May 25, 2011 Erin Murphycrim
I. Bennett Capers
, Real Rape Too, 99
Calif. L. Rev. (forthcoming, 2011), available at
SSRN.
I had just finished teaching the rape unit to my first year criminal law class when my colleague Rachel Barkow brought I. Bennett Capers’ Real Rape Too to my attention. I know that opinions about whether and how to teach rape vary dramatically amongst faculty members, but for several reasons I have always been committed to teaching it and to encouraging candid classroom discussions. However, one of the interesting things about teaching a topic about which social conventions are still in flux is that increasingly I find myself unintentionally steering the class to the debates of my own youth. Having graduated in the early to mid-nineties, I came of age in the twilight of “no means no” and Take Back the Night. Date rape had gained recognition as “real rape,” but “roofies” were sufficiently unfamiliar that President Clinton had not yet signed the first federal date rape drug law. Understandings about sexuality, too, were still evolving. TV’s “Friends” was considered a pathbreaking show because it depicted a group of male and female friends living together and hanging out in a (mostly platonic) way that felt very familiar to my generation but at times baffled our parents. Gay pride was a common feature on campuses, but few of my peers had been openly out in high school and a “don’t ask, don’t tell” military policy was still considered progressive. And when Ellen DeGeneres came out on her show in 1997, it was still a big media event.
Of course, the students I teach now are already of a different era. They grew up hearing public discussions about the President receiving oral sex from an intern in the oval office, learned that celebrity can be reached by the “leak” of a sex tape, and laughed at bawdy gay sex jokes on “Will and Grace.” They can have “it’s complicated” Facebook statuses, personal experience with “sexting,” and be active in gay marriage debates. And it doesn’t stop there: in the coming years, I’ll encounter a generation that as children flipped through Ellen and Portia’s beautiful wedding photos on the cover of People magazine, heard Senator Scott Brown publicly reveal his childhood sexual abuse, watched Kurt and Blaine’s big, very real kiss on “Glee,” and, if novelist Gary Shteyngart is to be believed, unselfconsciously wear transparent pants.
So what do these changes mean for teaching rape law? In my experience, it means that I find myself increasingly dissatisfied with the hetero-normativity of the debates that I lead in class, and that increasingly my students are too. I have noticed that I tend to set up discussions of rape that inevitably fall into the same pattern: I acknowledge the existence of other kinds of rape, but tell students that we’ll focus on male-female rape given its prevalence. Then I proceed to replicate a whole range of gendered assumptions about rape: that fault lines occur because, consistent with cultural clues, men pursue aggressively and women demur; explore whether women’s failures to resist or vocalize opposition are byproducts of women’s socialization; talk about power; elaborate hypotheticals with slimy bosses and pushy boyfriends, and so on.
Yet as each year goes by, and each class impresses me with the diverse and divergent range of expectations and experiences that students bring to the discussion, I find my assumptions fail to speak to this generation’s expectations and experiences of both wanted and unwanted sex. By and large, my students start from places that I never took for granted: that women are sexual beings with their own desires, that what one wears or how one acts might suggest their sexual availability but does not decide it, and that “nice” girls (and boys) do all sorts of things. They seem more willing to view men not just as predators out to seduce in any way possible, but as possessing their own complicated emotions and sexual identities. And they see both women and men as operating within a larger theater of sexual expectations: a culture in which one night stands aren’t necessarily freighted with moral judgment, exploration is less risqué, same-sex relationships can be as “vanilla” or outré as heterosexual ones, and there exists greater fluidity in gender roles. I’m not saying that they are in a whole new world from the one that I came of age in, or even that there is a unitary sentiment of an identifiable kind, but there are significant differences between many of their experiences and mine.
Enter I. Bennett Capers’s extraordinary new article, Real Rape Too. His goal, he writes, is “to bring male rape out of the footnote and into the text.” He notes that “[R]ape law has been gendered for too long. Originally, it was gendered in a way that tilted the scales to benefit men: men as fathers, men as husbands, men as rapists. Feminists were right to point out the sexism inherent in traditional rape laws in this country. Though many . . . were wrong to view rape solely as a mechanism for male domination of women….[T]he real problem is this: in arguing for reform, many feminist scholars have inadvertently legitimized and contributed to the very gender distinctions of which they have been so critical. In response to one form of subordination, they have entrenched another.”
Capers goes on to explore the phenomenon of male-on-male rape. As might be expected, he devotes significant attention to the problem of prison rape and the ways in which it is either ignored or else presented as a joke, a threat, or a deserved extralegal punishment. But, most importantly to my mind, he also discusses male rape outside of the prison context, deftly illustrating the ways in which we as a society try to avoid calling male rape “rape,” by instead labeling it “police brutality” (Abner Louima), or “hate crimes” propelled by homophobia (the recent incidents in the Bronx), or “hazing” (fraternities, military). Indeed, Capers criticizes the law for being candid about the possibility of male rape in only two contexts: to provide a provocation defense to killers rebuffing homosexual advances, and to tacitly approve of using the threat of prison rape as a coercive tool for law enforcement agents and prosecutors seeking to extract confessions or pleas.
To be clear, Capers’s claim is not that male-on-male rape is the dominant form of sexual violence in our society (although he does cite statistics that show it to be more prevalent than suggested by its footnote status, especially if one considers the strong likelihood that male rapes are equally if not more underreported than their male-female counterparts.) Rather, his point is to call attention to the ways in which acknowledging male rape might help elucidate understandings of rape in general. To give just a few examples– he cites research that suggests that some male rape victims respond with the same kinds of “frozen helplessness” as do some female victims. He underscores the racialized rhetoric of prison rape, which calls to mind both the historical disregard of the rape of black women as well as the specter of white women raped by black men. And just as female rape victims worry about coming forward, fearing stigma and criticism for “asking for it,” so too are male victims reluctant to report out of concern of being labeled gay (whether correctly or incorrectly).
Capers closes by suggesting some immediate reforms: better policing and prosecution, better data collection, and even consideration of the risk of prison rape in sentencing. But the real insights of the article are in his exhortations to rethink rape law without reading out the experiences of male victims. For instance, Capers notes that most male-male rapists identify as heterosexual, which seems to affirm the longstanding feminist claim that rape is a crime of violence and power, not simple sexual desire. Likewise, concepts like force, resistance, and nonconsent become less about privileging the experiences of women than about understanding the nature of unwanted sexual intimacy. Consider the feminist project of defining rape to include “softer” forms of coercive power. In an environment that encourages women’s sexual aggression, not to mention economic and professional power, isn’t it only natural that we might expect our students to sense some dissonance in discussions that frame the dynamic as though it were impossible for men to feel trapped by the same kinds of pressures? And if we don’t acknowledge that possibility, isn’t it only natural for men to think that if it’s not rape when they engage in sexual activity to appease a boss or avoid the ridicule of peers or the disdain of a partner, then why should it be when women do the same?
In this respect, I was reminded of a lunch that I recently attended, at which participants intimately familiar with the issue were talking about the flak that (now Justice) Ruth Bader Ginsburg received from gender-equality advocates for occasionally representing men’s equality interests (for example, a widower’s equal right to receive social security benefits). The point was that what was not obvious to many feminists then is perhaps more obvious now: that there will be no true equality for women without fundamentally rethinking what it means to be a man. Whether in the domestic, professional, or sexual sphere, redefining the feminine is itself not enough; we must also redefine the masculine. With regard to the law of rape, then, Capers’s Real Rape Too is exceedingly welcome, if long overdue.
