Showing papers in "Notre Dame Law Review in 2019"

The Fundamental Right to Education

Abstract: New litigation has revived one of the most important questions of constitutional law: is education a fundamental right? The Court’s previous answers have been disappointing. While the Court has hinted that it might recognize some minimal right to education, it has thus far refused to do so. To recognize a fundamental right to education, the Court would have to overcome two basic problems. First, the Court needs an originalist theory for why our constitution protects education, particularly since the word education does not even appear in the constitution. Second, the right to education implicates complex questions regarding its scope. Neither litigants nor scholars have seriously grappled with these problems, which explains why the Court has yet to recognize a right to education. This Article demonstrates that the right falls squarely within the Court’s existing precedent. It traces the fundamental importance of education from the nation’s founding principles through the years immediately following the Fourteenth Amendment. It examines historical facts and constitutional developments that have quite simply been overlooked. This Article also defines the scope of a right to education with historical evidence. It demonstrates that the original purpose of public education was to prepare citizens to participate actively in self-government. In the mid-nineteenth century, this required an education that prepares citizens to comprehend, evaluate, and act thoughtfully on the functions and policies of government.

Marketplace of Ideas, Privacy, and the Digital Audience

Abstract: The availability of almost limitless sets of digital information has opened a vast marketplace of ideas. Information service providers like Facebook and Twitter provide users with an array of personal information about products, friends, acquaintances, and strangers. While this data enriches the lives of those who share content on the internet, it comes at the expense of privacy. Social media companies disseminate news, advertisements, political messages, while also capitalizing on consumers’ private shopping, surfing, and travel habits. Companies like Cambridge Analytica, Amazon, and Apple rely on algorithmic programs to mash-up and scrape enormous amounts of online and otherwise available personal data to micro-target audiences. By collecting and then processing psychometric data sets, commercial and political advertisers rely on emotive advertisements to manipulate biases and vulnerabilities that impact audiences’ shopping and voting habits. The Free Speech Clause is not an absolute bar to the regulation of commercial intermediaries who exploit private information obtained on the digital marketplace of ideas. The Commerce Clause authorizes passage of law to regulate internet companies that monetize intimate data and resell it to third parties. Rather than applying strict scrutiny to such proposed regulations as one would to pure speech, judges should rely on intermediate scrutiny to test statutes limiting the commercial marketing of data. Legislative reforms are needed to address the substantial economic effects of massive, commercial agglomeration of data files containing histories, daily routines, medical conditions, personal habits, and the like. To address this logarithmically expanding cyber phenomenon, Congress should temporally restrict the retention and trade in private data. Internet intermediaries should not be immune from such a restriction on private data storage. For such a policy to be effective, safe harbor provisions shielding internet intermediaries should be modified to allow for civil litigation against internet companies that refuse a data subject’s request to remove personal information no longer needed to accomplish the transaction for which it was originally processed.

The State of the Death Penalty

Abstract: The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s. In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty. What explains this remarkable and quite unexpected trend? In this Article, we present new analysis of state-level legislative changes that might have been expected to impact death sentences. First, life without parole (LWOP) statutes, now enacted in nearly every state, might have been expected to reduce death sentences because they give jurors a non-capital option at trial. Second, legislatures have moved, albeit at varying paces, to comply with the Supreme Court’s holding in Ring v. Arizona, which requires that the final decision in capital sentencing be made not by a judge, but by a jury. Third, states at different times have created state-wide public defender offices to represent capital defendants at trial. In addition, the decline in homicides and homicide rates could be expected to contribute to the decline in state-level death sentencing. We find that contrary to the expectations of many observers, changes in the law such as adoption of LWOP and jury sentencing, did not consistently or significantly impact death sentencing. The decline in homicides and homicide rates is correlated with changes in death sentencing at the state level. However, this Article finds that state provision of capital trial representation is far more strongly and robustly correlated with reduced death sentencing than these other factors. The findings bolster the argument that adequacy of counsel has greater implications for the administration of the death penalty than other legal factors. These findings also have implications beyond the death penalty and they underscore the importance of a structural understanding of the Sixth Amendment right to counsel in our system of criminal justice.

