Legal Theory Blog |
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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Email me --My Home Page --Legal Theory Annex (All the theory that does not fit.) --Legal Theory Lexicon (Basic concepts in legal theory for first year law students.) --My Publications on SSRN Noteworthy Posts Hiring Trends at 18 "Top" American Law Schools 2004 Report on Entry Level Hiring Getting to Formalism Water Wells and MP3 Files: The Economics of Intellectual Property Do Humans Have Character Traits? Naturalistic Ethics The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Fear and Loathing in New Haven A Neoformalist Manifesto Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Archives 09/01/2002 - 09/30/2002 01/01/2003 - 01/31/2003 02/01/2003 - 02/28/2003 03/01/2003 - 03/31/2003 04/01/2003 - 04/30/2003 05/01/2003 - 05/31/2003 06/01/2003 - 06/30/2003 07/01/2003 - 07/31/2003 08/01/2003 - 08/31/2003 09/01/2003 - 09/30/2003 10/01/2003 - 10/31/2003 11/01/2003 - 11/30/2003 12/01/2003 - 12/31/2003 01/01/2004 - 01/31/2004 02/01/2004 - 02/29/2004 03/01/2004 - 03/31/2004 04/01/2004 - 04/30/2004 05/01/2004 - 05/31/2004 06/01/2004 - 06/30/2004 07/01/2004 - 07/31/2004 08/01/2004 - 08/31/2004 Blogosphere --Balkinization (Jack Balkin) --Crescat Sententia (Group Blog) --Crooked Timber (Group Blog) --De Novo (Group Blog) --Desert Landscapes (Group Blog) --Discourse.Net (Michael Froomkin) --Displacement of Concepts (Group Blog) --Election Law (Rick Hasen) --Freedom to Tinker (Ed Felten) --The Garden of Forking Paths --How Appealing (Howard Bashman) --Instapundit (Glenn Reynolds) --Is That Legal? 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Berkeley) eScholarship Repository +Law and Politics Book Reviews +Metapsychology Book Reviews +Notre Dame Philosophical Review +Online Papers in Philosophy +PoliticalTheory.info +SSRN Most Recent Uploads More Blogs of Interest --Althouse (Ann Althouse) --Asymmetrical Information (Jane Galt) --bIPlog (Group Blog) --The Blawg Review (Group Blog) --Brad DeLong --The Buck Stops Here (Stuart Buck) --Copyfight (Group Blog) --A Copyfighter's Musings (Derek Slater) --The Curmudgeonly Clerk --Daniel Drezner --Discriminations (John and Jessie Rosenberg) --Eastmania (Wayne Eastman) --EveTushnet.com (Eve Tushnet) --Freespace (Timothy Sandefur) --Furdlog Frank Field --Ideoblog (Larry Ribstein) --The Importance Of (Ernest Miller) --The Indiana Law Blog (Marcia J. 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Berkeley) --New York University Colloquim in Law, Philosophy and Political Theory --Oxford Jurisprudence Discussion Group --Oxford Legal Philosophy --Oxford Centre for Ethics & Philosophy of Law Queen's University Belfast Forlum for Law and Philosophy Rutgers Institute for Law and Philosophy --UCLA Legal Theory Workshop --University of Pennsylvania Institute for Law and Philosophy --University College London: Colloquium in Legal and Social Philosophy --University of Chicago Law And Philosophy Workshops --University of Chicago: John M. Olin Program in Law and Economics Workshop --University of San Diego Institute for Law and Philosophy --University of Texas Law and Philosophy Program --Yale Law School: Legal Theory Workshop Links to Law School Workshops +Australian National University Faculty Events +Boston University +Buffalo +Columbia Center for Law and Economic Studies +Florida State +George Mason +Georgetown Colloquium on Intellectual Property & Technology Law +Georgetown Faculty Research Workshop +Hofstra +Loyola Marymount +New York University +Legal History Colloquium +Northwestern Law Colloquium +Oxford Law Events +Rutgers, Camden +Stanford Law School Olin Series +UCLA Colloquium +UCLA Legal History Workshop +UCLA Tax Policy --University of Chicago: John M. Olin Program in Law and Economics Workshop +University of Michigan Law and Economics +University of San Diego Colloquium Series +University of Texas Colloquium Series +Vanderbilt Scholarly Programs & Events Calendar +Villanova +Washington & Lee Faculty Workshops Calendars & Events +Aristotelian Society +British Society for Ethical Theory +Events in Analytic Philosophy in Europe (and Overseas Countries) +The Philosophical Calendar +Philosophy Now Calendar +Political Science Online Upcoming Conferences +SSRN Professional Announcements Other Programs --Australian National University, Research School of Social Science, Philosophy Seminars --Boston University Philosophy Colloquia --Brown University Philosoophy Upcoming Events George Mason Workshop in Philosophy, Politics, and Economics --Harvard University, Philosophy Colloquia --MIT Philosophy Colloquia --New York University, Philosophy Events --Oxford: Events at the Faculty of Philosophy --Princeton University: Philosophy Department Talks --Princeton University: Political Philosophy Colloquium --Princeton University: Public Law Colloquium --Princeton University: Seminar in Law and Public Affairs --Tulane Philosophy and Center for Ethics & Public Affairs Seminars --University of Arizona Philosophy Colloquia --University of Bristol Philosophy Research Seminars --University of California at Berkeley Philosophy Events --University of Chicago Political Theory Workshop --University of London, School of Advanced Study, Philosophy Programme --University of Manchester Politics & Philosophy Research Seminars --University of Melbourne Philosophy Events --University of North Carolina: Philosophy Speakers --University of Pennsylvania: Philosophy Colloquiua --University of Pittsburgh Philosophy Calendar --Yale Philosophy Department Talks Some Legal Theorist Homepages --Robert Alexy (Christian Albrechts University Kiel) --Randy Barnett (BU) --Brian Bix (Minnesota) --Jules Coleman(Yale Law & Philosophy) --Ronald Dworkin(NYU & University College) --John Finnis(Oxford and Notre Dame) --John Gardner (Oxford) --Brian Leiter (Texas) --Micahel Moore (Illinois) --Dennis Patterson (Rutgers, Camden) --Stephen Perry (NYU) --Richard Posner (University of Chicago & USCA7) --Joseph Raz (Oxford and Columbia) --Jeremy Waldron (Columbia More to come! Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of San Diego School of Law 5998 Alcala Park San Diego, CA 92110-2492 USA 
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Monday, August 30, 2004
Welcome to the Blogosphere . . . to BizFemsSpeak, including
Lynne L. Dallas Lynn A. Stout Kellye Testy Joan Heminway Jill Fisch Janis Sarra Cynthia A. Williams Claire Moore Dickerson Christine Hurt Loren on Click Wrap Lydia Pallas Loren (Northwestern School of Law of Lewis and Clark College) has posted Slayng the Leather-Winged Demons in the Night: Reforming Copyright Owner Contracting with Clickwrap Misuse (Ohio Northern University Law Review, Vol. 30, 2004) on SSRN. Here is the abstract:
Copyright misuse is an equitable defense based on a claim that the copyright owner has used the rights granted by the federal Copyright Act in a manner that is contrary to the public interest; this defense can be raised by an accused infringer that has not been affected by the alleged misuse. Recognizing a copyright misuse defense based on contract clauses that seek to avoid federal limitations on copyright rights has several advantages. First, an assertion of copyright misuse can be made in a case that does not involve a claim for breach of one of these clauses. Second, as an equitable doctrine, misuse is subject to interpretation and revision by the courts; no legislative action is necessary. Third, a successful misuse defense results in a refusal by the court to enforce the copyright until the misuse is "purged." Given the potential downside risk of contractual overreaching, a broader application of the misuse doctrine would, therefore, "chill" a copyright owner's impulse to overreach. This article proposes that courts recognize a rebuttable presumption of misuse when a copyright owners seek, by contract, to avoid the express statutory limitations on their rights. To rebut the presumption of misuse, a copyright owner would be required to prove that encouraging the type of contracting behavior at issue is not likely to lead to a reduction of the external benefits the Copyright Act seeks to ensure through the limitation the copyright owner is contractually attempting to avoid. Requiring the copyright owner to rebut the presumption of misuse appropriately places the burden on the party that engaged in the presumption-triggering activity, i.e., the drafting or negotiation of the contract containing the offending clause. Employing a rebuttable presumption would allow contracting around the statutory limitations on a copyright owner’s rights only on a limited and truly bargained-for basis. McCaffery on Fair Tax Timing Edward J. McCaffery (University of Southern California - Law School) has posted The Fair Timing of Tax (Michigan Law Review, 2004) on SSRN. Here is the abstract:
Berman on Blakely & Legal Theory Check out Doug Berman's post, Formalism meets functionality: An Ohio case study, over at Sentencing Law & Policy. Here's a taste:
Recess Appointments President Bush's recess appointments are no longer headline news, but the legal consequences continue to work themselves out. Here's a link to the joint reply brief of the plaintiffs and amicus Senator Kennedy, filed last week, on a motion to disqualify Judge Pryor from hearing an Eleventh Circuit case on the ground that his recess appointment was unconstitutional. The argument is focused on a very interesting issue--whether the recess appointments power encompasses intra-session (as opposed to inter-session) recess appointments. The DOJ's earlier brief can be found here. This is an issue I've discussed frequently with my colleague, Michael Rappaport, and I think there is considerable merit to the argument that recess appointments were originally understood as appointments to fill vacancies that occurred between and not during sessions of Congress. Saturday, August 28, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends Legal Education and the Reproduction of Hierarchy by Duncan Kennedy. Here's the blurb:
