Dec 10, 2010 Michael MadisonTechnology Law
The organization of the Internet raises some profound and fundamental questions about the nature of law and social order, questions that legal scholars have tackled head-on only occasionally and incompletely. If, as Lessig once argued, technical protocols effect a kind of “law” analogous to treaties, statutes, judgments, and administrative regulations, then by what standard should that “law” be regarded as legitimate and authoritative? Comparable questions have been asked from time to time with regard to informal social norms that seem to operate online, and more frequently with respect to the private but apparently governmental institutions, particularly the Internet Corporation for Assigned Names and Numbers (ICANN), that have evolved over the last decade to govern the wilds of the Net.
Lawrence Lessig, in Code and Other Laws of Cyberspace, and later Michael Froomkin, in Habermas@discourse.net, chose to look at legitimacy in cyberspace from the perspective of normative political theory. Jonathan Weinberg, in this chapter from the International Handbook on Informal Governance titled “Non-State Actors and Global Informal Governance – The Case of ICANN,” steers clear of such normative judgments and instead approaches the task explicitly as one of sociological, or descriptive, legitimacy. Legitimacy is important, as Weinberg, notes, in part because perceptions of an institution’s legitimacy powerfully impact willingness to comply with its commands or defer to its arrangements. Though he does not argue the case explicitly, legitimacy is central to institutional authority. Legitimacy and social order – online and off – go hand in hand. Continue reading "Exploring Legitimacy in Internet Institutions"
Dec 8, 2010 Sean CoyleJurisprudence
The question of the nature of law lies at the heart of jurisprudence. At the present day, the major sources of debate on the question revolve around acceptance or otherwise of ‘legal positivism’ and associated doctrines of analytical jurisprudence. Do we reveal the nature of law when we clarify the conceptual presuppositions of certain social practices? Must theories of the nature of law be ‘neutral’, ‘descriptive’ or ‘detached’? Or are social practices essentially ‘interpretive’, so that the nature of law is only revealed when it is expounded as the expression of a moral or political idea? How, indeed, are we to tell whether analytically pleasing distinctions (such as that between law and morality) genuinely clarify the nature of the object under investigation (law), rather than obscuring it? These debates are clearly capable of exerting their own fascination; but one might suspect them of diverting attention from the traditional concern of jurisprudence, which is to elucidate the nature of law as a social institution, and to throw light upon its place within the human condition. Such inquiries stimulate a specific interest in the significance of law as a distinctive type of social ordering. This is a dimension of understanding that is as lost upon modern critics of positivism as it is upon positivists themselves: for example, in his recent book Justice in Robes, Dworkin argues that philosophical significance attaches only to the substance of legal doctrine, there being no philosophically interesting issues relating to law as a social institution (Justice in Robes, Harvard, 2006, 2-3).
Pirie’s article is refreshing because it avoids the recent debates in favour of an investigation into the nature of law as a social and intellectual phenomenon. Law is not simply a set of practices or a body of norms, but an intellectual system (207). Her concern is to explore the idea of law in terms of its form. We might initially suppose that law can be defined in opposition to forms of negotiated order: a supposition that draws a close association between law and government. Is this anthropologically valid? According to Pirie, law is to be identified ‘neither by reference to the negotiation of order, nor by reference to government. It is, rather … identified by its expressive and aspirational qualities and its ideological claims to promote order and justice.’ (id.) The central question is then how law is different from other forms of ideological system (208). Continue reading "The Nature of Law and the Human Condition"
Dec 6, 2010 Browne LewisTrusts & Estates
Charities have a legal duty to comply with the restrictions donors place on gifts. Most charities act in good faith and honor the conditions the donors place on the donations. Problems usually occur when internal or external events make it necessary for the charity to change the manner in which it is carrying out the donor’s intent. Persons objecting to those changes may go to court to prevent the charity from taking certain actions. The litigation does not benefit the charities or the donors. Professor Gary addresses this problem with a comprehensive and thought-provoking article. She starts with an explanation of charitable trust law and identifies the legal issues that can arise because donor intent is difficult to determine and to enforce.
