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Reconciling Risk and Equality
Get PDFStates have increasingly resorted to statistically-derived risk algorithms to determine when diversion from prison should occur, whether sentences should be enhanced, and the level of security and treatment a prisoner requires. The federal government has jumped on the bandwagon in a big way with the First Step Act, which mandated that a risk assessment instrument be developed to determine which prisoners can be released early on parole. Policymakers are turning to these algorithms because they are thought to be more accurate and less biased than judges and correctional officials, making them useful tools for reducing prison populations through identification of low risk individuals.
These assumptions about the benefits of risk assessment tools are all contested. But critics also argue that, even if these instruments improve overall accuracy, they are constitutionally suspect. While no instrument explicitly uses race as a “risk factor” (which in any event is probably barred by the Supreme Court’s decision in Buck v. Davis), several do incorporate sex (with maleness increasing the risk score) and many rely on factors that are highly correlated with race or socio-economic status, which is said to violate equal protection principles.
In Sex, Causation and Algorithms, Deborah Hellman, a philosopher and constitutional law scholar, provides some provocative food for thought on this issue. The article focuses on the Supreme Court’s Fourteenth Amendment caselaw on sex as a classification. But the approach to equal protection that Hellman develops could also provide a response to many of the other discrimination and disparate impact challenges aimed at risk assessment instruments
Federalism and the Military Power of the United States
Get PDFThis Article examines the original meaning of the constitutional provisions governing the raising and organization of military forces. It argues that the Framers carefully divided the military between the federal and state governments. This division provided structural checks against the misuse of military power and made it more difficult to use offensive military force. These structural checks have been compromised by the creation of the U.S. Army Reserve, the dual enlistment of National Guard officers and soldiers, and the acceptance of conscription into the national army, all of which have enhanced federal military power beyond its original constitutional limits.
This Article then explains the relevance of deviations from original constitutional design for contemporary legal disputes. Most significantly, although the expansion of federal military power has largely come at state expense, this expansion has also disturbed the allocation of war powers between Congress and the president. In addition, understanding the original division of military power is relevant to determining modern limits on Congress’s power to raise and regulate the armed forces, including its power to impose military criminal jurisdiction on reserve soldiers
Zombie Energy Laws
Get PDFThis Article traces the development of three legal rules—cost recovery for vertically integrated utilities, the requirement that regulators assess the financial viability of energy projects before issuing a certificate of public convenience and necessity, and the filed rate doctrine—that emerged out of the view that electric power companies should be shielded from market forces. It argues that important elements of these legal rules have become “zombie energy laws.” Zombie energy laws are statutes, regulations, and judicial precedents that continue to apply after their underlying economic and legal bases dissipate. Zombie energy laws were originally designed to protect consumers by, among other things, preventing utilities from exploiting their market power. Today, however, they protect incumbent fossil fuel generators and have provided the legal basis for invalidating billions of dollars of wind and solar projects. Thus, energy laws that emerged to mitigate market power abuses under the old system of utility rate regulation now entrench incumbent market power and are impeding the transition to a cleaner energy system. In this way, zombie energy laws are protecting incumbent energy companies from traditional tort, contract, and antitrust laws that prevent firms operating in ordinary industries from acting anticompetitively.
This Article concludes by arguing that the Federal Power Act, which instructs the Federal Energy Regulatory Commission to maintain “just and reasonable” wholesale rates, can plausibly be read to mitigate—and, in some cases, eliminate—the market distortions caused by zombie energy laws. The Act’s meaning should be construed to fit the market structure to which it is being applied
Reputation and Authority: The FDA and the Fight over U.S. Prescription Drug Importation
Get PDFThere is popular and bipartisan support for legalizing the importation of lower-cost medicines from Canada to help reduce the high prescription drug costs that Americans pay. Despite the wide interest in this policy, attempts over the last sixteen years to create a formal system for large-scale prescription drug importation in the United States have failed. The Trump Administration recently issued a final rule to enable the legal importation of prescription drugs from Canada, but the rule has important design flaws and seems destined to suffer a similar fate as previous efforts.
In this Article, we argue that prescription drug importation is a form of international regulatory engagement that can work, but not in the manner that recent congressional legislation or the Trump Administration has proposed. Importation of prescription drugs, even foreign versions of already-approved drugs, requires the importing nation to accept the marketing approval standards, processes, and product-specific decisions of the exporting nation as equivalent to domestic regulation. The FDA, however, has made far fewer determinations of foreign regulatory equivalence than its counterpart regulators. As a result, the statutory requirements for the FDA maintaining direct oversight over prescription drug imports from Canada are onerous and unlikely ever to be fulfilled.
