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What STS Can (and Can’t) Do for Law and Technology
Get PDFThe field of law and technology has come a long way since we last heard the unmistakable squeal of a modem connecting to cyberspace. Most of us that remember that sound now probably have more grey hair than we used to. We’ve covered a lot of ground since “Lex Informatica” and “Code is Law,” so you’d think our field would have a deeply sophisticated method for understanding the relationship between law, society, and technology, right?
Professor Ryan Calo thinks the field can do better. In this concise and accessible unpublished article that is part of a new book project, Calo highlights how Science and Technology Studies, or STS, has been overlooked and could contribute to the field of law and technology. To Calo, law and tech took decades to wind up where STS would have started. It’s not that law and tech is redundant of STS, rather, the problem is that “law and technology has been sounding similar notes to STS for years without listening to its music.” As a result, our field “does not benefit from the wisdom of scholars who have covered roughly the same ground.” Calo looks to showcase critical STS ideas and debates “for the unfamiliar law and technology reader,” so that we no longer have an excuse to claim ignorance of the field. He accomplishes this in spades with a clear and deeply informed article that is a must read for anyone writing in the field of law and technology
Biden v. Nebraska: The New State Standing and the (Old) Purposive Major Questions Doctrine
Get PDFChief Justice Roberts’s majority opinion in Biden v. Nebraska does not sufficiently explain how Missouri has standing under established Article III doctrine, nor how the Court approaches the major questions doctrine as a method of statutory interpretation. Clarification can come from other opinions, even other cases entirely, in which Justice’s counterarguments are suggestive of the real arguments underlying the decisions.
MOHELA may have faced a concrete injury from the student debt waiver, but there was no evidence that Missouri would – and the majority had no answer for how Missouri had standing without an injury. A debate over special state standing in an immigration policy case (Texas v. United States) revealed a split among the Justices who formed a majority invalidating the student debt waiver – which perhaps explains why the majority avoided addressing it, even as it seems implicitly to be the Court’s basis for Missouri’s right to stand in for MOHELA.
The majority opinion is falls short in explaining its methodological basis of statutory interpretation in this case and in the major question doctrine generally. Is it textualism? Purposivism? A substantive canon of constitutional avoidance? Justice Barrett’s concurrence claims that the MQD method is textualist – but the opinion is so unpersuasive that it backfires and confirms that MQD remains, first and foremost, where it began: an exception in favor of purposivism, instead of textualism. None of the Justices wrote to defend the approach of a substantive canon of non-delegation constitutional avoidance, but that approach is alive and well.
Finally, this Article tells the story of the Biden student debt relief as the use of Covid as a pretext and an example of the growing abuse of emergency executive powers. This question came up in oral argument, but unfortunately, it went unaddressed in all of the opinions. The Court reached the right result but for the wrong reasons; its solutions to limit executive power may be creating new problems
Information Costs and the Civil Justice System
Get PDFLitigation is costly because information is not free. Given that information is costly and perfect information prohibitively costly, courts will occasionally err. Finally, the fact that information is costly implies an unavoidable degree of informational asymmetry between disputants. This paper presents a model of the civil justice system that incorporates these features and probes its implications for compliance with the law, efficiency of law, accuracy in adjudication, trial outcome statistics, and the evolution of legal standards. The model’s claims are applied to and tested against the relevant empirical and legal literature. (JEL: D74, K10, K13, K41
A qualitative method for investigating design
Get PDFThis chapter describes our qualitative study of designers and design practice. It situates the study in the broader field of empirical studies of intellectual property, and it describes in detail the methodology and benefits of a qualitative interview study of designers and design practice to shed light on some of the persistent puzzles in design law. The chapter focuses on four lines of inquiry: defining “design” and “design practice” from within the profession; exploring the various inputs to design practice and the process of “problem solving” designers pursue; understanding what “integrated” form and function mean to designers; and explaining the features of “successful” or “excellent” design as a professional standard
Patents\u27 New Salience
Get PDFThe vast majority of patents do not matter. They are almost never enforced or licensed and, in consequence, are almost always ignored. This is a well-accepted feature of the patent system and has a tremendous impact on patent policy. In particular, while there are many aspects of patent law that are potentially troubling-including grants of unmerited patents, high transaction costs in obtaining necessary patent licenses, and patents\u27 potential to block innovation and hinder economic growth-these problems may be insignificant in practice because patents are under-enforced and routinely infringed without consequence.
