Education Moulds

Check out The On-Going Debate Over Transnational Governmental Regulatory Networks, Global Governance, and Legitimacy, a post by Kenneth Anderson, at Opinio Juris.  Here is a taste:

[A]ccountability and democratic legitimacy have become somewhat confused in the literature on networks, governmental and NGO advocacy networks. They are, after all, separate things and separate political/moral values. You can have democratic legitimacy and yet have very poor accountability mechanisms. And you can have excellent accountability mechanisms, yet not through democratic mechanisms, but instead through legally enforceable governance standards, courts of law, efficient bureaucratic oversight, etc. So saying that intergovernmental regulatory networks of the kind praised in A New World Order often lack transparency or accountability is important, but it is not always, and not always most importantly, because of a lack of democratic legitimacy. The question of democratic legitimacy is there independently. So is the question of accountability. (I discuss this in an upcoming review essay in the American Journal of International Law, reviewing a book, NGO Accountability – I think it will be the January 2009 AJIL, but AJIL is a bit backlogged. I also discuss other parts of this in an revised version of my SMU talk on, “Transnational Governmental Networks: Legitimate for What?” that will come out as part of the conference stuff in The International Lawyer.)

Source: Lawrence Solum

Edward Lee (Ohio State) has posted Decoding the DMCA Safe Harbors on SSRN. Here is the abstract:

The DMCA is a decade old, which, in Internet time, may well be closer to a century. Although the DMCA safe harbors have helped to foster tremendous growth in web applications in our Web 2.0 world, several very basic aspects of the DMCA safe harbors remain uncertain. These uncertainties, along with the relative lack of litigation over the DMCA in the past ten years, have threatened to undermine the whole purpose of the DMCA safe harbors by failing to inform the public and technology companies of what steps they need to undertake to fall within the safe harbors. In several high profile cases against MySpace, YouTube, and other Internet sites, the clarification of the DMCA safe harbors could prove to be just as important to the Internet as their enactment in 1998. This Essay has attempted to clear up two of the biggest uncertainties regarding the DMCA's relationship to vicarious liability, and the so-called "red flags" theory of knowledge on the part of the Internet service provider. Specifically, under a proper interpretation of the DMCA, courts should (i) reject the "loophole" theory that posits that the DMCA safe harbors provide no immunity from vicarious liability at all, and (ii) require a high burden for proving a "red flags" theory by requiring knowledge of facts that show specific and "obvious" or "blatant" infringement. This Essay offers five principles for courts and Congress to consider in applying or amending the DMCA safe harbors in the future. The DMCA safe harbors should be made truly "safe" harbors, in a way that encourages greater investment in and the development of speech technologies on the Internet, all while encouraging copyright holders to share the burden of reducing infringement by utilizing the DMCA notice and take-down procedure.

Recommended.

Source: Lawrence Solum

Eugene Kontorovich (Northwestern University Law School) has posted International Responses to Territorial Conquest
(American Society of International Law Proceedings, Vol. 102, 2009) on SSRN.  Here is the abstract:

The
prohibition on territorial conquest is a cornerstone of the
international legal order. The United Nations Charter bans the use of
force as a tool of international relations, even when used to rectify
prior injustices. Thus territory taken by force has the status of
ill-gotten gains, and cannot be kept by the victor. An important
corollary is that third-party states cannot recognize the sovereignty
of the conqueror or otherwise treat the acquisition as illegal.

Despite
the Charter, nations sometimes acquire or try to acquire territory
through force. This paper, part of the proceedings of the American
Society of International Law’s 102nd annual meeting, discusses the
preliminary results of an ongoing research effort to systematically
explore the international response to every consummated conquest since
the entry into force of the UN Charter. The question is, given a
conquest, what is the expected international reaction?

This
project classifies international reactions as condemnatory, accepting,
or silent/acquiescing. There are close to 20 conquests depending how
one counts (deciding what counts as a conquest is perhaps the major
methodological issues of this project).

The preliminary results
are that systematic international condemnation – a resolution the U.N.
Security Council or General Assembly – occurs in under 1/3 of the
cases. On the other hand, some conquests have won overwhelming
international acceptance; these surprisingly include both conquests of
entire nations (Tibet and South Vietnam.)

