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Showing papers in "Texas Law Review in 2005"


Journal Article
TL;DR: The role of patents in the software industry is discussed in this paper, where the authors consider the role of patent protection in the development of software companies and conclude that patents are more beneficial to small firms than to large firms.
Abstract: This Article is the first part of a wide study of the role of intellectual property in the software industry. Unlike previous papers that focus primarily on software patents-which generally are held by firms that are not software firms-this Article provides a thorough and contextually grounded description of the role that patents play in the software industry itself. The bulk of the Article considers the pros and cons of patents in the software industry. The Article starts by emphasizing the difficulties that prerevenue startups face in obtaining any value from patents. Litigation to enforce patents is impractical for those firms. Efforts to obtain patents divert the firm's focus from the central task of designing and deploying a product, and the benefits of excluding competitors are limited for firms that cannot themselves exploit the relevant technology. Once the firm is larger, a number of potential benefits appear. First, despite concerns that patents are not effective to appropriate profits from innovation in the software industry, a substantial number of software startups do have patents of sufficient strength to exclude competitors. That important finding, taken with the fact that the principal targets of those patents are much larger firms, suggests patents are more beneficial to small firms than to large firms. The Article then considers indirect effects related to the use of patents in cross-licensing transactions and in providing information about the firm. The first benefit may be substantial to firms that obtain patents, but the Article rejects patent use in cross-licensing as a net benefit to the industry: absent some other benefit, all firms would be better off saving the costs of obtaining patents. The information benefits, in contrast, seem to be net improvements to the innovation system. The central question, which I do not attempt to answer here, is whether those benefits are sufficiently substantial to justify the costs of obtaining the patents. The Article then turns to the prominent claims that the enforcement of software patents has hindered innovation in the software industry through creation of a patent "thicket. " The Article rejects those claims for two broad reasons. First, notwithstanding the empirical analysis of R&D spending in papers by Bessen, Maskin, and Hunt, direct evidence of high R&D spending in the software industry undermines claims that software patents cause firms to reduce R&D spending. Second, the actual structure and practices of the industry belie any claim of a patent thicket. Relying on interviews that I conducted and publicly available information, I show that the development of young firms in the software industry is not significantly constrained by large patent portfolios in the hands of incumbent firms. The Article also contextualizes the role of patents by examining the relatively weak protections that copyright and trade secret afford. At bottom, neither of those systems can provide a useful mechanism that allows small firms to appropriate the values of their inventions. If such protection is a significant positive benefit of the patent system, it is equally true that neither copyrights nor trade secrets contribute (or can contribute) significantly in that respect, however useful they might be in other roles (such as preventing piracy). The Article closes by considering critically the possibility of middle ground responses that would limit patent rights in the industry but not abolish them entirely. First, I criticize a possible registration system that might provide information benefits without the costs of excluding competitors. I argue that such an approach is impractical both because it would be difficult to disentangle the information benefits from the right to control technology and because of my sense that software firms would have an inadequate incentive to participate in such a system. Second, I consider the possibility of special limits on the rights of "trolls, " small nonoperating firms formed solely to litigate patents. …

