Yearly Archives: 2013
Jun 5, 2013 Laurel TerryLegal Profession
If you are like me, you have started to notice—more and more frequently—expressions such as “creative destruction,” “creative disruption,” “disruptive innovation,” and “positive disruption.” Two recent examples include the TEDxCHANGE 2013 event held in April in Seattle which had the theme of Positive Disruption and a January 2013 Harvard Business Review blog entry entitled Creative Destruction Visits the Legal Profession. These terms have also appeared in conferences (see Panel 1) and talks at places such as Georgetown and Harvard law schools and in blog posts by higher education leaders, legal academics such as Bruce Kobayashi, and legal consultants such as Jordan Furlong (see here and here [legal education] and here, here, and here [legal services]). Disruptive innovation has been a prominent theme in the award-winning LawWithoutWalls program, which was founded by Michele DeStefano and Michael Bossone from University of Miami School of Law and in the ReInvent Law Laboratory, which is a creation of Michigan State Professors Dan Katz and Renee Knake.
During the past five years, as I have noticed more and more people using expressions such as “creative destruction,” I wondered what class or book I had missed since the speakers all seemed to know much more about this topic than I did. For this reason, I was particularly pleased to read Professor Ray Campbell’s new article entitled Rethinking Regulation and Innovation in The U.S. Legal Services Market because it provided the historical and theoretical background behind these expressions and because it gave me a new way to think about changes taking place in the legal services and legal education markets. Continue reading "“Creative Destruction” and the Legal Services & Legal Education Markets"
Jun 4, 2013 Roman HoyosLegal History
One of my favorite cases is Shelley v. Kraemer (1948), which held that racially restrictive covenants (restrictions barring a racial or ethnic group(s) from owning a home in a particular neighborhood) were unenforceable. In fact, I use this case, along with State v. Mann, Commonwealth v. Alger, and Johnson v. M’Intosh, to help frame my Property course. I use Alger and Johnson to get my students to think about the statist dimensions of property. I then bring in Shelley to explore the relationship between courts and the state, pushing them to see how a judicial decision concerning property rights is an allocation of those rights by the state. Richard Brooks and Carol Rose’s book, Saving the Neighborhood, is a wonderful doctrinal history of Shelley that both confirms and complicates the story I tell my students. More importantly for this piece, it also complicates our understanding of an important period in American legal history.
Saving the Neighborhood charts the rise, fall, and curious persistence of racially restrictive covenants. What particularly grabs Brooks and Rose’s attention is Shelley’s failure to eradicate these covenants. Their persistence is illustrated dramatically by the discovery during Justice Rehnquist’s confirmation hearings for Chief Justice that he owned properties subject to racial covenants (pp. 1-2). This persistence leads Brooks and Rose to an exploration of the relationship between law and social norms. They argue that the covenants’ utility was more about signaling to both insiders and outsiders who was desirable as a neighbor than it was about enforceability. Covenants assured those already within the neighborhood, while warning out racial others who might want to move into it. Continue reading "Property and (Not “vs.”) the State"
Jun 3, 2013 Michael LivingstonTax Law
• Anne Alstott, Updating the Welfare State: Marriage, the Income Tax, and Social Security in the Age of the New Individualism, Tax L. Rev. (forthcoming, 2013) available at SSRN.
• Shari Motro, Preglimony, 63 Stan. L. Rev. 647 (2011).
The tax treatment of marriage, children, and the family unit has attracted increasing attention in the past few years. The most dramatic example is the same sex or “gay marriage” phenomenon, where academics—Patricia Cain and Anthony Infanti come particularly to mind—have frequently anticipated real-world developments. But taxation of heterosexual couples is stuck in a similar time warp, and scholars have been no less aggressive in trying to catch up.
Two authors in particular have done provocative work in this area. The first, Anne Alstott, has a long track record: her book “No Exit” describes the unique phenomenon that is motherhood and the need for tax, spending, and social policies to recognize that uniqueness. In a more recent article, “Updating the Welfare State: Marriage, The Income Tax, and Social Security in the Age of the New Individualism,” Alstott focuses specifically on the tax component. She argues that, because of the overall decline in marriage and the concentration of marriage among higher-income groups, it is no longer appropriate to organize the taxation of families around the existence of the marriage relationship. The most obvious implication is that joint returns should be repealed and replaced with separate, individual returns or (more ambitiously) with combined returns for households whether or not organized by marriage. The social security system would likewise be amended to replace spousal benefits with a system that emphasized caregiver relationships. Many additional portions of tax and nontax law would require similar adjustment: Alstott does not purport to provide a complete list but rather to focus attention on the paradigm shift from which these changes would flow. Continue reading "Taxation and the Family: The Next Generation"
May 31, 2013 Sergio J. CamposCourts Law
Robert L. Jones,
Lessons from a Lost Constitution, 27
J.L. & Pol. 459 (2012), available at
SSRN.
