Blockchain Papers

Steve Carroll

Harry Frankfurt drew a distinction that the law has never formally used: a liar knows the truth and asserts its opposite, while a bullshitter is indifferent to the truth altogether, producing assertion calibrated to what will work rather than to what is so. The distinction matters because the two are almost impossible to tell apart from their output alone, and because the law's machinery for detecting deception - intent, knowledge, scienter - is built entirely for the first category and has essentially nothing to say about the second. A professional who files a claim their own evidence already contradicts may have lied. They may equally have never checked, because checking was not necessary to produce a filing that does its job. The document looks the same either way. This paper argues that civil litigation, professional liability, and the institutions that sit above both have organised themselves around exactly this blind spot, and names the structural reason it persists: the Self-Reporting Fallacy. The fallacy is this: every actor positioned to read a legal file has a stake in the answer it gives. A client depends on trusting their own lawyer's account - a client who does not trust it has already, in effect, dismissed their counsel. A lawyer who filed a document is committed to its coherence regardless of who created the gap inside it. An insurer receives a summary of the file, not the file. A court sees what each side chooses to argue, not what either side has chosen not to mention. None of this requires bad faith to operate; it requires only that each actor behave exactly as their position already rewards them for behaving. The result is a system that can prosecute the rare, provable lie but has no mechanism at all for the far more common case - the assertion nobody checked, made by someone with every reason not to check it, sitting undetected in a record that would have shown the gap to anyone reading without a stake in the outcome. This paper specifies what a reading position with no stake in the outcome would need to do differently, building on this author's prior work on the distance between an assigned professional's competence and a matter's actual demands, and on the economics of strategic silence under current legal defaults. It adds a third element, specified here for the first time: a test for whether a filing's own positive factual claims survive contact with its own attachments -- and with what the record conspicuously fails to address -- independent of whether the gap originated in incompetence or in design. Demonstrated against one recurring event -- the moment a professional's own filed evidence contradicts their own asserted position, converting a routine dispute into an independent professional-liability exposure that frequently dwarfs the underlying claim -- the combination shows what becomes visible only once Frankfurt's distinction is taken as seriously in litigation as it has been taken in moral philosophy for forty years: not who is lying, but who has stopped checking, and what that costs everyone still relying on them to have checked. This paper also situates the resulting method against the existing landscape of advocacy ethics, litigation analytics, and legal-AI document review, and argues that none of these literatures, individually mature as each is, was ever positioned to ask the question this paper asks. It closes by naming the category of instrument such a method makes possible, locating the professional-indemnity insurance industry as its natural first market, and offering, as existence proof rather than as its subject, a prototype instrument built by this author that demonstrates the method is achievable with present techniques.

Adam Mazzocchetti

No abstract is available for this record.

Ninne Zahara Silviani, Farhan Rabbani Abrar

With the rapid advancement of technology, the emergence of Non-Fungible Token (NFT) platforms has revolutionized digital buying and selling. However, this innovative platform has also given rise to a concerning issue: the unintentional trade of personal data instead of artwork. This problem poses a significant challenge in protecting individuals' personal information, especially when items like National Identity Card (KTP) photos are sold as NFT assets. This research aims to explore the critical importance of legal education in safeguarding personal data, thus preventing such transactions that may lead to self-harm. Employing a normative juridical method and a conceptual approach, this study extensively analyzes legal aspects and regulations related to personal data protection. The findings underscore the urgent need for legal education to effectively address personal data transactions on NFT sites within marketplace platforms. Despite the implementation of the Personal Data Protection Act (Law Number 27 of 2022), it is clear that the legislation alone is insufficient. Given the gravity of the issue, comprehensive public education initiatives involving various segments of society are crucial. Protecting personal data has become a matter of utmost concern for the government, the state, NFT platform users, and internet users at large. Individuals must adopt a vigilant and proactive approach in safeguarding their personal data. Legal education programs, including outreach activities conducted by governmental and non-governmental entities, along with the involvement of students and academics in community counseling, can effectively support this objective.

