Monday, October 5, 2009

Keitner on Rights Beyond Borders

Chimene Keitner has posted a draft to SSRN titled, "Rights Beyond Borders." Here is the abstract:

Burgeoning scholarly interest in comparative constitutional law, transnational criminal law, and national security law has generated surprisingly little synthesis among these fields. The central question of whether, and when, a country’s domestic rights regime constrains government action beyond national borders has largely escaped comparative analysis. This Article addresses this gap by developing a conceptual framework for thinking about the extraterritorial application of domestic rights guarantees, with a focus on cases arising from the detention and interrogation of terrorism suspects. Part I identifies three modes of reasoning about rights beyond borders, which I label constitution as compact, constitution as conscience, and constitution as code. Compact-based reasoning focuses on the entitlement of a given individual to assert rights against the government based on his or her personal status and/or territorial presence. Conscience-based reasoning focuses the government’s mandate to act solely in accordance with a defined set of national values in all locations and circumstances. Code-based reasoning takes a strictly territorial approach to restrictions on government action outside the national territory, even vis-à-vis citizens. Part II examines the evolving jurisprudence of extraterritorial rights in three jurisdictions in light of these models: the United States under the U.S. Constitution, Canada under the Canadian Charter of Rights and Freedoms, and the United Kingdom under the U.K. Human Rights Act. These three characterizations of ways of thinking about the extraterritorial application of domestic rights regimes (compact, conscience, and code) can provide a convenient vocabulary for describing how domestic courts reason about specific challenges to government action beyond national borders. They can also help us think more systematically about how courts and other actors should reason about rights beyond borders, as governments bring their coercive power to bear on individuals in a variety of extraterritorial circumstances.

Here's the cite:

Edit: Final publication at 36 Yale Journal of International Law 55.

Friday, August 14, 2009

Lee on Frankfurter's "Federal Jurisdiction"

Evan Lee has published a review of Felix Frankfurter and Wilber G. Katz, Cases and Other Authorities on Federal Jurisdiction and Procedure (1931). The review is titled, "Federal Jurisdiction According to Professor Frankfurter," 53 St. Louis U. L. J. 779 (2009), and is part of a symposium on "Teaching Federal Courts." This essay is part of a larger project on the history of the doctrines that make up the "Federal Courts" or "Federal Jurisdiction" course.

Tuesday, July 28, 2009

Aviram Talks to Esquire (!) About Prisons

Hadar Aviram is interviewed in Esquire about the California correctional crisis here:

Leib on Direct Democracy and the Budget

Ethan Leib and Chris Elmendorf (UC Davis) have published an op-ed in the New York Times suggesting a long-term solution to budget standoffs in California:

Monday, July 27, 2009

Marcus on the e-Lawyer

Rick Marcus has published an article titled, "The Electronic Lawyer," 58 DePaul L. Rev. 263 (2009)(available on HeinOnline), as part of a symposium called "The Challenge of 2020: Preparing a Civil Justice Reform Agenda for the Coming Decade." Rick acknowledges the many impacts that electronic communications have had, and will have, on the practice of law. He further acknowledges that electronic technologies may well portend a revolution in the medical profession. But he doubts that any analogous revolution is about to happen in the legal profession. He also cautions those who wax nostalgic about the golden age of lawyer-statesmen and who would attribute the worst features of modern law practice to techological advances. Electronic technologies "are only to a limited extent the cause of those aspects of practice that tempt some lawyers to despair," and the "current age, for all its difficulties, may have significant advantages over the [past]."

Friday, July 10, 2009

Leib Guest Blogging on Freakonomics

Ethan Leib and the co-authors of his latest book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, are guest blogging on Freakonomics. The link is here:

Friday, June 5, 2009

Aviram on the Financial Sense Behind Prison Reform

Hadar Aviram has published an op-ed in the San Francisco Bay Guardian (June 2) in which she argues that the financial crisis provides California with an opportunity to engage in a fresh and frank cost-benefit analysis of its penal system. Here's the link:

Wednesday, June 3, 2009

Little on Ruling Out Evidence Causing Wrongful Convictions

Rory Little has published an essay titled "Addressing the Evidentiary Sources of Wrongful Convictions: Categorical Exclusion of Evidence in Capital Statutes," 37 Southwestern Univ. L. Rev. 965 (2008), in which he proposes a model statute that would ban any capital prosecution based primarily on the types of evidence known to cause the conviction of innocent persons. The four types are (1) eyewitness (stranger) identification testimony; (2) confession; (3) criminal informant; and (4) unvalidated forensic evidence.