The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment

Abstract: The Privileges or Immunities Clause of the Fourteenth Amendment was virtually eliminated by the Supreme Court in three cases: The Slaughter-House Cases, Bradwell v. Illinois, and United States v. Cruikshank. Today, most constitutional scholars agree that this was a terrible mistake, the effects of which continue to reverberate through our constitutional law. But, as evidenced by the Court’s decision in McDonald v. City of Chicago, both the “left” and “right” sides of the Court are reluctant to open the “Pandora’s Box” of uncertainty created by the phrase “privileges or immunities of citizens of the United States.” Scholars have not yet arrived at a consensus about its original meaning — much less about how to implement that meaning in constitutional practice. In this article, we clear the field of a competing interpretation offered by Professor Kurt Lash. In an impressive series of articles and monograph, Lash avoids the Pandora’s Box by contending that the “privileges or immunities of citizens of the United States” are limited to the rights enumerated in the text of the Constitution, and do not include any unenumerated rights. While we agree with Lash that the enumerated rights are indeed among the “privileges or immunities” of U.S. citizens, we demonstrate his failure to establish that these are the only rights of U.S. citizens that state legislatures may not abridge. In future work, we will present evidence of a more capacious original meaning of “privileges or immunities” of U.S. citizens, as well as a practical means for judges to identify these rights and apply them to cases and controversies. It suffices for now to say that we side with Michigan Senator Jacob Howard’s explanation of “privileges or immunities” over Lash’s.

State Standing and Cooperative Federalism

Abstract: States increasingly litigate before the federal courts in lawsuits challenging national policy. Texas Attorney General (now Governor) Greg Abbott is famous for describing his typical day as follows: “I go into the office, I sue the federal government and I go home.”1 Although the challenges over the last decade tended to come from the political right—including litigation over national healthcare, immigration, and discrimination policy—high-profile lawsuits have come from the political left as well. The leading Supreme Court decision on state litigation, Massachusetts v. EPA,2 involved an effort by Massachusetts and eleven other States to force the Bush-era Environmental Protection Agency (EPA) to regulate greenhouse gases under the Clean Air Act. And states have been the lead plaintiffs in recent challenges to Presi-

