Yearly Archives: 2013
Feb 4, 2013 Mark TushnetConstitutional Law
How do liberal democracies deal with threats to liberal constitutionalism, when those threats come from political parties willing to use the existing mechanisms of liberal constitutionalism to gain power–and then eliminate liberal constitutionalism? This question was a concern for scholars of constitutionalism several generations ago. More recently, the phenomenon has been captured in the slogan, “One person, one vote, one time,” associated with some positions taken at the first stage in a transition away from authoritarianism–though perhaps only to another form of authoritarianism. Transitional situations are one thing, though; established liberal democracies are another. The experience of Weimar Germany was taken as an illustration–perhaps inapt in detail but useful for thinking through the problem–of the use by antidemocratic forces of democratic means to attain power.
After World War Two Germany responded by embedding in its Basic Law the idea of militant democracy, developed during the war by the exile political theorist Karl Loewenstein. Many other nations have followed suit. Militant democracy extends to political parties the idea that nations can permissibly use force against subversive individuals. According to the idea of militant democracy, liberal democracies can permissibly ban antidemocratic political parties and deny their members the ability to serve in public positions, even in the bureaucracy (because they might use their discretion to favor their antidemocratic comrades). Militant democracy is constitutionalism’s resolution of the problem in political theory of whether and why we should tolerate the intolerant. And, like that problem, the one militant democracy addresses is difficult to resolve. Power-holders may well misdescribe political opposition as a threat to democracy itself, and seek to suppress political parties that are “merely” forceful opponents of their programs. Continue reading "Generals Can Sometimes Be More Pro-Democratic Than Politicians"
Feb 1, 2013 Robin WestJurisprudence
In his accessible and thoroughly enjoyable book The Heuristic Debate, Mark Kelman demonstrates for the benefit, primarily, of legal scholars and policy makers, that there is not just one, but there are two challenges, or alternatives, to the economists’ rational choice model of decision making that has so influenced law and policy over the last few decades, both of which come to us from the discipline of cognitive psychology, with one of which — objections coming from the “heuristics and biases” school — lawyers are largely familiar, but the second of which – those coming from the group Kelman labels the “fast and frugal school” – we are not. But we should be. The second challenge, Kelman suggests, cuts quite a bit deeper than the first, and yields insights of relevance to both law and policy which are at right angles with those offered by rational choice theorists and the heuristics and biases school both. Mark first presents these two schools – heuristics and biases (hereinafter HB) and fast and frugal (hereinafter FF) — as participants in an intra-cognitive psychology debate, as that is how both schools originated, rather than as responses to the economists’ rational choice model of decision making, much less the latter’s deployment in law and policy. Nevertheless, and as Mark eventually argues, it’s also useful to understand both schools in their quite differing relations to the rational choice model of decision making with which they are both in conflict. (Mark calls the latter “rat choice” for purposes of brevity, but I won’t, I’ll call it RC instead.)
I’ll quickly summarize what I understand as the book’s most basic claims, then make a perhaps unwarranted inference, although I hope not, that will sharpen and recast the differences between them but also sharpen the differences of the fast and frugal school with both the heuristics and biases school and the rational choice school. My basic claim is that it is those differences, between FF on the one hand, and both RC and HB, that have the potential to reframe fundamentally the place of rational choice in our conception of law, and our understanding of alternatives to it. By contrast to those differences, and that challenge, the familiar challenges posed to RC by HB look much more like friendly amendments – provocative, thoughtful, and fun amendments, but amendments all the same. In my concluding remarks I will aim to cast somewhat differently what I take to be the most imaginative and interesting but also the weakest part of Mark’s book, to wit the discussion of Holmes and Langdell as exemplars of HB and the FF schools respectively and then finish up with some quick remarks about the role of these models of cognition in legal scholarship and legal policy debates quite generally. Continue reading "Adjudging The Heuristics Debate"
Jan 30, 2013 John HurshCriminal Law
Michael J. Kelly,
Prosecuting Corporations for Genocide Under International Law, 6
Harv. L. & Pol’y Rev. 339 (2012).
As his title suggests, Professor Michael J. Kelly offers a sound legal argument for prosecuting corporations for genocide under international law. While there is much to admire about this article, perhaps its greatest strength is the straightforward manner in which Kelly systematically refutes possible challenges to his position and the even-handed tone Kelly employs when discussing the often divisive topic of corporate regulation. Rather than resorting to polemics or incendiary rhetoric, Kelly begins with the basic premise that “anyone who commits genocide should be held accountable” (339). Noting that international law holds individuals, states, and organizations accountable for genocide, Kelly asks simply: “Why not corporations” (339)?
