Oct 21, 2016 Margareth EtienneCriminal Law
A new book by Nicole Gonzalez Van Cleve, Crook County: Racism and Injustice in America’s Largest Criminal Court, does for criminal courts what cameras have done for police brutality. African-Americans and Latinos have been sharing their stories for decades about the terror of police harassment and brutality in their daily lives. Despite these claims, the notion of unarmed men being unreasonably and pretextually stopped, brutally beaten, and even shot unnecessarily, were regularly denied, minimized, or justified by police. At best, these instances were believed to be rare or accidental in what has been branded as our new “colorblind” or “transracial” society. In this colorblind world, discrimination—if and when it existed—was structural and unintentional. Law enforcement were not agents of racial discrimination but were trying to do a difficult job in an imperfect system. Citizen bystanders armed with cellphone cameras and police department regulations requiring officers to wear cameras have changed our perceptions in ways that personal voices and narratives by the victims themselves never did.
Similarly, racial discrimination in the criminal justice system is not a new claim. The racially disparate “outputs” of the criminal justice system—the grossly disproportional incarceration and criminal supervision rates of people of color—are impossible to ignore. In the face of alarming statistics, scholars, activists, and social critics alike have turned to explanations of structural and unintended racism. The myriad explanations put forth by critics are varied, but most have one thing in common: they support the notion that the legal decisionmakers tend to be colorblind. If racism exists, it exists outside of the criminal justice system and can be blamed on structural inequalities such as poverty and unemployment in communities of color, sentencing guidelines, racial profiling by law enforcement, or ineffective legal representation. One common explanation has been that the criminal justice system is impacted by race discrimination and inequality in other areas of society like education, housing, and healthcare, but that the criminal justice system does not itself produce racial disparity. The explanation that has lost traction over the last several years is the notion that individual professionals in the criminal courts behave in racially biased ways: that they treat black and Latino defendants differently from whites as a response to their race. With good reason, we have been reluctant to point the finger at the well-meaning and well-trained professionals in our criminal courts. This is not the type of claim one should make without proof. Continue reading "More Data in the Debate on Colorblind Justice"
Oct 20, 2016 Lisa AustinJurisprudence
Gillian K. Hadfield & Barry R. Weingast,
Is Rule of Law an Equilibrium Without Private Ordering? (
USC L. Legal Stud. Paper No. 16-18;
Stan. L. & Econ. Olin Working Paper No. 493, 2016), available at
SSRN.
In their new paper, Is Rule of Law an Equilibrium Without Private Ordering?, Gillian Hadfield and Barry Weingast make a provocative claim about the rule of law: that private ordering is what produces and sustains it, not the institutions of government. This is an important contribution to rule of law debates, which are so heavily focused on public institutions and public law while leaving the role of private ordering and private law undertheorized. But see Private Law and The Rule of Law (Lisa M. Austin & Dennis Klimchuk eds.).
Hadfield and Weingast are social scientists, not legal philosophers. However, their work engages with many different strands of theoretical literature on the rule of law, including analytic jurisprudence, and generates interesting conclusions for theorists and not just social scientists. The heart of their argument is the claim that “[m]ost regimes with fully centralized enforcement do not predictably achieve rule of law as a consequence of the structure of the regime itself.” If the rule of law is achieved, it is not because of institutions but because of “the peculiar, historical and contingent facts of individual identity or the balance of power.” (P. 25.) In other words, if we think that government is “a single body with the power to both make and enforce the law” then we should not expect the rule of law to emerge. (P. 27.) What is needed for the rule of law to reliably emerge, they argue, “is an essential role for private, decentralized, enforcement of law.” (P. 27.) Continue reading "What’s “Private” about the Rule of Law?"
Oct 19, 2016 Shubha GhoshInternational & Comparative Law
Often formulating a legal policy response to a problem starts with finding the correct vocabulary. While complex economics, political, and sociological crises do not get managed with magic words, failure to give a name to a problem makes solutions elusive. In the case of international intellectual property, the problem of overly expansive intellectual property rights, sometimes adopted by nation states under trade and finance pressures, is seen solely as a solution to the ubiquity of piracy and theft of economic value. Values of access and commons management offer some countermeasures to broad property rights. But these responses sometimes feel piecemeal and less than systematic.
