Dec 10, 2012 W.A. EdmundsonJotwellJurisprudence
Stephen R. Perry,
Political Authority and Political Obligation in 2
Oxford Studies In the Philosophy of Law (Leslie Green & Brian Leiter eds., forthcoming 2012) (Univ. of Pennsylvania School of Law, Public Law Reseach Paper No. 12-37, forthcoming) available at
SSRN.
A right to rule is the mark of a legitimate state or, put differently, of legitimate political authority. The correlate of this right to rule is a general duty, borne by all within a relevant territory, to obey the law laid down by the state – all of the laws, whatever their content. The right to rule excludes any right on the part of citizens to “pick and choose” which among the laws that apply to them to obey. The duty is a defeasible one, which must yield in case the duty-bearer is so circumstanced that a great evil could be avoided only by disobeying the law’s command. But, extraordinary cases aside, the general duty prevails. Such is the traditional view that this paper wants to reorient.
One problem with the traditional view is that it encourages the assumption that there is an acid test of state legitimacy: is there or is there not a general duty to obey? The legitimacy of political authority is thus tied to the existence of a general duty that there is good reason to doubt. The general duty dignifies silly regulations and fussy requirements that it seems morally innocent to ignore. Moreover, each of the theories that have traditionally been marshaled to justify such a general duty of obedience – gratitude, consent, tacit consent, hypothetical consent, fair play, necessity, expertise, association – come up short. On the traditional view, legitimacy can be established by establishing the general duty, and it can be rejected if the general duty lacks a persuasive ground. Continue reading "Perry on Powers"
Dec 7, 2012 Jonathan SimonCriminal Law
Leslie Meltzer Henry,
The Jurisprudence of Dignity, 160 U. Penn. L. Rev. 169 (2011),
available at SSRN.
Today American law, especially Eighth Amendment law, seems to be in the middle of a dignity tsunami. The United States is not alone in this regard, or even in the lead. Indeed dignity has been an increasingly prominent value in modern legal systems internationally since the middle of the 20th century, marked in the prominence given that term in such foundational documents of the contemporary age as the Universal Declaration of Human Rights, in the reconstructed legal systems of post-war Europe (particularly Germany), and in regional human rights treaties like the European Convention on Human Rights and the more recent European Union Charter of Rights. A stronger version of dignity seems increasingly central to reforming America’s distended and degrading penal state. Legal historians have suggested that American history — particularly, the absence of a prolonged political struggle with the aristocracy and the extended experience with slavery — rendered dignity a less powerful norm, which may explain the relative weak influence of dignity before now. Yet its increasing salience in the Roberts Court suggests that American dignity jurisprudence may be about to spring forward.
Professor Leslie Henry’s 2011 article, The Jurisprudence of Dignity, is a must-read for anyone interested in taming our penal state. Henry provides a comprehensive analysis of the US Supreme Court’s treatment of the term from the founding to the present. Henry borrows from the language philosopher Ludwig Wittgenstein the concept of a “family resemblance” and suggests that dignity as a legal term is anchored in five core meanings that continue to have relevance in contemporary law and which share overlapping features (but not a single set of factors describing all of them). The five clusters are: “institutional status as dignity,” “equality as dignity,” “liberty as dignity,” “personal integrity as dignity,” and “collective virtue as dignity.” These clusters suggest there can be both considerable reach but also precision and limits to using dignity to shape constitutional doctrine. Continue reading "Dignity Is Coming"
Dec 5, 2012 Stacey DoganIntellectual Property Law
Trademark law is in the midst of an identity crisis. The prevailing economic account of the law has come under sustained attack by scholars, who have both challenged its descriptive accuracy and blamed it for many of the expansions of trademark rights in recent decades. The likelihood of confusion test – long the nucleus of infringement analysis – has been roundly condemned as indeterminate, incoherent, and normatively empty. No one seems to agree about why we have trademark law and how best to implement it. Scholars have cast about for explanations of how we got here and ideas of how to get out of this mess.
In this article, Bob Bone tries his hand at both diagnosis and cure. His focus is the much-maligned likelihood of confusion standard. The article (1) explains how we ended up with such a curious test for infringement, (2) critiques the standard, finding it internally inconsistent, normatively deficient, and dangerous, and (3) proposes an alternative that Bone views as more consistent with trademark law’s goals. To do all of this, of course, Bone must endorse some version of those goals. It all adds up to an ambitious undertaking, to put it mildly. And while the article inevitably falls short of fulfilling all of these ambitions, it offers some wonderful insights and enriches the conversation about the values that shape our trademark laws. Continue reading "Beyond Confusion?"
Dec 3, 2012 Sheila ScheuermanJotwellTorts
Joseph Sanders, Matthew B. Kugler, John M. Darley and Lawrence M. Solan,
Torts as (Only) Wrongs? An Empirical Perspective (Brooklyn Law School, Legal Studies Paper No 302, 2012) available at
SSRN.
A long-enduring question in tort scholarship concerns the purpose of tort law. One camp, anchored by the powerful scholarship of John Goldberg and Ben Zipursky, argues that tort is a law of fault and wrongs, and strict liability is sort of that weird cousin no one likes to talk about much.
