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University of Toronto Law Journal – Volume 64, Number 5, Fall 2014

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University of Toronto Law JournalVolume 64, Number 5, Fall 2014

Strange bedfellows
Robert Leckey

Two logics of authority in modern law
Arie Rosen

Authority, justice, and public law: A unified theory
Jacob Weinrib

REVIEW ARTICLES
The work of Lon Fuller: A promising direction for jurisprudence in the twenty-first century
Wibren van der Burg

List and Pettit on group agency and group responsibility
Vincent Chiao

Full text of the University of Toronto Law Journal is available online at UTLJ Online, Project Muse, JSTOR, HeinOnline, Westlaw, Westlaw-CARSWELL, LexisNexis and Quicklaw.

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FAN 36.2 (First Amendment News) Corn-Revere on the FCC & Redskins Controversy

Robert Corn-Revere

Robert Corn-Revere

In case you missed it, yesterday Robert Corn-Revere had an op-ed in the Wall Street Journal. The piece was titled, “Free-Speech Foes Call an Audible — Bringing the FCC into the ‘Redskins’ debate is an invitation for First Amendment mischief.”

Here is the petition to the Federal Communications Commission, the one that gave rise to the FCC controversy.

 Here is how Mr. Corn-Revere began his WSJ op-ed:

“However you may feel about the name of the National Football League franchise in Washington, D.C., do we really want the Federal Communications Commission to step into the Redskins controversy as the nation’s culture police?”

“That’s what George Washington University law professor John Banzhaf III is seeking by asking the FCC to deny the broadcast license of WWXX, the FM radio station in Washington licensed to team owner Dan Snyder. The petition, filed in September, asks the FCC to yank the broadcast license because the station “deliberately, repeatedly, and unnecessarily broadcasts the word ‘R*dskins’ during most of its broadcast day.”

“That’s right, in lieu of the team name, the petition uses ‘R*dskins.'”

“This is a publicity stunt, not a serious legal argument. It is well beyond the FCC’s statutory or constitutional authority to prohibit speech merely because some find it offensive. But the idea gained some political traction after a Sept. 30 meeting when several FCC commissioners said they would consider the issue. Such consideration should not take long if the FCC is serious about following the law.”

Corn-Revere, former chief counsel to former FCC Chairman James Quello, then proceeded to lay out his case as to why Professor Banzhaf’s petition should be denied. In the process, Corn-Revere drew on FCC precedents and experience with regulations of this general type. In the end, he predicted:

“Without even getting into the frailties of the petition’s legal arguments, it doesn’t take a seer to predict what would happen if the FCC started canceling broadcast licenses because some people in the audience may be offended by something they had heard or seen. It would be a national version of college ‘speech codes,’ which have devolved into an offended-ness sweepstakes.

“There is no doubt about the sincerity of those who object to the name Washington Redskins. But asking the FCC to silence broadcasters who disagree with them is not the solution.”

Note: Professor Banzhaf has accepted my invitation to respond. I will post it as soon as i can. Stay tuned. 

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7 Member Supreme Court Votes 4-1 to Suspend One of its Own

This is ugly.  PA Supreme Court has voted to suspend one of its members for various infractions, including the dissemination of pornographic emails from work computers.  The suspension order issued per curium, but apparently only attracted the votes of 4 of 7 possible justices.  One justice, dissenting, would have sent the matter to a judicial conduct board. The suspended justice didn’t vote, and neither did a justice who just accused the suspended justice of trying to blackmail him over yet more pornographic emails.  One of the four votes comes from a justice appointed by Pennsylvania’s governor, to replace another justice who had been suspended after being indicted.

Still with me? Here’s where the fun starts.  Pennsylvania’s Chief Justice, who has been long-involved in a heated fight with the newly suspended justice over control over Philadelphia’s court system, concurred in the per curium opinion. His “concurring statement,” destined for the headlines, contains the following astonishing paragraph:

wowThat, friends, is what it means to vent your spleen.

