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This Permit Reform Already Works. Why Aren\u27t More Mine Permit Applicants Using It?
Get PDFIn January 2021, mining was added as a sector eligible for coverage under the FAST-41 permitting improvement program. The FAST-41 program was originally created in 2015, when Congress passed the Fixing America’s Surface Transportation (FAST) Act. Buried within the expanse of the FAST Act was the FAST-41 program, a pilot project designed to expedite federal permitting for complex infrastructure projects without compromising environmental standards or restricting public participation. FAST-41 seeks to achieve faster permitting timeframes through improved inter-agency coordination, shared data management, strategic permit sequencing that facilitates concurrent review, enhanced communication with the project sponsor, implementation of permitting best practices, and greater accountability. Its procedures also provide greater transparency, so that the permitting timeline is predictable for the project proponent. Although mining projects have been eligible for this program for almost two years, there are currently no mining projects on the Permitting Dashboard. This article explores whether the FAST-41 provisions are likely to expedite mine permitting. Section I explains the structural provisions of the FAST-41 program. Section II describes performance data from FAST-41 projects completed during the past five years and concludes that the Act’s procedures promote efficiency, transparency, and predictability. Section III explores common causes of delay in the permitting process, with a focus on issues that affect mine permit processing. Section IV focuses on agency capacity challenges at the BLM. Section V concludes that the FAST-41 process is well-situated to address common causes of delay in the mine permitting process without compromising public engagement, analytical rigor, or environmental protections
The Technologization of Insurance: An Empirical Analysis of Big Data and Artificial Intelligence’s Impact on Cybersecurity and Privacy
Get PDFThis Article engages one of the biggest issues debated among privacy and technology scholars by offering an empirical examination of how big data and emerging technologies influence society. Although scholars explore the ways that code, technology, and information regulate society, existing research primarily focuses on the theoretical and normative challenges of big data and emerging technologies. To our knowledge, there has been very little empirical analysis of precisely how big data and technology influence society. This is not due to a lack of interest but rather a lack of disclosure by data providers and corporations that collect and use these technologies. Specifically, we focus on one of the biggest problems for businesses and individuals in society: cybersecurity risks and data breach events. Due to the lack of stringent legal regulations and preparation by organizations, insurance companies are stepping in and offering not only cyber insurance but also risk management services aimed at trying to improve organizations’ cybersecurity profile and reduce their risk. Drawing from sixty interviews of the cyber insurance field, a quantitative analysis of a “big data” set we obtained from a data provider, and observations at cyber insurance conferences, we explore the effects of what we refer to as the “technologization of insurance,” the process whereby technology influences and shapes the delivery of insurance. Our study makes two primary findings. First, we show how big data, artificial intelligence, and emerging technologies are transforming the way insurers underwrite, price insurance, and engage in risk management. Second, we show how the impact of these technological interventions is largely symbolic. Insurtech innovations are ineffective at enhancing organizations’ cybersecurity, promoting the role of insurers as regulators, and helping insurers manage uncertainty. We conclude by offering recommendations on how society can help technology to assure algorithmic justice and greater security of consumer information as opposed to greater efficiency and profit
Corporations Without Representation: The Constitutionality of Gender Diversity Mandates
Get PDFBiases and structural barriers contribute to the glacial pace at which women are represented on corporate boards. Even though companies with at least one female board of director outperform companies with no female directors, women only held 20% of board of director positions in 2019. Companies nationwide would not reach gender equality in the boardroom for decades without legally enforceable gender diversity requirements. In response, California Senator Jackson proposed SB 826—requiring California-based publicly held corporations to include at least one woman on their board of directors. However, conservative legal organizations filed lawsuits claiming California’s gender diversity mandate violates the California Constitution because the mandate perpetuates sex-based discrimination and is subject to strict scrutiny review. This Note proceeds by examining California’s gender diversity mandate and discussing the constitutionality of SB 826.
