Yearly Archives: 2013
Mar 18, 2013 Herbert BurkertTechnology Law
At a conference hosted jointly by Peking University Law School and the Carter Center, ex US-President Carter, as reported recently by freedominfo.org, a highly recommendable information source on access to government information by the way, encouraged the Chinese government “to take critical steps toward institutionalizing the right to information, including reviewing the experiences to date under the current Open Government Information regulation and developing it into a more powerful legal regime with the statutory strength of a law.”
What these “Regulations of the People’s Republic of China on Open Government Information of April 5, 2007, effective May 1, 2008″ are about, how and why they came into existence and what is keeping them alive, is described in Weibing Xiao’s book. According to Xiao, a Professor of Law at Shanghai University of Political Science and Law, the fight against corruption did not cause this development, but rather administrative problems with managing secrecy led to first tentative research and policy initiatives for greater transparency. These initial steps were then encouraged by an improved information flow environment in which – also in part due to technological developments – information exchanges increased between administrations and between citizens and administrations. Xiao’s account suggests a push-model of government information, one which while being encouraged for all levels of government seems to be particularly vital on the local level, where it is supported by long-standing and far-reaching administrative reforms.
Beyond this historical-analytical account I recommend the book for four reasons: Continue reading "From Behind the Great Wall: FOI in China and – About Method"
Mar 15, 2013 Jennifer ChaconCriminal Law
The lines between criminal law enforcement and immigration enforcement have blurred to the point where they are at times indistinguishable, but effective efforts to theorize this merger through the lens of criminal law are relatively few and far between. For this reason, I particularly enjoyed reading David Sklansky’s Crime, Immigration and Ad Hoc Instrumentalism. In this article, Sklansky not only provides a nice descriptive account of the developments that are the causes and harbingers of the criminal/immigration merger, but he also helpfully situates these developments within a broader law enforcement framework. In so doing, he persuasively illustrates how these developments are part of a general legal trend toward “ad hoc instrumentalism.” At the same time, he also uses the article to explain reasons that these developments might be particularly problematic in the context of what has sometimes been called “crimmigration” law.
Professor Sklansky begins with a descriptive account of “the various ways in which criminal justice and immigration enforcement have grown increasingly intertwined.” Focusing on the period from the mid-1980s through the present, Sklansky discusses four different developments. First, immigration crimes went from being a relatively insignificant percentage of the federal criminal docket to accounting for a majority of all federal prosecutions. Second, deportation – which, as Dan Kanstroom has observed, was once a small-scale, post-entry form of border control – is now widely understood and used as a key tool of crime control. Third, immigration authorities run the nation’s largest prison system – a system that is supposedly a civil detention system but that the present administration admits falls well outside the bounds of “truly civil” detention. Finally, after decades in which sub-federal agents were viewed as peripheral to immigration enforcement efforts, state and local law enforcement officers now cooperate on a widespread and systematic basis with federal immigration officials in immigration enforcement. Although all of these trends have been described elsewhere, Sklansky’s article provides a good overview of the existing literature. He also makes headway into the important task – also recently taken up to great effect by Ingrid Eagly – of providing a textured sense of how the systems of criminal law enforcement and immigration law enforcement are interacting as a practical matter. Continue reading "Crimmigration and the Problem of Ad Hoc Instrumentalism"
Mar 13, 2013 Allan ErbsenCourts Law
Courts and markets perceive mass tort victims from distinct perspectives that complicate aggregate litigation. Before mass torts cause injuries, prospective victims often are fungible variables in an actuarial model. Actors can foresee the possibility of negligence and identify groups who they might harm without knowing which specific members will incur losses. For example, airlines know that planes may crash and pharmaceutical manufacturers know that drugs may cause adverse affects. Yet even if the risks are known, injuries can occur at unpredictable times to unpredictable subsets of a risk-bearing population. Even actors who intentionally violate the law by making fraudulent claims or adopting discriminatory policies often target demographics rather than individuals. The anticipated victims are faceless statistics in a crowd.
But after tortious conduct causes injuries that generate litigation, victims generally have known identities. Current rules governing civil adjudication enable defendants to both ignore and exploit these individual identities when proposing procedures for resolving plaintiffs’ claims. A defendant that desires a global settlement (or global dismissal) can continue to view victims as an undifferentiated mass by making offers or arguments that are applicable to the entire group. If these efforts fail, defendants often challenge further aggregate approaches to dispute resolution by contending that each alleged victim is a unique individual with a unique claim requiring its own day in court. When judges accept these arguments, victims of wholesale injury become the potentially unwitting recipients of retail justice. This claim-by-claim adjudication consumes scarce judicial resources, burdens litigants, and can produce inconsistent judgments in similar cases. Continue reading "Seeking Accuracy in Aggregate Litigation"
Mar 11, 2013 David MillonCorporate Law
Robert G. Eccles, Ioannis Ioannou, & George Serafeim, The Impact of a Corporate Culture of Sustainability on Corporate Behavior and Performance, Harvard Business School Working Paper 12-035 (2012), available at SSRN.
