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Intellectual Property Harms: A Paradigm for the Twenty-First Century
Get PDFThis short essay is part of a larger book project that investigates how contemporary intellectual property debates, especially in the digital age, are taking place over less familiar terrain: fundamental rights and values. Its argument draws from the diverse, personal accounts of interviews from everyday creators and innovators and focuses on descriptions of harms and, as some say “abuses,” they suffer within their practicing communities. The harms are not described are the usual harms that intellectual property law is understood to prevent. Typically, intellectual property injuries are conceived in individual terms and as economic injuries. An infringer is a thief. A corporation overclaiming intellectual property rights is greedy or engaged in immoral financial conquest. Intellectual property injuries are conceived as uncompensated benefits, foregone licensing fees, or substitutional rivalry. The individualized and economic terms are unmistakable. But accounts from everyday creators and innovators instead describe harms to communities, systems, and institutions. They concern patterns of violence, institutionalized corruption and incumbency biases, and disproportionality that is experienced as irrationality. The underlying concern is these intellectual property harms, which intellectual property law for the digital eco-system seems to promote, erode the interdependent connections and mutual obligations that secure individuals in groups (communities, organizations and institutions) on which we rely to live and work. This leads to a sense of personal and professional precarity further degrading essential structure and relations, threatening an essentially sustaining belief of a shared fate in our connected times.Interviewees describe a longing for affective relations with invigorated political, economic, and social power built around the new forms of alliances that can resist the power of capitalized incumbents. The accounts from everyday creators and innovators conjure an ideal structure with moral narratives of collaboration, accountability, and quality standards. These are antidotes to the digital age’s exacerbation of intellectual property’s doubling-down on ownership, exclusivity, and accumulation or appropriation for its own sake. When translated to more generalizable values, these are calls for reciprocity, transparency, and proportionality and (whether or not they know it) a return to basic rule of law principles. In doing so, everyday creators and innovators revive the rule of law’s fundamental purpose, and what, in intellectual property law is an ultimate goal: to promote the common good by promoting and protecting a healthy public sphere. The surprising conclusion is that accounts of intellectual property harms do not champion the protection of private property as maximizing science and the useful arts but instead the protection of socio-political systems that promote fundamental values the rule of law serves
Chapter 8: Is the Preemption Clause of ERISA Unconstitutional?
Get PDFThe authors suggest plaintiffs and/or state attorneys general should consider taking Justice Clarence Thomas up on his effective suggestion, in the 2016 Supreme Court case of Gobeille v. Liberty Mutual Insurance, to put before the federal courts the question whether the preemption clause of the Employee Retirement Income Security Act of 1974 (“ERISA”) represented a valid exercise of federal power under the Commerce Clause of the Constitution. ERISA’s exceptionally broad statement of preemption does in fact seem to have unconstitutional reach: It purports to preempt “any and all” state laws that simply “relate to” employee benefits, a formulation without logical boundaries. Furthermore, because the clause currently does, in the main, only harm to the interests of plan participants and public welfare, constitutionally limiting ERISA preemption to conflict or field preemption” has normative benefits. The new approach would leave ERISA’s protective measures in effect, while opening the possibility of a future in which the states may pursue diverse policies of economic justice and social welfare, reflecting the circumstances and political preferences of their respective populations
Law, Technology and Patient Safety
Get PDFMedical error is the third leading cause of death in the United States, In an effort to increase patient safety, various regulatory agencies require reporting of adverse events, but reported counts tend to be inaccurate. In 2005, in an effort to reduce adverse event rates, Congress proposed a list of “never events,” adverse events, such as wrong-site surgery, that should never occur in hospitals, and authorized CMS to refuse payment for care required following such events. CMS has since pushed for further regulation, “such as putting more payment at risk, increasing transparency, increasing frequency of quality data reviews, and stepping up media scrutiny.” Evidence suggests these public reporting and pay-for-performance initiatives compel hospitals to manipulate reports, and in some cases patient treatment, to conceal adverse events.