The Marketplace of Ideas Online

Abstract: One hundred years ago, in the 1919 case of Abrams v. United States, Justice Oliver Wendell Holmes, Jr. ushered into existence modern First Amendment jurisprudence by introducing the free trade in ideas model of free speech. According to this model, the ultimate good is reached by allowing speakers to engage in the free trade in ideas—free of government intervention in the way of regulation, censorship, or punishment. Ideas must be allowed to compete freely in an unregulated market, and the best ideas will ultimately get accepted by competing with others in this marketplace. As such, government intervention is unnecessary and counterproductive. Thus, instead of punishing the speakers in Abrams—for criticizing the government’s attempts to crush the Russian Revolution and calling for American workers to strike—the government should have taken a hands-off approach and allowed these ideas to compete (and lose) in the marketplace of ideas. The characteristics of our marketplace(s) of ideas have changed dramatically since 1919, when the Russian immigrants in Abrams threw their leaflets from the fourth floor window of a hat factory in lower Manhattan in an effort to widely disseminate their ideas. Russians are still players in our marketplace of ideas, but today’s marketplace suffers from uniquely modern and challenging problems—such as rampant interference in the form of Russian troll farms mass producing tweets and other widely shared content on social media with the intent and the effect of sabotaging U.S. elections. In addition to the widespread dissemination of false political content from both foreign and domestic sources, today’s online marketplace of ideas is besieged by the increased polarization and siloing of thought and opinion, which renders Holmes’s prescribed remedy for harmful speech—counterspeech—increasingly ineffective. In the past two years, we have seen a variety of efforts, both in the United States and across the globe, by governments and by online platform providers themselves, to address the problems, distortions, and imperfections in the online marketplace. Because online platforms like Facebook and Twitter play such a dominant role in the online marketplace of ideas—and the modern marketplace of ideas generally—it is worthwhile to focus specifically on how these platforms are being regulated, as well as how they are regulating themselves. While the United States has essentially taken a hands-off approach to regulating online platforms, the European Union has assumed a relatively aggressive regulatory approach. The EU, as well as several European countries, have generally implemented speech regulations to hold platforms liable for failing to police their sites, and have recently imposed sweeping regulations on such platforms. And, in their efforts to comply with such regulations, online platforms like Facebook and Twitter may end up implementing these European regulations in ways that affect what U.S. audiences can access online—since it is often difficult for platforms to implement national regulations in a geographically targeted manner with no spillover beyond the regulating nation’s borders. Accordingly, it is worthwhile to examine these international efforts in some detail. The EU and European countries have recently undertaken sweeping efforts to remedy perceived imperfections in the marketplace, including by requiring online platforms to rapidly remove a wide swath of harmful content. Among European nations, Germany has led the way by enacting drastic legislation requiring social media sites like Facebook and Twitter to remove false news, defamatory hate speech, and other unlawful content within twenty four hours of receiving notice of the same, upon pain of multi-million Euro fines. Other European countries are considering following suit. In addition to government regulation by the EU and by European governments, the online platforms themselves are undertaking self-regulatory measures with respect to content accessible by U.S. audiences (partly in an effort to forestall U.S. government regulation). Although such self-regulatory efforts are not governed by the First Amendment, they are nonetheless inspired by First Amendment values. The leading social media companies have adopted several measures to attempt to address problems in the online marketplace of ideas, including by enabling the flagging of false news for verification by independent third party fact-checkers, commissioning the development of counter-speech in response to false news, providing contextual information about purveyors of news-related posts, and removing fake sites and purveyors of false news from their platforms. Although the United States has largely taken a hands-off approach to regulating online platforms, in the wake of the severe problems besieging the platforms in the context of the 2016 presidential elections and thereafter, U.S. legislators have recently sought to hold the online platforms responsible for such problems. In addition to extensive legislative hearings during which legislators have sought to hold the companies to account for such problems, legislators have recently proposed new laws to attempt to remedy such problems. In particular, Congress recently proposed the Honest Ads Act in an effort to limit foreign interference in the online marketplace of ideas and to mandate the disclosure of information regarding the source of political advertisements on social media. Finally, in the United States, victims and targets of some of the problems besieging the online marketplace of ideas—including false news, conspiracy theories, and hoaxes—are increasingly turning to defamation law in an effort to hold the purveyors to account for the harms resulting from such online content. This Article surveys the severe problems in today’s online marketplace of ideas and the efforts that regulators—and the online platforms themselves—have recently adopted in an attempt to address such problems. In Part II, this Article examines the historical foundations of the marketplace of ideas model, as articulated in Justice Holmes’s early opinions, as well as the Court’s eventual adoption of the marketplace model and with it, the adoption of counterspeech, instead of censorship, as the default response to harmful speech. Part III then examines the scope and extent of the problems besieging the modern online marketplace of ideas, focusing on problems that have arisen especially in the context of the 2016 U.S. presidential election and thereafter on social media platforms like Facebook and Twitter. In Part IV.A, this Article examines the sweeping regulatory efforts recently adopted by the EU and by Germany in particular, and the ways in which the online platforms are striving to implement such regulations. In Parts IV.B and IV.C, the Article turns to an analysis of the self-regulatory efforts undertaken by leading social media platforms Facebook and Twitter, the likely efficacy of such measures in addressing the problems besieging the online marketplace of ideas, and the extent to which such measures are consistent with First Amendment values. In Part IV.D, the Article examines the constitutionality and the likely efficacy of the recently proposed Honest Ads Act. In Part IV.E, the Article examines the extent to which the defamation lawsuits brought by victims of false news, conspiracy theories, and online hoaxes are consistent with the First Amendment. A brief conclusion follows.