In this well-known critique, Duncan Kennedy argues that legal education reinforces class, race, and gender inequality in our society. However, Kennedy proposes a radical egalitarian alternative vision of what legal education should become, and a strategy, starting from the anarchist idea of workplace organizing, for struggle in that direction. Legal Education and the Reproduction of Hierarchy is comprehensive, covering everything about law school from the first day to moot court to job placement to life after law school. Kennedy's book remains one of the most cited works on American legal education. The visually striking original text is reprinted here, making it available to a new generation. The text is buttressed by commentaries by five prominent legal scholars who consider its meaning for today, as well as by an introduction and afterword by the author that describes the context in which Kennedy wrote the book, including a brief history of critical legal studies. Download of the Week This Download of the Week is What Does a Fair Society Owe Children - and Their Parents? by Anne Alstott. This is one of many fine papers from the Rawls & the Law conference at Fordham last year. Here is the abstract:
In this article, I challenge the private project view, drawing on a line of argument that I develop in my forthcoming book, No Exit (Oxford University Press, May 2004). Using principles adapted from the work of Rawls and other liberal egalitarians, I argue that a fair society does owe a special obligation to parents. Society expects - and needs - parents to provide their children with continuity of care, meaning the intensive, intimate care that human beings need to develop their intellectual, emotional, and moral capabilities. In effect, social and legal institutions convey a common message to parents: Do Not Exit. Society's No Exit command to parents is grounded in a deep and appropriate commitment to human dignity and equality. Still, we can acknowledge the moral and emotional satisfactions of parenthood while also recognizing that parents provide continuity to their children at considerable cost to themselves. The No Exit constraint severely limits the ordinary jobs, and ordinary lives, that parents can choose to live. In response, a fair society ought to take measures to lighten the autonomy burden of child-rearing. Society may fairly expect parents not to exit, but it should not ignore the consequences for parents' own lives. Friday, August 27, 2004
Ghost Written Opinions Check out GHOST-WRITTEN OPINIONS TAKE A HIT over at Begging to Differ, commenting on the Third Circuit's decision in Bright v. Westmoreland County:
More from Tushnet on the Rehnquist Court You will definitely want to read Part II of Mark Tushnet's post on the Rehnquist Court--over at Balkinization. Here's a taste:
New from Law & Politics Book Review
CONSTITUTIONAL DELIBERATION IN CONGRESS: THE IMPACT OF JUDICIAL REVIEW IN A SEPARATED SYSTEM, by J. Mitchell Pickerill. Durham, N.C.: Duke University Press. 208pp. Paper $21.95. ISBN: 0-8223-3260-0. Hardbound $74.95. ISBN: 0-8223-3235-3. Reviewed by Albert P. Melone. MEXICAN-AMERICANS AND THE LAW: ¡EL PUEBLO UNIDO JAMÁS SERÁ VENCIDO! by Reynaldo Anaya Valencia, Sonia R. Garcia, Henry Flores, and Jose Roberto Juarez Jr. Tucson: The University of Arizona Press, 2004. 220pp. Paper. $15.95. ISBN: 0-8165-2279-0. Reviewed by George Kiser. THE INTRUDERS: UNREASONABLE SEARCHES AND SEIZURES FROM KING JOHN TO JOHN ASHCROFT, by Samuel Dash. Piscataway, New Jersey: Rutgers University Presses, 2004. 160pp. Hardcover. $22.95. ISBN: 0-8135-3409-7. Reviewed by Robert M. Howard. LEGAL EDUCATION AND THE REPRODUCTION OF HIERARCHY: A POLEMIC AGAINST THE SYSTEM, by Duncan Kennedy. Reviewed by Mark Kessler. LABOUR LAW IN AN ERA OF GLOBALIZATION: TRANSFORMATIVE PRACTICES AND POSSIBILITIES, by Joanne Conaghan, Michael Fischl, and Karl Klare (eds.). New York: Oxford University Press, 2004. 578pp. Paper $35.00 / £25.00. ISBN: 019927181X. Hardback. $95.00 / £60.00. ISBN: 019924247X. Reviewed by Lawrence E. Rothstein. Newman on Social Science in the Same Sex Marriage Debate Stephen A. Newman (New York Law School) has posted The Use and Abuse of Social Science in the Same-Sex Marriage Debate (New York Law School Law Review, Forthcoming) on SSRN. Here is the abstract:
A look back at past societal controversies, over eugenic sterilization and over interracial marriage, highlights the danger of relying on scientific theories to resolve social issues. Science in these past debates too often reinforced societal biases. The four guidelines suggested here for considering the welfare of children in the context of same-sex marriage consider social science studies as one input among others that, when fairly considered, give substantial support to allowing such marriages as a means to promote the welfare of children raised by same-sex couples. Baron on Homelessness as a Property Problem Jane B. Baron (Temple University School of Law) has posted Homelessness as a Property Problem (Urban Lawyer, Vol. 36, pp. 273-88, Spring 2004) on SSRN. Here is the abstract:
This essay argues that homelessness can be understood another way, as a problem not of poverty but of property - or, more accurately, a problem of "no property." "No property" is, I suggest, a distinct and insufficiently understood legal category. Just as property is not one right or attribute but many - a complex "bundle of sticks," to use some old terminology - "no property" is also a complicated accretion of legal relations (or the lack thereof). As non-owners in a world of owners, the homeless have a multitude of duties to respect the rights of others, and liabilities to the powers of others, without themselves having property that would give rise to duties and liabilities on the part of others toward them. The homeless are thus seriously vulnerable to the effects of owners' actions (and inactions). It is with these iterative no rights, disabilities, and vulnerabilities that effective public policy must deal. In a world of "no property," to take just one example, an anti-camping ordinance will be flat out ineffective to stop public sleeping if homeless people have no rights to be in private spaces. Effective interventions, either to regulate unwanted behaviors or to improve the conditions under which the homeless live, must take account of the legal disabilities affecting the options open to those who are homeless. For this reason, this essay argues, we should try harder to understand "no property" as a legal category. Thursday, August 26, 2004
Alstott on What a Fair Society Owes Children Anne Alstott (Yale University - Law School) has posted What Does a Fair Society Owe Children - and Their Parents? (Fordham Law Review, Vol. 72, April 2004) on SSRN. Here is the abstract:
In this article, I challenge the private project view, drawing on a line of argument that I develop in my forthcoming book, No Exit (Oxford University Press, May 2004). Using principles adapted from the work of Rawls and other liberal egalitarians, I argue that a fair society does owe a special obligation to parents. Society expects - and needs - parents to provide their children with continuity of care, meaning the intensive, intimate care that human beings need to develop their intellectual, emotional, and moral capabilities. In effect, social and legal institutions convey a common message to parents: Do Not Exit. Society's No Exit command to parents is grounded in a deep and appropriate commitment to human dignity and equality. Still, we can acknowledge the moral and emotional satisfactions of parenthood while also recognizing that parents provide continuity to their children at considerable cost to themselves. The No Exit constraint severely limits the ordinary jobs, and ordinary lives, that parents can choose to live. In response, a fair society ought to take measures to lighten the autonomy burden of child-rearing. Society may fairly expect parents not to exit, but it should not ignore the consequences for parents' own lives. Calvert on Borking Believers Winston E Calvert (Washington University, St. Louis - School of Law) has posted Borking Believers: Judicial Selection and the Religious Test Clause (Washington University Law Quarterly, Vol. 82, 2004) on SSRN. Here is the abstract:
For most of the past century, religion influenced the judicial selection process - usually serving as a quiet tool for courting religious voters. With President George W. Bush's public announcement that he would only nominate judges who believe that "our rights were derived from God" and intense controversy regarding whether Senators unconstitutionally considered judicial candidates' religious affiliations and ideologies, religion's role is no longer quiet. Indeed, these controversies provoked members of both political parties to charge members of the opposite party with unconstitutionally manipulating religion in their judicial selection decisions. The superficial disjunct between the political branches' broad discretion and the Religious Test Clause's prohibition of religious tests as a qualification for office requires an analysis of the particular qualities of judicial candidates sufficiently "religious" to be considered beyond political branch scrutiny. This Note seeks to resolve the constitutional tension by distinguishing between the Religious Test Clause's appropriate prohibitions and the traditional sphere of ideological inquiry. After drawing these distinctions, this Note concludes that the Religious Test Clause should prohibit denominational and theological tests for judicial office while it should permit ideological inquiry regardless of possible religious motivation. Bobblehead Department I want to express my thanks to Dan Polsby (George Mason) for the Sandra Day O'Connor bobblehead! I am now in the exalted company of luminaries such as Howard Bashman. Wednesday, August 25, 2004
New from Law & Politics Book Review
0-8047-4947-7. Reviewed by Mark C. Miller. THE MYTH OF THE SACRED: THE CHARTER, THE COURTS, AND THE POLITICS OF THE CONSTITUTION IN CANADA, by Patrick James, Donald E. Abelson, and Michael Lusztig (eds.). Montreal and Kingston: McGill-Queen's University Press, 2002. 280pp. Cloth CA$75.00 / US$75.00 / £54.00. ISBN: 0-7735-2434-7. Paper CA$27.95 / US$27.95 / £21.50. ISBN: 0-7735-2435-5. Reviewed by David L. Weiden. FRONTIERS OF FAMILY LAW, by Gareth Miller (ed.). Aldershot, England / Burlington, VT: Ashgate Publishing, 2003. 152pp. Hardback. $79.95 / £45.00. ISBN: 0-75-462274-6. Reviewed by Deborah E. Sulzbach. FREEDOM OF COMMERCIAL EXPRESSION by Roger A. Shiner. Oxford: Oxford University Press, 2003. 380pp. Cloth $72.00 / £45.00. ISBN: 0-19-826261-2. Reviewed by Mark Tushnet.
