Digital Commons Network^™

Privacy's Constitutional Moment And The Limits Of Data Protection, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

America’s privacy bill has come due. Since the dawn of the Internet, Congress has repeatedly failed to build a robust identity for American privacy law. But now both California and the European Union have forced Congress’s hand by passing the California Consumer Privacy Act (CCPA) and the General Data Protection Regulation (GDPR). These data protection frameworks, structured around principles for Fair Information Processing called the “FIPs,” have industry and privacy advocates alike clamoring for a “U.S. GDPR.” States seemed poised to blanket the country with FIP-based laws if Congress fails to act. The United States is thus in the midst …

Criminal Law In Crisis, Benjamin Levin

Scholarship@WashULaw

In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state. I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list. Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in some way …

Manipulating Opportunity, Pauline Kim

Scholarship@WashULaw

Concerns about online manipulation have centered on fears about undermining the autonomy of consumers and citizens. What has been overlooked is the risk that the same techniques of personalizing information online can also threaten equality. When predictive algorithms are used to allocate information about opportunities like employment, housing, and credit, they can reproduce past patterns of discrimination and exclusion in these markets. This Article explores these issues by focusing on the labor market, which is increasingly dominated by tech intermediaries. These platforms rely on predictive algorithms to distribute information about job openings, match job seekers with hiring firms, or recruit …

The Future Of Space Governance, Melissa (M.J.) Durkee

Scholarship@WashULaw

Fifty years after the first moonwalk, the prospect for a new set of multilateral agreements governing outer space is remote, yet the legal questions raised by activity in space are mounting. With little prospect of new treaties, nations will need to make do with existing treaty law, generate customary rules to govern new applications, or develop forms of sub-legal understanding and cooperation. This special conference issue of the Georgia Journal of International and Comparative Law addresses these questions.

Considering Legitimacy, Gillian E. Metzger

Faculty Scholarship

This Article on Richard Fallon’s Law and Legitimacy in the Supreme Court focuses on public acceptance of the Supreme Court’s authority, what Fallon calls sociological legitimacy. After setting out Fallon’s accounts of legitimacy and constitutional argumentation, the Article looks at public opinion data and political science scholarship on the extent to which the Court’s decisions affect public acceptance of the Court. It then turns to the normative question of whether, even if the Court’s decisions may undermine its sociological legitimacy, that impact is a legally legitimate factor for the Court to consider. The Article argues that strategic consideration of the …

The Role Of Lawyers In Decarbonizing Society, Michael B. Gerrard

Faculty Scholarship

This Essay concerns one current project to turn GHG reduction goals into actual laws that could achieve these goals. The project has four phases: (1) formulating the engineers’ recommendations; (2) identifying the existing laws that would help implement those recommendations, and the new laws that need to be written; (3) drafting the laws; and (4) attempting to persuade lawmakers at the federal, state, and local levels to adopt them. This Essay discusses each phase in turn. As will be shown, we are well into the third phase and starting the fourth, and are in need of volunteer lawyers to help …

Trauma-Informed Advocacy: Learning To Empathize With Unspeakable Horrors, Susan Ayres

Faculty Scholarship

No abstract provided.

Gender-Silent Legislative Drafting In A Non-Binary World, Jessica Vapnek, Donald L. Revell

Faculty Scholarship

No abstract provided.

Clerking For A Retired Supreme Court Justice—My Experience Of Being “Shared” Among Five Justices In One Term, Rory Little

Faculty Scholarship

No abstract provided.

The Qualified Small Business Stock Exclusion: How Startup Shareholders Get $10 Million (Or More) Tax-Free, Manoj Viswanathan

Faculty Scholarship

No abstract provided.

Perverse Incentives: Why Everyone Prefers High Drug Prices -- Except For Those Who Pay The Bills, Robin C. Feldman

Faculty Scholarship

Health care spending rarely follows an ordinary, rational model. Yet even in that context, prescription drug prices are rising at a puzzling rate. What is causing the phenomenon? Quite simply, incentives percolating throughout the prescription drug market push players toward higher prices. At the center lies the highly secretive and concentrated Pharmacy Benefit Manager (PBM) industry middle players who negotiate between drug companies and health insurers by arranging for rebates and establishing coverage levels for patients. Contracts between drug companies and the middle players are closely guarded secrets. The PBM customers, including Medicare, private insurers, and even their auditors, generally …

