Digital Commons Network^™

The Inadequate, Invaluable Fair Information Practices, Woodrow Hartzog

Faculty Scholarship

For the past thirty years, the general advice for those seeking to collect, use, and share people’s personal data in a responsible way was relatively straightforward: follow the fair information practices, often called the “FIPs.” These general guidelines were designed to ensure that data processors are accountable for their actions and that data subjects are safe, secure, and endowed with control over their personal information. The FIPs have proven remarkably sturdy against the backdrop of near-constant technological change. Yet in the age of social media, big data, and artificial intelligence, the FIPs have been pushed to their breaking point. We …

How Much Has The Supreme Court Changed Patent Law?, Paul Gugliuzza

Faculty Scholarship

The U.S. Supreme Court has decided a remarkable number of patent cases in the past decade, particularly as compared to the first twenty years of the Federal Circuit’s existence. No longer is the Federal Circuit “the de facto Supreme Court of patents,” as Mark Janis wrote in 2001. Rather, it seems the Supreme Court is the Supreme Court of patents. In the article at the center of this symposium, Judge Timothy Dyk of the Federal Circuit writes that the Supreme Court’s decisions “have had a major impact on patent law,” citing, among other evidence, the Court’s seventy percent reversal rate …

The Deserving Poor, The Undeserving Poor, And Class-Based Affirmative Action, Khiara M. Bridges

Faculty Scholarship

This Article is a critique of class-based affirmative action. It begins by observing that many professed politically conservative individuals have championed class-based affirmative action. However, it observes that political conservatism is not typically identified as an ideology that generally approves of improving the poor’s well-being through the means that class-based affirmative action employs — that is, through redistributing wealth by taking wealth from a wealthy individual and giving it directly to a poor person. This is precisely what class-based affirmative action does: it takes a seat in an incoming class (a species of wealth) from a wealthy individual and gives …

Take The Fifth... Please!: The Original Insignificance Of The Fifth Amendment's Due Process Of Law Clause, Gary S. Lawson

Faculty Scholarship

The Fifth Amendment’s Due Process of Law Clause adds nothing to the Constitution’s original meaning. Every principle for limiting federal executive, judicial, and even legislative powers that can plausibly be attributed to the idea of “due process of law” – from the principle of legality forbidding executive or judicial action in the absence of law to the requirement of notice before valid judicial judgments to a limitation on arbitrary governmental action that today goes under the heading of “substantive due process” – is already contained in the text and structure of the Constitution of 1788. The Fifth Amendment Due Process …

The Internet Will Not Break: Denying Bad Samaritans Section 230 Immunity, Danielle K. Citron, Benjamin Wittes

Faculty Scholarship

What do a revenge pornographer, gossip-site curator, and platform pairing predators with young people in one-on-one chats have in common? Blanket immunity from liability, thanks to lower courts’ interpretation of section 230 of the Communications Decency Act (CDA) beyond what the text, context, and purpose support. The CDA was part of a campaign — rather ironically in retrospect — to restrict access to sexually explicit material online. Lawmakers thought they were devising a safe harbor for online providers engaged in self-regulation. The CDA’s origins in the censorship of “offensive” material are inconsistent with outlandishly broad interpretations that have served to …

Optimal Remedies For Patent Infringement, Keith N. Hylton, Mengxi Zhang

Faculty Scholarship

This paper derives optimal remedies for patent infringement, examining damages awards and injunctions. The fundamental optimality condition that applies to both awards and injunctions equates the marginal static cost of intellectual property protection with the marginal “dynamic” benefit from the innovation thereby induced. When the social value of the patent is sufficiently high, the optimal award induces socially efficient investment by giving the innovator the entire social value of her investment.

