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Labor Trafficking is a Crime You Probably Don\u27t Notice
No full textIt has been more than four years since Catherine Piedad called 911 from a $1.7 million home in Newton.
In 2015, she worked long hours to care for a Russian family’s young twins. Her passport was taken, and she slept in a small room with little light and nowhere to store her clothes. When she asked to be paid, her employer threatened to send her back to the Philippines. She feared deportation and did not know who to trust
Price Discrimination & Intellectual Property
Get PDFThis chapter reviews the law and economics literature on intellectual property law and price discrimination. We introduce legal scholars to the wide range of techniques used by intellectual property owners to practice price discrimination; in many cases the link between commercial practice and price discrimination may not be apparent to non-economists. We introduce economists to the many facets of intellectual property law that influence the profitability and practice of price discrimination. The law in this area has complex effects on customer sorting and arbitrage. Intellectual property law offers fertile ground for analysis of policies that facilitate or discourage price discrimination. We conjecture that new technologies are expanding the range of techniques used for price discrimination while inducing new wrinkles in intellectual property law regimes. We anticipate growing commentary on copyright and trademark liability of e-commerce platforms and how that connects to arbitrage and price discrimination. Further, we expect to see increasing discussion of the connection between intellectual property, privacy, and antitrust laws and the incentives to build and use databases and algorithms in support of price discrimination
When Law Frees Us to Speak
Get PDFA central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyber harassment and sexual privacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, law has an equally important expressive role. In this article, we highlight law’s capacity to shape social norms and behavior through education. We focus on a neglected dimension of law’s expressive role—its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We present new empirical research showing cyber harassment law’s salutary effects on women’s online expression. We consider the implication of those findings for victims of sexual privacy invasions
Why Robert Mueller’s Appointment As Special Counsel Was Unlawful
Get PDFSince 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (“DOJ”) has had in place regulations providing for the appointment of Special Counsels who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17,2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons./= / \u3e/= / \u3eFirst, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. We conduct what we think is the first thorough examination of the statutes structuring the DOJ to show that the statutory provisions relied upon by the DOJ and lower courts for the appointment of Special Counsels over the past two decades do not – and even obviously do not – authorize the creation and appointment of Special Counsels at the level of United States Attorneys. They authorize the creation and appointment of Special Counsels to “assist” United States Attorneys, and they allow existing Senate-confirmed United States Attorneys to serve also as Special Counsels, but they do not remotely authorize the creation of the kind of Special Counsels represented by Robert Mueller who replace rather than assist United States Attorneys. United States v. Nixon, 418 U.S. 683 (1974), does not hold to the contrary, because no question was raised in that case about the validity of the independent counsel’s appointment./= / \u3e/= / \u3eSecond, even if one chooses to overlook the absence of statutory authority for the position, there is no statute specifically authorizing the Attorney General, rather than the President by and with the advice and consent of the Senate, to appoint such a Special Counsel. Under the Appointments Clause, inferior officers can be appointed by department heads only if Congress so directs by statute – and so directs specifically enough to overcome a clear-statement presumption in favor of presidential appointment and senatorial confirmation. No such statute exists for the Special Counsel./= / \u3e/= / \u3eThird, the Special Counsel is, in all events, a superior rather than inferior officer and thus cannot be appointed by any means other than presidential appointment and senatorial confirmation regardless of what any statutes purport to say. This is obviously true as a matter of original meaning, and it is even true as a matter of case law once one understands that neither Morrison v. Olson, 487 U.S. 654 (1988), nor Edmond v. United States, 520 U.S. 651 (1997), can plausibly be read to say that any person who is in any fashion subordinate to another executive official is an “inferior” officer. Such a reading leads to the ludicrous result that there is only one non-inferior officer in every federal department, which is a good reason not to read them that way./= / \u3e/= / \u3eThere are surely times when Special Counsels are appropriate. Both statutes and the Constitution provide ample means for such appointments through the use of existing United States Attorneys with unimpeachable credentials and reputations for standing above politics. Any number of United States Attorneys have performed these functions with distinction. Statutes and the Constitution do not, however, permit the Attorney General to appoint a private citizen as a substitute United States Attorney under the title “Special Counsel.” That is what happened on May 17, 2017. That appointment was unlawful, as are all of the legal actions that have flowed from it