Lower-Income Tax Planning, Manoj Viswanathan

Faculty Scholarship

Tax planning is generally criticized by scholars as inefficient; that is, imposing welfare-reducing costs by incentivizing transactions with few non-tax economic benefits. This Article argues that this view is unacceptably narrow and makes the original claim that tax planning by lower-income taxpayers is often welfare-enhancing and should, as a normative matter, be encouraged. As such, various parties, including the IRS, law school clinics, legal academics, and tax practitioners should actively strategize to reduce the transaction costs currently hindering lower-income tax planning. This Article then applies that mandate to a specific cohort of lower-income taxpayers- drivers working in the sharing economy-and …

Naked Price And Pharmaceutical Trade Secret Overreach, Robin C. Feldman, Charles Graves

Faculty Scholarship

Trade secret has drifted from a quiet backwater doctrine to a pervasive force in intellectual property. As always, the risk of distortion is great when a legal arena is developing and expanding rapidly. Nowhere do the theoretical tensions of trade secret law appear in such stark relief as in the modern pharmaceutical debates, where the heart of the theoretical question involves whether pricing is a proper subject for trade secrecy claims.

We aim to bring trade secret into greater harmony with broad concepts that reach across all intellectual property regimes. As with other areas of intellectual property law, trade secret …

The Burden On Society From Eleventh-Hour 'Citizen Petitions' Filed To Slow Generic Drugs, Robin C. Feldman

Faculty Scholarship

The Food and Drug Administration's citizen petition process provides an avenue for ordinary citizens to raise concerns and participate in the regulatory process. Abuse of that process has been documented as an example of the legal maneuvering used by pharmaceutical companies to protect their brand-name drug revenue streams from the introduction of low-cost generics. To date, the financial cost to society of these delays has not been calculated in the literature, which likely hinders the push for policy solutions. Drawing from a previously published data set on 249 citizen petitions, this Article will identify four petitions that were highly likely …

When Are Vaccine Mandates Appropriate?, Dorit R. Reiss, Carmel Shachar

Faculty Scholarship

Vaccine refusal is a serious public health problem, especially in the context of diseases with potential to spark global pandemics, such as Ebola virus disease in the Democratic Republic of the Congo. This article examines whether and when compelling vaccination through mandates and criminalization, for example, are appropriate. It argues that some legal approaches are ethical when they preserve social stability, trust in government, therapeutic research opportunities, or when they diminish disease severity.

Viral Licensing: Ensuring The Public Interest When Taxpayers Fund Pharmaceutical Research, Robin C. Feldman, Betty Chang Rowe, Rabiah Oral

Faculty Scholarship

In recent years, the nation's drug development and delivery system has loomed in the forefront of pressing policy concerns. This piece suggests a relatively simple pathway that could provide opportunities for progress with aspects of the problem. Through the addition of a few choice provisions in their licensing agreements, research universities could improve consumer choices and access to the drugs developed with their government-funded research. Looking at the entire drug development system, universities play a complex set of roles. They are both the keepers of the academic flame and the stewards of public money. Beyond that, universities also may benefit …

Public Land Policy After The Trump Administration: Is This A Turning Point?, John D. Leshy

Faculty Scholarship

No abstract provided.

Social Enterprise Lawyering, Alina S. Ball

Faculty Scholarship

No abstract provided.

To Litigate A Pandemic: Cases In The United States Against China And The Chinese Communist Party And Foreign Sovereign Immunities, Chimene Keitner

Faculty Scholarship

No abstract provided.

Coequal Federalism And Federal-State Agencies, Dave Owen, Hannah Jacobs Wiseman

Faculty Scholarship

Dividing authority between the federal government and the states is central to the theory and practice of federalism. Division is the defining feature of dual federalism, which dominates the U.S. Supreme Court’s federalism jurisprudence. Recent academic theories of federalism emphasize overlap and interaction but still assume that federal and state actors will work within separate institutions. Each approach can be problematic, yet assumptions of separation remain the bedrock of federalism. This Article discusses a different form of federalism: coequal federalism. Under coequal federalism, federal- and state-appointed officials collaborate within a single agency that makes decisions binding on the federal government …

An Aye Aye For An Aye Aye: Making Biodiversity Offsets Sustainable, David Takacs

Faculty Scholarship

No abstract provided.

