Monthly Archives: April 2020

The Price of Novelty and the Novelty of Price

Nicholson Price II, The Costs of Novelty, __ Colum. L. Rev. __ (forthcoming 2020), available at SSRN.

Patents exist to promote the progress of innovation, but a wealth of recent scholarship has demonstrated the ways in which patents influence the pace and direction of innovation in potentially problematic ways. The prospect of patent protection may cause innovators to focus on particular kinds of solutions to problems over others (i.e., those that can be patented), and it can cause researchers to focus on solving certain kinds of problems over others (e.g., those that offer the greatest opportunities for financial returns). In his new essay, Nicholson Price II describes another way in which patent law doctrines encourage certain kinds of innovations—“differentiating” innovations—over others—“deepening” or “exploring” innovations.

Borrowing insights from research on cumulative innovation and product differentiation, Price develops a taxonomy of different innovation strategies that researchers might adopt. They might focus on developing richer knowledge about existing technologies. Price calls this “deepening” innovation. Or, researchers might seek to take a large step beyond the existing field of knowledge. This is “exploring” innovation. Finally, researchers might opt for a middle strategy that does not produce substantial differences from existing approaches. These “differentiating” innovations do not take the great leaps that exploring innovations do, and nor are they intended to enrich our knowledge of existing solutions. Continue reading "The Price of Novelty and the Novelty of Price"

Of Food, Words, and Law—Does It Matter What We Call Milk (and Meat)?

Iselin Gambert, Got Mylk?: The Disruptive Possibilities of Plant Milk, 84 Brook. L. Rev. 801 (2019).

Did you know that only two beverages, water and milk, were allowed during the recent impeachment trial at the Senate? Iselin Gambert would be unsurprised by the sight of senators gulping down glasses of milk while considering whether the President should be convicted of treason, bribery, or other high crimes and misdemeanors. Indeed, her fascinating article, Got Mylk?: The Disruptive Possibilities of Plant Milk, tells you everything you always wanted to know about the social and legal meaning of milk in the United States and the European Union, brilliantly dissecting the ongoing battle over the use of the word “milk.”

Plant milk has rapidly grown in popularity among consumers in recent years while cow’s milk sales have languished. Yet, in both jurisdictions, the word milk is narrowly defined as the mammary secretion of an animal. In principle, it cannot be used to label oat, rice, soy, and other plant-based drinks. As Gambert notes, “[d]espite the fact that plant milk has been called ‘milk’ for thousands of years by cultures across the globe, dairy milk advocates have been waging a war against plant milk for the last several decades, fighting legal, legislative, regulatory, linguistic, and cultural battles over not only the very word ‘milk’ but also over the cultural space it occupies.” In 2017, Wisconsin senator Tammy Baldwin introduced the Dairy Pride Act, which would update the U.S. Code’s section on “misbranded food” to prohibit plant-based products from using terms such as “milk,” “yogurt,” or “cheese” on their labels. The same year, the European Court of Justice ruled that plant-based products are prohibited from using the word “milk” in their labels or marketing. Continue reading "Of Food, Words, and Law—Does It Matter What We Call Milk (and Meat)?"

The Failure of Patient Cost-Sharing

There are many reasons to reject deductibles, co-payments, and other ways in which insured patients are expected to pay out-of-pocket when they receive health care. In particular, as former FDA Commissioner Scott Gottlieb has observed, “sick people aren’t supposed to be subsidizing the healthy.” But as Gottlieb recognized, that’s exactly what out-of-pocket payments entail. Unlike insurance premiums which spread the cost of health care across both healthy and sick, deductibles and co-payments are paid primarily by those who are sick.

In Exposed, Christopher Robertson discusses this flaw and the many other deficiencies in patient cost-sharing. As he documents, cost-sharing rests on misguided (though prominent) economic thinking, ignores key concerns of moral theory, and persists despite solid empirical evidence of its ineffectiveness. Designed to eliminate wasteful spending, cost-sharing often leads the sick to forego valuable health care. For example, one study found that doubling the co-payments for prescription drugs decreased medication use and increased emergency department visits and hospital stays for patients with diabetes or asthma. Similarly, when patients have high-deductible health plans, those with lower incomes reduce their emergency department visits not only for low-value care but also for high-value care. Continue reading "The Failure of Patient Cost-Sharing"

The Paradox of Parental Leave

Deborah A. Widiss, The Hidden Gender of Gender-Neutral Paid Parental Leave: Examining Recently-Enacted Laws in the United States and Australia, __ Comp. Lab. L. & Pol’y J. __ (forthcoming, 2020), available at SSRN.

