“Biometric ID Cybersurveillance,” an article by Washington and Lee law professor Margaret Hu, recently received more than 2000 downloads from the Duke Law Scholarship Repository. The article was discussed by a guest on the radio show Coast to Coast AM, and listeners of the show flocked to the Duke site to read the article.
In the article, Hu explores the constitutional and other legal consequences of big data cybersurveillance generally and mass biometric dataveillance in particular. The article focuses on how biometric data is increasingly incorporated into identity management systems through bureaucratized cybersurveillance or the normalization of cybersurveillance through the daily course of business and integrated forms of governance.
Prof. Hu’s article has already been reviewed favorably a number of times, including on the popular law blog Concurring Opinions. You can read an excerpt from the review here.
Washington and Lee law professor Tim Jost has a new article out on health care reform, cross published by the New England Journal of Medicine and the Harvard Business Review. The article, titled “Regulating Private Health Insurance to Promote High-Value Health Care,” looks at how Title 1 of the Affordable Care Act impacts previous efforts to encourage the creation of high-value health care. In conclusion, Prof. Josts writes:
In adopting the ACA, Congress embraced an ambitious agenda of regulation and public reporting to encourage private insurers to improve the value of health care. Congress tried to encourage insurers to pursue activities that some were already pursuing and to emulate value-purchasing initiatives in the Medicare and Medicaid program. HHS [Health and Human Services] seems, however, to have made private insurance value purchasing a low priority. It is likely to be several years before we learn whether the ACA provisions that address private insurers will in fact improve the value of health care.
The article is available for download from the NEJM website.
Washington and Lee law school professor Lyman Johnson has published “Unsettledness in Delaware Corporate Law: Business Judgment Rule, Corporate Purpose” in the Delaware Journal of Corporate Law. From the abstract.
This Article revisits two fundamental issues in corporate law. One — the central role of the business judgment rule in fiduciary litigation — involves a great deal of seemingly settled law, while the other — is there a mandated corporate purpose — has very little law. Using the emergent question of whether the business judgment rule should be used in analyzing officer and controlling shareholder fiduciary duties, the latter issue having recently been addressed by Chancellor Strine in the widely-heralded MFW decision, this Article proposes a fundamental rethinking of the rule’s analytical preeminence. For a variety of reasons, it is suggested that fiduciary duties should be made more prominent and the business judgment rule should be dramatically deemphasized. The policy rationales for the rule are sound, but they have no relevance for shareholders and introduce needless complexity. For directors, those rationales do not apply in the loyalty setting, and in the care setting, can be achieved by recalling simply that there is no substance to judicial review in that context.
As to corporate purpose, the Article advocates that Delaware law permit a pluralistic approach in the for-profit corporate sector. Long agnostic about ultimate corporate objective, Delaware law may have turned unnecessarily toward a strict shareholder primacy focus in the 2010 eBay decision. To bring clarification and to foster flexibility, Professor Johnson recommends a legislative default provision, with an opt-out feature. This feature should be in the business corporation statute itself. Delaware’s new benefit corporation law laudably advances the goal of institutional pluralism, but does so at the ironic risk of reinforcing a belief that business corporations themselves are legally permitted only to maximize profits. Judges in a democratic society should not dictate institutional goals.
The article is available for download from SSRN. This work is based on Prof. Johnson’s lecture last year at Widener University School of Law, where he delivered the prestigious Francis G. Pileggi Distinguished Lecture in Law.
Washington and Lee law professor Christopher Bruner has published an article titled “Is the Corporate Director’s Duty of Care a ‘Fiduciary’ Duty? Does It Matter?” in the Wake Forest Law Review. From the abstract:
While reference to “fiduciary duties” (plural) is routinely employed in the United States as a convenient short-hand for a corporate director’s duties of care and loyalty, other common-law countries generally treat loyalty as the sole “fiduciary duty.” This contrast prompts some important questions about the doctrinal structure for duty of care analysis adopted in Delaware, the principal jurisdiction of incorporation for U.S. public companies. Specifically, has the evolution of Delaware’s convoluted and problematic framework for evaluating disinterested board conduct been facilitated by styling care a “fiduciary” duty? If so, then how should Delaware lawmakers and judges respond moving forward?
