Volume 165, Issue 5 
April 2017

On Mandatory Labeling, with Special Reference to Genetically Modified Foods

Cass R. Sunstein

As a result of movements for labeling food with genetically modified organisms (GMOs), Congress enacted a mandatory labeling requirement in 2016. These movements, and the legislation, raise recurring questions about mandatory product labels: whether there is a market failure, neoclassical or behavioral, that justifies them, and whether the benefits of such labels justify the costs. The first goal of this Article is to identify and to evaluate the four competing approaches that agencies now use to assess the costs and benefits of mandatory labeling in general. The second goal is to apply those approaches to the context of genetically modified (GM) food.

Assessment of the benefits of mandatory labels presents especially serious challenges. Agencies have (1) claimed that quantification is essentially impossible; (2) engaged in breakeven analysis; (3) projected various endpoints, such as health benefits or purely economic savings; and (4) relied on private willingness‐to‐pay for the relevant information. All of these approaches run into serious normative and empirical challenges. In principle, (4) is best, but in practice, (2) is sometimes both the most that can be expected and the least that can be demanded.

Many people favor labeling GM food on the ground that it poses serious risks to human health and the environment, but with certain qualifications, the prevailing scientific judgment is that it does no such thing. In the face of that judgment, some people respond that even in the absence of evidence of harm, people have “a right to know” about the contents of what they are eating. A simple response to this argument is that the benefits of such labels might well be lower than the costs. Consumers would obtain no health benefits from labels. To the extent that they would be willing to pay for them, the reason (for many though not all) is likely to be erroneous beliefs about health risks, and erroneous beliefs are not a sufficient justification for mandatory labels. Moreover, GMO labels might well lead people to think that the relevant foods are harmful and thus affirmatively mislead them.

Some people contend that GMOs pose risks to the environment (including biodiversity), to intelligible moral commitments, or to nonquantifiable values. Other people think that the key issue involves the need to take precautions in the face of scientific uncertainty: because there is a non‐zero risk that GM food will cause irreversible and catastrophic harm, it is appropriate to be precautionary, through labels or through more severe restrictions. The force of this response depends on the science: If there is a small or uncertain risk of serious harm, precautions may indeed be justified. If the risk is essentially zero, as many scientists have concluded, then precautions are difficult to defend. The discussion, though focused on GM foods, has implications for disclosure policies in general, which often raise difficult questions about hard‐to‐quantify benefits, the proper use of cost–benefit balancing in the face of uncertainty, and the appropriate role of precautionary thinking.

Freedom of Information Beyond the Freedom of Information Act

David E. Pozen

The U.S. Freedom of Information Act (FOIA) allows any person to request any agency record for any reason. This model has been copied worldwide and celebrated as a structural necessity in a real democracy. Yet in practice, this Article argues, FOIA embodies a distinctively “reactionary” form of transparency. FOIA is reactionary in a straightforward, procedural sense in that disclosure responds to ad hoc demands for information. Partly because of this very feature, FOIA can also be seen as reactionary in a more substantive, political sense insofar as it saps regulatory capacity; distributes government goods in an inegalitarian fashion; and contributes to a culture of adversarialism and derision surrounding the domestic policy bureaucracy while insulating the far more secretive national security agencies, as well as corporations, from similar scrutiny. If this Article’s core claims are correct to any significant degree, then open government advocates in general, and progressives in particular, ought to rethink their relationship to this landmark law.

Will Tax Reform Be Stable?

Jason S. Oh

Stability is essential to any reform’s success, yet it is hardly guaranteed. This is particularly true in tax policy, where Congress persistently tinkers. This Article offers a novel approach to studying the stability of reform proposals in taxation. Any reform proposal can be decomposed into its constituent policies. I show that politically extreme policies are more likely to be reversed than are moderate ones. This basic intuition allows one to decompose any tax reform proposal into stable and unstable pieces.

Stability analysis has important implications for tax reform, potentially upending normative prescriptions. First, reform is often justified by appeals to efficiency and fairness. These claims must be appropriately discounted for instability. I demonstrate that some “efficient” or “fair” reforms can be quite inefficient or unfair due to their inherent instability. Second, the overall revenue effect of a proposal depends on its stability. Many so‐called “revenue‐neutral” proposals may actually reduce revenue once stability is incorporated into the analysis. Such reforms are particularly troubling today given the growing federal deficit.


Implicit Bias as Social-Framework Evidence in Employment Discrimination

Annika L. Jones

The role of implicit bias as evidence in employment discrimination claims continues to evolve, as does research attempting to explain and quantify the concept of implicit bias. In Walmart Stores, Inc. v. Dukes, the Supreme Court curbed plaintiffs’ use of implicit bias as evidence in support of the commonality requirement of Rule 23. Post‐Dukes, plaintiffs have looked for creative ways to leverage scientific developments in implicit bias within the legal framework of employment discrimination law.

The most promising answer to the “Dukes problem” looks to implicit bias as substantive, rather than procedural, evidence. By repackaging implicit bias as social‐framework evidence, plaintiffs can persuasively contextualize for factfinders the ways in which differential treatment plays out in a workplace, even in the absence of overtly discriminatory attitudes or stereotypes. Whether courts will adapt to this use of implicit bias is increasingly important, as modern workplace discrimination is becoming more subtle and often is the result of unconscious biases.

The Machine Author: What Level of Copyright Protection Is Appropriate for Fully Independent Computer‐Generated Works?

Robert Yu

U.S. copyright law is grounded in a utilitarian philosophy: authors are granted a limited monopoly to incentivize production of original expressive works for the benefit of society as a whole. This philosophy may need to be applied to non‐human, machine authors in the very near future. Works of literature, music, and art are increasingly being generated through the execution of software programs, suggesting that these machine‐authored works may become the norm rather than the exception. The burgeoning of computer‐generated works raises novel and fascinating questions of copyrightability, but the existing literature neglects to address a basic question: does extending copyright protection to machine‐authored works promote or hinder the purpose of copyright law?

This Comment makes several contributions to the scholarship on copyright law. First, it poses fundamental questions regarding how the existing copyright framework would be applied to the various players that contribute to machine‐authored works and notes the problematic aspects of such application, particularly in identifying the legal author of the work. Second, it evaluates whether—in the case of machine‐authored works—the human author should be allocated rights based on the economic incentive theory. It argues that inflexible application of copyright law creates a contribution/rights paradox because the party that contributed most to the creation of the work—its author—is not the party to whom we would like to allocate copyright protection. Finally, the Comment posits that because copyrights provide little economic incentive to the players involved in creating machine‐authored works, it would be inappropriate from a social policy standpoint to extend protection to fully independent computer‐generated works.

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