Volume 67, Number 2 – November 2017

Articles

The Bootstrap Trap
Sara Sternberg Greene
PDF

In the mid-1990s, Congress fundamentally altered the public safety net when it passed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, otherwise known as welfare reform. Under the PRWORA, cash assistance was no longer an entitlement for income-qualifying families; instead, recipients faced work requirements and lifetime limits on receiving benefits. Bipartisan reformers sought to transform welfare from a program believed to trap poor mothers in a “culture of dependence” into a program that would promote a culture of “self-sufficiency” and “personal responsibility.” This shift in culture, it was argued, would ultimately lead to upward mobility. This Article shows how, ironically, over twenty years after welfare reform, the private safety net that many struggling families rely on—the credit system—disincentivizes the very self-sufficient behavior that welfare reformers had hoped to promote. Using the sociological concept of narratives, the Article shows how parents who have most internalized narratives of self-sufficiency are particularly at risk of financial ruin under the new regime. On a broader scale, this Article argues that, to better understand the relationship between law, inequality, and poverty, we need to further investigate how people experience and internalize structural conditions and how these structural conditions become sources of personal meaning and determinants of behavior. Such inquiries can lead to unexpected connections between seemingly disparate areas of law and policy, and ultimately to innovative policy interventions.

Finally, this Article moves to the prescriptive. It argues for a public financial services program, Financial Services for Family Security (FSFS). FSFS would provide services such as financial advising, no-interest small loans, and debt management help, all aimed at increasing the financial resilience of struggling families.

Contracts Ex Machina
Kevin Werbach and Nicolas Cornell
PDF

Smart contracts are self-executing digital transactions using decentralized cryptographic mechanisms for enforcement. They were theorized more than twenty years ago, but the recent development of Bitcoin and blockchain technologies has rekindled excitement about their potential among technologists and industry. Startup companies and major enterprises alike are now developing smart contract solutions for an array of markets, purporting to offer a digital bypass around traditional contract law. For legal scholars, smart contracts pose a significant question: Do smart contracts offer a superior solution to the problems that contract law addresses? In this article, we aim to understand both the potential and the limitations of smart contracts. We conclude that smart contracts offer novel possibilities, may significantly alter the commercial world, and will demand new legal responses. But smart contracts will not displace contract law. Understanding why not brings into focus the essential role of contract law as a remedial institution. In this way, smart contracts actually illuminate the role of contract law more than they obviate it.

Notes

Don’t Try This at Home: The FDA’s Restrictive Regulation of Home-Testing Devices
Shelby Baird
PDF

Over the past forty years, the Food and Drug Administration (FDA) has successfully restricted consumers’ access to home-testing applications based on the notion that it should protect individuals from their own reactions to test results. In the 1970s, the FDA briefly denied women access to home pregnancy tests that were identical to those used in laboratories. In the late 1980s and early 1990s, it relied on concerns about consumer responses to HIV status results to justify a categorical ban on applications for HIV home-testing technology. More recently, it placed burdensome restrictions on direct-to-consumer (DTC) genetic testing companies, such as 23andMe, based on fears that consumers would make irrational medical decisions after receiving genetic variant results.

Although the FDA has the statutory authority to ensure the “safety and effectiveness” of medical devices, it has expansively interpreted the term “safety” to encompass considerations of how consumers might use test results provided by purely informative devices. This Note argues that courts should not give the FDA deference on its broad interpretation of “safety” in restricting home-testing devices. It documents the evolution of the expertise-based rationale for judicial deference, noting that courts typically provide scientific agencies, including the FDA, “super deference” because of the complicated nature of their work. Ultimately, courts should not defer to the FDA’s interpretation of “safety” because it did not use its scientific expertise when it considered how consumers might react to HIV home-testing and DTC genetic testing results. Further, the FDA should not have the authority to make decisions based on its view of “safety” because it should not have the power to make value judgments for consumers about whether they should seek their personal medical information.

