When I was growing up in New York City, there was a rite of passage that you went through when you turned 14. You got your “working papers.” For a middle class kid, the process was one of your first encounters with the administrative state. You went to the dingy building in downtown Brooklyn that housed the New York State Department of Labor’s Kings County office. There you submitted a form, signed by your parents, along with a copy of your birth certificate. The form itself was a stock item of the postwar, pre-digital bureaucracy: four sheets of stacked, bound, carbonless copy paper (white, yellow, pink, and blue with an instruction to press hard enough to create legible words on the blue copy). The birth certificate was a photocopy – white text on a black background – with a raised seal. The form and the birth certificate were reviewed and stamped by a clerk behind a counter who then returned to you a copy of the form (the pink one, I seem to recall). You now had the permission of the State of New York to be a camp counselor, or to peddle Dove Bars and frozen lemonade from a cart in front of Rockefeller Center
Behind this banal bureaucratic process was over one hundred years of state building, some of it quite familiar. As anyone who remembers their AP American History class will tell you, the substance of the regulatory regime (children can’t work until they’re 14 and even then they are prohibited from industrial labor), and its institutional manifestation (the Department of Labor) are products of the Progressive era campaign against child labor. However, as Susan J. Pearson’s richly detailed article demonstrates, before the political impulse to protect children from the dangers of industrial labor could succeed, the administrative state had to assert its power in another way. The most fundamental obstacle to abolishing child labor was not political resistance from business interests or immigrant families in need of income. Nor was it hostile courts with their concerns about federalism and freedom of contract. The most intransigent barrier to abolishing child labor was the fact that well into the twentieth century, the state had no way of knowing how old somebody was. In a world without state-issued birth certificates, enforcing age-based prohibitions on work was impossible. Continue reading "The Birth of the Birth Certificate: Age, Child Labor and the Growth of the Administrative State"
Dan R. Meagher, The Principle of Legality and a Common Law Bill of Rights—Clear Statement Rules Head Down Under
(2015), available on SSRN
I decided to think outside the box this year with my recommendation, or more accurately, outside of our Country’s academy. About a year ago, an Australian Law Professor Dan Meagher contacted me about presenting his paper to our faculty at Mercer University School of Law. I’m very grateful that he did. Professor Meagher ended up visiting with us for a week this past fall as a visiting scholar. During that time, he provided one of the best development presentations that I have seen. His topic was interesting yet completely outside of most of our expertise. His presentation style was relaxed and fostered the interaction of the entire faculty. Perhaps the relaxing part should not be surprising: Australians are not necessarily known for being uptight. I chose to recommend his article to Jotwell readers because I found the topic interesting, the paper well-written, and the application of the legal doctrine a bit contradictory to the way we do things here in the U.S.
The title of his paper is The Principle of Legality and a Common Law Bill of Rights—Clear Statement Rules Head Down Under. In his article, Professor Meagher traces the evolution of the Australian Courts’ approach to protecting fundamental rights. This evolution is fascinating, controversial, and directly connected to both our Constitution and statutory interpretation principles. This history lesson begins with a simple point: “the Australian Constitution is a redraft of the American Constitution of 1787 with modifications found suitable for the more characteristic British institutions and for Australian conditions.” Our system of a government with separated powers was adopted. Importantly, however, the Australian framers consciously rejected, even deleted from a draft version, the American Bill of Rights. The framers rejected the American approach, believing that common law and a parliamentary form of government offered a superior and more democratic way to protect these rights. Professor Meagher describes the Australian Constitution’s development and the strong role that our Constitution played in the drafting process. That part of the paper should be interesting enough to Administrative Law Scholars who teach this aspect of the Constitution. But the story is much more interesting. Continue reading "Super Strong Clear Statement Rules Down Under"
Robert Alexy is one of the foremost contemporary legal theorists of this generation. His work has been very influential, both in analytic legal philosophy (e.g., A Theory of Legal Argumentation (Oxford, 1989) and The Argument from Injustice: A Reply to Legal Positivism (Oxford, 2002)) and in constitutional theory (A Theory of Constitutional Rights (Oxford, 2002)). He is a German theorist; while most of his important works were written first in German, many (like those just listed) have been translated into English, and many shorter articles have appeared originally in English, including the subject of the current jot.
