Education Moulds

Julie Stubbs and Julia Tolmie (University of Sydney - Faculty of Law and University of Auckland) have posted Battered Women Charged with Homicide: Advancing the Interests of Indigenous Women (Australian & New Zealand Journal of Criminology, Vol. 41, No. 1, pp. 138-161, 2008) on SSRN. Here is the abstract:

This article examines legal responses to women charged with a homicide offence arising from killing an abusive partner and reviews Australian cases over the period 1991-2007. We focus on cases involving Indigenous women due to their very substantial over-representation as victims and offenders in intimate homicides in Australia. We find that the Australian case law to date has not developed principles adequate to reflect battered women's interests. Our analysis of cases involving Indigenous battered women indicates that the battering they had experienced and their disadvantaged circumstances were commonly read as indicators of personal deficits and any evidence of structural disadvantage was muted. This research suggests that the limited impact of battered women's litigation in Australia is in part attributable to the psychological individualism of the criminal law identified by Norrie (2001, 2005), which is not confined to the trial stage but also shapes prosecutorial discretion and sentencing. We urge future research to shift the focus beyond Battered Women Syndrome and the trial process to examine plea bargaining and sentencing, and we suggest that advocates on behalf of battered women cannot rely on case law developments to deliver change but need to pursue multiple strategies.

Source: Lawrence Solum

Alison Powell has posted Wi-Fi as Public Utility or Public Park? Metaphors for Planning Local Communication Infrastructure on SSRN. Here is the abstract:

The spaces of cities are increasingly virtual, and planners and managers are faced with the challenge of integrating the infrastructure that supports these spaces into their existing city plans. In North America, many community and municipal Wi-Fi networks developed as a response to limited public provision of internet access, suggesting that such local networks - as provided by local governments or community organizations - should be considered public services. This paper argues that the metaphors for understanding public service communication networks should be expanded from the metaphor of the "public utility" that understands Wi-Fi as similar to water or electricity, to include the "public park" metaphor that introduces the potential for the internet to act as a public good, while acknowledging that Wi-Fi zones may depend on limited bandwidth resources. Although limited, these resources provide potential for applications that increase public benefit, such as location-specific services or community media. Additionally, the "public park" metaphor describes how Wi-Fi networks can operate as playful spaces inspiring greater innovation. Case studies of a municipal and community Wi-Fi network from Canada demonstrate how such metaphors provide ways of framing the potential outcomes of public Wi-Fi services. This paper discusses how the "public service" and "public park" metaphors for Wi-Fi networking can be applied to Fredericton's Fred-eZone project, North America's first municipally owned free Wi-Fi network, and Montreal's volunteer-designed Ile Sans Fil project.

Source: Lawrence Solum

Jessica Erickson (University of Richmond School of Law) has posted Corporate Misconduct and the Perfect Storm of Shareholder Litigation (Notre Dame Law Review, Vol. 84, No. 1, 2008) on SSRN. Here is the abstract:

When it comes to combating corporate misconduct, is more litigation necessarily better? The conventional wisdom is that we should deploy every weapon in the law's arsenal to combat corporate misconduct. This wisdom, however, reflects legal scholarship that is confined to analyzing securities class actions and derivative suits in isolation, with little inquiry into the interplay between them. By failing to take a broader view of shareholder litigation, legal scholars have missed an opportunity to provide courts with the conceptual tools necessary to meet the complex challenges of complex corporate litigation. In courtrooms and boardrooms across the country, a debate is raging over whether courts should permit shareholders to file parallel securities class actions and derivative suits arising out of the same allegations of corporate wrongdoing-a debate that has gone almost entirely unnoticed in the legal academy. The time has come for legal theory to catch up with legal practice. We must re-conceptualize the tools we use to combat corporate misconduct, recognizing that securities class actions and derivative suits can work together to achieve the diverse goals of shareholder litigation. We should then bring these new conceptual insights to bear on the current legal debate over how courts should handle parallel securities class actions and derivative suits. Now is the perfect time to calm the perfect storm of shareholder litigation.

Source: Lawrence Solum

Ron Harris (Tel Aviv University - Buchmann Faculty of Law) has posted Law, Finance and the First Corporations
(GLOBAL PERSPECTIVES ON THE RULE OF LAW, James J. Heckman, Robert L. Nelson, L. Cabatingan, eds., Abingdon: Routledge-Cavendish, 2009) on SSRN.  Here is the abstract:

The English East India Company (EIC) and the Dutch East India Company (VOC) were incorporated by State charters two years apart, in 1600 and 1602 respectively. They were involved in similar business activities. They were both organized as joint stock corporations, with huge capital and hundreds of shareholders. The formation of the companies was situated in a crucial junction in the history of business organizations and stock markets. Yet, while the formation of the VOC led to the appearance of a secondary market in shares in the Dutch Republic, in England a share market emerged only a century after the organization of the EIC.

The present article shall focus on a main organizational challenge faced by the two companies, the facilitation of long-term impersonal cooperation between active entrepreneurs and passive investors. It will study the manners by which legal and political environmental factors were translated into the detailed financial and governance structure of each of the two companies. It will explain the distinct English and Dutch paths to the creation of share markets through these environmental and organizational differences.

