Duke Law Journal
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Open Access journal
ISSN (Print) 0012-7086
Published by Duke University Press [55 journals]
- Journal Staff
PubDate: Mon, 27 Mar 2017 12:25:40 PDT
- A Picture Is Worth a Thousand Material-Connection Disclosures: Endorsers,
Instagram, and the Federal Trade Commission’s Endorsement Guides
Authors: Lauren Myers
Abstract: With the spread of social-media advertising, the Federal Trade Commission (FTC) has made many attempts to regulate the burgeoning field. However, the complexity of social media makes it difficult to regulate without violating the First Amendment. This difficulty is especially true for Instagram, a social-media platform where pictures—a form of speech protected by the First Amendment—are the primary focal point. This Note argues that the FTC’s material-connection disclosure requirement potentially violates the First Amendment as it applies to Instagram advertisements. Instead of focusing on audience perception when determining whether an endorser must include a material-connection disclosure, the FTC should instead consider the poster’s intent in sharing an Instagram post to prevent any chilling of speech or violations of posters’ First Amendment rights.
PubDate: Mon, 27 Mar 2017 12:25:36 PDT
- Health Care’s Other “Big Deal”: Direct Primary Care Regulation in
Contemporary American Health Law
Authors: Glenn E. Chappell
Abstract: Direct primary care is a promising, market-based alternative to the fee-for-service payment structure that shapes doctor–patient relationships in America. Instead of billing patients and insurers service by service, direct primary care doctors charge their patients a periodic, prenegotiated fee in exchange for providing a wide range of healthcare services and increased availability compared to traditional practices. This “subscription” model is intended to eliminate the administrative burdens associated with insurer interaction, which, in theory, allows doctors to spend more time with their patients and less time doing paperwork.Direct practices have become increasingly popular since Congress passed the Affordable Care Act (ACA). This growth has been driven by legislation in several states that resolves a number of legal questions that slowed the model’s growth and by the ACA’s recognition of the model as a permissible way to cover primary care in “approved” health plans. Yet legal scholars have hardly focused on direct primary care. Given the model’s growth, however, the time is ripe for a more focused legal inquiry.This Note begins that inquiry. After tracing the model’s evolution and its core components, this Note substantively examines the laws in states that regulate direct practices and analyzes how those laws address a number of potential policy concerns. It then analyzes direct primary care’s broader role in the contemporary American healthcare marketplace. Based upon that analysis, this Note concludes that direct primary care is a beneficial innovation that harmonizes well with a cooperative-federalism-based healthcare policy model.
PubDate: Mon, 27 Mar 2017 12:25:32 PDT
- Rise of the Digital Regulator
Authors: Rory Van Loo
Abstract: The administrative state is leveraging algorithms to influence individuals’ private decisions. Agencies have begun to write rules to shape for-profit websites such as Expedia and have launched their own online tools such as the Consumer Financial Protection Bureau’s mortgage calculator. These digital intermediaries aim to guide people toward better schools, healthier food, and more savings. But enthusiasm for this regulatory paradigm rests on two questionable assumptions. First, digital intermediaries effectively police consumer markets. Second, they require minimal government involvement. Instead, some for-profit online advisers such as travel websites have become what many mortgage brokers were before the 2008 financial crisis. Although they make buying easier, they can also subtly advance their interests at the expense of those they serve. Publicly run alternatives lack accountability or—like the Affordable Care Act health-insurance exchanges—are massive undertakings. The unpleasant truth is that creating effective digital regulators would require investing heavily in a new oversight regime or sophisticated state machines. Either path would benefit from an interdisciplinary uniform process to modernize administrative, antitrust, commercial, and intellectual property laws. Ideally, a technology meta-agency would then help keep that legal framework updated.