Kelly grounds much of his argument for prosecuting corporations for genocide on the lack of distinction between a legal and natural person in the 1948 Genocide Convention (339). Applying the interpretative framework set forth in the Vienna Convention on the Law of Treaties, Kelly moves from the treaty text to the travaux preparatoires, where he finds no definitive evidence that delegates intended to include or exclude corporations from the treaty’s reach. Still, citing the “plain meaning of the term ‘persons’ at the time” and the drafters’ decision not to delineate between legal and natural persons, Kelly argues that corporations should be considered persons under the convention (346). He bolsters this argument by noting an accordant view from Harold Koh, Legal Advisor to the U.S. Department of State, and by appealing to our basic sense of fairness to recognize that the unprecedented growth and influence of corporations requires a similar level of responsibility (347). Continue reading "Corporate Criminality and Genocide"
Jan 28, 2013 Jeffrey CooperTrusts & Estates
Lawrence W. Waggoner,
From Here to Eternity: The Folly of Perpetual Trusts, Univ. of Michigan Public Law Working Paper no. 259,
available on SSRN.
One of the notable current developments in modern estate planning is that of the dynasty trust, a device for passing family wealth though the generations without the imposition of estate, gift or generation-skipping tax along the way. Fueled by the combination of clients seeking a measure of immortality, state legislatures seeking to attract trust business, and lawyers and trust companies seeking to secure a “client” that will last for generations, the device has become a must-consider technique for wealthy Americans.
Professor Lawrence Waggoner does not think dynasty trusts represent good public policy, a theme he has addressed in many of his earlier writings. However, his argument in this piece is slightly different. Addressing his remarks not only to state legislatures, but to those clients considering implementing a dynasty trust, he contends that dynasty trusts may not serve any useful interest for the very clients clamoring to establish them. His argument takes two major forms. First, utilizing some mathematical modeling, he illustrates how the passage of time dramatically multiplies the number of eligible trust beneficiaries of a hypothetical dynasty trust and dramatically dilutes their genetic relationship to the individual who originally establish the trust. For example, Prof. Waggoner calculates that some 325 years after its inception, a typical dynasty trust might have over 100,000 beneficiaries, and after 450 years might have well over one million such beneficiaries. Continue reading "Rethinking Perpetual Trusts"
Jan 25, 2013 Frank PasqualeTechnology Law
Economists are beginning to lose faith in technological progress. As one wag puts it: instead of cancer cures, “Captain Kirk & the USS Enterprise, we got the Priceline Negotiator and a cheap flight to Cabo.” Even formidable companies like Google have fled the health field, daunted by the complex legal environment. Some have called for radical deregulation as a solution. But a more viable approach is to turn to the work of some of the smart, committed, and impartial legal scholars who are pioneering the field of cyberhealth law. Particularly instructive is Sharona Hoffman & Andy Podgurski’s article, Improving Health Care Outcomes through Personalized Comparisons of Treatment Effectiveness Based on Electronic Health Records.
In an information economy, even cheesecake can be optimized using data-driven methodology. Unfortunately, leading health care providers often resist such methods of improvement. Pharmaceutical firms have sometimes continued to market drugs even after reports emerge that undermine the rationale for taking the drug, let alone paying for it.That troubling method of attaining short term profits at the cost of long term sustainable business models needs to be countered by sophisticated methods of analyzing (and disseminating) data on the real effect of medical interventions. Hoffman and Podgurski help develop a legal and technical framework for assuring that happens. Continue reading "CyberHealth: Computerizing Personalized Comparisons of Treatment Effectiveness"
Jan 23, 2013 Michael MadisonIntellectual Property Law
Aaron Perzanowski,
Intellectual Property Norms in the Tattoo Industry, Wayne State University Law School Research Paper No. 12-14, available at
SSRN.
Tattooing has gone mainstream. In the introduction to Intellectual Property Norms in the Tattoo Industry, Aaron Perzanowski lets the facts speak for themselves: “An estimated twenty-one percent of adults in the United States—more than sixty-five million Americans—have at least one tattoo. For those under the age of 40, that percentage nearly doubles. Not surprisingly, the tattoo business is booming. By some estimates, the U.S. tattoo industry generates $2.3 billion in annual revenue.”
Small wonder, then, that Perzanowski has tackled the originality and copying norms adopted by the communities of tattooers, extending in certain respects – and distinguishing in others – recent work on informal IP norms among stand-up comics, fashion designers, French chefs, magicians, roller derby queens, and fans of jam bands. The first great contribution that Perzanowski makes in this paper is assembling and describing a collection of qualitative data about the relationship between formal IP rules and informal norms among yet another group of people with their own distinct sets of creative and copying practices. It’s not surprising, perhaps, that despite the mainstream popularity of tattooing, tattooers continue to regard themselves as outsiders, pirates even, and that they have little use for or reliance on formal IP rules. Yet unlike their counterpart comics, designers, chefs, and magicians, tattooers have ample opportunity to integrate their work with copyright law. Tattoos are copyrightable subject matter, and infringement claims, while rare in practice, are hardly unimaginable legally.