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“Be careful of those that meet you at the train…”

Every now and then, a fortune cookie dispenses with advice that is so spot-on you just have to keep the little sliver of paper tucked away.  Here is my fortune cookie keeper of all time:

“Be careful of those that meet you at the train for they know where they want you to go…”

It was 2007 and I had just accepted my first job teaching.   And the faculty at the time was in a bit of turmoil.  The dean had recently resigned and it was unknown who the future dean would be.  As a visitor setting foot on campus I was a bit blurry eyed and knee deep in figuring out how to teach, be productive and all the things you do to start yourself off right.  Many of the faculty who remain very good friends today reached out to me to be reassuring about the the stability of the faculty etc….  But one person reached out to me to tell me who on the faculty not to trust.  What was particularly interesting was they named names!  This person was actually one of the first people to reach out to me when I arrived.  So when about six months later I read this fortune cookie sliver, I took the waitress’s pen and wrote their name on the back.

In my experience, the people on a faculty who you should be most leery of are those that will tell you either the people or the kinds of people you should be careful of.  What sounds as if it comes from experience and insight most often comes from places of fear, mistrust, manipulation, and insecurity.  What it can tell you, if you did not already know it, is that there are fault lines on the faculty for which a subterranean battle for the institution’s soul may be playing out.  As a young faculty member, don’t choose sides without carefully understanding what is at stake.

When you are new to a faculty, there are some traits to be “eyes wide open” on.  One is the “do not trust” this person or group of people conversation.  Most of time, when people offer this advice it is rarely for your own well-being, but rather because of their own motives.  Likewise, advice about faculty members that reduces them down to one quality or another or suggests that they are one dimensional in their views of the world (i.e., this person only cares about scholarship, so you should talk to them about your work often; or this person is only a teaching faculty member and doesn’t really care about scholarship) is rarely accurate and should be taken with equal caution.  I recall, being told at one stop “this professor doesn’t do scholarship so you shouldn’t waste your time talking to them about yours.”  As I found out, that was some of the worst advice I had received.  That person did not write, true, but they were very interested in the scholarship I was working on.   Had I not been willing to talk about my passions to this faculty member, I would have missed the chance to build a great relationship with this person — who frankly was glad that people like me were interested in writing our voice into scholarship and wanted to be supportive of that for the good of the college.

Anyone that suggests that faculty members are one dimensional and will only care about X, whether X is how you teach or what you write, means that the person dispensing with the advice doesn’t know the faculty member they are dispensing advice about well at all.  If we know anything about people — whether they are faculty members, scholars or administrators — it is that they are rarely one dimensional and regularly surprise us with the way they see the world if we open our eyes to see from time to time.

The people that make the best mentors on faculties are those that do not spend as much time worrying about who else you are taking advice from or attempting to characterize others, as they do about what you are up to and how your year or writing is shaping up.  In other words, when you find someone that is spending far more time offering comments about others on the faculty (particularly when you are new) understand that you are not their primary interest.  Their interest is to shape you to be aligned in their view of what the law school should be doing.  And most often, after you have served your purpose, they will dispense with you as well.

A final anecdote on this line — at one of my many stops (I have had four)  a colleague had the “do not trust this colleague,” conversation with me.  Fortunately I had experience in these matters and took the advice with a heavy dose of caution (of the advise dispensing colleague) and with eyes wide open. As it turned out, the person I was told not to trust was also told not to trust me by the same colleague.  Had I listened, I would have been deprived of a person who has become one of my greatest friends in the academy, but also a really great mentor.

So now, my little Chinese fortune cookie sliver, has two names written on the back, and still sits in my office today..

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Formal Bills of Rights vs. Instrumental Ones

Below the fold I will post the Introduction of my revised paper, which I’m tentatively calling “The Bill of Rights Reconsidered.”  (It’s not a great title, but it’s good enough for now.)  As some readers may recall, last year I drafted a paper that focused on how Franklin D. Roosevelt elevated the status of the Bill of Rights in the 1930s.  Once I decided to turn this project into a book, I realized that my draft was inadequate.  It noted that most people did not call the first set of amendments a bill of rights until the 1890s, but did not offer an explanation for that curious fact.  I also did not explain why the terminology starting changing around 1900.  Those were pretty significant holes, but now I think that I have got them covered.

