Law Commons^™

A Relational Turn For Data Protection?, Neil Richards, Woodrow Hartzog

Faculty Scholarship

If there’s one thing everyone in the data protection debate can agree on, it’s that it’s all about the data. All over the world, data protection regimes fixate on when data can be collected, how it is being processed, when it can be accessed or should be deleted, and whether it is personal, sensitive, or deidentified. This is true even for approaches that seem quite different at first glance, such as the U.S. and EU.

Bipa: The Most Important Biometric Privacy Law In The Us?, Woodrow Hartzog

Faculty Scholarship

In May 2020, Clearview AI abruptly ended all service contracts with all non-law enforcement entities based in Illinois. The reason? It hoped to avoid an injunction and potentially large damages under one of the most important privacy laws in America: the Illinois Biometric Information Privacy Act (BIPA).

Automation: A Guide For Policymakers, James Bessen, Maarten Goos, Anna Salomons, Wiljan Van Den Berge

Faculty Scholarship

Advancing technologies are increasingly able to fully or partially automate job tasks. These technologies range from robotics to machine learning and other forms of artificial intelligence, and are being adopted across many sectors of the economy. Applications range from selecting job applicants for interviewing, picking orders in a warehouse, interpreting X-rays to diagnose disease, and automated customer service. These developments have raised concern that workers are being displaced by advancing automation technology. Indeed, over 18 recent studies predict job losses from new automation technologies, including some predictions of massive job losses (Winick 2018). A large literature on worker displacement [1] …

Social, Cultural And Economic Aspects Of Antimicrobial Resistance, Timo Minssen, Kevin Outterson, Susan Rogers Van Katwyk, Pedro Henrique D Batista, Clare I. R. Chandler, Francesco Ciabuschi, Stephan Harbarth, Aaron Kesselheim, Ramanan Laxminarayan, Kathleen Liddell, Michael T. Osterholm, Lance Price, Steven J. Hoffman

Faculty Scholarship

Although often considered only a medical problem, antimicrobial resistance is an evolutionary challenge accelerated by social, cultural and economic factors that lead to the misuse, overuse and abuse of life-saving antimicrobial medicines. The antimicrobial resistance challenge is compounded by inadequate attention to disease prevention and response, global circulation of people and products, differences in industry and market regulations across countries, and a fragile pipeline of new antibiotics and their alternatives. While the discovery of new antimicrobials will provide temporary solutions, sustainable success requires rigorous social science research that explores the drivers of antimicrobial resistance. These solutions should promote balance between …

Disclosure Of Third-Party Funding In International Arbitration, Victoria Sahani

Faculty Scholarship

Third-party funding has evolved into a ubiquitous “feature of modern litigation” that in some jurisdictions is “an accepted and judicially sanctioned activity perceived to be in the public interest.”529 Similarly, third-party funding has become even more prevalent in international arbitration, particularly considering the high dollar amount of most arbitral awards. In addition, several major arbitration seats have officially embraced third-party funding in international arbitration through legislation or court opinions, including Australia, England, and Wales, most of the states in the United States, Germany, the Netherlands, several provinces in Canada, Singapore, Hong Kong, South Africa, and Nigeria (indirectly).530 Furthermore, there are …

First Man And Second Woman: Reflections On The Anniversaries Of Apollo 11 And Cruzan, George J. Annas

Faculty Scholarship

THE United States Supreme Court's decision in Cruzan v. Director, Missouri Department of Health marks its thirtieth anniversary in 2020.' This follows closely after the fiftieth anniversary of the Apollo 11 moon landing.² Anniversaries provide an opportunity for reflection and to gain perspective. We can, I suggest, gain deeper insights regarding human life and death by considering these two anniversaries together. Apollo 11 may seem far from Nancy Cruzan-but the discovery of disturbing details about the death of Neil Armstrong, the first man on the moon, is a productive introduction to the topic of death in a modern American …

“Unusual Care”: Groupthink And Willful Blindness In The Support Study, George J. Annas, Catherine L. Annas

Faculty Scholarship

The SUPPORT study of extremely premature newborns seems likely to go down as one of the most controversial studies of the 21st century (SUPPORT Study Group 2010). We previously suggested that the researchers in SUPPORT were "legally blind" in failing to understand that the "standard" that defines the content of informed consent is set by law, including the federal regulations, not by what physicians "usually" do or don't do (Annas and Annas 2013). Macklin and Natanson, also early critics of the SUPPORT study's failure to disclose the increased risk of death posed by the study, (Macklin et al. 2013) attack …

Is Tort Law The Tool For Fixing Reproductive Wrongs?, Christopher Robertson

Faculty Scholarship

In his 2019 book, Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law, Dov Fox offers a compelling argument for new torts allowing recovery for wrongful reproduction. These torts would include three sorts of cases, those where wrongdoing (whether negligent, reckless, or intentional) caused undesired reproduction; stymied desired reproduction; or confounded reproduction, causing birth of a child different than that intended by the parents. The likely defendants in these torts are gynecologists, urologists, sperm banks, and IVF clinics.

