Jotwell http://jotwell.com The Journal of Things We Like (Lots) Tue, 22 Jul 2014 10:30:20 +0000 en-US hourly 1 Empiricism and Equality: Studying Fathers’ Rights http://equality.jotwell.com/empiricism-and-equality-studying-fathers-rights/ http://equality.jotwell.com/empiricism-and-equality-studying-fathers-rights/#comments Tue, 22 Jul 2014 10:30:20 +0000 http://equality.jotwell.com/?p=481 Ruthann Robson

The fathers’ rights movement relies on the rhetoric of equality. Men, it seems, are discriminated against because the law has come under the sway of feminists. Feminists have prevailed upon the law to intrude in areas where the government has no business, such as the [...]

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Kelly A. Behre, Digging Beneath the Equality Language: The Influence of the Fathers’ Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, 21 Wm. & Mary J.  Women & L. (forthcoming 2014), available at SSRN.

The fathers’ rights movement relies on the rhetoric of equality. Men, it seems, are discriminated against because the law has come under the sway of feminists. Feminists have prevailed upon the law to intrude in areas where the government has no business, such as the home. Moreover, feminists have convinced policy makers that there is an epidemic of domestic violence perpetrated by men upon women and that adult intimate partner violence should be considered in issues of custody of children. The correct view according to the fathers’ rights movement, is that true equality means gender-neutrality.

While discussions, critiques, and analysis of the equality rhetoric of the international fathers’ rights movements are not novel, Kelly Behre’s article, Digging Beneath the Equality Language: The Influence of the Fathers’ Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, does – – – as the title promises – – – “dig beneath.” The article’s first section is an excellent overview of the equality narratives of the fathers’ rights movement, including the appeal to civil rights movements and the use of both discrimination and gender-neutral tropes. But the real contribution of Behre’s article is her exploration of the relationship between empiricism and equality. Continue reading "Empiricism and Equality: Studying Fathers’ Rights"

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Don’t Restrict My E-book http://cyber.jotwell.com/dont-restrict-my-e-book/ http://cyber.jotwell.com/dont-restrict-my-e-book/#comments Mon, 21 Jul 2014 10:25:36 +0000 http://cyber.jotwell.com/?p=723 Daithí Mac Síthigh

It’s still fashionable to point to the “cloud” as the solution to all sorts of problems in technology. But can such a shift disturb the carefully worked out compromises between different interests, which are embedded in legislation on topics such as competition and intellectual property?

Angela Daly, a research fellow at the Swinburne Institute of Technology (Australia) who is also about to complete a doctorate at the European University [...]

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Angela Daly, E-Book Monopolies and the Law, 18 Media & Arts L. Rev. 350 (2013), available at SSRN.

It’s still fashionable to point to the “cloud” as the solution to all sorts of problems in technology. But can such a shift disturb the carefully worked out compromises between different interests, which are embedded in legislation on topics such as competition and intellectual property?

Angela Daly, a research fellow at the Swinburne Institute of Technology (Australia) who is also about to complete a doctorate at the European University Institute (Florence, Italy), suggests that these clouds may bring little but rain. In her article, “E-book monopolies and the law”, published in the consistently topical Melbourne-based Media and Arts Law Review, she considers two particular features of e-book platforms and content: digital rights management, and competition. Continue reading "Don’t Restrict My E-book"

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What Can Be Learned From the Wrongfully Accused? http://crim.jotwell.com/what-can-be-learned-from-the-wrongfully-accused/ http://crim.jotwell.com/what-can-be-learned-from-the-wrongfully-accused/#comments Fri, 18 Jul 2014 10:30:24 +0000 http://crim.jotwell.com/?p=889 Margareth Etienne

One of the most frequently asked questions of criminal defense lawyers is some variation of “How can you represent someone you know is guilty?” Law students ask this question often as they explore vicariously the possibility of representing the criminally accused. I respond carefully. I try to take them back to my own experience and the immense pride (and yes, sometimes trepidation) I felt in assisting some of [...]

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Daniel Gilveber & Amy Farrell, Not Guilty: Are the Acquitted Innocent (2012).

