Vol. 105 Issue 1

Under U.S. law, there is no property interest in mere facts. But with respect to factual data relating to human genes, a de facto property regime has emerged in all but name. The level of control that individuals have exerted over genetic data exhibits the classic hallmarks of Blackstonian property: the right to exclude, the right to destroy, dead hand control, divisibility, and alienability. This degree of control has arisen through an expansive interpretation of the ethical requirement of informed consent. Notwithstanding the ongoing evolution of federal research regulations that permit some data-based research to proceed without extensive consent requirements, actions sounding in state property law pay little heed to these regulatory procedures. The resulting property-like regime over genetic data has enabled individuals to bring litigation disrupting and even halting valuable biomedical research and leading to the destruction of valuable research resources.

If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the “positive turn” in originalism. Defenses of originalism in this vein are “positive” in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: that we regard the framers’ law, and any other further lawful changes, as our law today. If we do not, originalism is not the law and perhaps should be abandoned in favor of what is.

On May 25, 1993, the Supreme Court of Michigan decided that one family was constitutionally protected from the state’s stringent homeschooling requirements but another was not. The key difference between these families was not the quality of the education each provided—the trial records indicate that the education both families’ children received was as good as, if not better than, what had been provided by public schools. Nor was the distinguishing factor the parents’ education, the parents’ criminal records, or the children’s best interests generally.

Scholars have long accepted the idea that there are alternatives to the tort system, particularly insurance, that are better at compensating victims than tort law. Tort law remains necessary, it has been assumed, because insurance lacks the ability to deter conduct that causes harm, and indeed it sometimes creates a moral hazard that increases incentives to engage in risky conduct. Scholars of insurance law, however, have observed that insurance has at its disposal a variety of tools that can help deter risky conduct. Recent technological developments lend dramatic support to this account. New telematics devices being used in automobiles can track acceleration, braking, and even whether a car is exceeding the speed limit on a particular road, allowing insurance companies to identify and penalize individual acts of negligent driving in real time. Insurance can now, in many cases, deter risky conduct more effectively than tort law. And yet tort law incorporates values that insurance cannot.

Judges on a multimember court might vote in two different ways. In the first, judges behave solipsistically, imagining themselves to be the sole judge on the court, in the style of Ronald Dworkin’s mythical Judge Hercules. On this model, judges base their votes solely on the information contained in the legal sources before them—statutes, regulations, precedents, and the like––and the arguments of advocates. In the second model, judges vote interdependently; they take into account not only the legal sources and arguments, but also the information contained in the votes of other judges, based on the same sources and arguments. What does the law say about these two models? May judges take into account the votes of colleagues in deciding how to vote themselves? Should they do so? Are there even conditions under which judges must do so?

In 2005, the first online peer-to-peer lending platform appeared in the United Kingdom. The premise was simple: provide a system for facilitating lending and borrowing between individuals. Rather than borrow through financial institutions, borrowers were provided the opportunity to bypass those intermediaries and find individuals willing to lend through an online platform. By 2006, peer-to-peer lending appeared in the United States as well. Although peer-topeer lending currently comprises a small portion of the consumer lending market, it is growing rapidly and could significantly impact the way consumers borrow money in the future.