Sep 26, 2019 W.A. EdmundsonJurisprudence
The death of John Gardner this summer, at age 54, is a fearful loss. This generous, multi-talented, and much-loved man was a world-renowned figure in several fields of jurisprudence, including not only the general topic of the nature of law but also in the special theories of criminal law, tort, and sexual assault. He was one of the pillars of Oxford’s outstanding strength in the philosophy of law. What irony that one of the last of his writings was titled The Twilight of Legality.
The article itself is something of an elegy for the imminent passing away of a still familiar self-conception of the law, and of the lawyer’s calling, that some will think already archaic. This is a conception of the lawyer as not merely a service-provider, but as public citizen having a special obligation to foster legality as a public good. This obligation in turn entails seeking justice according to law, and not merely justice between parties. John was conscious that his remarks might come across as cultural criticism, but he framed his subject as a philosophical puzzle: how to reconcile the trend toward ever-greater juridification of everyday life with legality, that is, with the rule of law? “Juridification” meaning: the manufacture of laws and legally enforceable non-law norms—especially contracts binding consumers to terms set in boilerplate language dictated by corporations. Continue reading "Juridification Without Legality"
Sep 25, 2019 Ana Santos RutschmanIntellectual Property Law
- Stefania Fusco, “Murano Glass Vase” in A History of Intellectual Property in 50 Objects (Dan Hunter & Claudy Op Den Kamp eds., Cambridge University Press 2019).
- Stefania Fusco, Lessons from the Past: The Venetian Republic’s Tailoring of Patent Protection to the Characteristics of the Invention, 17 Nw. J. Tech. & Intell. Prop. __ (forthcoming 2020), available at SSRN.
The apparent one-size-fits-all configuration of contemporary intellectual property systems has troubled many a scholar. The topic has a particular salience in patent law and policy, where debates about the need to tailor legal regimes to technology-specific domains remain an evergreentheme. Stefania Fusco takes an interesting spin on that debate by looking backwards—far backwards, to the place and industry that are inextricably tied to the imagination of patent aficionados as the birthplace of the formalized patent system: early modern Venice and its glassmaking industry. And she puts forward an intriguing proposition: the place that exported the patent system to Europe and the United States had tailorable components, designed to calibrate incentives to innovation; why do we not consider a similar approach in early 21st century America?
In Murano Glass Vase, Fusco briefly recounts the history of the glassmaking industry in Venice, framing it as the natural experiment from which the patent system sprang into the world. In the past, the Venetian model has received the attention of legal scholars like Ted Sichelman and Sean O’Connor, who explored the competition-enhancing properties of patents issued by the Venetian state. Like her predecessors, Fusco emphasizes the mix of exclusionary rights and trade secrecy that formed the backbone of Venetian innovation policy against the backdrop of a heavily regulated and protectionist economy. She describes how that mix was key in attracting foreign talent to Venice and how it facilitated technology transfer among the city state and the outer world. Continue reading "From Venetian Glass to Contemporary Intellectual Property: Revisiting Tailored Patent Regimes"
Sep 24, 2019 Sonia LawrenceEquality
Equality scholars in law often concentrate on constitutional or other legislated equality protections, analyzing how they are applied and interpreted, and evaluating their impact. But this can have the effect of allowing law to narrow the places in which equality questions are seen as relevant. In Beyond Airspace Safety: A Feminist Perspective on Drone Privacy Regulation, Kristen Thomasen brings together emergent technologies, legal questions, and social context in interrogating the gendered implications of the way privacy is framed and regulated.
Professor Thomasen problematizes the safety-oriented development of North American drone regulation, by reference to feminist critiques of approaches to privacy in western law and philosophy. She carefully articulates the ways in which drone technology is not value neutral (noticing a variety of ways in which mainstream discourse has tended to assume that the newness of the technology designates it as a per se good). Instead, she focuses on the salient features of this particular technology – that it flies, that it can carry a variety of payloads, that it is separated from the operator, and that it is relatively low-cost. She is concerned that the technology be carefully set into the particular, existing, and gendered, context. Unfortunately, she contends, neither public discourses nor the work of regulatory agencies show evidence of this kind of approach. Continue reading "Ways of Watching: Bringing Equality Thinking to Regulation of “New” Technology"
Sep 23, 2019 Sergio J. CamposCourts Law
Christine P. Bartholomew,
E-Notice, 68
Duke L.J. 217 (2018).