Broadening Consumer Law: Competition, Protection, and Distribution

Abstract: Policymakers and scholars have in distributional conversations traditionally ignored consumer laws, defined as the set of consumer protection, antitrust, and entry barrier laws that govern consumer transactions. Consumer law is overlooked partly because tax law is cast as the most efficient way to redistribute. Another obstacle is that consumer law research speaks to microeconomic and siloed contexts—deceptive fees by Wells Fargo or a proposed merger between Comcast and Time Warner Cable. Even removing millions of dollars of deceptive credit card fees across the nation seems trivial compared to the trillion-dollar growth in income inequality that has sparked concern in recent decades. This Article synthesizes the fragmented empirical literature to offer a broader conception of consumer law’s place in governance. The data indicate that consumer market failures raise prices to consumers by well over a trillion dollars annually, aided by sophisticated algorithmic pricing; that these market failures worsen economic inequality; and that consumer law, despite prominent critiques of its shortcomings, can address those market failures when designed well. The preliminary state of the evidence underscores the need for regulatory monitoring of markets to leverage consumer law’s potential as a tax alternative. Redistribution is one of the government’s most basic functions, and efficiency one of the law’s guiding principles. There are strong normative foundations for making macroeconomic distribution an explicit goal of consumer law.

Narrowing the Trapdoor of the Government Employee Rights Act

Abstract: While most employed persons can seek relief from discrimination under Title VII of the Civil Rights Act, the Government Employee Rights Act (GERA) actually exempts from Title VII three categories of state-level government workers. These workers cannot sue under Title VII, nor can they seek a jury trial. Instead, GERA gives these workers a lesser administrative remedy. Because of this relationship, GERA is a trapdoor; if a litigant is a exempted state-government worker, then they fall out of Title VII and into GERA's lesser framework. This Note seeks to shrink that trapdoor. Here is how: by settling a circuit split on the proper test for the first GERA exemption, known as the "personal staff" exemption. This Note argues that the Fourth Circuit's test is better able to narrow the trapdoor and provides textual arguments supporting such a reading.

Existential copyright and professional photography

Abstract: Intellectual property law has intended benefits, but it also carries certain costs — deliberately so. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its-kind study, we conducted thirty-two in-depth qualitative interviews of photographers about how copyright law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual property. More importantly, our data call for an expansion of the set of possible justifications for intellectual property. Contrary to accepted wisdom, we find that copyright provides photographers with economic leverage in up-front negotiations with clients but not much benefit in anticopying protection afterwards. Beyond that, copyright also serves as part of photographers’ multifaceted sense of professionalism to protect the integrity of their art and business. Identifying these unrecognized and surprising functions of copyright in creators’ accounts is separate from evaluating their desirability. But we argue that the real-world functions of copyright are better candidates for justification and better subjects for policy discussion than chalkboard theories. In this way, our study of photographers moves the longstanding debate over intellectual property law’s purpose to a new and more informed place.

