Archive for the ‘Politics’ Category
Stanford Law Review Online: The Dirty Little Secret of (Estate) Tax Reform
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Edward McCaffery entitled The Dirty Little Secret of (Estate) Tax Reform. Professor McCaffery argues that Congress encourages and perpetuates the cycle of special interest spending on the tax reform issue:
Spoiler alert! The dirty little secret of estate tax reform is the same as the dirty little secret about many things that transpire, or fail to transpire, inside the Beltway: it’s all about money. But no, it is not quite what you think. The secret is not that special interests give boatloads of money to politicians. Of course they do. That may well be dirty, but it is hardly secret. The dirty little secret I come to lay bare is that Congress likes it this way. Congress wants there to be special interests, small groups with high stakes in what it does or does not do. These are necessary conditions for Congress to get what it needs: money, for itself and its campaigns. Although the near certainty of getting re-elected could point to the contrary, elected officials raise more money than ever. Tax reform in general, and estate tax repeal or reform in particular, illustrate the point: Congress has shown an appetite for keeping the issue of estate tax repeal alive through a never-ending series of brinksmanship votes; it never does anything fundamental or, for that matter, principled, but rakes in cash year in and year out for just considering the matter.
He concludes:
On the estate tax, then, it is easy to predict what will happen: not much. We will not see a return to year 2000 levels, and we will not see repeal. The one cautionary note I must add is that, going back to the game, something has to happen sometime, or the parties paying Congress and lobbyists will wise up and stop paying to play. But that has not kicked in yet, decades into the story, and it may not kick in until more people read this Essay, and start to watch the watchdogs. Fat chance of that happening, too, I suppose. In the meantime, without a meaningful wealth-transfer tax (the gift and estate taxes raise a very minimal amount of revenue and may even lose money when the income tax savings of standard estate-planning techniques, such as charitable and life insurance trusts, are taken into account), one fundamental insight of the special interest model continue to obtain. Big groups with small stakes—that is, most of us—continue to pay through increasingly burdensome middle class taxes for most of what government does, including stringing along those “lucky” enough to be members of a special interest group. It’s a variant of a very old story, and it is time to stop keeping it secret.
Read the full article, The Dirty Little Secret of (Estate) Tax Reform by Edward McCaffery, at the Stanford Law Review Online.
August 14, 2012 at 10:00 am
Tags: Congress, death tax, estate tax, Politics, special interests, tax, tax law, taxes
Posted in: Current Events, Empirical Analysis of Law, Law Rev (Stanford), Politics, Tax, Uncategorized
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Justice Sutherland on Conservatism
posted by Gerard Magliocca
I’m reading the only (and pretty terrible) biography of Justice George Sutherland, which was written in the 1950s. Sutherland was a gifted writer, and in this Olympic season I thought I’d reproduce this quote describing his Burkean approach to law:
“Among the games of the ancient Greeks there was a running match in which each participant carried a lighted torch. The prize was awarded not to that one who crossed the line first, but to him who crossed the line first with his torch still burning. It is important that we should advance, but the vital thing is not that we should simply get somewhere–anywhere–quickly, but that we should arrive at a definite goal with the torch of sanity and safety still ablaze.”
August 2, 2012 at 7:56 am
Posted in: Politics
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Defining Gridlock
posted by Gerard Magliocca
After playing with several ideas on gridlock for a symposium that I’m participating in this Fall, I’ve settled on more of a “first-principles” approach to the problem. So let’s start with this: What do people mean by gridlock? I think that there are four possibilities.
1. There is a national consensus about what to do but our dysfunctional political institutions prevent that consensus from being enacted.
2. Party discipline prevents elected officials in Washington from reaching necessary compromises and then persuading voters to accept those agreements as a consensus.
3. Our political structures are preventing a national consensus from forming.
4. There is no consensus in the country.
My view is that the real problem is #4. #1 is an issue (mostly about the filibuster) but only at the margins. Trying to change #2 is probably futile, assuming that you even believe that we suffer from too much party discipline. #3 is also an issue (take gerrymandering or campaign finance regulation), but an overrated one.
Of course, if there just is no consensus in the country on major issues, there is nothing that clever lawyers can do about that without violating some basic principles of representation. The only solution is to persuade voters. It does happen–consider how public opinion has changed on a variety of topics. It just takes time and effort. Anyway, I think that will be the theme of my paper.
July 25, 2012 at 8:52 am
Posted in: Politics
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Has the Obama Justice Department Reinvigorated Antitrust Enforcement?
