16 February 2019

Pokemon Tort

'When Pokémon GO(es) Too Far: Augmented Reality and Tort Law' by Sara Gold in (2018) 38 Whittier Law Review comments
No one could have anticipated the drastic consequences of Pokémon GO, which quickly became the most popular smartphone game in U.S. history with more than $2 billion in global revenue from July 2016 to December 2018. 
In this augmented-reality game, players are required to travel with their phones to real-life locations in order to collect virtual Pokémon creatures and win rewards. The game, however, did not take precautions to avoid sending players to private property. As a result, homeowners nationwide began to suffer property damage, belligerence, and harassment from game players trespassing on their properties at all hours of the day and night. 
The resulting class-action lawsuit against Pokémon GO asked whether a game owner can be held liable for engineering a game in a manner encouraging other people to trespass


'The Schmitelsen Court: The Question of Legitimacy' by Or Bassok in German Law Journal (Forthcoming) comments
  In recent years, a new creature has emerged on the institutional landscape: the Schmitelsen Court. This Court is the end-product of a combination of the positions presented by Hans Kelsen and Carl Schmitt in their famous debate during the Weimar years on “Who is the Guardian of the Constitution?”. The Schmitelsen guardian is a court thus fulfilling Kelsen’s vision of the constitutional court as the guardian of the constitution. However, it possesses the mission, the means to achieve it, and the source of legitimacy that Schmitt envisioned for the president as the guardian of the constitution. In this Article, I focus on the Schmitelsen Court’s source of legitimacy that differs greatly from the traditional source of judicial legitimacy that Kelsen envisioned for the guardian. Whereas Kelsen viewed legal expertise as the guardian’s source of legitimacy, Schmitt viewed public support as filling this role. After analyzing these two positions, I explain why it is vital for the Schmitelsen Court to harness public support as its source of legitimacy. I proceed by examining how the Schmitelsen Court model manifests itself in three case studies. In the US, Alexander Hamilton in the Federalist No. 78 raised the notion of the guardian of the constitution long before Schmitt and Kelsen did so. He designated the judiciary as the guardian and ascribed expertise as its source of legitimacy. After describing how in recent decades the American Supreme Court adopted the Schmitelsen understanding of judicial legitimacy, I turn to examine the Israeli Supreme Court and the European Court of Human Rights. The relevance of these latter two courts stems not only from their adoption of the Schmitelsen Court’s understanding of judicial legitimacy, but also from the strong influence of the Weimar lessons on their evolution into a Schmitelsen guardian.

Which Law School

Ivy, mill or otherwise in the US? Analyzing Law School Choice' (AccessLex Institute Research Paper No. 19-01) by CJ Ryan comments 
The contemporary crisis in law school enrollments presents a timely opportunity to evaluate a subject that has received little academic attention: student choice in legal education. In order to address the present lack of understanding about what motivates post-Recession law students to enroll in law school, this article examines several of the factors that bear on the choice to attend law school from the results of an original survey distributed to current law students at a four law schools—a private elite law school, a public flagship law school, a public regional law school, and a private new law school—in the 2017–2018 academic year. This article analyzes the salience of location, information, opportunity cost, and cost sensitivity in the context of a law student’s decision to enroll in law school. The results from this survey indicate that legal education is a highly stratified market for consumers on the basis of their preferences. It is hoped that these results will shed greater light on and knowledge of the most understudied group in professional graduate education—law students.