While territorial
conquest has been relatively infrequent in the post-World War II
period, most conquests have not been condemned by the international
community. Indeed, open acceptance is as common as condemnation. The
small likelihood of international opposition to conquest suggests that
the relatively low incidence of conquest should be attributed to causes
other than the non-recognition norm. This does not mean that the
anti-conquest norm has no force or "compliance pull," but it does
suggest that condemnation and nonrecognition are not likely play a
significant role in decisions about whether to conquer.

Source: Lawrence Solum

Timothy R. Holbrook (Chicago-Kent College of Law) has posted Equivalency and Patent Law's Possession Paradox on SSRN. Here is the abstract:

Under the Federal Circuit's current law, the doctrine of equivalents protects only those technologies that arise after the patent issues. This state of affairs creates a curious paradox: the patentee is afforded protection for that which she did not possess, which runs counter to the general view that patents afford protection for the inventor's creation.

This paper explores this paradox and offers two possible means of reconciling it based on principles of fairness. First, patentees should only be protected under the doctrine of equivalents for changes in technology that arise from outside their field of technology. While seemingly simple in application, this approach fails to link the scope of protection to the patent's disclosure.

The second would provide protection under the doctrine of equivalents if the patent's disclosure would enable the asserted equivalent at the time of infringement. The patent's disclosure is therefore allowed to grow over time, providing insurance against the patent's obsolescence and effectively extending its life span. This approach offers a better theoretical fit in that it ties the right to exclude to the patent's disclosure. It would provide considerable protection to the patentee, however.

In order to keep the doctrine of equivalence in check — either under the status quo or under the Article's proposal — the author suggests that those who infringe under the doctrine of equivalents should not be subject to permanent injunctions. In other words, the doctrine of equivalents would operate pursuant to a liability rule , not a property rule. This shift is particularly appropriate given the high transaction costs surrounding patent scope, and particularly equivalency. In this way, the interest of the patentee can be protected to some extent, balanced by the interest in third parties in being able to practice their later-developed technologies.

Very interesting & recommended.

Source: Lawrence Solum

Michael S. Knoll (University of Pennsylvania Law School) has posted The Corporate Income Tax and the Competitiveness of U.S. Industries on SSRN.  Here is the abstract:

Hit hard by the financial crisis and recession, U.S. auto producers are seeking a massive bailout from the U.S. Congress. Many reasons are given for the U.S. auto industry’s lack of competitiveness including the U.S. corporate income tax. Although it is regularly asserted that there is a direct connection between the corporate income tax and competitiveness, what that connection is has not been carefully spelled out. In this essay, I describe how the corporate income tax directly harms the competitiveness of U.S. industries. I show that the mechanism differs depending upon whether the U.S. industry is defined as the global production of U.S.-based corporations or as all productive activities undertaken in the United States regardless of where the corporations undertaking those activities are based. I also examine the impact on competitiveness of various possible replacements for the corporate income tax, including a value added tax (VAT), formulary apportionment, a cost of capital allowance (COCA), and preset “in lieu of tax” payments.

Source: Lawrence Solum

John T. Cross
(University of Louisville – Louis D. Brandeis School of Law)  has posted Justifying Property Rights in Native American Traditional Knowledge
(Texas Weleyan Law Review, Forthcoming) on SSRN.  Here is the abstract:

This
paper explores various reasons why Congress might elect to protect the
traditional knowledge and traditional cultural expression of Indian
tribes. It also addresses whether Congress would have the
constitutional authority to enact such legislation.

Source: Lawrence Solum

Roger Cotterrell (University of London – Queen Mary – Department of Law) has posted Ehrlich at the Edge of Empire: Centres and Peripheries in Legal Studies (Roger Cotterrell, EHRLICH AT THE EDGE OF EMPIRE: CENTRES AND PERIPHERIES IN LEGA STUDIES, pp.75-94, Oxford: Hart, 2008) on SSRN. Here is the abstract:

This paper discusses the legal theory of the Austrian jurist Eugen Ehrlich, the best-known of a number of European law professors who set out to establish sociology of law as a new science at the beginning of the twentieth century. Situating his work in the context of his personal circumstances and career, and also in relation to historical conditions in the closing years of the Austro-Hungarian Empire, the paper considers the reception of Ehrlich's scholarship in the English-speaking world, and the aims of his legal thought. His achievement as an influential pioneer in a new field, and as a thinker of great originality, is highlighted. But it is also argued here that a complex combination of intellectual and professional centrality and marginality in Ehrlich's position explains much about the uncertainties and ambiguities of his approach to law.

