Yearly Archives: 2010
Aug 12, 2010 Ekow YankahJurisprudence
The common complaint that the distinction between Kant’s moral and legal philosophy is unknown is not strictly true. Many engaged in legal philosophy have encountered, time and again, the reminder (or admonition) to treat with care the distinction between Kant’s ethics and the rechtlehre. Further, Kant’s political philosophy has been the subject of many fine books over the last quarter century. What is difficult, rather, is to keep the distinction foremost in one’s mind when the philosophical heat, so to speak, is turned on. Well intentioned, one notes the critical distinction between the purity of a will acting on moral reasons undergirding Kant’s ethics and the preservation of equal external freedom on which Kant’s political philosophy is based. Yet when thorny questions are leveled, it is too easy to slip into familiar groves, weighing whether an action is appropriately prohibited by measuring its legitimacy against, say, the Categorical Imperative.
One problem, I suspect, is the lack of a text, close at intellectual hand, which has carefully explored Kant’s political philosophy and explicated its branches in a wide range of subject matters. Arthur Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy could by its intelligence, clarity and ambition fundamentally arrest and repair the sloppiness with which Kant’s political and moral philosophy are too often jumbled. Continue reading "The Moral Within, The Law Without"
Aug 9, 2010 Alex B. LongWork Law
Mark C. Weber,
Unreasonable Accommodation and Due Hardship,
Fla. L. Rev (forthcoming 2010), available at
SSRN.
The ADA Amendments Act of 2008 made significant changes to the Americans with Disabilities Act’s definition of “disability.” As a result, judges, practicing lawyers, and academics are now trying to figure out what those changes really mean in practice. One aspect of the ADA that Congress left largely untouched, however, is the statutory language concerning the reasonable accommodation and undue hardship requirements. Arguably, this failure to act is unfortunate in light of the fact that more individuals will now be able to claim disability status under the ADA than before, thus forcing courts and employers to consider whether these individuals are entitled to an accommodation and, if so, whether their requested accommodations are reasonable. As it stands now, the statutory language and decisional law are hardly models of clarity.
Professor Mark C. Weber attempts to provide some clarification with his latest article Unreasonable Accommodation and Due Hardship. Weber’s main argument is that Continue reading "Is There An Unreasonable Accommodation? Is There A Due Hardship?"
Aug 5, 2010 María Pabón LópezTrusts & Estates
Kevin Noble Maillard,
The Color of Testamentary Freedom, 62
SMU L. Rev. 1783 (2009), available at
SSRN.
This work of recent scholarship in the field of wills law and legal history is an excellent and thought provoking piece and anyone interested in a critical analysis of race in its historical context should read it. This article is quite special and well worth reading for its detailed archival research and its innovative analytical approach. It is a welcome addition to the legal scholarship that studies the influence of race in the United States legal system, particularly in the area of Trusts and Estates.
In this beautifully written and thoroughly researched article, Kevin Noble Maillard, an Assistant Professor at Syracuse University College of Law and the Director, Angela Cooney Colloquium for Law and Humanities brings to bear his knowledge of Critical Race Theory, and Critical Legal Studies into the realm of the law of wills.
Professor Maillard initially observes how wills in which the main devisees are nontraditional close family members of the testator pose tremendous challenges to courts that have to decide the posthumous wishes of the testator. This is even more the case when these wills have excluded collateral heirs. He then points out that the collateral heirs who object to will provisions where the bequests to the nontraditional family members seem to expand the definition of the testator’s family stand to benefit from the tension between testamentary freedom and the social deviance of the family. In such instances, courts may privilege the interests of collateral heirs to the detriment of the nontraditional close family member. These nontraditional close family members are usually the unmarried cohabitant and nonmarital children of the testator, often of a different race than the testator. In Professor Maillard’s view, wills with nontraditional family devisees act as evidence of moral or social transgressions, such as interracial sex and extramarital reproduction. This may be a reason why such wills are often subject to will contests by collateral heirs, who aim to use their white privilege and legitimacy status to overcome the clear intent of the testator. Continue reading "A Critical Race Theory Analysis of the Influence of Race in 19th Century will contests"
Aug 2, 2010 Sara StadlerIntellectual Property Law
Mark A. Lemley & Mark P. McKenna,
Owning Mark(et)s,
Stanford Law and Economics Olin Working Paper No. 395 (May 2010), available at
SSRN.
There’s nothing like the realpolitik of copyright to push you into the arms of trademark law (see Dotan Oliar on Bill Patry, supra), but as Mark Lemley and Mark McKenna reveal in Owning Mark(et)s, there’s plenty of corporatism at work in the evolution of trademark law, too. Lemley and McKenna don’t put it that way, and they probably wouldn’t. But it’s hard to read Owning Mark(et)s without reflecting on how thoroughly legal rules are changing to favor the great and powerful, whose primary goal, as ever, is to foreclose markets to new entrants—including markets that the great and powerful haven’t entered.
