2013 March - Jotwell - The Journal of Things We Like (Lots)

Monthly Archives: March 2013

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Life in Prison

March 29th, 2013 | Cary Federman | Jurisprudence

Sharon Dolovich, Exclusion and Control in the Carceral State, 16 Berkely J. Crim. L. 259 (2011).

The idea of incarceration is not self evident. One can speak of prisons in ancient Greece and Egypt, as well as in medieval Europe, but the largely private nature of the prisons, the arbitrary imposition of penalties and of their length, and the lack of oversight or regard for prisoners’ welfare makes the use of the word prison seem out of place in such contexts. Besides, incarceration was not the primary method of punishment in the classical and medieval world. Banishment, shame, public displays of punishment, fines, and outright executions were regarded as better suited than prisons in making the point that crime will not be tolerated.

The modern era gave us prisons – hierarchical, rational, rule-bound bureaucratic institutions. And with it, a bargain was struck, as Sharon Dolovich writes in her fascinating account of the history and development of the idea of exclusion and control in American prisons. The bargain, according to Dolovich, involves the state’s ability to isolate those who transgress the law and then to ensure that such persons will be kept “apart from society for the duration of their sentences.” (P. 274).

The problem, Dolovich notes, involves the limits and the character of confinement. Why, in the 1990s, did the United States turn to two policy choices, life without parole (LWOP) and the Supermax? What were the evils policymakers in the 1990s were combating? Continue reading "Life in Prison"

Same-Sex Marriage—A Liberty for All

March 27th, 2013 | Clifford Rosky | Family Law

Michael Boucai, Sexual Liberty and Same-Sex Marriage: An Argument from Bisexuality, 49 San Diego L. Rev. 415 (2012), available at The Williams Institute.

Clifford Rosky

For more than twenty years, the constitutionality of laws against same-sex marriage has remained a hot topic among scholars, lawyers, and judges in the United States. This month, the U.S. Supreme Court will finally hear argument on the constitutionality of two such laws—the federal law known as the Defense of Marriage Act and an amendment to the California Constitution known as Proposition 8.

After so many years and so many challenges, it has become increasingly difficult to find arguments and angles on this topic that are genuinely novel. In recent years, it often feels as if the question has been exhausted—as if both sides have already said what is worth saying, and we all are just repeating ourselves, pleading and praying for Justice Kennedy’s vote.

Yet in his recent article, Professor Michael Boucai (Buffalo) manages to stake out a powerful new claim for same-sex marriage—a claim based on homosexual liberty, rather than the equality of lesbian and gay people or the fundamentality of marriage itself. In the article’s opening sentence, Boucai explains: “This Article proposes that same-sex marriage bans channel individuals, particularly bisexuals, into heterosexual relations and relationships, impermissibly burdening the sexual liberty interest protected under Lawrence v. Texas.” Continue reading "Same-Sex Marriage—A Liberty for All"

Sexuality and Legal Consciousness

March 25th, 2013 | Margaret Davies | Equality

Rosie Harding, Regulating Sexuality: Legal Consciousness in Lesbian and Gay Lives (Routledge 2011).

Margaret Davies

Legal consciousness studies is an area of socio-legal research that looks empirically at the narratives of law constructed in people’s everyday lives. It challenges the distinction often made between law and society by illustrating their mutually constitutive relationship. Put simply, not only does law affect individual and collective lives and the nature of social groupings, but social patterns and narratives also constitute the law. Influential work by Patricia Ewick and Susan Silbey made the point emphatically that “legal consciousness” is not only about people’s subjective experiences of law, but also about how people live the law, how they interpret, use, and resist law, and how they embed those meanings in their practical everyday settings.