What makes this paper compelling is that Perzanowski goes beyond the instinct to look at informal anti-copying norms in tattooer communities primarily as substitutes for or complements to formal copyright law. The insight offered by earlier work on comics, fashion designers, and so on has been that copyright’s formal structure is often overbroad, because creative communities may thrive even when copyright falls short. Informal social norms can pick up the slack, guiding creative practice and policing copying where needed. The lesson is specific: efforts to extend and broaden copyright law in those domains may cause more harm than good. Continue reading "Tattoo You"
Jan 21, 2013 Alexandra LahavCourts Law
Here is a practical problem: Where should a person who was harmed by a product be able to sue the manufacturer of that product?
Here is a complex judicial answer to that problem: Combine ½ cup state sovereignty and ½ cup due process, cook on low simmer and stir with circular reasoning, adding three or four new factors every twenty years. After ingesting this concoction you might feel a bit ill, as did one civil procedure student who wrote on an exam: “personal jurisdiction is a pain in the _____” (original language omitted). Felix Cohen said it more eloquently when he described the kind of reasoning that still passes for personal jurisdiction doctrine as “transcendental nonsense,” but the student’s reaction is more direct.
Daniel Klerman’s new article, Personal Jurisdiction and Product Liability, is a welcome antidote to the combination of creeping transcendentalism in the Case of the Giant Shears (the Supreme Court’s most recent personal jurisdiction case, more commonly known as J. McIntyre v. Nicastro), and the proliferation of factors that characterizes personal jurisdiction doctrine today. Personal jurisdiction is an area of law for which economic analysis especially well-suited because of the policy implications entailed. As hard as it is to imagine, Klerman’s is the first article to apply economic analysis to personal jurisdiction doctrine. I am glad he was the one to do it. Continue reading "Economic Analysis of Personal Jurisdiction"
Jan 18, 2013 John GoldbergTorts
W. Jonathan Cardi, Randy Penfield & Albert Yoon,
Does Tort Law Deter?, Wake Forest Univ. Legal Studies Paper No. 1851383 (2011),
available at SSRN.
Why have tort law? After all, other laws and institutions cover a lot of the same ground. If we want to punish bad actors, there is criminal law. If we want to ensure safety, there is regulatory law. If we want to aid injury victims, there is public and private insurance. What’s left for tort?
A standard answer is that tort, with its threat of liability, deters people from engaging in conduct that unduly risks harm. Tort law is needed for this purpose, the answer continues, because a good deal of risky conduct falls outside the ambit of criminal and regulatory law. For example, injuring someone by careless driving usually isn’t a crime, so the threat of negligence liability fills the void. Of course this answer assumes that the prospect of liability will actually induce people to act more carefully. Does Tort Law Deter?, by Professors Cardi, Penfield, and Yoon, is an innovative attempt to harness social science methods to investigate that assumption. Continue reading "Against the Law?"
Jan 16, 2013 Adam RosenzweigTax Law
A quiet, but powerful, movement seems to be emerging in the field of international tax – the explicit recognition that development policy is integral to any analysis of international tax policy. Put differently, if the initial distribution of resources affects the return on resources, which itself affects the taxation of resources and thus the provision of public goods (which themselves feed back into the return on resources), distribution must be incorporated into the efficiency analysis of international taxation rather than thought of as a second, unrelated “fairness” step.
Mitchell Kane contributes to this evolution in his thoughtful new article, Bootstraps and Poverty Traps: Tax Treaties as Novel Tools for Development Finance, 29 Yale J. Reg. 255 (2012). In this article, Kane attempts to integrate development economics into the tax treaty calculation itself – the exact opposite of traditional tax treaty policy. Originally, the policy behind tax treaties was to lower tax barriers to cross-border trade – as barriers dropped, trade increased, making everyone better off. What this theory did not take into account, however, was that this only worked for countries between which trade would flow. That is, countries with roughly similar economies. But what about small, capital poor countries? What would they get in return for signing a tax treaty with a wealthy country? The emerging consensus is: nothing. So why would they ever sign a treaty with a wealthy country such as the United States? Continue reading "Integrating Tax and Development Policy"
Jan 14, 2013 Abigail MoncrieffHealth Law
Kenneth Abraham,
Four Conceptions of Insurance, ___ U. Pa. L. Rev. ___ (forthcoming 2013), available at
SSRN.
In the highly contentious debates over the Patient Protection and Affordable Care Act (ACA or “Obamacare”), different conceptions of health insurance vied for supremacy. But the struggle occurred silently. The debaters never explicitly acknowledged—and may not have completely understood—that the foundation of their disagreement might be their underlying sense of what health insurance is and ought to be. Ken Abraham has ably shone a light on this silent struggle in his recent article, Four Conceptions of Insurance.
Abraham lays out and critiques four views of insurance: as contract, public utility, product, and regulator. In the end, his conclusion is simple. All four visions have some explanatory power for the content of modern insurance law, which necessarily means that none of the four visions is fully descriptive of modern practice. Modern law sometimes treats insurance as contract, sometimes as public utility, sometimes as product, and sometimes as regulator. But one’s preferred conception of insurance has much to do with one’s preferences as to what the law should be. When law treats insurance as a contract, those who see insurance as akin to a public utility are quite unhappy. Continue reading "Obamacare and the Competing Conceptions of Insurance"
