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The Genie is Out of the De-Extinction Bottle: A Problem in Risk Regulation and Regulatory Gaps
Get PDFOnce the province of horror films and fantasy, the idea of recreating extinct life forms is poised to move from science fiction to laboratories and from there to the world at large. While “de-extinction is not something that will take place tomorrow . . . scientists are making major advancements, and eventual success appears inevitable.” Spurred on by the burgeoning field of genetic engineering, it was only a matter of time before scientists turned their attention to recreating extinct life forms, either for the thrill of it or in atonement for the human role in the extinction process.
But science appears to be outpacing the ability of government agencies to respond to the legal, moral, and practical questions that these endeavors raise. Existing laws, like the Endangered Species Act (“ESA”), are inadequate to respond to the environmental and public welfare risks these ventures pose. At the same time, the overlapping and conflicting policies governing genetic engineering, upon which de-extinction depends, have created a dysfunctional regulatory commons in which no single agency is responsible for creating, implementing, and enforcing applicable rules. Changes to this situation, even if politically possible, will be too slow to respond to the intentional or unintentional release of resurrected species into the environment. Thus, the existing regulatory gap will enable de-extinction activities to continue unrestrained, and there is little hope of government action closing this gap any time soon.
This article proposes that participants in the field of de-extinction undertake traditional governmental functions, including setting, implementing, and enforcing performance standards, until external regulations are developed. However, self-regulation or private governance may not arise on its own. Therefore, this article suggests that pressure from the application of social norms, like those pertaining to the environment and human health, and a motivated, educated public might encourage participants in the field of de-extinction to self-regulate. While using social norms to encourage behavioral change is not new, the linkage between norms and private governance to fill a regulatory gap that encompasses an entire field—de-extinction—is novel
Brief of Amici Curiae Law and Economics Scholars in Support of Appellee and Affirmance
Get PDFIn reliance on Qualcomm’s FRAND promises, key SSOs incorporated its technologies into wireless standards. Qualcomm takes the position that its patented technologies are essential to those standards and, therefore, that any firm making or selling a standard-compliant product infringes its patents. As a result, the SSOs’ incorporation of Qualcomm’s patented technologies into wireless standards created a huge market for licenses to Qualcomm’s SEPs.The district court held that Qualcomm used its chipset monopolies, not only to extract the high chip-set prices to which it was entitled, but also to perpetuate those monopolies by disadvantaging rival chip-makers and raising entry barriers. As a matter of law and economics, that holding is sound. At its core, this is yet another in a long line of cases dating back to the Supreme Court’s decision in Standard Oil of New Jersey v. United States and United States v. American Telephone & Telegraph Co. in which a monopolist violates the antitrust laws by using its market power to exclude rivals and entrench its monopoly.We address Qualcomm’s exclusionary conduct in two Parts. Part I explains why Qualcomm’s no license, no chips policy is unlawful under well-established antitrust principles. Part II discusses Qualcomm’s refusal to license chip-set rivals, which reinforces the no license, no chips policy and violates the antitrust laws
Personality Disruption as Mental Torture: The CIA, Interrogational Abuse, and the U.S. Torture Act
Get PDFThis Article is a contribution to the torture debate. It argues that the abusive interrogation tactics used by the United States in what was then called the “global war on terrorism” are, unequivocally, torture under U.S. law. To some readers, this might sound like déjà vu all over again. Hasn’t this issue been picked over for nearly fifteen years? It has, but we think the legal analysis we offer has been mostly overlooked. We argue that the basic character of the CIA’s interrogation of so-called “high-value detainees” has been misunderstood: both lawyers and commentators have placed far too much emphasis on the dozen or so “enhanced interrogation techniques” (EITs) short-listed in government “torture memos,” and far too little emphasis on other forms of physical violence, psychological stressors, environmental manipulations, and abusive conditions of confinement that are crucial to the question of whether the detainees were tortured. Furthermore, we dispute one of the standard narratives about the origins of the program: that it was the brainchild of civilian contractor psychologists because— in the CIA’s words—“[n]on-standard interrogation methodologies were not an area of expertise of CIA officers or of the US Government generally.”
