Power to the People(s): Referendums in Deeply Divided Societies

Referendums have been used to decide divisive constitutional questions in polities around the world.  In some cases, the relevant divisions run deeply along ethnic and religious fault-lines and the polities have long histories of conflict. Joanne McEvoy’s 2018 article, Letting ‘The People(s)’ Decide: Peace Referendums and Power-Sharing Settlements, makes a significant contribution to the emerging literature on “peace referendums.” In what follows, I will highlight this contribution and argue that her text merits close attention from comparative constitutional law scholars.

At the outset of the article, McEvoy identifies her aims and underlines the high stakes involved when referendums are held in societies riven by conflict. She writes:

This article assesses the use of the referendum to legitimate power-sharing democracy in deeply divided societies. If we lack a full understanding of the dynamics of referendum design in transitions to power-sharing, minority groups may find themselves in a polity they perceive to be both illegitimate and in favour of the majority.  Further intracommunal antagonism and the risk of recurring conflict could threaten a fragile political bargain reached by elites.  Exploring the value of referendums is therefore important for the stability and legitimacy of peace-building. (P. 865.)

McEvoy situates her text in the extensive literature on power-sharing arrangements. Continue reading "Power to the People(s): Referendums in Deeply Divided Societies"

Decoupling Intellectual Property’s Incentive and Allocation Functions

Daniel J. Hemel & Lisa Larrimore Ouellette, Innovation Policy Pluralism, 128 Yale L. J. __ (forthcoming 2018), available at SSRN.

It’s rare for two JOTWELL editors to choose the same article to review. When that happens, it’s surely a sign of an “instant classic.” So even if you’ve read Kevin Collins’s laudatory jot of Daniel J. Hemel and Lisa Larrimore Ouellette’s superb piece a few months ago, you should read this one, too. And, if you didn’t read that review, you should definitely read this one.

If double coverage weren’t enough, three years ago, my jot reviewed Hemel and Ouellette’s brilliant article, Beyond the Patents-Prizes Debate. Besides explaining the importance of considering the full panoply of tools to incentivize innovation—such as patents, prizes, grants, and tax credits—Hemel and Ouellette showed that these tools could be decoupled and refashioned to create effectively new, mutant-like rights with potentially superior effects than in their “pure” form.

In this follow-up article, Hemel and Ouellette insightfully discern the broad theoretical ramifications of their previous IP reconstructions. Because Kevin Collins’s jot lucidly summarizes the expanse of the article’s exposition, I focus on the article’s most salient insight—namely, that IP’s “incentive” function is separable from its “allocation” function. Specifically, the “incentive” function refers to the market-based financial reward provided to innovators for producing an innovation (and here I elide the distinction between R & D-based “inventions” and commercialized “innovations”). The “allocation” function concerns the payment of a proprietary price by consumers (and intermediaries) to access innovations covered by IP rights. Continue reading "Decoupling Intellectual Property’s Incentive and Allocation Functions"

WP to Twitter Test post

Beth Tucker Long

Beth Tucker Long

As more and more states legalize physician aid in dying, it appears that the acceptability of aid in dying turns on three critical requirements—that the patients be competent to make medical decisions, that they be terminally ill, and that they self-administer the lethal dose of medication. From Oregon to Hawaii, every state that has legalized aid in dying has included these three criteria for eligibility. But a report from Canada on that country’s experience with aid in dying suggests that only two of the three requirements may be needed.

The three basic requirements help ensure that patients really are suffering from a serious illness that is incurable and irreversible. They also help ensure that the desire for aid in dying reflects a genuine expression of self-determination rather than the irrational choice of someone suffering from mental illness. Controversial cases of aid in dying have involved patients who were no longer able to express their wishes or who appeared to need psychiatric care. Continue reading "WP to Twitter Test post"

Jotwell: Zeta-Section 2018-08-20 12:39:07

Despite the fact that bisexuals are, by most counts, the largest sexual minority group in the United States, they remain woefully under-researched and under-theorized. This invisibility in the realm of research and scholarship may be tied to the fact that bisexual programs and organizations receive only a minuscule amount of funding compared to either gay or lesbian organizations. As one study noted, over a forty-year period, bisexual programs and organizations received less than 0.3% of the funding awarded to their gay or lesbian counterparts. See Anthony Bowen, Forty Years of LGBTQ Philanthropy: 1970–2010, 33 (2012). Furthermore, bisexuals face alarming physical and mental health disparities—including higher levels of mood and anxiety disorders and of suicidal ideation—compared to individuals of other sexual orientations, which may well be a consequence of the fact that bisexuality is stigmatized by both heterosexual and homosexual communities.

