week few weeks of National Article Finishing Month have passed, and I’ve been remiss in posting. Sorry for the delay. Let’s catch up on events thus far.
Our Facebook Group has 15 members, and folks have posted a number of intriguing abstracts and updates. Here are some notes about them.
We’ve got wide variety of interesting topics. In alphabetical order by last name: Ann Bartow is multitasking, with three short pieces in November, as well as a couple of overseas lectures. Will Baude is writing about what happens in a post-DOMA environment. Scott Boone is using the law of smart phones to predict the law of future emerging technologies. Miriam Cherry is writing about unconventional markets that are forming in cyberspace, and the role that technology plays in market formation. Brian Frye is writing on problems with the existing law of charitable contributions. Trudy Rushforth is writing about privacy rights, TSA screenings, and the right to travel. Steve Semeraro is writing on how an artificially narrow definition of price competition hurts antitrust law. Franita Tolson is writing about gerrymandering, federalism, and judicial review. I am writing on a behavioral critique of new governance scholarship. And, economist Meryl Isobel Motika is writing on the economics of personality, wealth accumulation, and wealth.
More detail after the jump.
Ann notes that
I finished edits on a draft trademark article earlier in the week, that Houston is publishing. I owe Jotwell an article review, someplace else a book review, and I need to finish a short response piece for “See Also,” the online companion to the Texas Law Review.
She’s working on these while maintaining a beyond-full travel and teaching schedule. Wow.
Will started out well, and is currently furthest along. In fact, his article, “Beyond DOMA: Choice of State Law in Federal Statutes,” is now on SSRN. (Short description: “The Defense of Marriage Act has been abandoned by the executive and held unconstitutional by courts, so it is time to think about what will be left in its place.” Suggestions for a better title are welcome.
My November draft, “The Future of Law Is in Your Hands,” is about the using the law of smart phones to predict the law of future emerging technologies. I presented it at a symposium last Friday and need to submit the article by the turn of the year. Since I have only researched and presented this, my goal is to complete a full draft, but not necessarily an SSRN draft, by the end of the month. The article will first argue that smart phones represent one of the best current embodiments of future computing technology – a forerunner of the third paradigm of computing. Then it will attempt to use the smart phone to explore what future legal issues might arise once near-future computing technologies are more fully realized. The two characteristics of near-future computing that will be examined in the most detail are the virtualization of the physical world (in both space and time) and the growth of intermediaries in previously unmediated contexts.
Miriam writes that “The article is about unconventional markets that are forming in cyberspace, and the role that technology plays in market formation. It is also about commodified versus non-commodified areas in cyberspace.”
Brian notes that
My article is titled “Solving Charity Failures.” It argues that the charitable contribution deduction causes “charity failures,” or free riding on donations, because it cannot subsidize many charitable contributions. It further argues that crowdfunding is successful because it solves certain charity failures by using rewards to subsidize donations that the charitable contribution deduction cannot subsidize. It suggests that it may be appropriate to treat certain crowdfunding organizations as charities, even though they allow donations to individuals and businesses.
He has a draft, and hopes to have it posted to SSRN by the end of the month.
Aspiring academic Trudy has an abstract and a work in progress which she’s hoping to finish by month’s end:
“In late 2010, the Transportation Security Administration began requiring airline passengers to pass through millimeter wave scanners (devices that emit x-ray radiation and can see through clothing) as part of security screening. Passengers who refuse to go through the scanners or whose scans turn up suspicious results are subjected to “enhanced pat-downs”. These screening procedures have received criticism from privacy advocates and from those concerned about the potentially harmful effects of the radiation in the scanners. This Article will argue that forcing passengers to choose between being subject to a virtual strip-search or invasive bodily contact as a condition of domestic air travel is a violation of the fundamental right to interstate travel guaranteed by the Constitution.”
Steve writes that
My November article will be called “Antitrust’s Artificial Heart.” It will assess the market definition analysis — the heart of antitrust analysis — in FTC v. Lundbeck. In that case, the trial court held (and the appellate court upheld) that Lundbeck could lawfully acquire the only two drugs licensed to treat a rare heart ailment afflicting premature babies. The courts reached this surprising conclusion, because, the judges believed, the two drugs did not compete in the same market. How could this be? The courts rested their findings on the testimony of doctors that they would not change their decision about which drug to prescribe based on their relative prices. I will argue that the court got it wrong, because it focused narrowly on price competition. Antitrust requires competition across all realms, including quality — a dimension that the doctors surely looked to in comparing the two drugs. More importantly, were the courts’ hyper-subjective approach to market definition supportable under existing case law, it would conflict with the fundamental assumption underlying the antitrust statutes that competition provides the best outcome for consumers.
Franita has a draft where she
argue[s] that the legal scholarship has ignored that partisan gerrymandering is federalism reinforcing because it allows states to send a cohesive congressional delegation to Congress and influence federal policy. This consideration should affect whether or not partisan gerrymandering claims are justiciable. I conclude that courts will not properly value this federalism benefit and indirect regulation of partisan gerrymandering through doctrines like one person, one vote and Section 2 of the Voting Rights Act is best.
She updated the group last week that she had just finished another round of edits on my partisan gerrymandering piece, but it is far from complete.
My own draft makes a behavioral critique of new governance scholarship. I use William Simon’s legal scholarship about Toyota as a lens to examine the way in which new governance narratives are framed. New governance proposals often follow a particular narrative structure, setting out empirical and case-study driven accounts of how to build a “better mousetrap” based on private-sector successes. This narrative structure is intuitive and is psychologically appealing. However, the empirical, case-study model may be prone to overstate causal connections, due to a variety of behavioral biases such as confirmation bias, hindsight bias, and representativeness heuristic.
I started with a choppy draft, and I’ve fixed portions of it but still have work to do.
Finally, Meryl notes that
My article is currently titled “Personality, Planning, and Wealth.” My original plan for it fell apart after I discovered that my method for identifying the effect of financial planning on wealth accumulation was invalid. I need to turn it into something that can stand as part of my dissertation. What I’ve got right now: useful data; pieces of analysis relating wealth to planning, planning to personality, and wealth to personality; literature review on planning and retirement saving. What I need by the end of the month: reasonable first draft of article. Next step: figure out a research question that isn’t totally idiotic and that I can answer with the aforementioned data and, ideally, analysis.
Thanksgiving weekend is the home stretch. Let’s try to get some editing done amidst those piles of turkey.
Good luck on your article writing, everyone!