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Daniel Crane entitled Has the Obama Justice Department Reinvigorated Antitrust Enforcement?. Professor Crane assesses antitrust enforcement in the Obama and Bush administrations using several empirical measures:
The Justice Department’s recently filed antitrust case against Apple and several major book publishers over e-book pricing, which comes on the heels of the Justice Department’s successful challenge to the proposed merger of AT&T and T-Mobile, has contributed to the perception that the Obama Administration is reinvigorating antitrust enforcement from its recent stupor. As a candidate for President, then-Senator Obama criticized the Bush Administration as having the “weakest record of antitrust enforcement of any administration in the last half century” and vowed to step up enforcement. Early in the Obama Administration, Justice Department officials furthered this perception by withdrawing the Bush Administration’s report on monopolization offenses and suggesting that the fault for the financial crisis might lie at the feet of lax antitrust enforcement. Even before the AT&T and Apple cases, media reports frequently suggested that antitrust enforcement is significantly tougher under President Obama.
For better or worse, the Administration’s enforcement record does not bear out this impression. With only a few exceptions, current enforcement looks much like enforcement under the Bush Administration. Antitrust enforcement in the modern era is a technical and technocratic enterprise. Although there will be tweaks at the margin from administration to administration, the core of antitrust enforcement has been practiced in a relatively nonideological and nonpartisan way over the last several decades.
He concludes:
Two points stressed earlier should be stressed again: (1) statistical measures of antitrust enforcement are an incomplete way of understanding the overall level of enforcement; and (2) to say that the Obama Administration’s record of enforcement is not materially different than the Bush Administration’s is not to chide Obama for weak enforcement. Rather, it is to debunk the claims that antitrust enforcement is strongly dependent on politics.
This examination of the “reinvigoration” claim should not be understood as acceptance that tougher antitrust enforcement is always better. Certainly, there have been occasions when an administration would be wise to ease off the gas pedal. At present, however, there is a high degree of continuity from one administration to the next.
Read the full article, Has the Obama Justice Department Reinvigorated Antitrust Enforcement? by Daniel Crane, at the Stanford Law Review Online.
July 18, 2012 at 10:15 am
Tags: Antitrust, Corporate Law, law enforcement, Obama administration
Posted in: Antitrust, Empirical Analysis of Law, Law Rev (Stanford), Politics
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Stanford Law Review, 64.6 (2012)
posted by Stanford Law Review
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Volume 64 • Issue 6 • June 2012 |
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Articles Does Shareholder Proxy Access Damage Share Value in Small Publicly Traded Companies? Notes The American Jury: Book Review |
July 3, 2012 at 5:57 pm
Posted in: Book Reviews, Constitutional Law, Corporate Law, Courts, Current Events, Immigration, Intellectual Property, Law Rev (Stanford), Law Rev Contents, LGBT, Politics, Securities
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Stanford Law Review Online: The Money Crisis
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by former U.S. Senator Russ Feingold entitled The Money Crisis: How Citizens United Undermines Our Elections and the Supreme Court. Senator Feingold explains how the Supreme Court decision in Citizens United threatens the integrity of our political process:
As we draw closer to the November election, it becomes clearer that this year’s contest, thanks to the Supreme Court’s 2010 Citizens United decision, will be financially dominated by big money, including, whether directly or indirectly, big money from the treasuries of corporations of all kinds. Without a significant change in how our campaign finance system regulates the influence of corporations, the American election process, and even the Supreme Court itself, face a more durable, long-term crisis of legitimacy.
[In Citizens United,] the Court was presented with a narrow question from petitioners: should the McCain-Feingold provision on electioneering communications (either thirty days before a primary election or sixty days before a general election) apply to this movie about Hillary Clinton? The movie, of course, was not running as a normal television commercial; instead, it was intended as a long-form, “on demand” special.
Yet Chief Justice Roberts clearly wanted a much broader, sweeping outcome, and it is now clear that he manipulated the Court’s process to achieve that result. Once only a question about an “on-demand” movie, the majority in Citizens United ruled that corporations and unions could now use their general treasuries to influence elections directly. Despite giving strenuous assurances during his confirmation hearing to respect settled law, Roberts now stands responsible for the most egregious upending of judicial precedent in a generation. As now-retired Justice John Paul Stevens wrote in his dissent to the majority in Citizens United: “[F]ive Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”
He concludes:
The Court has a clear opportunity. A new challenge from Montana could allow the Supreme Court to reconsider its decision in Citizens United, and at least two justices have hinted that the 2010 ruling is untenable. In granting a stay of a Montana Supreme Court decision upholding that state’s anticorruption laws, Justice Ginsburg, writing with Justice Breyer, found the pulse of the chaos Citizens United has wrought: “Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Commission, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’”
Justice Ginsburg is correct. Today’s framework for corruption cannot stand.
