UC Irvine Law Review

Markets in human milk are booming. They take two main forms: informal markets—women giving or selling their milk peer-to-peer—, and formal markets—for-profit or non-profit organizations collecting, processing, and distributing donor milk to neonatal intensive care units and a few outpatients for a fee. The legal regime applicable to these human milk transactions is fragmented and unstable. The federal government does not define human milk as anything. The Food and Drug Administration has declined to regulate milk banks even though it oversees blood, cord, oocytes, semen, and stool banks. Only a handful of states have laws on the books pertaining to human milk.

In light of the growing demand for human milk and public health professionals’ calls for government oversight due to fears of pathogen contamination, this Article asks whether human milk should be regulated more tightly and, if so, what types of legal reforms would be most desirable. It concludes that human milk should not be treated as a disembodied product under a food, drug, and tissue law paradigm, but rather as the product of a relationship between breastfeeders and breastfed babies. It is this relationship that is in urgent need of legal protections so that more parents can breastfeed their children and make extra milk available for others. Though the risks of contamination are real, they can be, and are, mitigated by milk banks, as well as by peer- to-peer donors and recipients. But many children who need donor milk do not obtain it either because it is unavailable or too expensive. Legal reforms should therefore focus on increasing the supply via robust breastfeeding and donor milk support, which in turn will make human milk accessible to all those who need it regardless of their socioeconomic status. This approach entails shifting from a single-minded focus on health and safety to considering the conditions of people who produce and donate milk and the health insurance market that often fails to cover it.

Location information reveals people’s whereabouts, but can also tell much about their habits, preferences, and, ultimately, much of their private lives. Current surveillance technologies used in criminal investigation include many techniques to track someone’s movements; not all are equally intrusive. This raises the following questions: how do jurisdictions draw boundaries between lesser and more serious privacy intrusions? What factors play a role? How are geolocational privacy interests framed? In this Article, we answer these questions through a comparative analysis of location-tracking regulation in eight jurisdictions: Canada, Czechia, Germany, Italy, the Netherlands, Poland, the United Kingdom, and the United States.

We analyze the legal status of location tracking through human observation, GPS tracking, cell-phone tracking, IMSI catchers (Stingrays), silent SMS, automated license-plate recognition, and directional Wi-Fi tracking in these countries. This results in highly context-dependent and case-specific assessments, in which eight factors play a role: use of a technical device, place, intensity, duration, degree of suspicion, object of tracking, covertness, and active generation of data. At a deeper level of analysis, we identify different conceptualizations of privacy underlying these assessments: not only classic privacy frames, such as communications secrecy, protection of home and body, and informational privacy, but also two new privacy frames: freedom of movement in combination with anonymity, and the mosaic theory. Thus, we discern a tentative but unmistakable shift in how lawmakers and courts assess the intrusiveness of location tracking, particularly of people’s movements in public space.

Traditional privacy frames tend to downplay the seriousness of the privacy infringement enabled by location tracking, and our analysis demonstrates an increasing discomfort with this tendency, leading to the emergence of novel privacy frames (or theories) to regulate what might easily turn into what the Supreme Court of the United States has called “tireless and absolute surveillance.” We conclude that legal privacy frameworks developed in past centuries prove ill-suited for assessing the privacy-intrusiveness of contemporary location-tracking investigation methods, and that emerging, novel frameworks for understanding and protecting privacy may provide lawmakers and courts with the tools needed to address the challenge of preserving (geolocational) privacy in the twenty-first century.

Oliver Hart, Nobel Laureate in Economics for 2016, and economist Luigi Zingales recently published an article justifying companies’ pursuit of social objectives at the expense of profits from within the shareholder primacy framework. This Article highlights an important consequence of this approach: a new agency problem between managers and shareholders regarding social preferences. This Article provides two possible solutions to this agency problem: a bottom-up solution focused on shareholders’ ability to submit proposals on such issues and a top-down solution based on an independent board sub- committee intended to identify social objectives and forward them for shareholder approval.

Markets offer a potent tool for managing resources and values, even ones that have not traditionally been commodified. In the environmental context there is particular debate about market-based governance, in terms of both appropriateness and effectiveness. This Article offers a broadly applicable framework for considering the emergence, appropriateness, and design of market tools in environmental governance, and it demonstrates how the model is applicable well beyond that context. This framework offers a powerful diagnostic for programs to manage resources ranging from greenhouse gas emissions to Chesapeake Bay pollution, as well as from human organs to Uber regulation.

As a foundation for this framework, the Article identifies and examines two sets of underappreciated costs associated with establishing and utilizing market mechanisms. It terms these costs “severance costs” and “adjustment failure costs.”

