Volume 167, Issue 2 
January 2019

Data-Driven Originalism

Thomas R. Lee* & James C. Phillips**

The threshold question for all originalist methodologies concerns the original communicative content of the words of the Constitution. For too long this inquiry has been pursued through tools that are ill‐suited to the task. Dictionaries generally just define individual words; they don’t typically define phrases or allow for consideration of broader linguistic context. And while dictionaries can provide a list of possible senses, they can’t tell us which sense is the most ordinary (or common).

Originalists have also turned to other methods, but those methods have also fallen short. But all is not lost. Big data—and the tools of linguists—have the potential to bring greater rigor and transparency to the practice of originalism. This article will explore the application of corpus linguistic methodology to aid originalism’s inquiry into the original communicative content of the Constitution. We propose to improve this inquiry by use of a newly released corpus (or database) of founding‐era texts: the beta version of the Corpus of Founding‐Era American English.

This paper will showcase how typical tools of a corpus—concordance lines, collocation, clusters (or n‐grams), and frequency data—can aid in the search for original communicative content. We will also show how corpus data can help determine whether a word or phrase in question is best thought of as an ordinary one or a legal term of art. To showcase corpus linguistic methodology, this paper will analyze important clauses in the Constitution that have generated litigation and controversy over the years (commerce, public use, and natural born citizen) and another whose original meaning has been presumed to be clear (domestic violence). We propose best practices, and also discuss the limitations of corpus linguistic methodology for originalism.

School Vouchers, Special Education, and The Supreme Court

Aaron Tang

Among all of the contentious debates in education policy, perhaps none is as divisive as the one over private school vouchers. Even as more than 400,000 American students currently use some form of publicly funded voucher to attend a private school—with the number growing each year—one recent survey found that just thirty‐seven percent of Americans support the practice while forty‐nine percent oppose it. This divergence of opinion, unsurprisingly, corresponds largely with political affiliation, with Republicans more likely to support vouchers than Democrats.

In this Article, I argue that a path towards consensus on the voucher debate may be discernible in an unlikely place: an arcane pocket of Supreme Court case law regarding special education. In a series of cases, the Supreme Court has offered a vision of private school choice with plausible appeal to conservatives and liberals alike—a fact evidenced by the overwhelming consensus among the Justices themselves. In each of these cases, the Court has permitted parents of students with disabilities to remove their children from public school and enroll them in a private school at the government’s expense so long as a simple condition is met: the public school must have failed to provide the child with an appropriate education and the private school must succeed in its place. The Supreme Court’s approach to private school choice in the special education context, in other words, treats it as a simple question of empirics. We should support school choice when it helps kids, but not when it does not.

Applying this view to the school voucher debate more broadly would call into doubt many of the popular values‐based arguments advanced on both the left and right, leaving just one sound reason to oppose (or support) vouchers: the argument that they are bad (or good) for students. That argument, of course, is fundamentally contingent; it turns on what the research evidence tells us. And that evidence is hardly as iron‐clad in either direction as the left or right might wish. That, in turn, suggests that liberals and conservatives alike should reconsider their positions on school vouchers in some important ways.

Doubting Domestic Violence Survivors' Credibility and Dismissing Their Experiences

Deborah Epstein* & Lisa A. Goodman**

In recent months, we’ve seen an unprecedented wave of testimonials about the serious harms women all too frequently endure. The #MeToo moment, the #WhyIStayed campaign, and the Larry Nassar sentencing hearings have raised public awareness not only about workplace harassment, domestic violence, and sexual abuse, but also about how routinely women survivors face a Gaslight‐style gauntlet of doubt, disbelief, and outright dismissal of their stories. This pattern is particularly disturbing in the justice system, where women face a legal twilight zone: laws meant to protect them and deter further abuse often fail to achieve their purpose, because women telling stories of abuse by their male partners are simply not believed. To fully grasp the nature of this new moment in gendered power relations—and to cement the significant gains won by these public campaigns—we need to take a full, considered look at when, how, and why the justice system and other key social institutions discount women’s credibility.

We use the lens of intimate partner violence to examine the ways in which women’s credibility is discounted in a range of legal and social service system settings. First, judges and others improperly discount as implausible women’s stories of abuse, based on a failure to understand both the symptoms arising from neurological and psychological trauma, and the practical constraints on survivors’ lives. Second, gatekeepers unjustly discount women’s personal trustworthiness, based on both inaccurate interpretations of survivors’ courtroom demeanor and negative cultural stereotypes about women and their motivations for seeking assistance. Moreover, even when a woman manages to overcome all the initial modes of institutional skepticism that minimize her account of abuse, she often finds that the systems designed to furnish her with help and protection dismiss the importance of her experiences. Instead, all too often, the arbiters of justice and social welfare adopt and enforce legal and social policies and practices with little regard for how they perpetuate patterns of abuse.