By Any Other Name: Rational Basis Inquiry And The Federal Government's Fiduciary Duty Of Care, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

Under modern law, federal legislation is subject to “rational basis review” under the doctrinal rubric of “substantive due process.” That construction of the Fifth Amendment’s Due Process Clause is notoriously difficult to justify as a matter of original constitutional meaning. Something very similar to substantive due process, however, is easily justifiable as a matter of original constitutional meaning once one understands that the Constitution, for interpretative purposes, is best seen as a kind of fiduciary instrument. Fiduciary instruments operate against a background of legal norms that notably include a duty of care on the part of agents. All federal actors …

No Restoration, No Rehabilitation: Shadow Detention Of Mentally Incompetent Noncitizens, Sarah R. Sherman-Stokes

Faculty Scholarship

This article examines the burgeoning mental competency regime in immigration removal proceedings, as well as its shortcomings. While some strides have been made in the last six years to identify noncitizen detainees who are incompetent, and to implement safeguards, including appointed counsel, to protect their rights, the current mental competency framework fails to protect some of the most vulnerable. Specifically, this article explains that mentally incompetent, noncitizen detainees for whom no adequate safeguards are available, face a kind of shadow, prolonged and potentially indefinite detention. These detainees’ continued detention is wholly without process – despite their incompetence, they are not …

Towards Patent Standardization, Janet Freilich, Jay P. Kesan

Faculty Scholarship

Among the most important purposes of patents are to provide clear notice to third parties of the patent's boundaries and to disclose helpful information to researchers seeking to replicate or further develop the patented invention. Unfortunately, patents often fail at both of these tasks, in part because of lack of uniformity of language and format.' Use of idiosyncratic language in patent claims renders it difficult to find relevant patents and, once a patent is found, to interpret its claims. As there is no customary set of information that must always be included in a patent, researchers often find reading a …

The Future Of Fast Food Governance, Andrew Elmore

Faculty Scholarship

The Fast Food Forward movement has swelled into one of the largest protests by low‐wage workers in U.S. history, animating efforts at all levels of government to raise and enforce workplace standards. One such strategy is to hold fast food franchisors accountable as joint employers of their franchisees’ employees. In what may be a watershed moment, New York Attorney General Eric Schneiderman (NYAG) recently filed suit against Domino’s Pizza, the franchisor, for wage‐and‐hour‐law violations in its franchisees’ stores across New York State.

Fast food store employees report widespread wage‐and‐hour law violations, and the NYAG’s Domino’s lawsuit appears to confirm this …

Enhanced Damages For Patent Infringement: A Normative Approach, Keith N. Hylton

Faculty Scholarship

This paper takes a normative approach to patent infringement damages. Its underlying premise is that the goal of a damages regime should be to maximize society's welfare. Patent damages should therefore balance society's interest in encouraging innovation against the need to regulate infringement incentives. This balancing approach generates an optimal standard for awarding enhanced damages and guidelines for determining the size of the damages multiplier. On the legal standard, the approach developed here illuminates the factors that should be taken into consideration in the enhancement analysis, and, more importantly, the reasons those factors should be considered. On the precise size …

Nfib V. Sebelius At 5, Nicole Huberfeld

Faculty Scholarship

Keeping up with health care reform is like running up a mountain of sand - every time you reach the top, -the terrain starts shifting. In this talk, I offer a snapshot of where we are in implementing the Patient Protection and Affordable Care Act ("ACA") to aid in understanding the significance of NFIB v. Sebelius' at five. I will situate the ACA2 within historical patterns in American health care reform. I have been asked to discuss the key points of the NFIB decision, after which I will share some of the research that I have performed for the past …

Teaching The Law Of American Health Care, Elizabeth Weeks, Nicole Huberfeld, Kevin Outterson

Faculty Scholarship

In writing our casebook, The Law of American Health Care, we started from scratch, rethinking the topics to include and themes around which to organize them. Like many health law professors, we were schooled in and continued to propound the traditional themes of cost, quality, access, and choice. While those concerns certainly pervade many areas of health care law, our casebook's overarching themes emphasize different issues, namely: federalism, individual rights, fiduciary relationships, the modem administrative state, and market regulation. These new themes, we believe, better capture the range of issues and topics essential forthe new generation of health lawyers. When …

Brief Of Amici Curiae Scholars Of The Constitutional Rights And Interests Of Children In Support Of Respondents In Masterpiece Cakeshop Ltd, Et Al V. Colorado Civil Rights Commission, Angela Onwuachi-Willig, Catherine E. Smith, Lauren Fontana, Tanya Washington, Barbara Bennett Woodhouse