The Class is Greener on the Other Side: How Private Donations to Public Schools Play into Fair Funding
Abigail Margaret Frisch
PDF

It has been observed that forays into public education finance resemble Russian novels-“long, tedious, and everybody dies in the end.” On any given day, dozens of news stories describe schools nationwide struggling to make ends meet. And, just as “each unhappy family is unhappy in its own way,” each underfunded school is underfunded in its own complicated way. Funding for public education comes from many places, chief among them local property taxes, at least historically. States-which bear primary responsibility for administering their education systems-and private litigants have struggled for over sixty years to produce funding formulas that weaken the link between a community’s wealth, as measured by property taxes, and the quality of its education.

Alongside that trend to develop more equitable public funding, another trend began to emerge, in the form of increased public school reliance on sophisticated private fundraising organizations. Studies show that these organizations are unequally distributed along socioeconomic lines, leading many to conclude that they foster exactly the sort of inequitable public school resources that states have been trying to stifle. Although there is not enough data to claim that this disrupts equitable funding efforts statewide or nationwide, these organizations continue to grow rapidly, and the existing anecdotal evidence of neighboring schools with dramatically different resources is troubling. Calls to prohibit such private donations are also troubling, however, as these donations are well intended and provide schools with necessary resources and community support.

Currently, no state-level regulations exist to provide guidance for how private donations might equitably exist within a publicly funded school system. This Note argues that it is time for state legislators to break this silence and proactively determine a statewide protocol for private donations that comports with their state’s mission to provide a high quality public education to children from all socioeconomic backgrounds. In doing so, this Note emphasizes that it is critical to avoid characterizing private donations as inherently good or inherently bad because solutions permitting unlimited private donations are as undesirable as solutions that completely eliminate them. State legislators are equipped to find an appropriate point on that spectrum, one which protects the valuable goal of providing public education to all children equitably but does not discourage the valuable benefits of local community support for public education.

Volume 67, Number 2 – November 2017

Articles

The Bootstrap Trap
Sara Sternberg Greene
PDF

In the mid-1990s, Congress fundamentally altered the public safety net when it passed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, otherwise known as welfare reform. Under the PRWORA, cash assistance was no longer an entitlement for income-qualifying families; instead, recipients faced work requirements and lifetime limits on receiving benefits. Bipartisan reformers sought to transform welfare from a program believed to trap poor mothers in a “culture of dependence” into a program that would promote a culture of “self-sufficiency” and “personal responsibility.” This shift in culture, it was argued, would ultimately lead to upward mobility. This Article shows how, ironically, over twenty years after welfare reform, the private safety net that many struggling families rely on—the credit system—disincentivizes the very self-sufficient behavior that welfare reformers had hoped to promote. Using the sociological concept of narratives, the Article shows how parents who have most internalized narratives of self-sufficiency are particularly at risk of financial ruin under the new regime. On a broader scale, this Article argues that, to better understand the relationship between law, inequality, and poverty, we need to further investigate how people experience and internalize structural conditions and how these structural conditions become sources of personal meaning and determinants of behavior. Such inquiries can lead to unexpected connections between seemingly disparate areas of law and policy, and ultimately to innovative policy interventions.

Finally, this Article moves to the prescriptive. It argues for a public financial services program, Financial Services for Family Security (FSFS). FSFS would provide services such as financial advising, no-interest small loans, and debt management help, all aimed at increasing the financial resilience of struggling families.

