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The Public History of Trade Secrets
No full textRising inequality and increasing concentration of corporate power have brought renewed attention to questions of political economy, and to how law helps to construct private power and encase it from democratic rearrangement. This Article brings a political economy perspective to the law of commercial secrets, to show that changes in the scope and justification for trade secret law, operating in a context of rising importance of data and information, have set this law on a collision course with our democracy. An area of law that was once understood as focused on fair competition and commercial morality has been retheorized as a kind of "intellectual property," following prevailing neoliberal arguments about the economics of information. Earlier limits on the scope of the law have been dissolved, so that companies today can claim that almost any confidential corporate information is a trade secret. The law has also been constitutionalized, so that a legislature disclosing corporate information -- from the ingredients in cigarettes to the price of a drug -- now face powerful challenges from corporations on the basis of the Takings Clause. Some of the most basic functions of the modern regulatory state, including many mandated disclosures about commercial products to the public, would not have been possible if this view had reigned in earlier decades. Unsurprisingly, it did not. Several Supreme Court cases that have largely been forgotten show that courts even at the height of laissez faire were clear about the categorical priority of the public, and rejected trade secret claims when they conflicted with the public's right to know. These cases, and earlier logics of trade secrecy that see it as an expression of values of fair competition and commercial morality, together form what I call the "public history of trade secrets." Recalling this history can help us to defend a more democratic relation between the political and the economic in our age of informational capitalism. These cases also point to a clear legal principle that would, if recovered, reshape what legislatures and regulators are able to reveal to the public: The disclosure of corporate secrets can be made a condition of participation in markets whenever the information helps illuminate the nature of a product or service. Recognizing this would enable vastly more public insight into companies and their products -- for example, enabling states to mandate disclosure of the algorithms that shape our social media feeds, and the secret data companies hold about the risks and benefits of consumer products
Affirmative action still hasn't been shown to reduce the number of black lawyers: A response to Sander.
No full textSander (2019) attempts to revive the claim that “mismatch” between the credentials of students that receive racial preferences in law school admissions and the average observable academic credentials of their peers leads to fewer black lawyers. This article examines Sander’s study and explains the reasons why second-choice analyses, and Bar Passage Study data in particular, are poor sources for causal inferences about academic mismatch. Sander’s paper makes indefensibly strong assumptions about the inferences that can be drawn between evidence on distinct types of mismatch, overclaims results that lack robustness across different subsamples of the underlying data, and misinterprets other results that in fact cut against the article’s claim. Ultimately, as originally reported in Ayres & Brooks (2005), the data do not provide evidence that affirmative action reduces the number of black lawyers
A Glimpse of Early Modern Governance in Claire Priest's Credit Nation
No full textThe article discusses the book "Credit Nation" by Claire Priest , which focuses on colonial entrepreneurship by mentioning the role of slavery in colonial commercial innovation, the balance between risk-taking and security for colonial entrepreneurs
The Costs of Banks Engaging in Non-Banking Activities: A Case Study
No full textVol. 39:375 2022The century-long separation of banking and commerce enshrined in U.S. law has weakened in recent decades. The academic literature has thus far focused mainly on conceptual benefits and costs of the trend, arguing that the integration of banking and commerce might lead to efficiency gains through diversification in a greater number of distinct business lines, but that it also
might impair the safety and soundness of the banking system, weaken market integrity, and lead to an excessive concentration of economic power.
Our Article contributes to the debate by empirically examining an important episode in the U.S. commodities market following the 2008-2009 financial crisis, when financial institutions sought to take advantage of depressed commodity prices by amassing unprecedented metals inventories. From 2010 through 2014, as financial institutions held over half of the total U.S. aluminum stock in Detroit warehouses, the time it took to remove metal from warehouses increased from days to years and the regional price of aluminum skyrocketed—a surreal phenomenon because aluminum is one of the most actively traded commodities in the world and is used in the production of industrial goods from beverage cans to cars and airplanes
Public Compensation for Public Enforcement
No full textVol. 39:61 2022Public enforcement actions frequently result in the distribution of money to people affected by violations of market protection laws. This “public compensation” returns billions of dollars to consumers, investors, and others each year. The law of public compensation appears confusing at first impression because of inconsistent use of nomenclature and conceptual confusion. However, courts have developed a discernible set of principles that allow for presumptions and loosened proof standards in awarding this relief. This buried, but clear, doctrine held for decades despite repeated challenges by business defendants.
Supreme Court decisions in Liu v. SEC1 in June 2020 and FTC v. AMG Capital Management, LLC2 in April 2021 have unsettled the law.
This Article offers two contributions to the development of the law of public compensation. First, we analyze decades of judicial decisions across federal and state public enforcement agencies and identify consensus legal principles for awarding two different forms of public compensation: disgorgement and public restitution. We extend the less-developed doctrine of public restitution by suggesting a proportionality test to provide guidance for more difficult cases. Second, we propose legislation to create uniform statutory authority for public enforcers that would reverse restrictions that have been or may be imposed on
public compensation by recent and pending Supreme Court decisions. Both the doctrine and the proposed legislation are grounded in the unique position and authority of public enforcers, including discretion to select between civil penalties and public compensation as monetary remedies, as well as the deterrence rationale of public enforcement. An appendix includes model legislation Congress could adopt to clarify and restore public compensation authority across enforcement agencies
Foreword: On the Imperative of Adapting to Climate Change
No full textVol. 39 Issue 2For climate change and the administrative state, imagine two situations:
(1) Congress has enacted a Climate Change Act (CCA), which gives
specific directions, and specific authorities, to an assortment of
agencies: the Environmental Protection Agency, the Department of
Transportation, the Department of Interior, the Department of
Homeland Security, the Department of Energy, and others. In the years
following enactment of the CCA, the relevant agencies must act in
accordance with Congress’s directions. To be sure, they must make
some important discretionary judgments, calling for both scientific and
economic assessments. But those judgments are sharply cabined by
congressional instructions about how to handle the problem of climate
change.
