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Redefining the Boundary Between Appropriation and Regulation
Get PDFThe U.S. Supreme Court distinguishes between appropriations and regulations of property rights when interpreting the Fifth Amendment’s Takings Clause. While appropriations of any kind require just compensation to survive constitutional scrutiny, whether non-appropriative laws regulating property rights require compensation is determined on an ad hoc basis, guided by concerns of fairness and justness. In Cedar Point Nursery v. Hassid, the Court reaffirmed its prior precedent establishing the physical takings doctrine, providing that an appropriation is any government action that results in a physical invasion of an owner’s real property and a taking of the owner’s right to exclude. The Court also set forth multiple exceptions to the physical takings doctrine’s scope for certain types of government invasions of property. The exceptions, however, are ill-defined, and the Court failed to reconcile its holding with its prior inconsistent decisions applying the doctrine. Thus, the boundary between appropriation and regulation remains murky, such that any heightened constitutional protection for appropriative actions may be purely illusory. Further, governments, courts, and property owners lack clear guidance as to what laws are unconstitutional in the absence of compensation.
Takings Clause scholars almost uniformly call for the elimination of the Court s physical takings doctrine. Critics of the doctrine argue that any distinction between appropriations and regulations should be eliminated, such that all government actions short of formal acts of eminent domain should be evaluated on a case by case basis, with compensation only justified where the public interest is minimal or the economic hardship on the owner is great. This approach, however, would only further weaken the protection provided by the Takings Clause.
The physical takings doctrine is unsound, but contrary to the dominant view in the scholarship, the Court\u27s distinction between appropriations and regulations is not. The Court has long recognized that appropriations require compensation without regard to the public interest at play or fairness and justness concerns, as shown by nineteenth and early twentieth century cases overlook ed or ignored by contemporary Takings Clause scholars. Rather than defining appropriations as permanent, physical invasions, however, these cases demonstrate that an appropriation occurs when the government seeks to transfer the right to use private property to a third party or the government itself without a direct relationship to the owner s ongoing use of the property. Regulation, by contrast, involves the government controlling or restricting an owner s use of property. Redefining the boundary consistent with this historical understanding would bring much needed doctrinal clarity to takings jurisprudence and advance important normative considerations. Requiring compensation for all properly defined appropriative acts furthers multiple values including multiple values including autonomy and political freedom and accounts for the interests of owners and non owners alike
Cybersecurity Spillovers
Get PDFThis Article identifies and analyzes a previously unrecognized source of positive externalities within cybersecurity, which we term cybersecurity spillovers . Most commentators have focused on negative externalities and market failures, leading to a pervasive pessimism about the possibility of adequate cybersecurity protections. In response, this Article demonstrates that unique dynamics from the world of cloud computing – most notably, indivisibility – may force cloud service firms to generate spillovers. These spillovers are additional security protections provided to common cloud users: clients who may not have been willing or able to acquire these security services otherwise. Furthermore, this additional source of security offsets some of the most pernicious effects of negative externalities and market failure which commonly plague the cybersecurity ecosystem.
Alongside its descriptive analysis of cybersecurity spillovers, this Article alerts policymakers about potential analytical tools which can be used to identify the most beneficial spillovers. Moreover, it offers recommendations for specific interventions that will promote spillovers and improve the state of cybersecurity generally. In particular, this Article explains that policymakers could promote in divisibility and strengthen spillovers by tailoring liability rules. Such enhanced liability might incentivize premium cloud service clients to demand robust protections across the entire platform. In addition, the Article addresses the relationship between market concentration and spillovers. It provides recommendations for preserving spillovers even without concentration in the market for cloud storage. And finally, the Article suggests how the government\u27s cloud services procurement and tender processes can be utilized to amplify the beneficial effects of spillovers
The Congruent Constitution (Part One): Incorporation
Get PDFIn Barron v. Mayor of Baltimore (1833), the Supreme Court held that the Bill of Rights applied to the federal government alone. Following the adoption of the Fourteenth Amendment in 1868, the Supreme Court reconsidered the rule of Barron. The Court first reaffirmed the rule of Barron and held that neither the Privileges or Immunities Clause nor the Due Process Clause made the Bill of Rights applicable to the states. It then entered a period of “absorption,” where the Court held that the Due Process Clause guaranteed some minimal rights found in the Bill of Rights, but not necessarily the same rights. Ultimately, the Court announced a congruence principle: incorporated rights would be identical to textual rights, jot-for-jot. The congruence principle came with a limitation, however: only select provisions of the Bill of Rights would apply to the states. Nevertheless, selective incorporation is ongoing, as the Court has declared three provisions of the Bill of Rights incorporated in the last decade, and there are other provisions in the Bill of Rights and elsewhere in the Constitution that the Court may yet declared incorporated. Incorporation may be the most consequential development in the Constitution’s history. But the Court’s record on incorporation is not a flattering one. This Article reviews the troubled history of incorporation and considers the arguments for incorporating the remainder of the Bill of Rights and provisions of the Constitution beyond the Bill of Rights. The Article concludes with three points. First, the Court’s current theory based on the Due Process Clause is textually incoherent. Selective incorporation is descriptive of what the Court has done, but it is not a theory of interpretation. There are better theories available, but so far, the Court has resisted any additional changes in its approach. Second, in adopting the congruence principle, the Court has over-enforced some constitutional provisions and under-enforced others. The Court’s congruence principle skews the choice of the substantive rule because it forces the Court to find a single rule applicable to all levels of government. Indeed, the Court’s congruence principle may have deterred it from completing the incorporation of the Bill of Rights. Third, the Article concludes that the congruence principle may be convenient for the Court, but congruence cannot justify the Court’s choices. Incorporation has vastly expanded the Court’s authority to regulate the states, without the sanction of legislation or amendment under Article V. Incorporation has also constrained Congress’s power under Section 5 of the Fourteenth Amendment. Through incorporation the Court has altered both our federalism and our separation of powers.
This is the first part of a two-part study of the Court’s congruence principle. The second part will appear in the next issue of the Brigham Young University Law Review as Jay S. Bybee, The Congruent Constitution (Part Two): Reverse Incorporation, 48 BYU L. REV. 2 (2022)
COVID’s Counterpunch: State Legislative Assaults on PublicHealth Emergency Powers
Get PDFAmid the most impactful health crisis in over a century, COVID’s “counterpunch” entails aggressive efforts by numerous state legislatures to diminish state and local public health emergency powers. It is an incredulous movement facially supported by a need to appropriately balance economic interests and rights with communal health objectives. At its political core, however, is a “power grab” by legislatures to free their constituents from extensive emergency powers (e.g., social distancing, assembly limits, and business closures). Never mind the fact that these interventions, when used effectively and constitutionally, save lives and reduce morbidity. Public health agents and activists are understandably concerned about diminutions of their express and discretionary emergency powers. Yet affirmative and strategic uses of existing legal remedies examined in this brief commentary may blunt the impact of these legislative proposals
Discrimination Because of Sex[ual Orientation and Gender Identity]: The Necessity of the Equality Act in the Wake of Bostock v. Clayton County
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An Empirical Study of Copyright\u27s Substantial Similarity Test
No full textThe substantial similarity test is copyright law’s dominant means by which courts determine whether a party has infringed another party’s copyright rights. Despite this, we have very little empirical evidence about what the test is and how courts apply it. To date, only a few empirical studies exist, and these are limited in several important ways, including with regards to scope, time periods covered, and volume of opinions. Mostly, courts, commentators, and scholars rely on anecdotal accounts of the test in both their conceptualizations and critiques of it.
To help provide a clearer empirical assessment of the test, this study examines a random sample of over 1,000 substantial similarity opinions issued between 1978 and 2020. This study covers opinions from district and appellate courts in every circuit and tracks a number of these opinions’ characteristics. These characteristics include: the subject matter and copyright rights in dispute; procedural posture; opinion date; the subtests, expert evidence, and copyright limitations used in the opinion; the sources of authority that courts rely on in their opinions; and outcomes for each part of the test and the case overall.
This review reveals a number of important findings. First, similar to other types of copyright litigation, courts in the Second Circuit and Ninth Circuit dominate the substantial similarity space, with the Ninth Circuit more recently displacing the Second Circuit as the primary venue for substantial similarity cases. Courts also rely on opinions from these two circuits more than any other source in interpreting and applying the substantial similarity test. Second, courts typically spend little time assessing whether a defendant actually copied from the plaintiff’s work. Courts mostly decide this first prong of the substantial similarity test as a matter of whether defendants had access to the plaintiff’s work, and they mostly favor plaintiffs on this question. Courts rarely rely on expert evidence or assess the two works’ similarities on this first prong, despite courts and commentators frequently opining otherwise. Third, the second part of the test, where courts assess whether the defendant’s copying amounts to improper appropriation, is characterized by significant heterogeneity. No dominant means exists for resolving this question, and, in any given opinion, a court typically uses multiple subtests and copyright limitations to decide this inquiry. Courts also use expert evidence more frequently under this prong of the test than the first part, a result that defies conventional wisdom. Finally, defendants win substantial similarity cases slightly more frequently than plaintiffs. This is further evidence that prong one of the test, where plaintiffs enjoy significantly greater success, appears to be largely inconsequential. The data also suggest that one of the keys to winning, for either defendants or plaintiffs, is the extent to which the court engages with and discusses copyright limitations.
We conclude by considering several implications. First, courts should maintain the two traditional prongs of the substantial similarity test as distinct and reinvigorate their assessments of similarity under the first prong of the substantial similarity test. Second, courts should make discussing and applying any relevant copyright limitations the heart of their prong two analyses to ensure that copyright law serves its constitutional purposes