In Regulating Sexuality, Rosie Harding takes the concept of legal consciousness in two new directions. First, she integrates it with legal pluralism, and in particular the critical legal pluralism which also defines legality by reference to everyday meaning-making and practice. Secondly, she undertakes an extensive empirical analysis of the legal consciousness of lesbians and gay men, an analysis that is important in its own terms, but that also contributes to the theoretical understanding of the effects of power on legal consciousness and how resistance by marginalised groups contributes to the legal meaning-making they engage in. Both elements of Harding’s work are significant, not only for legal consciousness studies but also for legal theory, for understanding the legal agency and conditions of lesbian and gay lives, and also for providing additional grounding to the alternative conceptions of legality which underpin legal pluralism. Continue reading "Sexuality and Legal Consciousness"

Marks on Markets and Competition

March 22nd, 2013 | Shubha Ghosh | Intellectual Property

Mark A. Lemley & Mark P. McKenna, Is Pepsi Really a Substitute for Coke? Market Definition in Antitrust and IP, 100 Geo. L.J. 2055 (2012).

Shubha Ghosh

Lemley and McKenna’s recent collaboration is an article I like (lots) because it highlights a provocative anomaly. Antitrust law offers special treatment to markets for products protected by intellectual property. But as Lemley & McKenna point out, if you apply antitrust market definition principles to such markets, there are doubts as to their competitiveness. There is no price at which some loyalists will switch from Pepsi to Coke, the Beatles to the Rolling Stones, Dan Brown novels to Stephen King ones, or Apples to PCs. Because of this lack of consumer response to a price change, the authors conclude, antitrust law should scrutinize more closely markets defined by the existence of intellectual property rights.

Lemley & McKenna take their cue from Professor Louis Kaplow’s examination of market definition in antitrust law.¹ Building on Kaplow, the Lemley and McKenna article offers alternative approaches to address intellectual property cases that make reference to market effects without the use of market definition. I think this is correct. At the same time, there is another lesson to be gleaned from antitrust law that I think can be developed. Antitrust law is a branch of competition policy; the normative foundations of desirable competition inform antitrust law. My point is that intellectual property doctrines should be based on a deeper appreciation of the norms of competition. Continue reading "Marks on Markets and Competition"

The Reality of the Deterrence Effect: How Malpractice Lawsuits Promote Patient Safety

March 20th, 2013 | Kristin Madison | Health Law

Joanna C. Schwartz, A Dose of Reality for Medical Malpractice Reform, N.Y.U. Law Rev. (forthcoming), available at SSRN.

Kristin Madison

Discussions of patient safety often begin with the depressing statistic that 98,000 Americans die every year due to hospital medical error. From there, they may veer toward a conversation about the culture of silence that hinders efforts to identify and address medical errors. The reasons for the culture of silence? There are many, but the law usually features prominently among them. Fearful that any discussion of errors may find its way into malpractice litigation, the providers best suited to preventing medical error are often reluctant to share the information necessary to do so. Thus, rather than deterring error, tort law ends up deterring its prevention.

But this gloomy story is often told alongside a more hopeful one. Thirty years ago, prompted at least in party by high malpractice insurance premiums, anesthesiologists made a concerted effort to improve anesthesia safety – and they succeeded. So tort law can sometimes fulfill its deterrence function. And it does not always chill communication about errors, either. In institutions such as the Veterans Administration Hospital in Lexington, Kentucky, and the University of Michigan Health System, errors are not just discussed internally, but also disclosed to patients. Continue reading "The Reality of the Deterrence Effect: How Malpractice Lawsuits Promote Patient Safety"

From Behind the Great Wall: FOI in China and – About Method

March 18th, 2013 | Herbert Burkert | Cyberlaw

Weibing Xiao, Freedom of Information Reform in China: Information Flow Analysis (Routledge, 2012).

Herbert Burkert

At a conference hosted jointly by Peking University Law School and the Carter Center, ex US-President Carter, as reported recently by freedominfo.org, a highly recommendable information source on access to government information by the way, encouraged the Chinese government “to take critical steps toward institutionalizing the right to information, including reviewing the experiences to date under the current Open Government Information regulation and developing it into a more powerful legal regime with the statutory strength of a law.”

