Agencies make many of their most important decisions in rulemaking well before the publication of a Notice of Proposed Rulemaking (NPRM), when they set their regulatory agendas and develop proposals for public comment. Agencies’ need for information from outside parties and openness to alternative courses of action are also generally at their greatest during these earlier stages of the rulemaking process. Yet regulatory agenda setting and rule development have received virtually no scholarly attention. The literature generally treats what happens before publication of the NPRM as a “black box” and suggests that agenda setting and rule development are primarily influenced by political considerations and pressure from well-organized groups. Other interested stakeholders, including regulatory beneficiaries, smaller regulated entities, state, local, and tribal governments, unaffiliated experts, individuals with situated knowledge of the regulatory issues, and members of the general public, are routinely absent. While there is undoubtedly much truth to this understanding, a recent study we conducted for the Administrative Conference of the United States unearthed significant efforts by numerous federal agencies to engage the public long before the publication of an NPRM. The existing efforts, however, tend to be relatively unstructured, unsystematic, and ad hoc. Moreover, many opportunities for public engagement are voluntary and self-selecting, which do little to overcome the barriers to participation by traditionally absent stakeholders. Rule development thus warrants more systematic focus and attention to ensure that agencies fully engage all relevant stakeholders in each rulemaking in which they have relevant knowledge, experience, or views—thereby promoting the democratic aspirations of regulation. This Article lays the theoretical and practical foundation for more fully democratizing rule development by envisioning what a robust institutional commitment to meaningful public engagement in agenda setting and rule development would entail and developing a structural framework for facilitating quality participation by traditionally absent stakeholders during these crucial early stages of rulemaking. Democratizing rule development would not only improve the quality and legitimacy of agency rules, it could also help to build a culture of civic participation to address the ailing health of our American democracy.
Rural America today is at a crossroads. Widespread socioeconomic decline outside cities has fueled the idea that rural communities have been “left behind.” The question is whether these “left behind” localities should be allowed to dwindle out of existence, or whether intervention to attempt rural revitalization is warranted. Many advocate non-intervention because rural lifestyles are inefficient to sustain. Others argue that, even if the nation wanted to help, it lacks the law and policy tools to redirect rural America’s course effectively. This Article argues that we do have the law and policy tools necessary to address rural socioeconomic marginalization, and that we neglect to use those tools to our own collective detriment. The Article focuses specifically on the tool of economic regulation, meaning government oversight of entry, exit, and participation parameters for service providers in certain markets. Robust historical precedents establish that strategic economic regulation is uniquely capable of sustaining rural communities, and that using it to do so is in fact critical to national resilience. Rural diseconomies of scale—the problem of higher costs per capita and lower demand for resources in population-sparse regions—must be understood as a keystone question concerning whether and how rural communities can gain access to the amenities they need to survive. The pre-1970s regulatory regime governing infrastructure industries helped overcome the problem of diseconomies of scale by safeguarding rural access to services that precede economic growth. Infrastructure industries’ subsequent abandonment of rural America during the deregulatory era amounts to a market failure because the nation remains dependent on rural communities for food and energy production, environmental stewardship, and political stability. Thus, for the benefit of all, corrective interventions into infrastructure markets and a broader conception of infrastructure should help connect rural America to community-sustaining systems, like broadband internet and national grocery store chains. Ultimately, this discussion also offers an answer to the problem of the so-called “urban/rural divide”: enhancing “urban/rural connectivity,” both literally and symbolically.
Ownership is commonly regarded as a powerful tool for environmental protection and an essential solution to the tragedy of the commons. But conventional property analysis downplays the possibility of negative-value property, a category which includes contaminated, depleted, or derelict sites. Owners have little incentive to retain or restore negative-value property and much incentive to alienate it. Although the law formally prohibits the abandonment of real property, avenues remain by which owners may functionally abandon negative-value property, as demonstrated recently by busts in certain coal and oil & gas markets. When negative-value property is abandoned, whether formally or functionally, the rehabilitation of such property typically requires public expenditure—an externality which cuts against property’s general and salutary tendency to internalize spillovers at a low social cost. The existence of negative-value property, as well as its increasing abundance, reveals an underdeveloped aspect of property theory and a pressing need to fortify legal mechanisms that prevent abandonment and enforce owners’ financial responsibility for severely degraded property.
