Yearly Archives: 2019
Aug 9, 2019 David FagundesIntellectual Property Law
Jeremy N. Sheff,
Jefferson’s Taper (Feb. 11, 2019), available at
SSRN.
It’s not news that normatively fraught debates in legal academia tend to become polarized and then stuck. Scholarship often tends to cohere around preexisting camps, causing debate to focus on which camp (and who within each camp) is right and to ignore the possibility that the available framings may have missed something important. In light of this, one of the most valuable and refreshing moves an article can make is to throw a bomb into the long-accepted binary of a given academic debate by suggesting an entirely new way of thinking about an issue. This is precisely what Jeremy Sheff does to the debate over foundational concepts of information ownership in his fascinating and provocative draft, Jefferson’s Taper.
Here’s the backstory: Some scholars favor a limited vision of information owners’ rights and tend to embrace what has become known as the utilitarian theory of copyright and patent. According to this view, property in creative expression or inventions is not rooted in any notion of “right” other than the state’s positive law. Rather, the state grants monopolies in information only because (and to the extent that) doing so is necessary to incentivize the creation of things that would earn no profits for their owners absent law’s imposition of exclusive rights. Other scholars prefer a more expansive vision of owners’ rights; these scholars tend to advocate an alternative view of copyright and patent rooted in the writings of John Locke. This approach locates a pre-political right to ideas in the labor expended in creating them and rejects the notion that copyright and patent are nothing more than state-created monopolies designed to calibrate the optimal level of creative and inventive production. Continue reading "A Classical Perspective on Information Ownership"
Aug 8, 2019 Nicolas TerryHealth Law
Sharona Hoffman,
What Genetic Testing Teaches About Predictive Health Analytics Regulation, __
N.C. L. Rev. __ (forthcoming), available at
SSRN.
Professor Sharona Hoffman is one of our most prominent health law scholars. She is particularly interested in the intricacies of health privacy and quality in the context of pervasive healthcare technologies such as electronic health records and big data. Her expertise extends to a deep understanding of the Genetic Information Nondiscrimination Act of 2008 (GINA) and the scope of the Americans with Disabilities Act (ADA). In her excellent article, What Genetic Testing Teaches about Predictive Health Analytics Regulation, Hoffman neatly combines these interests, providing a thoughtful critique of predictive health analytics founded on a detailed description of our legal and policy experiences with genetic testing. The comparison is particularly pertinent because, to an extent, algorithmic medicine is stepping into a space that many had hoped would by now be occupied by precision medicine.
Hoffman identifies the policy and regulatory issues raised by both genetic testing and what she labels as long-term predictive analytics as “clinical validity and accuracy, privacy and discrimination, and psychological harms.” (P. 14.) At root, these raise the question of what Jessica Roberts and Elizabeth Weeks call “healthism,” “[p]ermitting—and even encouraging—discriminatory treatment based on an individual’s health status.” Continue reading "Algorithmic Medicine and the Lessons of Genomic Testing"
Aug 7, 2019 David HortonTrusts & Estates
Michael J. Higdon, Parens Patriae
and the Disinherited Child (July 2, 2019), available at
SSRN.
In the United States, parents can disinherit their dependent children. This rule, which I’ll call the “disinheritance power,” is one of the most blazingly idiosyncratic strands of American law. Indeed, no other legal system gives decedents this cruel freedom. And although scholars have criticized the disinheritance power for decades, it remains firmly on the books.
Michael Higdon’s engaging new article attacks this problem from a new angle. Higdon proposes that states use the venerable doctrine of parens patriae as a safety valve against egregious exercises of the disinheritance power. Continue reading "A Novel Limit on the Power to Disinherit Children"
Aug 6, 2019 Ilya SominConstitutional Law
The Fifth Amendment to the federal Constitution and virtually all state constitutions require the government to pay compensation when it “takes” private property. But many state constitutions also require compensation for government actions that “damage” property. Until now, these “Damagings Clauses” have largely been ignored by legal scholars, particularly constitutional law scholars—and even by property rights advocates. But an outstanding 2018 article professor Maureen “Molly” Brady (who has just moved from the University of Virginia to Harvard) could help change that. She sheds light on the origins of these clauses in the late nineteenth and early twentieth centuries, the ways in which they have been largely gutted by court decisions, and what can be done to resuscitate them today.