Professor Gary starts the article discussing recent high profile cases involving disputes over donor restrictions on charitable gifts. The five cases Professor Gary highlights contain facts that are interesting enough to get the reader’s attention. By starting with illustrations of recent cases Professor Gary shows that the issues she examines in her article are timely and in need of resolution. Continue reading "Charity Begins With The Gift Agreement: Keeping Intent Fluid"
Dec 3, 2010 Stacey DoganIntellectual Property Law
Sonia K. Katyal,
Stealth Marketing and Antibranding: The Love that Dare Not Speak Its Name,
58 Buff. L. Rev. 795 (2010).
How many law review articles begin with a scene from Wayne’s World? For Sonia Katyal, such an opening is par for the course. Since she entered the scene a decade ago, Katyal’s scholarship has celebrated irreverence, and examined the ways in which the law tolerates, enables, and often discourages commentary on dominant culture, icons, and in this case, brands. This essay – written for a symposium on advertising and the law at SUNY Buffalo Law School – continues the Katyal tradition.
In Stealth Marketing, Katyal takes up the question of whether and how the law should deal with the increasing convergence between speech from trademark holders and speech about trademark holders. The essay picks up on a phenomenon that Ellen Goodman raised several years ago in her article, Stealth Marketing and Editorial Integrity, 85 Tex. L. Rev. 83 (2006). Goodman’s piece had explored the various ways in which advertisers pay to slip their messages into communicative products, leaving consumers uncertain as to the objectivity or veracity of the content they consume. Goodman’s inquiry focused on the extent to which the law can or should require disclosure when a business, advocacy organization, or even an arm of the government pays to have its messages incorporated into a third party’s communicative work. Continue reading "Brand or Anti-Brand?"
Dec 1, 2010 Ruth MasonTax Law
Erik M. Jensen,
The Individual Mandate and the Taxing Power, Case Research Paper Series In Legal Studies, Working Paper 2010-33 (September 2010), available at
SSRN.
Even though it is Congress’s first enumerated power, appearing in the Constitution ahead of the power to regulate interstate commerce, the tax power doesn’t get much attention in court cases, law journals, or newspaper articles. It is, however, the Constitution’s hidden giant. The Constitution doesn’t express many limits on the scope of the tax power, other than the requirement that taxing (and spending) must be “for the General Welfare.” And the Supreme Court has interpreted Congress’s tax power broadly, finding taxes constitutional even when they have regulatory effects that Congress could not have achieved directly under the Commerce Clause.
Constitutional scholars have been debating whether the individual mandate of the health care act, which inserts into the tax code a penalty that applies to certain people who fail to purchase private insurance, exceeds Congress’s power under the Commerce Clause. Suits against the federal government in Virginia and Florida by the attorneys general of 20 states claim that the health care law—in particular the individual mandate—is unconstitutional because it exceeds Congress’s constitutionally enumerated powers. Continue reading "Just How Broad is the Tax Power?"
Nov 29, 2010 Martin H. MalinWork Law
The importance of the public sector in traditional labor law and collective bargaining increases every year. Whereas union density is down to about 7.5% in the private sector, it continues to hover close to 40% in the public sector. A majority of union members now work for units of government. The most heavily unionized sectors of the economy are education, police, and fire protection. Yet, most traditional labor law scholarship continues to focus on the private sector generally and the National Labor Relations Act (NLRA) in particular. Scholars’ obsession with the NLRA continues even though the legal regimes governing public sector labor relations are highly diverse and therefore provide considerable fruit for scholarly analysis.
