The Expressive Cost of Corporate Immunity

Gregory M. Gilchrist

Volume 64, Issue 1, 1-57

Is it possible to justify imposing criminal liability on corporations? Two basic aspects of criminal law have no application to corporations: Corporations cannot be jailed and they cannot form mental states. Moreover, there is reason to think that much of the deterrent effect generated by corporate criminal liability could be generated more efficiently by civil liability. Still, the demand for criminal prosecution of corporations remains high. This Article seeks to understand why we have corporate criminal liability, and it concludes that expressivism is necessary to justify the practice. Expressivism justifies punishment by reference to the benefits of a statement of moral condemnation. With regard to corporations, however, the power of expressivism is strongest in the absence of liability. While there may be some expressive benefit to holding corporations criminally liable, the expressive cost of excluding corporations from criminal law altogether is the real driving force in justifying corporate criminal liability: Immunity presents a materially harmful expression. This expressive cost of immunity justifies holding corporations criminally liable. Of course, just because it is possible to justify corporate criminal liability by reference to the expressive cost of immunity, it does not necessarily follow that the current practice of prosecuting corporations serves this end well. There are reasons to think it does not, but the relationship between expressivism and corporate criminal liability suggests a fruitful path toward reimagining how and when corporations ought to be subject to criminal liability. The path to reform will be the subject of a subsequent article; this Article lays the theoretical groundwork for reform.

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Understanding and Incentivizing Biosimilars

Jason Kanter and Robin Feldman

Volume 64, Issue 1, 57-83

Congress recently passed the Biosimilars Act in an attempt to replicate the success that generic small molecule drugs have enjoyed under the Hatch-Waxman Act. The Biosimilars Act provides a pathway for biosimilars to achieve quicker and less expensive FDA approval than what is required for a new biopharmaceutical. There is, however, greater uncertainty and cost associated with achieving the coveted biosimilarity status. This reflects the complex production methods of biopharmaceuticals, along with the many factors that can alter the structure and function of such drugs.

This Article analyzes the Biosimilars Act and the draft guidances recently released by the FDA. The Article identifies areas of uncertainty and other aspects of the current regime that create disincentives for the development of biosimilars, as well as suggesting improvements. If we are serious about reducing the price of biological drugs and encouraging the creation of biosimilars, we will need to develop a more effective pathway for approval. This is no easy task. The greater risks associated with the production of biosimilars should prompt a fair degree of caution in establishing the pathway for approval. Balancing consumer safety with appropriate market incentives is a delicate mission. Nevertheless, under the current regime, we risk the possibility that companies will focus on developing so-called biodifferents and biobetters (new drugs designed to mimic an existing biological drug), completely forgoing the opportunity to develop biosimilars.

The loser, of course, is the consumer. It is doubtful that biobetters and biosimilars will have the same price-lowering effects as generics. These drugs will be patented, creating full exclusivity in the market, and prices will remain high in the biological drug space. It would be unfortunate if the tremendous energy and creativity invested in designing and implementing the Biosimilars Act were to have very little effect in the long run.

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Going Rogue: Stop the Beach Renourishment as an Object of Morbid Fascination

Mary Doyle and Stephen J. Schnably

Volume 64, Issue 1, 83-140

Scholarly response to the Supreme Court’s decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection has focused on the plurality’s strong advocacy of a judicial takings doctrine. We take a different tack. While the concept of judicial takings is worthy of serious attention, it is wrong to treat the plurality opinion as an ordinary object of analysis. It is, instead, the emanation of a Court going rogue.

Three basic symptoms of the pathology stand out. First, sleight of hand: The plurality opinion purports to be about an institutional issue—can a state court commit a taking?—while slipping in a major rewrite of takings law that would undermine the Court’s recent, unanimous effort to clarify it. Second, feigned obliviousness: The plurality opinion conveniently overlooks the Court’s federalism jurisprudence even as it would expand the federal courts’ power over state law. Third, knowing artlessness: Despite being written as a virtuoso performance—identifying a case the Florida Supreme Court “overlooked”—the plurality’s treatment of state law betrays surprising naïveté as to how state law is made, though, as it turns out, this seeming naïveté serves the purpose of shifting power within states from legislatures to courts.

