In mid-December, as one of the outgoing Bush Administration’s last minute regulations, the Department of Justice radically expanded the category of persons from whom federal officials are now required to collect DNA. The rule requires federal officials to collect and retain DNA not only from persons convicted of a federal offense, but also from those merely arrested on suspicion of being involved in a federal offense. Among its other flaws, this rule exacerbates the tension between the shared nature of genetic information and the standards justifying DNA collection and retention. By linking DNA collection to probable cause, the new regulation threatens to destabilize our understandings about what constitutes probable cause and to put millions of never-arrested individuals under perpetual genetic suspicion.
Professor Matthew Stephenson’s recent article highlights a crucial but overlooked function of the judiciary in crafting doctrines that discourage constitutionally problematic statutes. Rather than drawing explicit boundaries of permissible and impermissible statutory schemes, courts can and do produce constitutional doctrine that leaves these boundaries blurry, thus raising the risk of reversal for time- and resource-strapped legislators.
I seek to apply Stephenson’s theory to interpret the nature and scope of the Roberts Court’s jurisprudence—in particular, the likely impact of judicial minimalism—on statutory enactments and lower court decisions. Critics have charged that the Roberts Court’s emphasis on narrow holdings limited to specific factual circumstances undermines the Court’s guidance function for lower courts and legislators alike. Such objections are misplaced. Minimalism, or the preference for narrow decisionmaking in the exercise of judicial review, offers underappreciated benefits in deterring constitutional violations in legislative enactments. The indirect result of such jurisprudence is to raise the risk that subsequent, constitutionally problematic legislative enactments might be overturned. Legislators only can consider a finite number of bills during each session. They might be more wary to pass or even to consider constitutionally questionable legislation when factoring in the risk of judicial invalidation. Thus, the second-order benefit of judicial minimalism becomes apparent. Without making sweeping pronouncements of the constitutionality of various legislative acts, the Court can nevertheless reduce the frequency of constitutional violations while avoiding the countermajoritarian difficulty raised by judicial review.
Mirjan walked into my life in the Fall of 1972. I was 29, he was 41, but both of us were at the beginning of our academic careers in America. I was a lucky guy. My DNA was programmed for standardized tests. This curious aptitude propelled me out of the Bronx to Harvard College and Yale Law School. I served as a law clerk for Henry Friendly and John Harlan, followed up by writing a couple of long articles, and, voila, this proved to be a recipe for a full professorship at the University of Pennsylvania. I was, to put it mildly, confident in my bright, shiny intellectual tools and expansive about the rich possibilities of life in America—in short, I was naïve, breathtakingly naïve.
Mirjan had come to Penn via a different route. He was a leading participant in the liberalization of communist life during the “Croatian Spring” of the 1960s—and had been bitterly disappointed by the repression that followed. With reluctance, he and his wife Maria had decided to uproot themselves from their beloved Zagreb. They were rebuilding their lives from the ground up. Mirjan looked on in disbelief as I happily babbled about the mind-blowing implications of John Rawls and Guido Calabresi for the study of law. Mirjan did not come to America to herald a decisive advance in jurisprudence. He went into exile to gain the scholarly freedom to reflect upon the great crises of legality of the twentieth century. His brooding Slav soul was a standing rebuke to my heady American optimism about the future.
Many attorneys are unaware of or misunderstand an important tool they can use to protect their business organization clients: the ability to disclose the client’s confidences. In jurisdictions with “loyal disclosure” rules—rules adopted by the Securities and Exchange Commission and the American Bar Association in response to Enron and other corporate scandals—counsel may disclose confidential information to protect an entity client from the harmful, illegal conduct of company constituents. In this essay, I explain that an entity client has an interest in its attorneys understanding these complicated rules and, when appropriate, disclosing confidences to protect the organization from the financial consequences of constituent misconduct.
The Office of Professional Responsibility (OPR), housed within the U.S. Department of Justice (DOJ), investigates alleged misconduct by federal prosecutors and other DOJ personnel. Under the Bush administration, even when OPR found serious prosecutorial misconduct, DOJ kept the disciplinary investigation and outcome private to avoid embarrassing the prosecutor. This practice superseded a public disclosure policy adopted by the previous administration. This essay submits that DOJ’s recent practice is contrary to the public interest and that the new administration should regulate its prosecutors more transparently, consistent with President Obama’s call for open government.
