Monthly Archives: October 2009

Patent Crisis?/Judicial Solution?

Dan L. Burk & Mark A. Lemley, The Patent Crisis and How the Courts Can Solve It (2009).

Is there a crisis in the patent system, and if so, what should be done about it?  Two recent books respond to cries of alarm emanating from some in the patent system, and each makes a large contribution to the understanding of this system:  James Bessen & Michael J. Meurer, Patent Failure:  How Judges, Bureaucrats, and Lawyers Put Innovators at Risk (2008) and Dan L. Burk & Mark A. Lemley, The Patent Crisis and How the Courts Can Solve It (2009).  Both books proceed from, or demonstrate, a core empirical premise: those inside the patent system experience its effects quite differently depending on their industrial setting and technical field of innovative endeavor. Both books are well worth reading, but the space here allows only for a few comments on Burk and Lemley’s more recent contribution.

Reprising, updating, and extending arguments made in prior works, Burk and Lemley set out to persuade the reader of three propositions: (1) the tradition of a one-size-fits-all approach to patent law is out of step with the diverse needs of today’s innovators in wide range of industries; (2) the response to diversity should be to retain a single Patent Act rather than to provide industry-specific legislation; but (3) the federal courts should use the flexibilities embedded in that single Patent Act to tailor its application to account for industry diversity. Continue reading "Patent Crisis?/Judicial Solution?"

Tax Havens in Context

Craig M. Boise & Andrew Morriss, Change, Dependency, and Regime Plasticity in Offshore Financial Intermediation: The Saga of the Netherlands Antilles (Univ. Ill. Law & Econ. Research Paper No. LE08-020). Available at SSRN.
Allison Christians

Allison Christians

Craig Boise and Andrew Morriss have produced a fascinating account of the emergence and role of the offshore financial sector with this case study of the Netherlands Antilles—once a powerhouse, now struggling to stay alive in the global economy.  With places like the Antilles again in the political and media spotlight, cast in their now-familiar role as renegades in international society, I have long thought we were overdue for an account that carefully considers the view from these countries and provides the context we critically need to understand the dynamics between tax competition and economic development.  This article may well be the most accessible account of the complicated history that shaped U.S. policy toward a growing number of tiny islands with tiny populations and limited opportunities for economic vitality.

It is certainly the most thorough and thoughtful analysis I have encountered on the topic of why “tax havens” exist.  Boise and Morriss bring us on a lively tour through the history of the Antilles and its complicated relationship with the United States.  They use first-hand accounts and historical research to build a narrative that is decidedly different than the story usually told by those who emphasize the need for crackdown when cooperation cannot yield a mutually beneficial result.  For instance, it may surprise readers to learn that the rise of the Antilles as an offshore financial center occurred not as opportunistic banditry but as the result of a serendipitous confluence of factors, all of which served goals other than facilitating tax evasion.  You will have to read the paper to find out how the Antilles met a dire need for asset protection during World War II, and how it facilitated American access to the Eurobond markets at a time when the United States depended heavily on foreign borrowing for its economic success.  You will also need to read this paper to see why the crackdown on places like the Antilles will likely be as futile as it is harmful to the populations whose livelihood depends on their ability to facilitate transactions in the global economy. Continue reading "Tax Havens in Context"

Other Rights

Kurt T. Lash, A Textual-Historical Theory of the Ninth Amendment, 60 Stanford Law Review 895 (2008).
Pat Gudridge

Pat Gudridge

Kurt Lash starts with a well-known, seemingly minimalist reading of the Ninth Amendment’s content, maybe James Madison’s own.  Whatever rights we conclude the text of the United States Constitution recognizes are not the only rights extant – however originating – and constitutional interpretation should proceed consistently, acknowledge somehow these other rights.  “Other rights,” Lash thinks, include collective rights of self-government – the power of people, institutionalized in various ways, to decide for themselves the substance of the particular rights and duties organizing their legal relationships.  The Ninth and Tenth Amendments therefore appear to overlap, not just because of the accident of their identical concluding references to “the people,” but because, read together, they describe a joint specification of proper approaches to reading the remainder of the United States Constitution itself: specifications (“enumerations”) of rights and powers should be read as limited – their text should be read restrictively – in order to leave space for “other rights,” including the specifying power to define or not define particular rights and duties.  This last proposition, Lash asserts, applies to the Fourteenth Amendment in the same way that it does to any other federal constitutional specification of rights.  It may be that this amendment in several ways restricts the ability of state governments and peoples to define individual rights and duties, but it does not deny the primary ability of governments and peoples to engage in rights defining exercises, and therefore the restrictions that the Amendment sets should be read in as limited a way as possible in order not to render meaningless the possibility of continuing self-government.