Progressive corporate law scholars have tended to ignore business or economics research as potential support for their normative claims. When seeking interdisciplinary insights they have generally looked elsewhere. This is not surprising, given that business and economics scholarship often reflects assumptions about corporate law that progressives reject, in particular a shareholder primacy orientation that prioritizes shareholder wealth maximization while disregarding social costs. For progressives, business and economics scholarship may also bear the taint of its embrace by mainstream corporate law scholars, many of whom have a strong law-and-economics, empirical perspective that draws them naturally to finance, accounting, and management literature.
Those interested in corporate social responsibility (CSR) and the problems of managerial and investor short-termism should not overlook the paper reviewed here. Robert Eccles, Ioannis Ioannou, and George Serafeim (professors at Harvard, London, and Harvard business schools respectively) make an important contribution to debates among corporate law academics about CSR as an alternative to shareholder primacy. Their paper also has significant relevance to those who are concerned about the costs of shareholder primacy’s current incarnation as an obsession with quarterly earnings and their effects on share prices. The authors present a sophisticated, empirically grounded demonstration of the economic advantages enjoyed by corporations that have chosen to invest in stakeholder relationships and to pursue a long-run approach to wealth creation. Because these companies are shown to outperform financially their more traditionally-minded, shareholder-primacy, short-term-oriented rivals, CSR advocates can assert a ‘business case’ for their belief that corporations should attend to the well-being of nonshareholding stakeholders, including employees, customers, local communities where the firm operates, and those who are affected by its impact on the environment. The business case also lends support to critics of short-termism who have no particular interest in CSR. Continue reading "The Business Case for Corporate Social Responsibility"
Mar 8, 2013 Christopher SprigmanIntellectual Property Law
Thanks in large measure to the ongoing worldwide smartphone patent brawl between Apple and Samsung, patents are in the news a lot these days. And that is especially true of design patents – i.e., the branch of the patent law that grants rights in novel, non-obvious and ornamental designs. Apple pressed design patent claims against Samsung that included broad claims of ownership over rectangularly-shaped electronic devices. To many observers, these seemed . . . well . . . crazy. Take Apple’s patents on the shape of the iPhone. Here’s a design drawing from the Apple D677 patent.
Continue reading "Our Lyin’ Eyes: Design Patents and the Perils of an “Eyes Alone” Approach to Novelty and Infringement"
Mar 6, 2013 Mark SeidenfeldAdministrative Law
Jennifer Nou, Agency Self-Insulation under Presidential Review, ___ Harv. L. Rev. ___ (forthcoming 2013), available at SSRN.
Perhaps the hottest topic in administrative law of late is the propriety of presidential influence on agency action. To its credit, that literature distinguishes between the agencies and the White House as two distinct institutions that may not agree on particular regulatory outcomes. But, the literature does not go much beyond this simple distinction in its picture of the executive branch, treating both White House and agencies as black boxes, each of which acts with a consistent purpose. At the same time, scholarship has focused on agencies as strategic actors vis-à-vis the judiciary, choosing methods of policymaking to minimize the potential for courts to interfere with that endeavor. In “Self-Insulation under Presidential Review,” Jennifer Nou investigates the extent to which agencies might act strategically amidst resource constraints as a means of minimizing White House influence on their policymaking discretion. In so doing, Nou considers the internal structure and decisionmaking processes of both agencies and the “institutional presidency” to paint a sophisticated picture of their interaction. The result is an article that provides insight into the decisionmaking of both these institutions, and provokes much thought about how their interaction might affect administrative law.
Nou explicitly limits her investigation of White House influence to its formal review of agency rules, as mandated by various executive orders, which she dubs “presidential review.” She makes clear that while the Office of Information and Regulatory Affairs (OIRA) coordinates such review, it can involve many entities, including those within the Executive Office of the President (EOP) and other agencies. She begins by explaining why agency staff and in many cases agency heads can disagree with the preferences of the institutional President on many regulatory policy issues. She next explains that, from an agency’s perspective, presidential review poses constraints similar to judicial review in that, generally, both require the agency to invest precious resources to avoid reversal of its decision. But, she notes that presidential review is also costly for the executive branch reviewers; this cost allows agencies some strategic latitude to minimize its chances of policy reversal by increasing the White House’s costs of review, rather than by investing in more comprehensive and higher quality decision-making. For example, agencies can avoid review altogether by simply abandoning a policy change, by making policy through adjudication and perhaps even by guidance document. They may be able to avoid review or minimize the level of scrutiny to which a rule is exposed by designating the rule as not economically significant or not significant at all, or by providing only opaque and general information about costs and benefits. Finally, they may be able to parlay statutory deadlines or the end of a President’s term effectively to shorten the period for OIRA review, thereby decreasing the level of scrutiny. Continue reading "Strategic Interactions Between Administrative Agencies and the White House: A Welcome Look into the Black Box of the Executive Branch"
Mar 4, 2013 Solangel MaldonadoTrusts & Estates
In their forthcoming article, Torts and Estates: Remedying Wrongful Interference with Inheritance, John C.P. Goldberg and Robert H. Sitkoff illustrate the potential pitfalls of recognizing causes of action without any awareness or consideration of how other areas of law deal with claims arising out of similar facts. They argue that courts’ relatively recent recognition of the tort of wrongful interference with an expected inheritance is ill-conceived for two reasons. First, it is unnecessary given the remedies available under inheritance law—a will contest or action for restitution by way of constructive trust. Second, it conflicts with specialized inheritance law doctrines and procedures (such as inferences, presumptions, and burden shifting schemes, higher evidentiary standards, bench trials, and short statutes of limitations) developed to address the evidentiary challenges raised when the only person who can conclusively clarify or confirm his donative wishes is dead. A disappointed expectant beneficiary who brings a claim for tortious interference with an expected inheritance will have fewer procedural hurdles to clear because courts have rejected or ignored the rules and procedures that apply to will contests and restitution claims. A tort plaintiff may also recover substantial damages—including nonpecuniary and punitive damages—remedies that are unavailable in a will contest or action for restitution.