Knowing that it doesn’t pay to be a bully, trademark owners have styled themselves victims of junior users who, in using established marks in “unrelated” markets, “are mere free-riders, reaping where they have not sown.” This may sound appealing, but trademark rights are supposed to flow from use in trade. One who hasn’t entered a market isn’t supposed to “own” it. As Lemley and McKenna write, “[t]he idea that a mark owner is harmed because a defendant interferes with its ability to expand operates on a presumption that the mark owner ought to have the right to expand without interference.” But the trademark owner doesn’t have that right unless the law says it does. This is the circularity that “seems to have carried the day in copyright,” and as Lemley and McKenna demonstrate, it’s transforming trademark law, too, as courts give trademark owners priority in markets that their trade hasn’t entered, but to which it might conceivably extend. Continue reading "Marks on Marks"
Jul 29, 2010 Charlotte CraneTax Law
The Virginia Tax Review always includes something that I end up chewing on for far longer than I expect to, and the most recent number to cross my desk (Spring 2009) is no exception. It includes a piece entitled The Recovery of Unlawful Taxes by Jacob Nussim of the Bar-Ilan Law faculty in Israel. The piece is an English language version of work that apparently has appeared in Hebrew, and a technical version of the piece has been available on SSRN for a while now. But the food for my thoughts is all in the readily accessible VTLR version.
Issues relating to refunds of illegal taxes have reemerged recently, at least in the federal system. First came the government’s defeat in the International Court of Trade in the Harbor Maintenance Tax litigation in the 1990’s, and then came continuing litigation despite the government’s recent concessions regarding the Telephone Excise Tax. Neither case involved major threats to the fisc, but both involve potentially significant changes in the procedural rules that historically have discouraged taxpayers from pursuing claims that federal taxes were unlawfully collected. If Congress is forced in the coming years to invent new tax instruments, the ground rules for handing challenges to these new tax instruments will become increasingly important. Continue reading "Who’s Left With the Money?"
Jul 26, 2010 Ian KerrTechnology Law
Jennifer A. Chandler,
The Autonomy of Technology: Do Courts Control Technology or Do They Just Legitimize its Social Acceptance?, 27
Bull. Sci. Tech. & Soc. 339 (2007), available at
SSRN.There’s this feeling I sometimes get browsing law review articles. It happens, like, once or twice in a decade. When it happens, I am so utterly struck by an article’s hypothesis that its supporting arguments practically fall by the wayside. Not because those arguments aren’t important or convincing. Ultimately, they are crucial. But, on rare occasions, the arguments are eclipsed by the author’s incredible insight in the formulation of the research question itself. This feeling that I am describing is the academic’s equivalent to a Jerry McGuire moment.
And, let me just say, Jennifer Chandler’s “The Autonomy of Technology” had me at hello. Continue reading "Juridical Delusions of Control?"
Jul 22, 2010 Sida LiuLegal Profession
When one of the world’s leading authorities on the legal profession writes about the demise of law firms, we should pay some good attention to it. Arguably, the financial crisis in 2008 changed the mindset of many law firm partners and their associates around the world, but to what extent? What lessons can law firms learn from this abrupt downturn after years of expansion both domestically and abroad? John P. Heinz’s article offers insights on the reasons of corporate law firms’ continuous expansion in the past decade and why their developmental strategies led to the failure of many firms in the financial crisis.
Large corporate law firms, despite their variations in areas of practice and professional expertise, follow similar strategies in their management. As Heinz points out, competition among law firms was heightened in the late 20th century by ready access to comparative data concerning the business of the firms. As a result, “profits per partner” has become the single most important statistic in evaluating a law firm’s performance. Indeed, a law firm chairman even described it as “our stock price” (p. 69). Heinz argues that this unitary evaluation standard has led to risky strategies in recruiting/eliminating partners and diversifying practice areas, with the goal of getting a profits per partner “higher than the next firm’s” (p. 70). When the corporate law market was booming, firms often had enough profit margins to afford those risky strategies, such as focusing on high-value financial transactions work. But now, the negative consequences are clearly seen in many large law firms across the world. Continue reading "Lessons for the Survivors"
Jul 19, 2010 Joanna GrossmanTrusts & Estates
Melanie B. Jacobs,
More Parents, More Money: Reflections on the Financial Implications of Multiple Parentage, 16 Cardozo Journal of Law and Gender 217 (2010), available on
SSRN.
The increasing complexity of family formation poses many challenges for law. When as many as five adults could be involved in the production of a single child – egg donor, sperm donor, gestational mother, intended mother and intended father, to take just the example of a complex surrogacy – we have to at least consider the possibility that some of our traditional rules are outdated. Melanie Jacobs has written several pieces in which she considers whether the “two parent” rule is one of those outdated rules. In this piece, she considers the financial implications of “multiple parentage,” including the implications for inheritance. Why limit a child to two parents when additional ones may bring important financial as well as emotional resources to the table?