Comparative corporate governance has focused either on prevailing differences across legal systems, or on spontaneous legal transplants of foreign institutions in response to global competition. This essay argues that corporate law today is not only a product of the invisible hand of the market, but also of the soft (and not-so-soft) hands of international organizations and standard setters. By tracing the emergence of international corporate law (ICL) since the Asian crisis of the late 1990s, it shows how the IMF, the OECD, the World Bank, and the United Nations, among several other international players, have helped shape legal reforms and corporate governance developments around the world. The observed influence of ICL ranges from the impulse for independent directors and the control of related-party transactions, to the growth of ESG investment factors and human rights policies. The rise of ICL responds to interjurisdictional externalities and nationalist bias of domestic regimes that have been largely neglected by prevailing theories, which failed to predict and notice the strong push for international coordination and standard setting in the field. ICL has also gone beyond merely prescribing an Anglo-Saxon model of corporate governance to also promote legal innovations that place the United States in the receiving end of international pressure. Legal implants from ICL, rather than legal transplants from a foreign jurisdiction, are an increasingly relevant force behind corporate governance change. While ICL has been influential, its efficacy and normative vision face challenges. The time has come to move beyond an exclusively comparative focus to also scrutinize the potential and limits of corporate lawmaking at the international level.
The ultimate end of patent law must be to spur innovations that improve human welfare — innovations that make people better off. But firms will only invest resources in developing patentable inventions that will allow them to make money — that is, inventions that people will want to use and buy. This can gravely distort the types of incentives that firms face and the types of inventions they pursue. Nowhere is this truer than in the pharmaceutical field. There is by now substantial evidence that treatments for diseases that primarily afflict poorer people — including the citizens of developing nations — are dramatically under-produced, compared with drugs that treat diseases that afflict the wealthy. In addition, the pharmaceutical markets are rife with “me too” drugs — drugs that treat diseases or conditions for which successful medications already exist. This state of affairs is not inevitable. In recent years, medical and psychological research on well-being has created the capacity for policymakers to draw direct links between patents and human welfare. Armed with this information, policymakers have, for the first time, the power to use the patent system to directly incentivize welfare-enhancing innovations. In this Article, we propose a system of extended patent terms for drug inventions that have a substantial impact on human welfare. We further propose that policymakers lift many of the legal protections for patents that have an insubstantial effect on human welfare — which we term “futility patents” — making those patents easier to challenge and invalidate. The result would be a reorientation of pharmaceutical firm incentives toward drugs that will have a significant impact on welfare, particularly for poorer and underserved populations, and away from drugs that are profitable but do little to improve human life.
What does it mean to be a fiduciary, and does it really matter whether the law labels a person a fiduciary or not? Until the late twentieth century Delaware corporate law could have given a singular, coherent answer to these questions; an answer that bore the deep imprint of fiduciary obligation fashioned in England in the early 19th century. Today, to its detriment, it is no longer able to provide clear answers to these questions. Through a close reading of Delaware’s early corporate fiduciary law and its contemporary going private case law, this article shows how late 20th century Delaware corporate law comingled, and then replaced, the traditional conception of what it means to be a fiduciary—which orbited the transfer and exercise of power (the power/undertaking conception)—with a conception which is power-blind and focused only on the influence and superiority that one person has over a more vulnerable other (the influence conception). The article tracks the accidental and unnoticed evolution of this conceptual shift and shows how it has altered the structure and source of Delaware fiduciary obligation, how it has significantly expanded the potential extent of fiduciary obligation, and how it has expanded the potential beneficiaries of such obligation. Delaware’s modern tool kit—including “the Duty of Loyalty”—as well as several modern fiduciary questions, uncertainties and anomalies are, the article argues, the product of this surreptitious 20th century appropriation of the conception of the “fiduciary”; without it, they would not exist.
