Legal Theory Blog

Hessick on Child Pornography & Child Abuse

Carissa Byrne Hessick (Arizona State, Sandra Day O'Connor College of Law) has posted Disentangling Child Pornography from Child Sex Abuse (Washington University Law Review, Vol. 88, 2010) on SSRN. Here is the abstract:

Recent years have seen a significant increase in the criminal penalties associated with possession of child pornography. The new severity appears to be premised on arguments that blur the distinction between those who possess images of child pornography and those who sexually abuse children. In particular, sentences have been increased based on arguments that possession of pornography is equivalent to or worse than child sex abuse, arguments that viewing child pornography increases the risk that an individual will sexually abuse a child, and arguments that those who possess child pornography are abusing children undetected. This Article identifies instances where possession of child pornography and child sex abuse have been conflated, critically evaluates the arguments that promote such conflation, and identifies independent concerns with conflation. Specifically, it argues that blurring the distinction between the two crimes allows us to continue to misperceive child sex abuse as a stranger-danger issue, and that when law enforcement statistics aggregate possession and child sex abuse, then the public may be misled into believing that law enforcement is successfully battling child sex abuse, when that is not the case. The Article concludes that the modern trend of increasing sentences for possession of child pornography ought to be reviewed, and it suggests several possible areas of reform.

Conference Announcement: Moral Biology at Harvard

On April 15 and 16 Harvard Law School’s Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, in collaboration with the Harvard Program on Ethics and Health, The Project on Law and Mind Sciences at Harvard Law School, the Gruter Institute, and the MacArthur Law and Neuroscience Project, will be holding a two-day conference entitled "Moral Biology?" The conference examines what relevance developments in the mind sciences and evolutionary biology should or should not have for moral and legal reasoning about responsibility, punishment, racism, cooperation, and addiction. The event features a public panel open to all (taking place on Thursday April 15 at 5:30 PM at Harvard Law School) as well as several closed-door sessions. We may have a very small number of spaces available for additional participants for the closed portions of the conference. If you are interested in one of those spaces, please email Kathy Paras, kparas@law.harvard.edu with a sentence or two describing why the conference would be a good fit for your work and interests. Our available spaces are very limited but we will do our best to accommodate who we can. There is no charge for attending.

First on the Compensatory Function of Antitrust Law

Harry First (New York University - School of Law) has posted Lost in Conversation: The Compensatory Function of Antitrust Law on SSRN. Here is the abstract:

Today’s conversation about antitrust civil remedies generally, and the private action specifically, focuses most often on optimal deterrence and effectiveness. Generally lost in conversation is the basic idea that antitrust violations cause economic harm, and that those victimized by that harm should be entitled to damages from those who have violated the law.

This article seeks to revive the underappreciated compensatory function of antitrust. The article reviews the debates over the Sherman and Clayton Acts, showing that compensation was the main focus of debate, traces the shift from compensation to deterrence in a series of Supreme Court cases decided in the 1960s and 1970s, and concludes with a review of three areas in which a focus on compensation could produce results different than current law and enforcement practice - indirect purchaser suits, suits by persons injured outside the United States, and federal government suits under Section 4A of the Clayton Act for damages that the United States has suffered from antitrust violations.

Cook & Heilmann on Self-Censorship

Philip Cook and Conrad Heilmann (University of Leicester and London School of Economics) have posted Two Types of Self-Censorship: Public and Private on SSRN. Here is the abstract:

We propose and defend a distinction between two types of self-censorship: public and private. In public self-censorship, individuals restrain their expressive attitudes in response to public censors. In private self-censorship, individuals do so in the absence of public censorship. We argue for this distinction by introducing a general model which allows us to identify, describe, and compare a wide range of censorship regimes. The model explicates the interaction between censors and censees and yields the distinction between two types of self-censorship. In public self-censorship, the censee aligns her expression of attitudes according to the public censor. In private self-censorship, the roles of censor and censee are fulfilled by the same agent. The distinction has repercussions for normative analysis: principles of free speech can only be invoked in cases of public self-censorship.

Bosniak on Citizenship & Personhood

Linda S. Bosniak (Rutgers University School of Law, Camden) has posted Persons and Citizens in Constitutional Thought (International Journal of Constitutional Law, Vol. 8, No. 1, pp. 9-29, 2010) on SSRN. Here is the abstract:

The ideas of citizenship and personhood have an ambiguous relationship in constitutional thought. Often, they are understood as aligned, even identical. Claims for “equal citizenship” and “democratic citizenship” are, in effect, claims on behalf of the rights and recognition of individuals qua persons. Frequently, however, citizenship and personhood are regarded as opposing concepts. Whereas citizenship references national belonging and its associated rights, personhood evokes the rights and dignity of individuals independent of national status. Personhood stands for the universal, in contrast to citizenship, which is ultimately exclusionary.