In analytical legal philosophy, Alexy is best known for his “anti-positivist” views—views critical of the legal positivist theories associated with H. L. A. Hart, Joseph Raz, and others. His theory is nicely summarized in the short article being reviewed. Alexy argues that law has a dual nature: (1) a “real” or “factual” dimension, and (2) an “ideal” side. The real or factual dimension is associated with “authoritative issuance and social efficacy”; the ideal dimension is connected with “the element of correctness of content.” (P. 441.) Alexy argues that it is part of the nature of law that it claims to be (morally) correct. And following the German legal theorist of an earlier generation, Gustav Radbruch (in the works he wrote just after World War II), Alexy argues that a rule that is sufficiently unjust loses its status as valid law (the “Radbruch formula”). For Alexy, the claim of correctness and its correlate, the Radbruch formula, display necessary connections between law and morality, thus showing that legal positivism (which claims a separation between moral content and legal validity) is mistaken. Continue reading "Alexy’s Anti-Positivism"
Daniel Gervais’s recent article in the Houston Law Review examines the revision of the 1958 Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (Lisbon Agreement) that took place at a Diplomatic Conference held in Geneva under the auspices of the World Intellectual Property Organization (WIPO) in May 2015. The Geneva Act of the Lisbon Agreement on Appellation of Origin and Geographical Indications (Geneva Act) was finalized and opened for signatures in May 2015. As it is reflected in its title, the adoption of the Geneva Act of the Lisbon Agreement had extended the scope of protection—previously limited to appellations of origin (AO) in the Lisbon Agreement—to include also geographical indications (GIs), which are defined along the lines of the definition of GIs in the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
I enjoyed reading this article, which certainly represents one of the most comprehensive reviews of the May 2015 Diplomatic Conference and the language of the Geneva Act of the Lisbon Agreement written to date by one of the most distinguished experts in the field. Most significantly for scholars and those interested in the topic, Professor Gervais offers a candid review of the background leading to and the meetings that took place at the Diplomatic Conference in Geneva. In this respect, the core message of the article is that WIPO Member States—in particular common law countries on one side and civil law countries on the other side—may have missed an important opportunity to find a much needed compromise on the issue, and finally reconcile the differences on the normative basis for the protection of GIs, including the protection of AOs for the countries members of the 1958 Lisbon Agreement, that have historically characterized the debate in this area. Continue reading "The Growing Case for Geographical Indications?"
Two years ago, my friend Myra died of cancer. She was survived by her husband Scott and their six-year old daughter Isla, as well as her parents, siblings, and many nieces and nephews. As Scott tried to make sense of his wife’s death, he was somewhat comforted by the knowledge that her pension and life insurance would cover the mortgage and keep their daughter in the only school she had ever known—the school where her mother had taught kindergarten.
Scott’s comfort was short-lived. Although Myra did have a pension and life insurance, neither Scott nor their daughter were the beneficiaries. When Myra began working as a school teacher many years ago, she designated her mother and only nephew at the time as the beneficiaries of her life insurance and state pension. Years later, she married Scott and had a daughter together, but never updated her beneficiary designations. She simply forgot. But she also believed that because she did not have a will, Scott would inherit everything she owned and use it to take care of their daughter. She was wrong. Although Scott inherited her very modest intestate estate, her pension and life insurance benefits went to her mother and oldest nephew instead of Scott—her intended beneficiary and intestate heir. The family was torn apart and Isla has had almost no contact with her maternal relatives since her mother’s death.
In their article, Revisiting the Revolution: Reintegrating the Wealth Transmission System, Professors Melanie B. Leslie and Stewart E. Sterk illustrate the law’s failure to address the problems created by the proliferation of non-probate instruments. This failure has deprived intended beneficiaries, like Scott, of assets that the decedent intended them to take and has also enabled wrongful takers, including former spouses, to receive assets that the decedent clearly did not want them to have. Continue reading "Honoring Decedents’ Wishes—Non-Probate Devices Included"
Jake Linford, Are Trademarks Ever Fanciful?
