Monthly Archives: November 2011

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The Human Condition And the Liberal Order

Martha Albertson Fineman, The Vulnerable Subject and the Responsive State, 60 Emory L. J. 251 (2010), available at SSRN.

Have philosophers of the liberal political order been correct in their understandings of the human condition? Moral arguments for liberalism have sometimes been difficult to separate from a standpoint from which liberal order appears as the archetype for social order generally: the human condition in its most exalted and successful form. Certain features of the Kantian legacy have provided much intellectual nourishment for liberal thinkers. Kant tells us: sapere aude! Lean not on others, but become autonomous! Neo-conservatives have seized upon this aspect of Kant’s thought, celebrating liberal society’s facilitation of the autonomous agent. Socialists, forced to engage with a liberal order that has triumphed over their deepest dreams, have emphasized a different dimension of Kant’s legacy, centring upon his ideas of equality and of justice.

Taking as its starting point ideas of equal protection under the United States Constitution, Martha Fineman’s article offers a criticism of recent writing in liberal theory for failing to understand the human condition in the right way. The most pressing characteristic of the subject of liberal politics is not autonomy, but vulnerability. One might say that neo-conservatives and those on the liberal left have misunderstood the nature of human vulnerability. For conservatives, vulnerability is connected with unfreedom. Full of ideals of personal liberty, they insist that as the state increases its organization of the welfare of the private sphere, people will become less resilient. Individuals must learn to stand on their own two feet if society is not to produce a class of dependent people. They have a point. Individuals will only become masters of their situation if they are allowed to create their own arrangements. Human freedom is a more ingenious solver of problems than the government’s legislative schemes. But liberal society itself does not equal the defeat of acquisitive and competitive instincts in human nature. Indeed, liberal society is unimaginable without a market that is also free to operate in uneven and cruel ways. The same neo-conservative philosophies thus also increase vulnerability, leading many to curse the inhumanity of a faceless system (the market) which remains harshly indifferent to their needs. Continue reading "The Human Condition And the Liberal Order"


Excluding Sexual Pattern Evidence of Rape Complainants When the Defense is Consent

Deborah Tuerkheimer, Judging Sex, 97 Cornell Law Review (forthcoming 2012), available on SSRN

Professor’s Tuerkheimer’s article, Judging Sex is a valuable addition to the debate about where the line should be drawn when balancing the privacy of complainants in rape cases against the evidentiary and constitutional dimensions implicit in the right to present a criminal defense. She approaches the long-standing controversy with fresh eyes, arguing that any probative value imputed to sexual pattern evidence of complaining witnesses in an earlier era is clearly inapplicable in light of current sexual mores, thereby exposing the only basis for permitting such evidence as an inappropriate reliance on views of morality and sexual deviancy that no longer ring true. As a result, she presents a strictly evidentiary analysis of probative value (Rule 401) and prejudice (Rule 403), rather than falling back on the policy justifications for rape shields, which encourage rape reporting by protecting complainants from being subjected to detailed, embarrassing and often humiliating questions about their sexual histories.

Admittedly, rape shields also assume that the probative value of sexual history is low, and therefore make a categorical determination that the probative value of the evidence is substantially outweighed by considerations of complainant privacy and prejudice to the state when jurors refuse to convict because “she asked for it.” However, even today some rape shields permit sexual pattern evidence of the “alleged victim,” and interpretation of the Federal Rape Shield’s “exception” for constitutionally required evidence occasionally reaches the same result on the grounds that promiscuity, whether by numbers or types of sexual encounters, tells us something about consent in the current incident. By debunking the probative value of sexual pattern evidence, Tuerkheimer demonstrates that in the modern sexual environment, pattern evidence should only be admitted rarely when employing the probative value/prejudice (401/403) analysis. This conclusion also suggests that the Confrontation Clause would rarely require the admission of such evidence. Continue reading "Excluding Sexual Pattern Evidence of Rape Complainants When the Defense is Consent"


Barking Up the Wrong Tree: The Antidiscrimination Project and Public Perceptions

Katie R. Eyer, That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, __ Minn. L. Rev. __ (forthcoming 2011), available at SSRN.