Two distinct harms arise from this pervasive pattern of credibility discounting and experiential dismissal. First, the discrediting of survivors constitutes its own psychic injury—an institutional betrayal that echoes the psychological abuse women suffer at the hands of individual perpetrators. Second, the pronounced, nearly instinctive penchant for devaluing women’s testimony is so deeply embedded within survivors’ experience that it becomes a potent, independent obstacle to their efforts to obtain safety and justice.

The reflexive discounting of women’s stories of domestic violence finds analogs among the kindred diminutions and dismissals that harm so many other women who resist the abusive exercise of male power, from survivors of workplace harassment to victims of sexual assault on and off campus. For these women, too, credibility discounts both deepen the harm they experience and create yet another impediment to healing and justice. Concrete, systematic reforms are needed to eradicate these unjust, gender‐based credibility discounts and experiential dismissals, and to enable women subjected to male abuses of power at long last to trust the responsiveness of the justice system.


Ineffective Assistance of Padilla: Effectuating The Constitutional Right to Crimmigration Counsel

Greta A. Wiessner

The Supreme Court decided in Padilla v. Kentucky that noncitizens in criminal proceedings have a Sixth Amendment right to advice on the immigration consequences of a guilty plea. Despite the promise of Padilla, many noncitizens with unconstitutional criminal convictions find themselves without a remedy. Discovering the adverse immigration consequences of their convictions only once they face removal in federal immigration proceedings, noncitizens are faced with strict temporal and custodial requirements that foreclose state avenues for Padilla relief. While the states can partially alleviate the ineffective assistance of Padilla by creating new criminal procedural rules to raise Padilla claims in state forums, a uniform federal solution is needed. Federal courts should interpret the definition of “conviction” under the INA to exclude convictions entered without effective crimmigration counsel. Congress did not intend for convictions entered without procedural safeguards guaranteed by the Constitution to make noncitizens removable. Furthermore, immigration judges can use their expertise in immigration law to the advantage of all parties by hearing Padilla claims in a federal forum. Sharing the burden of redressing Padilla violations between the federal and state forums will ultimately improve the implementation of crimmigration counsel and remedy the current ineffective assistance of Padilla.

The Corporate Practice of Gerrymandering the Voting Rights of Common Stockholders and the Case for Measured Reform

Benjamin J. Barocas

The voting rights of common stockholders have been gerrymandered through the use of dual‐class and multiclass governance structures, which drive a wedge between the economic interests and voting entitlements of shareholders. These corporate governance structures are designed to preserve control for corporate insiders, including founders and family members. Insiders can secure majority voting power in corporate affairs without needing to retain a proportionate economic interest in the enterprise. The corollary is that ordinary shareholders are not afforded a commensurate amount of voting rights with their economic interest. Main Street investors have a diminished voice, and their ability to influence the decisionmaking of firms is diluted. Although dual‐class structures date back nearly a century, this practice has been on the rise in American corporations—especially following Google’s debut as a public company.

Volume 167, Issue 1 
December 2018

Class Actions, Statutes of Limitations and Repose, and Federal Common Law

Stephen B. Burbank & Tobias Barrington Wolff

After more than three decades during which it gave the issue scant attention, the Supreme Court has again made the American Pipe doctrine an active part of its docket. American Pipe addresses the tolling of statutes of limitations in federal class action litigation. When plaintiffs file a putative class action in federal court and class certification is denied, absent members of the putative class may wish to pursue their claims in some kind of further proceeding. If the statute of limitations would otherwise have expired while the class certification issue was being resolved, these claimants may need the benefit of a tolling rule. The same need can arise for those who wish to opt out of a certified class action. American Pipe and its progeny provide such a tolling rule in some circumstances, but many unanswered questions remain about when the doctrine is available.

In June 2017, the Court decided CalPERS v. ANZ Securities, holding that American Pipe tolling was foreclosed to a class member who opted out of a certified class in an action brought to enforce a federal statute (the Securities Act of 1933) that contained what the Court labeled a “statute of repose.” In June 2018, the Court decided Resh v. China Agritech, which held that American Pipe tolling is not available when absent members of a putative class file another class action following the denial of certification in the first action rather than pursuing their claims individually in subsequent proceedings.