Frederick Mostert, Wei Ting Yeoh

Imagine you are taking a stroll in the virtual city of Meta-Worse1 when you meet John Lennon. John has not been brought back to life, as you have probably guessed; this entity is an avatar that exactly replicates Lennon’s appearance and voice. John tells you that he has transformed the genome sequence of the influenza virus into a song that is available on the Rarible platform as a non-fungible token (NFT). You recall that there is an unauthorized minting of NFTs relating to the same song on another platform. You have also started your own collection of NFT artworks in your virtual ‘home’. Many buyers of NFT artworks are complaining they were unaware what intellectual property rights have been accorded them by their purchase of these NFT artworks. You then visit a clothing store. Jay, an AI-powered sales assistant avatar that has the gift of gab and can respond to human speech, persuades you to purchase a Nike shirt. A call comes in, and you leave the purchasing decision to your personal AI-avatar, which shares your biometrics data with the sales assistant. Unbeknown to you, the shirt is a counterfeit. Passing by the virtual red light district, you see that workers in many of the virtual adult theatres are wearing the same Nike shirt, prompting you to conclude that Nike is a major sponsor of these establishments. You take a picture and post this on your real-world Instagram, where you have over 1 million followers. You cannot get over the excitement of meeting John, so you instruct your AI-avatar to create a doctored video clip, in which John appears to be swearing while singing, to keep yourself entertained. Your Meta-Worse account is hacked, and the clip is now shared with audiences on all the major meta-platforms and in the real world. The video itself is then tokenized and sold as an NFT by anonymous digital thieves without your permission. As Brian Eno has facetiously remarked in this context: ‘Right now, I mainly see (NFTs) hustlers looking for suckers’.2 Welcome to Meta-Worse. In terms of technical advancement and human behaviour and interaction, cities like Meta-Worse are providing hitherto unimaginable opportunities for transformation and perhaps even progress. Yet, the metaverse has simultaneously created a lawyer’s mega paradise. It raises fundamental questions related to privacy, deception, misinformation, non-consensual pornography, image rights, deepfakes, defamation, algorithmic transparency, anonymity and authenticity. These issues cluster around a single foundational dilemma: who is liable for what? Such difficulties are only amplified by the increasing complexity and interdependency of AI systems. This phenomenon, in turn, means it is becoming harder to assign legal responsibility to avatar owners, software coders and metaverse operators, all of whom may have varying degrees of control over the AI systems in question. Full disclosure and transparency form the foundations of liberal democracies. With digital platforms now inextricably linked to our society’s infrastructure, it is time to abandon secrecy and mystery in favour of transparency. Open, transparent, fair and accountable algorithm decision-making processes must now underpin the operating principles set for and by platforms and policymakers. After all, from a legal perspective, it is we humans who will ultimately have to bear the costs. We must now devise tools and systems to internalize these costs and regulate ex-ante. For instance, human approval should be made mandatory in certain settings in which AI-avatars are deployed, for example, in digital health services or virtual commercial transactions. Platforms should clearly set out consent policies for data-sharing. Additionally, metaverse users should be informed whether their interactions are taking place with a human-controlled or AI-powered avatar. In sum, the city of Meta-Worse demands an entirely new type of legal infrastructure. This parallel judicial universe, an independent meta-system with its own virtual jurisdiction, is nothing less, in fact, than an entirely new legal order. As such, it is tasked with regulating meta ‘governments’ and ‘constitutions’ with a direct impact on billions of people around the world. It follows that any operating policies or procedures that platforms develop in the digital universe have the potential to become international legal conventions and norm-setting principles, not unlike a form of soft law. In Meta-Worse, platforms now act as legislators, promulgating regulations and procedures on fundamental rights, which have a global impact and legal footprint.3 Digital due process is now urgently required or, in the inimitable words of Sir Tim Berners-Lee, ‘what the online world needs now is a Magna Carta for the world wide web’.

Dor Bitan, Ran Canetti, Shafi Goldwasser, Rebecca Wexler

The use of hidden investigative software to collect evidence of crimes presents courts with a recurring dilemma: On the one hand, there is often clear public interest in keeping the software hidden to preserve its effectiveness in fighting crimes. On the other hand, criminal defendants have rights to inspect and challenge the full evidence against them, including law enforcement's investigative methods. In fact, in the U.S. adversarial legal system, the defendant's rights to scrutinize the government's tools are crucial to the truth-seeking process and to keeping law enforcement conduct lawful and constitutional. Presently, courts balance these conflicting interests on a case-by-case basis through evidentiary privilege law, often voicing their frustration with the challenging dilemma they face. We demonstrate how judicious use of a sophisticated cryptographic tool called Zero Knowledge Proofs (ZKPs) could help to mitigate this dilemma: Based on actual court cases where evidence was collected using a modified version of a peer-to-peer software, we demonstrate how law enforcement could, in these cases, augment their investigative software with a ZKP-based mechanism that would allow them to later provide full responses to challenges made by a defense expert -- and allow a defense expert to independently verify law enforcement claims -- while keeping the software hidden. We demonstrate the technical feasibility of our mechanism via a proof-of-concept implementation. We also propose legal analysis that justifies its use, discusses its merits, and considers the legal implications that the very existence of such a mechanism might have, even in cases where it has not been used. Our proof-of-concept may also extend to other verification dilemmas in the legal landscape.

Beth A. Colgan

No abstract is available for this record.