In the mid-1980s, Professor Wendy Williams posed “equality’s riddle”: does pregnancy result in women being unequal, thus needing special workplace protections, or should pregnancy be treated the “same” as other workplace conditions? The essence of the riddle concerns the best way to promote sex equality, more specifically whether pregnancy requires accommodation or whether it can be handled in the same manner as other physical conditions.

In her article, The Hidden Gender of Gender-Neutral Paid Parental Leave: Examining Recently-Enacted Laws in the United States and Australia, Professor Deborah Widiss updates the dilemma Williams posed by examining the impact on sex equality of the differing approaches of paid parental, bonding leave laws in the United States and Australia. Spoiler alert: the article compellingly shows that the riddle has not yet been solved. While the U.S. approach may foster formal equality, the Australian approach may result in more overall time spent in caretaking. Continue reading "The Paradox of Parental Leave"

Reconciling Competing Claims to Equality Relating to Tribal Governments and Native and Non-Native Individuals

Bethany Berger, Savage Equalities, 94 Wash. L. Rev. 583 (2019).

Bethany Berger’s article Savage Equalities is an excellent exploration of the importance and varied meaning of equality in the context of tribal rights and Federal Indian Law. Berger carefully evaluates the various types of equality claims that are levied in relation to tribes, including the idea that recognition of tribal sovereignty creates special rights for tribes that denigrate the equality rights of non-Indians (or even, according to some formulations, Indians), the idea that recognition of tribal sovereignty is necessary to foster equal treatment of tribes and tribal citizens, and finally the concern that Indian tribes’ governmental actions sometimes violate their own citizens’ rights to equality. She traces the prevalence and deployment of these ideas through the tortuous history of the federal government’s relationship to tribes, showing how, for example, the idea of unfair “special rights” for tribes was used during particularly dark periods of federal-tribal relations such as the allotment period, when the idea purportedly justified harming tribes by unlawfully taking their property. The taking of tribal property at the time was deemed necessary to level the playing field for individual non-Indians who were seen as unfairly lacking these special rights.

Berger similarly traces the understanding of the right to tribal sovereignty as rooted in, and necessary for, equality through more positive periods of history, and she additionally identifies instances where individuals under tribal jurisdiction have been denied their rights to equality at the hands of tribal governments. Continue reading "Reconciling Competing Claims to Equality Relating to Tribal Governments and Native and Non-Native Individuals"

The Wild, Wild West for Low Wage Workers with Wage and Hour Claims

Llezlie L. Green, Wage Theft in Lawless Courts, 107 Cal. L. Rev. 1303 (2019).

People with low salaries recover less frequently for their claims against their employers than those with larger salaries. The problems include that lawyers lack the incentive to take these cases. They have less to gain monetarily, and the costs can even exceed the recovery. Professor Green tells us that low income individuals with wage and hour claims in small claims courts face these difficulties and more—indeed “wage theft” and it is theft condoned by the courts.

Professor Green opens her insightful article with a story about a case that her clinic tried. An hourly employee worked approximately 12 hours a day and was paid around $5 an hour. When she brought a wage and hour case in small claims court asserting $2500 in lost income, the court rejected the claim, concluding there was a simple contract between the worker and the employer—which had not been breached. The appellate court asked more questions and concluded that the wage and hour laws had been violated—awarding her $2,500. Continue reading "The Wild, Wild West for Low Wage Workers with Wage and Hour Claims"

Theorizing Mobility

Leanne Weber & Jude McCulloch, Penal Power and Border Control: Which Thesis? Sovereignty, Governmentality, or the Pre-emptive state?, 21 Punishment & Society 496 (2019).

With immigration and border control as issues dominating public and political discourse worldwide, it is no surprise that a lot of scholarship addresses these issues. Through various theoretical lenses, scholars across the globe are trying to make sense of the upsurge of nationalistic and punitive legal and policy measures that cater to keeping out the unwanted “other” who could threaten national security or the economy. A new field even seems to be emerging: that of Border Criminology. The field is bringing together criminologists, criminal justice scholars, legal sociologists, and many others working on matters of penal power and immigration control. Weber and McCulloch’s article demonstrates the diversity and the interdisciplinary nature of this emerging field. Ironically, it also illustrates the importance of theoretical integration and looking over disciplinary boundaries to understand the processes and practices of bordering.

