Showing papers in "Brooklyn law review in 2013"

Comprehensive Protection of Genetic Information: One Size Privacy or Property Models May Not Fit All

Abstract: There has been a recent increase in genetic rights legislation as states have begun to grapple with the question of what rights individuals have to their genetic information. Most states have enacted legislation regulating third party use of genetic information; however, the majority of these statutes mirror the federal Genetic Information Nondiscrimination Act in that they only address health insurance companies and employers. Fifteen states have passed broader legislation that endows individuals with more comprehensive control over their genetic information. Of these states, five provide individuals with a property interest in their genetic data and ten grant a privacy interest. This article argues that the laws are so broadly written that they may become unworkable in practice and therefore will fail to adequately protect individuals and their genetic interests. State legislatures would benefit from a narrowly-tailored model law that addresses individuals’ concerns. Additionally, states should create regulations for areas such as newborn screening, paternity testing, and law enforcement biobanks to ensure full protection for individuals in all situations.

Crowdsourcing Land Use

Abstract: Land use conflicts arise from information shortfalls, and avoiding them requires obtaining and using information. Yet traditional forms of land use control operate in relative ignorance about landowner intentions, about preferences for patterns of land use that do not presently exist, and, more fundamentally, about land use impacts as they are experienced on the ground. Because information is expensive to gather and use, this ignorance may be rational. New technological and theoretical advances, however, offer powerful ways to harness and deploy information that lies dispersed in the hands of the public. In this symposium essay, I assess the prospects for an increased role for crowdsourcing in managing land use, as well as the limits on this approach. Governments must do more than elicit, aggregate, coordinate, and channel the preferences, intentions, and experiences of current and potential land users; they must also set normative side constraints, manage agendas, and construct appropriately scaled platforms for compiling and using information.

Do Sexually Violent Predator Laws Violate Double Jeopardy or Substantive Due Process? An Empirical Inquiry

Abstract: In Kansas v Hendricks, the Supreme Court held that it did not violate double jeopardy or substantive due process to commit a person indefinitely to a locked state-run facility after he had completed his maximum prison sentence. Although the state is barred from incarcerating such a person to condemn his past behavior or to deter future misbehavior, it may incapacitate him if he suffers from a mental illness that makes him likely to commit a new violent sex crime – characteristics the Supreme Court found to be true of so-called sexually violent predators (SVPs). In this Article, we question a core empirical foundation for the Court’s holding – that SVPs are so extremely dangerous that they have a high likelihood of committing repeat acts of predatory sexual violence if they are not locked away. If SVPs are as dangerous as the Court asserts then we would expect to see an incapacitation effect – a negative impact on the incidence of sex crimes after passage of SVP laws. In conducting our analysis, we use original data that we gathered directly from states with SVP laws. To examine whether the laws have had an impact on the incidence of forcible rape and sex-related homicide, we employ panel data on U.S. states for the last few decades. We also use data collected in the National Child Abuse and Neglect Data System (NCANDS) to examine the impact of SVP legislation on the incidence of non-fatal child sexual abuse. Finally, since underreporting poses problems in accurately measuring the incidence of sex crimes, we examine gonorrhea rates, a common proxy for the prevalence of sexual abuse. Our findings suggest that SVP laws have had no discernible impact on the incidence of sex crimes. These results imply that states could more effectively reduce sex crimes by allocating these resources elsewhere. More importantly, they challenge the only constitutionally permissible justification for SVP legislation.