One of the most frequently asked questions of criminal defense lawyers is some variation of “How can you represent someone you know is guilty?” Law students ask this question often as they explore vicariously the possibility of representing the criminally accused. I respond carefully. I try to take them back to my own experience and the immense pride (and yes, sometimes trepidation) I felt in assisting some of the most powerless and forgotten members of our society. I tell them the truth. The hardest cases were not those in which I thought that my client was guilty. Hardest were those cases in which I believed or suspected that my client was innocent. Those are the cases over which I lost the most sleep and worried that my own limitations and competencies as a lawyer would unfairly determine my client’s liberty. I worked tirelessly for acquittals in those cases (and others) but recall to this day that even acquittals could not make innocent criminal defendants “whole.” Acquittals were viewed by defense and prosecution attorneys alike as lucky windfalls. The acquitted defendant somehow evaded the “true verdict” of guilt. Rarely could acquitted defendants return to their former lives without the stain of having been accused. In other words, a defendant who was found “not guilty” was perceived as not entirely “innocent” either.

A close examination of verdicts of acquittal has been long overdue. This is precisely what Daniel Givelber and Amy Farrell bring to us in their new book Not Guilty: Are the Acquitted Innocent? In particular, they study the relationship between the acquittals and actual innocence. They begin with the notion that acquittals, like comedian Rodney Dangerfield, “get no respect.” Practitioners, scholars and the general public tend to assume that acquittals are based on misinformed or nullifying jurors or systemic failures allowing the guilty to go free. The authors observe that the law itself harbors a similar bias insofar as evidence of prior acquittals can be admitted in the adjudication of a new offense or to enhance a sentence in a new offense. Givelber and Farrell acknowledge that they can’t directly disprove these assumptions. (For instance how do we know whether an acquitting jury has nullified or genuinely believes that the defendant is not guilty of the charge?). Instead they analyze data from four hundred trials to determine how and whether the evidence in acquitted cases differs from or resembles the evidence in conviction cases. Continue reading "What Can Be Learned From the Wrongfully Accused?"

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A New Theory of Insider Trading Law http://corp.jotwell.com/a-new-theory-of-insider-trading-law/ http://corp.jotwell.com/a-new-theory-of-insider-trading-law/#comments Wed, 16 Jul 2014 10:30:10 +0000 http://corp.jotwell.com/?p=626 D. Gordon Smith

Sung Hui Kim of the UCLA School of Law has developed a bold new theory of insider trading that is well worth reading. In The Last Temptation of Congress: Legislator Insider Trading and the Fiduciary Norm Against Corruption, Kim lays the foundation [...]

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Sung Hui Kim of the UCLA School of Law has developed a bold new theory of insider trading that is well worth reading. In The Last Temptation of Congress: Legislator Insider Trading and the Fiduciary Norm Against Corruption, Kim lays the foundation of her new theory, which she expands in Insider Trading as Private Corruption.

In arguing that members of Congress are fiduciaries for purposes of insider trading law, Kim joins a number of others scholars who have argued for the imposition of fiduciary duties on government officials. See, e.g., Evan Fox-Decent, Sovereignty’s Promise: The State as Fiduciary (2011); Ethan J. Leib et al., A Fiduciary Theory of Judging, 101 Calif. L. Rev. (2013); D. Theodore Rave, Politicians as Fiduciaries, 126 Harv. L. Rev. 671 (2013); Evan J. Criddle, Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking, 88 Tex. L. Rev. 441 (2010). I come to this literature as a skeptical reader. Having written extensively on fiduciary law, I am wary of scholarship that purports to extend fiduciary analysis into new domains, stretching the fiduciary concept beyond its analytical boundaries. In Last Temptation, therefore, I prepared myself for an arduous slog when I read that Professor Kim was arguing that the “majority view”—that “members of Congress are fiduciaries to no one” (P. 849)—was wrong (P. 852). Continue reading "A New Theory of Insider Trading Law"

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Coming to a Better Understanding of Remedies http://courtslaw.jotwell.com/coming-to-a-better-understanding-of-remedies/ http://courtslaw.jotwell.com/coming-to-a-better-understanding-of-remedies/#comments Tue, 15 Jul 2014 10:30:27 +0000 http://courtslaw.jotwell.com/?p=668 Marin Levy

Remedies is a vital, yet sometimes overlooked, area of study and scholarship. So often with law, we gravitate toward the substantive fields—constitutional law, property, contracts, torts, and the like. In academic writing and course offerings, there is less of a tendency to step back and consider the commonalities between these subjects.