Faculty Scholarship

Masterpiece Cakeshop LTD, et al v. Colorado Civil Rights Commission is about much more than a wedding cake. It is about the rightful place of LGBT people and their families in the commercial and public sphere. In fact, children are already bearing the brunt of exclusionary practices in the public marketplace because of their relationship to or association with their LGBT parents. In Michigan, a pediatrician refused to treat an infant based solely on the fact that the child had lesbian mothers. In Kentucky, a judge refused to hear adoption cases of children involving LGBT adoptive-parents-to-be. In Tennessee, a nondenominational …

Before Interpretation, Anya Bernstein

Faculty Scholarship

What is it that a judge interprets in a statutory interpretation case? This Article shows that the answer to this question is surprisingly complex. First, the text that a judge interprets is not simply given. Rather, judges must select texts to interpret. Second, the background against which a judge views that text is also not given. Rather, judges situate the texts they interpret within unique, case-specific contexts that they construct from a diverse and unpredictable variety of factors. Selecting and situating: these form the infrastructure of interpretation. Each requires judges to exercise creativity and choice. But opinions tend to present …

Comment On "Error And Regulatory Risk In Financial Institution Regulation", Keith N. Hylton

Faculty Scholarship

I agree with just about everything Jonathan Macey (2017) says in his symposium contribution. His claim that bureaucratic tendencies toward regularity—specifically, treating like cases alike—generate errors in categorization seems appropriate to me. His explanations of the pathologies in financial regulation should fall in the category of essential or required reading for anyone who chooses to write on the topic. Where I differ from Macey is in the choice of framework, or perspective from which to view the pathologies. Whereas Macey adopts an “error cost” framework, which is clearly appropriate for this symposium, I would build explicitly on a “public choice” …

Recognizing Women's Rights At Work: Health And Women Workers In Global Supply Chains, Erika R. George, Candace D. Gibson, Rebecca Sewall, David Wofford

Faculty Scholarship

The Guiding Principles mandate that businesses respect the human fights enshrined in the International Bill of Human Rights and in the International Labour Organization (ILO)'s Declaration on Fundamental Principles and Rights at Work. Due diligence processes and risk impact assessments are the main recommended means for ensuring compliance with companies' commitments to respect international human fights. Because OSH as a conceptual framework and regulatory order is not sufficient to identify the risk of health fights violations to women workers, we argue companies should not anchor their due diligence and risk assessment in OSH conventions and settle for a check-the-box solution …

Race And The New Policing, Jeffrey Fagan

Faculty Scholarship

Several observers credit nearly 25 years of declining crime rates to the “New Policing” and its emphasis on advanced statistical metrics, new forms of organizational accountability, and aggressive tactical enforcement of minor crimes. This model has been adopted in large and small cities, and has been institutionalized in everyday police-citizen interactions, especially among residents of poorer, often minority, and higher crime areas. Citizens exposed to these regimes have frequent contact with police through investigative stops, arrests for minor misdemeanors, and non-custody citations or summons for code violations or vehicle infractions. Two case studies show surprising and troubling similarities in the …

New Policing, New Segregation: From Ferguson To New York, Jeffrey Fagan, Elliott Ash

Faculty Scholarship

In popular and political culture, many observers credit nearly twenty-five years of declining crime rates to the “New Policing.” Breaking with a past tradition of “reactive policing,” the New Policing emphasizes advanced statistical metrics, new forms of organizational accountability, and aggressive tactical enforcement of minor crimes. The existing research and scholarship on these developments have focused mostly on the nation’s major cities, where concentrated populations and elevated crime rates provide pressurized laboratories for police experimentation, often in the spotlight of political scrutiny. An additional line of scholarship has looked more closely at how the tactics of the New Policing have …

The Future Of State Sovereignty, Joseph Raz

Faculty Scholarship

Advances in the legalisation of international relations, and the growing number of international organisations raise the question whether state sovereignty had its day. The paper defines sovereignty in a way that allows for degrees of sovereignty. Its analysis assumes that while sovereignty has become more limited, a trend which may continue, there is no sign that it is likely to disappear. The paper offers thoughts towards a normative analysis of these developments and the prospects they offer. Advocates of progress towards world government, while wise to many of current defects, are blind to the evils that a world government will …