\u27‘Male Chauvinism’ Is Under Attack from All Sides at Present\u27: Roberts v. United States Jaycees, Sex Discrimination, and the First Amendment
Get PDFToday, many take it for granted that discriminating against women in the marketplace is illegal and morally wrong. Roberts v. United States Jaycees (1984) remains a foundational case on government’s compelling interest in prohibiting sex (or gender) discrimination in public accommodations, even in the face of First Amendment claims of freedom of association and expression. Curiously, Jaycees seems comparatively neglected by legal scholars, if measured by the cases included in the various collections of “law stories” or “rewritten opinions” projects. Looking back at the Jaycees litigation reveals the parties wrestling over the reach of public accommodations law and the force of the race discrimination-sex discrimination analogy. The parties and their amici invoked NAACP v. Alabama (1957), a significant root of the constitutional right to freedom of association, in strikingly different ways, and strenuously disagreed about how to compare the Jaycees to the NAACP. How did the parties frame the evident conflict between promoting sex (or gender) equality—women’s full participation in society—and protecting freedom of association? What was at stake for women in being excluded from full membership in organizations, like the Jaycees and all-male private clubs, that provided members an entree to the “Old Boys Network”? What was at stake for the Jaycees and similar organizations in a climate in which (as one amicus put it) “‘male chauvinism’ is under attack from all sides”? In Jaycees, even as the Supreme Court elaborated upon the values advanced by the First Amendment’s protection of freedom of association, it upheld the application of Minnesota’s public accommodations law to the Jaycees’s exclusion of women from regular membership despite the Jaycees’s freedom of speech and association claims. Both aspects of Jaycees live on, as was evident in arguments made in Masterpiece Cakeshop v. Colorado Civil Rights Commission that related sexual orientation discrimination to other forms of “invidious” discrimination that government may prohibit. This article argues that the relationship between freedom of association and gender equality is double-edged. It concludes by returning to the present day, asking whether the Old Boys Network is simply a relic of the past or has continuing potency. It reflects on some present-day controversies over freedom of association and single-sex organizations
The Inability to Self-Diagnose Bias
Get PDFThe Constitution guarantees litigants an \u27impartial\u27 jury, one that bases its judgment on the evidence presented in the courtroom, untainted by affiliations with the parties, racial animus, or media coverage that may include inadmissible facts, a one-sided portrayal, and naked opinion. Problems of juror bias arise in almost every trial – state and federal, civil and criminal - and the problem is most severe in the highest profile cases, where the need for accuracy and legitimacy in outcomes is most salient.The Supreme Court has instructed courts to use a simple method to determine whether jurors are biased: ask them. Studies have shown that the juror’s self-diagnosis is the most important factor for the court’s decision about whether to seat the juror.To test the reliability of these self-diagnoses, we fielded a randomized controlled experiment, in which we exposed mock jurors to news articles that were either prejudicial to the defendant (in one condition) or irrelevant (in the other condition). We then gave jurors the admonitions and questions endorsed by the Supreme Court for the purpose of identifying biased jurors, prior to all of them watching a 32-minute condensed video of a civil trial, rendering binary judgments, and awarding damagesAfter we excluded jurors who said that they would be unable to be fair and impartial (or were unsure), the remaining jurors were significantly more likely to rule against the defendant and those that did so also awarded larger damages, than those in the control condition. Thus, juror self-assessments were not related to actual bias. We consider and test alternatives to the self-diagnosis protocol, but ultimately find that broader exclusion of all exposed jurors may be necessary to assure a fair trial
Intermediaries and Private Speech Regulation: A Transatlantic Dialogue - Workshop Report
Get PDFThe Wikimedia/Yale Law School Initiative on Intermediaries and Information (WIII) at Yale Law School has released a comprehensive report synthesizing key insights from intermediary liability and online speech and expression experts in Europe and the United States.The report focuses on the critical but complicated issue of private speech regulation on the internet and the connections between platform liability laws and fundamental rights, including free expression. The report reflects discussions held at “Intermediaries & Private Speech Regulation: A Transatlantic Dialogue,” an invitation-only workshop convened by WIII, featuring leading internet law experts from the United States and Europe.This report highlights insights and questions raised by leading academics and legal practitioners during the event, providing theoretical ideas, practical experiences, and directions for further research on rapidly evolving questions of intermediary liability from a uniquely transatlantic perspective. (Nothing in the report necessarily reflects the individual opinions of participants or their affiliated institutions.
Broadening Consumer Law: Competition, Protection, and Distribution
Get PDFPolicymakers and scholars have in distributional conversations traditionally ignored consumer laws, defined as the set of consumer protection, antitrust, and entry barrier laws that govern consumer transactions. Consumer law is overlooked partly because tax law is cast as the most efficient way to redistribute. Another obstacle is that consumer law research speaks to microeconomic and siloed contexts—deceptive fees by Wells Fargo or a proposed merger between Comcast and Time Warner Cable. Even removing millions of dollars of deceptive credit card fees across the nation seems trivial compared to the trillion-dollar growth in income inequality that has sparked concern in recent decades. This Article synthesizes the fragmented empirical literature to offer a broader conception of consumer law’s place in governance. The data indicate that consumer market failures raise prices to consumers by well over a trillion dollars annually; that these market failures worsen economic inequality; and that consumer law, despite prominent critiques of its failures, can address those market failures when designed well. The preliminary state of the evidence underscores the need for regulatory monitoring of markets to leverage consumer law’s potential as a tax alternative. Redistribution is one of the government’s most basic functions, and efficiency one of the law’s guiding principles. There are strong normative foundations for making macroecomomic distribution an explicit goal of consumer law
Prophetic Patents
Get PDFIn most contexts, making up data is forbidden - considered fraudulent or even immoral. Not so in patents. Patents often contain experimental data and it is perfectly acceptable for these experiments to be entirely fictional. These so-called prophetic examples are not only explicitly permitted by both the Patent and Trademark Office and federal courts, but are considered almost equivalent to factual data in patent doctrine. Though prophetic examples are thought to be common, there are no studies of these experiments, no explanation for why fictional data are allowed in patents, and no evaluation of the practice.
Here, I provide the first historical, theoretical, and empirical analysis of prophetic examples. I collect and analyze a novel dataset of over 2 million U.S. patents and applications from the biological and chemical industries. I find that at least 17% of experiments in this population are fictional. Through both empirical and theoretical analyses, I assess the potential costs and benefits of prophetic examples. Prophetic examples are likely beneficial to individual patentees, but I find that on a population level, there are serious costs. Prophetic examples may hinder innovation because they prevent others from conducting their own experiments - even after the patent has expired and even if the prophetic example is incorrect. Prophetic examples also hopelessly confuse scientists - 99% of scientific articles that cite to prophetic examples incorrectly cite them as if they contained factual information - which means that made-up results from patents may contaminate the scientific literature.
I argue for a shift from prophesies to more clearly delimited hypotheses - roadmaps for future research, but nothing more - preserving what value there is in speculation while mitigating the clear harms of the practice. Beyond these concrete policy recommendations, my findings also have rich implications for theoretical debates about the physicality of invention, when and to whom patents should be granted, how patents transmit information, and, ultimately, how best to incentivize innovation
Science Fiction: Fictitious Experiments in Patents
No full textAlthough it may surprise scientists, one can receive a patent in many jurisdictions without implementing an invention in practice and demonstrating that it works as expected. Instead, inventors applying for patents are allowed to include predicted experimental methods and results, known as prophetic examples, as long as the examples are not written in the past tense (1–3). Allowing untested inventions to be patented may encourage earlier disclosures about new ideas and provide earlier certainty regarding legal rights—which may help small firms acquire financing to bring their ideas to market. Yet granting patents too early may also discourage researchers from doing the work to bring ideas to fruition (4, 5). Even if allowing untested inventions to be patented is desirable, we think prophetic examples deserve closer scrutiny, and clearer labeling, because of the likelihood that they are unnecessarily confusing—particularly to scientists, many of whom read patents but are unlikely to appreciate that not all the claims are based on actual data