goods.” Hemel and Ouellette provide a thorough, clearly argued, and convincing analysis of the combinatorial possibilities that arise from this finer-grained analysis of the components of innovation-policy regimes. Continue reading "Innovation Policy Pluralism, or Innovation Policy Hybridism?"
Barbara J. Evans, The Genetic Information Nondiscrimination Act at Age 10: GINA’s Controversial Assertion that Data Transparency Protects Privacy and Civil Rights
, 60 William & Mary L. Rev.
(forthcoming), available at SSRN
Barbara Evans is one of our preeminent privacy scholars (with a pretty nifty sideline in FDA law). She specializes in intricate and precise analysis, very carefully mixing “big picture” policy arguments with deft doctrinal detail. This article on the Genetic Information Nondiscrimination Act (GINA) is no exception. GINA, of course, was one of the products of The Ethical, Legal and Social Implications (ELSI) Research Program funded by the NIH under the Genome project. The Genetic Information Nondiscrimination Act at Age 10: GINA’s Controversial Assertion that Data Transparency Protects Privacy and Civil Rights is a timely reminder not only of GINA’s tenth anniversary but also, increasingly, the proliferation of genetic information across clinical, research, and consumer domains. As Evans notes, “If GINA failed in its first decade to save us from genetic discrimination, it may have been a harmless error, because the human genome was too poorly understood at the time to lend itself to very many nefarious uses. If GINA failed, then so did the science, and it all somehow worked out. This does not imply, however, that GINA’s civil rights protections are unimportant; they may simply have been premature.” Another reminder inherent in the article is that health care suffers from a poorly synchronized combination of data protection models, including the HIPAA Rules, the Substance Use rule (aka 42 CFR Part 2), GINA, the Americans with Disabilities Act, and the Common Rule.
At the core of the article is a most perceptive observation—that GINA expanded the federal regulatory program for genetic and genomic testing from safety regulation to civil rights regulation, including privacy protections and prohibitions on discrimination. At first sight, the specific legal issue to which Evans turns her attention does not seem particularly earth-shattering—a GINA-authorized amendment to the HIPAA Privacy Rule. HIPAA had already allowed patients to access their healthcare data held by physicians. However, the GINA-initiated regulatory change in 2014 granted them access to “laboratory-held data, including genetic and genomic information as well as assorted other diagnostic test results that laboratories hold in their files.” This change did not sit well with a range of health regulators (or the laboratories). They viewed much of the assembled genetic data as incomplete or of sub-clinical quality, yet here were patients being granted legal access to it! Continue reading "Unpacking Safety and Civil Rights Regulation of Genetic Data"
By coincidence, I was reading Kathleen Belew’s book, Bring the War Home: The White Power Movement and Paramilitary America, the same week I read Jill Lepore’s recent article, The Rise of the Victims’-Rights Movement, in The New Yorker. The overlap was striking and well worth the consideration by legal historians.
Belew’s recent history is about the rise of a white power network across the United States in the years since Vietnam. It explores, through the study of a series of incidents, how a number of seemingly separate white supremacist groups came together, first on the ground and then through the internet. As Belew traces the network’s increasingly violent acts against those it considered outsiders, she shows why its racial view of the world (with its neat categories of “us” versus “them”) ultimately led it to declare war on the federal government in the early 1980s. In the process, she also describes the series of tactical decisions (and missteps) by federal prosecutors that led the government to underestimate and understate the extent of the white power movement. Her book’s great strength is revealing that network’s breadth across time, space, and a series of events culminating in the Oklahoma City bombing in 1995 (the epilogue ties the events in the book to the shooting at Emanuel A.M.E. church in Charleston). Continue reading "Victims’ Rights and White Power"
Jonathan F. Mitchell, The Writ-of-Erasure Fallacy
, 104 Va. L. Rev. __ (forthcoming 2018), available at SSRN
Everyone—public, media, government officials, courts, and first-year law students—understands constitutional litigation in light of two ideas. From Marbury v. Madison’s declaration that it is “emphatically the province and duty of the Judicial Department to say what the law is,” everyone believes that the Supreme Court gets the final, uncontestable word on what the Constitution says and means. And a court exercising judicial review “strikes down” or “sets aside” or “invalidates” unconstitutional laws, rendering them null and void for all purposes, erased from existence, as if never enacted and no longer available as “law.”