The Parochial Uses of Universal Jurisdiction

Abstract: This Article presents a new account of the function served by universal jurisdiction (UJ). This doctrine—one of the most diplomatically controversial in modern international law— allows states to prosecute certain grave international crimes, even committed abroad, and with no connection to the prosecuting state. This Article shows that, far from being used as a tool of global policing, the UJ doctrine is, in practice, used to protect the parochial domestic interests of the prosecuting state. In showing this, this Article reconciles several paradoxes related to UJ—its broad and longstanding normative acceptance by states contrasted with its extremely rare application; and its tension with a rational model of state action contrasted with its apparent embrace by states. Unlike the numerous normative or aspirational theories of UJ, this account builds up from a comprehensive review of almost all UJ cases over the past two hundred years. It finds a surprising common element among them. In the overwhelming majority of UJ cases, both over piracy and human rights offenses, the forum state actually has a direct, differentiable, parochial connection with the offense. While the nominal purpose of UJ is to allow states to prosecute crimes without any nexus to the offense—to enforce a global legal order—in practice it is almost exclusively used by states in precisely the cases where such a nexus exists. Universal jurisdiction is useful in cases where, despite a concrete link between the forum state and the defendant, prosecution under traditional jurisdictional theories would be impossible due to other legal or practical impediments. In short, UJ is, in practice, a kind of catchall or safety net that facilitates dealing with extraterritorial crimes with a strong domestic nexus, when the standard legal tools for such prosecutions prove inadequate. It is not, however, used by states to enforce broad notions of global justice and the prevention of impunity. The specific “parochial” uses of UJ have changed over time. For piracy, UJ was a shortcut designed to facilitate the proof of traditional territorial or national jurisdiction in cases where such a nexus with the forum state probably existed but would be difficult to prove. Such problems of jurisdictional proof were commonplace in piracy, where a variety of ruses adopted by pirates, and other circumstances, often made establishing the nationality of vessels or victims difficult. In the recent boom in universal piracy prosecutions, the doctrine again served parochial state interests by allowing for prosecutions in cases with a clear domestic nexus that would not be covered by other jurisdictional grounds. The rise of flags of convenience severed the formal jurisdictional links between nations with shipping companies and the vessels they own and operate. UJ allowed maritime nations to prosecute attacks on vessels owned by their nationals, but flagged

Quasi-Sovereign Standing

Abstract: Under current law, the ability of states to sue the federal government is limited. A state has standing to assert quasi-sovereign interests in protecting the welfare of its populace. It can assert those interests in its capacity as parens patriae—that is, as representative of the state’s residents. Despite the potential breadth of quasi-sovereign standing, a state cannot sue as parens patriae the federal government for failing to comply with federal law or the Constitution. Instead, the United States itself, which also represents the residents of a state, is the appropriate body and not the states to ensure that it complies with federal and Constitutional law. This Article challenges this limitation on states’ ability to sue the federal government and seeks more broadly to make sense of quasi-sovereign standing. It makes two points. First, it argues that parens patriae is the wrong frame to evaluate state standing to assert quasi-sovereign interests because the states themselves, not their residents, hold those interests. It is therefore irrelevant whether the state or the United States is the appropriate body to assert the resident’s interests. Second, the Article argues that states should be able to assert this quasi-sovereign interest against the United States for three reasons. Doing so is consistent with states’ role of enforcing the laws, allows states to act as a check on the federal government, and aligns with the purposes of extending Article III jurisdiction to suits in which states are a party.

