Yearly Archives: 2022

Synthesizing Seclusion Law

Sonia Katyal & Charles Graves, From Trade Secrecy to Seclusion, 109 Geo. L.J. 1337 (2021).

In their new paper, From Trade Secrecy to Seclusion, Charles Tait Graves and Sonia Katyal have performed a monumental service for researchers interested in the ways that firms and governments have leveraged trade secret and confidentiality laws to prevent the disclosure of large swathes of information. I describe Graves and Katyal’s effort as monumental not just for its scholarly value, but also for its breadth (and length). They catalog an enormous variety of “increasingly aggressive attempts to use the law to shield information from the public eye that either does not fall within the traditional, market-competitive ambit of trade secrecy at all, or that faces a strong public interest for at least some degree of disclosure.”

Examples abound, from Merck’s attempts to shield data on the harms of its drug Vioxx, to the unwillingness of manufacturers of voting machines and criminal justice algorithms to share their source code, to employers’ claims that employee diversity and salary data are confidential trade secrets. In these and other examples, Graves and Katyal demonstrate how firms have pushed trade secrecy law beyond its traditional bounds of promoting innovation by preventing unfair competition. Coupled with the considerable deference that the government shows to corporations faced with FOIA requests, these efforts, they argue, are creating an “all-purpose seclusion doctrine.” Continue reading "Synthesizing Seclusion Law"

Restrictions on Abortion from a Comparative Perspective

Michelle Oberman, How Abortion Laws Do and Don’t Work, 36 Wisc. J. L., Gender & Soc’y 163 (2022).

With the Supreme Court’s rejection of a constitutional right to abortion in the United States, it is instructive to look overseas for lessons from other countries that have restricted abortion rights. In a fascinating account, How Abortion Laws Do and Don’t Work, Michelle Oberman considers the Israeli experience and what we might learn from a nation that enacted a criminal ban on abortion in 1977.

In Israel, abortion is a crime unless it is approved by a “pregnancy termination committee.” Each three-person committee must include two doctors and a nurse or social worker, at least one member of the committee must be a woman, and the law specifies grounds upon which the committee may approve an abortion. Such an approach is similar to state laws in the pre-Roe era, and in the new post-Dobbs world, many states have decided to criminalize abortions, with different approaches on exceptions and the process to decide whether a pregnant patient can invoke an exception. Continue reading "Restrictions on Abortion from a Comparative Perspective"

Whose Body?

Emily Ratajkowski, My Body (2021).

Who owns one’s body? What kinds of intimate activities generate value? These questions appear in a number of discrete family law subjects, like whether to remunerate housework, or to compensate surrogacy, but they also shape the very existence of family law as a field, defined by opposition to the exchanges that take place in the market.1 This opposition, it turns out, is illusory: while legal rules construct the family as a site of altruism and affection, they also explicitly and routinely recognize economic exchanges. Indeed, family law is deeply implicated in the project of determining what has quantifiable value, who gets to decide, and who benefits as a result.2

Emily Ratajkowski’s My Body provides a nuanced, deeply personal, and unexpectedly moving take on these core questions. Her book — part-memoir, part-cultural critique — struck me as relevant for family law scholars and teachers for its treatment of the gendered ways one can lay claim to one’s body; the precarious boundary between professional and personal relationships, or between “work” and everything else; and the double-edged sword of commodification. Continue reading "Whose Body?"

A Seat at the Table: The Case of Indigent Jurors

Anna Offit, Benevolent Exclusion, 96 Wash. L. Rev. 613 (2021).

One of the most significant questions of recent years is who gets (rather than who should get) a seat at the table, meaning who is allowed to partake in formal decision-making processes on law and policies, specifically when those pertain to minority groups. A recent example of these discussions was the appointment of Justice Ketanji Brown Jackson, the first Black woman to serve on the Supreme Court. Although supporters of this nomination emphasized why “representation matters,” others opposed President Biden’s January 2020 statement that he would nominate a Black woman to the bench to replace Justice Stephen Breyer.

Anna Offit’s recent article, Benevolent Exclusion, discusses the question of representation in decision-making in a context in which lay participation is most often used in the legal realm, that is, trial by jury. The article shines a light on income- and wealth-based juror exclusion describing how “the process by which ordinary people are empaneled as jurors is one that is stacked, at every turn, against the poor.” (P. 625.) With an eye toward intersectionality, Offit points out how despite the elimination of property ownership as a condition to serve on the jury in the 1960s, a policy put in place as a tool to exclude Black people and women, along with legislative efforts such as the Jury Selection and Service Act of 1968, juries today still have a representation problem. Blanket exemptions for caregivers, for example, can result in gender imbalanced venires. And economic biases have been shown to constitute the greatest remaining  impediment to Black peoples’ participation on juries. (P. 624.) Continue reading "A Seat at the Table: The Case of Indigent Jurors"

The Sociology of Big Data Policing

Sarah Brayne, Predict and Surveil: Data, Discretion, and the Future of Policing (2021).