May 23, 2011 Tom Gallanistrustest
James Edelman,
When Do Fiduciary Duties Arise?, 126
Law Q. Rev. 302 (2010), available at
SSRN.
Observers with a transatlantic lens will readily notice that law professors in England take legal doctrine seriously. At the elite law faculties in Cambridge, Oxford, and London, the sophisticated study of doctrine thrives and is highly respected. The contrast with the modern legal academy in the United States is striking. For example, how many U.S. law professors write or teach in the field of restitution? The American Law Institute has just completed a remarkable Restatement (Third) of the Law of Restitution and Unjust Enrichment, yet the subject is largely, though not entirely, absent from our classrooms and student-edited law reviews. And restitution is not the only example. Consider the trenchant observations of Professor John Langbein:
Legal doctrinal writing [in the United States has]… declined precipitously. A good way to see what has happened is simply to compare the law reviews for then and now. I recently had occasion to check something in the 1967-1968 Yale Law Journal, where I noticed a three-part article on federal tax liens. I think you’d probably have to establish your own law review today in order to publish a three-part article on tax liens. The current diet in the leading journals is mostly high falutin’ constitutional law and theory, gender and racial issues, and law-and-economics. Doctrinal analysis is disfavored, and a good rule of thumb is that the ‘better’ the journal the less doctrinal scholarship it will publish.
A fascinating English study of doctrine recently crossed my desk: James Edelman’s article on “When Do Fiduciary Duties Arise?” It appeared in the prestigious and peer-edited Law Quarterly Review. The author teaches at Oxford, where he is Professor of the Law of Obligations. (If only donors to U.S. law schools would endow such chairs!)
The article begins by explaining that “[t]he classic English exposition of the fiduciary concept has relied upon the ‘status’ of the defendant” (p. 304). Over time, however, as the categories of fiduciaries expanded beyond the prototypical example of a trustee to encompass the recognition of fiduciary obligations “despite the absence of any custody of property” (p. 304) — for example between lawyer and client, doctor and patient, and parent and child — the status-based understanding of a fiduciary lost “any real explanatory power” (p. 304).
Professor Edelman proposes a different understanding of the basis of fiduciary duty. In his formulation, fiduciary duties are simply particular terms which are expressed or implied in voluntary (contractual or non-contractual) undertakings (see pp. 302, 306). The duties are not imposed externally by law, nor do they arise by virtue of the fiduciary’s status or relationship. Professor Edelman quotes approvingly Professor Paul Finn (now Justice Finn of the Federal Court of Australia): “a person ‘is not subject to fiduciary obligations because he is a fiduciary; it is because he is subject to them that he is a fiduciary’” (p. 316, quoting P.D. Finn, Fiduciary Obligations 2 (Sydney: Law Book Co. 1977[/note].
The body of the article expands on Professor Edelman’s argument by exploring the basis of fiduciary obligation in voluntary undertakings, and the terms that are expressed or implied in such undertakings. Here Professor Edelman locates the four core duties of a fiduciary: (1) to avoid actual or potential conflict with the duties owed to the principal (p. 318), (2) to avoid profiting from the relationship without the principal’s consent (p. 319), (3) to act in the beneficiary’s best interests (p. 321), and (4) to perform duties in good faith (p. 323). As Professor Edelman emphasizes, however, the scope of the fiduciary obligation will depend on the particular circumstances of the undertaking. Indeed, this is why he argues that his theory of fiduciary duty is superior. In his words, “if we persist in seeing fiduciary obligations as imposed by law, and dependent upon conceptions of status, the quest to understand and explain why different fiduciaries owe different duties will remain an impossible task” (p. 326).
The article is stimulating and thought-provoking. Moreover, this short summary of the article does not fully capture the significant extent to which Professor Edelman’s analysis is rooted in the English case-law and the scholarly literature produced by English academics on the nature of the fiduciary obligation. It is a subject that English judges and professors take seriously.
This American reader does have a few quibbles. One is a concern that in seeking a general theory of fiduciary duty, Professor Edelman may be giving insufficient recognition to the nature of the fiduciary obligation in the particular context of the trust, where the property-based (rather than undertaking-based) theory of fiduciary duty predominates in English law. The property-based theory of the trust is also gaining more recognition in American law. On this, see my forthcoming article on The New Direction of American Trust Law, in 97 Iowa L. Rev. (2011) (based on my Shirley A. Webster Lecture in Wealth Transfer Law). Another quibble is that I would have welcomed some discussion of the constructive trust, wherein obligations arise by operation of law rather than by virtue of an undertaking.
But these are minor quibbles. Professor Edelman’s article is well worth reading and I recommend it highly.
May 19, 2011 Paul Ohmcyber
Derek E. Bambauer,
Conundrum, 96
Minn. L. Rev. ____ (forthcoming 2012), available at
SSRN.
It is rare to find satisfying cybersecurity scholarship. This is not the fault of the talented scholars who have written in this field. I am a fan of the work of many who have tried to lead us to legal and geopolitical solutions to the problems of viruses, worms, botnets, cyberwar, and cyberterrorism. But these individuals have had their considerable talents stymied by cybersecurity’s fundamental knowledge problems. To make a useful contribution, an author must understand technical concepts famous for their complexity, from TCP/IP to BGP, and be able to untangle complex relationships like the ones between the FBI and NSA and the United States and China. Even worse, cybersecurity scholars can never know whether they have the details right, because these topics are shrouded in layers of official and de facto secrecy.
For these reasons, I have never felt entirely satisfied by a single work about cybersecurity, at least not until now. Derek Bambauer has written a fine article about this topic entitled Conundrum, available on SSRN and forthcoming in the Minnesota Law Review. This useful article points the way to a more interesting and more useful new way forward for cybersecurity scholarship and discourse.
Reviewing the state of cybersecurity scholarship, Bambauer helpfully diagnoses an underappreciated narrowness to past approaches: scholars and policymakers have too often treated cybersecurity as a problem of infrastructure alone. They focus only on macro-level, technological concerns, asking questions like how can we detect the source of a cyberattack? how easily can we quarantine a troublesome part of the network? and how well do domestic and international law provide tools to bring to justice a cyberterrorist or cyberwarrior?
As Bambauer demonstrates, this narrow focus pushes scholars to adopt correspondingly narrow legal and political frames, meaning cybersecurity is seen primarily as best addressed with “well-established, comfortable, yet poorly-fitting models from criminal law, national security law, and military law.” Id. at 10. Solutions built upon these frames focus, to the exclusion of almost anything else, on preventing, detecting, and stopping cyberthreats, which means they lead almost inexorably to calls to “fix the attribution problem” online, calls to bolt on some new protocol to the Internet to destroy the network’s inherent untraceability. Not only are these solutions never likely to come to pass, but also if they ever did, they would strike a blow to things we value, like generativity, privacy, and the ability to resist dictators and tyrants.
Bambauer breaks free of these narrow frames by connecting cybersecurity to information theory. He peels away the hard shells surrounding the fiber-optic cables that comprise our international infrastructure, to reveal their delightful chewy centers, the communications that we’re trying to protect. This move makes enormous sense. After all, we are not protecting cables because we like cables but instead, we are trying to ensure that after a crippling cyberattack, we can still send email messages, text messages, and telephone calls, and access websites, databases, and control systems.