84 citations


Journal Article
TL;DR: In this article, the authors explore the relationship between perceived injustice and flouting and offer several possible explanations, including the role of law in American popular culture and the expressive function of the law in producing compliance.
Abstract: What happens when a person's commonsense view of justice diverges from the sense of justice he or she sees enshrined in particular laws? Does the perception of one particular law as unjust make an individual less likely to comply with unrelated laws? This Article advances the Flouting Thesis-the idea that the perceived legitimacy of one law or legal outcome can influence one's willingness to comply with unrelated laws-and provides original experimental evidence to support this thesis. The results suggest that willingness to disobey the law can extend far beyond the particular unjust law in question, to willingness to flout unrelated laws commonly encountered in everyday life (such as traffic violations, petty theft, and copyright restrictions), as well as willingness of mock jurors to engage in juror nullification. Finally, this Article explores the relationship between perceived injustice and flouting and offers several possible explanations, including the role of law in American popular culture and the expressive function of the law in producing compliance. I. Introduction Do ordinary citizens flout the law in response to a specific instance of perceived injustice? The idea that general lawbreaking can emerge from one unjust legal doctrine or decision has intuitive appeal. For example, Professor David Cole has argued that constitutional doctrines that allow untrammeled police discretion-such as that which led to the brutal beating of Rodney King in Los Angeles or the tragic police shooting of Amadou Diallo in New York-can undermine the public's perception of the legitimacy of law enforcement generally.1 This loss of legitimacy and distrust of the fairness of the legal system, Cole argues, can in turn lead to more widespread lawbreaking.2 The Rodney King example is instructive in this regard. In 1992, the acquittal of the four police officers who beat Rodney King touched off the worst civil unrest seen in any American city in nearly thirty years. The streets of Los Angeles became the site of chaos and lawlessness. For four days, city residents looted stores, destroyed property, assaulted and shot one another, and set buildings on fire. When it was over, more than fifty people were dead,3 nearly 12,000 people were arrested,4 and over 800 buildings were burned to the ground.5 Undoubtedly, the causes contributing to the expression of community frustration during this time were numerous and complex.6 However, there is no doubt that the perceived injustice of the acquittals of the police officers was a "proximate" cause of the 1992 civil unrest in Los Angeles.7 The 1992 Los Angeles example is an extreme one to be sure. At the same time, it suggests further, more general questions-questions that are at bottom empirical-about whether, and under what circumstances, citizens' perceptions of injustice lead to diminished deference to the law generally. Does perceived injustice in our legal system-whether in the form of wrongful convictions or acquittals, excessive punitive damage awards, outmoded public morals statutes, sentencing disparities between crack cocaine and powder cocaine, or mandatory minimum sentencing regimes lead to greater willingness to flout the law in the everyday lives of ordinary people? Further, assuming that this is the case, does flouting typically manifest itself not in mass unrest but in more subtle, lower-level, and harder-to-detect ways, such as littering, tax cheating, theft of services, and jury nullification? The idea that there is a relationship between perceived injustice of specific laws and diminished general compliance with the law has been either proposed or assumed by many theorists in a variety of contexts.8 For the purposes of discussion in this Article, I call this idea the Flouting Thesis. Despite its prominence, there is, however, a glaring absence of empirical evidence regarding the Flouting Thesis, which has been widely assumed but never proven.9 Investigating the possibility that lawbreaking can flow from perceived injustice is central to our understanding of how to secure citizen cooperation and compliance with legal rules, and so the lack of empirical investigation regarding the Flouting Thesis is puzzling. …

