Archive for the ‘Administrative Law’ Category
posted by Frank Pasquale
A few years ago, I noted that the American Medical Association/Specialty Society Relative Value Scale Update Committee (RUC) has a dominant role in suggesting payment levels to CMS. It raises hard questions about price-setting in the health care sector, many of which cannot be answered because its processes are opaque. Now we know that judicial relief will not improve things any time soon. As Brian Klepper reports, “On January 7, a federal appeals court rejected six Georgia primary care physicians’ (PCPs) challenge to the Centers for Medicare and Medicaid Services’ (CMS) 20-year, sole-source relationship with the secretive, specialist-dominated federal advisory committee that determines the relative value of medical services.” What was the complaint?
The core of the … physicians’ legal challenge was that the RUC is a “de facto Federal Advisory Committee,” and therefore subject to the stringent accountability requirements of the Federal Advisory Committee Act (FACA). This law ensures that federal bodies have panel compositions that are numerically representative of their constituencies, that their proceedings are open, and that methodologies are scientifically credible. In other words, FACA ensures that advisory practices are aligned with the public interest.
posted by Danielle Citron
Recall after President Obama’s first inauguration the fuss made about his administration’s commitment to transparent government. The January 2009 Open Government memorandum seemed a fresh start for openness in the post-9/11 era. Now, four years later, drastic change in government secrecy has not materialized. Let’s take DOJ’s release to two Congressional intelligence committees the OLC memo authorizing the use of drone strikes to kill American civilians abroad considered terrorists. According to the New York Times, the administration had until now refused to even officially acknowledge the existence of the documents, which had been reported about in the media. This recent revelation is just one example of what we say–a commitment to transparency–is not what we do. Consider that in a 2010 memo, the DOJ endorsed “the presumption that [OLC] should make significant opinions fully and promptly available to the public.” Despite this stated goal and the stated goals of the Open Government memorandum, the Sunlight Foundation reports that DOJ is “withholding from online publication 39% (or 201) of its 509 Office of Legal Counsel opinions promulgated between 1998 and 2012.” That is not to say that we have made no progress. As the Sunlight Foundation explains, the Obama administration published a slightly higher percentage of its OLC opinions online when compared to its predecessor. From inauguration until March 28, 2012, the Obama administration published 63% (40 of 63) of its OLC opinions online whereas Bush administration’s published 55% (54 of 98) of its second term opinions online, and published 11% (20 of 187) of its first term OLC opinions online by January 20, 2005.
posted by Frank Pasquale
The Commonwealth Fund has recently reported on how states are lagging in implementing consumer protection aspects of the ACA. In case you are looking for a comprehensive overview of the options open to a state as it implements the MLR provisisons of the ACA, check out my colleague Tara Adams Ragone’s policy brief The Affordable Care Act and Medical Loss Ratios: Federal and State Methodologies. Though the piece focuses on New Jersey, its structure suggests the issues that will come up for many other states:
As part of sweeping health care reform in 2010, Congress established MLR requirements for health insurance issuers offering coverage in the group and individual health insurance markets, including grandfathered but not self-insured plans, hoping to increase the value consumers receive for their premiums and to improve transparency. Medical loss ratio refers to a measure of the percentage of premium dollars that a health insurance company spends on health care as distinguished from administrative expenses and profit, including advertising, marketing, overhead, salaries, and bonuses. Prior to the ACA, some states but not the Federal government regulated loss ratios. The new Federal MLR law, which went into effect on January 1, 2011, for the first time established a national MLR standard, which varies from existing state MLR requirements in important ways.
This Policy Brief analyzes the new Federal MLR requirements and how they intersect with and affect New Jersey law and its insurance markets. After providing background on medical loss ratios and highlighting the major similarities and differences between the existing Federal and New Jersey MLR regulatory schemes, this Brief examines several requirements and policy options that New Jersey must consider as it implements the Federal requirements. This Brief also includes appendices that provide more extensive details regarding the components of the Federal MLR requirements, New Jersey’s MLR legal structure, and research regarding experiences with loss ratios nationally and in New Jersey, pre- and post-the ACA.
My former student Ina Ilin-Schneider has also posted on the MLR, after authoring a very interesting paper on the state waivers granted (and denied) by HHS.
Finally, a quick note to recommend Ann Marie Marciarille’s several recent posts at PrawfsBlawg on ACA implementation and health policy generally. It’s hard to write about these topics gracefully and for a general audience, while conveying the expertise of a scholar. I think of her posts as real models on both counts.
X-Posted: Health Law Profs.
posted by Chai Feldblum
What great fun to read all these posts!