PubDate: Mon, 27 Mar 2017 12:25:29 PDT
- Police Union Contracts
Authors: Stephen Rushin
Abstract: This Article empirically demonstrates that police departments’ internal disciplinary procedures, often established through the collective bargaining process, can serve as barriers to officer accountability.Policymakers have long relied on a handful of external legal mechanisms like the exclusionary rule, civil litigation, and criminal prosecution to incentivize reform in American police departments. In theory, these external legal mechanisms should increase the costs borne by police departments in cases of officer misconduct, forcing rational police supervisors to enact rigorous disciplinary procedures. But these external mechanisms have failed to bring about organizational change in local police departments. This Article argues that state labor law may partially explain this failure. Most states permit police officers to bargain collectively over the terms of their employment, including the content of internal disciplinary procedures. This means that police union contracts—largely negotiated outside of public view—shape the content of disciplinary procedures used by American police departments.By collecting and analyzing an original dataset of 178 union contracts from many of the nation’s largest police departments, this Article shows how these agreements can frustrate police accountability efforts. A substantial number of these agreements limit officer interrogations after alleged misconduct, mandate the destruction of disciplinary records, ban civilian oversight, prevent anonymous civilian complaints, indemnify officers in the event of civil suits, and limit the length of internal investigations. In light of these findings, this Article theorizes that the structure of the collective bargaining process may contribute to the prevalence of these problematic procedures. It concludes by considering how states could amend labor laws to increase transparency and community participation in the negotiation of police union contracts.
PubDate: Mon, 27 Mar 2017 12:25:25 PDT
- Journal Staff
PubDate: Thu, 16 Feb 2017 07:20:29 PST
- Searching for Adequate Accountability: Supervisory Priests and the
Church’s Child Sex Abuse Crisis
Authors: Benjamin D. Wasserman
Abstract: In 2002, the Boston Globe published a report exposing child sex abuse by priests and a cover-up by supervisory priests. Supervisory priests—church officials who supervise lower-ranking priests—concealed reports of sexual abuse by lower-ranking priests and created substantial risks of sexual abuse to children. Prosecutors tried to hold supervisory priests accountable by turning to statutes that either did not capture the moral culpability of priests, like statutes prohibiting obstruction of justice or contributing to the delinquency of a minor; or that did not legally encompass their misconduct, like child-endangerment statutes. Child endangerment captures the moral culpability of supervisory priests’ misconduct, but child-endangerment statutes based on the Model Penal Code (MPC) do not legally cover supervisory priests or their acts. Though supervisory priests chose to suppress reports of child sex abuse, prosecutors cannot constitutionally shoehorn misconduct into statutes—like child endangerment—that were never before interpreted to apply to individuals like supervisory priests. Instead of breaching the supervisory priests’ constitutionally guaranteed notice that their conduct constituted child endangerment, prosecutors should encourage state legislatures to: 1) extend statutes of limitations for crimes against minors and include clergy as mandatory reporters; 2) amend child-endangerment statutes to include supervisory priests and those similarly situated; and 3) criminalize the reckless creation of a substantial risk of child sex abuse, and the reckless failure to alleviate that risk when there is a duty to do so. Absent legislative action, prosecutors should use statutes that represent a lesser degree of moral culpability, such as contributing to the delinquency of a minor or mandatory-reporter statutes. Enacting statutes that both legally encompass and adequately reflect the blameworthiness of supervisory priests will hopefully deter similar misconduct and protect children from sex abuse in institutional settings.
PubDate: Thu, 16 Feb 2017 07:20:26 PST
- When Stuff Becomes Art: The Protection of Contemporary Art Through the
Elimination of VARA’s Public-Presentation Exception
Authors: Elizabeth Plaster
Abstract: The Visual Artists Rights Act of 1990 (VARA) grants an artist the broad power to “prevent any intentional distortion, mutilation, or other modification of the work which would be prejudicial to [the artist’s] honor or reputation.” This right is significantly circumscribed, however, by VARA’s public-presentation exception, which states that a modification “which is the result . . . of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification” that would otherwise violate VARA.This Note argues that the public-presentation exception is injudicious in light of the rise of the contemporary art movement. Much more than artists of earlier movements, contemporary artists rely on precise arrangement of elements and engagement with the physical space surrounding these elements in the creation of a work of art. Yet it is control over those critical contextual elements, arguably the most critical element of a contemporary work, that VARA explicitly denies to the contemporary artist. The public-presentation exception threatens more than just the personal interests of artists—a greater societal interest in preserving authentic cultural heritage for future generations is continually undermined as long as the public-presentation exception remains codified in VARA. Lasting protection of the integrity of works of contemporary art thus requires the elimination of the public-presentation exception.
