Legal Theory Blog

Legal Theory Blog

All the theory that fits!

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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.

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Links for Legal Theory Blog

--Lawrence B. Solum (My Homepage at the University of Illinois)

--My College of Law Directory Page

--My Philosophy Department Directory Page

--Email me

--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

2005-06 Report on Law School Entry Level Hiring

2004-05 Report on Law School Entry Level Hiring

2003-04 Report on Entry Level Hiring

Legal Theory Bookclub: Lessig's Free Culture

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 - 10/01/2002 01/01/2003 - 02/01/2003 02/01/2003 - 03/01/2003 03/01/2003 - 04/01/2003 04/01/2003 - 05/01/2003 05/01/2003 - 06/01/2003 06/01/2003 - 07/01/2003 07/01/2003 - 08/01/2003 08/01/2003 - 09/01/2003 09/01/2003 - 10/01/2003 10/01/2003 - 11/01/2003 11/01/2003 - 12/01/2003 12/01/2003 - 01/01/2004 01/01/2004 - 02/01/2004 02/01/2004 - 03/01/2004 03/01/2004 - 04/01/2004 04/01/2004 - 05/01/2004 05/01/2004 - 06/01/2004 06/01/2004 - 07/01/2004 07/01/2004 - 08/01/2004 08/01/2004 - 09/01/2004 09/01/2004 - 10/01/2004 10/01/2004 - 11/01/2004 11/01/2004 - 12/01/2004 12/01/2004 - 01/01/2005 01/01/2005 - 02/01/2005 02/01/2005 - 03/01/2005 03/01/2005 - 04/01/2005 04/01/2005 - 05/01/2005 05/01/2005 - 06/01/2005 06/01/2005 - 07/01/2005 07/01/2005 - 08/01/2005 08/01/2005 - 09/01/2005 09/01/2005 - 10/01/2005 10/01/2005 - 11/01/2005 11/01/2005 - 12/01/2005 12/01/2005 - 01/01/2006 01/01/2006 - 02/01/2006 02/01/2006 - 03/01/2006 03/01/2006 - 04/01/2006 04/01/2006 - 05/01/2006 05/01/2006 - 06/01/2006 06/01/2006 - 07/01/2006 07/01/2006 - 08/01/2006 03/01/2011 - 04/01/2011

Blogosphere

New: --PrawfsBlog
(Group BLog)

--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?
(Eric Muller)

--Law & Society Weblog
(Group Blog)

--The Leiter Reports
(Brian Leiter)

--Lessig Blog
(Lawrence Lessig)

--Marstonalia
(Brett Marston)

--Paper Chase @ Jurist
(Bernard Hibbitts)

--Political Arguments
(Group Blog)

--ProfessorBainbridge.com
(Stephen Bainbridge)

--Pea Soup
(Group Blog)

--Punishment Theory
(Group Blog)

--The Right Coast
(Group Blog)

--SCOTUS Blog
(Group Blog)

--Sentencing Law and Policy
(Douglas Berman

--Statutory Construction Zone
(Gary O'Connor)

--TaxProf Blog
(Paul Caron)

--Volokh Conspiracy
(Group Blog)

Websites of Interest

+Arts and Letters Daily

+Conference Alerts

+Daily Whirl

+fa.philos-l

+Economic Theory News

+Encyclopedia of Law and Economics

+Jurisprudence and Social Policy Program (U.C. 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. Oddi)

--Infothought
(Seth Finkelstein)

--IPKat
(Jeremy Phillips and Ilanah Simon)

--Law and Economics Blog
(Greg Goelzhauser)

--Law Dork
(Chris Geidner)

--Law Meme
(Group Blog)

--Lee Blog
Edward Lee

--Legal Ramblings
(Steven Wu)

--Lenz Blog
(Karl-Friedrich Lenz)

--Letters of Marque
(Heidi Bond)

--The Light of Reason
(Arthur Silber)

--Matthew Yglesias

--philosophy.com
(Gary Sauer-Thompson )

--Public Defender Dude

--Rodger A. Payne's Blog

--Southern Appeal
(Group Blog)

--Strange Doctrines/A>

--Susan Crawford blog

--A Taxing Blog
(Group Blog)

--That's News to Me
(Group Blog)

--Thoughts Arguments and Rants
(Brian Weatherson)

--Three Years of Hell to Become the Devil

--The Trademark Blog
(Martin Schwimmer)

--Troppo Armadillo
(Ken Parish)

--Technology 360

--Tutissima Cassis
(Nate Oman)

--Unlearned Hand

--Weatherall's Law
(Kim Weatherall)

--WENDY.SELTZER.ORG
(Wendy Seltzer)

--yin
(Tung Yin)

Legal Theory Programs & Websites

--Arizona State Committee on Law and Philosophy

--Cambridge Forum for Legal and Political Philosophy

--Columbia Law School Center for Law and Philosophy

--Columbia Legal Theory Workhsop

--Georgetown University Law Center--Colloquium on Constitutional Law and Theory

--Jurisprudence and Social Policy Program (U.C. Berkeley)

--Kadish Center for Morality, Law, and Public Affairs (U.C. Berkeley)

--NYU Colloquium in Legal, Political and Social Philosophy

--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

+Fordham

+George Mason

+George Washington--IP Workshop Series

+Georgetown Colloquium on Intellectual Property & Technology Law

+Georgetown Law Workshops

+Georgetown Law and Economics Workshop

+Georgetown Law & Economics Workshop Series

+Hofstra

+University of Illinois

+Lewis & Clark

+Loyola Marymount

+New York University

+NYU Legal History Colloquium

+Northwestern Law Colloquium

+Oxford Law Events

+Rutgers, Camden

+Stanford Center for Internet & Society

+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

+Yale Law, Economics & Organizations Workshop

Calendars & Events

+Aristotelian Society

+British Society for Ethical Theory

+Conference Alerts

+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 College, London: Political Theory Seminars