This Article argues that technological developments are greatly increasing the salience of patents by making patents easier and cheaper to find and enforce. These developments-including private platforms\u27 adjudication systems and AI-driven patent analytics-profoundly impact how the patent system functions and upend the system\u27s present dependence on under-enforcement and ignorance. Where most patents could previously be safely disregarded, formerly forgotten patents now matter.
This Article makes four contributions to the literature. First, this Article explores the technology that is rendering patents newly salient and explains how this alters basic assumptions underlying the patent system. Second, this Article demonstrates that although new technology is increasing the number of patents that can be reviewed and enforced, this transformation sometimes decreases the depth of patent analysis. Because it is difficult to draw conclusions about patent scope or validity without in-depth analysis, this omission means that technological review of patents may give patents unmerited influence.
Third, this Article shows a sharp divergence between public policy goals and private use of patents. For several decades, the courts and Congress have been reforming patent policy to decrease the impact of patents to alleviate concerns that patent owners hinder innovation by others. This Article demonstrates, in clear contrast to this goal, an increase in patent salience that is due exclusively to the use of private platforms and technologies. Further, the use of private platforms to find, analyze, and enforce patents creates the risk that choices made by companies and software developers will displace substantive patent law. Finally, this Article suggests policy reform, including ways to improve technology and patents and adjusted approaches to patent doctrine and theory
Congressional Meddling In Presidential Elections: Still Unconstitutional After All These Years; A Comment On Sunstein
Get PDFIn a prior article, see Jack Beermann & Gary Lawson, The Electoral Count Mess: The Electoral Count Act of 1887 Is Unconstitutional, and Other Fun Facts (Plus a Few Random Academic Speculations) about Counting Electoral Votes, 16 FIU L. REV. 297 (2022), we argued that much of the 1877 Electoral Count Act unconstitutionally gave Congress a role in counting and certifying electoral votes. In 2022, Congress amended the statute to make it marginally more constitutional in some respects and significantly less constitutional in others. In response to a forthcoming article by Cass Sunstein defending the new Electoral Count Reform Act on policy grounds, we explore how the ECRA reduces the opportunities for members of Congress unconstitutionally to object to electoral votes but in other respects compounds the constitutional problems of its century-and-a-half old predecessor by (a) trying to allocate authority over presidential elections to people, such as congressionally appointed tellers, who cannot receive such authority, (b) trying to restrict the discretion of actors, such as the Vice President, in whom the Constitution vests a small measure of discretion, and (c) trying to issue orders to people, such as state legislators, over whom Congress has no authority
Household Intimacy and Being Unmarried: Family Pluralism in the Novels of Anthony Trollope
Get PDFMany critics rightfully claim that the marriage market and an inquiry into its innermost workings are at the heart of Anthony Trollope’s novels, but this Article argues that his novels also depict—on the periphery or sometimes just hiding in plain sight—a set of curiously nonmarital households. These households vary in form, but include widows and widowers living on their own, mothers and daughters living collectively, and male cousins sharing space and the work of daily living. Critics have debated whether Trollope was simply a realistic social historian—chronicling families as he found them— or whether he constructively used literary license to make broader points. On the first reading, Trollope presents a vast ecosystem of family pluralism, a terrain in which multiple kinds of families existed outside of the marital framework. Leaning more into literary imagination, it is possible to suggest that Trollope uses his range of household sketches to facilitate an exploration of how households and families can operate outside of the sexual and financial economies of marriage. In this context, his nonmarital households offer a rich composite portrait of how “functional” families operate, how the strength of intimacy flourishes outside of romantic relationships, and the challenges of maintaining a household outside of the marital norm. This Article offers a study of Trollope’s nonmarital families, with extended analysis of five novels in particular, The Bertrams, Rachel Ray, The Small House at Allington, Ralph the Heir, and Mr. Scarborough’s Family. In so doing, the Article presses on the question of Trollope\u27s approach by exploring how he engages in both undertakings: to capture the range of domestic households both in small villages and the heart of Mayfair, and also to imaginatively explore the family as a site of affective possibility, multiple intimacies, and nonmarital ordering
Brief for Petitioner, Muldrow v. City of St. Louis, Missouri
Get PDFTitle VII prohibits an employer from discriminating against an employee because of her race, color, religion, sex, or national origin. Its core antidiscrimination provision, Section 703(a)(1), protects individuals not only from discriminatory hiring, firing, or compensation but also from discrimination with respect to their “terms, conditions, or privileges” of employment. 42 U.S.C. § 2000e2(a)(1). Petitioner Jatonya Clayborn Muldrow maintains that her employer, the City of St. Louis Police Department, discriminated against her in the terms, conditions, or privileges of her employment when, because of her sex, it transferred her out of the Department’s Intelligence Division to an entirely different job, and again when it denied her request to transfer to a different position. The Eighth Circuit rejected her suit because, it believed, she could not show that these transfer decisions imposed a “significant disadvantage” sufficient to qualify as an “adverse employment action.” Pet. App. 9a, 11a, 15a.
