May 9, 2023 Christopher J. SprigmanIntellectual Property Law
Klaus Ackermann, Wendy A. Bradley & Jack Francis Cameron,
Avengers Assemble! When Digital Piracy Increases Box Office Demand (June 30, 2020), available at
SSRN.
Does piracy of creative goods such as movies, books, or songs reduce paid demand for those goods? This seemingly straightforward question has proven surprisingly difficult to answer in the real world.
Piracy may draw away customers who might otherwise have paid. But it’s also possible that consumers of pirated copies are, by and large, not people who would have paid to consume if they couldn’t get access for free. Piracy may also help spread the word about a good movie, book, or song. This sort of informal advertising might drive up paid consumption, even if some people who would have paid are lost to piracy. It’s also possible that some combination of all these things might happen, with uncertain net results. Continue reading "The Complex Effects of Piracy on the Movie Industry"
May 8, 2023 Jedidiah KronckeInternational & Comparative Law
In 1972, Laura Nader published her generationally influential article, “Up the Anthropologist.” The motivation for Nader’s intervention was borne partly out of her experience with students who felt daunted by the prospect of studying powerful social elites—what has now become popularly known as “studying up.” As a pioneering legal anthropologist, for Nader this often involved the study of law, especially elite lawyers. Nader outlined many of the opportunities and demands that would face anthropologists and others who sought to use ethnographic methods to study those who could articulate and promote their own representations in public, and actively limit researcher access to their workplaces.
Fifty years after Nader’s intervention, Dimitri van den Meerssche’s The World Bank’s Lawyers: The Life of International Law as Institutional Practice tackles this task of “studying up” at perhaps one of the most singularly powerful international institutions—the World Bank. Van Den Meerssche takes up this particular challenge when all of the barriers Nader identified early on have only intensified. Not only is the Bank fully enmeshed in the defense of its own public image, but it is fully aware of the possibility that researchers could take any access as an opportunity to construct their own critical narratives
Van Den Meerssche has thus produced a fascinating analysis of how to study such an institution under these constraints, as well as a meditation on what critique of international institutions should look like. What he produces is not a traditional ethnography but, as Nader presaged, a creative empirical study that takes advantage of the Bank’s own complexity to dive deeply into the daily world in which the Bank’s lawyers operate. Continue reading "The World Bank’s Many Worlds of the Rule of Law(yering)"
May 5, 2023 Kaiponanea MatsumuraFamily Law
I have sometimes wondered whether it matters that the experiences of Asian Americans are nowhere to be found in the family law canon. This omission should be surprising. People from Asia have been skirting the shores of the Americas since the 17th Century. Within two decades of California becoming a state, people from Asia, mostly men from China, made up 25% of the entire work force and played a crucial role in developing the state’s infrastructure. These men, and others in western states, soon faced anti-miscegenation and immigration laws designed to prevent them from marrying and producing American-born children—laws concerning the bread and butter of family law. People from Asia or of Asian descent, some 22.4 million of them, are now the fastest growing minority group in the United States, largely because of family preferences in immigration law. Surely, I have told myself in passing, these and other developments should fit into the story we teach about family regulation. Surely, too, there are legal interventions that could strengthen Asian families or validate their shared experiences. But soon after I begin considering the possibilities, I am waylaid with doubts: What, if anything, are those shared experiences and values, and are they worth preserving, here? And would anyone, even Asian Americans themselves, really care about these stories?
The Loneliest Americans, by New York Times staff writer Jay Caspian Kang, is an epistemology of these ambivalences. Asia, Kang explains, means nothing to the immigrant from Korea, who finds little in common with people from countries like the Philippines or China. (P. 59.) Additionally, the highly skilled workers and their descendants who arrived after the Hart-Celler Act of 1965 (which replaced national origin-based immigration with a preference system favoring family reunification and skilled workers) have at best a tenuous, mostly imagined connection to the exclusion, lynchings, discrimination, and interment experienced by earlier Asian laborers and their descendants. (P. 57.) Above all, Kang provocatively argues, the upwardly mobile contingent of post-Hart-Celler Asian Americans are not invested in an Asian American identity because they hold onto the belief that it is possible on some level to assimilate into whiteness: thus, they hollow out Asian Americanness from the inside. Continue reading "Nothing, Nowhere, Not Right Now"
May 4, 2023 Trudo LemmensHealth Law
Determining what is reliable evidence seems particularly politicized and contentious in the context of physician-assisted-suicide [PAS] and euthanasia. In jurisdictions where its legalization is debated, opponents often illustrate critical interpretations of official, largely self-reported data with media-reported cases, which legalization advocates tend to trivialize as “anecdotes.”
