Yearly Archives: 2013
Apr 26, 2013 Robin WestJurisprudence
Matt Adler’s book Well Being and Fair Distribution is first an articulation and then a defense of a particular social welfare function with which analysts and critics, whether from academia or elsewhere, can morally assess various large scale governmental regulatory or legislative decisions, such as the decision to use public moneys to build a dam or a highway, or to discontinue funding of the Violence Against Women Act, or to re-authorize No Child Left Behind, or to regulate carbon emissions in some way, or to continue the use of drones in warfare, or to close Guantanamo Bay, or to shrink or expand the role of the federal government in the War on Drugs. The means of moral evaluation of these large governmental decisions for which Matt argues is consequentialist — it is the outcomes of choices that determine the morality of those choices, rather than any other attribute of the actions or any constellation of motives of the actors that do so –– and, second, welfarist — it evaluates those decisions by reference to their propensity to increase or diminish human wellbeing –- and, third, prioritarian – meaning that it gives priority, or greater weight, to increases in the wellbeing of the less well off, when comparing the relative moral virtues of possible policy changes. So, one policy choice is morally better than another if it increases the wellbeing of those who are affected, as measured by the utility of their alternative life histories, and as ascertained by the other-regarding ideal preferences of a sympathetic spectator, with the wellbeing of the increase to the less well off given additional weight. Thus, the title of the book: this is a defense of a consequentialist mode of evaluating decision making that centers human wellbeing and fair distribution both.
Obviously for those of us who have spent time with it, Matt’s book stands as a monumental achievement; it is philosophically and economically sophisticated, and exhibits a mastery of multiple literatures, from the analytic-philosophical work of the last three decades on identity, equality, and wellbeing, as well as a sizeable normative economic literature spanning three quarters of a century on social welfare functions and their various competitors, most significantly of course cost-benefit analysis. It is also, though, monumentally important, given the current state of normative jurisprudence, and for three reasons not made obvious by the book itself: the first, internal to utilitarian jurisprudence, the second, on debates between utilitarian and deontological theories of legal evaluation, and third, in legal scholarship more generally. I want to spell those out and then I will then raise some questions and objections about its methodology. Continue reading "Justice and Utility"
Apr 24, 2013 Timothy GreeneIntellectual Property Law
Deven R. Desai, From Trademarks to Brands, 64 Fla. L. Rev. 981 (2012), available at SSRN.
As Stacey Dogan noted in her recent review of Bob Bone’s Taking the Confusion Out of “Likelihood of Confusion”: Toward a More Sensible Approach to Trademark Infringement, trademark law is at a bit of a crossroads. Scholars increasingly question basic tenets of trademark law and seek explanations for our blinkered theories of trademarks. Among recent attempts at comprehensive trademark law frameworks, some are good, some great, some … not.
The most insightful and satisfying of these is Deven Desai’s From Trademarks to Brands, which continues a line of research Desai started with Spencer Waller several years ago. From Trademarks to Brands mines the “brand theory” marketing literature for wisdom about the continuous expansion of trademark law. He struck a vein. Desai begins by disaggregating three views of brand value in the literature: (1) the corporate view, in which the firm owns and controls the brand, with consumers passively receiving brand information; (2) the noncorporate view, in which consumers and communities construct brand value; and (3) a synthesized view, in which all these stakeholders co-create brand value by using the brand as an information resource. Continue reading "Of Trademarks and Brands"
Apr 23, 2013 Mary CrossleyHealth Law
Abigail R. Moncrieff, When the Tenth Justice Doesn’t Bark: The Unspoken Freedom of Health Holding in NFIB v. Sebelius, Boston Univ. School of Law, Law and Economics Research Paper No. 12-44, available at SSRN.