PubDate: Thu, 16 Feb 2017 07:20:23 PST
- Rape Beyond Crime
Authors: Margo Kaplan
Abstract: Public health experts agree that sexual violence constitutes a significant public health issue. Yet criminal law dominates rape law almost completely, with public health law playing at best a small supporting role. Recent civil law developments, such as university disciplinary proceedings, similarly fixate on how best to find and penalize perpetrators. As a result, rape law continues to spin its wheels in the same arguments and obstacles.This Article argues that, without broader cultural changes, criminal law faces a double bind: rape laws will either be ineffective or neglect the importance of individual culpability. Public health law provides more promising terrain for rape prevention because it is a strong legal framework that can engage the complex causes of rape, including the social norms that promote sexual aggression. While criminal law can only punish bad behavior, public health interventions can use the more effective prevention strategy of promoting positive behaviors and relationships. They can also address the myriad sexual behaviors and social determinants that increase the risk of rape but are outside the scope of criminal law. Perhaps most importantly, public health law relies on evidence-based interventions and the expertise of public health authorities to ensure that laws and policies are effective.Transforming rape law in this way provides a framework for legal feminism to undertake the unmet challenge of “theorizing yes,” that is, moving beyond how to protect women’s right to refuse sex and toward promoting and exploring positive models of sex. Criminal law is simply incapable of meeting this challenge because it concerns only what sex should not be. A public health framework can give the law a richer role in addressing the full spectrum of sexual attitudes and behaviors.
PubDate: Thu, 16 Feb 2017 07:20:21 PST
- Who Cares How Congress Really Works?
Authors: Ryan D. Doerfler
Abstract: Legislative intent is a fiction. Courts and scholars accept this, by and large. As this Article shows, however, both are confused as to why legislative intent is a fiction and as to what this fiction entails.This Article first argues that the standard explanation—that Congress is a “they,” not an “it”—rests on an unduly simple conception of shared agency. Drawing from contemporary scholarship in the philosophy of action, it contends that Congress has no collective intention, not because of difficulties in aggregating the intentions of individual members, but rather because Congress lacks the sort of delegatory structure that one finds in, for example, a corporation.Second, this Article argues that—contrary to a recent, influential wave of scholarship—the fictional nature of legislative intent leaves interpreters of legislation with little reason to care about the fine details of legislative process. It is a platitude that legislative text must be interpreted in “context.” Context, however, consists of information salient to author and audience alike. This basic insight from the philosophy of language necessitates what this Article calls the “conversation” model of interpretation. Legislation is written by legislators for those tasked with administering the law—for example, courts and agencies—and those on whom the law operates—for example, citizens. Almost any interpreter thus occupies the position of conversational participant, reading legislative text in a context consisting of information salient both to members of Congress and to citizens (as well as agencies, courts, etc.).The conversation model displaces what this Article calls the “eavesdropping” model of interpretation—the prevailing paradigm among both courts and scholars. When asking what sources of information an interpreter should consider, courts and scholars have reliably privileged the epistemic position of members of Congress. The result is that legislation is erroneously treated as having been written by legislators exclusively for other legislators. This tendency is plainest in recent scholarship urging greater attention to legislative process—the nuances of which are of high salience to legislators but plainly not to citizens.
PubDate: Thu, 16 Feb 2017 07:20:18 PST
- Journal Staff
PubDate: Wed, 18 Jan 2017 07:38:03 PST
- Giving Vulnerable Students Their Due: Implementing Due Process Protections
for Students Referred from Schools to the Justice System
Authors: Meredith S. Simons
Abstract: There are two primary ways that schools can funnel children into the “school-to-prison pipeline.” The first is by simply removing children from school via expulsions and suspensions, which increase students’ chances of dropping out and getting in trouble with the law. The Supreme Court, recognizing the serious consequences of being forced out of school, has held that expulsions and long-term suspensions constitute deprivations of students’ property interest in their educations and liberty interest in their reputations. Thus, schools seeking to expel or suspend students must provide them with basic due process protections. But schools can also refer students directly to the justice system by having police officers arrest students or issue citations at school. Under current law, these students are not entitled to any due process protections at the point of arrest or referral.This Note argues that the absence of due process protections for students who are arrested or referred to the justice system at school is incompatible with the Supreme Court’s procedural due process jurisprudence in general and its decision in Goss v. Lopez in particular. The same property and liberty interests that the Court identified as worthy of protection in Goss are implicated by in-school arrests and referrals. Therefore, school administrators who intend to have a child arrested or referred to the justice system should be required to provide students with oral notice of the accusation against them and an opportunity to respond. After an arrest or referral, the school should provide students and their parents with written notice of the arrest or referral and the rationale for the action. These measures will not unduly burden administrators or schools, but they will provide meaningful protections for students.