As I have mentioned in previous jots, I am a big fan of scholarship that focuses on “on-the-ground-practice with a sensitivity to finding solutions.” Christine Bartholomew’s E-Notice fits that mold. Bartholomew reviews more than 2,700 federal district court decisions on notice in class actions to examine the openness of these courts to electronic methods of notice that take advantage of newer technologies, big data, and social media.
But the article is much more than that. It is one of those rare articles that uses on-the-ground practice to provide insights into one of the thorniest areas of the law—the law of due process. Continue reading "E-Notice and Comment on Due Process"
Sep 20, 2019 Amanda ShanorConstitutional Law
A stellar article by William N. Eskridge, Jr. makes important contributions to our understanding of the meaning and history of sex, discrimination, and big- and small- constitutionalism. Published on the eve of the Supreme Court’s hearing of blockbuster cases about whether gay and transgender people are protected under Title VII’s prohibition on discrimination “because…of sex” (R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, Altitude Express Inc. v. Zarda, and Bostock v. Clayton County, Georgia), the article offers easy entry into the key ideas at stake in significant civil rights issues today. It’s a must-read for anyone interested in civil rights or constitutional theory.
In Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, William Eskridge persuasively argues that Title VII’s prohibition on employment discrimination “because of…sex” applies to discrimination against LGBT people. Eskridge’s article is a tour-de-force exploration of the meaning and history behind “because…of sex.” It is not only a provocative read about the evolution of a statute, but it is also about the way that constitutional and statutory meaning interact over time. Eskridge demonstrates the tight interconnection of the development of Title VII and the Constitution’s treatment, not only of sex, but also of race and religion. He takes a step beyond his prior work to argue that formal changes in constitutional jurisprudence and statutory amendment must inform a statute’s current meaning. That analytical point—demonstrated through a rich and evocative history of “because of…sex”—is the article’s key contribution. Continue reading "“Because…of Sex” & Constitutional Meaning"
Sep 19, 2019 Lee Anne FennellProperty
Maureen E. Brady,
Property and Projection, 133
Harv. L. Rev. __ (forthcoming 2020), available at
SSRN.
Suppose an unfriendly neighbor, professional rival, disgruntled employee, or random malcontent decides to send a message—from you. Said enemy projects words or images onto your real estate—the facade of your home or office building, say—turning your private property into an “unwitting billboard” showcasing an unwanted message. The affront is palpable, but a viable cause of action has proved as hard to nail down as the light beams themselves. Claims based on these fact patterns have so far foundered: courts find these projected intrusions too incorporeal to count as trespass, yet too fleeting and harmless to count as nuisance.
In Property and Projection, Maureen Brady surveys this interesting terrain and convincingly argues that such targeted acts of “communicative appropriation” should be actionable. This result seems so well supported that it initially seems surprising that courts have yet to reach it. In fact, projected speech of the sort Brady examines turns out to be an intriguing entry point into the nature and evolution of property entitlements, as well as a fascinating legal puzzle in its own right. There’s a great deal to unpack and enjoy in the piece, including the detailed history of old-fashioned light-related cases that Brady provides. I will focus in this short jot on what I found most compelling about Brady’s argument: the idea that these projections conscript property into the role of an unwilling speaker whose messages may be attributed in error to the owner. Continue reading "Projecting and Puppeteering"
Sep 18, 2019 Eric J. MillerCriminal Law
In The Punishment is the Process, Malcolm Feeley famously documented that in New Haven, Connecticut’s low-level criminal courts, pretrial detention, and its impact on work and family responsibilities, drove plea bargains. In Prosecuting Poverty, Criminalizing Care, Professor Wendy Bach demonstrates that, in Eastern Tennessee’s low-level problem solving court, the threat of pretrial detention may drive access to opioid treatment through “diversion” into drug courts.
