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Professors Hartzog and Richards Advocate for Data Loyalty in Privacy Legislation
No full textPrivacy law scholars Woodrow Hartzog, Boston University, and Neil Richards, Washington University in St. Louis, have been exploring the concept of data loyalty for a number of years. In their article, “Legislating Data Loyalty,” (Notre Dame Law Review, 2022) Professors Hartzog and Richards explain that “Data loyalty is the simple idea that the organizations we trust should not process our data or design their tools in ways that conflict with our best interests.”
In a recent article written for IAPP Perspectives, Professors Hartzog and Richards examine several recently proposed bills to update privacy law in the United States. They write that the American Data Privacy and Protection Act, H.R.8152 (ADPPA) is “the most significant bipartisan privacy legislation introduced in more than a decade, and it represents a sincere attempt to move beyond the ineffective ‘notice and choice’ approach to privacy that has been the hallmark of U.S. legislators since the days of dial-up modems.”
Below are excerpts from “We’re So Close to Getting Data Loyalty Right,” written by Professors Woodrow Hartzog and Neil Richards (IAPP Perspectives, June 14, 2022
We\u27re so Close to Getting Data Loyalty Right
No full textPeople are justifiably excited about the American Data Privacy and Protection Act. It’s the most significant bipartisan privacy legislation introduced in more than a decade, and it represents a sincere attempt to move beyond the ineffective “notice and choice” approach to privacy that has been the hallmark of U.S. legislators since the days of dial-up modems. The ADPPA has many interesting parts, which have been well-explained by others. But possibly the most significant part of the bill—and the response bill from Sen. Maria Cantwell, D-Wash. — are “duties of loyalty,” which in theory would require organizations to act in our best interests when processing data and designing services
POV: Why the CROWN Act Is Needed
Get PDFImagine, for one minute, that we live in an alternate universe where employer and school grooming policies that ban “unprofessional” or “faddish” hairstyles are routinely employed as a reason for firing, or refusing to hire, individuals with naturally straight hair. The normative standard for hair in this alternate universe is tightly coiled, curly hair—the kind of hair texture that actors like Denzel Washington or Issa Rae are born with, hair texture that is best suited for natural and protective hairstyles like locs, twists, braids, and Bantu knots
Florida Governor DeSantis’ Transport of Migrants to Massachusetts Is a “Crude Political Tactic…Playing with People’s Lives,” LAW Expert Says
Get PDFMassachusetts officials say Florida may have broken the law by transporting 50 Venezuelan immigrants to Martha’s Vineyard on September 14.
Rachel Rollins, US Attorney for the District of Massachusetts, says she’s reviewing whether the unannounced transport violated laws against human trafficking, coercion, or other crimes. Lawyers and aid workers on the Vineyard report that the immigrants were lied to about jobs and housing awaiting them in Massachusetts, about landing in Boston, and about having to register their new addresses with federal citizenship and immigration officials
Hidden Agendas in Shareholder Voting
Get PDFNothing in either corporate or securities law requires companies to notify investors what they will be voting on before the record date for a shareholder meeting. We show that, overwhelmingly, they do not. The result is “hidden agendas”: for 88% of shareholder votes, investors cannot find out what they will be voting on before the record date. This poses an especially serious problem for investors who engage in securities lending: they must decide whether the expected benefit of voting exceeds the expected benefit of continuing to lend their shares (or making them available for lending) without knowing what they will be voting on. All investors who engage in share lending are affected, but the problem is particularly acute for large investment managers that have fiduciary duties related to voting. At present, they must discharge these duties in the dark.
We propose a straightforward solution: an amendment to the Securities and Exchange Commission’s proxy rules requiring public companies to file proxy statements at least five days before the record date for the meeting. This simple change would give investors the information they need to make an informed decision about whether to retain the right to vote or not. If we believe that shareholder voting is important, and that investment managers and others should decide whether to vote, we should give them the information they need to do so
The Healthcare Law Review: USA
No full textThe US healthcare industry remains at a crossroads. The healthcare reform legislation passed under President Barack Obama in 2010, officially called the Patient Protection and Affordable Care Act (ACA) but widely referred to in the United States as \u27Obamacare\u27, resulted in significant changes in the US healthcare system. These changes included a dramatic expansion in the number of insured patients, contributing to increased demand for services. Many of these newly insured are covered by the joint state-federal Medicaid programme, which generally covers low-income patients as an entitlement programme, and reimburses at the lowest rates in most markets. After four years of Donald J Trump as US President and Republican control of Congress, his promise to \u27repeal and replace\u27 the ACA legislation failed both in the legislature and the courts
Ms. Attribution: How Authorship Credit Contributes to the Gender Gap
Get PDFMisattribution plagues the practice of law in the United States. Seasoned practitioners and legislators alike will often claim full credit for joint work and, in some cases, for the entirety of a junior associate’s writing. The powerful over-credit themselves on legislation, opinions, and other legal works to the detriment of junior staff and associates. The ingrained and expected practice of leveraging junior attorneys as ghost-writers is, to many, unethical. But it presents a distinct concern that others have yet to interrogate: misattribution disparately impacts underrepresented members of the legal profession.
