Category: Articles

Food justice scholars and advocates have made a simple but important point: for all the attention we pay to the food we eat, we pay far too little attention to the people who feed us. But can law play a role in directing consumer attention to labor-related issues? Traditional food law paradigms provide at best incidental benefits to food workers because these types of laws typically rely on transparency and disclosure schemes that serve narrow consumer-centric interests. An increasing number of laws attempt to disseminate information about the working conditions of the people who pick, process, and produce our food so that consumers can also consider the ethical and moral consequences of their food choices. In assessing this attempt to rebrand labor enforcement in consumer protection terms, this Article does two things. First, this Article identifies the conditions under which such schemes are most likely to succeed. Regulators should target food markets characterized by relative consumer wealth, norm consensus regarding which outcomes are desirable, and an established intermediation infrastructure to give disclosure laws the best chances for improving labor conditions along the food chain. Even where these conditions exist, a second point this Article makes is that disclosure laws should supplement, not supplant, traditional labor enforcement strategies that rely on worker- initiated complaints. This is because certain values, like autonomy, equity, and community standing are best vindicated by the workers themselves instead of by others (like consumers) on their behalf. Crowding out workers from the enforcement process creates the risk of exacerbating the structural forms of inequality that define work across the food system.

Predictive policing is sweeping the nation, promising the holy grail of policing—preventing crime before it happens. The technology has far outpaced any legal or political accountability and has largely escaped academic scrutiny. This article examines predictive policing’s evolution with the goal of providing the first practical and theoretical critique of this new policing strategy. Building on insights from scholars who have addressed the rise of risk assessment throughout the criminal justice system, this article provides an analytical framework to police new predictive technologies.

In order to gain access to chapter 9 bankruptcy, municipalities must demonstrate that they meet several eligibility requirements. These requirements were put in place to prevent municipalities from making rash decisions about filing for bankruptcy. Too often, however, these requirements impede municipalities from attaining desperately needed relief. This Article demonstrates that as currently utilized, the chapter 9 eligibility rules overemphasize deterrence and are not rationally connected to the reasons the chapter 9 bankruptcy system was developed. This Article therefore posits that the chapter 9 eligibility requirements should be relaxed.

To support this claim, the Article conducts a detailed analysis of the history and theory of chapter 9 to determine the primary reasons for the eligibility rules and the core functions of a municipal bankruptcy solution. It then demonstrates how many of the concerns driving the eligibility rules’ existence are addressed in other chapter 9 mechanisms and proposes sweeping revisions to the eligibility rules to facilitate appropriate access to chapter 9. Specifically, municipalities in fiscal distress should be able to access bankruptcy when they demonstrate a need for the primary types of assistance that bankruptcy can best provide: nonconsensual debt adjustment, elimination of the holdout creditor problem, and breathing space. Through its analysis, this Article brings needed attention to the broader questions of who should have access to bankruptcy and when that access should be granted.

Today, normative debates over restrictions on patent-eligibility are uniformly premised on a discrimination theory of patent-ineligibility: the restrictions are assumed to cause the patent regime as a whole to discriminate against, and thus grant weaker patent protection for, the affected technology. Under discrimination theory, the justification for a rule of patent ineligibility turns on whether there is a good reason to treat the affected technology differently and grant it only relatively weak protection. In contrast, this Article articulates a novel counteraction theory of patent- ineligibility. Counteraction theory adopts the default premise that all technologies merit roughly the same strength of patent protection, and it recognizes that, in some circumstances, a well-tailored restriction on patent-eligibility can be the most effective means of achieving that rough equality. The weakening of patent protection caused by restrictions on patent-eligibility can sometimes offset the unusually strong protection that is created by inherent, technology-specific biases in the patent doctrines other than patent-eligibility, including novelty, nonobviousness, and enablement. A restriction on the patent-eligibility of a technology can thus bring the strength of the patent protection available for the technology back closer to the norm of protection granted for all technologies.