PubDate: Wed, 18 Jan 2017 07:38:00 PST
- Safeguarding the ADA’s Antidiscrimination Mandate: Subjecting
Arrests to Title II Coverage
Authors: Shanna Rifkin
Abstract: The news has been peppered with tragic stories of individuals with disabilities who have been killed or injured following police encounters. In the aftermath of these incidents, as injured parties seek accountability, a question looms: Can arrest proceedings violate the Americans with Disabilities Act?The ADA was enacted to prohibit disability discrimination. The law had an ambitious agenda, supported by broad statutory authority, to ensure equality in all areas of public life for individuals with disabilities. But while the ADA has fostered integration into many aspects of modern life, one area remains deeply contested: arrests.If Congress envisioned that Americans with disabilities would enjoy lives free from discrimination, excluding arrests from ADA coverage undermines the law’s broad promise of protection. In 2015, a Supreme Court opinion raised but failed to resolve this very issue, leaving an important question unanswered. This Note examines whether arrest proceedings must comply with the ADA and argues that they should. It then proposes comprehensive disability training as a tool to aid ADA compliance and avoid discriminatory arrest proceedings.
PubDate: Wed, 18 Jan 2017 07:37:57 PST
- Patent Law’s Reproducibility Paradox
Authors: Jacob S. Sherkow
Abstract: Clinical research faces a reproducibility crisis. Many recent clinical and preclinical studies appear to be irreproducible—their results cannot be verified by outside researchers. This is problematic for not only scientific reasons but also legal ones: patents grounded in irreproducible research appear to fail their constitutional bargain of property rights in exchange for working disclosures of inventions. The culprit is likely patent law’s doctrine of enablement. Although the doctrine requires patents to enable others to make and use their claimed inventions, current difficulties in applying the doctrine hamper or even actively dissuade reproducible data in patents. This Article assesses the difficulties in reconciling these basic goals of scientific research and patent law. More concretely, it provides several examples of irreproducibility in patents on blockbuster drugs—Prempro, Xigris, Plavix, and Avastin—and discusses some of the social costs of the misalignment between good clinical practice and patent doctrine. Ultimately, this analysis illuminates several current debates concerning innovation policy. It strongly suggests that a proper conception of enablement should take into account after-arising evidence. It also sheds light on the true purpose—and limits—of patent disclosure. And lastly, it untangles the doctrines of enablement and utility.
PubDate: Wed, 18 Jan 2017 07:37:54 PST
- A Market for Sovereign Control
Authors: Joseph Blocher et al.
Abstract: Can popular sovereignty and sovereign territory coexist? Can countries exchange sovereign territory consistently with the principle of self-determination? What if countries’ rights to territorial integrity were predicated on corresponding duties to govern well? And can the international system provide mechanisms and incentives to improve the status quo?These questions are not simply academic. Across the world, many regions are located in the wrong nations—wrong in the sense that the people of these regions believe they would be safer, happier, and wealthier if surrounded by different borders and governed by different leaders. Such people might be able to improve their lot by emigrating or voting out their current government, but those are imperfect solutions and are often unavailable to those who need them most. We ask how international law could help ameliorate the bad-government problem by facilitating welfare-enhancing border changes.
PubDate: Wed, 18 Jan 2017 07:37:51 PST
- Journal Staff
PubDate: Fri, 09 Dec 2016 12:22:17 PST
- “We Believe”: Omnicare, Legal Risk Disclosure and Corporate
Authors: Hillary A. Sale et al.
Abstract: The Supreme Court’s decision in Omnicare Inc. v. Laborers District Council Construction Industry Pension Fund presents new challenges for boards of directors. The opinion speaks to whether and when an issuer’s statement of belief can be false or misleading other than by proof that the issuer’s genuine opinion was different from what it stated. Statements of opinion imply something about how the belief was formed, and that process implicates the role of directors as fiduciaries.This Article uses Omnicare as a starting point for exploring and developing the interplay between disclosure, discourse, and fiduciary duties. Using the lens of corporate-discourse theory, this Article explores how the judicial process extracts (or should extract) meaning from ambiguous, often strategically crafted words communicated to vastly complicated financial markets. Questions such as what it means for a corporate entity—a legal fiction incapable of thought—to express a belief, who the “we” is in “we believe our practices are legally compliant,” and what it means to believe, all help to frame the conversation about the role of directors in disciplining the corporate-disclosure process.Federal securities law cases that raise questions about disclosure related to legal compliance and derivative lawsuits challenging board oversight are common after a big corporate penalty for violations of federal or state law. Regulators are also pushing boards of directors to participate more in legal and disclosure quality control. To the extent that Omnicare was favorable to plaintiffs in allowing some suits to proceed notwithstanding belief or opinion qualifiers, this Article posits that boards need to exercise greater responsibility for disclosures, particularly with respect to legal compliance. In this manner, the securities laws perform in an information-forcing-substance manner, creating a disclosure regime that is backed by due diligence and fiduciary performance. Finally, this Article argues that the Omnicare litigation—and control over discourse about legal risk—belongs in the broader context of board fiduciary responsibility for enterprise risk management generally, and legal compliance in particular.