Revised Conference Announcement: The Challenge of Philosophical Naturalism I am reposting this, because of the addition of Jerry Fodor to the lineup! This is a lot of horsepower!
June 7, 2005 THE CHALLENGE OF PHILOSOPHICAL NATURALISM Committed Speakers: Brian Leiter (Texas, Law and Philosophy) Stephen Stich (Rutgers, Philosophy) Michael Williams (Johns Hopkins, Philosophy) Meredith Williams (Johns Hopkins, Philosophy) Ben Zirpursky (Fordham, Law) Jerry Fodor (Rutgers, Philosophy) Rutgers University Institute for Law and Philosophy Rutgers Law School Camden, New Jersey Naturalism - roughly, the idea that philosophy should be continuous with natural science - presents the greatest challenge to "conceptual analysis" as a philosophical method. Since Plato, philosophy has attempted to discover analytic truths--statements that are necessarily true as a function of meanings, as opposed to the synthetic truths of empirical science. The American philosopher, Willard Van Orman Quine, is famous for his attack on the analytic/synthetic distinction. As a consequence of the work of Quine and others, contemporary philosophy has turned away from pure conceptual analysis, but in jurisprudence conceptual analysis goes on, almost as if the naturalistic turn in philosophy had never occurred. Legal philosophers continue to investigate questions like, "What is law?" and "Are there any necessary legal truths?," as analytic rather than empirical questions. If Quine is right, the jurisprudential naturalist maintains, jurisprudential appeals to "the essential properties of law" are fundamentally misguided and doomed to failure. This conference will look at naturalism generally and assess in particular its implications for legal theory. The conference is a one-day affair, with the morning devoted to philosophy and the afternoon session to legal theory. For information, contact: Dennis Patterson Distinguished Professor of Law and Philosophy Co-Director, Rutgers Institute for Law and Philosophy dpatters@camden.rutgers.edu Conference Announcement: Relativism
Relativism will hold a two-day conference on Relativism at Göteborg University. September 17th Invited speakers: David Wong Taking Moral Relativism Seriously Max Kölbel Moral Relativism Ruth Millikan What Went Wrong with Putnam's Realist Program? Barry C. Smith True Relative to What? Barry Barnes Relativism in the Service of Scientific Understanding Susan Haack The Unity of Truth and the Plurality of Truths The lectures are open to the public and free of charge, no registration needed. September 18th Closed session with the invited speakers and participants of the research project. For more information visit our web site http://www.phil.gu.se/relativism/conference or email peter.johnsen@filosofi.gu.se Dag Westerståhl Department of Philosophy The Tax Canon Paul Caron of TaxProfBlog reminds us of Victor Fleisher's Tax Canon. Law students and new tax profs should check it out. Tuesday, August 24, 2004
Barnett on the Foundations of Libertarianism Randy E. Barnett (Boston University School of Law) has posted The Moral Foundations of Modern Libertarianism (VARIETIES OF CONSERVATISM IN AMERICA, Peter Berkowitz, ed., Hoover Press, 2004) on SSRN. Here is the abstract:
Moral theories based on either moral rights or on consequentialism purport to be comprehensive, insofar as they apply to all moral questions to the exclusion of all other moral theories. Although the acceptance of one of these moral theories entails the rejection of all others, libertarian moral rights philosophers on the one hand, and utilitarians on the other, can embrace libertarian political theory with equal fervor. I explain how can this be and why it is a strength rather than a weakness of libertarian political theory. Conservatives, neoconservatives, and those on the left who seek to impose by force their comprehensive conception of the good neglect the problem of power - an exacerbated instance of the twin fundamental social problems of knowledge and interest. For a comprehensive moralist of the right or left, using force to impose their morality on others might be their first choice among social arrangements. Having another's comprehensive morality imposed upon them by force is their last choice. The libertarian minimalist approach of enforcing only the natural rights that define justice should be everyone's second choice. A compromise, as it were, that makes civil society possible. And therein lies its imperative. Sterk on IP & Real P Stewart E. Sterk (Cardozo Law School) has posted What's In a Name?: The Troublesome Analogies Between Real and Intellectual Property on SSRN. Here is the abstract:
After exploring the weak correlation between justifications for rights in land and in works of authorship, the article explores how the disparate justifications should and do shape doctrine. In particular, the article suggests that differences in duration of rights, in the scope or the right to exclude, and in the availability of injunctive relief can be explained by differences in justification for property rights. The article then turns to the interplay between copyright and contract, and suggests that here, too, the difference in foundation for real and intellectual property rights cautions against resort to easy analogies to resolve unique and difficult problems. Monday, August 23, 2004
