Monthly Archives: September 2011

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Juries and Emerging Democracies

Brent T. White, Putting Aside the Rule of Law Myth: Corruption and the Case for Juries in Emerging Democracies, 43 Cornell Int’l L.J. 307 (2010), available at SSRN.

One prevailing idea is that democracy, which fosters economic development, requires the rule of law. In other words, the rule of law will remedy the economic woes of emerging democracies. Another prevailing idea is that juries are antithetical to the rule of law. Because foreign companies are less likely to invest in a country with juries, which do not follow the law, emerging democracies should not establish juries. Brent White boldly questions both of these ideas in his article Putting Aside the Rule of Law Myth: Corruption and the Case for Juries in Emerging Democracies.

White’s proposal comes at a time in the United States—the country with the most extensive jury trial right—when juries are in decline, with jury trials occurring in approximately only 2% of criminal cases and 1% of civil cases. So, you might ask, if juries do not seem necessary in an established democracy, why should juries be the answer in emerging democracies? Continue reading "Juries and Emerging Democracies"

 
 

Father of the Iowa Trust Code

Martin D. Begleiter, Son of the Trust Code – The Iowa Trust Code after Ten Years, 59 Drake L. Rev. 265 (2011), available on SSRN.

Back in 2001, Professor Martin Begleiter published an article analyzing the drafting and revision of Iowa’s comprehensive new Trust Code, of which he was a primary author.1  A decade later, Professor Begleiter has released a follow-up work, Son of the Trust Code—The Iowa Trust Code after Ten Years. This new article chronicles the evolution of the Iowa Trust Code during its first decade of operation, discussing both legislative amendments and judicial pronouncements. Professor Begleiter’s new work, like his former one, not only offers a fascinating look into the legislative and judicial processes but provides invaluable lessons for other states which have recently adopted, or are considering adoption, of the Uniform Trust Code or other comprehensive legislation regulating trusts.

Three factors combine to give Begleiter’s article national relevance and enduring significance.  First, his subject matter is vitally important. The promulgation of the Uniform Trust Code (“UTC”) gets my vote as being the most significant trust law development of the 21st Century.  Enacted in approximately half of the states, and under consideration in numerous others, the UTC has reinforced timeless principles of trust law while revolutionizing others — generating robust scholarly debate among its many supporters and detractors. The Iowa Code, however, is not an enactment of the UTC. Rather, while it often parallels the UTC, the Iowa Trust Code was developed through an independent drafting process.  Accordingly, studying the Iowa Trust Code offers an opportunity to compare and contrast Iowa’s approaches to crucial issues with the UTC’s approaches to those same issues. Continue reading "Father of the Iowa Trust Code"

 
 

Trust in the World of the Global Lawyer

Robert K. Vischer , Big Law and the Marginalization of Trust, 25 GEORGETOWN J. LEGAL ETHICS ____ (forthcoming 2011), available at SSRN.

In many respects, law practice involves a brave new work of global lawyering.  On a daily basis, lawyers from Main Street to Wall Street represent clients with transnational legal needs.  At the same time, lawyers face pressure to reduce the costs of delivering legal services.  Cost containment initiatives include outsourcing legal work to subcontractors who provide services at a lower cost.  Whether legal work is sent to Indiana or India, outsourcing results in less personal connections between clients and the lawyers who originally were retained to handle the representation.  Increasingly, in-house counsel unbundle the corporation’s legal work, dividing the work among numerous law firms rather than relying on one firm to meet needs on a full-service basis. For many, these trends threaten the very fabric of the trust relationship between clients and their attorneys. In his forthcoming article, Big Law and the Marginalization of Trust, Professor Robert Vischer examines the role of trust in the current climate and economic reality of global lawyers. As the title suggests, the article considers whether trust is a casualty of the trends in the structure, operation, and regulation of law firms. Rather than simply declaring trust dead, Professor Vischer persuasively explains why trust is of vital importance to lawyers, the clients we serve, and society.

The article is particularly interesting in providing context for understanding the concept of trust and the role it plays in professional relationships. Professor Vischer starts by discussing the nature of trust and the difference between cognitive and affective trust, referring to the definition of trust as a “state of mind that enables its possessor to be willing to make herself vulnerable to another—that is to rely on another despite a positive risk that the other will act in a way that can harm the trustor.” (quoting  A Cognitive Theory of Trust by Claire A. Hill and Erin Ann O’Hara). The discussion of vulnerability is particularly timely given that a few experts have urged the 2020 Ethics Commission to consider adopting separate ethics rules to regulate large law firms that represent sophisticated clients who can presumably protect themselves and are therefore not vulnerable. This relates to Professor Vischer’s observation that different potential clients may require different degrees and manifestations of trust. Continue reading "Trust in the World of the Global Lawyer"

 
 

Vision and Loss

Sarah P. Woo, Regulatory Bankruptcy: How Bank Regulation Causes Firesales, 100 Geo. L. J. __ (forthcoming).

