Showing papers in "Buffalo Law Review in 2010"

The Social Construction of Regulation: Lessons from the War against Command and Control

Abstract: We all know that legal rules are the products of political institutions engaged in formal procedures—the legislature, the courts, and the regulatory agency. Yet, quite apart from the formal production of law by political institutions, law is constructed in another way as well. Judges, regulatory agencies, and the regulated community shape the law within the social context in which they operate, constructing legal interpretations, rules, and regimes that elaborate on or even vary from the basic law. This Article focuses on neither the political institutions that create the formal law, nor on the social context in which it is implemented. Rather, it deals with yet a third form of construction: the activities carried on by legal scholars who critique, defend, and ultimately seek to reform the law.

Stealth Marketing and Antibranding: The Love that Dare Not Speak Its Name

Abstract: “In the twenty-first century,” one commentator notes, “brands have acquired a place in the world unimaginable in any previous period of history.” Yet inasmuch as brands serve as powerful expressions of consumer identity and desire, they are also an important vessel of corporate identity and property. By inhabiting these two worlds - the world of the consumer, and the world of the corporation - brands have come to play an increasingly vexing role in public consciousness. On one hand, they represent a proprietary vessel, a trade symbol that allows a company to symbolically encapsulate its identity - its goals, its products, and, increasingly, its philosophy. Yet on the other hand, brands are also becoming an expressive index of consumer identity and philosophy. These associations are tightly socially constructed through advertising, but they are also images that are malleable and easily changed. Aside from the idealized convergence between personal and corporate identity that a brand represents, a brand can be also simultaneously deeply political and deeply commercial, and as part of our cultural consciousness, a brand can often serve as a powerful organizing principle for political action. In just the last few decades, a new movement of activists has sprung up internationally and domestically, engaging in what I call ‘antibranding’ - artistic and political activity to challenge the expansion of the brand into public discourse. For many years, the brand and the antibrand peacefully coexisted, and most consumers were largely able to identify both by drawing upon context, in both the worlds of real and digital space. However, more recently as consumers have grown more and more overloaded with information, advertisers have been forced to seek out more creative ways to communicate their messages to the public, leading to a blurring of the lines between the brand and the antibrand. Today, the increasing prevalence of guerrilla or stealth marketing has tended to blur the lines between traditional and nontraditional forms of advertising. Since many forms of stealth marketing often takes place within the nontraditional channels that antibranding occupies (public space, websites, and other forms of media and content), it becomes more difficult then for the consumer to distinguish between the brand and the antibrand, destabilizing the division between them. In this symposium piece devoted to the study of advertising in the law, I focus on the relationship between the brand and the antibrand, and the implications of their dialectic for trademark law generally. Trademark law, I argue, has facilitated a dual trend: while brand sponsorship stretches into noncommercial domains, mimicking the style and substance of user-generated content, it risks overtaking the traditional sphere occupied by the antibrand, destabilizing the division between commercial and noncommercial forms of speech in the process.

Recovery of an Endangered Provision: Untangling and Reviving Critical Habitat Under the Engangered Species Act

Abstract: INTRODUCTION 1096 I. THE FUNDAMENTALS OF CRITICAL HABITAT 1099 A. Designation 1100 B. Consultation 1102 C. Importance 1103 II. THE FUNCTIONAL EQUIVALENCE THEORY AND ITS IMPACT ON CRITICAL HABITAT 1106 A. Designation Dearth 1107 B. Twisted Economic Analyses for Designations 1108 C. Easy Breezy Consultation Results 1112 III. ADDRESSING THE PROBLEM IN PIECEMEAL FASHION VIA COURTS 1112 IV. INTERPRETING THE STATUTE HOLISTICALLY AND MOVING FORWARD SENSIBLY 1116 A. Congressional Intent 1116 B. Amending the Regulations Defining Jeopardy and Adverse Modification 1123 C. Returning to the Baseline Method for Analyzing the Economic Impact of Critical Habitat Designations 1125 D. One More Problem: Implementation Sequence 1125 CONCLUSION 1126

Understanding Exclusion of The CISG: A New Paradigm of Determining Party Intent

Abstract: The village market of old has become a global market today. The products we use or consume on a daily basis are produced all over the world. Asparagus grown in Peru, coffee beans harvested in Guatemala, shoes made in Italy, and Japanese automobiles are all readily available to consumers throughout the United States. Moreover, U.S. companies—even small U.S. companies—have their products manufactured in foreign jurisdictions where labor is cheap and the necessary raw materials are plentiful. And those U.S. companies who do manufacture their products in the United States nevertheless often obtain their parts, components, raw materials, and supplies from sources located outside the United States. In 2009 alone, the total value of imports into the United States of all merchandise— from computers, mobile phones, and Malbec wine to capital equipment, heavy machinery, and oil and gas—was a staggering $1,559,624,813,477.00, more than one and a half trillion dollars. While the enormous volume of imports into the United States suggests that U.S. buyers must have a nearly insatiable appetite for foreign­produced merchandise, U.S. sellers certainly desire to get their piece of the foreign pie as

