Legal Theory Blog

Duff on Criminal Law as Public Law that Responds to Moral Wrong

R. A. Duff (University of Stirling - Department of Philosophy) has posted Criminal Law and the Constitution of Civil Order on SSRN.  Here is the abstract:

Those who advocate a “public law” conception of criminal law sometimes also argue that this precludes any type of “legal moralism”. This paper aims to show that while criminal law is indeed a species of public law, its distinctive role, as a species of public law, is precisely to take formal note of, and provide an appropriate response to, certain kinds of moral wrong — those kinds of wrong that properly count as public; we should therefore espouse a “public legal moralism”. To that end, I begin in s. 2 by looking more closely at the contrast between the moralist view that Michael Moore exemplifies, and a “public law” conception; central to this contrast are their contrasting views of the criminal law’s ambit and jurisdiction. S. 3 turns to recent versions of the “public law” conception, in particular those developed by Malcolm Thorburn and Vincent Chiao, and connects such accounts to the classical idea that criminal law serves to sustain “civil peace” or “civil order”. The idea of civil order is further explained in s. 4, and the conception of criminal law to be connected to civil order is explained in s. 5; in s. 6 I argue that a public law conception of criminal law as sustaining civil order includes a refined version of legal moralism: for criminal law as thus understood is properly concerned with certain kinds of wrongdoing. In s. 7, I will show how the relationships between those kinds of wrongdoing and civil order, and between the criminal law and civil order, can be internal rather than contingent: wrongs, that is, can be constitutively rather than contingently violative of civil order, and the criminal law partly constitutes the civil order that it serves to sustain. Finally, s. 8 takes brief note of three objections to this account.

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Perlin & Weinstein on the Impact of the Convention on the Rights of Persons with Disabilities on Domestic Mental Disability Law

Michael L. Perlin and Naomi Weinstein (New York Law School and New York State Unified Court System - Mental Hygiene Legal Service) have posted 'There's Voices in the Night Trying to Be Heard': The Potential Impact of the Convention on the Rights of Persons with Disabilities on Domestic Mental Disability Law on SSRN.  Here is the abstract:

This paper carefully examines, through a therapeutic jurisprudence framework, the likely impact of the ratification of this UN Convention on society’s sanist attitudes towards persons with mental disabilities. We argue that it is impossible to consider the impact of anti-discrimination law on persons with mental disabilities without a full understanding of how sanism -- an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry -- permeates all aspects of the legal system and the entire fabric of American society.

Notwithstanding nearly thirty years of experience under the Americans with Disabilities Act (ADA), and an impressive corpus of constitutional case law and state statutes, the attitudes of judges, jurors and lawyers often reflect the same level of bigotry that defined this area of law a half century ago. The reasons for this are complex and, to a great extent, flow from centuries of prejudice – often hidden prejudice, often socially-acceptable prejudice – that has persisted in spite of prophylactic legislative and judicial reforms , and a seeming (on the surface) significant uptick in public awareness.

Soon after the passage of the ADA, advocates and scholars began to slowly turn their attention to the potential redemptive influence of international human rights law. By 2008, the United Nations ratified the Convention on the Rights of Persons with Disabilities (CRPD), the most significant historical development in the recognition of the human rights of persons with mental disabilities, inspired by the participation of persons with disabilities and the clarion cry, "Nothing about us, without us." This has led commentators to conclude that the CRPD "is regarded as having finally empowered the 'world's largest minority' to claim their rights, and to participate in international and national affairs on an equal basis with others who have achieved specific treaty recognition and protection."

In this paper, we will consider whether the CRPD (still not ratified by the US) is likely to finally extinguish the toxic stench of sanism that permeates all levels of society. First, we will briefly discuss both our sanist past and our sanist present. Then, we will consider how the CRPD has the greatest potential for combating sanism, and for changing social attitudes. In doing so we will look at five universal core factors that must be considered when evaluating the likely impact of the CPRD. In this latter inquiry, we draw largely on the tools of therapeutic jurisprudence. We conclude by finding that the CRPD demands law reform at the local and national level all over the world (we briefly consider Canadian law in this paper, as an example of a Western nation that has ratified the CRPD).