--University of Arizona Philosophy Colloquia

--University of Bristol Philosophy Research Seminars

--University of California at Berkeley Philosophy Events

--University of California at San Diego Philosophy Colloquia

--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 Illinois College of Law
504 East Pennsylvania Ave
Champaign, IL 61820
USA

Tuesday, August 31, 2004

Lipshaw on Jurisprudence & Sarbanes-Oxley Jeffrey M. Lipshaw has posted Sarbanes-Oxley, Jurisprudence, Game Theory, Insurance and Kant: Toward a Moral Theory of Good Governance (Wayne Law Review, Forthcoming) on SSRN. Here is the abstract:

The governance rules mandated by Sarbanes-Oxley, and the SEC regulations thereunder, were in direct response to many of the specific misdeeds of the Enron, WorldCom and other scandals, leaving corporate lawyers scrambling to keep their clients in technical compliance, but wondering whether it would create better governance. In this paper, I contend first that the frustrations with Sarbanes-Oxley have their basis in the jurisprudence underlying Sarbanes - the presence or absence of articulated policies and principles underlying the specific rules. I assess the law under modern positivist and naturalist theories, and point out ironies in its ultimate application. Second, I contend there is a more fundamental issue. Neither the law, nor one of the most cogent theories of non-legal norms - Eric Posner's application of game theory and signaling to principles - accounts fully for the moral aspect of corporate board service and ethical decision-making. I critique the economic model with a real world example of a wealthy director's assessment of his potential gain versus potential exposure. I suggest there is a moral theory that explains compliance outside of law or economics, and that the directors operate simultaneously under moral, legal and economic dictates. Finally, I contend social policy and legal training that in turn fail to recognize the importance of moral bearing on corporate governance will very likely miss the intended objective of good governance: more thoughtful, independent focus by boards on their fiduciary obligations to corporate stakeholders.

Posted by Lawrence Solum at 8/31/2004 05:13:00 PM

Graber on Civil Liberties in Wartime Mark Graber is guest blogging on Balkinization. Check out his Civil Liberties in "Wartime" I. Here's a taste:

What administration officials do during a war depends largely on their predispositions before the War. Members of the Wilson administration had exhibited no solicitude for speech rights before the war, and restricted those rights sharply during the war. Members of the Roosevelt administration, by comparison, were supportive of civil liberties before the war, and regarded World War Two as a vehicle for advancing more libertarian and egalitarian policies. Civil liberties during the present war against terrorism fit this historical pattern. The Bush administration is restricting primarily those rights that the administration sought to limit before September 11. The Patriot Act and related administration actions are consistent with previous Bush administration efforts to increase the power of government agencies to investigate criminal activities, to limit the procedural rights of criminal suspects, and to favor management over labor unions. The Patriot Act contains several provisions whose impact is limited to ordinary domestic crime. The mass detention of foreign nationals merely carries to an extreme previous policies that vested aliens with fewer and fewer legal rights. When, as is the case with gun control, the Bush administration before the war aggressively supported the right in question, it has steadfastly declared that present military conditions do not justify any intrusion into the constitutional rights of Americans.

Posted by Lawrence Solum at 8/31/2004 05:10:00 PM

Rubin on Public Choice & Tort Reform Paul H. Rubin (Emory University-Department of Economics and School of Law) has posted Public Choice and Tort Reform on SSRN. Here is the abstract:

It was originally thought that the structure of the common law would not allow rent seeking. More recently, scholars have realized that there is room for rent seeking, and that attorneys are engaged in exactly this process. This rent seeking has led to a great increase in the scope of U.S. tort law, and a corresponding effort to limit the scope of the law. This creates an ideal system for students of public choice. There are organized interest groups on both sides (attorneys, businesses and doctors) which are both coalitions themselves and members of broader coalitions. Each side has numerous tools available for advancing its agenda, such as litigating and lobbying for favorable rules, and attempting to elect preferred representatives and judges. There is ample comparative data available at the state level and also roll call votes at the federal level useful for studying these issues. This is an important and interesting area for future research.

Posted by Lawrence Solum at 8/31/2004 02:57:00 PM

Monday, August 30, 2004

Alstott on Justice, Children, and Families Anne Alstott (Yale Law School) has sample chapters of her book, No Exit: What Parents Owe Their Children and What Society Owes Parents, up on SSRN. Here's the abstract:

America's public policies have not kept pace with our rising standards for child-rearing. Child-rearing was once an economic bargain for parents who received a little worker and a retirement policy with each child. But thanks to technological and social change, parenthood has become a uniquely costly pursuit: we expect parents to protect their children's developmental chances, even at the expense of their own opportunities. Today, parenthood requires a decades-long restructuring of one's economic and personal life. Society expects parents to provide the continuity of care that is critical for children's development. Put succinctly, we tell parents Do Not Exit, and the great majority of parents - especially mothers - comply. But the economic costs of this No Exit obligation are enormous, and borne primarily by mothers. In every income class, mothers work less, earn less, and achieve less (in economic terms) than childless women and than men. Mothers interrupt their working lives at high rates, and as a consequence, they enter middle- and old-age with less financial independence. The libertarian reply is, essentially, So what? Mothers know - or ought to know - what they are getting into, and they should plan for the economic burdens of parenthood by saving, marrying, or remaining childless if need be. On this view, it is unfair to ask the childless to subsidize their peers who choose parenthood. This book aims to demonstrate that the libertarian assertion of equality between parents and nonparents is superficial, because it overlooks the child in the picture. Once we recognize the social importance of parents' No Exit duty, we can begin to understand society's special obligation to parents. The book also proposes a set of public policies that would offer practical assistance to modern families. Caretaker resource accounts would provide parents with $5,000 per year, to be used for child care, parents' own education, or retirement savings. For the average family, this program would mark a major new commitment of resources that could improve parents' own economic fortunes. At the same time, the program would permit parental choice, leaving it up to individuals to decide whether to stay in the workforce or take time out or in part-time work. Moreover, the initiative would direct resources to individuals, avoiding the partiality and potential side-effects of some family-friendly workplace initiatives. Another set of policies, termed life-planning insurance, would enrich the resources offered to parents of special needs children - a group for whom the No Exit obligation is especially costly. Today, public policy underwrites special education and health care for children with disabilities - but largely ignores the economic plight of their parents, who often find their own working lives permanently disrupted.Anne's paper for the Fordham Rawls & the Law conference was the download of the week on Saturday. And here is the link to the book's Amazon.com page.