75 citations


Journal Article
TL;DR: Lemley as discussed by the authors argues that full internalization of positive externalities is not a proper goal of tangible property rights except in unusual circumstances, for several reasons: (1) there is no need to fully internalize benefits in intellectual property; (2) efforts to capture positive externality may actually reduce them, leaving everyone worse off; and (3) the effort to capture such externalities invites rent-seeking.
Abstract: Mark A. Lemley* Intellectual property protection in the United States has always been about generating incentives to create. Thomas Jefferson was of the view that "[inventions . . . cannot, in nature, be a subject of property;" for him, the question was whether the benefit of encouraging innovation was "worth to the public the embarrassment of an exclusive patent."1 On this long-standing view, free competition is the norm. Intellectual property rights are an exception to that norm, and they are granted only when-and only to the extent that-they are necessary to encourage invention. The result has historically been intellectual property rights that are limited in time, limited in scope, and granted only to authors and inventors who met certain minimum requirements. On this view, the proper goal of intellectual property law is to give as little protection as possible consistent with encouraging innovation. This fundamental principle is under sustained attack. Congress, the courts, and commentators increasingly treat intellectual property not as a limited exception to the principle of market competition, but as a good in and of itself. If some intellectual property is desirable because it encourages innovation, they reason, more is better. The thinking is that creators will not have sufficient incentive to invent unless they are legally entitled to capture the full social value of their inventions. On this view, absolute protection may not be achievable, but it is the goal of the system. The absolute protection or full-value view draws significant intellectual support from the idea that intellectual property is simply a species of real property rather than a unique form of legal protection designed to deal with public goods problems. Protectionists rely on the economic theory of real property, with its focus on the creation of strong rights in order to prevent congestion and overuse and to internalize externalities. They rely on the law of real property, with its strong right of exclusion. And they rely on the rhetoric of real property, with its condemnation of "free riding" by those who imitate or compete with intellectual property owners. The result is a legal regime for intellectual property that increasingly looks like the law of real property, or more properly an idealized construct of that law, one in which courts seek out and punish virtually any use of an intellectual property right by another. In this Article, I suggest that the effort to permit inventors to capture the full social value of their invention-and the rhetoric of free riding in intellectual property more generally-are fundamentally misguided. In no other area of the economy do we permit the full internalization of social benefits. Competitive markets work not because producers capture the full social value of their output-they do not, except at the margin-but because they permit producers to make enough money to cover their costs, including a reasonable return on fixed-cost investment. Even real property doesn't give property owners the right to control social value. Various uses of property create uncompensated positive externalities, and we don't see that as a problem or a reason people won't efficiently invest in their property. Analogously, I argue that full internalization of positive externalities is not a proper goal of tangible property rights except in unusual circumstances, for several reasons: (1) there is no need to fully internalize benefits in intellectual property; (2) efforts to capture positive externalities may actually reduce them, leaving everyone worse off; and (3) the effort to capture such externalities invites rent-seeking. The goal of eliminating free riding, then, is ill-suited to the unique characteristics of intellectual property. Efforts to permit intellectual property owners to fully internalize the benefits of their creativity will inevitably get the balance wrong. Because this goal seems to derive in the minds of many from their conception of property rights, I suggest that treating intellectual property as "just like" real property is a mistake as a practical matter. …

62 citations


Journal Article
TL;DR: The authors found no evidence of deterrence when the effects of execution are estimated for the subset of homicides that are most directly affected by execution, and concluded that there is no evidence that executions deter murders.
Abstract: I. Introduction A. The New Deterrence The modern debate on deterrence and capital punishment, now in its fourth decade, was launched by two closely timed events. The first was the 1976 United States Supreme Court decision in Gregg v. Georgia,1 which restored capital punishment after its brief constitutional ban following Furman v. Georgia2 in 1972.3 In 1975, Professor Isaac Ehrlich published an influential article saying that during the 1950s and 1960s, each execution averted eight murders.4 Although Ehrlich's article was a highly technical study prepared for an audience of economists, its influence went well beyond the economics profession. Ehrlich's work was cited favorably in Gregg and later was cited in an amicus brief filed by the U.S. Solicitor General in Fowler v. North Carolina.5 No matter how carefully Ehrlich qualified his conclusions, his article had the popular and political appeal of a headline, a sound bite, and a bumper sticker all rolled into one: "every execution deters eight killings." Reaction was immediate: Ehrlich's findings were sharply disputed in academic forums such as the Yale Law Journal,6 launching an era of contentious arguments in the press and in professional journals.7 In 1978, an expert panel appointed by the National Academy of Sciences issued strong criticisms of Ehrlich's work.8 Over the next two decades, economists and other social scientists attempted (mostly without success) to replicate Ehrlich's results using different data, alternative statistical methods, and other design modifications that tried to address glaring errors in Ehrlich's techniques and data. The accumulated scientific evidence from the NAS report and these later studies weighed heavily against the claim that executions deter murders.9 The debate both revived and shifted within the past decade. Since 1996, more than a dozen studies have been published claiming that each execution can prevent anywhere from three to thirty-two homicides.10 The new deterrence studies analyze data that span a twenty-year period since the resumption of executions following the United States Supreme Court's decisions in Furman11 and Gregg.12 The claims of these new studies are far bolder than the original wave of studies by Professor Ehrlich and his students.13 Some claim that pardons, commutations, and exonerations cause murders to increase.14 One says that even murders of passion, among the most irrational of lethal acts, can be deterred.15 In short, these studies suggest that the deterrent effects of capital punishment apparently are limitless, leading some proponents to offer execution as a cure-all for all types of murder.16 Both legal scholars and social scientists have transformed this new social science evidence into calls for more executions that they claim will save lives,17 and new rules that will remove procedural roadblocks and hasten executions.18 Others challenge the scientific credibility of these new studies,19 and warn about the moral hazards and practical risks of capital punishment.20 Obviously, the stakes are high in this latest round of the recurring debate on deterrence. We think the new results are wrong, for a simple reason. The measures of homicide used in the new deterrence studies are overly broad: by studying whether punishments affect all homicides, these studies fail to identify a more plausible target of deterrence-namely, those homicides that are punishable by death. By broadening the target of the search for deterrent effects, these studies have overestimated not just the number of lives saved by deterrence, but whether any murders are averted by the threat of execution.21 In this study, we find no evidence of deterrence when the effects of execution are estimated for the subset of homicides that are most directly affected by execution. B. Errors in Aggregation The question of whether the threat or actuality of execution adds to the deterrent effect on homicide produced by lengthy imprisonment alone has been the subject of statistical debate for more than a century. …