This Article fills that space by offering a quantitative analysis of gendered disparate impact of normative authorship omissions in law. Using patent practitioner signatures from patent applications and office action responses, which include a national identification number correlated to the time of patent bar admission, this work demonstrates how women’s names are disproportionately concealed from the record when the senior-most legal team member signs on behalf of the team. This work illustrates that, when women reach equivalent levels of seniority, they do not overexert their power to claim credit to the same extent as their male peers. This parallels sociological findings that competence-based perception, accent bias, and perceived status differentiation between male and female colleagues can manifest in adverse and disparate attribution for women. The gender gap in the legal profession is exacerbated through this practice by falsely implying that women do less work, are more junior, and do not deserve as much credit as their male colleagues.
Addressing the failure of current practices requires cultural changes and regulatory action to ensure proper and equitable attribution in scholarship, doctrine, and industry. Legal obligations to maintain the integrity of the legal profession must include these affirmative steps to remedy de facto and de jure discrimination
Schloendorff v. Society of New York Hospital
No full textpective. Each chapter includes a rewritten opinion penned by a leading scholar relying exclusively on court precedents and scientific understanding available at the time of the original decision accompanied by commentary from an expert placing the case in historical context and explaining how the feminist judgment might have shaped a different path for subsequent developments. It provides a map of the health law field-where paternalism, individualism, gender stereotypes, and tensions over the public-private divide shape decisions about informed consent, medical and nursing malpractice, the relationships among health care professionals and the institutions where they work, end-of-life care, reproductive health care, biomedical research, ownership of human tissues and cells, the influence of religious directives on health care standards, health care discrimination, long-term care, private health insurance, Medicaid coverage, the Affordable Care Act, and more
Escaping the Allure of Joint Employment: Using Fault-Based Principles to Impose Liability for the Denial of Employee Statutory Rights
Get PDFUsing joint employment alone to impose liability requires an extension of the strict imputed liability theory embodied in respondeat superior. Employers, including incorporated businesses, under the common law are strictly liable for harms to their employees, as they are for harm to third parties, because of actions of their agents or other employees taken within the scope of their employment. The liability is strict because it does not depend on a finding that the employer, the principal, was negligent or otherwise at fault. Expanding liability through joint employment, even if based on a demonstration of joint control of statutorily protected employees, extends this strict imputed liability by imposing responsibility on one of the businesses for the acts of managers or others who may not be under its control.
There are both a practical political problem and a related legal doctrinal problem with using joint employment to draw the boundaries of assigned liability for the denial of employee statutory rights. The legal doctrinal problem is that the common law definition of employment is too constricted to reach all actions of agents of independent businesses that sometimes cause the denial of statutory employee rights. Before treating a business as an employer on whom strict respondeat superior liability can be imposed, the common law has required that a business have sufficient control over workers to ensure that their work is aligned with its interests. Yet employers may intentionally or negligently cause the denial of employee rights without having such control. Franchisors, for instance, that do not meet the common law definition of employer for their franchisees’ employees, typically do have enough influence over their franchisees to cause violations of federal or state wage and hour laws or the National Labor Relations Act.
The practical political problem is that expanding joint employment liability from its common law dimensions to reach businesses that may have not caused the denial of employee statutory rights seems unfair to business owners and managers, in part because it is disruptive of efficient business relationships. The imposition of strict liability on one employer for a second employer’s denial of rights to its employees may compel the first employer to assert full control over the second employer’s employment relations. Whether or not this benefits the employees, it may also disrupt efficient relationships that have been set contractually between two solvent businesses for reasons other than the evasion of liability through insolvency. Not surprisingly, not only the business community, but also the judiciary has resisted imposing liability on employers whose agents have not been the cause of statutory harm.
An alternative fault-based approach to extending liability for the deprivation of statutory rights can reach more culpable businesses, whether or not joint employers, without the disruption of efficient business relationships. Many statutes, including Title VII of the 1964 Civil Rights Act and the National Labor Relations Act, have been reasonably read to embody this fault-based approach, and those that cannot, including the Fair Labor Standards Act, can be read to permit non-preempted supplementary common law actions based on implied duties not to interfere actively with another employer’s grant of statutory benefits. This fault-based approach would allow businesses to determine the efficient level of control they exert over the employment policies of subordinate independent businesses, but require them to take reasonable steps to ensure that whatever control they do exert does not result in the deprivation of the rights of the employees of the subordinate businesses
Nondelegation and Originalism
Get PDFOriginalism certainly isn’t what it used to be. From a fringe theory with few adherents it has, in recent decades, become the dominant conservative legal weapon deployed against nearly every liberal legal development since the dawn of the twentieth century, particularly the acceptance of the administrative state and the delegation of rulemaking power to agencies. Professor Kurt Eggert’s recent article adds to the mounting evidence that originalism is not a credible legal theory especially when deployed against Congress’s choices concerning the proper structure of the regulatory state