VOLUME 61, ISSUE 3

  • How to Feel Like a Woman, or Why Punishment Is a Drag

    If a man in prison says that he was made “to feel like a woman,” this is commonly understood to mean that he was degraded, dehumanized, and sexualized. This association of femininity with punishment has significant implications for the way our society understands not only the sexual abuse of men in prison but also sexual abuse generally. These important implications are usually overlooked, however, because law and society typically regard prison feminization as a problem of gender transposition: that is, as a problem of men being treated like women. In contrast, this Article argues that feminization is punitive for both men and women. It is as unnatural and wrong for women to be degraded, dehumanized, and sexualized under coercive circumstances as it is for men to be. This Article suggests that examining the sexual abuse of men in prisons can help disrupt the persistent and uncritical linking of feminization and women. By reading the sexualized abuse of men in prison as a form of forced feminized performance—a coerced drag—this Article hopes to expose the artificiality and violence of compelled feminization. The proper approach to assessing forced feminization is to focus on its oppressive structure, not on the gender of its victims. When we do so, we can see what all victims along the spectrum of sexual and domestic abuse have in common, and we can form social and legal responses accordingly. The phenomenon of male sexual abuse in prison thus provides a potentially illuminating opportunity to think about the structure and consequences of sexual abuse in general. This is significant not least because social and legal responses to sexual abuse outside of the prison setting—where sexual abuse is generally perpetrated by men against women—are constrained by pernicious gender stereotypes and a massive failure of empathy. Understanding the phenomenon of male prison sexual abuse is thus essential not only for addressing a specific problem in carceral institutions, but also for forcing law and society to consider sexual abuse in a productively counterintuitive way.

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  • Free: Accounting for the Costs of the Internet’s Most Popular Price

    Offers of free services abound on the Internet. But the focus on the price rather than on the cost of free services has led consumers into a position of vulnerability. For example, even though internet users typically exchange personal information for the opportunity to use these purportedly free services, one court has found that users of free services are not consumers for purposes of California consumer protection law. This holding reflects the common misconception that the costs of free online transactions are negligible—when in fact true costs may be quite significant. To elucidate the true costs of these allegedly free services, we apply a transaction cost economics (TCE) approach. Unlike orthodox economic theory, TCE provides a framework for analyzing exchanges in which the price of the product seems to be zero. Under a TCE analysis, we argue that information-intensive companies misuse the term “free” to promote products and services that involve numerous nonpecuniary costs. In so doing, firms generate contractual hazards for consumers, ignore consumer preferences for privacy, and mislead consumers by creating the impression that a given transaction will be free.

    While psychological research and behavioral economics may support an outright ban of free offers because of their biasing effects, TCE suggests reforming governance structures to place the business risks associated with free transactions more firmly in the hands of businesses. We suggest alterations to governance structures—such as the Federal Trade Commission’s Guide Concerning Use of the Word “Free” (FTC Guide)—to curb the incentives of firms to raise transaction costs for consumers. The FTC Guide provides support for two of the consumer protection measures we propose: first, a requirement that free service providers clearly disclose that such providers seek users’ personal information in exchange for those services, and, second, the establishment of a regular price before providers can market a service as free. We further argue that the recognition of users of free services as consumers for purposes of consumer protection law would better align incentives and ensure users access to legal redress against some of the most popular services on the Internet. Lastly, we suggest the adoption of alternative governance structures designed to reduce the cost of transacting by curbing the collection of personal information from consumers of free services and by enhancing the rights of consumers to govern the dispersal of personal information from free online services to third parties.

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  • The Case for Tailoring Patent Awards Based on Time-to-Market

    One of the hallmarks of our patent system is that it provides a one-size-fits-all reward for innovation. The uniform patent laws offer insufficient incentives to develop some socially valuable inventions, and they offer excessive rewards for other inventions, which imposes an unnecessary tax on consumers and subsequent innovators. If the government could adequately tailor patent awards to account for differences in inventions’ need for protection and the likelihood that patents will stifle subsequent innovation, it could spur additional innovation while resolving the current patent crisis. But this type of tailoring is generally thought to be impractical. Although we may know which economic determinants are relevant to a socially optimal patent strength, we lack a reliable way to directly measure and synthesize this information into a usable framework. Absent a principled and administrable system to determine which inventions need more protection than others, the uniform patent system is our best option.