My approach and case study will be encountered with three influential, theoretically oriented, approaches to the relationship between law and institutions and the development of the stock market. The approaches are those of Schleifer and his collaborators that emphasize the effect of legal origins on investor protection, of North and Weingast that view the ability of the State to convey credible commitments as a key to the development of stock markets and of Rajan and Zingales that focus on market infrastructure and on the power of social and interest groups. The purpose of this encounter is twofold; first, to enrich our understanding of the reasons for the historical divergence between the two countries; and second, to analyze these leading theories in light of the empirical findings of our pivotal case study.

Highly recommended.

Source: Lawrence Solum

James Grimmelmann (New York Law School) has posted Virtual World Feudalism
(Yale Law Journal Pocket Part, Vol. 118, p. 126, 2009) on SSRN.  Here is the abstract:

Second Life is a feudal society. No, not metaphorically. Literally.

Two problems have preoccupied scholars of virtual world law: "What is the political relationship between developers and users?" And: "Should we treat in-world objects as property?" We can make progress on both questions by recognizing that virtual politics and property are inextricably linked, in the same way that feudal politics and property were. It is the tenant/user's relationship with his lord/developer that both creates the property interest and enforces it. The similarity between ownership of land in feudal England and in Second Life suggests that offline courts should protect user interests in virtual items, gradually, without treating them as full-blown modern "property."

I'm a big fan of Grimmelmann's work–fascinating & recommended!

Source: Lawrence Solum

Steven Ferrey (Suffolk University Law School) has posted Power Paradox: The Algorithm of Carbon and International Development (Stanford Law & Policy Review, Vol. 19, p. 510, 2008) on SSRN. Here is the abstract:

The world is increasingly becoming smaller — and hotter. The Kyoto Protocol Clean Development Mechanism, designed to reduce carbon emissions in developing nations and provide tradable Carbon Emission Reduction credits, has not motivated significant renewable energy investments in developing nations. Without such investments, especially in Asia which is expected to account for more than half of future growth in carbon emissions, world efforts to significantly reduce global warming have zero chance of success. The problem is not technological, but rather an institutional challenge to develop the correct laws, incentives and contract documents and tariffs to succeed in developing countries. This shortcoming calls for a model of successful renewable energy development in that three-quarters of world nations that are still developing. The author has served over the past 15 years as legal advisor to the World Bank and the United Nations on renewable energy and GHG reduction programs in developing nations in Asia and Africa. This article draws on this experience to highlight what legal and regulatory mechanisms to promote renewable energy projects in developing countries will and will not work. Highlighting projects in 5 developing nations, the article compares the legal, contractual and economic elements that will prove successful, and highlights why certain initiatives fail. Using the essential "best practices" drawn forth from this analysis, the world has limited time to either develop a successful regulatory approach, or suffer world temperature ratcheting out of control.

Source: Lawrence Solum

Roger Cotterrell (University of London - Queen Mary - Department of Law) has posted Law and Culture - Inside and Beyond the Nation State
(Retfærd: Nordisk Juridisk Tidsskrift, Vol. 31, No. 123, pp. 23-36, 2008) on SSRN.  Here is the abstract:

The question of how law should address 'culture' is pressing. But culture should not be seen as a unity. It consists of diverse components - relating to ultimate values and beliefs, traditions, emotional allegiances and instrumental social relations - and law relates to these components in different ways. Culture is a bounded unity only in the dangerous, pathological case of absolute cultural divisions - which state law should oppose. The concept of legal culture is equally problematic when it suggests bounded cultural unities. But when culture is conceptualised in terms of fluid networks of community it becomes possible to analyse not only issues of multiculturalism, but also the ways in which transnational regulation serves social networks that extend beyond the boundaries of nation states.

Source: Lawrence Solum

Thom Brooks (Newcastle University - Newcastle Law School) has posted The Problem with Polygamy on SSRN.  Here is the abstract:

Polygamy is a hotly contested practice and open to widespread misunderstandings. This practice is defined as a relationship between either one husband and multiple wives or one wife and multiple husbands. Today, 'polygamy' almost exclusively takes the form of one husband with multiple wives. In this article, my focus will centre on limited defences of polygamy offered recently by Chesire Calhoun and Martha Nussbaum. I will argue that these defences are unconvincing. The problem with polygamy is primarily that it is a structurally inegalitarian practice in both theory and fact. Polygamy should be opposed for this reason.

And from the paper:

Polyamory may have several advantages over polygamy. For example, polygamy
engenders an asymmetrical power relationship between a man and his wives: he may divorce
any or all his wives, but his wives are free only to divorce him and unable to divorce other
wives. A polyamorous relationship offers more equal opportunities for divorce than
polygamy as all have an equal voice in how the relationship develops. Furthermore, only
polyamorous relationships offer more equal opportunities for marriage as only polyamory is
inclusive of non-heterosexuals. In fact, a polyamorous relationship may consist only of non-
heterosexuals. If our concern is with symmetrical power relationships where all parties freely
consent, then polyamory may appear to be more acceptable than polygamy.29

The promise of polyamory may be found in its greater inclusiveness, permitting both
heterosexuals and non-heterosexuals opportunities to form relationships with multiple
partners. However, the primary problem with polyamory is not unlike what we have seen
with polygamy. Virtually all polygamous marriages are polygynous in fact. There is no
evidence that polyamorous relationships are less likely to lead to polygyny similarly.30 Thus,
polyamory remains problematic for much the same reasons that the current practice of
polygamy is problematic. Polyamory is not a clearly preferable alternative to polygamy.

