Monthly Archives: March 2019
Stephen Gillers, A Rule to Forbid Bias and Harassment in Law Practice: A Guide for State Courts Considering Model 8.4(g)
, 30 Geo. J. Legal Ethics
195 (2017), available at SSRN
A male lawyer is taking a deposition; a woman is defending. During the deposition, the man repeatedly makes sexist comments to opposing counsel, such as “I don’t have to talk to you, little lady” and “be quiet, little girl.” A lawyer represents the husband in a divorce action, and argues that the children are in danger because the wife had been seen around town in the presence of “a black male” or “the black guy.” At a deposition the lawyer representing the defendant said to his opposing counsel, a woman, “I don’t have a problem with you, babe,” and when the woman expressed surprise at the word babe, responded “at least I didn’t call you bimbo.”
Incidents such as these finally persuaded the ABA House of Delegates, after two decades of discussion and debate, to adopt a rule of professional conduct prohibiting bias, discrimination, and harassment in the practice of law. Model Rule 8.4(g) now provides that a lawyer is subject to discipline if he or she “engage[s] in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” In a recent article in the Georgetown Journal of Legal Ethics, Stephen Gillers recounts the story of the controversy over proposed anti-bias rules at the ABA and state levels, and also provides a guide to applying the new rule. Continue reading "Rule of Professional Conduct, Speech Code, or Both?"
In the spring of 2018, we learned that Facebook, the technology company we cannot seem to get away from, allowed a political analytics group to obtain Facebook users’ data. In late 2018, Facebook admitted another, even more egregious intrusion. The New York Times showed us how the technology company gave millions of users’ personal data to other companies. It also allowed other companies to read the content of personal messages made on the platform, messages users assumed to be private. CEO Mark Zuckerberg testified before Congress and Facebook ran an apology ad campaign, including airing an apology video during the NBA playoffs. In a Facebook post, Zuckerberg pledged: “We have a responsibility to protect your data, and if we can’t then we don’t deserve to serve you.” In doing so, Zuckerberg signaled its users’ importance, and their importance required privacy protection. In other words, Facebook acknowledged that when it allowed a privacy violation, it inherently disrespected its users.
In An Expressive Theory of Privacy Intrusions, Craig Konnoth explicitly argues what Zuckerberg implicitly acknowledged: privacy intrusions involve more than what is being taken or how the intruders use that information. Intrusions express something about the breacher and the breachee beyond the material consequences; according to Konnoth, the social meaning of privacy intrusions suggest the victim’s lower social status, a form of “disrespect.” Continue reading "“Who Do You Think I Am?” or What it Means When We Lose Our Privacy"
Michael D. Frakes & Melissa F. Wasserman, Irrational Ignorance at the Patent Office
, 72 Vand. L. Rev. __
(forthcoming 2019), available at SSRN
How much time should the U.S. Patent & Trademark Office (USPTO) spend evaluating a patent application? Patent examination is a massive business: the USPTO employs about 8,000 utility patent examiners who receive around 600,000 patent applications and approve around 300,000 patents each year. Examiners spend on average only 19 total hours throughout the prosecution of each application, including reading voluminous materials submitted by the applicant, searching for relevant prior art, writing rejections, and responding to multiple rounds of arguments from the applicant. Why not give examiners enough time for a more careful review with less likelihood of making a mistake?
In a highly-cited 2001 article, Rational Ignorance at the Patent Office, Mark Lemley argued that it doesn’t make sense to invest more resources in examination: since only a minority of patents are licensed or litigated, thorough scrutiny should be saved for only those patents that turn out to be valuable. Lemley identified the key tradeoffs, but had only rough guesses for some of the relevant parameters. A fascinating new article suggests that some of those approximations were wrong. In Irrational Ignorance at the Patent Office, Michael Frakes and Melissa Wasserman draw on their extensive empirical research with application-level USPTO data to conclude that giving examiners more time likely would be cost-justified. To allow comparison with Lemley, they focused on doubling examination time. They estimated that this extra effort would cost $660 million per year (paid for by user fees), but would save over $900 million just from reduced patent prosecution and litigation costs. Continue reading "Should Patent Examiners Get More Time?"