There are three separate threads on the posts that I want to respond to: the impact of Robin’s analysis and exhortations on what our law school curriculum might look like; the three Rs: Robin, Robert (Cover) and Religion; and the intersection between moral values, relationships and marriage.
So, to the first –curriculum.
Among the changes I hope will follow from Robin’s work are significant changes to the law school curriculum. As Rebecca Lee notes:
As I see it, Robin’s challenge to law schools is particularly timely in light of the curricular revisions many schools are making in response to the changing legal economy. To best equip students to be lawyers and problem-solvers in the 21st century, it is becoming increasingly clear that law schools need to prepare their students to do more than just adjudicative analysis. Students will need a wider understanding of law and its uses and tools in various realms, and this training, I believe, can and should begin in the classroom. As law schools’ raison d’être evolves, so too should our legal commitments and methods, and this rethinking should likewise extend to our scholarship
I completely agree. Moreover, I think it is essential for law schools to give students a rich grounding in theories of justice concomitantly with teaching them such legal skills. Robin has noted in this book the importance of liberal progressives being able to deploy normative arguments that rely on a thick understanding of justice and moral goods and she will make an even more extensive argument on the importance of teaching students about justice in her forthcoming book about law schools. To me, giving students a rich grounding in theories of justice is imperative both to changing our legal approach and our scholarship in the manner that Robin is suggesting.
But I also can’t imagine having students learn about, and critique, theories of justice without also having a deep understanding of how our political system – which ultimately creates the body of laws that reflect our vision of justice — really, actually, and honestly works.
The lack of understanding on the part of the general public regarding the role and authority of the executive branch and the legislative branch sometimes takes my breath away. By virtue of their profession, lawyers should be leaders in educating people about how our lawmaking system actually works and in helping people engage in citizen democracy. But we don’t give our law students a comprehensive and rich understanding of lawmaking – the role of legislatures and agencies (as well as courts, which we cover quite well) in the making of law.
The good news is that this is beginning to change. Many schools are expanding their vision of what “teaching law” includes – which often extends to teaching students about advocacy in the political arena that makes law in the first place.
For this reason, I believe a forthcoming article on how law school clinics can lobby, co-authored by Professors Kevin Barry and Marcy Karin who head clinics that engage in both individual client work and policy work, is going to become a popular reading item. As Barry and Karin note in the beginning of their article:
In short, policy advocacy adds value for students, the law school, and the community. With respect to students, this type of clinical experience expands students’ toolkit of transferable legal skills and exposes them to the range of ways in which the law may offer solutions to a particular client or client base. It also responds to the growing student demand for policy advocacy opportunities and enables students to aspire to the highest ethical standards as set forth in the Preamble to the ABA Model Rules of Professional Conduct. These rules state that all lawyers “should cultivate knowledge of the law beyond its use for clients [and] employ that knowledge in reform of the law.” MODEL RULES OF PROF’L CONDUCT Preamble (2012) (emphasis added).
And finally, Jill Hasday’s post brought home to me how important students’ policy advocacy work can be – and what has been missing so far in those efforts, in terms of curriculum. Jill tells us:
Family caps, which at least nineteen states currently impose in some form, deny or limit TANF benefits to children conceived while their parents are already receiving TANF. For example, New Jersey’s TANF program provides that a family of two will ordinarily receive up to $322 a month, a family of three will ordinarily receive up to $424 a month, and a family of four will ordinarily receive up to $488 a month. These scant benefits are unlikely to cover a family’s basic needs, and New Jersey’s family cap limits them even further. New Jersey’s family cap means that a family that enters TANF with two people is still limited to just $322 a month if another child is born, $102 less than New Jersey itself otherwise thinks necessary for three people’s subsistence.
Well, the only reason there is not a mandatory family cap in ALL 50 states in this country is that, back in 1996, students in the Georgetown Federal Legislation Clinic who were working on behalf of their client, Catholic Charities USA, helped draft legal analyses and talking points against the family cap. The original welfare reform bill had required every state to have a mandatory family cap in its TANF program. Catholic Charities (the client) took the lead in organizing a coalition against that provision. Politics was such that the best Catholic Charities could get was a provision that permitted states to impose a family cap if they affirmatively chose to do so. The students who worked with Catholic Charities over the course of that year learned critical legal skills by doing that work and (from my perspective) helped advance social justice by eliminating the nationwide mandatory family cap.
But here’s my final point – the work of Georgetown’s Federal Legislation clinic on welfare reform (and on many other legislative and administrative issues over the past two decades) has enabled students to learn about the political system and the making of law, and to develop important legal skills. But there is SO much more about justice and values and normative goods (and arguments about normative goods) that could have been taught to the students if they had had available to them – as Robin calls for — a richer progressive natural law jurisprudence. Think about what more the students could have learned if part of the law school curriculum would have been to engage them in a substantive goods conversation about the family cap – at the same time that they were working on the issue in a practical way. (I can tell you — I did not engage the students in that conversation. But I would do so now, as a complement to their advocacy work.)