The Covid-19 Vaccine Dilemma, Dorit R. Reiss

Faculty Scholarship

COVID-19 continues to lead to large numbers of deaths, harms, and financial costs. Without an effective vaccine, those will continue. The pressure to find a vaccine is high; and that pressure places a risk on the safeguards in place to assure that vaccines are safe and effective will be ignored. The United States has an extensive apparatus to oversee vaccine safety before and after licensing, including multiple federal committees and several monitoring systems, and that apparatus gave us, in 2020, an extraordinarily safe vaccine supply. This Article explains the different pressures that push for and against using the same apparatus …

Institutionalizing The Centers For Disease Control And Prevention's Independence, Dorit R. Reiss

Faculty Scholarship

The United States' response to the COVID-19 pandemic was sub­ optimal. One problem in it was the politicization of the public health response. One aspect of that politicization was aggressive political intervention in the Centers for Disease Control and Prevention ( CDC) efforts to provide guidance and help pandemic response. The concern was strong enough that four previous CDC Directors, in an unusual step, published an op-ed calling out political intervention in the CDC. This article proposes two changes to strengthen the CDC's institutional independence: codifying the CDC's role in preventing diseases and reducing harms in a statute, and restructuring …

Digging The Rabbit Hole, Covid-19 Edition: Anti-Vaccine Themes And The Discourse Around Covid-19, Tara C. Smith, Dorit R. Reiss

Faculty Scholarship

This article draws on a broadcast popular among the anti-vaccine community to map out six themes used by the broadcast to mislead viewers about COVID-19. The themes are the claim that “they” e government and pharma e are lying to you, claims that COVID-19 is an excuse to remove civil liberties, viewing everyone as an expert, claiming that science cannot save us, skewing the science, and a claim that “they” are out to harm the viewers. The article points out that similar themes are used to mislead followers with anti-vaccine information. It highlights the concern that these themes will not …

How Congress Can Help Raise Vaccine Rates, Dorit R. Reiss, Y. Tony Yang

Faculty Scholarship

2019 saw an unusually high number of measles cases, and other preventable disease outbreaks, at least in part linked to vaccines refusal. States are considering legislative responses. This Essay examines what role the federal government can fill in increasing vaccines rates. The Essay suggests that the federal government has an important role to fill in funding research, coordination, and local efforts. It also suggests that a federal school vaccine mandate is likely not the solution: first, such mandates can run into plausible constitutional challenges, and second, there are policy arguments against it. The policy contentions include the unfairness of imposing …

When Public Participation Is Public Theatre: Misuse Of Public Comment Opportunities By Anti-Vaccine Activists, Dorit R. Reiss, Barbara S. Romzek

Faculty Scholarship

No abstract provided.

Evidence Of Memory From Brain Data, Emily R. Murphy, Jesse Rissman

Faculty Scholarship

Much courtroom evidence relies on assessing witness memory. Recent advances in brain imaging analysis techniques offer new information about the nature of autobiographical memory and introduce the potential for brain-based memory detection. In particular, the use of powerful machine- learning algorithms reveals the limits of technological capacities to detect true memories and contributes to existing psychological understanding that all memory is potentially flawed. This article first provides the conceptual foundation for brain-based memory detection as evidence. It then com- prehensively reviews the state of the art in brain-based memory detection research before establishing a framework for admissibility of brain-based memory …

Moral Character: Making Sense Of The Experiences Of Bar Applicants With Criminal Records, Hadar Aviram

Faculty Scholarship

No abstract provided.

Estimating The Need For Additional Bankruptcy Judges In Light Of The Covid-19 Pandemic, Benjamin Iverson, Jared A. Ellias, Mark Roe

Faculty Scholarship

In this Article, we present the first effort to use an empirical approach to bolster the capacity of the bankruptcy system during a national crisis—here, the COVID-19 crisis. We provide two analyses, one using data from May 2020, very early on in the crisis, and another using data from September 2020, closer to the publication of this Article. Our analysis is based on an empirical observation: Historically, an increase in the unemployment rate has been a leading indicator of a rise in bankruptcy filings. If this historical trend continues to hold, the May 2020 unemployment rate of 13.3% would have …

Providing Adolescents With Independent And Confidential Access To Childhood Vaccines: A Proposal To Lower The Age Of Consent, Lois A. Weithorn, Dorit R. Reiss

Faculty Scholarship

The recent rise in rates of nonvaccination and vaccine-preventable diseases and the attendant risks to the public’s health require that lawmakers consider new policy solutions. This Article proposes one such solution. We recommend creation of a limited exception to parental decisionmaking authority by permitting certain older minors to provide legally binding consent for childhood vaccinations and protecting the confidentiality of minors who request vaccination. We analogize this proposed policy to other statutory exceptions that permit certain minors independent access to services relating to contraception, pregnancy, sexually transmitted diseases, mental health and substance abuse, and sexual assault. In this interdisciplinary paper, …