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Standing and Probabilistic Injury
No full textStanding to sue often turns on questions of probability. For example, public law plaintiffs must show that they are likely to be affected by allegedly unlawful government surveillance or environmental policies, and consumers may wish to sue private defendants over false credit reporting or data breaches that may or may not cause them financial or reputational harm in the future. This Article offers a framework for resolving a wide range of these “probabilistic standing” issues. Our core claim is that courts and commentators ask too much of standing doctrine in probabilistic cases. First, scholars sometimes seek a unified theory of probabilistic standing to cover categories of cases that ask distinct questions, such as cases involving who is subject to a challenged action, on the one hand, and those involving whether a person subject to such an action is sufficiently likely to be harmed, on the other. Second, courts should not ask how probable elements of a plaintiff’s case must be in order to support standing, but rather who should decide whether a given probability is sufficient. Judges and parties struggle in litigation to assess the actual probability of occurrences, and Article III of the Constitution provides no standard for how probable an injury must be to support a lawsuit. Third, any doctrinal probability threshold for standing would encounter a related problem, which is that the probability of an injury depends significantly on how that injury is framed. Which harms “count” for standing is thus a vital question in assessing the probability of injury, but Article III is an unlikely place to look for answers. Within certain constraints, courts should look instead to the underlying substantive law to define the relevant injuries for standing purposes. Finally, we contend that many of the concerns associated with probabilistic claims are better addressed through the law of remedies and prudential elements of the timing doctrines (mootness and ripeness) than through the constitutional law of standing
DCI Submission to the Brazil Ministry of Economy on the Economic and Competitive Aspects of Digital Platforms
No full textIn its comments on the ‘Economic and Competitive Aspects of Digital Platforms’ for the Brazil Ministry of Economy, the Dynamic Competition Initiative (DCI) suggests that law and policy initiatives towards digital platforms should (1) focus on curbing monopoly rents in bottleneck markets, and not undermine diversification efforts towards technological frontiers; (2) leverage the capability and flexibility of existing competition rules to address digital platforms anticompetitive conduct; and (3) properly credit the consumer welfare gains stemming from digital platforms ecosystems given the domestic economic context
Institutional Flexibility in Tax Law and Enforcement
No full textThis paper examines how governments can optimally audit to discourage tax avoidance. We assume that an accounting firm designs and promotes strategies for tax avoidance. This firm adapts the quality and diversity of these strategies in response to shifts in government policies. We investigate when it is more effective to approve some methods while cracking down on others, rather than targeting all tax-avoidance activities uniformly. We find that selectively enforcing against specific methods can be optimal. This approach not only reduces the quality but also limits the variety of tax avoidance activities in the market and positively impacts the government’s tax revenue collection. Our analysis provides practical insights, linking the costs of auditing with the interaction between enforcement, the quality of tax avoidance methods, and tax revenue outcomes
The Voice of Criminal Law
No full textIn whose voice does the criminal law speak, and why does it matter? Miriam Gur-Arye argues that the answer to the first question depends on the kind of duty violated by the crime at issue. In some cases (say, election fraud or tax evasion), the criminal law speaks in the voice of the polity—but in other cases (say, murder or rape), it speaks in the voice of human beings. Or so argues Gur-Ayre. Not surprisingly, perhaps, a lot depends on what one means by the voice of the criminal law. In this paper, I defend two related arguments. First, the criminal law typically claims to speak in the voice of the polity, even if, in practice, it often fails to do so. Second, where the criminal law does speak in the voice of the polity, its doing so can contribute to its own justification
[quote] New England Patriots\u27 Promotion of Jerod Mayo Important for Black Coaches
No full text“The Patriots hiring Jerod Mayo is a huge deal,” said Duru, a professor of sports law at American University in Washington and one of the nation’s foremost experts on the NFL’s hiring practices. “This is an iconic franchise replacing the greatest coach in NFL history. Historically, those jobs have rarely gone to Black candidates.
Artificial Intelligence, Copyright Registration, and the Rule of Doubt
No full textArtificial intelligence (“AI”) technology has detonated an explosive burst of seemingly creative expression. Stories, images, music, and even entire books are now being generated very quickly. This development is a major headache for copyright registrars because the copyrightability of works created in this way is uncertain. The almost limitless variability in the extent of human involvement in the creation of a work using an AI tool compounds the uncertainty. In some cases, copyrightability is easy to determine, such as where an author only claims rights in the selection and arrangement of AI-generated output rather than the output itself. But in many cases the registrability of a work created with the aid of an AI technology is far from certain. In these situations, the Copyright Office should apply a rule of doubt to allow registration. This solution appears to be a novel idea, at least as a permanent solution to the problems AI has generated. Nevertheless, approaching the problem in this way would protect authors’ rights to any original contributions they make to AI-assisted works, authors’ interests in the privacy of their creative processes, the interests of authors whose works may have been used without their consent to train AI, and the ability of alleged infringers to challenge the existence and scope of claimed copyrights in AI-generated and AI-assisted works. It would also ease the burden on copyright examiners
Bethran Mbagwu v. PPA Taxi Limousine Division
No full textUSDC for the Eastern District of Pennsylvani