In a new article, Jonathan Mitchell labels this the “writ-of-erasure fallacy,” the erroneous “assumption that a judicial pronouncement of unconstitutionality has cancelled or blotted out a duly enacted statute, erasing that law from the books, vetoing or suspending it and leaving nothing for the executive to enforce now or in the future.” In fact, judicial review is more limited. Having identified a law as constitutionally invalid, a court may decline to enforce that law in a particular case or it may enjoin executive officers from enforcing the law while the injunction remains in effect. But the statute continues to exist as law unless and until repealed by the enacting legislature. It is a fiction that courts “strike down” or “block” or “invalidate” statutes. That fiction creates misunderstandings about constitutional litigation and the effect of judicial rulings in constitutional cases. And that fiction unnecessarily limits the power of the executive to enforce still-existing law and of the legislature to enact new or amended laws. Continue reading "A Step Toward a Proper Understanding of Constitutional Litigation"
George S. Geis, Traceable Shares and Corporate Law
, 113 Nw. U. L. Rev. __
(forthcoming 2018), available at SSRN
Theories of corporate governance, and associated normative claims about the optimal balance of power between shareholders and boards of directors, often gloss over—or ignore entirely—”the recessed plumbing of back-end clearing processes.” To be sure, growing empirical literatures inform such debates by illuminating various strategies of exit and voice deployed by important categories of investors, yet the accuracy, efficiency, and integrity of securities trading and voting mechanisms often go unexplored. In the article Traceable Shares and Corporate Law, George Geis provides a fascinating window onto the complex mechanics of clearing and voting in publicly traded companies—and particularly how “distributed ledgers and blockchain technology” may revolutionize these processes, with potentially profound implications for corporate law and governance.
As Geis recounts, by the 1960s, transfer of physical stock certificates had become unworkable due to substantial growth in trading volume. The solution to this problem was “unidentified fungible bulk” shareholding. Shares now typically reside at the Depository Trust & Clearing Corporation (DTCC), with legal title held by a subsidiary called Cede & Company, which appears as the record holder of the stock in corporate stockholder lists. Accordingly, when the stock is sold from one investor to another, DTCC simply “transfers beneficial ownership electronically from seller to buyer via bookkeeping adjustments”—obviating the need for slow, cumbersome, and expensive transfers of physical stock certificates. Continue reading "Distributed Ledgers, Traceable Shares, and the Division of Power in Corporate Law"
About fifteen years ago, Bruce Mann’s Republic of Debtors offered an intriguing narrative about the origins of American bankruptcy law. Among other claims, Mann suggested that debt became respectable when respectable people found themselves in debt. When debt moved in from the fringe, our legal treatment of debt softened.
Anne Fleming tells a related story in our treatment of debt, but her focus is on poor debtors in New York City. Although the small sum loans that she studies may be on the fringe of finance, her account makes clear that the debtors who have relied and continue to rely on fringe finance are many, and together constitute a large, struggling class of workers. They are not outliers to our economic model but an integral part of it. We rely on their low wage labor and their debt-fueled consumption. And we have not devised any alternative to debt, no large-scale method by which low-income people can survive adverse events—at least not one that imposes lighter costs than perpetual debt. Continue reading "How Do We Regulate Contracts That We Need and Hate?"
In The American Deep State, Jon D. Michaels pushes back against the increasingly shrill rhetoric charging that shadowy forces deeply embedded within the federal bureaucracy have commandeered the reins of government and are thwarting the President and undermining the democratically expressed will of the people. Michaels does not shrink from the “deep state” terminology, but rather seeks to co-opt it in an ode to what he calls “bureaucratic depth.”
Michaels extols numerous advantages of bureaucratic depth. First, he notes that bureaucratic depth is, as a practical matter, what makes the state work. It is a measure of state capacity. The deep bench of civil servants in the United States “mak[e] and enforce[e] regulations, design and run welfare programs, combat crime and corruption, and provid[e] for national defense.” These functions simply do not work—or do not work well, consistently, and non-corruptly—in states that lack bureaucratic depth. Second, Michaels argues that for precisely this reason, bureaucratic depth generally facilitates the implementation of the president’s agenda. Presidents should not, as a matter of course, wish for a hollowed out administrative state if they want to advance a political agenda. Finally, Michaels argues that bureaucratic depth can serve important stabilizing and accountability functions. “In those rare instances when presidents (and their hand-chosen agency heads) go beyond the proverbial pale, those in the civil service are particularly well-positioned to challenge, and even to resist, directives lacking a scientific, legal, or commonsensical foundation.” At base, his argument is that bureaucratic depth advances important rule-of-law values by serving as a check on lawless exercises of presidential power. Those outside the civil service are unlikely to have the combination of inside knowledge and protection from retaliation necessary to promote transparency about unlawful, unethical, or extraordinarily unwise presidential initiatives. Continue reading "In Praise of Bureaucracy"
The United States Constitution—that great experiment in creating a “more perfect union,” more democratic, egalitarian, and libertarian—was founded in sin. These sins include, among others, slavery and political exclusion of people of color and women of all races. They also include the erasure of sovereignty required to found a country on a continent occupied by existing indigenous sovereigns. Many before Seth Davis, including Milner Ball, Philip Frickey, Nell Newton, David Wilkins, and Robert Williams, have wrestled with this founding constitutional evil. Several things, however, distinguish Professor Davis’s American Colonialism and Constitutional Redemption. The result is an important addition to the canon of federal Indian law.