Leading With Conviction: The Transformative Role Of Formerly Incarcerated Leaders In Reducing Mass Incarceration, Susan Sturm, Haran Tae

Faculty Scholarship

This report documents the roles of formerly incarcerated leaders engaged in work related to reducing incarceration and rebuilding communities, drawing on in-depth interviews with 48 of these leaders conducted over a period of 14 months. These “leaders with conviction” have developed a set of capabilities that enable them to advance transformative change, both in the lives of individuals affected by mass incarceration and in the criminal legal systems that have devastated so many lives and communities. Their leadership assumes particular importance in the era of the Trump Presidency, when the durability of the ideological coalitions to undo the failed apparatus …

Finance In The Courtroom: Appraising Its Growing Pains, Eric L. Talley

Faculty Scholarship

This short essay provides an overview of the current state of finance in corporate law, emphasizing its role in a series of pending appraisal cases at the Delaware Supreme Court.

Democratic Experimentalism, Charles F. Sabel, William H. Simon

Faculty Scholarship

Democratic Experimentalism is an orientation in contemporary legal thought that draws on both the critical impulses of modernist theory and the constructive practice of postbureaucratic organization.

Some of the core ideas of Democratic Experimentalism were formulated long ago, notably by pragmatists in the John Dewey mold, but they have been elaborated in response to social developments of recent decades. A recurring challenge presented by these developments is uncertainty, by which we mean the inability to anticipate, much less to assign a probability to, future states of the world. The constellation of changes that make contemporary economies more innovative produces uncertainty …

The Organization Of Prosecutorial Discretion, William H. Simon

Faculty Scholarship

Contemporary understanding of prosecutorial discretion is influenced by anachronistic conceptions of judgment and organization. These conceptions have lost ground dramatically in professions like medicine, teaching, and social work. Yet, they remain prominent to a unique degree in law. They are embedded both in the general professional culture and in legal doctrine. Innovative prosecutorial practices have emerged in recent decades, but their progress has been inhibited by attachment to these older conceptions.

The older conceptions understand professional judgment as a substantially tacit and ineffable decision by a single professional grounded in a relatively static and comprehensive discipline. The associated model of …

Auctions, Taxes, And Air, Dave Owen

Faculty Scholarship

No abstract provided.

Cdc’S New Rule To Track And Quarantine Travellers, Dorit Rubenstein Reiss, Y. Tony Yang

Faculty Scholarship

No abstract provided.

Design Thinking: The Answer To The Impasse Between Innovation And Regulation, Alice Armitage, Andrew K. Cordova, Rebecca Siegel

Faculty Scholarship

No abstract provided.

The Curious Case Of Wendell V. Glaxosmithkline Llc, David L. Faigman, Jennifer Mnookin

Faculty Scholarship

No abstract provided.

Social Bargaining In States And Cities: Toward A More Egalitarian And Democratic Workplace Law, Kate Andrias

Faculty Scholarship

A well-documented problem motivates this symposium: The National Labor Relations Act (NLRA) does not effectively protect workers’ rights to organize, bargain, and strike. Though unions once represented a third of American workers, today the vast majority of workers are non-union and employed “at will.” The decline of organization among workers is a key factor contributing to the rise of economic and political inequality in American society. Yet reforming labor law at the federal level – at least in a progressive direction – is currently impossible. Meanwhile, broad preemption doctrine means that states and localities are significantly limited in their ability …

Our Criminal Laws, Our Constitution, Sarah Seo

Faculty Scholarship

This essay reviews three recently published books that further explore this insight in the twentieth century. At first glance, vagrancy laws, the free will problem, and criminal records may seem to share little in common. But each study illuminates how criminal laws have defined our nation by creating what historian Barbara Welke has termed "borders of belonging," a boundary that laws create between people who enjoy full citizenship and those who do not. After all, a conviction and imprisonment are acts of social and political exclusion. Even the policing of suspected offenders often reveals who does not completely belong.

The …