Yearly Archives: 2016
Jul 8, 2016 Tom SimmonsLexElder Law
Rebecca Dresser’s A Fate Worse than Death? article raises profound questions. Scientists have known for some time that certain biomarkers (specifically, elevated tau and beta-amyloid levels) correlate with elevated risks for Alzheimer’s disease. Soon, patients may learn about their own increased probabilities for developing this deadly and dehumanizing disease. This knowledge might cause these patients to adopt advance directives that reject spoon-feeding upon the arrival of advanced dementia. Some preemptive suicides may result. Dresser considers whether we should endorse or recoil from these responses.
Dresser’s analysis anticipates a time when biomarker information relative to Alzheimer’s disease risks is routinely made available to asymptomatic patients. Whether to disclose Alzheimer’s disease biomarker results is still controversial. The tests are imperfect. Dresser examines a study of 311 participants that revealed an eleven to twenty-six percent chance of developing Alzheimer’s disease within five years based on elevated tau and beta-amyloid levels. Many individuals with biomarkers for Alzheimer’s never develop Alzheimer’s (perhaps due to mortality from other causes, perhaps due to other protective factors). Scientists still lack a clear understanding of the relationship between neuropathological patterns and the clinical occurrence of Alzheimer’s disease. Because the tests for pre-symptomatic Alzheimer’s remain unproven, some experts assert that the tests should be deployed only in a research context. With patient demand, however, more and more people are likely to learn their biomarker results in the years to come. Their likely responses lead us to critical legal questions. Continue reading "How to Die: Biomarker Adjuncts to Death Accelerants"
Jul 7, 2016 Ted SichelmanIntellectual Property Law
When a patent holder does not manufacture or sell a product, it cannot seek “lost profits” in the event the patent is infringed. Rather, courts must determine a “reasonable royalty”—generally, what an infringer hypothetically would have paid if the patent holder had licensed the patent, assuming it was valid and infringed, in the private market before the infringer began its unlawful acts. Such market rates are usually determined by examining other licenses for the patent-in-suit, or for patents sufficiently similar to the patent-in-suit.
In the brilliant article The Use and Misuse of Patent Licenses, Jonathan S. Masur unpacks what is often expressed but not suitably explained: that reasonable royalty determinations in the law of patent damages are substantially circular, leading to paradoxes and other conundrums that cannot easily be solved. The basic intuition is straightforward. Courts attempt to value patents in reasonable royalty determinations by looking to the market. Yet, market actors must bargain in the shadow of the law. Hence, a circularity. Continue reading "Patent Law’s Gordian Knot"
Jul 6, 2016 Roman HoyosLegal History
In Inventing the People (1988), Edmund Morgan famously argued that the doctrine, or “fiction” as he termed it, of popular sovereignty was invented in middle seventeenth-century England as Parliament and the king engaged in civil war. Initially, the idea that the people were the basis and purpose of government was not intended to overthrow the king, or the then-prevailing doctrine of the divine right of kings that connected king to God. It simply sought to place the king in proper relationship to government by resting his authority upon both God and the people. But the basic idea of popular sovereignty, that the people could “begin, change, and end governments,” had radical implications (Morgan, P. 59), which became real when Americans rediscovered popular sovereignty in the late eighteenth century to overthrow monarchy and create new republican governments based solely upon popular authority.
But while Morgan adverted to earlier thinking about the people, principally the sixteenth-century French monarchomachs (“king killers”), he did not give it sustained attention. He is not alone, of course. It is a curious thing that what is perhaps the master concept in Western constitutionalism has until recently received scarcely any attention. To the extent it has been examined, it is usually presented as both cause and consequence of late eighteenth-century revolutionary politics in America and France. Daniel Lee’s new book on popular sovereignty in early modern legal and political thought offers a corrective, and challenges us to rethink the nature and meaning of popular sovereignty as it emerged in the late eighteenth century, a point in a longue duree that he traces back to the Roman Republic. Continue reading "The People and Their Sovereignty in the Longue Duree"
Jul 5, 2016 Shu-Yi OeiTax Law
Diane Lourdes Dick,
U.S. Tax Imperialism in Puerto Rico, 65
Am. U. L. Rev. (forthcoming 2016), available at
SSRN.
Puerto Rico faces a host of public finance woes. It owes over $70 billion in public sector debt. On May 2, 2016, it missed a major debt payment to its Government Development Bank bondholders. Congress is currently considering legislation that will allow Puerto Rico to restructure its debts. Without debt restructuring, further defaults seem inevitable. Puerto Rico has attempted to use its tax laws to ease its public finance problems. However, in March, the United States District Court for the District of Puerto Rico ruled in Wal-Mart Puerto Rico v. Zaragoza-Gomez that an increased tax imposed by Puerto Rico on certain cross-border, related-party property transactions violated the U.S. Constitution and the Federal Relations Act. The court acknowledged that the tax was implemented to quickly raise revenue to ameliorate Puerto Rico’s fiscal challenges, but it struck down the tax nonetheless. As of this writing, Puerto Rico’s fiscal future remains uncertain.
