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Introducing Guest Blogger David Zaring

zaring2.jpgWe are very happy to announce that David Zaring will be joining us as a guest these next few weeks. David is a professor of law at Washington & Lee University School of Law. Prior to joining Washington & Lee, David was a professor in New York University School of Law’s lawyering program. He worked at the U.S. Department of Justice Civil Division, was Special Counsel at the U.S. Department of Housing and Urban Development, and clerked for Hon. Judith Rogers, U.S. Court of Appeals for the District of Columbia Circuit and Hon. Wm. Matthew Byrne, Jr., U.S. District Court for the Central District of California.

David teaches administrative law and international trade, and he writes in domestic and international administrative law. Recent publications include: Best Practices, 81 NYU L. Rev. (forthcoming 2006); Informal Procedure, Hard and Soft, in International Administration, 5 Chi. Int’l L.J. 547 (2005); National Rulemaking Through Trial Courts: The Big Case and Institutional Reform, 51 UCLA L. Rev. 1015 (2004). Additionally, David has two more forthcoming works: The Use of Foreign Decisions by Federal Courts: An Empirical Analysis, 3 J. Emp. Leg. Stud. (forthcoming 2006); What’s Next for Networks, 2 Ann. Rev. of L. & Soc. Sci. (forthcoming 2006) (with Anne-Marie Slaughter).

Please give David a warm welcome!

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Introducing Guest Blogger Frank Pasquale

pasquale.jpgWe are delighted that Frank Pasquale will be joining us for a guest stint over the next several weeks. Frank is a professor of law at Seton Hall Law School. He holds a BA from Harvard, an M.Phil. in Politics from Oxford University (as a Marshall Scholar), and a JD from Yale Law School. Prior to joining the Seton Hall faculty, Frank clerked for the Honorable Judge Kermit Lipez of the United States Court of Appeals for the First Circuit, served as a fellow at the Institute for the Defense of Competition and Protection of Intellectual Property in Lima, Peru, and was an attorney at Arnold & Porter in Washington, DC. Frank focuses his scholarship on intellectual property and health law, and he has a broad-ranging interdisciplinary approach that draws from economics, philosophy, and social science.

His recent scholarship includes, Toward an Ecology of Intellectual Property, forthcoming in the Yale J. Law & Tech. (Fall 2005); Breaking the Vicious Circularity: Sony’s Contribution to the Fair Use Doctrine, 55 Case W. Res. L. Rev. 777 (2005); Beyond Napster: Using Antitrust Law to Advance and Enhance Online Music Distribution, 8 B.U. J. Sci. & Tech. L. 451 (2002) (with Kimberlee Weatherall and Matthew Fagin); and Two Concepts of Immortality: Reframing Public Debate on Stem Cell Research, 14 Yale J.L. & Human. 73 (2002). His recent works-in-progress include Rankings, Reductionism, and Responsibility (about search engine regulation) and The Law and Economics of Information Overload Externalities.

We’re very excited to have Frank join us as a guest!

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Experimenting With Food Labels

label.jpgSteve Bainbridge highlights pending federal legislation to preempt state food label rules that are inconsistent with the FDA’s standards. He comments that the law would be a “perfectly plausible exercise of Congress’ power under the Commerce Clause.” I agree, even though there are non-frivolous arguments to the contrary (federalism concerns for states’ police powers; locally grown foods; etc.) But putting aside constitutional shibboleths, I think that just because Congress has the ability to preempt state legislation doesn’t mean it should.

The argument against allowing states to add new disclosure requirements to food labels goes like this. The great competitive strength of the American economy is its internal free trade network. Inconsistent regulation internally is to be avoided where possible, because it results in inefficiencies as producers are forced to retool their products for different states. Moreover, producers must increase their legal compliance costs, hiring lawyers to keep track of regulations in the several states, capture regulators lobby in 50 state legislatures, etc.

But such arguments discount the benefits of permitting experimentation in dealing with cognitive problems. The science of information processing is still relatively young: we haven’t gotten a handle on what disclosures trigger what types of consumption activity. As Larry Ribstein argues in a very different context here allowing states free reign to try different regulations will – as Brandeis long ago argued – create a natural laboratory allowing experimentation in reducing cognitive error. States that require disclosure of facts that consumers find unimportant will soon receive feedback to that effect. Similarly, if producers (as expected) increase prices in markets requiring more disclosure, we could obtain some evidence as to how much consumers actually value labeling. [This could get complicated given cross-border purchasing and free-rider problems, I suppose]. But most importantly, states could try different approaches to the problem of the method of regulation itself. Is the best way to encourage the right disclosure a rule (you must state the number of milligrams of sodium) or a standard (you must disclose information that consumers find valuable)? Should this process be run by regulators (as it is in the federal system) or the common-law jury?

We could start getting answers to such questions, but only if the feds back off.

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An Olympic Conspiracy Theory

The media has been full of stories about the Turin Olympic’s failure to grab hold of the American domestic television market. Explanations seem to range widely, from athletes failing to win sufficient numbers of golds, to the sports being outside of the experience of most American viewers, to dissapointments in ice skating, to the delayed coverage.

I wonder if nervousness among advertisers has changed the bargaining position of the American olympic federation? Today’s Philadelphia Daily News has a story with an interesting theory about the reason that superstar Allen Iverson wasn’t invited to try out for the 2006 world championships.

With USA Basketball and Nike announcing yesterday that they have reached a multiyear agreement to make the footwear company a marketing partner and exclusive apparel outfitter of the national team, it’s beginning to make a bit more sense as to why Allen Iverson will not be one of the 22 players invited to try out for the team that will compete at the 2006 world championships.