Examining U.S. prescription drug importation as a form of reliance on the equivalence of foreign regulation is, as far as we can determine, a novel inquiry, and it offers useful insights. Foreign equivalence determinations have been successfully used in pharmaceutical regulation in two contexts: (1) trade initiatives and (2) circumstances in which regulatory agencies were unable to fulfill their core institutional mandates without relying on the decisionmaking of their foreign counterparts. The FDA has not fit neatly into either of these contexts. In contrast to many of its foreign counterparts, the FDA has consolidated authority over pharmaceutical regulation, which it sustains through its reputation among its constituents—appropriators, consumers, pharmaceutical product sponsors, and the relevant medical and scientific communities—for overseeing the safety, efficacy, and quality of medicines. The FDA has resisted risking any harm to that gatekeeper reputation that might follow from its pursuit of other policy objectives, such as lowering drug prices or facilitating trade. Furthermore, FDA officials describe themselves as “the gold standard” for drug review—more thorough and rigorous about regulation than their counterparts—and, until recently, as able to fulfill their core institutional mandates without the cooperation of foreign counterparts.
Based on this analysis of the political economy of pharmaceutical regulation and international regulatory cooperation at the FDA, we propose that U.S. prescription drug importation could be successfully used to reduce generic drug shortages, a persistent public health problem that the FDA has struggled to solve independently. We argue that the same analysis can help identify other circumstances when the FDA might usefully engage foreign counterparts, such as foreign manufacturer inspections for the rapidly increasing volume of U.S. drug imports, the growing complexity of global pharmaceutical supply chains, and the technological advances in personalized medicines
Total Scholarly Impact: Law Professors Citations
Get PDFIn this article, we demonstrate that the citation counts and other author information available through the Web of Science database has made non-law citations possible to assemble and assess in a manner similar to the Sisk et al. methodology and the Hein legal citation study by Paul J. Heald and Ted Sichelman. A true apples-to-apples comparison, however, is not possible at this time given differences in the respective databases and search engines, as we explain in more detail in Part II.
Nevertheless, our study does serve as a demonstration project, showing that, with additional refinement of databases and search capacities, it is possible to capture the degree to which legal scholars are publishing in non-law journals and the extent to which that work is cited in law and non-law journals. We contend that this breadth of work and citations in non-law journals are a representation of interdisciplinary work by law faculty and its influence within and outside of legal scholarship. This is by no means a trivial body of work: In our five-year study period (2012–2018), over 600 tenured law faculty from the twenty-five schools in our study published almost 3,000 articles in the Web of Science database (with the “Law” category excluded) and received close to 20,000 citations to those articles during that period. Clearly, a good number of law faculty work at the core of interdisciplinary engagement—they publish in non-law journals, and those publications are recognized in law and non-law journals
International Investment Law and Noneconomic Issues
Get PDFArbitral tribunals have misconstrued the purpose of international investment agreements (IIAs) by failing to factor in the development aspect of these agreements into their analysis. IIAs were constituted to protect foreign investment in order to promote economic development. However, arbitral tribunals have tended to focus mainly on the investor protection elements of IIAs, leading to impingements on human rights and the environment and leaving IIAs as a threat to sustainable development.
Drawing from all publicly available investment awards, a review of these awards found fifty-six awards in which human rights and environmental issues were implicated in investment disputes. The review further finds that in many instances arbitral tribunals downplay or dismiss noneconomic issues, leaving compromises to both human rights and environmental issues and constraints on state ability to regulate these areas. Based on the findings of this review, the Article makes suggestions for how states can best reform IIAs to help them better align with the development aspects of these agreements
Unintended Consequences for Reversing Rapprochement: Is the US Government Liable for a Loss of US Property in Cuba?