Compelled commercial speech and the First Amendment

Abstract: Since initially extending First Amendment protection to commercial speech in 1976, the Supreme Court has devoted many pages in many decisions to determining the contours and scope of this protection. The Court has devoted the overwhelming portion of its attention, however, to determining the scope of First Amendment limitations on government suppression of commercial speech. Only rarely has the Court considered the constitutionality of First Amendment restrictions, if any, on compelled commercial speech, and when it has done so it has often written in confusing and seemingly inconsistent ways. This is so, even though the Court has spoken eloquently of the need to protect against compelled speech in the context of non-commercial expression. The purpose of this Article is to tackle the issue of compelled commercial speech head on, in order to determine under what circumstances it is constitutionally inappropriate for government to compel a commercial speaker to make statements the speaker does not wish to make. After reverse engineering the constitutional and democratic pathologies sought to be avoided by the prohibition on compelled non-commercial speech, this Article determines that many of those pathologies apply with equal force to compelled commercial speech, and therefore the First Amendment should, as a general matter, be construed to protect against compelled commercial speech. This does not mean that no circumstances exist in which government may compel commercial speech, however. In order to shape the proper theoretical and doctrinal framework, this Article establishes a system of qualifiers and disqualifiers. Initially, government must satisfy at least one of the two qualifiers in order to shift the constitutional default position that government may not interfere with communications between private speaker and private listener. Government must be using compelled speech either to (1) protect public health or safety, or (2) protect the consumer from economic harm due to intentionally or recklessly fraudulent statements. Even if the government satisfies one of those qualifiers, however, compelled speech will nevertheless be unconstitutional if it triggers one of the two disqualifiers: (1) the factual or scientific statements required to be conveyed by the commercial speaker are reasonably disputed by that speaker, or (2) the compelled speech effectively, albeit indirectly, interferes with the commercial speaker’s ability to convey its own message to the consumer. If either of these disqualifiers is present, the compelled speech triggers one or more of the underlying constitutional or democratic pathologies sought to be avoided by the extension of First Amendment protection to compelled expression. Finally, this Article considers the extent to which the First Amendment protection extended to compelled commercial and non-commercial speech should be deemed fungible. It concludes that at least in the abstract, they should be so viewed. However, it recognizes that in application, there are likely to be more instances where compelled commercial speech will be justified by application of the qualifiers than compelled non-commercial speech.

Antidiscrimination Laws and the Administrative State: A Skeptic's Look at Administrative Constitutionalism

Abstract: This Article discusses why administrative agencies charged with enforcing antidiscrimination legislation while implicitly undertaking administrative constitutionalism tend to be inconsiderate of constitutional limitations on government authority in general, and especially of the limitations imposed by the First Amendment’s protection of freedom of expression. To establish the existence and contours of the problem, Part I of this Article provides context by recounting several detailed examples of how federal, state, and local civil rights agencies have favored broad antidiscrimination enforcement over countervailing constitutional doctrines that impose limits on regulatory authority. These examples include the U.S. Department of Education’s Office of Civil Rights’ Obama-era attempts to use Title IX to strip university students accused of sexual assault of due process protection and to impose broad speech codes on universities, the U.S. Department of Housing and Urban Development’s (“HUD”) efforts in the 1990s to penalize neighborhood activists for lobbying against projects HUD deemed protected by the Fair Housing Act, local human rights commissions’ threats to punish individuals for otherwise protected speech deemed to cause a hostile environment, and state and local agencies’ willingness to prosecute individuals who discriminate in their choice of roommate. Part II of this Article discusses the reasons why agencies that enforce antidiscrimination laws tend to be oblivious or hostile to constitutionally protected liberties in general and freedom of speech in particular. Part II begins with a discussion of institutional factors common to administrative agencies that tend to lead agencies to expand their power and neglect countervailing constitutional considerations. First, agencies increase their budget and authority by expanding, not contracting, the scope of the laws they enforce. Second, “purposivism,” or the notion that ambiguities in statutes should be resolved to further the laws’ underlying purposes, encourages agencies to resolve statutory interpretation disputes in favor of broad interpretations of agency authority. Third, antidiscrimination agencies attract employees ideologically committed to their agencies’ missions. Fourth, and concomitantly, agency staff (unlike generalist courts) generally do not see enforcing constitutional limitations on government power, or protecting freedom of speech specifically, as their job. Part II concludes with a discussion of political and ideological factors specific to agencies charged with enforcing antidiscrimination laws that make them especially prone to neglect constitutional restraints on their authority. Part III of this Article suggests solutions that may at least mitigate administrative neglect of civil liberties in the context of antidiscrimination law. Most of these solutions involve broad reforms that would have ramifications well beyond mitigating the problem addressed in this Article. A more limited and therefore practical reform would be for agencies that enforce antidiscrimination legislation to establish an internal watchdog office charged with advocating within the agencies for compliance with the First Amendment and other constitutional constraints.