This background of invisibility and stigmatization helps illustrate the importance of Brian Dodge et al.’s Attitudes Toward Bisexual Men and Women Among a Nationally Representative Probability Sample of Adults in the United States, published in the journal PLoS ONE. The article—and the study on which it is based—fills an important gap in the existing research on bisexuality as to prevailing societal attitudes toward bisexuals and the persistence of common stereotypes of this group, despite the considerable advances in societal attitudes towards gays and lesbians.  Continue reading "Jotwell: Zeta-Section 2018-08-20 12:39:07"

Should the Right to Aid in Dying Include a Right to Euthanasia?

As more and more states legalize physician aid in dying, it appears that the acceptability of aid in dying turns on three critical requirements—that the patients be competent to make medical decisions, that they be terminally ill, and that they self-administer the lethal dose of medication. From Oregon to Hawaii, every state that has legalized aid in dying has included these three criteria for eligibility. But a report from Canada on that country’s experience with aid in dying suggests that only two of the three requirements may be needed.

The three basic requirements help ensure that patients really are suffering from a serious illness that is incurable and irreversible. They also help ensure that the desire for aid in dying reflects a genuine expression of self-determination rather than the irrational choice of someone suffering from mental illness. Controversial cases of aid in dying have involved patients who were no longer able to express their wishes or who appeared to need psychiatric care. Continue reading "Should the Right to Aid in Dying Include a Right to Euthanasia?"

The GDPR’s Version of Algorithmic Accountability

Lilian Edwards and Michael Veale, Slave to the Algorithm? Why a ‘Right to an Explanation’ is Probably Not the Remedy You are Looking For, 16 Duke L. & Tech. Rev. 18 (2017), available at SSRN.

Scholarship on whether and how to regulate algorithmic decision-making has been proliferating. It addresses how to prevent, or at least mitigate, error, bias and discrimination, and unfairness in algorithmic decisions with significant impacts on individuals. In the United States, this conversation largely takes place in a policy vacuum. There is no federal agency for algorithms. There is no algorithmic due process—no notice and opportunity to be heard—not for government decisions, nor for private companies’. There are—as of yet—no required algorithmic impact assessments (though there are some transparency requirements for government use). All we have is a tentative piece of proposed legislation, the FUTURE of AI Act, that would—gasp!—establish a committee to write a report to the Secretary of Commerce.

Europe, however, is a different story. The General Data Protection Regulation (GDPR) went into direct effect on EU Member States on May 25, 2018. It contains a hotly debated provision, Article 22, that may impose a version of due process on algorithmic decisions that have significant effects on individuals. For those looking to understand how the GDPR impacts algorithms, I recommend Lilian Edwards’ and Michael Veale’s Slave to the Algorithm? Why a ‘Right to an Explanation’ is Probably Not the Remedy You are Looking For. Edwards and Veale have written the near-comprehensive guide to how EU data protection law might affect algorithmic quality and accountability, beyond individualized due process. For U.S. scholars writing in this area, this article is a must-read. Continue reading "The GDPR’s Version of Algorithmic Accountability"

Prison Labor Through the Lens of International Trade

Lan Cao, Made in America: Race, Trade, and Prison Labor, available at SSRN.

Twenty years ago this September, over 3500 activists gathered in my home town of Berkeley, California, for a conference entitled “Critical Resistance: Beyond the Prison Industrial Complex.” Their purpose was to reject outright the project of criminal justice reform and to call instead for the complete abolition of prisons, jails, and other human cages.

Central to the argument for prison abolition is the notion that we law teachers mislead our students when we teach our students that the purpose of prisons and jails is to effect retribution, rehabilitation, incapacitation, and deterrence. Abolitionists argue (as do many contemporary academics) that incarceration is terrible at preventing and punishing criminality. Rather, prison responds to deeper political and economic needs. From a political perspective, the carceral system serves the purpose of social control: it expresses racism and helps produce “race;” it helps manage “surplus” populations made economically marginal by globalization and automation of production; and it establishes a new template for governance in the wake of the perceived failures of the 1960s welfare state.

Abolitionists often argue that prison serves an economic function as well. For example, Critical Resistance member Angela Davis says of the 1980s mass incarceration boom,

[A]s the U.S. prison system expanded, so did corporate involvement in construction, provision of goods and services, and use of prison labor. Because of the extent to which prison building and operation began to attract vast amounts of capital – from the construction industry to food and health care provision – in a way that recalled the emergence of the military industrial complex, we began to refer to a “prison industrial complex.”

