Digital Commons Network^™

Biometric Id Cybersurveillance, Margaret Hu

Faculty Scholarship

The implementation of a universal digitalized biometric ID system risks normalizing and integrating mass cybersurveillance into the daily lives of ordinary citizens. ID documents such as driver’s licenses in some states and all U.S. passports are now implanted with radio frequency identification (RFID) technology. In recent proposals, Congress has considered implementing a digitalized biometric identification card—such as a biometric-based, “high-tech” Social Security Card—which may eventually lead to the development of a universal multimodal biometric database (e.g., the collection of the digital photos, fingerprints, iris scans, and/or DNA of all citizens and noncitizens). Such “hightech” IDs, once merged with GPS-RFID tracking …

Can We Build Behavioral Game Theory?, Gale M. Lucas, Mathew D. Mccubbins, Mark Turner

Faculty Scholarship

The way economists and other social scientists model how people make interdependent decisions is through the theory of games. Psychologists and behavioral economists, however, have established many deviations from the predictions of game theory. In response to these findings, a broad movement has arisen to salvage the core of game theory. Extant models of interdependent decision-making try to improve their explanatory domain by adding some corrective terms or limits. We will make the argument that this approach is misguided. For this approach to work, the deviations would have to be consistent. Drawing in part on our experimental results, we will …

The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel

Faculty Scholarship

No abstract provided.

Collective Action Federalism And Its Discontents, Neil S. Siegel

Faculty Scholarship

An increasing number of scholars argue that the Commerce Clause is best read in light of the collective action problems that the nation faced under the Articles of Confederation. The work of these “collective action theorists” is reflected in Justice Ginsburg’s opinion in National Federation of Independent Business v. Sebelius. Writing for four Justices, she stressed the “collective-action impasse” at the state level to which the Affordable Care Act responds.

In its purest form, a collective action approach maintains that the existence of a significant problem of collective action facing two or more states is both necessary and sufficient …

The Broken Safety Net: A Study Of Earned Income Tax Credit Recipients And A Proposal For Repair, Sara Sternberg Greene

Faculty Scholarship

The Earned Income Tax Credit (EITC) is the largest federal antipoverty program in the United States and garners almost universal bipartisan support from politicians, legal scholars, and other commentators. However, assessments of the EITC missed an imperative perspective: that of EITC recipients themselves. Past work relies on largely unconfirmed assumptions about the behaviors and needs of low-income families. This Article provides a novel assessment of the EITC based on original data obtained directly from 194 EITC recipients through in-depth qualitative interviews. The findings are troubling: They show that while the EITC has important advantages over welfare, which it has largely …

Where Should Europe’S Investment Path Lead?: Reflections On August Reinisch, “Quo Vadis Europe?”, Julie A. Maupin

Faculty Scholarship

Relative to the past policies of its Member States, will the European Union’s new comprehensive international investment policy constitute a step forward, a step backward, or a perpetuation of the status quo? Professor Reinisch’s contribution to this volume opens a wide window on the current state of the debate. His cogent analysis suggests that, at present, all three possibilities remain live ones, although some basic contours of a likely trajectory are beginning to take shape. I use his musings as a springboard to investigate two questions which follow naturally from his. That is, in view of Professor Reinisch’s response to …

Happiness Surveys And Public Policy: What’S The Use?, Matthew D. Adler

Faculty Scholarship

This Article provides a comprehensive, critical overview of proposals to use happiness surveys for steering public policy. Happiness or “subjective well-being” surveys ask individuals to rate their present happiness, life-satisfaction, affective state, etc. A massive literature now engages in such surveys or correlates survey responses with individual attributes. And, increasingly, scholars argue for the policy relevance of happiness data: in particular, as a basis for calculating aggregates such as “gross national happiness,” or for calculating monetary equivalents for non-market goods based on coefficients in a happiness equation.

But is individual well-being equivalent to happiness? The happiness literature tends to blur …

Family History: Inside And Out, Kerry Abrams

Faculty Scholarship

No abstract provided.

Plenary Power Preemption, Kerry Abrams

Faculty Scholarship

No abstract provided.

What Makes The Family Special?, Kerry Abrams

Faculty Scholarship

No abstract provided.