Puerto Rico’s economic and fiscal condition and its tax policy are, of course, related, and the United States has played an important role in both. But what exactly is the United States’ economic relationship with Puerto Rico? What do U.S. tax and fiscal policies with respect to Puerto Rico tell us about that relationship? And how have these policies influenced the economic trajectory of the island? Tax aficionados may be broadly familiar with tax incentives for investment in Puerto Rico, but what deeper story lies beneath?
Diane Lourdes Dick takes up these questions in her article entitled U.S. Tax Imperialism in Puerto Rico. The article develops a theory of U.S. tax imperialism, which I understand to be a subset of economic imperialism, by detailing the ways in which U.S. tax policy has been used to control the economic trajectory of the territory for the benefit of the mainland. Continue reading "U.S. Tax Policy and Puerto Rico’s Fiscal History"
Jul 4, 2016 Felix MormannLexEnergy Law
Today’s electricity sector has little in common with the industry’s humble origins in the late 1800s, when small power plants located every ten blocks or so served nearby customers through a local grid. Nor does it share many commonalities with the heavily regulated, largely monopolized electricity sector of the 1930s, whose interstate grid prompted passage of the 1935 Federal Power Act. And yet, this more than eighty-year-old statute continues to define the requirements and scope of federal and, indirectly, state regulatory authority over today’s electricity sector. As deregulation and competitive markets, the rise of renewable energy, smart metering, and demand response transform the way electricity is generated, traded, transmitted, and used, regulators and courts are struggling to apply the Federal Power Act to a changing industry.
Earlier this year, the Supreme Court offered its views when, in Federal Energy Regulatory Commission v. Electric Power Supply Association, the Court recognized federal authority to regulate wholesale market operators’ compensation of demand response—temporary reductions in electricity consumption by end-users at times of peak demand. In his thoughtful article FERC’s Expansive Authority to Transform the Electric Grid, Professor Joel B. Eisen places FERC v. EPSA in historical context, proposes a set of principles to guide FERC’s regulation of rules and practices that affect rates in wholesale power markets, and applies these principles to a hypothetical carbon price added to fossil-fueled electricity. Continue reading "Empowering Federal Regulation for a Changing Electricity Sector"
Jul 1, 2016 James GrimmelmannTechnology Law
Works mentioned in this review:- Steven M. Bellovin, Matt Blaze, Sandy Clark & Susan Landau, Lawful Hacking: Using Existing Vulnerabilities for Wiretapping on the Internet, 12 Nw. J. Tech. & Intell. Prop. 1 (2014)
- Ahmed Ghappour, Searching Places Unknown: Law Enforcement Jurisdiction on the Dark Web, Stan. L. Rev. (forthcoming 2016), available at SSRN
- Elizabeth E. Joh & Thomas W. Joo, Sting Victims: Third-Party Harms in Undercover Police Operations, 88 S. Cal. L. Rev. 1309 (2015)
- Elizabeth E. Joh, Bait, Mask, and Ruse: Technology and Police Deception, 128 Harv. L. Rev. F. 246 (2015)
- Jonathan Mayer, Constitutional Malware (2015), available at SSRN
- Brian L. Owsley, Beware of Government Agents Bearing Trojan Horses, 48 Akron L. Rev. 315 (2015)
- Stephanie K. Pell & Christopher Soghoian, A Lot More Than a Pen Register, and Less Than a Wiretap: What the StingRay Teaches Us About How Congress Should Approach the Reform of Law Enforcement Surveillance Authorities, 16 Yale J.L. & Tech. 134 (2013)
Police carry weapons, and sometimes they use them. When they do, people can die: the unarmed like Walter Scott and Tamir Rice, and bystanders like Akai Gurley and Bettie Jones. Since disarming police is a non-starter in our gun-saturated society, the next-best option is oversight. Laws and departmental policies tell officers when they can and can’t shoot; use-of-force review boards and juries hold officers accountable (or are supposed to) if they shoot without good reason. There are even some weapons police shouldn’t have at all.