Posted by Lawrence Solum at 8/30/2004 03:10:00 PM

Part 3 of Tushnet on the Rehnquist Court All three posts are superb. Check out the latest.

Posted by Lawrence Solum at 8/30/2004 11:28:00 AM

Welcome to the Blogosphere . . . to BizFemsSpeak, including

Susan J. Stabile Lynne L. Dallas Lynn A. Stout Kellye Testy Joan Heminway Jill Fisch Janis Sarra Cynthia A. Williams Claire Moore Dickerson Christine Hurt

Posted by Lawrence Solum at 8/30/2004 10:49:00 AM

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:

In the era of digital delivery of content, copyright owners have turned with a vengeance to contract law to specify the rights and responsibilities of their customers. Many copyright owners today seek to avoid the express statutory limits on their rights contained in the Copyright Act by invoking the institution of contract. For example, these contracts attempt to prohibit the exercise of rights universally recognized as fair use, such as copying portions of a work for criticisms, product comparison and reverse engineering, or they seek to limit the application of the first sale doctrine. Enforcement of these contractual provisions alters the statutory scheme defined by Congress in the Copyright Act. This Article argues that the current legal doctrines available to invalidate these overreaching provisions or to strike claims asserted for their breach fail to provide appropriate incentives to reform contracting behavior by content owners. Even if, as a matter of contract law, a court would not enforce contractual terms that are inconsistent with the Copyright Act, the use of these provisions in ubiquitous shrinkwrap and clickwrap licenses has an in terrorem effect on users. After exploring the potential chilling effect that these overreaching clauses may have on users' behavior and why it is critical for courts to find ways to discourage the use of such clauses, this article argues that applying an appropriately tailored doctrine of copyright misuse to these licensing terms would provide a more robust reformation of contracting behavior. 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.

Posted by Lawrence Solum at 8/30/2004 10:43:00 AM

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:

The traditional understanding of broad-based tax systems contrasts an income tax with all forms of a consumption tax. The income tax, alone, includes the yield to capital in its base; consumption taxes do not. Simple financial analysis demonstrates the equivalence of the two most common classes of consumption taxation - prepaid, or wage-based, and postpaid, or sales taxes - under certain assumptions, most importantly including constant tax and interest rates between the periods in the model. Advocates of redistributive taxes insist on both progressive rates and an income base, in large part to tax the yield to capital; opponents clamor for flat-rate consumption taxes, often invoking Mill's celebrated argument against the income tax's double taxation of savings to support their case. Once progressivity is presumed, however - as its enduring popular appeal suggests it ought be - the traditional understanding is flawed. Asking a different timing question, when, in a taxpayer's flow of funds, ought progressive taxes be imposed?, casts tax systems in a new light. The present tax system emerges as an onerous wage-based one. A progressive cash-flow consumption tax, in contrast, emerges as the best - most consistent and principled - tax on the yield to capital, under just the conditions in which it is fair and appropriate to tax such yield. This gives a further reason to support a progressive cash-flow consumption tax, sounding in reasons familiar to income tax supporters. A consistent progressive cash-flow consumption tax will lower the burden of taxation when capital transactions (borrowing, saving, and investing) are used to smooth labor earnings within or between lifetimes (or taxpayers), and will increase the burden of taxation when capital transactions are used to enhance labor earnings within or between lifetimes (or taxpayers). Critical reflection based on a near century of experience reveals such a tax to give form to attractive normative ideals. The new understanding helps to show that the traditional and most common arguments for consumption taxation are not compelling. The best, most appealing case for a consumption tax does not rest on simple horizontal equity models, nor on claims about the economic, consequentialist importance of savings on an individual or an aggregate social level. Rather it is claims of fairness, in a social contractarian sense in the manner of John Rawls and other liberal theorists, that argue for a properly designed consumption tax - in part precisely because of the way such a tax sometimes but not all the times burdens capital and its yield, and in greater part because such a tax points the way towards greater, more meaningful progressivity in tax. The new understanding of tax yields important insights into pressingly practical matters of tax policy and design, and opens up an important window to critique contemporary trends in tax reform. The battle in tax policy should not be over income versus consumption taxation - as it has been for centuries - but rather over what kind of consumption tax to choose. Failure to address this question head-on has led tax policy to move, seemingly inexorably, towards the wrong choice, with the fate of progressive, redistributive taxation hanging in the balance. I always enjoy Ed's sophisticated & interesting work.

Posted by Lawrence Solum at 8/30/2004 10:40:00 AM

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:

I have come to think that Blakely is so consequential and also so confusing because functionality, not formalism, is the hallmark of many facets of guideline sentencing. For example, as noted in this US Sentencing Commission discussion paper, the controversial "relevant conduct" rules in the federal system were devised as a functional solution to the dilemmas of both real-offense and charge-offense sentencing. More broadly, judges have routinely been placed at the center of guideline sentencing systems because judges seem functionally well suited to make the many nuanced fact and value judgments that are implicated in sentencing decisions. But now, says the Blakely court, regardless of who might be the most functional fact-finder, the Sixth Amendment formally demands that any fact (other than a prior conviction) which can increase a defendant's effective maximum sentence must be found by a jury or admitted by the defendant.

Posted by Lawrence Solum at 8/30/2004 08:12:00 AM

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.

Posted by Lawrence Solum at 8/30/2004 08:02:00 AM

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 1983 Harvard law professor Duncan Kennedy self-published a biting critique of the law school system called Legal Education and the Reproduction of Hierarchy. This controversial booklet was reviewed in several major law journals—unprecedented for a self-published work—and influenced a generation of law students and teachers. 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.