15 February 2019


'Artificial Intelligence Based Suicide Prediction' by Jason Marks in Yale Journal of Health Policy, Law, and Ethics (Forthcoming) comments 
 Suicidal thoughts and behaviors are an international public health concern contributing to 800,000 annual deaths and up to 25 million nonfatal suicide attempts. In the United States, suicide rates have increased steadily for two decades reaching 47,000 per year and surpassing annual motor vehicle deaths. This trend has prompted government agencies, healthcare systems, and multinational corporations to invest in tools that use artificial intelligence to predict and prevent suicide. This article is the first to describe the full landscape of these tools, the laws that apply to their operation, and the under explored risks they pose to patients and consumers. 
AI-based suicide prediction is developing along two separate tracks: In “medical suicide prediction,” AI analyzes data from patient medical records; In “social suicide prediction,” AI analyzes consumer behavior derived from social media, smartphone apps, and the Internet of Things. Because medical suicide prediction occurs within the healthcare system, it is governed by laws such as the Health Information Portability and Accountability Act (HIPAA), which protects patient privacy; regulations such as the Federal Common Rule, which protects the safety of human research subjects; and general principles of medical ethics such as autonomy, beneficence, and justice. Moreover, medical suicide prediction methods are published in peer-reviewed academic journals. In contrast, social suicide prediction typically occurs outside the healthcare system where it is almost completely unregulated, and corporations often maintain their prediction methods as proprietary trade secrets. Due to this lack of transparency, little is known about their safety or effectiveness. Nevertheless, unlike medical suicide prediction, which is primarily experimental, social suicide prediction is deployed globally to affect people’s lives every day. 
Though AI-based suicide prediction may improve our understanding of suicide while potentially saving lives, it raises many risks that have been under explored. The risks include stigmatization of people with mental illness, the transfer of sensitive health data to third-parties such as advertisers and data brokers, unnecessary involuntary confinement, violent confrontations with police, exacerbation of mental health conditions, and paradoxical increases in suicide risk. After describing these risks, the article presents a policy framework for promoting safe, effective, and fair AI-based suicide predictions. The framework could be adopted voluntarily by companies that make suicide predictions or serve as a foundation for regulation in the US and abroad.
'Abolishing the Suicide Rule' by Alex B Long in (2019) 115(4) Northwestern University Law Review comments
Suicide is increasingly recognized as a public health issue. There are over 40,000 suicides a year in the US, making suicide the tenth-leading cause of death in the country. But societal attitudes on the subject remain decidedly mixed. Suicide is often closely linked to mental illness, a condition that continues to involve stigma and often triggers irrational fears and misunderstanding. For many, suicide remains an immoral act that flies in the face of strongly held religious principles. In some ways, tort law’s treatment of suicide mirrors the conflicting societal views regarding suicide. Tort law has long been reluctant to permit recovery in a wrongful death action from a defendant who is alleged to have caused the suicide of the decedent. In many instances, courts apply a strict rule of causation in suicide cases that has actually been dubbed ‘the suicide rule’ in one jurisdiction. While reluctance to assign liability to defendants whose actions are alleged to have resulted in suicide still remains the norm in negligence cases, there has been a slight trend among court decisions away from singling out suicide cases for special treatment and toward an analytical framework that more closely follows traditional tort law principles. This Article argues that this trend is to be encouraged and that it is time for courts to largely abandon the special rules that have developed in suicide cases that treat suicide as a superseding cause of a decedent’s death.


'Valuing Emotions' by Hila Keren in (2018) 53(5) Wake Forest Law Review comments
This Article illuminates an unresolved legal enigma: Why is private law so reluctant to compensate victims for emotional harms while it is fully committed to compensating them for any other type of harm? It proposes a novel analysis of the deeper roots of the problem and a solution. This Article shows that the persistent resistance to compensation in the affective domain comes from a broader legal misunderstanding and mistreatment of emotions. Opponents of compensation are wrong to assume that emotional harms are trivial, easy to fake, or impossible to value. Rather, with the help of scientific and technological progress, it should be clear by now that the devaluation of emotional harms is unjustified, injurious to victims, and toxic to relational norms of behavior. What’s worse, as this Article exposes, is that while the debate has continued without resolution, reality has dramatically changed. Outside of law and under a neoliberal worldview, the value of emotions has been celebrated, making emotions a new type of personal property and an important component of people’s human capital. The Article thus demonstrates that in today’s hypercompetitive world the refusal to compensate for emotional harms is more devastating than ever before. For that reason the Article proposes that it is about time we start valuing emotions – recognizing their importance and compensating those who suffered emotional harms. The Article then discusses how to shape the necessary reform, mainly by utilizing existing remedial tools to cope with concerns related to verification and measurement – a challenge that is in no way unique to emotional harms and should not continue to prevent appropriate compensation.
'The Street View of Property' by Vanessa Casado Perez in (2019) 70(2) Hastings Law Journal 367-408 comments 
Parking on public streets is scarce. The current allocation system for parking spots based on the rule of capture coupled with low parking fees creates a tragedy of the commons scenario. The misallocation of parking has consequences for commerce, for access to public spaces, and for pollution and congestion. Municipalities have not widely adopted the solution that economists propose to solve this scarcity problem: increase the price. Politics aside, the reluctance of municipalities to do so may be explained by the unique nature of public property as reflected in well-rooted legal and societal constraints. This unique nature helps explain, for example, municipalities’ ban on software applications (apps) allowing occupants of curbside parking to “sell” their spots to would-be occupants in Boston or San Francisco. While the ban may be justified, the unique nature of public property is not incompatible with some well-designed, efficiency-oriented policies, as this Article will put forward. 
This Article distills the legal constraints on curbside parking and any other public property management by drawing on case law regarding parking meters and public resources managed in trust for the public, and decisions by municipalities regarding parking apps and privatization of parking meters. These constraints include, among others, that public property shall not be used to raise revenue, although placing a price on it may pursue other regulatory aims consistent with public use, or that municipalities shall not lose control of the public spaces dedicated to curbside parking. At a normative level, the above constraints provide a framework for assessing policies regarding curbside parking and, by extension the management of any other public property resources. At a positive level, the Article proposes ways to make efficiency compatible with the principles guiding the management of public property. It analyzes whether, and to what extent, the efficiency-oriented policies that would translate into a price increase—variable pricing, tradable property rights, and privatization—clash with those principles constraining the monetization of public property. In addition, the Article concludes by pointing to other situations where its analytical framework could be extended, such as other uses of public streets (for instance, use of public bus stops by shuttle-buses of private companies) or existing practices in connection to public resources (for instance, semi-privatization of beaches).