Read the full article, The Money Crisis: How Citizens United Undermines Our Elections and the Supreme Court by Russ Feingold, at the Stanford Law Review Online.
Note: corrected for typos
June 14, 2012 at 7:30 am
Tags: campaign finance, citizens united, Politics, Supreme Court
Posted in: Advertising, Corruption, Jurisprudence, Law Rev (Stanford), Politics
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Consensus and the Constitution
posted by David Orentlicher
Last week, I mentioned my proposal for a bipartisan executive as a way to defuse partisan conflict in Washington. Earlier this week, in his Ideas column in the Boston Globe, Leon Neyfakh considered the possibility of a bipartisan executive, as well as other remedies that have been proposed for the dysfunction in our national government, including Sandy Levinson’s “Undemocratic Constitution” and the “unbundled executive” of Christopher Berry and Jacob Gersen.
As Neyfakh observes, whether or not we adopt any of these proposals, our consideration of them may lead us to reforms that can make for a more effective political system. With my book, I want people to pay more attention to the connection between dysfunction in Washington and the framers’ decision in favor of a single rather than plural executive.
A bipartisan executive not only could address the problem of partisan conflict, it also would respond to the problem of the imperial presidency. The failure of external checks on presidential power makes an internal check desirable. The framers weakened legislative power by dividing it and requiring it to be shared by a House and Senate. We can rebalance power between the executive and legislative branches by dividing the executive power and requiring that it be shared.
June 13, 2012 at 9:41 am
Posted in: Constitutional Law, Politics
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Gridlock as a Bilateral Monopoly Problem
posted by Gerard Magliocca
I’m still tossing around ideas for the upcoming gridlock conference at Notre Dame. One is that gridlock is the product of centralized power within Congress and the White House. Accordingly, the solution to gridlock lies in devolving power within the branches.
Here’s how I reach these conclusions. One source of gridlock (or high transaction costs for legislation) is a plethora of veto points. In other words, if a large number of institutions or factions must agree to get something done, accomplishment is unlikely. Another possibility, though, is that you could have a bilateral monopoly that leads to crippling transaction costs. When there are only two parties to a negotiation, deadlock often ensues.
Bilateral monopoly is a good description of discussions between a President, who leads united Executive Branch, and one or both houses of Congress when the other party has a majority. This wasn’t always the case. The political parties were once more heterogenous, and as a result party leaders were not the only important players. Committee chairs or powerful moderates in Congress were often the crucial votes. Members of the Cabinet also used to have more independence (either because they represented a rival faction of the President’s party or because that was just the practice). In recent decades, though, presidents have concentrated power in the West Wing and congressional leaders have pulled off something similar in the Senate and House. Was this a positive change?
We cannot make the parties less homogenous (or, at least, that’s pretty hard), but we can alter the rules within the branches to weaken their respective leaderships. Doing so would open the door to more compromise and action, assuming that’s what we want.
May 29, 2012 at 5:56 pm
Posted in: Politics
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Removing Prosecutors from Boardrooms or from Politics
posted by Lawrence Cunningham
Debate has intensified concerning the role of criminal liability for organizations such as corporations, under the guise of having “prosecutors in the boardroom.” Issues include how prosecutors interact with boards in ferreting out wrongdoing and targeting employees. Topics extend to whether the terms of deferred prosecution agreements should include particular corporate governance changes.
Heard about less often in this debate is the role of politics in prosecutorial decision-making. True, the relative appeal of “prosecutors in the boardroom” may not depend on whether any given prosecutor’s incentives include aspirations for higher office. But there are many instances in which it is clear that prosecutorial political ambitions are tied to prosecutorial excesses: Eliot Spitzer is perhaps the poster child for this problem.
As a result, when scholars of corporate governance or corporate criminal liability debate the role of prosecutors in the boardroom, it may be worth paying specific attention to tools that can reduce the role of politics in prosecutorial conduct. After all, a sense of proportion can be promoted by neutralizing the political incentives prosecutors sometimes have.
States with elected attorneys general—the vast majority today, including Spitzer’s New York—could follow the lead of the few with laws discouraging prosecutors from engaging in political activity. The chief alternatives are barring an attorney general from running for higher office while serving as the state’s chief prosecutor (called “resign-to-run” laws) or requiring an attorney general to wait two to four years after leaving that office to run for a higher one (a “cooling-off period” approach).
