Monthly Archives: May 2014

It is Not Open Season on Men

“Why should women live in anticipatory dread and hypervigilence?” Elizabeth Sheehy writes in the concluding chapter of her important new book Defending Battered Women on Trial: Lessons from the Transcripts. Instead, she argues, the legal system should “shift the risk of death to those men whose aggressions have created such dehumanizing fear in their female partners”.

In Defending Battered Women on Trial: Lessons from the Transcripts, Sheehy offers a compelling and startling account of the criminal justice system’s failure to protect women from the men who batter them. She begins the book by situating the issue in its historical legal context. Making the work accessible to an audience much broader than just those well-versed in criminal law, Sheehy provides the reader with ample background to understand the legal context in Canada both prior to and in the years following the Supreme Court of Canada’s 1990 recognition of battered women syndrome in R. v Lavallee. Continue reading "It is Not Open Season on Men"

Intermediary Trademark Liability: A Comparative Lens

Graeme B. Dinwoodie, Secondary Liability for Online Trademark Infringement: The International Landscape, 36 Colum. J.L. & Arts (forthcoming 2014), available at SSRN.

Although we live in a global, interconnected world, legal scholarship – even scholarship about the Internet – often focuses on domestic law with little more than a nod to developments in other jurisdictions.  That’s not necessarily a bad thing; after all, theoretically robust or historically thorough works can rarely achieve their goals while surveying the landscape across multiple countries with disparate traditions and laws.  But as a student of U.S. law, I appreciate articles that explain how other legal systems are addressing issues that perplex or divide our scholars and courts.  Given the tumult over intermediary liability in recent years, comparative commentary on that topic has special salience.

In this brief (draft) article, Graeme Dinwoodie explores both structural and substantive differences in how the United States and Europe approach intermediary trademark liability in the Internet context.  To an outsider, the European web of private agreements, Community Directives, CJEU opinions, and sundry domestic laws can appear daunting and sometimes self-contradictory.  Dinwoodie puts them all into context, offering a coherent explanation of the interaction between Community law, member state law, and private ordering, and situating the overall picture within a broad normative framework.  And he contrasts that picture with the one emerging through common law in the United States.  The result is a readable, informative study of two related but distinct approaches to intermediary trademark law. Continue reading "Intermediary Trademark Liability: A Comparative Lens"

The Public-Private Enforcement Regime: Does the False Claims Act Work?

Pharmaceutical companies represent the poster-child defendant for whether public-private enforcement works. While subject to FDA prosecution for violation of the Food Drug Cosmetic Act, they more often face qui tam suits by private relators, usually but not exclusively for off-label promotion. DOJ may or may not choose to intervene, but if it does jump in, the Department operates with the advantage of a 90% success rate (frequently as a result of settlement because the companies can’t risk debarment). Before the case is concluded, it may have been joined by some combination of the Veterans Administration, state Medicaid Fraud Units or relators under mirror state-law False Claims Acts for recovery of Medicaid dollars, as well as by private insurance companies under RICO, and states’ attorneys general under consumer protection laws. The Department of Health and Human Services Office of Inspector General (HHS OIG) will likely be at any settlement negotiations to hammer out a 100-page Corporate Integrity Agreement (CIA). If the company’s activities are really offensive, DOJ may throw in a mail or wire fraud charge. When the fines are announced, and the CIA is signed, shareholders will file a derivative suit against the directors seeking reimbursement, claiming that if they weren’t asleep on the job the company would have avoided what often exceed billion dollar fines. And that’s just for off-label activity. The enforcement regime currently policing the life sciences industry is mind-bogglingly complex, representing a new and clearly unimagined era in “public-private enforcement.”