Redeeming Transect Zoning

Abstract: Thanks to the growing influence of the new urbanists, transect zoning” is becoming the zoning reform du jour. This alternative to zoning traces its origins to architect Andres Duany’s 2003 SmartCode, which proceeds upon the assumption that urban development naturally proceeds from more-dense areas to less-dense ones. Duany calls this progression the “transect” and urges cities to replace traditional use zoning with regulations on building form appropriate to the various “transect zones” along the progression. Over the last decade, increasing numbers of jurisdictions (large and small) have adopted “transect zoning” laws and the “form-based” codes that accompany and supplement them. Theoretically, transect zoning embraces a relatively simple conception of how to regulate urban development: buildings that are appropriate for the city center should go in the city center (regardless of their use), and suburban buildings should look suburban (again, regardless of their use). In its implementation, however, transect zoning is anything but simple. As a practical matter, the new urbanists favor meticulous and exhaustive aesthetic regulations, found in the form-based codes that represent the ubiquitous gap-fillers in transect-zoning regimes. This Essay begins by briefly describing the rapidly evolving phenomenon of transect zoning and its companion, form-based coding. It then discusses four concerns raised by the current uses of both devices as public land-use-regulatory devices. The Essay concludes by suggesting that form-based codes may be most appropriate in situations approximating the private-development context rather than as a public regulatory.

The Gentrification Trigger: Autonomy, Mobility, and Affirmatively Furthering Fair Housing

Abstract: Gentrification connotes a process where often white “outsiders” move into areas in which once attractive properties have deteriorated due to disinvestment. Gentrification creates seemingly positive outcomes, including increases in property values, equity, and a city’s tax base, as well as greater residential racial and economic integration; yet it is typically accompanied by significant opposition. In-place residents fear that they will either be displaced or even if they remain the newcomers will change the culture and practices of the neighborhood. Gentrification then is understood to cause a loss of community and autonomy – losses that have been well recognized in the eminent domain literature. This article focuses on gentrifying neighborhoods that were abandoned during the government sponsored suburban migration of the 1950s through the 1980s. Racially discriminatory practices of government and private actors often denied Black and Latino families the option either to join the migration to the suburbs or to maintain their homes in city neighborhoods. This article argues that in-place residents of now gentrifying neighborhoods should have access to rental vouchers or low-interest loans to restore the autonomy they were previously denied, providing them with viable, self-determining options to remain or exit the neighborhood. Such a remedy – which is consistent with the Fair Housing Act’s obligation to HUD and its grantees to “affirmatively further fair housing” – has the potential to alter the political terrain of gentrification.

Venture Capital and Preferred Stock

Abstract: Preferred stock has always posed something of a puzzle. Straddling the line between debt and equity, preferred stock has long existed in a shadowland between the realms of contract law on the one hand, and corporate law on the other. Depending on the situation, preferred stockholders have sometimes been entitled to the protection of corporate law fiduciary duties, and sometimes been left to lie in the contractual bed they have made. Historically, what little scholarship exists on preferred stock has consisted largely of calls for greater fiduciary protections for preferred stockholders. Preferred stock has taken on increased importance in recent years, as the favored mode of investment for venture capitalists. Moreover, in a recent trio of cases, the Delaware Chancery Court has restated – some have claimed re-made – the doctrinal treatment of preferred stock in venture capital deals, generating substantial confusion in the process. This Article takes a fresh look at the role of fiduciary duties in venture capital deals, examining the traditional rationales for fiduciary duties in corporate law and analyzing the extent to which they apply in the context of venture capital-financed startups. I conclude that the traditional rationales do not apply, and that venture capitalists, as preferred stockholders, should never be afforded fiduciary protections. Where preferred stockholders control the board, however, they should owe fiduciary duties to the common stockholders. Taken together, these conclusions provide what has long been lacking in this area of the law: a firm theoretical foundation and clear criteria for resolving disputes involving preferred stock.

