Yearly Archives: 2010
Oct 18, 2010 Michael J. ZimmerWork Law
Back in the day, comparative law as taught in most U.S. law schools meant a comparison at quite the abstract level of the civil law and common law systems. While still interesting and valuable, that rather limited approach has been bolstered by approaches that look to specific areas of law within those two more general legal systems. Within the current thrust of comparative scholarship, there are two schools. One is to start with an area or subject of law and then find and compare the laws of the different countries on that particular subject. The second approach is to start with a country and then find the particular subject of interest so that it can be better understood within the specific context of that country.
A problem with the first approach is that it is formalist. Looking at the laws so abstractly leaves them decontextualized. The “law in action” in any particular country may be surprisingly different from what the words suggest or what those words mean in action in different jurisdictions. The second approach emphasizes the significance of context: the culture, politics and economy of the countries examined. With that base, then a specific law or area of the law can be much more completely understood. An example will show the difference between the two approaches. Utilizing the first approach in trying to learn about the Mexican Constitution, you would read it and, based on the language, would predict that the governmental structure in Mexico is much like that in the U.S. because the Mexican Constitution was modeled on our Constitution. Both are organized horizontally at the national level with a separation of powers structure and vertically with a federal system. The second approach would look at the Mexican Constitution in action and conclude that the governmental structures of the two countries have been quite different, notwithstanding the similarity in the structure supposedly established in the two constitutions. At least until the turn into the 21st Century, governmental power in Mexico was essentially concentrated in the hands of one person, the President, who was in effect a term limited absolute monarch. Continue reading "Conceptualizing Comparative Labour Law"
Oct 15, 2010 Jack BeermannAdministrative Law
One of the secrets to scholarly success is picking interesting topics. It also helps if your analysis makes an interesting topic even more interesting. That’s exactly what Matthew Stephenson and Howell Jackson have done in their essay Lobbyists as Imperfect Agents: Implications for Public Policy in a Pluralist System, 47 Harv. J. Legis. 1 (2010). In this well-written and engaging essay, Stephenson and Jackson describe how principal-agent problems manifest themselves in the lobbying context and hypothesize on how these manifestations might affect public policy outcomes.
Wherever there are principals and agents, there are principal-agent problems, but the lobbying context is not one that readily comes to mind as infected by a serious problem. Lamenting that principal-agent problems in the lobbying context have not received the attention they deserve, Stephenson and Jackson demonstrate that lobbyists are far from perfect agents and that the principal-agent slack in the relationship has serious consequences for lobbying’s public policy outcomes. Continue reading "Imperfect Principals and Lobbyist Agency Costs"
Oct 13, 2010 James GrimmelmannTechnology Law
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"
Oct 11, 2010 Michael YuTrusts & Estates
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"
Oct 8, 2010 Kimberly FerzanCriminal Law
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"
Oct 6, 2010 W.A. EdmundsonJurisprudence
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"
Oct 4, 2010 Angela Onwuachi-WilligWork Law
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?"
Sep 30, 2010 Laura HeymannIntellectual Property Law
In his most recent article, Barton Beebe provides a typically sophisticated and rich analysis of the ways in which intellectual property law is used to reinforce exclusivity, much as sumptuary laws have done throughout history. Such laws, by regulating the fashions of the citizenry, enacted a dialogue about distinction and group identity, in which those permitted to wear certain costuming could communicate to others their inclusion in a particular class. Sumptuary laws accomplished formally what now sometimes occurs through more vague forces of collective action: the price of a designer handbag forecloses wide adoption (until its double becomes available at Target), and limited editions of collectibles ensure that the competition for exclusivity is played out openly. The same processes take place in the noncommercial realm: the names given by those in higher socioeconomic classes to their children, for example, trickle down over time to parents in lower socioeconomic classes with particular aspirations for their children, thus diluting the prestige of the name among the wealthy, who then abandon it in the next generation.