Enter Professor Sam Halabi, a scholar and teacher of international health law at University of Tulsa Law School, shifting to University of Missouri, Columbia Law School in January 2017. His recent article in the Tulane Law Review is one I like a lot, and I hope others active in international intellectual property law and health policy do as well. Professor Halabi’s contributions are conceptual and linguistic. International Intellectual Property Shelters, although with unfortunate resonances of “tax shelters,” describes pockets created by treaties and national law of exceptions to strong intellectual property rights. These pockets permit access to medicines, promotion of biodiversity, regulation of neonatal care, and control of tobacco—each threatened by the rampant spread of intellectual property rights. Upon this neologism, Professor Halabi delineates an established international intellectual regime that governs and limits intellectual property rights. His article not only informs us about the key features of this regime and the legal, political, and economic mechanisms that drive it. Continue reading "Sheltering the Public From Intellectual Property"
Oct 18, 2016 Kevin E. CollinsIntellectual Property Law
“Where does technology stop and humanity begin?” This is the weighty opening question in Laura Ford’s recent article Patenting the Social. Ford, a sociologist and lawyer, offers a novel contribution to the debates raging in the courts and law reviews after the Supreme Court opinion in Alice v. CLS Bank about what constitutes a patent-ineligible abstract idea and, relatedly, why abstract ideas should be patent-ineligible. She proposes that claims describing novel computer-mediated social relationships and interactions (“the social”) are core examples of claims to abstract ideas, but that claims to novel means of achieving those social ends are not. Ford then draws on sociological concerns and moral theory to defend her interpretation of Alice. She argues that patents that privatize social progress, as opposed to the technological progress, are bad policy based on concerns about human flourishing, politics, and culture—i.e., reasons other than the conventional, economically oriented reasons for limits on patentability that focus on innovation incentives.
I found Patenting the Social to be both interesting and timely for two reasons. First, I believe that defining the abstract with reference to the social offers a plausible story for explaining, at least in part, why the Supreme Court reached the conclusion that it did in its Alice opinion and, perhaps more importantly, its earlier opinion in Bilski v. Kappos, on which Alice relies. The Court’s choice not to even attempt to define an abstract idea in these opinions is by now infamous. Whether you personally agree with it as a policy matter or not, this hypothesis that the Court’s discomfort with the privatization of new patterns of contractual commitments—which are nothing but legally enforceable patterns of social obligations—is grounded in part in non-economic reasoning should not be lightly dismissed. Patenting the Social gives voice to this hypothesis more thoroughly than other academics have to date managed to do. Second, I find the notion that privatization of the social is problematic to be an interesting counterpoint to the message of the Supreme Court’s other opinions on patent-ineligibility in Association for Molecular Pathology v. Myriad Genetics and Mayo v. Prometheus. In these biomedical cases, the Court focused on the privatization of the natural as the crux of the problem that limits on patent-eligibility can solve. Under Ford’s interpretation, Bilski and Alice provide an intriguing bookend to Myriad and Mayo: both the social and the natural are off limits. Continue reading "Patenting the Social: A Non-Economic Take on Alice"
Oct 17, 2016 Elizabeth Weeks LeonardHealth Law
I recently received a call from my university’s general counsel’s office, looking for health law advice about patient no-shows at a campus community health clinic. We discussed tort theories, including establishment of the physician-patient relationship and patient abandonment, as well as privacy issues with respect to contacting patients via email, phone, or a friend or relative. I then offered that the clinic might consider looking more deeply at the reasons for the patients’ lack of follow-through with appointments and treatment, including various social, economic, transportation, childcare, and other lifestyle barriers. I roughly described the concept of “social determinants of health,” which captures the problems to which I was referring. I explained how our law students working with medical-legal partnership clinics face similar challenges: clients may initially present with significant legal needs, which they are highly motivated to address, but then fail to keep follow-up appointments. The attorney was intrigued and asked me to forward some relevant literature on the various issues that I had identified.