Get PDFIn 2014, the United States announced a historic reopening of ties with Cuba. This effort at rapprochement included restoring diplomatic relations and easing regulatory restrictions to facilitate greater business, trade, travel, and communication between the two nations. However, the US government\u27s decision in 2017 to reverse course and reinstate the economic embargo against Cuba could result in significant legal and financial consequences for both US claimants who hold property in Cuba and the US government. One issue that arises is whether US corporations and individuals, who invested in property in Cuba following the Obama-era easing of restrictions, have a constitutional right to just compensation for their loss. Under the Fifth Amendment of the U.S. Constitution, if the government has expropriated one\u27s property, a claimant can allege a regulatory taking and may seek fair compensation from the government. In addition to direct takings of US property overseas, the Fifth Amendment may have applications to takings by foreign governments, and therefore there is the potential of a court holding the United States liable for a foreign taking of US property in Cuba. Finally, if a court concludes that a US claimant has not demonstrated evidence of a foreign taking, there remain several alternatives for US claimants seeking compensation for their property that has been seized, frozen, or made inaccessible following the US regulatory shift preventing trade and travel with Cuba
The Poison Pill in the USMCA: The Erosion of WTO Principles and its Implications under a US-China Trade War
Get PDFThe United States, Canada, and Mexico have ratified a multilateral trade agreement (the USMCA ) that contains a highly unusual provision. This provision (referred to as the \u27Poison Pill ) is intended to deter the signatories from entering into a free trade agreement (FTA) with any non-market country. The Poison Pill was introduced by the United States in the wake of the US-China trade war and was most likely directed at deterring Canada from entering into an FTA with China.
This Article argues that the Poison Pill is functionally an expulsion clause (as opposed to a withdrawal clause) which violates the USMCA parties\u27 preexisting obligations under the WTO Agreement regarding FTAs. This is because the Poison Pill raises barriers to trade and is unnecessary for the formation of an FTA. Paradoxically the Poison Pill also depends on the WTO Agreement\u27s Most Favored Nation (MFN) provision to more effectively limit a nation\u27s ability to enter into FTAs with a non-market country.
It is troubling that the United States used the coercive and unjustified imposition of tariffs, under the guise of national security, as negotiating leverage in USMCA negotiations. The United States has also indicated that it may include Poison Pills in future FTAs. This Article proposes two strategies for minimizing the impact of the Poison Pill on nations who may be coerced into accepting it: entering into overlapping multilateral FTAs and forging economic relationships outside of the FTA-box. If the United States cannot credibly commit to WTO rules then non-US nations will have to turn to other superpowers (e.g., China and the EU) and large trading blocs to counterbalance an overreaching United States. These strategies align with a broader imperative: dealing with a United States that will not commit itself to a rules-based trading order with even its long-standing allies
Algorithmic Speech and Freedom of Expression
Get PDFAlgorithms have become increasingly common, and with this development, so have algorithms that approximate human speech. This has introduced new issues with which courts and legislators will have to grapple. Courts in the United States have found that search engine results are a form of speech that is protected by the Constitution, and cases in Europe concerning liability for autocomplete suggestions have led to varied results. Beyond these instances, insight into how courts handle algorithmic speech are few and far between.
By focusing on three categories of algorithmic speech, defined as curated production, interactive/responsive production, and semi-autonomous production, this Article analyzes these various forms of algorithmic speech within the international framework for freedom of expression. After a brief introduction of that framework and a look towards approaches to algorithmic speech in the United States, the Article then examines whether the creators or controllers of different forms of algorithms should be considered content providers or mere intermediaries, the determination of which ultimately has implications for liability, which is also explored. The Article then looks at possible interferences with algorithmic speech, and how such interferences may be examined under the three-part test--particular attention is paid to the balancing of rights and interests at play--in order to answer the question of the extent to which algorithmic speech is worthy of protection under international standards of freedom of expression. Finally, other relevant issues surrounding algorithmic speech are discussed that will have an impact going forward, many of which involve questions of policy and societal values that accompany granting algorithmic speech protection
Mozambican Illegal Debts: Testing the Odious Debt Doctrine
Get PDFIn June 2019, the Constitutional Council of Mozambique delivered a judgment declaring a financial transaction arranged by the government in violation of the parliamentary prerogatives in budgetary matters unconstitutional. This was only the tip of an iceberg consisting of a series of transactions tainted with corruption. In the face of this illegality, many antidebt campaigners have invoked the application of the odious debt doctrine to block the enforcement of contractual claims and the availability of restitutionary remedies. Under the odious debt doctrine, a debt is odious if, in the awareness of the creditors, it is contracted without the consent of and not for the benefit of the population. The operation of the odious debt doctrine presupposes an inquiry into its legal status. Lacking a proper normative characterization, the doctrine is to be understood more as a matter of policy than as a matter of law. As a result, its ideal systematic placement would be under the umbrella of transnational public policy. Transnational public policy establishes universal principles to serve the common interests of mankind. The key point, then, is to ascertain whether and to what extent the values enshrined into the odious debt doctrine may belong to the realm of the transnational public policy. In this context, the controversy on the validity of the Mozambican debt can become the touchstone for testing the legal status and operation of the odious debt doctrine