Brandon L. Garret, Wealth, Equal Protection, and Due Process
, Duke Law School Public Law & Legal Theory Series No. 2019-14 (Jan. 14, 2019), available at SSRN
It is a constitutional law truism that wealth and class are not suspect classifications, nor does the government have a substantive due process obligation to fund abortions or provide most government benefits. This is because our Constitution is generally seen as containing negative rights, not affirmative obligations. But there are exceptions. For example, the Sixth Amendment means that the government must pay for an indigent criminal defendant’s attorney. In his new article, Wealth, Equal Protection, and Due Process, Brandon Garrett argues that there are more exceptions than we usually think there are. Garrett shows that the Supreme Court has ruled that poor individuals are entitled to fair government treatment, creating a wider swath of government obligations to fund than we generally assume. The article’s reasoning and conclusions are powerful, especially at a time of great social inequality. Moreover, Garrett’s careful doctrinal analysis commendably avoids overreach.
Specifically, the article develops a concept called “equal process.” This term highlights the synergy between equal protection and due process in certain cases. Though not a completely new idea, the nomenclature is a useful descriptive tool, especially given some of the doctrinal complexity in this area. Garrett focuses in part on the underappreciated legacy of the U.S. Supreme Court decision in Bearden v. Georgia. In that case, the Court held that a judge could not reverse the grant of probation to a defendant, because of an unpaid fine or costs, unless the judge concluded after a hearing that the defendant willfully refused to pay, or had made an inadequate effort to obtain the resources. The judge also had to find that there were no suitable alternative remedies. In effect, the Court ruled that such a reversal must satisfy due process by fairly accounting for the defendant’s potentially suspect financial status. Continue reading "Constitutional “Equal Process” and the Problem of Poverty"
Charles Silver, David A. Hyman, & Bernard Black, Fictions and Facts: Medical Malpractice Litigation, Physician Supply, and Health Care Spending in Texas Before and After HB 4
, __ Tex. Tech. L. Rev.
__ (forthcoming), available at SSRN
It is difficult to convene a discussion of cost containment in health care without someone calling for tort reform. In the view of many in the medical community and the general public, malpractice suits play a key role in driving up health care costs. Litigation is expensive, and the threat of being sued causes doctors to order lots of unnecessary tests—the defensive medicine problem. Tort reform also is popular with elected officials. Most states have caps on damages; pre-trial medical review panels are common too.
But the gap between the theory and reality of malpractice reform is large. Confirming findings from earlier studies, Silver, Hyman, and Black report in their careful analysis of Texas data that tort reform fails to deliver on its promises. Moreover, it may be causing significant harm. Continue reading "The Myths and Reality of Tort Reform"
Kate Levine’s article Discipline and Policing is the embodiment of timeliness. Its argument, in a nutshell, is that the progressive program to reform policing by making police officers’ individual disciplinary records (PDRs) transparent is ineffective if not counterproductive, exacerbates racial disparities, and promotes carceral logic. This thesis lies at the intersection of two fascinating criminal justice conversations of the day. The first involves the explosion of scholarly and political exposition on how to reform policing from the bottom up—exposition that has dislodged top-down Fourth Amendment doctrinalism from its stranglehold on academic attention.The second regards the growing trend of powerful political actors, plutocrats, and others in authority to invoke progressive civil libertarian and anti-incarceration arguments when faced with accusations of private and public wrongdoing. In turn, progressives call for swift, summary, and merciless discipline in such cases.
The bedfellows have become very strange, indeed. We live in a world where the most authoritarian U.S. president in decades touts the importance of the presumption of innocence, champions sentence reduction, and critiques police violence. Of course, he does so selectively and calls out the FBI for its raids on his nefarious associates but lauds ICE for raiding the family homes of law-abiding immigrants. We live in a world where liberal talking heads night after night praise federal law enforcement officers and prosecutors for casting wide investigative nets, flipping witnesses by threatening long sentences, and seizing lawyer-client documents. Progressive analysts declare with utmost indignance that Trump should cooperate with Mueller because “innocent people have nothing to hide and nothing to fear from police interrogation.” Continue reading "The Left’s Law-and-Order Agenda"
Abbe R. Gluck, Ashley Hall, & Gregory Curfman, Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis
, 46(2) Journal of Law, Medicine & Ethics
351–366 (2018), available on SSRN
Susan Sontag documented how illness becomes metaphor, wrapped in “punitive or sentimental fantasies.” The bubonic plague is no longer a mere disease but an instrument of wrath and moral judgment on the failings of a community. A popular mythology morphed tuberculosis into a romanticized episode afflicting the reckless, poor, sensual consumed by their repressed passions. Cancer turns into the disease of the capitalistic affluent; AIDS becomes a social category to punishing deviance. In these cultural myths disease expresses and causes character and thus contains moral judgment. Disease becomes shameful, a stigma to hide and wrap in guilt. Sontag argued that such myths can survive irrefutable human experience and medical knowledge. Treating illness as metaphor is obviously dangerous and misguided. Sontag calls on us to de-mystify illness and become resistant to metaphoric thinking.