In their article, Weber and McCulloch address three main theoretical lenses (to be further) explored by scholars of border criminology. They highlight how these three lenses aim to understand different aspects of immigration and border control, as well as how further integration of these lenses can lead to deeper knowledge of the dynamics and the dialectics of the how, why, and when of immigration and border management. The three lenses they address are: Juliet Stumpf’s “crimmigration” thesis (2006), Mary Bosworth and Mhairi Guild’s adaptation of the “new penology” perspective to the politics of border control (2008), and Susanne Krasmann’s critique of Gunther Jakobs’s “enemy penology” thesis (2007). Continue reading "Theorizing Mobility"

From Group-Think to Thinking about Groups

Yuval Feldman, Adi Libson and Gideon Parchomovsky, Corporate Law for Good People, 115 Nw. U. L. Rev. (2020), available at SSRN.

Corporate law has incorporated some of the sociology of organizations. Often, this is by incorporating the concept of an organization having a culture. The organization’s culture organizes thought by individuals within the organization both by incorporating norms of satisficing and stimulating groupthink. In compliance, “tone at the top” is thought to be necessary. And, the concept of the organization shaping decisions within it explains why pervasiveness replaces mens rea for corporate criminal liability.

For many, organizational sociology is too vague. After all, in 1949, Clyde Kluckhohn demonstrated 73 different meanings that are attached to the concept of “culture.” Although the effects of organizations are apparent, the mechanisms by which organized experience frames individual decision-making are more difficult to understand. This is especially true in a culture, like ours, that prizes the self-determination of individuals. Continue reading "From Group-Think to Thinking about Groups"

Contract in Crisis

Emily Strauss, Crisis Construction in Contract Boilerplate, 82 L. & Contemp. Probs. 163 (2019).

Oddly enough, contract law may help quell at least some of the panic that comes with a pandemic. Sure, contract doctrine can’t tell us about the spread of the COVID-19 virus. But Emily Strauss’ article Crisis Construction in Contract Boilerplate shows how courts adeptly and quietly helped the economy recover during the 2008 financial crisis. She tracks the surprising outcomes and rationale of cases allocating risk among loan originators, investors in residential mortgage backed securities (RMBS), and insurers in those transactions, and reports that they followed a method of contract interpretation she dubs “crisis construction.” Faced with “sole remedy” contract clauses in asset securitization contracts that simply could not remedy the magnitude of losses that investors and insurers suffered, courts abandoned the plain language of those standard clauses in favor of a plaintiff-proposed equitable alternative. That method, Strauss contends, helped restore investor confidence and right the economy.

Those of us who value predictability of contract law—and the rule of law more generally—will be relieved to hear that the judicial rejiggering only lasted a few years. As the economy was getting back on track in 2015, courts quietly reverted to the ordinary course of judicial business by enforcing those “sole remedy” allocation-of-risk clauses. Continue reading "Contract in Crisis"

Grounded Free Speech

Joseph Blocher, Free Speech and Justified True Belief, 133 Harv. L. Rev. 439 (2019).

If protection of freedom of speech has something to do with truth-seeking, we ought to acknowledge that “the goal of free speech is not the maximization of truths in the abstract, but rather the development of knowledge.” Supposing this to be so, Joseph Blocher suggests that “First Amendment theory and doctrine” should find its organizing pulse in the idea of grounding: in investigations of what counts as “justified true belief,” not simply “truth alone.” (P. 459.) Epistemology matters.

“Justified true beliefs” emerge within an individual’s own mind, Professor Blocher thinks, in view of particular “interior” dispositions or distinctive “exterior” states of affairs. Interior and exterior elements are sometimes concurrent, sometime interacting, sometimes decisive alone. This account of “true” beliefs does not claim to be philosophically right without doubt. Blocher believes it works well enough, however. Elaboration often shows well-ordered groups of settings, objectives, investigations, and conclusions. Conjunctions—infrastructure, institutions, and the like—come into view, prompting or otherwise disciplining particular forms of speech within which we frame our assertions of justified true belief, and thus also our claims to constitutionally defensible free speech. Continue reading "Grounded Free Speech"

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