In a compelling new sociological study, however, Joseph Sanders tests the idea of tort as wrongs (and only wrongs), and adds to the scholarly debate about tort’s rationales. Sanders persuasively argues that—far from being “at the margin of tort law” —from the public’s perspective, strict liability reigns supreme. In four discrete studies, Sanders assessed whether the public believes fault or wrongdoing is a requirement for tort liability. His thoughtful article presents some surprising findings that should have those of us in the academy taking another look at the purpose of tort law. Continue reading "A Preference for Strict Liability?"
Nov 30, 2012 JotwellJotwell
Today we inaugurate a new Jotwell section on Health Law, edited by Associate Dean Kathleen Boozang of Seton Hall Law and Professor Elizabeth Weeks Leonard of The University of Georgia School of Law. Together they have recruited a stellar team of Contributing Editors.
The first posting in the Health Law section is Can the Power of the FDA Be Reprised? by Kathleen Boozang.
Please note our Call For Papers, and get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.
Nov 30, 2012 Kathleen BoozangHealth Law
Harvard Professor Daniel Carpenter’s Reputation and Power epitomizes the best of academic scholarship. While this review focuses on its substantive contributions to the health or life sciences professor, the theme of the book is actually much more significant – whether and how government bureaucracy can effectively contribute to the common good – which is the take reviewed by others. For those who are not intimately familiar with the Food and Drug Administration and pharmaceutical regulation, reading Carpenter’s book significantly resolves this knowledge gap. While I can’t disagree with David Zaring‘s observation that the book is “methodologically eclectic,” it is nonetheless an invaluable resource for students of drug regulation as well as the administrative state.
Carpenter’s opus provides a comprehensive history of each piece of legislation that contributed to the agency’s creation, describes how the responses to a few major drug safety crises, or what Carpenter calls “policy tragedies,” contributed both to the passage of key legislation and the FDA’s reputation, and posits that the agency’s reputation with its multiple constituencies is the key to its vast power. Ultimately, Carpenter is interested in how a government agency in a country that is anti-big government can be so trusted and hold such power over a multi-national industry. In concluding that the agency’s power derives from its reputation, Carpenter explores the relationship between the institution and those who populate it, paying tribute to the many FDA officials whose own ethical and scientific integrity created, maintained and were inextricably linked with the ethos for which the FDA is so respected. According to Carpenter, Dr. Frances Oldham Kelsey of thalidomide fame was not unique in her commitment to the public’s interest, scientific rigor and tenacity; those characteristics were embedded in the agency and, by virtue of its power, necessarily transformed the pharmaceutical industry from a not-always trustworthy and sometimes sloppy enterprise into one that adheres to generally accepted scientific methods. Continue reading "Can the Power of the FDA Be Reprised?"
Nov 30, 2012 JotwellHealth Law
Continue reading "Meet the Editors"Nov 30, 2012 JotwellHealth Law
Continue reading "Call for Papers"Nov 29, 2012 JotwellHealth Law
Continue reading "Jotwell Mission Statement"Nov 28, 2012 Brian BixFamily Law
I. Glenn Cohen,
Regulating Reproduction: The Problem with Best Interests, 96
Minn. L. Rev. 423 (2011), available at
SSRN.
Whenever they can, advocates and politicians will re-characterize contentious debates in terms of the effects on children, even when the real concern is elsewhere. The most prominent current example may be the debates on same-sex marriage, where those opposed to recognizing such unions refer regularly to alleged bad effects on children, even though those alleged effects are indirect and (at best) highly speculative. However, talking about children avoids the less publicly acceptable view that likely motivates a large portion (though far from all) of the opposition to recognizing such unions: a view that the homosexual lifestyle should be criticized rather than supported.
In Family Law doctrine, one can also find this sort of misuse of “best interests of the child”: it is in a sense changing the topic, and calling one thing by a more favorable name. Thus, there are principles for custody decision-making that purport to be (or be based on) the “best interests of the child,” but in fact reflect parental rights (e.g., the strong presumption for visitation by a non-custodial parent, even where there is strong evidence that this visitation is causing harm to the child) or other important social policies (e.g., refusing to base a custody decision on how a child might be harmed by the racist views of other people).
In Regulating Reproduction, I. Glenn Cohen similarly rebuts the use of “best interests” in one area of Family Law – the regulation of reproduction – and he does this with an added twist. When one properly speaks of “best interests of a child,” the structure of the analysis is Option 1 as against Option 2 for the same child: custody with mom as against custody with dad; adoptive placement with Family 1 versus placement with Family 2, or perhaps waiting for a better placement option to become available; having the medical treatment versus not having the medical treatment; and so on. The decision-maker is to imagine the hypothetical future worlds for the child under the alternative choices and to evaluate which future is likely to be better. However, when “best interests” is applied to the regulation of reproduction, there are no comparable comparisons; “best interests” analysis turns out to be, more often than not, both useless and incoherent. Continue reading "When “Best Interests” Cannot Guide"