This narrative ignores the CIA’s role in devising these methods, in spite of the decades of prior CIA research and doctrine about forcing interrogation subjects into a state of extreme psychological debilitation, and about how to do so—by making them physically weak, intensely fearful and anxious, and helplessly dependent. By neglecting this history and focusing on the contractors and the EITs they devised, this narrative contributes to the misunderstanding that the torture debate is about EITs and nothing else. In effect, a “torture debate” about EITs and the torture memos neglects the purloined letter in front of our eyes: the abusive conditions the CIA inflicted on prisoners even when they were not subject to EITs, including abuses that the torture memos never bothered to discuss. Unpacking what this debate is really about turns out to be crucial to understanding that such interrogation methods are torture under existing U.S. law. The U.S. Torture Act includes a clause in its definition of mental torture that was intended to ban exactly the kind of interrogation methods the CIA had researched, out of concern that our Cold War adversaries were using them: mind-altering procedures “calculated to disrupt profoundly the senses or the personality.” That is precisely the “non-standard interrogation methodology” the CIA employed after 9/11
WHO Takes Action to Promote the Health of Refugees and Migrants
Get PDFMigration is a defining issue of our time, with 1 billion migrants globally, of whom 258 million have crossed borders. Climate change and political instability propel ever-greater displacement, with major detriments to health. Policies that fail to prevent human trafficking or guarantee essential services undermine Universal Health Coverage (UHC) and the global pledge to “leave no one behind.” The World Health Assembly should robustly implement WHO’s Global Action Plan (GAP) on the Health of Refugees and Migrants.ugees and Migrants
The Federal Government Has an Implied Moral Constitutional Duty to Protect Individuals from Harm Due to Climate Change: Throwing Spaghetti Against the Wall to See What Sticks
Get PDFThe continuing failure of the federal government to respond to the growing threat of climate change, despite affirmative duties to do so, creates a governance vacuum that the Constitution might help fill, if such a responsibility could be found within the document. This Article explores textual and non-textual constitutional support for that responsibility, finding that no single provision of the Constitution is a perfect fit for that responsibility. However, the document as a whole might support constitutionalizing an environmental protection norm as an individual right or affirmative government obligation given the norm\u27s importance to the enjoyment of other constitutional rights and growing public support for mitigating or avoiding the adverse effects of climate change
Revisiting Controlled Digital Lending Post-ReDigi
Get PDFNow that the Second Circuit has ruled on the ReDigi appeal, some libraries and users may be curious to see how the decision factors into controlled digital lending (CDL) efforts. To understand the interest and the implications, we first need to establish the basic contours of copyright, fair use, CDL, and ReDigi
Five Principles for Vertical Merger Enforcement Policy
Get PDFThere seems to be consensus that the Department of Justice’s 1984 Vertical Merger Guidelines do not reflect either modern theoretical and empirical economic analysis or current agency enforcement policy. Yet widely divergent views of preferred enforcement policies have been expressed among agency enforcers and commentators. Based on our review of the relevant economic literature and our experience analyzing vertical mergers, we recommend that the enforcement agencies adopt five principles: (i) The agencies should consider and investigate the full range of potential anticompetitive harms when evaluating vertical mergers; (ii) The agencies should decline to presume that vertical mergers benefit competition on balance in the oligopoly markets that typically prompt agency review, nor set a higher evidentiary standard based on such a presumption; (iii) The agencies should evaluate claimed efficiencies resulting from vertical mergers as carefully and critically as they evaluate claimed efficiencies resulting from horizontal mergers, and require the merging parties to show that the efficiencies are verifiable, merger-specific and sufficient to reverse the potential anticompetitive effects; (iv) The agencies should decline to adopt a safe harbor for vertical mergers, even if rebuttable, except perhaps when both firms compete in unconcentrated markets; (v) The agencies should consider adopting rebuttable anticompetitive presumptions that a vertical merger harms competition when certain factual predicates are satisfied. We do not intend these presumptions to describe all the ways by which vertical mergers can harm competition, so the agencies should continue to investigate vertical mergers that raise concerns about input and customer foreclosure, loss of a disruptive or maverick firm, evasion of rate regulation or other threats to competition, even if the specific factual predicates of the presumptions are not satisfied
Discounting Women: Doubting Domestic Violence Survivors’ Credibility and Dismissing Their Experiences
Get PDFIn recent months, we’ve seen an unprecedented wave of testimonials about the serious harms women all too frequently endure. The #MeToo moment, the #WhyIStayed campaign, and the Larry Nassar sentencing hearings have raised public awareness not only about workplace harassment, domestic violence, and sexual abuse, but also about how routinely women survivors face a Gaslight-style gauntlet of doubt, disbelief, and outright dismissal of their stories. This pattern is particularly disturbing in the justice system, where women face a legal twilight zone: laws meant to protect them and deter further abuse often fail to achieve their purpose, because women telling stories of abuse by their male partners are simply not believed. To fully grasp the nature of this new moment in gendered power relations—and to cement the significant gains won by these public campaigns—we need to take a full, considered look at when, how, and why the justice system and other key social institutions discount women’s credibility.
