Yearly Archives: 2009

Europe’s Competition Regulators Force its Bar Associations to Reform

Laurel S. Terry, The European Commission Project Regarding Competition in Professional Services, 29 Nw. J. Int’l L. & Bus. (forthcoming 2009), available at SSRN.

I have a personal reason for reviewing Laurel S. Terry’s account of the European Commission’s recent investigation into the European professional services market. As a former senior writer on The European Lawyer magazine, I was a first-hand witness to many of the events described in her paper, including the 2003 Brussels conference she mentions.

The main purposes of Professor Terry’s paper is to describe an ongoing EU initiative, which has the stated aim of making Europe’s professions– including its legal professions–more efficient and competitive. In all likelihood, the end result of the events described in Terry’s paper will be that many of Europe’s bar associations will be forced to liberalize their regulatory frameworks. What is more, she believes that, in an increasingly globalized world, other countries may decide to follow Europe’s lead. She fears such countries may decide to conduct their own investigations into their professional services markets, using a similar methodology to that employed by the EU. Continue reading "Europe’s Competition Regulators Force its Bar Associations to Reform"

The Fact of the Matter

Frederick Schauer, Facts and the First Amendment, 57 UCLA L. Rev. —- (forthcoming, 2010).   Available at SSRN.

“Facts,” the songwriter David Byrne once observed, “all come with points of view.” Americans, Frederick Schauer adds, credit any number of “facts” with points of view. President Obama is not “President” Obama, but a constitutionally ineligible interloper born in Kenya. President Bush was hardly surprised by the 9/11 attacks, given that his government either staged them or had advance warning of them. And so on. The same phenomenon is observable across the world. There surely are “facts” about the conduct of the Israeli military and Hezbollah in Lebanon, or the proper treatment for AIDS in South Africa, but they are hedged round with points of view, some sensible and some lunatic. That there is a fact of the matter Schauer does not doubt; but there is today, he says, an apparent “increasing and unfortunate acceptance of factual falsity in public communication.”

What will be more surprising to many is that facts are so poorly accounted for in First Amendment law. The First Amendment and its jurisprudence and scholarship are startlingly reticent on questions of factuality and falsity. This is the subject of Schauer’s recent Melville B. Nimmer Memorial Lecture, Facts and the First Amendment, delivered this past October at UCLA Law School. (Or so I assume!) Schauer does not seek to fill in all the gaps and provide a detailed First Amendment theory of facts. Instead, he argues that the First Amendment’s inability to deal directly with these concerns is a symptom of its “smallness” – of the extent to which many of the questions that are seemingly central to the law of free speech lie outside its boundaries and in the realm of “politics, economics, and sociology” whose dimensions “are far more important than the legal and constitutional ones.” Continue reading "The Fact of the Matter"

Trademark Use on the Loose

Mark P. McKenna, Trademark Use and the Problem of Source, 2009 U. Ill. L. Rev. 101 (2009).

Not all uses of a trademark constitute trademark use. It is this proposition that brings consternation and confusion to courts and legal scholars alike. Mark McKenna looked into this abyss, the abyss looked back at him, and neither liked what they saw: a pitched but ultimately unhelpful ongoing debate about the “trademark use” doctrine. And so he sought to shrink this chasm with insightful analysis.

The abstract for Mark P. McKenna’s recent article Trademark Use and the Problem of Source is as follows: Continue reading "Trademark Use on the Loose"

Third Parties to the Rescue

Michael Risch, Virtual Third Parties, 25 Santa Clara Computer & High Tech. L.J. 416 (2009).

Michael Risch’s Virtual Third Parties, 25 Santa Clara Computer & High Tech. L.J. 416 (2009) tips the scales at a mere eleven pages—but it punches far above its weight class. He gives a clear and straightforward reading of third-party beneficiary doctrine in contract law to put a new spin on old problems of online power.

Risch’s subject is virtual worlds, where the immense technical power of the world’s provider is so well-recognized that it has its own shorthand name: the “God Problem.” If Blizzard wants to exile you from World of Warcraft, confiscate everything you own in-world, or stick your avatar in the stocks, their control over the servers lets them do it with a few keystrokes. Your avatar’s arms are never going to be long enough to box with a game god whose software controls arm length. Continue reading "Third Parties to the Rescue"

The Economic Roots of Domestic Violence

Deborah Weissman, The Personal is Politicaland Economic: Rethinking Domestic Violence, 2007 B.Y.U. L. Rev. 387 (2007).
Donna Coker

Donna Coker

Deborah Weissman has made an important contribution to the debate in domestic violence and criminal justice scholarship regarding the current focus on criminal justice system responses to domestic violence. Her article seems particularly timely in light of the current   economic crisis.

A number of legal scholars have criticized US domestic violence policy for its singular focus on criminal law narratives and criminal justice responses. This focus obscures the social and economic forces that increase the incidence of domestic violence and that magnify women’s   vulnerability to violence. Further, mandatory arrest and no drop prosecution policies enacted in many jurisdictions have negative secondary effects for some victims and, in the case of unemployed batterers, may actually increase recidivism rates. Continue reading "The Economic Roots of Domestic Violence"

Welcome to Jotwell

Welcome to Jotwell: The Journal of Things We Like (Lots). Here you will find leading academics and practitioners providing short reviews of recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience.

Jotwell is a special type of law review housed on a set of inter-linked blogs. As a law review, Jotwell has only one mission: to bring to readers’ attention great recent scholarship related to the law. As a blog we invite your comments, and hope that some of our reviews will spark a conversation.

On the Jotwell main page you should expect new content once or twice a week, although as we add more sections contributions may become more frequent. Each of the subject-specific sections will have something new at least once a month. In any case, every time a new review appears in any of the subject-specific sections, an excerpt with a link to the full text will also appear here on our front page at

There are three ways to read Jotwell.

  1. You can visit this page, the main Jotwell site, which aggregates all the sections; or you can sample just the sections you like, choosing from the list in the right column.
  2. If you use a newsreader, you can sign up for the RSS feed for the main Jotwell section, or select among the feeds for the subject sections by choosing the link to the RSS feed found in each section.
  3. Or, if you prefer to get your updates by e-mail, you can click here to request a message every time we have new article, or click on the email link found in every subject section for a more tailored, and less frequent, reminder.

Please send your comments and suggestions, and do feel free to comment on the articles as well. We hope you will make Jotwell part of your regular reading and that you will find things you like (lots).

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"

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