    This Article identifies a readily observable, cross-industry indication of optimal patent strength for different technologies—inventions’ time-to-market. Some inventions take much longer to develop than others, and there is tremendous variation in the average time-to-market across industries. This Article first shows that there is a strong, positive correlation between the amount of time needed to complete an R&D project and the amount of patent protection (if any) necessary to motivate investment in that R&D project. A longer time-to-market for inventions is associated with higher out-of-pocket R&D costs, greater risk of failure, increased opportunity costs of R&D investments, and diminished value of future revenue streams from the developed invention because of discounting. Moreover, because imitators frequently avoid much of the increased R&D costs and uncertainty associated with a longer time-to-market, lengthier R&D times also usually correspond to a greater vulnerability to free riding. Second, this Article shows that a longer time-to-market is associated with a reduced likelihood of patents stifling subsequent innovation. Inventions with a longer time-to-market usually have longer commercial lifespans (product lifecycles) because the inventions that ultimately replace them in the market also generally take longer to develop. The slower rate of product turnover in these markets reduces the need for patent licensing between early and later innovators and gives companies more time to negotiate licenses when necessary, which diminishes the likelihood that patents granted on earlier inventions will stifle later improvements to those technologies. Similarly, because inventions with a lengthy time-to-market have higher total R&D costs, fields in which inventions typically have a lengthy time-to-market have higher entry costs. Those higher costs diminish the number of entrants in these markets and encourage later innovators to develop inventions that are more differentiated from earlier inventions. The reduced entry rate and greater product differentiation once again decrease the need for patent licensing, thereby lessening the potential harm from patents stifling subsequent innovation.

    Since a longer time-to-market is indicative of a greater need for patent protection and a lower risk of patents stifling subsequent innovation, time-to-market is likely a uniquely powerful indicator of the optimal patent strength for different types of inventions. Moreover, because time-to-market is relatively observable, the government can use it to create a framework for a principled and administrable system of tailored patent awards. Such a system would enable the government to strike a better balance between the benefits of promoting innovation with temporary monopoly rights and the social costs of restricting access to inventions.

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  • Here Comes the Sun: How Securities Regulations Cast a Shadow on the Growth of Community Solar in the United States

    The cascading cost of solar photovoltaic technologies over the past five years presents a ripe opportunity to change the way people think about solar energy, and the nascent community solar model offers the vehicle for such change. Community solar offers any electricity ratepayer the opportunity to purchase a small portion—as little as one panel—of an offsite, local solar array in exchange for reductions in the ratepayer’s utility bill for the entire life of the solar system. By removing traditional siting and financial barriers to solar ownership, community solar drastically expands access to solar energy to persons of all socioeconomic levels while also conferring a host of ancillary benefits.

    Although traditional financial barriers to solar ownership have been effectively eroded, inflexible securities regulations continue to pose a formidable threat to the fledgling community solar model by imposing onerous and expensive registration and information disclosure requirements—essentially creating a minefield of potential liability for community solar developers. Due to the novelty of the community solar model, however, courts have yet to consider whether this arrangement constitutes a “security” within the meaning of the Securities Act of 1933. Nonetheless, an analysis of the case law to date quite strongly suggests that community solar interests are, in fact, securities. On the other hand, this Comment posits that the policy underlying securities regulations points in both directions, and therefore the classification of community solar interests as securities is not as airtight as some judges might think.

    Notwithstanding this conclusion, the proliferation of community solar is still feasible if such projects can qualify for an exemption from the most onerous of the Securities and Exchange Commission’s requirements. This Comment explores four potential exemptions: Rules 504 and 506, the Intrastate Exemption, and the pending crowdfunding exemption. It concludes that, unfortunately, the uniqueness of the community solar model does not lend to easy categorization into any of these exemptions—which mainly target startup companies seeking funding from wealthy investors or from people with a preexisting relationship to the entrepreneur.

    In summary, though implemented to protect unsophisticated investors, the practical effect of securities regulations is to exclude altogether those investors from myriad benign investment opportunities. While this tradeoff may be worthwhile in other contexts, the risks and rewards of a community solar project are simple, consistent, and obvious. Thus, while investors would benefit from securities laws’ antifraud provisions, the onerous registration and disclosure requirements are unnecessary and in fact detrimental in the community solar context—they largely work to prevent communities from having the opportunity to invest in community solar at all. In light of these tensions, this Comment concludes that the additional layer of antifraud protection triggered by securities classification is probably beneficial for community investors. But only by coupling that securities characterization with an exemption from strict registration requirements can the federal government and states strike the proper balance in protecting community investors while also safeguarding their rights to purchase solar energy.

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  • Restoration Remedies for Remaining Residents

    The foreclosure crisis left its mark on neighborhoods in countless ways. Remaining residents, those who continue to live in neighborhoods with many foreclosures, suffer unique harms because of adjacent foreclosed homes: depressed property values, higher crime, safety hazards, and reduced city services. In the current aftermath, attention has focused on preventing additional foreclosures and assisting those displaced after losing their homes. Taking a different approach, this Comment highlights the challenges facing remaining residents. It assesses the landscape of legal remedies available to remaining residents and proposes a model approach designed to address the most common challenges facing municipalities across the country. At its core, this Comment advocates for a strong and comprehensive local government response to support the recovery of communities affected by foreclosures.