I don’t want to claim conspiracy theory, but it’s mighty interesting that as soon as Nike partners with USA Basketball for the first time ever, Iverson – who just happens be the No. 1 endorser for archrival Reebok – is booted out of the U.S. Olympic loop. Nike will provide uniforms, warmups and practice gear for the team.

Pretty wild stuff.

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Reparations within the Rule of Law

At the upcoming reparations conference, I will speak on the topic of reparations within the rule of law. My paper is still (ahem) a work in progress. However, I know the structure of my remarks, and I just turned in my abstract (so that our publicity folks could get to work on the printed materials). The abstract of my presentation is as follows:

Kaimipono David Wenger

Reparations within the Rule of Law

The question of reparations for slavery raises a number of concerns. One important question is whether reparations can fit within the rule of law. This question relates to underlying concerns about who defines the rule of law and what the rule of law includes.

The rule of law is a broadly respected concept in legal discourse, and is viewed as an important element undergirding society’s interaction with the law. A strong rule of law creates several benefits for individuals and for society. The rule of law can serve as a safeguard against certain kinds of tyranny and oppression. In addition, a perception of a robust rule of law lends legitimacy to laws and legal regimes, and streamlines legal experience.

The rule of law as a concept is not always well defined. At its most basic, the concept requires that individual interactions with law be based on application of law rather than arbitrary exercise of power; that laws be equally applied to all individuals; and that laws be knowable and performable. Some influential formulations of the rule of law, such as that offered by A.V. Dicey, follow this basic structure and are almost entirely procedural in nature. Such exclusively procedural formulations are not universally accepted, however, and longstanding debates exist on whether the rule of law is capable of bearing substantive content.

Slavery reparations present special challenges to the rule of law. Reparations potentially involve the transfer of large amounts of money to a class of people – descendants of an original harmed group – who are seeking payment over a century after the initial harm. In addition, the cost of this transfer will necessarily fall on at least some parties who are not morally culpable for the original harm. These aspects of reparations raise complex concerns relating to the rule of law, which should be addressed before any restitution is possible. While these concerns are certainly reasonable, examination of the broader rule of law concerns shows that the greatest offense to the rule of law would arise from not paying reparations.

Reparations are an acknowledgment of the displacement of the rule of law under slavery, a displacement which in turn created a regime of lawlessness and repression. Slavery was only made possible through the removal of rule of law protections as applied to one segment of the population – Blacks. The denial of rule of law protection for Blacks did not end with slavery, but continued for a century or more after slavery’s end. Blacks were denied civil and political rights and meaningful participation in the political process until the civil rights era; even today, they struggle for equal rights.

Given this background, reparations serve as a form of atonement – a crucial signal to the Black community that society wishes to atone for its error and take concrete steps to repair the damaged community. Absent such a signal, the rule of law breach that began with slavery will continue, unhealed. The consequences of the breached rule of law – resentment, distrust of law, a perception that law is beholden only to power – will continue to negatively impact society and undermine faith in the rule of law.

Societal expression of remorse for rule of law breaches – coupled with concrete steps to ameliorate the harm – is a necessary step in repairing the damage done by slavery to the rule of law. Reparations show societal will to set things right following the removal of the rule of law protections for Blacks. They are also a way of affirming that such breach of the rule of law will not recur. Thus, payment of reparations allows society to move forward, and encourages disadvantaged groups to regain confidence in the rule of law. Not only are reparations consistent with the rule of law, they are in fact a product of the rule of law.

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Details About the Guantanamo Detainees

guantanamo1b.jpgMy former Seton Hall Law School colleague, Mark Denbeaux, has posted a paper on SSRN analyzing systematically details about the Guantanamo Detainees. The stats are quite alarming. According to the paper’s abstract:

The media and public fascination with who is detained at Guantanamo and why has been fueled in large measure by the refusal of the Government, on the grounds of national security, to provide much information about the individuals and the charges against them. The information available to date has been anecdotal and erratic, drawn largely from interviews with the few detainees who have been released or from statements or court filings by their attorneys in the pending habeas corpus proceedings that the Government has not declared “classified.”

This Report is the first effort to provide a more detailed picture of who the Guantanamo detainees are, how they ended up there, and the purported bases for their enemy combatant designation. The data in this Report is based almost entirely upon the United States Government’s own documents. This Report provides a window into the Government’s success detaining only those that the President has called “the worst of the worst.”

Among the findings of the Report:

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Best Blogging Newspapers

newspaper1a.jpgJay Rosen and his journalism class ranked the best blogging by newspapers. They looked at blogs at the top 100 largest daily newspapers. They used eight factors in their evaluation: ease-of-use and clear navigation; currency (how often the posts were updated); quality of writing, thinking and linking (whether they were written in a blog style and whether they linked beyond their own domains); voice (a personal “captivating” voice, a point of view); comments and reader participation; range and originality; having a page where all newspaper blogs could be accessed and an explanation for what the paper hoped to achieve by blogging; commitment (have permalinks, categories, archives, RSS).

Results:

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The Necessity Defense?

You may be interested in reading this article from Hattiesburg American (Miss.) about the Sheriff Billy McGee, who has been charged with “intimidating and impeding a federal officer.” According to the article, in the aftermath of Hurricane Katrina, McGee “seized a pair of 18-wheelers full of ice from Camp Shelby without Federal Emergency Management Agency authorization” to obtain ice to preserve the insulin of local residents suffering from diabetes. Seems like a pretty clear cut case of a good necessity defense, but then again, it has been some time since I had criminal law. Maybe our new co-blogger and criminal law expert knows better?

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Puffery Link

For those teased by earlier posts, you can now download from SSRN my draft paper, The Best Puffery Article Ever. I’m happy to say that it will be appearing in the Iowa Law Review in a (for our business) really short period of time – late Spring/early Summer. If you have comments on the draft piece, I’d be thrilled to get them. Just send me an email.