Monthly Archives: May 2017

Starting with Consent

James Grimmelmann, Consenting to Computer Use, 84 Geo. Wash. L. Rev. 1500 (2016), available at SSRN.

The Computer Fraud and Abuse Act (“CFAA”), enacted in 1986, has long been a source of consternation for jurists and legal scholars alike. A statute marred by long-standing circuit splits over basic terminology and definitions, the CFAA has strained under the weight of technological evolution. Despite thousands of pages of law review ink spilt on attempting to theoretically resuscitate this necessary but flawed statute, the CFAA increasingly appears to be broken. Something more than a minor Congressional correction is required.

In particular, the central term of the statute—authorization—is not statutorily defined. As the CFAA has morphed through amendments to encompass not only criminal but also civil conduct, the meaning of “authorized access” has become progressively more slippery and difficult to anticipate. Legal scholarship has long voiced concerns over the CFAA, including whether certain provisions are void for vagueness,1 create opportunity for abuse of prosecutorial discretion,2) and give rise to unintended negative impacts on employee mobility and innovation.3

Enter James Grimmelmann’s Consenting to Computer Use. In this work, Grimmelmann offers us a clean slate as an important and useful starting point for the next generation of the CFAA conversation. He returns us to a first-principles analysis with respect to computer intrusion, focusing on the fundamental question of consent. Continue reading "Starting with Consent"

The Baby and the Bath

Joel Friedlander, Vindicating the Duty of Loyalty: Using Data Points of Successful Stockholder Litigation as a Tool for Reform, Bus. Lawyer (forthcoming 2017), available at SSRN.

At least since Karl Llewellyn crossed back over the Mississippi on his return from Montana,1 legal scholars have understood the value of lived experience as necessary to demonstrate the significance of legal theory. One could even note the rise of empiricism over the last several decades as a further development of this kind of insight. Yet laboratory empiricism can teach only so much. Important as it is, taken alone it can miss the trees that populate the forest.

Joel Edan Friedlander’s new paper is important precisely because it comes up to us from a place that numbers and theory alone cannot reveal. A highly experienced member of the Delaware plaintiffs’ bar, Friedlander writes in response to recent developments that threaten further to limit the already highly limited institution of shareholder litigation. Continue reading "The Baby and the Bath"

Insurance as the Big Bad Wolf of Big Data

Max N. Helveston, Consumer Protection in the Age of Big Data, 93 Wash. U. L. Rev. 859 (2016).

In this insightful and well-researched article, Consumer Protection in the Age of Big Data, Professor Max Helveston arguably has opened stage two of a movement in contracts scholarship assessing the dangers and opportunities presented by large scale data aggregation for contract law and practice. Specifically, recent decades of contract scholarship have explored generalized issues surrounding information era contracting practices by producers with access to extraordinary amounts of data regarding their consumers. We could (but probably shouldn’t) refer this early stage as the “Oh crap! What does it all mean?” inquiry; it is probably better to stick with “Big Data & Contract 1.0.” That early stage examined the rapidly changing landscape of consumer-producer interactions in the early Internet and information-era context. The gist of Big Data & Contract 1.0 generally boils down to the proposition that consumers are largely screwed by the ability of producers to use data aggregation and analysis to bore down into consumers’ lives and preferences in a way never before possible in pre-information era contracting.

Despite the broad scope of the title, Consumer Protection in the Age of Big Data moves the discussion to “Big Data & Contract 2.0” by unpacking data analytics and aggregation in a specific contractual context: insurance. Insurance has always been problematic for contract law. The relationship between insurer and insured is traditionally perceived as a paradigm case involving gross inequality of bargaining power. The contracts involved are highly adhesive, consumers generally must depend upon insurance agents to select appropriate coverage and terms, and the resulting terms—which consumers often receive only weeks after they have purchased the insurance and will likely read only when a [hopefully] covered loss occurs—are highly technical and opaque to the typical consumer. This ground is well-traveled, and Helveston addresses the problem from a new angle. Continue reading "Insurance as the Big Bad Wolf of Big Data"

The President’s Power of the Purse

Eloise Pasachoff, The President’s Budget as a Source of Agency Policy Control, 125 Yale Law Journal 2182 (2016).

The younger generation of administrative law scholars is frighteningly good. They provide helpful motivation to step up one’s own game but also opportunities to marvel in the work they are doing. One of my favorite scholars to read is Eloise Pasachoff. (A note: we are not friends. I think I have met her briefly in person only once.) Her latest insightful article examines the president’s power of the purse.

