Monthly Archives: November 2013

The Cancer of the Internet

Finn Brunton, Spam: A Shadow History of the Internet (MIT Press, 2013).

Technologies do not come with social or legal instruction manuals. There is nothing inherent in rooftop strobe light bars to suggest that police may use them but not civilians, or in thermal imaging cameras to suggest the reverse. The public must figure out what to do with each technology as it becomes available: embrace, ignore, regulate, ban. If we are lucky, the rules distinguishing acceptable from forbidden uses can come, over time, to seem like natural features of the technology itself. But they are not: the rules have to come from somewhere, and someone had to work them out, somehow.

For an example, consider today’s debates on what to do about drones. Or for another, consider spam, the subject of Finn Brunton’s erudite and entertaining Spam: A Shadow History of the Internet. Brunton pushes his history far back before the 1994 advertisment from a pair of immigration lawyers that is usually thought of as spam’s Ground Zero. He notes, for example, a 1971 antiwar message sent to every user of the Compatible Time-Sharing System and a 1978 announcement of a DEC computer demonstration sent to all West Coast ARPANET users–both of which provoked debate around the acceptable boundaries of network use. Brunton argues that well into the 1990s, spamming was considered a primarily social offense, separate and distinct from commercial self-promotion, and of an entirely lesser order than “net abuse” (P. 39) like crashing computers. Spam was a form of free speech, and like other inappropriate speech was to be met with censure rather than censorship. Continue reading "The Cancer of the Internet"

Scholarship in a Violent Time

Alexander Kondakov’s paper on the claims framed by gay and lesbian activists in Russia and the effects of official silence is brave and thought-provoking.

It is a fine example of socio-legal research, combining discourse analysis of sources gathered from empirical research with theoretical insights. Amongst other sources, Kondakov draws on Wendy Brown’s work on tolerance and Brenda Cossman’s study of how refusing legal recognition to same-sex marriage nevertheless inaugurates it into “speakability.” Methodologically, his discussion of the “sub-discourse under the articulated one” as part of the normative order, “shaping things that are supposed to be left unsaid,” might appropriately inspire other legal researchers, as much scholarship confines itself to that which is said. Continue reading "Scholarship in a Violent Time"

When to Punish

Patrick Tomlin, Time and RetributionLaw and Phil. (forthcoming, 2014).

It isn’t every day that you come across an article that approaches an old topic from a completely new perspective, but that is exactly what Patrick Tomlin’s Time and Retribution does for retributivism in criminal law. Although there are now many different theories of retributivism out there, it seems fair to say that the bulk of them take desert to be the central core of retributivism, and many theorists (myself included) would say that it is intrinsically good for someone to get what he deserves. As I oversimplified retributivism once, “It is the claim that bad guys deserve punishment.”

On the other hand, with perhaps some exceptions like shaming punishments and the death penalty, the standard thought is that retributivists qua their retributivism have nothing to say about the mode of punishment. Decisions about incarceration, fines, short-but-intense punishments, long-but-light punishments—none of these are questions for retributivists. If retributivists have views, these views come from other parts of their general moral or political framework. At least, that was what I thought before I read Tomlin’s article. Continue reading "When to Punish"

(Most) Comments Are Closed (Updated)

wikiOver the past few weeks, Jotwell has been hit with an increasing flood of multi-lingual spam comments. This grew to the point that the flood coming in was beyond our server’s limited capacity to cope, and we were down most of today. The source appeared to be a botnet, as the IP numbers exhibited no discernible pattern that we might have blocked.

In order to bring the site back up and discourage the attackers we’ve turned off comments just about everywhere in the Jotwell family of sites. Unfortunately, it seems possible that we will have to keep comments off until (or unless) we figure out a better solution.

For those who care about such things, the hardest hit section was Classics which alone garnered more than 87,000 spams recently, followed by Cyberlaw and Jurisprudence. The next group, almost tied, consisted of Criminal Law, Administrative Law, Health Law and IP Law.

Update 11/8/13: As an experiment, we’re re-opening comments on the most recent articles. Comment availability may fluctuate depending on botnet conditions….

Police Don’t Pay

Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. ___ (forthcoming 2014).

Whenever I teach criminal procedure I arrange for a police officer to talk to my students.  It’s always a fascinating class.  I remember one time in particular when a student asked an officer whether the officer would be more unhappy if evidence he found was excluded from trial on Fourth Amendment grounds, or if he faced personal liability in a civil damages suit under section 1983 for a Fourth Amendment violation.  With absolutely no hesitation, the officer said that he would be much more unhappy if he had evidence excluded in a criminal case, and that he simply didn’t worry about section 1983 because an occasional lawsuit was par for the course.

At the time, I thought it was a surprising answer and so did my students.  Wouldn’t most officers be more concerned about a lawsuit that could expose them to personal financial liability?  That assumption seems to have driven much jurisprudence in the constitutional litigation arena—for example, the doctrine of qualified immunity is premised on the notion that officers need breathing room to do their jobs without worrying incessantly about crippling financial liability. Continue reading "Police Don’t Pay"

Justifying Fiduciary Law

•  Paul B. Miller, A Theory of Fiduciary Duty, 56 McGill L.J. 235 (2011), available at SSRN.
•  Paul B. Miller,Justifying Fiduciary Duties, 58 McGill L.J. 969 (2013), available at SSRN.
•  Paul B. Miller, Justifying Fiduciary Remedies, 63 U. Toronto L.J. (forthcoming 2013), available at SSRN.