Wednesday, May 27, 2009

Aaronson on Empathy and Judging

Mark Aaronson has published an op-ed in the May 26 edition of the San Francisco Daily Journal defending empathy as a necessary ingredient of responsible judging. The issue has arisen in connection with criticisms of Supreme Court nominee Sonia Sotomayor.

Thursday, May 14, 2009

Hazard on the Cultural Chasm Between Lawyers and Corporate Clients

Geoff Hazard has published an essay titled, "Legal and Managerial 'Cultures' in Corporate Representation," 46 Houston L. Rev. 1 (2009). The essay identifies six dimensions in which the culture of corporate clients and the culture of lawyers differ. (Geoff defines the "culture" of an organization as "the style and character in which its members typically behave in terms of effort, focus, efficiency, awareness, dedication, and ethical tone.) The six dimensions are (1) benefit versus burden; (2) certainty versus ambiguity; (3) subjectivity versus objectivity; (4) multiple versus single; (5) time horizons; and (6) task techniques. In writing this essay, Geoff conspicuously draws on Ascanio Piomelli's analysis of differences between low-pay clients and lawyers in "Cross-Cultural Lawyering by the Book: The Latest Clinical Texts and a Sketch of a Future Agenda," 4 Hastings Race & Pov. L. J. 131 (2006)(available from HeinOnline).

Paul on the Myths of Globalization

Joel Paul has published an essay in the Waseda University Journal of Comparative Law titled, "The Myth of Economic Interdependence." Joel denies the conventional wisdom that economic interdependence is increasing and unavoidable and further argues that, so long as we hold to this conventional belief, we are obscuring the difficult policy choices that need to be made. (This essay resulted from a lecture Joel delivered at the Waseda Law School on July 15 of last year.)

Friday, April 10, 2009

Aviram on Decisions to Imprison

Hadar Aviram has published a review of Rasmus Wandall's book, Decisions to Imprison: Court Decision-Making Inside and Outside the Law (Ashgate, 2007), which focuses on the question of when to imprison those convicted of crimes. Although Hadar would have liked some discussion of the impact of race and ethnicity, she found Wandall's book overall a "fascinating and important enterprise, which takes seriously what judges and other actors say, and not just what they do." The review is at 43(1) Law & Soc'y Rev. 239 (2009).

Friday, April 3, 2009

Leib on Criminal Justice and the Family

Ethan Leib, together with Dan Markel (Florida State) and Jennifer Collins (Wake Forest), has published a book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties (Oxford University Press, 2009). Here is the abstract:

This book answers two basic but under-appreciated questions: first, how does the American criminal justice system address a defendant's family status? And, second, how should a defendant's family status be recognized, if at all, in a criminal justice system situated within a liberal democracy committed to egalitarian principles of non-discrimination? After surveying the variety of "family ties benefits" and "family ties burdens" in our criminal justice system, the authors explain why policymakers and courts should view with caution and indeed skepticism any attempt to distribute these benefits or burdens based on one's family status. This is a controversial stance, but Markel, Collins, and Leib argue that in many circumstances there are simply too many costs to the criminal justice system when it gives special treatment based on one's family ties or responsibilities. Privilege or Punish breaks new ground by offering an important synthetic view of the intersection between crime, punishment, and the family. Although in recent years scholars have been successful in analyzing the indirect effects of certain criminal justice policies and practices on the family, few have recognized the panoply of laws (whether statutory or common law-based) expressly drawn to privilege or disadvantage persons based on family status alone. It is critically necessary to pause and think through how and why our laws intentionally target one's family status and how the underlying goals of such a choice might better be served in some cases. This book begins that vitally important conversation with an array of innovative policy recommendations that should be of interest to anyone interested in the improvement of our criminal justice system.