Posted by Lawrence Solum at 8/28/2004 01:45:00 PM

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:

What role do - and should - parents play in a fair society, taking that term in a Rawlsian sense? Over time, our society's demands on parents have steeply increased, while the economic rewards of child-rearing have diminished. Slowly but surely, a combination of technological, social, and legal change has transformed modern parenthood into an extraordinarily demanding social role. But should we understand the economic costs of modern child-rearing to be a matter for public concern? Or should we, instead, conceive of parenthood as an essentially personal endeavor - a private project? 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.Download it while its hot!

Posted by Lawrence Solum at 8/28/2004 01:37:00 PM

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:

Judicial opinions are the core work-product of judges. They are much more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic. When a court adopts a party's proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions.. Here's a taste of Greg Bair's reaction:

for practical purposes, I wonder if it matters. If one side of a dispute has clearly the better legal argument (and I'm not necessarily saying that was the case here), then the Court might be justified in paraphrasing sections of the prevailing party's brief in its opinion. Of course, that's different from what the Third Circuit is complaining about here—perhaps as different as paraphrasing is from plagiarism.

Posted by Lawrence Solum at 8/27/2004 09:47:00 AM

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:

We've known for a long time that William Brennan provided that leadership from Burger's appointment (and even before) until Brennan's retirement. Brennan was able to provide that leadership because of his personality and his strategic sense. Since Brennan's retirement, the leadership on the liberal side has come from, surprisingly, John Paul Stevens. It's surprising because of Stevens's well-known idiosyncracies about constitutional doctrine. And, I confess, it's not clear to me how Stevens has managed to pull it off; I think that Stevens's role on the Rehnquist Court is probably the largest untold story about the Court in the 1990s. To the extent I can figure it out, one important component is Stevens's facility at opinion assignment. Interestingly, he's been able to do that in important part because of Rehnquist's insistence that each justice end up with an equal number of majority opinions at the end of each Term. When the Court's unanimous, or nearly so, Rehnquist will assign the "dogs" to some of the liberals. When the liberals manage to get a majority, Stevens can "use up" an opinion assignment, thereby restricting Rehnquist's options as the Term goes on. (One effect, for example, is that Rehnquist is forced into giving more assignments to Scalia and Thomas than he would [probably] like -- because those two justices are more likely to draft hard-edged conservative opinions that will lead O'Connor or Kennedy to have second thoughts.) All this is pretty speculative, although I bet that a quantitative political scientist could get us closer to understanding the post-Brennan opinion assignment process.

Posted by Lawrence Solum at 8/27/2004 09:42:00 AM

New from Law & Politics Book Review

Reviewed by Odeana R. Neal

Reviewed by Albert P. Melone

Reviewed by George Kiser

Reviewed by Robert M. Howard

Reviewed by Mark Kessler

Reviewed by Lawrence E. Rothstein

If you are a legal scholar who entered the profession long after the "little red book" (i.e. the original version of Kennedy's Legal Education and the Reproduction of Hierarchy) was almost a craze or if you are currently a law student with an interest in becoming a law professor, this is a book you should read. Not because its arguments are sound (see Leiter for the one-minute critique of CLS), but because it will illuminate the current landscape in legal theory. You can't really understand the impacted and twisted landscape of early twenty-first century American legal theory unless you know about the traces left by the Critical Legal Studies movement. Here's a link to the Legal Education and the Reproduction of Hierarchy on Amazon.com.

Posted by Lawrence Solum at 8/27/2004 09:09:00 AM

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:

There is no conclusive, scientific answer to the question of what children's development and well-being will be if society permits same-sex marriages. This is not surprising, in view of the limited nature of research done, and the difficulties of doing large scale, randomized, controlled studies. Indeed, virtually none of the changes which have dramatically affected the institution of marriage in recent times - including no-fault divorce and the entry of mothers of infants and young children into the full-time workforce - have been preceded by reliable scientific studies demonstrating the likely effects of such changes on children. 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.

Posted by Lawrence Solum at 8/27/2004 09:07:00 AM

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 introduces the idea of "no property" and develops this concept in the context of homelessness. Homelessness has to this point in time largely been treated as a problem of poverty. Having formulated the issue in this way, legal and social analysts have asked a limited, almost formulaic set of questions concerning the depth, scope, and the cause of the problem (e.g., is homelessness a product of individual weakness or of structural forces beyond any individual's control?) These questions, it turns out, are both extremely difficult to answer and, more disturbingly, not terribly helpful. Even the strongest case that homelessness is "caused" by institutional forces and not personal failure seems unlikely to lead either local or national government to commit the resources necessary to “solve” the underlying problem if that problem is, say, a failure of the housing market to produce affordable rental units or a failure of the job market to produce entry level jobs that pay decently. 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.

Posted by Lawrence Solum at 8/27/2004 09:06:00 AM

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:

Posted by Lawrence Solum at 8/26/2004 12:30:00 PM

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:

The Constitution provides the political branches broad discretion to test the substantive ideologies of prospective federal judges as qualifications for judicial office. However, the Religious Test Clause limits political branch discretion to establish qualifications by providing that "[n]o religious Test shall ever be required as a Qualification" for holding public office. Having no operational consensus regarding the Religious Test Clause's appropriate scope, the political branches have routinely considered judicial candidates' religious qualities without regard for constitutional implications. 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.

Posted by Lawrence Solum at 8/26/2004 12:20:00 PM

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.

Posted by Lawrence Solum at 8/26/2004 12:11:00 PM

Wednesday, August 25, 2004

New from Law & Politics Book Review

Reviewed by Mark C. Miller

Reviewed by David L. Weiden

Reviewed by Deborah E. Sulzbach

Reviewed by Mark Tushnet

And if I may, I would like to put in a BIG PLUG for Shiner's Freedom of Commercial Expression. Here is a taste of Mark Tushnet's review:

Shiner concludes by noting that "[t]he friends of the commercial expression doctrine call upon the professional skills of the advertiser to influence judicial reasoning," and that the "drumbeat" of the associated rhetoric "is as relentless, and if one is not careful as hypnotic, as in any Brazilian football crowd or heavy-metal extravaganza" (p.331). Shiner's is a work of conceptual dissection, done with the kind of care that forestalls the hypnotic effects. The book is filled with extremely precise formulations, the subtlety of which is inevitably lost in a short review.I couldn't agree more with Mark: precision and subtlety is right on the money. Here is the Amazon.com link for Freedom of Commercial Expression.