In this Article we develop a comprehensive theoretical and doctrinal framework for the American Pipe doctrine. Building on earlier work, we demonstrate that American Pipe tolling is a federal common‐law rule that aims to carry into effect the provisions and policies of Federal Rule of Civil Procedure 23, the federal class action device. Contrary to the Court’s assertion in CalPERS, American Pipe is not an “equitable tolling doctrine.” Neither is it the product of a direct mandate in Rule 23, which is the source of authority, not the source of the rule. Having clarified the status of American Pipe tolling as federal common law, we explain the basis on which the doctrine operates across jurisdictions, binding subsequent actions in both federal and state court. We argue that the doctrine applies whether the initial action in federal court was based on a federal or state cause of action—a question that has produced disagreement among the lower federal courts. And we situate American Pipe within the framework of the Court’s Erie jurisprudence, explaining how the doctrine should operate when the putative class action was in federal court based on diversity jurisdiction and the courts of the state in which it was filed would apply a different rule. Finally, we discuss how CalPERS should have been decided if the Court had recognized the true nature of the American Pipe rule and if it had engaged the legislative history of the Securities Act rather than relying on labels.

Stock Market Short‐Termism’s Impact

Mark J. Roe

Stock‐market–driven short‐termism is crippling the American economy, according to legal, judicial, and media analyses. Firms forgo the R&D they need, cut capital spending, and buy back their own stock so feverishly that they starve themselves of cash. The stock market is the primary cause: directors and executives cannot manage for the long term when their shareholders furiously trade their company’s stock, they cannot make long‐term investments when stockholders demand to see profits on this quarter’s financial statements, they cannot even strategize about the long term when shareholder activists demand immediate results, and they cannot keep the cash to invest in their future when stock market pressure drains away that cash in stock buybacks.

This doomsday version of the stock‐market–driven short‐termism argument entails economy‐wide predictions that have not been well‐examined for their severity and accuracy. If the scenario is correct and strong, we should first see sharp increases in stock trading in recent decades and more frequent activist interventions, and these increases should be accompanied by (1) sharply declining investment spending in the United States, where large firms depend on stock markets and where activists are important, as compared to advanced economies that do not depend as much on stock markets, (2) buybacks bleeding cash out from the corporate sector, (3) economy‐wide R&D spending declining from what it should be, and (4) a stock market unwilling to support innovative, long‐term, technological firms. These are the central channels from stock‐market–driven short‐termism to overall economic degradation. They justify corporate law policies that seek to prevent these outcomes.

But these predicted economy‐wide outcomes are either undemonstrated, implausible, or untrue. Corporate R&D is not declining, corporate cash is not bleeding out, and the world’s developed nations with neither American‐style quarterly oriented stock markets nor aggressive activist investors are investing no more intensely in capital equipment than the United States. The five largest American firms by stock market capitalization are tech‐oriented, R&D intensive, longer‐term operations. The economy‐wide picture is more one of capital markets moving capital from larger, older firms to younger ones; of a postindustrial economy doing more R&D than ever; and of an economy whose investment intensity depends on overall economic activity, not stock market trading nor hedge fund activism. True, the economy‐wide data could hide stock market hits that hold back R&D from increasing more and that weaken American capital spending more than is fitting for a post‐industrial economy. But if so, these effects have not been shown and several seem implausible. Hence, the calamitous form of the stock‐market–driven short‐termist argument needs to be reconsidered, recalibrated, and, quite plausibly, rejected.

Then, last, comes the broadest question: why has a view that lacks strong economy‐wide evidentiary support become the rare corporate governance issue that attracts attention from the media, political players, policymakers, and the public—and that is widely accepted as true? I suggest why in this paper’s final part.

Claiming Design

Jeanne C. Fromer & Mark P. McKenna

Design stands out among intellectual property subject matter in terms of the extent of overlapping protection available. Different forms of intellectual property usually protect different aspects of a product. In the design context, however, precisely the same features are often subject to design patent, trademark, and copyright protection—and parties commonly claim more than one of those forms. Yet, as we show, the claiming regimes of these three forms of design protection differ in significant ways: the timing of claims; claim format (particularly whether the claims are visual or verbal); the multiplicity of claims (whether and how one can make multiple claims to the same design); and the level of abstraction at which parties claim rights. These methodological differences have significant effects on the operation of each individual regime. All of the claiming regimes have significant shortcomings, particularly in terms of the quality of notice the claims provide to third parties about their scope. That notice problem is worsened, as we argue, by the frequent cumulation of rights in the same design. Claim ambiguity and parties’ ability to switch back and forth between different design claims—both within and across legal regimes—make it difficult for courts and third parties to evaluate the validity and scope of rights. There is significant irony here because intellectual property claims exist almost entirely to provide notice. Cumulation also enables design rightsholders to assert rights in one or more regimes using the claiming rules that benefit them most at a particular moment, without any risk that those claiming choices will bind them in later rights assertions.