Twenty-seven state constitutions have clauses clause prohibiting the “damaging” or “injuring” of private property for public use without just compensation. In the article, Prof. Brady explains how damagings clauses were enacted in order to compensate owners for harm inflicted by new infrastructure development that was not covered by the then-dominant interpretation of state takings clauses, which generally required either a physical invasion or occupation of the property or (in the case of regulatory takings) direct restrictions on the owner’s right to use the land. This did not cover such situations as the creation of various types of pollution, debris, and access barriers that sometimes rendered property difficult or impossible to use. But, while the wording of the clauses and the originally understood meaning, suggested they should apply broadly, Brady shows that over time courts in most states effectively gutted them, restricting compensation only to cases where compensation was already likely to be required by state or federal takings clauses. Continue reading "Learning from the History of State Damagings Clauses"
Aug 5, 2019 Sarah GreenTorts
As distributed ledger or “blockchain” technology continues to offer decentralised and distributed decision-making, Yeung considers the way in which those automated processes (code as law) are likely to interact with conventional means of governance (code of law). This technology is based on peer-to-peer verification of transactions: it takes various forms, but the common theme is that the record of transactions is shared with all users of a given system, and transactions only make it on to that record after a fierce process of mathematical ratification. As a result, the intermediaries on which transactions have for so long depended, such as banks, clearing houses and property registries, are no longer required. Altruism and self-interest are aligned because all users have a vested interest in the continued integrity and success of the closed system, and third party intervention is neither required nor (for many users, at least in principle), desired.
Distribution and decentralisation are the crucial components of distributed ledger technology, and are the principle features which distinguish them from those forms of electronic payments which use intermediaries and electronic bank money, such as Paypal, WorldPay and BACS, for example. These characteristics also explain why cybercurrencies are often described as “trustless”, meaning that transacting parties need not have any trust for one another in the real world, so long as they trust the payment protocol (which, for reasons which will soon become apparent, they probably should). Decentralisation in this context simply means that everyone who might want to use the currency, and so has a copy of the relevant software, also has a copy of the ledger. The ledger is a record of every transaction made using that currency, and each computer operating the software (known as a node) has a copy of the entire thing: from the beginning (the “Genesis Block”) to today’s latest block. This is where the term Distributed Ledger Technology (DLT) comes from: Blockchain, which was created to underpin Bitcoin, was the first distributed ledger, but there are now distributed ledgers of several different forms. Common to every one, however, is the idea that all participants have access to the full history of transactions made using that protocol. This is a novel way of dealing with the ages-old double spend problem. Historically, the challenge of how to prevent double spending has been met in two ways: the first is by using physical tokens, whose corporeal form physically prevents their being spent more than once, and the second is by employing an independent third party, such as a bank, to keep a record of transactions and their effects on the subsequent spending power of the parties involved. Cybercurrencies achieve the same thing by sharing information with every user and by ensuring that the information so shared is perfectly synchronised. This way, “coins” cannot be spent twice because everyone would know that this is what was being attempted, and the consensus necessary for validation and recording would not be reached. Security is thus achieved through complete transparency, and distributed ledgers have no need for any centralised record-keeping, nor for any third party intermediary to verify the integrity of transactions. Continue reading "Computer Code as Law: A New Frontier?"
Aug 2, 2019 Jessica EaglinCriminal Law
Chaz Arnett,
From Decarceration to E-Carceration, 41
Cardozo L. Rev. ___ (forthcoming, 2019), available at
SSRN.
Almost six months ago, best-selling author and legal scholar Michelle Alexander wrote for the New York Times in reference to electronic monitoring devices used in the criminal process: If the goal is to end mass incarceration and mass criminalization, digital prisons are not the answer. But why not? States are increasingly considering alternatives to incarceration, including electronic monitoring, as a means to reduce the economic and social pressures of the phenomenon of mass incarceration. The notable and bipartisan First Step Act passed by Congress in December 2018 encourages further use of electronic monitoring devices in the federal system. Why not embrace this ever-improving technology to reduce the deleterious effects of this phenomenon? Indeed, many Americans believe electronic monitoring can and should be a part of the solution.
Chaz Arnett’s powerful article, From Decarceration to E-Carceration, forthcoming in the Cardozo Law Review, argues to the contrary. He asserts that the expansion of electronic monitoring devices in community corrections threatens to entrench the most deleterious effects of mass incarceration – its operation as a mechanism of social stratification and racialized marginalization–without reducing the expanding footprint of the carceral state. Because his novel contribution reframes how we engage with the introduction of technologies as criminal justice reform, this is a must-read piece for those interested in resolving the problems of mass incarceration in the United States. Continue reading "Is E-Carceration a Problem? Confronting the Shortcomings of Technological Criminal Justice Reforms"
Aug 1, 2019 Tom C.W. LinCorporate Law
Climate change and its implications are among the most debated and pressing issues of our time. The effects of climate change are felt throughout the country and the world. Raging wildfires, rising oceans, overflowing rivers, devastating storms, crippling drought, and other weather phenomena have directly disrupted vast populations, nation-states, ecosystems, and businesses across the globe. Policymakers, executives, scientists, lawyers, and activists have long discussed and debated how best to confront these and other challenges of the environment.