Tom Gerald Daly

Gardbaum’s comparative political process theory (CPPT) arrives at an odd juncture in world history. Positing a role for courts to remedy representative democracy’s defects, especially given the ascendance of authoritarian populism, it was completed just before the global COVID-19 pandemic hit and places courts center-stage just when they have suddenly receded into the background. Exceptions include the US Supreme Court’s refusal to extend the deadline for absentee ballots in the Wisconsin presidential primary on April 7, 2020—decried by Justice Bader Ginsburg as generating “massive disenfranchisement.”1 Even before the pandemic, it appeared increasingly untenable to cleave to a view of courts as strong bulwarks for threatened democratic systems. A growing literature frames the US Supreme Court as degrading democracy due to the substance of its decisions, not the mere fact that it enjoys constitutional supremacy.2 The Constitutional Tribunal has been captured and pressed into service as a “government enabler” in Poland.3 The Israeli government is said to have retained the “judicial revolution” empowering the courts while rolling back its liberal dimensions.4 The Indian Supreme Court has appeared more interested in self-preservation than guarding the democratic system threatened by Modi, and has undermined the functioning of parliament.5 It is a profoundly different global reality compared to just a decade ago, when the international juggernaut of juristocracy still seemed unstoppable. We are potentially entering the era of “post-juristocracy,” where courts’ decades-long accretion of governance power—and the accompanying obsession with, and faith in, courts—is waning. While courts remain a core preoccupation, many in the global comparative constitutional law community seemed to be moving on to new obsessions, such as political parties, citizens’ assemblies, and other deliberative innovations.6 Yet, Gardbaum’s theory remains acutely relevant. The pandemic has laid barer than ever deficiencies in governance worldwide and re-emphasized the centrality of effective political processes to what Schmitter calls “real-existing democracy.”7 As recent high-profile cases attest, courts play an irreplaceable role in supporting the role of other systemic actors—not least the UK Supreme Court’s stunning riposte to the government’s prorogation of Parliament.8 Gardbaum’s theory presents a laudable project to go beyond zero-sum, excessively abstracted debates on judicial review’s democratic legitimacy, and a patchwork of single-country analyses, by crafting a framework for understanding how courts worldwide can offer a targeted democracy-supporting role. This article responds to Gardbaum’s theory on the theoretical and empirical planes. Section 2 addresses how CPPT relates to existing theories not addressed in his account. Section 3 addresses contextual factors that complicate, frustrate, and limit the application of his theory. The main argument is that CPPT can be more fully integrated with existing frameworks, and that the assumed universality of its application should be reconsidered against today’s global reality. In constructing his theory Gardbaum draws, beyond Ely, on the work of theorists such as Sam Issacharoff, but does not engage with a range of relevant frameworks.9 This section places his account in a fuller context, drawing out its connections and resonances with existing theories. First, a brief summary. Gardbaum’s theory builds on Ely’s “participation-oriented, representation-reinforcing” approach to judicial review across three dimensions: (i) expanding Ely’s binary focus on incumbents’ suppression of democratic participation and systematic disempowerment of minorities to encompass additional malfunctions, including legislative failure to hold government accountable, executive capture of independent institutions, special interests’ capture of the political process, and outright dysfunction of one or multiple institutions; (ii) shifting the focus from outputs (especially legislation) to process; and (iii) seeking a more universal theory than Ely’s “self-consciously parochial” approach. For Gardbaum, like Ely, policing against erosion and distortion of the political process cannot be left to the elected branches alone, as vividly underscored in today’s era of “abusive constitutionalism” where the primary targets of errant executives are the structures of democratic government, rather than rights, and where policing legislation alone will leave much dysfunction and manipulation unremedied. CPPT seeks to provide a framework for grouping together issues that may otherwise not be analyzed as variants of the same problem, and a standard for when courts should intervene. For Gardbaum, courts should assist the democratic system to function “as it is supposed to,” support the functioning of other systemic actors and guard institutional pluralism, block attempts to stymie deliberation, contain and prevent manipulation (even if it cannot be fully remedied), and do so through a mix of mostly weak-form review, but also strong-form review when necessary: policing electoral processes and rules; lawmaking processes; mechanisms for executive accountability between elections; and rules and procedures of the executive and legislative branches, and the administrative state more widely. This departs from Gardbaum’s long-held position focused exclusively on weak-form review as the best universal option, allowing courts to adjudicate boldly and guard the coherence of the constitution without antagonizing the other branches, raising the risk of political attacks, and undermining the principle of judicial independence.10 The return to Ely’s theory, as well as moving past the longstanding US debate between interpretivists and non-interpretivists, serves to reanimate the well-worn debate hammered out in the context of long-established Western democracies, where the Waldronian and Dworkinian camps for and against strong judicial review (i.e. the ability to strike down legislation, and judicial supremacy more broadly) had argued to a stalemate by the early 2000s. Gardbaum’s theory also resonates with a parallel debate encompassing a broader suite of theories on judicial roles in young and Global South democracies which, as explained in Section 2, has increasing relevance to all democracies in the era of global “democratic decay.” This debate can be characterized as containing five principal, partially overlapping, arguments: Gardbaum’s “weak review” argument, discussed above, and what may be dubbed the “mirror,” “Global South,” “surrogate,” and “scaffolding” arguments.11 The “mirror” argument holds that constitutional courts in young democracies should approximate the role carried out by courts in mature democracies; playing an active part in democratic governance, but acting strategically to avoid addressing matters that will trench unduly upon other government branches’ sphere of action. For Sadurski and Ginsburg, discussing younger democracies in Europe and Asia, the main contribution courts can make is protecting rights,12 and constraining state authority.13 Ginsburg suggests caution is warranted regarding intervention “on core issues of the political process,” albeit in the context of extreme cases in Mongolia, South Korea, and Thailand concerning impeachment, the formation of government, and appointment of the prime minister.14 Daniel Bonilla Maldonado has argued that the jurisprudence of non-Western constitutional courts, including the Colombian and Indian apex courts’ assumption of more expansive governance functions across both substance and process, should be viewed as a legitimate “constitutionalism of the Global South” constructed in response to starkly different socio-political contexts and governance challenges—including political violence, high rates of poverty and inequality, cultural and religious diversity, and “consolidation of the rule of law”—which should not be discounted simply because it departs from the approaches taken by leading Western apex courts.15 The “surrogate” argument pushed this logic to the extreme, contending that courts could drive democratic development where the existing political party and wider political systems are unequal to the task. Scheppele described the stunningly assertive role of the Hungarian Constitutional Court in the 1990s as “democracy by judiciary.”16 The Court not only intervened strongly regarding outputs—striking down a third of all laws passed by parliament in its first six years, for instance—but also weighed heavily in the legislative process, especially by issuing advisory opinions during parliamentary deliberations and ordering the legislature to enact laws mandated by the Constitution.17 Approaching the “separation of powers as a contact sport,” the Court assumed an expansively interventionist role.18 The “scaffolding” argument adopts a much more targeted approach, focused on actively mitigating the worst deficiencies of young democracies and preventing elected organs from overwhelming the basic structure of democratic governance. For Issacharoff, in states such as South Africa, where the democratic transition leads to single-party dominance, the courts’ central role—which constitutes legitimate intervention in the political process—is protecting the “vitality of democratic competition for electoral office and the ability of the political process to dislodge incumbents”; to prevent the transition souring into a new autocracy through hobbling of the opposition, partisan