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Author: Frank Pasquale

Symposium: Driesen’s The Economic Dynamics of Law

This week, we are hosting a symposium on David Driesen’s book The Economic Dynamics of Law (Cambridge University Press, 2013), from today to April 3rd. As the press’s webpage explains,

This book offers a dynamic theory of law and economics focused on change over time, aimed at avoiding significant systemic risks (like financial crises and climate disruption), and implemented through a systematic analysis of law’s economic incentives and how people actually respond to them. This theory offers a new vision of law as fundamentally a macro-level enterprise establishing normative commitments and a framework for numerous private transactions, rather than as an analogue to a market transaction. It explains how neoclassical law and economics sparked decades of deregulation culminating in the 2008 financial collapse. It then shows how economic dynamic theory helps scholars and policymakers make wise choices about how to avoid future catastrophes while keeping open a robust set of economic opportunities, with individual chapters addressing the law and economics of financial regulation, contract, property, intellectual property, antitrust, national security, and climate disruption.

Our terrific line-up of commenters will include:

Sanja Bogojevic
Brett Frischmann
James Hackney
Michael Livermore
Martha McCluskey
Uma Outka
Arden Rowell
Jennifer Taub

Thanks to all of them for commenting on this timely and important book.

Book Symposium: Driesen’s The Economic Dynamics of Law

Next week, we will be hosting a symposium on David Driesen’s book The Economic Dynamics of Law (Cambridge University Press, 2013). The symposium will be held from Mar. 31 to Apr. 3, 2014. As the press’s webpage explains,

This book offers a dynamic theory of law and economics focused on change over time, aimed at avoiding significant systemic risks (like financial crises and climate disruption), and implemented through a systematic analysis of law’s economic incentives and how people actually respond to them. This theory offers a new vision of law as fundamentally a macro-level enterprise establishing normative commitments and a framework for numerous private transactions, rather than as an analogue to a market transaction. It explains how neoclassical law and economics sparked decades of deregulation culminating in the 2008 financial collapse. It then shows how economic dynamic theory helps scholars and policymakers make wise choices about how to avoid future catastrophes while keeping open a robust set of economic opportunities, with individual chapters addressing the law and economics of financial regulation, contract, property, intellectual property, antitrust, national security, and climate disruption.

Our terrific line-up of commenters will include:

Sanja Bogojevic
Brett Frischmann
James Hackney
Michael Livermore
Martha McCluskey
Uma Outka
Arden Rowell
Jennifer Taub

Thanks to them, and to David, for being part of the symposium—we all look forward to the event. Given the topic of the 2014 Phillips Lecture, it’s clear that “avoiding future catastrophes while keeping open a robust set of economic opportunities” is a critical issue for our times.

Brad A. Greenberg on the Free Flow of Information Act of 2013

Brad A. Greenberg is Intellectual Property Fellow at Columbia Law School’s Kernochan Center for Law, Media and the Arts. He writes primarily about laws that encourage, restrict, or regulate speech and technological development, with an emphasis on legal questions raised by new technologies; it at times draws on his previous career as a newspaper reporter. Recent publications include “Copyright Trolls and Presumptively Fair Uses,” 85 U. Colo. L. Rev. 53 (2014); “The Federal Media Shield Folly,” 91 Wash. U. L. Rev. 437 (2013); and “More Than Just a Formality: Instant Authorship and Copyright’s Opt-Out Future in the Digital Age,” 59 UCLA L. Rev. 1028 (2012). He offers the following thoughts on recent developments in media shield policy: 

At the New York Times’ Sources + Secrets conference Friday, one panel took up a perennially popular piece of legislation among news organizations and industry groups: a so-called media shield law.

Numerous media shield bills have been proposed in the 42 years since the Supreme Court ruled that the Constitution does not protect reporters from being compelled to testify; all proposals have failed. But the Free Flow of Information Act of 2013 appears different. The bill has bipartisan support, the endorsement of President Obama, and has already moved out of Senate committee. It has also been overwhelmingly supported by major news organizations and industry groups – reflected again at Sources + Secrets.

