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Natural Language and Legal Interpretation
Get PDFJudges and lawyers often appeal to the “ordinary meaning” of the words in legal texts. Until very recently, claims about the ordinary meaning of words in legal texts have not been informed by evidence of the way that words are used or understood by ordinary people. This is because no such evidence—and no method to gather such evidence—was available. Instead, judges, parties, and scholars have been left to rely on their own linguistic intuitions and dictionaries, both of which are problematic guides to the usage or understanding of ordinary people. This symposium on Data Driven Interpretation focuses on recent developments that have challenged these traditional limitations: The rise of the use of linguistic corpora in legal interpretation, and recent scholarship evaluating interpretive claims with survey methods. Corpus evidence and survey evidence may also disagree, providing inconsistent answers to what appear on the surface to be similar questions. This has led some to conclude that the corpus-based answers to these interpretive questions must be incorrect. But where survey responses and corpus-based evidence differ on similar questions, we may have reason to prefer the corpus-based answer because it is premised on evidence of natural language that was produced in a natural communicative setting. At the very least, where survey-based answers and corpus-based answers to interpretive questions differ, interpreters should very carefully interrogate the reason for that difference. At bottom, both corpora and surveys can provide evidence of linguistic use and understanding that was not previously available to interpreters. This essay will explore some of the comparative advantages and disadvantages of using corpus methods or survey methods in legal interpretation
A Half-Built House: The Substantial Similarity Analysis Split in Architectural Copyright Infringement Cases
Get PDFThe path to extending copyright protection to architectural works in the United States has not come without its challenges, especially as the federal courts continue to muddle through complicated and varying case law to determine whether architectural works infringement has occurred in a given dispute. Applying a uniform approach to analyze substantial similarity in a way that effectively protects architectural works across the federal circuits is necessary to fulfill the legislative intent and the constitutional intent of copyright protection. Likewise, a uniform approach will clarify the level of copyright protection that architectural works are permitted to receive in the United States. This note argues that courts should implement a “look and feel” test to determine the overall similarity of the architectural works, then separate out unprotectable elements through traditional copyright mechanisms, and compare again to ensure that enough original, copyrightable elements are present to declare the works substantially similar. Applying this multistep approach with an inverse ratio fulfills the legislative intent of the Architectural Works Copyright Protection Act as well as the constitutional purposes of copyright protection, and it provides architects with a uniform understanding of how the law will be applied should they need to initiate an infringement actio
REDUCING CONFLICTS OF INTEREST: A GLASS-STEAGALL SPLIT OF ADVISORY AND CONSULTING SERVICES OF PROXY ADVISORY FIRMS
Get PDFThis Note explores a solution to the potential problem with proxy advisory firms that involves an inherent conflict of interest arising from the structure of two services—advisory and consulting services—offered at certain proxy advisory firms in the United States. The solution proposed in this paper applies a Glass-Steagall framework to breakup these two services of the proxy advisory firms. In theory, this would eliminate the inherent conflicts of interest
LET\u27S STOP PLAYING GAMES: WHY BETTER CONGRESSIONAL INTERACTION IS REQUIRED TO PROTECT YOUNG GAMERS
Get PDFThis Note addresses the predatory nature of video game microtransactions, the serious risks they pose, and why an improved plan of legislative intervention is necessary to protect young, vulnerable video game consumers. With loot box microtransactions driving a flourishing industry that has reached unprecedented levels of success, adequate consumer protection cannot properly be achieved through self-regulation. Senator Josh Hawley’s Protecting Children from Abusive Games Act is a step in the right direction, but its broad language will result in unintended consequences that can cripple the entire industry. Revising the bill’s language will protect the intended young consumer and allow for other forms of microtransactions that do not harm consumers
Broken PROMESA: Why the United States Should Abandon Its Use of the Territories Clause to Control the Local Affairs of Puerto Rico
Get PDFPuerto Rico’s sovereignty status is an anomaly. Since the United States acquired the island in 1898, the federal government has treated Puerto Ricans differently compared to residents of its other acquired territories. The United States also exerts significant control over Puerto Rico’s local affairs, most recently through the enactment and enforcement of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) in response to the current debt crisis in Puerto Rico. This note assesses the validity of the federal government’s use of the territories clause to control local Puerto Rican affairs, examining the complex history between the United States and Puerto Rico. It suggests that the federal government relinquished its authority to invoke such powers through the passage of Public Law 600, which vested Puerto Ricans with the right to “constitutional self-governance.” This note also suggests an alternative approach to addressing the current debt crisis while giving Puerto Ricans democratic power over the debt restructuring process