A theme of the paper is that our understanding of a bill of rights moved from a formal definition in the eighteenth and nineteenth centuries to a practical one in the twentieth and twenty-first.  Alexander Hamilton anticipated this change in Federalist #84, which I think has been misread for a long time.  (More on that later this week.)

Read More

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Will The Disruptors Be the New Dominants?: On Uber, AirBnB, and other seeming upstarts

Loving your online, decentralized model may not work when you care about safe drivers, clean rooms, and other real-world issues. Claire Cain Miller brings up this problem in today’s New York Times. She points out that AirBnB and Uber are trying to follow “a religion [from] Silicon Valley: Serve as a middleman, employ as few people as possible and automate everything. Those tenets have worked wonders on the web at companies like Google and Twitter. But as the new, on-demand companies are learning, they are not necessarily compatible with the real world.” I agree. In The New Steam: On Digitization, Decentralization, and Disruption, I point out that “transactions costs related to safety, quality, property rights, contracting, and knowledge may be more acute in a digitized, decentralized world.” Ms. Cain Miller (apologies if Miller is the preferred last name), hits on some great points about the differences between the types of harms in the online and offline world. As she looks at it, the lack of humans is a problem for the reality of the services and relates to politics: “The belief that problems can be solved without involving people is probably why many of these companies did not meet with regulators and officials before starting services in new cities.” I think there is something more going on here.

Yes, the big firms in the space will engage in lobbying, but part of their story (and practice) will have to be about how they meet the issues of labor, safety, and more that they affect. As I put it:

[E]ven with digitization, economic questions will remain, but we must understand what they are and why they persist to see what the future may be. Douglass North captures a paradox that goes with transaction costs. Greater specialization, division of labor, and a large market increase transaction costs, because the shift to impersonal transactions demands higher costs to: 1)measure the valuable dimensions of a good or service; 2) protect individual property rights; 3)enforce agreements; and 4)integrate the dispersed knowledge of society.26 Standardized weights and measures, effective laws and enforcement, and institutions and organizations that integrate knowledge emerge, but the “dramatic increase in the overall costs of transacting” is “more than offset by dramatic decreases in production costs.” Digitization forces us to revisit these issues. With digitization, we are seeing an abundance of person-to-person transactions, but with the problems of impersonal transactions.

In simplest terms, AirBnB , Uber, et al. may face some rocky times, but there is a good chance they will figure out how to address the current issues and end up being the dominant firm, not the small disruptor. As Ms. Cain Miller notes, AirBnB has added hotlines and insurance. Uber has also increased its insurance requirements. If the disruptors continue to address a decent amount of the issues North calls out, my bet is that “this era of disruption and decentralization will likely pass and new winners, who will look much like firms of old, will emerge, if they have not already.”

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Makeup as the Killer App for 3D Printing?

A woman named Grace Choi seems to have come up with a way to 3D print “lipstick, lip gloss, eye shadow, blush, nail polish, brow powder—pretty much everything except foundations and face power” at home. Her company, Mink, uses FDA approved inks (vegetable or edible). The goal is that a consumer could take a picture or using an online image of the makeup, the software would match the color and print out just enough makeup for that application. If the prototype holds up, this product could be one to bring 3D printers into many homes. But is it the killer app for all of 3D printing?

Put differently, a fair question that comes up when I talk about 3D printing is will it really be a device in every home? The answer depends on what one means by the question. First, at this point, you need a different 3D printer for different outputs (e.g., makeup or something in plastic as opposed to metal or ceramic). If Mink takes off, yes, a type of 3D printer could be in many, if not a majority, of homes. But as Gerard, others, and I have said, this device is not a replicator. So until a 3D printer is able to have multiple mediums in one printer, the spread of the devices will probably vary depending on the medium of the output. As such the killer apps for each medium will be specific to the device. That said, Mink may have a larger importance for 3D printing and home technology.