Opponents of such restrictions object that these impair the officials’ rights of free speech and impinge on democratic traditions allowing the electorate to choose from among a broad field of candidates. But resign-to-run laws meet those objections, putting the prosecutor to a simple choice, and even the cooling-off period is a modest eligibility limitation, not adding qualifications to run for office. The restrictions are common in codes of judicial ethics which have been upheld against constitutional challenge; they are modest compared to those contained in more sweeping federal legislation such as the Hatch Act, which prohibits federal and state employees from running for elected office.
Are these points valid? Should corporate/criminal law scholars look at the role of politics in prosecutions; is that role a significant factor in the risk of prosecutorial excess; are such laws helpful to address that factor; are the laws legitimate?
May 23, 2012 at 8:14 am
Posted in: Corporate Law, Criminal Law, Politics
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Why Do We Lack the Infrastructure that We Need?
posted by Frank Pasquale
Brett Frischmann’s book is a summa of infrastructural theory. Its tone and content approach the catechetical, patiently instructing the reader in each dimension and application of his work. It applies classic economic theory of transport networks and environmental resources to information age dilemmas. It thus takes its place among the liberal “big idea” books of today’s leading Internet scholars (including Benkler’s Wealth of Networks, van Schewick’s Internet Architecture and Innovation, Wu’s Master Switch, Zittrain’s Future of the Internet,and Lessig’s Code.) So careful is its drafting, and so myriad its qualifications and nuances, that is likely consistent with 95% of the policies (and perhaps theories) endorsed in those compelling books. And yet the US almost certainly won’t make the necessary investments in roads, basic research, and other general-purpose inputs that Frischmann promotes. Why is that?
Lawrence Lessig’s career suggests an answer. He presciently “re-marked” on Frischmann’s project in a Minnesota Law Review article. But after a decade at the cutting edge of Internet law, Lessig switched direction entirely. He committed himself to cleaning up the Augean stables of influence on Capitol Hill. He knew that even best academic research would have no practical impact in a corrupted political sphere.
Were Lessig to succeed, I have little doubt that the political system would be more open to ideas like Frischmann’s. Consider, for instance, the moral imperative and economic good sense of public investment in an era of insufficient aggregate demand and near-record-low interest rates:
The cost of borrowing to fund infrastructure projects, [as Economic Policy Institute analyst Ethan Pollack] points out, has hit record “low levels.” And the private construction companies that do infrastructure work remain desperate for contracts. They’re asking for less to do infrastructure work. “In other words,” says Pollack, “we’re getting much more bang for our buck than we usually do.”
And if we spend those bucks on infrastructure, we would also be creating badly needed jobs that could help juice up the economy. Notes Pollack: “This isn’t win-win, this is win-win-win-win.” Yet our political system seems totally incapable of seizing this “win-win-win-win” moment. What explains this incapacity? Center for American Progress analysts David Madland and Nick Bunker, see inequality as the prime culprit.
April 26, 2012 at 8:17 am
Posted in: Economic Analysis of Law, Infrastructure Symposium, Innovation, Law and Inequality, Philosophy of Social Science, Political Economy, Politics, Symposium (Infrastructure), Technology
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Brett Frischmann’s Contribution to Policy Debates Regarding Governance of Infrastructures
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.
April 25, 2012 at 2:57 pm
Posted in: Administrative Law, Economic Analysis of Law, Infrastructure Symposium, Politics, Symposium (Infrastructure)
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Public Choice: More than a Mere Footnote in Infrastructure Policy Discussions
posted by Adam Thierer
[My thanks to Deven Desai, Frank Pasquale, and all the folks here at Concurring Opinions for inviting me to contribute to this symposium on infrastructure policy and Brett's important new book on the topic. -- AT]
As a textbook, there’s a lot to like about Brett Frischmann’s new book, Infrastructure: The Social Value of Shared Resources. He offers a comprehensive and highly accessible survey of the key issues and concepts, and outlines much of the relevant literature in the field. The student of infrastructure policy will benefit from Frischmann’s excellent treatment of public goods and social goods; spillovers and externalities; proprietary versus commons systems management; common carriage policies and open access regulation; congestion pricing strategies; and the debate over price discrimination for infrastructural resources. Frischmann’s book deserves a spot on your shelf whether you are just beginning your investigation of these issues or if you have covered them your entire life.