This is a wise move because it allows Bambauer to connect cybersecurity to a rich intellectual history, from Claude Shannon to George Akerloff, Joseph Stiglitz, Michael Spence, and beyond. Building on the work of these thinkers, Bambauer asks a critical question that too often goes unanswered in cybersecurity debates: what exactly are we trying to protect? To this essential and underexplored question, he provides three answers: access, alteration, and integrity.
Technical experts in information security won’t be very impressed with the novelty of this list, as it echoes the venerable information security triad, confidentiality, integrity, and availability. But Bambauer helps us realize that non-technical experts in law and policy have been proposing solutions that protect these goals only indirectly. Attribution allows us to trace the source of an attack—except when it doesn’t—which helps us find, stop, and bring to justice our attackers—except when we can’t—which deters others thereby making our network safer—except when it won’t.
Bambauer’s singular focus on information allows him to find much more direct and narrow ways to protect access, alteration, and integrity, proposals that sound very different than those that have been proposed before. His guiding principle is redundancy. (He calls it inefficiency, but more on that in a minute.) Data and networks should be rendered more redundant than an unregulated market would produce. As a tenant of national and international policy, we should encourage and sometimes mandate technological redundancy, forcing businesses by regulation to create and disperse more copies of their data and to establish more network interconnections than they would otherwise choose, perhaps paid for by government subsidy.
This is a sound prescription, and we should focus our energy on ways to recover quickly from an attack rather than think only about prevention or retaliation. What I like most about this focus is it helps cure cybersecurity’s knowledge problem, by focusing our attention more on facts that are readily available—how interconnected are the nation’s networks and critical data centers?—and less on facts that we civilians can never know—how powerful are China’s infowar capabilities?
The article, of course, isn’t perfect. First, when Bambauer talks of redundancy, he uses the term inefficiency. He does this, I think, to suggest that his proposals are counter-intuitive and maybe even radical; it seems a heresy of the first order to argue for inefficiency in this law-and-economics-drenched age. But as he himself notes throughout his paper, computer security experts have recognized the importance of redundant systems for decades. The Internet itself was in part architected on the principle of robustness through redundant links. Bambauer isn’t being a radical here, he is simply importing neglected principles from information security theory, principles for too long underappreciated by legal scholars and policymakers. By choosing the surprising term over the conventional one, Bambauer obscures his contribution.
Second, Bambauer is wrong if he suggests that the solution to cybersecurity will be found in information theory alone. Criminal law, national security law, and military law must play a role, and the “problem of attribution” isn’t irrelevant.
Despite these mostly cosmetic flaws, the important lesson of the article is that we need to think of cybersecurity as a problem we should view through two different lenses. But there is no reason to confine this lesson solely to cybersecurity. This article should help us remember that every cyberlaw policy dispute can be seen through the same dual lenses, one focused on infrastructure and the other on content and communications. This echoes but expands upon Orin Kerr’s important article about the “internal” and “external” views of cyberlaw. Orin S. Kerr, The Problem of Perspective in Internet Law, 91 Geo. L.J. 357 (2003). From net neutrality, to Wikileaks, to online privacy, to whatever we are worrying about tomorrow, we should always view our debates through these two lenses, the infrastructural and the informational, the technological and the human, the network and the social. Two lenses give us the stereoscopic vision to make better sense of cybersecurity, Bambauer convincingly demonstrates; it can probably do the same for many other great problems of the day.
May 16, 2011 Christopher Sprigmanip
David Fagundes,
Talk Derby to Me: Emergent Intellectual Property Norms Governing Roller Derby Pseudonyms (forthcoming
Tex. L. Rev.), available at
SSRN.
The orthodox justification for patent and copyright laws, at least in the United States, is utilitarian: that is, both sets of legal rules are premised on the theory that only by rewarding creators with special property rights can we ensure that creations get created.
Viewed in the abstract, who could argue otherwise? Both technological innovations and artistic works are often difficult to create but easy to copy. Absent strong property rights, copyists will free ride on the efforts of creators. This, in turn, discourages investment in new inventions and creations. In short, copying stifles innovation – and therefore innovation requires legal intervention in the form of property rights. Right?
Well . . . maybe. Recently, a number of economists and legal scholars have pointed out a number of instances in which significant acts of creativity occur over long periods of time but without, or with comparatively little, IP law. Back in 2005, Kal Raustiala and I wrote a paper about the fashion industry, which produces new apparel designs at a fevered pace with nearly no copyright protection. Jonathan Barnett and Scott Hemphill and Jeannie Suk offer somewhat different explanations for the fashion industry’s longstanding practice of innovating without IP. The Hemphill/Suk paper argues that perhaps the fashion industry would be better off if we introduced some narrow copyright-like protection against identical or nearly identical copies, but all agree that the best innovation policy is to largely leave the fashion industry free to create the looser “inspired by” derivative works that constitute so much of the industry’s current output and whose existence would be threatened by the introduction of the standard rules of copyright law.
Nor is fashion the only creative community that innovates without IP. In a study of French chefs, Emanuelle Fauchart and Eric von Hippel showed that innovation in fine cuisine occurs without IP protection for virtually all recipes. Christopher Buccafusco bolstered this finding with a paper focusing on American chefs. Other academics have studied a variety of smaller communities where creators innovate without – or with little – formal IP. Jacob Loshin has shown how magicians create new magic tricks without resort to IP law. A qualitative empirical study I co-authored with Dotan Oliar describes how stand-up comedians protect their investment in new jokes and police joke thievery without the aid of formal IP law. Comedians turn instead to a set of IP norms that they’ve formulated for themselves, and which they impose, collectively, on the community of stand-ups.
Taken together, the recent scholarship, of which the papers cited above are only a sample, is beginning to sketch out a picture of what many now refer to as “IP’s negative space.” By this term we mean those creative endeavors which could be covered fully by IP law, but, for some reason (often as the result of a doctrinal quirk or historical accident) are not. Studying IP’s negative space is important, because if we see creativity thriving without IP’s intervention, we should look more closely to understand the conditions that allow low-IP innovation within that particular creative community. And once we understand how particular creative forms thrive in a low-IP environment, we might reasonably ask whether the same or similar dynamics might suffice to spark innovation in markets typically characterized by heavy reliance on IP. This is not to say that the negative space scholarship provides a direct argument for stripping IP protections from music, or motion pictures, or pharmaceuticals. But understanding the ways in which creativity thrives without IP will at least help us evaluate the next (inevitable) plea from some creative industry or another for more IP protection. It may also help us to understand how to re-organize creative industries, like music, for which an IP-based response to piracy has not worked.
David Fagundes’ new paper contributes to the “negative space” scholarship. His subject is an unlikely one: roller derby – an all-female amateur competition mixing sport with spectacle, and set to a punk music soundtrack. Derby, which has roots as far back as the 1880s, is enjoying something of a present-day renaissance. There are now many thousands of skaters around the U.S. and the world competing in more than 400 regional roller derby leagues.
