Over at the Criminal Law JOTWELL, Mary Fan has reviewed Margaret Hu’s forthcoming article, Biometric ID Cybersurveillance, 88 Indiana L.J.__ (forthcoming 2013), available at SSRN. Margaret will be joining the W&L Law Faculty this coming July. Here is an excerpt of the review, which was also featured at The Faculty Lounge:
The dystopian world of “biometric ID cybersurveillance” that Margaret Hu envisions makes the old passports and smart agents seem old-fashioned. She catalogues the many ways the government is working toward expanding its “virtual cybersurveillance and dataveillance capacities.” She maps out emerging forms of “bureaucratized cybersurveillance” – more pervasive ways of technology-assisted identity verification and tracking. For example, instead of those stodgy information-limited modes of ID checks such as reviewing paper passports, alien identity papers, social security cards and driver’s licenses, she writes of biometric ID checks, digitalized IDs and other more information-laden methods of identification. Automated checks, database screening and biometric IDs may even “remove the matching process from the trained expertise of specific forensic experts,” leaving us at the mercy of glitchy and hard-to-contest hardware and software.
The future is unfolding now, her article suggests. Proposals such as a biometric national ID are just ideas now, she notes. But in myriad ways, methods and modes of identification are developing toward such a future. Hu’s paper has several informative tables that collect valuable information about the ways that more pervasive technology-aided methods of identity verification and tracking are seeping into our present and future. Fittingly for an article about the government amassing data, one of the article’s most helpful contributions is its impressive amassing in one place numerous charts regarding the myriad programs, agencies and proposals that are structuring the future of more pervasive identity surveillance.
There is a brain trust of scholars working at the cutting edge of technology, privacy, big data, and the bounds of government power. Many convene each year at the Privacy Law Scholars Conference, an exciting hub for ideas created by Dan Solove and Chris Hoofnagle. Attend the conference and you will be struck by the dynamism and diversity of intellectual threads in this fast-expanding field of work.
What Hu’s article contributes to the rich conversation is a new voice and great ambition in bringing together many of the major themes and challenges. Readers will benefit from her great labors in offering useful taxonomies to frame the analysis and illuminate the scope and scale of what is unfolding.
W&L Law Professor A. Benjamin Spencer just published an article entitled Class Actions, Heightened Commonality, and Declining Access to Justice in the Boston University Law Review. Here is the abstract:
A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are “questions of law or fact common to the class.” Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave the requirement new vitality by reading into it an obligation to identify among the class a common injury and common questions that are “central” to the dispute. Not only is such a reading of Rule 23’ s commonality requirement unsupported by the text of the rule, but it also is at odds with the historical understanding of commonality in both the class action and joinder contexts. The Court’s articulation of a heightened commonality standard can be explained by a combination of its negative view of the merits of the discrimination claims at issue in Dukes, the conflation of the predominance requirement with commonality, and the Court’s apparent penchant for favoring restrictive interpretations of procedural rules that otherwise promote access. Although an unfortunate consequence of the Dukes Court’s heightening of the commonality standard will be the enlivening of challenges to class certifications that would otherwise never have been imagined, this Article urges the Court to reject heightened commonality and read Rule 23 in a manner that remains true to the language and history of the common question requirement.
This article may be downloaded by visiting the BU Law Review website.
