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The Automated Administrative State: A Crisis of Legitimacy
Get PDFThe legitimacy of the administrative state is premised on our faith in agency expertise. Despite their extra-constitutional structure, administrative agencies have been on firm footing for a long time in reverence to their critical role in governing a complex, evolving society. They are delegated enormous power because they respond expertly and nimbly to evolving conditions.In recent decades, state and federal agencies have embraced a novel mode of operation: automation. Agencies rely more and more on software and algorithms in carrying out their delegated responsibilities. The automated administrative state, however, is demonstrably riddled with concerns. Legal challenges regarding the denial of benefits and rights—from travel to disability—have revealed a pernicious pattern of bizarre and unintelligible outcomes.Scholarship to date has explored the pitfalls of automation with a particular frame, asking how we might ensure that automation honors existing legal commitments such as due process. Missing from the conversation are broader, structural critiques of the legitimacy of agencies that automate. Automation throws away the expertise and nimbleness that justify the administrative state, undermining the very case for the existence and authority of agencies.Yet the answer is not to deny agencies access to technology. This article points toward a positive vision of the administrative state that adopts tools only when they enhance, rather than undermine, the underpinnings of agency legitimacy
Fair Use in Oracle: Proximate Cause at the Copyright/Patent Divide
Get PDFIn Oracle America, Inc. v. Google LLC, the Federal Circuit undermined copyright law’s deference to patent law and, in doing so, delivered a blow to both regimes. Copyright’s deference— including a historic refusal to enforce rights that might undermine the public’s liberty to copy unpatented inventions-- is a necessary part of preserving inventors’ willingness to accept the short duration, mandatory disclosure, and other stringent bargains demanded by patent law. Deference to patent law is also integral to copyright law’s interior architecture; copyright’s refusal to monopolize functional applications of creative work lowers the social costs that would otherwise be imposed by copyright’s ease of acquisition and long duration. If patent law refuses to protect a functional device or other innovation (perhaps because its patent has expired, or because the innovation would be obvious to anyone skilled in the field), various copyright doctrines make it difficult for an eager claimant to use copyright law instead. These doctrines act like fences. For example, under 17 USC § 102(b), copyright cannot extend to “ideas” or to any “procedure, process, system,[or] method of operation.” This prohibition applies “regardless” of the copyrighted “form” in which the idea, procedure, process or method appears. Id. Therefore, the public violates no copyright duties when it copies, say, ideas about how to improve the manufacture of steel from a copyrighted instruction manual or video. If the creator of the manufacturing idea wants protection for it, the inventor needs to look to patent law. Similarly, although copyright can subsist in drawings of a useful article, the statute and caselaw disable those copyrights from giving any rights to keep others from making or selling the article. 17 USC § 113(b). Say the inventors of an automobile engine with improved fuel efficiency want to restrain others from building and selling copycat engines. To restrain such functional copying, the inventors get no mileage out of the copyrights that subsist in their blueprints. Rather, to stop competitors from building and selling the new engine, the inventors must seek the protection of patent law. Under yet another statutory rule, sculptured shapes that have “an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information” are not copyrightable unless their aesthetic and functional components are separable. 17 USC § 101.The instant Article discusses these and other limits on copyright law. Their overall impact is to emphasize the importance Congress and the courts give to preventing copyright law from directly or indirectly competing with, or undermining, the decisions of patent law. Computer-program copyrights were intended to respond to programmer’s expression, not their engineering ingenuity. As technology poses new chanllenges, separate intellectual property laws need to keep conguent with the separate purposes each serves. The Supreme Court has granted certiorari in Oracle, allowing the Court to evaluate a judicial opinion that, this Article argues, ignored these first principles.A need for congruence (‘or ‘fit’) is recognized in most areas of civil liability. For example, in enforcing the Clayton Act, the Supreme Court honored that need for congruence by creating a doctrine it called ’antitrust injury’ to limit liability. Common-law tort generally employs the doctrine called “proximate cause” to similarly assure fit between the facts of a given case and the law’s purposes. In copyright law, the courts and Congress entrust this familiar but crucial task to “fair use”. The instant Article employs analogies from antitrust and common-law tort to reinforce the appropriateness of using the fair use doctrine to keep copyright law in its own yard