Yahoo Twist Courtesy of Michael Froomkin, here's a link to the Ninth Circuit opinion in the French Yahoo case. I've just done a quick read of the opinion, but I am not sure that I agree with Froomkin that it is a "pretty reasonable-looking decision." For readers who are not procedure mavens, the case turns on personal jurisdiction. In particular, does a United States Court have jurisdiction over the plaintiffs in the French phase of litigation over whether Yahoo must block access to Nazi paraphenalia auctions for French users of Yahoo. The plaintiffs won in France, and Yahoo sought a declaratory judgment that the French judgment could not be enforced in the United States, because it would violate the first amendment freedom of speech. The Ninth Circuit has overturned Yahoo's victory on that question by holding that the federal trial court lacked jurisdiction over the plaintiffs in the French lawsuit. The Ninth Circuit's reason turns on the interpretation of the Supreme Court's decision in Calder v. Jones--a case in which the Ninth Circuit held that a California trial court had jurisdiction over a Flordia tabloid writer and editor--on the ground that by writing a defamatory article about a Californian, they had intentionally aimed their harmful conduct at California. Yahoo's argument was that the French plaintiff's had intentionally aimed their conduct--getting a French judgment--at Yahoo in the United States. The Ninth Circuit rejected that argument, reasoning that Calder v. Jones only applies to "wrongful" conduct. Here is the crucial passage from the opinion by Judge Ferguson:
Update: C.E. Petit has more on Scrivener's Error. Powers on Preventive Detention Over at Legal AffairsThomas F. Powers has a piece entitled When to Hold 'Em: The U.S. should detain suspected terrorists—even if it can't make a case against them in court. Here's a taste:
Posner Blogs Richard Posner is guest blogging over at Lessig Blog. Here is a roundup of the posts so far:Run, do not walk, to Lessig Blog! Update: And here is Posner's interesting proposal to use fair use to expand the public domain:
Kriegel on Ethical Internalism Over at Desert Landscapes, Uriah Kriegel has a nice post titled Ethical Internalism and the Varieties of Moral Judgment. Here's a taste:
Tushnet on the Rehnquist Court Check out Understanding the Rehnquist Court by Mark Tushnet, guest blogging on Balkinization! Here is a taste:
Conference Announcement: The Challenge of Philosophical Naturalism I'm very excited by this announcement!
June 7, 2005 THE CHALLENGE OF PHILOSOPHICAL NATURALISM Committed Speakers: Brian Leiter (Texas, Law and Philosophy) Stephen Stich (Rutgers, Philosophy) Michael Williams (Johns Hopkins, Philosophy) Meredith Williams (Johns Hopkins, Philosophy) Ben Zirpursky (Fordham, Law) Rutgers University Institute for Law and Philosophy Rutgers Law School Camden, New Jersey Naturalism - roughly, the idea that philosophy should be continuous with natural science - presents the greatest challenge to "conceptual analysis" as a philosophical method. Since Plato, philosophy has attempted to discover analytic truths--statements that are necessarily true as a function of meanings, as opposed to the synthetic truths of empirical science. The American philosopher, Willard Van Orman Quine, is famous for his attack on the analytic/synthetic distinction. As a consequence of the work of Quine and others, contemporary philosophy has turned away from pure conceptual analysis, but in jurisprudence conceptual analysis goes on, almost as if the naturalistic turn in philosophy had never occurred. Legal philosophers continue to investigate questions like, "What is law?" and "Are there any necessary legal truths?," as analytic rather than empirical questions. If Quine is right, the jurisprudential naturalist maintains, jurisprudential appeals to "the essential properties of law" are fundamentally misguided and doomed to failure. This conference will look at naturalism generally and assess in particular its implications for legal theory. The conference is a one-day affair, with the morning devoted to philosophy and the afternoon session to legal theory. For information, contact: Dennis Patterson Distinguished Professor of Law and Philosophy Co-Director, Rutgers Institute for Law and Philosophy dpatters@camden.rutgers.edu Rai on Open and Collaborative Research Arti K. Rai (Duke University School of Law) has posted Open and Collaborative Research: A New Model for Biomedicine (INTELLECTUAL PROPERTY RIGHTS IN FRONTIER INDUSTRIES: SOFTWARE AND BIOTECH, Robert Hahn, ed., AEI-Brookings Press, Forthcoming) on SSRN. Here is the abstract:
Open and collaborative biomedical research does diverge, however, from non-biomedical open source production. Particularly outside the area of software, open and collaborative biomedicine may require restrictions on participation; significant centralization and standardization; reliance on public funding; and limitations on use of "copyleft" licensing. Additionally, if the model is to gain significant traction, practical problems involving the division of consulting revenues between scientists and universities as well as inefficient biological science publication norms will have to be addressed. Opderbeck on Open Source & Biotech David W. Opderbeck (Seton Hall University - School of Law) has posted The Penguin's Genome, or Coase and Open Source Biotechnology on SSRN. Here is the abstract:
Biotechnology, however, is different. The information commons rhetoric often applied to open source software and the Internet fails to withstand scrutiny when applied to biologically based technologies. "Information" can no longer be defined as an independent entity that can be possessed equally by infinite users. Instead, "information" is context-dependent. This is particularly true of biologically-encoded information, which affects direct change in an organism. Under a context-dependent definition, there are economic, social, and biological aspects of rivalry connected to an information resource. A truly open information commons therefore is an unobtainable myth. Because information is in some sense rivalrous, there must be some method of allocation. Collective management by way of open source development is appealing, but biotechnology lacks the sort of community that would make it feasible. In particular, the classical and neo-classical story of science as a homogenous, cooperative enterprise that is being corrupted by private property rights does not correspond to reality. Science, and in particular biotechnology, was and will be rife with competition and gamesmanship. Given these circumstances, a Coasian approach suggests that private property rights should lead to bargaining that will, over time, efficiently allocate the information resources. Many of the transaction costs that have been identified as barriers to such bargaining should not pose insurmountable problems, particularly as players repeatedly interact over the same or similar resources. The most difficult aspect of transaction costs is that of the search costs entailed in defining and clearing multiple rights held by diverse parties under differing intellectual property regimes. If search costs are a primary barrier to bargaining, the primary aim of biotechnology innovation policy should be to reduce those costs. One way this could be accomplished is to establish a national technology database containing information about proprietary claims, license terms, and license prices. Although this solution would not be perfect, it represents a means of reducing barriers to biotechnology innovation consistent with existing norms. Dauvergne on Sovereignty, Migration, and the Rule of Law Catherine Dauvergne (University of British Columbia - Faculty of Law) has posted Sovereignty, Migration and the Rule of Law in Global Times (Modern Law Review, Vol. 67, pp. 588-615, July 2004) on SSRN. Here is the abstract:
McAdams & Nadler Test for Expressive Effects in a Hawk/Dove Game Richard H. McAdams and Janice Nadler (University of Illinois at Urbana-Champaign - College of Law and Northwestern University School of Law) have posted A Third Model of Legal Compliance: Testing for Expressive Effects in a Hawk/Dove Game on SSRN. Here is the abstract:
Saturday, August 21, 2004
Legal Theory Bookworm This week, I am recommending an old favorite, Introduction to Legal Reasoning by E.H. Levi. Along with Bramble Bush by Karl Lellewellyn, Levi's little book is one of the most recommended introductions for first year law students. There is much to criticize in Levi's book, but for its intended audience--first year law students--it provides help and insight. Download of the Week This week, the Download of the Week is Federalism vs. States' Rights : A Defense of Judicial Review in a Federal System by John McGinnis (Northwestern) & Ilya Somin (George Mason). Here is the abstract:
Because these benefits flow to citizens rather than to government officials the structure of federalism creates a classic principal-agent problem. We show in the paper that citizens will be poor monitors of these officials, because they are rationally ignorant of politics, particularly structural issues, like federalism, and because they form a large set of principals, giving them incentives to free ride on the monitoring of others. We then show that state officials have incentives to take advantage of this lax monitoring and themselves abnegate the powers distributed to them by the Constitution. We in fact demonstrate that states officials may surrender their powers and acquiesce in congressional overreaching in the areas of the Commerce Clause, section 5 of the Fourteenth Amendment, the spending power and sovereign immunity. To give just one example, we show that while horizontal competition among the states may benefit citizens, state officials may benefit from avoiding competition and seeking a cartel sustained by a federal regulation For such reasons, the political process cannot be counted upon to protect the proper distribution of powers, because state officials as well as federal officials have few incentives for its preservation. Because our theory of federalism is not a states' rights theory, we also believe that judicial review is appropriate when states usurp federal powers. We show that federal officials may also have incentives to abnegate their own powers in such areas as the dormant Commerce Clause and the Compact Clause. We thus call for more enforcement in some of these areas as well. Ours is thus a unified theory of judicial review that justifies judicial enforcement of the distribution of both federal and state powers. We end by sketching the beginnings of theory, explaining why the federal judiciary, given its structure and incentives, will improve the enforcement of this most essential constitutional distribution of power. Friday, August 20, 2004