Since 2018, private law damages claims seeking to place animals in the role of plaintiffs have, in dramatic fashion, moved from academic debate to high-profile litigation. Focusing on two recent cases, this short article asserts that lawsuits seeking to make animals plaintiffs in damages actions are much more than flashy news fodder; they raise profound policy issues that courts will struggle with into the foreseeable future. The most recent prominent case, Justice v. Vercher, is ongoing litigation seeking to designate a severely neglected horse as the plaintiff in a tort damages lawsuit against the horse’s owner. The second case, Naruto v. Slater, unsuccessfully sought to designate a monkey as the plaintiff in a copyright infringement lawsuit. Both cases illuminate significant implications in seeking to designate animals as plaintiffs in private law damages lawsuits. Thankfully, societal concern over animal welfare is rapidly increasing, and more needs to be done to protect animals. But efforts like Vercher and Naruto represent a societally harmful approach to animal protection. Such cases will probably continue to fail in the short term, but analogous lawsuits are nevertheless likely to proliferate over time because the stakes are so high – success could be a back door to breaking down legal barriers between humans and animals. Further, as societal views regarding animals quickly evolve, the potential for misguided rulings creating dangerous animal legal personhood through such lawsuits is real.
The 2018 lawsuit Jay-Z brought against the American Arbitration Association (AAA) because the list of twelve arbitrators AAA provided in a breach of contract dispute did not include a black arbitrator highlighted ongoing concerns about the lack of diversity in the arbitrator corps. Given arbitration’s already less formal structure, one method for enhancing its legitimacy among diverse disputants would be to ensure greater diversity among those empowered to make decisions. Increasing diversity of neutral rosters––and more importantly, of the arbitrators ultimately selected from those rosters––may improve the public’s perception of the fairness and impartiality of the arbitration process. Increasing arbitrator diversity will have other benefits as well, including enhancing equal protection, equal opportunity, and complete participation norms. This Article suggests approaches that arbitration providers and participants in the arbitral process might adopt to enhance diversity in arbitrator selection. In particular, this Article posits that, while party control over arbitrator selection is a hallmark of arbitration, unbridled party selection may play an integral role in reducing diversity in the arbitrators selected. Among other things, winnowing to a single arbitrator, which the parties often undertake with relatively little information, may lead parties to rely on heuristics that incorporate explicit or implicit biases. One way to combat such concerns may be to reduce—at least at the margins—the extent of party control over the selection process. More specifically, adjusting the selection process to include a limited appointment aspect, rather than the traditional strike and rank approach, may substantially promote diversity while still preserving a strong role for party participation in arbitrator selection. In addition to direct arbitrator appointment, this Article explores other approaches that might enhance diversity in the arbitrator corps, including creating permanent panels of arbitrators, publicizing information about individual arbitrators, and implementing arbitrator evaluation processes. The proposed approaches would retain a strong role for party autonomy in the selection process while also providing a greater likelihood for diversity in the outcome of that selection process, in turn enhancing public perceptions of the fairness of arbitration as a dispute resolution mechanism.
Scholars have criticized requirements that inmates prove malice or deliberate indifference to establish constitutional claims against corrections officials. The Eighth Amendment currently requires that convicted prisoners show that a prison official acted “maliciously or sadistically” to establish an excessive force claim, and to show that an official acted with subjective “deliberate indifference” to make out a claim of unconstitutional prison conditions. Similar requirements can apply with respect to claims by pretrial detainees whose claims are governed by substantive due process rather than the Eighth Amendment. Scienter critics have argued for use of an objective reasonableness standard for all inmate claims, including those brought by convicted prisoners under the Eighth Amendment as well as pretrial detainees. This Essay argues that the scienter requirements are more justified than the critics claim. The scienter critics argue that the Court has based its state of mind requirements on a mistaken notion that punishment requires a purpose to chastise or deter. Intentions to chastise and deter, however, remain central to the concept of punishment, and the reference to other purposes of punishment does not suggest dispensing with a culpable state of mind requirement in inmate suits against corrections officials. Scienter requirements, moreover, may be justified apart from a notion of punishment — both by reference to the need to maintain order in prisons and to distinguish constitutional violations from ordinary torts. State of mind requirements, moreover, do not pose the impenetrable barrier to liability that the critics claim. This is particularly true in systemic conditions cases — the cases that have the most promise of improving the lives of inmates.