Failure to meet discovery obligations is a serious impediment to the fair, prompt and cost effective resolution of disputes and, in extreme forms, can undermine public confidence in the integrity of the process. Harsh sanctions are appropriately imposed on parties and their counsel when egregious discovery misconduct affects the progress of a case. In cases involving allegations of improper monitoring by counsel of client conduct, however, courts properly exercise restraint in determining counsel culpability in light of the burdens it places on the attorney-client relationship, including threats to the confidentiality of client communications.
The Pocket Part is proud to present our final symposium issue of the academic year, examining reoccuring and novel issues surrounding the ethical responsibilities faced by lawyers.
If a rule is only as good as its exceptions, and a reporter is only as good as her sources, then according to a recent Pennsylvania Supreme Court opinion, Pennsylvania’s reporter’s privilege is the best of privileges and the worst of privileges. In that opinion, the court failed to carve a crime-fraud exception out of Pennsylvania’s reporter’s privilege—or its “Shield Law”—despite having previously read a similar exception into every other evidentiary privilege. Ironically, this alleged act of judicial “passivism” transformed the Shield Law into both a shield and a sword and mischaracterized the purposes served by all evidentiary privileges.
In a recent note in The Yale Law Journal, Jon Donenberg argued that (1) program changes in Medicaid ushered in by the Deficit Reduction Act of 2005 (DRA) sub silentio rendered Medicaid’s basic availability provision unenforceable under 42 U.S.C. § 1983, and (2) state fair hearing procedures constitute the best alternative for enforcement of beneficiary rights. Donenberg misreads both the DRA and § 1983 jurisprudence, overstates the usefulness of fair hearings, and overlooks the better alternative of preemption claims to enforce the Medicaid Act.
Virtual world transactions (VWT) involve the sale or exchange of goods and services that are used exclusively within a virtual world. As participation in virtual worlds increases, both in volume and in character, the boundary between VWT and real world transactions becomes unclear. Consequently, many wonder whether the Internal Revenue Service (IRS) will tax participants in virtual worlds, even before they have converted their virtual items into real goods or services. Although IRS agents are not counting virtual earnings quite yet, they may begin to take notice of VWT on a broader scale if and when one of three events occur: (1) courts grant property rights to virtual world participants in the virtual items they amass; (2) vendors begin accepting virtual items (such as virtual currency) on a regular basis in exchange for real goods and services; or (3) Congress adopts legislation requiring owners of virtual worlds to report certain transactions to the IRS.
Millions of people participate in virtual worlds—immersive online forums such as Second Life and World of Warcraft (WoW). While some online activities lack significant economic implications, one of the attractions of Second Life, which is designed to be a commercial platform, is the prospect of making “real money.” This essay argues that profits received in the form of Lindens (Second Life’s currency) should be taxed in much the same way profits received via PayPal, a widely used electronic-payment system, are. Although Second Life profits could instead be taxed once the taxpayer sells for real money (“cashes out”), that would create a special exception for Second Life that does not exist for platforms such as eBay. It would facilitate abuse and distort economic activity.
Economists and legal theorists have long argued that real-world economies cannot function effectively without well-defined property rights. More recently, scholars have also begun to analyze at least three kinds of “virtual” economies: the online economies exemplified by eBay and other trade-facilitating mechanisms; the economies in virtual worlds such as Second Life and World of Warcraft; and the virtual reputational economies associated with MySpace and Facebook. The first two economies generally involve the exchange of familiar forms of property. But scholars have thus far failed to fully identify or analyze the property underlying the reputational economy. What that economy demonstrates, especially in its virtual form, is that reputation itself—social status and the respect of others—can usefully be understood as a form of property. Strands of this theory appear in law and scholarship, but they have not been tied together in a way that shows that reputation can be property-like even without demonstrating economic value. Virtual reputational economies show that reputation can be gained, lost, traded, protected, and shared, all in property-like fashion, without regard to whether it has independent economic value. In other words, reputation is not merely valuable; it is the new New Property.