The illness of our time is the opioid epidemic. We are in the process of characterizing and metaphorizing it. Litigation plays an important role in this process. As the debate about (oh what to call it?) non-party/national/universal/cosmic/high-volume/prospective-repetition injunctions has reminded us, to give something a name is to classify it and with that classification comes conceptual and normative baggage. Opioid litigation similarly continues to be part of a definitional battle. Is this about an epidemic, crisis, loss of moral fiber, white middle-class decline, crime-wave, plague, or something else? Litigation and procedural vehicles lean on these different conceptions and, in turn, shape how we view that thing out there in the world.
I was reminded of the problem of categorization and Sontag’s account when reading Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis. The article is an excellent primer on the role of courts in “impos[ing] blame–and with it, enduring responsibility” for the harm caused by the opioid epidemic. Continue reading "A Primer on Opioid-Epidemic Litigation"
Ofer Eldar & Andrew Verstein, The Enduring Distinction between Business Entities and Security Interests
, 92 S. Cal. L. Rev.
__ (forthcoming 2019), available at SSRN
While business entities have existed for centuries, their essential nature and forms of utility remain contested matters today. Over recent years, the asset partitioning theory of business entities has become highly influential, yet even for those inclined to accept it, fundamental questions remain unresolved. As Ofer Eldar and Andrew Verstein observe in the paper cited above, security interests likewise function to partition assets for the benefit of particular creditors, yet we lack a nuanced account of when one approach might be preferable to the other. In their paper, Eldar and Verstein develop a compelling foundation for such an account, analyzing these differing modes of asset partitioning and providing a fresh perspective on legal and market dynamics prompting financial innovations that, at least at first glance, appear to “blur the distinction between security interests and entities.”
Eldar and Verstein argue that, while business entities and security interests alike possess capacity to order creditors’ claims in a manner unachievable through contracts, a critical distinction remains. Whereas business entities create a “floating” priority scheme in the sense that an entity “can always update it to undermine the priority of existing creditors by pledging the assets to additional creditors,” security interests create a “fixed” priority scheme favoring “the first perfected secured interest over other claims in the assets.” This, they conclude, is why both forms of asset partitioning persist. “Security interests and entities coexist in the world and in particular structures because they offer different and irreplaceable priority schemes for creditors.” Continue reading "Asset Partitioning and Financial Innovation"
Innovation policy—a relatively new phrase for an old set of top-down competitiveness approaches (e.g. “industrial policy,” “science policy,” “research policy,” and “technology policy”)—is necessarily a combination of centralized investment, structure of private-sector incentives, and public policy priorities.This combination has always been unwieldy, multivariate, and politically charged. As a result, constituencies favoring one or other approaches (e.g. longer patent protection, more funding of public universities and research infrastructure, tariff or non-tariff import measures) have lacked a unifying framework through which to analyze shared problems.
In Innovation Policy Pluralism, Daniel J. Hemel and Lisa Larrimore Ouellette provide that framework. With a focus on intellectual property law, Hemel and Ouellette take the universe of innovation instruments—patents, prizes, grants, tax credits, purchase leverage, public licensing and other alternatives—and create a coherent method by which to assess and value them. Dissecting these options into “innovation incentives” and “allocation mechanisms,” Hemel and Ouellette urge policy-makers to consider alternatives under which these incentives and mechanisms may be matched, mixed, or layered. Continue reading "Does TRIPS Stop International IP Free-Riders?"
I am on alert for tax law changes as I teach Federal Income Tax this semester for the first time since the passage of the 2017 tax act. They seem to appear out of nowhere, rather than as part of a predictable pattern. What can explain seemingly disconnected provisions, scattered throughout the Code and enacted without an explicit policy explanation?
Linda Sugin takes on this question in The Social Meaning of the Tax Cuts and Jobs Act, published in 2018 at the Yale Law Journal Forum. Her critical perspective makes an effort to divine the worldview embedded in the TCJA based on the content of the enacted law. Sugin’s engineering effort shows the following “American priorities and values revealed by the TCJA:
- The traditional family is best;
- Individuals have greater entitlement to their capital than to their labor;
- People are autonomous individuals;
- Charity is for the rich; and
- Physical things are important.” (P. 404.)
Sugin reviews dozens of provisions to support her arguments. A sampling follows to offer a sense of her argument. Continue reading "Morality and the 2017 Tax Act"