Education Moulds

Allen Rostron and Nancy Levit (University of Missouri at Kansas City – School of Law) have posted Information for Submitting Articles to Law Reviews & Journals on SSRN. Here is the abstract:

This document contains information about submitting articles to law reviews and journals, including the methods for submitting an article, any special formatting requirements, how to contact them to request an expedited review, and how to contact them to withdraw an article from consideration. It covers about 188 law reviews.

Source: Lawrence Solum

Thomas E. Plank (University of Tennessee College of Law) has posted Sense and Sensibility in Securitization: A Prudent Legal Structure and a Fanciful Critique (Cardozo Law Review, Vol. 30, No. 2, 2008) on SSRN. Here is the abstract:

This article responds to a recent critique that the securitization of receivables is a legally shaky financial product that survives only because it is too big to fail. This critique argues that securitization's success in avoiding the costs that the Bankruptcy Code imposes on secured credit, including a bankruptcy trustee's ability to use the cash collateral from the receivables, is a type of fraud that hinders or delays the creditors of the originators of receivables. The critique, however, fails. The cases cited for the author's fraud analysis do not support its thesis. Further, the critique fails to demonstrate that securitization's avoidance of the "Bankruptcy Tax" on secured credit harms the creditors of an originator. The critique also does not refute the strong doctrinal foundation of securitization that combines the form and substance of two long recognized legal devices-(1) a true sale of property to a buyer (2) that is a separate legal entity.

Source: Lawrence Solum

Florian Möslein (Humboldt University of Berlin – Faculty of Law) has posted Legal Innovation in European Contract Law: Within and Beyond the (Draft) Common Frame of Reference
(AFTER THE COMMON FRAME OF REFERENCE – WHAT FUTURE FOR EUROPEAN PRIVATE LAW?, W. Micklitz, F. Cafaggi, eds., Forthcoming) on SSRN.  Here is the abstract:

The Europeanization of contract law has continuously developed over the past 25 years. It is now at a defining stage, with the Draft Common Frame of Reference (DCFR) recently being published. This article is not primarily concerned with the substance of this instrument, but with the process of legal innovation it might trigger. The hypothesis is that the adoption of such a rulebook will have a significant impact on the future development of European contract law. Yet the nature and likely effects of such impact are difficult to predict, given that functions, elements and purposes of the new instrument still need to be identified and defined. In any event, the DCFR will modify the pattern of future legal change in European contract law. The crucial question is: Will it provide a dynamic framework for legal innovation?

Source: Lawrence Solum

Jedediah S. Purdy (Duke University – School of Law) has posted The Politics of Nature: Restoring Democracy to Environmental Law on SSRN. Here is the abstract:

Legal scholars' discussions of climate change assume that the issue is one mainly of engineering incentives, and that "environmental values" are too weak, vague, or both to spur political action to address the emerging crisis. This paper gives reason to believe otherwise. The major natural resource and environmental statutes, the acts creating national forests and parks to the Clean Air Act and Clean Water Act, have emerged from exactly the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of national purpose, citizenship, and the role and scale of government. This paper traces several major episodes in those developments: the rise of a Romantic attachment to spectacular places, a utilitarian ideal of rational management of resources, the legal and cultural concept of "wilderness," and the innovation of "the environment" as a centerpiece of public debate at the end of the 1960s. It connects each such development to changes in background culture and values and the social movements and political actors that brought them into public debate and, eventually legislation. The result is both a set of specific studies and the outlines of an account of the ways in which the argument and self-interpretation of a democratic community have created and contested new ideas of "nature" throughout American political history. The paper then shows how past episodes cast light on the present: today's climate politics, including the seemingly anomalous (even "irrational") choices by municipalities to adopt the Kyoto carbon-emissions goals, make most sense when understood as extensions of a long tradition of political argument about nature, which does not simply take "interests" as fixed, but changes both interests and values by changing how citizens understand themselves, the country, and the natural world.