Second Life is a feudal society. No, not metaphorically. Literally.
Two problems have preoccupied scholars of virtual world law: What is the political relationship between developers and users? And: Should we treat in-world objects as property? We can make progress on both questions by recognizing that virtual politics and property are inex-tricably linked, in the same way that feudal politics and property were. It is the tenant/user’s relationship with his lord/developer that both creates the property interest and enforces it. The similarity between ownership of land in feudal England and in Second Life suggests that offline courts should protect user interests in virtual items, gradually, without treating them as full-blown modern “property.”
The Eye: that horrible growing sense of a hostile will that strove with great power to pierce all shadows of cloud, and earth, and flesh, and to see you: to pin you under its deadly gaze, naked, immovable.
Suppose that you move to a new town. To buy your home, you must allow the developer to install cameras in each room and record all interactions between you and your husband. To use the telephone, you must permit the telephone company to record and retain your conversations. To receive mail, you must allow the mail carrier to copy and index the contents. To access funds, you must permit the bank to record all purchases. Suppose, too, that much of this information can become available to government actors with a simple subpoena rather than the more stringent search warrant. It may sound incredible, but this is the reality for millions of people who live, work, and play in virtual worlds.
Several female law students were the subject of derogatory comments on AutoAdmit.com, a message board about law school admissions. When one of the women asked the website administrator to remove certain comments, the administrator discussed her request in an online post, prompting further attacks. An undergraduate student’s rape was revealed on a gossip site, JuicyCampus.com, where posters engaged in a cruel session of “blame the victim.” Another student on that site was falsely identified, by name, as being a stalker, bi-polar, and suicidal. When officials at her university asked JuicyCampus.com to remove the most egregious posts, the company refused.
These recent examples have brought the vexing problem of cyber-harassment to the public’s attention. Under § 230 of Title 47 of the U.S. Code, websites are not liable as publishers for the content on their sites so long as they are not involved in the creation of the objectionable content. Accordingly, much of the relevant scholarship has focused on repealing § 230 or imposing liability upon posters.
The rise of significant inbound capital flows originating from sovereign wealth funds (SWFs) has occasioned a debate over the appropriate regulatory and tax treatment of these funds. In particular, it has been argued that the tax exemption currently enjoyed by SWFs confers an advantage on these entities as providers of capital to U.S. firms relative to private foreign investors, and that a tax should be imposed on SWFs to restore fairness. This essay argues that the distinctive nature of the portfolio choices facing SWFs negates this fairness argument. Indeed, changing the tax treatment of SWFs as has been proposed would distort choices that are otherwise efficient and would handicap U.S. firms and workers.
Important characteristics distinguish sovereign wealth fund investment, which is often troubling, from private foreign investment, which is generally beneficial. Allowing sovereign wealth funds to own equity stakes in American companies encroaches on the autonomy of U.S. industrial and foreign policy in a way that private investment does not. Moreover, because some sovereign wealth fund investment is politically motivated, this new form of investment impairs the efficient allocation of economic resources. Given these effects, one might expect U.S. tax policy to discourage state-controlled investment and encourage private investment. Instead, tax policy does just the opposite, subsidizing sovereign wealth funds that invest in the equity of U.S. companies.
In this Essay, I sketch out a few tax reform alternatives that could complement other regulatory proposals regarding sovereign wealth. First, and most modestly, the U.S. could strive for sovereign tax neutrality, eliminating the unwarranted tax subsidy that sovereign wealth funds enjoy under current law. A second, more aggressive, alternative would impose an excise tax on sovereign wealth. Additional reform alternatives are more fine tuned, linking the tax rate to a fund’s compliance with best practices or other measures of transparency, accountability, and professionalization. I fully develop the case for taxing sovereign wealth elsewhere in a longer paper. For present purposes, I merely wish to convince the reader that regardless of how one feels about regulating sovereign wealth funds, the tax exemption under current law deserves reconsideration.