As a polemic that hopes to persuade the reader that “society is better off sharing infrastructure openly,” however, Frischmann’s book is less convincing. It certainly isn’t because I can’t find examples of some resources that might need to be managed as a commons or a collective resource. But there’s a question of balance and I believe Frischmann too often strikes it in favor of commons-based management based on the rationale that “citizens must learn to appreciate the social value of shared infrastructure” (p. xi), without fully appreciating the costs and complexities of making that the paramount value in this debate. Read the rest of this post »
April 25, 2012 at 10:03 am
Tags: Buchanan, budgets, capture, commons, demand-side, Flyvbjerg, free lunch, incentives, infrastructure, investment, privatization, public choice, spending, supply-side, taxpayers
Posted in: Economic Analysis of Law, Infrastructure Symposium, Politics, Symposium (Infrastructure)
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Stanford Law Review Online: The Dead Past
posted by Stanford Law Review
The Stanford Law Review Online has just published Chief Judge Alex Kozinski’s Keynote from our 2012 Symposium, The Dead Past. Chief Judge Kozinski discusses the privacy implications of our increasingly digitized world and our role as a society in shaping the law:
I must start out with a confession: When it comes to technology, I’m what you might call a troglodyte. I don’t own a Kindle or an iPad or an iPhone or a Blackberry. I don’t have an avatar or even voicemail. I don’t text.
I don’t reject technology altogether: I do have a typewriter—an electric one, with a ball. But I do think that technology can be a dangerous thing because it changes the way we do things and the way we think about things; and sometimes it changes our own perception of who we are and what we’re about. And by the time we realize it, we find we’re living in a different world with different assumptions about such fundamental things as property and privacy and dignity. And by then, it’s too late to turn back the clock.
He concludes:
Judges, legislators and law enforcement officials live in the real world. The opinions they write, the legislation they pass, the intrusions they dare engage in—all of these reflect an explicit or implicit judgment about the degree of privacy we can reasonably expect by living in our society. In a world where employers monitor the computer communications of their employees, law enforcement officers find it easy to demand that internet service providers give up information on the web-browsing habits of their subscribers. In a world where people post up-to-the-minute location information through Facebook Places or Foursquare, the police may feel justified in attaching a GPS to your car. In a world where people tweet about their sexual experiences and eager thousands read about them the morning after, it may well be reasonable for law enforcement, in pursuit of terrorists and criminals, to spy with high-powered binoculars through people’s bedroom windows or put concealed cameras in public restrooms. In a world where you can listen to people shouting lurid descriptions of their gall-bladder operations into their cell phones, it may well be reasonable to ask telephone companies or even doctors for access to their customer records. If we the people don’t consider our own privacy terribly valuable, we cannot count on government—with its many legitimate worries about law-breaking and security—to guard it for us.
Which is to say that the concerns that have been raised about the erosion of our right to privacy are, indeed, legitimate, but misdirected. The danger here is not Big Brother; the government, and especially Congress, have been commendably restrained, all things considered. The danger comes from a different source altogether. In the immortal words of Pogo: “We have met the enemy and he is us.”
Read the full article, The Dead Past by Alex Kozinski, at the Stanford Law Review Online.
April 12, 2012 at 1:32 pm
Posted in: Anonymity, Blogging, Constitutional Law, Courts, Culture, Current Events, Cyberlaw, First Amendment, Google & Search Engines, Law Rev (Stanford), Politics, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Science Fiction, Supreme Court, Technology
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Stanford Law Review Online: Animus Thick and Thin
posted by Stanford Law Review
The Stanford Law Review Online recently published an Essay by Nan D. Hunter entitled Animus Thick and Thin: The Broader Impact of the Ninth Circuit’s Decision in Perry v. Brown. Professor Hunter argues that the Perry decision will have a more far-reaching impact than most commentators have suggested, both in defining the role of animus in equal protection analysis and in establishing the courts’ role in checking popular initiatives that deny rights to minorities:
The only problem with this analysis for marriage equality supporters is that, despite the principle that courts should resolve constitutional disputes on the narrowest possible grounds, the “taking away” portion of the rationale strikes some as too outcome driven and transparently invented for the goal of providing the Supreme Court with a plausible rationale for denying certiorari. From this view, the opinion’s political strength will also be its greatest doctrinal weakness.
I disagree on two counts. First, I read the opinion as being far more nuanced than it has been given credit for, and believe that its elaboration of the role of animus in judicial review is an important contribution to equal protection doctrine. Second, critics are missing a deeper point: the greatest political strength of the Perry opinion lies not in the short-term question of whether the Supreme Court will accept review, but in its contribution to the more enduring issue of how courts can balance their role of serving as an antimajoritarian check on populist retaliation against minorities while also preserving the values of popular constitutionalism.
She concludes:
[A]lthough initially the panel opinion in Perry would affect only Proposition 8, its larger contribution may be the creative way that it addresses the persistent, intractable conundrum of America’s countermajoritarian difficulty. The opinion does this in part by taking animus seriously as one of the criteria for heightened rational basis review and in part by creating a modest curb on popularly enacted state constitutional amendments. If the Ninth Circuit grants rehearing en banc, the opinion will be vacated, but one hopes that its contribution to the evolution of equal protection law will endure.