Posted by Lawrence Solum at 8/25/2004 09:08:00 AM

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!

THE CHALLENGE OF PHILOSOPHICAL NATURALISM

Here is the link for the conference website.Wow!

Posted by Lawrence Solum at 8/25/2004 07:38:00 AM

Conference Announcement: Relativism

On Friday 17th and Saturday 18th September, the research project 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

Posted by Lawrence Solum at 8/25/2004 07:33:00 AM

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.

Posted by Lawrence Solum at 8/25/2004 07:29:00 AM

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:

Libertarians no longer argue, as they once did in the 1970s, about whether libertarianism must be grounded on moral rights or on consequences; they no longer act as though they must choose between these two moral views. In this paper, I contend that libertarians need not choose between moral rights and consequences because theirs is a political, not a moral, philosophy, one that can be shown to be compatible with various moral theories, which is one source of its appeal. 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.

Posted by Lawrence Solum at 8/24/2004 09:16:00 AM

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:

Increased use of the intellectual property label to describe copyright and related areas of law has spawned analogies to the protections afforded real property. These analogies ignore significant differences between the foundations that undergird real and intellectual property rights. In particular, real property rights operate to avoid breaches of the peace and tragedies of the commons - problems that do not arise with intellectual works, while copyright and other intellectual property rights are designed to provide an incentive to create, an incentive irrelevant when land is at issue. These disparities in justification caution against routine importation of real property concepts into copyright law. 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.

Posted by Lawrence Solum at 8/24/2004 09:14:00 AM

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:

Here, however, the French court has already upheld LICRA and UEJF’s position with respect to French law. We know that LICRA and UEJF were acting to uphold their legitimate rights under French law. This places the parties in this case in a very different posture than the parties in Bancroft & Masters. As a result, we cannot say here that the parties did anything wrongful, sufficient for a finding of “express aiming,” in bringing this suit against Yahoo!.It seems to me that this reasoning is a bit off kilter. The French plaintiff's intentionally got a French judgment that was expressly aimed at a U.S. defendant. The "wrong" is the chilling effect on expressive activity in the United States. And it is pretty clear that the French plaintiff's intended their French judgment to have precisely that effect. The fact that their actions were not wrongful under French law doesn't ential the conclusion that those actions cannot be considered as "wrongful" under U.S. law. Perhaps Froomkin did not mean to endorse the reasoning, but merely to suggest that it is not "off the wall." If so, I agree with him.
Update: C.E. Petit has more on Scrivener's Error.

Posted by Lawrence Solum at 8/23/2004 02:51:00 PM

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:

THE POLICIES OF BRITAIN AND ISRAEL each moved in the same direction: toward greater legal clarity and toward more extensive due process protections. The United States should take advantage of those countries' experiences to find ways to build due process into preventive detention. Current U.S. policy reflects a reactive and piecemeal approach. Designing a preventive detention policy means, in effect, creating a separate legal system that applies only to a small class of persons, a system running parallel to criminal law on the one hand, and to the laws governing POWs and war criminals on the other.

Posted by Lawrence Solum at 8/23/2004 01:23:00 PM

Posner Blogs Richard Posner is guest blogging over at Lessig Blog. Here is a roundup of the posts so far:

Eldred Revisited

Licensing and Fair Use

Fair Use and Licensing

Run, do not walk, to Lessig Blog!
Update: And here is Posner's interesting proposal to use fair use to expand the public domain:

Bill Patry, a distinguished copyright lawyer and treatise writer, and I have written an article soon to be published in the California Law Review in which we advocate an interpretation of “fair use” that would solve the major problem that extending the copyright term creates. We argue that it should be considered fair use to copy an old work if the copyright owner hasn’t taken reasonable steps to provide notice of his continued rights, as by entering his name and address in a copyright registry. Given such a rule, such registries (which have counterparts in the case of works of visual art) would spring up overnight. Then if an Eldred wanted to publish some old work, he would consult the registry or registries and if no owner was listed (which would usually be the case, because most old works have no commercial value and so their owners won’t bother to try to keep them from falling into the public domain), he could publish it without a license.This seems like a very good idea, but wouldn't the registry idea require legislative action? I must read the article, forthcoming in the California Law Review, in which Posner and Bill Patry present their proposal at greate length.

Posted by Lawrence Solum at 8/23/2004 01:09:00 PM

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:

Let’s consider the version of ethical internalism according to which moral judgments are intrinsically motivating. This is a universal claim: *all* moral judgments are intrinsically motivating. It seems odd to hold that some are and some are not. Perhaps some are motivating and some are not, but then those that are are probably only *extrinsically* motivating. (Set aside the issue of clarifying what “intrinsically” and “extrinsically” come to in this context.)

Posted by Lawrence Solum at 8/23/2004 12:30:00 PM

Tushnet on the Rehnquist Court Check out Understanding the Rehnquist Court by Mark Tushnet, guest blogging on Balkinization! Here is a taste:

But, more broadly, Casey stands for -- symbolizes -- a division within the Republican party, between what I call modern (post-Goldwater) Republicans and traditional Republicans of a sort that was once associated with Nelson Rockefeller and that still remains strong in the Republican party in the Northeast. The latter point explains why Souter's positions should not come as a complete surprise. He's said that he came to the Court completely unacquainted with the important constitutional issues that he's had to deal with, but that doesn't explain why, once he studied the issues, he came out where he did. I think the reason is that his sensibilities and presuppositions were those of a Northeastern Republican.It is a treat to have Mark Tushnet in the blogosphere!

