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.