Read the full article, Animus Thick and Thin: The Broader Impact of the Ninth Circuit’s Decision in Perry v. Brown by Nan D. Hunter, at Stanford Law Review Online.
March 21, 2012 at 8:41 pm
Posted in: Civil Rights, Constitutional Law, Courts, Current Events, Jurisprudence, Law Rev (Stanford), LGBT, Politics, Supreme Court
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Recommended Reading: Harlan Yu and David Robinson on The New Ambiguity of “Open Government”
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.
March 16, 2012 at 8:38 am
Posted in: Administrative Law, Cyberlaw, Politics, Privacy, Technology, Web 2.0
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Pakistan Scrubs the Net
posted by Derek Bambauer
Pakistan, which has long censored the Internet, has decided to upgrade its cybersieves. And, like all good bureaucracies, the government has put the initiative out for bid. According to the New York Times, Pakistan wants to spend $10 million on a system that can block up to 50 million URLs concurrently, with minimal effect on network speed. (That’s a lot of Web pages.) Internet censorship is on the march worldwide (and the U.S. is no exception). There are at least three interesting things about Pakistan’s move:
First, the country’s openness about its censorial goals is admirable. Pakistan is informing its citizens, along with the rest of us, that it wants to bowdlerize the Net. And, it is attempting to do so in a way that is more uniform than under its current system, where filtering varies by ISP. I don’t necessarily agree with Pakistan’s choice, but I do like that the country is straightforward with its citizens, who have begun to respond.
Second, the California-based filtering company Websense announced that it will not bid on the contract. That’s fascinating – a tech firm has decided that the public relations damage from helping Pakistan censor the Net is greater than the $10M in revenue it could gain. (Websense argues, of course, that its decision is a principled one. If you believe that, you are probably a member of the Ryan Braun Clean Competition fan club.)
Finally, the state is somewhat vague about what it will censor: it points to pornography, blasphemy, and material that affects national security. The last part is particularly worrisome: the national security trump card is a potent force after 9/11 and its concomitant fallout in Pakistan’s neighborhood, and censorship based on it tends to be secret. There is also real risk that national security interests = interests of the current government. America has an unpleasant history of censoring political dissent based on security worries, and Pakistan is no different.
I’ll be fascinated to see which companies take up Pakistan’s offer to propose…
Cross-posted at Info/Law.
March 8, 2012 at 3:03 pm
Posted in: Architecture, Current Events, Cyber Civil Rights, Cyberlaw, Google and Search Engines, Intellectual Property, Politics, Privacy (National Security), Social Network Websites, Technology, Web 2.0
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Stanford Law Review Online: In Search of Cyber Peace
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Scott J. Shackelford entitled In Search of Cyber Peace: A Response to the Cybersecurity Act of 2012. In the wake of recent events with the group Anonymous and other “hacktivists,” Shackelford discusses the pressing need for improved cybersecurity and explains why the proposed Cybersecurity Act is a step in the right direction–but doesn’t go far enough:
The Cybersecurity Act of 2012, which was recently introduced in the Senate Homeland Security and Governance Affairs Committee, is the latest legislative attempt to enhance the nation’s cybersecurity. If enacted, the bill would grant new powers to the Department of Homeland Security (DHS) to oversee U.S. government cybersecurity, set “cybersecurity performance requirements” for firms operating what DHS deems to be “critical infrastructure,” and create “exchanges” to promote information sharing. In its current form, the bill is a useful step in the right direction but falls short of what is required. Fundamentally the bill misconstrues the scale and complexity of the evolving cyber threat by defining critical infrastructure too narrowly and relying too much on voluntary incentives and risk mitigation strategies. The Act might improve on the status quo, but it will not foster genuine and lasting cybersecurity. Still, it is preferable to the softer alternative SECURE IT Act proposed by senior Republicans.
He concludes:
If we want to change the status quo, accountability and responsibility must be increased throughout the system. Government regulations are a necessary part of that process. But given political realities and the magnitude of the problem, reform must also include relying on the competitive market whenever possible to proactively foster best practices, providing market-based incentives and cyber risk mitigation techniques to firms operating [critical national infrastructure (CNI)], negotiating new international norms, and educating users to avoid becoming victims of social-engineering attacks like phishing. Cybersecurity cannot truly be enhanced without addressing the myriad governance gaps, which include incomplete regulation of CNI; technical vulnerabilities in the physical, logical, and content layers of the Internet; and legal ambiguities ranging from liability for data breaches to the applicability of international law to cyber attacks. One Act cannot accomplish all that—not even close. But being honest about the magnitude of the problems we face would help to begin a national conversation about what needs to happen next.
