James J. Bernstein
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Publications
Abandon Judicial “Neutrality”: Why Chevron Deference Stifles Technological Innovation
27 RICH. J.L. & TECH., no. 1, 2020.
In 1984, the Chevron v. Natural Resources Defense Council Supreme Court decision gave us the eponymous “Chevron” standard. Chevron calls for courts to defer to an executive agency’s reading of “ambiguously” worded law. While this standard may help facilitate change without passing new laws, in this piece I argue that such deference is inefficient. It imposes transaction costs due to volatility alone: new readings of the law might come with each new presidential administration.
Whistle While You Work!
Accepted for Publication: Albany Government Law Review
The Espionage Act of 1917 leaves open the possibility of prosecuting good faith actors, namely, whistleblowers whose “speech” may truly have adverse effects on the government, despite the whistleblower’s noble intentions. This piece argues that whistleblowers should be afforded greater protections for speech using the Supreme Court’s Brandenburg decision, as society’s need for transparency exceeds the government’s interest in secrecy.
Defining the “Key Parts” of a Procedure: Implications for Overlapping Surgery
26 Journal of the American Academy of Orthopaedic Surgeons 142–147 2018.
Medicare billing rules (and indeed common sense) dictate that a surgeon must be present for the ‘key parts’ of the surgical procedure. Still, these parts are exceedingly hard to define. For joint replacement operations, we showed that there is hardly any agreement at all. Without the articulation of a standard, prosecution for billing fraud or allegations of per se medical malpractice due to the surgeon’s absence are on shaky grounds.
Texting at the Light and Other Forms of Distracted Driving
15 BMC Public Health (2015).
In this study of 2000 passenger vehicles by roadside observation, texting while driving was shown to be very common. Texting while driving is also likely to be very dangerous and society thus has a legitimate interest in minimizing it. There is a need for carefully articulated jurisprudence regarding texting while driving, as this impacts issues including privacy, policing, insurance law and tort liability. This study motivated the invention of a ‘nudge’-based system to limit texting, the subject of the patent below.
Patents
Under Review
Prostitution, Constitution: Why Sex Work Prohibitions Violate Property Rights Guarantees
The Constitution’s right to property might be reasonably applied not just to tangible assets, but to one’s physical being as well. In turn, laws prohibiting prostitution and other “repugnant transactions” in that sense might violate the inviolable right to do with one’s property as one sees fit.
“To Be (A Publisher) or Not To Be”
Section 230 of the Communications Decency Act fostered the development of the internet as we know it, and it should be lauded accordingly. On the other hand, this law also has some internal inconsistencies that might need revisiting, now that the internet has matured. For example, Section 230 allows social media companies to operate as publishers, all the while being regulated as platforms. This internally-inconsistent standard might no longer deserve special preservation, now that some online media are larger and more powerful than traditional newspapers.
“Actively” Unconstitutional: Passive Income and Governmental Corruption
Using Zephyr Teachout’s landmark piece in the 2009 Cornell Law Review, The Anti-Corruption Principle, as a springboard, this article argues that legislators who buy and sell stocks violate the Constitution’s “anti-corruption” protections, even if conflict-of-interest laws seem to carve out an exemption
Hindsight’s 2020
2020 was a year of the strong executive, and understandably so: we needed fast action to combat the coronavirus pandemic. Still, the expanding powers the President and state governors have recently assumed (or had foisted on them by legislatures’ default) is a worrying trend. This piece calls for new legislation to automatically impose checks on emergency executive power after a brief interlude, as ’emergencies’ must be viewed as transient, temporary phenomena.