The Great and Mighty Tax Law: How the Roberts Court Has Reduced Constitutional Scrutiny of Taxes and Tax Expenditures

Abstract: This article compares National Federation of Independent Business v Sebelius – the Supreme Court’s decision upholding the individual mandate in Obamacare as a tax, with Arizona Christian Schools v Winn – the Supreme Court’s decision denying standing to taxpayers with an Establishment Clause challenge to a state tax credit It argues that these cases aggravate a growing tension between the economic and legal analyses of taxation by reducing the legal significance of economic analysis in constitutional cases It suggests that Arizona Christian Schools was a truly radical decision because it conceptualized tax expenditures as private action immune from constitutional attack, rather than state action subject to constitutional limitations, making tax expenditures legally invisible The article parses the Court’s economic and legal approach, and contends that the Court misunderstood the important issues It explains how tax cuts are distinguishable from spending through the tax law, and why tax expenditures – in the aggregate – should be legally important It argues that the Court’s approach to tax expenditures not only reduces the fundamental protection that the Constitution guarantees individuals, but also has other troubling legal and policy implications These decisions weaken the revenue-raising role of taxation, blur the conceptual structure of the tax law, and undermine the tax reform efforts of other branches of government They jeopardize established legal doctrine by destabilizing the precedents on unconstitutional conditions attached to tax benefits, which depend on conceiving tax benefits as government subsidies or privileges These decisions encourage legislatures to adopt provisions that favor high-income taxpayers, while discouraging transparent and equitable government They make the tax law uniquely powerful

The Takings Clause and Partial Interests in Land: On Sharp Boundaries and Continuous Distributions

Abstract: The title of this conference—Post Zoning: Alternative Forms of Land Use Control—is fitting for the David Trager Symposium. David was a close friend of mine, and during the years that he was dean, he brought me to New York City and Brooklyn Law School to speak about the question of rent control, which I attacked in my usual blunt fashion. The question of land use regulation is to some extent orthogonal to the rent control question—which deals with financial matters rather than with physical externalities between adjacent, and not so adjacent, landowners. I have no question that market solutions work far more smoothly for financial relations between landlord and tenant than they do for physical interactions among strangers. There is no need for a law of nuisance to regulate financial interactions among various rights holders. But there is, decidedly, that need when dealing with disputes between ordinary landowners. The law of nuisance is the relevant body of law, and its development long antedates the rise of Progressive legal theory. Put more generally, no one could possibly argue—and I have not argued—that all forms of liability and regulation should have no

Dangerous Games. The Psychological Case for Regulating Gambling

Abstract: The gambling market is growing rapidly, as is the number of gambling addicts. This is fueling the call for changes in regulation. Some regulators intend to enable the entertainment industry to fully harvest a market potential magnitudes larger than today’s gaming market by minimizing regulation. Others aim at further limiting games to reduce pathological gambling and to enhance consumer protection. Current legal doctrine subjects a game to restrictions if chance, rather than skill, is its predominant trait. This rests on the assumption that only games of chance are harmful. As our experimental study shows, this is wrong: if a notion of skill seems relevant for a game, players fall prey to psychological biases that are breeding grounds for addiction and economic exploitation. We therefore suggest to abandon the distinction between skill and chance, and to condition regulation instead on the psychological biases a game induces, i.e. on the danger it actually poses. The empirical part of the argument focuses on sports bets which are among the set of particularly controversial games, as there is contention whether skill or chance dominates the performance of bettors. Recent academic papers and court decisions argue that such games are properly categorized as games of skill, and as such should not fall afoul of current gambling laws. We show that, empirically, skill does have an—albeit extremely limited—impact on performance. However, the participants’ general assumption that skill does matter for performance makes them suffer an illusion of control and overconfidence, that as has been established in clinical research makes them highly vulnerable for excessive betting and pathological gaming behavior. We therefore suggest to subject sports betting to regulation. * Dr. Emanuel V. Towfigh, Hauser Research Scholar (Global Fellow), New York University School of Law, and Senior Research Fellow, Max Planck Institute for Research on Collective Goods (Department of Law), Bonn (Germany). We are grateful to Jennifer Arlen, Nathan Ashby, Felix Bierbrauer, Christoph Engel, Sam Issacharoff, Stefan Korte, Lewis Kornhauser, Sebastian Kube, Janbernd Oebbecke, Elinor Ostrom, Niels Petersen, Jeff Rachlinsky, Richard Stewart, Katharina Towfigh, and Philipp Weinschenk for helpful advice concerning the research design and for comments on earlier drafts of this manuscript. The remaining errors are, of course, ours. + Dr. Andreas Glockner, MSc, Head of the Research Group “Intuitive Experts”, Max Planck Institute for Research on Collective Goods (Department of Psychology). ‡ Rene Reid earned his JD at New York University School of Law in 2012. He holds a BSc from the University of Alberta, from where he graduated with distinction.