Legal Theory Bookworm: "Constitutional Referendums" by Tierney

The Legal Theory Bookworm recommends Constitutional Referendums: The Theory and Practice of Republican Deliberation by Stephen Tierney.  Here is a description:

The use of referendums around the world has grown remarkably in the past thirty years and, in particular, referendums are today deployed more than ever in the settlement of constitutional questions, even in countries with little or no tradition of direct democracy. This is the first book by a constitutional theorist to address the implications of this development for constitutional democracy in a globalizing age, when many of the older certainties surrounding sovereignty and constitutional authority are coming under scrutiny.

The book identifies four substantive constitutional processes where the referendum is regularly used today: the founding of new states; the creation or amendment of constitutions; the establishment of complex new models of sub-state autonomy, particularly in multinational states; and the transfer of sovereign powers from European states to the European Union. The book, as a study in constitutional theory, addresses the challenges this phenomenon poses not only for particular constitutional orders, which are typically structured around a representative model of democracy, but for constitutional theory more broadly.

The main theoretical focus of the book is the relationship between the referendum and democracy. It addresses the standard criticisms which the referendum is subjected to by democratic theorists and deploys both civic republican theory and the recent turn in deliberative democracy to ask whether by good process-design the constitutional referendum is capable of facilitating the engagement of citizens in deliberative acts of constitution-making. With the referendum firmly established as a fixture of contemporary constitutionalism, the book addresses the key question for constitutional theorists and practitioners of how might its operation be made more democratic in age of constitutional transformation.

Matczak on Ad Absurdum Arguments & Rational Legislators

Marcin Matczak (Warsaw University - Faculty of Law and Public Administration) has posted Argumentum Ad Absurdum and the Rational Legislator Assumption – Critical Analysis on SSRN. Here is the abstract:

The aim of this paper is to analyse the nature and structure of ad absurdum arguments (AADA) used in courts' statements of reasons. I particularly attempt to conclude which of the two possible grounds for lawyers applying AADA is the most consistent and thus more convincing. The first of these grounds, which in this paper I call traditional grounds, bases the application of AADA on the rational legislator assumption. According to these grounds, when interpreting a legal text a lawyer should reject any absurd interpretation of the text, as a rational legislator would not wish its words to be interpreted in such a way. According to the second grounds, which I call ontological grounds, AADA is an argument that is based on the assumption that a legal text is an instrument for designing a future reality in which a given society is to function, and that this reality, which we could call the "world," is rational. In line with this assumption, a legal text cannot be interpreted in such a way as to lead to: a) states of affairs arising that cannot possibly exist in the known world, or b) states of affairs that cannot coexist in the known world at the same time as other states of affairs that arise from a generally accepted interpretation of other parts of the legal text. Therefore, in ontological grounds AADA appears as an argument from the ontological structure of the world, not as an argument from the rational preferences of the legislator. As I show further on in this paper, these grounds for AADA have a definite advantage over traditional grounds because, inter alia, they gives greater objectivism in application and enable lawyers' use of AADA to be verified in terms of correctness.

Merges on IP & Technological Platforms

Robert P. Merges (University of California, Berkeley - School of Law) has posted IP Rights and Technological Platforms on SSRN.  Here is the abstract:

This paper is about intellectual property rights (IPRs) and platform technologies. After a brief introduction explaining some basics of networks, standards and platforms, I turn to three policy issues. The first is the role of IP in what might be termed platform policies, the decisions by courts and regulators concerning whether and how to promote multi-party access to important digital platforms such as media player hardware, cell phones, PCs, and the like. I argue that for the most part there is no need for IP law to directly promote interoperability, since market competition among competing platform technology owners will usually protect consumers quite well. Voluntary interoperability at various levels is the norm, an arrangement facilitated by the fact that property rights can and often are waived for strategic reasons. The apparent potential of IP law, and individual IP rights, to restrict access and harm consumers must therefore be seen in the context of competitive battles in which IP owners very selectively enforce their rights. Where coerced access through IP rules does prove necessary, it should be promoted sparingly and strictly ex post, only after rights have issued and their deployment and enforcement are shown to create anticompetitive effects. Second, I discuss optimal policy with respect to platform-content combinations, e.g., the question of whether to regulate or prohibit exclusive content licensing for a single platform, for example, the Apple iTunes/iPod system. Again I argue that competition, together with the divergent interests of content and platform owners, will usually protect consumers without the need for excessive regulation of platform-content deals. Finally, I consider ways to better accommodate traditional IP doctrines and policies to the need for flexibility and openness in platform battles, in particular, the need for a robust set of rules that permit an IP owner to credibly commit to open access to IPRs with a binding full or partial dedication of IP rights to members of the public or specific sub-groups. The idea is to more fully institutionalize the right of an IP owner to implement an owned but open platform strategy. I characterize this new sort of binding commitment to openness as the right to include - by analogy with the traditional notion of property as involving at its core a right to exclude.