Severance costs describe the costs associated with defining, enforcing, and transacting in marketable “goods.” For instance, to pluck an environmental good from its interconnected ecological and legal context and to attempt to define it as a severable, stand-alone commodity can be costly. Additionally, when such an environmental good is not necessarily associated with tangible, physical ownership or when it has not historically been commodified, further challenges arise in creating the complex institutions necessary for such markets to function. If severance costs are too high, property interests may never be defined or transactions may never occur.

In addition to severance costs, “adjustment failure costs” inherent in the pricing system represent another critical set of considerations that impact the emergence and success of market mechanisms. In all markets, pricing results from an iterative trial-and-error process, and it takes time and misallocations for supply and demand to align (assuming they ever do). The adjustment failure costs associated with such pricing delays and corrections may be trivial in some markets, but they can be particularly high and material in the context of non-fungible or irreparable goods. Since environmental goods in particular may display such non-fungible or irreparable characteristics, consideration of adjustment failure costs is crucial for environmental market mechanisms because high adjustment failure costs may exceed the potential gains of the market system. Thus, the adjustment failure costs that arise from the iterative function of markets represent another key factor in determining the appropriateness and success of market tools.

This Article posits that severance costs and adjustment failure costs represent the two most significant dimensions for assessing the appropriateness and design of market instruments, both in the environmental context and more broadly. If these costs are too high, either individually or in combination, they will exceed the potential gains of a market system.

Based on these sets of costs, the Article constructs a model for evaluating market emergence and success, and with this framework, the Article makes two major contributions. First, it offers a concrete and pragmatic method for gauging the desirability of market tools for certain resources in the environmental context and beyond. For instance, the model can identify specific situations where a cap-and-trade approach will be less effective than a Pigouvian-tax, or where a licensing system will be superior to a laissez-faire one. Consideration of severance costs and adjustment failure costs offers a generalizable model for describing the feasibility of commodifying environmental goods, prescribing interventions to marginally improve market instruments in general, and evaluating governance approaches for a variety of contexts.

Second, this Article contributes to the theoretical literature on commodification by offering a positive economic framework that can synthesize the leading scholarship and explain existing reservations regarding commodification. It provides a descriptive economic account that can help ground moral intuitions and objections about markets and commodification. As a result, it gives fresh insight into why existing laws and policies are as they are, and it bridges moral and economic arguments, providing a common point ofdeparture for future engagement in these debates.

In a technological age, labor no longer plays the central role it once did in the nation’s economy. Instead, automation has become more ubiquitous. This economic transformation has important and far- reaching consequences for the nation’s tax system and, in particular, the means by which to fund public expenditures.

Under current law, the central underpinning to automation— namely, capital—yields income that is either lightly taxed or, in some instances, escapes taxation altogether. This puts tremendous stress on the nation’s coffers and further perpetuates wealth disparities. Yet, levying a heavier capital gains tax burden might (i) dissuade taxpayers from realizing their gains and (ii) in a global arena, result in capital flight to lower tax jurisdictions.

Another possibility exists. Congress should impose a meaningful estate tax. Such a tax is essentially the equivalent of a deferred tax on capital income. A reimagined estate tax can help restore fiscal solvency, promote greater wealth equity, foster capital gains recognition, and minimize capital flight risk.

In the last thirty years, courts have steadily chipped away at the protections afforded student free speech on K-12 campuses by the Supreme Court’s decision in Tinker v. Des Moines Independent Community School District. In Tinker, the Court held that schools may not restrict students’ right to speak unless the speech causes, or threatens to cause, a substantial disruption or infringes on the rights of other students. This Note argues that the diminishing force of Tinker’s protection of student free speech is largely the result of the difficulty of applying Tinker’s ostensibly straightforward holding, and of establishing the appropriate balance between maintaining a safe and effective learning environment and protecting students’ First Amendment rights. This Note proposes revisiting the heckler’s veto doctrine, which prohibits the government from restricting speech solely based on the disruptive or violent reaction of the listeners or onlookers (i.e., hecklers), as a way to push back against the increasing encroachment on students’ First Amendment rights. Although the Court articulated the principles of the heckler’s veto doctrine in Tinker, subsequent courts have failed to clearly identify the implications of the doctrine on the Tinker analysis, thus further weakening Tinker’s protection of student free speech. This Note argues that future courts deciding student free speech questions must explicitly address the heckler’s veto doctrine to prevent hecklers from contributing to the infringement on students’ constitutional right to both speak and hear. The Note concludes by suggesting a possible solution that aims to adequately balance competing student rights.