This Note finds that SB 826 is constitutional under the Equal Protection Clause and beneficial to qualified female board candidates and the United States economy. SB 826 meets the intermediate scrutiny requirements because the gender diversity mandate is substantially related to a sufficiently important government interest and is narrowly tailored. However, this Note also argues that, paradoxically, if states ratify the Equal Rights Amendment (“ERA”), SB 826 would likely be unconstitutional because the ERA’s ratification will presumably change the standard of review for gender classifications from intermediate scrutiny to strict scrutiny. Under strict scrutiny, the Supreme Court would likely prohibit sex-conscious legislation designed to advance women’s equality. This Note ultimately urges courts to uphold California’s gender diversity mandate as a matter of public policy and law under the current intermediate standard. SB 826 does not question whether women are capable of getting into the boardroom; rather, it ensures that women have an opportunity to earn a spot at the table
Human as Animals - Pluralizing Humans
Get PDFSpecies-based inequality is embedded in our institutions of law, government, and property. Legal distinctions between people and animals drive biodiversity loss. Recent environmental movements—including the rights of nature, animal rights, and wildlife property ownership—seek to lessen the gap in law’s unequal treatment of humans and other living things. Despite growing popular support for such reforms, legal scholars have yet to directly grapple with the mindset underlying the legal status quo.
This Article identifies and challenges institutionalized speciesism in law. It critically examines the legal treatment of non-human animals. It also presents an alternative legal worldview—one informed by scientific, cultural, and religious inputs. Current legal discussions operate in terms of “humans and animals”; such conceptions should shift towards a conception of “humans as animals.” Laws do not merely govern human relationships with one another; they also govern human relationships with the broader natural world—which is itself alive and filled with other sentient beings.
Human-created legal institutions are artificially limited in scope to human concerns. Such narrowness conflicts with biological reality, in which we exist within a broader natural context. This creates a fundamental mismatch between our too-narrow institutions and the real world, a world in which humankind lives in constant relationship with all other living things. Anthropocentric institutions artificially stripped of biological context unwittingly drive widespread devastation by systemically failing to account for non-human interests. Until humans broaden our institutions to reflect biological reality, we are doomed to continue decimating the world at ever-increasing rates. Only radically reforming institutions blind to other species will end this cycle, and thus, paradoxically, prevent humankind from indirectly, unintentionally destroying ourselves by destroying the environment upon which we depend.
Law must begin to forthrightly engage questions of equality and distribution between humans and other living things. Our fate is inexorably intertwined with the fate of other living things. To save ourselves requires “saving” the natural world. We must apply the talents of our species—law among them—in a manner better aligned with reality. Shifting to an understanding of humans as animals is not a merely linguistic or philosophical move—it is the linchpin of an emerging conception of law harmonized with the natural world
Transforming Crime Victims’ Rights: From Myth to Reality
Get PDFRights for crime victims have been decried as myths; entitlements that have little enforceability. At the same time, they have been criticised as undermining the legal rights of the accused person. In this Guest Editors Introduction to the Special Issue, Making Rights Real, we suggest that victims’ rights are in transition. Rights may be set out in legal instrument but, we argue, it is through the practices of people in their myriad settings that are part of that shift to realising rights in action. We describe ways in which we see victims’ rights being realised in different parts of the world and develop a human rights framework for the rights of crime victims to further shape the transition
Social Norms in Fourth Amendment Law
Get PDFCourts often look to existing social norms to resolve difficult questions in Fourth Amendment law. In theory, these norms can provide an objective basis for courts’ constitutional decisions, grounding Fourth Amendment law in familiar societal attitudes and beliefs. In reality, however, social norms can shift rapidly, are constantly being contested, and frequently reflect outmoded and discriminatory concepts. This Article draws on contemporary sociological literatures on norms and technology to reveal how courts’ reliance on norms leads to several identifiable errors in Fourth Amendment jurisprudence.Courts assessing social norms generally adopt what we call the closure principle, or the idea that social norms can be permanently settled. Meanwhile, courts confronting new technologies often adopt the nonintervention principle, or the idea that courts should refrain from addressing the Fourth Amendment implications of new surveillance practices until the relevant social norms become clear. Both of these approaches are flawed, and they have substantial negative effects for equality and privacy. By adopting norms perceived as closed, courts may embed antiquated norms in Fourth Amendment law—norms that often involve discrimination on the basis of race, gender, or class. By declining to intervene when norms are undeveloped, courts cede power over norm creation to companies that design new technologies based on data-extractive business models. Further, judicial norm-reliance and nonintervention facilitate surveillance creep, where familiar data-gathering infrastructures are used for new types of surveillance and monitoring. This Article provides, for the first time, a full, critical account of the role of social norms in Fourth Amendment law. It details and challenges courts’ reliance on social norms in virtually every aspect of Fourth Amendment jurisprudence. And it explores potential new directions for Fourth Amendment law, including novel doctrinal paradigms, different conceptions of stare decisis in the Fourth Amendment context, and alternative institutional regimes for regulating government surveillance
