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Distributing Attorney Fees in Multidistrict Litigation
Get PDFAs consolidated multidistrict litigation has come to dominate the federal civil docket, the problem of how to divide attorney fees among participating firms has become the source of frequent and protracted litigation. For example, in the National Football League (NFL) Concussion Litigation, the judge awarded the plaintiff attorneys over $100 million in fees, but the division of those fees among the twenty-six firms involved sparked two additional years of litigation. We explore solutions to this fee division problem, drawing insights from the economics, game theory, and industrial organization literatures. Ultimately, we propose a novel division method based on peer reports. Participating firms assess the relative contribution of other firms to the litigation, and then optimization or Bayesian techniques arrive at a consensus or compromise fee allocation. Our methods are intuitively easy to understand, enable broad participation, and are resistant to collusion or other strategic behavior, making them likely to be accepted by the firms involved. We thus provide courts with an important mediation tool or decision rule for these fee division disputes
The Role of Private Environmental Governance in Climate Adaption
Get PDFThis Article examines the role of private environmental governance (PEG) in climate change adaptation. PEG occurs when private organizations perform traditionally governmental functions such as providing public goods and reducing negative externalities. PEG initiatives that target climate change mitigation have expanded rapidly in the last decade and have been the subject of research in multiple fields, but PEG initiatives that target climate change adaptation have received less attention. As a first step, the Article develops a definition of private governance regarding climate adaptation, identifies several types of PEG adaptation initiatives, and briefly identifies research gaps
Antitrust\u27s High-Tech Exceptionalism
Get PDFAmerican competition policy has four big problems: Amazon, Apple, Facebook, and Google. These companies each reign over a sector of the digital marketplace, controlling both the consumer experience and the possibility of competitive entry. This Essay argues that the conventional account of how antitrust law allowed this consolidation of market power - that it failed to evolve to address the market realities of the technology sector-is incomplete. Not only did courts fail to adapt antitrust law from its smoke-stack roots, but they gave big tech special dispensation under traditional antitrust doctrine. Swayed by prevailing utopic views about digital markets in the early 2000s -that they were uniquely dynamic, innovative, and competitive -these courts carved out special exceptions to antitrust rules about tying and the duty to deal with competitors. The tech companies have used this blank check to entrench their market power and keep start-ups from becoming what they themselves once were: the next big thing
“Computer Says No!”: The Impact of Automation on the Discretionary Power of Public Officers
Get PDFThe goal of this Article is to unpack the “human in the loop” requirement in the process of automation. It will analyze the impact of automation on street-level bureaucrats and lay out the steps policy makers need to take into account to ensure that meaningful human discretion is maintained. This issue is examined by comparing two algorithms related to the use of automation to detect and investigate fraud in welfare benefits. The first algorithm is used by Michigan’s Unemployment Insurance Agency for detecting and investigating unemployment fraud. This is a draconian algorithm with the ability to automatically decide to cut an individual’s benefits and collect debts. The second algorithm is used in the Netherlands by the Ministry of Social Affairs and Employment to detect different types of welfare fraud. It aids human fraud examiners and it automates only the process of data collection and analysis.
This Article concludes that both algorithms could do more to maintain meaningful discretion. In Michigan, automation has left little room for street-level bureaucrats to apply discretion. Thus, this Article suggests that the algorithm be limited to a few segments of the unemployment fraud detection and investigation process. In contrast, the Netherlands’ algorithm allows street-level bureaucrats greater discretion. This discretion is also more meaningful because the human in the loop has a well-defined decision-making role. However, since the algorithm is the de facto authority on who will be investigated, more steps should be taken to ensure that key decisions are overseen by humans. It is important to note that the lack of human agency was only one reason for the failures of the algorithms. Poor technical design and the sociopolitical context that the algorithms operated in were also responsible. The failures stemming from all three reasons are further explored in this Article. Although these cases demonstrate the importance of keeping a human in the loop in an automated process, questions such as what the role of the human should be and how to design the human-algorithm interaction have not received sufficient attention in academic literature. This Article sheds light on these issues
When Art Might Constitute a Taking: A Takings Clause Inquiry Under the Visual Artists Rights Act
Get PDFAt first glance, a federal statute protecting the moral rights of artists and their artwork seems like a unanimous victory. But it turns out that government action protecting certain works of art attached to buildings may give rise to a valid takings clause claim under the Fifth Amendment. Without compensation, a regulation requiring a landowner to maintain someone else’s property on his land would constitute a taking. The Visual Artists Rights Act of 1990 (VARA) requires landowners to maintain protected artwork attached to buildings or potentially face statutory damages. Although only one court has heard and subsequently denied a takings argument in the VARA context, in the highly contextual nature of the statute, there are still compelling arguments to be made that VARA-protected art may constitute a taking. This Note provides background on both VARA and the takings clause and provides various arguments that a VARA landowner-defendant could utilize to avoid liability
Completing the Quantum of Evidence
Get PDFIn Evidentiary Irony and the Incomplete Rule of Completeness, Professors Daniel Capra and Liesa Richter comprehensively catalog the many shortcomings in current Federal Rule of Evidence 106 and craft a compelling reform proposal. Their proposal admirably solves the identified problems, keeps the rule reasonably succinct, and furthers the accuracy and fairness goals of the rules of evidence. In this Response, we focus on Capra & Richter\u27s proposal to formally recognize a trumping power in Rule 106, which would allow an adverse party to offer a completing statement even if it would be otherwise inadmissible under the rule against hearsay
Energy Federalism\u27s Aim
Get PDFThe Federal Power Act (FPA) has endured for eighty-five years, in part because it does not embrace a single regulatory approach for the energy industry. Nor does the FPA favor a single approach to federal- ism: it delegates broad authority to the Federal Energy Regulatory Commission (FERC) to regulate the wholesale sale and transmission of energy in interstate commerce, while leaving states considerable leeway to regulate not only retail rates but also power generation and distribution. The statute expanded federal authority over wholesale electric power sales, with the primary purpose of closing regulatory gaps in interstate energy markets.