A must-read for health academics is David Freeman Engstrom’s trilogy of articles about public-private enforcement, focusing specifically on the False Claims Act (FCA), the “gold standard” of hybrid enforcement: Harnessing the Private Attorney General: Evidence from Qui Tam Litigation, found in Columbia Law Review, Public Regulation of Private Enforcement: Empirical Analysis of DOJ Oversight of Qui Tam Litigation Under the False Claims Act, appearing in Northwestern Law Review, and Agencies as Gatekeepers, published in Yale Law Journal. Unsurprisingly, healthcare cases comprise a disproportionate share of FCA cases, thereby making Engstrom’s work extremely important to the health law academy. These articles represent a breath-taking amount of work, providing a theoretical framework from which to analyze the balance and effectiveness of a public-private enforcement regime as well as empirical data to assess both fans’ and critics’ perspectives of FCA prosecution as well as relators’ and DOJ’s roles. Continue reading "The Public-Private Enforcement Regime: Does the False Claims Act Work?"

Free for the Taking (or Why Libertarians are Wrong about Markets for Privacy)

Have you heard any of these arguments lately? Consumers willingly pay for the wonderful free services they enjoy using the currency of their personal information. We can’t trust surveys that say that consumers despise commercial tracking practices, because the revealed preferences of consumers demonstrate that they are willing to tolerate tracking in return for free social networking services, email, and mobile apps. If privacy law X were implemented, it would kill the free Internet (or more immodestly, the Internet).

Two recent articles take on all of these arguments and more in the context of the privacy of information collected online by private corporations. The articles are similarly entitled (before their subtitle colons), Free and Free Fall. Both are written by excellent interdisciplinary scholars, Free by Chris Hoofnagle and Jan Whittington and Free Fall by Kathy Strandburg. These articles, individually but even more taken together, present a thorough, forceful, and compelling rebuttal to pervasive libertarian paeans to the supposed well-functioning online market for personal information. Continue reading "Free for the Taking (or Why Libertarians are Wrong about Markets for Privacy)"

What Comes After Mass Incarceration?

The “grand social experiment” that is hyper-incarceration in the United States is coming to an end, and we need to be ready to reinvest correctional resources in more community-oriented programs. That, in a nutshell, is the message of The Punishment Imperative: The Rise and Failure of Mass Incarceration in America, by Todd Clear and Natasha Frost, well-known criminologists who have been writing about punishment practices for decades. Many of the general points made in this book will be familiar to criminal justice lawyers and professors who have paid any attention to the literature on punishment. But the book’s 200 pages of detail and its prescriptions will be intriguing even to those who know the field.

Here is the authors’ summary of research about the effects of this country’s four-decade obsession with putting increasing numbers of people behind bars for increasingly longer periods of time (Pp. 152–53):

  • “Longer prison sentences do not deter the people who receive them from crime; there is almost no relationship between the length of a prison stay and the likelihood of recidivism.”
  • “Going to prison does not deter; people who receive probation are no more likely (and may be slightly less likely) to recidivate.”
  • “Incapacitation effects of prison are small, primarily due to replacement.”
  • “Rehabilitation programs offered in prison are less effective than when they are offered in the community.”
  • Victims are no happier with the (more punitive) criminal justice system today than they were forty years ago.
  • Expanding the prison system has contributed to intergenerational criminality, broken families, problems in school, sexually transmitted diseases, teenage births, anti-conventional attitudes, depleted labor markets, racial inequality and crime.

In short, government policies such as truth-in-sentencing, mandatory minima, three-strikes laws, increased collateral consequences, and imprisonment after technical parole violations have not made communities safer and probably have aggravated the crime problem. Continue reading "What Comes After Mass Incarceration?"

Trans-Substantivity Beyond Procedure

David Marcus, Trans-Substantivity and the Processes of American Law, 2013 B.Y.U. L. Rev. 1191.

Whether the Federal Rules of Civil Procedure should be trans-substantive (as they ostensibly are) has been hotly debated since the Rules’ inception.  One wonders, after three-quarters of a century, if another article examining this central tenet of the American civil litigation system can make a unique contribution to the literature. David Marcus’s recent article, Trans-Substantivity and the Processes of American Law, demonstrates that the answer is “yes.”  Building on his excellent 2010 article, The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure, Marcus challenges proceduralists to broaden their examination of trans-substantivity beyond the confines of civil procedure law.

