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Guest Species: Rethinking Our Approach to Biodiversity in the Anthropocene
Get PDFWestern environmental law rests on an outdated philosophy that only fully “natural” places, species, and ecosystems should receive full protection, while human influenced places, species, and ecosystems are lesser habitats not worthy of full-throated protection. As we move into the Anthropocene—a dawning geologic age marked by the emergence of humanity as the dominant force shaping the natural world—this simplistic view loses its power to guide our decisionmaking. In a world where more than 75% of ice free land shows evidence of human alteration, if anthropogenic species, places, or ecosystems are not worth protecting, then there simply is not enough left to protect.
This Article examines management of nonnative species to illustrate the problems with using the false dichotomy between nature and humanity to determine what is environmentally good or environmentally bad. Nonnative species in North America cause more than $120 billion per year in damages. But the broad narrative of evil invasive species obfuscates something important—many nonnative species offer important cultural, economic, and environmental benefits that outweigh their negative impacts. The existing legal literature virtually ignores these species and the moral and legal questions they raise.
In light of the Anthropocene and the philosophical and regulatory readjustment it requires, we should not vilify all nonnative species, but rather evaluate them on their own merits. This Article provides case studies of several guest species, a neologism I use to describe the nonnative species that we welcome into our ecosystems. Guest species meet human needs and wants and offer environmental benefits, but our environmental laws and administrative decisions fail to honestly address the costs and benefits of welcoming these species. I conclude that we must, in limited cases, welcome guest as valuable ecosystem components worthy of protection. Guest species provide an example of the hard decisions and novel approaches involved in managing our new nature
Employment Discrimination and the Domino Effect
Get PDFEmployment discrimination is a multidimensional problem. In many instances, some combination of employer bias, the organization of work, and employees’ responses to these conditions, leads to worker inequality. Title VII does not sufficiently account for these dynamics in two significant respects. First, Title VII’s major proof structures divide employment discrimination into discrete categories, for example, disparate treatment, disparate impact, and sexual harassment. This compartmentalization does not account for the fact that protected employees often concurrently experience more than one form of discriminatory exclusion. The various types of exclusion often add up to significant inequalities, even though seemingly insignificant when considered in isolation. Second, Title VII’s major theories of liability are premised on the assumption that employee characteristics, such as motivation and work performance, are independent of discrimination. Yet common sense and a significant body of social science research suggest that discrimination has significant effects on employees’ work-related decisions and behaviors, such as the decision to apply for a job or promotion, as well as worker motivation and job performance. Applying the insights of sociology and social psychology, this Article examines the fundamental flaws of these assumptions that lie at the heart of Title VII. Race, sex, and other forms of group-based worker inequality result from a dynamic interaction among biased evaluations and decisions, structural features of the workplace, and employees’ responses to these forms of discrimination. I label these workplace dynamics the “domino effect.” Like an elaborately arranged set of falling dominoes, worker inequality often results from a series of discriminatory conditions or triggers that combine and interact in ways that, over time, may lead to large differences in employee status and pay due to their cumulative and mutually reinforcing nature. I propose and evaluate a set of legal interventions that would help courts and policymakers better address the domino-like dynamics that result in inequality for workers protected by Title VII
Rambus Redux? – Standards, Patents and Non-Disclosure in the Pharmaceutical Sector (Momenta v. Amphastar)
Get PDFMomenta Pharmaceuticals, Inc. v. Amphastar Pharmaceuticals, Inc. (D.Mass 2) involves the alleged deception of a standards-development organization (SDO) by the holder of a patent essential to a standard relating to the manufacture of the drug enoxaparin. The SDO\u27s rules regarding disclosure of standards-essential patents (SEPs) were found to be ambiguous, yet, as in Qualcomm v. Broadcom (Fed. Cir. 2008), the district court held that participant expectations created an affirmative obligation to disclose SEPs. Following the SEP holder\u27s assertion of the undisclosed patent against a competing generic manufacturer of enoxaparin, the alleged infringer successfully raised defenses of waiver and estoppel against enforcement of the patent. The alleged infringer also brought antitrust claims against the SEP holder, alleging monopolization in violation of the Sherman Act. The case is interesting because it raises issues that were seemingly settled in the information and communication technology (ICT) sector a decade ago, but in the new setting of pharmaceuticals manufacturing. As such, it may give courts an unexpected opportunity to revisit the DC Circuit’s controversial decision in Rambus v. FTC (D.C. Cir. 2008), which found no antitrust liability for an allegedly deceptive failure to disclose SEPs to an SDO
Taking it to the Limit: Shifting U.S. Antitrust Policy Toward Standards Development
Get PDFIn November 2017, U.S. Assistant Attorney General Makan Delrahim, chief of the Department of Justice (DOJ) Antitrust Division, gave a speech at University of Southern California provocatively entitled “Take it to the Limit: Respecting Innovation Incentives in the Application of Antitrust Law”. In this speech, Mr. Delrahim announced a new DOJ policy approach to the antitrust analysis of collaborative standard setting and standards-development organizations (SDOs) -- the trade associations and other groups in which industry participants cooperate to develop interoperability standards such as Wi-Fi, Bluetooth, 4G and 5G, USB and the like. He explained that the DOJ had “strayed too far” in its focus on single firm conduct concerning standards, particularly the assertion of patents essential to the implementation of standards in technology products (“standards-essential patents” or “SEPs”), and that antitrust authorities should be more concerned with potential collusion by competitors within SDOs (i.e., an apparent shift in doctrinal focus from unilateral conduct under Section 2 of the Sherman Act to concerted action under Section 1 of the Sherman Act). One commentator described the DOJ policy shift announced by Mr. Delrahim as “a 180 degree turn” on SEP issues. The new policy also seems to put the enforcement priorities of the Antitrust Division at odds with those of the other principal U.S. antitrust enforcement agency, the Federal Trade Commission (FTC). This article analyzes the contours of the emerging divide among U.S. antitrust agencies, as well as reactions to the “Take it to the Limit Speech” by industry, academics and Mr. Delrahim’s subsequent public statements