capture of all state power, and control of elections and the media.19 Courts thereby shore up the “weakness of not only political institutions, but the ancillary civil-society participants in democratic life”—especially political parties.20 In the Latin American context, Gargarella’s concept of “democratic justice” has similarly argued for targeted judicial assertiveness, especially to counter excessive concentration of power through hyperpresidentialism.21 My own position aligns with the scaffolding argument, on the basis that it respects the principle of popular government, avoids the trap of overloading courts, provides a sense of core mission, and expects courage when fundamental democratic functioning is at stake—not merely staying within the political branches’ “tolerance levels.”22 More recently, David Prendergast has revisited Ely’s theory in arguing for a “suitably restrained” judicial approach to protecting any kind of democracy from populism, through specific, modulated, and often prophylactic intervention in political processes “to correct them when they have gone awry and to help prevent them going awry in the first place,” by policing the fairness of processes and procedures, and upholding institutional pluralism.23 Placed within this broader theoretical landscape, Gardbaum’s theory clearly pursues a scaffolding argument in its delineation of a sphere of robust judicial intervention without according courts uncabined discretion. However, he augments existing frameworks by providing a more granular theory of how targeted intervention may play out in practice, and the issues it would address. Gardbaum’s self-consciously global theory provides an illuminating analytical lens for a variety of states. It adds to our understanding of the UK Supreme Court’s reasoning in its prorogation judgment that judicial intervention “will not offend against . . . [but] be giving effect to the separation of powers.”24 It provides a clear framework for judicial protection of representative democracy in states still considered to enjoy good governance and independent courts—the Canadas, Germanies, and South Koreas of the world—as well as states in which, despite significant challenges, the democratic system has not degraded beyond targeted judicial intervention, such as South Africa. It may be instructive for states undergoing democratic transition, such as the Gambia, where both draft constitutions envisage a rather powerful supreme court.25 However, in the global climate of democratic decay, various factors complicate and limit CPPT’s universal application. Recall here that Waldron’s core argument against strong judicial review made a distinction between “well-functioning democracies” and other states. For Waldron, in the former—with adequately functioning representative and judicial organs, most officials and citizens committed to the idea of individual and minority rights, and “persisting, substantial and good faith disagreement” concerning the implications and meaning of such rights commitments—strong judicial review cannot be justified.26 In the latter, by implication, more extensive judicial action might be justified, suggesting the democratic legitimacy of judicial review, and its ambit, is context-sensitive. Of course, Waldron never specified what states counted as well functioning, but we could surmise his inner circle as comprising Global North democracies in North America and northern Europe, and perhaps states such as Japan and Costa Rica. The “parallel debate” on young and Global South democracies discussed in Section 2, while interesting from a comparative angle, was intuited to be of limited relevance to well-functioning democracies. The global phenomenon of democratic decay has significantly softened this dividing line. With many long-established democracies experiencing authoritarian populist leadership, dysfunctional governance, weakened parliaments, hyper-partisanship, sweeping negative transformation of the political-party system, and society-wide polarization, the parallel debate has become more broadly relevant.27 The pandemic has revealed this political dysfunction in its most alarming detail: Scheppele, for instance, has described the Trump administration as acting like the government of an “(almost) failed state.”28 However, this is not an argument for untrammeled expansion of judicial power. Indeed, even with the most independent, learned, perceptive, and strategically nimble court, the assumption of an overweening tutelary role could never be justified in democratic terms: indeed, arguments casting Brazil’s Supreme Court as a “moderating power” beyond the reach of any democratic control, as a response to the perceived failures of democratic politics, have been sharply criticized.29 Yet, even within the narrower confines of CPPT, it is contested that the current US Supreme Court could meet its apparent starting preconditions of independence, impartiality, and institutional legitimacy. Responding to the Kavanaugh nomination debacle, Epstein and Posner have offered that the Court, “[f]or the first time in living memory, . . . will be seen by the public as a party-dominated institution, one whose votes on controversial issues are essentially determined by the party affiliation of recent presidents.”30 Recent decisions have fueled the arguments of both the Court’s supporters and detractors: the landmark six-to-three judgment of June 15, confirming that the antidiscrimination protections of Title VII of the Civil Rights Act of 1964 apply to gay and transgender workers, can be argued as proof of its independence;31 while just two weeks later a judgment significantly freeing the President’s power to remove senior officials in the executive branch has raised serious fears.32 Many see the rot as much deeper than the Kavanaugh era, perceiving the Court as, not just a victim of authoritarian populist leaders, but itself an engine of democratic decay, having starkly degraded the structural functioning of the democratic system—including its watershed 2010 Citizens United decision on campaign financing and its weak response to gerrymandering.33 This view sees the present as merely a continuation, albeit intensified, of past practice—including the Court’s refusal to extend the deadline for absentee ballots in Wisconsin’s presidential primary in April 2020, which left citizens in the position of pitting their health and lives against exercising their democratic rights.34 Greenhouse described the decision as an exercise in “raw partisanship,”35 while Justice Bader Ginsburg’s dissent characterized the majority’s judgment as not only permitting “massive disenfranchisement” but endangering “the health of the Nation.”36 What might have happened with a stronger decision in line with CPPT? Had the Court extended the date for absentee ballots, raising the risk of a Republican loss and setting a precedent that could vastly transform the electorate for the November presidential elections, might it have unleashed serious political attacks—or even non-compliance? With increasing political pressure on courts, claims of absolute presidential power, and denial of the existence of any objective institution outside the realm of partisan contestation,37 we have strayed far from the “waspish civilities”38 of yesteryear, where (despite serious deficiencies in the democratic system) US governments could still be trusted to comply with rulings they bitterly opposed. Yet, it is not merely about this government. Perhaps more problematic is that CPPT tends to characterize problems as isolated, aberrant, or limited malfunctions, when the US political process as a whole faces multiple deeply rooted challenges arguably beyond judicial remedy. For instance, in response to the Supreme Court’s 2019 decision in Rucho v. Common Cause39 that partisan gerrymandering is “incompatible with democratic principles” but non-justiciable, Levinson argued that even adopting Justice Kagan’s (minority) solution would not have provided “a genuine cure for what ails us as a political system.” The only remedy would be for a democratic movement to “rise up” and push for a constitutional convention.40 Even this may be insufficient. Gardbaum’s framing of the 2017 tax law, for example, as an instance of “undue influence and corruption of the lawmaking process”41 elides the structural symbiosis of Americans for Prosperity (AFP) and the Republican Party, which blurs the division between the two, and leaves a form of “shadow party” in place, distorting the political process, which even constitutional reform would not address.42 That said, even if CPPT faces clear limitations, it remains a valuable yardstick. For instance, we can see the legitimacy of the Polish Supreme Court’s pushback against government and (captured) Constitutional Tribunal actions to end judicial independence as the institutional at the core of the democratic system by In the Gardbaum’s theory may more robust protection where degraded democracies courts as a central for threatened democracies, recent have been a reality about how we might reform courts, or even democratic through institutional However, as global juristocracy its we also guard against out the with the is any from the recent it is to avoid of any as courts never as or as they have so often been the is not While CPPT deeper about the of universal theories of judicial review, or at least the to more up their limitations, for to the democratic role of courts in our constitutional or more theory, a for courts to in guarding us all on which to and