, 105 Geo. L.J.
(forthcoming), available at SSRN
Trademark law protects distinctive marks: ones that identify the source of goods or services and distinguish them from others in the marketplace. But how should courts determine whether consumers view a mark as distinctive? In an attempt to provide some analytical rigor to this essential question, courts have developed a complicated two-prong test: they look to both “inherent distinctiveness” (i.e., linguistic uniqueness) and “acquired distinctiveness” (i.e., whether consumers have come to see the mark as distinctive of source). Inherent distinctiveness for word marks is based on the so-called Abercrombie spectrum (named after the 1976 2d Cir. case that most famously articulated it), which classifies marks from most to least distinctive as fanciful (KODAK cameras), arbitrary (APPLE computers), suggestive (COPPERTONE suntan lotion), descriptive (AMERICAN airlines), or generic (“apple” for apples). Marks like AMERICAN can become strong, protectable marks only by developing “acquired distinctiveness”; marks like COPPERTONE and APPLE are presumed to be protectable at birth; and coined marks like KODAK are the strongest of all.
As Barton Beebe notes in his casebook, Abercrombie‘s “influence on U.S. and even foreign trademark law cannot be overstated.” But Abercrombie‘s foundation has been slowly crumbling. For example, in a 2009 study, Thomas Lee and colleagues found that consumers are far more influenced by how and where a mark is placed on a box than by where the mark falls on the Abercrombie spectrum. Rebecca Tushnet has explained that Abercrombie “lacks empirical foundation” and is out of step with basic marketing knowledge, such as that an ostensibly fanciful mark like VIAGRA is already imbued with “suggestions of virility, viability, and Niagara Falls (a classic sexual image).” And now, in an impressive trifecta of recent articles, Jake Linford has further dismantled the key theoretical assumptions underlying the Abercrombie classification scheme for word marks. Continue reading "Is it Time to Overrule the Trademark Classification Scheme?"
Abbe Smith, Representing Rapists: The Cruelty of Cross Examination and Other Challenges for a Feminist Criminal Defense Lawyer, 53 Am. Crim. L. Rev. (forthcoming 2016).
Reading the work of those writing from a different perspective has been productive to the development of my own thinking. Abbe Smith’s forthcoming article, Representing Rapists: The Cruelty of Cross Examination and Other Challenges for a Feminist Criminal Defense Lawyer, is no exception. Like her other scholarship, Representing Rapists is impeccably written, thoughtful, and well reasoned. What makes this work exceptional is its brutal honesty. With its steadfast transparency and willing self-reflection, the article is downright brave.
Abbe Smith, a well known legal ethicist and criminal lawyer, has committed much of her professional attention to theorizing and defending the need for unmitigated zeal in the representation of the criminally accused – including, of course, those accused of sexual offences. With a view to better protecting sexual assault complainants, I have dedicated a lot of scholarly attention in the last few years to developing feminist arguments in support of the ethical limits on defence lawyers who represent clients accused of sexual offences. Where our perspectives likely differ most is with respect to the cross-examination of sexual assault complainants. Continue reading "A Brave and Honest Examination of the Complexity of a Feminist Defence Ethos"
RonNell Anderson Jones & Lyrissa Barnett Lidsky, Of Reasonable Readers and Unreasonable Speakers: Libel Law in a Networked World
, Va. J. Soc. Pol’y & L.
(forthcoming 2016), available at SSRN
Though it can be uplifting and life affirming to read law review articles written by people you almost always agree with, better cerebral benefits are usually obtained from reading the writings of people who challenge your ideas and force you to reconsider your views a bit. Of Reasonable Readers and Unreasonable Speakers: Libel Law in a Networked World by Lyrissa Barnett Lidsky and RonNell Andersen Jones, forthcoming in the Virginia Journal of Social Policy and the Law, is an engaging article that taught me a lot about the state of online defamation litigation.