Dinwoodie on International Intellectual Property

Graeme B. Dinwoodie (Chicago-Kent College of Law) has posted The International Intellectual Property System: Treaties, Norms, National Courts, and Private Ordering (THE INTERNATIONAL INTELLECTUAL PROPERTY SYSTEM: TREATIES, NORMS, NATIONAL COURTS, AND PRICATE ORDERING, in Intellectual Property, Trade and Development: Strategies to Optimize Economic Development in a TRIPS Plus Era, D. Gervais ed., Oxford University Press 2007) on SSRN.  Here is the abstract:

Although part of the political impetus for international intellectual property law making has long come from the economic gains that particular countries could secure in the global market, the recent situation of intellectual property within the institutional apparatus of the trade regime has been an important factor in the transformation of the classical system of international intellectual property law. This chapter analyses various aspects of this transformation. It suggests that viewing intellectual property through the prism of trade alone offers an incomplete explanation of the changes that have occurred in international intellectual property law making. For example, a full account of the contemporary system must reflect the role of both litigation in national courts and private ordering by commercial actors in establishing international intellectual property norms. This chapter stresses that these new contributors to the international system must be subject to no lesser scrutiny than traditional public international instruments such as treaties. The chapter also discusses the increasingly quick resort to international institutions in the field of intellectual property law. To ameliorate the costs associated with the speedy development of international rules, and perhaps to ensure that some international solution is adopted, policy makers have begun more overtly to support the adoption of soft law norms rather than hard law treaty obligations. In response, those skeptical of these trends in international intellectual property law making have sought to slow down the process or bring it to a complete halt. In order to achieve a political climate where public international law imposes fewer constraints on national law makers (particularly law makers in developing countries), skeptics have adopted a number of strategies, including the multiplication of international institutions in which intellectual property is considered, and the concomitant development of a range of rival norms that have massively complicated the political economy of public international intellectual property law. Using examples drawn primarily from copyright and trademark law, I illustrate the pressure to accelerate internationalization, the varying strength of adopted norms, and the changes to the political climate in which public international law making is occurring. To some extent, these changes reflect increased political and popular attention to trade and development. However, regardless of the catalyst, these systemic changes remain crucially important to trade and development because of the entanglement of intellectual property with trade and development policy.

Barrnon on Copyright & the Lifeword

Anne Barron (London School of Economics & Political Science (LSE) - Department of Law ) has posted Copyright Infringement, 'Free-Riding' and the Lifeworld on SSRN.  Here is the abstract:

The dominant explanatory/justificatory framework informing scholarly commentary on copyright law, policy and theory today - certainly in the US - is law and economics. From this perspective, copyright law exists to underpin markets in certain categories of 'information good' (copyright works). These markets in turn function to ensure that the private costs and benefits of information production and consumption line up (more or less) with the social costs and benefits of these activities, ie that 'free-riding' on the efforts of information producers is (more or less) curtailed. A widely held view is that this tradition of what might be called 'copyright-law-and-economics' is now deeply divided - between adherents to what Glynn Lunney has called 'copyright's incentives-access paradigm' on the one hand, and proponents of what Mark Lemley has called the 'full value' or 'absolute protection' paradigm on the other. Absolute protection theorists tend towards the view that all uses of copyright works should be capable of being controlled (and so priced) by the right-owner; incentives-access theorists distinguish between uses the control of which would affect the information producer's incentives ex ante, and those that would not, and recommend that copyright protection should extend to the former category only. This paper examines the features that are said to distinguish the two paradigms from each other, focusing especially on the approach each recommends to copyright's scope (ie the issue of what uses of copyright works properly constitute copyright infringements). Particular attention is paid to the efforts of critical economists of intellectual property law such as Lemley and Brett Frischmann to retrieve and advance versions of the incentives-access paradigm with a view to counteracting the disadvantages for society they believe are associated with the absolute protection paradigm. Ultimately, however, I conclude that too much has been made of the distinction, and that the debate over which paradigm should have priority in determining the contours of copyright policy distracts attention from a more fundamental issue - the hegemony of economic analysis generally in organising the conceptual and normative universe of legal scholars working in this area. Thus while sympathetic to the impulse underlying the efforts of Lemley and Frischmann - a concern to resist the seemingly relentless expansion of copyright towards the horizon of absolute right-holder control of all uses of copyright material - I argue that their lingering adherence to the presuppositions of economic analysis has stymied their well-meaning efforts to account for the social value of 'information' in terms distinct from the merely economic measure of price. My overall aim here is to suggest that, because of its presuppositions, economic analysis - in whatever paradigm it may be packaged - offers at best a blinkered perspective on both copyright law and the field of social life that copyright law affects. I conclude by proposing Jurgen Habermas's social theory as an alternative framework in relation to which critics of copyright expansionism might fruitfully orient themselves in the future.