And from the text:

[A]n initial typology of the appeals Americans
make in arguing about environmental commitments [is] of three broad
types, each with a variety of particular inflections. The first is a utilitarian ideal of
rational resource management, historically connected with Progressive images of
economy and society as complex systems requiring expert governance. It has market-
friendly and market-hostile versions, versions that disregard aesthetic and spiritual values
and others (important in the parks and wilderness movements) that treat these as
important resources for public well-being. It is marked by commitment to intelligent
mastery of the natural world, understood as an aspect of humans’ rational self-
governance generally. In the second type of appeal, nature figures as a source of
inspiration and instruction for human consciousness: whether through epiphany or more
measured contemplation, it changes us by helping us to change our minds. Important
versions of this appeal include the Romantic conviction that intense, even transformative
aesthetic and spiritual experiences are uniquely available in encounters with the natural
world, and an ideal, famously articulated in Aldo Leopold’s “land ethic,” that heightened
awareness of human participation in nature’s complex and interdependent systems is not
just prudentially useful, but a source of both humility and delight. A third type of appeal
is a warning, with roots in both jeremiads and the apocalyptic possibility of nuclear
warfare, that technological civilization will prove self-undermining unless it develops a
new relation to the natural world.

Environmental appeals may also be classified by the domain of values that they
invoke, rather than the substance. Some appeals are at the level of national identity,
asserting that the country will be diminished or fall short of potential in the absence of
certain public actions, such as preserving parks or wilderness. Others are in the register
of aggregate individual interests, arguing that these will be disserved without national
action, such as creation and scientific management of national forests.20 A third type of
appeal has affinity with perfectionist approaches to normative political theory: it relies on
the qualitative importance of the interests environmental law can serve.21

And later:

In the decade-plus that ran from the publication of Silent Spring to the passage of
the Clean Water Act, and particularly the five years beginning in 1968, a new set of
claims became available in public environmental language. Ideas that would previously
have been parochial, eccentric, or even unintelligible entered into the repertoire of
arguments and authority by which Americans could appeal to one another in disputes
over the use of political power, the duties of citizenship, and the character of the national
community. These new claims nonetheless had real limits. They were not asserted,
refined, and implemented against sustained opposition, nor did they arise from a
movement commensurate to the scale of the cultural and conceptual ambition they
expressed. A crisis and shift in values routinely described as transformative, even
revolutionary, was not thematized and tested by opposition in a national election,
although representatives targeted as unfriendly to environmental issues proved vulnerable
in the early 1970s.215 The consequences of taking the new commitments seriously, as a matter of public policy or personal conduct, remain disputed at best, inspiring argument
over whether the country has adopted them in any real sense.216 This should not,
however, lead us to neglect that debate over their meaning continues today.

And from the conclusion:

Ideas about the value of the natural world are and have always been integral to the
repertoire of arguments by which Americans try to persuade one another of the character
and implications of common commitments. How we understand nature is part of our
civic identity. It has developed through interaction with changes in the other, better-
trodden themes of American public language: national purpose, civic dignity, and the role
and appropriate scale of government, to name those that have figured most prominently
in this paper. This understanding of the natural world is anything but monolithic: it is
one of the common terms that Americans interpret variously in setting out and battling
over their disagreements.261 The natural world has stood at various times, and for various
constituencies, for the idea of infinite material progress, the possibility of rational
resource management in the public interest, and the need to redefine human flourishing
beyond material mastery of nature toward a heightened aesthetic awareness and spiritual
response to it. The last idea has often served synecdoche for awareness of the
circumstances of one’s own life. The politics of nature has contributed to the civic
dignity of the free labor idea, in which the public domain was the acreage open to
settlement and exploitation; to that of progressive reformers, in which the citizen should
do her part in maintaining a social order that managed its complex and interdependent
systems for health and mutual benefit; and the Romantic whose loyalty to the political
community is paradoxically conditioned on its enabling him to leave its constraints from
time to time, escaping into solitude, reflection, and perhaps mystical ecstasy. More than
a century of development in these themes contributed to the rise of modern
environmentalism, sometimes inaptly described as an event without a history. These
themes contributed mightily to the specific shape that environmentalism gave to the
anxieties of its time, the 1960s and early 1970s, and that environmentalism in turn gave
the idea of nature’s intrinsic value and moral instructiveness a new reach in American
language. Understanding that era as one in which legislators joined movements and
commentators in adopting this new account of the natural world casts some light on the
peculiarities and limits of their landmark legislation. In turn, understanding today’s
politics as a continuation of the politics of nature casts light on the signal anomaly of
climate politics, the proliferation of local initiatives to control greenhouse-gas emissions.

