Monthly Archives: October 2020

Are Data Privacy Laws Trade Barriers?

What distinguishes data protection (that is, legitimate privacy law) from data protectionism (arguably a barrier to trade)? Whether a country can use its domestic privacy laws to either de jure or de facto require a company to keep citizens’ personal data within that country’s borders is a significant point of international contention right now, especially between the United States and the European Union. In July, the Court of Justice of the EU invalidated (again) the sui generis mechanism for cross-border personal data transfers between the European Union and the United States (the “Privacy Shield”). The Court’s “Schrems II” decision makes it all the more likely that the United States will attempt to revisit the matter through strategic free trade agreement negotiations—and makes Svetlana Yakovleva’s Privacy Protection(ism): The Latest Wave of Trade Constraints on Regulatory Autonomy all the more timely and important.

Yakovleva observes that in recent free trade agreement negotiations, including at the World Trade Organization (WTO), the United States has pushed to characterize restraints on cross-border data flows as a protectionist trade measure, while the European Union, by contrast, has largely advocated for national regulatory autonomy. The outcome of this conflict over purported “digital protectionism” will have practical ramifications for transnational companies that regularly deal in cross-border data flows. It will also have serious theoretical consequences for ongoing and familiar discussions of how transnational law might bridge—or override—deep domestic regulatory divides. Yakovleva nimbly weaves together a history of the term “protectionism,” Foucauldian discourse theory, and the minute details of recent free trade agreement negotiations to provide an authoritative account of what exactly is at stake. Her big contribution is to tell us all to watch our language: one person’s “digital protectionism” can be another’s “fundamental right.” Continue reading "Are Data Privacy Laws Trade Barriers?"

Pursuing Good Rather than Harm with the EITC and CTC

Mention the IRS, and for most, the first thought to come to mind is not alleviating poverty. Most people think of the IRS as the nation’s tax collector, processing tax returns and enforcing the tax laws to finance the government. Yet, for many years now, the IRS also has served as one of the federal government’s most significant antipoverty agencies. The IRS administers the Earned Income Tax Credit (EITC) and the Child Tax Credit (CTC), providing billions of dollars of social welfare benefits each year to millions of families and individuals. The EITC and CTC are very popular, at least in part because they are perceived by Congress as especially efficient relative to other antipoverty programs. Consistent with that popularity, both programs have grown a lot since their inception. But their administration by the IRS, while efficient, presents its own set of difficulties—including for the very beneficiaries these programs are intended to help. In her book, Tax Credits for the Working Poor: A Call for Reform, Michelle Drumbl takes a deep dive into the challenges as well as the benefits of giving the IRS responsibility for administering these important social welfare programs.

The comprehensiveness of Drumbl’s treatment alone makes this book a valuable addition to the tax policy literature. She offers plenty of statistics; a thorough survey of pros, cons, and policy alternatives; and a wonderful synthesis of existing scholarship. But the book’s true strength is the human story that it tells. Too often, discussions of the EITC and CTC focus wonkishly on economic efficiency, comparisons of bureaucratic expertise, and statistics alone. Drumbl’s account does not neglect that side of the equation. But she also draws upon her experience running a low-income taxpayer clinic to tell the stories of EITC and CTC beneficiaries, who often suffer the downside consequences of relying on tax officials to administer social welfare programs on the cheap. Continue reading "Pursuing Good Rather than Harm with the EITC and CTC"

Assessing the Rise of the Governmental Plaintiff

Seth Davis, The New Public Standing, 71 Stan. L. Rev. 1229 (2019).

Seth Davis’s The New Public Standing canvasses and interrogates ways that state and local governments allege financial injuries to challenge the constitutional validity of federal law. Federal courts are often quite generous in entertaining private litigants’ claims based on economic injuries (as opposed to ideological or “conscience-based” injuries). Across a wide range of domains, states have relied on this generosity to allege creative economic injuries, even when the states’ actual objections to the relevant federal law are based on ideology. In Davis’s view, this kind of “new public standing presents constitutional, prudential, and remedial issues that are distinct from those raised by private standing for the public and by private standing based upon financial injuries.”

Previous scholars have examined ways that state governments allege injuries to their sovereignty or “quasi-sovereignty.” States sometimes invoke the doctrine of parens patriae to allege injuries to the health and welfare of their citizenry; states allege injuries to the geographic reach of their sovereign territories; and states allege injuries to their lawmaking authority. It has been said that states receive “special solicitude” as quasi-sovereigns, permitting them to command the jurisdiction of federal courts under circumstances that private litigants would not. Continue reading "Assessing the Rise of the Governmental Plaintiff"

State Interventions in Local Zoning

Anika S. Lemar, The Role of States in Liberalizing Land Use Regulations, 97 N. C. L. Rev. 293 (2019).