Voting Rights and Australian Local Democracy' by Ryan Goss in (2017) 40 University of New South Wales Law Journal 1008 comments 
 In five of Australia’s six States, legislation governing the franchise at local government elections allows for voting rights based partly on property ownership or occupation, for votes for corporations, and for various forms of plural voting. There is no existing comprehensive nationwide catalogue and analysis of the legislation that underpins this phenomenon. This article fills the gap in the literature by providing that analysis. Part I provides a concise overview of the historical context in Britain and in Australia. Part II is the central contribution of the article, describing and analyzing the legislation across the six Australian States. Part II demonstrates the idiosyncratic complexity of local government franchises within and across the States. While this article’s primary goal is to critique the legislation as it stands, Part III concisely makes the case for reform of voting rights at local government elections, suggesting that the status quo raises concerns about democratic inequality.
"Foot Voting and the Future of Liberty" by Ilya Somin in Todd Henderson (ed), The Cambridge Handbook of Classical Liberal Thought (Cambridge University Press, 2018) comments
 One of the major goals of libertarianism – and liberalism generally – is expanding political freedom: the opportunity to exercise meaningful choice over the government policies we live under. The main opportunity for political choice in modern liberal democracies is ballot box voting. Despite some genuine virtues, it has serious flaws as a mechanism for enhancing political freedom. The average citizen has almost no chance of affecting the outcome of an electoral process. In part as a result, he or she also has strong incentives to make ill-informed and illogical decisions. We can do better on both fronts when we “vote with our feet.” 
Part I of this chapter briefly outlines three types of foot voting: voting with your feet between jurisdictions in a federal system, foot voting in the private sector, and international migration. All three involve meaningful exercises of political choice. In Part II, I explain how foot voting is superior to ballot box voting as a mechanism of political freedom. It allows for more meaningful and better-informed choice. It is also superior from the standpoint of several leading accounts of political freedom: Consent, negative liberty, positive liberty, and nondomination. 
Part III considers objections to foot voting based on theories of self-determination, under which current residents of a given territory have a right to exclude newcomers in order to protect the political freedom of the former. Such theories come in both group-oriented and individualistic variants. Group theories posit that certain groups have a right to exclude newcomers based on their ethnic, racial, or religious characteristics. Individualistic theories claim that current residents can exclude newcomers for much the same reasons that private property owners or members of a private club have a right to exclude. I argue that both types of claims have severe flaws. Part IV discusses some institutional reforms that can help expand foot voting opportunities, while mitigating potential downsides. Finally, the Conclusion briefly suggests some ways in which expanded foot voting can help brighten future prospects for promoting libertarian values.


The short 'China, 'Belt and Road' and Intellectual Property Cooperation' by Peter Yu in (2019) 14 Global Trade and Customs Journal comments 
In fall 2013, China launched the "One Belt, One Road" Initiative, covering over 60 percent of the world's population and about a third of global GDP. Now translated officially as the Belt and Road Initiative (BRI), this new development features two distinct routes: the land-based Silk Road Economic Belt and the sea-based 21st-century Maritime Silk Road. 
Although burgeoning literature has emerged to analyze the BRI's benefits, drawbacks and ramifications, few scholars have explored the initiative's potential impact on international and regional intellectual property systems. Commissioned for a special issue on the BRI, this article aims to fill this void by examining the emerging role China and its BRI will play in the intellectual property area. 
This article begins by exploring China's growing assertiveness in the international arena. It then explores six areas in which the BRI can play constructive roles in facilitating international and regional cooperation on intellectual property matters. Recognizing that this initiative has generated many concerns and complications, the article concludes by addressing three oft-raised questions relating to the initiative.