Joseph M. Green

No abstract is available for this record.

Scott L. Cummings

The question of whether and how law plays a role in producing social change has received renewed scholarly attention, powered by research on the role of social movements in law making and the relation between court decisions and backlash. Reflecting the broader turn to empiricism within legal scholarship, this research either directly engages in or builds upon the empirical study of law in ways that chart exciting new scholarly directions — but also raise important conceptual and methodological questions. This essay explores these questions in an effort to frame what is at stake and guide future research. It makes three contributions.First, it offers a map of the law and social change field, suggesting how researchers across disciplines have asked a set of questions that can be understood as part of a coherent model in which law is viewed as both an “input” and “output” of social change campaigns. Within this model, debate centers on what factors cause lawyers and activists to turn to law as a tool of reform in the first instance (input analysis) and whether legal mobilization ultimately advances movement goals (output analysis). Focusing on the input side, the Essay next outlines how existing research presents a more nuanced story of legal mobilization than posited by the conventional view of rights claiming in court to advance underrepresented interests. In contrast to the traditional account of lawyers deploying litigation as a substitute for traditional politics, the input literature offers a more complex and dynamic account of the relationship of legal mobilization to political power; of lawyers to clients and constituencies; and of litigation to other legal and nonlegal social change strategies.Finally, the Essay turns to the output side to consider the multiple — and often contested — ways in which law may effect change. Here, it highlights an important challenge that empiricism poses to law and social change researchers: the challenge of evaluation. In particular, much of the debate about law and social change has centered on whether legal mobilization makes positive or negative contributions to reform efforts. As these debates become more informed by interdisciplinary research, it is useful to think about how the questions asked may shape the answers produced — and what this means for our understanding of law as a tool of transformative politics. Toward this end, the Essay identifies four key evaluative challenges — how to account for background conditions, select baselines, understand burdens of proof, and weigh counterfactuals — and offers some thoughts on how they might be addressed.

David L. Schwartz, Christopher B. Seaman

TABLE OF CONTENTS I. Introduction II. Standards of Proof--An Overview A. The Burden of Proof B. The Role and Types of Standards of Proof C. Previous Empirical Studies 1. Survey Evidence 2. Experimental Studies III. Microsoft v. i4i and Presumption of Validity in Patent Law IV. Methodology and Study Design A. Hypotheses About i4i's Impact B. Why an Experiment? C. Study Design V. Discussion A. Results B. Implications C. Directions for Future Research VI. Conclusion Appendix A Appendix B I. Introduction Our litigation system is based upon assumption that standards of proof matter. (1) They serve instruct factfinder concerning degree of confidence our society thinks he should have in correctness of factual conclusions. (2) The various standards of proof reflect legal system's judgment about proper allocation of risk between litigants, as well as relative importance of issues at stake. (3) For example, in criminal cases where defendant's liberty may be at stake, prosecution carries burden of proving every element of criminal charge beyond a reasonable doubt. (4) In contrast, of a much less stringent standard, is most common in civil cases. (5) The third main standard, and convincing is an intermediate standard employed in civil litigation when the individual interests at stake ... are both 'particularly important' and 'more substantial than mere loss of money.' (6) But despite perceived importance of standards of proof, few empirical studies have tested lay jurors' understanding and application of standards of proof, particularly in civil litigation. (7) Specifically, to our knowledge, there has not been a large-scale study of a demographically representative population comparing jurors' decisions when confronted with two standards of proof used in civil litigation: (1) preponderance of evidence, and (2) clear and convincing (8) Patent law recently presented an opportunity to assess impact of varying standard of proof in civil litigation. Under Section 282 of Patent Act, every claim in a issued U.S. Patent and Trademark Office (USPTO) is presumed to be valid. (9) This same statute also provides that [t]he burden of establishing invalidity of a or any claim thereof shall rest on party asserting such invalidity. (10) However, statute fails to specify standard of proof necessary to overcome this presumption of validity. In a recent case, Microsoft Corp. v. i4i Ltd. Partnership (i4i), U.S. Supreme Court heard competing arguments regarding proper standard of proof for finding a invalid. (11) Microsoft argued that preponderance of evidence standard should apply, at least when USPTO had not considered prior art that allegedly invalidated patent. (12) But Court unanimously affirmed U.S. Court of Appeals for Federal Circuit's (Federal Circuit) longstanding interpretation that invalidity must be proven by clear and convincing evidence. (13) However, Court also held that if party challenging a patent's validity could introduce new evidence in litigation that had not previously been considered USPTO during patent's examination, then the challenger's burden to persuade jury of its invalidity defense clear and convincing evidence may be easier to sus-sustain. (14) In such situations, jury should be instructed that it has heard evidence that [US]PTO had no opportunity to evaluate before granting patent and to consider that fact when determining whether an invalidity defense has been proved clear and convincing evidence. (15) But at same time, Court declined endorse any particular formulation for such an instruction. (16) Both parties in i4i and Court apparently assumed that standard of proof would affect lay jurors' decisions regarding invalidity, at least on margins. …