While the history and tone of Justice Scalia’s close attention to beach access issues makes pique a surprisingly strong candidate for why the plurality went rogue, the more worrying explanation is the willingness of the Court’s more conservative members to expand their own power into new areas of state law without the slightest sign of support from the political branches. There is a danger that conservative attacks on courts over decisions on controversial social issues will distract from a more basic problem: If the Court’s enforcement of federalism rests on what Justice O’Connor called Congress’s “underdeveloped capacity for self-restraint,” we suggest that commentary should focus on the Court’s own similarly underdeveloped capacity.

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Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Confusing It with Equal Protection

Nina W. Chernoff

Volume 64, Issue 1, 141-200

This Article exposes a surprising doctrinal distortion that has unfolded since the Supreme Court first established the Sixth Amendment standard for the right to a jury selected from a fair cross-section of the community. A significant number of courts are erroneously applying the test for a violation of the Fourteenth Amendment’s equal protection guarantee to Sixth Amendment claims. As a result, criminal defendants are being deprived of the unique Sixth Amendment fair cross-section right, which encompasses more than just protection from discrimination.

Under the Sixth Amendment, a defendant need not allege that any state actor discriminated in the jury selection process. Instead, a defendant can establish a prima facie violation by showing that the underrepresentation of a distinctive group in the jury pool is inherent in the selection process, whether by accident or design. The equal protection clause, in contrast, demands evidence of discriminatory intent.

This Article reveals that at least ten federal circuits and nineteen states have erroneously denied defendants’ Sixth Amendment claims for failure to satisfy the Fourteenth Amendment’s discrimination requirement. This Article also uses an original survey of federal and state cases to explore the potential scope of the problem. In over one-third of the relevant cases, courts denied defendants’ fair cross-section claims for failing to meet equal protection standards.

In contrast to scholarship arguing that the underpinnings of the fair cross-section standard need to be revisited, this Article asserts that the key to enforcing the cross-section guarantee is not to change the standard, but to apply it consistently with the Sixth Amendment and Supreme Court doctrine.

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Diversity May Be Justified

Anita Bernstein

Volume 64, Issue 1, 201-256

What about diversity as a rationale for affirmative action is compelling enough to justify the hurts it inflicts on individuals? Judges, legislators, public opinion, and implementers of diversity programs in education and the workforce have defended their initiatives either with vague, anodyne, ill-founded paeans or, more often, with silence about what the rationale achieves. They have offered no justification of diversity.

From the premise that any state action that generates (or even risks) harm must be supported with reason, this Article undertakes the task of justification. What makes diversity unique among the rationales for affirmative action, this Article argues, is its power simultaneously to achieve two social goods—the repair of subordination and the strengthening of pluralism—that rest on independent and mutually constitutive jurisprudential bases.

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Note – The Right to Be Forgotten

Robert Kirk Walker

Volume 64, Issue 1, 257-286

Information posted to the Internet is never truly forgotten. While permanently available data offers significant social benefits, it also carries substantial risks to a data subject if personal information is used out of context or in ways that are harmful to the subject’s reputation. The potential for harm is especially dire when personal information is disclosed without a subject’s consent. In response to these risks, European policymakers have proposed legislation recognizing a “right to be forgotten.” This right would provide persons in European Union countries with a legal mechanism to compel the removal of their personal data from online databases.

However, only a limited form of the right to be forgotten—a right to delete data that a user has personally submitted—would be compatible with U.S. constitutional law. By itself, this limited right is insufficient to address the myriad privacy issues raised by networked technologies, but it is nevertheless an essential component of a properly balanced regulatory portfolio—as existing privacy tort law is inadequate in this context. As such, this Note argues that Congress should recognize this limited right through adoption of a default contract rule where an implied covenant to delete user-submitted data upon request is read into website terms of service contracts.

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Plausibility and Disparate Impact

Joseph A. Seiner

Volume 64, Issue 2, 287-324

In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court introduced a new plausibility pleading standard, abrogating well-established precedent. Under this standard, a plaintiff must now allege enough facts in the complaint to state a plausible claim to relief. Twombly and Iqbal transformed civil procedure law, and both courts and litigants have struggled with its meaning. One area that has been dramatically affected by these recent decisions is the field of workplace discrimination.