The Open COVID Pledge: Design, Implementation and Preliminary Assessment of an Intellectual Property Commons
Get PDFEarly during the COVID-19 pandemic, a number of widely-publicized incidents gave rise to concerns that holders of patents and other intellectual property (IP) rights could hinder the development, manufacture and distribution of essential medical devices, protective equipment and biomedical products. The global response to these concerns was swift and included the issuance of compulsory licensing orders by several national governments, as well as the proposal of a technology pool by the World Health Organization (WHO). Alongside these efforts, a group of scientific, engineering and legal experts created a lightweight, open framework under which IP holders could voluntarily pledge not to assert their rights against those responding to the COVID-19 pandemic. This effort – known as the Open COVID Pledge (OCP) – attracted significant participation from some of the world’s largest IP holders, with nearly 500,000 patents and patent applications, as well as significant copyrighted material, pledged to date. The OCP has also been adopted as part of the framework of the WHO’s COVID Technology Access Pool (C-TAP), a multinational initiative to make particular biomedical innovations more accessible around the world. This article describes the development of the OCP, including the design choices that shaped its legal structure and implementation. It also assesses the adoption of the OCP across market sectors including biopharmaceuticals, diagnostics, medical devices, protective equipment and digital innovations. It finds that while pledges in the biopharmaceutical sector have been infrequent, many other critical technologies in the fight against COVID-19 have been made broadly available to users through this and related pledging mechanisms, creating a favorable environment for open innovation, new market entry and equitable access to technology. As such, the OCP may both help to address the current pandemic and serve as a useful model for IP sharing platforms to address to future public health emergencies
Blockchain Initiatives for Tax Administration
Get PDFA thriving body of literature discusses various legal issues related to blockchain, but often it mixes the discussion about blockchain with cryptocurrency. However, blockchain is not the same as cryptocurrency. Defined as a decentralized, immutable, peer-to-leer ledger technology, blockchain is a newly emerging data management system. The private sector—including the financial industry and supply chains—and the public sector—property records, public health, voting, and compliance, have all begun to utilize blockchain. Since more data is processed remotely, and thus digitally, the evolution of blockchain is gaining stronger momentum. While scholarship on blockchain is growing, none of the scholarship has considered the impact of blockchain on the tax sector. This Article extends the study of blockchain to tax administration, evaluates the feasibility of incorporating blockchain within existing tax administrations, and provides policymakers with criteria to consider and some recommended designs for blockchain. Blockchain can enhance the efficiency and transparency of tax administration through its ability to deliver reliable, real-time information from many sources to a large audience. Further, a well-designed private consortium blockchain, evolved from the classic public blockchain, may effectively protect taxpayers\u27 information. Potential areas that blockchain could enhance are payroll taxes, withholding taxes, value added taxes, transfer pricing, the sharing of information between federal, state, and local governments as well as countries. This Article offers normative considerations for policymakers deliberating blockchain initiatives for tax administration, such as timeline, standardization, its integration with other systems, its limitations, and the accompanying legislation to regulate the government and the taxpayer’s rights and privacy. Those implications may resonate with a broader audience beyond tax policymakers
The Regulatory Shifting Baseline Syndrome: Public Law as Cultural Memory
Get PDFIn 2013, the U.S. Supreme Court declared unconstitutional the Voting Rights Act’s preclearance requirements for six states’ voting laws, and many of those states almost immediately enacted new voting restrictions, that disparately affected citizens of color. In the 1980s and 1990s, Congress deregulated financial markets, including dismantling protections that had been in place since the New Deal, allowing firms to introduce new forms of derivatives — and systemic risk — into the economy, leading to 2008’s housing crisis. In the early 21st century, state legislatures increasingly enacted exemptions from state vaccination requirements that allowed parents to skip their children’s vaccinations, setting the stage for resurgences of measles in 2015 and 2019. Since at least 2001, courts, federal agencies, citizens, and NGOs have focused on the Clean Water Act’s alleged intrusions into state sovereignty and private property rights in the context of “dredge and fill” permits, undermining the Act’s continuing ability to improve the overall quality of the nation’s waterbodies.