What these “Regulations of the People’s Republic of China on Open Government Information of April 5, 2007, effective May 1, 2008″ are about, how and why they came into existence and what is keeping them alive, is described in Weibing Xiao’s book. According to Xiao, a Professor of Law at Shanghai University of Political Science and Law, the fight against corruption did not cause this development, but rather administrative problems with managing secrecy led to first tentative research and policy initiatives for greater transparency. These initial steps were then encouraged by an improved information flow environment in which – also in part due to technological developments – information exchanges increased between administrations and between citizens and administrations. Xiao’s account suggests a push-model of government information, one which while being encouraged for all levels of government seems to be particularly vital on the local level, where it is supported by long-standing and far-reaching administrative reforms.

Beyond this historical-analytical account I recommend the book for four reasons: Continue reading "From Behind the Great Wall: FOI in China and – About Method"

Crimmigration and the Problem of Ad Hoc Instrumentalism

March 15th, 2013 | Jennifer Chacon | Criminal Law

David Sklansky, Crime, Immigration and Ad Hoc Instrumentalism, 15 New Crim. L. Rev. 157 (2012).

Jennifer Chacon

The lines between criminal law enforcement and immigration enforcement have blurred to the point where they are at times indistinguishable, but effective efforts to theorize this merger through the lens of criminal law are relatively few and far between. For this reason, I particularly enjoyed reading David Sklansky’s Crime, Immigration and Ad Hoc Instrumentalism. In this article, Sklansky not only provides a nice descriptive account of the developments that are the causes and harbingers of the criminal/immigration merger, but he also helpfully situates these developments within a broader law enforcement framework. In so doing, he persuasively illustrates how these developments are part of a general legal trend toward “ad hoc instrumentalism.” At the same time, he also uses the article to explain reasons that these developments might be particularly problematic in the context of what has sometimes been called “crimmigration” law.

Professor Sklansky begins with a descriptive account of “the various ways in which criminal justice and immigration enforcement have grown increasingly intertwined.” Focusing on the period from the mid-1980s through the present, Sklansky discusses four different developments. First, immigration crimes went from being a relatively insignificant percentage of the federal criminal docket to accounting for a majority of all federal prosecutions. Second, deportation – which, as Dan Kanstroom has observed, was once a small-scale, post-entry form of border control – is now widely understood and used as a key tool of crime control. Third, immigration authorities run the nation’s largest prison system – a system that is supposedly a civil detention system but that the present administration admits falls well outside the bounds of “truly civil” detention. Finally, after decades in which sub-federal agents were viewed as peripheral to immigration enforcement efforts, state and local law enforcement officers now cooperate on a widespread and systematic basis with federal immigration officials in immigration enforcement. Although all of these trends have been described elsewhere, Sklansky’s article provides a good overview of the existing literature. He also makes headway into the important task – also recently taken up to great effect by Ingrid Eagly – of providing a textured sense of how the systems of criminal law enforcement and immigration law enforcement are interacting as a practical matter. Continue reading "Crimmigration and the Problem of Ad Hoc Instrumentalism"

Seeking Accuracy in Aggregate Litigation

March 13th, 2013 | Allan Erbsen | Courts Law

Edward K. Cheng, When 10 Trials Are Better Than 1000: An Evidentiary Perspective on Trial Sampling, 160 U. Pa. L. Rev. 955 (2012).

Allan Erbsen

Courts and markets perceive mass tort victims from distinct perspectives that complicate aggregate litigation. Before mass torts cause injuries, prospective victims often are fungible variables in an actuarial model. Actors can foresee the possibility of negligence and identify groups who they might harm without knowing which specific members will incur losses. For example, airlines know that planes may crash and pharmaceutical manufacturers know that drugs may cause adverse affects. Yet even if the risks are known, injuries can occur at unpredictable times to unpredictable subsets of a risk-bearing population. Even actors who intentionally violate the law by making fraudulent claims or adopting discriminatory policies often target demographics rather than individuals. The anticipated victims are faceless statistics in a crowd.