PubDate: Fri, 09 Dec 2016 12:22:14 PST
- Detecting Good Public Policy Rationales for the American Rule: A Response
to the Ill-Conceived Calls for “Loser Pays” Rules
Authors: Peter Karsten et al.
Abstract: Several critiques have been leveled at the American Rule—that is, the rule that each party to a lawsuit should pay for its attorneys. Some claim that there were no principled justifications offered by the nineteenth-century jurists who authored the opinions marking the rule’s origins. Instead, these jurists only cited their states’ “taxable costs” statutes. Others claim that the American Rule—as well as its close relative, the contingency-fee contract—contributed to a “liability explosion” in that century. This Article offers a comprehensive examination of the origins of, rationales given for, and impact of the American Rule; then it evaluates instances in which the rule has faced legislative, judicial, and academic opposition.
PubDate: Fri, 09 Dec 2016 12:22:12 PST
- Regulating Public Offerings of Truly New Securities: First Principles
Authors: Merritt B. Fox
Abstract: The public offering of truly new securities involves purchases by investors in sufficient number and in small enough blocks that each purchaser’s shares can reasonably be expected to be freely tradable in a secondary market that did not exist before the offering. Increasing the ability of small and medium-sized enterprises (SMEs) to make such offerings has been the subject of much recent discussion.At the time that a firm initially contemplates such an offering, unusually large information asymmetries exist between its insiders and potential investors. These can lead to severe adverse-selection problems that prevent a substantial portion of worthy offerings from being successfully marketed. A regime relying solely on market-based antidotes to this problem—signaling, underwriter reputation, and accountant certification—and backed only by liability for intentional affirmative misrepresentation will fall well short of being a solution. This shortfall suggests a role for regulation.This Article goes back to first principles to determine the proper content of such regulation. The relevant questions include: What should issuers be required to disclose at the time of the offering and thereafter? Under what circumstances should various offering participants be liable for damages if, at the time of the offering, there were misstatements or omissions? And should this regime be mandatory or optional? The answers are then used to critically evaluate a number of recent U.S. reforms aimed at increasing SME offerings by lessening regulatory burdens. These include Securities Act Rule 506(c), Regulation A+, and the new crowdfunding rules.
PubDate: Fri, 09 Dec 2016 12:22:09 PST
- The Knowledge Gap in Workplace Retirement Investing and the Role of
Authors: Jill E. Fisch et al.
Abstract: The dramatic shift from traditional pension plans to participant-directed 401(k) plans has increased the obligation of individual investors to take responsibility for their own retirement planning. With this shift comes increasing evidence that investors are making poor investment decisions.This Article seeks to uncover the reasons for poor investment decisions. We use a simulated retirement investing task and a new financial literacy index to evaluate the role of financial literacy in retirement investment decisionmaking in a group of nonexpert participants. Our results suggest that individual employees often lack the skills necessary to support the current model of participant-directed investing. We show that less knowledgeable participants allocate too little money to equity, engage in naive diversification, fail to identify dominated funds, and are inattentive to fees. Over the duration of a retirement account, these mistakes can cost investors hundreds of thousands of dollars.We then explore the capacity of professional advisors to mitigate this problem. Using the same study with a group of professional advisors, we document a predictable but nonetheless dramatic knowledge gap between professionals and ordinary investors. The professional advisors were far more financially literate and made better choices among investment alternatives. Our results highlight the potential value of professional advice in mitigating the effects of financial illiteracy in retirement planning. Our findings suggest that, in weighing the costs of heightened regulation against the value of reducing possible conflicts of interest, regulators need to be sensitive to the knowledge gap.
PubDate: Fri, 09 Dec 2016 12:22:06 PST