Pluralism in Contract Law

Abstract: This article challenges the use of monist conceptions of contracting that are dominated by such ‘super’ values as the wills, consent or promises of the parties, or the efficiency of their transactions. It argues instead for greater judicial resort to plural theories of contracting by which judges can identify, rank and apply a plurality of legal, cultural, moral and economic values in reaching informed decisions. It concludes that judicial pluralism can lead to a more richly textured and collaborative approach to contracting than under legal monism. Devised to suit Nineteenth Century values, monist conceptions subject all contract rights to a single ‘super’ or prime value, such as the liberty to contract. Judges express that ‘super’ value through such concepts as the wills of the contracting parties, or through the efficiency of those contracts. The result is a unitary conception of contracting in which judges hold that one value prevails over all others. This article maintains that these monist conceptions of contracting fail to meet the demands of an increasingly complex legal order. It proposes a working theory of judicial pluralism by which judges can engage a range of values, beyond a single ‘super’ value like liberty to or equality in contracting. It maintains that some courts implicitly resort to such judicial pluralism. It argues further that courts are often best able to identify the plural values that are materially associated with the issues. They are often equipped to rank those plural values in relation to one another; and they have the capacity to apply those values prudentially through a process of deliberative reason. It concludes that further development of judicial pluralism can enrich contract theory in a manner that legal monism has failed to accomplish. A plural account of contracting must necessary accept that theories of contract are often incongruous, contradictory and sometimes illusive in their application. If a plural approach towards contracting is to take account of such inconsistencies, it ought not to exascerbate them. If pluralism it is to work, it needs to delineate the scope of its own application by identifying competing normative values, the reasons for rejecting some, the means of reconciling others and the virtue of reformulating yet others. What ultimately will commend pluralism is neither its perfection nor its ‘perfectability’, but its capacity to respond instrumentally to disquiet over the deficiencies inhering within monism.

The Causation Standard in Federal Employment Law: Gross v. FBL Financial Services, Inc., and the Unfulfilled Promise of the Civil Rights Act of 1991

Abstract: This article analyzes and recommends a Congressional response to the Supreme Court’s 2009 decision in Gross v. FBL Financial Services, Inc.. The article places the Gross decision’s choice of a causation standard for disparate treatment causes of action in historical context by comparing that choice with that made by Congress for Title VII in § 107 of the Civil Rights Act of 1991, and criticizes the Court’s activist refusal to follow its own Title VII precedent. Stressing the lower courts’ misinterpretation of § 107, both before and after the Court’s own interpretation of this section in 2003 in Desert Palace, Inc. v. Costa, the article does not recommend that Congress merely use the 1991 Act as a model for amending the ADEA. The article instead explains how Congress could more effectively formulate a contributing or motivating cause standard not only for anti-discrimination law mandates like those in the ADEA and Title VII, but also for other federal employment law prohibitions. The article also explains why the contributing cause standard is consistent with the consideration of the pretext proof contemplated within the McDonnell Douglas-Burdine framework for disparate treatment causes of action under federal anti-discrimination law.

Jerome Frank and the Modern Mind

Abstract: Whether or not “we are all realists now,” the movement in legal theory that emerged from a few law schools in the 1920s and 1930s and came to be known as “Legal Realism” continues to hold a grip on the attention of legal scholars. Both its meaning and its ultimate significance remain subjects of intense debate. Scholars disagree not only about what the core jurisprudential claims of Legal Realism were,