Here is the OUP link:

Mart on Internet Access to Government Information

Susan Nevelow Mart has published an article titled, "The Internet's Public Domain: Access to Government Information on the Internet," 12 No, 9 J. Internet L. 3 (2009). Here is the abstract:

This article surveys the types and amounts of information that have been removed from the Internet since September 11th. Information has been removed in the name of national security as well as for reasons of seeming political expediency. After discussing the bases of some of the rationales for removing the information, and the legal underpinnings of continued access, the article suggests several forms of advocacy that could be used to return the information to the public's domain.

Mart on Patriot Act Reauthorization

Susan Nevelow Mart has published an article called "The Chains of the Constitution and Legal Process in the Library: A Post-USA PATRIOT Reauthorization Act Assessment," 33 Okla. City U. L. Rev. 435 (2008). Here is the abstract:

Since the Patriot Act was passed in 2001, controversy has raged over nearly every provision. The controversy has been particularly intense over provisions that affect the patrons of libraries. This article follows those Patriot Act provisions that affect libraries, and reviews how they have been interpreted, how the Patriot Reauthorization Acts have changed them, and what government audits and court affidavits reveal about the use and misuse of the Patriot Act. The efforts of librarians and others opposed to the Patriot Act have had an effect, both legislatively and judicially, in changing and challenging the Patriot Act. Because libraries are such a potent symbol of democratic openness, the effect of the Patriot Act on libraries has acted in the public mind as a microcosm of the broader problems with the implementation of the Patriot Act. The public's discomfort with the civil liberties implications of the Patriot Act has turned out to be justified, as every agency that has reviewed the implementation of the Patriot Act has concluded that the government has not been able to maintain an appropriate balance between the need to protect civil liberties and the need to prevent terrorist acts. The government's list of domestic terrorist acts that have been prevented or punished is not inspiring: the entire panoply of tools authorized by the Patriot Act has not done much more than stop some home-grown right wing fringe groups and ecoterrorists. In light of the evidence of abuse of civil liberties and the questionable constitutionality of many of the Patriot Act's provisions, this paper suggests that the time for vigorous advocacy has not passed and that further legislative changes need to be made.

Friday, March 20, 2009

Piomelli on Democratic Lawyering

Ascanio Piomelli has just published an essay called The Challenge of Democratic Lawyering, 77 Fordham L. Rev. 1383 (2009), as part of a symposium on The Lawyer's Role in a Contemporary Democracy.

Here is the abstract:

The essay argues that a diverse movement of social-change lawyering that has emerged over the past two decades is united by a commitment to fostering robust democratic participation in collective action by low-income and working-class people and people of color. The essay describes the democratic vision that unites these lawyers, with its focus on enhancing ordinary citizens' abilities to act in concert with others in self-government broadly construed. This vision challenges the long-prevailing, thinner conception, which limits democracy to a political process that provides a say in selecting one's representatives and an incentive structure to encourage representatives to act wisely. This essay argues that these democratic lawyers and their partners challenge deep-seated individualistic, aristocratic, and formalistic cultural predispositions in the United States and its legal profession.These prevailing, but contested, predispositions relate to: what democracy means and how we practice it; how we understand individuals and groups, intelligence and expertise; and the relative importance we place on formal rights or on the power of people and groups to change their living conditions.

Here is the link:

Thursday, March 19, 2009

Feldman on Patent and Antitrust

Robin Feldman's article, Patent and Antitrust: Different Shades of Meaning, originally published at 13 Virginia J. L. & Tech. 5 (2008), has been selected for inclusion in the Intellectual Property Law Review (Thompson Reuters) as one of the best intellectual property law review articles of the last year!

Tuesday, March 17, 2009

Leib on Contracts and Friendships

Ethan Leib has posted to SSRN an article called "Contracts and Friendships," which will appear in Volume 59 of the Emory Law Journal. Here is the abstract:

This article aims to give the relational theory of contract some new life, sharpening some of its claims against its competitors by refracting its theory of relational contracts through an analogy to friendship. In drawing the analogy between friendships and relational contracts and revealing their morphological similarities, I offer a provocative window into friendship's contractual structure - and into relational contracts' approximation of friendships. The analogy I develop in the article is poised to replace the "relational contract as marriage" model, prevalent among relationalists. The new model developed here is more honest to relational contract theory and to marriage - and helps relational contract theory produce some new insights, support old ones, and revise some of its normative agenda.