Many contemporary scholars have offered evidence and argument to support abolitionists’ political theory of the carceral state—Michelle Alexander, Loïc Wacquant, Jonathan Simon, Marie Gottschalk, and others come to mind. But the assertion that a vast “prison industrial complex” (hereafter PIC) profits from incarceration is much less well supported by the evidence. Prisons and jails look much more like zones of “dead capital,” in Ruth Wilson Gilmore’s phrase: prisoners languish rather than work, new facilities fail to produce promised community jobs, and private prisons remain a relatively small part of the carceral system (although attorney general Jeff Sessions has recently given them a thumbs-up to expand). In Made in America: Race, Trade, and Prison Labor, however, Lan Cao provides some intriguing support for the economic part of the abolitionist case. Continue reading "Prison Labor Through the Lens of International Trade"

Why Military Justice Doesn’t Get Enough Academic Attention

The military justice system receives embarrassingly little attention from the legal academy in general and from legal scholarship in particular. Part of that may be the Supreme Court’s fault; it has been 35 years since Congress gave the Court direct appellate jurisdiction over the Court of Appeals for the Armed Forces (“CAAF”), the Article I court that sits atop the court-martial system. In that time, the Court has taken ten cases from CAAF—almost all of which, including Ortiz from this Term (which I argued on behalf of the Petitioner), have involved structural questions about the jurisdiction of military courts, the appointments of military judges, or both. There are compelling reasons why the Justices can and should take more (and more substantive) cases from CAAF, but there are important limits on their power to do so. Under current law, CAAF has discretion to choose which cases it hears (it has mandatory jurisdiction only in capital cases and those referred to CAAF by service-branch Judge Advocates General), and the Supreme Court can grant certiorari only if CAAF itself reviewed a court-martial appeal. As a result, a direct constitutional challenge to a criminal conviction cannot get to the Supreme Court if it arises from a court martial that CAAF does not review—the only context in the entire federal system today in which that is true. And as I have argued elsewhere, it is not because these cases are unimportant. Instead, “there are plenty of cases that the Court can take from CAAF but doesn’t, and there are even more cases that it can’t take but otherwise should.”

But the dearth of Supreme Court attention to the military justice system hardly explains the dearth of scholarship about it. After all, the Court has decided exactly one case arising out of the Guantánamo military commissions since they were established in November 2001, which have produced exactly eight convictions, all or parts of five of which have not survived appeal. Yet the pages of law reviews and legal monographs are replete with detailed analyses of the various disputes arising from those proceedings. Instead, the best that can be said about the paucity of good military justice scholarship is that, for whatever reason, there is not the same interest among non-military lawyers in the myriad substantive, procedural, and evidentiary issues that arise in the court-martial system. This is true even though that system has (1) increasingly focused its work on offenses that look less and less like the classic military offenses subjected to military justice at the Founding and that therefore increasingly raise legal questions of general applicability; and (2) recently undergone some of the most important and sweeping reforms since the enactment of the Uniform Code of Military Justice (UCMJ) in 1950. Instead, almost all of the best military justice scholarship these days has come from military lawyers—such as Captain Brittany Warren’s 2012 Military Law Review article.

The latest example is a 2016 article by Rodrigo M. Caruço, a Captain and lawyer in the U.S. Air Force Judge Advocate General’s corps, which offers a quantitative and qualitative assessment of the role of CAAF within the military justice system. As Caruço documents, CAAF both is, and sees itself as, “the supreme court of the military judicial system,” which is why Congress created its predecessor as part of the UCMJ. But rather than act like a “court of last resort,” CAAF “acts as an intermediate error-correction court…far too often.” Even though CAAF only conducts plenary review of approximately 40 convictions per year, Caruço’s quantitative analysis suggests that somewhere between half and 90% of its decisions in such cases entail little more than modest error correction. And because of the aforementioned limits on the Supreme Court’s appellate jurisdiction, the net effect is to dramatically reduce the incidence of “law declaration” within and without the military justice system. Instead, the overwhelming majority of cases (and issues) within the military justice system get no further than the intermediate appeals courts—the service-branch courts of criminal appeals—which themselves dispense of most appeals summarily. Continue reading "Why Military Justice Doesn’t Get Enough Academic Attention"

The Human Side of Markets

Too often when discussing matters of markets and finance, policymakers and scholars lose focus of the basic fact that people are at the core of markets and finance. It is people who move markets. It is people who generate supply and demand. It is people who need financing—for homes, for investments, for education, for healthcare, and other life decisions. Behind the faceless reams and terabytes of data are people who make up the fuels and gears of the marketplace. Behind the powerful models and promising technology that frequently dominate the contemporary financial markets are people. Properly recognizing the fact that people are at the heart of markets and finance is one of the critical keys to better understanding and harnessing the power of markets and finance.

Two illuminating new books, one by a legal scholar and one by a financial economist, delve into different noteworthy aspects of the human side of markets. Professor Mehrsa Baradaran of the University of Georgia School of Law recently published The Color of Money: Black Banks and the Racial Wealth Gap, a book that examines the long-lasting effects of racism, markets, and regulation on Black communities in the United States; and Professor Andrew Lo of the Massachusetts Institute of Technology’s Sloan School of Management recently published Adaptive Markets: Financial Evolution at the Speed of Thought, a book that offers a new and more human-oriented framework for thinking about markets. Each book is distinct in their areas of focus and scope, but they both share a fundamentally human-centered perspective about the promising and perilous roles of people in market and financial decisions. Continue reading "The Human Side of Markets"