Claire McIvor

No abstract is available for this record.

Tim Miller

Occasionally investigations by state boards1 take longer than desired. Sometimes complainants take months or even years to file a complaint with a medical board. Cases may be complex and finding witnesses and obtaining expert opinions can lengthen the time it takes to complete a case. Sometimes the medical board must wait for another entity to complete its criminal investigations before the board can begin an investigation or bring charges. A delay, however, may prejudice a physician's ability to defend against the charges. This installment of Legal Briefs looks at the doctrine of laches (pronounced “latches”) and its applicability to state boards, as well as alternatives to laches.First, what exactly is laches? In legal terms, it is the concept of unreasonable delay in pursuing a right or claim — in a way that prejudices the opposing party. When asserted in litigation, it is in the category of “an equitable defense” or “doctrine.” The person invoking laches asserts that an opposing party has “slept on its rights,” and that during the elapsed time period, circumstances have changed and a plaintiff's original claim should not be granted.The courts have five methods for handling cases that have become stale in this way. The first is to apply any applicable statute of limitation. The second is to apply the Due Process clause in the U.S. Constitution. The third is to distinguish precatory suggestions from mandatory requirements. The fourth is to use the equitable remedy of estoppel. The fifth is to use the doctrine of laches. After reviewing the first four, this article will focus on the doctrine of laches. While reviewing laches, it must be remembered that the purpose of a medical board's administrative proceeding is not disciplinary but public protection.2Brown v. State Personnel Board established that statutes of limitation, “like the equitable doctrine of laches, in their conclusive effects are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.”3Nevertheless, Lindsey v. Miller's Lessee concluded that “[i]t is a well settled principle that the statute of limitations does not run against a state.”4 Specifically, “It has been held that there are no statutes of limitation applicable to [professional] disciplinary proceedings.”5Courts, however, may apply a statute of limitation to administrative proceedings.6 Sahu v. Iowa Board of Medical Examiners concluded that “if an administrative proceeding is in the public interest, such as disciplinary proceedings against a medical professional, courts will not apply the general statute of limitations.”7 Therefore, “courts have held without exception that in the absence of a statute which applies specifically to medical license revocation proceedings, statutes of limitations do not apply to such disciplinary proceedings.”8It is a well-established proposition that procedural due process requires notice and the opportunity to be heard in a meaningful time and in a meaningful manner.9 Due process applies when the government seeks to deny a person of a property or liberty interest.10 Physicians have a property interest in their license. Therefore, due process applies to disciplinary proceedings. As one court stated, “[i]t is fundamentally unfair to make a physician defend a nine-year-old complaint when the complaint was not delayed by fraud or the lack of ability to discover the misconduct. To hold otherwise would be to hold that there is no constitutional outer time limit, and we will not do that. Due process is the New Hampshire Constitution's version of the principles of equity, and application of a laches-type doctrine is deemed a part of the process due a person whose economic life and professional career are on the line.”11Precatory language in statutes and regulations is merely a set of recommendations. Precatory language does not create an imperative obligation. Mandatory language in a statute or regulation establishes a duty that the agency must follow. Generally, if the statute does not contain a consequence for the agency's failure to act, then the statute is precatory. If the statute does contain a repercussion for failure to act, then the statute is mandatory.12One court concluded that a legislature, in implementing timeframes, could not have meant for the state to lose jurisdiction.13 Here as elsewhere the public policy of public protection predominates over an individual's desire for a quick resolution.Lake Havasu City v. Arizona Dept. of Health Services established that “uses of the word ‘shall’ in statutes and rules does not mean the language is mandatory because such a construction would undermine the authority of the government.”14 In holding that the secretary of labor, who failed to investigate a claim within a statutory timeframe, did not bar him from continuing with the case, the Supreme Court provided several factors for determining when timeframes divest agencies from acting outside a legislative timeframe. These are legislative history, the statutory consequences for failure to act within the period and the availability of less drastic remedy.15Thus, as established in Sierra Pacific Industries v. Lyng, “[a] statutory time limit is not mandatory unless it both expressly requires an agency or public official to act within a particular period and specifies a consequence for failure to comply with the provision.”16 Nonetheless, even if the language is precatory, laches may still apply.Equitable estoppel is used when a party seeks to enforce a right or perform a duty after the other party has relied upon the inaction. Equitable estoppel requires proof of reliance upon another's conduct to one's detriment.17 Brown v. State Personnel Board found that “The policy to expedite justice underlying the rule exists where the proceeding is before a local administrative agency exercising quasi-judicial functions such as the board… Thus, the administrative agency must diligently pursue the disciplinary action as if it were seeking equitable relief. In measuring diligence the courts will apply notions of laches borrowed from the civil law.”18 Estoppel is very similar to laches; however, laches is the better method for analyzing stale claims. Equitable estoppel focuses on detrimental reliance, while laches focuses on delay and prejudice.Laches is an “equitable doctrine premised on unreasonable delay in asserting a right, which causes disadvantage or prejudice to another.”19 Laches cannot be inferred by the passage of time alone. It must be determined from all of the circumstances of the case, one of which must be the existence of harm caused by the delay. According to Bash v. Board of Medical Practice, “The party asserting laches bears the burden of proving both that the delay was unreasonable and that prejudice resulted from the delay.”20In the administrative law arena, statutes of limitation do not apply, and it is not clear if the doctrine of laches applies. On the one hand, “[laches] has been made applicable to quasi-adjudicative proceedings as a common law policy pursuant to the inherent power of the courts.”21 On the other hand, as in State v. Josefsberg, “the contrary has been held, by the weight of authority, the defense of laches is not available against the