Yu on IP Coalitions for Development

Peter K. Yu (Drake University Law School) has posted Building Intellectual Property Coalitions for Development (IMPLEMENTING WIPO'S DEVELOPMENT AGENDA, Jeremy de Beer, ed., IDRC, 2008, Centre for International Governance Innovation Working Paper No. 3) on SSRN.  Here is the abstract:

The adoption of the WIPO Development Agenda in October 2007 has provided less developed countries with a rare and unprecedented opportunity to reshape the international intellectual property system in a way that would better advance their interests. However, if these countries are to succeed, they need to take advantage of the current momentum, coordinate better with other countries and nongovernmental organizations, and more actively share with others their experience, knowledge, and best practices.

Commissioned by the EDGE (Emerging Dynamic Global Economies) Network of the University of Ottawa, this paper begins by explaining how building intellectual property coalitions for development (IPC4D) can help less developed countries strengthen their collective bargaining position, influence negotiation outcomes, and promote effective and democratic decision making in the international intellectual property regime. The paper then discusses four coordination strategies that can be used to develop these coalitions. It concludes with a discussion of the various challenges confronting the creation and maintenance of these coalitions.

Dolak on the Inequitble Conduct Defense in Patent Law

Lisa A. Dolak (Syracuse University - College of Law) has posted Inequitable Conduct: A Flawed Doctrine Worth Saving on SSRN.  Here is the abstract:

A growing chorus of voices is calling for reform or even elimination of the doctrine of inequitable conduct. Critics argue that innocent or even irrelevant prosecution mistakes can be met with the ultimate penalty: unenforceability of the entire patent.

There is no question the doctrine is in need of repair. Patent owners are subject to different materiality standards in the U.S. Patent and Trademark Office and the courts. Inequitable conduct charges can be based on information completely immaterial to patentability. Findings of deceptive intent are increasingly based on inference and not evidence. And the one-size-fits-all remedy of total unenforceability deprives the courts of the ability to tailor the "punishment" to the offense.

But abrogation of the defense would be a mistake, particularly as concerns about patent quality echo in the USPTO, the Congress, the courts, and the media.

This paper argues that retaining the defense is essential for maintaining the integrity of, and continuing public confidence in, the U.S. patent system. It sets forth specific recommendations for much-needed modifications designed to better serve the doctrine's essential purposes, and to ameliorate the key problems with its current application. Although these changes can be implemented by the courts, legislative action would be more appropriate, because the recommended modifications affect virtually every aspect of the doctrine, and it is unlikely that a given case or series of cases will present appropriate facts for judicial resolution in the near future.

Heald on Patent Remedies

Paul J. Heald (University of Georgia Law School) has posted Optimal Remedies for Patent Infringement: A Transactional Model on SSRN.  Here is the abstract:

In a world of zero transaction costs, one should observe optimal invention and innovation. As long as a system of enforceable contracts were in place, firms with inventive capacity and firms requiring inventions would negotiate for the optimal production of new creations. With adequate information, an observer could accurately predict which transactions would occur between firms and which transactions would not, thereby permitting description of the conditions for optimal inventiveness. Patent remedies in a world with transactions costs can be calibrated so that real firms behave as ideal firms, providing incentives for real world transactions to mimic those in a world without transactions costs. The goal of remedies for patent infringement should therefore be to provide incentives for efficient transactions to occur, while minimizing the cost of transacting. This approach sets the framework for a comprehensive revision of current patent remedies and resolves current debates over the relevance of an infringer's knowledge, independent invention, and the proper scope of injunctive relief.