One might question the wisdom of a young, not-yet-on-the-market, scholar basically arguing that most of us in her field—including me—have been wrong in important ways. But wise or not, Katie Eyer’s article, That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law (forthcoming in the Minnesota Law Review) is a remarkable piece of research and exposition. She has an ability to deal with complicated issues in a lucid and spritely prose style. I almost enjoyed being informed how wrong I was!

Katie’s a Research Scholar at Penn and her piece starts with the conventional wisdom of 21st century employment discrimination law: there’s a lot of bias out there, maybe mostly of the unconscious type, but, in any event, pretty pervasive. While scholars like myself have proposed ways to deal with this reality insofar as federal judges are concerned, Katie suggests a deeper problem: “most people in most factual circumstances are unwilling to make robust attributions to discrimination.” Continue reading "Barking Up the Wrong Tree: The Antidiscrimination Project and Public Perceptions"


Unforeseen Consequences of Post-Mortem Procreation

Browne C. Lewis, Graveside Birthday Parties:  The Legal Consequences of Forming Families Posthumously, 60 Case W. Res. L. Rev. 1159  (2009-2010), available at SSRN.

“Procreation is no longer left to the living” proclaims Professor Browne Lewis in this essay entitled Graveside Birthday Parties: The Legal Consequences of Forming Families Posthumously. (P. 1159)  She explores three legal issues that have resulted from posthumous reproduction.  Specifically she addresses the issues of parentage, procreative freedom, and probate.  Professor Lewis examines the steps that must be taken to identify the legal parents of posthumously conceived children.  She further discusses the rights of the deceased gamete providers.  Finally, she focuses on the inheritance rights of these posthumously conceived children.

In the not so distant past, a fertile man and woman needed to have sexual intercourse to create a baby.  A traditional family consisted of a husband, wife and their children.  The children were either the biological children of the husband and wife or their adopted children.  A child who was born into a marital union was considered legitimate and one born outside of the marriage was illegitimate.  Reproductive technology has altered the American family.  Intercourse is no longer necessary to create a baby.  Although reproductive technology has resulted in many medical miracles, the legal community has been slow to respond to the medical advancements.  Further, the legal community must deal with mistakes that inevitably occur. Continue reading "Unforeseen Consequences of Post-Mortem Procreation"


The Province of Jurisprudence Determined

Robin West’s new book on “normative jurisprudence” should have an immense and lasting effect on American discourse about the law. This volume should be important for two reasons and in two senses of the word should: first, because Professor West has great authority in the American legal academy as an early and much-admired proponent of feminist jurisprudence, law and literature, and critical legal studies; and second, because she is in this volume on almost every point and in almost every way correct about the purpose, value, and nature of jurisprudence and the law.

I distinguish two senses of the word “should” in this way because the central argument West makes is that although both the “is” (predictions about existing power and authority) and the “ought” (justice) matter in understanding the path of American jurisprudence, the latter is more important, and much overlooked.  West calls for a renewed “normative jurisprudence”, by which she means a jurisprudence dedicated to studying not primarily what the law is, but what it ought to be — how to make the law more just. Continue reading "The Province of Jurisprudence Determined"


Undiplomatic Immunity

Felix T. Wu, Collateral Censorship and the Limits of Intermediary Immunity, 87 Notre Dame L. Rev. 101 (2011), available at SSRN.

Section 230” contains the single most important provision in all of Internet law:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Felix Wu’s Collateral Censorship and the Limits of Intermediary Immunity — his first article as a law professor — offers a perceptive new interpretation of this enigmatic sentence. It has always been clear that Section 230 protects intermediaries — the Googles, Facebooks, Comcasts, and bloggers of the world — from being held liable for user-generated content. But consensus in the core gives way to controversy in the penumbra: just how far does or should the immunity reach? Continue reading "Undiplomatic Immunity"


Access to Global Media in Middle and Low Income Countries: A Responsible Study

Media Piracy in Emerging Economies (Joseph Karaganis, ed., 2011).

