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The Battle for Your Brain: Defending the Right to Think Freely in the Age of Neurotechnology
No full textImagine a world where your brain can be interrogated to learn your political beliefs, your thoughts can be used as evidence of a crime, and your own feelings can be held against you. A world where people who suffer from epilepsy receive alerts moments before a seizure, and the average person can peer into their own mind to eliminate painful memories or cure addictions.
Neuroscience has already made all of this possible today, and neurotechnology will soon become the “universal controller” for all of our interactions with technology. This can benefit humanity immensely, but without safeguards, it can seriously threaten our fundamental human rights to privacy, freedom of thought, and self-determination.
From one of the world’s foremost experts on the ethics of neuroscience, The Battle for Your Brain offers a path forward to navigate the complex legal and ethical dilemmas that will fundamentally impact our freedom to understand, shape, and define ourselves.https://scholarship.law.duke.edu/justin_miller_awards_books/1003/thumbnail.jp
The Puzzle of Procedural Originalism
Get PDFOn a daily basis, lawyers and judges consult and apply the rules of subject matter jurisdiction and personal jurisdiction. These doctrines—the workhorses of procedural law—ostensibly spring from the Constitution’s text, but their substance owes more to considerations of fairness, efficiency, and sound policy than it does to original meaning. Indeed, these doctrines are among the most openly and obviously nonoriginalist doctrines in constitutional law. Curiously, the originalist movement has almost totally ignored this everyday terrain. That is beginning to change. Recent overtures by Supreme Court Justices suggest that originalists are now poised to advance into the field of civil procedure. Reorienting extant procedural doctrine around the polestar of original meaning could have dramatic effects: for example, it could oust corporations and D.C. citizens from suing or being sued in diversity while throwing into disarray the doctrines that govern the vast set of suits in which state and federal courts exercise personal jurisdiction over out-of-state defendants. In these and other respects, an originalist turn in procedure may have momentous consequences for our law.
This Article examines this emergent phenomenon of “procedural originalism”—its past, its present, and its prospects. It describes the intellectual backstory of originalism’s engagement with civil procedure and remedies and the fresh uptick of attention to the originalist underpinnings of various procedural and remedial doctrines. It surveys the discrepancies between original public meaning and bread-and-butter staples of civil procedural doctrine while showing how civil procedural doctrine has drawn its substance from considerations beyond mere original meaning. And it sketches the challenging questions that procedural originalism poses for some of the many theories of originalism.
Above all, however, this Article explores what originalism’s late arrival to the domain of civil procedure reveals about the construction of the originalist agenda. A prominent charge levied against originalism is the claim that originalism is not an apolitical legal interpretive methodology but rather a tool for selectively inscribing into constitutional law the political goals of the conservative legal movement. What is striking about civil procedure is that an originalist remodeling of procedural law would call for some outcomes that are nonaligned with, or even sharply adverse to, the aims of key conservative movement constituencies. The future course of procedural originalism therefore promises to throw light on the contours of originalism’s constitutional politics and, ultimately, will offer a new test of the charge that originalism is a proxy for politics rather than a theory of law
Patent Forfeiture
Get PDFPatent law doesn’t look kindly on patent owners who engage in wrongdoing involving the patent. The U.S. Supreme Court and lower courts have refused to enforce patents tainted with inequitableness, fraud, or bad faith. This issue typically arises in patent litigation when an accused infringer asserts that the patent should be unenforceable if the patentee engaged in one of four proscribed activities: inequitable conduct (deliberate misrepresentations or omissions of material information from the Patent Office); patent misuse (anticompetitive licensing practices); unclean hands (business or litigation misconduct); or waiver/estoppel (a lack of candor before a standard-setting organization). This seems right—a patentee shouldn’t be allowed to benefit from wrongdoing.
However, the use of unenforceability to remedy patentee misconduct is largely understudied and undertheorized in legal scholarship. One reason is doctrinal. Aside from the four proscribed activities, there is no clear-cut remedy for other types of patentee misconduct involving the asserted patent. For instance, should a patent for a nutritional supplement that makes affirmative misstatements about its safety and efficacy be enforceable? How about a patent that plagiarizes someone else’s copyrighted work or makes intentionally misleading assertions about the invention’s capabilities?