Gamble v. U.S.: Brief of Amici Curiae Law Professors in Support of Petitioner
Get PDFIn this case currently before the U.S. Supreme Court, petitioner Gamble\u27s brief demonstrates that there was no dual sovereignty doctrine before the mid-19th century. At the Founding and for several decades thereafter, a prosecution by one sovereign was understood to bar a subsequent prosecution by all other sovereigns. Dual sovereignty is thus contrary to the original meaning of the Double Jeopardy Clause. Defendants today enjoy a weaker form of double jeopardy protection than they did when the Bill of Rights was ratified.But that fact only raises three further questions. First why did the Court erroneously conclude in Bartkus v. Illinois, 359 U.S. 121, 131 (1959), that the English and early American sources are “totally inconclusive” as to whether dual sovereignty existed at the Founding? Second, how, when, and why did the dual sovereignty doctrine come to exist? Third, given this history, why did the Court hold in United States v. Lanza, 260 U.S. 377 (1922), that a state prosecution does not bar a subsequent federal prosecution for the same conduct? This amicus brief answers these three questions.First, in Bartkus the Court simply misunderstood the English and early American sources. Second, dual sovereignty grew out of the intense controversy over slavery in the period immediately before the Civil War. The Court invented dual sovereignty largely to prevent free states from blocking the recapture of fugitive slaves. Third, by the time of Lanza, the dual sovereignty doctrine had been restated so often that the original meaning of the Double Jeopardy Clause had been forgotten. In Lanza, in any event, the Court was less concerned with original meaning than with rampant disregard for Prohibition. One purpose of dual sovereignty was to prevent “wet” localities from nullifying the Volstead Act. In short, dual sovereignty is an accident of history. It was not part of the constitutional design
Tradeoffs Between Wrongful Convictions and Wrongful Acquittals: Understanding and Avoiding the Risks
Get PDFThis article focuses on trade-offs that inhere in the criminal justice system, tradeoffs neatly encapsulated in Blackstone’s famous ten-to-one ratio of guilty persons who should be allowed escape justice rather than an innocent suffer. Blackstone’s aphorism reminds us not only of the importance of ensuring that innocent persons are not convicted, but also that unbounded protections might unduly interfere with convicting the guilty. In my contribution to a symposium in honor of Professor Michael Risinger, I respond to thoughtful articles written by both Professors Laudan and Zalman and make two main points. First, in Part I, I turn to Professor Laudan’s policy proposal for reducing the number of wrongful acquittals – e.g., lowering the prosecution’s burden of proof at trial for previously-convicted felons to clear and convincing evidence. This proposal is unconstitutional under existing Supreme Court precedents, which interpret the Constitution to require the prosecutor to prove a defendant’s guilty by proof beyond a reasonable doubt. And in addition, Laudan has failed to demonstrate that his proposal is cost-beneficial because he has not persuasively articulated a way to weigh the costs of wrongful convictions against those of wrongful acquittals. But I offer a “friendly amendment” to Laudan’s idea. It should be possible to capture almost all of the benefits of his proposal by placing violent felons on extended periods of parole or supervised release – a condition of which would be that they not commit new crimes. Then, when a previously-convicted felon is arrested for a new crime, he could be tried for a parole violation rather than given a new trial. Supreme Court precedent allows parole violations to be tried under a lower burden of proof. Reconfigured in this way, there are strong reasons for thinking that the proposal might well be a cost-beneficial way of reducing wrongful acquittals. In Part II, I challenge Professor Zalman’s claim that he is truly writing from an innocentric perspective. Someone proceeding from this vantage should be willing to endorse a criminal justice reform measure if it meets three criteria: first and most important, it reduces wrongful convictions of the innocent; second, it does not reduce (and ideally would increase) the number of guilty persons convicted; and third, it should not significantly impair any other competing values. With these evaluative criteria in mind, Zalman appears to be a mere fair-weather friend of the innocent, as he does not appear to truly privilege innocence over other competing values. In contrast, my reform proposals (which Zalman is reluctant to endorse) reorient the criminal justice system away from adjudicating procedural issues and toward adjudicating substantive issues of guilt or innocence. The truly innocent will benefit in a system that values substance over procedure – and someone who truly holds an innocentric perspective should endorse reforms that move the criminal justice system in that direction
How to Sue a Robot
Get PDFWe are entering the age of robots where autonomous robots will drive our cars, milk cows, drill for oil, invest in stock, mine coal, build houses, pick strawberries, and work as surgeons. Robots, in mimicking the work of humans, will also mimic their legal liability. But how do you sue a robot? The current answer is that you cannot. Robots are property. They are not entities with a legal status that would make them amendable to sue or be sued. If a robot causes harm, you have to sue its owner. Corporations used to be like this for many procedural purposes. They were similarly tethered to human owners. Over time, courts and legislators abandoned the model of treating corporations solely as property and increasingly treated them as an independent artificial person for litigation purposes.