The Patient Assistance Problem
Get PDFImplemented in January 2006 as a voluntary enrollment supplement to standard Medicare plans, Medicare Part D coverage subsidizes the cost of prescription drugs for participants. However, significant gaps in coverage exist for those suffering from rare diseases that require costly drugs. Pharmaceutical companies seek to remove the powerful market force of patient price sensitivity by directly sponsoring or substantially funding “patient assistance programs” that help cover out-of-pocket costs. While pharmaceutical donors insist that their goal is strictly altruistic, the reality is that many of these programs offer a financial windfall for drug makers because they help funnel patients towards new pharmaceuticals with generic alternatives while collecting the drug’s market price at the expense of taxpayers. This Note argues that industry-sponsored patient assistance programs violate the anti-kickback statute and should be outlawed. To preserve a safety net of assistance while discouraging illegal activity, an industry-sponsored, CMS-administered fund should be established for the appropriate disbursement of pharmaceutical industry charity, opening access to costly, life-saving medications to a broader population of needy patients in a manner uninfluenced by corporate bottom lines
Let the Bots Be Bots: Why the CFAA Must Be Clarified to Prevent the Selective Banning of Data Collection Facilitating Private Social Media Information Monopolization
Get PDFIn September 2019, the United States Court of Appeals for the Ninth Circuit granted plaintiff-startup hiQ Labs a preliminary injunction allowing it to “bot scrape” off of defendant-social networking service LinkedIn’s public profiles without triggering liability under Section 1030(a)(2)(C) of the Computer Fraud & Abuse Act (CFAA) for accessing a website “without authorization.” Differing judicial interpretations demonstrate the lack of clarity as to the legality of third-party bot scraping against the website owner’s consent, which causes irreparable harm to businesses that rely on such practices to operate, and antitrust issues when website owners like LinkedIn and Facebook can selectively ban third-parties from collecting data on their public websites for their own private gain, while facing no comparable competition. Further, while hiQ Labs received a favorable result in the Ninth Circuit, that decision has since been vacated by the Supreme Court, and hiQ Labs ceased business operations in 2018. Hence, the tumultuous litigation’s fatal business impact on hiQ Labs creates a blueprint for how other social media sites can hamstring smaller private companies’ bot scraping on their sites through lengthy litigation. Thus, this Note proposes that Congress clarify the CFAA by (1) allowing any public social media profile data viewable without a log-in to be free of CFAA liability; and (2) for public profile data that can only be viewed after passing through a log-in threshold, triggering CFAA liability only if the data being collected isn’t accessible after merely creating an account. Therefore, information that can be accessed by anyone with internet access, whether fully public or viewable after easily creating an account on the site, should be deemed public information that private social media companies have no authority to prevent collection of under the CFAA
Protecting Internet Access: A Human Rights Treaty Approach
Get PDFWith the evolution of the internet, the world has also seen a marked increase in government-ordered internet shutdowns and restrictions, sometimes with dubious justifications and sometimes with no justification at all. As people have become increasingly reliant on the internet for their day-to-day activities and to keep up with important news, internet restrictions often disrupt lives and violate people’s civil and human rights. While no international law directly protects internet access, it is implicitly advocated for under the freedom of opinion and expression. The upward trend of internet restrictions, however, suggests that an implied protection of access to a necessary resource is not enough. Greater monitoring and vetting are needed to discourage unnecessary restrictions and to encourage accountability when restrictions are imposed. An international or multilateral treaty is usually accompanied by a treaty committee, which oversees how successfully States parties honor their commitments. Accordingly, a treaty committee would be in a unique position to monitor and vet internet restrictions imposed by States parties, which would discourage the practice of unnecessary internet restrictions. This Note examines recent internet restrictions in India, Ethiopia, and Venezuela with a focus on the reasons given for the restrictions as well as their impact. Rather than simply proposing the establishment and provisions of a multilateral treaty, this Note explores how this treaty could be practicably implemented and monitored by its treaty committee by taking lessons from the existing multilateral treaty framework
Mechanical Turk Jurisprudence
Get PDFThis paper argues that data-driven interpretation creates a “Mechanical Turk” jurisprudence: a jurisprudence that appears mechanical but in fact is thoroughly human. Its contribution to the literature is twofold. First, it articulates an intellectual history of data-driven interpretation: data-driven tools have been adopted because society associates quantification with a mechanical objectivity and because objectivity is at the center of debates over statutory interpretation. Second, it criticizes surveys as an interpretative tool: in addition to a host of practical execution problems, surveys misunderstand the concept of “ordinary meaning” and threaten to undermine the value of faithful agency