Land Use and Climate Change: Lawyers Negotiating Above Regulation

Abstract: Sea level rise requires a new paradigm for controlling the development of coastal lands that are in harm’s way, calling for adjustments in the law, legal practice, and legal education. This article discusses the historical tendency of the law to adjust to changes in society and the recent emergence of new legal institutions and strategies for mitigating and adapting to climate change, particularly sea level rise. It illustrates how the lack of certainty about the extent and pace of sea level rise collides with the total takings doctrine of the Lucas case to frustrate the application of traditional land use and environmental regulations. It then demonstrates how this causes lawyers and public officials to rise above regulations and adopt new approaches to limiting development at the ocean’s edge where sea level rise and storm surges threaten lives, ecosystems, private property, and public sector investments. The article advocates the use of negotiated problem-solving strategies for controlling coastal development in this post-regulatory moment. It concludes with some reflections on the impact of these changes on both the practice of law and legal education.

Reasonable Provocation: Distinguishing the Vigilant from the Vigilante in Self-Defense Law

Abstract: The right of self-defense is often viewed as a bedrock principle in the criminal law. That right, however, is subject to certain restrictions. Among those restrictions is the requirement in most jurisdictions that the individual claiming self-defense cannot have provoked the conflict. The precise contours of what constitutes provocation vary by jurisdiction. Each jurisdiction, to some extent, leaves unanswered the question of whether individuals can intentionally insert themselves into situations where violence is reasonably foreseeable and still maintain a claim of self-defense. The key problem in making these determinations is distinguishing between vigilant community members hoping to protect their communities and vigilantes seeking to mete out their own brand of extrajudicial law enforcement. While the former may be socially desirable, a society of laws can have little tolerance for the latter. Defining the boundary between these behaviors requires a carefully crafted rule that balances the interests of society and the needs of the individual. After identifying and examining the three primary frames for defining provocation in the context of self-defense, this article argues that courts should adopt a two-part inquiry when weighing whether a defendant is precluded from claiming self-defense: (1) Were the defendant’s allegedly provocative actions objectively reasonable?, and (2) Was the risk of violence that the defendant incurred reasonable in light of the totality of circumstances? Either as a stand-alone rule or as a gloss on the currently existing frames, this standard would preserve societal notions of justice while providing a measure of clarity to jurors and members of society at large.

The Legislative Response to Mass Police Surveillance

Abstract: Police departments have rapidly adopted mass surveillance technologies in an effort to fight crime and improve efficiency. I have previously described this phenomenon as the growth of the digitally efficient investigative state. This new technological order transforms traditional law enforcement by improving the efficiency of everyday policing activities and retaining copious amounts of data on both suspicious and unsuspicious behavior. Empirical evidence shows that police surveillance technologies are common and rapidly expanding in urban America. In the absence of legislative action, police departments have adopted widely disparate internal policies. The Supreme Court had the opportunity to reign in the scope of police surveillance in Jones v. United States. But the Court could not agree on whether technological improvements in efficiency transform an otherwise legal policing tactic into an unconstitutional search. Nor could the Court agree on whether a person may have a reasonable expectation to privacy in public movement. Post-Jones, the jurisprudence of police surveillance emerged as incoherent as ever. I have previously argued that the judiciary should regulate police surveillance technologies. While it remains possible that the judiciary will someday make such a doctrinal shift, the immediate responsibility for regulating police surveillance technology falls on state legislatures. In this Article, I offer a model statute to regulate mass police surveillance. The model statute limits indiscriminate data collection. It also caps data retention for personally identifiable information. It excludes from criminal court any locational evidence obtained in violation of the statute. And it gives the state attorney general authority to bring suit against police departments that fail to abide by the law. This legislation would give discretion to police departments to craft data policies fitting their city’s unique needs, while also encouraging consistency and fairness.

