Category Archives: Jotwell
Feb 6, 2012 Angela FernandezJotwellLegal History
Samuel Moyn,
From Antiwar Politics to Antitorture Politics, available at
SSRN.
Columbia University history professor Samuel Moyn (visiting at Yale Law School in the spring term of 2012) has recently posted his paper From Antiwar Politics to Antitorture Politics on SSRN, a paper I heard him present at a November session of the Critical Analysis of Law workshop at my law school, the Faculty of Law, University of Toronto. I write about it here on JOTWELL because it is an excellent paper, which law professors might not otherwise hear about, offering an extremely thoughtful intervention on the recent history of international law.
Moyn’s thesis is that international law in the human rights era has moved from a Nuremberg-informed concern with the crime of waging aggressive war to a preoccupation which he thinks first developed in the later stages of the Vietnam War with crimes committed in the conduct of war itself, with the means and methods of warfare so familiar to us now in post-9/11 debates about the detainment and torture of prisoners in the “War on Terror.” Until My Lai in 1969, Moyn argues, Americans were shockingly cavalier about illegal military acts committed in the Vietnam War that were widely known to be occurring – mistreatment of POWs (direct military shootings and torture of suspected South Vietnamese subversives), search and destroy missions that made little or no effort to distinguish between combatants and civilians, and massive aerial bombardments, including unauthorized bombings in Cambodia and Laos. When American lawyers entered the debate about the legality of the war, Moyn shows that they paid little attention to crimes committed in the conduct of the war. Here he focuses on the activities of “The Lawyers Committee Concerning American Policy in Vietnam” between 1965 and 1969. This group concentrated on aggression and the legality of American intervention in Vietnam and nowhere addressed the law governing the conduct of warfare. Things did change. Moyn gives a central place in his story to Richard Falk, a member of this group and an academic lawyer who eventually became very vocal in his opposition to the war, including an emphasis on illegal methods of conducting it. The second person who features prominently in his paper is a more conservative critic, Telford Taylor, a military man who had been a prosecutor at Nuremberg, whose popular book Nuremberg and Vietnam: An American Tragedy (1970) condemned the war. Taylor made the allegations of war crimes committed in Vietnam “respectable,” as he could not be seen as relying on spurious accounts from the far left or dismissed as a Communist sympathizer. Taylor followed the post-My Lai trend of emphasizing war crimes, casting doubt on the whole idea of aggressive war from Nuremberg. Taylor appreciated that “unlike at Nuremberg where it was obvious who had started World War II, the Vietnam era showed that one man’s aggressor was another man’s victim (and vice versa).” Continue reading "Aggression v. Atrocity in the History of International Law: From the Tokyo Trial to the Vietnam War"
Feb 3, 2012 Frank PasqualeJotwellTechnology Law
Scott Peppet’s article Unraveling Privacy: The Personal Prospectus & the Threat of a Full Disclosure Future has offered a fundamental challenge to reigning privacy paradigms in cyberlaw. The old privacy law assumed that the right set of laws could help individuals hide embarrassing facts or disable invasive tracking. The encroaching “full disclosure future” ensures that those who try to maintain secrets look like they have “something to hide.” We used to be afraid of shadowy watchers collecting incriminating “digital dossiers;” now we worry over not measuring up when rivals reveal better “personal prospectuses” than our own. Peppet’s elegant interweaving of social science and law renders us unable to rely on old privacy paradigms like “notice and consent” online.
Something to Hide
Traditionally, privacy law experts have assumed that a combination of markets and law can preserve privacy. Firms will compete to offer more or less privacy. Data collectors will provide customers with various “privacy settings” that tailor online services to optimize self-disclosure. Some have proposed “personal data vaults” to manage the emanations of sensor networks that track movements and actions in real space. Jonathan Zittrain’s classic article on “privication” proposed that the same technologies used by copyrightholders to monitor or stop dissemination of works could be adopted by patients concerned about the unauthorized spread of health information. Continue reading "The End of “Notice and Consent” as Meaningful Privacy Protection"
Feb 1, 2012 Ann BartowIntellectual Property LawJotwell
Yvette Joy Liebesman,
Downstream Copyright Infringers,
Kan. L. Rev (forthcoming), available on
SSRN.
This article is a fine example of smart and accessible copyright scholarship that identifies and clearly describes a perplexing aspect of the current law, and then succinctly proposes sensible solutions. The somewhat startling problem that Saint Louis University Law Prof Yvette Joy Liebesman identifies is this: A consumer who purchases authorized downloads of musical recordings, intending to behave legally and in consummately copyright law compliant manner, may actually be guilty of copyright infringement if the songs she purchases in digital format turn out to infringe the copyrights of other songs, such as by including unauthorized samples of vocal or instrumental riffs.