First Man and Second Woman: Reflections on the Anniversaries of Apollo 11 and Cruzan
Get PDFTHE United States Supreme Court\u27s decision in Cruzan v. Director, Missouri Department of Health marks its thirtieth anniversary in 2020.\u27 This follows closely after the fiftieth anniversary of the Apollo 11 moon landing.2 Anniversaries provide an opportunity for reflection and to gain perspective. We can, I suggest, gain deeper insights regarding human life and death by considering these two anniversaries together. Apollo 11 may seem far from Nancy Cruzan-but the discovery of disturbing details about the death of Neil Armstrong, the first man on the moon, is a productive introduction to the topic of death in a modern American health care institution. Both anniversaries focus on individuals-Nancy Cruzan (the second woman, after Karen Ann Quinlan, to personify the American right to die ) and Neil Armstrong (the first man on the moon). The stories of both Nancy Cruzan and Neil Armstrong are also tied to massive built environments: the American health care nonsystem and its hospitals and complex medical procedures, and the Apollo spacecraft and its rockets and bewildering computers. These technologies have not just changed what we can do, they have changed the way we think about ourselves and our future. This article unfolds in four parts: the death of Neil Armstrong; the death of Nancy Cruzan; Cruzan\u27s progeny and physician-assisted suicide; and our failure to protect the rights of competent hunger-striking prisoners to refuse fluids and nutrition by labeling hunger striking as a suicidal act
Response to Oliar and Stern: On Duration, the Idea/Expression Dichotomy, and Time
Get PDFCourts often use possession to determine who should own unclaimed resources. Yet, as Oliar and Stern demonstrate, the concept of possession is little more than a metaphor, capable of being applied to a broad range of phenomena. The authors helpfully deploy “time” as a metric to sort through the rules determining what should count as possession, and they survey the likely costs and benefits attached to choosing earlier versus later events as triggers for acquiring title.
With those tools in hand, Oliar and Stern employ “time” and the analogy of physical possession to address problems in copyright, patent, and trademark law. The result is an article that offers fascinating windows both on the economics of private ownership, and on various doctrines within the legal domain conventionally labeled intellectual property (“IP”).
Their methodology raises some flags for a copyright scholar, however. Their approach comes from a scholarly subfield that focuses on eliminating waste in the exploitation of intellectual products rather than on inducing the creation of intellectual products. The subfield’s emphasis on the management of existing products could lead to perpetual term length for copyrights and patents, because investment in maintenance and exploitation can be continual. An analytic structure that can lead to perpetual ownership is alien to the constitutional logic that gave Congress the power to grant exclusive rights to authors and inventors only for “limited times.
Are We Ready for the Next Recession? A Review of Yair Listokin’s Law and Macroeconomics: Legal Remedies to Recessions
No full text“Are we ready for the next recession?” That question haunts and motivates Yair Listokin’s new book, LAW AND MACROECONOMICS: LEGAL REMEDIES TO RECESSIONS (Harvard Press 2019). If the response to the Great Recession of 2007–08 is any indication, the answer may be no. According to Listokin, the traditional tools for combating economic downturns—fiscal and monetary policy—appear decreasingly effective in stimulating “aggregate demand”, the key to economic revival.1 Listokin’s ambitious project is to propose a third channel for economic reinvigoration: law, or to use his preferred term, “expansionary legal policy.”2 Listokin, a Yale law professor and economist,3 argues for expansionary legal policy as a third, overlooked tool distinct from monetary and fiscal policy that policymakers should deploy to fight recessions.
