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Substantial Transformation: The Worst Rule for Determining Origin of Goods - Except for All the Rest
Get PDFDetermining the origin of an imported product for purposes of assessing Customs duties has gained exceptional importance in recent years due to the imposition of retaliatory duties on Chinese goods pursuant to Section 301 of the Trade Act of 1974 and national security duties on steel and aluminum imports pursuant to Section 232 of the Trade Expansion Act of 1962. Although United States courts, eight decades ago, pronounced a rule of substantial transformation based on manufacturing or processing that results in the creation of a new article of commerce, having a name, character, or use different than its ingredients or materials, United States Customs and Border Protection has strayed from that rule, providing it lip service, but making origin determinations on such amorphous and subjective bases such as defining the essential component of a good or requiring sufficient working or processing. This Article discusses why the traditional substantial transformation rule best serves the needs of international commerce
Establishing Control Order Regimes: The International Human Rights Law Implications for Pre-Conviction and Post-Release Control Orders
Get PDFControl orders are restrictive measures placed on individuals that pose an identified threat to public safety as a component of domestic counterterrorism policy. Control orders and their compliance with International Human Rights Law have been the subject of extensive litigation within the European Court of Human Rights and domestic states courts. Controlling provisions are applied in either the pre- conviction or the post-release stage of a state\u27s criminal procedure. Pre- conviction control orders face significant criticism for the potential conflicts with due process protections of the right to a fair trial and the broader right of liberty. This Note describes the current jurisprudence and analyzes its potential application to states that have yet to fully establish control order regimes. Because there is a lack of evidence indicating that pre- conviction control orders are necessary to prevent coordinated terrorist attacks, this Note finds that states should weigh the protection of individual liberties over the undetermined benefits of such restrictions. This Note concludes that states should only utilize pre-conviction control orders in the narrowest sense with ample oversight and judicial review mechanisms. It also concludes, however, that post-release control orders should be adopted into any system focused on terrorism prevention to prevent recidivism and ensure the reintegration of individuals previously engaged in terrorism-related activities into society. This Note is particularly pertinent to the number of Balkan states that are currently planning or considering implementing extensive control order regimes
The Social Discount Rate: Legal and Philosophical Underpinnings
No full textDiscounting of deferred impacts of government policies is a long-established practice that has been the target of substantial litigation and continued philosophical debate. Legal challenges to the social rate of discount have resulted in general acceptance of the principle of discounting at a nonzero rate for both monetary and nonmonetary impacts. Courts have displayed a general familiarity with discounting and often require transparent justification for the selection of the discount rate based on established scientific principles. The philosophical issues are more wide-ranging and include whether nonmonetary impacts should be discounted, the use of the opportunity cost of capital or the social rate of time preference, the time frame that is pertinent for setting the discount rate, and determination of whose preferences should have standing. Intergenerational issues are particularly challenging, raising questions regarding which generation\u27s preferences should be recognized, the potential for dynamic inconsistencies arising from preferential discount rates, and intertemporal inequities. Benefit-cost analyses that include appropriate recognition of benefits and costs for future generations serve a constructive function in providing a mechanism for recognizing future effects on social welfare
Reinterpreting Repeat Infringement in the Digital Millennium Copyright Act
Get PDFIn 1998, Congress passed the Digital Millennium Copyright Act, which aimed to balance the growth of the internet with the enforcement interests of copyright holders. In exchange for immunity from third-party infringement, the DMCA imposes certain conditions on internet and online service providers. Unfortunately, the law continues to contain many ambiguities in its statutory scheme, not least of which is the requirement that service providers maintain a “repeat infringer policy” to remove individuals that repeatedly infringe intellectual property rights. In response to a review of the Copyright Act conducted by the House Judiciary Committee, the US Copyright Office authored a report in May of 2020 evaluating the DMCA. The report makes clear that there are persistent issues around the repeat infringer policy requirement. As social media companies become more powerful, resolving the ambiguities in the DMCA becomes increasingly important. This Article accomplishes two things. First, it is the only comprehensive review of the law around repeat infringer policies and lays forth a practical framework for what adequate policies must contain under Section 512(i)(1)(A) of the DMCA. Second, the Article contributes to the scholarly literature by proposing an effects-oriented policy solution in light of the vagueness of Section 512(i) of the DMCA: a tiered system for evaluating termination of users online. This system will consider the type of infringing user, providing lenience to the service providers, clarity to the copyright holders, and security to internet users by reinterpreting the circumstances in which termination is appropriate to better reflect Congress’ legislative intent