Courts Rulings Accept Climate Science, Michael Gerrard

Faculty Scholarship

Viewers of certain television networks, readers of certain newspapers, and anyone visiting Capitol Hill would come away with the impression that there are serious questions about whether climate change is occurring and, if it is, whether it is mostly caused by human activity. One place where there are few such questions is the courts. In fact it appears that (with one lone exception in a dissent) not a single U.S. judge has expressed any skepticism, in a written opinion or dissent, about the science underlying the concern over climate change. To the contrary, the courts have uniformly upheld this science, …

Regulatory Capabilities: A Normative Framework For Assessing The Distributional Effects Of Regulation, Katharina Pistor, Fabrizio Cafaggi

Faculty Scholarship

This paper develops the normative concept of "regulatory capabilities", which asserts that nobody – individuals, groups or entities – should be subjected to a regulatory regime – public or private, domestic or transnational – without some freedom to choose. Choice in this context means the ability to accept or reject a regulatory regime imposed by others or to create an alternative one. A mere formal option is not sufficient; the freedom to choose requires real alternatives. The concept of regulatory capabilities has particular traction in the transnational context where private, hybrid public-private and public actors compete for influence, shape domestic …

Young Again, Larry Yackle

Faculty Scholarship

This essay revisits an old problem in the law of federal courts: the source of the right of action in Ex parte Young. The core of the story underlying Young is familiar. Shareholders in railroad corporations filed suit in a federal circuit court, claiming that state established rail rates in Minnesota violated the Fourteenth Amendment and the (dormant) Commerce Clause. The circuit court issued a preliminary injunction barring adoption of the rates and prohibiting the defendants from attempting to enforce them. One of the defendants, Minnesota Attorney General Edward T. Young, nonetheless brought a state court mandamus action against the …

Plunging Into Endless Difficulties: Medicaid And Coercion In National Federation Of Independent Business V. Sebelius, Nicole Huberfeld, Elizabeth Weeks Leonard, Kevin Outterson

Faculty Scholarship

Of the four discrete questions before the Court in National Federation of Independent Business v. Sebelius, the Medicaid expansion held the greatest potential for destabilization from both a statutory and a constitutional perspective. As authors of an amicus brief supporting the Medicaid expansion, and scholars with expertise in health law who have been cited by the Court, we show in this article why NFIB is likely to fulfill that promise.

For the first time in its history, the Court held federal legislation based upon the spending power to be unconstitutionally coercive. Chief Justice Roberts’ plurality (joined for future voting purposes …

Government Disapproval Of Religion, Jay D. Wexler

Faculty Scholarship

The Supreme Court’s “Endorsement Test” for evaluating the constitutionality of government sponsored symbols, displays, and messages regarding religion is notoriously controversial and has engendered enormous scholarly attention. In addition to government “endorsement” of religion, however, the test also prohibits the government from sending a message of “disapproval” of religion. The disapproval side of the Endorsement Test has not been subject to almost any scholarly discussion, which is not surprising given that until recently the courts have had no reason to entertain, much less sustain, challenges to alleged government disapproval of religion. In the last few years, however, due to a …

The Concept Of "Harm" In Copyright, Wendy J. Gordon

Faculty Scholarship

This essay examines the tort of copyright infringement. It argues that the ideas of "harm" and "fault" already play a role in the tort’s functioning, and that an ideally reformulated version of the tort should perhaps give a more significant role to “harm.” The essay therefore examines what “harm” can or should mean, reviewing four candidates for cognizable harm in copyright law (rivalry-based losses, foregone fees, loss of exclusivity, and subjective distress) and canvassing three philosophical conceptions of "harm" (counterfactual, historical-worsening, and noncomparative). The essay identifies the appropriateness vel non of employing, in the copyright context, each harm-candidate and each …

Distributions Of Industry Payments To Massachusetts Physicians, Aaron S. Kesselheim, Christopher Robertson, Kent Siri, Puneet Batra, Jessica M. Franklin

Faculty Scholarship

Some states have mandated systematic public disclosure of payments made by drug- and device-makers to health care practitioners. We used Massachusetts data to characterize the distribution of payment types and the variation among medical specialties.