Ian Ayres and Joe Bankman begin one of their articles with a Dilbert cartoon (reproduced below). They use the cartoon to show that firm insiders may use nonpublic information to trade not only their own company stock, but the stock of competitors, rivals, and suppliers. Ayres and Bankman ultimately conclude that insider trading of such stock substitutes is inefficient and should be prohibited, but they acknowledge the argument that insider trading may “produce more accurate stock prices.” Presumably one could learn a lot about a company by paying attention to how its insiders treat substitutes for the company’s stock.
DILBERT ©1996 Scott Adams. Used By permission of UNIVERSAL UCLICK. All rights reserved.
Robert L. Jones has written an excellent article that examines one insider’s views of a substitute for judicial review under the Constitution–James Madison, who is arguably the “father” of the Constitution. (P. 5.) The substitute was a proposed Council of Revision, endorsed by Madison as part of the Virginia Plan. It was ultimately rejected at the Constitutional Convention, but Jones argues that one can learn a great deal about our current practice of judicial review by examining the reasons Madison preferred it over the type of judicial review we have today. Continue reading "Back to the Future"
May 29, 2013 Chris BuccafuscoIntellectual Property Law
Alex Shaw, Vivian Li & Kristina R. Olson, Children Apply Principles of Physical Ownership to Ideas, 36 Cognitive Science 1383 (2012),
available at Yale University.
Legal scholars who study intellectual property rarely think about children. Children are almost never inventors of patented technologies, and, although children’s drawings technically receive copyright protection the moment they are created, children rarely appear as litigants in disputes.
But recent research coming from psychologist Kristina Olson’s lab suggests that we should be thinking more about children. In their new paper, Olson and her graduate students Alex Shaw and Vivian Li, report the results of experiments testing children’s intuitions about the ownership of ideas. This paper provides an interesting insight into the development of our ideas about intellectual property and creativity, and it should be widely read by IP scholars. Continue reading "Out of the Mouths of Babes: Studying Children’s Judgments about Creativity, Ideas, and Ownership"
May 27, 2013 David OrentlicherHealth Law
Empirical research often teaches us that our intuitions are misleading. In an important discussion of her recent studies, Sunita Sah provides good reason to believe that public policy has gone down the wrong track when addressing physicians’ conflicts of interest.
As conflicts of interest for physicians have come under greater scrutiny, regulators commonly turn to disclosure as a remedy for the problem. If patients know about their doctors’ conflicts, the patients can take the conflicts into account when making their health care decisions. Patients can discount a conflicted physician’s advice or seek a second opinion. In addition, disclosure may discourage physicians from accepting payments or making investments that put them in conflicted positions. As it is said, sunshine can be an effective disinfectant. Continue reading "Does Disclosure Protect Patients from Their Physicians’ Conflicts of Interest?"
May 24, 2013 Philomila TsoukalaFamily Law
Sylvia Wairimu Kang’ara, Beyond Bed And Bread: Making The African State Through Marriage Law Reform — Constitutive And Transformative Influences of Anglo-American Legal Thought, 9 Hastings Race & Poverty L. J. 353 (2012), available at Comparative L. Rev.
Western legal regimes tend to characterize family law as a field regulating private relations between adults, as well as between adults and their children and as “the opposite” of both public law and the law of market exchange. During the latter part of the twentieth century, feminists analyzed how the legal treatment of family relations as private amounted to a public endorsement of private coercion. More recently, comparative law scholars have begun to study and understand the emergence of family law as a distinct field in western legal thought. Over and over again, the emergence of family law, a surprisingly recent phenomenon, is associated with constitutive moments in the making of modern states: from federalism in the U.S. to the construction of nation-states in Europe. Sylvia Wairimu Kang’ara’s Beyond Bed and Bread: Making the African State Through Marriage Law Reform is an important new contribution to this literature, demonstrating the central role that reforming marriages played in the construction of colonial and post-colonial states in the parts of sub-Saharan Africa colonized by Britain.