In this Essay I argue that styling care a “fiduciary” duty has impacted Delaware’s duty of care analysis in ways that are not uniformly positive. Historically, loyalty has been aggressively enforced, while care has hardly been enforced at all – the former approach aiming to deter conflicts of interest through probing analysis of “entire fairness,” while the latter aims to promote entrepreneurial risk-taking through a hands-off judicial posture embodied in the business judgment rule. Conflation of these differing concepts as “fiduciary duties,” however, has facilitated a tendency toward over-enforcement of care, periodically threatening to impair entrepreneurial risk-taking until arrested by a countervailing legislative or judicial response. Additionally, their conflation threatens to erode the duty of loyalty by fueling the contractarian argument that the sole utility of such “fiduciary duties” is to fill contractual gaps, and that corporations therefore ought to possess latitude to “opt out” of loyalty to the degree already permitted with respect to care.
Prof. Bruner’s new article is available for download from SSRN. In addition, Prof. Bruner has also published a book review of Directors’ Duties and Shareholder Litigation in the Wake of the Financial Crisis by Joan Loughrey (ed). The review appears in the Cambridge Law Journal and is available for download for the journal’s website.
The Future of Juvenile Justice
The Sixth Annual Conference on
The Future of Adversarial and Inquisitorial Systems
Chapel Hill, North Carolina
April 10-12, 2014
This year the main conference and the preconference for young scholars will address two different aspects of the changing face of juvenile justice: the main conference will address juvenile justice from a comparative point of view, while the preconference will address juvenile justice in transnational and international law.
Juvenile Justice in Comparative Perspective
Sixth FAIS Conference, Chapel Hill, 11-12 April 2014
Tamar Birckhead, UNC, Coordinator
Emily Buss, Chicago, USA
Tamar Birckhead, UNC, USA
Nick Bala, Queen’s University, Ontario, Canada
Claudia Cesari, Macerata, Italy
Frieder Duenkel, Greifswald, Germany
Kevin Haines, Swansea, Wales
Jackie Hodgson, Warwick, England
Barbara Woodhouse/ Sayali Bapat, Emory, USA
* * * * *
Juvenile Criminal Justice and Human Rights:
International and Transnational Perspectives
Pre-Conference for Young Scholars, Chapel Hill 10 April 2014
Solange Mouthaan, Warwick, UK, Coordinator
Nicholas Atallah, JD student, Duke, USA
Regula Echle, PhD student, Basel, Switzerland
Marta Lavacchini, PhD student, Florence, Italy
John Miller, JD student, UNC, USA
Maura O’Keefe, JD student, UNC, USA
Michele Simonato, PhD, Genoa, Italy
Hugh Williams, PhD student Warwick, England
For more information, please contact Mike Corrado at firstname.lastname@example.org.
On Dec. 4, Washington and Lee law professor Josh Fairfield will present during a plenary session at the Minnesota Annual Judicial Conference. The title of his talk is “We the People in a Virtual World.” Below is the abstract for the talk:
What if The Matrix were real? Through virtual world technology, users experience persistent and interactive computerized three dimensional worlds populated by many other people, all while sitting at their computer, or even as they walk or drive around. There is a lot of money at stake in this technology. Millions of citizens spend thousands of hours and billions of dollars in virtual worlds, for digital objects, or to buy digital currency. Virtual worlds, social networks, and augmented reality enable people to live out their economic, social and political lives in new online communities. Because citizens care deeply about their property, personhood, and community, they will bring claims of harm or disputes needing resolution to courts.
In the common law system, state courts see technology cases first. The common law often is technology law. New cases are often cases of first impression because of new technology. Virtual world technology has brought multi-million-member communities together online and supported a multi-billion dollar economy, but it has also afforded new opportunities for fraud, crime, or disputes over property. Claims of theft of virtual property, fraud through Ponzi schemes based on virtual currency, and questions who inherits virtual property or social network accounts either have or will soon come before courts.
This presentation will touch on core common law areas, and show how they are likely to be affected by the rise of virtual worlds, social networks, virtual currency, and wearable computing. The presentation will begin with an introduction to virtual world technology, continue with a description of the present and near-future cases that courts have or will soon engage, and conclude with a further-future look at the future of crypto-currencies. Finally, the developments of the past year make it clear that virtualization technologies will not merely remain in virtual worlds, but increasingly impact everyday life. Virtual currencies let drug dealers sell real drugs. Wearable computing like Google’s Glass take virtual worlds out of the desktop computer and overlay it on top of the real world. This look into the further future will also engage mixed and augmented reality technologies: computer technologies that bring these virtual experiences into the real world.