Updates to Entry Level Hiring I've posted some additional updates to the entry level hiring reports. Thanks again to everyone whose helped! Federalism Check out Jonathan Adler's Suicidal Folly: Disgust needn’t kill federalism at NRO & Law nerd alert! Federalism debate sweeping blogosphere! on Southern Appeal. Steve Dillard, pace Adler, argues "until Wickard is overruled, I am all for Congress using its judicially expanded Commerce 'power' to shut [physician assisted suicide] down." Adler responds, "Certainly Congress could get away with using its commerce power to restrict doctor-assisted suicide in Oregon and elsewhere. Yet if one believes that such use of the Commerce Clause is unconstitutional -- Supreme Court opinions to the contrary notwithstanding -- I do not believe one should advocate the opportunistic use of such power to achieve desirable policy goals." Ghosh on the Bargain Metaphor for Patent Policy Shubha Ghosh (State University of New York - Law School) has posted Patents and the Regulatory State: Rethinking the Patent Bargain Metaphor after Eldred on SSRN. Here is the abstract:
This article challenges the coherence and purchase of the patent bargain metaphor by arguing that it rests on an outdated notion of the state inconsistent with the many regulatory goals of patent law. The central thesis is that the patent law community should replace the quid pro quo metaphor with a regulatory theory of patents that sees patent law as regulating primary conduct in the innovation process. The adoption of a regulatory theory of patent would aid not only in avoiding some of the conceptual errors in the Eldred decision, but also in understanding recent reform proposals forwarded by the National Academy of Science and the Federal Trade Commission. While this article presents a critique of many existing patent reform proposals, such as the narrowing of subject matter in consideration of competitive concerns and the loosening of the presumption of validity, the article agrees with the spirit of the proposals as examples of the regulatory theory of patent law in practice. The challenge to the patent bargain metaphor is made first as a broad criticism of social contract theory as applied to patent law. It is argued that social contract theory rests on a quaint and pre-modern notion of government which is inconsistent with the realities of the modern regulatory state. It is also argued that social contract theory rests on a misguided reliance on the prisoner's dilemma as a characterization of the problems in private ordering that patent law is designed to address. The prisoner's dilemma is shown to ignore the role of reciprocity and trust in the innovation process. The article presents the assurance game as an alternative representative of the problem of private ordering and basis for patent law. The assurance game expressly incorporates reciprocity and trust into an evolutionary view of the prisoner's dilemma and supports the view that patent law is a regulatory system designed to promote reciprocity and trust much like securities law. The assurance game is used to critique four existing theories of patent law: the prospecting theory, the information costs theory, the business asset theory, and the industry regulation theory. Finally, three salient patent reform proposals, limitations on patentable subject matter, the NAS reform proposals, and the FTC reform proposals are addressed within the frame of the assurance game. These applications demonstrate the power of thinking of patent law in terms of the assurance game and represent the initial steps towards developing a regulatory theory of patent law. Gerhart on Palsgram Peter M. Gerhart (Case Western Reserve University - School of Law) has posted Resuscitating Palsgraf Although derided by many, Justice Cardozo's opinion in Palsgraf shows his deep understanding of the normative content of negligence law. An actor who has not created a risk (the risk of explosion) may not be held responsible for harm coming from the risk unless the actor is connected in some way with the risk; that is true even if the actor's negligent conduct contributes to an explosion. Proof that the railroad took an unreasonable risk that a package might fall is not, by itself, evidence that the railroad created an unreasonable risk of an explosion, for the railroad's risk-taking does not tell us how the railroad would have acted had it known of the risk of explosion. Because all agree that the railroad was not culpable in failing to know what was in the package, the railroad breached no standard of care with respect to the risk of explosion. Not only is this an important substantive statement about what negligence law requires, but Cardozo's opinion also demonstrates that both duty and proximate cause must themselves relate to the normative content of the concept of unreasonable risk-taking. Yahya on the Benefit of the Bargain Theory for Product Liability Moin A. Yahya (University of Alberta - Faculty of Law) has posted Why the Benefit of the Bargain Theory for Product Liability is Bad Law and Bad Economics? on SSRN. Here is the abstract:
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