(2) Over a period of decades, Congress has given an assortment of
directions and authorities to an assortment of agencies: the
Environmental Protection Agency, the Department of Transportation,
the Department of Interior, the Department of Homeland Security, the
Department of Energy, and others. In general, those directions and
authorities were not given with specific reference to climate change.
Some of the relevant authorities involve air pollution. Others involve
fuel economy. Still others involve energy efficiency. Others involve
preparedness for, and response to, national disasters. Agencies act in
accordance with the directions and authorities that they have been
given. If the President of the United States is focused on climate
change, agencies will respond accordingly, authorized and limited as
they are by law. If the President of the United States is not focused on
climate change, agencies will also respond accordingly, again
authorized and limited as they are by law
U.S. Foreign Relations Law from the Outside In
No full textVolume 47, Issue 1Arguments in the field of U.S. foreign relations law typically proceed from the inside out: Legal actors focus on internal (domestic) sources of authority to reach conclusions with significant external (international) implications. The text and structure of the Constitution, case law, assessments of institutional competency, original meaning, and historical practice thus dominate debates about treaty- making, war powers, diplomatic authorities, and related matters. This tendency reflects generic assumptions about the legitimate modalities of legal analysis and helps to ensure that the law reflects national values.
Yet inside-out arguments overlook a critical fact: the practical merits of U.S. foreign relations law often depend on whether and how this law is understood abroad. In other words, the nature and extent of foreign governmental knowledge of U.S. foreign relations law significantly affect the law’s ability to advance U.S. national interests, but there is neither theoretical nor empirical scholarship on the stakes or condition of such knowledge. Nor are there official U.S. policies to ascertain or account for this form of foreign knowledge. In these circumstances, American legal actors cannot fully apprehend whether the law is well designed and applied to achieve its purposes.
This Article elaborates on these issues to develop an “outside in” approach to U.S. foreign relations law. The Article begins by explaining the value of meta- knowledge—domestic knowledge of foreign knowledge—of U.S. foreign relations law. The Article then uses original empirical research to generate meta- knowledge. That research includes an immersive case study on Japan, where I collected academic publications, searched newspaper archives, obtained government records under Japan’s freedom-of-information act, and interviewed dozens of scholars and government officials to triangulate Japanese understandings of U.S. foreign relations law. The Article concludes by laying out an agenda to cultivate additional meta-knowledge, reevaluate the law’s practical merits in light of epistemic conditions, and optimize foreign sophistication through legal and policy reforms
The University in the Mirror of Justices
No full textWinter 2022 | Volume 33, Issue 1In its 1915 Declaration of Principles on Academic Freedom and Tenure, the American Association of University Professors (AAUP) set forth a limited analogy between the professoriate and the judiciary. The purpose of this article is to explore this analogy’s genesis, basis, implications, and limits. Its claim is that the judicial analogy deserves renewed attention and consideration in the contemporary debate over the future of academic freedom
Bordering Legal Parenthood
No full textVolume 33, Issue 3Why should borders matter to the legal field of parenthood? The sustained reification of the institution of Family requires borders—spatial, legal, and symbolic—that demand the exclusion of those who fail to adhere to its norms. Yet, as the present article exposes, this institution’s borders can also become a terrain in which new forms of agency and beneficial processes emerge, inviting a reconsideration of the traditional paradigms that sustain that institution. This article examines this dual understanding of the role of borders and assesses the transformative costs and trade-offs of crossing them. To pursue this inquiry, it focuses on the longstanding struggle of gay Israeli men to become parents via surrogacy, and contextualizes the trajectory of this struggle across different geopolitical scales, through the lens of “border-as-process”. This “bordering” lens reveals how borders—in their opening, closing, and transgressing—create new relations and offer new possibilities for legal and institutional change
Climate Change Attribution Science and the Endangered Species Act
No full textVol. 39 Issue 2Climate change poses an enormous risk to plant and animal species across the planet. Mean global temperatures have already increased by approximately 1ºC, causing environmental changes that affect species abundance, distribution, behavior, physiology, genetics, and survival prospects. These changes, combined with other human stressors, have already resulted in the extinction of some species and imperiled many others.
In the United States, the Endangered Species Act (ESA) is the primary legal vehicle for the protection and management of species at risk of extinction. The statute and accompanying regulations outline a science-based framework for identifying endangered and threatened species, establishing critical habitat boundaries, and mitigating the harmful impacts of public and private-sector activities on listed species. Although climate change is not explicitly mentioned in the statute, there is no question that agencies must consider climate-related threats when implementing the ESA.
This Article examines the uniquely important role of climate change detection and attribution research in federal decision-making and judicial review under the ESA. This research provides insights on how climate change is already affecting species and habitats and is therefore integral to decisions about: (i) whether to list a species as threatened or endangered on the basis of climate-related threats, and (ii) how to support species recovery through critical habitat designations and other management actions. Courts have held that attribution research qualifies as the “best available science” that must be considered in ESA decision-making and that agencies cannot ignore attribution research on the basis of uncertainty or imprecision where the data suggests that there is a probable threat to a species. They have also consistently upheld the federal government’s use of attribution data to support ESA protections for climate-imperiled species