The importance of a system of distinction is not necessarily, Prof. Beebe notes, tied to a desire for superiority or opposition, although presumably at least some individuals are so motivated. Rather, a level of “optimal distinctiveness” allows individuals to construct their own identities while affiliating with other individuals who share their interests. (Indeed, in some cases, these affiliations coalesce around a message of “counterconformity” that rejects the hierarchy created by status goods, thus resulting in, ironically, a new mode of conformity that further contributes to the clamor of voices all proclaiming themselves to be different.) And for some consumers, close enough is good enough: so long as a handbag appears to others to be a designer brand and doesn’t fall apart on repeated uses, it serves both the purpose of holding one’s personal items and the purpose of signaling one’s place in the social and economic hierarchy — as Prof. Beebe phrases it, it represents relative utility, if not full absolute utility. Continue reading "Distinction With(out) a Difference: Attribution’s Challenge to Intellectual Property Law"
Sep 30, 2010 Kevin E. CollinsIntellectual Property Law
If you ever find that your reading in the field of intellectual property is becoming repetitive, or if you feel you’ve already cataloged all of the different cookie cutters that are commonly used to stamp out contemporary scholarship, then here’s what you should do: sit down to read Barton Beebe’s Intellectual Property and the Sumptuary Code and enjoy the ride. It’s not exactly conventional beach reading for the dog days of August, but Beebe does build an intricate sand castle—he articulates a highly original thesis concerning the social function that certain trademark-related doctrines are playing in contemporary society—both expecting and hoping that it will soon collapse under its own weight.
For those of you who, like me, are not entirely literate in the history of fashion, a sumptuary law is a law that regulates luxury expenditure and enforces social hierarchy. (P. 810.) A sumptuary code, in turn, is roughly the social-norm analog of a sumptuary law. It is a semiotic system of consumption practices through which individuals send signals about their differences and similarities. (P. 812.) And unlike sumptuary laws, which have largely disappeared, sumptuary codes are very much alive and well. Continue reading "Consumption-Based Distinctions Consuming Themselves: The Rise and Fall of Intellectual Property as the Enabler of a Sumptuary Code"
Sep 27, 2010 Cary CoglianeseAdministrative Law
E-government initiatives by both political parties have sought to broaden citizen participation in the policy process. The Clinton Administration made early forays into digital government, and the Bush Administration pursued still more substantial efforts by establishing the portal known as Regulations.Gov. The Obama Administration has launched a major Open Government Initiative that seeks to foster unprecedented levels of transparency and expand participation to counteract the undue influence of the much-castigated “special interests.” Will e-government efforts like these transform American democracy as proponents sometimes suggest? The Internet’s ability to strengthen public engagement in the policy process remains an open – ultimately empirical – question. The early returns, from the late 1990s and early 2000s, appeared rather modest. As of at least four years ago, the clear weight of the evidence showed that most agency rulemaking escaped participation by ordinary members of the public – even following the advent of the Internet. Of course, in this fast changing world, a few years can make an enormous difference. Over the past several years, we have witnessed not only the emergence of Web 2.0 but also the extensive use of the Internet by political candidates, especially Barack Obama in 2008.
A study in the most recent issue of the journal Perspectives on Politics, however, finds little has changed, confirming that the Internet has yet to transform policymaking and politics into a more egalitarian, citizen-centric process. In “Weapon of the Strong? Participatory Inequality and the Internet,” three distinguished political scientists – Kay Lehman Schlozman (Boston College), Sidney Verba (Harvard), and Henry Brady (UC-Berkeley) – analyze data from one of the most systematic surveys to date on the Internet and public participation, concluding that information technology has made virtually no difference in general patterns of political participation. Their representative survey of over 2,200 Americans, conducted in August 2008 in cooperation with the Pew Foundation’s Internet and American Life Project, tracked both online and offline citizen participation in politics and policymaking. Continue reading "E-Government and Inequality in Public Participation"