But after tortious conduct causes injuries that generate litigation, victims generally have known identities. Current rules governing civil adjudication enable defendants to both ignore and exploit these individual identities when proposing procedures for resolving plaintiffs’ claims. A defendant that desires a global settlement (or global dismissal) can continue to view victims as an undifferentiated mass by making offers or arguments that are applicable to the entire group. If these efforts fail, defendants often challenge further aggregate approaches to dispute resolution by contending that each alleged victim is a unique individual with a unique claim requiring its own day in court. When judges accept these arguments, victims of wholesale injury become the potentially unwitting recipients of retail justice. This claim-by-claim adjudication consumes scarce judicial resources, burdens litigants, and can produce inconsistent judgments in similar cases. Continue reading "Seeking Accuracy in Aggregate Litigation"

The Business Case for Corporate Social Responsibility

March 11th, 2013 | David Millon | Corporate Law

Robert G. Eccles, Ioannis Ioannou, & George Serafeim, The Impact of a Corporate Culture of Sustainability on Corporate Behavior and Performance, Harvard Business School Working Paper 12-035 (2012), available at SSRN.

David Millon

Progressive corporate law scholars have tended to ignore business or economics research as potential support for their normative claims. When seeking interdisciplinary insights they have generally looked elsewhere. This is not surprising, given that business and economics scholarship often reflects assumptions about corporate law that progressives reject, in particular a shareholder primacy orientation that prioritizes shareholder wealth maximization while disregarding social costs. For progressives, business and economics scholarship may also bear the taint of its embrace by mainstream corporate law scholars, many of whom have a strong law-and-economics, empirical perspective that draws them naturally to finance, accounting, and management literature.

Those interested in corporate social responsibility (CSR) and the problems of managerial and investor short-termism should not overlook the paper reviewed here. Robert Eccles, Ioannis Ioannou, and George Serafeim (professors at Harvard, London, and Harvard business schools respectively) make an important contribution to debates among corporate law academics about CSR as an alternative to shareholder primacy. Their paper also has significant relevance to those who are concerned about the costs of shareholder primacy’s current incarnation as an obsession with quarterly earnings and their effects on share prices. The authors present a sophisticated, empirically grounded demonstration of the economic advantages enjoyed by corporations that have chosen to invest in stakeholder relationships and to pursue a long-run approach to wealth creation. Because these companies are shown to outperform financially their more traditionally-minded, shareholder-primacy, short-term-oriented rivals, CSR advocates can assert a ‘business case’ for their belief that corporations should attend to the well-being of nonshareholding stakeholders, including employees, customers, local communities where the firm operates, and those who are affected by its impact on the environment. The business case also lends support to critics of short-termism who have no particular interest in CSR. Continue reading "The Business Case for Corporate Social Responsibility"

Our Lyin’ Eyes: Design Patents and the Perils of an “Eyes Alone” Approach to Novelty and Infringement

March 8th, 2013 | Christopher Sprigman | Intellectual Property

Rebecca Tushnet, The Eye Alone is the Judge: Images and Design Patents, 19 J. Intell. Prop. L. 409 (2012).

Christopher Sprigman

Thanks in large measure to the ongoing worldwide smartphone patent brawl between Apple and Samsung, patents are in the news a lot these days. And that is especially true of design patents – i.e., the branch of the patent law that grants rights in novel, non-obvious and ornamental designs. Apple pressed design patent claims against Samsung that included broad claims of ownership over rectangularly-shaped electronic devices. To many observers, these seemed . . . well . . . crazy. Take Apple’s patents on the shape of the iPhone. Here’s a design drawing from the Apple D677 patent.