This article examines the principle of trans-substantivity in the context of what Marcus calls “process law” —which includes not only procedural law, but administrative and interpretive law as well.  Marcus uses the Supreme Court’s 2009 decision in Ricci v. DeStefano to illustrate how the Court may draw upon federal civil procedure, federal administrative law, and statutory interpretation doctrine in a single case.  He draws upon this example to encourage scholars not to cabin their understanding of the pros and cons of trans-substantivity to a single species of process law.  The interrelationship and overlap of these doctrines are significant. Continue reading "Trans-Substantivity Beyond Procedure"

New Law School Fields of Study: Compliance and Risk Management

Geoffrey Miller, The Law of Governance, Risk Management, and Compliance (Wolters Kluwer Law & Business (Aspen Casebook Series) 2014).

I would not normally think of a casebook as appropriate for JOTWELL. It is the particular fit between a teacher’s ambitions and the material in the casebook that makes a teacher like the casebook, perhaps even a lot. A good casebook is a shell that the teacher and students can inhabit and learn to carry. It is not a well-formed argument of general applicability, such as would be found in the work that JOTWELL generally applauds.

Yet, in JOTWELL, I commend to your attention Geoffrey Miller’s The Law of Governance, Risk Management, and Compliance. This casebook is a convincing argument that compliance and risk management are fields of study appropriate for legal education. It expands the law school field of corporate governance from its current restricted view, discussing shareholders and boards, to one that encompasses all the actors within and without corporations who have an impact on compliance. Continue reading "New Law School Fields of Study: Compliance and Risk Management"

Looking for Mr. (or Ms.) Rights

Emily J. Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (Princeton University Press, 2013).

I am on the prowl. It’s 1 a.m. and I’ve been looking for Mr. (or Ms.) Rights all night. I’ve been hanging out in every Article of the Constitution of the United States and I have been deep into the pages of the United States Reports and the Federal Reporter. Oh, I have found plenty of negative rights, like the right to be free from cruel and unusual punishment and the right not to be twice placed in jeopardy for the same criminal act. But I need something more positive in my life. I want those things that make a person happy, like medical care, clean air and water, good working conditions, and a good education for my kids. I want positive rights.

Even though I turn on my hundred-watt charm, the federal courts keep turning me down. Then the person next to me slaps a book on the bar and says, “Take a look at this. I think it’ll get you what you want—or at least what you need.” Continue reading "Looking for Mr. (or Ms.) Rights"

The APA as “Superstatute” and What Does That Mean?

Kathryn E. Kovacs, Superstatute Theory and Administrative Common Law, 90 Indiana L. J. (forthcoming 2014), available at SSRN.

Most administrative law aficionados would think of the Administrative Procedure Act as a “superstatute,” but they might not all focus on what that might mean. Kathryn Kovacs has undertaken to tease the meaning of the APA as a superstatute and address the implications of such a characterization. They might not be what you would imagine.

Professor Kovacs begins by asking to what extent is administrative law “common law.” The APA is, of course, a statute, but it is viewed as largely codifying the then-existing common law. Moreover, after its passage courts continued to develop a common law of administrative law both to flesh out the ambiguous provisions of the APA and quite clearly to add on to them. While Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), may have drawn the curtain on new judicial inventions to administrative common law, it did not repeal those that had become well ingrained in the case law. Professor Kovacs focuses on two such inventions that have no basis in the text or history of the APA: deference to the military in matters subject to the APA and the ripeness doctrine. Continue reading "The APA as “Superstatute” and What Does That Mean?"

Internalizing The Costs Of Employment Law Violations

David Weil, The Fissured Workplace (Harvard University Press, 2014).

David Weil’s new book on the fragmenting of internal labor markets in many American industries, The Fissured Workplace, should be read by all who wish to understand how the challenges to enforcing laws designed to protect American workers have become greater as the institutional structures and processes through which American businesses produce and deliver goods and services have continued to evolve. This book should be read not primarily because President Obama last year nominated Weil, a Boston University School of Management Professor, to head the Wage and Hour Division of the Department of Labor or because the book includes several chapters stressing the importance of strategic public enforcement and the role of unions and other non-governmental worker advocacy groups in changing workplace culture. Rather, the primary value of the book is its rich description of the variant ways by which successful American businesses that sell branded goods and services have externalized the costs of employment law violations by delegating to other businesses the responsibility for providing and supervising the labor input for their branded products. This description supports the book’s most important recommendation, a recommendation that would require—beyond stronger enforcement of current laws—a re-internalization of the costs of employment law violations to those businesses that monitor and control the production of goods and services sold under their brands.