Understanding Violent-Crime Recidivism, J. J. Prescott, Benjamin David Pyle, Sonja B. Starr

Faculty Scholarship

People convicted of violent crimes constitute a majority of the imprisoned population but are generally ignored by existing policies aimed at reducing mass incarceration. Serious efforts to shrink the large footprint of the prison system will need to recognize this fact. This point is especially pressing at the time of this writing, as states and the federal system consider large-scale prison releases motivated by the COVID-19 pandemic. Those convicted of violent crimes constitute a large majority of older prisoners, who are extremely vulnerable to the spread of the virus behind bars. Excluding them from protective measures will deeply undermine those …

Capitalizing On Healthy Lawyers: The Business Case For Law Firms To Promote And Prioritize Lawyer Well-Being, Jarrod F. Reich

Faculty Scholarship

This Article is the first to make the business case for firms to promote and prioritize lawyer well-being. For more than three decades, quantitative research has demonstrated that lawyers suffer from depression, anxiety, and addiction far in excess of the general population. Since that time, there have been many calls within and outside the profession for changes to be made to promote, prioritize, and improve lawyer well-being, particularly because many aspects of the current law school and law firm models exacerbate mental health and addiction issues, as well as overall law student and lawyer distress. These calls for change, made …

Federalism, Erisa, And State Single-Payer Health Care, Erin C. Fuse Brown, Elizabeth Mccuskey

Faculty Scholarship

While federal health reform sputters, states have begun to pursue their own transformative strategies for achieving universal coverage, the most ambitious of which are state-based single-payer plans. Since the passage of the Affordable Care Act in 2010, legislators in twenty-one states have proposed sixty-six unique bills to establish single-payer health care systems. This paper systematically surveys those state legislative efforts and exposes the federalism trap that threatens to derail them: ERISA's preemption of state regulation relating to employer-sponsored health insurance. ERISA's expansive preemption provision creates a narrow, risky path for state regulation to capture the employer health care expenditures crucial …

Ranking For Good?: A Comparative Assessment Of The Performance Of French Corporations In Human Rights Rankings, Erika George, David Restrepo Amariles

Faculty Scholarship

This article proceeds as follows. First, it will define well-being and discuss the ways in which a range of human rights must be protected to promote well-being. Next, it will explain the ways businesses can impact well-being, for good or for ill. This will be followed by a discussion on the relevant legal and policy frameworks in France that regulate information relevant to the social and environmental impacts of business, including the Duty of Vigilance Law and the National Action Plan of France for Implementing the U.N. Guiding Principles on Business and Human Rights. Using examples of leading French multinational …

The State Qui Tam To Enforce Employment Law, Andrew Elmore

Faculty Scholarship

This Article examines the states' response to Epic Systems v. Lewis, which held enforceable under the Federal Arbitration Act (FAA) mandatory arbitration agreements that require employees to waive their participation in collective and class actions in employment contracts. Recent evidence shows that mandatory arbitration can erode access to justice for and deterrence of employment law claims. States in response are considering qui tam statutes, which assign the state interests in penalties for employment law violations to private enforcers in return for a bounty, to substitute for the loss of class action enforcement after Epic Systems.

These statutes can …

Me Too? Incentivising States To Adopt Consent-Based Sex Education, Seth Reiner

Faculty Scholarship

In November 2018, Columbia University published a study showing that students who received formal sex education before entering college that included training in refusing unwanted sex were half as likely to be assaulted as those who had not. That study claims to be the first to research sex education’s effect on sexual violence instead of its impact on pregnancy or HIV prevention. A different study, conducted by Planned Parenthood in 2015, shows confusion around the definition of sexual consent itself: it found that 19% of people strongly agreed that not saying “no” indicated consent for more sexual activity, whereas 20% …

Technologies Of Language Meet Ideologies Of Law, Anya Bernstein

Faculty Scholarship

This Article challenges this new prevailing wisdom, puts legal corpus linguistics in the context of other meaning-making technologies, and suggests an approach for analyzing any technology of language in the law. One of my aims is to caution against technological exceptionalism—a view that computerized, automated, or big-data approaches are somehow special, perhaps more trustworthy, less subjective, and most likely to succeed. Rather, I argue that we should ask the same questions and make the same demands of any method of interpretation.