Given the intense popular, political, and academic interest in the challenge to the Affordable Care Act, it comes as no surprise that the Supreme Court’s decision in NFIB v. Sebelius would launch a flotilla of articles about that decision, particularly since the outcomes (with respect to both the individual mandate’s constitutionality and the expansion of Medicaid) were not what conventional academic wisdom had predicted. In the coming months and years, we will undoubtedly spend a good deal of time thinking through and reading about the possible implications of what the Court did, and didn’t do, in that case.
But the most intriguing and enjoyable article that I have read so far about NFIB focuses not on what the Supreme Court did or didn’t do, but on what Solicitor General Donald Verrilli chose not to do in defending the individual mandate against a commerce power challenge before the Court. In “When the Tenth Justice Doesn’t Bark: The Unspoken Freedom of Health Holding in NFIB v. Sebelius,” Abigail Moncrieff hypothesizes that the Solicitor General deliberately chose to forgo raising a more persuasive legal argument regarding the individual mandate’s constitutionality and that this politically strategic decision represents a previously unexplored terrain of popular constitutionalism. Continue reading "Some Things Are Better Left Unsaid: The Argument the Solicitor General Didn’t Make in NFIB v. Sebelius"
Apr 22, 2013 Caroline Bettinger-LopezFamily Law
In recent years, with the increased internationalization of the judiciary, we have witnessed growing support from advocates, policymakers, and judges for applying international and foreign law in a domestic context. To be sure, U.S. courts have demonstrated greater reluctance toward this approach than many courts in other parts of the world. As Margaret Marshall, Chief Justice of the Supreme Judicial Court of Massachusetts, has noted, “justices of some foreign constitutional courts traverse the world of global jurisprudence with an agility that leaves an American judge breathless.” But what happens when judges, intending a comparative approach, incorrectly interpret foreign jurisprudence? And even when these judges get the law right, are they looking at the right thing when they focus on comparative law rather than comparative practice? Rachel Rebouché considers these complex questions concerning international and comparative law as she tracks important global developments in abortion law over the past few decades.
Rebouché starts with a challenge to the conventional wisdom that U.S. abortion law symbolizes protection of women’s constitutional rights while German abortion law symbolizes protection of fetal constitutional rights. While that dichotomy may have been true when Mary Ann Glendon first described it in 1987, Rebouché argues, the United States and Germany have, in fact, moved in opposite directions concerning abortion law and practice and the availability of abortion services. Developments in the U.S. since Roe v. Wade have made the constitutional right to an abortion “unrealizable for many women due to restrictive state and federal laws and the absence of providers in many areas.” By contrast, abortion law and practice developments in Germany have gone in the opposite direction, expanding access to abortion, rather than limiting it in the interest of protecting fetal rights. Though a 1975 decision by the Federal Constitutional Court of Germany (“FCC”) supported protection for “unborn life,” more recent developments have prioritized access to abortion—a position that sounds in the register of women’s rights—above fetal rights. A 1993 FCC decision reiterated that abortion is an unlawful act, but eliminated criminal punishment upon demonstration of proof of counseling (which is readily available in most regions of Germany at counseling centers that tend to be pro-choice) before the twelfth week of pregnancy. Moreover, state welfare funds are available in cases of financial need, which is interpreted so generously by most regional legislatures that in some regions, the government pays for nearly every abortion. The broad availability of state-funded abortion services has led some commentators to argue that “Germany, in effect, permits abortion for any reason.” While the U.S. and German legal developments have had enormous influence on the constitutional decisions of national courts in Colombia, South Africa, Portugal, and Mexico, these latter national court decisions, Rebouché argues, have stopped short of engaging with the “implications and evolution of abortion jurisprudence in the United States and Germany.” More troublingly, these national court decisions have, at times, misinterpreted U.S. and German law. Continue reading "Comparative Pragmatism versus Comparative Formalism in the Abortion Context"
Apr 19, 2013 Benjamin C. ZipurskyTorts
Nancy Moore’s Intent and Consent in the Tort of Battery: Confusion and Controversy is something every Torts professor should read. This is not only because it is interesting and well written and engages with canonical cases. It is also because it will teach many professors to question something they thought they knew: the meaning of “intent” in the tort of battery. While the references to Vosburg and the Restatement (Second) on battery may seem a bit old-fashioned to some, such a judgment would be ill-founded. Many aspects of battery law are ambiguous, incoherent, vague, and contradictory; moreover, from informed consent in medical malpractice to unwanted touchings in sexual harassment to the ever-spreading role of comparative fault, it is no longer adequate to pretend that intentional tort law can reasonably be relegated to the subject of schoolboy pranks.