For those of us law professors who write about policing, sociologists have been a real boon.  From the pathbreaking work of scholars like Jerome Skolnick and Michael Brown to the more recent research of Monica Bell and Issa Kohler-Hausmann, these trained observers and interlocutors of human and institutional behavior, who usually obtain much of their knowledge by embedding themselves in the criminal system, have provided law professors with extremely valuable insights about how things actually work.  One of the newer sociologists to join this group is Sarah Brayne, an Associate Professor of Sociology at the University of Texas.

In her book Predict and Surveil, Professor Brayne paints a detailed portrait of how the Los Angeles Police Department (LAPD) uses big data and, in doing so, gives us a glimpse of what policing might look like in the future. The third-largest police department in the country, the LAPD has been at the forefront of the move toward predictive policing, the use of fusion centers, programs that compile detailed data about police-citizen interactions, and reliance on private companies to help make sense of all the information collected by police and other agencies. Over the course of five years, Professor Brayne’s research into these practices involved ride-a-longs in patrol cars and helicopters, dialogues with all tiers of the LAPD’s hierarchy, interviews with people in federal agencies and technology firms, deep dives into LAPD archives, and trawling the data the department uses for its investigations. (Pp. 7-8.) Continue reading "The Sociology of Big Data Policing"

Not All Retail Investors Are Passive

Kobi Kastiel & Yaron Nili, The Giant Shadow of Corporate Gadflies, 94 S. Cal. L. Rev. 569 (2021).

Corporate governance debates tend to dismiss “Main Street” individual investors as irrelevant. The traditional archetype of the corporation presumes that individual shareholders are apathetic because they own small stakes and confront collective action challenges. In the modern corporate landscape, individual shareholders are overshadowed by their institutional counterparts, who hold near-majority stakes in most public companies. Stories about individual investors tend to highlight their idiosyncratic goals or their distracting irrationality. Think of Charles Pillsbury, who bought a single share of Honeywell in order to campaign to end Honeywell’s munitions production for the Vietnam War. Or the recent meme stock craze, which was widely reported to be driven by “amateur” investors trading on social media hype instead of corporate fundamentals.

But there are important exceptions to this generalization, as Kobi Kastiel and Yaron Nili remind us in their article, The Giant Shadow of Corporate Gadflies. The article brings to the fore the underappreciated role that “corporate gadflies” play in promoting good corporate governance (at least from a shareholder-centric perspective). Kastiel and Nili describe gadflies as “small, ‘pesky’ individual shareholders who are engaged in the submission of massive numbers of shareholder proposals.” There are just a handful of gadflies in existence today, including William and Kenneth Steiner, John Chevedden, the Rossi family, and the husband-and-wife team of James Ritchie and Myra Young. Continue reading "Not All Retail Investors Are Passive"

Conceptions of Privacy Shouldn’t Stand in the Way of Privacy Standing

Ignacio Cofone, Privacy Standing, 2022 U. Ill. L. Rev. __ (forthcoming 2022), available at SSRN.

Data breaches abound, but not every breach results in a cognizable claim. Which violations should constitute actionable injuries? What injury allegations satisfy standing requirements in federal courts? How should courts articulate sufficient cognizable injuries to warrant relief? Professor Ignacio Cofone, in a forthcoming article titled Privacy Standing, offers a framework for answering these questions and guiding courts to more consistent opinions for similarly situated victims.

Standing challenges confound courts resulting in inconsistent rulings. As Cofone notes, “No standing means unenforced rights.” Identifying privacy harms, however, is difficult. The primary obstacle lies in assessing privacy harms, for which Cofone proposes a conceptual solution. Cofone first notes the doctrinal woes of the courts. Courts tend to conflate the issue of privacy loss with Article III standing analysis. The Supreme Court, in Spokeo v. Robins, clarified that plaintiffs seeking relief for privacy injury must pose a cognizable real-world harm. The Court emphasized that the harm must be concrete, but did not further guide lower courts in rendering this assessment. Some circuits find standing doctrines satisfied based on a violation of a statutory privacy right, while other courts find standing not met unless plaintiff shows an additional kind. Examples of additional harm are financial harm or reputational harm. Cofone asserts that both approaches have flaws and should be replaced by a three-step framework that considers the fact-dependent nature of privacy injuries. Continue reading "Conceptions of Privacy Shouldn’t Stand in the Way of Privacy Standing"

Catching and Killing It in Federal Court

Zachary D. Clopton, Catch and Kill Jurisdiction, _ Mich. L. Rev. _ (forthcoming 2022), available at SSRN.