We suggest a number of improvements to each claiming regime that would help restore internal order. We also analyze various approaches to ameliorating the amplified costs of overlapping regimes for claiming design. In particular, we focus on doctrines of election and channeling rules as alternative methods of directing designs to one regime or another. We also introduce the possibility of transsubstantive intellectual property claiming rules as a way to reduce important inconsistencies across these regimes while also allowing protection under multiple regimes. Each of these solutions would alleviate at least some of the concerns we identify, though one’s preference among them will likely depend on one’s level of concern about overlapping rights.


Prosecuting Cryptocurrency Theft with the Defend Trade Secrets Act of 2016

Gregory Bischoping

This Comment intends to advance a novel law for prosecuting the theft of cryptocurrency—the Defend Trade Secrets Act of 2016 (the DTSA or the Act). The DTSA is a powerful legal tool for combatting this difficult‐to‐define crime. Beyond the conceptual applicability of trade secret law, the confidentiality, extraterritoriality, and other uniquely tailored features of the Act make it practically useful. This Comment suggests this nonexclusive tool for prosecuting cryptocurrency theft and will not explore the many other ways that cryptocurrency may be regulated.

After explaining the technology of cryptocurrency, I will describe the growing threat posed by cryptotheft. I will briefly survey the legal tools currently used to deal with the theft of cryptocurrency. I will next propose that the DTSA should be used to prosecute, both civilly and criminally, the theft of blockchain‐based currency. The DTSA includes a host of valuable features that make it particularly attractive and effective for both the government and individuals prosecuting cryptotheft. I will briefly compare the Act to other possible schemes for prosecuting cryptotheft. Finally, I will conclude by noting the challenge of applying American law to foreign actors and the technical difficulty associated with tracking and retrieving digital coins.

Securities Liability and the Role of D&O Insurance in Regulating Initial Coin Offerings

Adrian Parlow

We are in the midst of a revolution in financial markets, as cryptocurrencies based on blockchain technology promise a smart, decentralized, secure, and flexible means of conducting transactions. Since Bitcoin was introduced in 2009, cryptocurrencies have been steadily gaining in prominence and economic significance, shifting from fringe instruments linked to illicit drug marketplaces and money laundering to mainstream financial products used across the globe to store wealth, facilitate marketplaces, and provide platforms that support the development of new technologies. Bitcoin can now be readily converted to cash through a growing network of “Bitcoin ATMs,” can be hedged against using Bitcoin Futures that trade on derivatives markets, and is forcing major banks to adapt through direct investments in blockchain technologies and policies regarding the use of their funds in consumer cryptocurrency investments.

The year 2016 brought major changes to the cryptocurrency market, including the rise to prominence of utility‐focused blockchain applications that offer greater functionality such as the operation of smart contracts. The most prominent of these, Ethereum (and its currency “Ether”), has become the second most widely traded cryptocurrency, with a market capitalization of approximately $53 billion (as compared to Bitcoin’s $117 billion) as of June 2018. Around this time the industry also saw the rise of Initial Coin Offerings (ICOs), funding mechanisms that resemble a hybrid of crowdfunding and venture capital (VC) financing, in which a set number of “coins” or “tokens” in a new crypto venture are offered for sale to the public. Individuals can then buy in using fiat currency or other cryptocurrencies such as Bitcoin and Ether. While in 2015 an exceptionally successful ICO might have raised only a few million dollars, in 2016 ICO raises of $150 million or more began appearing, conducted by what were essentially seed‐stage companies that would have been unlikely to raise more than a few million dollars from venture capital firms or angel investors (the typical fundraising sources for such companies). In 2017, total ICO funding topped $3 billion, exceeding the total amount of VC investment in early stage Internet companies for the year.

However, despite the meteoric rise of ICOs as the funding method of choice for cryptocompanies, ICOs have been afflicted by a number of problems, including regulatory hurdles, fraudulent activity, and negative public perception. While reliable estimates are lacking, informed observers have repeatedly warned that many ICOs are fraudulent; with nothing but “a swanky website and an official‐looking whitepaper,” dozens of ICOs have raised money for what have later turned out to be Ponzi schemes or fake companies whose owners steal the money and disappear. There are a number of factors that have contributed to these concerning circumstances. The decentralized nature of the technology means that large amounts of money can flow through ventures without a central financial institution present to act as a guarantor. The targeting of ordinary people, rather than sophisticated VC firms or wealthy individuals, means that few investors have the expertise or the financial incentive to engage in costly due diligence to ensure the veracity of a firm’s claims. The absence—until very recently—of significant regulatory oversight has meant that the ICO process is largely nonstandardized, giving firms significant latitude to include false or misleading information in their investment solicitation materials or to omit important information. Finally, the frothiness of the cryptomarket has meant that investors have at times been willing to accept significant risk of being defrauded in return for the potential for astronomical returns.

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