Any technology, after all, is only as useful as the way it is used: Technology depends on technique. So …

Income Taxation Of Small Business: Toward Simplicity, Neutrality And Coherence, David G. Duff

All Faculty Publications

Among the many contributions that Judith Freedman has made to tax law and policy in the United Kingdom and around the world, one of the most sustained and significant involves the regulation and taxation of small business. This article reviews Professor Freedman’s contributions to tax law and policy regarding small business, and evaluates Canadian experience with the taxation of private companies and their shareholders in light of Professor Freedman’s work. Part II summarizes Professor Freedman’s main conclusions regarding the taxation of small business, addressing both the taxation of similar economic activities conducted through different legal forms and the rationale and …

Cross-Border Regulation Of Securities Markets In Asean, Wai Yee Wan

Research Collection Yong Pung How School Of Law

How does cross-border regulation of securities markets work in Association of South East Asian Nations (ASEAN)? How closely are the securities markets coordinated within ASEAN from the regulatory perspective? What is the optimal regulatory model of integration of securities markets that balances the economic benefits of integration and yet minimizes the risks of contagion and advances the state’s national goals? The issues posed by these questions are important against the background of strong growth of the Asian economies and Asian capital markets, and how the ASEAN states can take advantage of such growth to facilitate economic growth. According to the …

Article 152 Of The Singapore Constitution: The Past, Present, And Future Of Multiracial Recognition, Inclusion, And Accommodation, Eugene K. B. Tan

Research Collection Yong Pung How School Of Law

The bicentennial commemoration consists of a year-long series of events to mark the 200^th anniversary of the arrival of Sir Stamford Raffles in Singapore on 29 January 1819. The arrival of the British resulted in the creation of Singapore as a free port and marked the economic, physical, and social transformation of the island, which continues today. Yet, the irony is that the bicentennial commemoration also deliberately seeks to shed light and focus on a more distant past: The half-millennia before Singapore was colonialised and when Singapore was known as Temasek and seen as part of the Nusantara.

Land Of The Falling "Poison Pill" Understanding Defensive Measures In Japan On Their Own Terms, Alan K. Koh, Masafumi Nakahigashi, Dan W. Puchniak

Research Collection Yong Pung How School Of Law

Embraced by United States ("U.S.") managers in the 1980s as a lifeline in a sea of hostile takeovers, the poison pill fundamentally altered the trajectory of American corporate governance. When a hostile takeover wave seemed imminent in Japan in the mid-2000s, Japanese boards appeared to embrace this American invention with equal enthusiasm. Japan's experience should have been a ringing endorsement for the utility of American corporate governance solutions in foreign jurisdictions -but it was not to be. Japan's unique interpretation of the "poison pill" that was so eagerly adopted by Japanese companies in the mid-to-late 2000s has turned out to …

Innovation Institutions And The Opioid Crisis, Daniel J. Hemel, Lisa Larrimore Ouellette

Coase-Sandor Institute for Law & Economics Research Paper Series

The United States has recently—and belatedly—come to recognize opioid addiction as a public health crisis. What has gone mostly unrecognized is the degree to which this crisis is intertwined with U.S. intellectual property law and related elements of U.S. innovation policy. Innovation institutions—the legal arrangements that structure incentives for production and allocation of knowledge goods—encouraged the development and commercialization of addictive painkillers, restricted access to opioid antidotes, and (perhaps most importantly) failed to facilitate investments in alternative, non-addictive treatments for chronic pain. Although innovation policy does not bear all the blame for the opioid wave that has washed over communities …

Drugs, Patents, And Well-Being, Christopher Buccafusco, Jonathan S. Masur

Coase-Sandor Institute for Law & Economics Research Paper Series

The ultimate end of patent law must be to spur innovations that improve human welfare—innovations that make people better off. But firms will only invest resources in developing patentable inventions that will allow them to make money—that is, inventions that people will want to use and buy. This can gravely distort the types of incentives that firms face and the types of inventions they pursue. Nowhere is this truer than in the pharmaceutical field. There is by now substantial evidence that treatments for diseases that primarily afflict poorer people—including the citizens of developing nations—are dramatically under-produced, compared with drugs that …

Antibiotic Development — Economic, Regulatory And Societal Challenges, Christine Årdal, Manica Balasegaram, Ramanan Laxminarayan, David Mcadams, Kevin Outterson, John H. Rex, Nithima Sumpradit