Here is the link:

Thursday, March 5, 2009

Boswell on True Immigration Reform

Richard Boswell has published an article titled, Crafting True Immigration Reform, 35 William Mitchell L. Rev. 7 (2008). While stopping short of advocating open borders, Richard proposes a three-pronged modification of the existing family- and employment-based immigration systems:

First, there must be a mechanism to bring as many of those who are living in the underground shadows into some type of legal status where they are less vulnerable to being victimized and more likely to cooperate with law enforcement. Second, we must reduce the incentives to join the ranks of the undocumented by addressing the forces that make people move in the first place. Third, we must create a system for legal migration that preserves family unification for immigrants and fills occupations for which workers are not in sufficient supply.

King on Duty to the Unborn

Jaime King has published an article titled, Duty to the Unborn: A Response to Professor Smolensky, 60 Hastings L. J. 377 (2008). Here is the abstract:

This article responds to Professor Kirsten Smolensky's article in Hastings Law Journal titled Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions by arguing in favor of creating a duty for individuals to act as reasonably prudent parents with respect to their preimplantation reproductive decisions. In addition, the article advocates use of a balancing test to determine the reasonableness of parents' choices when compared to the risks associated with using genetic testing and assisted reproductive technologies. The article concludes with an argument for national regulation as the primary social response to challenges associated with assisted reproductive technology rather than tort liability.

Here is the link to the download:

Wednesday, March 4, 2009

California Corrections Crisis Conference

A reminder to all that the California Corrections Crisis Conference is coming up March 19-20, and the timing couldn't be more perfect, with the prison health care litigation quite possibly headed for the U.S. Supreme Court. Admission is free, but you must RSVP to the website at The conference will be held in the State Building at 350 McAllister.

Sunday, March 1, 2009

Weithorn on Voiding Marriages Under Prop. 8

Lois Weithorn has posted an article to SSRN titled, "Can A Subsequent Change in Law Void a Marriage That Was Valid at its Inception? Considering the Legal Effect of Proposition 8 on California's Existing Same-Sex Marriages," which will be published in the forthcoming Volume 60 of the Hastings Law Journal. Here is the abstract:

On May 15, 2008, the California Supreme Court held that California's prohibition of same-sex marriage violated the equal protection and due process clauses of the California constitution. The court's holdings removed state restrictions as to the gender of a person's chosen marital partner. Opponents of same-sex marriage placed a voter initiative, ultimately identified as Proposition 8, on the November 4, 2008 ballot. Their goal was to insert into the state constitution the language of the recently-stricken California Family Code section 308.5 ("Only marriage between a man and a woman is valid or recognized in California"). They hoped that by placing this language in the state constitution, they could shelter the provision from future judicial determinations of unconstitutionality. Beginning June 16, 2008, consistent with the California Supreme Court's May 15 order, county clerks throughout California issued marriage licenses to, and solemnized and certified marriages of, same-sex couples. Proposition 8 passed with 52.3% of the vote. In response to its passage, California officials ceased authorizing same-sex marriages. Lawsuits challenging the validity of Proposition 8 were filed almost immediately after the election. Shortly thereafter, the California Supreme Court agreed to review the challenges to Proposition 8. The court indicated that it would consider the three questions. The first two questions focus on the constitutionality of Proposition 8. The third question addresses the status of the approximately 18,000 same-sex marriages that were validated by the state of California between June 16 and November 4, 2008. The third question reads: "If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before adoption of Proposition 8?" If the California Supreme Court determines that Proposition 8 is unconstitutional, it will not need to reach the third question. If Proposition 8 is sustained, however, the importance of the court's decision in response this question cannot be overstated. This Article examines the current litigation with respect to the legal effect of Proposition 8 on California's existing same-sex marriages, if the Proposition is held to be valid. This Article reviews the legal backdrop against which the battle over the rights of same-sex couples to marry has taken place in California and around the nation. It applies the strong and well-established presumption against retroactive application of changes in statutory and constitutional law to determine what legal effect, if any, Proposition 8 can have on California's existing same-sex marriages. It concludes that the nonretroactivity presumption is not rebutted in the instant case. In addition, it emphatically rejects the assertion of Proposition 8's proponents that a withdrawal of California's legal recognition from its existing same-sex marriages (commencing the day after Proposition 8's passage) constitutes a prospective application of the measure. In particular, the institution of marriage has been extolled throughout the generations as fostering committed, long term family relationships that derive their power and meaning from their enduring nature, subject to termination only at the initiation of the parties themselves. The investment in and reliance upon the inviolability of marriages make possible - according to the California Supreme Court - "the central role that marriage plays as a stabilizing force in American society." The proponents of Proposition 8 allege that they seek to protect and preserve marriage. Yet, if they succeed in persuading the state to cast aside an entire class of marriages that were valid prior to Proposition 8's passage, these proponents will have undermined and weakened the very institution they purport to protect. Such state action would contradict the message California seeks to convey in encouraging the "commitment toward permanence" within marriage when distinguishing marriage from other more temporary relational interests. It would erode Californians' trust that the state - the theoretical third partner in every marriage - can be relied upon to uphold its commitment to and investment in all of those marital relationships that it has created. Indeed, the disruptive consequences of such action would extend beyond the same-sex couples affected most directly, but would also reverberate in their families, their communities and in society at large. Even where a presumption against retroactive application is not rebutted in a particular case, a measure cannot be applied retroactively if doing so would violate the constitutional rights of the affected individuals. I set forth two independent grounds rendering the proposed retrospective application of Proposition 8 unconstitutional: impairment of vested property rights of the marital partners without due process; and impermissible state intrusion into the rights to liberty and marital privacy of already-married couples. Retroactive application of Proposition 8 clearly violates the California Constitution on both of these grounds. In particular, once a couple enters into a valid marriage in the United States, that marriage occupies a privileged position among the multitude of human relationships. Under both the federal and California constitutions, the intact marital relationship receives the highest level of protection from state interference. When a marital relationship is validly formed - as were California's existing same-sex marriages - the fundamental right of privacy attaches, insulating the relationship from state interference in all but the narrowest and most limited circumstances. State-initiated and state-coerced voiding or termination of a legally-valid marriage is, without question, the most drastic form of state intrusion in a marriage imaginable and, in this case, certainly does not survive the strict scrutiny review to which such state action must be subjected. The Article concludes that the remedies urged by Proposition 8's supporters in order to avoid constitutional problems are wholly inadequate to cure the constitutional defects of such application. This Article concludes that Proposition 8 cannot have any legal effect on California's existing same-sex marriages.

Here is the link:

Thursday, February 26, 2009

Leib on Friends as Fiduciaries

Ethan Leib has published an article called Friends as Fiduciaries, 86 Wash. U. L. Rev. 665 (2009). Here is the abstract:

This Article argues that the law of fiduciary duties provides a good framework for friends to understand their duties to one another better, gives courts a useful set of rhetorical and analytical tools to employ when they are forced to entertain disputes that arise between close friends, and, finally, can help direct courts to furnish betrayed friends certain kinds of
remedies that are most appropriate for achieving justice within that dispute context. This is not the first Article to make an effort to expand the reach of the fiduciary concept into new sorts of relationships that are not always considered within the ambit of fiduciary duty law. But the case for thinking of friends as fiduciaries is exceedingly persuasive and underappreciated, both in the law and in our lives.

Here is the link to the pdf:

Martinez on the Mess That Is Tax Policy

Leo Martinez has published an article called Tax Policy, Rational Actors, and Other Myths, 40 Loyola U. Chi. L. J. 297 (2009), in which he bemoans the current state of tax policy in America. Indeed, he argues, "tax policy is a largely mythical concept, more akin to the Holy Grail than to anything else." "[S]elf-interest, irrationality, and ineptitude explain the vicissitudes of tax policy in the modern world," he writes. Neither legislatures, the executive branch, nor the courts have dealt competently with tax policy. Leo argues that everyone, not just the branches of government, and not just the experts, should take responsibility for shaping tax policy.

