Yearly Archives: 2013

Substance, Procedure, and the Interdependence of Gatekeeping Standards Across Multiple Stages of Litigation

Louis Kaplow, Multistage Adjudication, 126 Harv. L. Rev. 1179 (2013).

Legal reasoning is often a reductive enterprise that enables lawyers to address a difficult question by positing a series of constitutive questions.  Dissecting vexing problems into more manageable components fosters analytical precision.  But precision comes with a risk of overlooking connections between seemingly discrete issues.  Each isolated inquiry may develop a life of its own that obscures their collective interdependence.

This phenomenon of distorting problems by isolating them is evident in the legal academy’s approach to the study of procedure and the judiciary’s approach to resolving disputes.  Law schools generally do not offer courses in “procedure,” focusing instead on subsidiary fields such as criminal procedure, administrative procedure, and civil procedure.  Within each field, coverage further dissolves into distinct topics.  Students may occasionally explore “civil procedure” in the abstract, but more often will study narrower subjects such as pleading, discovery, and summary judgment.  Scholarship often mirrors these divisions, coalescing into distinct literatures analyzing discrete aspects of litigation.  Judicial opinions likewise rarely consider procedure as an undifferentiated whole.  Instead, decisions address motions tailored to particular phases of litigation. Continue reading "Substance, Procedure, and the Interdependence of Gatekeeping Standards Across Multiple Stages of Litigation"

A Legal History That’s Really About the Place of Law in History

As the title suggests, Someday All This Will Be Yours is a legal history about inheritance and old age. The legal conflicts that form the core of the book make for compelling reading. Even so, the title does not capture the book’s most compelling elements, which challenge conventional assumptions about legal history and the place of law in the past.

Someday All This Will Be Yours is a legal history in which the law is not really the focus. To be sure, Hartog bases the book on two hundred New Jersey cases from 1840 to 1950. All these cases involved conflicts over inheritance, in which older people promised property in return for care from younger people—often, but not always their children or other relatives. Hartog calls it a “primordial transaction found perhaps anywhere and everywhere and in any time and every time”: “Work and care for property. You do this (take care of me), and I promise to do that (give you property at my death).” (P. 3.) In law, such promises resulted in an enforceable contract, and legal cases ensued when older people did not follow through with their end of the bargain. As Hartog argues, the cases did form a distinct legal pattern, in which the wishes of the older people writing the wills took precedence over those of the younger people to whom promises had been made. But, as he also points out, the legal implications are not really the point. In fact, the cases have been largely forgotten in law. Continue reading "A Legal History That’s Really About the Place of Law in History"

Trademark As Promise

Jeremy N. Sheff, Marks, Morals, and Markets, 65 Stan. L. Rev. 761 (2013).

The primary theory of trademark law in the academic literature is an economic one. Trademarks are a shorthand, the theory goes, for a number of observable and unobservable qualities of products. The trademark PEPSI, to take one example, is an easy way for a consumer to identify the cola that she enjoys without having to investigate other types of information, such as the location or corporate identity of the manufacturer. Indeed, some types of investigation in this regard—tasting the cola before purchase to confirm that it is the preferred drink—are frowned upon, to say the least. So the law regulates the use of trademarks in order to reduce search costs for consumers and, relatedly, to encourage producer investment in goodwill. When an unauthorized producer uses another’s trademark, the consumer is deceived into purchasing an unwanted product or forced to engage in additional efforts to find the product that she desires, both of which are inefficient. Although economic theory may not map neatly onto all areas into which trademark law extends (dilution law being one such example), it appears to be fairly well accepted in the scholarly literature that economic theory provides the predominant justification for trademark law’s existence.

