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Negligence and Two-Sided Causation
Get PDFWe extend the economic analysis of negligence and intervening causation to two-sided causation scenarios. In the two-sided causation scenario the effectiveness of the injurer\u27s care depends on some intervention, and the risk of harm generated by the injurer\u27s failure to take care depends on some other intervention. We find that the distortion from socially optimal care is more severe in the two-sided causation scenario than in the one-sided causation scenario, and generally in the direction of excessive care. The practical lesson is that the likelihood that injurers will have optimal care incentives under the negligence test in the presence of intervening causal factors is low
The Civil Rights Act of 1964 and \u27Legislating Morality\u27: On Conscience, Prejudice, and Whether \u27Stateways\u27 Can Change \u27Folkways\u27
Get PDFInfluential studies, from the 1940s and 1950s, of the problem of prejudice and how to remedy it challenged the famous assertion of nineteenth-century sociologist William Graham Sumner that “stateways don’t change folkways,” and its modern counterparts, “you cannot legislate against prejudice” or “you cannot legislate morality.” Social scientists countered that, although people might initially protest, they would welcome a federal antidiscrimination law that aligned with conscience and closed the gap between American ideals and prejudice, creating new “folkways.” Using examples from the contexts of public accommodations, education, and employment, this Article examines similar arguments made about conscience and “legislating morality” in debates about the Civil Rights Act of 1964 (the “CRA”). Proponents argued that the national conscience demanded such a law because discrimination posed a moral crisis. Proponents and opponents of the CRA differed sharply on the role of federal law in addressing prejudice and discrimination. While proponents recognized the limits of what law could achieve, they argued that the CRA would remove artificial barriers created by segregation that constrained normal or natural human interaction. Opponents defended segregation as natural, Biblical, and part of the created order and warned that the CRA would usher in a dangerous and forced racial intermingling and line-crossing, particularly in marriage. Similar to the social scientists of the late 1940s and 1950s, supporters or the CRA appealed to experience with local and state antidiscrimination law and the World War II-era Fair Employment Practice Committee. The Article concludes with reflections on the present-day implications of this earlier “legislating morality” debate for controversies over LGBT rights and the evident clash between conscience, or religious liberty, on the one hand, and antidiscrimination law and marriage equality, on the other
Spying Inc.
Get PDFThe latest spying craze is the “stalking app.” Once installed on someone’s cell phone, the stalking app can provide continuous access to the phone owner’s calls, texts, snapchats, photos, calendar updates, and movements. Stalking apps destroy the privacy and confidentiality of cell phone activities. Domestic abusers and stalkers frequently turn to stalking apps because they are undetectable even to sophisticated phone owners. Business is booming for stalking app providers, even though their entire enterprise is arguably illegal. Federal and state wiretapping laws ban the manufacture, sale, or advertisement of devices knowing their design makes them primarily useful for the surreptitious interception of electronic communications. But those laws are rarely, if ever, enforced. Existing law may be too restrictive to make a real difference. A legal agenda is essential to combating the growth of stalking software. We need to update criminal and civil penalties facing providers. Record-keeping requirements could help decrease the demand for spyware. Private rights of action, if recognized, could help secure redress and deterrence. To increase the likelihood that the law will be enforced, states and localities need more training and digital forensic expertise. The private sector could reinforce these efforts by offering devices that can resist the installation of spyware
Parents, Teens, And Technology: Starting The Conversation
No full textThis post is co-authored with Julia Jean (JJ) Citron, a teen who took the lead on the writing of this piece. This is the first post in a series about parents and teens talking about technology.
The outcry online is overwhelming. Parents have seemingly had it with their teenagers. A Google search of “I don’t understand my teenager” yields 203,000,000 results in .17 seconds. After browsing parent self-help web pages, it becomes clear that parents are having a hard time communicating with their teenagers. Why is this
The Space between Two Worlds: Forward to the Health Law
Get PDFThis year\u27s Law Review Symposium explored the modem state of health law under the heading, From Scalpel to Gavel. By situating its discussion in the space between the health sciences and law, this symposium embodied the inherently interdisciplinary nature of health law. The gathering of scholars, physicians, counsel, enforcers, and community groups bridged the spaces among numerous disciplines, promoting the exchange of empiricism, ideas, and experiences that have come to define health law
Caperton\u27s Next Generation: Beyond the Bank
Get PDFPart of NYU Journal of Legislation & Public Policy Fall 2014 symposium: Courts, Campaigns, and Corruption: Judicial Recusal Five Years after Caperton . The panels can be watched here
The Uniformed Topograhy of Patent Scope
Get PDFSetting and ascertaining patent scope are among the most important questions in patent law. However, we cannot accurately set patent scope. This is because patent scope has a sequence-of- information problem. Patent scope is set at the time that a patent is granted, while the information necessary to set and measure patent scope is not obtained until many years later. In consequence, the scope of any given patent is very likely to contain significant error, meaning that the scope is broader or narrower than the theoretical ideal (the minimum amount of scope necessary to incentivize innovation). Deviation from the theoretical ideal has practical consequences because scope error in either direction has a chilling effect on incentives to innovate. The sequence-of-information problem additionally presents implementability challenges for patent theory, which often calls for ex ante calibrations of scope without recognizing that its prescription is challenging to implement without ex post scope adjustment. This Article contributes to the literature by introducing the sequence-of- information problem of patent law. It additionally creates a framework for analyzing and understanding the sequence-of- innovation problem and presents proposals for improving the comprehensibility and implementability of policy relating to patent scope
Scaling Cost-Sharing to Wages: How Employers Can Reduce Health Spending and Provide Greater Economic Security
Get PDFIn the employer-sponsored insurance market that covers most Americans many workers are “underinsured.” The evidence shows onerous out-of-pocket payments causing them to forgo needed care, miss work, and fall into bankruptcies and foreclosures. Nonetheless, many higher-paid workers are “overinsured”: the evidence shows that in this domain, surplus insurance stimulates spending and price inflation without improving health. Employers can solve these problems together by scaling cost-sharing to wages. This reform would make insurance better protect against risk and guarantee access to care, while maintaining or even reducing insurance premiums.