So to end with Robin’s words:
As I argue in my book, one other cost of contemporary liberalism’s commitment to this dubious premise [state neutrality toward conceptions of the good] is that partly as a consequence, we don’t have a progressive natural law: liberals disdain the entire tradition, in part, because of their antipathy toward conceptions of the good, and antipathy toward the notion that the state should entertain them. So the part of the natural law that I believe is of most interest — the part inspired by Aquinas and most developed by Finnis and his students, that explores the content of the common good and the role of the state, and of law, in realizing it — suffers from a lack of participation by those who ought to be most engaged.
Amen. (Designed as a segue to my next post: “The Three Rs: Robin, Robert (Cover) and Religion.”)
posted by Gerard Magliocca
I wanted to add one more post about my research on central bank independence before I start writing up the paper. Everyone know that Marbury v. Madison is the cornerstone of judicial review (though you can certainly identify other important precedents in this respect). What is the equivalent for the Federal Reserve?
The answer, though it sounds obscure, is a 1951 Accord (usually called “The Accord”) between the Treasury and the Fed. At the start of World War II, the Fed entered into an agreement with the Treasury to finance our war debt by buying bonds and pegging interest rates at a very low level. When the war ended, the Treasury refused to release the Fed from this deal and continued to insist an on expansionary monetary policy. President Truman took a dim view of central bank independence, with the low point coming during the Korean War when the FOMC held one of its meetings in Truman’s office with Truman present. (Try to imagine a Supreme Court conference under similar conditions.) Not long after that, though, criticism of the Treasury’s position increased in Congress and on Wall Street, which resulted in “The Accord,” where the Fed was essentially released from the Treasury’s grip and the principle of independence established.
Now on to other subjects . . .
posted by Jeffrey Kahn
Yesterday the United States Court of Appeals for the Ninth Circuit released its opinion in Latif v. Holder. Ayman Latif is a U.S. Citizen and disabled Marine Corps veteran who lives in Egypt. Airport officials in Cairo prevented him from boarding a plane to return to the United States, where he needed to attend a scheduled disability evaluation. Latif sought help from the U.S. Embassy, but he alleges that months later, after lengthy FBI interviews and polygraph tests, American officials told him that he could fly to the United States only as a “one-time thing,” without any guarantee that he would be allowed to return to his wife and daughters in Egypt. He refused the offer and his benefits as a disabled veteran were cut.
Latif filed suit, along with other citizens and lawful permanent residents in the U.S. and abroad who alleged similar treatment. They all claimed that they were prevented from traveling because the United States Government placed them on its No Fly List. This unanimous court of appeals decision opens a door to judicial review that, until yesterday, the Government had succeeded in keeping tightly shut. After the break, I’ll provide a brief review of the current system and then analyze how the Ninth Circuit’s opinion presents a substantial opportunity for change.
(Full Disclosure: Readers might recall me as a past guest at Concurring Opinions. My bio is here and my interest in this case comes from my work on a book to be published in December by the University of Michigan Press called Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists.) Read the rest of this post »
Are Liberals Under-Estimating the Chances that the Catholic Hospitals Will Win Against the Health Care Act?
posted by Peter Swire
(Disclaimer — I decided soon after law school not to focus most of my efforts on the Supreme Court or con law. There are brilliant people who work on it all the time, and I don’t. But I am a law prof who can’t help noticing some things …)
Last week, liberals went through the near-death experience for the Affordable Care Act — far, far, far closer than the confident predictions of most liberals when the law was passed.
This week, I had the chance to speak in depth with an experienced liberal lawyer about the Next Big Constitutional Thing — the Catholic hospital challenges to the ACA’s requirements that contraception and other coverage must be included for the employees of hospitals, universities, and other Catholic institutions that are not themselves part of the Church.
The lawyer confidently predicted that the Catholic hospitals would lose. After all, everyone knows the peyote case — Employment Division v. Smith, where a neutral state anti-drug law trumped a Free Exercise of religion argument that would have allowed an adherent to use peyote. The lawyer said there was no precedent for the Catholic hospitals to win, such a holding would disrupt innumerable neutral state laws, and even Justice Scalia would be bound by his prior writings to find against the Catholic hospitals.
My reaction — “here we go again.” It felt just like the over-confident predictions that the individual mandate inevitably would be upheld. And my friend sounded like other liberals who have scoffed at the claims of the Catholic hospitals.