But there are at least three substantial challenges to the bill’s efficacy. Read More

Industrial Policy for Big Data

If you are childless, shop for clothing online, spend a lot on cable TV, and drive a minivan, data brokers are probably going to assume you’re heavier than average. We know that drug companies may use that data to recruit research subjects.  Marketers could utilize the data to target ads for diet aids, or for types of food that research reveals to be particularly favored by people who are childless, shop for clothing online, spend a lot on cable TV, and drive a minivan.

We may also reasonably assume that the data can be put to darker purposes: for example, to offer credit on worse terms to the obese (stereotype-driven assessment of looks and abilities reigns from Silicon Valley to experimental labs).  And perhaps some day it will be put to higher purposes: for example, identifying “obesity clusters” that might be linked to overexposure to some contaminant

To summarize: let’s roughly rank these biosurveillance goals as: 

1) Curing illness or precursors to illness (identifying the obesity cluster; clinical trial recruitment)

2) Helping match those offering products to those wanting them (food marketing)

3) Promoting the classification and de facto punishment of certain groups (identifying a certain class as worse credit risks)

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Gluck on Halbig

The tough luck constitutionalists are pushing another line of attack on the Affordable Care Act.  As Abbe Gluck recently observed,

Health care reform won a big victory in court on January 15, when a federal judge in Washington, D.C., rejected a challenge to the new health insurance marketplaces, or exchanges, created under the Affordable Care Act (ACA). . . . [T]he court rejected as unsupported by the ACA’s history the argument that Congress viewed the subsidies as a “carrot” to induce the states to run the exchanges (and so had no need to provide them on the federal exchanges). Although today there is great “red state” resistance to the exchanges, when the ACA was drafted, congressional advocates for states’ rights clamored to let the states run them, and no one assumed that they wouldn’t. The fact that Congress failed to foresee today’s political environment doesn’t change what it originally intended.

For those interested in the appeal, Gluck has posted today on the challengers’ farrago of “kitchen-sink arguments, many of which are incompatible with the basic principles of statutory construction on which their briefs purport to rely and which evince a misunderstanding of the ACA’s procedural history.”  

Infinite Punishment

Can a society that pours ever more resources into “guard labor” be truly innovative? It turns out that yes, we can:

Philosopher Rebecca Roache is in charge of a team of scholars focused upon the ways futuristic technologies might transform punishment. Dr Roache claims the prison sentence of serious criminals could be made worse by extending their lives. Speaking to Aeon magazine, Dr. Roache said drugs could be developed to distort prisoners’ minds into thinking time was passing more slowly. “There are a number of psychoactive drugs that distort people’s sense of time, so you could imagine developing a pill or a liquid that made someone feel like they were serving a 1,000-year sentence,” she said.

Manipulating the subjective experience of punishment used to depend primarily on external factors, like cell size, terms of socialization, or lighting. An emerging pharma-prison complex could bring a whole new level of efficiency to the guard labor sector. Would our courts recognize such a drug as “cruel and unusual?” Considering the terms of confinement now routinely accepted in the American prison system, that’s anyone’s guess.

Latour on Agnotology

Bruno Latour reminds us of a rather important development in modern times: the ascent of an “unlearning” industry. He sheds new light on the “marketplace of ideas” metaphor:

[I]n the United States alone something like a billion dollars . . . is being spent to generate ignorance about the anthropic origin of climate mutations. In earlier periods, scientists and intellectuals lamented the little money spent on learning, but they never had to witness floods of money spent on unlearning what was already known. While in times past thinking critically was associated with looking ahead and extracting oneself from an older obscurantist past, today money is being spent to become even more obscurantist than yesterday! “Agnotology”, Robert Proctor’s science of generating ignorance, has become the most important discipline of the day.

Doubt can be a profitable product.