In her recent article, The Law of the Corporation as Environment Law, Professor Sarah Light makes a valuable contribution to these discussions and debates by arguing for a more expansive view of environmental law:
In light of the significant impact that firms can have on the environment (often, though not always, when they are organized as publicly traded corporations), this Article argues that the law governing the corporation throughout its life cycle—corporate law, securities regulation, antitrust law, and bankruptcy law—should be understood as a fundamental part of environmental law. Continue reading "Environmentalism Inc."
Jul 31, 2019 Fred O. Smith, Jr.Courts Law
Leah Litman’s Remedial Convergence and Collapse highlights a common two-step phenomenon in the law of constitutional torts. First, the Supreme Court increases the standard for obtaining one remedy (“Remedy A”), relying in part on the availability of another remedy (“Remedy B”). The Court then increases the standard for obtaining Remedy B, relying in part on the availability of Remedy A. The result is that neither remedy is available. Across a range of remedial domains, the Court has imposed similar, high standards for relief, often citing the availability of other remedies that do not exist as a practical matter. Litman calls the similarity of the remedial standards “convergence.” The ultimate unavailability of any remedy? “Collapse.”
To illustrate her point, Litman focuses primarily on three mechanisms of constitutional enforcement that are of particular importance to policing and criminal justice: (1) qualified immunity; (2) federal habeas; and (3) the exclusionary rule. As Litman puts it, “[t]he standards for qualified immunity, habeas corpus, and exclusion of evidence have … converged around a similar, overarching principle that purports to select for unreasonably egregious actions.” (P. 1480.) Continue reading "How Remedies Disappear"
Jul 30, 2019 Omri Ben-ShaharContracts
Meirav Furth-Matzkin & Roseanna Sommers,
Consumer Psychology and the Problem of Fine Print Fraud, 72
Stan. L. Rev. __ (forthcoming 2020), available at
SSRN.
Sellers entice consumers to make purchases by advertising many lovely benefits of their products. It is quite common, however, to then qualify and narrow these marketing promises in the fine print terms attached to the transactions. What if sellers outright deceive consumers—by making loud promises that they surreptitiously negate or contradict in the fine print? What if, say, a phone carrier runs an ad for an “unlimited” data plan which, under the terms of service, is actually strictly limited?
In a surprising article, Meirav Furth-Matzkin and Roseanna Sommers (academic fellows at the University of Chicago Law School) expose the cognitive impact of this tension between explicit promises and fine print. Consumers, their experiments show, may feel committed to the fine print, even when it strips away explicit promises made to them. Laypeople are “intuitive formalists”: not only do they (incorrectly) believe that such conflicting fine print is binding, they also think this is how things should be! They blame themselves for not reading and knowing what’s in the boilerplate, and they are unlikely to complain or to hold the deceiving business accountable. Continue reading "Fine Print Subservience"
Jul 29, 2019 Susan MorseTax Law
Miranda Perry Fleischer & Daniel Jacob Hernel,
The Architecture of a Basic Income, __
U. Chi. L. Rev. __ (forthcoming), available at
SSRN (Mar. 27, 2019 draft).
Miranda Fleischer and Daniel Hemel have written a terrific article, The Architecture of a Basic Income, about a universal basic income, or UBI. They offer concrete policy advice grounded in philosophical priors. They successfully separate questions about fundamental policy design from questions about political packaging. Their paper should become a go-to resource for the increasing swell of interest in UBI policy.
Fleischer and Hemel give the following definition of UBI: “[A] program that ensures that all members of a polity have access to at least a minimum sum of money.” (P. 6.) They provide three philosophical perspectives that support a UBI: welfarism, founded on the premise of declining marginal utility of income; resource egalitarianism, or the idea that ex ante redistribution should support each individual’s ability to develop; and libertarianism, based on the Lockean proviso that individuals’ acquisition of property rights should leave “enough, and as good,” for others. Continue reading "The Policy Maker’s Guide to a Universal Basic Income"