Yet, there are legal obstacles to scaled cost-sharing. The group-based nature of employer health insurance, reinforced by federal law, makes it difficult for scaling to be achieved through individual choices. The Affordable Care Act’s (ACA) “essential coverage” mandate also caps cost-sharing even for wealthy workers that need no such cap. Additionally, there is a tax distortion in favor of highly paid workers purchasing healthcare through insurance rather than out-of-pocket. These problems are all surmountable. In particular, the ACA has expanded the applicability of an unenforced employee-benefits rule that prohibits “discrimination” in favor of highly compensated workers. A novel analysis shows that this statute gives the Internal Revenue Service the authority to require scaling and to thereby eliminate the current inequities and inefficiencies caused by the tax distortion. The promise is smarter insurance for over 150 million Americans
Patent Litigation Reform: The Courts, Congress, and the Federal Rules of Civil Procedure
Get PDFBarely three years after passing the America Invents Act, Congress is again considering patent reform legislation. At least fourteen patent reform bills were introduced in the recently concluded 113th Congress. Several of those bills focused specifically on patent litigation, proposing, among other things, to impose heightened pleading requirements on plaintiffs, to limit discovery, and to create a presumption that the losing party should pay the winner’s attorneys’ fees. None of the proposals became law, but one of the bills (the Innovation Act) passed the House of Representatives. In addition, scholars continue to call for reform, and Republican members of Congress have said that, with their party now holding a majority in both houses, patent reform will be on the agenda in 2015. As was the case in the six-year process that led to the America Invents Act, the early proposals that failed in Congress will undoubtedly inform future bills. With an eye toward those future bills, this essay argues that legislative reform is unnecessary because the courts and the Judicial Conference of the United States (the body charged with maintaining the Federal Rules of Civil Procedure) are already in the process of fixing several problematic areas of patent litigation. Moreover, the changes being made by the courts and the Judicial Conference are more nuanced and sensible than the proposals Congress has considered, which would mandate defendant-friendly changes in all types of patent cases — not just the weak cases, often filed by so-called patent trolls, that are spurring the cries for reform. Indeed, the legislative proposals offer little more than the same, generic, anti-litigation solutions that are often invoked to remedy perceived crises of “abusive” litigation, whether in the fields of tort law, civil rights, securities law, or, now, patent law. In addition, the timeworn proposals percolating in Congress treat only the symptoms of the patent system’s illness; they do not address fundamental flaws in the system, including the poor notice provided by and poor quality of many patents issued by the PTO, particularly in the information technology sector. The breadth of the legislative proposals also poses a risk of unintended consequences. Heightened pleading requirements, for instance, may block legitimate assertions of patent infringement in industries such as biopharmaceuticals where infringement occurs in research or production facilities to which the patent holder cannot gain access. And rather than reducing litigation, the proposals could actually increase litigation about peripheral matters such as the permissible scope of discovery and which party should bear the costs of that discovery. Legislation, simply, may be too blunt of an instrument to effectively reform patent litigation. Rather, as a matter of institutional choice, incremental changes driven primarily by the courts seem to be a better option
Antitrust Enforcement Regimes: Fundamental Differences
Get PDFSince China has modeled its antitrust regime on that of the EU, there are essentially two antitrust regime types: the U.S. and the EU. This chapter is a brief comparative study of the two regimes. I focus on three categories in which fundamental differences are observed: enforcement, legal standards, and procedure. Within each of the three categories, I narrow the focus to a specific illustrative feature. With respect to enforcement, the EU imposes gain-based penalties while the U.S. imposes harm-based penalties. In predation law, the U.S. has a marginal cost standard and the EU has an average cost standard. With respect to procedure, the U.S. is a common law system, while the EU’s procedure is closer to the civil law system in its allocation of power between the courts and the enforcement agency. These differences have profound implications for the welfare consequences of global antitrust enforcement