Weil describes three kinds of externalization: subcontracted workplaces, outsourced supply chains, and franchised retail operations. For each, he provides examples of lead businesses that use externalization to concentrate on their core competencies of branded product design, development, and marketing, as well as to escape certain costs, including labor costs, that would have to be incurred without externalization. Weil explains how externalization has been facilitated by technological developments that enable lead businesses to protect differentiated brands, and associated high profit margins, through close monitoring and coordination of the quality and timely production of branded goods and services. Modern computer-based technology provides this brand protection without some of the higher labor costs of non-union, as well as unionized, large internal labor markets. Furthermore, as long as the lead company delegates actual control over a subcontractor’s or franchisee’s workforce to the subcontractor or franchisee, it can escape at least some of the costs of compliance with employment laws like FLSA and OSHA, in addition to potential workers’ compensation liability. There is good reason to think that subcontractors and franchisors often cannot pass on employment law compliance costs to the dominant branding companies with which they are in business. While subcontractors’ and franchisors’ reduced concern with reputational costs and their tight profit margins encourage their non-compliance, their relatively small size and less permanent work forces make enforcement less likely. Further, lead companies with differentiated brands generally can transfer their business to competing contractors or other potential franchisees. Continue reading "Internalizing The Costs Of Employment Law Violations"

Patching Things Up

Linda Radzik, Tort Processes and Relational Repair in Philosophical Foundations of the Law of Torts (John Oberdiek ed., 2014).

Imagine you are trying to write a mission statement for tort law. What aspiration would you put on paper? Tort theorists will find Linda Radzik’s answer at once familiar and foreign. In Tort Processes and Relational Repair, Radzik suggests that tort should pursue corrective justice. But she rejects the familiar Aristotelian conception of corrective justice, on which wrongdoing calls for compensation that offsets the harm caused. Instead, she suggests that corrective justice requires reconciliation. According to Radzik, tort should aim to repair the relationships ruptured by wrongdoing, rather than the harms that result from it.

The problem with the Aristotelian picture of corrective justice, Radzik says, is that it mistakes what’s wrong with wrongdoing. If you think that corrective justice consists in compensation for harm done, Radzik explains, then you are apt to think that what is wrong with wrongdoing is that it damages something that belongs to the victim, or deprives her of something she is entitled to have. But, as Radzik points out, there are wrongs that do not result in harms, and harms that did not result from wrongs, so it hardly seems like harm could be the essence of wrongdoing. Continue reading "Patching Things Up"

“Take your stinking paws off [my property], you damned dirty [judges and legislators]!”*

Daniel B. Kelly, Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications, 82 Fordham L. Rev. 1125 (2013).

Professor Daniel B. Kelly’s well-researched and carefully reasoned article discusses the traditional justifications for restricting testamentary freedom, not only from a legal perspective, but also an economic or functional one. The article first discusses the structure and goal of American succession law and the relevance of distinguishing between the ex ante perspective versus the ex post perspective. Next, the article explains the economic justifications for restricting testamentary freedom. Finally, the article critically analyzes the legal limitations on testamentary freedom.