The Eighth Circuit’s decision is at war with Section 703(a)(1)’s text. The text does not demand that an employee show a “significant disadvantage” or meet any other heightened-harm requirement. Rather, Section 703(a)(1) requires Muldrow to show three things and three things only: that her employer (1) discriminated against her (2) in the terms, conditions, or privileges of employment (3) because of sex. 42 U.S.C. § 2000e-2(a)(1). Put otherwise, “[o]nce it has been established that an employer has discriminated against an employee with respect to that employee’s ‘terms, conditions, or privileges of employment’ because of a protected characteristic, the analysis is complete.” Chambers v. District of Columbia, 35 F.4th 870, 874-75 (D.C. Cir. 2022) (en banc). This straightforward understanding of Title VII’s words dovetails with its purpose: to “eliminate” workplace discrimination. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973).
This Court should hold that Section 703(a)(1) means what it says and reverse
The Myth of the Nationwide Injunction
Get PDFA growing number of scholars, judges, and Justices are debating the permissibility and propriety of relief that they are calling national injunctions or nationwide injunctions. An injunction is a court order that prohibits an entity from taking certain actions or that requires an entity to take specified actions. Drawing from scholarly literature and popular discourse, some define a nationwide injunction as an injunction with no geographic limitation that benefits nonparties, in addition to named plaintiffs or defined plaintiff classes. Injunctive relief in a number of high-profile cases falls within the crosshairs of nationwide injunction opponents. On the chopping block is relief in cases involving controversial presidential executive orders, Affordable Care Act provisions, and civil rights issues. Yet it is not clear that a category of nationwide injunctions is meaningful or even exists.
Nationwide injunction skeptics indicate that the distinctiveness of the targeted injunctions is either due to the injunctions\u27 geographic scope or, alternatively, because such injunctions provide benefits to nonparties in addition to parties. But almost no federal court injunctions are limited in geographic scope and there is no clear rule or core principle limiting injunctions to provide benefits only to plaintiffs or plaintiff classes.
I provide a comprehensive taxonomy of the challenges to nationwide injunctions, which I divide into subcategories of jurisdictional and prudential concerns. Then, I suggest that nationwide injunctions skeptics\u27 criticism, and even the concept of a nationwide injunction, are muddled due to the incomplete and skewed framing of the discussion. I propose exploring and engaging several, until now, ignored factors to develop a more robust understanding and conversation about the targeted injunctions, their implications, and the potential implications of decreasing or eliminating the targeted injunction as a form of relief in civil litigation
Estimating the Impact of the Age of Criminal Majority: Decomposing Multiple Treatments in a Regression Discontinuity Framework
Get PDFThis paper studies the impact of adult prosecution on recidivism and employment trajectories for adolescent, first-time felony defendants. We use extensive linked Criminal Justice Administrative Record System and socio-economic data from Wayne County, Michigan (Detroit). Using the discrete age of majority rule and a regression discontinuity design, we find that adult prosecution reduces future criminal charges over 5 years by 0.48 felony cases (↓ 20%) while also worsening labor market outcomes: 0.76 fewer employers (↓ 19%) and $674 fewer earnings (↓ 21%) per year. We develop a novel econometric framework that combines standard regression discontinuity methods with predictive machine learning models to identify mechanism-specific treatment effects that underpin the overall impact of adult prosecution. We leverage these estimates to consider four policy counterfactuals: (1) raising the age of majority, (2) increasing adult dismissals to match the juvenile disposition rates, (3) eliminating adult incarceration, and (4) expanding juvenile record sealing opportunities to teenage adult defendants. All four scenarios generate positive returns for government budgets. When accounting for impacts to defendants as well as victim costs borne by society stemming from increases in recidivism, we find positive social returns for juvenile record sealing expansions and dismissing marginal adult charges; raising the age of majority breaks even. Eliminating prison for first-time adult felony defendants, however, increases net social costs. Policymakers may still find this attractive if they are willing to value beneficiaries (taxpayers and defendants) slightly higher (124%) than potential victims