An Organizational Account of State Standing

Abstract: Again and again in regard to recent high-profile disputes, the legal community has tied itself in knots over questions about when state plaintiffs should have standing to sue in federal court, especially in cases where they seek to sue federal-government defendants. Lawsuits challenging everything from the Bush administration’s environmental policies to the Obama administration’s immigration actions to the Trump administration’s travel bans have become mired in tricky and technical questions about whether state plaintiffs belonged in federal court. Should state standing cause so much controversy and confusion? This Essay argues that state plaintiffs are far more like at least one other category of so-called “aggregate litigants,” organizational plaintiffs, than the literature has previously recognized. In short, one can see state standing and organizational standing as fitting either side by side (in the sense that state standing runs parallel to organizational standing) or hand in glove (in the sense that state standing represents a species of organizational standing). And a preliminary comparison of institutional features suggests that state plaintiffs should have at least as strong a claim to standing in federal court as associational plaintiffs do. These contentions lead to the conclusion that if the legal community feels comfortable with the wide scope of organizational standing, it should feel equally — and probably more — comfortable with the wide scope of state standing.

Bounded Rationality and the Theory of Property

Abstract: Strong, property rule protection – implemented via injunctions, criminal sanctions and supercomepnsatory damages – is a defining aspect of property. What is the theoretical justification for property rule protection? The conventional answer has to do with the alleged shortcomings of the weaker, liability rule alternative: It is widely held that liability rule protection – implemented via compensatory damages – would interfere with efficient exchange and jeopardize the market system. We show that these concerns are overstated and that exchange efficiency generally obtains in a liability rule regime. But only when the parties are perfectly rational. When the standard rationality assumption is replaced with a more realistic, bounded rationality assumption, liability rules no longer support exchange efficiency. Bounded rationality thus emerges as a foundational element in the theory of property.

Why Do Startups Use Trade Secrets

Abstract: Empirical studies of the use of trade secrecy are scant, and those focusing on startups, non-existent. In this paper, we present the first set of data — drawn from the Berkeley Patent Survey — on the use of trade secrets by U.S. startup companies in the software, biotechnology, medical device, and hardware industries. Specifically, we report on the prevalence of trade secrecy usage among startups. Additionally, we assess the importance of trade secrets in relation to other forms of intellectual property protection and barriers to entry, such as patents, copyrights, first-mover advantage, and complementary assets. We segment these results by a variety of factors, including industry, company business model, overall revenue, patenting propensity, funding sources, innovation types, and licensing. From this segmentation, we implement a basic regression model and report on those factors showing a statistically significant relationship in the use of trade secrets by startups. Our results point to three major findings. First, trade secrecy serves other important aims aside from first-mover advantage. Second, trade secrets may act both as economic complements and substitutes to patenting. Third, trade secrets may serve as important strategic assets, functioning much in the same manner as patents in terms of licensing and setting the boundaries of the firm.

The New Oral Argument: Justices as Advocates

Abstract: This Article conducts a comprehensive empirical inquiry of 55 years of Supreme Court oral argument, showing that judicial activity has increased dramatically, in terms of words used, duration of speech, interruptions made, and comments proffered. The Court is asking no more questions of advocates; instead, the justices are providing conclusions and rebutting their colleagues. In addition, the justices direct more of their comments and questions to the side with whom they ultimately disagree. Furthermore, “losing” justices, be it ideological camps that are outnumbered on the Court or dissenters in specific cases, use oral arguments to push back against the dominant group, reasserting an opposing narrative through oral argument. These forms of judicial behavior constitute advocacy, rather than judging. These are not trends that have gradually emerged over time: rather, we predict and establish that oral arguments changed dramatically in 1995, in response to the rapidly growing political polarization in Congress and the public at large. Partisan division, anger at political opponents, and disappearing middle ground all affect not only political players, but shape how Supreme Court justices behave at oral argument, the one public part of the Court’s decision-making process.