Law and Popular Culture: A Course Book (3rd edition)
Get PDFThis book is the reader for a course with the general theme of “Law and Popular Culture” or “Law and Film.” It is about the interface between two these two enormously important subjects. It is suitable for undergraduate and graduate classes or seminars in American studies, criminal justice, political science, film studies, or many other academic programs, as well as in law schools. The course can be taught by anyone interested in law as well as film and television and requires no specialized academic training. This is the third edition of the book which has a new co-author (Jessica M. Silbey) as well as a new publisher (Vandeplas). There is an extensive teacher’s manual to assist instructors.The book provides material on popular culture that may be unfamiliar to most law students, as well as material on law that may be unfamiliar to non-law students. The course is popular wherever it’s offered; students are fluent in the language of popular culture and participate enthusiastically in discussions about law as it appears in film and TV.The book brings to life such law-related subjects as the adversary system, bad lawyers, juries, life of lawyers, and legal education as well as specific legal subjects such as the criminal and civil justice systems, family law, and the death penalty—each of them covered by separate chapters and illustrated by particular films or TV shows. It also discusses culture-related subjects such as film-making technique, censorship, and the economics of film production.https://scholarship.law.bu.edu/books/1128/thumbnail.jp
Fixing Informational Asymmetry Through Trademark Search
Get PDFI call this paper a “Levendowski special.” It follows the signature format of much of Professor Levendowski’s prior work which, as in the latest article, recruits a legal tool typically aimed at one set of problems for the purpose of cleverly addressing a different set of problems. Her past articles harnessed copyright law to “fix artificial intelligence’s implicit bias” (2018) and to “combat revenge porn.” (2014). This paper draws on Professor Levendowski’s expertise working in private practice as a trademark attorney to address the problem of surveillance technology opacity. It is a primer on how to investigate trademark filings for hard-to-access information about surveillance technologies
Afghanistan\u27s New VAT, Part 1: Invoice Matching or a Unitary Digital Invoice
Get PDFIn the summer of 1990 two groundbreaking articles on business process re-engineering (BPR) were published, one by Thomas H. Davenport (a professor in information technology at Babson College) in the MIT Sloan Management Review, the other by Michael Hammer (a professor of computer science at MIT) in the Harvard Business Review. BPR is a management strategy that analyzes IT-intensive workflow designs and business processes within an organization.On December 21, 2020 (Jadi 1, 1399) Afghanistan was scheduled to implement a 10% VAT. It has been delayed one year by the pandemic. When it does implement, Afghanistan will have significant workflow design and business process decisions to make. There will be problems, of course, but there will also be great opportunities. The question for Afghanistan is how it will design workflows and business processes with the technological capabilities we have today.These papers undertake a limited (comparative jurisdictional) study of VAT invoices. Its methodology is to apply BPR principles to the invoice function of a credit-invoice VAT. An assessment is offered on where the leading edge of the invoice design element of VAT practice is today. The hope is that this analysis will be found useful in Afghanistan, or another jurisdiction newly adopting a VAT
UK & KSA VATs: A Cutting-Edge Proposal – Mini-Blockchain and VATCoin
Get PDFThis paper develops, extends, and clarifies themes introduced in five prior papers dealing with blockchain, and VATCoin in the context of both (a) the new VATs in the Gulf Cooperation Council (GCC), and (b) the mature VATs in the EU. Five additional papers on VAT technology advances in Fiji, with blockchain and VATCoin applications to New Zealand’s approach to online sales platforms (the Netlix Tax) are similarly referenced and extended. The GCC VAT papers were exploratory. For the most part, they were composed before any GCC jurisdiction had implemented a VAT, and in three instances even before the GCC Framework Agreementwas officially published. Today, VATs have been adopted in three of the six GCC jurisdictions: Saudi Arabia, the UAE and Bahrain. A fourth jurisdiction, Oman, had been only a few months away from implementation, but now is delayed. As to the EU, the prior papers directly responded to the request for public comment on the Commission’s October 4, 2017 proposal for “far reaching reforms” in the EU VAT.All cutting-edge VAT compliance regimes depend on a comprehensive, naturally occurring or mandated digital invoice regime. Whether the goal is to blockchain •an entire VAT ecosystem (as in Fiji), or •a discrete market segment like taxi cabs (in Quebec), or •the marijuana supply chain (as is proposed for US States), or •the remote sales of services through online marketplaces (as is proposed for New Zealand’s Netflix Tax), or •cigarettes that are susceptible to smuggling (as was proposed, and partially adopted in parts of the GCC), or •whether the goal is to monitor the tax and financial flows on the other side of a transaction, •the domestic and cross-border payments of VAT (as has been proposed with VATCoin in both the GCC and the EU), everything starts with the adoption of the digital invoice. This paper will focus on two representative VAT jurisdictions within different economic communities –the United Kingdom (UK) in the EU and the Kingdom of Saudi Arabia (KSA) in the GCC. Both are moving toward the adoption of comprehensive digital invoices. Neither have mandated it (yet). It is certainly not anaturally occurring phenomenon in either country
Race, Civil Rights, and Immigration Law after September 11, 2001: The Targeting of Arabs and Muslims
No full textSeptember 11, 2001 was a watershed moment in the history of the United States. After the tragic events of that day, including the hijacking of four commercial airliners for use as weapons of mass destruction, America went to “war” on many fronts, including but not limited to military action in Afghanistan.