My instinct — as a realist prediction of the outcome, and not as a statement of my policy choice — is that the Catholic hospitals very possibly will win if the case goes to final judgment in the courts.
First, I don’t think Justice Scalia will find that a law prohibiting peyote (a “good” and long-standing law) is remotely similar to a law requiring the Catholic Church, for the first time in history, to buy an insurance package that pays for contraceptives. He’ll think that the latter is a “bad” law.
Second, the Catholic Church has tens of millions of members in the U.S., and is not the splinter group at issue in the earlier case. In a realist analysis, the views of a tiny church are not the same as those of the largest organized Church in western history.
Third, the views of the Church on contraception are sincere, widely publicized, and long-standing. Although many individual Catholics don’t follow the doctrine on this issue, the institution of the Church is firmly on record on the issue. This is not a pretext to take mind-altering drugs; it is a major doctrinal tenet.
Fourth, many Catholic hospitals are deeply religious institutions. They often have a cross and a Bible in each room. Many nuns and priests work in the hospitals. Providing health care is deeply rooted in the mission of the Church, and has been for many years. In other words, this is not the equivalent of “unrelated business income.” Instead, religion and healing of the sick are thoroughly intertwined.
Fifth, and my apologies for mentioning it, six of the nine Supreme Court justices are Catholic. I am not saying that a Catholic judge will hold for the Church any more than a white judge holds for whites and a black judge holds for blacks. However, the justices will have deep personal knowledge of the healing tradition of Catholic hospitals. They will read the briefs in the context of their personal knowledge. I don’t think they will lightly assume that they are bound by cases with facts that seem to them quite different.
After we went through this list, my liberal friend said that he had adjusted his prediction. He now thought that some of the district court cases, at least, would go for the Church. He then added an extra idea — the case may arise under the Administrative Procedure Act, on whether the HHS rule was properly promulgated and consistent with the statute. His point was that a court may have a “procedural” way to block the rule from mandating that the Catholic hospitals pay for insurance that covered contraceptives. That might be an easier path for a judge to take than overturning Free Exercise case law, if the judge were inclined to stop the rule from taking effect.
Currently, there are over 20 challenges by Catholic hospitals to this provision. Smart lawyers in each case will be trying to define distinctions that will retain the peyote precedent while letting the hospitals win this case. Randy Barnett and others had a huge success with the “action/inaction” distinction about the individual mandate. My realist instincts are that we will see the emergence of clever, new distinctions for the hospital cases.
I think that many liberal con law experts were complacent when the individual mandate was challenged. If they are complacent again about the Catholic hospital cases, then I, for one, will not be surprised to see the current HHS approach struck down.
posted by UCLA Law Review
Volume 59, Issue 5 (June 2012)
|Implicit Bias in the Courtroom||Jerry Kang et al.||1124|
|The Supreme Court’s Regulation of Civil Procedure: Lessons From Administrative Law||Lumen N. Mulligan & Glen Staszewski||1188|
|Techniques for Mitigating Cognitive Biases in Fingerprint Identification||Elizabeth J. Reese||1252|
|Credit CARD Act II: Expanding Credit Card Reform by Targeting Behavioral Biases||Jonathan Slowik||1292|
|Shocking the Conscience: What Police Tasers and Weapon Technology Reveal About Excessive Force Law||Aaron Sussman||1342|
July 1, 2012 at 2:39 pm Posted in: Administrative Law, Behavioral Law and Economics, Civil Procedure, Constitutional Law, Consumer Protection Law, Courts, Evidence Law, Law Rev (UCLA) Print This Post No Comments
posted by Stanford Law Review
Volume 64 • Issue 5 • May 2012
Securities Class Actions Against Foreign Issuers
How Much Should Judges Be Paid?
June 19, 2012 at 1:37 am Posted in: Administrative Law, Anonymity, Behavioral Law and Economics, Civil Rights, Courts, Disability Law, Economic Analysis of Law, Employment Law, Financial Institutions, Law Rev (Stanford), Law Rev Contents Print This Post No Comments
posted by Peter Swire
At the recent Security and Human Behavior conference, I got into a conversation that highlighted perhaps my favorite legal book ever, Arthur Leff’s “Swindling and Selling.” Although it is out of print, one measure of its wonderfulness is that used copies sell now for $125. Then, in my class this week on The Ethics of Washington Lawyering (yes, it’s a fun title), I realized that a key insight from Leff’s book applies to two other areas – what is allowed in campaign finance and what counts as extortion in political office.
