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Trump’s assault on immigrant children must stop
No full textPresident TrumpDONALD TRUMPMcConnell: Senate to return Dec. 29 for potential Trump veto override voteCongress passes .3T coronavirus relief, government funding dealNo. 2 GOP senator: Efforts to overturn election would \u27go down like a shot dog\u27MORE’s State of the Union address was replete with immigration talking points, many of which were ill-informed or simply untrue. His statements were representative of a continued assault on the immigrant communities that have long built our country. Particularly disturbing were his comments suggesting that violent gang members took advantage of glaring loopholes in our laws to enter the country as unaccompanied alien minors.
Ideology Meets Reality: What Works and What Doesn\u27t in Patient Exposure to Health Care Costs
Get PDFU.S. policymakers, scholars, and advocates have long displayed an ideological commitment to exposing insured patients to substantial out-of-pocket expenses. These commitments derive from both overt political ideologies, which favor individual responsibility and oppose redistribution of wealth and risks, as well as more-subtle ideological commitments of academic economists, which link observed patterns of consumption to value-claims about welfare. In this symposium contribution, we document those ideological commitments and juxtapose them with a review of the scientific evidence about the actual effects of patient cost-sharing. We find, as economic theory predicts, that patients exposed to healthcare costs consume less healthcare. However, a fair review of the evidence — including the effects on health outcomes, access to care, and financial insecurity — makes it very hard to conclude that substantial and untailored cost-sharing exposure — as we have seen in actual application — is good social policy. We suggest directions for future study and reform
The Policy Challenge of Artificial Intelligence
Get PDFNew artificial intelligence (AI) technology promises to bring dramatic social and economic changes, demanding major policy changes. In intellectual property and antitrust law, AI will exacerbate a damaging trend: across all major sectors of the economy, proprietary information technology is increasing the market dominance of large firms. This trend might not seem like bad news, but it is evidence of a slowdown in the spread of technical knowledge throughout the economy. The result is rising industry concentration, slower productivity growth and growing wage inequality. The key challenge to IP and antitrust policy will be counter this trend yet maintain innovation incentives
Whom Should We Punish, and How? Rational Incentives and Criminal Justice Reform
Get PDFThis Article sets out a comprehensive account of rational punishment theory and examines its implications for criminal law reform. Specifically, what offenses should be subjected to criminal punishment, and how should we punish? Should we use prison sentences or fines, and when should we use them? Should some conduct be left to a form of market punishment through private lawsuits? Should fines be used to fund the criminal justice system? The answers I offer address some of the most important public policy issues of the moment, such as mass incarceration and the use of fines to finance law enforcement. The framework of this Article is firmly grounded in rational deterrence policy, and yet points toward reforms that would soften or reduce the scope of criminal punishment
Appointments and Illegal Adjudication: The America Invents Act through a Constitutional Lens
Get PDFIn 2011, Congress enacted the America Invents Act (“AIA”), largely in order to provide more effective mechanisms for invalidating, or cancelling, already-issued patents. The statute provides for inter partes review, in which patents, on the request of third parties, can be cancelled by an administrative body, the Patent Trial and Appeal Board (PTAB), subject to deferential judicial review. The constitutionality of this scheme is currently (as of January 9, 2018) before the Supreme Court in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, but the arguments in that case understandably focus on the consistency of inter partes review with modern case law. This article instead looks at the Constitution’s original meaning (which, in the particulars relevant to this problem, bears only modest resemblance to modern case law) and finds two fundamental defects in the AIA. First, executive agents, such as the PTAB judges, cannot cancel vested patent rights, because such action deprives patent holders of property “without due process of law.” As an original matter, due process of law requires judicial action for a deprivation of vested rights. The federal courts recognized this basic fact in the nineteenth century with regard to both land patents and invention patents. Perhaps one can apply the inter partes mechanism to patents granted after enactment of the AIA in 2011 if one views application of this mechanism as a “defeasibility condition” built into the patent grants, but that condition did not exist for patents issued prior to 2011. Second, all but one of the PTAB officials who adjudicate patent validity are appointed by the Secretary of Commerce, in a fashion appropriate for inferior officers of the United States. But the decisions of the PTAB, which by statute take place in panels of three officers, are the final word within the executive department. There are no internal appeals to any executive body outside the PTAB. Any executive actor who issues final decisions on behalf of the United States is constitutionally a principal rather than inferior officer and must be appointed by the President with the advice and consent of the Senate. Accordingly, all of the PTAB judges, and not merely the Director of the PTO, must be appointed as principal officers in order for the PTAB to perform its statutory function
Micro Essay Researching Foreign Law in a Bunch of Common Law Jurisdictions Just Got WAY Easier!
No full textJustisOne is an expertly designed, easy to use database with never-before-seen navigation tools that make researching foreign law fun. It houses cases from numerous common law jurisdictions such as the UK, Ireland, Australia, Canada, 18 Caribbean jurisdictions, and Singapore. Their developers created a unique legal taxonomy with more than 1.5 million terms to categorize every case across all of the included jurisdictions. Moreover, JustisOne provides an index of cases and legislation on more than 120 other services so that users can seamlessly link to relevant documents on other services
The Depravity of the 1930s and the Modern Administrative State
Get PDFGillian Metzger’s 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called “expert” bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points.