Problem-solving courts, including drug courts, are one of the fundamental innovations in criminal justice over the past quarter of a century. These courts purport to change the behavior of offenders by providing intensive supervision and treatment for non-violent offenders whose offending derives from particular social, medical, or psychological causes. Their distinctive approach depends upon the claim that the criminal justice system must respond to the problem of drug addiction, as well as their non-custodial, inter-disciplinary, team-oriented and court-centered model of continuous judicial monitoring. Continue reading "The Punishment and Treatment is the Process"
Sep 17, 2019 Sida LiuLegal Profession
Law school graduation is a critical turning point in the early career of legal professionals. Going to the public sector or to private practice marks two distinct career tracks, in both common law and civil law jurisdictions. However, research on legal education and the legal profession usually focuses on either a lawyer’s law school experience or her legal career after graduation, with little effort to capture this key moment of transition. Even recent studies aimed at bridging the gap, such as the American Bar Foundation’s After the JD study or John Bliss’s research on the professional identity of law students, have not yet analyzed law students’ professional or political orientations at that crucial moment, right before their graduation.
Kathryn Hendley’s new article on Russian law graduates helps fill in this gap. Based on a 2016 survey of 2,176 prospective graduates from 163 law departments or faculties across the vast territories of Russia, Hendley shows that law students who plan to go to state service and private practice markedly differ in terms of their support of state policies, attitudes toward courts and lawyers, as well as opinions on political cases. This is a remarkable study, especially considering the difficulty in obtaining empirical data in authoritarian regimes like Russia. It suggests that lawyers’ professional identities, political orientations, and career choices have deep roots in their educational years. In other words, early career choices and professional/political values go hand in hand. Those law students who are more supportive of the regime and the courts are more likely to go into public service. By contrast, law students who choose to start their legal careers in private practice, such as law firms and in-house legal departments, often are more skeptical about the state as well as the moral standards of lawyers. Continue reading "From Russia with Law: Politics and Career Aspirations"
Sep 16, 2019 Elizabeth PollmanCorporate Law
Hillary Sale,
Social License and Publicness (June 13, 2019), available at
SSRN.
Why can’t Facebook persuade senators to help the company get its new Libra cryptocurrency off the ground? Why is VW running strange apology ads with Simon & Garfunkel’s Sounds of Silence and an allusion to light ahead? Many more questions could follow in this vein and the concept we’ve been looking for is an erosion of “social license.”
Sometimes an article has an idea so sticky that once you read it, you see relevant examples everywhere. You have a better vocabulary to discuss a phenomenon that you have long observed and might otherwise have used many words to describe. Professor Hillary Sale’s new article Social License and Publicness achieves all of this and more. Continue reading "Here’s The Term You’ve Been Looking For: Social License"
Sep 13, 2019 Michael YuTrusts & Estates
All professional estate planners are familiar with the family limited partnership (FLP) as a gift and estate tax vehicle to create fractional discounts for federal gift tax purposes and to reduce the decedent’s gross estate for federal estate tax purposes. The main thesis of Professors Manns and Todd‘s piece is that a single-member LLC (SMLLC) is “the ideal initial entity in a gifting strategy.” (P. 325.) They contrast the SMLLC with the FLP, which “the literature continues to describe and analyze,” despite the fact that “the actual state law entity now is often an MMLLC [multi-member LLC].” (P. 344.) The professors discuss how an SMLLC “can be used to blunt the negative effects” (P. 325) (arguably, more successfully than an FLP) as to Internal Revenue Code sections 2512, 1015, and 2036, in part because of a Tax Court case, Pierre v. Commissioner.
In Pierre, the Tax Court held that, although an SMLLC may be disregarded under the check-the-box regulations for federal income tax purposes, those regulations do not provide for the LLC to be disregarded for federal gift tax purposes when a donor transfers an ownership interest in an LLC. (P. 344.) Professors Manns and Todd skillfully argue that, based on Pierre, a taxpayer can take advantage of the differing treatments of an SMLLC for federal income tax and federal gift tax purposes in the following situations (I do not cover in this jot all that the professors wrote). Continue reading "Why You Should Flip Out and Over to a Single-Member LLC"