Freedom of the press in America is at a critical crossroads in a number of ways, but one stands out as most fundamental: the stark impact of the current debate over “Post-Truthism.” Press freedom jurisprudence has long been structured around the concept of an audience member’s search for truth in a marketplace of ideas. But social science research increasingly suggests that individual information consumers are in fact often driven by emotion, affirmation of political identity, and the need for cognitive shortcuts, and that they may not possess the truth-seeking, rational processing, or information-updating capabilities that the Court assumes. Whether this divide between jurisprudence and reality actually exists—and what to do about it if it does—are pressing questions for both the courts and the media, made all the more pressing as the changing media landscape and the hyperpartisan political climate exacerbate some components of the Post-Truthism critique. The concern for some is that if press jurisprudence has rested on flawed assumptions about the nature of press audiences, the new awareness of those limitations may undermine the marketplace-of-ideas justification for press freedom and its associated press protections. This Article investigates both questions. It finds that the factual premise—that the Supreme Court has made erroneous assumptions about the motivations and behaviors of information audiences—is accurate, but argues that the theoretical consequence of this gap is just the opposite of what some have suggested. Instead of undercutting the rationales for press protection, this wider modern understanding of the information-processing and truth-seeking limitations of individual press consumers in the marketplace of ideas actually underscores the need for protection of the press as a market-enhancing institution. The Article argues that a fuller appreciation of this dynamic can provide timely and helpful insight into why the Constitution might separately provide unique Press Clause protections and can offer insight into some of the functions that would qualify an institutional actor as “the press” for purposes of that constitutional protection—an identification process that will be increasingly vital as information consumers shift from legacy media to new forms of news and content delivery. The Article probes these functions and offers a conceptual framework for granting Press Clause protection to market-enhancing entities that compensate for the inherent shortcomings of individual information consumers.
In 2017, the Supreme Court decided Sessions v. Morales-Santana, a challenge to 8 U.S.C. §1409, the law governing the conferral of U.S. citizenship to children born abroad to parents who are U.S. citizens. As the Court noted in a forceful opinion, §1409 imposed different and more onerous physical presence requirements on unwed fathers than unwed mothers, making it difficult for nonmarital fathers to transmit their U.S. citizenship to their foreign-born children. Such distinctions, the Court concluded, were rooted in archaic gender stereotypes and thus incompatible with equal protection principles. Although Morales-Santana corrected the gender discrimination inherent in §1409, it said nothing of the statute’s other constitutionally infirm provisions. Although it has drawn little attention, §1409 also discriminates on the basis of illegitimacy, which like gender, is a quasi-suspect classification for purposes of equal protection law. Specifically, §1409 requires nonmarital children to prove that they have been legitimated by their unwed U.S. citizen fathers to establish their derivative citizenship claim. By contrast, foreign-born children in wedlock need not show that they have been legitimated; by virtue of their parents’ marriage, they are legally recognized as “legitimate” children. These legitimation requirements have made it more difficult for foreign-born nonmarital children of U.S. citizen parents to prove what should be regarded as their pre-existing citizenship. Crucially, in general, laws such as these that distinguish on the basis of a parents’ marital status constitute illegitimacy discrimination. Yet, the Court in Morales-Santana neglected to acknowledge this unequal treatment of nonmarital children, focusing instead on how §1409 discriminated on the basis of gender, and effectively allowing this unconstitutional practice to continue. This Article calls attention to the prevalence of illegitimacy classifications in immigration law by identifying what we term “illegitimate citizenship rules.” In highlighting the pervasiveness of this form of discrimination, this Article makes three contributions. As a descriptive matter, these rules demonstrate the unfinished project within equal protection law of eviscerating discrimination against nonmarital children, which includes the treatment of such children in immigration law. As a doctrinal matter, the Article argues that the Supreme Court’s narrow focus on the sex equality dimension of §1409 rendered invisible the discrimination of nonmarital children. Finally, as the Article makes clear, by discriminating against nonmarital children, illegitimate citizenship rules promote and perpetuate the “traditional” family and thus discriminate against those families that do not comport with the heterosexual marital family model. The Article concludes by recommending that Congress seize the opportunity created by Morales-Santana to address and eventually eradicate the ongoing discrimination against nonmarital children who are born abroad.