Much of the ambiguity of the personhood-citizenship relationship results from the multivalence of the idea of citizenship itself. Analytically, the term is used to reference both relations among already-presumed members of a political community and the process of constituting that community in the first instance. Normatively, citizenship is understood as committed to universalism within the community, but in its community-constitutive mode, it is associated with bounded national commitments. Idealized accounts treat citizenship as a concept that works to mediate between universality and boundedness and ultimately to accommodate them: in this view, that is precisely citizenship’s function and its value. Citizenship is thus represented as both the embodiment of the universal and as the framing precondition for it.

In earlier work, I have shown that the accommodation of the universal and particular that citizenship purports to stand for is often unstable and internally contradictory. Here, I am interested in thinking about constitutional personhood’s own hang-ups. Personhood as a preferred basis for constitutional subject status raises as many questions as it answers, and in the context of constitutional thought, it promises much more than it can deliver. This essay sketches out some directions for a critical reading of the idea of “constitutional personhood.”

Highly recommended!

This essay takes on an issue that I find deeply interesting--the relationship between three forms of personhood (moral personhood, legal personhood, and constitutional personhood).  Not all legal persons are (necessarily) moral persons--corporations are clearly legal persons, but may not be moral persons.  And it is at least possible that there are moral persons who are not recognized as legal persons: for example, it is at least possible that we might come to view some nonhuman species as moral persons (whales, perhaps) without recognizing their legal personhood.  I am inclined to the view that constitutional personhood should and does extend to all moral persons. Bosniak says the following about these questions:

[C]haracterizing someone as a person is consequential: a great deal turns on the possession of, or the assignment of, personhood. Debate regarding the question “Who is a person?” is driven, in large part, by what assignment to the category of personhood does, both expressively and practically. As John Dewey wrote in an essay about corporate legal personality, the term “person” in the law “signifies what law makes it signify.” And what it signifies is that the designee is, as Dewey puts it, a “right-and-duty-bearing unit.”22 I prefer to say that, with assignment of personhood, the bearer is treated as a subject entitled to rights and recognition.

Thus, while Bickel prefers personhood over citizenship because, as he puts it, the former is “not granted,” in fact, personhood is a matter of grant. Like citizenship, personhood is a historical and contingent political construct, whose scope and assignment are endlessly contested.

This seems to me fundamentally wrong--at least if given a deep reading. Of course, in a "shallow" sense personhood is constructed--whether we call someone a person depends on our practices. Thus, the word "persons" has been used in a way that excludes various groups (e.g., slaves). But the same thing is true of the word "human". In the case of "human," however, it is clear (I believe) that the category is not constructed in a deep sense. "Human" names a natural kind--a biological species. 

The fact that some individuals and cultures have mistakenly excluded some groups from their use of the word "human" does not entail that these groups were not human. Nor does it entail that the kind we call "human" is constructed "all the way down."

This same point is true of the moral or functional kind that we call "persons." Of course, usage of the word "person" is socially constructed in the shallow sense, but the moral personhood is not itself socially constructed: moral personhood is a real feature of the world, not a human construction.

Pils on Open Letters & Rights Advocacy in China

Eva Pils (Chinese University of Hong Kong (CUHK) - Faculty of Law) has posted 'Speaking the Truth' to Hu and Wen: Open Letters, Civil Dissension and Rights Advocacy in China on SSRN. Here is the abstract:

China has experienced rapid development over the past twenty-five years, and skepticism about whether China might have any law at all has now given way to skepticism about whether its law can and will protect fundamental rights of its citizens, especially the rights of the new underclass, and of those in open disagreement with the party-state. These concerns are related to persistent institutional difficulties such as lack of judicial independence, legislative incoherence, and the conditions imposed by the one-party state. In this context, the use of public or ‘open’ letters in recent years in China, including letters released on the internet, raises interesting issues. Open letters and similar forms of expression are sometimes used in lieu of litigation – not because they are perceived to be better than litigation, but because litigation is not available in numerous cases in which citizens think that their legal or constitutional rights have been violated, and in which they or someone on their behalf wish to assert this fact. Open letters are also used by people seeking to challenge the constitutionality of legislation. There are some obvious ways in which open letters cannot functionally replace litigation. Most obviously, they may not even elicit a response, and are often unlikely to lead to a decision in favour of the author, or of the person on behalf of whom the letter is written. How even so open letters may matter to the life of the law in China, is explored in this paper.