A full account of counteraction theory entails an explanation of when and how the inherent, technology-specific biases in favor of strong protection can arise in the patent doctrines other than patent-eligibility, such as novelty, nonobviousness, and enablement. This Article focuses on one such explanation: the dematerialization of technology in today’s knowledge-age economy has led to technology-specific regulatory inefficacy in these doctrines. Certain non-eligibility patent doctrines cannot do the work of regulating patent validity that we expect them to be able to do when they are brought to bear on certain intangible technologies, meaning that they sanction unusually strong protection for those technologies. Technology-specific regulatory inefficacy sets the stage for a counteraction-oriented justification of restrictions on patent-eligibility. The restrictions can counteract or neutralize the unusually strong protection created by the inefficacy of the non-eligibility doctrines, bringing the strength of the patent protection that is available for the affected technology back into closer alignment with the protection that is available for other technologies.

In addition to articulating counteraction theory and technology-specific regulatory inefficacy as theoretical possibilities, this Article examines the actual restrictions on patent-eligibility in two intangible technologies that are on the front lines of the ongoing battles over patent-eligible subject matter: diagnostic inferences and software. The Supreme Court has recently announced restrictions on the patent-eligibility of both technologies, and both restrictions are highly controversial under discrimination theory. However, the restrictions have a reasonable, although concededly imperfect, fit with the restrictions that can be justified under counteraction theory. In each technology, patent protection is unusually strong because certain non-eligibility doctrines fail to provide their expected validity- limiting regulation, and the Court’s restriction on patent-eligibility works to counteract that strength.

Last year, prisoners filed nearly 27,000 civil rights actions in federal court. More than 92 percent of those actions were filed pro se. Pro se prisoners frequently use—and in many districts are required to use— standardized complaint forms provided by the federal judiciary. These standard forms were created in the 1970s at the recommendation of a committee of federal judges seeking to more effectively manage prisoner litigation and reduce its burdens on the federal courts. Although complaint forms have been in use for nearly forty years and are now commonplace in almost every federal district, no one, until now, has recognized the extent to which these forms may diverge from or misrepresent the law.

In this paper, we collect and analyze every form complaint used by the federal district courts. Our results indicate that, while form complaints can be helpful to pro se prisoners and the courts, many impose requirements that are inconsistent with governing law. First, many complaints direct prisoners to plead facts that the law does not require them to plead. Second, many complaints prohibit or discourage prisoners from pleading facts necessary to survive a motion to dismiss. Third, some complaints require plaintiffs to plead legal conclusions, using language that may confuse unsophisticated prisoners and cause them to make inadvertent but significant legal errors.

These flaws can impose serious unintended consequences on prisoners, including unwarranted dismissal of their complaints. They can also impose additional work on judges and court staff who must reconcile discrepancies between the court-provided forms and governing law. To address the concerns raised by our study, we provide a model form complaint that accurately reflects governing law and helps courts more efficiently review pro se prisoner complaints and recognize potentially meritorious claims.

The U.S. energy system is critical to every aspect of the nation’s economy and daily life. That energy system, in turn, is completely dependent on U.S. energy transport infrastructure—the oil pipelines, natural gas pipelines, electric transmission lines, and import and export facilities that transport and distribute the energy resources that power the country. This Article explores how the law can influence the billions of dollars in private sector energy transport investments necessary to meet current energy needs as well as respond to the significant technological, market, and policy developments in the energy sector. In doing so, it develops criteria policymakers should consider in creating laws and regulations to govern energy transport infrastructure that focus on federalism principles, flexibility in the location and amount of energy resources, and clean energy goals. It then applies these criteria to two of the nation’s most pressing energy transport debates: (1) whether to transfer more siting authority for interstate electric transmission lines from the states to a federal or regional authority and (2) whether to transport new sources of North American oil primarily by an upgraded rail system or by expanded pipeline infrastructure.

The institution of the prosecutor has more power than any other in the criminal justice system. What is more, prosecutorial power is often unreviewable as a result of limited constitutional regulation and the fact that it is increasingly exercised in private and semi-private settings as the system has become more administrative and less adversarial. Despite this vast, unreviewable power, prosecutors often rely on crude performance measures focused on conviction rates. The focus on conviction rates fails to capture and adequately evaluate the breadth of prosecutorial decision- making. We can do better by fully implementing analytics as a tool to evaluate the prosecutorial function. This tool has revolutionized crime- fighting. Yet, it has been conspicuously absent as a tool to improve other aspects of the criminal justice system. This Article demonstrates the promise of prosecutorial analytics to improve oversight and to promote systemic interests in justice, fairness, and transparency. It offers concrete examples of how analytics can 1) help eliminate race-based jury selection practices; 2) minimize prosecutorial misconduct; 3) uncover whether undesirable arbitrary factors shape prosecutorial discretion; and 4) provide better metrics for the judiciary, practitioners, and the public to evaluate prosecutorial performance.