Liebesman points out that based on the ways the pertinent statutory provisions of the Copyright Act were written and interpreted, had the same people purchased the same songs, but with the copies embedded in vinyl or written on a compact disk, they would not be vulnerable to liability infringement for owning them. But the recording industry has been so eager to frighten off prospective unauthorized downloading of music that it persuaded Congress and the courts to construct a legal regime under which even legal downloaders are at risk, facing strict infringement liability for completely innocent acts of (e.g.) purchasing songs from iTunes and loading them on an iPod. This group of potential defendants includes me, and most of you reading this. Continue reading "The Copyright Law is An Ass: A Brash New Installment in this Fascinating Ongoing Series!"
Jan 30, 2012 Jay TidmarshCourts LawJotwell
In this comment on the Supreme Court’s October 2010 Term, Judith Resnik links together three cases – two of them among the Term’s blockbusters and a third that traveled beneath the radar screen – to explore issues of access to courts in modern America. The blockbusters – AT&T Mobility LLC v. Concepcion, and Wal-Mart Stores, Inc. v. Dukes– have evident connections, as a host of commentators have already noted (and undoubtedly will continue to note in myriad forthcoming articles). Concepcion held that the Federal Arbitration Act preempts a court’s ability to invalidate as unconscionable under state law consumer-contract clauses that required consumers to waive the right to obtain classwide arbitration. Wal-Mart held that a class composed of female employees (perhaps as many as three million in total) could not be certified under Federal Rule of Civil Procedure 23. In adopting constrictive views of Rule 23(a)’s “commonality” element and Rule 23(b)(2)’s injunctive-class-action element, Wal-Mart reduced the scope of federal class actions. But its holdings or dicta on a number of other points – requiring a “rigorous analysis” of Rule 23’s elements, suggesting a need for opt-out rights whenever class members seek monetary relief, and crushing the use of sampling methods to prove individual class members’ damages – have contributed equally to a sense that the Court has sounded the death knell for class actions.
Although too melodramatic a take-away from either Concepcion or Wal-Mart, the death-knell concern fits neatly into a storyline that has been building since the Class Action Fairness Act of 2005, as well as two cases in the October 2009 Term (Shady Grove Orthopedic Assocs. v. Allstate Insurance Co., and Stolt-Nielsen S. A. v. AnimalFeeds International Corp.): federal courts are exercising increasing control over the availability of class actions, whether in court or in arbitration. And that storyline feeds into the larger storyline of an anti-consumer, anti-employee, pro-business Roberts Court. Continue reading "Access to Courts and the Democratic Order"
Jan 20, 2012 W.A. EdmundsonJotwellJurisprudence
Law is related both to morality and to convention. Differently related, surely. But how, exactly? That should be easier to explain if we could say how morality and convention are related to each other. But how easy is that?
Even as children, almost all of us understand the difference between saying that something is wrong, and saying that something “just isn’t done around here.” We would say that rape is wrong no matter how commonly it occurs; but we wouldn’t say that passing the decanter of port to the right was wrong even if we found out that, where we happened to be, doing so breaches a hallowed custom. Not wrong, strictly speaking, anyway, if we mean morally wrong. We all understand the difference, at least until we’re asked to explain it. (“And which kind are legal judgments?” –one might wonder: see answer below.) Continue reading "Law in the Neighborhood of Morality and Convention"
Jan 13, 2012 Davina CooperEqualityJotwell
Amongst those who favor equality, there is, it might be said, a reluctance to confront its norms, premises and institutional tendencies. Yet, as a discourse and governance project, it is at least arguable that equality bears (or embraces) conventions of calculation, orderliness, categorization, legitimacy (as a precondition for equality or its result), boundaries and top-down assumptions of implementation and accomplishment. Unsurprisingly, critiques of equality, particularly more anarchist ones, tend to prefer difference, freedom, anti-identity politics, an aesthetic of non-equivalence, and open-ended non-institutional action.
Nail’s (2010) article, invested in building a new radical praxis, poses a way through and between these constructed polarities. While Nail doesn’t address equality directly, the issues he explores are hugely important to thinking more openly, and reflexively, about equality within the context of a radical change politics. At the heart of Thomas Nail’s article is the claim that radical politics needs to rebalance its focus; the almost exhaustive interest in cataloguing and pouring over what is wrong in the present needs to be supplemented more fully with greater interest in the social renewal posed by contemporary social experiments. Continue reading "Thinking About Post-Anarchism"
Jan 11, 2012 Richard MoorheadJotwellLegal Profession
Christine Parker, Robert Rosen & Vibeke Lehmann Nielsen,
The Two Faces of Lawyers: Professional Ethics and Business Compliance With Regulation, 22
Georgetown Journal of Legal Ethics 201-248 (2009), available at
SSRN.
In the glamorous/murky/elite/financially rewarding world of commercial law is it clients or lawyers who are the bad guys? Put another way, does business corrupt law or do lawyers corrupt business? This is the question that lies at the heart of Parker, Rosen and Nielsen’s paper. Since the Savings and Loan scandals via WorldCom, Enron and latterly UK’s own Hackgate, corporate wrongdoing is often accompanied by the question, Where were the lawyers? And as Big Law turns increasingly, well, ‘big’, the “is law a business or a profession” question is posed increasingly nostalgically, usually with deliberate exaggeration and answered only with speculation rather than evidence. It is refreshing, therefore, to report on a study which is deals with the relationship between law and business empirically and with imagination which also deals with conceptually important questions.