Professor Kelly begins by noting the fundamental principle of American succession law—testamentary freedom. One justification for the law generally deferring to owners of property in deciding how to utilize or transfer their property is that it promotes social welfare. An advantage of testamentary freedom is that it aligns an individual’s “incentive to work, save, and invest with what is socially optimal,” which would facilitate long-term capital accumulation and productivity. Another advantage of testamentary freedom is that, in many situations, the testator is likely to be better informed than legislators or judges on how best to distribute the testator’s property. Finally, Professor Kelly notes that testamentary freedom may benefit familial relationships. However, even with all these advantages, a system based on testamentary freedom does not always coincide with the overall goal of advancing social welfare, at least in part because the law sometimes fails to incorporate the ex ante perspective. Consequently, the issue arises of when should the courts facilitate testamentary freedom, even though doing so permits a testator to assert “dead hand” control, and when should the courts restrict testamentary freedom, even though doing so means intervening in the testator’s disposition of property. Continue reading "“Take your stinking paws off [my property], you damned dirty [judges and legislators]!”*"

Civilizing Civil Detention

César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA L. Rev. (forthcoming 2014), available at SSRN.

When the news came out that nearly half a million noncitizens now find themselves in immigration detention, it struck me that this may be the most invisible civil-rights issue of our era. Immigration Detention as Punishment, by César Cuauhtémoc García Hernández, offers a compass through this tricky and contested terrain.

Formally, immigration detention is a civil status, an administrative adjunct to deportation. Detained noncitizens have lesser procedural protections against unnecessary or excessive detention than the criminal justice system provides to pre-trial detainees. Yet, immigration detention functions to deprive noncitizens of social and physical liberty in the same way as criminal incarceration. The government detains noncitizens in the same jails and prisons as criminal defendants and the convicted.  The lives of noncitizens in detention are regulated in the same way as the lives of those whose confinement results from the criminal justice system. Continue reading "Civilizing Civil Detention"

The Importance of Context

Lawyers in Practice: Ethical Decision Making In Context (Leslie C. Levin & Lynn Mather eds., 2013).

Context matters to lawyers. The representation of clients, advice-giving, advocating, drafting, and negotiating—indeed, the very exercise of professional judgment—all take place in a context that shapes and informs lawyers’ decision-making. Context, however, plays only a minimal role in the American Bar Association’s Model Rules of Professional Conduct (“Rules”). While some comments to the Rules often provide contextual examples, an underlying theme of the Rules is their universal appeal: the Rules are explicitly meant to be a one-size-fits-all model for all lawyers, irrespective of context. Some argue that the universal nature of the Rules renders them conceptually anachronistic and practically useless, and have called for the promulgation of rules of conduct more in tune with the increasingly diverse realities practicing lawyers face. Such a contextual critique consists of two steps. The first is empirical. Promulgating rules that meaningfully address the realities that lawyers face in practice requires an empirical understanding of these very realities. The second step is normative. Once empirical evidence is gathered, one has to decide what to make of it and whether and how to incorporate it into the Rules.

Lawyers in Practice: Ethical Decision Making in Context, a new volume of empirical work edited by Leslie Levin and Lynn Mather, significantly contributes to this universal-contextual discourse. It consists of sixteen excellent chapters examining in detail lawyers’ decision-making processes across thirteen different legal contexts including family, immigration, and personal injury, as well as corporate, securities, and IP law. “[T]he organized bar and many law schools,” write the editors, “continue to focus their discussion of legal ethics primarily on bar rules of professional conduct. That approach, this book suggests, is a serious mistake.” (P. 4.) Such a focus on the Rules is a mistake, assert Levin and Mather, because it ignores the importance of context: “[t]he chapters in this book look at lawyers’ decisions from the bottom up—that is, from the perspective of lawyers in practice—and not from top-down rules that often reveal more about the aspirations of the profession than the reality.” (P. 11.) “We hope,” conclude the editors, that “this book will help narrow the gap between what sociological scholars are learning about lawyers’ ethical decision making in context and the legal profession’s approach to the teaching and regulation of lawyers.” (P. 21.) Continue reading "The Importance of Context"

Guestworkers In Postwar America: A New History

In the past decade, there has been an explosion of wonderful work on the history of immigration and citizenship law. Cindy Hahamovitch’s No Man’s Land ranks with work of Mae Ngai, Daniel Kanstroom, Kelly Lytle Hernández, and others.  The book is essential reading for historians of twentieth century immigration.  It offers a brilliant account of the forces that have shaped modern immigration law and of the way immigration law categories have acquired meaning “on the ground.”

