Monthly Archives: October 2010

Good Faith Scholarship

Joseph Michael Reagle Jr., Good Faith Collaboration: The Culture of Wikipedia (MIT Press, 2010).

There is a distinctive NYU School of Internet studies: philosophically careful, intellectually critical, rich in detail, and humanely empathetic. Its unofficial dean is Helen “values in design” Nissenbaum; her colleagues and students have included Siva Vaidhyanathan, Michael Zimmer, Gabriella Coleman, Alexander Galloway, and Gaia Bernstein. Almost none of them are lawyers (Seton Hall’s Bernstein being the notable exception), but their work speaks to those of us who are.

One of the most recent additions to the NYU School is Joseph Reagle, who received his Ph.D. in Media, Culture, and Communications in 2008 and is now a fellow at Harvard’s Berkman Center. His new book, Good Faith Collaboration: The Culture of Wikipedia (MIT Press, 2010) is an ethnography of Wikipedia, a modest, beautiful book that analyzes the site’s “good faith collaborative culture.” Reagle offers an extended reading of how this culture emerges from the interplay of ideology, technology, and social practice. Continue reading "Good Faith Scholarship"

Estate Taxation of Reversions

F. Philip Manns, Jr., New Reasons to Remember the Estate Taxation of Reversions, 44 Real Prop. Tr. & Est. L.J. 323 (2009), available at BePress.

Professor F. Philip Manns, Jr.’s article, “New Reasons to Remember the Estate Tax of Reversions,” might have been cheekily (but not inappropriately) titled, “Everything You Really Need to Know about the Estate Tax of Reversions.” A reversion, per Professor Manns, “exists whenever a transferor transfers less than all she owns.” (footnote 12 at P. 327.) In its first main part, the article focuses on how a reversion can arise not only from the transferor’s intent but also from inartful drafting and even by statute or common law decision; in its second main part, the article addresses the gift and estate tax treatment of reversions (however they are created).

Among the many strengths of the article, perhaps its most significant contribution to the existing literature is Professor Manns’ detailed explanation of how to calculate, for purposes of Internal Revenue Code sections 2033 and 2037, the value of a transferor’s reversion. Professor Manns indicates that “no case law, administrative pronouncement, or commentary instructs people how to make such calculations.” (P. 354.) Many sources address the calculations by referring the reader to Revenue Ruling 76-178, 1976-1 CB 273. But that Revenue Ruling merely gives answers without any explanation. In his article, Professor Manns explains the required “probability theory and life contingency actuarial mathematics” (P. 354.) and then impressively provides sample calculations showing all of his work. Continue reading "Estate Taxation of Reversions"

Shining the Light on Negligence

George Sher, Who Knew?  Responsibility Without Awareness (Oxford University Press, 2009).

I’m no fan of punishing the negligent.  Here are a few reasons.  First, when a negligent actor fails to notice, remember, and the like, she lacks the requisite control over her failure.  Her consciousness is not directed to the risk, and thus, she can control her failures only indirectly by, say, taking a prior action to remember.  Second, the reasonable person strikes me as a worrisome construct.  How do you craft the idealized vantage point?  Third, because we are always forgetting, failing to notice, or underestimating risks all the time, these behaviors exhibit no moral defect.  These failures have myriad causes, including the lack of background beliefs, momentary or permanent incapacities, or lack of motivation.  And, we need arguments for why those prior failures are blameworthy.  Notably, although some criminal law theorists defend punishing the negligent, almost no one wants to punish every actor who falls below some objective standard.  Rather, proponents often seek to narrow negligence’s reach to only the “culpably indifferent” and not the stupid and the clumsy.  Yet, we are not given a fair basis for drawing this distinction.

Enter “Who Knew?”  George Sher’s book defends that we can be responsible without being aware.  Although I do not believe that this book ultimately undermines my concerns about punishing the negligent, it refines the state of the debate.  It is beautifully argued and carefully constructed.  Criminal law theorists truly ought to read this book.     Continue reading "Shining the Light on Negligence"

“When Is Using a Firearm Not Really?” — An Eminent Philosopher of Language Helps Us Decide

Philosophers of law and philosophers of language used to hang out together more.  H.L.A. Hart spent Saturday mornings over at J.L. Austin’s in the 1950s and 60s, hashing out questions of meaning and usage with Paul Grice.  Hans Kelsen did not think much of Wittgenstein, but in the 1920s he chummed around with Moritz Schlick, Otto Neurath, and other members of the celebrated Wiener Kreis, the Vienna Circle of philosophers who were making the analysis of language a foreground concern.  But, as the twentieth century wore on, practitioners of the two specialties wandered apart.  For thirty years on, legal philosophers have tended to dwell on somewhat inward debates over legal positivisms and postscripts thereto, while philosophers of language have been on a great hunt for a semantics of natural languages generally, which has led them to investigate things like naming, reference, and the truth conditions of modal and counterfactual statements.  True, the philosophers of law have tried to keep up with the philosophers of language; but, the philosophers of language with the philosophers of law?  Not so much.  There’s no shortage of legal philosophy that purports to say what philosophers of language would say about law, but next to nothing directly from philosophers of language about law.  Are we legal philosophers getting it right?

The silence from the other side of the table made me uneasy.  So I was excited to run across this essay by Scott Soames.  Soames is Director of the School of Philosophy at USC, where he can lunch with Andrei Marmor, the distinguished philosopher of law.  The essay is the concluding chapter of the first volume of Soames’s collected essays, most of which have to do with technical topics in philosophy of language.  The Introduction to the volume is a useful preliminary survey of his views of such things as why linguistic structures aren’t likely to map onto the psychological substructures of linguistic competence, and the respective roles of semantics and pragmatics, as reflected in his “least common denominator” view of semantic content.  At the end of the Introduction, Soames pauses to reminisce: Continue reading "“When Is Using a Firearm Not Really?” — An Eminent Philosopher of Language Helps Us Decide"

The Road to Virtual Equality?

Miriam A. Cherry, A Taxonomy of Virtual Work, 44 Ga. L. Rev. __ (forthcoming 2010), available at SSRN.

What if there was no “place” in the “law of the workplace?”  In her article A Taxonomy of Virtual Work, forthcoming in the Georgia Law Review, Professor Miriam Cherry asks this provocative question, considering the ways in which the law might change to keep pace with the changing realities of work, including virtual realities.  In so doing, Cherry writes an important, cutting-edge piece that helps to ignite a much needed conversation on how law may not only keep up with changing forms of discrimination but also the changing worlds in which discrimination may occur.

The increasing prevalence of what Cherry terms “virtual work” has profound implications for labor and employment law.  As Cherry describes, millions of people worldwide supplement their incomes, entertain themselves, or do both simultaneously by meeting with fellow employees in virtual worlds such as Second Life, solving complicated problems on websites like Innocentive, or casually “clicking” to make money for simple tasks on Amazon.com’s Mechanical Turk.  Cherry argues that these activities are far more than “games” or “pastimes,” and that these “virtual jobs” allow many to work in cyberspace to pay their rent in reality.  Because she is seeking to classify all of the ways that technology influences worklaw, Cherry discusses whistleblowing, harassment, and disability law.  In more depth, she also treats the issues of minimum wage protections, virtual unionization, and employment discrimination in cyberspace. Continue reading "The Road to Virtual Equality?"