Online police carry weapons, too, because preventing and prosecuting new twists on old crimes often requires new investigative tools. The San Bernadino shooters left behind a locked iPhone. Child pornographers gather on hidden websites. Drug deals are done in Bitcoins. Hacker gangs hold hospitals’ computer systems for ransom. Modern law enforcement doesn’t just passively listen in: it breaks security, exploits software vulnerabilities, installs malware, sets up fake cell phone towers, and hacks its way onto all manner of devices and services. These new weapons are dangerous; they need new rules of engagement, oversight, and accountability. The articles discussed in this review help start the conversation about how to guard against police abuse of these new tools. Continue reading "Police Force"
Jun 30, 2016 Angela BanksLexImmigration
International human rights are often described as universal rights. The universality of this legal regime leads many people to view it as an appropriate resource for addressing the plight of undocumented migrants. Yet the legal protections provided within the international human rights regime are often unavailable to undocumented migrants, or the rights that are most important to them are not protected. International and immigration law scholars rarely acknowledge these limitations, which makes Professor Jaya Ramji-Nogales’ article such an important oorontribution. “The Right to Have Rights”: Undocumented Migrants and State Protection provides an excellent analysis of the limits of international human rights law in protecting undocumented migrants.
Two of the central challenges that undocumented migrants face are vulnerability within their states of residence due to their limited “recourse against exploitation due to fear of deportation” and “the rupture of family and community ties through deportation.” (P. 1050.) The rights to territorial security (by which Ramji-Nogales means the right to remain in one’s state of residence), family unity, and the absence of discrimination due to immigration status are important rights for addressing undocumented migrants’ central challenges. Continue reading "Undocumented Migrants and International Law"
Jun 29, 2016 Suzette M. MalveauxCourts Law
Scholars, lawyers, and litigants struggle to understand the class action landscape that has evolved over the past five decades and has sharply contracted more recently. Seminal rulings such as Wal-Mart v. Dukes and its progeny in the lower courts have sown division and analytical confusion over the meaning and normative value of this obstructionist shift in jurisprudence. In The Public Interest Class Action, David Marcus dives into this morass, examining one slice of this jurisprudential retrenchment and its varied implications—class action procedure in public interest litigation, litigation brought against government officials and agencies for injunctive relief.
Marcus’s focus on structural-reform cases against public actors illustrates how most of the policy concerns animating class certification retrenchment are unjustified, misplaced, and dangerous to enforcement of constitutional rights. Much of the academic critique has centered around the role of monetary interests in aggregation—a distortion and distraction for understanding the public interest class action. The casualties of this misalignment are vulnerable populations such as foster children, prisoners, and students with disabilities, who have historically successfully sought structural remedies through aggregate litigation. Marcus speaks directly to judges chewing on how to approach class-certification motions and counsels them to manage structural reform litigation, not destroy it. Marcus puts retrenchment advocates to their proof, concluding that they have failed to prove how public interest class actions pose policy problems that can be rectified by Rule 23 obstructionism. Continue reading "Saving the Public Interest Class Action by Unpacking Theory and Doctrinal Functionality"
Jun 28, 2016 Elizabeth JohCriminal Law
In criminal justice circles, “big data” is the new buzzword: police departments are experimenting with the application of computer algorithms to vast amounts of digitized data to predict the future geographic location of crimes, to identify those people likely to become involved in gun violence, and to assess future criminality for the purpose of setting bond amounts and determining sentences. It turns out, though, that algorithms have problems. They can reflect the biases and choices of the humans who create them. They can also be plain wrong.
Besides algorithms, there is a more basic problem. The data itself can contain countless mistakes, inaccuracies, and discrepancies. While the wrong address, the invalid warrant, and the mistakenly recorded conviction don’t sound like particularly new problems (they aren’t), they represent an urgent but overlooked issue in our information-dependent world. This data determines how the government distinguishes between the dangerous and the low-risk, those who should be arrested and those who should be left alone. However, as Wayne Logan and Andrew Ferguson point out in their insightful and important article, Policing Criminal Justice Data, this “small data” is too often dead wrong. To make matters worse, there is little incentive for government agencies—at any level—to care. Their discussion is a must-read for anyone interested in the increasingly important role of information distribution and control in criminal justice. Continue reading "Data Mistakes and Data Justice"
Jun 27, 2016 Ilya SominConstitutional Law
Cass Sunstein is one of America’s leading legal scholars. Both his work generally and his book about Star Wars specifically have attracted enormous attention from both academics and the general public. But one theme of his new book, The World According to Star Wars, highlights an area that is often neglected: the depiction of constitutional issues in science fiction and fantasy.
Both legal scholars and other commentators on law and public policy would do well to pay more attention to this subject. Far more people watch science fiction movies and read science fiction books than pay attention to serious nonfiction commentary on political and constitutional issues. Whether we like it or not, these products may well have an impact on public attitudes, a possibility supported by some social science research. They also often reflect the concerns of their time. Continue reading "Star Wars, Science Fiction and the Constitution"