The purpose of this Essay is to consider how we might use law coupled with technological advances to increase adverse event count accuracy. On the technology front, three advances are particularly relevant. First, digitization of medical records, billing data, and other sources of germane information has made collecting large amounts of data easier than ever. Second, current adverse event counters employ powerful computer algorithms, and we’re likely moving towards detecting adverse events through analysis of large datasets using artificial intelligence. Third, governmental entities have started to team up with computer scientists who use cryptographic techniques to collect sensitive data in ways that protect the anonymity of data producers. We explore how law might harness the power of these technological developments to increase adverse event count accuracy without creating incentives for providers to hide data or alter treatment practices in harmful or wasteful ways.
This Essay is organized as follows. Part II describes current methods used by hospitals, CMS and researchers to count adverse events. It also attempts to explain the wide disparities in counts produced by various counting methods. A close look at count disparities illuminates two problems with today’s methods. First, the most reliable count estimates are not generalizable. Second, evidence suggests that providers act to shroud true counts, sometimes in ways that put patients at risk. Part III suggests that recent technological advances might make it possible to use law to improve the accuracy of adverse event counts. In particular, we explore the law’s possible annexing of three technological advances—digitized patient data, artificial intelligence, and cryptography—to assemble a state-of-the-art adverse events dataset that could make it possible for policy makers, in conjunction with providers, to take well-informed steps towards increasing patient safety. Part IV discusses a number of possible hurdles and concludes
Corporate Governance by Index Exclusion
Get PDFInvestors have long been unhappy with certain governance arrangements adopted by companies undertaking initial public offerings, such as dual-class voting structures. Traditional sources of corporate governance rules—the Securities and Exchange Commission, state law, and exchange listing rules—do not constrain these arrangements. As a result, investors have turned to a new source of governance rules: index providers.This Article provides a comprehensive analysis of index exclusion rules and their likely effects on insiders’ decision-making. We show that efforts to portray index providers as the new sheriffs of the U.S. capital markets are overstated. Index providers face complex and conflicting interests, which make them reluctant regulators, at best. We put forward an analysis of insider incentives in light of index exclusions and apply it to one of the most important applications of index exclusion rules to date, the recent decision by index providers to exclude from their indexes certain companies with dual-class share structures. We conclude that the efficacy of index exclusions in preventing disfavored arrangements such as dual-class structures is likely to be limited, but not zero.Index exclusions are a corporate governance experiment, one that has important lessons. We examine these lessons, and the way forward for corporate governance. These lessons are all the more important because of the central place of index funds, and therefore index providers, in our capital markets
The Specter of the Giant Three
Get PDFThis Article examines the large, steady, and continuing growth of the Big Three index fund managers — BlackRock, Vanguard, and State Street Global Advisors. We show that there is a real prospect that index funds will continue to grow, and that voting in most significant public companies will come to be dominated by the future “Giant Three.”/= / \u3e/= / \u3eWe begin by analyzing the drivers of the rise of the Big Three, including the structural factors that are leading to the heavy concentration of the index funds sector. We then provide empirical evidence about the past growth and current status of the Big Three, and their likely growth into the Giant Three. Among other things, we document that the Big Three have almost quadrupled their collective ownership stake in S&P 500 companies over the past two decades; that they have captured the overwhelming majority of the inflows into the asset management industry over the past decade; that each of them now manages 5% or more of the shares in a vast number of public companies; and that they collectively cast an average of about 25% of the votes at S&P 500 companies./= / \u3e/= / \u3eWe then extrapolate from past trends to estimate the future growth of the Big Three. We estimate that the Big Three could well cast as much as 40% of the votes in S&P 500 companies within two decades. Policymakers and others must recognize — and must take seriously — the prospect of a Giant Three scenario. The plausibility of this scenario exacerbates concerns about the problems with index fund incentives that we identify and document in other work
