Digital Commons Network^™

Saving Face: Unfolding The Screen Of Chinese Privacy Law, Tiffany Li, Jill Bronfman, Zhou Zhou

Faculty Scholarship

Privacy is often a subjective value, taking on meaning from specific social, historical, and cultural contexts. Western privacy scholars have so far generally limited academic study to focus on Western ideals of privacy. However, privacy – or some notion of it – can be found in almost every culture and every nation, including the growing economic powerhouse that is the People’s Republic of China. Focusing on China as a case study of non-Western privacy norms is important today, given the rapid rise of the Chinese economy and its corresponding impact on worldwide cultural norms and law. Simply put, it is …

Social Responsibility Resolutions, Scott Hirst

Faculty Scholarship

Shareholders exert significant influence on the social and environmental behavior of U.S. corporations through their votes on social responsibility resolutions. However, the outcomes of many social responsibility resolutions are distorted, because the largest shareholders – institutional investors, such as mutual funds and pension funds – often do not follow the interests or the preferences of their own investors. This paper presents evidence that institutions with similar investors and identical fiduciary duties vote very differently on social responsibility resolutions, suggesting that some institutional votes distort the interests of their investors. Other evidence presented suggests that institutional votes on social responsibility resolutions …

A Perspective On Incentives For Novel Inpatient Antibiotics: No One-Size-Fits-All, Taimur Bhatti, Ka Lum, Silas Holland, Stephanie Sassman, David Findlay, Kevin Outterson

Faculty Scholarship

The need for new “pull” incentives to stimulate antibiotic R&D is widely recognized. Due to the global diversity of health systems, combined with different challenges faced by antibiotics used in different types of healthcare settings, there is no one-size-fits-all solution. Instead, different “pull” incentives should be tailored to local contexts, priorities, and antibiotic types. Policymakers and industry should collaborate to identify appropriate solutions at the local, regional, and global levels.

Practice-Based Research Networks And The Mandate For Real-World Evidence, Elizabeth Hall-Lipsy, Leila Barraza, Christopher Robertson

Faculty Scholarship

The 21^st Century Cures Act encourages the Food and Drug Administration to consider “real-world evidence” in its regulation of the safety and efficacy of drugs and devices. Many have interpreted this mandate to focus on non-randomized observational research. However, we suggest that regulatory science must also move from rarefied academic hospitals to community-based settings, where the vast majority of patients in fact receive care in the fragmented U.S. healthcare system. This move is especially important if innovations are to reach, and be validated in, more diverse populations. A solution can be found in the 183 Practiced-Based Research Networks (“PBRN”), …

A (Nude) Picture Is Worth A Thousand Words — But How Many Dollars?: Using Copyright As A Metric For Harm In "Revenge Porn" Cases, J. Remy Green

Faculty Scholarship

So-called “Revenge Porn” — pornography published without the subject’s permission — is a growing issue. While much discussion exists about how best to outlaw the practice, less has been said about precisely how to measure the harm done. This paper is grounded in an in-depth analysis of the particular way that the Federal Sentencing Guidelines prioritize financial harms and non-financial harms, specifically looking at how many dollars of harm it takes to buy each additional sentencing point. I graph the enforcement priorities for financial and non-financial harm using the numbers federal agencies use for the value of a statistical life. …

Introduction To The Professor Robert Seidman Memorial Issue, Sean J. Kealy

Faculty Scholarship

Shortly after Professor Robert Seidman's passing in 2014, I met up with my friend and colleague Professor Helen Xanthaki at an International Association of Legislation conference in Seoul, Korea. We talked about Bob's enduring legacy in the worlds of legislative drafting and Law & Development, took turns telling stories about Bob and his wife Ann, and agreed that a law review issue dedicated to Bob's memory and work would be a fitting tribute. Needless to say I was honoured when the editor of the European Journal of Law Reform, Dr. Constantin Stefanou, asked me to be the guest editor for …

From Loving V. Virginia To Washington V. Davis: The Erosion Of The Supreme Court's Equal Protection Intent Analysis, Angela Onwuachi-Willig

Faculty Scholarship

In 1967, the United States Supreme Court issued an opinion that contained its most searing and explicit condemnation of white supremacy: Loving v. Virginia. At issue in Loving was the constitutionality of a statutory scheme in the state of Virginia that prohibited marriages between individuals solely on the basis of race. Among other things, provisions in this statutory scheme punished intermarriage between a "white person" and a "colored person," meaning not only Blacks, but also Asian Americans and American Indians who did not fall under the Pocahontas Exception. The provisions also punished evasion of the state's interracial marriage ban by …

Corporate Rights As Subplot, Larry Yackle

Faculty Scholarship

Adam Winkler makes an important contribution to the great body of academic work on corporations in American life. He concentrates on a small corner of the larger topic. He traces only the development of corporate “rights,” and he describes, but does not critique, what he uncovers. There is much to learn from this fine book. I want to applaud Winkler’s primary revelation—namely, that corporate rights are a creation of the courts, especially the Supreme Court.1 Then I want to flag what Winkler (I think) would readily acknowledge: corporate rights are not the whole of the corporate story.