First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger’s analysis, we challenge the normally unchallenged premise that the 1930s was a decade of moral wisdom about governmental design that should serve as a ground for constitutional reasoning that is superior to the actual text of the Constitution. The 1930s was a thoroughly awful time, worldwide and in the United States; and while America avoided some of the very worst trends of those times (although it was a worldwide leader in others, such as eugenics), the intellectual and political foundations of that decade were a terrible ground for theories of government. We do not make the absurd claim that everything that emerged from the 1930s was therefore bad simply by virtue of that origin, nor do we make the equally absurd ad hominem claim that everyone who supports anything from the 1930s must support everything from that time. We only want to call into question the (generally implicit) premise that the governmental forms of the 1930s are sacrosanct because that decade should be seen as the real constitutional founding. The intellectual foundations of the 1780s and 1860s—the decades that led to the ratification of the actual constitutional text and the Civil War Amendments—are far superior to those of the 1930s. To be clear, we think that constitutional interpretation should be about the Constitution, not about time periods, values, or constitutional “orders,” but if for some reason one wants to focus on time periods, the 1930s should be the last time period to which one looks for guidance.
Second, we offer some very modest legislative tweaks to the existing institutions of the administrative state that we believe will move American government more toward the correct constitutional baseline with only minimal changes in actual governmental functions. Major rules should be enacted using constitutional (if expedited) lawmaking procedures; all executive officers should, by statute if not by constitutional command, be made removable at will by the President; and all deprivations of life, liberty, and property by the federal government should be accomplished through due process of law, which means adjudication through an Article III tribunal. None of these tweaks requires abolition of any federal agency or repeal of any substantive organic statute. Adopting them will not establish constitutional government. But it will be better than abandoning the enterprise altogether in favor of rule by “experts” deemed fit, by virtue of their college degrees, to govern their unenlightened “lessers.
Combating Discrimination Against the Formerly Incarcerated in the Labor Market
Get PDFBoth discrimination by private employers and governmental restrictions in the form of statutes that prohibit professional licensing serve to exclude the formerly incarcerated from much of the labor market. This Essay explores and analyzes potential legislative and contractual means for removing these barriers to labor market participation by the formerly incarcerated. First, as a means of addressing discrimination by the state, Part I of this Essay explores the ways in which the adoption of racial impact statements — which mandate that legislators consider statistical analyses of the potential impact their proposed legislation may have on racial and ethnic groups prior to enacting such legislation — could help to reduce labor market discrimination against the formerly incarcerated. In so doing, this Part analyzes the influence of racial impact statements in the few states that have implemented them. Part II of this Essay examines the possibility of a contractual solution that could help to decrease discrimination against the formerly incarcerated in the private labor market, particularly by those employers who rely on the labor of imprisoned individuals. Specifically, this Part uses the fact that many private corporations rely on and profit from low-wage prison labor to argue that the state penal institutions that lease prisoners to such corporations should push for contractual agreements that stipulate that corporations relying on prison labor must revoke policies that bar employing the formerly incarcerated upon their release. In addition, this Part explicates how contractual stipulations may also provide for affirmative hiring policies for the formerly incarcerated. Finally, this Essay concludes by highlighting how failure to address continued labor market discrimination against the formerly incarcerated could render the formerly incarcerated a permanent economic underclass, thereby undermining notions of fairness and equality
Social Responsibility Resolutions
Get PDFShareholders exert significant influence on the social and environmental behavior of U.S. corporations through their votes on social responsibility resolutions. However, the outcomes of many social responsibility resolutions are distorted, because the largest shareholders – institutional investors, such as mutual funds and pension funds – often do not follow the interests or the preferences of their own investors. This paper presents evidence that institutions with similar investors and identical fiduciary duties vote very differently on social responsibility resolutions, suggesting that some institutional votes distort the interests of their investors. Other evidence presented suggests that institutional votes on social responsibility resolutions vary significantly from the preferences of their own investors. Whether such distortion of preferences is a problem is an open question. If such distortion is considered to be a problem, it could be addressed by institutions changing their voting policies on social responsibility resolutions to better approximate the preferences of their investors. The stakes are high: eliminating distortion could significantly influence the behavior of corporations on social and environmental matters in a way that investors, and society, would prefer
Corporate Rights as Subplot
Get PDFAdam Winkler makes an important contribution to the great body of academic work on corporations in American life. He concentrates on a small corner of the larger topic. He traces only the development of corporate “rights,” and he describes, but does not critique, what he uncovers. There is much to learn from this fine book. I want to applaud Winkler’s primary revelation—namely, that corporate rights are a creation of the courts, especially the Supreme Court.1 Then I want to flag what Winkler (I think) would readily acknowledge: corporate rights are not the whole of the corporate story