Prior to Canada’s rapidly expanded euthanasia practice, data and media reports in Belgium and the Netherlands, which have euthanasia laws going back to 2002, used to be at the center of this debate. Official review committees in those countries rarely if ever identify serious problems with a practice that now involves around 3% (Belgium) to 5% (Netherlands) of overall deaths. Some legalization advocates see this as a confirmation of the practice’s safety. The “not-guilty” jury-verdict in the only Belgian criminal trial ever launched against doctors for their involvement in a reported euthanasia case could be seen as a vindication of the claim that even in the contentious context of mental illness, the system works. In Improving Control over Euthanasia of Persons with Psychiatric Illness: Lessons from the first Belgian Criminal Case Concerning Euthanasia, Belgian scholars Marc De Hert, Sien Loos, Sigrid Sterckx, Eric Thys and Kristoff Van Assche convincingly show us why this is wrong. Continue reading "What Counts as Evidence? A Uniquely Valuable Analysis of a Belgian Criminal Case Involving Euthanasia"
May 3, 2023 Doron DorfmanEquality
Andrew Gilden,
The Queer Limits of Revenge Porn, 64
B.C. L. Rev. __ (forthcoming, 2023), available at
SSRN (Sept. 21, 2022 draft).
The law has a strange relationship with gay sex. Courts and legislators often manage simultaneously to ignore the realities of gay sexual expression, on the one hand, yet treat it differently from heterosexual sex on the other. Even when striking down the Texas sodomy law and expanding constitutional protection to same-sex, nonmarital sexual relations in Lawrence v. Texas, the Supreme Court constructed a narrative of a deep emotional bond between the couple at the heart of the case when in reality, the couple was not in a longstanding romantic relationship. As a few scholars pointed out, the Court seems to ignore the possibility that it was simply a hook-up, which nevertheless deserves as much protection as consensual sex in a committed relationship does. When presenting the court with the marriage equality cases, United States v. Windsor and Obergefell v. Hodges, lawyers went to great lengths to desexualize same sex relationships, making them easier for the court to swallow. And as I have recently showed empirically, in both the law and the public’s eye, gay sex with preventive measures against HIV is still deemed more dangerous than unprotected heterosexual sex is.
In his fabulously queer and highly significant article The Queer Limits of Revenge Porn, Andrew Gilden provides yet another example of such gay sex exceptionalism in the legal realm. Gilden exposes how even the feminist project to legally protect sexual privacy misses the mark when it comes to sexual norms in the LGBTQ community. Revenge porn, referring to the nonconsensual distribution of sexual images, has become a household term in the age of social media. Twenty-nine states now have criminal legislation prohibiting revenge porn. These laws, however, explicitly exclude images of voluntary nudity or sexual expression in “public” and “commercial” settings. (P. 21.) Continue reading "Revenge Porn Laws and Gay Sex Exceptionalism"
May 2, 2023 Jonathan SimonCriminal Law
In the age of mass incarceration, the prison has cast a shadow not only on our nation and many of its most vulnerable communities, but quite literally on our legal imagination. In her forthcoming Cal Law Review article, Rights Violations as Punishment, Professor Kate Weisburd of George Washington University Law takes a big step toward dispelling some of that shadow by confronting us with the shockingly thin jurisprudential basis on which courts have accepted a virtual constitutional geo-fence around not only prisons but the communities where people on electronic devices are monitored.
So what is punishment today? Yes, you will say, imprisonment, jail, some very few executions, and a great many community supervision sanctions. But this is an incomplete view. As Weisburd’s title indicates, those forms surround a vast stripping of some of the most valued rights defining citizenship. Not just the right to liberty and political participation which have some constitutional textual basis (in the 5th and 14th Amendments), but 1st Amendment rights to expression, association, and religious freedom, 4th and 5th Amendment rights to domestic privacy, freedom from coerced testimony, and access to counsel, and perhaps most strikingly 14th Amendment substantive due process rights to personal autonomy (or what’s left of it) and parenting. Nor is this only for those actually locked up, a major part of this article’s value is in documenting just how thoroughly these non-incarcerative sanctions are laced with rights cancellations. Continue reading "Punishment as Rights Violation"
May 1, 2023 Adam N. SteinmanCourts Law
For every right, there is a remedy. This venerable principle is found both in ancient languages (“ubi jus, ibi remedium”) and on pages of our own judicial canon so foundational that they call to us from a bygone typographical era (“it is a general and indifputable rule, that where there is a legal right, there is alfo a legal remedy by fuit or action at law, whenever that right is invaded.”). When federal constitutional rights are violated, however, the path to a meaningful remedy is often impassible. Criminal defendants whose state court convictions were tainted by constitutional violations must navigate myriad obstacles to federal habeas relief, particularly those that Congress imposed in the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). For those who suffer constitutional violations in other contexts and seek relief in federal court under § 1983, qualified immunity, the Eleventh Amendment, limits on municipal liability, and various procedural restrictions can block relief regardless of their claims’ substantive merit.