This account of the Ninth Amendment and its implications may or may not fit well with the thinking of the drafters or ratifiers of the Amendment, the companion Tenth Amendment, and the Fourteenth Amendment.   Randy Barnett and Kurt Lash debate the matter in an exchange published in the same issue of the Stanford Law Review in which Lash’s principal discussion appears.  For present purposes, however, the key fact is the remarkably forceful bias that the juxtaposition of Lash’s Ninth Amendment and Tenth Amendments generates: not just suggestive of much of the signal jurisprudence of the late-Rehnquist Supreme Court; not just suggestive of an account of the motivation – the preoccupation with the idea of limitation – evident on the face of the Supreme Court decisions like Lochner and Hammer v. Dagenhart; but also (seemingly – Lash himself does not push his argument very far in this direction) a point of departure for a defense of the Court’s famous Fourteenth Amendment limiting opinions in its Slaughterhouse and Civil Rights decisions. Continue reading "Other Rights"

Financial Reeducation

Anna Gelpern, Financial Crisis Containment, 41 Conn. L. Rev. 1051 (2009).  Available at SSRN.

The financial crisis caught many unawares, and not just in their pocketbooks.  Those of us who do corporate law had been operating for ever so long under a paradigm favoring market control of corporate actors.  In so doing we familiarized ourselves with the financial economics of market success.  Market failure did not escape our view, however.  Between the standard objections to law and economics, the tech bubble of the late 1990s, and emerging literatures on behavioral influences on stock prices and pricing under heterogeneous expectations, we spent plenty of time writing about it and debating it.  But matters like total or near-total economic collapse and prudential regulation occupied the desks of only a handful of people – specialists on structured finance like Steve Schwarcz and banking experts like Pat McCoy, Dan Tarullo, and Arthur Wilmarth.  Lehman and TARP meant that the rest of us had some catching up to do, especially those of us who purport to know about finance.

Since last fall I have read a stack of papers and books about financial crisis, theoretical and historical.  Some of this has been old material, old here meaning publication before the fall of 2008, and some of it has been new.  But for the aforementioned colleagues, it has been the work of economists. Continue reading "Financial Reeducation"

Eclectic Decision Theory

Itzhak Gilboa, Questions in Decision Theory (August 2009).

Itzhak Gilboa is a prominent economist who has made large contributions to decision theory, including the theory of decisionmaking under uncertainty (as opposed to risk) and the use of case-based or analogical strategies of reasoning, both of which are important topics for legal theory.  In this unpublished paper, Gilboa offers a relatively informal and accessible overview of conceptual and empirical problems in and with decision theory.  Gilboa writes as a sympathetic and informed critic from within, rather than a hostile critic from without, which gives his analysis all the more weight.

Gilboa provides an introduction to five theoretical questions currently troubling the field: the status and nature of the rationality assumption, the meaning of “probability” and the limits of the Bayesian approach to probability, the meaning of “utility” and the relationship(s) between utility and notions such as well-being and happiness, the choice between rules and analogies as strategies of reasoning, and the problem of group decisionmaking, including the key question whether and when groups make better or worse decisions than the individuals who constitute them (“the wisdom of crowds” versus “the madness of crowds”).  All five sections are highly illuminating, but I will discuss only one, which is Gilboa’s treatment of probability and uncertainty.  The issues are central for legal and political decisionmaking, in which information costs are high and experiments – natural or otherwise – are usually unthinkable, so that certainty is rare. Continue reading "Eclectic Decision Theory"

Historians of the Singular: Lawyers, Judges, and the Work of Factual Construction

Gregory J. O’Meara, S.J., The Name is the Same, But the Facts Have been Changed to Protect the Attorneys: Strickland, Judicial Discretion, and Appellate Decision-Making, 42 Val. U. L. Rev. 687 (2008).   (BePress Draft Version; SSRN draft version)
Jonathan Simon

Jonathan Simon

Gregory J. O’Meara, S.J., an Assistant Professor at Marquette University Law School, has written a breakthrough article on role of fact interpretation in the judicial construction of criminal law rules that is likely to escape the attention of many criminal law teachers and practitioners who would benefit from it.   On the surface it purports to be a careful doctrinal analysis of the Supreme Court’s hidden expansion of the ineffective assistance of counsel doctrine, in defiance of the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA), 28 U.S.C. Sec. 2254(d)  (2008), prohibition on even the Supreme Court using Habeas cases to make new legal rules.   From Strickland v. Washington, 466 U.S. 668 (1984), to the most recent cases, Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374 (2005), O’Meara shows that the Court continues to express loyalty to the logic of the Strickland rule.   However, when the analysis is extended to the facts of recent cases, O’Meara shows convincingly that the Court has found relevant facts explicitly treated as irrelevant in Strickland.  Readers who get a bit farther in discover that the article is also a rather copious introduction to the late continental philosopher and theorist of narrative, Paul Ricoeur.   Unfortunately, neither of these highly technical subjects is likely to attract the general teacher or practitioner of criminal law, but this is precisely who should read the article.

