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The Never-Ending Assault on the Administrative State
Get PDFThis Article is an exploration of the twists and turns of the never-ending assault on the administrative state. Without attempting to resolve all of the separation of powers controversies that have existed since the beginning of the Republic, this Article examines and analyzes the fundamental constitutional challenges to the administrative state as well as the more peripheral constitutional difficulties involving the administrative state and the nonconstitutional legal challenges that have arisen over the decades. In my view, the legal and political arguments made in favor of major structural changes to the administrative state do not provide sufficient normative bases for such change. In fact, most of them are inconsistent with a reasonable understanding of the Constitution of the United States and are normatively inferior to the status quo.
The Article proceeds as follows. Part I sets forth the key elements of the administrative state, as designed by Congress and approved by the Supreme Court. Part II sets out and analyzes the assault on the administrative state in the courts, Congress, and, to a lesser extent, the executive branch itself. And Part III discusses the scholarly assault on the administrative state, focusing largely on the work of Gary Lawson and Phillip Hamburger
Risk and Anxiety: A Theory of Data Breach Harms
Get PDFIn lawsuits about data breaches, the issue of harm has confounded courts. Harm is central to whether plaintiffs have standing to sue in federal court and whether their claims are viable. Plaintiffs have argued that data breaches create a risk of future injury from identity theft or fraud and that breaches cause them to experience anxiety about this risk. Courts have been reaching wildly inconsistent conclusions on the issue of harm, with most courts dismissing data breach lawsuits for failure to allege harm. A sound and principled approach to harm has yet to emerge, resulting in a lack of consensus among courts and an incoherent jurisprudence.
In the past five years, the U.S. Supreme Court has contributed to this confounding state of affairs. In 2013, the Court in Clapper v. Amnesty International concluded that fear and anxiety about surveillance – and the cost of taking measures to protect against it – were too speculative to constitute “injury in fact” for standing. The Court emphasized that injury must be “certainly impending” to warrant recognition. This past term, the U.S. Supreme Court in Spokeo v. Robins issued an opinion aimed at clarifying the harm required for standing in a case involving personal data. But far from providing guidance, the opinion fostered greater confusion. What the Court made clear, however, was that “intangible” injury, including the “risk” of injury, could be sufficient to establish harm. In cases involving informational injuries, when is intangible injury like increased risk and anxiety “certainly impending” or “substantially likely to occur” to warrant standing? The answer is unclear.
Little progress has been made to harmonize this troubled body of law, and there is no coherent theory or approach. In this essay, we examine why courts have struggled when dealing with harms caused by data breaches. The difficulty largely stems from the fact that data breach harms are intangible, risk-oriented, and diffuse. Harms with these characteristics need not confound courts; the judicial system has, been recognizing intangible, risk-oriented, and diffuse injuries in other areas of law.
We argue that courts are far too dismissive of certain forms of data breach harm. In many instances, courts should find that data breaches cause cognizable harm. We explore how existing legal foundations support the recognition of such harm. We demonstrate how courts can assess risk and anxiety in a concrete and coherent way
Section 230’s Challenge to Civil Rights and Civil Liberties
No full textIn Section 230 of the Communications Decency Act, lawmakers thought they were devising a safe harbor for online providers engaged in self-regulation. The goal was to encourage platforms to “clean up” offensive material online. Yet Section 230’s immunity has been stretched far beyond that purpose to immunize platforms that solicit or deliberately host illegality. As Olivier Sylvain’s thoughtful essay shows, it has been invoked to shield from liability platforms whose architectural choices lead ineluctably to illegal discrimination
Why Courts Fail to Protect Privacy: Race, Age, Bias, and Technology
Get PDFThe Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question is supposed to depend on and reflect the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If judges’ intuitions about privacy do not reflect actual public expectations, it may undermine the legitimacy of the criminal justice system and exacerbate social unrest.
Although prior research has shown that the police disproportionately target younger people and minority communities, judges tend to be male, white, educated, affluent, and older than the general population. Their intuitions may thus be systematically different. Even worse, cognitive science suggests that judges may have difficulty putting themselves into the shoes of the searched person or considering the reasonableness of the police tactics from an ex ante perspective, without knowledge about the fruits of the search.