32 citations


Journal Article
TL;DR: Water scarcity crisis: The United States is heading toward a water scarcity crisis, and environmental factors threaten a water supply heavily burdened by increased demand as mentioned in this paper, as the demand for water outstrips the supply, the stage is set for what Jared Diamond would call a collapse.
Abstract: I. Prelude Most Americans take water for granted. Turn on the tap and a limitless quantity of high quality water flows for less money than it costs for cable television or a cell phone. The current drought has raised awareness of water scarcity, but most proposals for dealing with drought involve quick fixes-short-term palliatives, such as bans on washing cars or watering lawns except on alternate days. It is assumed that things will return to normal, and we will be able to wash our cars whenever we wish. But the nation's water supply is not inexhaustible. A just-released report of a White House subcommittee ominously begins: "Does the United States have enough water? We do not know."1 In a survey of states conducted by the U.S. General Accounting Office, only 14 states reported that they did not expect to suffer water shortages in the next 10 years.2 Is the sky falling? Not yet, but the United States is heading toward a water scarcity crisis: our current water use practices are unsustainable, and environmental factors threaten a water supply heavily burdened by increased demand. As the demand for water outstrips the supply, the stage is set for what Jared Diamond would call a collapse.3 How will we respond? When we needed more water in the past, we built a dam, dug a canal, or drilled a well. With some exceptions, these options are no longer viable due to a paucity of sites, dwindling supplies, escalating costs, and environmental objections. Instead, we are entering an era in which demand for new water will be satisfied by reallocating and conserving existing sources. The current water rights structure is the outcome of historical forces that conferred great wealth and power along with the water. The solution to tomorrow's water shortages will require creative answers to challenging issues of equity, community, and economics. II. Supply and Demand In 2000, Americans used a staggering 408 billion gallons of water each day.4 In many parts of the country, fresh water reserves have been depleted; diversions have dried up rivers and pumping has exhausted aquifers.5 Industrial solvents have contaminated thousands of groundwater basins, and ocean water has percolated into countless coastal aquifers, rendering them too saline for human consumption. We still have an abundance of potable groundwater, but we are pumping it faster than Mother Nature replenishes it. Additional diversions from our rivers and streams would come at a high environmental cost. In short, our existing use of water is unsustainable. Moreover, climatic factors threaten the water supply. The recent drought, of historic proportions in some sections of the country, has caused cities, farms, and mining companies to scramble in search of new sources. And global climate change threatens profound (though currently uncertain) implications for the world's water. Notwithstanding the rantings of Fox News,6 credible scientists no longer doubt the reality of global warming.7 The release of carbon dioxide gases, a by-product of fossil fuel use, increases the ability of the sun's rays to penetrate our atmosphere, thus raising the earth's temperature.8 Higher temperatures produce a shorter snow season (more precipitation falls in the form of rain), faster snow melt, and increased runoff. These changes have significant implications for our water supply. Think of a mountain's snow pack as a gigantic water storage reservoir. Global warming reduces the amount of water in the reservoir, creating a need to find an alternative means of storage. Global warming also creates higher evaporation losses from the surfaces of lakes, reservoirs, and rivers. According to one recent report, global warming may reduce the Colorado River's reservoir level by one-third by mid-century.9 Demands on our water resources are increasing. Increased demands result from one simple fact: population growth. Since 2000, the population of the United States has surged from 285 to 295 million, with the Southwest leading the way. …