Evaluating New York’s “Revenge Porn” Law: A Missed Opportunity to Protect Sexual Privacy
No full textSix years after lawmakers first considered the issue of nonconsensual pornography, New York has criminalized the practice. We wholeheartedly support the effort in our role as legal scholars and as advocates for the Cyber Civil Rights Initiative (CCRI). One of us (Franks) drafted the first model statute criminalizing “revenge porn” and worked on New York’s original effort to address the abuse in 2013. Together, in 2014, we wrote the first law review article calling for the criminalization of “revenge porn.” But our enthusiasm for New York’s long overdue step in joining 42 other states and D.C. in prohibiting nonconsensual pornography is tempered by our view that the statute falls short in failing to conceive the problem as involving sexual privacy
Everything from Soup to Nuts: The Full Plate of Academic Law Library Directorship
Get PDFInspired by A Day in My Law Library Life,\u27 Circa 1997, this compilation collects descriptions of a day in the lives of law librarians in 2018. The descriptions provide a current snapshot and historical record of the law library profession, with similarities to, and differences from, the profession of 1997
Diversity Drift
Get PDFDiversity may be under attack in the age of Trump, but higher education in America has its own diversity problem. If mission statements and strategic plans offer any guidance, many of America’s colleges and universities actively value diversity. Yet even as calls for diversity grow, these calls far too often lack a clear and coherent normative anchor. Institutions often seek “diversity” without first having done the work to define, precisely, why they want diversity, or to identify, concretely, what sorts of diversity will get them there.As a result, universities have become susceptible to diversity drift, whereby good intentions invite unintended — and at times, perverse — consequences. Seemingly innocuous language (as simple as calls to hire and admit “diverse people”), for instance, risks reifying whiteness as an institutional baseline against which students and faculty of color are rendered perpetual outsiders. And untethered to history, context, and power, calls for diversity can fall victim to false equivalencies that deny any principled distinction between those who would #TakeAKnee to honor Black lives and those who travel the college circuit to mock, demean, and insult
The Pathologies of Digital Consent
Get PDFConsent permeates both our law and our lives — especially in the digital context. Consent is the foundation of the relationships we have with search engines, social networks, commercial web sites, and any one of the dozens of other digitally mediated businesses we interact with regularly. We are frequently asked to consent to terms of service, privacy notices, the use of cookies, and so many other commercial practices. Consent is important, but it’s possible to have too much of a good thing. As a number of scholars have documented, while consent models permeate the digital consumer landscape, the practical conditions of these agreements fall far short of the gold standard of knowing and voluntary consent. Yet as scholars, advocates, and consumers, we lack a common vocabulary for talking about the different ways in which digital consents can be flawed.This article offers four contributions to improve our understanding of consent in the digital world. First, we offer a conceptual vocabulary of “the pathologies of consent” — a framework for talking about different kinds of defects that consent models can suffer, such as unwitting consent, coerced consent, and incapacitated consent. Second, we offer three conditions for when consent will be most valid in the digital context: when choice is infrequent, when the potential harms resulting from that choice are vivid and easy to imagine, and where we have the correct incentives choose consciously and seriously. The further we fall from these conditions, the more a particular consent will be pathological and thus suspect. Third, we argue that out theory of consent pathologies sheds light on the so-called “privacy paradox” — the notion that there is a gap between what consumers say about wanting privacy and what they actually do in practice. Understanding the “privacy paradox” in terms of consent pathologies shows how consumers are not hypocrites who say one thing but do another. On the contrary, the pathologies of consent reveal how consumers can be nudged and manipulated by powerful companies against their actual interests, and that this process is easier when consumer protection law falls far from the gold standard. In light of these findings, we offer a fourth contribution — the theory of consumer trust we have suggested in prior work and which we further elaborate here as an alternative to our over-reliance on consent and its many pathologies
Janet Halley in Conversation with Aziza Ahmed: Interview
No full textAziza Ahmed is a leading feminist legal theorist, and a former student of Janet Halley. Ahmed engaged Halley in an open-ended discussion touching on feminism, sexuality, legal regimes, and human rights during 2014. The following is an edited version of their encounter