Jul 5, 2022 Thomas BustamanteJurisprudence
David Dyzenhaus, The Long Arc of Legality: Hobbes, Kelsen, Hart (2022).
David Dyzenhaus argued in the last paragraph of The Long Arc of Legality that, except for the rare cases where there is a need for a revolution, “our moral and legal lives are completely and utterly intertwined.” (P. 422.) But this apparently radical endorsement of natural law theory is nuanced because Dyzenhaus has only a pragmatic morality in mind. In agreement with Hart, he rejects the assumption that legal philosophers should choose between the metaethical positions of moral realism and emotivism (P. 370) and suggests, instead, that the law is a kind of “laboratory for the testing of moral ideals.” (P. 387.)
A distinctive and interesting part of Dyzenhaus’s contribution is his explanation of how that pragmatic morality relates to law. To understand the law’s authority, Dyzenhaus puts legal subjects, instead of officials, at the center of legal inquiry. Jurisprudence’s “first question” becomes the question that legal subjects are entitled to ask from the legal system’s internal point of view, that is, the question “But, how can that be the law for me?” (P. 2), which Bernard Williams described as the “Basic Legitimation Demand” of any political society. A modern state must satisfy that justificatory requirement because that is what shows that such state “wields authority, rather than sheer or unmediated coercive power, over those subject to its rule.” (P. 213.) Continue reading "Interpretive Authority and the Kelsenian Quest for Legality"
Jul 4, 2022 Natsu Taylor SaitoEquality
As teachers and scholars, we think a lot about how the world really works, what can be done to make it more equitable, and how to articulate coherent analyses that will be put to good use by others. For those of us who’ve been at it a while, it’s wonderful to hear from young scholars excited by something we wrote long ago—but it can be disheartening as well. After that initial relief that the piece hasn’t been swallowed by a black hole, the worry sets in. Why does decades-old work appear as fresh insight? Are we still circling the same old rock? Shouldn’t this intellectual project have evolved much further by now?
Then, along comes a gem like Raymond Magsaysay’s Asian Americans and Pacific Islanders and the Prison Industrial Complex. This somewhat prosaic title masks a beautifully written and artfully constructed exposé of the conceptual disappearance of Asian Americans and Pacific Islanders (“AAPIs”) in the criminal “justice” system. It is not, however, a “we, too, are oppressed” story. Rather, the brilliance of Magsaysay’s article lies in his use of critical race theory, Asian American jurisprudence, and the work of anti-colonial and indigenist scholars as well as prison abolitionists to highlight how the narratives of criminalized AAPI youth can undermine anti-Black racism and help us envision a future unconstrained by mass incarceration. Continue reading "Erasure: The Conceptual Disappearance of Criminalized Asian Americans and Pacific Islanders"
Jul 1, 2022 Christopher J. SprigmanIntellectual Property Law
Mark Bartholomew of the University at Buffalo School of Law recently published an article in the Notre Dame Law Review, Copyright and the Creative Process, which offers a fresh perspective on a central question in copyright law—what is “creativity?” Creativity is the thing that copyright law is meant to encourage. Copyright, in other words, is justified as a way of incentivizing creativity. But copyright law’s understanding of creativity is notably spare. The U.S. Copyright Act states that a work must be “original” in order to be protected. But the Act does not define originality, or situate it within the broader concept of “creativity.” The Supreme Court in its decision in Feist Publ’ns, Inc. v. Rural Tel. Serv. Co. was only a bit more forthcoming. Originality, the Feist Court made clear, does not require the sort of novelty that eligibility for patent protection does. Rather, what is required is only independent creation (i.e., that the work originate with the author, rather than being wholly copied from another), and that is “possess[es] some creative spark, no matter how crude, humble or obvious is might be.” Id. at 345 (internal quotations omitted).
Feist makes it clear that the standard is not demanding. It does not make clear, however, how to assess in borderline cases whether a work meets that low threshold and is creative enough to be protected. Copyright’s reticence on this point is, at minimum, a bit strange. Some have reacted by suggesting that we drop or at least de-emphasize creativity as an entry condition for copyright protection. Others have gone in the opposite direction, suggesting that the creativity standard be raised. But it’s difficult to know what to do with copyright’s creativity requirement, if anything, until we understand the concept better. Continue reading "What Can Neuroscience Teach Us About Copyright?"