31 citations


Journal Article
TL;DR: In this article, the authors examine the Owens Valley water transfer to Los Angeles and evaluate the economic impact of the exchange on both parties to show that each party was made substantially better off.
Abstract: In this Article I examine the notorious Owens Valley water transfer to Los Angeles. Not only was it one of the largest private water exchanges in U.S. history, but it remains pivotal in the political economy of western water reallocation. It involved negotiations over land and water rights between representatives of the city of Los Angeles and approximately eighteen hundred farmers and town lot owners between 1905 and 1935. By 1935, Los Angeles had acquired 95 percent of the farm acreage and 88 percent of the town properties in the valley. The water transferred from Owens Valley, a marginal agricultural area, made possible the growth of Los Angeles, and Owens Valley remains the largest single source of water for the Los Angeles Basin. Yet, the Owens Valley transfer has a very negative legacy and has hindered subsequent efforts to reallocate water from agriculture to urban and environmental uses. The negotiations for water rights and land took thirty years to complete and were often acrimonious. I analyze the negotiations between representatives of Los Angeles and Owens Valley farmers to determine the sources of bargaining conflicts. I also evaluate the economic impact of the exchange on both parties to show that each party was made substantially better off. Yet, the notion of "theft" remains. To explain this, I examine the distribution of the economic benefits of the water and land sale. Distributional issues take on greater importance when there are valuation disputes and the gains from trade are shared very unequally. With these insights, I conclude with lessons for contemporary western water reallocation. "It seems to us that the importance of the Owens River project to the City of Los Angeles cannot be overestimated." -Los Angeles Board of Water Commissioners, Report on Water Supply, 19 06.1 "And at last the drop that fell as a snowflake upon the Sierra's crest and set out to find its home in the sea, shall be taken up from beneath the ground by a thirsty rootlet and distilled into the perfume of an orange blossom in a garden of the City of the Queen of the Angels." -Los Angeles Board of Public Service Commissioners, 1916.2 "Dry Ditches, In a bleaching land, A broken pane, A swinging door, And out upon, A withered field, Where blue blossoms, Once nodded in the sun, A rusted plow, Deep furrow, In the crusted sand." -Marie and Will Parcher, 1934(3) "You have any idea what this land would be worth with a steady water supply? About 30 million more than they paid for it." -J.J. Gittes (Jack Nicholson) referring to land in the San Fernando Valley, in the movie Chinatown, 1974(4) "[F]armers remain suspicious of the 'Owens valley syndrome'. . . . The 'theft' of its water . . . in the early 20th century has become the most notorious water grab by any city anywhere . . . . [T]he whole experience has poisoned subsequent attempts to persuade farmers to trade their water to thirsty cities." -The Economist, July 19, 2003(5) I. Introduction The story of how the Owens Valley lost its water to urban Los Angeles's swelling population in the early 20th century is an integral part of the settlement history of the western United States. More importantly, the story also plays a vital role in shaping contemporary debates over the struggle for access to water. Indeed, Owens Valley stands as a sentence in discussions of the dangers of water transfers from rural to urban areas. It is used as a metaphor by opponents of water reallocations to demonstrate all that can go wrong with these practices. Even proponents of contemporary water exchanges emphasize that their proposals will not be another Owens Valley. Owens Valley was the first large-scale rural-to-urban water transfer, completed between 1905 and 1935; it continues as a pivotal event in the political economy and law of western water. While the story resonates most forcefully in dry regions of western states, the fate of Owens Valley has been invoked as a warning to rural communities throughout the country faced with losing their water to burgeoning urban populations whose expanding demand for water exceeds available supplies. …