As needed and expected, heightened security measures and an intense criminal investigation followed. Almost immediately after the tragedy, Arabs and Muslims, as well as those “appearing” to be Arab or Muslim, were subject to crude forms of racial profiling. Airlines removed Arab and Muslim passengers, including, in one instance, a Secret Service agent assigned to protect President George W. Bush. Immediately after September 11, hate crimes against Arabs, Muslims, and others rose precipitously. In Arizona, a US citizen claiming vengeance for his country killed a Sikh immigrant from India based on the mistaken belief that this turban-wearing, bearded man was “Arab.”
Supporters and critics alike saw the federal government as “pushing the envelope” in restricting civil liberties in the name of national security. The civil rights deprivations resulting from federal action reveal that national regulation of immigration is a double-edged sword. Federal preemption of state law is designed to create a uniform immigration law and frequently has served to prevent local discrimination against noncitizens. However, the federal government can also, with few legal constraints, strike out at immigrants across the nation if it sees fit. That suggests that the federal government’s role in the regulation of immigration and immigrants, as well as its interaction with the states, deserves most serious attention, especially in times of national crisis.
Besides acting on a national scale in the “war on terrorism” that followed September 11, the federal government took steps that might also have future civil rights consequences. In the investigation of the hijackings, the Department of Justice enlisted the assistance of state and local law enforcement agencies in the questioning of Arabs and Muslims. As part of heightened security measures, the Bush administration considered permanently increasing the role of local police in immigration enforcement, which would represent a significant departure from the near-exclusive federal dominance over this field. Because local police are generally unfamiliar with the immigration laws, they have been involved in well-known episodes of egregious violations of the civil rights of US citizens as well as noncitizens in efforts at immigration enforcement. As a result, state and local involvement in immigration enforcement might have lasting civil rights impacts on immigrants in the United States.
The federal government’s response to September 11 demonstrates the close relationship between immigration law and civil rights in the United States. Noncitizens historically have been vulnerable to civil rights deprivations, in no small part because the law permits, and arguably encourages, extreme governmental conduct with minimal protections for the rights of noncitizens. Unfortunately, the current backlash against Arabs and Muslims in the United States fits comfortably into a long history, including the Alien and Sedition Acts of the 1790s, the Palmer Raids and the Red Scare that followed World War I, and other concerted efforts by the US government to stifle political dissent. This backlash is especially troubling because of the possibility exemplified by the internment of persons of Japanese ancestry during World War II that racial, religious, and other differences have fueled the animosity toward Arabs and Muslims.
A complex matrix of otherness based on race, national origin, religion, culture, and political ideology may contribute to the ferocity of the US government’s attacks on the civil rights of Arabs and Muslims. As recently stated:
Most Americans probably feel particularly threatened because the September 11 suicide hijackers were foreign, and some may be especially fearful because they were Arabs. This fear may cause us to exaggerate the danger of future attacks in general, and of attacks by Middle Eastern terrorists in particular. As a result, we may overestimate the effect of racially specific security measures. And unfortunately, we are more willing to accept aggressive measures when they target small and politically disempowered groups, specifically racial and ethnic minorities, and foreign nationals.Footnote1
As has occurred in the past, the ripple effects of national security measures in the end may adversely affect the legal rights of all noncitizens, not just Arabs and Muslims. Indeed, we contend in this chapter that the civil rights deprivations resulting from the war on terrorism may have long-term adverse impacts on the civil rights of citizens as well as noncitizens in the United States. As Professor Edward Said has observed, terrorism in these times “has displaced Communism as public enemy number one.”Footnote2 That has translated into a near exclusive focus on “foreign terrorists,” particularly Arabs and Muslims