Courts and legislatures have, when given the opportunity, virtually all reaffirmed the rule that a child can have no more than two legal parents. Thus, the Supreme Court ruled in Michael H. v. Gerald D. against granting legal parent status to the biological father of a child conceived in adultery. The mother’s husband was conclusively presumed to be the child’s father under California law, and due process did not require that the biological father be given a formal role in his daughter’s life, even though he had acted as a parent for a significant period of time. In a telling sentence, which Jacobs quotes, Justice Scalia writes that “law, like nature itself, makes no provision for dual fatherhood.” And in numerous other cases, a third party with significant ties to a child – and, often, a significant role in planning for the child’s conception and birth – is ruled the odd man out. Sometimes the excluded party is a lesbian partner who co-parented a child who has a legal father (and thus a second parent); sometimes it is a biological father, as in Michael H., whose rank in the parental hierarchy is trumped by another man’s claim to legal or presumed fatherhood; sometimes it is a former stepparent who engaged in substantial childrearing while married to the child’s mother or father; and sometimes it is one or more parties to a surrogacy, which, like the one described above, may entail the participation of as many as five different adults. Continue reading "Dual Parenthood and Inheritance Problems"
Jul 15, 2010 Kerri StoneWork Law
Professor Danielle Citron has authored an important piece that calls for the condemnation of cyber gender harassment. Often downplayed or minimized, this problem, according to Citron, is merely the most recent iteration of abuse perpetrated against women, but inadequately documented, discouraged, and combated. Like domestic violence and sexual harassment before it, cyber gender harassment is in danger of being underestimated until too much harm has already been conferred upon the personal and professional dignity, access, and safety of women everywhere. Decrying the law’s failure to identify the harms that uniquely target and affect women, Citron laments the transmission of a signal by the law that the oppression of women through this kind of abuse is somehow tolerable. Citron is one of the foremost and earliest scholars to call for a cyber civil rights agenda that would explicitly identify cyber harassment as gender discrimination. Her emphasis on the uniqueness of the harm that flows to women from a practice that while abhorrent, might typically be regarded as gender neutral, is of particular note, and her admonition that the law ought to educate society about this harm to effect societal reform is powerful.
This piece builds on a previous work of Citron’s, Cyber Civil Rights, 89 BULR 61 (2009), which examined the ways in which the law acts to deter and penalize online abuse. Citron now calls upon the law to recognize the unique harms that cyber harassment confers on women as individuals and as a protected class, as well as to root out and to eradicate this phenomenon. As examples of online harassment directed against women, Citron discusses, among others, cyber threats, depictions of violence against women, the publication of victims’ personal information, and attacks launched against feminist blogs and websites. She recalls the disproportionate number of female victims of this harassment and the very frequent implication of female victims’ genders by their explicit mention in the taunts and threats of harassers. As to what should be done about this problem, Citron suggests that extant civil rights legislation can be employed to fill in some of the compensatory and other gaps left open by traditional criminal and tort remedies for cyber harassment. Indeed, invoking caselaw from the 1960s, she boldly posits that Title VII of the Civil Rights Act of 1964 can be invoked when attackers and harassers prevent women from making a living on the basis of their sex. Continue reading "Policing the new Frontier of Workplace Discrimination"
Jul 12, 2010 Aya GruberCriminal Law
Alice Ristroph,
How (not) to Think Like a Punisher, 61
Fla. L. Rev. 727 (2009), available at
SSRN.
As an undergraduate philosophy student, Kantian metaphysics rocked my world. Kant’s account of human cognition as a priori and synthetic and his forging of complex epistemological theory from that metaphysical observation were like poetry to me. Further, Kant’s ethical theory seemed like the only one based on more than just an arbitrary first principles or a posteriori human instincts about right and wrong. Rather, Kant based his moral imperative on noncontradiction, which itself comes from the necessary conditions of cognition. What could be more reasonable than a moral program based on metaphysical observations about the human condition? Accordingly, I embraced retributivism with an almost zealous fervor. It was so clean―as logical as the symmetric property of equality: Punishment should be given to those who deserve it. Thus, those who deserve it should be punished.
As I moved from undergrad to law school to the public defender’s office to academia, I continued to be a Kantian. I continued to believe that the very notion of justice was embodied in the principle that we punish those who deserve it as much as they deserve. I attributed the mass injustice of the American penal system to the retributive failings of criminal justice actors. In short, moved by political concerns, legislators, prosecutors, and judges supported severe sentences, despite the fact that most thoughtful people could recognize that such sentences were undeserved. If only these state actors could be better retributivists, the problems of disproportionate sentencing and skyrocketing prison population would be solved. Continue reading "The False Promise of Retributive Proportionality"