Indeed, it is a central premise of professionalism that lawyers that they apply their specialist knowledge in the public interest. That is lawyers should act to encourage lawfulness on the part of their clients. They should encourage compliance. Professional ethics courses tend to concentrate on the idea that it is a Holmesian ‘bad man’ client that pushes lawyers into ethically grey areas. In particular that client (usually a businessman or criminal defendant–sometimes both) exploits a lawyer’s duty to zealously defend their client’s interests. Corporate clients, as sophisticated players, with deep pockets and repeat business on offer, are able, so the theory goes, to corrupt their lawyer’s into finding ways of playing the system to the client’s advantage. In simple terms the theory is lawyers good/clients + markets bad. And, of course, markets win. Parker and her colleagues ask the question: Is this an empirically testable proposition? And, once tested, is it an accurate proposition which is borne out by the evidence? For those of you with short attention spans the answers are yes it’s testable and no, it’s not an accurate proposition. Continue reading "Lawyers v. Businessmen: Where Are the Bad Men?"
Jan 6, 2012 Louis Michael SeidmanConstitutional LawJotwell
Presidents of the United States do not unilaterally extend their term of office, jail all their opponents, or rule by decree. The Supreme Court does not (or at least does not usually) declare its favored candidate to be President. Congress does not abolish the Supreme Court or create an official religion. Why not?
In an important new article, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657 (2011), Daryl Levinson reminds us that these familiar facts about our world are deeply perplexing and that the usual explanations for them are manifestly inadequate. Continue reading "Parchment and Obligation"
Jan 4, 2012 Michael MadisonJotwellTechnology Law
Marketa Trimble,
The Future of Cybertravel: Legal Implications of the Evasion of Geolocation,
22 Fordham Intell. Prop. Media & Ent. L.J, (forthcoming 2012), available on
SSRN.
Fifteen years ago, David Post and David Johnson published what some still regard as the seminal paper of cyberlaw scholarship: Law and Borders: The Rise of Law in Cyberspace. Post and Johnson argued that because cyberspace was defined, in a way, by the very absence of territoriality, cyberspace should be governed by laws and lawmakers not tied in traditional ways to territorial states. That paper provoked a reply, Against Cyberanarchy, by Jack Goldsmith, and those two positions – “cyberspace is different”; “no, it isn’t” — have pretty much defined the landscape of cyberlaw ever since. Later scholars have had little choice but to explore the implications and details of staking out intermediate positions. When and how does cyberspace differ, and what do we do about it?
Marketa Trimble’s article approaches this topic by revisiting a species of the territorial question that prompted Law and Borders. How can and should the law address behavior online by people who are physically located in one place but who wish to create or manage online identities in other places? Trimble calls this the challenge of “cybertravel,” a phenomenon that is hardly new but that has taken on renewed significance as Internet technologies (and governments) have caught up to the many ways in which cybertravelers can be in more than one place at a time. Continue reading "Law and Borders, Revisited"
Dec 16, 2011 Stacey DoganIntellectual Property LawJotwell
Sandra L. Rierson,
The Myth and Reality of Dilution, 2012
Duke L. & Tech. Rev. __ (forthcoming), available at
SSRNIt’s become almost passé to decry our federal trademark dilution laws. The laws – first passed in 1995 and amended in 2006 – protect “famous trademarks” against uses that are likely to dilute their distinctiveness, without regard to any confusion among consumers or competition between the parties. Early critics warned that passage of the anti-dilution statute marked a turning point in trademark law: by giving famous trademark holders rights against even non-confusing uses of their marks, the law created “property”-like rights in trademarks. The initial commentary on the statute focused mainly on the costs associated with this increasingly absolutist approach to trademark rights.
After several years of witnessing the dilution laws in action, however, the nature of the commentary has shifted. Scholars have gone from a state of wary watchfulness to one of bemused head-scratching, as they have unpacked the theoretical underpinnings of the doctrine and observed its treatment in the courts. Dilution laws, it turns out, are a solution in search of a problem, and have had little practical effect. We have learned that consumers can handle linguistic clutter, so the supposed harm from dilution – the gradual whittling away of a mark’s distinctiveness – lacks empirical support. We’ve heard that the fear of famous trademark holders – that third parties have an incentive to adopt their mark in entirely unrelated markets – defies reality, in which businesses have little interest in replicating someone else’s utterly irrelevant mark. And we’ve been told that the dilution claim has made virtually no difference in the outcome of trademark litigation. No doubt because good old-fashioned trademark law gives owners rights to prevent uses in widely disparate markets, the owners of famous trademarks didn’t need this new statute to protect them against use of their marks even on unrelated products. Continue reading "Trademark Dilution and Corporate Personhood"