This Article seeks to answer these questions and fill the doctrinal and scholarly gap in patent unenforceability remedies. It offers a new, unclean-hands-based theory of unenforceability called patent forfeiture. If a patentee engages in egregious pre- or post-issuance misconduct involving the patent and gains an inequitable benefit from it or harms a third party, the patentee may forfeit the right to enforce the patent until the misconduct has been abandoned and its ill effects dissipate. Patent forfeiture adopts the hallmarks of equity—flexibility, discretion, and individualization—but is sufficiently constrained to align with other policy objectives of the patent system. And while morality, conscience, and good faith may not play a role in obtaining a patent, patent forfeiture reaffirms the importance of these equitable principles in enforcing a patent
COVID Vaccines and Intellectual Property Rights: Evaluating the Potential for National Legislation Implementing Global Patent Waivers
Get PDFDebates over the proper scope of intellectual property protections during the COVID-19 pandemic have occupied newspaper headlines since the first vaccines were developed nearly three years ago. Scholars and key politicians from several nations considered the implementation of a global patent waiver in an effort to make the vaccines more widely available in developing parts of the world. Although the question of whether such a waiver would fulfill this goal remains empirically unanswered and up for debate, the legal structure of United States patent law would make its implementation by Congress difficult given the value placed on intellectual property protections since America’s birth. If lawmakers wish to consider limiting patent rights in an inevitable future pandemic or other national emergency, they would be wise to consider these legal issues ex-ante by revising the Bayh-Dole Act and the existing patent law takings provision
Protecting Natural Stewardship: Public Trusts, Wildlife Trusts, and the Effect of Trophic Cascades
Get PDFThe reintroduction of the Gray Wolf to the Greater Yellowstone Ecosystem conferred extensive ecological benefits to the region. The wolves\u27 return resulted in a phenomenon known as a trophic cascade, in which the presence of apex predators atop a food pyramid effectuates a waterfall of ecosystem-wide benefits. For example, the Gray Wolf has curtailed bloated elk populations, which has in turn reduced the damage of elk herds overgrazing on willow, aspen, and cottonwood plants—critical sources of food for the region\u27s beavers. Importantly, the wolves\u27 benefits are not confined to flora and fauna. Scientists have even discovered geological and riparian benefits directly traceable to the reintroduction.
For all its ecological importance, the reintroduction of the gray wolf also resonates meaningfully in the legal world. Since the Endangered Species Act was enacted, Gray Wolf populations have oscillated between being federally protected under the Act and being left to the mercy of less-compassionate state management regimes—a problem known as jurisdictional fragmentation.
This Note argues that the traditional property law doctrines of public trust and wildlife trust should be read to compel state protection of species that produce positive trophic cascades. These doctrines, read together, would require state governments—as opposed to only federal agencies—to protect certain species of wildlife. Creating an affirmative duty for states to protect certain species would remedy jurisdictional fragmentation and create a more consistent, coherent management regime applicable to certain species and certain populations. This theory would include wolves among the assets a state holds in trust for us, the trust beneficiaries. Requiring states to hold certain species as public trust assets would help reconcile divergent federal and state management regimes and help protect other trust assets, such as the land, rivers, and mountains
Legal Strategies to Minimize Subway Air Pollution in the United States
Get PDFAir pollution in U.S. subway systems poses a major threat to public health. People in subway stations breathe in dangerously high levels of dusts, called particulate matter. Current legislation does not effectively address this problem; in fact, the United States does not have a comprehensive indoor air quality law at all. Left unregulated, people regularly exposed to subway air pollution could suffer respiratory and cardiovascular issues and even premature death.
To mitigate these health effects, some countries have imposed PM standards in subway systems and underground spaces. Others have standards covering all indoor spaces. In the United States, many subway systems have begun exploring technologies to filter subway air in the wake of the coronavirus pandemic. To support their efforts and innovation, the United States should enact legislation establishing a grant and loan program for subway systems’ air-purifying initiatives. Modeled after the successful Diesel Emissions Reduction Act, this law would adopt a carrot-based approach to effectively reduce subway air pollution, allowing each system to tailor initiatives to their unique characteristics. While the United States should explore a mandatory standards-based approach long term, it should prioritize this legislation to protect the public more quickly from this ongoing threat
Structural Inequality and the New Markets Tax Credit
Get PDFThe New Markets Tax Credit (“NMTC”) is a federal tax incentive used to promote investment in low-income neighborhoods. Many of these neighborhoods are home to historically marginalized communities. However, very few minority-led institutions participate in the NMTC program. This Article provides the first theoretical and empirical exploration of the underrepresentation of minority-led institutions in the NMTC program. Based on original interviews with representatives of Community Development Entities (“CDEs”), investors, borrowers, and consultants who participate in the NMTC program, this Article describes the “NMTC ecosystem,” a complex, relationship-driven network of NMTC program participants who influence decision-making and create opportunities for success within the NMTC program. The Article demonstrates that within the NMTC ecosystem, minority-led CDEs face structural barriers to entry similar to those that exist in purely private markets, such as unequal access to professional networks and lack of track records. Troublingly, those barriers are intensifying with time.
The underrepresentation of minority-led CDEs in the NMTC program undermines its capacity to promote equitable economic development. To remedy that problem, this Article proposes that the Treasury should increase transparency and guidance in its administrative process, engage institutional intermediaries to aid minority-led CDEs, and relax requirements that chill participation among minority-led CDEs. These insights and prescriptions have relevance well beyond the context of the NMTC. In many domains, regulators have adopted measures that aim to promote equitable community development. This Article’s findings and reform recommendations thus have important implications for the broader universe of place-based regulatory policies, including for the many other tax incentive programs that aim to promote equity and reduce economic marginalization