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DISCOURSE

  • The Fifth Amendment, Encryption, and the Forgotten State Interest

    This Essay considers how the Fifth Amendment’s Self-Incrimination Clause applies to encrypted data and computer passwords. In particular, it focus-es on one aspect of the Fifth Amendment that has been largely ignored: its aim to achieve a fair balance between the state’s interest and the individual’s. This aim has often guided courts in defining the Self-Incrimination Clause’s scope, and it should continue to do so here. With encryption, a fair balance requires permitting the compelled production of passwords or decrypted data in order to give state in-terests, like prosecution, an even chance. Courts should therefore interpret Fifth Amendment doctrine in a manner permitting this compulsion.

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  • Football and the Infield Fly Rule
    In a previous article, I defended baseball’s infield fly rule, the special rule long beloved by legal scholars, in terms of equitable balance in distribution of costs and benefits between competing teams. This essay applies those cost-benefit and equity insights to football. It explores several plays from recent Super Bowls, the cost-benefit balance on those plays, and the appropriate role in foot-ball for limiting rules similar to the infield fly rule.
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  • Alleyne v. United States, Age as an Element, and the Retroactivity of Miller v. Alabama

    The U.S. Supreme Court announced in Miller v. Alabama, that the mandatory imposition of life in prison without the possibility of parole against juveniles was cruel and unusual punishment in violation of the Eighth Amendment.  The million-dollar question was whether it would do any good for the over 2000 juveniles who had previously been so sentenced.  The touchstone of Miller’s retroactivity hinges on the question of whether the rule it announced is substantive—and therefore retroactive—or procedural. 

    The quasi-substantive/quasi-procedural nature of the Miller opinion created a conundrum for lower courts, which have split on the retroactivity question, with several additional jurisdictions yet to decide.  As detailed in this Essay, the answer to this puzzle comes from an unlikely source: the Court’s Sixth Amendment jury-trial jurisprudence, and particularly its June 2013 interpretation of that right in Alleyne v. United States.  Though unrelated to both juvenile sentencing and retroactivity, the Alleyne Court determined that where the existence of a fact dictates whether a mandatory minimum applies, the fact acts as an element of the underlying offense.  This Essay extrapolates from the Alleyne holding and argues that Miller’s requirement that sentencers consider age and its attendant consequences in cases involving juveniles—making age at the time of the offense a fact that triggers whether the mandatory minimum sentence of life without parole applies—converts age to an element of the underlying offense, rendering Miller a substantive rule that must be applied retroactively.

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  • A Legal “Red Line”? Syria and the Use of Chemical Weapons in Civil Conflict
    This Essay analyzes the prohibition on the use of chemical weapons in civil conflicts and applies its findings to the Syrian civil war. We find that international humanitarian law and international criminal law provide a clear ban on the use of chemical weapons in international armed conflict. This prohibition is less clear in noninternational armed conflict, suggesting the need for legal reforms to firmly ban the use of chemical weapons in all armed conflicts. Furthermore, we find the use of chemical weapons in Syria does not, by itself, cross a legal red line justifying military intervention. Instead, the use of chemical weapons is one factor in determining the existence of a humanitarian crisis requiring strong international action.
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  • Fighting Unfair Credit Reports: A Proposal to Give Consumers More Power to Enforce the Fair Credit Reporting Act
    Credit reports play a central role in some of our most important transactions, such as buying a house or car, or even getting a job. Yet an alarming number of credit reports contain damaging inaccuracies. The primary purpose of the Fair Credit Reporting Act (FCRA) is to protect consumers against these inaccuracies, but the FCRA also makes it very difficult for consumers to force creditors to fix errors. In particular, there is no private right of action to enforce the creditor’s duty of accuracy unless a consumer first notifies a third party—a consumer reporting agency such as Experian, TransUnion, or Equifax—and unless that agency in turn notifies the creditor. This structure raises significant procedural hurdles for a consumer and can make it extremely difficult to sufficiently plead a cause of action against a creditor. This Essay argues that Congress should change the law to give consumers the private right of action they now lack.
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  • Not the Last Word, but Likely the Last Prosecution: Understanding the U.S. Department of Justice’s Evaluation of Whether to Authorize a Successive Federal Prosecution in the Trayvon Martin Killing
    In the aftermath of George Zimmerman’s state court acquittal in the Trayvon Martin killing, the U.S. Department of Justice is considering whether to bring federal criminal charges against Zimmerman arising out of the same incident. While such a dual or successive prosecution does not violate double jeopardy, the determination whether the federal government should bring charges turns on whether the Petite Policy, an internal U.S. Department of Justice Guideline, has been satisfied. Professor Kurland contends that because the requisites of the Petite Policy, that the prior state trial must have left a substantial federal interest demonstrably unvindicated, cannot be established, a federal prosecution should not be authorized. Rather, more appropriate and constructive nonprosecutorial alternatives should be pursued to address the myriad of criminal justice and social policy concerns impacted by the tragic incident.
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