Very interesting & recommended.

Source: Lawrence Solum

Joshua A. Douglas (United States Court of Appeals) has posted The Significance of the Shift toward As-Applied Challenges in Election Law on SSRN. Here is the abstract:

Last Term, the Supreme Court decided two election law cases that had significant implications for the ability of political actors to bring challenges to a state's election regime. In Washington State Grange v. Washington State Republican Party and Crawford v. Marion County Election Board (the voter ID case), the Court rejected facial challenges to the laws and boldly stated that political actors may only challenge election laws as applied. In essence, this means that voters and others no longer can achieve pre-election, prospective relief, instead having to endure at least one election cycle under a law that might be invalid as applied to them.

This article examines the immediate, practical effect of these decisions. I catalogue every case that has cited these Supreme Court decisions thus far and compare election law challenges in 2004 and 2008 to demonstrate that lower federal courts are now slightly more likely to uphold states' election regulations. As compared to the 1960s, when the Court enacted widespread electoral change by sustaining facial challenges, the balance of power in an election law case has now shifted to favoring the government's election practice through this seemingly procedural rule of allowing only as-applied litigation. After examining this jurisprudential shift, I then discuss how these results show the unique importance judges have in defining the scope of the right to vote, and, as a corollary, the meaning of political participation and self-governance. Finally, I argue that the Court should abolish the facial/as-applied distinction for election law cases and adopt the overbreadth doctrine in its place.

Source: Lawrence Solum

David A. Hoffman & Salil Mehra (Temple University – James E. Beasley School of Law) have posted Wikitruth Through Wikiorder on SSRN. Here is the abstract:

How can large-scale social production (LSSP) coordinate individual behavior to produce public goods online? Hardin (1968) suggests that public goods creation in the absence of government or market-enabling institutions will not be possible. Benkler (2006), Shirky (2008), Zittrain (2008), and Lessig (2008) argue that the needed coordination can emerge, through, for example, norm creation. However, the means to this coordination is under-theorized.

We attempt to explain how participants in LSSP can coordinate their behavior. Focusing on Wikipedia, we argue that the site's dispute resolution process is an important force in promoting the public good it produces, i.e., freely-accessible encyclopedia articles. We describe the development and shape of Wikipedia's existing dispute resolution system. Further, we present a statistical analysis based on coding of over 250 arbitration opinions from Wikipedia's arbitration system. The data shows that Wiki-dispute resolution ignores the content of user disputes, instead focusing on user conduct. Based on fairly formalized arbitration findings, we find a high correlation between the conduct found and the remedies ordered. In effect, the system functions not so much to resolve disputes and make peace between conflicting users, but to weed out problematic users while weeding potentially productive users back in to participate.

This interpretation suggests a reconception of LSSP is in order. Specifically, though theories have been built on the conception of LSSP as a solution to the herder problem/multi-player prisoner's dilemma, in fact, we demonstrate that the weeding in function reflects dynamics more accurately captured in coordination games instead. In this way, dispute resolution can provide a constitutive function for the community.

Very interesting & recommended.  Download it while its hot!

Source: Lawrence Solum

John M. Golden (University of Texas School of Law) has posted The Supreme Court as ‘Prime Percolator’: A Prescription for Appellate Review of Questions in Patent Law (UCLA Law Review, Vol. 56, No. 3, 2009) on SSRN. Here is the abstract:

Generally speaking, the Supreme Court of the United States is a tribunal with the final say on what the law is. But the desirability of the Supreme Court’s acting as final law sayer is questionable in patent law, where the Court primarily reviews the work of the Federal Circuit, a comparatively expert body having virtually exclusive jurisdiction over initial appeals. Nonetheless, in recent years, the Supreme Court has spoken repeatedly and forcefully on questions of substantive patent law. I argue that such Supreme Court activity is best justified and conceived not as directed toward final law saying, but instead as involving limited interventions to stimulate new or renewed judicial examination of important legal questions. Centralized appellate review in the Federal Circuit makes patent law unusually susceptible to doctrinal ossification. By engaging in periodic merits review of patent law doctrines that the Federal Circuit may have locked into place either too quickly or for too long, the Supreme Court can help initiate escapes from suboptimal legal equilibria. But the Court’s competence is limited. Consequently, when intervening in substantive patent law, the Court should generally leave primary responsibility for developing precise legal formulas to the Patent and Trademark Office, district courts, and the Federal Circuit.

Source: Lawrence Solum

Christina Bohannan (University of Iowa – College of Law) has posted Copyright Harm and the First Amendment on SSRN. Here is the abstract:

Copyright law is a glaring and unjustified exception to the general rule that the government may not prohibit speech without a showing that the speech causes harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of publicity laws, require demonstrable evidence that the defendant's speech causes actual harm, copyright law does not make harm a requirement of infringement. Although copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is not always required and is so poorly defined that the concept has become circular. Moreover, the defendant ordinarily bears the burden of proof to show the absence of harm. As a result, courts often find liability for infringement (and therefore burden speech) where harm is purely speculative.

Potential explanations for copyright's anomalous treatment are unpersuasive. Copying involves speech as well as conduct, and the fact that copyrights are in some sense property does not come close to justifying its aberrant treatment. Moreover, copyright's role in encouraging creative expression does not obviate First Amendment concerns. Rather, it provides a way to reconcile copyright law and free speech. Drawing substantially from First Amendment cases holding that speech restrictions must be justified by a governmental interest, this article argues that the First Amendment requires real proof of harm to the copyright holder's incentives in order to impose liability for copyright infringement. It also explores the types of harm that might arise in copyright infringement cases and considers whether the First Amendment permits recognition of these types of harm. The article concludes that although demonstrable market harm is cognizable under First Amendment principles, recognition of harm to the reputation of copyrighted works, the author's right not to speak or associate, or the copyright holder's privacy interests is generally not compatible with the values of free speech.

Source: Lawrence Solum

Herbert J. Hovenkamp (University of Iowa – College of Law) has posted Analyzing Horizontal Mergers: Unilateral Effects in Product-Differentiated Markets on SSRN.  Here is the abstract:

This essay offers a brief, non-technical exposition of the antitrust analysis of horizontal mergers in product differentiated markets where the resulting price increase is thought to be unilateral – that is, only the post-merger firm increases its prices while other firms in the market do not. More realistically, non-merging firms who are reasonably close in product space to the merging firm will also be able to increase their prices when the post-merger firm’s prices rise. The unilateral effects theory is robust and has become quite conventional in merger analysis. There is certainly no reason for thinking that it involves any more conjecture than what occurs in traditional concentration-increasing merger analysis. Nevertheless, as with all predictions about mergers, we must live with a certain measure of uncertainty.

Source: Lawrence Solum

Michael S. Sawyer (Berkeley Center for Law & Technology) has posted Filters, Fair Use, and Feedback: User-Generated Content Principles and the DMCA (Berkley Technology Law Journal, Forthcoming) on SSRN. Here is the abstract:

As Web 2.0 matures, the copyright policing burden is shifting from copyright owners to user-generated content (UGC) sites. UGC sites are implementing copyright filters to remove potentially infringing content even though these filters are largely incapable of accommodating fair use. This note surveys the relevant technical and legal background and demonstrates several ways in which technology has outpaced the law. It examines two recent proposals for addressing copyright and fair use, the UGC Principles and EFF Fair Use Principles. This note explains why copyright filters cannot accommodate fair use, and describes why the risk-averse nature of large companies in the industry may lead to expansion of copyrights and contraction of the safe harbors through feedback loops. The note recognizes that there are actually two policing burdens, the technological burden to identify potentially infringing content and the human burden to evaluate fair use of potentially infringing content, and surveys obstacles to establishing a two-stage policing system.

Source: Lawrence Solum