Mink could be a sign of where home inventors and makers are headed. Ms. Choi hit on her idea and took about a month to work through 20 printer prototypes, sort the ink issues, and have her working Mink printer. Granted she is a Harvard MBA and apparently has family support, but her approach could lead to new players in her field and others. As reported by CNBC, Ms. Choi, “Much of the make-up sold by high-end labels starts with the same base substrates, or ingredients, as cheaper ones.” This point is part of what motivated Patents Meet Napster. The core things needed to make many products are easier and easier for anyone to obtain. If Mink is priced at $300 to start as promised, that price will likely drop over time. If women adopt the technology and then tinker with it to improve on the hardware or the design colors, they may be inspired to launch their own companies and tinker with other technologies to get there. Like car and computer enthusiasts, cosmetic enthusiasts may find that playing with making what they want and love can lead to new products and businesses. And if that happens at scale in one sector, it may spur adoption in others. So maybe 3D printed makeup is not a pure killer app for 3D printing, but maybe it does not have to be to still have some great effects.

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William Jennings Bryan and the Bill of Rights

91px-W.J._Bryan_cropI’ve made an interesting discovery about the history of the Bill of Rights that I want to share.  In prior posts, I’ve noted that people did not start commonly calling the first set of amendments a bill of rights until around 1900.  One step in that direction was when Congress created a territorial government for the Philippines in 1902 and gave some of the guarantees of the first set of amendments to that colony (though the Act did not call this part of a bill of rights, the Supreme Court did in 1904).  More broadly, the Court’s cases on Puerto Rico and the Philippines define the bill of rights in the modern sense more often (though they did not speak to the importance of the bill of rights in the way that we do).

In observing all of this, my initial thought was that there might be a connection between the transformation of the bill of rights and colonialism.  The acquisition of colonies was controversial at the time, and extending basic rights could have been a way to satisfy critics and quell the rebellion that was ongoing in the Philippines.  But is there any evidence  that people cared about this issue then?

I think so.  A month after William Jennings Bryan was nominated for president by the Democratic Party in 1900, he gave his acceptance speech in Indianapolis.  (In those days, presidential candidates did not accept their nomination at the convention.)  Most of Bryan’s speech was an attack on imperialism, and he stated his line of attack this way:

There is no place in our system of government for the deposit of arbitrary and irresponsible power. That the leaders of a great party should claim for any president or congress the right to treat millions of people as mere “possessions” and deal with them unrestrained by the constitution or the bill of rights shows how far we have already departed from the ancient landmarks and indicates what may be expected if this nation deliberately enters upon a career of empire.

Why is this important?  As far as I can tell, this is the first time that any major presidential candidate said anything about the bill of rights as we understand that term.  Moreover, Bryan made the issue that Congress addressed two years later–colonies could not be governed without the protection of (at least part of) the bill of rights.  Bryan, in essence, made the definition of the first set of amendments as a bill of rights into a significant political issue.

 

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Vanderbilt Law Review, Volume 67, Number 5

The Vanderbilt Law Review is pleased to announce the publication of our October 2014 issue:

ARTICLES

Mehrsa Baradaran, Regulation by Hypothetical, 67 Vand. L. Rev. 1247 (2014).

Matthew R. Ginther et al., The Language of Mens Rea, 67 Vand. L. Rev. 1327 (2014).

Anna Su, Speech Beyond Borders: Extraterritoriality and the First Amendment, 67 Vand. L. Rev. 1373 (2014).

NOTES

Philip L. Lu, Trademarked for Death? A Licensee’s Trademark Rights After an Executory Contract Is Rejected in Bankruptcy, 67 Vand. L. Rev. 1431 (2014).

Courtney J. Mitchell, Keep Your Friends Close: A Framework for Addressing Rights to Social Media Contacts, 67 Vand. L. Rev. 1459 (2014).

Tom S. Xu, Confrontation and the Law of Evidence: Can the Language Conduit Theory Survive in the Wake of Crawford?, 67 Vand. L. Rev. 1497 (2014).