With 1200 respondents, we conducted a large-scale survey experiment to test whether, and if so, why, contemporary Fourth Amendment jurisprudence diverges from the societal norms it purports to protect and reflect. We identify a range of privacy expectations for 18 different police practices. We use oversampling, reweighting, and randomization to investigate particular causes of this disparity between judicial and public expectations. We conclude by suggesting better ways forward, so that social science evidence can replace judicial speculation
Saving Face: Unfolding the Screen of Chinese Privacy Law
Get PDFPrivacy is often a subjective value, taking on meaning from specific social, historical, and cultural contexts. Western privacy scholars have so far generally limited academic study to focus on Western ideals of privacy. However, privacy – or some notion of it – can be found in almost every culture and every nation, including the growing economic powerhouse that is the People’s Republic of China. Focusing on China as a case study of non-Western privacy norms is important today, given the rapid rise of the Chinese economy and its corresponding impact on worldwide cultural norms and law. Simply put, it is naïve to believe that privacy law will develop in the near future without the influence of China. First, though China does not have a developed body of privacy law, any privacy laws China chooses to implement now and in the future will certainly affect business and organizations seeking to invest in and engage with Chinese consumers. With the size and economic impact of the Chinese consumer base, international technology organizations would be remiss in ignoring the development of Chinese privacy laws. Second, understanding Chinese conceptions of privacy is crucial to the study of international privacy law. China has a great deal of influence in the Asian region, which is particularly important given the somewhat unclear status of the APEC Privacy Principles. Given the long-arm reach of many nations’ privacy laws (particularly the EU’s current and proposed regulations), several signs indicate that China may follow the EU’s example in enforcing its privacy laws worldwide. For these reasons, it is imperative that privacy scholars and practitioners pay close attention to the field of Chinese privacy law. As Chinese privacy laws today are still fairly underdeveloped, now is the time to carefully study how cultural norms have impacted the development of Chinese privacy law thus far and how future regulations can and should develop, given Chinese cultural foundations of privacy. This paper will attempt to illuminate the state of privacy law in China, by evaluating current legal developments, exploring cultural and historical perceptions of privacy, and analyzing how China’s unique perceptions of privacy may influence the future development of new norms in China’s growing privacy regime. In particular, this paper looks to the significant contrast between traditional Western ideals of privacy as an individual right and traditional Chinese ideals of privacy related to the concepts of “saving face” and community values, ultimately leading to recommendations for future data regulation policies based on the unique cultural and historical values of Chinese perceptions of privacy
Disorders of Consciousness, Agency, and Health Care Decision Making: Lessons from a Developmental Model
No full textThe health care decision-making framework applied to adolescents, a process that gives minors an increasing role in decision making as they mature, should be applied to patients recovering from disorders of consciousness. The flexibility afforded by this framework allows for participation to change over time in accordance with the patient\u27s evolution during the recovery process, unlike the rigid surrogate-focused model utilized for those with permanent incapacity. While the legal system may regard patients with disorders of consciousness and subsequent disability as incompetent to make decisions, respect for personhood and self-determination requires that the physician and surrogate involve the recovering patient in decision making to the maximal extent possible
Research Handbook on Representative Shareholder Litigation
No full textWritten by leading scholars and judges, the Research Handbook on Representative Shareholder Litigation is a modern-day survey of the state of this essential field. The book is an important and timely contribution by leading corporate law scholars, judges, and practitioners, seeking to better understand and explain the proliferation of shareholder litigation across the globe. It provides a cross-jurisdictional survey of litigation and empirical evidence on the recent evolution of these lawsuits, including in-depth analyses of several key forms of shareholder litigation.Its chapters cover securities class actions, merger litigation, derivative suits, and appraisal litigation, as well as other forms of shareholder litigation. Through in-depth analysis of these different forms of litigation, the book explores the agency costs inherent in representative litigation, the challenges of multijurisdictional litigation and disclosure-only settlements, and the rise of institutional investors. It also surveys how related issues are addressed across the globe, with a special focus on parallel forms of litigation in the United States, Canada, the United Kingdom, the European Union, Israel and China.This Research Handbook will be an invaluable resource on this important topic for scholars of corporate law, practitioners, judges, and legislators.https://scholarship.law.bu.edu/books/1127/thumbnail.jp
Taxing & Zapping Marijuana: Blockchain Compliance in the Trump Administration Part 3
Get PDFThis is the third of a five-part series dealing with the rescission by U.S. Attorney General Jeff Sessions of the Obama-era policy that discouraged federal prosecutors from bringing charges in all but the most serious marijuana cases.