Faculty Scholarship

Antibiotic resistance is undoubtedly one of the greatest challenges to global health, and the emergence of resistance has outpaced the development of new antibiotics. However, investments by the pharmaceutical industry and biotechnology companies for research into and development of new antibiotics are diminishing. The public health implications of a drying antibiotic pipeline are recognized by policymakers, regulators and many companies. In this Viewpoint article, seven experts discuss the challenges that are contributing to the decline in antibiotic drug discovery and development, and the national and international initiatives aimed at incentivizing research and the development of new antibiotics to improve the …

Racial Purges, Robert L. Tsai

Faculty Scholarship

In a two-year period, 1885-86, over 168 communities in America forcibly expelled Chinese residents from their midst. This essay, inspired by historian Beth Lew-Williams's book, THE CHINESE MUST GO, investigates the nineteenth-century purges of Chinese residents that occurred throughout the American west. I make three arguments. First, these acts of racial and political terror complicate our understanding of racial violence in America. Many of the actions were denounced, but they were also surprisingly effective in forcing business and political leaders to support the indefinite suspension of Chinese migration. Perpetrators faced almost no legal repercussions, and unlike for freed persons, racial …

The Growth And Need For Veterans Treatment Courts, Chad Lennon

Touro Law Review

No abstract provided.

Herman Melville’S Billy Budd: Why This Classic Law And Literature Novel Endures And Is Still Relevant Today, Rodger Citron

Touro Law Review

No abstract provided.

Debt In Just Societies: A General Framework For Regulating Credit, John Linarelli

Scholarly Works

Debt presents a dilemma to societies: successful societies benefit from a substantial infrastructure of consumer, commercial, corporate, and sovereign debt but debt can cause substantial private and social harm. Pre- and post-crisis solutions have seesawed between subsidizing and restricting debt, between leveraging and deleveraging. A consensus exists among governments and international financial institutions that financial stability is the fundamental normative principle underlying financial regulation. Financial stability, however, is insensitive to equality concerns and can produce morally impermissible aggregations in which the least advantaged in a society are made worse off. Solutions based only on financial stability can restrict debt without …

Diploma Privilege And The Constitution, Patricia E. Salkin, Claudia Angelos, Sara J. Berman, Mary Lu Bilek, Carol L. Chomsky, Marsha Griggs, Joan W. Howarth, Eileen Kaufman, Deborah Jones Meritt, Judith Wegner, Andrea Curcio

Scholarly Works

The COVID-19 pandemic and resulting shutdowns are affecting every aspect of society. The legal profession and the justice system have been profoundly disrupted at precisely the time when there is an unprecedented need for legal services to deal with a host of legal issues generated by the pandemic, including disaster relief, health law, insurance, labor law, criminal justice, domestic violence, and civil rights. The need for lawyers to address these issues is great but the prospect of licensing new lawyers is challenging due to the serious health consequences of administering the bar examination during the pandemic.

State Supreme Courts are …

Access Law Schools & Diversifying The Profession, Deseriee A. Kennedy

Scholarly Works

Lawyers do not reflect the racial diversity in the United States. The legal profession continues to struggle with ways to achieve and maintain racial diversity. Law schools play a critical role in the path to practice, and therefore an examination of the barriers to the profession they created is warranted. This essay critiques the over-reliance on standardized testing in law school admissions and advocates for an open admissions process that prioritizes racial and academic diversity. It suggests that the benefits of minimizing the role of standardized tests far outweigh any perceived costs in legal education. This essay concludes that the …

Municipal Power And Democratic Legitimacy In The Time Of Covid-19, Alexandra Flynn

All Faculty Publications

As COVID-19 swept through Canada, cities were at the front lines in curbing its spread. From March 2020, municipalities introduced such measures as restricting park access, ticketing those lingering in public places, and enforcing physical distancing requirements. Local governments have also supplemented housing for the vulnerable and given support to local “main street” businesses. Citizens expected their local governments to respond to the pandemic, but few people know how constrained the powers of municipalities are in Canadian law. Municipalities are a curious legal construct in Canadian federalism. Under the constitution, they are considered to be nothing more than “creatures of …

The Patriation Of Canadian Corporate Law, Camden Hutchison

All Faculty Publications

Canadian corporate law belongs within a broader Anglo-American legal tradition, sharing many of the features of other common law jurisdictions, most notably England and the United States. Prior to Confederation, Canadian corporate law first emerged from nineteenth-century English legislation and continued to resemble English law – at least superficially – well into the twentieth century. Legislation is only one source of corporate law, however. Just as important is the creation of legal rules through the common law adjudicatory process. Thus, examining case law raises an important empirical question distinct from, though relevant to, the issue of legislative influence – namely, …