While Moore discusses both intent in battery and (relatedly) the interplay of intent, consent, and mistaken defendant beliefs about consent, the lion’s share of her attention goes to intent itself. Restatement (Second) § 13(a) requires a plaintiff bringing a battery claim to show that the defendant acted “intending to cause a harmful or offensive contact with the person of the other or a third person.” According to Moore, courts have disagreed over the scope of this phrase, and, in particular, over whether it is sufficient that the defendant have intended to make contact (so long as that contact does turn out to be harmful or offensive), or whether it is necessary that the defendant have intended to make contact and have intended to harm or offend the plaintiff. She calls the former the “single intent rule” and the latter the “dual intent rule.” Continue reading "Moore on Intent and Battery"
Apr 17, 2013 Elaine CraigEquality
Most of us never have to be concerned about being forsaken. We have permanent homes, we have family doctors, we have jobs… But imagine you have none of these things. You don’t know where you are going to sleep tonight. You do not have access to regular health care. You have no employer…You are consumed by fears about your physical safety. You are afraid to contact the police. In these circumstances, you are largely on your own, easily forsaken.
It is difficult to imagine a more intentional account of vulnerability than the above passage introducing British Columbia’s recently released Report of the Missing Women Commission of Inquiry into the disappearance and murder of more than sixty Vancouver women – most of whom had been involved in the city’s Downtown Eastside sex trade. It is also difficult to imagine an opening sentence that more explicitly constitutes a “vulnerable other” subject position. Continue reading "Forsaking Vulnerable Sex Work"
Apr 16, 2013 Susan BandesCriminal Law
The question of how it feels to do the work we do receives little attention in mainstream legal literature. We tend to treat the very acknowledgement of our work’s emotional aspects as downright unlawyerlike — a challenge to law’s rational and rigorous essence. Yet as this book beautifully illustrates, the question of how it feels to do our work cannot be cordoned off from the issues at the center of the teaching and practice of law: what it means to be an ethical, zealous, effective counselor and advocate with a satisfying, sustainable legal career.
Susannah Sheffer sheds light on all these issues, though she sets out to answer a narrower question: what it is like to be a capital defense lawyer specializing in post-conviction challenges. What is it like for these lawyers, she asks, not in the courtroom or the offices of the capital habeas unit, but “in the middle of the night, in the pit of the stomach, in their last visits or phone calls with clients who are about to be taken to the execution chamber, in the mornings after, in their lives with their families, in their dreams and flashbacks and quiet moments alone?” What is it like to do this work in the face of incomprehension and even hostility from the larger community? What motivates such lawyers and how do they keep doing what they do? Shaffer explores these issues in conversations with twenty capital defense lawyers in this insightful and deeply affecting book. Continue reading "What Does it Feel Like to be a Lawyer?"
Apr 15, 2013 Linda MullenixCourts Law
Who among us has not relished the extraordinary gift the Supreme Court gave to civil procedure teachers in the form of J. McIntyre Machinery, Ltd. v. Nicastro, allowing professors to punctuate the already absurd personal jurisdiction case line with the story of the unlucky Mr. Nicastro (he who lost four fingers to a metal shearing machine in New Jersey), with nary a place to sue? (And, no doubt reserving that one remaining finger for . . . personal jurisdiction jurisprudence.) Moreover, to ensure us a near-perfect teaching vehicle, the Court — as Professor Stephen E. Sachs notes in the wonderfully entertaining and thought-provoking How Congress Should Fix Personal Jurisdiction — “bogged down in an incoherent three-way split.”