Swindling/selling. The insight I always remember from Leff is to look at the definition of swindling: “Alice sells something to Bob that Bob thinks has value.” Here is the definition of selling: “Alice sells something to Bob that Bob thinks has value.” See? The exchange is identical – Bob hands Alice money. The difference is sociological (what society values) and economic (can Bob resell the item). But the structure of the transaction is the same.
Bribing/contributing. So here is a bribe: “Alice gives Senator Bob $10,000 and Bob later does things that benefit Alice, such as a tax break.” Here is a campaign contribution: “Alice gives Senator Bob $10,000 and Bob later does things that benefit Alice, such as a tax break.” Again, the structure of the transaction is identical. There are two likely differences: (1) to prove the bribe, the prosecutor has to show that Bob did the later action because of the $10,000; and (2) Alice is probably careful enough to give the money to Bob’s campaign, and not to him personally.
Extorting/taxing. Here is the classic political extortion: “Alice hires Bob, and Bob has to hand back ten percent of his salary to Alice each year.” Here is how it works when a federal or state government hires someone: “Alice hires Bob, and Bob has to hand back ten percent of his salary to Alice each year.” The structure of the transaction is the same – Bob keeps 90% of the salary and gives 10% to Alice. The difference here? Like the previous example, the existence of bureaucracy turns the bad thing (bribing or extorting) into the acceptable thing (contributing/taxing). In the modern government, Alice hires Bob, and Bob sends the payment to the IRS. The 10% does not go to Alice’s personal use, but the payment on Bob’s side may feel much the same.
For each of these, drawing the legal distinction will be really hard because the structure of the transaction is identical for the lawful thing (selling, contributing, taxing) and for the criminal thing (swindling, bribing, extorting). Skeptics can see every transaction as the latter, and there is no objective way to prove that the transaction is actually legitimate.
I am wondering, did people know this already? Are there citations to previous works that explain all of this? Or, perhaps, is this a simple framework for describing things that sheds some light and merits further discussion?
posted by Gerard Magliocca
A public official may not appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official.
This anti-corruption statute is reasonable enough, but the plain language also applies to the President. In other words, John F. Kennedy could not have appointed Robert Kennedy as Attorney General if this provision had existed in 1961. (The statute was enacted in 1967, probably in response to RFK’s nomination.)
I have serious doubts that Section 3110 is constitutional as applied to a President. First, as far as I can tell, this is the only statutory limit on the President’s authority to choose his political appointees. Separation-of-powers would suggest that Congress cannot intrude so bluntly into his discretion to choose close advisors. Second, if the position is subject to Senate confirmation, that represents an adequate check on executive excess. Third, presidents would take a significant political hit if they abused their appointment authority to help out friends and relatives. (BTW, what does relative mean? Any relation? Only a spouse, child, or sibling?)
posted by Peter Swire
Yesterday I gave a presentation on “The Right to Data Portability: Privacy and Antitrust Analysis” at a conference at the George Mason Law School. In an earlier post here, I asked whether the proposed EU right to data portability violates antitrust law.
I think the presentation helped sharpen the antitrust concern. The presentation first develops the intuition that consumers should want a right to data portability (RDP), which is proposed in Article 18 of the EU Data Protection Regulation. RDP seems attractive, at least initially, because it might prevent consumers getting locked in to a software platform, and because it advances the existing EU right of access to one’s own data.
Turning to antitrust law, I asked how antitrust law would consider a rule that, say, prohibits an operating system from being integrated with software for a browser. We saw those facts, of course, in the Microsoft case decided by the DC Circuit over a decade ago. Plaintiffs asserted an illegal “tying” arrangement between Windows and IE. The court rejected a per se rule against tying of software, because integration of software can have many benefits and innovation in software relies on developers finding new ways to put things together. The court instead held that the rule of reason applies.
RDP, however, amounts to a per se rule against tying of software. Suppose a social network offers a networking service and integrates that with software that has various features for exporting or not exporting data in various formats. We have the tying product (social network) and the tied product (module for export or not of data). US antitrust law has rejected a per se rule here. The EU proposed regulation essentially adopts a per se rule against that sort of tying arrangement.
Modern US and EU antitrust law seek to enhance “consumer welfare.” If the Microsoft case is correct, then a per se rule of the sort in the Regulation quite plausibly reduces consumer welfare. There may be other reasons to adopt RDP, as discussed in the slides (and I hope in my future writing). RDP might advance human rights to access. It might enhance openness more generally on the Internet. But it quite possibly reduces consumer welfare, and that deserves careful attention.