Contracts Ex Machina
Kevin Werbach and Nicolas Cornell
PDF

Smart contracts are self-executing digital transactions using decentralized cryptographic mechanisms for enforcement. They were theorized more than twenty years ago, but the recent development of Bitcoin and blockchain technologies has rekindled excitement about their potential among technologists and industry. Startup companies and major enterprises alike are now developing smart contract solutions for an array of markets, purporting to offer a digital bypass around traditional contract law. For legal scholars, smart contracts pose a significant question: Do smart contracts offer a superior solution to the problems that contract law addresses? In this article, we aim to understand both the potential and the limitations of smart contracts. We conclude that smart contracts offer novel possibilities, may significantly alter the commercial world, and will demand new legal responses. But smart contracts will not displace contract law. Understanding why not brings into focus the essential role of contract law as a remedial institution. In this way, smart contracts actually illuminate the role of contract law more than they obviate it.

Notes

Don’t Try This at Home: The FDA’s Restrictive Regulation of Home-Testing Devices
Shelby Baird
PDF

Over the past forty years, the Food and Drug Administration (FDA) has successfully restricted consumers’ access to home-testing applications based on the notion that it should protect individuals from their own reactions to test results. In the 1970s, the FDA briefly denied women access to home pregnancy tests that were identical to those used in laboratories. In the late 1980s and early 1990s, it relied on concerns about consumer responses to HIV status results to justify a categorical ban on applications for HIV home-testing technology. More recently, it placed burdensome restrictions on direct-to-consumer (DTC) genetic testing companies, such as 23andMe, based on fears that consumers would make irrational medical decisions after receiving genetic variant results.

Although the FDA has the statutory authority to ensure the “safety and effectiveness” of medical devices, it has expansively interpreted the term “safety” to encompass considerations of how consumers might use test results provided by purely informative devices. This Note argues that courts should not give the FDA deference on its broad interpretation of “safety” in restricting home-testing devices. It documents the evolution of the expertise-based rationale for judicial deference, noting that courts typically provide scientific agencies, including the FDA, “super deference” because of the complicated nature of their work. Ultimately, courts should not defer to the FDA’s interpretation of “safety” because it did not use its scientific expertise when it considered how consumers might react to HIV home-testing and DTC genetic testing results. Further, the FDA should not have the authority to make decisions based on its view of “safety” because it should not have the power to make value judgments for consumers about whether they should seek their personal medical information.

The Class is Greener on the Other Side: How Private Donations to Public Schools Play into Fair Funding
Abigail Margaret Frisch
PDF

It has been observed that forays into public education finance resemble Russian novels-“long, tedious, and everybody dies in the end.” On any given day, dozens of news stories describe schools nationwide struggling to make ends meet. And, just as “each unhappy family is unhappy in its own way,” each underfunded school is underfunded in its own complicated way. Funding for public education comes from many places, chief among them local property taxes, at least historically. States-which bear primary responsibility for administering their education systems-and private litigants have struggled for over sixty years to produce funding formulas that weaken the link between a community’s wealth, as measured by property taxes, and the quality of its education.

Alongside that trend to develop more equitable public funding, another trend began to emerge, in the form of increased public school reliance on sophisticated private fundraising organizations. Studies show that these organizations are unequally distributed along socioeconomic lines, leading many to conclude that they foster exactly the sort of inequitable public school resources that states have been trying to stifle. Although there is not enough data to claim that this disrupts equitable funding efforts statewide or nationwide, these organizations continue to grow rapidly, and the existing anecdotal evidence of neighboring schools with dramatically different resources is troubling. Calls to prohibit such private donations are also troubling, however, as these donations are well intended and provide schools with necessary resources and community support.

Currently, no state-level regulations exist to provide guidance for how private donations might equitably exist within a publicly funded school system. This Note argues that it is time for state legislators to break this silence and proactively determine a statewide protocol for private donations that comports with their state’s mission to provide a high quality public education to children from all socioeconomic backgrounds. In doing so, this Note emphasizes that it is critical to avoid characterizing private donations as inherently good or inherently bad because solutions permitting unlimited private donations are as undesirable as solutions that completely eliminate them. State legislators are equipped to find an appropriate point on that spectrum, one which protects the valuable goal of providing public education to all children equitably but does not discourage the valuable benefits of local community support for public education.