This Commentary examines when, consistent with First Amendment principles of free expression, speakers can be held tortiously responsible for the actions of others with whom they have no contractual or employer-employee relationship. It argues that recent lawsuits against Daily Stormer publisher Andrew Anglin for sparking “troll storms” provide a timely analytical springboard into the issue of vicarious tort liability. Furthermore, such liability is particularly problematic when a speaker’s message urging action does not fall into an unprotected category of expression, such as incitement or true threats, and thus, were it not for tort law, would be fully protected.In examining the possibility of vicarious tort liability, this Commentary reviews the U.S. Supreme Court’s “authorized, directed, or ratified” test for vicarious liability, which was established more than thirty-five years ago in the pre-Internet-era case of NAACP v. Claiborne Hardware Co. The Commentary concludes by proposing a framework for vicarious liability when speakers urge action that results in others’ tortious conduct.
Not everything is or should be for sale. Collective goods such as our democracy and parts of our natural environment would be destroyed if they were transformed entirely into commodities to be bought and sold in commercial markets. This Article examines a discrete and unexplored topic within the larger literature on commodification: the extent to which the U.S. Supreme Court participates in the commodification of collective goods. The Court shifts market boundaries through its constitutional interpretations that glorify commodities and exalt individual rights at the expense of * Eric W. Orts is the Guardsmark Professor of Legal Studies and Business Ethics at the Wharton School of the University of Pennsylvania. Amy J. Sepinwall is an Associate Professor of Legal Studies and Business Ethics at the Wharton School of the University of Pennsylvania. Authors are listed in alphabetical order and share equal responsibility for substantive content and any errors. For comments, we are grateful to our colleagues at Wharton and participants at the Association for Political Theory annual conference in Ann Arbor, the Transatlantic Normative Business Ethics conference in Paris, the symposium on the Ethical Limits of Markets at Georgetown University, the Kelley School of Business at the University of Indiana-Bloomington, and the Widener University Commonwealth Law School in Harrisburg. For specific comments, we thank Sandrine Blanc, Rutger Claassen, Nico Cornell, Prithviraj Datta, John Dernbach, Seth Kreimer, Sarah Light, Alan Strudler, and Mike Vandenbergh. We thank Wharton for research funding, and Shontee Pant and the other editors of the Washington University Law Review for their careful work and thoughtful suggestions. Washington University Open Scholarship 638 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 97:637 collective goods. Examining two lines of cases holding that “money is speech” and “waste is commerce,” this Article contributes a theoretical understanding of the nature of collective goods and their commodification through constitutional interpretation. It also makes recommendations for how the Court and our larger society should address these kinds of issues in the future. https://openscholarship.wustl.edu/law_lawreview/vol97/iss3/5 2020] COLLECTIVE GOODS AND THE COURT 639
The financial system is unequal and exclusionary even as it is supported, funded, and subsidized by public institutions. This is not just a flaw in the financial sector; it is a foundational problem for democracy. Across the financial industry, entrepreneurs, regulators, media, and scholars promote the goal of “financial inclusion” or “access to credit.” Facebook’s Libra, Bitcoin, and fintech providers like Square, PayPal, Venmo and thousands of other new products or startup companies are launched with the stated aim of increasing financial inclusion. These private companies are joined by the Congress, non-profits, and financial regulators with programs and laws promoting financial inclusion. In fact, financial inclusion and access to credit are among the increasingly rare issues that unite the political left and right. Yet despite consensus and years of effort, many individuals and communities continue to be excluded from the mainstream financial system, which forces them to resort to high cost payday lenders, check cashers or other fee-based financial transaction products. The financially disenfranchised pay the most for services that the wealthy and the middle class receive at a subsidized rate. This article proposes a new model of financial inclusion, which situates issues of access and inclusion as central to the legal design of the financial system. This article argues that these remedies have failed because the current model of financial inclusion is rooted in a mistaken and incomplete theory of the financial market. Inclusion and “access to credit” are viewed as ancillary product, gap-filling, or a subsidized add-on to credit markets for those who are left out. In contrast, “normal” and “mainstream” credit markets are conceived of simply, as “markets,” governed by market rules and market dynamics. This article argues that they are both part of the same financial market, which is itself a product of public policy. Instead of financial inclusion, this article proposes to reframe the problem as a matter of financial redesign. The design of credit markets is an a-priori choice embedded in law and policy that determines the contours and scope of the credit markets, including who is included. Reconceptualizing financial inclusion must thus proceed through democratic means because inclusion and access are a byproduct of institutional design rather than private market decision making.