The Article begins by analyzing the central role that the invalidation of customary marriages in Africa played in colonial administration. During the initial legal encounter between common law and African customary laws, judges invalidated large swaths of prior legal relations. In a (professed) effort to align colonial practices with English morality, colonial administrations superimposed a classical legal scheme of thinking about the family and the market at a moment when most of the African economy depended upon a different household model. Instead of the separate spheres ideology that characterized family law of the classical legal tradition, African customary marriages were based on an economically active household—often composed of polygamous units engaging in economically important exchanges of property through marriage, such as the bride-price. Starting from an assumption that individual free will was the building block for any civilized legal system, colonial judges invalidated customary marriages as repugnant to English colonial morality. They looked hard, but did not seem to find any African subjects capable of becoming “individual holders of exclusive and absolute rights” in the classical legal tradition. Critically, customary marriage’s failure to cultivate subjects that were suitable rightsholders marked the first step toward property expropriation in the name of empire building. Continue reading "Colonial and Postcolonial Constructions of Family Law"
May 22, 2013 Isabel GrantEquality
Pascale Fournier, Pascal McDougall & Anna R. Dekker, Dishonour, Provocation and Culture: Through the Beholder’s Eye?, 16(2) Can. Crim. L. Rev. 161 (2012), available at the University of Ottawa. In their thought-provoking work Dishonour, Provocation and Culture: Through the Beholder’s Eye?, Pascale Fournier, Pascal McDougall and Anna R. Dekker use a unique blend of historical, cross-cultural and empirical analysis to reveal the connections between so-called “honour killings” and intimate femicides where the defence of provocation is invoked. While “honour killings” typically involve “non-Western” defendants, and concerns about gender equality are more explicit, intimate femicides raise similar equality concerns which are often unrecognized and concealed. The authors acknowledge that there are differences between our typical conception of honour killings and the spousal homicides in which provocation is raised by Western defendants. For example, traditional honour killings invoke the idea of public honour, whereas in the provoked intimate femicides, “the locus of honour has shifted from the traditional extended family to the individual man” (178). However, there are underlying features that link spousal homicides to honour killings: both are “cultural claims tied to male domination of the family” (180) and both turn on the desire to control women’s sexuality. In essence, the defence of provocation is portrayed as a privatization of honour, with aspects of honour manifested through Western understandings of “passion”.
The defence of provocation in Canada has not been explicitly linked to male honour in the case law. Instead, the defence is viewed as making concessions to human frailty, and is limited by the concept of the “ordinary person”. The insult which triggers the killing must be grave enough to cause the ordinary person to lose self-control, and the accused must have reacted suddenly, before there was time for his “passions to cool”. But this concession to human frailty masks the historical basis of the defence and the meaning embedded in spousal homicide cases. The idea of women and children as property of their male partners looms large even in recent cases. The public framing of honour killings as something “other” than Western obscures the foundations of spousal femicides in Canada, which are rooted in individual conceptions of male honour. Continue reading "Provoked Intimate Femicides: A Privatized Version of “Honour”?"
May 20, 2013 Paul OhmTechnology Law
Lauren Willis, When Nudges Fail: Slippery Defaults, 80 U. Chi. L. Rev. ___ (forthcoming 2013) available at SSRN.
If Jotwell is meant to surface obscure gems of legal scholarship, which might go unnoticed otherwise, I might be missing the point by highlighting a work forthcoming in the not-so-obscure University of Chicago Law Review on the au courant topics of nudges and liberal paternalism. But Lauren Willis’s new article, When Nudges Fail: Slippery Defaults, might escape the attention and acclaim it deserves as a work of information privacy law, so it is in that field I hope to give the article its due.
Willis’s article takes on the pervasive idea that all default choices are sticky. Defaults can sometimes be sticky, but Willis carefully deconstructs the economic, social, and technological preconditions that tend toward stickiness, and then demonstrates how firms can manipulate those conditions to render defaults quite slippery. Continue reading "The Care and Feeding of Sticky Defaults in Information Privacy Law"
May 17, 2013 Mary FanCriminal Law
Margaret Hu,
Biometric ID Cybersurveillance, 88
Indiana L.J.__ (forthcoming 2013), available at
SSRN.
The memory seems almost quaint. While waiting with prosecutors in the hallway between indictments, an excellent customs and border protection agent would entertain and impress with his uncanny ability to pick out fake passports from real ones. Part of this skill came from a keen mind capable of decoding the patterns of passport numbers and comparing them against the algorithm used in official passports. Part of this talent came from the wisdom and judgment honed by experience.
The dystopian world of “biometric ID cybersurveillance” that Margaret Hu envisions makes the old passports and smart agents seem old-fashioned. She catalogues the many ways the government is working toward expanding its “virtual cybersurveillance and dataveillance capacities.” She maps out emerging forms of “bureaucratized cybersurveillance” – more pervasive ways of technology-assisted identity verification and tracking. For example, instead of those stodgy information-limited modes of ID checks such as reviewing paper passports, alien identity papers, social security cards and driver’s licenses, she writes of biometric ID checks, digitalized IDs and other more information-laden methods of identification. Automated checks, database screening and biometric IDs may even “remove[] the matching process from the trained expertise of specific forensic experts,” leaving us at the mercy of glitchy and hard-to-contest hardware and software. Continue reading "The Brave New World of Identification"