Why Modern Evidence Law Lacks Credibility

Abstract: Witness credibility is at the heart of every trial. And while it is axiomatic that "credibility" is left to the jury, evidence law is silent about how one decides whether a witness is accurate, lying, or honestly mistaken. More precisely, a finding that a witness is accurate rests on the following so-called "testimonial assumptions": The witness accurately perceived the event; she accurately remembers those perceptions at trial; her testimony (words) accurately describes her memories; and she is sincere (not lying). Neither the law nor science provides a test for determining credibility. Rather, the jury's life experience and "common sense" are thought to be sufficient or, more accurately, the only viable alternative.This article develops several themes. First, the testimonial assumptions recognized by evidence law are products of mainstream thought and culture, an epistemology founded upon lay common sense and popular ideas about how people perceive, remember, and describe events as well as their sincerity. Second, the legitimacy of the modern trial depends upon this correspondence between popular thought and evidence doctrine, yet that correspondence is inadequately understood at present. Third, evidence law is bereft of any systematic approach to determining credibility. Rather, impeachment doctrine consists of ad hoc techniques that lawyers use at their discretion, the assumption being that they are sufficiently adroit and skilled to draw out the strengths and weaknesses related to the testimonial assumptions (credibility). Set against the modern trial are several notable threats. First, proof that rejects or contradicts the law's common sense epistemology, particularly social scientific or psychological evidence directed at popular "misconceptions" relating to credibility, effectively diminishes the jury's role in fact finding and threatens the trial's legitimacy. Second, trial lawyers with insufficient skill to use common law modes of impeachment fail to present the fact finder with the information popularly deemed necessary to determine credibility. Third, the "vanishing trial" risks relegating the trial jury to history's museum of curiosities while breeding a generation of lawyers lacking fundamental trial skills and adept only at settlement. The purpose of this article is to assess the testimonial assumptions in light of the law governing the impeachment and "rehabilitation" of witnesses. Evidence law is understandably reluctant to substitute its common sense underpinnings for the infirmities of modern psychology. Nonetheless, it should strive to better understand its roots in mainstream thought and popular culture if only to better appreciate where and how cultural changes, and psychology's insights, might assist credibility determinations without undermining the trial's legitimacy. Impeachment doctrine remains overly fixated on perjury and insufficiently attentive to the problem of the honestly mistaken witness. The article recommends several significant changes in trial practice and evidence doctrine that redress this imbalance without unmooring evidence law from its roots in the community's sense of credibility.

Background (fixed-cost) avoidance-choices, foreground (variable-cost) avoidance-choices, and the economically efficient approach for courts to take to marine-salvage cases: a positive analysis and related critique of landes and posner's classic study

Abstract: 3) efficiency of the approach the courts are reported to use to determine the payment they require marine rescuees to make to marine salvors who rescued them in situations in which the salvors could not negotiate binding prices for their services and (2) evaluates the argument that Landes and Posner used in their classic article 4 to establish the allocative efficiency of the courts’ (reported) approach to such marine-salvage cases. I want to emphasize at the outset, however, that although the Article does take SecondBest Theory into account, Second Best plays a far less important role in the analysis that follows than the reality that marine-salvage law affects the distortion in the profitability not only of relevant variable-cost (foreground) avoidance-decisions at the time of imperilment but also of relevant pre-imperilment fixed-cost (background) avoidancedecisions (which affect possible rescuers’ ability to effectuate a rescue and possible rescuees’ “need for rescue”). Marine-salvage law affects the distortion in the incentives of potential marine salvors to make not only foreground decisions on such matters as whether to attempt a rescue or the nature of the rescue-attempt to make (given the attributes and locations of their salvage ships and the quantity, attributes, and training of each of their salvage ship’s personnel) but also background decisions on such matters as whether to build a salvage ship, the attributes of any salvage ship they construct, the quantity, attributes, and training of each of their salvage-ship’s officers and crews, and the physical disposition of any salvage ships they own. Similarly, marine-salvage law affects the distortion in the incentives of potential marine rescuees to make not only foreground decisions on such matters as whether to accept offers of assistance, whether to make efforts to rescue themselves, and what type of self-rescue attempt to make (given the ship they are

Advertising and Social identity

Abstract: This essay takes a stand in the brewing legal academic debate over the consequences of advertising. On one side are the semiotic democratists, scholars who bemoan the ability of advertisers to take control of the meanings that they create through trademark law and other pro-business legal rules. On the other side are those who are more sanguine about the ability of consumers to rework advertising messages and point to several safety valves for free expression existing in the current advertising regulation regime. My take on this debate is that the participants have failed to address the impact of advertising on personal development. Particularly important to this discussion is the recent trend of using targeted niche marketing to appeal to particular social groups. Using social identity theory - an influential psychological theory positing that identities develop through categorization and comparison of ourselves with the social groups around us - I argue that modern advertising has a tremendous and unrecognized influence on our sense of self. My chief example of the impact of niche marketing on identity formation is the recent targeting of the gay and lesbian market. By constructing the gay market in a particular way, advertisers shrink the identity models available for individuals grappling with whether to self-categorize themselves as gay. Advertisers have forced an essentialist model of gay sexuality on consumers while painting the gay market as white, male, healthy, and affluent. At the same time, advertisers have invaded gay cultural space, co-opting gay political symbols and taking over once relatively ad-free community spaces. Meanwhile, this targeted marketing threatens to split the gay community apart by emphasizing lines of difference that are based on class and taste and socioeconomic station. All of these practices threaten the processes that psychologists using social identity theory deem crucial to developing a healthy sense of self. I suggest that the real focus in the debate over legal regulation of advertising should be not on First Amendment protections for artists and activists, but on training our minds to be more aware of advertising’s growing influence on our psyches.