It was easy enough to find cites for the torts and privacy topics, but surprisingly more difficult to identify a clear, definitive article describing the essential concept of social determinants of health. Given the increasing prevalence of the term within not only public health but also health law circles, I was surprised at my difficulty finding literature that explained this now-essential concept in a way that the uninitiated could understand. Thus, I was delighted last week to come across Wendy K. Mariner’s Beyond Lifestyle: Governing the Social Determinants of Health. Continue reading "A Definitive Primer and Prescription on Social Determinants of Health"
Oct 14, 2016 Robert LeckeyEquality
Do you want that with fries, salad, or a side order of sexual harassment? Kaitlyn Matulewicz’s paper on sexual harassment in the restaurant industry prodded me to look differently at interactions with servers and to reflect more broadly on the burdens placed on those who experience harassment. Her starting point is the legal standard by which, to qualify as sexual harassment, workplace conduct must be objectively “unwelcome” and outside the “normal.” Drawing on interviews with women full-service restaurant workers, Matulewicz argues that the organization of restaurant work makes women vulnerable to enduring sexual harassment. Structuring elements of restaurant work – hiring and dressing practices, the focus on customer service, and the legally approved wage-tip relation – normalize women workers’ subjection to unwanted sexualized experiences.
Matulewicz gives plenty of space to the women interviewed, allowing us to hear their voices. I appreciated her methodological decision not to ask the participants outright whether they had experienced sexual harassment. Instead, she asked them to talk about their work and to describe their interactions with customers, co-workers, and management. That decision was crucial to the project because her participants “often struggled in defining sexual harassment and thinking about their own experiences in relation to it.” (P. 135.) One reason for this struggle is that sexualized conduct is so “normal” in their workplaces – and that the workers need to please their customers. Continue reading "Where the “Normal” Is Gendered and Unjust"
Oct 13, 2016 Niva Elkin-KorenTechnology Law
In recent years, the internet has strengthened the ability of state and corporate actors to control the behavior of end users and developers. How can freedom be preserved in this new era? Yochai Benkler’s recent piece, Degrees of Freedom, Dimensions of Power, is a sharp analysis of the processes that led to this development, which offers guidelines for what can be done to preserve the democratic and creative promise of the internet.
For over two decades the internet was synonymous with freedom, promising a democratic alternative to dysfunctional governments and unjust markets. As a “disruptive technology,” it was believed to be capable of dismantling existing powers, displacing established hierarchies, and shifting power from governments and corporations to end users. These high hopes for participatory democracy and new economic structures have been largely displaced by concerns over the rise of online titans (Facebook, Google, Amazon), mass surveillance and power misuse. The power to control distribution and access no longer resides at the end-nodes. Instead it is increasingly held by a small number of state and corporate players. Governments and businesses harvest personal data from social media, search engines and cloud services, and use it as a powerful tool to enhance their capacities. They also use social media to shape public discourse and govern online crowds. The most vivid illustration of this trend was provided during the recent coup attempt in Turkey, when President Recep Tayyip Erdoǧan used social media to mobilize the people of Turkey to take to the streets and fight against the plotters. Continue reading "What is the Path to Freedom Online? It’s Complicated"
Oct 12, 2016 Brooke D. ColemanCourts Law
Briana Rosenbaum,
The RICO Trend in Class Action Warfare, 102
Iowa L. Rev. (forthcoming 2016), available at
SSRN.
A racketeer, a mobster, and a plaintiffs’ mass-action attorney walk into a bar. What might be a decent setup for a joke is actually dead serious. Like members of organized crime, plaintiffs’ mass-action attorneys are being sued under the federal Racketeer Influenced and Corrupt Organizations (RICO) statutes. Briana Rosenbaum’s The RICO Trend in Class Action Warfare carefully considers existing remedies for frivolous litigation and critiques what she sees as the inefficacy of “the RICO reprisal.”
Rosenbaum readily admits that some mass-action attorneys include frivolous claims among meritorious ones in an attempt to obtain a larger settlement, otherwise known as “specious claiming.” But Rosenbaum argues that remedies for abusive litigation already exist. There are tort remedies such as malicious prosecution and abuse of process, and procedural remedies such as Fed. R. Civ. P. 11 and 28 U.S.C. § 1927. Rosenbaum posits that this existing remedial structure for vexatious litigants, while imperfect, was at least created with important countervailing policy considerations in mind, such as access to justice and administrative efficiency. Continue reading "Racketeers, Mobsters, & Plaintiffs’ Mass-Action Attorneys"
Oct 11, 2016 Aya GruberCriminal Law
Jordan Blair Woods,
LGBT Identity and Crime, 105
Calif. L. Rev. (forthcoming 2017), available at
SSRN.
