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Subsistence as Resistance: Reconceptualizing the Theory of Progressive Property to Incubate Resistance to Consumerism
No full textThis Article reconceptualizes the theory of progressive property by juxtaposing legal theory with the empirical study of a subsistence economy in the U.S. Subarctic. Progressive property holds that owners are bound by obligations to non-owners as a means to achieve human flourishing. The theory is constrained by the primacy of private property in Western thought, and it also lacks the ecological ethic required for sustainability. Drawing from my fieldwork, I suggest that human flourishing must additionally incubate resistance to consumerism.
Federal statute, 16 U.S.C. § 3113, defines subsistence as “the customary and traditional uses by rural Alaska residents of wild, renewable resources.” Alaska Natives, however, view subsistence as the heart of their lifeway, which is creative and intergenerational. I conducted twenty-seven narrative interviews with subsistence practitioners in the remote community of Cordova in southcentral Alaska; the qualitative analysis of these interviews yielded an unexpected category of “resistance.” Resistance is evidenced by the interviewees’ connection to their immediate geography, self-reliance and self-motivation, and opposition to the values that they ascribe to mainstream society.
Subsistence practitioners—although a non-dominant and ostensibly peripheral group—have agency as well as dignity and voice. Their lives exemplify the richness of human flourishing and make manifest the bounty of the landscape. I identify and describe three characteristics of resistance within an expanded theoretical context: intentionality, resilience, and sustainability. Only by reconceptualizing progressive property can we protect living and non-living natural resources and safeguard traditional cultural places like the Copper River Basin
Customary Corruption
Full text linkFor over a hundred years, it has been well-accepted among tort scholars that physicians—as one of the legally recognized professions— determine their own customary practices. Within tort law, and medical malpractice more specifically, customary practice establishes whether physicians breach or uphold the required standard of care toward their patients. The results of our hand-coded examination of decided cases and statutes show a more complex picture. While some states have endeavored to shift the standard away from professional custom, it continues to play a critical, and in many cases a determinative, role in establishing physician liability in most states.
Using illustrative case studies, we demonstrate how this outsized role of customary practice may undermine the ability of tort law to protect patients from harm. Customary practice is shaped by a variety of factors, including physician education, scientific studies, and government regulation. Pharmaceutical companies influence these factors to alter physician practices and expand markets for their drugs, often at the expense of patient and public health. This industry pressure directly influences whether a physician is viewed as breaching their legal standard of care, undermining tort law as a form of private regulation of prescribing practices.
To address this problem, this Article argues for a shift in tort doctrine— the explicit abandonment of the rule that customary practice determines breach for prescribing practices, and a move to a reasonableness standard under which professional custom is only one aspect of determining breach. We address the doctrinal and medical benefits of such a shift and conclude that it is essential to the integrity of the private regulation of pharmaceuticals. Our thesis and arguments have significant implications for the role of custom in medicine more generally and for other legally recognized professions
Against the Sliding Scale
Full text linkGavil and Salop claim that the Chicago School’s “conservative critique of antitrust law” has peddled numerous pro-defendant economic assumptions, misleading courts in their assessment of alleged exclusionary conduct. The resulting legal standards, they say, require plaintiffs to adduce too much evidence to establish a prima facie case, for instance, producing false negatives and thus allowing restraints that injure purchasers to avoid condemnation. Drawing on decision theory, they propose reforms to the rule of reason analysis applied to exclusionary agreements to extirpate the Chicago School’s baneful influence. In suggesting these reforms, they hope sometimes to alter the parties’ respective burdens of production and the manner of satisfying such burdens.
This essay focuses on Gavil and Salop’s embrace of a so-called “sliding scale” approach to rule of reason analysis.
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Part I of this essay discusses the distinction and interaction between perse and rule-of-reason analysis. Part II describes the methodology of modern rule of reason analysis, developed by the late Professor Phillip Areeda at Harvard Law School. Part III describes the Chicago School’s failed attempt to amend the Areeda framework to require additional proof of anticompetitive conduct, including proof that defendants possess high market shares in a properly-defined relevant market. Part IV explains how application of Professor Areeda’s framework has almost led to de facto legality for restraints that survive per se condemnation, inspiring proposals to relax the requirements for establishing a prima facie case. Part V critiques Gavil and Salop’s version of the sliding-scale approach, and in particular their support for and invocation of quick look analysis. Part VI explains how the Areeda rule-of-reason methodology is in fact biased against certain exclusionary agreements, particularly those that avoid per se condemnation because they may overcome a market failure.
This abstract has been taken from the author\u27s introduction
Mandatory Fertilizer Regulations: A Survey of State and Federal Laws
Full text linkThe Environmental Protection Agency describes nutrient pollution as “one of the most widespread and challenging environmental problems faced by our nation.” Despite this acknowledgment, federal and state governments impose little to no mandatory laws to regulate the application of synthetic fertilizers to farmland, the primary source of nutrient pollution. Further, emissions from agriculture play a key role in global emissions; failing to address them could prevent the global attainment of the 1.5 degrees Celsius and 2 degrees Celsius climate change goals. In an attempt to shed light on the issue, this Article describes the significant climatic and environmental impacts of fertilizers and surveys the legal landscape of fertilizers, outlining the outright exemption of fertilizers from federal environmental laws and the dismal regulation of such at the state level. Please note, given that synthetic fertilizers and manure-based fertilizers are subject to vastly different regulatory schemes, this Article’s use of the term “fertilizers“ applies only to synthetic fertilizers
Design Patent Infringement as Unfair Competition
Full text linkThe rule for determining design patent infringement requires an assessment of substantial similarity through the eyes of an ordinary observer—similarity sufficient to induce the observer to purchase the infringing design supposing it to be the patented design. That test, which originates in the Supreme Court’s 1871 Gorham Manufacturing Co. v. White decision, is an anomaly. It is a patent infringement test framed in language that would be more at home in a trademark infringement or unfair competition case. Yet the Federal Circuit has insisted that design patent infringement is unlike trademark infringement or unfair competition, dismissing any kinship as superficial. In this Article, I first show that the connection between design patent infringement and unfair competition is much deeper than previously recognized. The Gorham case record and associated historical sources help support this assertion. I then urge the Federal Circuit to explore what lessons modern trademark and unfair competition law might provide for design patent infringement law. I survey the law that has grown up around the confusion factors analysis that is used for most modern Lanham Act trademark and unfair competition claims, and I show how that law can be mined for subsidiary rules that would inform the design patent infringement analysis. I conclude that by declining to consult the jurisprudence of trademark infringement and unfair competition claims, the Federal Circuit is depriving itself of a repository of lessons—positive and negative—developed by courts over many decades, lessons that could bring some needed depth to the design patent infringement analysis
Police Don\u27t Need a Warrant to Search the Exploding Tesla Cybertruck\u27s Computer - Can They Search Your Data, Too?
Full text linkA Plea for Private International Law (Conflict of Laws)
Full text linkIn this essay, author Michael S. Green discusses private international law and its importance in a law school\u27s curriculum. After a brief summary of the history of private international law, the essay traces the disappearance of private international law courses in American law schools and proposes reasons as to why this trend may be occurring. The essay closes with reasons why it is a mistake to remove private international law from course offerings and requests that law schools reintroduce the topic
Environmental Law and Policy Review Award For Excellence in Scholarship: Best Note
No full texthttps://scholarship.law.wm.edu/studentplaques/1128/thumbnail.jp
William Hamilton Prize
No full textFor Outstanding Academic Performance in Legal History.https://scholarship.law.wm.edu/studentplaques/1122/thumbnail.jp