Sovereign Wealth Funds (SWFs) recently have captured America’s attention. Much of that attention has been critical, with a particular focus on whether the U.S. economy is becoming vulnerable to the policy whims of foreign states. Yet SWFs face significant domestic commercial and political pressures to emphasize financial performance over policy goals. These pressures from home can protect against politically motivated U.S. investments. To the extent these motivations are insufficient, additional protections—such as the Committee on Foreign Investment in the United States (CFIUS), as well as our antitrust, banking, securities and other regulations—help assure that SWFs are likely to act pursuant to commercial interests.
In a 2003 essay in The Yale Law Journal entitled Minorities, Shareholder and Otherwise, Anupam Chander compared corporate law’s special protections for minority shareholders with the increasingly colorblind position of constitutional law, arguing that the former has much to teach the latter. In this edition of The Yale Law Journal Pocket Part we revisit this controversial essay with reactions from three constitutional and corporate law scholars and, finally, a response from Anupam Chander addressing these perspectives on his work.
Anupam Chander’s article Minorities, Shareholder and Otherwise brilliantly offers a “conservative” justification for a U.S. constitutional law truly dedicated to fairness and justice for all. It does so by counterintuitively looking to the bottom-line-oriented world of corporate law. This commentary offers a most powerful example of the gulf between constitutional law and corporate law identified by Professor Chander. Modern constitutional law affords no meaningful substantive protection to immigrants to the United States. The Supreme Court has consistently held that the political branches of the U.S. government possess “plenary power” over immigration and the courts lack the power to review the substantive constitutionality of the immigration laws. The “plenary power” doctrine in operation serves as a bulwark of inequality for immigrants to the United States.
In Minorities, Shareholder and Otherwise, Anupam Chander argues that, unlike constitutional law, “corporate law places minorities at the heart of its endeavor.” Central to his project is an empirical claim that corporate law has an “elaborate framework” for “protecting minority interests in the corporation.” In Chander’s view, it thus is corporate law, not constitutional law, that is truly equipped to deal with issues such as fairness, oppression, and power.
It is a very clever thesis, which is quite well executed. Most important, it is quite novel, which is what really counts. Academics do not get rewarded with tenure, promotions, or The Yale Law Journal slots for being right; they get rewarded for having smart and novel ideas. When Edmund Burke warned us to be wary of “sophisters, economists, and calculators,” however, it doubtless was because there is a positive correlation between an idea’s novelty and the likelihood it will prove wrong.
In Minorities, Shareholder and Otherwise, Anupam Chander points out that the law treats discrimination by corporate insiders against minority shareholders with suspicion. Yet discrimination against ordinary minorities, in buying or selling a house or applying for a job, for example, receives increasingly lax treatment from color-blind courts uninterested in delving into the thickets of intent, history, and complex causation.
For corporate law, “equal treatment can only be assured by taking minority status into account.” Indeed, solicitude toward minority interests “is an ordinary part of corporate life, mandated by law.” Outside of this sphere, however, discrimination against racial minorities has become increasingly difficult to redress.
Should minority status be a relevant datum for judicial decision?
That is the question motivating my essay, Minorities, Shareholder and Otherwise, published five years ago in this journal. I am grateful to The Yale Law Journal for recalling the paper and inviting three of the nation’s leading legal scholars to comment on it. Because my essay was published at the dawn of the Web 2.0 era when, alas, The Pocket Part was not yet available, the Journal has asked me to pen an introduction to this symposium to review that paper.
In Minorities, Shareholder and Otherwise, I demonstrate that corporate law recognizes the relevance of minority status, even while constitutional law more and more insists on minority-blindness. I argue that this is precisely backwards — that the constitutional domain should require greater judicial vigilance with respect to minority status than the corporate domain. The difficulty of exit from a polity and the inability to negotiate (or at least select among) terms of entry into a polity, not to mention a history of grave injustice, call for special attention to minorities in the constitutional context.
We previously suggested in this Journal that post-death publicity rights could be excluded from the decedent’s estate for tax purposes if state legislation precluded the decedent from exercising post-death control. In other words, if state legislation designated who would hold these rights after the decedent’s death, the value of these rights should not be subject to estate tax. Professor Joshua Tate, in his response to our essay, argues that under current law, estate tax inclusion would be required regardless of the decedent’s ability to exercise control. So, for example, in Professor Tate’s analysis, the estate tax would apply even if the legislation vested those rights in the decedent’s oldest daughter and even if the decedent had no right to alter this outcome. Professor Tate’s analysis misconstrues fundamental estate tax principles and misunderstands the precedents on which he relies.