Rather than make a futile attempt to make sense out of McIntyre, or to rationalize the mess away, Professor Sachs whole-heartedly forges into the personal jurisdiction thicket (which he labels a “dismal swamp”) with his own solution. Actually, an entire array of solutions. Sachs takes up McIntyre’s invitation to Congress to provide a federal forum for cases like Nicastro’s, and he sets forth a detailed federal statutory scheme for authorizing a federal forum based on existing venue rules. In particular, he is keen on securing federal forums to enable plaintiffs such as Nicastro to sue multinational corporations, such as McIntyre, that might otherwise evade responsibility for injuries to U.S. citizens because of existing state personal jurisdiction doctrine. Sachs notes that his proposal to create federal personal jurisdiction based on a venue model is not new, but suggests that other such attempts have been flawed in key respects (which he aims to rectify). Continue reading "Fixing Personal Jurisdiction"
Apr 12, 2013 Robert RosenCorporate Law
Kenneth A Bamberger & Diedre K. Mulligan, PIA Requirements and Privacy Decision-Making in US Government Agencies in Privacy Impact Assessment (D. Wright & P. De Hert eds. 2012) available at SSRN.
Many large law firms are experiencing increased demand for their compliance and risk management services. They are writing compliance manuals and organizing and teaching training programs. They compete with consulting and accounting firms for this work.
Some of this work requires skills not traditionally found in law firms. To be sure, the translation of regulations into simpler language for manuals and the oral communication skills necessary for trainings are commonplace. But, the best internal controls require knowledge of the pressures on the corporate actor. And they require understanding the actor’s perspective, in order to motivate their commitment to compliance. Lawyers known for their “judgment,” often had such knowledge and understandings. But many lawyers relied on their independence to avoid engagement with what they belittled as “corporate politics and in-fighting.” Others would rely on their independence to emphasize that they simply gave options to their clients and were not responsible for what their clients did. Continue reading "Inside the Black Box"
Apr 10, 2013 Linda JellumAdministrative Law
When I returned from the 2013 AALS Annual Meeting, I discovered Professor Kevin M. Stack’s latest article, Interpreting Regulations, 111 Mich. L. Rev. 355 (2012), waiting patiently for me. As someone who teaches both Administrative Law and Statutory Interpretation/Legislation, I picked it up with interest; although, given all that has been written about statutory interpretation, I must confess that I really couldn’t imagine that there would be anything new to say about interpreting regulations. Yet, I remembered that each year, around the time my students realize that they will certainly be tested with a Chevron-like hypothetical on their final exam, I’m asked how to approach the analysis. After they’ve determined that Chevron applies (Chevron step zero), that Congress did not have an intent as to the precise issue before the court (Chevron step one), and that the agency’s interpretation of the statute is reasonable (Chevron step two), I have always told them that the final step is simply to apply the regulation to the fact pattern using the traditional tools of statutory interpretation. Was my direction wrong? I wondered.
Lest I hold you in suspense, let me explain Professor Stack’s thesis immediately. He believes that courts should use regulatory purposivism to interpret regulations. He defines regulatory purposivism in this way: a court should ask whether an interpretation of a regulation is (1) permitted by the regulation’s text, and (2) consistent with the purposes as stated in the regulation’s statement of basis and purpose (and/or text). If a court answers yes to both questions, then the interpretation is “reasonable,” “permissible,” “plainly” right, at essence, controlling. (If I may digress, I wondered, was he advocating a new two-step deference approach? God forbid!) He suggests that courts should not give meaning to a regulation that the text will not bear, but he adds that neither should courts give a regulation a meaning that the written statement of basis and purpose will not bear. In essence then, he advocates for a text-based approach to purposivism! Continue reading "A Textualist Approach to Purposivism in the Regulatory Arena"