Remedies is trans-substantive almost by definition. It looks across all areas of law [...]

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Samuel L. Bray, The Myth of the Mild Declaratory Judgment, 63 Duke L. J. 1091 (2014).

Remedies is a vital, yet sometimes overlooked, area of study and scholarship. So often with law, we gravitate toward the substantive fields—constitutional law, property, contracts, torts, and the like. In academic writing and course offerings, there is less of a tendency to step back and consider the commonalities between these subjects.

Remedies is trans-substantive almost by definition. It looks across all areas of law and asks, once a liability or right has been established, now what? Is the victim, be she of trespass or breach of contract or malpractice, entitled to damages? If so, how much? Should she receive an injunction or declaratory relief or both? The goal of the field is to better understand how it is that our legal system can and should make aggrieved parties whole. Sam Bray’s The Myth of the Mild Declaratory Judgment deftly brings us closer to that goal. Continue reading "Coming to a Better Understanding of Remedies"

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Understanding Prophylactic Supreme Court Decisions http://conlaw.jotwell.com/understanding-prophylactic-supreme-court-decisions/ http://conlaw.jotwell.com/understanding-prophylactic-supreme-court-decisions/#comments Mon, 14 Jul 2014 10:30:03 +0000 http://conlaw.jotwell.com/?p=673 William Baude

It is a rare achievement to write about a case in the constitutional law canon and tell us something we did not know. This is the achievement of John Stinneford’s recent article, The Illusory Eighth Amendment. Despite its title, the most interesting part of Stinneford’s article is actually an analysis and critique of the Supreme Court’s famous decision in Miranda v. Arizona.

For those who neither study criminal [...]

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John F. Stinneford, The Illusory Eighth Amendment, 63 Am. U.L. Rev. 437 (2013).

It is a rare achievement to write about a case in the constitutional law canon and tell us something we did not know. This is the achievement of John Stinneford’s recent article, The Illusory Eighth Amendment. Despite its title, the most interesting part of Stinneford’s article is actually an analysis and critique of the Supreme Court’s famous decision in Miranda v. Arizona.

For those who neither study criminal procedure nor watch police procedurals, Miranda held that in the absence of a provable superior alternative: Continue reading "Understanding Prophylactic Supreme Court Decisions"

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Program and Registration Information for “Legal Scholarship We Like and Why It Matters” http://jotwell.com/program-and-registration-information-for-legal-scholarship-we-like-and-why-it-matters/ http://jotwell.com/program-and-registration-information-for-legal-scholarship-we-like-and-why-it-matters/#comments Sun, 13 Jul 2014 11:35:00 +0000 http://jotwell.com/?p=4203 We’ve posted a draft program for our conference on “Legal Scholarship We Like and Why It Matters” and also have opened up a registration page for the conference.

We hope to see you Nov 7 & 8, 2014 at the University of Miami School of Law.

If you are planning on coming, you can take advantage of the UM rate at local hotels. The main conference hotel is the Sonesta in Coconut Grove, but the UM discount also applies to the other [...]]]> We’ve posted a draft program for our conference on “Legal Scholarship We Like and Why It Matters” and also have opened up a registration page for the conference.

We hope to see you Nov 7 & 8, 2014 at the University of Miami School of Law.

If you are planning on coming, you can take advantage of the UM rate at local hotels. The main conference hotel is the Sonesta in Coconut Grove, but the UM discount also applies to the other hotels on the list.

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Rulemaking is Biased in Favor of Regulated Firms http://adlaw.jotwell.com/rulemaking-is-biased-in-favor-of-regulated-firms/ http://adlaw.jotwell.com/rulemaking-is-biased-in-favor-of-regulated-firms/#comments Fri, 11 Jul 2014 10:30:11 +0000 http://adlaw.jotwell.com/?p=984 Richard Pierce

Kimberly Krawiec has made a major contribution to the growing number of empirical studies that find that the notice and comment rulemaking process is systemically biased in favor of regulated firms. Professor Krawiec read all of the comments that were submitted in the rulemaking that led to the issuance of the Volcker rule—arguably the most important rule that has [...]