I have always been fascinated by the underenforcement-overenforcement puzzle. I was thus immediately drawn to Jordan Blair Woods’s fantastic article, which analyzes this complex problem through the lens of LGBT identity. Let me explain the underenforcement-overenforcement issue: Individuals who belong to marginalized groups, such as racial and sexual minorities, disproportionately bear the brunt of crime and law enforcement. When minorities are victims of violence, especially violence motivated by bigotry, liberal advocates tend to support policies and practices that are tough on such crime. When minorities suffer police harassment, revolving door criminal justice, and mandatory sentences, liberal advocates call for police restraint, decarceration, and discretionary leniency. Is this just abject inconsistency? Not necessarily. Let’s say on block A, a white man beats up a black man, while on block B, a black man beats up a white man. The prosecutor charges the white defendant with a misdemeanor and releases him with time served, but charges the black defendant with aggravated assault, resulting in a mandatory ten-year sentence. Everyone should rightly scream foul because similar actors were treated differently on account of race, the racially privileged person received leniency, and the minority was treated harshly.
Difficulties arise when such notions of formal equality and substantive fairness translate into a legal reform agenda. One of the clear drivers of inequity in the above scenario is prosecutorial discretion, so one might propose that prosecutors always bring the most serious charge supported by the evidence. This would surely address the underpunishment of whites, but it might compound the problems of African American overpolicing. Indeed, in response to evidence showing that prosecutors disproportionately seek the death penalty in white-victim cases, race scholar Randall Kennedy once suggested that prosecutors be required to pursue capital punishment in black-victim cases, recognizing the “cost” of executing more black defendants. In my hypo, the crimes are interracial, but most violence is intraracial. Alternatively, we might be concerned with the mandatory ten-year sentence and believe that judicial discretion in sentencing would have produced justice for the black defendant. But such discretion risks disproportionately benefitting whites who harm blacks. Continue reading "The LGBT Piece of the Underenforcement- Overenforcement Puzzle"
Oct 10, 2016 Robert HillmanContracts
Aaron Perzanowski & Chris Jay Hoofnagle,
What We Buy When We Buy Now, 165
U. Pa. L. Rev. (forthcoming 2017), available at
SSRN.
In their forthcoming article, What We Buy When We Buy Now, Aaron Perzanowski and Chris Jay Hoofnagle richly capture today’s digital media marketplace and rightly raise concerns about consumers’ understanding of their legal rights upon licensing a book, movie, or song. They focus upon vendors’ use of the language “buy now” on their websites and test consumer comprehension of this language empirically. The results, showing, for example, that 83 percent of respondents believed they “owned” their media, certainly raise alarms. The article proposes a sensible and inexpensive solution, supported by the authors’ empirical evidence, that would help clear up the “buy now” confusion, namely “adding a short notice to a digital product page that outlines consumer rights.” I enthusiastically recommend this article for anyone interested in twenty-first century digital commerce.
As with any excellent article, perplexing issues remain. For example, is “buy now” less misleading than the article suggests? As mentioned, 83 percent of respondents believed they “owned” their media, but as the authors concede, the concept of ownership is inherently ambiguous, and perhaps doesn’t preclude in consumers’ minds the limitations that licensing entails. In addition, although more than 80 percent of respondents believed they could use their digital media on any of their devices, the reality is not so starkly different according to the authors, with some vendors allowing such usage and others not. Fewer than 50 percent of respondents thought incorrectly that they held the right in turn to lend, gift, resell, or copy their product, or leave their product in a will. In fact, fewer than 25 percent thought mistakenly that they had the right to resell or copy their media. On the other hand, 86 percent of respondents thought they could keep their digital product indefinitely, and Perzanowski and Hoofnagle set forth several counterexamples demonstrating that this misperception may be a real problem. In addition, the authors note that the FTC labels an advertising practice as deceptive even if only 10 or 15 percent of people are misled by the practice. Continue reading "What Does “Buy Now” Really Mean?"