We use the lens of intimate partner violence to examine the ways in which women’s credibility is discounted in a range of legal and social service system settings. First, judges and others improperly discount as implausible women’s stories of abuse, based on a failure to understand both the symptoms arising from neurological and psychological trauma, and the practical constraints on survivors’ lives. Second, gatekeepers unjustly discount women’s personal trustworthiness, based on both inaccurate interpretations of survivors’ courtroom demeanor and negative cultural stereotypes about women and their motivations for seeking assistance. Moreover, even when a woman manages to overcome all the initial modes of institutional skepticism that minimize her account of abuse, she often finds that the systems designed to furnish her with help and protection dismiss the importance of her experiences. Instead, all too often, the arbiters of justice and social welfare adopt and enforce legal and social policies and practices with little regard for how they perpetuate patterns of abuse.
Two distinct harms arise from this pervasive pattern of credibility discounting and experiential dismissal. First, the discrediting of survivors constitutes its own psychic injury—an institutional betrayal that echoes the psychological abuse women suffer at the hands of individual perpetrators. Second, the pronounced, nearly instinctive penchant for devaluing women’s testimony is so deeply embedded within survivors’ experience that it becomes a potent, independent obstacle to their efforts to obtain safety and justice.
The reflexive discounting of women’s stories of domestic violence finds analogs among the kindred diminutions and dismissals that harm so many other women who resist the abusive exercise of male power, from survivors of workplace harassment to victims of sexual assault on and off campus. For these women, too, credibility discounts both deepen the harm they experience and create yet another impediment to healing and justice. Concrete, systematic reforms are needed to eradicate these unjust, gender-based credibility discounts and experiential dismissals, and to enable women subjected to male abuses of power at long last to trust the responsiveness of the justice system
Agency Statutory Abnegation in the Deregulatory Playbook
Get PDFIf an agency newly declares that it lacks statutory power previously claimed, how should such a move—what this article calls agency statutory abnegation—be reviewed? Given the array of strategies an agency might use to make a policy change or move the law in a deregulatory direction, why might statutory abnegation be chosen? After all, it is always a perilous and likely doctrinally disadvantageous strategy for agencies. Nonetheless, agencies from time to time have utilized statutory abnegation claims as part of their justification for deregulatory shifts. Actions by agencies during 2017 and 2018, under the administration of President Donald J. Trump, reveal an especially prevalent use of such statutory abnegation strategies. This article explains the agency statutory abnegation strategy, illustrating its variants with review of past and recent uses. It then distinguishes statutory abnegation claims from other agency actions and explanations that might appear to manifest or permit such a strategy, but actually involve doctrinally different and less problematic settings. Then, after distilling the key elements of doctrines governing agency policy change, or what is sometimes referred to as consistency doctrine, it reviews procedural and analytical hurdles agencies must surmount to succeed in a policy change. It closes by exploring how analysis of this strategic move reveals the inadequacy of, or perhaps the naïve publicly interested optimism behind, prevalent theories and linked normative claims about agency incentives, judicial roles, and political accountability. The article closes by analyzing the persistent judicial rejection of such strategies and the underlying normative vision they reflect about the balance of law and politics in the administrative state