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Kimberly D. Krawiec, Don’t “Screw With Joe the Plummer”: The Sausage-Making of Financial Reform, 55 Ariz. L. Rev. 53 (2013).

Kimberly Krawiec has made a major contribution to the growing number of empirical studies that find that the notice and comment rulemaking process is systemically biased in favor of regulated firms. Professor Krawiec read all of the comments that were submitted in the rulemaking that led to the issuance of the Volcker rule—arguably the most important rule that has been issued to implement the Dodd-Frank Act—as well as all of the agency meeting logs that described the meetings that agency decision makers had with parties who were interested in the outcome of that proceeding.

Krawiec found that, while proponents of strict regulation of financial institutions dominated the comment process numerically, their comments were useless to decision makers. Proponents of strict regulation filed 7831 of the 8000 comments, but 7316 of those were identical brief form letters that provided no data or analysis that would be potentially useful to decision makers. The other 515 comments filed by proponents of strict regulation appeared to be drafted independently by individuals, but they too were worthless as potential aids to decision making. The comment that inspired the title of Krawiec’s article was typical of those comments: The commenter urged the agency to keep “big banks” from attempting to “screw joe the plummer,” with plumber misspelled. Continue reading "Rulemaking is Biased in Favor of Regulated Firms"

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A Doctrine in Distress http://torts.jotwell.com/a-doctrine-in-distress/ http://torts.jotwell.com/a-doctrine-in-distress/#comments Wed, 09 Jul 2014 10:30:33 +0000 http://torts.jotwell.com/?p=372 Catherine Sharkey

A major accomplishment of the American Law Institute’s 1998 Restatement Third of Torts: Products Liability project is its disaggregation of product defects into categories warranting distinct legal treatment: manufacturing (or construction) defects, design defects, and failure to warn. Indeed, this tripartite approach is at the core of the Restatement Third project, which was touted as “an almost total overhaul of [...]

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Aaron D. Twerski & James A. Henderson, Fixing Failure to Warn, 90 Ind. L.J. (forthcoming, 2014), available at SSRN.

A major accomplishment of the American Law Institute’s 1998 Restatement Third of Torts: Products Liability project is its disaggregation of product defects into categories warranting distinct legal treatment: manufacturing (or construction) defects, design defects, and failure to warn. Indeed, this tripartite approach is at the core of the Restatement Third project, which was touted as “an almost total overhaul of Restatement Second as it concerns the liability of commercial sellers of products.”

It may then seem surprising that James Henderson and Aaron Twerski—joint reporters for the Restatement Third project—have second thoughts about the categories they so adeptly forged.

In “Fixing Failure to Warn,” Henderson and Twerski “now believe that too much has been made of the difference [between design defect and failure to warn]” and propose a simple, albeit powerful fix for a “doctrine in distress.” Namely, the former reporters would import the “reasonable alternative design” requirement from the design defect test into the realm of failure to warn, requiring plaintiff to propose a “reasonable alternative warning” in order to make out his prima facie case. Continue reading "A Doctrine in Distress"

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(Re)Booting the Dismal Science http://worklaw.jotwell.com/rebooting-the-dismal-science/ http://worklaw.jotwell.com/rebooting-the-dismal-science/#comments Tue, 08 Jul 2014 10:45:09 +0000 http://worklaw.jotwell.com/?p=703 Michael J. Zimmer

French economist Thomas Piketty has published a lengthy tome on economics that, unusual for economics books, has become a best seller. That attention is for good cause. While not exactly a beach read, Capitalism in the Twenty-First Century is a potential game changer for what the study of economics entails and its consequence for future policies. The timing of the book is perfect because the fact of increasing economic inequality [...]

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Thomas Piketty, Capital in the Twenty-First Century (2014).

French economist Thomas Piketty has published a lengthy tome on economics that, unusual for economics books, has become a best seller. That attention is for good cause. While not exactly a beach read, Capitalism in the Twenty-First Century is a potential game changer for what the study of economics entails and its consequence for future policies. The timing of the book is perfect because the fact of increasing economic inequality has become a topic of increasing focus among academics but also in public policy discussions more broadly. What has been lacking is a deep understanding of how this has come to happen and what might be done to reduce inequality. Picketty’s book moves the discussion forward by pointing to where inequality comes from, where it is going, what might be done to shift its momentum and direction and what might happen if nothing is done to alleviate ever increasing inequality.