Professor Timothy Lubin, Lecturer in Religion and Law and Professor of Religion at Washington & Lee University, recently posted an article on SSRN entitled Legal Diglossia: Modeling Discursive Practices in Premodern Indic Law. Here is the abstract:
This article proposes to analyze the socio-linguistic practices documented in inscriptions from South and Southeast Asia between the fourth and sixteenth centuries as a type of “functional diglossia” characteristic of legal discourse in states influenced by the transregional Dharmaśāstra tradition in Sanskrit. This diglossia can take two forms. Sanskrit itself may be used as an acrolect, either alone or in bilingual records, where it has primarily expressive or ceremonial functions. But the focus in this article is on the other form: the use of a highly Sanskritized, formal and formulaic register of the local vernaculars. Starting with some observations about the impact of Sanskrit legal discourse on Old Khmer and Old Javanese legal records, comparable inscriptions in Old Tamil are examined in detail, noting the influence of first Prakrit and then Sanskrit on legal idiom. It is concluded that use of this Sanskritized register reflects not simply the prestige of Brahmanical high culture but also the perceived value and utility of an imported specialized conceptual system of law and administration. This study further suggests that the introduction of written legal documentation, simultaneous with the spread of Brahmanical legal ideas, led in turn to the formal recognition of local customary norms as law, in keeping with the Dharmaśāstric principle that customary norms constitute Dharma.
This article may be downloaded by visiting http://ssrn.com/abstract=1720704. Prof. Lubin specializes in Sanskrit religious and legal literature and Hinduism, and teaches courses in the College on Asian traditions, the comparative study of religion, and Sanskrit. In the Law School, he teaches fall seminars on “Law and Religion” and “Hindu Law in Theory and Practice.” His research deals with Indic legal traditions and Brahmanical Hindu ritual codes, the connections between them, and their reception in modern India.
W&L Law Professor A. Benjamin Spencer, Associate Dean for Research and Director of the Frances Lewis Law Center, has just published an article entitled The Law School Critique in Historical Perspective, 69 Wash. & Lee L. Rev. 1949 (2012). This article provides an extensive review of the history of legal education and legal education reform up to the present day, gleaning lessons along the way for how we might address contemporary challenges facing law schools. Here is the abstract:
Contemporary critiques of legal education abound. This arises from what can be described as a perfect storm: the confluence of softness in the legal employment market, the skyrocketing costs of law school, and the unwillingness of clients and law firms to continue subsidizing the further training of lawyers who failed to learn how to practice in law school. As legal jobs become increasingly scarce and salaries stagnate, the value proposition of law school is rightly being questioned from all directions. Although numerous valid criticisms have been put forth, some seem to be untethered from a full appreciation for how the current model of legal education developed. Indeed, a historical perspective on legal education is sorely missing from this debate, as many of the criticisms merely echo charges that have been lodged against legal education for well over a century, but do not draw lessons from how those former critiques ultimately failed to deliver fundamental change. This Article reviews the historical development of legal education in America, including the critiques and reforms made along the way, to gain insight that will inform our own efforts to make law schools better at preparing lawyers for practice.
This article, which was published in the Washington & Lee Law Review, may be downloaded from SSRN by visiting http://ssrn.com/abstract=2017114.
The January 2013 issue of the Banking Law Journal includes an article by W&L Professor of Practice James Pannabecker entitled “The CFPB Issues an Exemption from Dodd-Frank Mortgage Disclosures, Leading the Industry to a Potential Regulatory Cliff.”
The article argues that the Consumer Financial Protection Bureau made a mistake in not issuing a detailed final rule by January 21, 2013 as required by the Dodd-Frank Wall Street Reform and Consumer Protection Act, doing a disservice to both the industry and consumers. Instead, the agency issued an exemption for twelve disclosure requirements it intends to address in a final rule later in 2013. The agency took this action despite a Dodd-Frank provision stating that its mortgage requirements, including the twelve disclosures, would automatically take effect on January 21 if regulations were not adopted by that date. The CFPB could have excised from previous proposals the rules for each of the twelve disclosures and issued them in final form before January 21, then later adjusted the compliance date if appropriate. Its admittedly temporary exemption relies on regulatory flexibility options and invites litigation. The article offers disclosure language for lenders that choose to implement the twelve disclosures despite the CFPB exemption. Download: 130 Banking Law Journal 37 (January 2013).
Washington and Lee law professor Tim Jost has been named a contributing editor for Health Affairs, the nation’s leading health policy journal. Jost has been a regular contributor to the Health Affairs blog this year, authoring over thirty posts on the Affordable Care Act covering implementation issues and legal challenges.