21 citations


Journal ArticleDOI
TL;DR: Water allocation law in the prairie provinces of Alberta, Saskatchewan, and Manitoba has been examined in this paper, where the authors examine two approaches to reform water law that the provinces have adopted in the face of developing water shortages.
Abstract: I. Introduction In any comparative survey of responses to water scarcity, a contribution from Canada is usually met with a sense of incredulity. Canada has a reputation for enjoying abundant freshwater supplies. Canada's experience in dealing with water scarcity is less well-known than its potential role of providing a solution to water shortages in arid parts of the United States through sometimes fantastic water diversion schemes. Although many plans have been suggested for transferring water from Canada to the United States, the two most notorious are the 1963 scheme by the North American Water and Power Alliance to dam major rivers in British Columbia and take water south through the Rocky Mountain trench, and the 1985 GRAND Canal project to divert water from James Bay in northern Quebec through the Great Lakes to the western United States. Despite the economic infeasibility of both schemes, they are frequently resurrected in popular writing about water.1 The impression of abundant Canadian water supplies suggested by such grandiose plans is fortified by the dubious distinction that Canadians are one of the most prolific consumers of water, per capita, in the world.2 This image of plenty is, however, misleading. Canada suffers regional water shortages, even in areas where water supply has traditionally been abundant.3 In western Canada, the threat of water shortages is more well known and has inspired water legislation since the earliest days of European settlement.4 This Article focuses on the experience of the prairie provinces of Alberta, Saskatchewan, and Manitoba, which stretch northward from the 49th parallel to the 60th parallel and extend eastward from the Continental Divide to Hudson Bay and Lake of the Woods on the western boundary of Ontario. The southern regions of the prairie provinces are known as Palliser's Triangle, in homage to the leader of a Royal Geographical Society expedition from 1857 to 1860, who maintained that their arid climate would constitute a barrier to settlement.5 The area experiences annual precipitation of between 12 and 16 inches and suffers from chronic water shortages. The historical concern about lack of water in this region is exacerbated by the fact that most supplies in the area are drawn from the major glacier-fed river systems that have their source in the Rocky Mountains. The Athabasca glacier, which feeds the Saskatchewan River system, for example, has been receding at an accelerated rate since 1960 and is now shrinking at a rate equivalent to about 30 percent every century.6 In recent times, long-standing concerns about present and future water supplies have been increased by the rapid growth in the population and economy of the area.7 In order to explore Canadian responses to water scarcity, Part II of this Article will set out the framework of water allocation law in the prairie provinces. Part III will examine two approaches to reforming water law that the provinces have adopted in the face of developing water shortages. Part IV will address some important environmental safeguards that accompanied the introduction of new water legislation in Alberta in 1996 and the need to protect the position of traditional water users, who are often threatened when legislation encourages the intensified use of water. II. The Framework of Water Allocation Law on the Prairies As European agricultural settlement pushed westwards into the arid regions of the Canadian plains, the need to provide a secure legal basis for irrigated farming quickly became apparent. The prevailing common-law doctrine of riparian rights did not allow either large-scale irrigation or the development of land that was distant from a watercourse. In the late 1880s, a substantial political movement began to support the development of a law of water allocation that was conducive to irrigation, and the federal government began a thorough study of legislative options. In 1892, William Pearce, the Superintendent of Mines for the Department of the Interior in Calgary, was recalled to Ottawa to begin work on legislation, and in 1893 and 1894, J. …