In 3001: The Final Odyssey, Arthur C. Clarke envisions a future in which humanity had the foresight to rid the world of its worst weapons of mass destruction by placing them in a vault on the moon. A special place in this vault was reserved for the malignant computer viruses that, in Clarke’s speculative fiction, had caused untold damage to humanity over the centuries. Before new cyber attacks do untold damage to our information society, it is in our interest to educate and regulate our way to a steady state of cybersecurity. Part of this process involves broadening the definition of CNI in the Cybersecurity Act and deepening public-private partnerships through more robust information sharing. Science fiction teaches us that our future world can be either a wonderful or a dystopian place. Whether or not the future includes the security and prosperity of cyber peace is up to us—including, for better or worse, the U.S. Congress.
Read the full article, In Search of Cyber Peace: A Response to the Cybersecurity Act of 2012 by Scott J. Shackelford, at the Stanford Law Review Online.
March 8, 2012 at 12:42 pm
Posted in: Cyberlaw, Law Rev (Stanford), Politics, Science Fiction, Technology, Web 2.0
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Why Now? Or One Way to Understand the Importance of Configuring the Networked Self
posted by Deven Desai
Julie Cohen’s Configuring the Networked Self is different and signals that the next era of tech policy is upon us. The explosion of books about the Internet tracks the explosion of, well, the Internet. Could there be a bubble here too? Are most books simply restating and rehashing arguments from years ago? Probably. Cohen’s book, however, points the way to the next questions about not just the Internet, but how we structure the next twenty to forty years of society. She asks that we look at the state of not just networked technology, but the economy, law, and society that has emerged, how we justify it, and what it should look like going forward. Recent work by Barton Beebe, Maggie Chon, Brett Frischmann, Frank Pasquale, Daniel Solove, and Madhavi Sunder, makes me confident that the new era is here and work in it is growing. Rather than staying with the silos of the past fifteen years, this new inquiry looks to how the system works and probes whether society is reaping the benefits at large. Works like Code, The Future of the Internet, and The Wealth of Networks make important contributions to understanding and justifying certain visions of the Internet/Tech society. I believe, however, that the moment for those explorations is waning. Of course the debates regarding IP protection, open Internet, etc. will continue and there are important near-term battles there. The most pressing area for scholarship and society at large is what comes next?
Talk of innovation and what that means is rather staid and redundant. Leave X the way it is or all will cease. No. Stop X or a once shining industry will die (and you won’t get the things you thought you loved). Back and forth the players go. A closer look shows that they are fighting about their piece of the rapid growth pie. No one seems to look at exactly what innovation is at stake (is it breakthrough or tinkering and applying with a major one?), where capital is heading (is it rushing after the heady returns of early stage industries or fueling production and strong, reasonable rates of return), and how the innovation spreads wealth across society (are the benefits starting to reshape so many industries that a second wave of returns and improvements revitalizes older industries such that the middle class grows?). No one, except, Carlotta Perez and her contemporaries. They investigate the Schumpeter model but go further. Perez makes the strong case that after a technology reaches a peak, there is a crash (or two), and then the real action begins. Society must look to regulation and other mechanisms so that the true golden age arrives, one where the tech wealth spreads and production capital is the order of the day. Note that while that happens the next big tech breakthrough is likely lurking in a lab somewhere and waiting to pop out and shift the world once more.
Cohen’s book comes at the peak of the tech revolution roughly started in 1971 with the birth of the microprocessor, and is a vital resource for the turning point at which we are. I suggest that Cohen and the new wave of tech scholars looking to Sen and Nussbaum for a capabilities approach to tech policy and/or questioning a purely market-based analysis of the issues, may be understood as demanding that we get our house in order. When Cohen calls out that privacy and copyright suffer from similar conceptual problems and argues for a new way to see how individuals’ capabilities can be enhanced, she offers a claim about how to turn the tech revolution from benefiting a small, centralized few to improving the lot of the many. Perez admits that each tech cycle has somewhat specific logics and solutions. Cohen’s situated user, her critique of the specific financial system and call for sustainable development, and acknowledgment of the messy nature of culture track Perez’s insights. In each previous revolution, the turning point arrived and society constructed the way forward that accounted for the specifics of the technology as a broad matter for individuals, addressed failures in capital and labor markets, and was subject to certain cultural and political realities of the time. Configuring the Networked Self is a serious volley against remaining stuck in the recent past. In it, Cohen demands that we look to hard questions and honest insights about the system at large. She is not complacent about the future either. Instead, she makes a case for how we can and should proceed. Like all good scholarship, the book offers ideas to be tested and new questions to pursue. So read the book and let’s get to work.