Applying Sustainable Land Use Development Studies to Sustainable Agriculture: Are the Conditions Ripe for a Successful Movement Toward Sustainable Agriculture?

Abstract: Recognizing the detrimental consequences of industrial agriculture, a growing number of farmers, environmentalists, and agricultural researchers have begun to explore better farming methods. Sustainable agriculture, which seeks to achieve the often conflicting goals of environmental protection and farmers’ economic profitability, has the potential to transform modern agriculture. However, little federal or state legislation has been passed to specifically direct sustainable agricultural practices. Instead, legislation has mostly emphasized the need for research and “the exchange of scientific and practical information on sustainable agriculture.” Sustainable agriculture will not replace conventional practices based on research alone. Therefore, governments must implement regulations and creatively strategize how to move agriculture toward a sustainable system. While increased interest in sustainability and the farming industry may serve as a catalyst for change in the industry’s environmentally detrimental practices, the movement must not lose sight of the potential of law and policy to promote sustainable agriculture and reinforce the importance of a sustainable plan. This note will argue that a new agricultural approach mandating specific sustainable techniques is necessary to ensure the future availability of farming land and resources. A land use planning process that is attentive to the needs of both the environment and the economic well-being of the agricultural community can be of tremendous value to the success of implementing a sustainable agricultural system.

Fixing Music Copyright

Abstract: In December 2012, musician Beck Hansen (Beck) released Song Reader, a concept “album” consisting of 20 unrecorded songs in sheet-music form. As one reviewer put it: “There is no CD. No download. No audio. As of this writing, you cannot hear Beck doing an authoritative, this-is-the-song performance.”1 According to the album’s publisher, “if you want to hear Do We? We Do, or Don’t Act Like Your Heart Isn’t Hard, bringing them to life depends on you, the reader.”2 Beck’s sheet music album was inspired by a 1937 popular music hit called “Sweet Leilani.”3 “‘Apparently, it was so popular that, by some estimates, the sheet music sold 54 million copies[.]’”4 Beck remarked that “nearly half the country had bought the sheet music for a single song, and had presumably gone through the trouble of learning to play it.”5 Beck was hoping to similarly engage his fans with Song Reader,6 and, as evidenced by the hundreds of fan performances posted on