Jost’s look at the 2012 election and the implementation of the Affordable Care Act in its aftermath topped the list of most-read Health Affairs Blog posts for November 2012. His posts previously captured three spots on Health Affairs 2011 Most Read List. An archive of Jost’s posts can be found here: http://healthaffairs.org/blog/author/jost/.
In addition, a perspective column Jost wrote on the litigation challenging the Affordable Care Act requirement that insurers and group health plans cover contraception was published recently in the New England Journal of Medicine. That column can be found here: http://www.nejm.org/doi/full/10.1056/NEJMp1214605?query=featured_home
W&L Law Professor Christopher Seaman has just published a piece in Yale’s Journal of Law and Technology entitled Best Mode Trade Secrets (co-authored with Brian Love). Here is the abstract:
You may download the piece by visiting http://yjolt.org/best-mode-trade-secrets.
We are pleased to announce the publication of the third edition of Professor Russell Miller‘s book The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press). This renowned English-language guide to German constitutional law has been fully updated and significantly expanded to incorporate previously omitted topics and recent decisions of the German Federal Constitutional Court, and includes a new foreword by Justice Ruth Bader Ginsburg.
“In the endeavor to gain knowledge from the problems confronted and resolutions reached by our counterparts abroad, the work of Donald P. Kommers, now joined by Russell A. Miller, is a rich resource. Offering far more than excellent English-language translations of the decisions of a renowned tribunal, Professors Kommers and Miller supply incisive analyses and commentary. I am pleased to herald the publication of this third edition of a masterful text. . . . Brought right up to the moment . . . The Constitutional Jurisprudence of the Federal Republic of Germany is an engaging, enlightening, indispensable source for those seeking to learn from the text and context of German constitutional jurisprudence.”—From the foreword by Ruth Bader Ginsburg, Associate Justice, the Supreme Court of the United States
First published in 1989, The Constitutional Jurisprudence of the Federal Republic of Germany has become an invaluable resource for scholars and practitioners of comparative, international, and constitutional law, as well as of German and European politics. The third edition of this renowned English-language reference has now been fully updated and significantly expanded to incorporate both previously omitted topics and recent decisions of the German Federal Constitutional Court. As in previous editions, Donald P. Kommers and Russell A. Miller’s discussions of key developments in German constitutional law are augmented by elegantly translated excerpts from more than one hundred German judicial decisions.
Compared to previous editions of The Constitutional Jurisprudence of the Federal Republic of Germany, this third edition more closely tracks Germany’s Basic Law and, therefore, the systematic approach reflected in the most- respected German constitutional law commentaries. Entirely new chapters address the relationship between German law and European and international law; social and economic rights, including the property and occupational rights cases that have emerged from reunification; jurisprudence related to issues of equality, particularly gender equality; and the tension between Germany’s counterterrorism efforts and its constitutional guarantees of liberty. Kommers and Miller have also updated existing chapters to address recent decisions involving human rights, federalism, European integration, and religious liberty.
For more information, and to order the book directly from Duke University Press, please visit http://www.dukeupress.edu/Catalog/ViewProduct.php?productid=13809.
W&L Law Professor Mark Drumbl recently posted a piece entitled ‘She Makes Me Ashamed to Be a Woman’: The Genocide Conviction of Pauline Nyiramasuhuko, 2011 on SSRN. Here is the abstract for the article, which will be published in the Michigan Journal of International Law:
including mass atrocity, during conflict situations. The first (and, to date, only) woman to be convicted by an international tribunal for genocide and rape as a crime against humanity is Pauline Nyiramasuhuko, Rwanda’s former Minister of Family and Women’s Development. She was sentenced to life imprisonment by Trial Chamber II of the International Criminal Tribunal for Rwanda in June 2011. At the time of her conviction, she was 65 years old.