Law and Economics: The Flow of Ideas is a Two-Way Street

Raul Carrillo and Rohan Grey have recently argued that “law students need macroeconomics…and macroeconomics needs us”—and I couldn’t agree more. They have launched several initiatives at Columbia to build on the excellent finance curriculum offered there:

As Professor Robert Jackson opined in The Modern Money Network’s recent seminar, “The way we talk about money systems in law school has been blocked in a way, because we’re not really honest with each other about the fact that our money system is a legal choice… We may have covered, in legal academia, microeconomics in reasonable depth, but we need to do much more work in macroeconomics.”

When we “do economics” in law school, we customarily confine it to the scale of individual entities, say, firm transactions in Contracts and Corporations. Broader discussion of political economy rarely creeps into the curriculum…. Whether you eventually practice or make policy, negotiate deals or craft legislation, every student can benefit from further integration of political economy into the curricula. This is why The Modern Money Network, a newly recognized student organization, exists. It is a transdisciplinary hub for learning about the interactions between money, finance, law, and the broader economy.

Carrillo has also observed that the Fed used to have far more input from attorneys, but has since become an intellectual monoculture of economists. That, too, has to change. We can only hope to reform the finance sector by addressing power dynamics among boards, CEOs, traders, and investors—the types of dynamics lawyers are expert at creating and manipulating. Moreover, attorneys need to understand the overall effect of finance on the broader economy, and not simply think of ourselves as mere hired guns for the highest bidders. I’ll be closely following the work of Carrillo and Grey, and suggesting some fruitful directions for political economy and law.

They are also looking to expand their approach to other law schools—so try to contact them (@ramencents for Carrillo, @rohangrey for Grey) if you’re interested. It’s great to see the legacy of Robert Lee Hale endure at Columbia!

American Arms Race

One has to wonder what the upshot of this story is for those who promote more widespread ownership of guns:

As a male moviegoer texted, the man seated behind him objected, and asked the texter to put his phone away. . . . Voices were raised. Popcorn was thrown. And then came something unimaginable — except maybe in a movie. A gun shot. [The texter] was fatally wounded. His wife was hit, too, through the hand as she raised her hand in front of her husband as the shooter drew a handgun.

Is the idea behind, say, universal carry (or concealed-carry) that someone else in the theater could have shot the gun out of the killer’s hand before he shot the texter? That in a world of universal gun ownership, nobody would think to pull a gun on someone else in a trivial situation like this because the other person’s wife would shoot back? I recall reading a science fiction novel years ago about a world where everyone was exceedingly polite, because they knew everyone else was packing lethal force. That may be about the most positive outcome I can imagine from the emerging American arms race.

CoreHarms

What President Obama’s Surveillance Speech Should Have Addressed

In his recent speech on surveillance, President Obama treated the misuse of intelligence gathering as a relic of American history. It was something done in the bad old days of J. Edgar Hoover, and never countenanced by recent administrations. But the accumulation of menacing stories—from fusion centers to “joint terrorism task forces” to a New York “demographics unit” targeting Muslims—is impossible to ignore. The American Civil Liberties Union has now collected instances of police surveillance and obstruction of First Amendment‐protected activity in over half the states. From Alaska (where military intelligence spied on an anti-war group) to Florida (where Quakers and anti-globalization activists were put on watchlists), protesters have been considered threats, rather than citizens exercising core constitutional rights. Political dissent is a routine target for surveillance by the FBI.

Admittedly, I am unaware of the NSA itself engaging in politically driven spying on American citizens. Charles Krauthammer says there has not been a “single case” of abuse.* But the NSA is only one part of the larger story of intelligence gathering in the US, which involves over 1,000 agencies and nearly 2,000 private companies. Moreover, we have little idea of exactly how information and requests flow between agencies. Consider the Orwellian practice of “parallel construction.” Reuters has reported that the NSA gave “tips” to the Special Operations Division (SOD) of the Drug Enforcement Administration, which also shared them with the Internal Revenue Service.
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