Goldberg and Sitkoff further argue that interference with expected inheritance claims are problematic conceptually. Since a donor’s wishes are the guiding principle of inheritance law, a disappointed expectant beneficiary has no independent right to the donor’s property absent the donor’s exercise of his freedom of disposition. As such, when a disappointed expectant beneficiary brings a wrongful interference with an expected inheritance claim, she is suing to vindicate the donor’s right to freedom of disposition rather than her own rights. However, as every first year law student knows, a tort plaintiff cannot recover for a wrong done to another person. She can only sue for a wrong done to her. Of course, we suspect that a disappointed expectant beneficiary doesn’t sue only (or primarily) to vindicate the donor’s freedom of disposition but to secure her interest in the property. While that may be the case, Goldberg and Sitkoff point out that the law cannot recognize her interest in the decedent’s property independent of decedent’s wishes because such interest would directly conflict with decedent’s freedom of disposition. Continue reading "Tort Law Meets Inheritance Law"
Mar 1, 2013 Ann BartowTechnology Law
“What is a Legal Information Institute when the transcripts of judgments are refused for publication – even by the courts themselves – by the company contracted to provide the transcription service on some very shady grounds of copyright?” That is one of the questions lingering in the wake of a very ambitious recent Free Access to Law project.
The mission of the Legal Information Institutes (LIIs) it to maximize free access to public legal information such as legislation and case law from as many countries and international institutions as possible. To that end they produced the publications linked above. The “Local Researcher’s Methodology Guide” explains the reasons for the “Free Access to Law – Is It Here to Stay?” project in detail, and then provides instructions for researchers, including an “environmental scan matrix” and associative questionnaires. Continue reading "Free Access to Law – Is It Here to Stay? Research Publications of Interest for Anybody who Believes In The Rule of Law"
Feb 28, 2013 JotwellJotwell
• Brian Tamanaha has stepped down as co-Section Editor of the Jurisprudence Section but will remain a Contributing Editor; Robin Kar will be stepping up to co-edit the section with Brian Bix. Brian T. has been a great editor and he leaves the section in excellent shape and in capable hands.
• This week we rolled out version 1.3 of the Jotwell theme; few if any of the many changes under the hood should be visible to readers, but if you notice anything more odd or out-of-place than usual, please let us know.
• One major consequence of the new theme is that we will be able to have a group of mini-sections sharing virtual real estate in a new section we plan to call ‘Lex”. These mini-sections will provide a home for topics in law which, due to a smaller scholarly production, might not merit publishing a review every month. We’re only just starting to put this together – suggestions for topics we should cover and for people who might be managers of mini-sections are both welcome – so it likely will be a few months before this section debuts.
• Jotwell’s student editors will soon be graduating or heading off to other summer employment. Advertisements for a Miami Law student to serve as summer editor will be going up soon, but any Miami Law student who reads Jotwell and responded to this message would have an inside track.
Feb 27, 2013 Anthony SebokTorts
In The Moral Significance of Risking, John Oberdiek offers a theory of why risk imposition is prima facie wrong. Oberdiek admits that his argument will only be persuasive if he applies it to risk imposition in its purest form (what he calls “risking”). Risking’s moral significance – if it has any – must be based on the imposition of the risk of harm, and not the harm itself. In other words, if risking is wrong, it shouldn’t matter in our evaluation of it that the risk of injury never ripened into an injury. Thus, second-order effects of risking on the victim, such as emotional distress, cannot justify the conclusion that risk-imposition is wrong. Similarly (although Oberdiek does not discuss this) instrumentalist accounts for imposing liability on the basis of risk obviously cannot explain why risking is wrong, given that risking is significant to an instrumentalist only to the extent that deterring it would result in the optimal level of harm.
Although Oberdiek claims that his article is about risk imposition from the perspective of moral philosophy, he is quite conscious of the fact that his argument, if accepted, would reshape debates in law, especially tort law. Further, he recognizes that establishing the fact that risking is wrong does not answer the question whether any particular act of risking should be condemned or should be the basis of a liability judgment. His only point in this article is to say that risking is a prima facie wrong, and it may be the case that it is justified in many situations in the balance of reasons, or excused, or, in the case of private law, left unrecognized like other moral wrongs that do not generate liability. Continue reading "Are Risks Wrong?"
