Monthly Archives: November 2009

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Why Exactly Are Jackson Pollock’s Paintings Shielded by the First Amendment?

Randall Bezanson, Art and Freedom of Speech (Urbana: University of Illinois Press, 2009). (Online Table of Contents.)

Suppose a suburban city council enacted an ordinance barring the display of any Alexander Calder stabiles or Jeff Koons “sculptures” in any place visible by the public, believing that Calders and Koonses are just ugly. I suspect that most people who know something about the Constitution would think that the city’s ordinance is an obvious violation of the First Amendment’s protection of freedom of speech. After all, we have it on the highest authority that the First Amendment “unquestionably shield[s]” Jackson Pollock’s paintings: If Pollock, a fortiori Koons, whose sculptures at least look like something.

People should check their wallets whenever the Supreme Court takes some proposition as unquestionable. Randall Bezanson shows why. Every route that you might take to explain why non-representational art is covered by the First Amendment leads to mind-bending problems, and rather rapidly places some other unquestionable proposition about free speech under pretty severe pressure. (Here “covered by the First Amendment” means something like “the First Amendment is relevant to assessing the constitutionality of regulation,” and should be distinguished from “protected by the First Amendment,” which means “can’t be regulated consistent with the First Amendment.”) What follows are some quite rambling thoughts provoked by reading Bezanson’s book. Continue reading "Why Exactly Are Jackson Pollock’s Paintings Shielded by the First Amendment?"

 
 

Call for Papers

Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.

Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. Please see the Jotwell Mission Statement for more details. Continue reading "Call for Papers"

 
 

Jotwell Mission Statement

The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.

We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree. Continue reading "Jotwell Mission Statement"

 
 

Better (or Worse?) Risk Management Through Technology

Kenneth A. Bamberger, Technologies of Compliance: Risk and Regulation in a Digital Age, 88 Tex. L. Rev. (forthcoming 2010), available at SSRN.

The global financial crisis raises profound questions about how financial markets and the participants in those markets should be regulated. The scale of the crisis has meant that issues which are normally discussed only by technical experts now are the subject of public debate. However, much of this public debate (and even some academic debate) about the future of financial regulation seems to assume that introducing a few new national and transnational institutions and changing a few rules can make a significant difference. For this reason, Kenneth Bamberger’s article, Technologies of Compliance: Risk and Regulation in a Digital Age, forthcoming in the Texas Law Review, is essential reading. The article shows that it is necessary to think about the ways in which private and obscure technologies of compliance risk distorting financial regulation.

Over the last few years, and somewhat ironically given the crisis, financial regulation has evolved to emphasize risk management by financial firms. Regulators have identified many varieties of interconnected risks which financial firms should manage. But although the crisis illustrates weaknesses in how financial firms have in fact managed the risks involved in their businesses, risk management as a focus of regulation is clearly here to stay. The G20, most recently in the Leaders’ Statement from the Pittsburgh Summit, and the Basel Committee (for example in its revisions to the Basel II market risk framework) continue to emphasize the idea of risk management as a core component of financial regulation. Policy makers are advocating the development of more sophisticated domestic and transnational institutions for the management of systemic risk. Continue reading "Better (or Worse?) Risk Management Through Technology"

 
 

Europe’s Competition Regulators Force its Bar Associations to Reform

Laurel S. Terry, The European Commission Project Regarding Competition in Professional Services, 29 Nw. J. Int’l L. & Bus. (forthcoming 2009), available at SSRN.

I have a personal reason for reviewing Laurel S. Terry’s account of the European Commission’s recent investigation into the European professional services market. As a former senior writer on The European Lawyer magazine, I was a first-hand witness to many of the events described in her paper, including the 2003 Brussels conference she mentions.

The main purposes of Professor Terry’s paper is to describe an ongoing EU initiative, which has the stated aim of making Europe’s professions– including its legal professions–more efficient and competitive. In all likelihood, the end result of the events described in Terry’s paper will be that many of Europe’s bar associations will be forced to liberalize their regulatory frameworks. What is more, she believes that, in an increasingly globalized world, other countries may decide to follow Europe’s lead. She fears such countries may decide to conduct their own investigations into their professional services markets, using a similar methodology to that employed by the EU. Continue reading "Europe’s Competition Regulators Force its Bar Associations to Reform"

 
 

The Fact of the Matter

Frederick Schauer, Facts and the First Amendment, 57 UCLA L. Rev. —- (forthcoming, 2010).   Available at SSRN.