There are two types of employment discrimination claims—intentional (or disparate treatment) and unintentional (or disparate impact) discrimination. The academic scholarship is replete with discussions of the problems that the plausibility standard has created for victims alleging disparate treatment claims. Discriminatory intent is difficult to establish, and this is particularly true when a plaintiff has not had access to discovery.

One area that has remained unexplored in the academic literature, however, is the effect of Twombly and Iqbal on disparate impact cases. This Article seeks to fill that void in the scholarship. This Article closely examines the two most likely approaches for applying the plausibility standard to unintentional discrimination claims. It offers an analytical framework for considering these claims under either standard, and explains why a more streamlined approach to the Supreme Court’s recent decisions is preferable. Twombly and Iqbal represent a sea change for workplace plaintiffs, and this Article attempts — for the first time —to make sense of these decisions in one of the most complex areas of employment discrimination law.

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Safe Harbors and the National Information Infrastructure

Nicholas W. Bramble

Volume 64, Issue 2, 325-384

In 1995, the Department of Commerce under President Clinton released a 267-page document arguing that strengthened intellectual property enforcement was necessary to ensure the population of the “national information infrastructure” with education, information, and entertainment products. Contrary to the predictions and recommendations of that paper, a very different set of laws emerged over the next decade and became dominant forces in the development of the U.S. information infrastructure. These provisions—section 512 of the Digital Millennium Copyright Act, section 230 of the Communications Decency Act, and the continued potency of Sony v. Universal — generated a far more decentralized version of Clinton’s global information society, one dominated not by commercial partnerships between network providers and content owners but instead by independent information intermediaries at the edges of the network.Other scholars have explored these safe harbors separately, but this Article fills a gap in the literature by looking at the collective, systematic impact of these laws upon the growth of the Internet. In so doing, this Article places § 512 and § 230 in the context of historical governmental attempts to shape the production and distribution of information. Many scholars and advocates have resisted this move, arguing instead that these laws, along with judicial decisions such as Sony v. Universal, amount to the deregulation of the Internet and the creation of a lawless zone. But when these laws are considered together, a different picture begins to emerge: one where the government encourages the development of a “layer” of intermediaries situated between network providers (such as Comcast, AT&T, and Verizon) and content providers (such as Disney, The New York Times, and Viacom), and sets in place a legal framework that enables intermediaries to counteract the power of these network and content providers.

Safe harbors, then, serve an important and unexamined regulatory function—a regulatory function that the government likely would have been unable to implement on its own (without the cooperation of intermediaries) due to jurisdictional, constitutional, technological, and political limitations on the government’s power over Internet providers.

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The Rhetoric of Choice: Restoring Healthcare to the Abortion Right

Yvonne Lindgren

Volume 64, Issue 2, 385-423

In 1973 the Supreme Court in Roe v. Wade both identified a constitutional right of abortion and asserted that “the abortion decision in all its aspects is inherently, and primarily, a medical decision” to be made in consultation with a “responsible physician.” Since that time, the Court’s analysis has shifted away from the medical model, to identify abortion exclusively as a right of decisional autonomy. While scholarship has uniformly criticized the Roe analysis for subordinating women’s constitutional rights to the judgment of their doctors, it has left unanswered an important question: What, if anything, was lost when the Court turned from the medical model of reform toward identifying abortion as a right of decisional autonomy?In this Article I argue that a previously unrecognized benefit of the Roe Court’s analysis was that it viewed abortion as a right that was inextricably linked to healthcare. Thus, while early cases compromised a woman’s right of choice, I argue that at the same time these cases better protected effective access to abortion via healthcare. By contrast, I demonstrate that the Court’s current analysis narrowly identifies abortion exclusively as a right of choice, uncoupled from access to healthcare. This analysis increasingly isolates pregnant women as rights holders and no longer acknowledges them as medical consumers. While nominally protecting the abortion right, it has severed the access necessary to exercise the right. As a result, the right of abortion is in danger of becoming a right without a remedy. I conclude that it is critical to reclaim healthcare as an integral aspect of the abortion right while rejecting the early analysis that deferred women’s decisionmaking to doctors. This reclaimed healthcare analysis will allow the right to better withstand challenges of legislation that seeks to restrict access to abortion-related healthcare and will create broader appeal for the right by casting it in a gender-neutral context.