government, state or national, in a suit by it to enforce a public right or to protect a public interest…”22If laches applies, the public may be exposed to harm because the board would be stopped from proceeding with the case. If laches does not apply, however, a physician may have to defend against charges that are many years old. In calculating the time to apply to laches, the party must look at both the time it took for the complainant to complain and the time it took for the agency to act upon the complaint.23The first element in demonstrating laches applies is unreasonable delay. What makes the delay unreasonable in the case of laches is that it results in prejudice.24 As noted in Brown v. State Personnel Board: “It is said, ‘[t]here is no fixed rule as to the circumstances that must exist or as to the period of time which must elapse before the doctrine of laches can be appropriately applied.’”25 Ordinarily delay alone does not constitute laches. “Thus ‘[d]elay is not a bar unless it works to the disadvantage or prejudice of other parties.’”26In Stebbins, the court rejected an insurance salesman's argument that he was denied a “speedy trial” because of a 10-month delay while the State Insurance Commission investigated a complaint against him before filing a charge.27 The court agreed that the investigation could have been conducted more expeditiously. As noted in Caldwell v. State Bar: “However, petitioner has cited no cases, nor have we found any, which invalidate an administrative decision solely on the ground that there was a period of unreasonable delay during an agency investigation that preceded the initiation of formal proceedings.”28However, the courts, using their inherent authority, have applied laches to quasi-judicial administrative actions.29 Therefore, the delay must be unreasonable, but delay by itself is not sufficient to apply laches to an agency action or inaction.The second element in demonstrating that laches applies is prejudice because of the delay. Prejudice “cannot be inferred merely from the passage of time.”30 As established in Brown v. State Personnel Board: “Because of the relationship between prejudice and delay, the circumstances which give rise to laches vary widely depending upon their interplay in the specific case.”31 Miller v. Eisenhower Medical Center viewed it this way: “Prejudice is never presumed; rather it must be affirmatively demonstrated by the defendant in order to sustain his burdens of proof and the production of evidence on the issue.”32Excuse is a defense against a laches claim. Occasionally a state agency may have a compelling excuse as to why a significant amount of time elapsed between receiving the complaint and filing charges. Brown v. State Personnel Board found that “In order to excuse delay, [the responsible party] must show exceptional circumstances prevented earlier action.”33 In Sahu, “the Board properly delayed filing the complaint during the pendency of the federal criminal charges, the disciplinary proceeding was commenced within a reasonable time after the conclusion of the criminal trial.”34 Therefore, excuse provides a valid response to a laches claim.Agency mistake may excuse delay. Fahmy v. Medical Board of California noted: “It is matter of common knowledge that statutes of limitation do not run against the State. That no laches can be imputed to the king, and that no time can bar his rights, was the maxim of the common law, and was founded on the principle of public policy, that as he was occupied with the cares of government he ought not to suffer from the negligence of his officers and servants.”35The principle applies to state and national governments, which necessarily act through its agents to preserve the public's interests.36 U.S. v. Nashville stated: “It is settled beyond doubt or controversy, upon the foundation of the great principle of public policy…which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided…”37Lake Havasu City v. Arizona Department of Health Services established that “The United States Supreme Court [held] that there is and must be a strong public policy against allowing the mistakes of an agency or employee to limit the government's ability to enforce its laws.”38 And Brock v. Pierce County noted “We would be most reluctant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action, especially when important public rights are at stake.”39The government acts within its sovereign authority when it acts to protect the public. Galang v. State Medical Examining Board concluded: “It is well established that the objectives of professional discipline include the rehabilitation of the licensee, the protection of the public, and deterrence to other licensees from engaging in similar conduct.”40 Thus, when the state regulates the medical profession, it is acting in its sovereign capacity and for the public good.41When acting in its sovereign capacity, laches is not a defense. The court has noted the general principle of laches on the part of the government in bringing suit is not to be a defense in the case of a claim which is founded on a sovereign right and held that since this action was brought by the state in its sovereign capacity to protect a public right, the doctrine of laches was not available.42 These are all within the states' sovereign authority to protect the public. Thus, a medical board's disciplinary proceeding should not be barred by laches.Even when, as noted in Webb v. West Virginia Board of Medicine, “there [are] circumstances in a physician discipline proceeding when…a substantial degree of prejudice to a physician that is caused by an unreasonable delay not of the physician's making might nevertheless be outweighed by the strong interests of the state, the public and the profession in fully addressing allegations of serious professional misconduct — so as to tip the equitable balance in favor of continuing with a proceeding.”43Fahmy v. Medical Board of California concluded: “There is without a doubt a realization on the part of the Legislature that administrative agencies such as the Medical Board take action for the public welfare rather than for their own financial gain, and should not be hampered by time limits in the execution of their duty to take protective remedial action. That is particularly true in the case of the Medical Board, which is charged with protecting the lives and health of the citizenry from incompetent or grossly negligent medical practitioners. It is apparent that the Legislature wishes to have the Board protect California patients from physicians who are incapable of providing appropriate services in life or death situations, regardless of how long it takes the Board to act.”44Although its application is rare, occasionally laches is successfully applied in administrative cases. There can be no doubt that time does not bar a sovereign entity when it is acting to protect the public. State government protects the public through medical and osteopathic boards. Therefore, the state boards are just one means for the government to exercise its sovereign authority. Thus, laches should not apply to state board administrative proceedings. The centuries-old axiom Nullum Tempus Occurrit Regi — No Time Runs Against the King — should continue to be the rule.