The 30 months’ of data included 32,227 reported payments to 11,734 Massachusetts physicians, for a total of $76.7 million. The most common form of payment was food. Compensation for bona fide services was the payment type with the highest value.

We found that 25% of currently licensed Massachusetts physicians received at least one payment during the study period. Prevalence ranged by specialties from pediatricians (12%) …

Who Will Regulate Class Action Lawyers?, Nancy J. Moore

Faculty Scholarship

In 2003, I published an article entitled “Who Should Regulate Class Action Lawyers?”1 In that article, I defended the decision of the American Bar Association’s (“ABA”) Commission on Evaluation of the Model Rules of Professional Conduct (the “Ethics 2000 Commission”), for which I was Chief Reporter, not to propose any substantial amendments to the ABA Model Rules of Professional Conduct (“Model Rules”) concerning the ethical conduct of class action lawyers.

There are many ethical issues that confront class action lawyers. In my 2003 article, I focused on conflicts of interest—an issue that courts and commentators have had difficulty resolving and …

Adjustments, Extensions, Disclaimers, And Continuations: When Do Patent Term Adjustments Make Sense?, Stephanie Plamondon Bair

Faculty Scholarship

The United States patent system represents a measured trade-off between two competing policy considerations: providing sufficient incentives to encourage the innovation and development of new and socially useful inventions; and ensuring that such inventions are readily available to the public at an affordable price. Although the default patent term is now twenty years from filing, various features of, and changes to, the patent system over the years have allowed patent owners to extend the duration of their patent monopolies, sometimes for several years. Such extensions, though seemingly insignificant when compared to the full patent term, have an enormous impact on …

Narrative Pluralism And The Doctrine Incoherence In Hosanna-Tabor, Frederick Mark Gedicks

Faculty Scholarship

In Hosanna-Tabor Church and School v. EEOC, the Supreme Court recognized for the first time that the Religion Clauses require a “ministerial exception” to federal antidiscrimination laws, holding that religious congregations have a broad and categorical immunity against government interference in ministerial employment decisions.

Hosanna-Tabor is filled with ironies. The case is as much about unjustified discrimination and administrative inconsistency as religious liberty. The Court’s endorsement of the exception as a feature of church autonomy overlooks that churches subvert autonomy as often as they protect it. The exception described by the Court is so broad, absolute, and inflexible that it …

Disaggregating Disasters, Lisa Grow Sun, Ronnell Andersen Jones

Faculty Scholarship

In the years since the September 11 attacks, scholars and commentators have criticized the emergence of both legal developments and policy rhetoric that blur the lines between war and terrorism. Unrecognized, but equally as damaging to democratic ideals—and potentially more devastating in practical effect—is the expansion of this trend beyond the context of terrorism to a much wider field of nonwar emergencies. Indeed, in recent years, war and national security rhetoric has come to permeate the legal and policy conversations on a wide variety of natural and technological disasters. This melding of disaster and war for purposes of justifying exceptions …

Closing Wall Street’S Commodity And Swaps Betting Parlors: Legal Remedies To Combat Needlessly Gambling Up The Price Of Crude Oil Beyond What Market Fundamentals Dictate, Michael Greenberger

Faculty Scholarship

The price of crude oil in the futures markets has oscillated wildly during the past five years. Although these price swings may partly be a result of insufficient supply meeting large demand for oil, economic data demonstrate that market fundamentals have in fact remained in equilibrium. An overwhelming number of market participants, financial analysts, and academics have instead shown that unregulated excessive speculation in the oil futures markets is to blame. Such excessive speculation is a result of the financialization of commodities, which has exacerbated price swings in oil because the speculative upward betting causes artificially high prices that do …

Human Rights And The Evolution Of Global Environmental Law, Robert V. Percival

Faculty Scholarship

Environmental problems that jeopardize the health of humans increasingly implicate concerns that have played an important role in the development of international human rights. While some have questioned the wisdom or effectiveness of focusing human rights concerns on environmental problems, it seems an inevitable response to the failure of many countries to protect their citizens adequately from harm caused by environmental degradation. This paper reviews efforts to apply human rights concerns to environmental problems. It describes how these developments illustrate the growth of a kind of “global environmental law” that blurs traditional distinctions between domestic and international law and public …

Collaborating To Nowhere: The Imperative Of Government Accountability For Restoring The Chesapeake Bay, Rena I. Steinzor, Shana Jones

Faculty Scholarship

This Article opens with an analysis of why the Chesapeake Bay Program will repeat its past failures unless a reliable mechanism for ensuring accountability is created. It then explains how the independent evaluator should be constructed to make possible the overall success of Bay restoration. Finally, it closes with a rebuttal of the arguments in favor of self--auditing and against independent review.