No Man’s Land is a meticulous and detailed study of the post-World War II agricultural guest-worker program as it applied to Jamaican workers.  Immigration historians have long been aware that immigration is a complex story of both “push” and “pull” factors, developments in the home country and those in the receiving country.  However, most historians focus on just one part of this dyad and make formulaic or empty gestures in the direction of the other.  Not Hahamovitch.  No Man’s Land pays serious attention to changing conditions in both Jamaica and the United States.  The book operates on multiple scales.  It situates the Jamaican guest-worker program in the larger geopolitical context of World War II and the Cold War; pays attention to horse-trading between the United States and Jamaica over the terms on which Jamaican workers would work in the United States; examines in considerable detail the conditions under which Jamaicans worked in different parts of the United States; discusses the efforts of American lawyers who sought to prevent exploitation of Jamaican guest-workers; and even focuses on the correspondence between Jamaican workers and their families back in Jamaica. Continue reading "Guestworkers In Postwar America: A New History"

A Truly Different Understanding of Law and Morality

Mark Greenberg, The Moral Impact Theory of Law, 123 Yale L.J. 1288 (2014).

In legal philosophy, as in many scholarly areas, there is a “good and original” problem: the work that is very good tends not to be particularly original (usually being rather a careful modification of existing ideas), and the work is truly original tends not be very good at all.  There are occasional exceptions, and one of these in the area of legal philosophy is the work of Mark Greenberg, who in recent years has developed, through a series of articles, a significant, and significantly novel approach to the nature of law.  As will be described, Greenberg’s theory is distinctive and refreshingly heretical.

Greenberg’s approach is in sharp contrast with what he calls “the Standard Picture,” a view he believes to be assumed or accepted, but rarely argued for, in connection with most of the currently popular theories of the nature of law.  Under the Standard Picture, when legislators enact a statute, they directly and straightforwardly add to our law(s).  At the same time, as Greenberg points out, lawyers, legal theorists, and law students – and everyone else who has looked seriously at the process of statutory interpretation in actual cases – know that the way statutes add to the law(s) is not that direct or that clear.  This is shown indirectly in the way that competent judges and practitioners, acting in good faith, often disagree about the legal effects of a statute (in application to actual or hypothetical sets of facts), with disagreements often occurring at a basic level (e.g., should we focus on the plain meaning of the statute’s text, or should we focus on what the lawmakers intended to do).  As the article points out, judges who disagree about statutory interpretation rarely come equipped with arguments about why some factors are relevant and others are not, or why some factors should be given greater weight than other (relevant) factors.  As Greenberg indicates, any such argument would likely be in terms of why – and when — the actions of legal officials affect our moral rights and duties. Continue reading "A Truly Different Understanding of Law and Morality"

Open and Close Innovation Regimes: An Experiment on Institutional and Organizational Design

Kevin J. Boudreau & Karim R. Lakhani, How Disclosure Policies Impact Search in Open Innovation, Harv. Bus. Sch. Tech. & Operations Mgmt. Working Paper (2013).

One of the central tensions in the institutional design of innovation regimes is the trade-off between incentives and disclosure. Innovation systems, including intellectual property systems, are created to optimize creative output by balancing ex ante incentives for initial creators with ex post disclosure of the innovation to follow-on creators and the public. According to accepted theory, the more rigorous the disclosure—in terms of when and how it occurs—the weaker the incentives. But a fascinating new experiment by Kevin Boudreau and Karim Lakhani suggests that differences in disclosure regimes can affect not just the amount of innovation but also the kind of innovation that takes place.

Boudreau and Lakhani set up a tournament on the TopCoder programming platform that involved solving a complicated algorithmic task over the course of two weeks. All members of the community were invited to participate in the tournament, and contest winners would receive cash prizes (up to $500) and reputational enhancement within the TopCoder community. The coding problem was provided by Harvard Medical School, and solutions were scored according to accuracy and speed. Importantly, the top solutions in the tournament significantly outperformed those produced within the medical school, but that’s a different paper. Continue reading "Open and Close Innovation Regimes: An Experiment on Institutional and Organizational Design"