Richard Collier

Over the past decade the relationship between law and popular culture has become the subject of a considerable and growing literature. This work has addressed, via a range of research methods and t...

Paul R. Verkuil

TABLE OF CONTENTS INTRODUCTION I. SCOPE OF REVIEW A. The Art of Scope of Review B. The Administrative Procedure Act as a Guide C. Congressionally Defined Scope of Review Standards D. Unpredictability of Reversal Rates II. THE SUPREME COURT BELIEVES THESE WORDS MATTER A. Contrasting the Outcome Effect of Standards of Proof B. Standards of Proof and Scope of Review Compared C. Scope of Review in Other Settings III. SCOPE OF REVIEW IN CONTEXT: SOCIAL SECURITY DISABILITY, VETERANS DISABILITY, AND THE FREEDOM OF INFORMATION ACT A. Social Security Administration Disability Cases B. Veterans Disability Claims C. Freedom of Information Act Cases 1. The Special Case of Exemption 1 2. Judicial Views About Freedom of Information Act 3. Comparison to Reverse-Freedom of Information Act Cases D. Summary IV. JUDICIAL REVIEW OF SENTENCING DECISIONS V. LESSONS IN SCOPE OF REVIEW FOR THE SUPREME COURT AND CONGRESS A. Reassessing Social Security Administration Disability Review 1. The Supreme Court's Role: Tinkering with the Substantial Evidence Test 2. The Role of Congress: Changing the Structure of Review 3. Role of the Agency: Managing, Not Dictating, Outcomes B. Reassessing Freedom of Information Act Review 1. The Supreme Court's Role in Setting the Tone 2. Congressional Alternatives 3. Role of Agencies and the Department of Justice in Freedom of Information Act Review CONCLUSION APPENDIX A APPENDIX B Under existing standards, then, the courts may narrow their review to satisfy the demands for administrative discretion, and they may broaden it close to the point of substituting their judgment for that of the administrative agency. (1) After fifty years ... we have yet to agree on how this review should operate in practice. We are still struggling with where to draw the line between obsequious deference and intrusive scrutiny. (2) INTRODUCTION The purpose of calibrating the breadth--or scope--of judicial review over fact finding by administrative agencies is ultimately to allocate decision-making responsibility between the executive and judicial branches. Because Congress usually makes these decisions, all three branches have a stake in the process. In assigning oversight responsibilities, Congress makes a choice: it weighs the desire for efficient and timely agency action against the need to ensure consistent and fair decision making. In balancing these considerations, Congress intends factual support for agency decisions to be subject to varying levels of scrutiny or, on occasion, to be free from scrutiny. (3) Straightforward enough, one would think. Yet, as the introductory quotes suggest, after all these years, reviewing judges are still struggling to make sense of these standards, especially as they apply to scope of review of facts or of law and policy. (4) I. SCOPE OF REVIEW It is doubtful that Congress wants scope of review to be an irrelevant labeling exercise. Instead, one might reasonably expect that Congress wants outcomes, defined in terms of affirmances, remands, and reversals of agency actions, to vary according to the scope of review standard chosen (or at least to find some judicial recognition of these expectations). But it seems the question is rarely asked and its premise remains unexamined. To explore the relationship of to standards, this Article makes a preliminary attempt to measure against the relevant scope of review provisions. This outcomes analysis produces some intriguing correlations between results and formulas, along with some surprises that themselves serve to raise more questions. Although such an exercise can never produce total agreement about how scope of review standards should operate, it facilitates a better understanding of why Congress differentiates among these standards and why the lesson sometimes is lost on the courts. …

Editors, Law Review

5 A similar distinction is made in Minnequa Cooperage v. Hendricks, 130 Ark. 264, 197 S.W. 280 (1917), where it was held that a statute providing for a three-fourths verdict'was unconstitutional though the parties "might have agreed that a less number than the whole might render a verdict."6 Various preliminary distinctions can be made at this point: The burdenof proof in criminal cases is greater than in civil cases; in civil cases life or liberty is not at stake and many more opportunities for compromise are present.7204