Robots might also make a transition along those lines. If they do, which legal model should we adopt for robots? Are they more like an employee, a franchisee, a slave, a subsidiary, a child, an animal, a subcontractor, an agent, or something else altogether? Given the inherent path-dependence of procedural law, picking the right model will have important consequences and will be difficult to reverse.
This Article lays the groundwork for this fundamental decision. It explains the urgency and importance of this decision and presents three analytical frameworks (ontological, deontological, and functional) for how we can approach the question of robots in civil litigation. Often unnoticed and unarticulated, these analytical frameworks structure important doctrinal and normative positions. The Article then applies these analytical frameworks to evaluate numerous concrete contestant models for treating robots as litigation entities. The resulting taxonomy exposes the weaknesses of analogizing robots to established models—none fits, and all would have negative practical consequences. Instead of utilizing an existing model, this Article argues that we must treat robots as a new litigation category that borrows insights selectively and partially from a range of the existing models. For example, we must craft a new in robotam personal jurisdiction doctrine to supplement the old in personam jurisdiction doctrine. Doing otherwise would expose procedure to doctrinal incoherence, legislation to policy mayhem, and parties injured by robots to unnecessary costs and insurmountable procedural hurdles
A Response to Dismantling Monuments
Get PDFThis article refutes the main arguments made in Dismantling Monuments, which recently appeared in the Florida Law Review. It shows that national monument designations have been used to protect large landscapes for more than a century, and that no legal challenge to a monument’s size has ever succeeded. It then explains why the weight of evidence suggests that Congress, in passing the Antiquities Act, intended to endow the President with the power to designate national monuments; but that Congress did not intend to vest the President with the power to dramatically reduce them. It also dispels notions that in reducing the Bears Ears and Grand Staircase-Escalante national monuments, President Trump was reducing them to the smallest area necessary to protect sensitive resources, and that history provides a precedent for these radical reductions
Eulogizing Renewable Energy Policy
Get PDFAcross the globe, renewable energy policy is changing. The change is coming so quickly that it appears the world is now on the cusp of a new future. The renewable energy policy of the past is on its way out; a new and different policy is taking its place. That new policy has different end goals, implementing mechanisms, and strategies than its predecessors. This is not just policy evolution but a policy revolution. The labels of the past soon no longer will apply because they are being merged and blurred — and replaced. Using the U.S. electricity sector as its primary lens, this paper traces the historical arc of renewable energy policy, identifies four factors driving the ongoing policy revolution, and then explores likely paths forward — and lessons learned — for renewables policy. In so doing, the paper provides an important overview of both the past and future of renewable energy policy
Applying Tort Law to Fabricated Digital Content
Get PDFAdvances in computer technologies have led to the development of new tools to edit and disseminate digital media. Some of these new tools allow users to fabricate digital media by editing video and audio recordings of individuals to make it appear as if they are saying or doing things they have not actually said or done. The rise of these new technologies will lead to litigation by individuals who are harmed by the misuse of fabricated digital media. These individuals will be able to rely on several common law torts—such as defamation, misappropriation, false light, and intentional infliction of emotional distress—to recover against the creators of fabricated media. However, the actual malice standard, applicable to public persons, will make it difficult for some plaintiffs to recover against non-creator publishers of such fabricated media. To limit the dissemination of fabricated digital media content, by publishers, courts should adopt the “responsible publisher” standard when analyzing cases by public persons against publishers