Ann Hodges’ article is refreshing and important and goes a long way to filling the vacuum in labor law scholarship. Hodges compares Illinois, whose legal regime she characterizes as one of the most union-friendly, with Virginia whose regime is one of the most union-hostile. She catalogues the reasons behind those characterizations, showing the numerous ways in which Illinois law is more favorable to unions than the NLRA and than most other states’ public sector labor laws, and relating how Virginia, which has never had a public sector collective bargaining statute, went from allowing public sector collective bargaining at the employer’s option, to prohibiting it by Virginia Supreme Court decision, to codifying the prohibition in state statute. She further relates how Illinois law in general is more worker-protective, whereas Virginia law and policy are focused on maintaining a favorable business climate. Continue reading "The Diversity of Public Sector Labor Law Regimes"
Nov 24, 2010 Samuel IssacharoffConstitutional Law
Eugene Kontorovich,
“A Guantanamo on the Seas”: The Difficulty of Prosecuting Pirates and Terrorists, 98 Cal. L. Rev. 243 (2010).
Eugene Kontorovich has struggled to return the outlawry of pirates to the legal agenda. Admittedly, he has had some assistance from brigands off the coast of Somalia and in the Indonesian Straits of Malacca. Nonetheless, as world attention turns to the indeterminate status of non-state actors who practice a form of warfare unencumbered by uniforms, the principle of distinction from civilians, or any of the evolved norms of respect for civilians, medical personnel and countless other features of the law of war, the legacy of clear international legal rules governing pirates seems like an attractive safe harbor. Surely nothing is more settled than the fact that pirates are hostis humani generis, enemies of all mankind, for whom jurisdiction is universal and punishment merciless.
Or so it would seem. As Kontorovich well tells the tale, in the intervening centuries many international conventions have emerged reflecting both more sophisticated international relations and the emergence of human rights norms. Among these are the Geneva Conventions, other sources of international humanitarian law, refugee laws, and international laws of the seas. Continue reading "Pirates Then and Now"
Nov 22, 2010 Robert SitkoffTrusts & Estates
- Lawrence W. Waggoner, The American Law Institute Proposes Simplifying the Doctrine of Estates (May 21, 2010). U of Michigan Public Law Working Paper No. 198, available at SSRN.
- Lawrence W. Waggoner, Curtailing Dead-Hand Control: The American Law Institute Declares the Perpetual-Trust Movement Ill Advised (June 1, 2010). University of Michigan Public Law Working Paper No. 199, available at SSRN.
- Lawrence W. Waggoner, The American Law Institute Proposes a New Approach to Perpetuities: Limiting the Dead Hand to Two Younger Generations (June 1, 2010). University of Michigan Public Law Working Paper No. 200, available at SSRN.
- Lawrence W. Waggoner, Congress Should Impose a Two-Generation Limit on the GST Exemption: Here’s Why (July 15, 2010). U of Michigan Public Law Working Paper No. 205, available at SSRN.
Trusts and estates law reform generally follows one of two patterns. In the first, which we can characterize as top-down, the American Law Institute or the Uniform Law Commission sponsors a reform through a new Restatement or Uniform Law, often but not always prepared in concert. Top-down reforms are typically designed to update the law in accord with emerging academic and elite practitioner policy consensus on necessary revision to the canon. The prudent investor rule is perhaps the quintessential example of a successful top-down reform. In the other law reform pattern, which we can characterize as bottom-up, local bankers and lawyers lobby state lawmakers for a specific reform. Bottom-up reforms are usually meant to attract trust business (think perpetual or asset protection trusts), but not always. Some are meant to fill a gap in the top-down reforms (think unitrust, an alternative to the power of adjustment under the Uniform Principal and Income Act). Either way, owing to the commercial necessity of appealing to apparent donor preferences, the bottom-up reforms tend to enhance the reach of the dead hand (even the unitrust, a gap-filling bottom-up reform, is more solicitous of the dead hand than its top-down alternative, the power of adjustment).