Software Patents and/or Software Development ∗

Abstract: Many contemporary treatments of the patent system begin with Fritz Machlup’s damning with faint praise. If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, based on our present knowledge, to recommend abolishing it. and conclude that for all its imperfections, the patent system is still worth keeping. Patent may introduce costs and inefficiencies, this analysis goes, but since patents serve a necessary function as incentives to innovate, we must bear and mitigate their costs. In the case of software patents, I challenge the incentive side of the equation: Patents do not provide a useful incentive to innovation in the software industry, I contend, because the patent promise ill-suits the engineering and development practices and business strategies of software production. The problem is not merely inefficiency in implementation of software patent, but a structural mismatch between where the incentive applies and how software innovation happens. Even an ideally implemented software patent . well examined, fully disclosed and enabling, properly scoped in light of the prior art would fail to serve the incentive functions intended by the Constitution, the Patent Act, and standard patent theory. Previous scholarship, whether critical or congratulatory of software patents, has largely failed to examine the structure of software *Fellow, Berkman Center for Internet & Society at Harvard Law School and Princeton Center for Information Technology Policy. Research performed while a Fellow at Silicon Flatirons Center at University of Colorado School of Law was funded by a generous grant from Brad Feld to the Silicon Flatirons Center. All opinions are those of the author. Previous scholarship, whether critical or congratulatory of software patents, has largely failed to examine the structure of software development and the institutional specifics of patent’s operation in this industry. I therefore look at these mechanics: How is the incentive function of patent believed to operate? How does it operate in the software industry? Does the tool serve its goals? Addressed head-on, even before compounding the issue with side-effects and unintended consequences, I conclude the answer is no, patents do not encourage software innovation.Part I describes the nature of software development, its sources of innovation, and its business environment. This part draws on sources from engineering, computer science, business, and strategy literature, as well as the experiences of commercial and open source software developers. I discuss several ways in which software development differs from the canonical model of manufacturing widgets, the challenges of going from idea to implementation, including prototyping, revising to meet user needs, and debugging. This part shares with the New Institutional Economics literature a focus on the nuts and bolts of how systems function, to identify common frameworks. While market dynamics differ among segments, we can identify commonalities derived from the underlying nature of software.Part II reviews existing legal theories of patent incentives and innovation. It formalizes the mismatch between incentive theory and software patent practice. In many of the accounts that attribute value to software patents, there is a circularity. Startups say patents are important because venture capitalists (VCs) demand them, whereas VCs who look to patents as a signal of capacity or uniqueness are in fact seeing a show aimed at the potential funders rather than to the customer market or a demonstration of genuine novelty. Prospect theory (Kitch) does no better to validate software patents. The claim is staked too early to give the proprietor a useful coordinating or notice function. Additional justifications or explanations for patent, such as knowledge modularity, are at best ambivalent.Part III applies the theories to software more specifically. Where do software developers and venture capital backers seek patents, and how do individuals and firms use them? Looking particularly at the timing of patent’s intervention in the system, I conclude that it encourages invention, not innovation; idea-generation, but not implementation, debugging, and deployment. A player focused on patenting can obtain numerous patents without developing any of the technologies to useful levels of deployment or disclosure, yet leaving a minefield for others who actually deploy software. Hence the troll problem is particularly acute in the software field. Since initial invention is rarely the bottleneck to economically useful software development, software patents more often become entangling thickets than productive incentives. Here I also analyze the alternatives to patent available to protect software development: trade secrecy, copyright, first-mover advantage, market complements.Part IV, finally, uses this analysis to reflect on the institutional dynamics of patent law. Close analysis of software patents and software development adds to the debates over technology-specificity versus uniformity and the proper role of courts versus congress, and assists in better framing the question how to promote the progress of science and useful arts.

Beyond Blood and Borders: Finding Meaning in Birthright Citizenship

Abstract: Since the ratification of the Fourteenth Amendment, the United States has conferred citizenship to all children born within U.S. territory with few exceptions. In recent years, however, some have proposed legislation that would exclude the U.S.-born children of undocumented immigrants from U.S. citizenship as a way of reducing incentives for unauthorized immigration. Using various interpretive lenses, scholars have debated whether the Fourteenth Amendment requires the bestowal of citizenship to all individuals born within U.S. territory. This article, however, reaches beyond the Fourteenth Amendment and analyzes the concept of territorial birthright citizenship more broadly. This article explores the substantive meaning and purpose of birthright citizenship in the United States as distilled from the historical trajectory of U.S. citizenship law. Specifically, this article examines several junctures in U.S. history in which courts and legislatures have grappled with decisions about citizenship, including the aftermath of the American Revolution, the formulation and ratification of the Fourteenth Amendment, and the exclusion (and later inclusion) of American Indians from U.S. citizenship. This article isolates the substantive factors that have played a role in these grants or denials of citizenship to evaluate whether a territorial conception of birthright citizenship continues to serve the substantive purposes and meaning of birthright citizenship in the United States. Ultimately, this article concludes that, although territorial presence is a waning proxy for substantive indicators of membership in other spheres of law, territorial presence at birth continues to serve as an accurate predictive proxy for these substantive indicators of membership in the realm of citizenship.