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Mass Incarceration at Sentencing

Anne R. Traum

Volume 64, Issue 2, 423-468

Courts can address the problem of mass incarceration at sentencing. Although some scholars suggest that the most effective response may be through policy and legislative reform, judicial consideration of mass incarceration at sentencing would provide an additional response that can largely be implemented without wholesale reform. Mass incarceration presents a difficult problem for courts because it is a systemic problem that harms people on several scales—individual, family, and community—and the power of courts to address such broad harm is limited. This Article proposes that judges should consider mass incarceration, a systemic problem, in individual criminal cases at sentencing. Sentencing is well suited to this purpose because it is a routine phase of a criminal case when courts have great flexibility to individualize punishment based on individual and systemic factors. In this phase, judicial discretion is at its highest, the judges’ contact with defendants is most direct, and the court can consider the broadest information relevant to sentencing options and impacts. Mass incarceration can be viewed as a systemic concern that is relevant to both the defendant’s history and the traditional sentencing purposes—including the need to benefit public safety and to ensure that sentences are fair and just. Information about mass incarceration would enhance courts’ understanding of the impacts of sentencing on the defendant and others in the local community. This Article articulates how this can be accomplished in federal sentencing and suggests doctrinal and practice changes that would enhance courts’ capacity to consider and mitigate the harms of mass incarceration in individual cases.

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The Death of the Public Figure Doctrine: How the Internet and the Westboro Baptist Church Spawned a Killer

Douglas B. McKechnie

Volume 64, Issue 2, 469-498

This Article suggests that the U.S. Supreme Court’s public figure/private figure dichotomy announced in Gertz v. Robert Welch, Inc. should be abandoned in light of the Internet and Supreme Court jurisprudence that predates and postdates Gertz. This Article begins by examining the Supreme Court’s decision to bring defamatory speech into the realm of First Amendment protection, the creation of different burdens of proof for defamation cases, and the struggle to create sensible doctrine. To that end, this Article explores not only Gertz, but the Court’s pre-Gertz majority and plurality opinions that articulated the contours of the First Amendment and defamation.This Article demonstrates that, while Gertz created a distinction between “public figures” and “private figures” for the purposes of determining the burden of proof in a defamation lawsuit, the reasoning behind these distinctions is no longer persuasive. I argue that, because of the Internet, public figures no longer have exclusive or considerably greater access to the channels of effective communication. I also argue that the Gertz public figure/private figure dichotomy is destined to be abrogated because of the Roberts Court’s recent First Amendment jurisprudence regarding speech on matters of public concern. I argue that the Roberts Court’s vigorous defense of speech on matters of public concern foreshadows a rejection of the Gertz Court’s view that the First Amendment analysis to apportion burdens of proof should focus on whether a plaintiff is a “public figure” or “private figure.” Instead, I argue the Roberts Court’s holdings demonstrate that the more constitutionally appropriate question, in the first instance, is whether the defendant in a defamation lawsuit was speaking on a matter of public concern.

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Note – Familial DNA Testing, House Bill 3361, and the Need for Federal Oversight

Dane C. Barca

Volume 64, Issue 2, 499-526

Recent developments in DNA testing have enabled forensic scientists to make DNA matches from crime scene samples to family members of criminals in the national DNA database. It is now possible to take a DNA sample from a crime scene, match that sample to a relative of the perpetrator within a DNA database, and locate the criminal based on this familial association. These “partial-match” searches have facilitated the apprehension of criminals that would have previously escaped detection, but these techniques also raise numerous concerns about privacy, accuracy, and the inequalities of racial representation within the national DNA database. Moreover, there exists no national consensus on the type or degree of offense for which this technology might be used.Representative Adam Schiff of Los Angeles County recently proposed legislation that would nationalize the presently state-based systems for partial-match searches. While this legislation holds the promise to expand the public awareness and debate around an existent forensic technique, the legislation must be implemented with an eye toward the increasing critical discourse surrounding the use of partial-match searches already in practice. This Note details the science behind the technique, examples in which the technique has been implemented, and the critical concerns raised by the use of this emergent forensic science. This Note analyzes Schiff’s proposed legislation in light of the critical concerns raised by legal commentators and makes practical suggestions for the implementation of partial-match DNA searches on a national scale.

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