Attorney Alan R. Levy recently published an article in The Yale Law Journal Pocket Part entitled “How ‘Swingers’ Might Save Hollywood from a Federal Pornography Statute.” So eager was Levy to “save Hollywood” from having to keep records to verify that performers engaging in actual sexually explicit conduct are legally adults, that he grossly distorted the meaning and effect of 18 U.S.C. § 2257. Ironically, while exaggerating the negative impact of § 2257, he simultaneously underestimated the problematic nature of a different statutory provision potentially requiring record keeping for performers who engage in simulated sexual conduct.
In an April 2008 essay in The Yale Law Journal Pocket Part, Mitchell Gans, Bridget Crawford, and Jonathan Blattmachr argue that recent state legislation recognizing postmortem publicity rights fails to take into account the likely estate tax consequences. Although Gans, Crawford, and Blattmachr are correct to argue that allowing publicity rights to pass by will or inheritance could have adverse tax consequences for some estates, those ramifications are not as far-reaching as might be imagined. Moreover, their “legislative solution” will not solve the problem.
The behavior of the Justices during oral argument has always fascinated Supreme Court watchers. Recent studies have confirmed what experienced observers have long known: Justice Breyer talks the most, Justice Thomas says the least, and Justice Scalia gets the most laughs. What has remained somewhat of a mystery, however, is how much the Justices continue to think about oral argument after they leave the courtroom and return to their chambers. Which Justices give oral argument the most consideration? Which statements by advocates make the most lasting impressions?
Note: On August 8, 2008 the California Court of Appeals issued its decision in Jonathan L., et al. v. The Superior Court of Los Angeles County.
The recent decision of the California Court of Appeal in the Rachel L. case set off a storm of protest from the California “home school” community and drew nationwide media attention. It was understood by many as holding that it is illegal for parents without teaching credentials to teach their own children at home, thus exposing the children and parents to truancy and child dependency proceedings. In the wake of the public response, the Court of Appeal granted rehearing and solicited an amicus brief from the California Department of Education (CDE) and State Superintendent of Public Instruction Jack O’Connell, which we recently filed with the court. In the brief, we argued that home-schooled children should not be declared truant if, in the opinion of local public school officials, the parents are providing an adequate education in compliance with the laws governing private schools.
It is a distinct pleasure to have the chance to respond to the insightful commentaries of Peter Drahos, Ruth Okediji, and Tomiko Brown-Nagin. I find much to agree with in each, but I will focus on a few areas of divergence in the hope of clarifying our differences.
Drahos’s work on the role of ideas in the field of international intellectual property (IP) has been essential to my own thinking, and we agree on two critical points: that frame mobilization matters to political outcomes, and that frame mobilization is not all that matters. But Drahos and I disagree on how framing matters, because we employ slightly different conceptions of the term. As Drahos’s reference to Cicero suggests, he treats framing as primarily a form of rhetorical intervention, one that can usually yield only symbolic or interim victories. I intend the concept in a more constitutive way, as it has been developed in the social movements literature. Framing here marks acts of dialogic, emergent interpretation that instigate, legitimate, and sustain collective action. Conceived of in this way, frames are not only rhetorical devices. They are also fundamental to the dynamics of collective action–to the very possibility and nature of “the environmental movement” or the “access to knowledge movement,” or even, I contend, the “IP industries.”
Federal administrative agencies have always had the authority to issue substantive regulations that conflict with, and therefore ultimately preempt, state law. In recent years, agencies have begun to assert a new and questionable kind of interpretative authority: taking a specific position on whether or not state law is preempted by an agency action. Later this year the Supreme Court will hear Wyeth v. Levine, a Food and Drug Administration (FDA) case that is widely expected to tackle head-on the question of agency authority to determine when its regulations preempt state law. However, little-noticed language appearing in the Court’s February 2008 decision in Riegel v. Medronic may have significant implications for the upcoming Wyeth decision.