Pasachoff focuses on the Office of Management and Budget’s (OMB) role in the agency budget process. Specifically, she describes seven levers of OMB control, finds the process lacking on certain normative criteria, and then proposes reforms to the political branches and the administrative state to improve accountability. If OMB’s regulatory review worries you, Pasachoff has bad news, arguing that OMB’s budget role is more problematic. Continue reading "The President’s Power of the Purse"

(Un)Equal Opportunity Shaming

Wendy N. Hess, Slut-Shaming in the Workplace: Sexual Rumors & Hostile Environment Claims, 40 N.Y.U. Rev. L. & Soc. Change 581 (2016).

This article, by Professor Wendy N. Hess, picks up on an important issue, largely ignored in the legal literature until now: so-called “slut-shaming” in the workplace. “Slut-shaming” involves denigrating a person – most often a woman – on the basis of her actual or perceived sexual activity. It reportedly takes place quite a bit in the workplace, and usually with deleterious effects on victims’ reputations, work product, and career trajectories. This article thus picks up on a salient issue in the contemporary American workplace and provides an excellent exposition of a split among courts that reveals the unwillingness of some judges to acknowledge the empirical truth that men who are perceived as promiscuous are often seen as “studs,” while women so perceived are seen as “sluts,” and subsequently downgraded in the esteem of co-workers and employers. Once so thoroughly presented, this collision between this double standard and the antidiscrimination mandate of Title VII crystallizes and cannot be ignored.

The article critiques the ways in which courts have dealt with hostile work environment sexual harassment claims stemming from rumors and/or attacks premised on the plaintiff’s perceived sexual promiscuity. The article expertly lays out courts’ historic confusion as to when alleged harassment has occurred “because of” the victim’s sex, as required by Title VII, and makes the compelling point that “Courts have often failed to recognize the gendered aspect of sexual rumors about women.” It boils down to the fact that, as Professor Hess contends, in many situations, due to the so-called “double bind” or “double standard,” seemingly similarly situated men and women could not, in reality, be any more differently situated. And when it comes to “slut-shaming,” Professor Hess could not have found more fertile ground upon which to make her point. She thus exhorts courts to identify the double standard that makes rumors about a female employee’s sexual promiscuity “uniquely insulting to women.” Continue reading "(Un)Equal Opportunity Shaming"

A Benefit Theory of Tort Law

Alex Stein, The Domain of Torts, 117 Colum. L. Rev. 535 (forthcoming 2017), available at SSRN.

Scholars seeking to interpret the common law of torts typically take a position on the merits of fairness or rights-based rationales for liability as contrasted to welfarist or efficiency-based rationales. Rejecting this fairness versus efficiency framework, Alex Stein defends an original thesis in his forthcoming article, The Domain of Torts: fair tort rules do not contradict or stand in tension with efficient tort rules; each type of rule instead “implement[s] different regulatory mechanisms—private and public—and appl[ies] to different kinds of accidents.” (P. 541.) Tort law is comprised of both fair and efficient tort rules that govern different domains, eliminating any conflict between them. Although I’m not persuaded, Stein’s article requires one to consider important issues from a fresh perspective and deserves to be widely read.

After arguing that the domain of tort law is distinctively defined by the problem of accidents caused by unwanted interactions, a position staked out long ago by Oliver Wendell Holmes, Stein then makes the more interesting claim that tort law further distinguishes between two types of accidents—those caused by the risky actor’s pursuit of only private benefits, and the remaining accidents caused by risky behavior that benefits the public. “Private benefits are ones that improve the well-being of a single person: the actor (and her private beneficiaries, such as family and friends). Public benefits, on the other hand, improve the welfare of society in general (while also generating private gains for their producers).” (P. 552.) These definitions are not standard within tort law nor otherwise elaborated upon by Stein, yet he argues that they largely determine the substantive content of liability rules. Continue reading "A Benefit Theory of Tort Law"

Can Government Lawyers Be Heroes? 

Brad Wendel, Government Lawyers in the Trump Administration, Cornell Legal Studies Research Paper No. 17-04 (2017), available at SSRN.

In 1973, in what has come to be known as the Saturday Night Massacre, Richard Nixon attempted to fire special prosecutor Archibald Cox, prompting his own Attorney General to resign. In the wake of the Watergate scandal, the bar recoiled in shock as it acknowledged the number of lawyers complicit in illegal conduct. In this timely new article, Brad Wendel explores the obligations of government attorneys in an administration that has shown an unsettlingly similar disregard for legal limitations on its power.

It’s hard to keep up with the Trump administration’s distaste for dissent. Trump fired acting Attorney General Sally Yates when she refused to enforce his travel bans on individuals with visas from seven predominantly Muslim countries. White House Press Secretary Sean Spicer issued an ultimatum to state department civil servants, warning them to “get with the program,” and Senior White House Policy Adviser Steven Miller insisted that Trump’s national security decisions “will not be questioned.” Frustrated with the Washington Post’s coverage during the presidential campaign, Trump threatened to retaliate against owner Jeff Bezos by investigating Amazon for antitrust and tax violations. He responded to Judge Gonzalo Curiel’s unwillingness to dismiss a fraud suit against Trump University by insisting that the judge was biased because of his Mexican heritage. More recently, in a rage against the court that blocked his travel ban, President Trump tweeted an attack on the “so-called judge.” He vowed to use “enhanced interrogation techniques” and to throw flag burners in jail, with either ignorance or little regard for the fact that both have been determined to be illegal. Even Saturday Night Live spoofs prompt the President to engage in a barrage of social media insults. Continue reading "Can Government Lawyers Be Heroes? "

Do Patents Work?