Women’S Human Rights And Migration: Sex Selective Abortion Laws In The United States And India, Aziza Ahmed

Faculty Scholarship

In her compelling new book, Women's Human Rights and Migration, Sital Kalantry challenges the idea that a women's human rights framework offers a consistent and universal way to address complicated gender issues across countries. She is primarily concerned with the lives of migrant women in countries that respond to their social and cultural practices with harsh regulations designed to bring them in line with dominant ideas about gender equality. Kalantry focuses in on two issues in particular: sex-selective abortion and the veil as worn by Muslim women. Kalantry insightfully identifies a primary problem with these types of laws and …

Pregnant Women And Equitable Access To Emergency Medical Care, Michael Ulrich

Faculty Scholarship

A diabetic patient suffering from ketoacidosis was taken from his hospital bed, removed from the hospital, and left in the parking lot without shoes or a shirt because the patient did not have health insurance and had not paid for prior services (Fedas, Alexander, and Chase-Lubitz 1991). The patient died at home the following day. A man with a steak knife in his back, wedged against his spine, was transferred from an emergency room because he was uninsured and could not pay $1,000 cash in advance to remove the knife (Annas 1986). A woman who was mistakenly identified …

Can Rationing Through Inconvenience Be Ethical?, Nir Eyal, Paul Romain, Christopher Robertson

Faculty Scholarship

In this article, we provide a comprehensive analysis and a normative assessment of rationing through inconvenience as a form of rationing. By “rationing through inconvenience” in the health sphere, we refer to a non-financial burden (the inconvenience) that is either intended to cause or has the effect of causing patients or clinicians to choose an option for health‐related consumption that is preferred by the health system for its fairness, efficiency, or other distributive desiderata beyond assisting the immediate patient. We argue that under certain conditions, rationing through inconvenience may turn out to serve as a legitimate and, compared to direct …

Why Courts Fail To Protect Privacy: Race, Age, Bias, And Technology, Bernard Chao, Catherine Durso, Ian Farrell, Christopher Robertson

Faculty Scholarship

The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question is supposed to depend on and reflect the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If …

Are Privacy Laws Deficient?, Woodrow Hartzog

Faculty Scholarship

Privacy law around the world is deficient because it ignores design. Lawmakers have attempted to establish limits on the collection, use, and distribution of personal information. But they have largely overlooked the power of design. They have discounted the role that design plays in facilitating the conduct and harm privacy law is meant to prevent. Design pitches and picks privacy winners and losers, with people as data subjects and surveillance objects often on the losing side.

The Case Against Idealising Control, Woodrow Hartzog

Faculty Scholarship

Seemingly everyone, from scholars, industry, and privacy advocates to lawmakers, regulators, and judges seems to have settled on the idea that the key to privacy is control over personal information. But in practice, there is only so much a person can do. Control is far too precious and finite of a concept to meaningfully scale. It will never work for personal data mediated by technology.

Now we have an entire empire of data protection built around the crumbling edifice of control. The idealisation of control in modern data protection regimes like the GDPR and the ePrivacy Directive creates a pursuit …

In Defense Of Territorial Jurisdiction, Cody Jacobs

Faculty Scholarship

As the story is traditionally told, the minimum contacts test introduced in International Shoe v Washington freed personal jurisdiction from the dark age of territorialism and gave courts the flexibility to expand the scope of personal jurisdiction to keep pace with modern society. While scholars have critiqued the minimum contacts test on a number of grounds, the narrative that the Territorial Model was inherently problematic—and that Shoe was a step in the right direction— has gone largely unchallenged.

This Article challenges that narrative and argues for a return to the Territorial Model. While Shoe is traditionally cast as a step …

Reaching To Restructure Across Borders (Without Over-Reaching), Even After Brexit, Susan Block-Lieb

Faculty Scholarship

Is there such a thing as “good” forum shopping? Courts and commentators have begun to articulate the “virtues” of at least some forum shopping, including forum shopping to resolve corporate insolvency or financial distress whether on a domestic or global basis. Especially within the European Union (EU), acceptance has grown of debtors’ efforts to qualify as eligible to access the forum best able to resolve their financial difficulties, even where the efforts involve substantial “fact shifting,” so long as these efforts occurred transparently and were neither abusive nor in bad faith. Growing acceptance of such efforts is partly the result …

Also, No, Ethan J. Leib

Faculty Scholarship

No abstract provided.

Blackness As Disability?, Kimani Paul-Emile

Faculty Scholarship

No abstract provided.