First, Professor Davis engages with theorists outside federal Indian law to an unusual degree. Professor Davis specifically takes on fiduciary theorists like Evan J. Criddle and Evan Fox-Decent, but also engages with other constitutional theorists like Sanford Levinson, Aziz Rana, and Jack Balkin; political theorists like Carole Pateman, Jennifer Nedelsky, and Robin West; race theorists like Dorothy Roberts and Miguel de la Torre; and even political figures like President Barack Obama and Reverend Adam Clayton Powell Sr. While other scholars of federal Indian law have written noteworthy works in other areas, few have so deftly connected their work to debates outside the field. The result is an article that helps to bring the law of Native people into mainstream debates, and out of the niche in which it is sometimes cabined. Continue reading "Can the Constitutional Sin of Colonialism be Redeemed?"
In the movie 1776, Benjamin Franklin infamously remarks to John Dickinson, “Revolutions…come into this world like bastard children—half improvised and half compromised.” The compromise, of course, was slavery. The rest of the dialogue and its context, which explains the improvisation, is often omitted in discussion of this scene. Recall that Franklin asks John Hancock to poll the Pennsylvania delegation on the question of independence. Franklin votes yea; Dickinson, nay. This is how the decision of American independence lands squarely on the shoulders of Judge James Wilson, who ultimately votes yea. As Dickinson incredulously and rhetorically posits, “And is that how new nations are formed? By a nonentity seeking to preserve the anonymity he so richly deserves?”
If we compare the founding of our nation with the foundational federal labor law statutes of the twentieth century, which statute—the Wagner Act or the Taft-Hartley Act—is the labor law compromise? Most American labor scholars would probably say Taft-Hartley. After all, the Wagner Act, as Professor Karl Klare has correctly observed, “was perhaps the most radical piece of legislation ever enacted by the United States Congress.” Moreover, it is Taft-Hartley that, among other things, narrowed the definition of employee by eliminating the National Labor Relations Act’s (NLRA’s) protection of supervisors and independent contractors and diluted the union’s legal economic weapons by eliminating the secondary boycott. But the late Austro-British labor scholar, Otto Kahn-Freund, would argue that the Wagner Act was in fact a compromise by the American labor movement. As Kahn-Freund allegedly explained, “What the law giveth, the law can taketh away.” And taketh away it did—not merely via congressional amendments but via Supreme Court judgments and ultimately by the Board itself. Continue reading "Union Improvisation: The Parent of Social Justice"
Discussions about wealth accumulation and economic equality invariably lead to discussions about income and wealth inequalities. Professor Erez Aloni‘s article, The Marital Wealth Gap, takes the discourse to a new level by adding the connection between marriage and wealth inequality. Specifically, Professor Aloni indicates how the family structure impacts wealth by comparing the accumulation of wealth among married households in the top ten percent to all households in the bottom ninety percent. He coins this differential “the marital wealth gap.” Further, the article exposes various policies that reinforce wealth inequalities that serve as the foundation for the marital wealth gap. Finally he discusses the cause and harms caused by the gap and possible solutions for narrowing the gap.
In his analysis, Professor Aloni explores whether the success of married couples is the cause of the wealth advantage and he analyzes the various legal mechanisms that reinforce the wealth privilege that married households enjoy. In other words, he posits that law and policy facilitate measures to maximize wealth holdings for married households. Professor Aloni proposes the state should decouple wealth benefits from marriage by dismantling the architecture that supports preferences based on marriage. Continue reading "Is Marriage a Proxy for Wealth?"
Scott Skinner-Thompson, Privacy’s Double Standards
, 93 Wash. L. Rev.
, (forthcoming), available on SSRN
In an age of growing income inequality and daily reminders of the privileged lives led by the rich and famous, it should come as no surprise that tort law might come to mimic the glaring disparities in the larger culture. The thesis of Scott Skinner-Thompson’s new article is that the courts have done just that in adjudicating privacy claims for the tort of public disclosure of private facts. Specifically, Skinner-Thompson argues that in applying the black letter law, courts have systematically favored privileged plaintiffs (often celebrities) without showing a similar regard for ordinary individuals, particularly plaintiffs from marginalized communities.
The article is rich in examples of disparate results linked to the identity of the plaintiff. There is the case of the gay man who loses his public disclosure lawsuit, despite being “outed” by the pastor of his church to other church members and a future in-law. Yet Hulk Hogan, the professional wrestler and reality show star, known for boasting about his sex life, wins a multi-million judgment when Gawker posts a sex tape of one of his sexual encounters. No recovery for a teenage victim of revenge porn when a website publishes a nude photo of the plaintiff she had privately sent to her boyfriend, but a sizable recovery for professional football player resulting from a tweet of his medical records indicating that he had to have a finger amputated. And on and on. Continue reading "Privacy for the Privileged Few"