May 17, 2012 at 3:56 pm Tags: Antitrust, Privacy, right to data portability Posted in: Administrative Law, Antitrust, Cyberlaw, Economic Analysis of Law, Privacy (Consumer Privacy), Web 2.0 Print This Post No Comments
posted by UCLA Law Review
Volume 59, Issue 4 (April 2012)
|Liability Holding Companies||Anat R. Admati, Peter Conti-Brown & Paul Pfleiderer||852|
|Congress in Court||Amanda Frost||914|
posted by Barbara A. Cherry
Because the framing of issues is so critical to how policy debates are conducted and policy outcomes are ultimately chosen, Brett’s analysis contributes to more balanced discussion within policy debates related to governance of infrastructures. Brett’s book emphasizes the functional role both of infrastructure resources to society and of commons as a resource management strategy, providing important insights for considering appropriate governance of infrastructure resources. Its analytical strength stems from development of a typology of different infrastructures “based on the types of systems dependent on the infrastructural resource and the distribution of productive activities it facilitates” (p. 61), which is then used to understand the importance of (what Brett describes as) demand-side characteristics of various types of infrastructures. This demand-side functional approach is contrasted with the supply-side approach that has tended to dominate the focus of policy debates related to governance of infrastructures.
To understand Brett’s analysis, it is critical to understand the definitions of component terms and certain economic and legal concepts upon which his analysis is based. For this reason, one has to patiently work their way through substantial portions of the book that lay the foundation for understanding how his typology contributes to understanding commons management (a form of nondiscriminatory access rule) to infrastructures both generally and in specific contexts. This is a compliment – not a criticism – of how Brett took on the challenge of carefully constructing analytical arguments, particularly from concepts of law and economics of which readers are likely familiar but perhaps with differing shades of meaning.
However, it is also challenging to accurately incorporate the research of others who are also attempting to contribute towards a more balanced policy debate of governance related to access to infrastructures. In this regard, for me, a weakness in the analysis throughout Brett’s book is some inaccuracies (or insufficient clarity) as to the functional role of various bodies of law that have developed to address access problems in varying contexts. For example, discussion of common carriage (see p. 218) conflates origins of the common law of common carriage and public utilities. The origins of common carriage obligations are based on duties under tort law; and it is public utility law, not common carriage, that developed in part from laws of franchise and monopoly. But because some infrastructures – such as railroads, telegraphy and telephony – are both common carriers and public utilities, the distinctive functional roles of the two bodies of law have come to be conflated and misunderstood. This conflation, in turn, has tended to mislead discourse related to many deregulatory telecommunications policies, including network neutrality.
Therefore, in my view, the contribution of Brett’s work towards a more balanced policy discussion of governance of infrastructures would be further strengthened by juxtaposition of his functional approach to infrastructure resources with a more carefully delineated (and accurate), functional approach to the various bodies of law that have developed thus far to address varying forms of infrastructure access problems.
posted by Brett Frischmann
I am incredibly grateful to Danielle, Deven, and Frank for putting this symposium together, to Concurring Opinions for hosting, and to all of the participants for their time and engagement. It is an incredible honor to have my book discussed by such an esteemed group of experts.
Shared infrastructures shape our lives, our relationships with each other, the opportunities we enjoy, and the environment we share. Think for a moment about the basic supporting infrastructures that you rely on daily. Some obvious examples are roads, the Internet, water systems, and the electric power grid, to name just a few. In fact, there are many less obvious examples, such as our shared languages, legal institutions, ideas, and even the atmosphere. We depend heavily on shared infrastructures, yet it is difficult to appreciate how much these resources contribute to our lives because infrastructures are complex and the benefits provided are typically indirect.
The book devotes much-needed attention to understanding how society benefits from infrastructure resources and how management decisions affect a wide variety of private and public interests. It links infrastructure, a particular set of resources defined in terms of the manner in which they create value, with commons, a resource management principle by which a resource is shared within a community.
Infrastructure commons are ubiquitous and essential to our social and economic systems. Yet we take them for granted, and frankly, we are paying the price for our lack of vision and understanding. Our shared infrastructures—the lifeblood of our economy and modern society—are crumbling. We need a more systematic, long-term vision that better accounts for how infrastructure commons contribute to social welfare.
In this book, I try to provide such a vision. The first half of the book is general and not focused on any particular infrastructure resource. It cuts across different resource systems and develops a framework for understanding societal demand for infrastructure resources and the advantages and disadvantages of commons management (by which I mean, managing the infrastructure resource in manner that does not discriminate based on the identity of the user or use). The second half of the book applies the theoretical framework to different types of infrastructure—e.g., transportation, communications, environmental, and intellectual resources—and examines different institutional regimes that implement commons management. It then wades deeply into the contentious “network neutrality” debate and ends with a brief discussion of some other modern debates.