Posted by Lawrence Solum at 8/23/2004 10:14:00 AM

Conference Announcement: The Challenge of Philosophical Naturalism I'm very excited by this announcement!

THE CHALLENGE OF PHILOSOPHICAL NATURALISM

Here is the link for the conference website.

Posted by Lawrence Solum at 8/23/2004 10:08:00 AM

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:

The advent of open source software has prompted some theoretical speculation about the applicability of open source production principles to biomedical research. This paper moves beyond theoretical analysis into an empirical examination of biomedical research projects that operate under what might be called an "open and collaborative" model. Open and collaborative projects represent a fresh approach to biomedicine in that they not only disavow its exclusionary behavior but they also reject its small-lab based structure. The paper argues that open and collaborative biomedical research represents a promising experiment. Not only has it produced software and genomic data that is usable, but the resulting public domain status for this software and data may reduce access and transaction cost problems for follow-on innovators. The model's least intuitive, but most exciting, application may involve "wet lab" systems biology: in this context, the model may allow a more coordinated and comprehensive attack than has heretofore been possible on the sorts of problems that cause promising drug candidates, particularly for complex diseases, to fail. 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.

Posted by Lawrence Solum at 8/23/2004 10:05:00 AM

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:

Open source offers an interesting alternative to government control or private bargaining over rights to a commons. Open source production, however, will not occur on any significant scale absent certain conditions. Certain types of software have been developed effectively through open source methods because the projects were divisible and granular and the roots of the necessary social structure existed in early "hacker" communities and copyright license models were adaptable to support open source norms. 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.

Posted by Lawrence Solum at 8/23/2004 10:02:00 AM

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:

This article argues that in the present era of globalisation, control over the movement of people has become the last bastion of sovereignty. This is important both to theoretical accounts of globalisation and to policy decisions by governments. Nation states threatened with loss of control in other realms are implementing a variety of 'crackdown' measures in questions of immigration. Issues of refugee law, illegal migration and skilled migration each challenge sovereignty in specific ways. While international human rights standards have made few inroads in questions of migration, recent decisions in England and Australia suggest that the rule of law may be emerging as a counter to traditional executive free reign in matters of migration law.

Posted by Lawrence Solum at 8/23/2004 10:01:00 AM

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:

Economic theories of legal compliance emphasize legal sanctions, while psychological and sociological theories stress the perceived legitimacy of law. Without disputing the importance of either mechanism, we test a third way that law affects behavior, an expressive theory that claims law influences behavior by creating a focal point around which individuals coordinate. We argue that mixed motive games involving coordination model many common disputes, and that, in such games, any third-party cheap talk, including legal rules, that calls the players' attention to a particular equilibrium tends to produce that equilibrium. We investigated how various forms of third party cheap talk influence the behavior of subjects in a Hawk/Dove or Chicken game. Despite the players' conflicting interests, we found that messages highlighting one equilibrium tend to produce that outcome. This result emerged when the message was selected by an overtly random, mechanical process, and also when it was delivered by a third-party subject; the latter effect was significantly stronger than the former only when the subject speaker was selected by a merit-based process. These results suggest that, in certain circumstances, law generates compliance not only by sanctions and legitimacy, but also by facilitating coordination around a focal outcome.

Posted by Lawrence Solum at 8/23/2004 10:00:00 AM

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.

Posted by Lawrence Solum at 8/21/2004 10:16:00 AM

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:

This essay offers a new defense of judicial review of the Constitution's federal structure. It begins by showing that federalism is best understood not as a system that creates rights for states but benefits for the citizens of the nation. It achieves this goal by distributing powers best exercised at the national level to the federal government and those best exercised more locally to the states. The benefits of this distribution include catering to diverse preferences of citizens in different states and creating horizontal competition among the states for efficient provision of government services. 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.Download it while its hot!

Posted by Lawrence Solum at 8/21/2004 10:05:00 AM

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!

Posted by Lawrence Solum at 8/20/2004 09:25:00 AM

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."

Posted by Lawrence Solum at 8/20/2004 08:13:00 AM

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:

The metaphor of the patent bargain, the notion that a patent represents the grant of the right of exclusivity in exchange for the disclosure of a novel invention, is generally accepted among the members of the patent law community. Evidence of the metaphor's persuasiveness and pervasiveness is provided by the Supreme Court's reliance on the patent quid pro quo as a framing device to address the question of the constitutionality of copyright term extension in Eldred v. Ashcroft. 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.

Posted by Lawrence Solum at 8/20/2004 07:03:00 AM

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.

Posted by Lawrence Solum at 8/20/2004 07:01:00 AM

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:

Plaintiffs are using a new and novel theory to seek compensation for products that have not yet injured them. Such plaintiffs claim that, even though the product they are using has not injured them, the discovery of a potential for injury reveals an actionable form of misrepresentation. The consumers claim they would not have paid the price they paid had they known about the potential for injury, and therefore, the manufacturer has been unjustly enriched. They want the firm to pay back the difference between what they paid and what they would have paid had they known of the potential for harm. This difference is known as the "benefit of the bargain." In this paper, I show that such plaintiffs have no legitimate claim. The nature of the plaintiff's loss is economic in nature. Tort law does not allow recovery for economic losses, except under certain circumstances, none of which are present in the typical sale of a product. Even if plaintiffs were able to recover the "benefit of the bargain," I show that benefit is negligible. Any extra price paid is an insurance premium that the manufacturer collects to compensate consumers in the event of actual injury. Furthermore, given that different consumers value products for different reasons, and not just for the safety factor, measuring what the consumers would have paid had they known a product is unsafe is a speculative venture at best. Looking at some economic studies done on a variety of products, I conclude that the absolute dollar premium that consumers attach to safety for most products is minimal. Hence, any recovery by consumers for the "benefit of the bargain" would be minimal too.

