Calling the Shots: Multistate Challenges to Federal Vaccine Mandates

Multistate litigation brought by state attorneys general (“AGs”) frustrated the Biden administration’s efforts to combat the COVID-19 pandemic by vaccinating workers. Nationwide injunctions played an important role in halting the implementation of vaccine mandates in multistate actions. State challenges to vaccine mandates are consistent with AG lawsuit trends against recent presidential administrations. These challenges also reveal new emerging patterns that shed light on the future of multistate litigation and nationwide injunctions. State vaccine mandate lawsuits have continued to raise criticisms of nationwide injunctions and, at the same time, provide insights on pathways forward for reform.


Familial Searches, the Fourth Amendment, and Genomic Control

In recent years, police have increasingly made use of consumer genomic databases to solve a variety of crimes, from long-cold serial killings to assaults. They do so frequently without judicial oversight per the Fourth Amendment’s warrant requirement by using consumer genomic platforms, which store hundreds of thousands or millions of user genomic profiles and enable law enforcement to infer the identity of distant genomic relatives who may be criminal suspects. This Essay puts this practice into context given recent legal and technological developments. As for the law, the Supreme Court in United States v. Carpenter has suggested that technologically driven and expansive datasets may be entitled to the full suite of Fourth Amendment protections. As for technology, we describe here the development of a novel technology that allows users to engage in genomic analysis in a secured environment without making such information available to a third party. Taken together, we present a possible technological solution to ensuring Fourth Amendment protections for direct-to-consumer genomic data.


A Review of Empirical Literature in Information Security

Information security breaches have hit the headlines frequently in recent years because of their potential impact on organizations and the public. For example, Equifax announced a data breach in September 2017, which affected about 147 million people. Its business value, estimated by stock prices, dropped four billion dollars in the first week of the breach. The cost associated with the breach was already $439 million before a $425 million settlement was announced in 2020. The trend of data breaches does not show an optimistic future. According to IBM, the average total cost of a data breach was about $4.24 million, but it took, on average, 287 days to identify and contain a data breach.

The seriousness of information security breaches has also attracted attention from the regulators. For example, the U.S. Securities and Exchange Commission (“SEC”) has issued guidance and interpretive guidance in 2011 and 2018, respectively, regarding the disclosures of cybersecurity related risks, which has led to more enforcement actions. The Public Company Accounting Oversight Board included an assessment and understanding of cyber and information security risks in its 2020–2024 strategic plan. The Federal Trade Commission (“FTC”) has also started to propose changes to its Safeguards Rule and the Privacy Rule under the Gramm-Leach-Bliley Act.

Given the huge impact of data breaches on organizations and individuals, the business research community has attempted to better understand information security from various angles, from threat and disclosures to impact and responses. In this study, we will provide a review of prior empirical studies to help readers better understand this stream of literature. The review will be organized based on a summary of the terminologies discussed in International Organization for Standardization (“ISO”)/International Electrotechnical Commission (“IEC”) 27032:2012 as illustrated in Figure 1. This framework captures the components that are commonly discussed in assessing information security risks as mentioned in the ISO/IEC 27000 series. Specifically, in the framework, threat agents give rise to threats to specific assets in an organization. The threat may exploit the vulnerabilities that can lead to risks. The shareholders would like to reduce the risks by imposing various governance mechanisms (for example, controls) that can also reduce the vulnerabilities. When the risk is realized, it becomes a breach event, which can affect the breached organization. Actions may be taken in response to the security breaches. Accordingly, Figure 1 provides a structure for us to understand information security, from identification of threats and vulnerabilities; risk assessment and management strategies; and potential consequences and responses. 

Figure 1.  Framework for the Review

Based on the framework illustrated in Figure 1, the following literature review is organized into three major groups: (1) threats and vulnerabilities; (2) risks and governance mechanisms; and (3) impacts and responses.


Fintech and Financial Inclusion: A Review of the Empirical Literature

The financial technology industry, or “fintech,” has experienced rapid growth within recent years. Between 2015 and 2019, global fintech adoption among consumers rose from 16% to 64%. Adoption of fintech services has continued to rise and further accelerated during the COVID-19 pandemic.

An emerging field of research highlights the important role that fintech can play in promoting financial inclusion—the availability and equality of opportunities to access financial services. The 2017 Global Findex Database noted that 1.7 billion adults worldwide are unbanked, meaning they lack an account with a financial institution or mobile money provider; nearly all unbanked adults live in the developing world.

Access to financial services is a key enabler for financial inclusion and, on a broader scale, reducing worldwide poverty. Financial accounts encourage personal savings and investment, provide insurance against risks and shocks, and promote economic mobility. Thus, the importance of bringing financial services to the unbanked has captured the attention of many researchers.

Online platforms have an important role to play in financial inclusion. Numerous studies have demonstrated that fintech services, such as mobile money, digital payment solutions, and digital lending platforms, have the potential to enable account ownership among the unbanked. Further research has shown that countrywide fintech adoption can decrease income inequality by up to 23%. Overall, research points to the fact that fintech can have a positive impact on financial inclusion, yet the magnitude of its effects are dependent on relevant infrastructure and policies.

Recently, governments and global organizations have begun to recognize the need for harnessing the power of fintech to promote financial inclusion. For example, the Group of Twenty (“G20”) High-Level Principles for Digital Financial Inclusion emphasize the importance of utilizing fintech to achieve financial inclusion and reduce global income inequality. Additionally, the United Nations (“U.N.”) 2030 Agenda for Sustainable Development calls for innovation and development of fintech to spur economic growth among emerging and developing countries.

This research commentary surveys key research related to fintech and its implications for global financial inclusion. Specifically, it provides an overview of studies regarding digital lending, digital payment, and mobile money platforms and how these services can bridge the financial gap for traditionally unbanked and underserved communities. In terms of the legal role through public and private law, it also identifies common concerns and challenges associated with the adoption of fintech, as well as relevant policies to mitigate these concerns and foster financial inclusion.


Renovating Federal Housing Law to Help Protect Tenants with Disabilities

Many individuals with disabilities contact landlords to inquire about rental housing only to learn that the landlord’s dwelling units are inaccessible. And federal anti-discrimination laws applicable to private rentals are often unhelpful. First, Title III of the Americans with Disabilities Act (“ADA”) applies to only the public areas of rental housing complexes and does not extend to dwelling units. Second, the Fair Housing Act (“FHA”) requires persons with disabilities, who have a median household income far below the national average, to pay for any structural modifications needed to facilitate their use of housing even though such retrofitting costs several thousand dollars on average. Third, it is often unclear whether landlords or their properties receive federal financial assistance that subjects them to the Vocational Rehabilitation Act of 1973 (“Rehab Act”), so individuals with disabilities may find it difficult to enforce landlords’ obligation to implement and pay for reasonable modifications under this statute. People with disabilities thus lack equal access to rental housing and cannot fully participate in American society. But the ADA, FHA, and Rehab Act were all enacted with the goal of integrating those with disabilities into public life.

Congress can address this persistent housing inequality by renovating the ADA, FHA, and Rehab Act to eliminate their coverage gaps. These incremental changes to federal law make sense as a policy matter because they will shift the cost of accessible rental dwellings from individuals with disabilities—who tend to have low incomes—to wealthy corporate property managers that can better absorb such expenses. And freeing people with disabilities from the economic constraints of their disability will help them live independently and in turn facilitate their development of a personal identity and full integration into their communities. This increased visibility of individuals with disabilities in everyday life will enhance the diversity of the American social fabric, which is an important step in reducing anti-disability attitudes and prejudices that too often impact interactions between people with disabilities and their nondisabled peers.


Frederick Douglass and the Hidden Power of Recording Deeds

This Essay answers a single question: What led Frederick Douglass to accept an appointment as the D.C. Recorder of Deeds, especially at the height of his public service career? A possible answer, which is informed by the historical record and more contemporary accounts, is that Douglass accepted such an appointment for three reasons. The first reason is that the D.C. Recorder has been long recognized as an exemplar of fairness, perhaps due to its ministerial obligations, even when there could be no such expectation with respect to how Black folks are treated. The second reason is this office provided Douglass with a relatively safe position, in economic and political terms, that he used to call for more standard treatment of Black people by various governmental units such as the U.S. Supreme Court. The final reason is the D.C. Recorder collects public information, in the normal course of its business, which validates Douglass’s call for more standard treatment.

These three reasons, if they are read as a whole, refer to what the Essay is the first to call the hidden power of recording deeds. This power is made up of unnoticed benefits, largely arising from governmental policies informed by procedural fairness, which help to limit racial discrimination. Procedural fairness, by definition, is when U.S. governments refuse to treat similarly situated people in nonstandard ways without adequate justification. One reason for such a refusal to do so is that governments may have ministerial obligations, which limit their ability to exercise any discretion.

The D.C. Recorder has ministerial obligations which were intended to increase economic efficiency rather than to advance racial equality, such as the duty to register property interests upon the satisfaction of certain conditions precedent, but nonetheless ensure that Black people are treated just like everybody else. This office also does work that highlights the implications of failing to ensure standardization, which include unjustified economic losses that stem from adverse selection and other asymmetric information issues. Lastly, the D.C. Recorder shows that any such losses are not solely imposed upon Black folks, especially as many neighborhoods have become increasingly integrated, so harms are not limited to property owners in majority-Black areas. Stated simply, this hidden power is a less-than-salient way to remove “unfreedoms that leave [Black] people with . . . little opportunity of exercising their reasoned agency” even when they suffer from chronic property right violations such as trespasses to land or nuisances.

Part I provides additional information about Frederick Douglass and how he may have understood the various powers that are exercised by the D.C. Recorder of Deeds. Part II explains how to build upon Douglass’s legacy as the first Black D.C. Recorder, especially his call for more standardized treatment, mostly by explaining how this office could make better use of public information that it has in its possession. The Conclusion offers specific suggestions for how to achieve this goal, so as to prevent purchase price discrimination, lien fraud, and deed fraud.


Tracing the Diverse History of Corporate Residual Claimants by Sung Eun (“Summer”) Kim

Postscript | Corporate Law
Tracing the Diverse History of Corporate Residual Claimants
by Sung Eun (“Summer”) Kim*

Vol. 95, Postscript (Jan 2022)
95 S. Cal. L. Rev. Postscript 43 (2022)

Keywords: Corporate Law, Residual Rights

The conventional understanding in corporate law is that shareholders are the residual claimants of corporations because they own the residual right to profits. Based on this understanding, shareholders are entitled to a host of corporate law rights and protections—including the right to vote and fiduciary duty protections. However, a review of the origin and history of residual claimant theory shows that the theory originally envisaged a broad conception of the residual claim that goes beyond profits, leading to a diverse array of stakeholders being the residual claimants of corporations over time. Depending on which of the theories of rent, interest, wages, or profit was adopted, each of the landlord, capitalist, laborer, and entrepreneur has been considered the residual claimant of the corporation. This history shows that the prevailing view of shareholders as the exclusive residual claimants of the corporation is a relatively recent understanding and that the historical record supports a more diverse conception of the residual claimant. In that sense, residual claimant analysis is better understood as a theory for the stakeholder model of the firm than the shareholder primacy model, as it is presently understood.

* Professor of Law, University of California, Irvine School of Law. I am grateful to Mehrsa Baradaran, Joshua Blank, Jill Fisch, Vic Fleischer, Jonathan Glater, Alex Lee, Jennifer Koh Lee, Stephen Lee, Christopher Leslie, Omri Marian, L. Song Richardson, and Arden Rowell for reading prior versions of this Article and providing helpful comments. I also benefitted from the opportunity to present and receive feedback on this project at the Trans-Pacific Business Law Dialogue (September 2020) and the University of Florida Business Law Conference (November 2020). Tianmei Ann Huang and Nick Nikols provided extraordinary research assistance, and Vivian Liu, Mindy Vo, Elizabeth Bell, and Jessica Block of the Southern California Law Review Postscript team, Deborah Choi, and Matthew Perez provided superb editorial assistance. Any errors are my own.

Trademark’s “Ship of Theseus” Problem by Mathew T. Bodie*

Postscript | Intellectual Property Law
Trademark’s “Ship of Theseus” Problem
by Matthew T. Bodie*

Vol. 95, Postscript (Nov 2021)
95 S. Cal. L. Rev. Postscript 27 (2021)

Keywords: Intellectual Property Law, Trademark

The “Ship of Theseus” is a classic philosophical problem posed about the continuity of identity. In Plutarch’s telling, the ancient Athenians preserved for posterity the famous ship piloted by Theseus after the slaying of the Minotaur.1 Once a year, a delegation would travel on the ship to the island of Delos with a tribute to the god Apollo.2 Over time, the wood began to rot, and the decaying planks were replaced with new ones. The ship became “a standing example among the philosophers, for the logical question of things that grow: one side holding that the ship remained the same, and the other contending that it was not the same.”3 The conundrum was recently referenced in the Marvel Comics Universe, as two versions of the organic android Vision puzzled over their identities in the climax of WandaVision.4 A wrinkle was added: what if the boards from the original ship were saved and used to recreate a version of the ship? Would that also be the ship of Theseus?

Trademark has long had a problem with identity. The purpose of trademark is to identify the source of goods or services and thereby make life easier for consumers. But trademark does not make an effort to ensure that the company that holds the mark still reflects the entity that developed the mark’s identity. Rather, trademark has turned largely into an alienable property right, unmoored from its created context.5 The law has severed the connection between the mark and the entity beyond the formalities of organization law, with the result that whoever controls the mark’s owner controls the mark. As a result, new owners can take advantage of reputation capital they never earned, and those with a true connection to the success of the original business can be shut out.6

This Essay argues against the law’s presumption that the corporate entity should have exclusive control over the mark, no matter the continuing connection (or lack thereof) that the entity has with the original business and goodwill. Trademark should instead reflect the potential that the identity will change over time, changing the meaning of the trademark along with it. Rather than blindly empowering individual corporations, trademark law should either pay closer attention to identity issues or allow a wider variety of participants to use the mark in various ways. Either of these approaches to trademark would be messier but would reflect more accurately our complicated reality.

* Callis Family Professor, Saint Louis University School of Law. This Essay is based in part on an ongoing research project presented at the Intellectual Property Scholars Conference and the biannual meeting of the Labour Law Research Network; I very much appreciate comments from Erika Cohn, Mark Lemley, Laura Heymann, Yvette Liebesman, Jake Linford, and Mark McKenna. Thanks to Danielle Dur- ban for excellent research assistance.