The patent claims the shaded portion of the iPhone’s shape – the rectangular shape of the face, the edge-to-edge screen, the shape and placement of the mic. But is this a good patent? The overall shape claimed doesn’t seem novel. Today’s smartphones are increasingly just pocket-sized screens, and screens have been rectangular for a long time. Some have responded that this patent is novel to the extent it claims a rectangle with rounded corners, but the rounded corners are functional – just try carrying a smartphone with sharp corners. And unlike utility patents, which, as their name suggests, protect useful things, functionality is a disqualifier for a design patent, which is concerned only with a design’s ornamental quality. What about the shape and placement of the mic? Well, if this is the ground of novelty, it’s a trifling one. But for the moment, give the benefit of the doubt to Apple, and say that they are entitled to a monopoly on their claimed shape and placement of a smartphone mic. We still have a problem. How do we get a jury to focus on whether Samsung copied the mic, and only the mic, and not the other features included in the patent drawing – features that, if what’s said above is right, cannot properly be owned by Apple?

This is a problem that recurs constantly in design patent disputes, and one which brings us to Rebecca Tushnet’s new piece in the Intellectual Property Law Journal, The Eye Alone is the Judge: Images and Design Patents.¹ Tushnet’s piece is short and characteristically lucid, and I would recommend it to anyone interested in grappling with how best to understand the breadth of design patent claims and the test for design patent infringement – both key inquiries in a field that seems to be growing in importance to IP scholars and the public debate about innovation and copying. Continue reading "Our Lyin’ Eyes: Design Patents and the Perils of an “Eyes Alone” Approach to Novelty and Infringement"

Strategic Interactions Between Administrative Agencies and the White House: A Welcome Look into the Black Box of the Executive Branch

March 6th, 2013 | Mark Seidenfeld | Administrative Law

Jennifer Nou, Agency Self-Insulation under Presidential Review, ___ Harv. L. Rev. ___ (forthcoming 2013), available at SSRN.

Mark Seidenfeld

Perhaps the hottest topic in administrative law of late is the propriety of presidential influence on agency action. To its credit, that literature distinguishes between the agencies and the White House as two distinct institutions that may not agree on particular regulatory outcomes. But, the literature does not go much beyond this simple distinction in its picture of the executive branch, treating both White House and agencies as black boxes, each of which acts with a consistent purpose. At the same time, scholarship has focused on agencies as strategic actors vis-à-vis the judiciary, choosing methods of policymaking to minimize the potential for courts to interfere with that endeavor. In “Self-Insulation under Presidential Review,” Jennifer Nou investigates the extent to which agencies might act strategically amidst resource constraints as a means of minimizing White House influence on their policymaking discretion. In so doing, Nou considers the internal structure and decisionmaking processes of both agencies and the “institutional presidency” to paint a sophisticated picture of their interaction. The result is an article that provides insight into the decisionmaking of both these institutions, and provokes much thought about how their interaction might affect administrative law.

Nou explicitly limits her investigation of White House influence to its formal review of agency rules, as mandated by various executive orders, which she dubs “presidential review.” She makes clear that while the Office of Information and Regulatory Affairs (OIRA) coordinates such review, it can involve many entities, including those within the Executive Office of the President (EOP) and other agencies. She begins by explaining why agency staff and in many cases agency heads can disagree with the preferences of the institutional President on many regulatory policy issues. She next explains that, from an agency’s perspective, presidential review poses constraints similar to judicial review in that, generally, both require the agency to invest precious resources to avoid reversal of its decision. But, she notes that presidential review is also costly for the executive branch reviewers; this cost allows agencies some strategic latitude to minimize its chances of policy reversal by increasing the White House’s costs of review, rather than by investing in more comprehensive and higher quality decision-making. For example, agencies can avoid review altogether by simply abandoning a policy change, by making policy through adjudication and perhaps even by guidance document.¹ They may be able to avoid review or minimize the level of scrutiny to which a rule is exposed by designating the rule as not economically significant or not significant at all, or by providing only opaque and general information about costs and benefits. Finally, they may be able to parlay statutory deadlines or the end of a President’s term effectively to shorten the period for OIRA review, thereby decreasing the level of scrutiny. Continue reading "Strategic Interactions Between Administrative Agencies and the White House: A Welcome Look into the Black Box of the Executive Branch"

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