In a quartet of short essays, Professor Lawrence W. Waggoner (Michigan) examines a pair of top-down reforms, just approved by the ALI, which will appear in the final volume of the Restatement (Third) of Property: Wills and Other Donative Transfers, for which Waggoner is the reporter. The reforms are: (1) a simplification of the law of estates and future interests, and (2) a reworking of the Rule Against Perpetuities. The reforms prompt two questions: (1) why these reforms, and (2) will they take hold? Waggoner’s essays focus primarily on the former question, though he gives some treatment to the latter, particularly as regards the new Rule Against Perpetuities. Continue reading "Top-Down versus Bottom-Up Law Reform in Trusts and Estates: Future Interests and Perpetuities"
Nov 19, 2010 Linda JellumAdministrative Law
Jack M. Beermann,
End the Failed Chevron
Experiment Now: How Chevron
Has Failed and Why It Can and Should Be Overruled, 42
Conn. L. Rev. 779 (2010), available at
SSRN.
As one academic, among many, who has made my scholarly reputation based in part on the landmark case of Chevron U.S.A., Inc. v. Nat. Resources Defense Council, 467 U.S. 837 (1984), I noted with some concern Professor Jack Beermann’s latest work entitled: End the Failed Chevron Experiment Now: How Chevron Has Failed and Why it Can and Should be Overruled. Overrule Chevron? End the experiment? Say it ain’t so! Hadn’t Chevron offered “a wonderful new world … full of promise for administrative-law professors in need of tenure articles….?” National Cable & Telecommuns. Ass’n v. Brand X Internet Serv., 545 U.S. 967, 1019 (2005) (Scalia, J., dissenting).
I approached his article with some trepidation but also with great interest. Why would anyone want to overrule Chevron? Professor Beermann succinctly answers this question in his abstract: “Chevron has complicated judicial review and, at best, it is uncertain whether it has resulted in increased deference to agency interpretation. In fact, for numerous reasons, Chevron has been a failure on any reasonable measure and should be overruled.” Intrigued, I forged ahead. Continue reading "Jettisoning Chevron"
Nov 17, 2010 Myrna RaederCriminal Law
Aviva Orenstein,
Propensity or Stereotype?: A Misguided Evidence Experiment in Indian Country, 19
Cornell J. Law & Pub. Pol. 173 (2009), available at
SSRN.
Changing evidentiary policy to make it easier to convict rapists and child abusers has been high on the agenda of many feminists who have decried the difficulty of holding such perpetrators accountable, even when they commit serial crimes. In 1994, in a well documented trade, Congress adopted Federal Rules of Evidence 413-415 as the quid pro quo for securing the deciding vote necessary to pass the then pending Violent Crime Control Act. Rules 413-414 specifically permit propensity evidence in sexual assault and child molestation cases. Professor Aviva Orenstein investigates how these rules have been (mis)applied in federal court. Her thought-provoking essay decries the disproportionate use of the rules against Indian defendants, and suggests the repeated presence of negatively stereotyped Indian defendants may actually help perpetuate the myth that rapists are easily identified “others,” an attitude that makes acquaintance rapes incredibly difficult to prove. She also suggests that stereotyping reinforces the propensity evidence and may lead judges to more willingly accept character evidence beyond sex crimes,
Orenstein has been influential in applying feminist jurisprudence to evidentiary issues, not only concerning topics that are associated with women’s issues such as rape and domestic violence, but also in contexts where the link is less obvious, such as apologies by doctors. Previously, she critiqued the use of propensity evidence in No Bad Men!: A Feminist Analysis of Character Evidence in Rape Trials, 49 Hastings L.J. 663 (1998), suggesting such evidence violates feminist values and presenting alternative evidentiary solutions to strengthening the government’s case. Like her, I view myself as a feminist who is sympathetic to the plight of victims of rape and child abuse, while remaining sensitive to issues of fairness and constitutional rights of criminal defendants. Thus, I knew this article would analyze difficult questions such as whether stereotyping of Indians is encouraged by the propensity rules, and why these rules do not necessarily further feminist goals. Continue reading "A Feminist Critique of Propensity Evidence Admitted Against Indians in Sexual Assault and Child Molestation Cases"