For those of us who study intellectual property law or the relationship between law and the Internet, these are interesting times.  So interesting, in fact, that it is difficult to keep up and to have a real sense for how the activities regulated by intellectual property law are evolving around the world.  Now, thanks to Joseph Karaganis and the team of researchers whose efforts he has coordinated to produce Media Piracy in Emerging Economies (“MPEE”), we have a much clearer picture about how interesting, and puzzling, the times in which we live really are.

A little background.  It is no secret that economic globalization and developments in digital technologies are interrelated but independent forces shaping the character and quality of human life around the globe.  These forces have pulled the industries in the United States, Europe and Japan that produce capital-intensive film, music, software, video games and related media in different directions.  Globalization has led to increased market access for media goods produced by these industries, but the growth of digital networks and related technologies have undermined these industries’ traditional production and distribution practices.  To manage these divergent forces, media industry executives have invested heavily in influencing intellectual property law and policy. Continue reading "Access to Global Media in Middle and Low Income Countries: A Responsible Study"


Separation of Powers and the Middle Way

John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1940 (2011).

Composer Arnold Schoenberg famously once quipped that “the middle way is the one that surely does not lead to Rome.”  The idea behind this thought, I gather, is that intellectual compromise does not lead to the truth.  John Manning’s recently published article, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1940 (2011), proves Schoenberg’s principle wrong, at least with regard to separation of powers.  In this article, Manning, the Bruce Bromley Professor of Law at Harvard Law School, persuasively demonstrates that neither extreme in current debates about separation of powers is correct, and that a true understanding of separation of powers in the United States requires a more nuanced view of the subject than either extreme is willing to undertake.  In my view, Manning’s article is the best published American law review article about separation of powers.  It states a coherent theory of separation of powers clearly and elegantly, and it explains, just as clearly and elegantly, exactly why separation of powers extremists on both sides are wrong.  The only problem I have with the article is that at the time I first read it in draft, I was working on my own separation of powers article, and Manning stole, improved and expanded upon much of my thunder.

There is too much of value in this article to capture in a brief review, so I focus on two aspects, namely Manning’s disagreement with the extremes in separation of powers and the middle way that Manning charts, based on his view that separation of powers in the United States embodies a constitutional compromise.  Along the way, I explain what Manning means by “ordinary interpretation” and how that differs from the interpretive methods employed by separation of powers extremists on both sides. Continue reading "Separation of Powers and the Middle Way"


The Impact of the Criminalization of HIV Non Disclosure on Women

Alison Symington, “HIV Exposure as Assault: Progressive development or misplaced focus?” in Elizabeth Sheehy, ed, Sexual Assault Law, Practice & Activism in a Post-Jane Doe Era (Ottawa: University of Ottawa Press, 2011).

Over the past decade in Canada, and particularly over the past five years, we have seen an increase in the number of prosecutions of nondisclosure of HIV status. Most of these cases are prosecuted as aggravated sexual assault, our most serious sexual offence, punishable by life imprisonment. Unlike sexual assault generally, there has been a dearth of literature in Canada addressing this issue from the perspective of its impact on women.

This is an exceptionally difficult issue for the feminist legal movement. On the one hand, prosecutions of nondisclosure could be seen as protecting the sexual autonomy of women who are often the victims of men who fail to disclose their HIV-positive status. Expanding the notion of fraud negating consent could be seen as empowering women to choose the circumstances in which they consent to sexual activity. However, women are also potential accused persons in these cases. Sex workers, immigrant women and poor women may be particularly at risk of criminalization for failure to disclose. Recently a 17 year old girl in Edmonton was named publicly and charged with aggravated sexual assault for not disclosing her status to two men. Rates of HIV are increasing in young women in Canada and we need to ask whether criminalization, in the long run, will protect women from HIV or further marginalize and isolate this already highly stigmatized group. Continue reading "The Impact of the Criminalization of HIV Non Disclosure on Women"


“Living Turned Inside Out”: True Facts and the First Amendment

Ashutosh Avinash Bhagwat, Details: Specific Facts and the First Amendment (2011), available at SSRN.