Source: Lawrence Solum

Richard A. Leo and Deborah Davis (University of San Francisco – School of Law and University of Nevada, Reno) have posted From False Confession to Wrongful Conviction: Seven Psychological Processes (Journal of Psychiatry and Law, 2009) on SSRN.  Here is the abstract:

A
steadily increasing tide of literature has documented the existence and
causes of false confession as well as the link between false confession
and wrongful conviction of the innocent. This literature has primarily
addressed three issues: the manner in which false confessions are
generated by police interrogation, individual differences in
susceptibility to interrogative influence, and the role false
confessions have played in documented wrongful convictions of the
innocent. Although the specific mechanisms through which interrogation
tactics can induce false confessions, and through which they can exert
enhanced influence on vulnerable individuals have been widely addressed
in this literature, the processes through which false confessions, once
obtained by police, may lead to wrongful conviction have remained
largely unaddressed. This article addresses this gap in the literature,
examining seven psychological processes linking false confession to
wrongful conviction and failures of post-conviction relief: (1)
powerful biasing effects of the confession itself, including
incorporated "misleading specialized knowledge" (inside crime-relevant
knowledge displayed by the suspect in the false confession, but
acquired through outside sources (such as the interrogator) rather than
in the course of the commission of the crime); (2) tunnel-vision and
confirmation biases, (3) motivational biases, (4) emotional influences
on thinking and behavior; (5) institutional influences on evidence
production and decision-making; and inadequate context for evaluation
of claims of innocence, including (6) inadequate or incorrect relevant
knowledge, and (7) progressively constricting relevant evidence. We
discuss reciprocal influences of these mechanisms and their biasing
impact on the perceptions and behaviors of suspects, investigators,
prosecution and defense attorneys, juries, and trial and appellate
judges.

Source: Lawrence Solum

Jill E. Family (Widener University – School of Law) has posted A Broader View of the Immigration Adjudication Problem on SSRN.  Here is the abstract:

Are too many individuals diverted from civil immigration adjudication? Each year, the government completes millions of diversions from civil immigration adjudication through explicit and implicit waivers, the expedited removal program and the increasing criminalization of immigration law.

By uncovering and analyzing this diversion phenomenon, this article exposes an important piece of the immigration adjudication problem that has been largely undiagnosed. While judges, scholars, government officials and practitioners have acknowledged serious problems within the civil immigration adjudication system, this article widens the view to incorporate the issue of whether too many are being sidetracked from the system altogether.

This article concludes that too many are being rerouted from the civil immigration adjudication system because some of the identified diversions are not true to the administrative process design criteria of efficiency, accuracy and acceptability. The government should reevaluate its efforts to steer foreign nationals away from civil immigration adjudication under the four guiding principles proposed here: (1) not all diversions are bad; (2) government coercion, misinformation or a lack of information should play no role in the diversion process; (3) no-option waivers should not be implemented and (4) open-ended, prospective waivers also should not be used

Source: Lawrence Solum

Daniel Sperling (The Hebrew University of Jerusalem) has posted Law and Bioethics: A Rights-Based Relationship and its Troubling Implications (Current Legal Issues, Vol. 11, pp. 52-78, 2008) on SSRN. Here is the abstract:

Some argue that law is the discipline which has mixed most prominently with bioethics, and that bioethicists can be seduced by the law and by legal procedures. While there is a great consensus that law has influenced bioethics in significant and important ways, certainly much more than it influenced other "law and…" disciplines, scholars dispute as to the exact role which the law plays in bioethics, the goals it purports to achieve and the implications of its relationship with the discipline of bioethics. This Article aims to explore the relationship between law and bioethics and calls for a careful evaluation of the law's contributions to bioethics. Specifically, it will be argued that while the law contributed extensively to the development of bioethics it introduced a language and a way of thinking that are not necessarily appropriate to handle and resolve bioethical issues, and which, in significant portion of cases, was irrelevant and had little impact on decision-making and behavioral patterns of patients. Moreover, law's interference with and shape of bioethical issues resulted in serious threats to some of the major characteristic of such issues and brought about to other societal concerns which the law did not consider seriously. The article will conclude that it is now time to re-evaluate the direction in which bioethics should take in the next years, specifically whether it should continue to integrate with law or other disciplines, or alternatively become a more autonomous and independent discipline.

Source: Lawrence Solum