Indeed, the discussion of AEDPA, as important as it is for capital lawyers, is really only a case study of a very important argument about the role of factual construction in legal change.   Drawing on the work of Anthony Amsterdam and Jerome Brunner, Minding the Law (2000),  O’Meara sets out to convince lawyers of something many practitioners appreciate but which law students (and teachers) strenuously resist, i.e., the idea that facts rather than law are primary craft of legal advocacy (or judicial construction).   As O’Meara compelling demonstrates with the Strickland line of cases is that rigid controls on law leave judges free to change norms by expanding their vision of relevant facts.   There are parallels with Mark Kelman’s classic article Interpretive Construction in the Substantive Criminal Law, 33 Stan. L. Rev. 591 (1982).   Kelman identified a number of techniques by which courts routinely rework facts, for example, time framing which stretches or shrinks the time frame in which the defendant’s actions are considered.   In this article, O’Meara reaches into the formidable and largely legally unplumbed depths of the late philosopher Paul Ricoeur, to develop a systematic analysis of how facts get changed.   Ricoeur analyzes the work of non-fiction writers as a three stage process.   The first stage is one of “documentation” in which a factual archive established.   The second stage is one of explanation, in which certain facts from this archive are selected.   In this process, a key dimension is the “scale” in which facts are framed.   Since scale in narrative can be subtle (unlike in architecture or engineering), narratives can be significantly shifted by resetting the scale (or density) with which facts are explained.   The third phase, that of narration, is where the scaled array of facts are connected with a set of “because” clauses which weave a causal story into them.   While many legal scholars influenced by Robert Cover have attended to the importance of narration, few have noticed the earlier work of scale setting which largely determines the range of causal explanations that will seem relevant.   By bringing out this missing dimension of narrative work, O’Meara has advanced a systematic understanding of fact exegesis in law. Continue reading "Historians of the Singular: Lawyers, Judges, and the Work of Factual Construction"

Straight Talk About Game Gods

Joshua A.T. Fairfield, The God Paradox, 89 B. U. L. Rev. 1017 (2009).

Joshua Fairfield’s The God Paradox takes an unambiguous normative proposition—that operators of online networks should operate those networks in ways that mirror common carrier principles—and justifies that proposition in unmistakably pragmatic terms:  Doing so may or may not make users of those networks better off, and may or may not make society better off.  But it will clearly make the operators themselves better off, because reducing their control over user behavior is likely to reduce their risks of liability.  That’s the “paradox.”  Indirectly, that approach will benefit users and society.

The article situates its “less control means less risk of liability” argument in the context of multiplayer online videogames and other virtual worlds, which are operated by firms that refer to themselves, in context, as “game gods”:  both formally and functionally, the operators claim the power to monitor and control all aspects of individual user or player experience, including both online behavior and communication with other users.  In part “game gods” justify this power in terms of maintaining the artistic and competitive integrity of the game environments.  That justification is not addressed in this article.  In part the “gods” justify this power in terms of self-interest:  Control reduces liability.  Maintaining an acceptably low risk of liability is essential to maintaining the gods’ incentive to supply the game environments. Continue reading "Straight Talk About Game Gods"

An Invitation to a Global Discussion on the Legal Profession

An invitation from the Legal Profession Section Editors
Tanina Rostain

John Flood and Tanina Rostain

As legal profession scholars have observed, law practice is being reinvented at an ever-accelerating speed the world over.  Legal services are being routinized, commoditized, outsourced, disaggregated, reassembled, computerized, and unbundled—among associates, law firm partners, solo practitioners, contract lawyers, paralegals, law consultants, temporary law workers, websites, and online shared platforms.  In the corporate realm, multinational companies demand that their lawyers be available to provide services 24/7 in every corner of the globe.  In the meantime, lawyers representing individuals, non-profits, and NGOs increasingly use new technologies and transnational resources and strategies to develop more effective and efficient models of service delivery.  Despite this rapid pace of change, many lawyer regulatory regimes lag behind and continue to hew to a model of regulation tied to geographical jurisdiction and domestic legal norms.

In recent years, the field of the legal profession has benefitted from a proliferation of research by scholars seeking to understand the many changing dimensions of the legal profession.  Researchers have drawn on a broad range of social science disciplines, methodological approaches, and multilingual proficiencies to investigate legal practice(s) in a wide variety of geographic settings. Continue reading "An Invitation to a Global Discussion on the Legal Profession"

Meet the Editors

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section.  In addition, each Section Editor will write at least one contribution (“jot”) per year.  Questions about contributing to a section ought usually to be addressed to the section editors.


Professor Alison Christians
University of Wisconsin School of Law Continue reading "Meet the Editors"

Meet the Editors

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (“jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.


Professor A. Michael Froomkin
University of Miami School of Law Continue reading "Meet the Editors"