Despite its recent growth, derby remains amateur and “alternative”, and its participants are determined (so far) to remain so. The absence of commercial ambitions may lead one to think that property rights, including IP rights, are not relevant. But that would be a mistake. It turns out that derby girls (their preferred moniker) care a lot about a particular form of IP. Derby girls want exclusive rights in their “skate names,” fanciful tags like Tara Armov, Soylent Mean, Paris Killton, Sparkle Plenty, Fighty Almighty, Tae Kwon Ho, Mila Minute, and Dread Pirate Robyn, that skaters adopt to identify themselves to their fans, sometimes to keep their derby participation secret from disapproving relations or employers, and as a form of self-expression. Derby girls are attached to their skate names. So attached that they don’t want to share their name with any other skater, anywhere. And name exclusivity is indeed the usual rule in derby. How do the derby girls do it?
One thing they don’t do is resort to trademark law. Derby girls have instead developed a strong private norm of name uniqueness, a norm which is facilitated by the all-important Master Roster, a privately-administered list of skate names and their owners which was first distributed in 2005 and is now available and searchable online – see for yourself at http://www.twoevils.org/rollergirls/. The Master Roster functions as a sort of private trademark registry, where registrsation gives priority, and priority is equivalent to a right of exclusive use. And the norms that accompany it allow the Master Roster to stand in for the formal trademark law. The result is a cheap and efficient system of private IP regulation tailored to the requirements of the derby girls. Fagundes explains how the system works:
Three core principles govern derby-name regulation. First is a uniqueness requirement: Only one skater can skate under a given name. The second instantiates the idea of priority: Where two names are identical or excessively similar, the skater with the earlier claim to the name has the right to use it. The third creates elemental standards for resolving overlapping name conflicts: Where two names are reasonably similar, the second skater must ask the first skater for permission to use the name. This permission must be in writing and submitted to the Master Roster‘s administrators in order to authenticate it. Names that are very similar to preexisting names but that have been approved via written permission by the senior skater are listed on the Master Roster with the note “(cleared)”.
The system that skaters have developed for themselves is surprisingly complex, and yet apparently effective. New skaters are required to complete a probationary period before they may register a skate name. The Master Roster contains an automatic name checker that advises if a name sought to be registered is too similar to a registered name. And the administrator of the Master Roster has discretion to refuse to register a name if she determines it is too similar to a registered name. When skaters retire, they are asked to inform the Master Roster’s administrator, so that their name can be made available again for use.
Moreover, the Master Roster is backed by a related set of informal but powerful enforcement norms. Enforcement is done mostly via personal contact between skaters, and is backed with the threat of social disapproval by skaters of those who fail to comply with the naming rules. As one skater told Fagundes:
Registering with two_evils [i.e., the Master Roster] is voluntary … but there are rules as to what can be registered. It‘s not just a free-for-all [. . .] send your name in and it‘s yours, it has to not conflict with one that‘s already on the list. And while there are no derby police that are going to tell you that you can‘t skate under a certain name, it‘s kinda like bathing. Bathing is voluntary and no one can MAKE you bathe, but if you choose not to bathe, there will be consequences from your community. Similarly, registering your name is voluntary, but there are consequences from the derby community if you choose not to register your name because you‘re using a duplicate name.
As Fagundes explains, membership in the skating community is a central value of derby for most derby girls. The result is widespread compliance, and few notable and persistent naming disputes. But, in the few cases that reputational sanctions and shaming don’t work, there’s always violence. Violence is a more credible potential sanction in derby because the sport itself is violent and thus retaliation can be secreted within the normal flow of a derby bout. As one derby girl put it, “there‘s no laws in place – you don‘t even have to register your derby name – it‘s COURTESY. Ref might not see you smash me in the face – but I know, and trust me baby, I‘m comin for ya.” Added another, “I totally agree with the not stealing/copying of names… Someone once said imitation was the best form of flattery… So flatter me and then let me kick your a$$ (sic).”
One important question remains: Why do derby girls get so bent out of shape about imitation of their skate names? The names don’t have any market value, and they don’t cost anything to acquire. The puzzle deepens when we see derby girls objecting to use of a similar skate name even when the later user competes in a derby league hundreds or even thousands of miles away. Competition in roller derby is regional, so why would a skater in Charlottesville, Virginia care about later use of a similar name in Los Angeles, California? Fagundes has an answer:
Derby girls care about maintaining the uniqueness of their aliases for three primary reasons. First, names in derby function as trademarks do in the commercial world: they ensure that skaters will not be confused with one another, and that the viewing public can tell skaters apart . . . . Second, and probably more importantly, though, skaters care about the uniqueness of their names despite their lack of discernible market value because skate names are a repository for the identities that skaters work so hard to create in a subculture that is profoundly important to them . . . . Third, . . . [f]or many skaters, then, the best individual choice from a purely selfish perspective would be to deviate from the name-uniqueness norm and grab whatever name they want (even if it‘s already in use), while everyone else respects the rules (so that there‘s no threat of someone infringing the defecting skater‘s chosen name). But in practical terms, defection tends to be a bad strategy because it threatens a cascade of noncompliance that could lead to countless people sharing your name and to general chaos and dissension in the derby world. Derby girls tempted to defect thus still tend to comply with the derby-name uniqueness norm as a second-best strategy that assures them that while they may not be able to have their ideal name, they can at least be confident that when they find a desirable, unclaimed name, it will be theirs alone.
The result is a (so far) stable system of private norms that provide an effective stand-in for formal trademark law and protect the value that derby girls place on unique skate names. And although this may sound similar to the story of social norms regulating copying by chefs and stand-up comics, derby is, Fagundes insists, importantly different. Formal copyright law is, for doctrinal and practical reasons, not available to protect comedians’ jokes or chefs’ recipes. And yet trademark law, Fagundes argues, could provide effective protection for skate names. Derby girls turn to private ordering because they choose to, not because they must. Fagundes says that his account of private ordering in derby is thus unlike the “legal centralist” accounts of norms in stand-up comedy and cuisine. Those accounts posit that norms arise where law cannot govern. But in the case of derby, norms have been freely chosen over law.
I’m not sure that this last point is correct, because derby girls who want to use formal trademark law to protect their skate names face at least one potentially important limitation. Under trademark law’s Dawn Donut rule, an owner of a registered mark cannot enjoin a good-faith junior user doing business solely within a market geographically distinct from the senior user’s and which the senior user has no plans to enter. Derby is a regional enterprise, and derby girls would therefore face substantial barriers to achieving more than local protection via formal law. But derby girls want to own their names, and they want them to be unique not just in their local area, but across the world of derby. For this reason, formal trademark law cannot give them what they’ve achieved via private ordering. (There is also a use in commerce issue, but I agree with Fagundes that derby girls can likely figure out a way to satisfy this requirement of trademark law.)
In any event, this is a minor quibble with a very valuable – and fun – paper. Highly recommended.
May 12, 2011 Lee Epsteincourtslaw
Jeffrey A. Segal, Chad Westerland & Stefanie A. Lindquist,
Congress, the Supreme Court, and Judicial Review: Testing a Constitutional Separation of Powers Model,
55 Am. J. of Poli. Sci. 89 (2011).
For decades now, scholars have debated whether the Supreme Court takes into account the preferences and likely action of the contemporaneous Congress when it interprets federal statutes. Forcefully represented by Jeffrey A. Segal & Harold J. Spaeth (2002), attitudinalists argue that the Justices vote on the basis of their ideological attitudes vis-à-vis the facts of cases. Period. As they famously declared, “Rehnquist voted the way he does because he was extremely conservative; Marshall voted the way he did because he was extremely liberal.” Congressional preferences have little role to play in this analysis (and besides, as Segal [1997] demonstrated, the legislative process almost never constrains the Justices from voting sincerely). Spiller (with various co-authors), Knight, and I have taken exception to this account (e.g., Bergara, Richman & Spiller 2003; Gely & Spiller 1990; Spiller & Gely 1992; Epstein & Knight 1998). To us, policy-seeking Justices must engage in “dynamic” statutory interpretation (Eskridge 1991). If they do not, they run the risk of Congress overriding their decisions—in which case their least favored interpretation may become law.