Both co-authors tend to be more libertarian about the First Amendment than I am, so I always learn a lot from reading their scholarship. I also appreciate their clear and accessible writing. The older I become, the less patience I have for tangled prose, poor organization and conclusions so thick with ambiguity you have to eat them with a fork. Though the previous sentence reflects my exercise of the opinion privilege, the bad writers responsible will remain unnamed, due to the actual malice that infuses those words. (A good companion piece to this excellent article is The Death of Slander by Leslie Yalof Garfield.) Continue reading "Context Shouldn’t be Everything: Online Libel and Evolving Standards of Liability"
To build coalitions on controversial issues where worldviews collide, you have to search for common or at least less contentious ground. Disagree on the rights and wrongs of the death penalty? Rather than moral head-butting over abolitionist legislation, let’s talk instead about the millions of extra taxpayer dollars spent on trying to attain capital sentences that may never be carried out. Disagree on whether mass incarceration is a moral and humanitarian crisis or sound safety protection? Rather than shouting past each other, let’s talk instead about a common denominator of concerns over the crippling costs to taxpayers of paying for overstuffed prisons. Money talk may bridge impasses and offer a seemingly more neutral way out of the morass of competing worldviews.
Similarly, now that there is a historic convergence of interests around decarceration, concerns over the perils of releasing prisoners and recidivism risks are addressed by the promise of scientific selection. Evidence-based is a hot buzzword in everything from medicine to corrections. The appeal and authority of the notion of evidence-based practices is the promise of an objective rigorously evaluated foundation to justify decisions. Evidence-based corrections reassures communities and the nation that risks will be managed scientifically and costs and benefits meticulously balanced.
Cecilia Klingele’s new article offers an excellent guide to the proliferation of evidence-based practices in the correctional context. She argues that while many evidence-based approaches aim to offer smarter alternatives to mass incarceration and reinvigorate rehabilitationism, the practices may also perpetuate and extend a culture of control. Most intriguingly, Klingele calls for a return to values and normativity. Continue reading "Bringing Values Back"
Josh Blackman and Howard M. Wasserman, The Process of Marriage Equality
, 43 Hastings Const. L.Q. 243 (2016), available at SSRN
In The Process of Marriage Equality, Josh Blackman and Howard Wasserman provide a chronicle and critical assessment of the judicial decisions about procedure, jurisdiction, and remedies through which the federal courts moved from United States v. Windsor to Obergefell v. Hodges. It is an essential article for understanding how the process unfolded.
The picture painted by the authors is not a pretty one. Some of the procedural decisions come out looking somewhat shabby, and the judges who made them possibly partial. Blackman and Wasserman do not always say so squarely, but the best explanation for some of the procedural misadventures they chronicle is likely found in partial judicial strategery: Procedural monkeying made the underlying substantive right more likely to stick, which is what the judges wanted because they were partial to the plaintiffs (and similarly situated couples) seeking it. Continue reading "Process Failure on the Road to Obergefell"
Robert Yablon, Voting, Spending, and the Right to Participate
, available at SSRN
In McCutcheon v. FEC, Chief Justice Roberts described campaign contributions as a form of participation in electoral politics. His plurality opinion invalidating aggregate limits on contributions to federal candidates concluded that “[c]onstituents have the right to support candidates who share their views and concerns” and that representatives’ responsiveness to such concerns “is key to the very concept of self-governance through elected officials.” As commentators quickly noticed, there was something curious about this paean to democratic representation: the “constituents” the Chief Justice described were not eligible to vote for most of the candidates they were funding. They were not, in other words, constituents in the usual sense. Was this a mere “oops”? A deliberate, if subtle, move to reshape campaign finance law? Something else?
Robert Yablon’s insightful new article, Voting, Spending, and the Right to Participate, offers a fresh approach to this conundrum. Rather than dismiss McCutcheon’s arguments about political participation as rhetoric or subterfuge, Yablon engages the opinion’s suggestion that “[t]here is no right more basic in our democracy than the right to participate in electing our political leaders,” a right that may be exercised through the franchise or through monetary contributions. What would it mean, he asks, for our disparate law concerning voting and spending to instead conceptualize both as forms of participation in the electoral process? Continue reading "A Right to Participate in the Electoral Process"