Using an Evolutionary Approach to Improve Predictive Ability in Social Sciences: Property, the Endowment Effect, and Law
Get PDFFrom the perspective of other disciplines, evolutionary approaches more often provide explanation and coherence than they help to solve discrete problems. We believe that more examples of the latter sort will help both with disciplinary synthesis and with the advance of knowledge. Here we describe a 20-year arc of research to demonstrate the problem-solving utility of an evolutionary perspective by focusing, as a case study, on a particular cognitive bias – the endowment effect – that has implications for law. Legal systems often assume that humans make decisions that are substantively rational, consistent, and aimed at maximizing their own wellbeing. But prevalent cognitive biases disrupt this, showing that humans consistently make decisions that seem to violate rationality and/or their own best interests. And despite decades of research, there has been little progress in understanding why these biases exist. We are among the scholars who have converged on the idea that many cognitive biases may have evolved as adaptations to pre-modern conditions, the evolutionarily sudden changes from which often leave them mis-matched to current conditions, prompting us to situationally irrational outcomes. Here, we discuss our data testing hypotheses derived from this perspective in both humans and nonhuman primates and consider how it has advanced our understanding of both the endowment effect narrowly and cognitive biases generally – including those relevant to law and policy
Directed Trusts and the Conflict of Laws
Get PDFDirected trusts are an extremely important development in trust law, indeed truly transformative, because they challenge what was presumed to be the irreducible core of the trust.\u27 That is, the trustee owes certain nonwaivable fiduciary obligations to the beneficiaries with regard to the management of the trust estate and also with respect to distributions.
The directed trust in its radical format, as found to a greater or lesser degree in Tennessee, Nevada, South Dakota, and Delaware, represents a fundamental assault on this irreducible core of trust law because, with respect to investments and distributions, new actors, known as trust advisers (advisors) or directors, take the place of the trustee while potentially avoiding the same high level of fiduciary duty. As a result, the irreducible core is indeed reduced, even eliminated, resulting in a very different model of the trust. That model might be termed the neo-trust. While rooted in trust doctrine, it deviates from certain fundamental elements of the traditional trust in response to the demands of a large number of prospective trust settlors.
The radical directed trust laws of these neo-trust states ordinarily could be dismissed as localized responses from small states that are not leading centers of capital, with perhaps the exception of Delaware. However, they are quickly transforming into powerhouse centers of trust administration. How? Very simply-the conflict of laws. Nonresidents of these neo-trust states can go shopping for directed trust law in the neo- trust states and can do so very cheaply by designing their instruments in a way that relies on well-accepted, albeit somewhat murky, conflicts rules reflected in the Restatement (Second) of Conflict of Laws, the Uniform Trust Code (UTC), and the Uniform Directed Trust Act (UDTA). In an ironic twist, then, the widely accepted Restatement (Second) and Uniform Laws conflicts regimes enable avoidance of the very Uniform Laws and Restatement of Trusts substantive law regimes, which seek absolutely to preserve the irreducible core. They enable domiciliaries of these states to adopt the neo-trust model while remaining domiciled in traditional trust law states
Climate Damages, Globalism, and Federal Regulation
Get PDFThe U.S. Environmental Protection Agency recently proposed for public comment new higher estimates of damages from greenhouse gas (GHG) emissions. The estimates, called the social cost of carbon (SCC), are the monetary value of the net harm to society of emitting a metric ton of carbon dioxide to the atmosphere in a given year. Ranging from 340 per metric ton of carbon dioxide (C02) emitted for 2020, these estimates represent harm to everyone on earth from a metric ton of C02 emissions, and therein lies a key issue. Recent administrations have split on whether the U.S. government should assess damages from GHGs using effects on the entire globe or just on the United States.