Debates over the nature of statutory interpretation will inevitably continue. Where less controversy exists is over constitutional interpretation. Many scholars argue that the Supreme Court need not pay too much attention to Congress when it interprets the Constitution because (1) Congress can’t override its constitutional decisions by a simple majority and (2) other weapons to attack the Court (e.g., jurisdiction stripping, impeachment, budget reductions) are almost never deployed. But ”many” is not all. Meernik & Ignagni (1997), for example, partially refute (1). Their data show that while the Court may say that Congress can’t overturn constitutional decisions, Congress isn’t listening. Between 1954 and 1990, it overturned about forty constitutional decisions by statute. As for (2), Knight, Martin, and I (2001) have made the case that Congress almost never needs to punish the Court precisely because the Justices attend to congressional preferences and interpret accordingly.
That Segal would attempt to assess the role of Congress in the Court’s interpretation of the Constitution was inevitable; his fingerprints are all over the study of judicial behavior. That he (with his co-authors) would be the first to offer systematic evidence of the constraints Congress imposes on the Court, well, that’s downright delicious–especially to those of us–many close friends!–who have long debated the matter with him.
Interestingly, though, according to the authors, the real constraint does not come from (1). Their analysis suggests that the Court is not especially worried about Congress overriding its constitutional decisions. But the data do show that the Court responds to (2)—the possibility of institutional retaliation by Congress. As the ideological distance between the median Justice and the house of Congress closest to her increases, the probability that the Court will invalidate a federal law declines significantly and substantially. No wonder Congress rarely strips the Court’s jurisdiction, reduces its budget, impeaches its members, or otherwise seeks to undermine its institutional legitimacy. The Justices sense danger and retreat.
Characterized in this way, the results are not inconsistent with Segal’s earlier work on interpreting federal laws: in neither the statutory nor the constitutional context do the Justices seem especially worried about congressional overrides or modifications of particular decisions. On the other hand, this latest effort should raise serious concerns about the sufficiency of any account that paints the Justices as unconstrained ideological voters.
May 9, 2011 Donald Tobintax
Ellen Aprill,
Regulating the Political Speech of Noncharitable Exempt Organizations After Citizens United, Loyola-LA Legal Studies Paper No. 2010-57 (2010),
available at SSRN.
Tax Law and Election Law are now unlikely bedfellows. Political campaigning is often conducted through tax-exempt entities, and the tax code has become an important mechanism for regulating political campaign entities. Ellen Aprill, in her recent article entitled Regulating the Political Speech of Noncharitable Exempt Organizations After Citizens United, explores the constitutionality of regulating tax-exempt organizations post the Supreme Court’s recent decision in Citizens United, which overturned existing rules prohibiting corporations from making contributions to political campaigns. Aprill points out that dicta in Citizens United could provide justification for overturning some of the provisions regulating tax-exempt entities and their involvement in political campaigns. In this piece, Aprill concludes that those provisions are constitutional, and suggests some further regulation that would strengthen some existing weakness in the current regulatory scheme.
Aprill starts with a discussion of the current regulatory framework that applies to tax-exempt organizations. In short, the Code provides certain limitations on the campaign and lobbying activities of tax-exempt organizations. Courts and scholars have generally justified these regulations based on the notion that an entity was not entitled to tax-exempt status and that Congress therefore had the power to define the contours of the tax-exemption. Thus, 501(c)(3) organizations (mainly charities and educational institutions) can be prohibited from intervening in a political campaign, 501(c)(4) social welfare organizations must have social welfare as their tax-exempt purpose, and 527 political organizations can be required to disclose contributions and expenditures. While some scholars have questioned these regulations, I, and others, and in my view the Supreme Court, have upheld these types of regulations. Language in Citizens United indicating that the Congress cannot condition corporate status on a prohibition on campaign contributions by corporations calls into question the constitutionality of the restrictions on tax-exempt organizations. If Congress cannot condition corporate status on a corporation’s agreement not to make political contributions, then can Congress place restrictions on the political activities of tax-exempt organizations as a condition of their qualifying for exempt status.
The regulation of First Amendment activities of tax-exempt organizations presents a classic conflict between two existing constitutional doctrines – the “greater power doctrine” and the “unconstitutional conditions” doctrine. Under the greater power doctrine, it is constitutional for the Government to condition the grant of government benefit on the recipient’s willingness to comply with restrictions that otherwise might be unconstitutional. The “unconstitutional condition” doctrine provides that the Government cannot condition the receipt of a benefit on the requirement that an organization give up a constitutional right.
Aprill thoroughly details pre-Citizens United case law and examines the application of the unconstitutional conditions and greater power doctrines in the tax-exempt context. The cornerstone cases, Regan v. Taxation with Representation, 461 U.S. 540 (1983) and Cammarano v. Commissioner, 358 U.S. 498 (1959) provide support for the notion that the Congress can regulate tax-exempt entities. In Cammarano, the court upheld a provision that denied an ordinary and necessary business expense deduction for amounts spent to defeat an initiative on liquor sales. The Court rejected taxpayer’s argument holding that the denial of the deduction was merely the denial of a subsidy and therefore not unconstitutional. In Taxation with Representation, the Court examined the limitation in 501(c)(3) that prohibited 501(c)(3) organizations from engaging in a substantial amount of lobbying. The Court held that an organization was not entitled to 501(c)(3) status and that Congress could condition tax-exempt status on the requirement that organizations not engage in a substantial amount of lobbying. The concurrence in the case also found it important that 501(c)(3) organizations could form separate social welfare organizations that could engage in lobbying.
The question is whether language in Citizens United discussing the conditioning of corporate status on the corporate campaign contribution ban was a signal that the Court viewed Taxation with Representation and its progeny in disfavor. In Citizens United the Court states, quoting Justice Scalia’s dissent in Austin, “It is rudimentary that the State cannot exact as the price of those special advantages [granted corporations such as limited liability and perpetual life] the forfeiture of First Amendment Rights.” 494 U.S. 653, 680 (2010). Aprill notes, however, that the source of this quote is Speiser v. Randall, 357 U.S. 513 (1958) and that Speiser was distinguished in Taxation with Representation, and that Speiser simply represents the unconstitutional conditions doctrine and the premise that Congress cannot use its power to penalize someone for exercising a constitutional right. In other words, the quote in Citizens United should not be read as changing pre-Citizens United jurisprudence in this area. Aprill then traces the case law as well as whether the Government is actually providing a benefit to these tax-exempt organizations. Aprill ultimately concludes that the disclosure requirements under 527 and implicitly the restrictions in (c)(3) are likely constitutional. Ultimately she concludes that 501(c)(3) organizations have an alternative channel for political intervention, and that the burdens on 527 organizations are less burdensome than the disclosure requirements upheld in Citizens United.