Diamond on Negligent Infliction of Mental Distress

John Diamond has published an article critiquing the portions of Tentative Draft No. 5 of the Restatement (Third) of Torts dealing with negligent infliction of mental distress. The article is Rethinking Compensation for Mental Distress: A Critique of the Restatement (Third) Sections 45-47, 16 Va. J. Soc. Pol. & Law 141 (2008)(available on HeinOnline). "Outside of the classic physical accident scenario such as an automobile collision, the Restatement (Third) squelches most actions for negligently inflicted mental distress," he writes. This approach, unlike previous Restatements, may serve as an acknowledgement that tort law can better be substituted by other systems, such as market accountability, regulatory supervisions, and first party compensation. John argues that the law of torts has something valuable to contribute above and beyond these other systems in the context of mental distress. John argues that, as a general principle, "mental distress should at a minimum be compensated when the business activity being held accountable would otherwise escape significant tort liability."

Bhagwat on Cooper v. Aaron

Ash Bhagwat has published a symposium piece called, Cooper v. Aaron and the Faces of Federalism, 52 St. Louis U. L. J. 1087 (2008). Ash argues that American society has learned the wrong lesson from Cooper -- i.e., that it is always wrong and unconstitutional to resist the implementation of federal law or the Constitution. He brings up several examples of situations where many would not consider active resistance illegitimate, as with sanctuary cities, medical marijuana, and the fugitive slave laws. Ultimately, he argues, what made the resistance in Cooper wrong was "the fact that they were threatening children with violence, and all in the name of defending an evil system of racial segregation."

Bhagwat on Affirmative Action and Benign Discrimination

Ash Bhagwat has published a chapter titled, "Affirmative Action and Benign Discrimination," in Global Perspectives on Constitutional Law (V. Amar & M. Tushnet, eds., Oxford University Press 2009). Ash compares American practice most closely to South Africa's, but also to India's, Malaysia's, and Europe's.

Thursday, February 5, 2009

Obasogie on the Racial Risks of Genetic Research

Osagie Obasogie has published a paper under the aegis of the Center for Genetics and Society called, Playing the Gene Card?: A Report on Race and Human Biotechnology. He highlights certain emerging technologies, such as race-based medicines, genetic ancestry tests, and DNA forensics, and offers a cautionary message:

While each of these applications has been examined individually, this report looks to them together to highlight a fundamental concern: that commercial incentives and other pressures may distort or oversimplify the complex and discordant relationship between race, population, and genes. Applications based on such distortions or oversimplifications may give undue legitimacy to the idea that social categories of race reflect discrete biological differences.

The concerns raised in this report should not be read as impugning all genetic research that implicates social categories of race. There is evidence that socially constructed notions of race may loosely reflect patterns of genetic variation created by evolutionary forces, and that knowledge about them may ultimately serve important social or medical goals. Yet, given our unfortunate history of linking biological understandings of racial difference to notions of racial superiority and inferiority, it would be unwise to ignore the possibility that 21st Century technologies may be used to revive long discredited 19th Century theories of race.

Advances in human biotechnology hold great promise. But if they are to benefit all of us, closer attention should be paid to the social risks they entail and their particular impacts on minority communities.

Monday, February 2, 2009

Rao on Abortion Rights

Radhika Rao has published a chapter in Global Perspectives on Constitutional Law (Oxford Univ. Press 2009) titled, "Abortion Rights." Among other things, the chapter compares U.S. abortion law to abortion law in Germany.

Rao on Genes and Spleens

Radhika Rao has published an article in Vol. 35:371 of The Journal of Law, Medicine & Ethics (Fall 2007)(available on HeinOnline) titled, "Genes and Spleens: Property, Contract, or Privacy Rights in the Human Body?," in which she argues generally for a property approach to rights in the human body over a contract or privacy approach. The article elaborates on themes she explored in her earlier article, Property, Privacy, and the Human Body, 80 B.U. L. Rev. 359 (2000)(available on HeinOnline).

Rao on Regulating Assisted Reproductive Technology

Radhika Rao has published an article called Equal Liberty: Assisted Reproductive Technology and Reproductive Equality, 76 Geo. Wash. L. Rev. 1457 (2008) (symposium issue). Radhika argues that the courts should not recognize a right to assisted reproductive technology (ART) on the basis of autonomy, but rather on the basis of equality. Thus, for example, "a law that permits ARTs to be used by married persons but not single persons, or by heterosexuals but not homosexuals, should be deemed unconstitutional. However, a law that simply distinguishes between different categories of ARTs probably should be judged constitutional." Radhika opposes recognizing an autonomy-based right to use of ARTs because "the principle of reproductive liberty has no logical stopping point; it confers constitutional production upon almost every technology that is necessary to procreation."