This question matters because the SCC plays a key role in implementing the Biden administration\u27s ambitious plans to address climate change. The EPA and other agencies use the SCC to estimate benefits of climate and energy regulations, such as limits to power plant emissions or standards for vehicle fuel efficiency. Higher benefits estimates generally justify more costly regulations.
We believe that developing and reporting estimates of climate damages for both the United States and the entire globe would better inform the public than the global estimate alone, as the EPA has proposed. Both estimates should be used separately in calculations of benefits and costs of climate-related regulations and related policies.
We agree with the EPA that the domestic SCC should not be the only measure of the SCC. As the EPA mentioned, an exclusive domestic focus would undermine U.S. policies that encourage global cooperation and would not capture the effects of climate change on supply chain disruptions that affect U.S. welfare or on U.S. business and military infrastructure abroad. Using the domestic SCC in addition to the global SCC would increase transparency about who receives the benefits, foster policy discussions about fairness and equity, furnish agencies with the flexibility to prepare analyses consistent with their statutory mandates, and provide important distributional information to help in international negotiations.
The EPA\u27s proposal presents estimates for climate effects occurring physically within the United States for a limited set of damage categories but also claims these estimates cover only a subset of total damages, do not capture spillovers or indirect effects, and do not reflect benefits for U.S. citizens and residents. The EPA gives these shortcomings as major reasons for presenting only global damage estimates.
We disagree. In fact, a rich set of economic and environmental data is available to support relatively complete estimates of damages to the United States.
Presenting climate-control benefits to the United States is consistent with the Biden administration\u27s commitments to consider the equity effects of environmental policies. An exclusive focus on the global SCC is at odds with President Biden\u27s memorandum calling for more distributional analysis regarding dis- advantaged, vulnerable or marginalized communities in the United States. The development of a domestic SCC estimate is a prerequisite for a distributional analysis of the effects on such communities.
The EPA\u27s proposal asserts that the U.S. use of a global estimate of damages will encourage other nations to reduce future emissions. But this seems like wishful thinking. Most countries are already failing to meet their pledged non-binding commitments under the 2015 Paris Agreement. It is longstanding practice in U.S. regulatory analysis to incorporate only those changes in behavior required by current law or binding agreements, not goals or pledges. In addition, focusing strictly on global SCC presumes that U.S. policy- makers are indifferent about whether climate-control benefits occur in the United States or elsewhere in the world. Such indifference would be surprising news to members of Congress and to U.S. taxpayers and voters, who have a right to know the benefits of GHG emissions cuts to the United States and the rest of the world.
The choice to develop domestic as well as global SCC estimates affects incentives to both the EPA and the outside academy to improve such estimates. The EPA has chosen to develop a global SCC estimate, a summary measure of a dauntingly complex reality. The agency\u27s failure to provide a domestic SCC estimate might effectively chill efforts to improve the technical quality of such estimates.
