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Philosophical Legal Ethics: An Affectionate History
Get PDFThe modern subject of theoretical legal ethics began in the 1970s. This brief history distinguishes two waves of theoretical writing on legal ethics. The “First Wave” connects the subject to moral philosophy and focuses on conflicts between ordinary morality and lawyers’ role morality, while the “Second Wave” focuses instead on the role legal representation plays in maintaining and fostering a pluralist democracy. We trace the emergence of the First Wave to the larger social movements of the 1960s and 1970s; in the conclusion, we speculate about possible directions for a Third Wave of theoretical legal ethics, based in behavioral ethics, virtue ethics, or fiduciary theory
Piece by Piece Review of Digitize-and-Lend Projects Through the Lens of Copyright and Fair Use
Get PDFDigitize-and-lend library projects can benefit societies in multiple ways, from providing information to people in remote areas, to reducing duplication of effort in digitization, to providing access to people with disabilities. Such projects contemplate not just digitizing library titles for regular patron use, but also allowing the digitized versions to be used for interlibrary loan (ILL), sharing within consortia, and replacing print copies at other libraries. Many of these functions are already supported within the analog world (e.g., ILL), and the digitize-and-lend concept is largely a logical outgrowth of technology, much like the transitioning from manual hand duplication of books to printing presses. The purpose of each function is to facilitate user access to information. Technology can amplify that access, but in doing so, libraries must also be careful not to upset the long established balance in copyright, where authors’ rights sit on the other side of the scale from public benefit.
This article seeks to provide a primer on the various components in a digitize-and-lend project, explore the core copyright issues in each, and explain how these projects maintain the balance of copyright even as libraries take advantage of newer technologies
Property in the Anthropocene
Get PDFHuman-induced climate change threatens perilous risks for our physical homes and also poses a serious challenge to our legal institutions. Several scholars already have remarked on the disruption climate change has brought to specific legal areas, such as tort, standing, and national security. This essay argues that climate change will also disrupt fundamental ideas about real property. It maintains that the growing need for human management of dynamic natural forces, distorted by greenhouse gas emissions, will erode the foundations of physical stability and owner autonomy that shape basic doctrines of property law
“America First”: Prospects for Global Health
Get PDFIn his inaugural speech, President Trump said, “From this day forward, it’s going to be only America first.” The term has an ugly history, which can be traced to the America First Committee that opposed any US involvement in World War II, with undertones of anti-Semitism.
As an expression of nationalistic populism, “America First” is in tension with the global common good. While governments have duties toward their citizens, a nation’s health can be effectively secured only through international cooperation. Trump’s political philosophy—erecting walls (literally and figuratively) and distrusting international law and institutions—rejects core values of shared responsibility and mutual solidarity. In particular, the following 5 policies would make America, and the world, less healthy and secure: Mexico City (Reproductive Health), travel and refugee ban, Global Health Security Agenda, PEPFAR, WHO and the UN System
The New Legal Criticism
Get PDFProfessors Hanoch Dagan and Avihay Dorfman’s article Just Relationships is a fundamental reinterpretation of the moral ideals of large swaths of private law. Its significance, however, may go beyond even that broad ambition. In this Response, I suggest that Just Relationships is also an exemplar—perhaps par excellence—of an emergent form of critical discourse, which may itself foreshadow a paradigm shift in contemporary critical legal scholarship. That new form of scholarship might usefully be dubbed “the new legal criticism.” The label serves partly as an echo of the “New Criticism” movement that emerged in literary criticism in the middle of the twentieth-century, which, in methodological ways, the new legal criticism very much resembles. But primarily, the label “new legal criticism” suggests that this ascendant group of legal scholars articulates a different point of departure for critical thinking about law—particularly for critical thinking about private law—from that which most immediately preceded it in twentieth century legal thought: the critical legal studies movement.
Part I describes new legal criticism and compares it with the critical legal scholarship movements of the 1970s, 1980s, and 1990s. Part II further expands my claim that Just Relationships is a good exemplar of the new legal criticism by looking at the roles played by relational justice in Dagan and Dorfman’s explication of their jurisprudential claims. Part III looks at the limits of new legal criticism, again as exemplified by Just Relationships. I will explore whether the reliance of the new legal criticism on law itself in the development of the idea of justice limits its potency as a form of criticism by comparing the authors’ discussion of discrimination in housing with a subject they do not address, at-will employment. Finally, the conclusion explores possible avenues of further exploration within the authors’ chosen field—private law, largely understood—and within the parameters set by the new legal criticism’s premises
Brief of Scholars of the History and Original Meaning of the Fourth Amendment as Amici Curiae in Support of Petitioner, Carpenter v. United States, No. 16-402 (U.S. Aug. 14, 2017)
Get PDFObtaining and examining cell site location records to find a person is a “search” in any normal sense of the word — a search of documents and a search for a person and her personal effects. It is therefore a “search” within the meaning of the Fourth Amendment in that it constitutes “examining,” “exploring,” “looking through,” “inquiring,” “seeking,” or “trying to find.” Nothing about the text of the Fourth Amendment, or the historical backdrop against which it was adopted, suggests that “search” should be construed more narrowly as, for example, intrusions upon subjectively manifested expectations of privacy that society is prepared to recognize as reasonable.Entrusting government agents with unfettered discretion to conduct searches using cell site location information undermines Fourth Amendment rights. The Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches.” The Framers chose that language deliberately. It reflected the insecurity they suffered at the hands of “writs of assistance,” a form of general warrant that granted state agents broad discretion to search wherever they pleased. Such arbitrary power was “unreasonable” to the Framers, being “against the reason of the common law,” and it was intolerable because of its oppressive impact on “the people” as a whole. As emphasized in one of the seminal English cases that inspired the Amendment, this kind of general power to search was “totally subversive of the liberty of the subject.” James Otis’s famous speech denouncing a colonial writ of assistance similarly condemned those writs as “the worst instrument of arbitrary power,” placing “the liberty of every man in the hands of every petty officer.” Thus, although those who drafted and ratified the Fourth Amendment could not have anticipated cellphone technology, they would have recognized the dangers inherent in any state claim of unlimited authority to conduct searches for evidence of criminal activity. Cell site location information provides insight into where we go and what we do. Because this information is constantly generated and can be retrieved by the government long after the activities it memorializes have taken place, unfettered government access to cell site location information raises the specter of general searches and undermines the security of “the people.