Throughout, I raise a host of ideas and arguments that probably deserve/require more sustained attention, but at 436 pages, I had to exercise some restraint, right? Many of the book’s ideas and arguments are bound to be controversial, and I hope some will inspire others. I look forward to your comments, criticisms, and questions.
April 24, 2012 at 3:05 pm Posted in: Administrative Law, Antitrust, Bright Ideas, Cyberlaw, Economic Analysis of Law, First Amendment, Google & Search Engines, Infrastructure Symposium, Innovation, Intellectual Property, Legal Theory, Media Law, Property Law, Technology, Uncategorized Print This Post No Comments
posted by Peter Swire
Along with a lot of other privacy folks, I have a lot of concerns about the cybersecurity legislation moving through Congress. I had an op-ed in The Hill yesterday going through some of the concerns, notably the problems with the over broad ”information sharing” provisions.
Writing the op-ed, though, prompted me to highlight one positive step that should happen in the course of the cybersecurity debate. The Privacy and Civil Liberties Oversight Board was designed in large part to address information sharing. This past Wednesday, the Senate Judiciary Committee had the hearing to consider the bipartisan slate of five nominees.
Here’s the point. The debate on CISPA and other cybersecurity legislation has highlighted all the information sharing that is going on already and that may be going on in the near future. The PCLOB is the institution designed to oversee problems with information sharing. So let’s confirm the nominees and get the PCLOB up and running as soon as possible.
The quality of the nominees is very high. David Medine, nominated to be Chair, helped develop the FTC’s privacy approach in the 1990′s and has worked on privacy compliance since, so he knows what should be done and what is doable. Jim Dempsey has been at the Center of Democracy and Technology for over 15 years, and is a world-class expert on government, privacy, and civil liberties. Pat Wald is the former Chief Judge of the DC Circuit. Her remarkably distinguished career includes major experience on international human rights issues. I don’t have experience with the other two nominees, but the hearing exposed no red flags for any of them.
The debates about cybersecurity legislation show the centrality of information sharing to how government will respond to cyber-threats. So we should have the institution in place to make sure that the information sharing is done in a lawful and sensible way, to be effective and also to protect privacy and civil liberties.
April 21, 2012 at 5:02 pm Tags: CISPA, civil liberties, cybersecurity Posted in: Administrative Law, Cyber Civil Rights, Cyberlaw, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security) Print This Post One Comment
posted by Peter Swire
The Maryland General Assembly has just become the first state legislature to vote to ban employers’ from requiring employees to reveal their Facebook or other social network passwords. Other states are considering similar bills, and Senators Schumer and Blumenthal are pushing the idea in Congress.
As often happens in privacy debates, there are concerns from industry that well-intentioned laws will have dire consequences — Really Dangerous People might get into positions of trust, so we need to permit employers to force their employees to open up their Facebook accounts to their bosses.
Also, as often happens in privacy debates, people breathlessly debate the issue as though it is completely new and unprecedented.
We do have a precedent, however. In 1988, Congress enacted the Employee Polygraph Protection Act (EPPA). The EPPA says that employers don’t get to know everything an employee is thinking. Polygraphs are flat-out banned in almost all employment settings. The law was signed by President Reagan, after Secretary of State George Shultz threatened to resign rather than take one.
The idea behind the EPPA and the new Maryland bill are similar — employees have a private realm where they can think and be a person, outside of the surveillance of the employer. Imagine a polygraph if your boss asked what you really thought about him/her. Imagine your social networking activities if your boss got to read your private messages and impromptu thoughts.
For private sector employers, the EPPA has quite narrow exceptions, such as for counter-intelligence, armored car personnel, and employees who are suspected of causing economic loss. That list of exceptions can be a useful baseline to consider for social network passwords.
In summary — longstanding and bipartisan support to block this sort of intrusion into employees’ private lives. The social networks themselves support this ban on having employers require the passwords. I think we should, too.
April 11, 2012 at 1:14 pm Tags: Facebook, Maryland, passwords, polygraph Posted in: Administrative Law, Cyber Civil Rights, Cyberlaw, Privacy, Privacy (Consumer Privacy), Social Network Websites Print This Post 13 Comments
posted by Janai S. Nelson
I am delighted to join the blogging community of Concurring Opinions for the month of April. Thanks to Solangel Maldonado and Daniel Solove for their gracious invitation.
Denying voting rights to citizens with felony convictions has gotten a bad rap. The reason it’s not worse is because that rap is based on only half the story. Anyone familiar with the complexion of our prison population knows that felon disfranchisement laws extend striking racial disparities to the electoral arena. Less known, however, is that citizens with felony convictions are excluded from the electorate, in part, because of perceptions about how this demographic might vote or otherwise affect the marketplace of ideas. In other words, citizens with felony convictions are denied the right to vote because of their suspected viewpoint.