A compact and illuminating paper. Highly recommended.

Source: Lawrence Solum

Mark Sundahl (Cleveland State University - Cleveland-Marshall College of Law) has posted The Living Constitution of Ancient Athens: A Comparative Perspective on the Originalism Debate (John Marshall Law Review, Forthcoming) on SSRN. Here is the abstract:

This article provides a fresh perspective on the originalism debate by undertaking a comparative study of constitutional interpretation in the United States and ancient Athens. By observing how the ancient Athenians resolved the same interpretational problems that face the Supreme Court today, we are able to gain a better understanding of the issues that drive the originalism debate. The study focuses on Athenian practice in 350 B.C., which falls late in the history of the Athenian democracy, well after the legal system had achieved its final form. Like the United States, Athens had a strong tradition of judicial review and several of the courtroom speeches delivered in actions for unconstitutionality have been preserved to the present day. These speeches provide valuable evidence, which are analyzed in this study, about how the Athenians approached the same fundamental question that faces the members of the Supreme Court: Should the constitution be read narrowly in accordance with its original meaning or should the courts interpret the constitution in a manner that implements its underlying principles and purpose without being constrained unduly by the text? In the end, this Article shows that the Athenians had a surprisingly flexible living constitution that protected the underlying principles of the constitution and accommodated the changing needs of a society that, like the United States, evolved in breathtaking ways over the course of hundreds of years.

And from the text:

When first empanelled, Athenian jurors took the Dikastic Oath according to
which they swore to issue a verdict “in accordance with the statutes of Athens.”118
Although this oath required that jurors apply the law, they still enjoyed a great deal of
discretion in the interpretation of those laws. Edward Harris has written extensively
about this interpretational flexibility, or “open texture,” of Athenian law and has shown
how it resulted from the vague language of Athenian statutes coupled with the lack of any
official canons of statutory interpretation.119 According to Aristotle, some Athenians
believed that the vague language of their laws was a deliberate innovation of Solon which
he embraced “in order that the final decision might be in the hands of the people.”120 In
this sense, the vague language of the Athenian laws could be compared to the “majestic
generalities” of the U.S. Constitution which has been heralded as an innovation of the
Framers that allowed for the broad protection of civil liberties enumerated in the Bill of
Rights.

A very interesting piece.  One of the core ideas of the "New Originalism" is the interpretation-construction distinction–interpretation discovers the linguistic meaning of a text; construction provides supplementary doctrines of constitutional law that "translate" the semantic content of the text into rules or procedures for the decision of particular cases.  Almost all contemporary originalists agree on what we might call "the fixation thesis"–the idea that the linguistic meaning of the text was fixed at the time of origin.  But when the linguistic meaning (the "original meaning") of the text is vague, then we are in "the construction zone."  So as I understand Sundahl's argument, it actually suggests that Athenian constitutional theory was broadly consistent with contemporary "public meaning" originalism.

Source: Lawrence Solum

Deborah A. Widiss (Brooklyn Law School) has posted Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides (Notre Dame Law Review, Vol. 84, p. 511, 2009) on SSRN. Here is the abstract:

In both judicial decisions and critical commentary on statutory interpretation, the possibility of congressional override is generally considered a significant balance to the countermajoritarian reality that courts, through statutory interpretation, make policy. This Article demonstrates that the "check" on judicial power provided by overrides is not as robust as is typically assumed. One might assume that overridden precedents are functionally erased or reversed. But because Congress technically cannot overrule a prior decision, courts must determine whether the enactment of an override fully supersedes the prior judicial interpretation. Overrides thus raise unique, and previously largely ignored, questions of statutory interpretation. Using several examples from employment discrimination jurisprudence, an area of the law where Congress frequently overrides Supreme Court decisions, this Article demonstrates that the Supreme Court and lower courts often narrowly construe the significance of congressional overrides and instead rely on the prior judicial interpretation of statutes as expressed in overridden precedents. I call this phenomenon reliance on "shadow precedents."

The Article shows how reliance on shadow precedents threatens legislative supremacy and undermines the standard rationales offered for adherence to precedent. It argues that, in drafting overrides, Congress should strive to clarify the extent to which it disagrees with the prior judicial interpretation. It also argues that courts should adopt interpretive conventions that are more respectful of the significance of the enactment of an override: (1) a rebuttable presumption that an override supersedes the judicial interpretation of the pre-existing statutory language, thus requiring "fresh" interpretation of the original statute as well as the override, and (2) a rule that overridden interpretations are no longer binding on lower courts.

Highly recommended.

Source: Lawrence Solum