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Relative Consent and Contract Law
Get PDFWhat does it mean to consent? Consent is an essential component of contracts, yet its part in contract law is obscure. Despite its importance, there is no independent doctrine of consent; rather, it plays a key, but ill-defined role in assessing doctrines such as assent or duress. This Article addresses this significant omission in contract law by disassembling the meaning of contractual consent into three conditions: an intentional act or manifestation of consent, voluntariness and knowledge. This Article argues that consent can only be understood relative to these three conditions. Accordingly, consent is not merely a conclusion but a process and a dynamic that depends upon a variety of factors, including the relative blameworthiness of the parties, their relationship, third party effects and societal impact. This Article, through an examination of classic and modern cases, demonstrates how the concept of relative consent provides a coherent framework for understanding contract law
Pricing the Fourth Amendment
No full textCritics have long decried the Fourth Amendment’s lack of an adequate remedy to secure its compliance. Neither the exclusionary rule nor the threat of civil liability deters police misconduct, leaving scholars to cast about for alternative measures. The emphasis on penalties, however, overlooks a different problem: detection. Because of policing’s fast-paced nature, even so-called “flagrant” Fourth Amendment violations trigger insufficient liability due to low probabilities of detection.
This Article addresses this problem by drawing on the Pigouvian tax literature. The Pigouvian tax—sometimes referred to as a “corrective tax”—is a pricing instrument imposed by regulators in an amount equal to the expected harm manufacturers or individuals impose on others. Like strict liability, the tax forces an actor to internalize the costs of her activity.
How well might a Pigouvian tax scheme curtail Fourth Amendment violations—particularly intentional ones? How much better off would society be, if, in addition to the remedial systems already in place, it devised an additional system, informed by the vast literature on corrective taxes and pricing?
This Article seeks to answer these questions by imagining a scheme that charges local police departments an annual fee reflecting (a) their annual volume of search activity; (b) the risk that such activity includes and conceals purposeful misconduct; and (c) the harm arising out of such misconduct. The Article further analyzes the various challenges likely to arise in both the design and implementation of such a scheme. A pricing approach is no panacea for all that ails the Fourth Amendment, but it is a potent tool that policymakers would be foolish to ignore
Reconceptualizing the Whistleblower’s Dilemma
No full textSince its inception in August 2011, the SEC’s whistleblowing program has received over 18,000 tips and has distributed over thirty awards. The Commission’s Enforcement Division has lauded the program, emphasizing its recoveries (over 100 million total). Nevertheless, an agency focused on deterrence must pay attention to the volume of credible reports it receives from insiders, particularly because deterrence has been shown to rest so strongly on the putative wrongdoer’s perceived probability of detection. From that perspective, the program’s success is more ambiguous: twenty-six covered actions (some involving more than one whistleblower) derived from a field of more than 18,000 tips.
This Article advances an explanation for the program’s modest “hit rate” namely whistleblowing’s effect on the probability of criminal sanction. If employees who possess the most concrete information of wrongdoing are also those most exposed to criminal prosecution, whistleblowing morphs into self-incrimination. This is so because the whistleblower who voluntarily discloses her participation strips herself of her most effective legal protection, the government’s difficulty in establishing her guilty state of mind.
To demonstrate this dynamic, the Article introduces two types of employees: Complicits (those who have violated the law) and Innocents (those with no legal exposure whatsoever). Whereas Complicits possess more valuable information, they are less incentivized to seek a financial bounty. The Article then identifies the legal, psychological and organizational factors most likely to inflate the number of Complicits within the firm, thereby depressing the pool of potential whistleblowers. The Article then considers the various strategies policymakers might employ to either dampen or undo this effect
The GMO/GE Debate
Get PDFThe scientific community and the public sphere are having different debates about the application of genetic engineering to improve our food supply. Many that are deeply steeped in the science view genetically engineered food as a more precise way to accomplish what we have been doing for centuries, which is genetically modifying our food supply. Some members of the public view genetically engineered food with skepticism especially as it relates to health, safety and the environment. A disconnect between the scientific consensus and public perception is not a new phenomenon. This Article attempts to bridge this gap by explaining what genetically modified food is (including both conventional and genetic engineering methods), suggesting reasons for the widening gap between scientists and the public, and offering a preliminary discussion of benefits and consequences of using biotechnology to alter our food supply
3D Bioprinting Patentable Subject Matter Boundaries
Get PDF3D bioprinting combines emerging 3D printing technologies with synthetic biology. The promise of 3D bioprinting technology is to fabricate organs for transplantation, treat burn victims with in vivo skin repair, and create wearable microbiomes. 3D bioprinting can successively build, repair, or reproduce living human cells. This capability challenges eligible subject matter doctrine in U.S. patent law because the law has no brightline standard for patent eligibility for nature-based products. As 3D bioprinting technologies mature, U.S. patent law will need to respond to situations where living and nonliving worlds merge. This Article proposes a Mixed-Scanned-Transformed standard to supplement U.S. patent law\u27s markedly different characteristics examination of nature-based products. The markedly different standard arose from the Chakrabarty case in 1980 and is most recently informed by the Myriad case in 2013, but neither case involved merging living and nonliving worlds. By applying this newly proposed standard, 3D bioprinted materials would likely be upheld as patentable subject matter. The proposed Mixed-Scanned-Transformed standard and proposed clarity on what is not a human organism will allow U.S. patent law to become more bright-line towards 3D bioprinting inventions
Whoosh - Declining Law School Applications and Entering Credentials: Responding with Pivot Pedagogy
Get PDFThe number of law school applications and entering law students and the credentials of those students, declined all at once. This trend has continued for many years, however, given the cyclical nature of law school applications, it will likely reverse eventually and credentials will improve, but not overnight. The first part of the article briefly discusses the decline in law school applicants and applications, including the confluence of perfect storm factors that resulted in more of the crash landing we experienced than a gradual drop. It also details the corresponding drop in entering credentials which accompanied that decline. The article focuses on what we can do as law professors in response to these declines to better equip students for success in law school, the bar examination and practice. The second part describes a range of responses to the storm: panic, paralysis, or pivot. While recognizing there is no single solution and certainly no perfect solution, pivoting seemed the only viable option and certainly the most effective. Pivot pedagogy is essentially a package of ideas to respond to declining applications, applicants, and entering statistics with the goal of improving student performance across the board, especially students with lower entering credentials. This part then details my classroom experiences and experiments with pivot pedagogy over the past two years, including empirical data. It closes with a plea for continued pivot pedagogy as a tool to engage students and improve performance
Protection Against Abuse of Trademark Law in Greater China: A Brief Analysis of the People’s Republic of China, Hong Kong, Macau, and Taiwan
Get PDFUsing Prior Consistent Statements to Rehabilitate Credibility or to Prove Substantive Assertions Before and After the 2014 Amendment of Federal Rule of Evidence 801(d)(1)(B)
Get PDFThe Federal Rules of Evidence (FRE) expanded the non-hearsay category of admissible prior consistent statements with FRE 801(d)(1)(B)(ii) to include any statements counsel uses to rehabilitate a declarant’s credibility after that credibility has been attacked. FREV 801(d)(1)(B)(i) and (ii) require that a declarant testify and be subjected to cross-examination about the prior consistent statement. Under these rules, the time at which the declarant made the consistent statement and her reason for making it are critical.
When the declarant does not testify, however, under FRE 806 opposing counsel may still attack the declarant’s credibility. Under these circumstances, it is often challenging to determine the evidence that counsel may use to impeach, and later to rehabilitate, the credibility of the non-testifying declarant. Moreover, lawyers and judges frequently conflate the two uses of prior consistent statements-- non-hearsay substantive evidence with impeachment-credibility evidence. Through the examination and analysis of two recent federal cases, U.S. v. Cotton and U.S. v. Ledbetter, this article attempts to shed some light on the complexities and proper application of these two rules of evidence