Aprill also reminds us, however, that the disclosure provisions in section 527 may be constitutional even without reference to Taxpayers with Representation and the subsidy-based theory. She notes “in light of the statement in Citizens United that an important government interest supports disclosure provisions under exacting scrutiny even for speech that is not the functional equivalent of express advocacy it may be that an elaborate justification on the basis of TWR subsidy theory for the registration and disclosure requirements that sponsors of the amendments to section 527 thought necessary is no longer required.” This reminder that straight up disclosure requirements, ones that do not rely on a subsidy theory, may be constitutional, is likely as important as her analysis of the greater powers and unconstitutional conditions doctrine. She provides an excellent path for examining both disclosure and other restrictions placed on tax-exempt organizations.
Finally, in the last part of her article, Aprill provides some suggestions for further regulation of tax-exempt organizations engaged in political advocacy or lobbying. Her suggestions are almost all “good government” suggestions and ones that will cut down on efforts to use tax-exempt organizations as a means of circumventing tax and campaign regulations. Her suggestions include:
1) Requiring (c)(4)s and possibly (c)(5)s and (c)(6)s to apply for exempt status and receive favorable determination in order to be treated as exempt. At the moment, the organizations have to file annual information returns but these annual returns come long after organizations have started their activities.
2) Creating a new category of tax-exempt organizations for organizations primarily interested in lobbying. At the moment, there is no such designation and most organizations that wish to engage in lobbying organize as (c)(4) social welfare organizations.
3) Increasing disclosure of contributors to tax-exempt organizations. Public disclosure is only required for 527 organizations. She suggests adding a simpler disclosure regime by requiring non-527 organizations to disclose the returns they file that includes information on large donors to the organization.
4) Taxing a non-profit’s expenditures on political advocacy in all instances. Under current law it is taxed if the organization also has investment income, but it is not taxed if the organization has not generated such income.
Aprill achieves much in her recent article. She grapples with some of the downstream impacts of Citizens United and sets out a path for how courts may interpret existing restrictions on tax-exempt organizations. She also sets out for broader discussion ways in which we can improve the current regulatory regime for tax-exempt organizations engaged in political campaigns. It is a wonderful read for anyone trying to figure out how tax-exempt organizations that engage in political advocacy are regulated and provides a nice starting point for further scholarship and debate on this issue.
May 6, 2011 Christopher Slobogincrim
Because books chapters tend to get less exposure, scholars and policymakers might easily miss this provocative revisitation of the substance-procedure distinction in criminal cases. Don Dripps begins his new look at this issue by recasting the traditional procedural dyad—usually dubbed inquisitorialism and adversarialism—into three distinct categories—rationalist, pluralist and reductionist. For Dripps, rationalism, which comes closest to the usual view of the European continent’s inquisitorial process, is “the rational discovery of the historical facts and the logical application of the substantive law to the facts so found.” Pluralism, more closely associated with the Anglo-American adversarial system, assumes that rationalism is just one of many values the criminal justice system might hope to achieve and generally not even the most important. Reductionism is the idea that “the substance-procedure distinction is illusory” because the applicable procedural structure allows decision-makers to ignore or at least minimize the influence of offense definitions and sentencing rules. (Pp. 410-11).
Using these categories Dripps examines the oft-discussed phenomenon of convergence, the fact that criminal systems around the world are slowly moving toward one another, with European systems in particular increasing lay participation and the use of exclusionary rules. From Dripps’ theoretical perspective, that movement is not surprising; rationalism and pluralism, he says, are much more compatible than is commonly thought. That is because either type of system will depart from a pure truth-finding mission if that mission “conflicts with the legality principle’s prohibition of extra-judicial institutional violence” or “conflicts with an extrinsic value that is very important and can be accommodated with minor damage to material proof.” (Pp. 422-23). Under the first exception, even the privilege against self-incrimination can be accepted by a rationalist to the extent it is understood as a means of ensuring that coercive interrogation practices do not become the principal means of gathering evidence. Other evidentiary limitations—the journalist privilege, the ability of witnesses to claim a right to silence, the courts’ authority to exclude an alleged sex offense victim’s sexual history—all protect important interests, usually without preventing the state or the defense from getting at the truth in some other way, and thus might be acceptable to rationalists, as well as pluralists, under the second exception. At the same time, pluralism’s commitment to all-lay decision-makers does not clearly undermine the search for truth. And its willingness to exclude illegally seized evidence, which does compromise that search, is counter-balanced by the pervasiveness of plea bargaining, which is in part the result of exclusionary pressures and features an inquisitorial bureaucrat (the prosecutor) who is only rarely subject to an“appeal” (to the jury), thus providing further evidence of convergence.
To Dripps, rationalism and pluralism are not even at significant odds in their attitude toward nullification. In addition to the negative aspect of the legality principle (which, as mentioned above, bars excessive government abuse), the rationalist adheres to a positive view of legality that requires conviction of those who are defined as guilty by statute. But pluralists, despite explicitly eschewing positive legality, are not that much different: their admittedly greater commitment to implementing extrinsic values through the criminal justice system does not go so far as to countenance charges and verdicts that fail to reflect the facts made relevant by statutory law.
This is where reductionism, with its conflation of substance and procedure, comes in. Reductionism threatens both rationalists and pluralists, because it views the substance of criminal law not as something declared by the legislature but as the result of procedural machinations. Its primary weapon is plea bargaining, where defendants intimate a desire for the cumbersome trial process in order to obtain legal verdicts that do not conform to the facts and where prosecutors over-charge and judges over-sentence to make sure negotiations take place. The dynamic by which defendants convert procedural rights into substantive windfalls is most pronounced in the United States, which represents the pinnacle of pluralism, but Dripps points out that many rationalist-leaning European systems permit its equivalent today. Thus, reductionism may be the real point of convergence in modern times.
Dripps finds this development troubling and trots out a number of solutions, many of which others have proffered as well: simplifying trial procedure to lessen the pressure on prosecutors; prohibiting waiver of procedural rights; legalizing plea bargaining in a way that requires development of clear, appealable charging criteria; formalizing the penalty for going to trial so that the coerciveness of bargaining is more transparent; and imposing constitutional or other limitations on the scope of criminal liability and sanctions in an effort to curb prosecutorial discretion. Dripps seems most drawn to the latter possibilities, because he believes that otherwise prosecutors will exercise increasingly greater power in ways that undermine both verdict accuracy and legality. Constructing a coherent theory of criminal law based on retribution, utilitarianism or some mix thereof and forcing decision-makers to apply it in a transparent fashion, Dripps argues, will reduce procedure’s modern tendency to sabotage the system’s ability to reflect material truth as to the either the precise crime committed or the sentence that ought to be imposed.
In a recent book, Juveniles at Risk: A Plea for Preventive Justice (Oxford University Press, 2011), Mark Fondacaro and I have accepted this challenge in the juvenile justice context. In that setting, our justificatory theory is individual prevention, so that once it is determined a crime has been committed the key decisions to be made are about risk and risk management, not culpability and punishment, and the due process clause, not the adversarial system envisioned by the Sixth and Fifth Amendments, would govern procedure. In this type of system, “private deals between the defense and the prosecution would not be possible . . ., since experts, monitored by a judge, would have to be involved in the risk-assessment and management process. While some efficacy would thereby be sacrificed, the slimmed-down trial process, together with the elimination of the right to silence, might more than make up for this loss (and, given its openness relative to the bargaining process, would also improve perceived fairness, if not reliability).” (P. 120). Because decision-makers—judges and risk experts—would be required to proceed in open court, substantive rules—defining the probability and degree of risk that permits intervention—would not be easy to disregard.
