Monthly Archives: December 2020

The Unexpected Virtue of Congressional Ignorance

Bradley A. Areheart & Jessica L. Roberts, GINA, Big Data, and the Future of Employee Privacy, 128 Yale L. J. 710 (2019).

When enacted in 2008 at the end of the Bush Administration, the Genetic Information Nondiscrimination Act (GINA) seemed like it had come from the future. Although the hard-won result of over a decade of advocacy by Rep. Louise Slaughter of New York, GINA addressed a problem that seemed more hypothetical than real. Genetic testing had been around for a while, introduced to the public in part through the O.J. Simpson trial. It seemed unlikely, though, that employers or insurers would not only secure DNA testing but then use it to discriminate on the basis of genetic difference. Yes, it made sense as a plot for a science-fiction movie like Gattaca, but not as a depiction of current reality.

This assessment is largely borne out in the empirical results in GINA, Big Data, and the Future of Employment Privacy by Bradley Areheart and Jessica Roberts. Examining GINA cases from federal courts during the statute’s first decade of existence, Areheart and Roberts found a mere 48 unique GINA cases, only 26 of which involved terminations. Moreover, most plaintiffs failed to find relief, often losing because of fundamental flaws: they had voluntarily disclosed their genetic information; they could not prove the employer possessed the genetic information; or their information was not considered “genetic.” In fact, the authors “uncovered no cases alleging discrimination based on genetic-test results.” (P. 744.) The article makes a plausible case that GINA has been a failure—or, perhaps more charitably, addressed a nonexistent problem. Continue reading "The Unexpected Virtue of Congressional Ignorance"

Big Data and Small Politics: What is the Future of International Tax Law?

In my experience, the hallmark of a good article is that, after struggling through a few close reads, I eventually (at times somewhat begrudgingly) conclude I learned something new and valuable.  The hallmark of a great article, on the other hand, is when I reach the same conclusion but after a single, almost effortless feeling, read. The difference is a precision and clarity in writing, structure, and organization that only the confidence instilled from a deep understanding of a subject affords.  Yet at the same time a small part thinks to myself – “it seems so obvious, why didn’t I think of it?”  But of course, to paraphrase a famous movie line, “if I really had come up with the idea, then I would have written it.” But, as I eventually admit to myself, I didn’t.

Such was my experience reading When Data Comes Home: Next Steps in International Taxation’s Information Revolution (“When Data Comes Home”) by Shu-Yi Oei and Diane Ring.  Oei and Ring are frequent co-authors, writing on subjects ranging from taxation of the sharing economy like Uber and AirBnB, to the role of large scale financial information leaks like the Panama Papers, to the impact of the Tax Cuts and Jobs Act on reshaping the workplace environment. I mention this only to emphasize what emerges as the particular strength of Oei and Ring’s collaborations – they combine backgrounds and methodologies and apply them to areas of common interest to uncover patterns or trends that otherwise might remain hidden.  When Data Comes Home represents another successful example. Continue reading "Big Data and Small Politics: What is the Future of International Tax Law?"

The Disruptive Potential of Blockchain in the Law of Wills

Bridget J. Crawford, Blockchain Wills, 95 Ind. L.J. 735 (2020), available at SSRN.

Disruptive technologies, like the Internet, often drive new social and organizational arrangements: we now enjoy global interconnectedness and an ease of communication that was previously the stuff of speculative fiction. Blockchain technology has the potential to be similarly transformative, with the Wall Street Journal characterizing blockchain as a foundational technology along the lines of electricity or the world wide web. Bitcoin was created in 2009 as a decentralized, immutable, open source method of peer-to-peer payment that uses a distributed ledger to track all transactions—and this process of recording transactions is what is known as “the blockchain.” Although blockchain technology has been bought into common parlance through its association with popular cryptocurrencies such as Bitcoin, the potential application and broad appeal of blockchain technology eclipses the purpose for which it was originally developed. Blockchain Wills by Bridget J. Crawford tackles the subject of blockchain technology as applied to will execution in an article that is unquestionably my favorite article of 2020.

The best analogy to describe blockchain is that of the tree in the forest. Every ring in the trunk of the tree is like a groove in a record and each groove memorializes important information: the age of the tree; water levels; disasters such as forest fires; rate of growth. Each ring evidences a new block of information related to a specific moment in time, and the information recorded on each ring is accessible and transparent because nobody owns the tree. Like the rings of a tree, a block on the blockchain is immutable. An earlier block is only changed through a later block. The information in each block is simultaneously public and private—the details of a transaction are recorded on the blockchain but the identity of each user is protected with a private key. The blockchain is transparent while also offering security and privacy. One may arguably have complete trust in a system that has removed human error from its process, with each transaction verified through a distributed network and the need for no intermediaries. Continue reading "The Disruptive Potential of Blockchain in the Law of Wills"

Cyberattacks, Accusations, and the Making of International Law

Martha Finnemore and Duncan B. Hollis, Beyond Naming and Shaming: Accusations and International Law in Cybersecurity, Eur. J. Int’l L. (forthcoming, 2020), available at SSRN.

In recent years, states have begun accusing other states of cyberattacks with some frequency. Just in the past few months, Canada, the United Kingdom, and the United States have warned of Russian intelligence services targeting COVID-19 vaccine development, the United States issued an alert about North Korea robbing banks via remote access, and U.S. prosecutors indicted hackers linked to China’s Ministry of State Security for stealing intellectual property.

The flurry of cyberattack attributions raises questions about what effects (if any) they have and what effects the attributors intend them to have. In their forthcoming article “Beyond Naming and Shaming: Accusations and International Law in Cybersecurity,” Martha Finnemore and Duncan Hollis offer a nuanced set of answers focused, as the title suggests, on moving beyond the idea that the attributions are just intended to name and shame states. Continue reading "Cyberattacks, Accusations, and the Making of International Law"

Controlling the Locals from the Top Down and the Bottom Up for Housing

Christopher S. Elmendorf, Beyond the Double Veto: Housing Plans as Preemptive Intergovernmental Compacts, 71 Hastings L.J. 79 (2019).

Zoning has long-been regarded as quintessentially a local matter. And, states usually defer to local governments believing that they have better information about local conditions, preferences, and practices. In his article, Professor Elmendorf shows how those preferences and powers often operate to undermine state interests, particularly in ensuring housing opportunities for all its needy residents.

In July 2020, President Donald Trump thrust the issue of zoning for housing on the national scene when he proudly announced: “I am happy to inform all of the people living their Suburban Lifestyle Dream that you will no longer be bothered or financially hurt by having low income housing built in your neighborhood.” The announcement came after the Department of Housing and Urban Development repealed the “Affirmatively Furthering Fair Housing” (“AFFH”) mandate, adopted by former President Obama, in fulfillment of the aims of the Fair Housing Act of 1968. Continue reading "Controlling the Locals from the Top Down and the Bottom Up for Housing"

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