Good procedure scholarship identifies, explains, justifies, and critiques a judicial and litigation phenomenon, offering a framework to understand, change, or support what courts, parties, and rulemakers are doing. Great procedure scholarship describes the phenomenon with a pithy and memorable name or metaphor.

Behold Zachary Clopton’s Catch and Kill Jurisdiction.

Clopton draws his framework and label from catch-and-kill journalism, in which a publication purchases exclusive rights to a story for the purpose of not publishing it. The purchaser catches the story by taking it from other publications, then kills it by refusing to put the story out. The move protects the story subject from embarrassment (or worse) and denies the public potentially important information.

A court catches a case by exercising jurisdiction over an apparent state-law claim through a judge-made expansion of jurisdictional rules, keeping the case away from a state court with concurrent jurisdiction. It kills the case by applying unique, often judge-made federal-court doctrines to dismiss the case on non-merits grounds that prevent future litigation of the claim. Continue reading "Catching and Killing It in Federal Court"

The Impact of Arbitration Clauses

Farshad Ghodoosi & Monica M. Sharif, Arbitration Effect (Jan. 26, 2022), available at SSRN.

Arbitration is a hotly debated topic which has garnered significant scholarly attention from both opponents and proponents. Nevertheless, arbitration clauses are prevalent in employment and consumer agreements. Furthermore, the U.S. Supreme Court, has generally enforced these clauses through a series of pro-arbitration decisions. But what do we know about the impact of arbitration clauses on employees’ or consumers’ right to sue? A fascinating new article, Arbitration Effect, by Farshad Ghodoosi and Monica M. Sharif sheds light on this question. The authors conducted a series of experiments to measure “the arbitration effect,” i.e., whether an arbitration clause negatively impacts an individual’s decision to sue. The findings of these experimental studies are as follows:

First, individuals are less likely to pursue legal actions in arbitration than in court. In other words, the inclusion of arbitration clauses leads to lesser likelihood of individuals suing—hence the arbitration effect.

Next, when individuals are given the choice, along with appropriate explanation (most notably that arbitration means waiving the right to court), they do not opt out of arbitration provisions. Individuals do not overwhelmingly reject arbitration as an option at the contracting phase, even when they are aware of disputes. Thus, even if people are less likely to use arbitration to settle disputes when they arise, they do not opt out of arbitration provisions at the contracting stage. Continue reading "The Impact of Arbitration Clauses"

Should We Abolish Qualified Immunity?

Adam Davidson, Procedural Losses and the Pyrrhic Victory of Abolishing Qualified Immunity, 99 Wash. U. L. Rev. _ (forthcoming 2022), available at SSRN.

Almost everyone, it seems, is against qualified immunity. Progressive scholars, organizations, and judges have decried the doctrine for shielding unconstitutional conduct from liability, and have argued that its legal foundations are weak and misguided. Conservative and libertarian scholars and judges have also begun to attack it, for both its legal illegitimacy and its perverse effects. Even large swaths of the public have become familiar with the arcane doctrine of qualified immunity, and oppose its continued application.

There are many reasons to criticize qualified immunity doctrine, but it is clear that for many, a primary motivation is its connection to police violence. With the rise of the Black Lives Matter movement, and increased attention to the problem of police violence against the Black and brown communities, the doctrines that shield such violence from civil legal liability have come under increased scrutiny. Central among these is qualified immunity, which can require an almost absurd level of legal “notice” that even unnecessarily deadly uses of force are unconstitutional. It thus seems intuitively obvious that those who care about ending police violence should care about abolishing qualified immunity. But will ending qualified immunity get us any closer to the goal of ending police violence?

This is the question raised by Adam Davidson’s provocative piece, Procedural Losses and the Pyrrhic Victory of Abolishing Qualified Immunity. Davidson concludes that it will not; indeed, he contends that if anything it is likely to lead to a stickier and more damaging body of case law, one that finds police violence to be constitutional on its own terms. As Davidson puts it, “Quite simply, there is little reason to think that federal courts will be more open to civil rights plaintiffs without qualified immunity standing in their way.” Thus, the abolition of qualified immunity is likely to lead a larger number of adverse constitutional decisions on the merits—decisions that, as Davidson points out, would be considerably more damaging and harder to disrupt than a ruling on qualified immunity. Continue reading "Should We Abolish Qualified Immunity?"

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