Dripps might not agree with these specific prescriptions, even if limited to the juvenile justice system. But they at least do not ignore the threat of reductionism, because they are based on a coherent theory of punishment and mandate a procedure that implements it. As Dripps concludes, “[t]hose who reject reductionism, whether we work on substance or procedure, should account for the terms of trade between the two that now prevail, either by explicitly bracketing the plea-bargaining problem or by explaining how our analyses improve our understanding, or our prescriptions might improve the practice, of the system in place.” (P. 432).
May 2, 2011 Gillian Metzgeradlaw
How do we structure an agency to be independent? Not surprisingly, the answer to that question depends on what we want the agency to be independent from. The traditional legal view, exemplified most recently by the Supreme Court’s decision in Free Enterprise Fund v. PCAOB, is that Congress intends independent agencies to be independent of the President and it achieves this goal primarily by imposing limiting the President’s power of removal. Not so fast, say Rachel Barkow, Lisa Bressman, and Robert Thompson. In two separate recent articles—one written before the Court handed down its decision and one after—these scholars argue that agency independence means both more and less than independence from the President.
Barkow begins her article by arguing that what often has motivated creation of independent agencies is not presidential insulation but fear of agency capture, which she defines as the desire to protect an agency from one-sided political pressure from the well-financed industry interests that the agency regulates. Barkow then assesses how well traditional indicia of independence—such as removal, multimember heads, bipartisan requirements, and exemption from OIRA regulatory review—help to limit capture. She concludes that these features provide important insulation but are often not sufficient to create an adequate buffer against one-sided interest group pressure. Instead, Barkow emphasizes the value of other structural mechanisms that have received less attention in discussions of agency independence: guaranteed agency funding, substantive expertise requirements and revolving door limits, relationships with other agencies and the states, and an agency’s ability to independently gather and disseminate information, provide congressional testimony, and represent itself in court. According to Barkow, these insulating features may be particularly helpful in equalizing the pressure that interest groups can otherwise bring to bear.
Bressman and Thompson also critique the traditional emphasis on removal and presidential insulation, but with an alternative aim: to challenge the binary division between independent and executive agencies. Focusing on financial regulation, an area where independent agencies are rife, they identify a number of mechanisms by which the President can have direct and formal involvement in policymaking, in particular agency consultation and collaboration requirements of the kind embodied in Dodd-Frank’s structural reforms. They argue not only that these mechanisms can translate into substantial presidential input into independent agency decisonmaking, but also that such input mechanisms are enough to satisfy political and constitutional demands for presidential control. Like Barkow, they emphasize a broader view of agency independence, one that focuses on developing expertise and the ability to resist short-term political pressures, and to rebut claims that independence undermines agency accountability.
In challenging traditional views of agency independence, both deepen legal academic views on the impact of institutional design. They also advance interdisciplinary exchange between law and political science about the forces behind agency structure, acknowledging the central role of politics at the same time as resisting reductionist accounts that view agency independence solely in terms of presidential-congressional struggles for influence. As interesting is the perspectives these articles bring to bear on recent congressional efforts to balance independence with more direct political accountability in the Dodd-Frank Wall Street Reform and Consumer Protection Act. Indeed, studying the operation of many of the measures enacted by Dodd-Frank—the new Financial Stability Oversight Council and Consumers’ Bureau, as well as the protections granted state regulation and enforcement—offers an unusual opportunity to test how well theoretical intuitions about agency structure play out in practice.
Apr 30, 2011 John Floodlegalpro
As an ethnographer I subscribe to Everett Hughes’s view:
I am suspicious of any method said to be the one and only. But among the methods I would recommend is the intensive, penetrating look with an imagination as lively and as sociological as it can be made. One of my basic assumptions is that if one quite clearly sees something happen once, it is almost certain to have happened again and again. The burden of proof is on those who claim a thing once seen is an exception; if they look hard, they may find it everywhere, although with some interesting differences in each case.
It is ethnography that enables us to go inside the black box. It is surprising then that the world of law is often neglected in the ethnographic milieu. Anthropologists engaged with it while studying kinship and exchange systems, seeming to take Durkheim’s idea that contract was at the base of the social division of labor. Yet one of the central features of the law is the court which is an alienating environment.
Thomas Scheffer and his colleagues decided to investigate the world of courts and they looked at American, German, Italian and English courts. Despite being social scientists and with some possessing legal training, they initially found the world of courts one which estranged them by making them feel unwelcome and awkward. How much of this was due to their naiveté and innocence we can only glimpse. Scheffer describes his initial encounter with court staff where he sat in the public gallery with his notebook. This “abnormal” conduct earned him the disapprobation of the court clerk and a move to the press gallery where writing was normally undertaken. It left him, however, with a poor view of the court.
Adversarial Case-Making takes on Scheffer’s journey through the arcane and esoteric world of the English Crown Court. In five chapters Scheffer attempts to make sense of the unworldly world of the court. His method is to take a series of slices in the activity of making a case. Although he cannot hope to provide a complete coverage, he tries to capture a series of moments that frame how lawyers engage in putting together and presenting cases. In Chapter 1 he examines the construction and failure of an alibi in an assault case. Chapter 3 looks at how expert testimonies are pitted against each other. The lawyer’s file and how it coordinates activity is the centre of attention in Chapter 5. In Chapter 7 the moralizing element is invoked as part of the learning process in the developing lawyer-client relationship. In the remaining three chapters Scheffer tries to theorize about his ethnography.
Scheffer starts with Kagan’s idealization of adversarialism as central to the US and UK courts where much of the case, especially in its preparation, is left to the lawyers. Adversarialism in its classic sense is in the UK less strident than the American. Scheffer points out another dimension to adversarialism, that of the case emerging and being formed over time. As it goes through the procedural steps, it acquires more material—depositions, reports, etc—that create its being.
The two main sites of action we encounter in the book are the courtroom and the lawyer’s office. They differ in that one is public and the other private: the files supply a conduit between the two, so they become almost the obverse and reverse of each other.
We can see this at work in the rise and fall of the alibi in the assault case in Chapter 1. For Scheffer the case has a career that is almost separate from its participants. In this case the assailant was alleged to have head-butted her victim which she denied in her police interviews by stating she was not present. When defense lawyers begin to countermand the prosecution’s case they look for means of undermining the allegations. Statements of non-presence by the accused quickly become co-opted into the process and so are integrated into the procedural memory of the case. As Scheffer simply states: “Linda presented a minimal, but complete alibi” (p. 7). The solicitor’s role is to turn the minimal into a coherent narrative that can be presented in court by the barrister. In this process the alibi is examined more deeply and its inadequacies become apparent. The defense team believed they had the support of a co-defendant who would reinforce Linda’s claim that she was elsewhere when the assault occurred. Unfortunately, the defense found a recording of a police interview with the co-defendant that clearly undermined their belief and led to the fall of the alibi. Even though the alibi made it into court, it came across as feeble and disappeared from the barrister’s final address to the court. The procedure in raising the alibi for the defense lays it open to attack, critique and eventual defeat if the opposition forces are sufficiently strong as they were in Linda’s case. For Scheffer adversarial case-making demands risk-taking and not all risks are foreseeable.