Does Adr’S “Access To Justice” Come At The Expense Of Meaningful Consent?, Jacqueline Nolan-Haley

Faculty Scholarship

Over the last forty years, ADR processes, in particular mediation and arbitration, have been advanced as vehicles to secure access to justice for individual litigants and to improve efficiency in overburdened court systems. These processes have functioned as alternatives to the court adjudication of disputes, complementing the judicial system, and operating in what has been famously described as “the shadow of the law. The primary benefits promised by ADR were party autonomy and empowerment. ADR processes would allow parties to “fit the forum to the fuss.” These processes would give parties the opportunity to create their own mosaic of justice, …

The Social Meaning Of The Tax Cuts And Jobs Act, Linda Sugin

Faculty Scholarship

This Essay exposes the moral messages implicit in the Tax Cuts and Jobs Act (TCJA). It argues that the legislation reflects values that were not openly debated or discussed in the legislative process, but are crucial to the distributional effects of the law. The TCJA reduces progressivity and increases deficits because it favors traditional families, prefers capital to labor income, treats people as detached from each other, makes charity the narrow concern of the rich, and privileges the acquisition of assets. Fairness in taxation depends on explicitly identifying social values that produce economic justice and purposely designing the law to …

John Marshall’S Long Game. Review Of John Marshall: The Man Who Made The Supreme Court By Richard Brookhiser, Marc Arkin

Faculty Scholarship

No abstract provided.

Contract And The Problem Of Fickle People, Aditi Bagchi

Faculty Scholarship

No abstract provided.

Cities As A Source Of Consumers’ Financial Empowerment, Susan Block-Lieb

Faculty Scholarship

No abstract provided.

Patent Clutter, Janet Freilich

Faculty Scholarship

Patent claims are supposed to clearly and succinctly describe the patented invention, and only the patented invention. This Article hypothesizes that a substantial amount of language in patent claims is in fact not about the core invention, which may contribute to well-documented problems with patent claims. I analyze the claims of 40,000 patents and applications, and document the proliferation of “clutter”—language in patent claims that is not about the invention. Although claims are supposed to be exclusively about the invention, clutter appears across industries and makes up approximately 25% of claim language. Patent clutter may contribute several major problems in …

Resolving The Crisis In U.S. Merger Regulation: A Transatlantic Alternative To The Perpetual Litigation Machine, Dan Awrey, Blanaid Clarke, Sean J. Griffith

Faculty Scholarship

Regulation by litigation has driven U.S. merger regulation to crisis. The reliance on private lawsuits to police disclosures and potential conflicts of interest in mergers, takeovers, and other control transactions has resulted in the filing of claims after every major transaction. However, it has failed to achieve meaningful benefits for shareholders and has instead deprived them of potentially valuable rights. Regulation by litigation has devolved into attorney rent-seeking, and the raft of substantive and procedural reforms aimed at resolving the crisis has failed. There is an alternative to regulation by litigation. Drawing upon the code and panel-based models of merger …

Race And Rights In The Digital Age, Catherine Powell

Faculty Scholarship

No abstract provided.

Christians And Pagans, Abner S. Greene

Faculty Scholarship

No abstract provided.

Piece Of Cake, Brett Scharffs, Frank S. Ravitch

Faculty Scholarship

A baker refuses to create a wedding cake for a same-sex couple because of his religious views on same-sex marriage. The couple claims the baker’s refusal violates state anti-discrimination laws. Their case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, now awaits a decision from the U.S. Supreme Court, which must wrestle with complicated questions about conflicting rights. We posed some of those questions to two religious liberty scholars: Frank S. Ravitch, Professor of Law and Walter H. Stowers Chair in Law and Religion at Michigan State University College of Law, and Brett G. Scharffs, Rex E. Lee Chair and …

Removing Obstacles To A Peaceful Death, Kathy L. Cerminara, Barbara A. Noah

Faculty Scholarship

We all will die, but the American health care system often impedes a peaceful death. Instead of a quiet death at home surrounded by loved ones, many of us suffer through overutilization of sometimes-toxic therapeutic interventions long past the time when those interventions do more good than harm. This article proposes revisions to health professional training and payment policy to eliminate as much as possible physical and existential suffering while progressing through the terminal phase of illness. The solution lies in seamless progression from treatment with integrated palliative care to hospice before death, but provider attitudes and payor practices must …

Foreword—Police Misconduct And Kibbe V. City Of Springfield, Harris Freeman

Faculty Scholarship

The Law Review’s 2017 symposium, “Perspectives on Racial Justice in the Era of #BlackLivesMatter,” appropriately opened with a panel that addressed the ongoing challenge of combating police misconduct, as seen through the lens of Kibbe v. City of Springfield, a civil rights case that unfolded in Western Massachusetts and reached the United States Supreme Court thirty years ago. Kibbe presented the Court with the question of what the proper standard of liability should be for a municipality accused of a civil rights violation under 42 U.S.C. § 1983 for inadequately training a police officer who violates a person’s civil …