These are my views. Not Google’s. In other words, attribution to my employer is foolish.
March 5, 2012 at 3:38 pm
Posted in: Configuring the Networked Self Symposium, Cyberlaw, DRM, Economic Analysis of Law, Intellectual Property, Politics, Privacy
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Koch, Cato, and Nonprofit Takeovers
posted by Frank Pasquale
The Volokh Conspiracy has been providing a forum for discussion of the Koch/Cato lawsuit. According to Cato Senior Fellow Jerry Taylor, the Koch Brothers may want to “use their board majority to . . . transform our Institute into an intellectual ammo-shop for American for Prosperity and other allied (presumably, Koch-controlled) organizations.” All sides may be interested in this article by Dana Brakman Reiser (“Nonprofit Takeovers: Regulating the Market for Mission Control”). Here is part of the abstract:
For-profit takeovers create a robust market for corporate control, and the legal regimes that regulate them are well known. Far less appreciated, however, are efforts to seize control of nonprofit organizations in order to alter their missions or activities. This article explores the largely uncharted territory of nonprofit takeovers, the regulation of defenses to them, and repercussions of both for the nonprofit sector and society at large. . . . [C]ase studies demonstrate both a range of nonprofit takeover tactics and the harsh responses to them by incumbent fiduciaries and reviewing courts. . . . Within the context of these cases, the article critiques courts’ deference to nonprofits’ incumbents and intolerance of takeovers. In its place, the article advocates a nonprofit-specific approach, which will work to distinguish perilous from constructive takeover activity, and balance the opposing virtues of mission preservation and evolution. This framework will provide guidance to those who may become involved in these transactions. Moreover, it will focus nonprofit law on the crucial importance of mission and the challenges of policing that mission in organizations with multiple stakeholders.
As the latest of many battles for the soul of libertarianism, this lawsuit will be closely watched.
March 3, 2012 at 10:38 pm
Posted in: Corporate Law, Culture, Political Economy, Politics
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Stanford Law Review Online: Physical and Regulatory Takings
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Richard A. Epstein entitled Physical and Regulatory Takings: One Distinction Too Many. In light of Harmon v. Kimmel—a case challenging New York’s rent control statute on petition to the Supreme Court—Epstein provides a succinct economic takedown of uncompensated regulatory takings in four distinct areas: rent control, support easements, zoning, and landmark preservation statutes. In suggesting a unified approach to eminent domain whether the taking is physical or regulatory, he writes:
Unfortunately, modern takings law is in vast disarray because the Supreme Court deals incorrectly with divided interests under the Takings Clause of the Fifth Amendment, which reads: “nor shall private property be taken for public use, without just compensation.” The Supreme Court’s regnant distinction in this area is between physical and regulatory takings. In a physical taking, the government, or some private party authorized by the government, occupies private land in whole or in part. In the case of a per se physical taking, the government must pay the landowner full compensation for the value of the land occupied. Regulatory takings, in contrast, leave landowners in possession, but subject them to restrictions on the ability to use, develop, or dispose of the land. Under current law, regulatory takings are only compensable when the government cannot show some social justification, broadly conceived, for its imposition.
Thus, under current takings law, a physical occupation with trivial economic consequences gets full compensation. In contrast, major regulatory initiatives rarely require a penny in compensation for millions of dollars in economic losses. . . .
The judicial application of takings law to these four different partial interests in land thus destroys the social value created by private transactions that create multiple interests in land. The unprincipled line between occupation and regulation is then quickly manipulated to put rent control, mineral rights, and air rights in the wrong category, where the weak level of protection against regulatory takings encourages excessive government activity. The entire package lets complex legal rules generate the high administrative costs needed to run an indefensible and wasteful system. There are no partial measures that can fix this level of disarray. There is no intellectual warrant for making the categorical distinction between physical and regulatory takings, so that distinction should be abolished. A unified framework should be applied to both cases, where in each case the key question is whether the compensation afforded equals or exceeds the value of the property interest taken. The greatest virtue of this distinction lies not in how it resolves individual cases before the courts. Rather, it lies in blocking the adoption of multiple, mischievous initiatives that should not have been enacted into law in the first place. But in the interim, much work remains to be done. A much-needed first step down that road depends on the Supreme Court granting certiorari in Harmon v. Kimmel.
Read the full article, Physical and Regulatory Takings: One Distinction Too Many by Richard A. Epstein, at the Stanford Law Review Online.
March 1, 2012 at 1:29 pm
Posted in: Constitutional Law, Courts, Current Events, Economic Analysis of Law, Law Rev (Stanford), Politics, Property Law
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