In Chapter 3 we are led into the middle of a case where the accused is charged with indecent assault and his defense is that he was sleep-walking and therefore not responsible for what occurred. Both the prosecution and defense present expert testimony from scientific experts in the field. And for Scheffer this is an important point that it is not the court that requires the expert witnesses but that the parties require them, nevertheless their testimony must be impartial and for the benefit of the court. Experts share similar knowledge bases and training: expertise is also a diplomatic achievement (p. 91). Taking this last point we see that the uncertainties inherent in expert testimony—discussing the general while trying to apply it to the particular—must always be insufficient for the court and so leaves ample space for judicial interpretation of the evidence given.
What do we learn from Scheffer’s study of case-making? It is complicated and complex. It is iterative and repetitive. It is confusing and arbitrary. It is co-production embedded in a history of procedure and convention. Scheffer relies much on the interaction order of the court proceedings to understand what is happening and to see how the parties are making sense of this order. Some of this can be accounted for by things: the way the court is laid out; the manner in which the case file is put together (the types of documents, their order); how stories are told. The division of labour reflects this order in that the solicitor remains close to the file while the barrister articulates the case in court. Taking Scheffer at his word:
Court, file, and story—together with other materials—facilitate the hearing. The hearing as it is…is not feasible by means of direct interaction only. The resources add a sense of stability, historicity, and predictability. They fix past event, specify possible futures and steady expectations….In short, they turn the gathering into a procedural event (p. 188).
Adversarial Case-Making is both an insightful and frustrating book. At times it is over-laden with burdensome theory. If theory is to assist the reader, it should clarify and explain not hinder. Scheffer’s use of the science and technology studies literature is one example of a theoretical enterprise that has done much to clarify the inner workings of institutions. The comparison between the work of laboratories and lawyers’ offices and courts does illuminate.
There are insights into the complexity of putting cases together. Scheffer is able to show us the messiness and partiality of the process and make us wonder how it manages to function at all. It is almost as if the procedure is designed to prevent resolution rather than bring it about. Ideally, the book should be read in combination with others. For example, Steve Bogira’s Courtroom 302 offers reportage of a year in a criminal court where we can view the process from start to finish. Scheffer’s is necessarily episodic probing into moments. For students of the legal process it will add to their knowledge and perhaps help them see how cases are formulated in a more thoroughgoing and analytical way.
Apr 29, 2011 Kunal Parkerlegalhist
This month, I would like to draw legal historians’ attention to an intriguing book, the late Cornelia Vismann’s Files: Law and Media Technology. Vismann (1961 – 2010) was a German legal historian and media theorist whose work needs, in my view, to be far better known among American legal scholars. I had the privilege of meeting Vismann once, years ago, at a conference in Cleveland. It was hard not to be impressed by her brilliance.
At its most basic, Files provides a history of, well, files: those ubiquitous, daunting, overwhelming, often crushingly tedious accompanists of law. Fiction has concerned itself occasionally with files—one thinks of famous works by Kafka and Melville—but academics (especially legal academics) have not often done so. We think of law in all kinds of ways—as a system of ideas, as a form of politics, as a means of exercising power, as a way of shaping social practice, as the troubled realization of justice—but not enough in terms of its materiality, its existence as sheaves of papers inserted into folders, as a forest of folders. And yet, for much of its history, law has been unimaginable without files of one kind or another.
It is a tribute to Vismann’s inventiveness as a scholar that she chose to make files objects of knowledge. She chose to do so, furthermore, through recourse to a range of scholarly techniques and perspectives. In the book, she is at once literary theorist, psychoanalyist, a science-and-technology studies (“STS”) scholar, historian, and legal philosopher. She offers us a series of “cuts,” as it were into the vast, unknown, history of files and filing techniques, showing us how different ways of processing information enabled different kinds of legal subjectivities. I, for one, knew little about the stakes of the technological shift from papyrus to parchment. Many legal historians, I imagine, will be similarly situated. This is a fascinating story, worth reading for its own intrinsic interest.
This challenging book will offer different things to different people. I make no claim to capture everything it has to offer. In what remains, accordingly, I will highlight just two of the issues raised by the book that speak to my own current intellectual preoccupations.
First, what is at stake in converting any particular object into an object of knowledge, as something to be framed, contextualized? One goal, I submit, is often to render that object contingent. This is clearly what Vismann does with files. Thanks to her book, we now know that files have, well, a history. And in showing that files have a history, Vismann takes on professional historians. Vismann’s critique of Leopold von Ranke, the early nineteenth century German historian who pioneered the use of archival materials, is precisely that historians often believe that files give them unmediated access to the truth of the historical past, that files do not interfere unduly with the past’s ability to speak through them. Vismann’s point is a little different from the one we are more familiar with through the work of Natalie Davis and others—namely, that archives are repositories of politics and fictions. She argues that the techniques of filing themselves impede any unmediated access to the past because those techniques—and the social functions they enable–are themselves products of a history.
To have argued this, however, raises other questions. What does it mean for historical (or lawyerly) practice to be told that files as technologies have a history? In what sense are historians or lawyers to keep this truth uppermost in their minds as they go about their daily work? In what sense will files—notwithstanding Vismann’s wonderful work—remain merely files, objects of daily use and manipulation, their complicated histories receding into the background as we get along with our daily practices and look into them? In short, what might Leopold von Ranke have done had he had access to Vismann’s book? It might have changed the way he approached archives. Or it might not have. Vismann does not provide us answers.
Second, and as a point related to the first, one could ask questions about how this book—as a history of media technology—might be related to history as we are often wont to think of it, as a tapestry crowded with the deeds and thoughts, the mishaps and triumphs, of historical agents. Vismann offers us a history without historical agents, at least in the sense in which most historians are used to conceiving of historical agency. “Papyrus” gives way to “parchment,” with a whole series of corresponding effects. Old ways of organizing materials are foreclosed, new ones are opened up. As an intellectual historian occasionally frustrated by the sheer predictability of much contemporary social and sociolegal history, I find Vismann’s kind of history—in its cleanness and abstraction—brisk, cleansing, refreshing. There is little here of the social history that we have come to expect: the history that emphasizes the tangled and complex and contradictory, the multiplicity of opposed voices, and so on. In giving us a different way of writing history, Vismann should be applauded. This is a history not of actors, but of the “actants” of STS (Vismann makes much of the multiple meanings of the German word for “files”—Akten—that allow files themselves to be acts, hence actors).
But does this history of actants help us avoid questions that social historians might want to ask? In one sense, could not one render “papyrus” or “parchment” themselves contingent as the product of the acts of a whole range of historical agents? One can almost hear the predictable questions. Were these technologies promoted or suppressed by pharaohs and emperors and popes? Did they serve the ends of enforcing or speaking to power? Did they enable the rise of specific social or economic or professional interest groups? “Actants” might be dissolved into the work of historical agents, the old conventional human subjects that histories such as Vismann’s want to move away from. The swarm of questions that Vismann holds at bay can overwhelm the spareness and beauty of her story. As historians, we know perfectly well how to do this. This is not to say that I agree with the social historian’s strategy, merely that I am aware of its ubiquity.
How actants become historical actors and vice versa, how each can alternately be made to recede and appear as objects of knowledge, is a question of how and why and when we organize knowledge. Why a history of files as actants? Why now? Against what background? Vismann does not address such questions in her book. This is regrettable, for there is much I could have learned, I imagine, from her answers.