“Facts,” the songwriter David Byrne once observed, “all come with points of view.” Americans, Frederick Schauer adds, credit any number of “facts” with points of view. President Obama is not “President” Obama, but a constitutionally ineligible interloper born in Kenya. President Bush was hardly surprised by the 9/11 attacks, given that his government either staged them or had advance warning of them. And so on. The same phenomenon is observable across the world. There surely are “facts” about the conduct of the Israeli military and Hezbollah in Lebanon, or the proper treatment for AIDS in South Africa, but they are hedged round with points of view, some sensible and some lunatic. That there is a fact of the matter Schauer does not doubt; but there is today, he says, an apparent “increasing and unfortunate acceptance of factual falsity in public communication.”

What will be more surprising to many is that facts are so poorly accounted for in First Amendment law. The First Amendment and its jurisprudence and scholarship are startlingly reticent on questions of factuality and falsity. This is the subject of Schauer’s recent Melville B. Nimmer Memorial Lecture, Facts and the First Amendment, delivered this past October at UCLA Law School. (Or so I assume!) Schauer does not seek to fill in all the gaps and provide a detailed First Amendment theory of facts. Instead, he argues that the First Amendment’s inability to deal directly with these concerns is a symptom of its “smallness” – of the extent to which many of the questions that are seemingly central to the law of free speech lie outside its boundaries and in the realm of “politics, economics, and sociology” whose dimensions “are far more important than the legal and constitutional ones.” Continue reading "The Fact of the Matter"

 
 

Trademark Use on the Loose

Mark P. McKenna, Trademark Use and the Problem of Source, 2009 U. Ill. L. Rev. 101 (2009).

Not all uses of a trademark constitute trademark use. It is this proposition that brings consternation and confusion to courts and legal scholars alike. Mark McKenna looked into this abyss, the abyss looked back at him, and neither liked what they saw: a pitched but ultimately unhelpful ongoing debate about the “trademark use” doctrine. And so he sought to shrink this chasm with insightful analysis.

The abstract for Mark P. McKenna’s recent article Trademark Use and the Problem of Source is as follows: Continue reading "Trademark Use on the Loose"

 
 

Third Parties to the Rescue

Michael Risch, Virtual Third Parties, 25 Santa Clara Computer & High Tech. L.J. 416 (2009).

Michael Risch’s Virtual Third Parties, 25 Santa Clara Computer & High Tech. L.J. 416 (2009) tips the scales at a mere eleven pages—but it punches far above its weight class. He gives a clear and straightforward reading of third-party beneficiary doctrine in contract law to put a new spin on old problems of online power.

Risch’s subject is virtual worlds, where the immense technical power of the world’s provider is so well-recognized that it has its own shorthand name: the “God Problem.” If Blizzard wants to exile you from World of Warcraft, confiscate everything you own in-world, or stick your avatar in the stocks, their control over the servers lets them do it with a few keystrokes. Your avatar’s arms are never going to be long enough to box with a game god whose software controls arm length. Continue reading "Third Parties to the Rescue"

 
 

The Economic Roots of Domestic Violence

Deborah Weissman, The Personal is Politicaland Economic: Rethinking Domestic Violence, 2007 B.Y.U. L. Rev. 387 (2007).
Donna Coker

Donna Coker

Deborah Weissman has made an important contribution to the debate in domestic violence and criminal justice scholarship regarding the current focus on criminal justice system responses to domestic violence. Her article seems particularly timely in light of the current   economic crisis.

A number of legal scholars have criticized US domestic violence policy for its singular focus on criminal law narratives and criminal justice responses. This focus obscures the social and economic forces that increase the incidence of domestic violence and that magnify women’s   vulnerability to violence. Further, mandatory arrest and no drop prosecution policies enacted in many jurisdictions have negative secondary effects for some victims and, in the case of unemployed batterers, may actually increase recidivism rates. Continue reading "The Economic Roots of Domestic Violence"

 
 

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Welcome to Jotwell: The Journal of Things We Like (Lots). Here you will find leading academics and practitioners providing short reviews of recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience.

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