Monthly Archives: January 2011

Banana Republic.com

Jonathan Zittrain, Ubiquitous Human Computing, Phil. Trans. R. Soc. A, vol. 366 no. 1881 3813-3821  (28 October 2008).

A banana usually sells for about 30 cents.  On average, the plantation owner gets 5 of those cents; the shipper, 4 cents; the importer/ripener, 7 cents; and the retailer, 13 cents.  That leaves one penny for the worker who picked the banana.  Fruit economics helps drive the politics of “banana republics:” as the unpaid laborers and netizens at Wikipedia note, such countries are “politically unstable,” “dependent upon” commoditized crops, and “ruled by a small, self-elected, [and] wealthy . . . clique.”  Oligarchs at the top set the direction of society; workers merely play the roles assigned them.  Truth doesn’t matter much; as Paul Krugman noted, one political party promised voters to save money on gasoline by “building highways that ran only downhill.”

Commentators have begun to wonder if the United States is becoming a banana republic.  Nicholas Kristof concludes that “You no longer need to travel to distant and dangerous countries to observe . . . rapacious inequality. We now have it right here at home.”  Chronicling endless financial industry shenanigans, critical finance blogger Yves Smith seems to label every third post “banana republic.”

Wasn’t the internet supposed to solve these problems? Wouldn’t a “wealth of networks” guarantee opportunity for all, as prediction markets unearthed the “wisdom of crowds?”  It turns out that the net, while mitigating some forms of inequality in the US, is accelerating others.  Jonathan Zittrain’s essay “Ubiquitous Human Computing” examines a future of “minds for sale,” where an atomized mass of knowledge workers bid for bite-sized “human intelligence tasks.”  Zittrain explores some positive aspects of the new digital dispensation, but the larger lesson is clear: without serious legal interventions, an expansive global workforce will be scrambling for these jobs by “racing to the bottom” of privacy and wage standards.  This review explains Zittrain’s perspective, applauds his effort to shift the agenda of internet law, and argues that trends untouched on in Zittrain’s essay make his argument all the more urgent. Continue reading "Banana Republic.com"

Sex/Power/Law

Marc Spindelman, Essay, Sexuality’s Law,  20 Colum. J. Gender & L. (forthcoming 2011).

Marc Spindelman’s essay Sexuality’s Law, forthcoming in the Columbia Journal of Gender and Law, is one of the most extraordinary pieces of legal writing on the interrelations of law, culture and sexuality to appear in a law journal in well over a decade, perhaps much longer.

Professor Spindelman begins his essay with a legal puzzle: why is it that out of the thousands of men who have been infected with HIV through consensual sex with another man who failed to disclose his HIV status, almost none have sought to use the law’s tools so as to seek redress for the injuries done to them?  The transmission of disease through sex might be intentional, reckless, or negligent, and in any event, occasioned without the informed or knowing assumption of the risk by the person infected.  Yet we see virtually no criminal prosecutions for homicide when this occurs intentionally, and almost no civil awards of damages when it occurs recklessly or negligently.  Why?  Why have gay men not turned to the law to seek redress against other gay men who harm them, and often kill them, by not disclosing their HIV status in the course of consensual sex? Continue reading "Sex/Power/Law"

Wills, Slavery, and Wealth

Bernie D. Jones, Fathers of Conscience:  Mixed Race Inheritance in the Antebellum South (Univ. of Georgia Press 2009).

In her 1996 article, The Myth of Testamentary Freedom, Melanie Leslie argues that “many courts do not exalt testamentary freedom above all other principles” and “are as committed to ensuring that testators devise their estates in accordance with prevailing normative views as they are to effectuating testamentary intent.”   I have always agreed with this statement, but Bernie D. Joness new book, Fathers of Conscience:  Mixed Race Inheritance in the Antebellum South (Univ. of Georgia Press 2009), challenges this assertion.  In her analysis of appellate cases from the antebellum era, Jones tells the story of white male slaveholders who used trusts and estates law to grant freedom and/or property to their enslaved mixed-race children and their mothers, thereby circumventing the law of slavery.  These testators were counting on judges to exalt testamentary freedom above the law, especially in states where slaveholders’ ability to manumit during their lifetime was quite limited.

Although miscegenation was prohibited in the antebellum South, many white men had sexual relations (sometimes consensual, sometimes not) with female slaves and lived openly with Black women and the children they bore.  Despite strong disapproval, there was little that society could do to punish privileged white men who breached social norms.  However, these men did more than breach social norms when they sought to grant freedom, property, and the legal rights that follow, to mixed-race children and their mothers; their behavior threatened the institution of slavery itself. Continue reading "Wills, Slavery, and Wealth"

Taking Legal Origins Theory Seriously

John Armour et al., Law and Financial Development: What We Are Learning from Time-series Evidence (2010), at SSRN.

In the late 1990s, Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer, and Robert W. Vishny (“LLSV”) launched a research project examining connections between legal rules governing investor protection and economic development. Working on the assumption that legal rules could be measured and quantified, LLSV purported to demonstrate that common law countries were more protective of outside investors – and, thus, more hospitable to economic development – than civil law countries. In the ensuing years, LLSV and other economists have expanded and refined their work, constructing the grandly named Legal Origins Theory, which holds that legal systems are important determinants of economic development. The influence of Legal Origins Theory is not confined to economics journals, but may be seen in policy reforms through the World Bank’s Doing Business reports.

While many legal scholars have dismissed this work because of its naïve assumptions about law and legal change, especially in early papers, a group of legal scholars at Cambridge University – led by Simon Deakin, John Armour, and Ajit Singh – took Legal Origins Theory seriously. Embracing the assumption that legal rules could be measured and quantified (“leximetrics”), the Cambridge Group produced legally sophisticated datasets on shareholder protection, creditor protection, and labor regulation. In Law and Financial Development: What We Are Learning from Time-series Evidence, published as part of a recent symposium on Legal Origins Theory in the BYU Law Review, four members of the Cambridge Group take stock of what we have learned from those datasets and chart some new directions for future research. Continue reading "Taking Legal Origins Theory Seriously"

Does the NBA’s Dress Code Violate Title VII?

D. Aaron Lacy, Represent: Hip Hop Culture, the NBA Dress Code, and Employment Discrimination (2010), available at SSRN.

Over 20 years ago, Detroit Piston Dennis Rodman ignited a firestorm of controversy by saying that if Larry Bird were white he would be considered “just another player.”  Pistons star Isiah Thomas was dragooned into explaining this remark during a broadcast of an NBA Finals game. While acknowledging that Bird was a superstar, Thomas made the broader point that race mattered in perceptions of NBA players.  White players were labeled “smart and hardworking,” black players were “naturally talented.”  Later in that same Finals series I heard a broadcaster describe a Lakers lineup (of all black players) as “thoroughbreds.”

Race has long been significant in sports, today perhaps nowhere as much as in the NBA.  Yet discrimination scholars have largely overlooked this fertile field.  Stepping into the breach, D. Aaron Lacy has written a provocative and worthwhile piece on a modern symptom of racial anxiety in NBA employment: the NBA dress code. Continue reading "Does the NBA’s Dress Code Violate Title VII?"