In American Legion v. American Humanist Association, the Supreme Court upheld the constitutionality of a 32-foot tall Latin cross honoring soldiers killed during World War I against an Establishment Clause challenge. In a concurring opinion, Justice Gorsuch argued that the case should have been dismissed for lack of standing. He claimed that lower court decisions upholding standing for “offended observers” to challenge government religious displays are inconsistent with standing law, and were driven by the Supreme Court’s holding in Lemon v. Kurtzman that government endorsement of religion violated the Establishment Clause. Since, Gorsuch concluded, a majority of the Court explicitly disowned the Lemon test in American Legion, it was now time to abandon offended observer standing as well. In this essay, I argue that Justice Gorsuch is correct, but for the wrong reasons. Justice Gorsuch’s assertion that offended observer standing arose from the Lemon endorsement test is not supported by history. He is, however, correct that such standing is recognized only in the Establishment Clause context. The question then arises, is there something unique about substantive law in this area which justifies special standing rules. And that in turn raises the very complex question of how the “injury in fact” requirement of standing doctrine interacts with substantive law. My conclusion is that substantive law and injury are related because Congress possesses the power to create new injuries that would not have supported common law claims, and that it regularly exercises that power in the administrative context. On the other hand, the Constitution standing alone should not be read to create new forms of injury. This means that the cases recognizing standing to challenge religious display are incorrect, because they rely on the Establishment Clause alone to create injury where none would have been recognized under the common law. The paper concludes by exploring the implications of this conclusion for the Establishment Clause, and for other areas of law. It ends with the important insight that if standing should not have been recognized in religious display cases, then the Supreme Court was also wrong to recognize standing in its leading cases considering Equal Protection challenges to affirmative action programs.
Privacy laws have never seemed stronger. New international, national, state, and local laws have been passed with the promise of greater protection for consumers. Courts across the globe are reclaiming the law’s power to limit collection of our data. And yet, our privacy seems more in danger now than ever, with frequent admissions of nefarious data use practices from social media, mobile apps, and e-commerce websites, among others. Why are privacy laws, seemingly more comprehensive than ever, not working to protect our privacy? This article explains why. Based on original primary source research—interviews with engineers, privacy professionals, and vendor executives; product demonstrations; webinars, blogs, industry literature; and more—this Article argues that privacy law is failing to deliver its promised protections in part because the responsibility for fulfilling legal obligations is being outsourced to engineers at third-party technology vendors who see privacy law through a corporate, rather than substantive, lens. This phenomenon is placing privacy law in the middle of a process of what scholars have called legal endogeneity: mere symbols of compliance are standing in for real privacy protections. Toothless trainings, audits, and paper trails, among other symbols, are being confused for actual adherence to privacy law, which has the effect of undermining the promise of greater privacy protection for consumers.
Public spaces—streets, sidewalks, parks, plazas, squares, and the like—form a major component of the physical environment. Therefore, disputes over the use and management of these spaces abound. Courts analyze each such dispute individually through the prism of the discrete property law doctrine that appears applicable. The result is a hodgepodge of inconsistent rulings that too often ignore the common normative principles implicated in all debates over public spaces. This Article advances a general framework for the legal treatment of public spaces. It argues that, at heart, every dispute over the use of a public space requires the law to answer one fundamental question: Who, in the case at hand, should be deemed the “public” actually holding the implicated public right? After all, the “public” is not a recognized legal entity. The law identifies disparate bodies that might stand for the “public” in a specific case—and accordingly be empowered to dictate the uses of the relevant public right. The options include the local government, the public at large, specific individuals, or a set of common law strictures. The Article constructs a test courts should employ when, in a given dispute over the use of a public space, they must pick among these alternatives. It does so by isolating the core normative concern animating the common law doctrines that deal with public spaces. The concern the Article identifies is the notion that some public spaces, but not others, have a natural use, and must thus be treated uniquely. In light of this core principle the Article develops an operative test to identify the “public” that should be afforded control over a given public space. Under the test, a court must determine whether a contested public space has a natural use, and if it does, how clearly defined that use is, who the actors funding the use are, and how trustworthy is the government when transacting in the space. To illustrate the test’s utility, it is employed to identify the pertinent publics that should control public rights in two of the most commonplace public spaces: parks and sidewalks.