Macroeconomic Modeling of Tax Policy: A Comparison of Current Methodologies
Get PDFThe macroeconomic effects of tax reform are a subject of significant discussion and controversy. In 2015, the House of Representatives adopted a new “dynamic scoring” rule requiring a point estimate within the budget window of the deficit effect due to the macroeconomic response to certain proposed tax legislation. The revenue estimates provided by the staff of the Joint Committee on Taxation (JCT) for major tax bills often play a critical role in Congressional deliberations and public discussion of those bills. The JCT has long had macroeconomic analytic capability, and in recent years, responding to Congress’ interest in macrodynamic estimates for purposes of scoring legislation, outside think tank groups — notably the Tax Policy Center and the Tax Foundation — have also developed macrodynamic estimation models. The May 2017 National Tax Association (NTA) Spring Symposium brought together the JCT with the Tax Foundation and the Tax Policy Center for a panel discussion regarding their respective macrodynamic estimating approaches. This paper reports on that discussion. Below each organization provides a general description of their macrodynamic modeling methodology and answers five questions posed by the convening authors
From \u3ci\u3eTexas Gulf Sulphur\u3c/i\u3e to \u3ci\u3eChiarella\u3c/i\u3e: A Tale of Two Duties
Get PDFThis short essay is for a “celebration” of the fiftieth anniversary of the Second Circuit’s decision in SEC v. Texas Gulf Sulphur Inc. It tells of two distinct doctrinal journeys begun in TGS—one dealing with insider trading, the other with corporate liability for false corporate publicity. The first involves the “equal access” principle planted therein and then harshly discarded by the Supreme Court twelve years later in Chiarella v. United States. My claim is that marketplace egalitarianism never had much traction in the period from TGS to Chiarella, and was largely dead by the time the Court officially extinguished it. By that time, it played mainly a boogeyman role. The second journey had a different fate: the flourishing of the fraud-on-the-market cause of action. But an important back story also takes us from TGS to Chiarella in the truncation of the corporation’s affirmative duty to disclose, which was collateral damage from the Court’s insider trading ruling. Though now mostly forgotten because of all that was swept away in Chiarella’s wake, landmarks along the way can be pieced together into an interesting story of legal archeology, with some contemporary relevance
Beyond the RCT: Integrating Rigor and Relevance to Evaluate the Outcomes of Domestic Violence Programs
Get PDFPrograms for domestic violence (DV) victims and their families have grown exponentially over the last four decades. The evidence demonstrating the extent of their effectiveness, however, often has been criticized as stemming from studies lacking scientific rigor. A core reason for this critique is the widespread belief that credible evidence can derive only from research grounded in randomized control trials (RCTs). Although the RCT method has its strengths, we argue that it is rarely an optimal—or even a possible—approach for evaluating multifaceted DV programs. This article reviews the reasons that RCT is a poor fit for such programs and argues that a more inclusive conceptualization of credible evidence is critical to expanding our knowledge base about how DV programs affect survivors’ safety and well-being
Delaware’s Dominance: A Peculiar Illustration of American Federalism
Get PDFDelaware rose to preeminence in the incorporation market after a key point of inflection for corporate law. Around the turn of the 20th century, “laissez faire” statutes signaled a shift from state regulation of corporations to private ordering and markets at a time when the decline of ultra vires, quo waranto, and regulation of foreign corporations first made it possible for a state to attract substantial incorporation business from its neighbors. The regulatory impulse of the earlier corporations statutes, however, did not disappear. It simply moved to federal law—in antitrust, securities, or labor-- setting up a strong federalism dimension for the “who makes corporate law” debate. In many ways this federalism discussion is still framed by the key question of corporate law from the 1960s and 1970s: Is Delaware’s dominance explained by a “race to the bottom” skewing corporate law in favor of management interests who influence state lawmaking at the expense of shareholders (and suggesting a greater role for federal law) or by a “race to the top” with state law incorporating rules that reflect preferences made through markets? The key legal concepts of federalism appearing in this debate date from the New Deal and focus on whether the federal government will preempt state corporate law, usually by adding regulation to a space that state law has left to private ordering. Corporate law federalism is in need of an update. An “on-off” view of allocating law-making power between state or federal government has given way in other fields to a more nuanced view of interactive federalism. This chapter, part of a book, “Can Delaware Be Dethroned? Evaluating Delaware’s Dominance of Corporate Law”, presents the richer and more nuanced space of 21st century corporate law federalism that has some points in common with federalism discussion in other subject areas and some that reflect the particular history of the development of corporate law. The last section suggests how this federalism dimension influences the race between the states in a way that essentially has locked Delaware’s dominance in place