This article is partly biopic (sketching her background), partly legal (summarizing the trial/judgment), and partly interrogative (on this latter note, exploring the intersections between gender and justice in the strategies of participants in the proceedings and, more tellingly, in public portrayals thereof). The judgment itself, at 1,500 pages in length, is gender-neutral in terms of its depiction of Nyiramasuhuko. She is presented as a perpetrator indifferently from her male coperpetrators.
Public portrayals of Nyiramasuhuko, in contrast, exude problematic essentialisms, stereotypes, and imagery of women and mothers. These caricatures – which constitute the focus of this paper – emerge at two distinct levels. First, they are invoked by the media to sensationalize and spectacularize the trial itself – in short, to titillate. Second, they are instrumentally invoked to favor strategic operational outcomes. For example, those stakeholders who condemn Nyiramasuhuko’s conduct turn to her status as woman and mother to accentuate her personal culpability and individual deviance (i.e. she is a worse perpetrator, a greater disappointment, and a more shocking offender because she is a woman, mother, and grandmother). Those who defend her conduct, including Nyiramasuhuko herself, pretextually invoke tropes rooted in imagery of womanhood and motherhood to emphasize the impossibility of her culpability (i.e. she can’t be a perpetrator, in particular of rape, because she is a woman, mother, and grandmother).
Nyiramasuhuko’s trial and conviction also, when deconstructed, offer a number of important lessons for the development and effectiveness of international legal interventions in post-conflict spaces. These proceedings, therefore, can be read didactically. The adulation heaped on her case belies a shadow side, to wit, that the veneration of international justice can lead to neglect of national justice. The proceedings against Nyiramasuhuko also inform of the need to rethink the role of femininities and masculinities in the metastasis of atrocity. Recognizing women as agents of violence, as bystanders to violence, as resisters of violence, as well as victims of violence informs a more nuanced understanding of atrocity and, thereby, solidifies deterrent aspects. In this vein, this article advocates for a more nuanced, grounded, and sublime approach to victims and victimizers, at times the two being one, in mass atrocity. And, finally, the proceedings against Nyiramasuhuko reveal the limits to criminalization in the process of transitional justice more generally, and important components thereof such as emboldening the status of women in post-conflict societies.
Mark Drumbl is the Class of 1975 Alumni Professor at Washington & Lee University, School of Law, where he also serves as Director of the University’s Transnational Law Institute.This piece is available for download by clicking here.
W&L Law Professor Christopher Seaman will be presenting his forthcoming article at the Conference on Empirical Legal Studies (CELS) at Stanford Law School. His paper is entitled Standards of Proof in Civil Litigation: An Experiment from Patent Law and will be published in the Harvard Journal of Law & Technology. The paper may be downloaded by visiting SSRN. The full conference schedule is available at the SLS CELS website. Here is the abstract of the paper:
Standards of proof are widely assumed to matter in litigation. They operate to allocate the risk of error between litigants, as well as to indicate the relative importance attached to the ultimate decision. But despite their perceived importance, there have been relatively few empirical studies testing jurors’ comprehension and application of standards of proof, particularly in civil litigation.
Patent law recently presented an opportunity to assess the potential impact of varying the standard of proof in civil cases. In Microsoft Corp. v. i4i Limited Partnership, the Supreme Court held that a patent’s presumption of validity can only be overcome by clear and convincing evidence. However, it also explained that the jury should be instructed that it may be easier to satisfy this standard when the party challenging the patent’s validity offered evidence that was not previously been considered by the U.S. Patent & Trademark Office.
In this project, we conducted an experimental study to test the impact of standards of proof in patent invalidity challenges. We found that delivering the jury instruction directed by the i4i decision resulted in mock jurors finding a patent invalid at rates statistically indistinguishable from the preponderance of the evidence standard explicitly rejected by the Court in that case. This surprising result suggests that Microsoft may have actually achieved its desired outcome in i4i by making it easier for juries to invalidate questionable patents, even though it lost the case.