For the FPA\u27s first fifty or so years, the division of authority between the federal government and the states was clearly understood. During this time, courts routinely invoked a bright line rule to keep federal and state regulators in their own lanes as they pursued the common goal of setting rates to protect consumers based on the cost of service. Then, in the 1990s, FERC shifted its policies away from setting rates based on cost to promoting competition in interstate energy markets. FERC\u27s most recent market policies aim to level the playing field in energy re- source bidding, an approach that has little appetite for state programs that favor specific energy resources regardless of price. The bright line seems to have faded
Deterring Algorithmic Manipulation
Get PDFDoes the existing anti-manipulation framework effectively deter algorithmic manipulation? With the dual increase of algorithmic trading and the occurrence of “mini-flash crashes” in the market linked to manipulation, this question has become more pressing in recent years. In the past thirty years, the financial markets have undergone a sea change as technological advancements and innovations have fundamentally altered the structure and operation of the markets. Key to this change is the introduction and dominance of trading algorithms. Whereas initial algorithmic trading relied on preset electronic instructions to execute trading strategies, new technology is introducing artificially intelligent (“AI”) trading algorithms that learn dynamically from data and respond intuitively to market changes. These technological developments have exposed significant shortcomings in the effectiveness of anti-manipulation laws, particularly regarding one of their fundamental goals: deterring market manipulation.
Preventing manipulation remains a key feature of the legal regime governing the financial markets. Rampant manipulation undermines the viability of the market and, in the case of algorithmic manipulation, increases systemic risks within the market. Deterring algorithmic manipulation is thus essential to the viability and stability of the market. But credible and effective deterrence of wrongdoing requires certainty of punishment, which is increasingly unattainable with respect to algorithmic manipulation under the existing legal regime. Specifically, the law of manipulation tethers liability to scienter, which algorithms cannot legally form. Further, deciphering the intent of the human behind the algorithm can be a near-impossible task in all but the most egregious cases. The scienter-focused nature of the anti-manipulation framework therefore diminishes the disciplinary power of the law, weakening deterrence and incentivizing algorithmic manipulation.
This Article demonstrates that the scienter-centric analysis undergirding anti-manipulation laws creates gaps in the detection and punishment of algorithmic manipulation that weaken the current legal regime’s deterrent effect. The acute failure of the law to punish algorithmic manipulation incentivizes potential wrongdoers to utilize algorithms to cloak their misdeeds, exposing the markets to significant systemic harm. Notably, unlike other scholars and policymakers that view transparency as the ultimate solution to increase accountability for algorithms, this Article highlights the potential limitations of relying primarily on transparency. Rather, the Article urges changes to the legal framework to modernize its applicability: eschew the scienter requirement and, instead, focus on the resulting harm of the algorithm on the market. Together, these proposals are likely to credibly deter algorithmic manipulation, safeguarding the viability, efficiency, and stability of the markets
The Library of Babel for Prior Art: Using Artificial Intelligence to Mass Produce Prior Art in Patent Law
Get PDFArtificial intelligence is playing an increasingly important role in the invention and innovation processes of our society. To date, though, much of the academic discussion on the interaction of artificial intelligence and the patent system focuses on the patentability of inventions produced by artificial intelligence. Little attention has been paid to organizations that are seeking to use artificial intelligence to defeat the patentability of otherwise patent-worthy inventions by mass producing prior art. This Note seeks to highlight the consequences of allowing mass-produced, AI-generated prior art to render valuable inventions unpatentable. Specifically, this Note concludes that AI-generated prior art decreases the incentive for researchers to disclose valuable knowledge through the patent system without providing an adequate substitute source of such knowledge. This Note also examines a number of patent law doctrines that should, but likely will not, prevent deficient AI-generated prior art from rendering valuable inventions unpatentable. To resolve these issues, this Note proposes a solution that modifies the current novelty inquiry and breathes new life into the patent law doctrine of conception. This solution advances the patent system’s purpose of promoting technological advancement while still allowing artificial intelligence to play a large role in that technological advancement
The Loudest Voice at the Supreme Court: The Solicitor General’s Dominance of Amicus Oral Argument
Get PDFThe Solicitor General (“SG”) is often called the “Tenth Justice,” a title that captures his unique relationship with the Supreme Court and his independence from the executive branch. No phenomenon better reflects this relationship than the Court’s practice of permitting amici to participate in oral argument. Although amicus oral argument is nominally available to all litigants, the modern Court grants this privilege almost exclusively to the SG. Scholars and Court watchers have long argued that this practice is justified because the SG uses it to pursue the rule of law and an objective sense of “justice.”
This Article challenges that account. The SG’s dominance of amicus oral argument is a relatively recent phenomenon. In the early 1900s, the SG requested amicus oral argument almost exclusively to defend federal statutes or federal agency action. During this time, the Court granted all his amicus oral argument requests. But, over time, SGs increasingly entered political cases with only tenuous connections to the federal government. During the late 1980s, the Court became skeptical of the SG’s political independence; in response, it denied seventeen percent of his amicus oral argument motions, and individual Justices criticized him in internal memoranda. Thirty years later, the Court permits the SG to argue as an amicus in almost any case he wants, even though he increasingly weighs in on politically charged cases with de minimis implications for the federal government.
This new equilibrium has profound consequences. By permitting the SG to be heard any time he asks, the Court systematically biases the perspectives that it hears. This bias undermines due process principles and the adversarial system, and it ignores the Court’s own history and rules. We offer a proposal for reform