Diversifying Clearinghouse Ownership In Order To Safeguard Free And Open Access To The Derivatives Clearing Market, Michael Greenberger

Faculty Scholarship

Implementing the rigorous governance and ownership standards established in the Dodd-Frank Wall Street Reform and Consumer Protection Act3 for derivatives clearing organizations (DCOs) will promote free and open access to clearing and reduce systemic risk within what is now the $700 trillion notional value derivatives market. Such standards are central to and advance the key regulatory tenants of Dodd-Frank: i.e., to restore transparency, capital adequacy, and accountability to what was the unregulated over-the-counter (OTC) derivatives market by ensuring that swaps are cleared through financially sound DCOs. Also, these rules will promote competition by curtailing large swap dealers‘ (SDs) control …

Fighting Cybercrime After United States V. Jones, David C. Gray, Danielle Keats Citron, Liz Clark Rinehart

Faculty Scholarship

In a landmark non-decision last term, five Justices of the United States Supreme Court would have held that citizens possess a Fourth Amendment right to expect that certain quantities of information about them will remain private, even if they have no such expectations with respect to any of the information or data constituting that whole. This quantitative approach to evaluating and protecting Fourth Amendment rights is certainly novel and raises serious conceptual, doctrinal, and practical challenges. In other works, we have met these challenges by engaging in a careful analysis of this “mosaic theory” and by proposing that courts focus …

Looking Backward, Looking Forward: The Next 40 Years Of Environmental Law, Robert V. Percival

Faculty Scholarship

The only certainty concerning predictions for the future of the environment is that most of them are likely to be wrong. This is illustrated by the fate of past predictions, such as those contained in Paul Ehrlich's Populations Bomb, Gregg Easterbrook's A Moment on the Earth, and Bjørn Lomborg's The Skeptical Environmentalist. While it is difficult to guess at the future of the environment, predictions concerning environmental law are even more hazardous because they turn in large part on the future of politics. After reviewing current political gridlock over environmental concerns, this Article considers contemporary forecasts of the fate of …

Municipalities In Distress: A Preventive View, Tamar Frankel

Faculty Scholarship

The recent rising failure of municipalities has not produced the avalanche that some expected.¹ Yet concerns have been raised that the future will spawn more failures.² New York City and other municipalities face soaring pension, Medicaid, and retiree health care costs.³ New York City’s neighboring counties face similar challenges; Yonkers, Suffolk, and Nassau Counties each face their own set of fiscal problems.⁴

Municipalities that have failed, or are likely to fail, have raised a number of legal issues implicated by their inability to pay their debts. Some questions seem new. For example, are employees’ pension benefits …

The Fight To Frame Privacy, Woodrow Hartzog

Faculty Scholarship

The resolution of a debate often hinges on how the problem being debated is presented. In psychology and related disciplines, this method of issue presentation is known as framing. Framing theory holds that even small changes in the presentation of an issue or event can produce significant changes of opinion. Framing has become increasingly important in discussions about privacy and security. In his new book, "Nothing to Hide: The False Tradeoff Between Privacy and Security," Daniel Solove argues that if we continue to view privacy and security as diametrically opposed to each other, privacy will always lose. Solove argues that …

Social Data, Woodrow Hartzog

Faculty Scholarship

As online social media grow, it is increasingly important to distinguish between the different threats to privacy that arise from the conversion of our social interactions into data. One well-recognized threat is from the robust concentrations of electronic information aggregated into colossal databases. Yet much of this same information is also consumed socially and dispersed through a user interface to hundreds, if not thousands, of peer users.

In order to distinguish relationally shared information from the threat of the electronic database, this essay identifies the massive amounts of personal information shared via the user interface of social technologies as “social …