In his Introduction, Piketty quotes Marx’s “Communist Manifest” for its prediction of the inevitability of revolution resulting from the internal contradiction of capitalism: “The development of Modern Industry, therefore, cuts from under its feet the very foundation on which the bourgeoisie produces and appropriates products. What the bourgeoisie therefore produces, above all, are its own gravediggers. Its fall and the victory of the proletariat are equally inevitable.” In less dramatic language, Piketty concludes that “the private rate of return on capital, r, can be significantly higher for long periods of time than the rate of growth of income and output, g. The inequality r>g implies that wealth accumulated in the past grows more rapidly than output and wages. . . . Once constituted, capital reproduces itself faster than output increases. The past devours the future.” His evidence supporting his conclusion that makes capitalism inherently unstable, at least in its present form, is his of study of a wide array of data from a number of countries from the 19th century up until the beginning of World War I and, beginning again after the end of World War II until today. During those prolonged periods, the net rate of economic growth in terms of output and wages was about 1% while the return on capital was always between 4 and 5%. Thus, wealth in terms of capital versus from labor increasingly is concentrated in the top 1% and, even more so, in the top .01%. Ever-expanding capital simply cannot be sustained in the long run because that would mean that labor loses all value. If the past is the prologue to the future, capitalism will at some point inevitably collapse if actions are not taken to reduce the growing value of capital. The period from the beginning of World War I through the end of the immediate post-World War II period demonstrated that the momentum toward ever increasing concentration of wealth can be stopped. During that disastrous period of the 20th century, there was a substantial shift as capital shrank due to the destruction of the two great wars, the Great Depression, the end of European colonization and a policy shift toward the creation of a middle class. As a result economic inequality decreased significantly until after World War II. Much economic theory assumed that this period was the new normal, but, for Piketty, the experience since 1970 onward shows that the old normal has reasserted itself so that economic inequality will continue to grow unless substantial efforts are undertaken to change the policies that underpin the growing power of capital over labor. Continue reading "(Re)Booting the Dismal Science"

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The Return of Capital http://tax.jotwell.com/the-return-of-capital/ http://tax.jotwell.com/the-return-of-capital/#comments Tue, 08 Jul 2014 10:40:09 +0000 http://tax.jotwell.com/?p=1771 Daniel Shaviro

If I had nothing more specific in mind, it would verge on being trite–or perhaps achieve triteness with margin to spare–to identify Thomas Piketty’s Capital in the Twenty-First Century as a 2014 publication worth noting at Jotwell. At least as of early spring, the reviews–predictably laudatory from the left, and cautious or critical from the right–have been sprouting like dandelions in Central Park, and there have also been regular (indeed, almost [...]

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Thomas Piketty, Capital in the Twenty-First Century (2014).

If I had nothing more specific in mind, it would verge on being trite–or perhaps achieve triteness with margin to spare–to identify Thomas Piketty’s Capital in the Twenty-First Century as a 2014 publication worth noting at Jotwell. At least as of early spring, the reviews–predictably laudatory from the left, and cautious or critical from the right–have been sprouting like dandelions in Central Park, and there have also been regular (indeed, almost daily) features about Piketty and his opus, appearing in periodicals of all kinds. Most readers no doubt already know that Piketty has combined a compilation of groundbreaking empirical research about wealth distribution in multiple countries over the last few centuries with an important and provocative thesis about the likely (or at least a possible) future.

Piketty argues that high-end wealth concentration has a tendency to keep on augmenting itself in modern capitalist societies, at least for an indefinite time. He views the mid-twentieth century’s “Great Easing” of this process as reflecting distinctive and anomalous factors that make it unlikely to be repeated. He attributes it mainly to the era’s enormous shocks–in particular, the Great Depression and two calamitous world wars–and secondarily to the pursuit of economic and regulatory policies that deliberately sacrificed neoclassical market efficiency in pursuit of other objectives, or else in response to concerns about market failure that came to be dismissed with the rise of such political leaders as Ronald Reagan and Margaret Thatcher. Continue reading "The Return of Capital"

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