Skibine on Indian Gaming & Federalism

Alexander Tallchief Skibine (University of Utah - S.J. Quinney College of Law) has posted Indian Gaming and Cooperative Federalism (Arizona State Law Journal, Forthcoming) on SSRN. Here is the abstract:

In this article I evaluate the role of the federal Indian trust relationship in integrating, without assimilating, Indian tribes in our federalist system. I explore these issues through the lens of Indian gaming and implementation of the Indian Gaming Regulatory Act.

Eagle on Generosity & Conservation Easements

Josh Eagle (University of South Carolina - School of Law) has posted Notional Generosity (Harvard Environmental Law Review, Vol. 35, No. 1, 2011) on SSRN. Here is the abstract:

This article explores a phenomenon that might be called “gift-form generosity”: people earning similar amounts of income are more willing to part with a dollar’s worth of one kind of property than another. Among all income groups, the form of property with which charitable donors are most willing to part is the “conservation easement.” Data show, for example, that the average charitable easement donation is more than 100 times greater in value than the total, annual charitable contribution made by the average American taxpayer. Why are donors so willing to part with conservation easements? The answer may lie in donors’ ability to engage in what I call “donative arbitrage,” that is, the opportunity to profit, in tax-benefit terms, from the difference between the donor’s subjective valuation of the property and the value a hypothetical “willing buyer” would pay for it. To the extent that this hypothesis is correct, donors may in many cases be willing to sell their easements for less than the amount they currently receive as a tax benefit. Overpaying for conservation easements reduces the amount of public money that would otherwise be available for much needed conservation on private land. Allowing deductions for easement donations also creates individual incentives that are opposite of those that would produce optimal results. Specifically, landowners who most prefer to keep their land in its current condition (and who would thus give up very little in agreeing to land-use restrictions) will be the most likely to donate conservation easements. On the other hand, because similar restrictions would be expensive to them, landowners who are most interested in developing their property will be the least likely to donate. Thus, easement subsidies are spent protecting the land that is least in need of the protection afforded by easements. The article concludes by suggesting several ways that Congress might change the law so as to improve the efficiency of conservation easement subsidies.

McKenna on Equitable Discretion in Trademark Law

Mark P. McKenna (Notre Dame Law School) has posted Back to the Future: Rediscovering Equitable Discretion in Trademark Cases (Lewis & Clark Law Review, Vol. 14, 2010) on SSRN. Here is the abstract:

Courts in recent years have increasingly made blunt use of their equitable powers in trademark cases. Rather than limiting the scope of injunctive relief so as to protect the interests of a mark owner while respecting the legitimate interests of third parties and of consumers, courts in most cases have viewed injunctive relief in binary terms. This is unfortunate, because greater willingness to tailor injunctive relief could go a long way to mitigating some of the most pernicious effects of trademark law’s modern expansion. This Essay urges courts to reverse this trend towards crude injunctive relief, and to re-embrace their equitable discretion as a means of achieving greater balance in the trademark system.

Maxeiner on Iqbal

James R. Maxeiner (University of Baltimore - School of Law) has posted Pleading and Access to Civil Procedure: Historical and Comparative Reflections on Iqbal, a Day in Court and a Decision According to Law (Penn State Law Review, Forthcoming) on SSRN. Here is the abstract:

The Iqbal decision confirms the breakdown of contemporary American civil procedure. We know what civil procedure should do, and we know that our civil procedure is not doing it. Civil procedure should facilitate determining rights according to law. It should help courts and parties apply law to facts accurately, fairly, expeditiously and efficiently. This article reflects on three historic American system failures and reports a foreign success story.

Pleadings can help courts do what we know courts should do: decide case on the merits, accurately, fairly, expeditiously and efficiently. Pleadings facilitate a day in court when focused on deciding according to law. Pleadings are, however, only part of the process of determining rights and of applying law to facts. They cannot do it all. Their utility is limited by the interdependent nature of determining law and finding facts to apply law to facts.

The United States has had three principal systems of civil procedure; all three have failed. The United States has used three principal forms of pleading—common law pleading, fact pleading, and notice pleading; all three have proven in-adequate. None has achieved both accuracy and expedition; none has managed both fairness and efficiency. Although wildly different in what they have required of pleading, all three systems of civil procedure have shared common flaws: they have expected too much of lawyers and not enough of judges. They have allowed issue deciding to substitute for law applying.

Since 1877 Germany has had only one system of civil procedure; that system has worked well. It has stood the test of time. Its unchallenged and unchanged basic principle is that parties provide facts and courts apply law. Da mihi factum, dabo tibi jus. Parties and courts cooperate. Pleading is only the beginning of that cooperation. Pleading leads directly to a day in court. Pleading directs the court down the path to a decision according to law.