In what has been described as an “emerging consensus” and pejoratively labeled an “elite liberaltarian consensus,” there is growing scholarly recognition that land use overregulation is hurting the country by limiting the supply and increasing the price of housing. By highlighting state-level interventions that succeeded in checking local zoning authority, Professor Anika Lemar’s article makes a valuable contribution to the fight against excessive zoning limitations.

Professor Lemar’s article weaves together seemingly disparate examples—family day care homes, manufactured housing, small-scale residential alternative energy, and group homes—and explains what made those state-level assertions of authority succeed. Given how entrenched is the presumption that zoning is necessarily local and the related resignation among academics that state and regional approaches to zoning are doomed to fail, Lemar’s work is cause for celebration. Continue reading "State Interventions in Local Zoning"

Towards a new branch of law and economics?

Yair Listokin, Law and Macroeconomics (2019).
Ronen Avraham

Ronen Avraham

Not every day do we encounter a work of research that enables us to study the law through a whole new lens. Indeed, over the last fifty or so years, legal scholars have discovered new ways to apply well-established bodies of knowledge to the research of law, helping us to both give normative meaning to existing rules and formulate new ones. No better example of this “interdisciplinary revolution” comes to mind than the world of law and economics, which in all fairness should be deemed the world of law and microeconomics. Prior to the publication of Yair Listokin’s book, Law and Macroeconomics, we as researchers have applied economic insight to legal research solely by examining specific actors’ response to incentives provided by law—a microeconomic perspective.

Listokin’s book challenges this paradigm with an invitation to consider how Macroeconomic thinking should also affect the way we understand and interpret the law, when unique conditions call for such an interpretation. It is an invitation to broaden our perspective: away from the world of local incentives intended to optimize behavior of specific players, into ways we can harness the law to address problems such as unemployment, total output, and economic growth. Continue reading "Towards a new branch of law and economics?"

The Future of Attorney Regulation

Bruce A. Green, Bar Authorities and Prosecutors, Oxford Press Handbook of Prosecutors and Prosecutions (Ronald F. Wright, Kay L. Levine, and Russell M. Gold eds., 2020), available at SSRN.

Bruce Green’s new book chapter explores the regulation of prosecutors in the United States. It convincingly argues that, although the ABA Model Rules of Professional Conduct (“Rules”), as adopted by the various states, formally apply to all lawyers, they have little practical impact on prosecutors’ practice.

The Rules have limited practical significance for prosecutors for three related reasons. First, many of the Rules do not apply to prosecutors’ practice realities. Some of the inapplicable Rules are intuitive. For example, Rule 1.5 can’t apply to prosecutors because prosecutors do not charge clients fees, and Rules 7.1-7.3 do not apply because prosecutors neither advertise not solicit for their services. Professor Green establishes in a fascinating section, however, that even Rules that could apply to prosecutors, such as Rule 1.6 (confidentiality), Rules 1.7-1.10 (conflicts of interest) and Rule 1.1 (competence) have been construed narrowly and generically to mirror other obligations that apply to prosecutors such as criminal procedure rules. Second, Rules that do directly apply to prosecutors’ practice, such as Rule 3.8 on prosecutors’ special responsibilities, and Rule 4.2, which forbids lawyers from communicating directly with represented individuals, have been construed narrowly to merely codify prosecutors’ constitutional obligations. The third and final problem is one of enforcement. The Rules are hardly enforced against prosecutors—giving these lawyers particularly wide berth. Continue reading "The Future of Attorney Regulation"

St. Louis Matters! Walter Johnson Revisits the 27th City

Finally! After being relegated to the lower tiers of American cities, St. Louis emerges as the nexus of the American experience. This is the startling argument advanced by Walter Johnson in his new book The Broken Heart of America: St. Louis and the Violent History of the United States. Known for his work on slavery, Johnson broadens his gaze to include westward expansion, industrialization, de-industrialization, and even the present moment. St. Louis emerges at the fore mainly due to its location, a gateway to the West that was also a shipping point to the South, a “northern” state where slavery was allowed and where the Union Army launched its Indian campaigns. This latter fact is central, for it is the confluence of imperialism and racial subordination that fascinates Johnson, leading him to conclude that racism—whether embodied in the genocide of native peoples or the exploitation of black labor—lies at the heart of American history.

Legal historians will be interested in two facets of Johnson’s book. First, by moving the geographic focus from the East Coast to the Midwest, Johnson reduces the significance of Boston, New York, and Washington DC to American history. In so doing, of course, he also reduces the importance of the Supreme Court. Only two 19th Century opinions interest him, the Court’s ruling in Johnson v. M’Intosh that delegitimized Indian sovereignty claims and Dred Scott v. Sanford, that delegitimized black citizenship. Both rulings fit into Johnson’s larger analytic frame, which reads the history of capitalism through the lens of race, and specifically Cedric Robinson’s “racial capitalism,” which holds that racism is inextricable from free enterprise, and that without racial subordination capitalism would cease to exist. Continue reading "St. Louis Matters! Walter Johnson Revisits the 27th City"

The Mother of All Subsidies

“Capital = Asset + Coding” is the axiom that serves as Katherina Pistor’s tool of analysis, to lay bare the role of law in the history of capitalism. An asset can be anything—a plot of ground, a machine, an idea, a debt, a sequence of molecules—but an asset becomes capital when, but only when, it has been “coded,” that is, when it has been endowed with specific modules of legal protection: she calls them priority, durability, universality, and convertibility.

Pistor, the Edwin B. Parker Professor of Comparative Law and Director of the Center on Global Legal Transformation at Columbia Law School, laments that “economists … have clung to the notion that capital is a physical input, one of the two factors of production, when in fact, capital has never been about a thing, but always about its legal coding; never just about input and output, but always about the ability to capture and monetize expected returns.” (P. 116.) Her book has won awards already, including two “best books” citations from the Financial Times. The financial press is taking heed, and legal academics should, too. This wonderful book is destined to inform the difficult way ahead, as global capitalism’s second crisis in a dozen years overwhelms us. Continue reading "The Mother of All Subsidies"

Rediscovering Patents’ and Copyrights’ Common Origins Story

Joseph Fishman, Originality’s Other Path, 109 Cal. L. Rev. __ (forthcoming, 2021), available at SSRN.

It is something of a received dogma among intellectual property scholars that, despite their common goal of incentivizing creativity, the copyright and patent regimes achieve this goal through wildly divergent legal structures. Professor Joseph Fishman’s excellent piece, Originality’s Other Path, sets out to question this dogma.

As I often describe these twin systems to my Intellectual Property (IP) students, they are in many ways mirror images of each other: patent law demands much more from inventors up-front—a patentable invention must represent a significant creative leap from prior technology—while copyright grants protection more indiscriminately to any artistic work possessing a modicum of creativity. Once an inventor clears this higher patentability hurdle, however, she is in possession of a powerful sword against anyone who would seek to practice her invention. Copyright, on the other hand, makes up for its more indiscriminate grant of protection by creating many safety valves for would-be infringers: independent creators are not liable for copyright infringement, and (owing to the fair use doctrine) neither are those who, although borrowing from copyrighted works, manage to sufficiently transform those works. Thus, although the Supreme Court has spoken of a “historic kinship” between patent and copyright law, to the trained observer, this kinship has always seemed to begin and end with their shared goals. And, whether by design or by historical accident, these divergent structures are generally taken to be a good thing. After all, what could be more fittingly different than two legal regimes designed to incentivize two radically different domains—two cultures, even, as C.P. Snow famously put it1 —of human creativity?

In Originality’s Other Path, Professor Fishman unearths a line of copyright cases stretching back to the 1800s that reveal a now-forgotten common origins story of patentability and copyrightability thresholds. In the process, he pushes us to reconsider whether the boundaries between “art” and “technology” are as immutable as C.P. Snow would have us believe or, as scholars in science and technology studies have long argued, they are instead fragile and porous. In turn, recognizing hidden kinships between art and technology opens the door for a more fruitful—and more deliberate—cross-pollination between patent and copyright law. Continue reading "Rediscovering Patents’ and Copyrights’ Common Origins Story"

Making Amends by Amendment: Women’s Equality and Equal Rights in the U.S.

Julie Suk, We the Women (2020).

The constitutional politics of gender equality are never static – the pendulum appears in constant motion the world over, and no less for the US. As protections of equality and non-discrimination are now given in all but three of the world’s constitutions, and as women’s rights are given direct expression in 24, the constitutionalist promise of gender equality has appeared to be on a global upswing. And yet these trends are not everywhere the same. Indeed, with the tributes flowing in for the late, great and notorious Justice Ruth Bader Ginsburg last month, both for her legacy to global constitutionalism as well as to US constitutional law, the robust protections of gender equality in the US seem ever more fragile. It becomes vital to understand that legacy, and other feminist achievements, outside of US Supreme Court doctrine.

Enter Julie Suk’s wonderful new book, We the Women: The Unstoppable Mothers of the Equal Rights Amendment. In this carefully researched and extraordinarily well-timed intervention, Suk documents the historical trajectory, and the current import, of the Equal Rights Amendment (the ‘ERA’) in the US. The amendment requires that the “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex”. By 1977, a total of thirty-five states had ratified the ERA, falling short of the three-fourths of the states prescribed by Article V. Yet despite this failure, the ERA (and with it, the second-wave feminist movement), received “de facto” support via constitutional interpretation of the Fourteenth Amendment. The constitutional politics, however, does not end there. In recent years, a wide range of feminist supporters have worked to formalize – and remove the judicial authorship of – this protection. In January 2020, after intense mobilization of feminist advocates in many places, Virginia became the 38th state to ratify the ERA. The constitutional status of the ERA is now a legal puzzle before several courts, who must address the question of both the legal effect of its apparent rescission by several states, as well as the status of its seven-year legislative deadline for passage. Continue reading "Making Amends by Amendment: Women’s Equality and Equal Rights in the U.S."

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