Heidi L. Williams, How Do Patents Affect Research Investments?, Ann. Rev. Econ. (forthcoming), available at NBER.

As everyone who has taken a patent law course knows, the reason we have patents is to increase private incentives for knowledge production. But do patents actually work? Based on her review of the existing evidence, MIT economist (and MacArthur “genius”) Heidi Williams isn’t sure; she concludes that “we still have essentially no credible empirical evidence on the seemingly simple question of whether stronger patent rights—either longer patent terms or broader patent rights—encourage research investments.”

This bottom line will not be a surprise to those who have followed the empirical literature, but Williams’s careful identification and modeling of the relevant empirical parameters and her discussion of the most relevant evidence on each point makes her review a must-read for anyone interested in patent policy. Continue reading "Do Patents Work?"

The Sources of American Punitiveness

Joshua Kleinfeld, Two Cultures of Punishment, 68 Stanford L. Rev. 933 (2016).

In Two Cultures of Punishment, Professor Kleinfeld wades into one of the most debated subjects in criminal law and punishment and society: why have Europe and the United States–which began with so many similar penal values and practices at the end of the 18th century–begin the 21st century with such a wide divergence, especially when it comes to extreme punishments like Life Without Parole, capital punishment, and internal banishment through collateral consequences. This is territory in which some of the great scholars of punishment in our time, philosophers, historians, and sociologists have already spilled a lot of ink. To simplify somewhat, accounts tend to emphasize either culture embedded in history (James Whitman and Jeremy Waldron), political development rooted in institutions (David Garland and Nicola Lacey), or political economy (Loic Wacquant).

As an account of comparative European and US penal evolution, Kleinfeld has produced a productive original synthesis which combines many of the best features of historical, philosophical and political-institutional accounts. This synthesis, which has its deepest inspiration in the late 19th century theories of proto-sociologist Emile Durkheim, suggests that the US always had a different set of normative values rooted in its distinctive political economy. These differences, however, relatively latent in their effects on institutions until the “treatment effect” of rapidly rising violent crime rates in the 1960s–which remained high for much of the rest of the century–unlocked their potential to drive dramatic institutional change. (See Lisa Miller’s recent monograph, The Myth of Mob Rule (2016), which also treats rising violent crime rates as a significant driver of US penality in the late 20th century.) It has its weaknesses, one of which I will return to, but seen as a theory of late modern punishment and society trajectories it’s a major contribution which compels us to consider normative as well as social control explanations for extreme US penal practices. Continue reading "The Sources of American Punitiveness"

The Sources of American Punitiveness

Joshua Kleinfeld, Two Cultures of Punishment, 68 Stanford L. Rev. 933 (2016).

In Two Cultures of Punishment, Professor Kleinfeld wades into one of the most debated subjects in criminal law and punishment and society: why have Europe and the United States–which began with so many similar penal values and practices at the end of the 18th century–begin the 21st century with such a wide divergence, especially when it comes to extreme punishments like Life Without Parole, capital punishment, and internal banishment through collateral consequences. This is territory in which some of the great scholars of punishment in our time, philosophers, historians, and sociologists have already spilled a lot of ink. To simplify somewhat, accounts tend to emphasize either culture embedded in history (James Whitman and Jeremy Waldron), political development rooted in institutions (David Garland and Nicola Lacey), or political economy (Loic Wacquant).

As an account of comparative European and US penal evolution, Kleinfeld has produced a productive original synthesis which combines many of the best features of historical, philosophical and political-institutional accounts. This synthesis, which has its deepest inspiration in the late 19th century theories of proto-sociologist Emile Durkheim, suggests that the US always had a different set of normative values rooted in its distinctive political economy. These differences, however, relatively latent in their effects on institutions until the “treatment effect” of rapidly rising violent crime rates in the 1960s–which remained high for much of the rest of the century–unlocked their potential to drive dramatic institutional change. (See Lisa Miller’s recent monograph, The Myth of Mob Rule (2016), which also treats rising violent crime rates as a significant driver of US penality in the late 20th century.) It has its weaknesses, one of which I will return to, but seen as a theory of late modern punishment and society trajectories it’s a major contribution which compels us to consider normative as well as social control explanations for extreme US penal practices. Continue reading "The Sources of American Punitiveness"