Rethinking the Efficiency of the Common Law

Abstract: This Article shows how Posner and other scholars who claimed that common law was efficient misunderstood the structure of common law. If common law was more efficient, there would have been a noticeable push across most, if not all, doctrines to greater efficiency. This has not been the case. Rather, common law, better recast as a “platform,” could, under a certain set of parameters, lead to efficient outcomes. Next, the Article’s analysis suggests that while not every judge thinks about efficiency in decision-making, there must be some architectural or governance feature pushing in the direction of efficiency — which exists in some areas of law and not in others. This Article explains two-sided markets, or platforms, generally and applies the modular open-source platform model to judge made law. In doing so, it explores concepts that impact the efficiency of such platforms — platform governance, modularity, and fragmentation. Then, the Article applies the understanding of platforms to several areas of law that might be understood as more prone to economic analysis because the issues addressed in law tend to be more “economic,” such as torts, bankruptcy, patents, and corporations. In these areas, no combination of platform architecture and modularity has allowed for the development of more efficient legal rules as a general matter. Finally, this Article studies antitrust law as the one area of law that suggests that the efficiency of common law is possible and the causal mechanism of necessary conditions that needs to be met. Antitrust law is different than other areas of law because of a singular goal, an architectural governance based on a single federal court (the Supreme Court) with few substantive legislative changes for the past 100 years, which provides for coherent governance of the platform. The Article concludes by discussing the implications of an efficient platform design for other areas of law.

Conflict Minerals and Crimes Against Humanity in the DRC: How to Hold Individual Corporate Officers Criminally Liable

Abstract: International criminal law is concerned with holding perpetrators responsible for the gravest crimes committed by humanity. The larger and more heinous the crime, however, the more complicated the prosecution. Identifying the relevant actors, producing sufficient evidence to impose liability, and bringing criminals to justice is a challenging endeavor. This complex process becomes even more daunting when factoring in complicit actors. This Note discusses the different legal mechanisms to hold individual corporate officers criminally liable for complicity in committing crimes against humanity and other human rights atrocities in the Democratic Republic of the Congo (“DRC”) as a result of their participation in the conflict mineral trade. Part I provides an overview of the conflict in the DRC, where rebel groups have profited off the conflict mineral trade for over a decade, committing atrocious crimes against civilians in their wake, and then addresses how corporations have contributed to the ongoing violence. Next, Part II defines the elements of crimes against humanity and analyzes how the atrocities committed in the DRC satisfy them. Then, Part III addresses the three potential mechanisms of liability: accomplice liability, superior responsibility, and joint criminal enterprise: category three (“JCE III”), by looking at each mechanism’s elements and any differences between the different inter-

Changes Are Not Enough: Problems Persist with NCAA's Adjudicative Policy

Abstract: The National Collegiate Athletic Association (NCAA) identifies as “a member-led organization dedicated to the well-being and lifelong success of college athletes.”1 In seeking to “[p]rioritiz[e] academics, well-being and fairness so college athletes can succeed on the field, in the classroom and for life,” the reach of the NCAA is strong—overseeing over 1117 colleges and universities, 100 athletic conferences, half a million college athletes, 19,750 teams, and 90 championships in twenty-four sports across three divisions.2 In addition to the human-capital impact, the financial impact of the organization is just as startling, with the NCAA bringing in over $1 billion in annual revenue in 2017.3 The footprint of the NCAA is massive, and understandably, with this come ebbs and flows of excessive praise and criticism from its constituents. Recently, the critical eye of the public has focused on the NCAA’s adjudicative and enforcement policy. The U.S. Department of Justice sparked the spotlight in September 2017, when it revealed it was pursuing criminal charges against collegiate basketball coaches for allegations that include those collegiate coaches accepting bribes in return for steering their success-