Posted by Lawrence Solum at 8/20/2004 07:00:00 AM

Thursday, August 19, 2004

Tushnet on Balkinization Don't miss the always intelligent and learned Mark Tushnet guest blogging on Balinization. His first post is Antonin Scalia as Felix Frankfurter. Here is a taste:

I've been struck by some similarities between Antonin Scalia and Felix Frankfurter, despite their obvious jurisprudential differences (Frankfurter the defender of fact-sensitive balancing [sometimes], Scalia the advocate of rule-based decision-making). Both were politically active law professors before they became judges. And, like Frankfurter when he was on the Court, Scalia has an active group of enthusiastic supporters in the legal academy. (Frankfurter was born too soon for the Web, but I'm sure that, had it been possible, there would have been the equivalent of http://ninomania.blogspot.com/ for Frankfurter.) Push the suggestion of similarity a bit, and what might we see? Frankfurter reputation has declined substantially -- even from the time when I was a law student -- to the point where he's regarded, I think, as at most a moderately interesting failure. I think that -- at this point -- there's some reason to think that Scalia might be the same. (I've inserted the qualification because "failure to this point" might turn out to be "success in the end" depending on who is appointed to the Court before Scalia throws in the towel.)Readers of legal theory blog will definitely want to read Tushnet's post!

Posted by Lawrence Solum at 8/19/2004 05:07:00 PM

McGinnis & Somin on Federalism & States' Rights John McGinnis (Northwestern) & Ilya Somin (George Mason) have posted Federalism vs. States' Rights : A Defense of Judicial Review in a Federal System on SSRN. Here is the abstract:

Posted by Lawrence Solum at 8/19/2004 04:56:00 PM

New from Law & Politics Book Review

Reviewed by David Schultz

Reviewed by Rosalie R. Young

Reviewed by David Dehnel

Reviewed by Jennifer Faust

Reviewed by Rory O'Connell

Posted by Lawrence Solum at 8/19/2004 11:19:00 AM

Call for Papers: Virtue Epistemology

Virtue Epistemology Conference Paper Submission, c/o Dr. Duncan Pritchard, Department of Philosophy, University of Stirling, Stirling, FK9 4LA Scotland, UK

Posted by Lawrence Solum at 8/19/2004 11:14:00 AM

Priester on Hamdi & Habeas Benjamin J. Priester (Florida State University - College of Law) has posted Return of the Great Writ: Judicial Review, Due Process, and the Detention of Alleged Terrorists as Enemy Combatants. Here is the abstract:

The paper analyzes the fundamental constitutional questions left unresolved by the June 2004 trio of United States Supreme Court opinions in Hamdi v. Rumsfeld, Rumsfeld v. Padilla, and Rasul v. Bush. It evaluates the proper role of judicial review, through the procedure of a petition for the writ of habeas corpus, of the detention of a United States citizen as an "enemy combatant" under the laws of war based on the government's allegation that the individual is a terrorist. The President's classification of a citizen as an enemy combatant rather than an ordinary criminal has consequences of tremendous significance, including the deprivation of numerous constitutional rights and confinement in military rather than civilian custody. Despite the significance of the issues at stake, however, the role of judicial review in this context is surprisingly unclear. In fact, the courts have yet to reach, much less resolve, many of the most basic constitutional questions. The paper confronts those questions, and proposes answers to them, from the perspective of structural constitutional analysis of criminal procedure and due process principles. The manuscript concludes that the Due Process Clause mandates that the government surpass substantial procedural requirements before imposing the significant deprivations of liberty caused by an enemy combatant detention. A citizen may be detained in military custody as an enemy combatant only if the government can prove that the individual is in fact a belligerent engaged in armed conflict against the United States within the terms of the laws of war. This requires proof not only of active present membership in a terrorist organization but also specific intent to carry out imminent acts of terrorism. Furthermore, the Due Process Clause requires that the government prove its claims by clear and convincing evidence and that the petitioner be given a number of important procedural protections in the hearing, including the right of access to counsel and the right to challenge the government's evidence. Only if the government can carry its burden under these rigorous procedures may it detain a citizen as an enemy combatant.

Posted by Lawrence Solum at 8/19/2004 09:00:00 AM

Wednesday, August 18, 2004

ACS on Enemy Combatants Check out the American Constitution Society Blog for "Enemy Combatants," The Constitution and the Administration's "War on Terror" by Kate Martin and Joe Onek. Here's a taste:

The administration claims that the conflict with al Qaeda is a war and that therefore reliance on the criminal law is misplaced. It then claims that the conflict is a new kind of war, in which the traditional law of war, including the Geneva Conventions, does not apply. The President further claims, as Commander in Chief, the authority to write new rules for the conflict and to do so without Congressional approval. Finally, the administration claims that because this is a war, the usual role of the courts in enforcing protections against arbitrary deprivations of individual liberty must be suspended. The administration's legal framework needs to be examined piece by piece. There are in fact circumstances in the conflict with al Qaeda - e.g. the invasion of Afghanistan - where the use of military force is both lawful and appropriate, and in such cases the law of war governs. But when the courts in the U.S. are open and the U.S. military is not engaged in combat inside the U.S. criminal law is the appropriate, adequate and constitutional means for dealing with alleged al Qaeda associates found in this country. In no instance does the Constitution give the President the authority to write new rules for this conflict on his own. And, as the Supreme Court has now decisively declared, the Executive is answerable in court for its post-9/11 detentions of individuals.