Picking up on this point earlier this year, Michael Dorf highlighted a dispute between Republican presidential candidates Mitt Romney and Rick Santorum about which of them held the most conservative position concerning the voting rights of citizens convicted of a felony. Inventing a criminal persona named Snake, Dorf queried what issues might provoke such a person to vote: Lower protections for private property or public safety? Redistribution of public resources from law enforcement to education, health, or recreation? Elimination of certain criminal laws? I can fathom many other lawful motivations for voting. However, as Dorf points out (and decidedly rejects), the underlying objection to allowing citizens with felony convictions to vote is based on an assumption that, if they could vote, they would express self-serving and illegitimate interests. In other words, the viewpoint that felons would express through voting has no place in the electoral process.
I have always assumed that my viewpoint was precisely what I and other voters are supposed to express at the ballot box. Whether that viewpoint is shared, accepted, condoned or vehemently disdained and abhorred by others is irrelevant to the right to vote. Not so for citizens with felony convictions. This group of citizens is presumed to possess deviant views that justify their exclusion from the electorate and the denial of a fundamental right. Read the rest of this post »
April 3, 2012 at 9:37 am Tags: Constitutional Law, Election law, equal protection, felon disfranchisement, First Amendment, prisoner's rights, right to vote, voting qualifications, voting rights Posted in: Administrative Law, Civil Rights, Constitutional Law, Courts, Culture, Current Events, Election Law, Law and Humanities, Race, Uncategorized Print This Post 14 Comments
posted by Danielle Citron
Last week, we had an engrossing discussion of Julie Cohen’s Configuring The Networked Self, which embraces three key principles for protecting the structural conditions of human flourishing, including transparency of networked architecture which routes, shapes, and determines the collection, use, and flow of information. Harlan Yu of Princeton’s Center for Information Technology Policy and David Robinson of the Yale Information Society Project have done important work puzzling through the question of transparency, and the related concerns of privacy and civil engagement, in “open government” efforts. Their conclusion:
Separating technological from political “openness”—separating the ideal of adaptable data from that of transparent politics—will yield benefits for all sides. New technologies, cut free from the heavy political burdens they have recently been made to carry, will be free to assume their widely varied natural roles, spreading throughout government in nimble and unpredictable ways, and helping governments at every level pursue all kinds of objectives. The Internet will still help, where it can, to make regimes more transparent.
At the same time, a clearer focus on transparency will give political reformers, who will no longer be shoehorned together with technologists, more freedom to focus on the political questions that motivate them in the first place. From their perspective, technology will do what it always does when working well: fade into the background and make room for human concerns.
When I spoke at Princeton about my work on Technological Due Process, Robinson and Yu helped me puzzle through my privacy concerns about Government 2.0, which I then developed in “Fulfilling Government 2.0′s Promise with Robust Privacy Protections,” 78 Geo. Wash. L. Rev. 822 (2010). They are exciting thinkers, and their newest piece helps us appreciate and conceptualize calls for transparency and open government and the appropriate role technologists and technology can and should play.
posted by Danielle Citron
Thanks so much to everyone participating in the LTAAA symposium: what a terrific discussion. Given my work on Technological Due Process, I could not help but think about troubled public benefits system in Colorado known as CBMS. Ever since 2004, the system has been riddled with delays, faulty law embedded in code, and system crashes. As the Denver Post reports, the state has a $44 million contract with Deloitte consultants to overhaul the system–its initial installation cost $223 million with other private contractors. CBMS is a mess, with thousands of overpayments, underpayments, delayed benefits, faulty notices, and erroneous eligibility determinations. And worse. In the summer of 2009, 9-year-old Zumante Lucero died after a pharmacy — depending upon the CBMS system — wouldn’t fill his asthma prescription despite proof the family qualified for Medicaid help. In February 2011, CBMS failed eight different tests in a federal review, with auditors pointing to new “serious” problems while saying past failures are “nearly the same” despite five years of fixes. The federal Centers for Medicare and Medicaid Services (CMS), which provides billions of dollars each year for state medical aid, said Colorado risks losing federal money for programs if it doesn’t make changes from the audit. All of this brings to mind whether a legal theory of automated personhood moves this ball forward. Does it help us sort through the mess of opacity, insufficient notice, and troubling and likely unintended delegation of lawmaking to computer programmers? Something for me to chew on as the discussion proceeds.
Image: Wikimedia Commons
February 15, 2012 at 5:55 pm Tags: A Legal Theory for Autonomous Artificial Agents, artificial agents Posted in: Administrative Law, Architecture, Symposium (Autonomous Artificial Agents) Print This Post 3 Comments