But consumers obviously do not always act in ways consistent with economic theory. The relationships that some consumers have with some brands transcend a mere economic transaction; they involve identity construction and signaling motivated not by a product’s objective qualities but by intangible, emotional responses to the brand. The fact that some consumers are willing to pay many hundreds of dollars for a designer handbag or watch beyond the price that could be justified by the item’s materials or workmanship are a testament to the limits of economic theory. Continue reading "Trademark As Promise"

A Big Picture View of What Could Be Done About the Institutional Corruption of Medicine

Marc A. Rodwin, Conflicts of Interest, Institutional Corruption, and Pharma: An Agenda for Reform, 40 J.L. Med. & Ethics 511 (2012), Suffolk Univ. Law School Research Paper No. 12-40, available at SSRN.

Since long before his 2011 Oxford University Press book that takes a comparative approach to the problem, Marc Rodwin has been a leading voice in the debate around the pharmaceutical-healthcare industrial complex, and the conflicts of interest that it perpetuates. In his latest contribution in the Journal of Law, Medicine, and Ethics (JLME), Rodwin wisely moves from the language of ethics—which finger-waggingly suggests an individualism of bad guys and good guys—to the language of “institutional corruption.” Rodwin writes that, “in the past, physicians and scholars typically conceived of conflicts of interest as an ethical issue to be resolved according to individual judgment or professional and organizational norms. However, society can mitigate or eliminate conflicts of interest by changing financial and organizational arrangements in medicine.” Larry Lessig has encouraged this sort of move from individuals to institutions in his own work, and in his leadership of the Institutional Corruption Lab at the Edmond J. Safra Center for Ethics at Harvard, where Rodwin is a lab fellow. (Disclosure: I receive support from the Lab too).

Institutional corruption is useful as a lens to understand these problems because it directs us to examine the two-way economy of dependence. To the extent that incentives matter in our world of rational actors, an economy of dependence is an economy of influence. Rodwin notes that the pharmaceutical industry depends on public support in the form of tax subsidies, patent law rules, and other incentives. It is a strange exchange relationship, one where our government gives tax breaks for research and marketing, and even enforce a monopoly, for any new chemical compound invented by a drug company. It does so to the same extent, regardless of whether the new chemical is a cure for cancer or a “me too” drug, which makes no real improvement to clinical care. On the other hand, Rodwin identifies several ways in which the public, physicians, and patients now rely on drug companies. Pharma—not the Food and Drug Administration—sets its own priorities for drug development; designs and conducts the clinical trials that demonstrate safety and efficacy; monitors adverse drug reactions; and finances continuing medical education (CME), medical societies, and journals. Continue reading "A Big Picture View of What Could Be Done About the Institutional Corruption of Medicine"

Domestic Partnership Before Same-Sex Marriage

Douglas NeJaime, Before Marriage: The Unexplored History of Nonmarital Recognition and Its Impact on Marriage, 102 Cal. L. Rev. (forthcoming 2014), available at SSRN.

The left critique of the marriage equality movement has raised important questions about the privileging of marriage in our society and whether the push for same-sex marriage reinforces the second-class status of nonmarital (and nonintimate) relationships. This critique is invaluable because it presses us to focus on what should be the ultimate objective behind the current push to gain marital rights for same-sex couples: The end goal should be to encourage society and the state to recognize, support, and value many different types of familial and personal relationships. I view same-sex marriage not as an end in-and-of-itself, but as a means for having broader (and more important) debates over the role of gender, biology, and marital status in legally recognizing and supporting relationships between adults and between adults and children.

There is much to the left critique of same-sex marriage, therefore, that I value and respect. However, there is one aspect of that critique, related to the push for the legal recognition of relationships before the age of same-sex marriage, about which I have always been skeptical. Some critics have claimed that at the time marriage equality became the LGBT rights movement’s most important goal starting around the mid-1990s, there were well-organized efforts under way in different parts of the country aimed at reducing the importance of marriage, primarily by demanding the enactment of domestic partnership laws. These critics have claimed that if it had not been for the marriage equality movement, the early efforts to promote alternatives to marriage would have borne fruit, to the point where marriage today would be less central to the distribution of rights and benefits. Continue reading "Domestic Partnership Before Same-Sex Marriage"

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"