The EPA should consider and report estimates of the benefits to the United States from GHG emissions reductions. Focusing solely on global benefits of such reductions without considering the corresponding benefits to the United States provides inadequate transparency to Americans who will bear the costs of emissions restrictions adopted by U.S. regulators
Education and Electronic Medical Records and Genomics Network, Challenges and Lessons Learned from a Large-Scale Clinical Trial Using Polygenic Risk Scores
Get PDFPolygenic risk scores (PRS) have potential to improve health care by identifying individuals that have elevated risk for common complex conditions. Use of PRS in clinical practice, however, requires careful assessment of the needs and capabilities of patients, providers, and health care systems. The electronic Medical Records and Genomics (eMERGE) network is conducting a collaborative study which will return PRS to 25,000 pediatric and adult participants. All participants will receive a risk report, potentially classifying them as high risk (∼2-10% per condition) for 1 or more of 10 conditions based on PRS. The study population is enriched by participants from racial and ethnic minority populations, underserved populations, and populations who experience poorer medical outcomes.
All 10 eMERGE clinical sites conducted focus groups, interviews, and/or surveys to understand educational needs among key stakeholders—participants, providers, and/or study staff. Together, these studies highlighted the need for tools that address the perceived benefit/value of PRS, types of education/support needed, accessibility, and PRS-related knowledge and understanding. Based on findings from these preliminary studies, the network harmonized training initiatives and formal/informal educational resources
Constitutional Limits on the Imposition and Revocation of Probation, Parole, and Supervised Release after Haymond
Get PDFIn its Apprendi line of cases, the Supreme Court has held that any fact found at sentencing (other than prior conviction) that aggravates the punishment range otherwise authorized by the conviction is an “element” that must be proved beyond a reasonable doubt to a jury. Whether Apprendi controls factfinding for the imposition and revocation of probation, parole, and supervised release is critically important. Seven of ten adults under correctional control in the United States are serving terms of state probation and post-confinement supervision, and roughly half of all prison admissions result from revocations of such terms. But scholars have yet to confront the effect of the Court’s Apprendi rulings on the regulation of conditional release in the states. This Article takes on that project.
The Article makes three contributions. First, it explains why and how the Apprendi doctrine applies to judicial findings at initial sentencing that either lengthen the term of conditional release an offender must serve or mandate incarceration instead of conditional release. State courts continue to divide on these questions.
Second, regarding factfinding at the revocation stage, the Article tackles the many questions left open by the Court’s only effort to consider Apprendi in the revocation context-—United States v. Haymond. The Article defends two due process analyses, derived from past precedent and Justice Breyer’s controlling concurrence in Haymond, that are better suited than the Apprendi doctrine to protect against legislative overreach in the revocation context. Scholarship discussing Haymond has barely mentioned Justice Breyer’s analysis. This Article gives his controlling concurrence the attention it deserves. Combined, these due process analyses provide a sound middle ground between the rigid application of Apprendi’s rules to conditional release and the limitless use of revocation to punish new criminal conduct.
Third, the Article applies these analyses to state statutes governing the imposition and revocation of probation and post-confinement supervision. This long-overdue state-centered focus provides needed guidance for policymakers designing conditional release policies that reserve more punitive sentences for more egregious cases
Humans in the Loop
Get PDFFrom lethal drones to cancer diagnostics, humans are increasingly working with complex and artificially intelligent algorithms to make decisions which affect human lives, raising questions about how best to regulate these “human-in-the-loop” systems. We make four contributions to the discourse.
First, contrary to the popular narrative, law is already profoundly and often problematically involved in governing human-in-the-loop systems: it regularly affects whether humans are retained in or removed from the loop. Second, we identify “the MABA-MABA trap,” which occurs when policymakers attempt to address concerns about algorithmic incapacities by inserting a human into a decisionmaking process. Regardless of whether the law governing these systems is old or new, inadvertent or intentional, it rarely accounts for the fact that human-machine systems are more than the sum of their parts: they raise their own problems and require their own distinct regulatory interventions.
But how to regulate for success? Our third contribution is to highlight the panoply of roles humans might be expected to play, to assist regulators in understanding and choosing among the options. For our fourth contribution, we draw on legal case studies and synthesize lessons from human factors engineering to suggest regulatory alternatives to the MABA-MABA approach. Namely, rather than carelessly placing a human in the loop, policymakers should regulate the human-in-the-loop system