Imagine two speech scenarios.  In the first, a noted scientist publishes a paper offering specific, detailed, and accurate empirical evidence concerning the genetic structure of a rare and fatal disease.  Few people suffer from the disease, and even fewer will understand the paper, but it represents a great leap forward in understanding the underlying nature of the disease.  The paper does, however, include patient information that is supposed to be confidential under federal privacy laws.  In the second, a newspaper published a letter to the editor by a local crank charging that the climate change movement is a worldwide conspiracy in which scientists are deliberately lying to the public.  The letter is a poorly supported rant.  Which speech deserves greater protection under the First Amendment?

Although he would offer some protection to both, Ashutosh Bhagwat argues, in a new working paper, Details: Specific Facts and the First Amendment, that the second speech—the false, unhelpful work of what Holmes would have called a “poor and puny anonymity”—deserves more protection than the paper that may revolutionize understanding and treatment of a variety of genetically based disorders, a Nobel Prize in waiting.  His answer is not outrageous, and some may find it unsurprising.  But even recognizing that the question exists is important. Continue reading "“Living Turned Inside Out”: True Facts and the First Amendment"


Judicial Specialization and the Functional Case for Non-Article III Courts

Lawrence Baum, Specializing the Courts (Univ. of Chicago Press 2011).

As is abundantly clear from the Supreme Court’s June 2011 decision in Stern v. Marshall, the debate over the propriety of non-Article III federal adjudication tends to reduce to the classical divide between separation-of-powers formalists and functionalists. Thus, Chief Justice Roberts’s opinion for the 5-4 majority, in the course of holding that non-Article III bankruptcy courts could not constitutionally exercise jurisdiction over certain kinds of state-law counterclaims, repeatedly trumpeted the need zealously to protect Article III prerogatives from even the smallest encroachment. In contrast, Justice Breyer’s dissent harped on the real-world efficiency that such adjudication promoted, criticizing the majority for failing to appreciate how much its decision would likely slow down (and further complicate) bankruptcy litigation by requiring the intervention of district courts before final judgment in a far greater number of cases. As Breyer explained, “a constitutionally required game of jurisdictional ping-pong between courts would lead to inefficiency, increased cost, delay, and needless additional suffering among those faced with bankruptcy.”

For those, like Justice Breyer, who are taken by the functional case for non-Article III adjudication, Lawrence Baum’s new book, Specializing the Courts, couldn’t come at a better time. Indeed, although Baum’s monograph consciously sidesteps the debate over the constitutionality of non-Article III adjudication, there are obvious—if not compelling—parallels between his comprehensive treatment of the causes and consequences (and pros and cons) of judicial specialization and the functional case for at least most non-Article III federal courts. Continue reading "Judicial Specialization and the Functional Case for Non-Article III Courts"


Taking Sovereignty Seriously

David Hasen, Tax Neutrality and Tax Amenities, __ Fla. Tax Rev. __ (forthcoming 2011), available at SSRN.

As with many areas of law, a canon of sorts has grown up around the field of international taxation.  Pursuant to this canon, income disappearing “through the cracks” of the international taxing regime, and the resulting loss of tax revenue, has been singled out as one of the single largest problem plaguing the international fiscal order.  This has led to concerted efforts to recapture this disappearing tax base through multiple types of enforcement or punishment, most famously through a blacklist campaign led by the OECD against so-called uncooperative tax havens.

What may surprise some, however, is that this canon appears to rest primarily on a single, somewhat dated, premise arising from the public finance literature: that of tax “neutrality” – or the idea that the tax law should not change where and how capital invests around the world as compared to what would occur absent taxes.  Neutrality, it was argued, was the sine qua non of the international tax regime in that it would prevent “distortions” to international capital flows, thus maximizing worldwide efficiency; increased worldwide efficiency would mean increased worldwide growth, making all countries better off – the supposed common goal of all.  Given that neutrality would benefit the entire worldwide tax regime, the argument went, it was appropriate or even necessary to punish countries which did not adopt “neutral” policies in their tax laws as well. Even critics of this approach seemed to base their analysis in neutrality terms, effectively ceding the battleground before a shot was fired. Continue reading "Taking Sovereignty Seriously"