Barrett on the History of the Lanham Act

Margreth Barrett has published an article called, Finding Trademark Use: The Historical Foundation for Limiting Infringement Liability to Uses "In the Manner of a Mark," 43 Wake Forest L. Rev. 893 (2008). Here is the abstract:

U.S. courts and scholars are debating the existence and scope of a "trademark use" prerequisite for infringement liability, but the discussion has lacked a proper grounding in the common law and the legislative history of the Lanham Act. This Article undertakes to fill that gap. The Article first evaluates the common law of technical trademark infringement and unfair competiton as it existed and developed from the late 1800s to 1946, when the Lanham Act was enacted, and demonstrates that the law imposed a form of "trademark use" limitation on both the technical trademark infringement and the unfair competition (trade name infringement) causes of action.

Having identified the trademark use limitation in the common law, the Article then considers whether the Lanham Act codified it. Through use of the Lanham Act's legislative history, the Article demonstrates three different ways in which the Lanham Act can be understood to have incorporated the common law trademark use limitation: (1) through the "use in commerce" language in the infringement provisions, coupled witht he Lanham Act Section 45 definition of "use in commerce"; (2) through the phrase "on or in connection with" in the registered and unregistered mark infirngement provisions; and (3) through implicit incorporation of the common law, even without any express statutory language to that effect.

Finally, the Article discusses how the trademark use requirement should be understood and defined in modern contexts. The Article reviews the policy justifications for imposing the trademark use limitation and discusses the flexibility that courts enjoy in construing and applying statutes that undertake to codify common law doctrine. It then describes three basic characteristics of a modern trademark use limitation, based on public policy considerations and the doctrine's historic formulation. To make a potentially infringing "trademark use," the infringement defendant must apply the allegedly infringing word or symbol in a manner: (1) that consumers can perceive with their senses; (2) that closely, directly associates the word or symbol with products or services that the defendant is advertising, selling, or distributing to consumers; and (3) that is likely to make a separate commercial impression on consumers.

Friday, January 16, 2009

Marcus on the Puzzling Persistence of the Federal Rulemaking Process

Rick Marcus has published a symposium essay on why the federal rulemaking process -- long thought to be dying -- has not yet expired. Much of the pessimism "has resulted from academic dislike of certain constraints introduced in the last quarter century on the central Liberal Ethos of the 1930s revolution," he writes. Also, "federal rulemaking activity has important structural advantages that will not go away." Moreover, the recent episode of rulemaking activity related to E-Discovery shows that the process can still be innovative.

The essay is called "Not Dead Yet" and appears at 61 Okla. L. Rev. 299 (2008).

Monday, January 12, 2009

Bisharat on Israel's Retaliation

George Bisharat has published an op-ed headlined, "Israel Is Committing War Crimes," in the Wall Street Journal, available here: <>

Friday, January 9, 2009

Bisharat on the Crisis in Gaza

George Bisharat has been debating James Phillips in the online Los Angeles Times on the crisis in Gaza. The debate can be viewed here:,0,5714479.storygallery

Keitner Guest Blogging on

Chimene Keitner is guest blogging this month on Here is Dan Solove's introduction of Chimene:

Chimene's first post is about negotiation strategy, as taught to her by her three-year-old!

Monday, January 5, 2009

Leib on Punishing Family Status

Ethan Leib has published an article along with Jennifer Collins (Wake Forest) and Dan Markel (Florida State) called Punishing Family Status, 88 B. U. L. Rev. 1327 (2008), which appears here:

This article forms the basis of a mini-symposium, with responses by Mike O'Hear (Marquette) and Rick Hills (NYU), which appear here:

Ethan and his co-authors reply to these comments here:

These pieces are part of a book by Ethan and his co-authors, to be published by Oxford University Press in April 2009, called "Privilege or Punish: Criminal Justice and the Challenge of Family Ties," which can be preordered from Amazon here: