Current Issue

  • Volume 67,
  • Number 5 -
  • February 2018

Articles

Reputational Regulation
Kishanthi Parella
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When organizations act in ways that offend the public interest, parties seeking to change that behavior traditionally turned to litigation to force these organizations to reform, whether by command or consent. For example, following Brown v. Board of Education, “structural reform litigation” forced large-scale organizations, from school boards to prisons, to change their practices. Similarly, federal prosecutors have used agreements with large corporations to introduce significant structural reforms.

This Article identifies an alternative strategy for organizational change that relies on the indirect reputational effects of litigation. Under this approach, organizational change does not result from court order or parties’ settlement but from the informational effects of litigation: litigation transmits information about an organization into the public space; this information has reputational consequences for the affected organizations; voluntary organizational change is a response to that reputational shaming. Critically, these reputational sanctions can accompany all types of litigation and not just those specifically seeking structural reform remedies.

This Article identifies and explains the operation of four reputational sanctions: financial, policy, regulatory spillover, and barriers to entry. We are most familiar with the financial sanction, where consumers adopt “naming and shaming” boycotts to punish corporations for their behavior, thereby encouraging the latter to change their practices. But reputational sanctions also take the other three forms and can encourage large organizations to change their practices even when financial sanctions are weak or inoperative. Collectively, these reputational sanctions—operating outside the boundaries of traditional legal and regulatory processes—are employed by both public and private actors and play an increasing role in the decisions that organizations make.

Data Privacy and Dignitary Privacy: Google Spain, the Right To Be Forgotten, and the Construction of the Public Sphere
Robert C. Post
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The 2014 decision of the European Court of Justice in Google Spain controversially held that the fair information practices set forth in European Union (EU) Directive 95/46/EC (Directive) require that Google remove from search results links to websites that contain true information. Google Spain held that the Directive gives persons a “right to be forgotten.” At stake in Google Spain are values that involve both privacy and freedom of expression. Google Spain badly analyzes both.

With regard to the latter, Google Spain fails to recognize that the circulation of texts of common interest among strangers makes possible the emergence of a “public” capable of forming the “public opinion” that is essential for democratic self-governance. As the rise of American newspapers in the nineteenth and twentieth centuries demonstrates, the press underwrites the public sphere by creating a structure of communication both responsive to public curiosity and independent of the content of any particular news story. Google, even though it is not itself an author, sustains the contemporary virtual public sphere by creating an analogous structure of communication.

With regard to privacy values, EU law, like the laws of many nations, recognizes two distinct forms of privacy. The first is data privacy, which is protected by the fair information practices contained in the Directive. These practices regulate the processing of personal information to ensure (among other things) that such information is used only for the specified purposes for which it has been legally gathered. Data privacy operates according to an instrumental logic, and it seeks to endow persons with “control” over their personal data. Data subjects need not demonstrate harm in order to establish violations of data privacy.

The second form of privacy recognized by EU law is dignitary privacy. Article 7 of the Charter of Fundamental Rights of the European Union protects the dignity of persons by regulating inappropriate communications that threaten to degrade, humiliate, or mortify them. Dignitary privacy follows a normative logic designed to prevent harm to personality caused by the violation of civility rules. There are the same privacy values as those safeguarded by the American tort of public disclosure of private facts. Throughout the world, courts protect dignitary privacy by balancing the harm that a communication may cause to personality against legitimate public interests in the communication.

The instrumental logic of data privacy is inapplicable to public discourse, which is why the Directive contains derogations for journalistic activities. The communicative action characteristic of the public sphere is made up of intersubjective dialogue, which is antithetical both to the instrumental rationality of data privacy and to its aspiration to ensure individual control of personal information. Because the Google search engine underwrites the public sphere in which public discourse takes place, Google Spain should not have applied fair information practices to Google searches. But the Google Spain opinion also invokes Article 7, and in the end the decision creates doctrinal rules that are roughly approximate to those used to protect dignitary privacy. The Google Spain opinion is thus deeply confused about the kind of privacy it wishes to protect. It is impossible to ascertain whether the decision seeks to protect data privacy or dignitary privacy.

Google Spain is ultimately pushed in the direction of dignitary privacy because data privacy is incompatible with public discourse, whereas dignitary privacy may be reconciled with the requirements of public discourse. Insofar as freedom of expression is valued because it fosters democratic self-government, public discourse cannot serve as an effective instrument of self-determination without a modicum of civility. Yet the Google Spain decision recognizes dignitary privacy only in a rudimentary and unsatisfactory way. If it had more clearly focused on the requirements of dignitary privacy, Google Spain would not so sharply have distinguished Google links from the underlying websites to which they refer. Google Spain would not have blithely outsourced the enforcement of the right to be forgotten to a private corporation like Google.

Notes

Resurrecting a Doctrine on its Deathbed: Revisiting Federal Common Law Greenhouse Gas Litigation After Utility Air Regulatory Group v. EPA
Zachary Hennessee
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This Note considers how the Supreme Court’s decision in Utility Air Regulatory Group v. EPA (UARG) may have created a new opening for federal common law nuisance litigation as a means to address climate change. The Court’s earlier decision in American Electric Power v. Connecticut (AEP) held that federal nuisance claims targeting greenhouse gas emissions were completely displaced by the Clean Air Act. However, the holding in AEP was premised on the assumption that the Clean Air Act uniformly addressed greenhouse gases throughout the statute. UARG upended this assumption, holding that there are sections of the Clean Air Act that do not encompass greenhouse gases. Therefore, there may be sources of greenhouse gas emissions that are not regulated by the statute. Based on the displacement analysis employed in AEP , this would mean that the federal common law of nuisance would not be displaced as to these sources.

The Clean Air Act’s coverage of the greenhouse gas emissions from one important category of sources—existing stationary sources—is an open question. Until recently, the D.C. Circuit appeared poised to answer at least part of this question in West Virginia v. EPA , the case challenging the Obama administration’s signature carbon dioxide regulation—the Clean Power Plan. The Clean Power Plan was premised on Section 111(d) of the Clean Air Act, and the D.C. Circuit’s en banc decision would have resolved whether and to what extent Section 111(d) can be used to regulate certain existing sources’ greenhouse gas emissions. However, the Trump administration has proposed to rescind the regulation, and it appears increasingly unlikely that the D.C. Circuit will issue a decision on the merits of the litigation. Therefore, it remains unclear whether Section 111(d) addresses existing sources’ greenhouse gas emissions. As this Note shows, the only other section of the Clean Air Act that might encompass these sources’ greenhouse gas emissions is Section 115, but this is far from certain.

This Note argues that a federal common law nuisance suit should be leveraged in the face of this uncertainty. The result would be salutary, win or lose. On the one hand, the suit could result in a holding that either Section 111(d) or Section 115 encompasses greenhouse gases, which would mean that the federal common law would indeed be displaced. This holding could then be used to force the Environmental Protection Agency (EPA) to regulate existing sources’ greenhouse gas emissions under those sections. On the other hand, if the court finds that the Clean Air Act does not address existing sources’ greenhouse gas emissions, then these sources would be subject to substantial litigation risk. This exposure, in turn, could induce these sources to ask Congress to draft legislation that addresses their greenhouse gas emissions, thereby displacing any future common law claims. In the end, the desired outcome of the federal nuisance suit is the same: to catalyze comprehensive regulatory or legislative coverage of greenhouse gas emissions in the United States, which is imperative to avert the most devastating effects of climate change.

Double Secret Protection: Bridging Federal and State Law To Protect Privacy Rights for Telemental and Mobile Health Users
Josh Sherman
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Mental health care in the United States is plagued by stigma, cost, and access issues that prevent many people from seeking and continuing treatment for mental health conditions. Emergent technology, however, may offer a solution. Through telemental health, patients can connect with providers remotely—avoiding stigmatizing situations that can arise from traditional healthcare delivery, receiving more affordable care, and reaching providers across geographic boundaries. And with mobile health technology, people can use smart phone applications both to self-monitor their mental health and to communicate with their doctors. But people do not want to take advantage of telemental and mobile health unless their privacy is protected. After evaluating the applicability of current health information privacy law to these new forms of treatment, this Note proposes changes to the federal regime to protect privacy rights for telemental and mobile health users.