In the past several years, the growth of virtual property in today’s economy has been explosive. The everyday use of virtual assets, ranging from Twitter and Facebook to YouTube and virtual world accounts, is nearly absolute. Indeed, by one account, Americans check social media over seventeen times per day. Further, a growing number of savvy virtual entrepreneurs are reporting incomes in the six- and seven-figure range, derived solely from their online businesses. Nevertheless, although the commercial world has come to embrace these newfound markets, commercial law has done a poor job of keeping up. Scholars have argued that laws governing everything from taxation, to bankruptcy, to privacy rights have not kept pace with our ever-changing virtual world. And nowhere is this truer than in the law of secured credit. Doubtlessly, virtual property has come to represent significant wealth and importance, yet its value as a source of leveraged capital remains, in large part, untapped. This unrealized potential is not without good reason; the law—specifically Article 9 of the U.C.C. and the law of property more broadly—suffers from a number of deficiencies and anomalies that make the use of virtual property in secured credit transactions not only overly complex and expensive, but almost entirely untenable. This Article shines light on these shortcomings, and, in doing so, advances a number of guiding principles and specific legislative recommendations, all geared toward a reformation of the law of secured credit in virtual property.

This Article analyzes the tax law’s capital income preference through the lens of intellectual capital, an increasingly important driver of economic productivity whose value derives primarily from workers’ knowledge, experience and skills. The Article discusses how business owners increasingly are able to “propertize” labor into intellectual capital—to capture the returns on their workers’ labor by embedding it in intellectual property and to restrict workers’ ability to employ their skills and knowledge elsewhere. The Article then shows how the tax law provides significant subsidies to the process of propertization and thereby contributes to the inequitable distribution of returns between business owners and workers. The Article’s analysis further reveals the tax law’s fundamental capital-labor distinction to be questionable, perhaps even illusory, an insight which has profound implications for the tax law.

While courts historically have taken a hands-off approach to settlement, judges across the legal spectrum have begun to intervene actively in “aggregate settlements”—repeated settlements between the same parties or institutions that resolve large groups of claims in a lockstep manner. In large-scale litigation, for example, courts have invented, without express authority, new “quasi-class action” doctrines to review the adequacy of massive settlements brokered by similar groups of attorneys. In recent and prominent agency settlements, including ones involving the SEC and EPA, courts have scrutinized the underlying merits to ensure settlements adequately reflect the interests of victims and the public at large. Even in criminal law, which has lagged behind other legal systems in acknowledging the primacy of negotiated outcomes, judges have taken additional steps to review iterant settlement decisions routinely made by criminal defense attorneys and prosecutors.

Increasingly, courts intervene in settlements out of a fear commonly associated with class action negotiations—that the “aggregate” nature of the settlement process undermines the courts’ ability to promote legitimacy, loyalty, accuracy and the development of substantive law. Unfortunately, when courts step in to review the substance of settlements on their own, they may frustrate the parties’ interests, upset the separation of powers, or stretch the limits of their ability. The phenomenon of aggregate settlement thus challenges the judiciary’s duty to preserve the integrity of the civil, administrative, and criminal justice systems.

This Article maps the new and critical role that courts must play in policing aggregate settlements. We argue that judicial review should exist to alert and press other institutions—private associations of attorneys, government lawyers, and the coordinate branches of government—to reform bureaucratic approaches to settling cases. Such review would not mean interfering with the final outcome of any given settlement. Rather, judicial review would instead mean demanding more information about the parties’ competing interests in settlement, more participation by outside stakeholders, and more reasoned explanations for the trade-offs made by counsel on behalf of similarly situated parties. In so doing, courts can provide an important failsafe that helps protect the procedural, substantive, and rule-of-law values threatened by aggregate settlements.