All of these seemingly unrelated legal phenomena derive, at least in part, from the regulatory shifting baseline syndrome.
In 1995, Dr. Daniel Pauly described the “shifting baseline syndrome” and its problems for fisheries management. Pauly posited that each generation of fishers and fisheries managers forgets what the ocean and its fisheries used to be, instead taking the current state — demonstrably impoverished from a historical perspective — as normal. The forgetting of history, in other words, makes opaque what the goals of fisheries regulation should be, or even could be.
This Article brings the shifting baseline concept into public law, identifying for the first time a regulatory shifting baseline syndrome that can undermine the law’s ability to protect society at large. This syndrome arises when a long-existing public legal regime so successfully eliminates a societal problem that citizens, politicians, and lawmakers forget that the regime is in fact still working to keep that problem at bay. The syndrome is especially problematic in areas of public law where curbing human behavioral tendencies remains an important component of protecting public goods, benefits, or amenities, regardless of how secure the relevant public commons now appears. Acknowledging the syndrome thus challenges would-be law reformers to ask whether we should recover the historical lessons about ourselves and our collective abilities to harm society at large before dismantling the legal protections prior generations felt compelled to enact
The Open COVID Pledge: Design, Implementation and Preliminary Assessment of an Intellectual Property Commons
Get PDFEarly during the COVID-19 pandemic, a number of widely-publicized incidents gave rise to concerns that holders of patents and other intellectual property (IP) rights could hinder the development, manufacture and distribution of essential medical devices, protective equipment and biomedical products. The global response to these concerns was swift and included the issuance of compulsory licensing orders by several national governments, as well as the proposal of a technology pool by the World Health Organization (WHO). Alongside these efforts, a group of scientific, engineering and legal experts created a lightweight, open framework under which IP holders could voluntarily pledge not to assert their rights against those responding to the COVID-19 pandemic. This effort – known as the Open COVID Pledge (OCP) – attracted significant participation from some of the world’s largest IP holders, with nearly 500,000 patents and patent applications, as well as significant copyrighted material, pledged to date. The OCP has also been adopted as part of the framework of the WHO’s COVID Technology Access Pool (C-TAP), a multinational initiative to make particular biomedical innovations more accessible around the world. This article describes the development of the OCP, including the design choices that shaped its legal structure and implementation. It also assesses the adoption of the OCP across market sectors including biopharmaceuticals, diagnostics, medical devices, protective equipment and digital innovations. It finds that while pledges in the biopharmaceutical sector have been infrequent, many other critical technologies in the fight against COVID-19 have been made broadly available to users through this and related pledging mechanisms, creating a favorable environment for open innovation, new market entry and equitable access to technology. As such, the OCP may both help to address the current pandemic and serve as a useful model for IP sharing platforms to address to future public health emergencies