Fiduciary law is pervasive. The distinctive duty of loyalty that is the hallmark of fiduciary law arises in myriad private relationships, including guardianships, employment relationships, trusts, business organizations, and professional relationships in law, medicine, and other fields. Recently legal scholars and courts have extended the logic of fiduciary law to public servants and nation states.

Despite its manifest importance, fiduciary law has not achieved the same stature as the other pillars of private law – torts, contracts, property, and unjust enrichment. Fiduciary law has been described as “messy,” “atomistic,” and “elusive,” and one commentator recently observed, “fiduciary law has been characterized as one of the least understood of all legal constructs.” Perhaps as a result of these conceptual challenges, law professors traditionally have taught fiduciary law in small portions, complicating the law student’s search for overarching principles.

Paul Miller is among a small group of legal scholars attempting to advance private law theory by justifying fiduciary law. In a series of recent articles – A Theory of Fiduciary Liability, Justifying Fiduciary Duties, and Justifying Fiduciary Remedies, Miller builds on the increasingly accepted notion that fiduciary relationships are distinctive, but offers a novel account of fiduciary law. Continue reading "Justifying Fiduciary Law"

The Long History of the Indian Child Welfare Act

Margaret D. Jacobs, Remembering the “Forgotten Child”: The American Indian Child Welfare Crisis of the 1960s and 1970s, 37 American Indian Quarterly 136 (Winter/Spring 2013).

The modern nation-state is rife with contradictions: “hard” borders that are in fact both permeable and unstable; inhabitants who have assumed many of the rights and obligations of citizenship, but whose illegal border crossings undermine the nation’s claim to sovereignty; territories within the nation-state where the state’s jurisdiction is uneven or unclear. In recent U.S. history, these contradictions have been made visible in poignant form: Elián González, the Cuban boy whose asylum case captivated the nation in 2000; the high-achieving “alien minors” contemplated by the DREAM Act; and most recently, Baby Veronica, the child at the center of a fierce custody dispute between her biological father, a member of the Cherokee Nation, and her non-Indian adoptive parents. In December 2011, when Veronica was 27 months old, the South Carolina Family Court found that two provisions of the Indian Child Welfare Act of 1978 (ICWA) barred termination of the biological father’s parental rights. In Adoptive Couple v. Baby Girl, No. 12-399 (U.S. June 25, 2013), the Supreme Court disagreed. The majority opinion, which casts Baby Veronica as only the slightest bit Cherokee (3/256, to be precise), should be read alongside Margaret Jacobs’s important article, “Remembering the ‘Forgotten Child’: The American Indian Child Welfare Crisis of the 1960s and 1970s,” which encourages us to remember all the children that came before—and all the nation-making and un-making done on their backs.

To be clear, the majority opinion in Adoptive Couple v. Baby Girl is not devoid of history—it recognizes the ICWA’s concern for the disproportionate number of Indian children separated from their families and tribes through abusive child welfare practices—but the larger context is missing. Sometimes such omissions reflect gaps in the historical literature: knowledge about the past is easily lost when people are afraid or ashamed to talk, or when historians fail to ask them. In this instance, however, there was not only a selection of historically informed amicus briefs, but also Jacobs’s superb scholarly article. Jacobs, a Bancroft-winning historian, explains why “the fostering and adoption of Indian children outside their families and communities had reached . . . crisis proportions by the late 1960s,” and why Native Americans ultimately demanded greater legal protections. (P. 137.) Continue reading "The Long History of the Indian Child Welfare Act"

Judicial Deference Defrocked

Richard A. Posner, The Rise and Fall of Judicial Self-Restraint, 100 Calif. L. Rev. 519 (2012).

Balance between judicial power to invalidate legislative and executive actions on constitutional grounds and judicial deference to democratic decision-making is critical to the success of the American legal system. Too much deference undermines fundamental constitutional norms; too little deference undermines representative government. It’s a common refrain of Supreme Court dissents, by both conservative and liberal Justices, that the Court has arrogantly refused to defer—or slavishly deferred—to the other branches of government.

Stepping into this vortex, Judge Richard Posner has written a cogent, circumspect, sometimes quirky article on the historical trajectory of “Thayerian deference” from the 1890s to the 1970s. His history elucidates what constitutional deference encompassed in this period and why that theory of deference met its demise. Posner wisely marries the decline of such deference with the rise of constitutional theory. Continue reading "Judicial Deference Defrocked"

What Is the Real Effect of OIRA Application of Cost Benefit Analysis?

Michael A. Livermore, Cost-Benefit Analysis and Agency Independence, 81 U. Chi. L. Rev. (forthcoming, 2014), available at SSRN.

The Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) has been applying cost-benefit analysis (CBA) to major rules issued by exec­­­utive branch agencies for over thirty years. The practice has long been controversial among legal academics but the debates have taken place against a generally-agreed set of beliefs about the effects of OIRA application of CBA—it increases the power of the President to control policy making by the bureaucracy. Michael Livermore’s meticulously researched and well argued article challenges this enduring belief.

Livermore argues that the relationship between OIRA application of CBA to major rules and presidential influence over policy making by the bureaucracy is far more complicated than the standard account can capture. He contends that the practice has actually increased agency autonomy by providing agencies a means of protecting themselves from presidential control. In Livermore’s view, the practice of OIRA application of CBA to agency rules provides agencies with a “safe harbor” they can access by dominating the process for developing the methodology government uses to apply CBA. Continue reading "What Is the Real Effect of OIRA Application of Cost Benefit Analysis?"