Two excellent articles offer ways to fix the current state of affairs. Brandon Garrett and Kaitlin Phillips propose changes to AEDPA and other doctrines governing habeas corpus petitions in federal court. Alex Reinert, Joanna Schwartz, and Jim Pfander examine how state and local laws can improve the enforcement of federal civil rights. In both pieces, the authors deploy their deep scholarly expertise to provide concrete, practical, thoughtful, well-crafted proposals that deserve careful attention from academics, advocates, lawmakers, and anyone else interested in these important issues. Continue reading "Fix It"
Apr 28, 2023 Hila KerenContracts
Gregory Klass & Tess Wilkinson-Ryan,
Gender and Deception: Moral Perceptions and Legal Responses, 117
Nw. U. L. Rev. __, forthcoming 2023, Jan. 20 2023 draft available at
SSRN.
Is caveat emptor indeed “a rule for he and not for she”? This is only one of the excellent questions raised by co-authors Gregory Klass and Tess Wilkinson-Ryan in their recent symposium contribution Gender and Deception. The question is induced by classical casebook entries that seem to reflect an increased judicial willingness to protect women from market deception. Recall, for example, the many “Arthur Murray cases” in which franchised dance studios around the country made exuberant profits from making elderly women with no dancing experience believe that they are only a few more lessons away from becoming professional dancers. However, to the extent such a gender-based approach exists (which is unclear at best), it often comes with a price not only for male buyers. Too often, as the co-authors importantly remind readers, intervention on behalf of deceived women seems to reflect and perpetuate gender biases regarding their capabilities—disrespectfully portraying them as gullible.
Given those implications, Klass and Wilkinson-Ryan delved into the relationship between gender and market deceit armed with exciting empirical tools. They designed three vignette-based studies that, in their words, “focus on common moral attitudes toward deception.” The authors report that the first study yielded the most significant results. This study tested the moral judgments of online-survey takers regarding a simple transaction between two individuals: a seller and a buyer of a used kitchen table. The deceiving party presented the table as an antique and sold it to the deceived buyer for $500, although the table was bought in a big box store, such as Target or Walmart, and was worth only $200. Participants identifying themselves as men, women, or nonbinary (counted with women), were asked to consider three different levels of buyer’s misrepresentation (implied, nondisclosure, and explicit lie) and ranked how ethical they were on a 1 to 7 scale. Continue reading "Gender and Marketplace Morality"
Apr 27, 2023 Jonathan FeingoldConstitutional Law
“But first, we must believe.” So concludes The Antiracist Constitution, where Brandon Hasbrouck confronts an uneasy question: In the quest for racial justice, is the Constitution friend or foe? Even the casual observer knows that constitutional law is no friend to racial justice. In the nineteenth century, Plessy v. Ferguson blessed Jim Crow. In the twentieth century, Washington v. Davis insulated practices that reproduce Jim Crow. Now in the twenty-first century, pending affirmative action litigation invites the Supreme Court to outlaw efforts to remedy Jim Crow.
Of course, “constitutional law” is not some independent and self-executing thing. It is little more than what five Supreme Court Justices say the Constitution means. We might, accordingly, reframe the opening question and instead ask: Has the Supreme Court been faithful to the Constitution? Hasbrouck offers a bold response. Since at least the fall of the Civil War, the Supreme Court’s race jurisprudence has been defined by constitutional infidelity. Hasbrouck views the Constitution as an antiracist document that holds the “tools of abolition democracy.” For the antiracists and abolitionists in the room, Hasbrouck has a message: The Constitution is on our side. Do not misread constitutional law for the Constitution. And to reclaim constitutional law, we must first reclaim the Constitution. Continue reading "The Problem is the Court, Not the Constitution"
Apr 26, 2023 Michael E HerzAdministrative Law
Daniel Farber,
Inequality and Regulation: Designing Rules to Address Race, Poverty, and Environmental Justice, __
Am. J. L. & Equality __ (forthcoming 2023), August 1, 2022 draft available at
SSRN.
In the last few years, law schools and law professors have given new attention to how questions of race can be interwoven into courses that are not explicitly about race. Much has been written about how to do so in both first-year and upper-level courses, and, from all reports, the law school classroom has meaningfully changed. My sense, though it is completely impressionistic and unscientific, is that the typical Administrative Law course may have changed less than many others. It seems fair to say, at least, that there has not developed a standard suite of topics that a professor wanting to integrate questions of race and racism might include. (Though for those interested, the 2020 Symposium on Racism in Administrative Law on the Notice & Comment blog is a very useful place to start.)
Daniel Farber’s Inequality and Regulation will be of enormous value to those looking for an entrée for discussing race and Administrative Law. Moreover, wholly apart from its relevance to the classroom, it is an important substantive contribution regarding the role of race, and of poverty, in regulatory policymaking. And it tackles these thorny topics in a highly readable fashion, with a minimum of jargon, obfuscation, and, relatively speaking, citations. (Were it in a student-edited Law Review, the editors would have been pretty grumpy about the above-the-line to below-the-line ratio. It may be one advantage of faculty-edited journals is a refreshing rejection of the citation addiction (or fetish).) Continue reading "Harm Egalitarianism"