It is so very lucky that Sarah Woo chose to write Regulatory Bankruptcy: How Bank Regulation Causes Firesales as one article, not the four it could have been. When she died this summer, the legal academy lost a truly original thinker and careful researcher who asked the right questions—and had the knowledge, insight, and judgment to answer them. It is a huge loss.

Regulatory Bankruptcy is the rare article that finds smart answers to interesting questions, which also happen to be good answers to very important questions. The project occupies the intersection of bankruptcy, financial regulation, risk management, and crisis response, and makes theoretical and empirical contributions to each of these fields. I especially appreciate the way in which it helps flesh out the under-studied relationship between law and macroeconomic policy. Continue reading "Vision and Loss"

 
 

Violence Against Men: In Prison and Out

Kim Shayo Buchanan, Our Prisons, Ourselves: Race, Gender, and the Rule of Law, 29 Yale L. & Pol’y Rev. 1 (2010).

In her hilarious book Bossypants (which is another thing I like lots but alas, falls outside my mandate), Tina Fey reveals some insider knowledge about the male-dominated world of Saturday Night Live:  “Male comedy writers piss in cups. Also, they like to pretend to rape each other. It’s . . . Don’t worry about it. It’s harmless, actually.”

I had that anecdote in mind as I began preparing to write this review of Kim Buchanan’s article. Then, in a moment of synchronicity, two days before I actually sat down at my computer to write, I ran across this joke in a free humor magazine, the kind printed on newsprint and assembled to support advertisements for local businesses in small rural towns. I apologize in advance for its offensiveness, but it completely makes my – and Buchanan’s – point. Continue reading "Violence Against Men: In Prison and Out"

 
 

Legal History as American Intellectual History

Daniel T. Rodgers, The Age of Fracture (Harvard University Press, 2011).

While histories of the United States are just beginning to creep into the 1980s, Daniel Rodgers has produced a panoptic intellectual history that takes his readers into the twenty-first century. As someone who came of age in what Rodgers compellingly titles the “age of fracture,” I found it disconcerting to read about my own intellectual development in a history book. Okay, what I really mean is that it made me feel old. But I suspect that it would make Rodgers happy to learn that his book stretched out and rematerialized time for this reader. After all, coursing through the book is dismay at how the abstraction of time and discounting of history has impoverished everything from economic to political theory. In other words, his book is, in part, a historian’s lament, and it should appeal to historians for this reason alone. The Age of Fracture is also a meditation on the causes of America’s current tattered social welfare state, a capstone to the story begun by Rodgers in his equally breathtaking Atlantic Crossings: Social Politics in a Progressive Age (1998). Legal historians should take particular interest in the book. It places in historical context a number of trends in legal thought, from law and economics to originalism.

Rodgers argues that during the closing decades of the twentieth century, liberals’ and conservatives’ concepts of power, time, identity, wealth, and community fragmented, becoming thinner, smaller, and more malleable. Individual choices replaced historical and structural forces as explanatory variables. Rodgers deftly interweaves trends from across the political spectrum. He argues that the Foucauldian turn among leftist academics was of a piece with conservatives’ embrace of rational choice theory (both trends dematerialized power). Colorblind constitutionalism, Rodgers also contends, shared implications with black intellectuals’ “celebration of paradox, improvisation, and hybridity” in 1990s race theory (both discounted the heavy hand of the past in shaping the present). (140) Continue reading "Legal History as American Intellectual History"

 
 

Online Retailers’ Tax-Free Lunches

The recent shuttering of Borders reminded us all of the huge competitive advantages that online merchants enjoy over brick-and-mortar retailers. Foremost among these advantages is the ability to exploit Quill Corporation v. North Dakota, 504 U.S. 298 (1992), and avoid collecting use tax on sales so as to achieve a practical 5 to 10% price advantage. Quill held that a state could require use tax collection only from a seller with a “physical presence” in the state. Michael Mazerov’s Amazon’s Arguments Against Collecting Sales Tax Do Not Withstand Scrutiny (2010) presents a complete analysis of the issues here. (An earlier version was published at 54 State Tax Notes 728 (2009).)

Mr. Mazerov carefully dissects all of the arguments against taxation using Amazon as a case study.  He starts by looking at the argument that multistate tax collection would unduly burden interstate sellers. He points out that Amazon already collects tax in every state of the union but one for customers like Target. Amazon even collects value added taxes on foreign sales. Supporting U.S. states presumably would require only “the flip of a (software) switch.” Continue reading "Online Retailers’ Tax-Free Lunches"

 
 

Law Through the Prism of Planning

Scott J. Shapiro, Legality (Belknap Press 2011).

Scott Shapiro’s splendid new book offers a novel theory of the nature of law: legal systems are essentially systems for complex, impersonal social planning, and legal norms are plans. The book provides a new perspective on law, which is both refreshing and fruitful. By thinking about the origins, purposes, and essential features of plans, we gain insight into law. A significant side benefit is that the book connects law to topics in contemporary philosophy of action.