Posted by Lawrence Solum at 8/18/2004 08:30:00 AM

Tuesday, August 17, 2004

Nimmer on the DMCA & Free Speech Raymond T. Nimmer (University of Houston - Law Center) has posted First Amendment Speech and The Digital Millennium Copyright Act: A Proper Marriage (COPYRIGHT AND FREE SPEECH - COMPARATIVE AND INTERNATIONAL ANALYSES, Jonathan Griffiths, Uma Suthersanen, eds., Oxford University Press, February 2005). Here is the abstract:

Digital Millennium Copyright Act (DMCA) anti-circumvention rules have been the subject of intense attacks, many of which come from a group of activists who can be described as "rights restrictors" and whose position on intellectual property issues favors a lessening in law and in practice of the scope of intellectual property rights. Among the attacks have been claims that DMCA is unconstitutional. This article argues that when the DMCA is viewed in proper context it satisfies applicable First Amendment tests and, indeed, is a pro-speech law, responding to changes caused by digital technology which threaten to reduce incentives for the creation and dissemination of creative works by making unauthorized reproduction and mass distribution of those works far easier than under prior technology. The relationship between law and innovation is complex and its balance has been altered by digital systems. Protecting the use of circumvention technology is a rational response to reinstating or maintaining the incentives to create and disseminate copyrighted works. The DMCA does that in a manner the impact of which expands both proprietary and public domain information. As content-neutral regulation, the constitutional test of validity for DMCA is whether substantially more speech is regulated than is necessary to achieve the governmental purpose. In fact, in most cases, DMCA-regulated conduct does not involve speech and, to the extent that it does, it properly focuses on conduct elements in a content neutral manner despite incidental impact on speech.

Posted by Lawrence Solum at 8/17/2004 10:31:00 AM

Berman on the Commerce Clause Mitchell N. Berman (University of Texas Law School) has posted Guillen and Gullibility: Piercing the Surface of Commerce Clause Doctrine (Iowa Law Review, Vol. 89, p. 1487, 2004). Here is the abstract:

In Pierce County v. Guillen, the Supreme Court's most recent Commerce Clause decision, the Court upheld a federal law that protects information compiled or collected by states and localities in connection with federal highway safety programs from being discovered or admitted into evidence in state or federal trials. A short and unanimous decision, Guillen has gone almost entirely unnoticed. This article aims to rectify that oversight. Very simply, Guillen is not the gimme that its length, tone, and reception all conspire to suggest. At the heart of the case is a puzzle. And attempts to unravel that puzzle may substantially aid our collective understandings both of the likely trajectory of evolving Commerce Clause jurisprudence and of the conceptual structure of constitutional adjudication. The Guillen puzzle emerges against the background supplied by the Rehnquist Court's leading Commerce Clause decisions - United States v. Lopez, and United States v. Morrison. In short, Lopez held the federal Gun-Free School Zone Act (GFSZA) objectionable on at least two bases: that it regulated non-commercial activity - gun possession - and interfered with traditional areas of state sovereignty - education. Morrison struck down the civil remedies provision of the Violence Against Women Act (VAWA) also because it regulated non-commercial activity - gender-motivated violence - and interfered with traditional areas of state sovereignty - criminal law. The statute at issue in Guillen regulated apparently non-commercial activity - the discovery and introduction of evidence in civil litigation - and interfered with a traditional area of state sovereignty - state judicial processes. One might have suspected, therefore, that it would fall on the authority of Lopez and Morrison. The puzzle is why it did not. The central challenge confronting the Court's Commerce Clause jurisprudence for much of the nation's history has been to steer a path between conferring upon Congress a de facto police power and hamstringing Congress from meeting the needs of a vibrant national economy. This is no easy task. Too often, though, the Supreme Court and its commentators have jumped straight into the project of doctrine-making without pausing to consider what the constitutional meaning is that the in-court doctrine should be designed to implement. This article proposes that the key to resolving the Guillen puzzle might reside in the Court's inchoate views on just that analytically prior question: what does the Commerce Clause mean? That is, although the statute at issue in Guillen was hard to distinguish from the GFSZA and VAWA's civil remedies provision when measured against the Commerce Clause doctrine that Lopez and Morrison together birthed, it might be distinguishable when measured against what a majority of the Court understands the Commerce Clause to mean. I have recently argued elsewhere that the Court's project of developing sound constitutional doctrine would often benefit from a more careful distinction between what the Court understands the Constitution to mean and the decision rules crafted to instruct courts how to determine whether that meaning is satisfied. Insofar as Guillen may help scholars, judges and lawyers gain a better grasp on the distinction between Court-announced meaning and Court-crafted decision rules in the Commerce Clause context, it may yet have substantial importance notwithstanding its modest dress.

Posted by Lawrence Solum at 8/17/2004 10:28:00 AM

Monday, August 16, 2004

Bernstein on Genetic Testing and the Internet Gaia Bernstein (Seton Hall University - School of Law) has posted Accommodating Technological Innovation: Identity, Genetic Testing and the Internet (Vanderbilt Law Review, Vol. 57, p. 963, 2004) on SSRN. Here is the abstract:

To evaluate the need for legal change stemming from technological innovation we need to look beyond the accommodations of specific rules and on to the impact of technological innovation on social structures, institutes and values. In this article I study how social tensions created by recent technological innovations produce a need to elevate a legal interest from the shadows of legal discourse into the forefront of legal debate. Specifically, I examine two innovations that are exerting significant influence on our lives - genetic testing and the Internet - and their impact on our normative conception of identity. This socially oriented approach leads to several insights. First, I show that a host of seemingly unrelated social and legal controversies emanating from these technologies can be traced to a common tension. I demonstrate that by altering social structures through which we perceive our identity, genetic testing and the Internet induce novel societal tensions Secondly, I find that despite the role identity tensions play in controversies implicating genetic testing and the Internet, these tensions are not addressed in the legal debate. Furthermore, I show that our legal tools often fail to even indirectly protect identity interests. The study of identity tensions, therefore, uncovers a need for legal adjustment to accommodate the social changes resulting from the diffusion of these new technologies. The failure to address identity interests combined with the frequent failure to provide for their protection calls for the incorporation of identity interests into our legal debate. Identity interests need to be considered in controversies as diverse as the physician's duty to warn relatives of a patient's genetic condition and commercial profiling on the Internet. Specifically, I propose two potential resolutions: (i) direct incorporation of an independent identity interest and; (ii) indirect incorporation through the readjustment of existing doctrinal tools. I suggest that the pressures applied by the new technologies make both options viable by creating the need for inducing long overdue changes in our traditionally conservative legal discourse.

Posted by Lawrence Solum at 8/16/2004 10:09:00 AM

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