This article focuses on cyber-attacks on the main commercial chain, and the use of a private blockchain using HyperLedger Fabric as a platform.
This fraud is a direct, criminal attack; an attack designed to destroy/corrupt records of marijuana inventory and plant tags throughout the supply chain. The attack allows legalized marijuana to escape the system and be sold on the black market. A large-scale cyber-attack impacts every commercial enterprise, transporter, and testing laboratory. Control collapses.
Hacking a major track and trace system is not merely a theoretical possibility. It happened to the largest (and oldest) system. Hackers took down MJ Freeway’s Leaf Data System nationwide. The seriousness of this hack was all too apparent to the government of Nevada which notified MJ Freeway on September 12, 2017 that, because of vulnerabilities in its system, the State was terminating its five-year contract (after less than two-years) effective November 1, 2017.
Cyber-attacks aimed at destroying reliable data in a commercial chain have a lot in common with VAT frauds that rely on obscuring transaction data behind rows of false “buffer” entities. Both are defeated by systems that lay bare and preserve highly trustworthy, real-time data about the intra-entity transactions within the commercial chain. AI has become very good at risk-analyzing these data flows, and blockchain has become very good at preserving the data flows for AI analysis.
It is axiomatic that wherever distributive ledgers are adopted, they will replace centralized ledgers. The MJ Freeway system is precisely this kind of multiple-redundant centralized ledger system that will be/should be disrupted (replaced) by a blockchain. A private, rather than a public blockchain is proposed to store the data that is transferred in the commercial production of legalized marijuana
A Perspective on Incentives for Novel Inpatient Antibiotics: No One-Size-Fits-All
Get PDFThe need for new “pull” incentives to stimulate antibiotic R&D is widely recognized. Due to the global diversity of health systems, combined with different challenges faced by antibiotics used in different types of healthcare settings, there is no one-size-fits-all solution. Instead, different “pull” incentives should be tailored to local contexts, priorities, and antibiotic types. Policymakers and industry should collaborate to identify appropriate solutions at the local, regional, and global levels
Institutional Self-Regulation (Compliance)
No full textThe duty of financial institutions to self-regulate their compliance with the law was triggered by relatively recent developments. Financial institutions (banks, mutual funds, securities exchanges and advisers) have grown larger and were operating internationally. Government and outside regulators could not effectively supervise and prevent institutional violations. The failures and violations of such institutions were costly to the country, to their employees and to their investors. The failures prompted legislators and regulators to require these institutions to self-regulate and self-police to prevent violation of the law.
The Law of Institutional Self-Regulation (Compliance) is addressed to law students and practitioners. It aims at understanding and managing a system of self-regulation by financial institutions by a dual system of both law and culture. To be sure, the law requires institutions to self-regulate. But rules of law are not enough. In fact, the main mechanism for self-regulation is institutional culture. Like law, culture is a system of rules and their enforcement. Unlike the law, culture rules are established and enforced by institutions, internally. Thus, both law and culture aim at ensuring institutional compliance with the law.
Even though most of the materials and cases in this book involve financial institutions, a similar design of self-regulation applies to any institution. Students and practitioners should be sensitive to signs that maylead to institutional violations of the law. They should note the signs of tendencies that may lead to violations of the law and focus on measures that are likely to prevent such violations.
This book notes the differences between the Law Officers and Compliance Officers, the evolving recognition of compliance as a profession, and the rise of compliance officers’ independence. The book offers principles, approaches, and techniques, aimed at detecting and preventing institutions’ legal violations such as, monitoring and investigations, employees\u27 self-examination and rewarding employees for ensuring and supporting compliance with the law. To be sure, each institution, has its “parents,” history, business, powers and weaknesses, aspirations and competitors. This is why institutional self-regulation cannot be uniform and its culture must be adjusted to the law in its own special way—to reach the same application of the law to all.https://scholarship.law.bu.edu/books/1168/thumbnail.jp