Legality has more virtues than I can discuss here. To begin with, although the book is a highly original contribution to the philosophy of law, it presupposes relatively little background. It is also extremely clearly and engagingly written. The book would therefore make a superb text for a law school, advanced undergraduate, or graduate course. And, because Shapiro frames the issues in new ways, even those portions of the book that introduce and discuss familiar positions and issues provide much food for thought for specialists as well as the more general reader. Continue reading "Law Through the Prism of Planning"

 
 

Planning Ahead! (in Jurisprudence)

Scott J. Shapiro, Legality (Belknap Press 2011).

Analytical jurisprudence has a peculiar status in American law schools to say nothing of philosophy departments. Most law professors find it an utterly inscrutable or arid project. More generous souls have the vague impression that it is important and like that one or two of their colleagues engage in it, but their gentle forbearance is not to be mistaken for interest. Even those steeped in the subject are often discouraged by the increasing narrowness of the “What is Law” question. It takes a good deal of squinting to see the live question surrounding the nuanced positions on the extent to which morality determines whether something can be considered law; that is, the “validity conditions of a legal system.”

Against this rather gloomy landscape, Scott Shapiro has introduced an illuminating new book, Legality. Though there are few who are as knowledgeable about analytical jurisprudence as Shapiro, his book is admirable not for its attempt to dazzle with intricacies. Rather, Shapiro’s work is laudable because it makes accessible decades of debate in modern jurisprudence while still providing a novel contribution. Most importantly, Shapiro revives the heartbeat of the debate, showing why it matters and synchronizing it with legal issues recognizable to those outside of the small world of analytical jurisprudence. This accessibility means that those who know this debate will find the preliminaries unnecessarily long, a quarter of an already rather long book. Yet, it is no small thing that Shapiro manages to explain half a century of thick debate in a way that interested audiences of lawyers, and perhaps more immediately relevant, undergraduates and law students can understand its contours. Speaking for the many professors who have shied away from teaching the subject, Shapiro’s book makes one reconsider the profitability of reintroducing this debate in the classroom. Continue reading "Planning Ahead! (in Jurisprudence)"

 
 

Battle of Hastings

Julie Nice, How Equality Constitutes Liberty: The Alignment of CLS v. Martinez, 38 Hastings Const. L.Q. 631 (2011), available at SSRN.

The controversial decision of the United States Supreme Court last year in Christian Legal Society v. Martinez involved a dispute at Hastings College of Law.  On one side, the College of Law applied its blanket nondiscrimination policy as a prerequisite for recognition of student groups.  On the other side, the student organization Christian Legal Society, backed by the national organization, argued that a nondiscrimination policy that included sexual orientation infringed on its religious freedom.  Thus, the case can be easily understood as just another battle in the continuing war between equality (for sexual minorities) and liberty (of religious freedom) fought on the field of various First Amendment doctrines.  Too much of what I’ve read about the case succumbs to this reductive reading.

Professor Julie Nice, of the University of San Francisco School of Law, resists the easy renditions.  Her article is refreshing because she engages the theories, the doctrines, and the politics with equal urgency and depth.  It is also invigorating in its accessibility: Nice’s language does not obfuscate or overwhelm.  Moreover, while the article centers on a single case and was written for a symposium on CLS v. Martinez held by the Hastings Constitutional Law Quarterly, it looks backwards and forwards as well as sideways to illuminate the notions of “equality” and “discrimination.” Continue reading "Battle of Hastings"

 
 

Of Gene Sequences and IP’s Ex Post Incentives: An Empirical Measurement of the Effect of “Celera’s IP”

Empirical studies of IP that measure the effect of IP on innovation are difficult to pull off.  The cleanest way to measure the effect of IP on innovation would be to run a controlled experiment in a laboratory setting: take two similarly situated groups of innovators, subject one group to a regime of exclusive rights and the other to a public-domain regime, and then sit back and watch the differences that evolve in the two groups. Unfortunately for economists, innovators cannot be treated like laboratory rats, so actively creating the control group that is required to measure the effect of IP on innovation ranges from the difficult, indirect, and expensive to the impossible. We usually have to make educated guesses about counterfactual scenarios: we just do not know for sure what would have happened if a real-world IP regime had not existed or had existed in a different form.

In her working paper of July, 2010 titled Intellectual Property Rights and Innovation: Evidence from the Human Genome (available as NBER working paper no. 16213), Professor Heidi L. Williams, an economist at MIT, overcomes the inability of scientists to create an experimental control group by identifying a rare natural experiment—a situation in which the real world provides two similarly situated groups, one of which is subject to an IP regime and one of which is not. In Williams’ words, “[t]he contribution of this paper is to identify an empirical context in which there is variation in IP across a relatively large group of ex ante similar technologies, and to trace out the impacts of IP . . . .” (P. 1.) Continue reading "Of Gene Sequences and IP’s Ex Post Incentives: An Empirical Measurement of the Effect of “Celera’s IP”"