19 citations


Journal Article

17 citations


Journal Article
TL;DR: The Future of Copyright Free Culture: How Big Media USES TECHNOLOGY and the Law to Lock Down CULTURE and Control CREATIVITY as mentioned in this paper, by Lawrence Lessig.
Abstract: The Future of Copyright FREE CULTURE: HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL CREATIVITY. By Lawrence Lessig.[dagger] New York: The Penguin Press, 2004. Pp. xvii, 346. $24.95. Somebody once said: "Information wants to be free. "1 -Roger Clarke There's no such thing as a free lunch.2 -Alvin Hansen I. Introduction: Idea Slingers and Norm Entrepreneurs Sometimes technological change is so profound that it rocks the foundations of an entire body of law. Peer-to-peer (P2P) filesharing systems-Napster, Gnutella, KaZaA, Grokster, and Freenet3-are mere symptoms of a set of technological innovations that have set in motion an ongoing process of fundamental changes in the nature of copyright law. The video tape recorder begat the Sony "substantial noninfringing use" defense.4 The digital cassette recorder begat the Audio Home Recording Act.5 The internet begat the Digital Millennium Copyright Act.6 Napster begat Napster.7 We see the law morph right in front of our eyes, but its ultimate form is still obscure. As a consequence, the future of copyright is up for grabs. We live in a magical, exhilarating, and frightening time: Many alternative copyfutures8 shimmer on the horizon, sometimes coming into sharper focus and sometimes fading away. In this heady atmosphere, the idea slingers are at work. Richard Posner and William Landes have proposed indefinitely renewable copyrights.9 Neil Netanel,10 William Fisher,11 and others propose to legalize P2P filesharing and replace the lost revenues with a tax on hardware and internet service. Joseph Liu suggests that the scope of fair use should grow with time.12 Mark Lemley is debunking ex post justifications for intellectual property.13 No surprise, the academics do not have a monopoly on idea slinging. The Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA) have gone on the offensive, proposing legislation like the "Induce Act," targeted at shutting down P2P filesharing services that allow third parties to share copyrighted content.14 In a very real sense, we are in the midst of an intellectual, moral, and legal struggle over the future of copyright. Intellectually, the "copyright,"15 the struggle over the future of the rights to duplicate and transform information, takes place in the realm of ideas-between the covers of law reviews, in position papers, on editorial pages, and online in the blogosphere.16 Legally, major skirmishes have already occurred in the federal courts, from the United States Supreme Court's decision to uphold the Sonny Bono Copyright Term Extension Act (CTEA)17 in Eldred v. Ashcroft18 to the recent split between the Seventh19 and Ninth Circuits20 over the question whether P2P filesharing services are contributory copyright infringers. Heated copyfighting takes place in the back rooms of Congress and elsewhere inside the beltway, where the consumer electronic industry recently refused to come to terms with the RIAA and the MPAA over the terms of the Induce Act.21 Last, but not least, the copyfight includes a moral and ideological battle for the hearts and minds of an increasingly global public. The RIAA and the MPAA labor (mostly without success) to convince a generation that has grown up ripping, burning, and downloading that the use of a P2P filesharing program is the moral equivalent of shoplifting a CD.22 No copywarrior is more prominent and influential than Larry Lessig. Lessig was the brilliant architect of Eric Eldred's failed challenge to the CTEA's retroactive twenty-year extension of copyright terms-effectively a twenty-year moratorium on new works entering the public domain.23 (Just getting Eldred to the Supreme Court was no mean accomplishment; getting votes to strike down the CTEA was truly remarkable.) Lessig is an idea slinger par excellence, the author of Code and Other Laws of Cyberspace24 and The Future of Ideas25-enormously influential books. …

13 citations


Journal Article
TL;DR: For instance, Brazil is home to the largest reserve of water resources on the planet, containing approximately 8% of the world's existing freshwater as mentioned in this paper, but the truth is that water is distributed unevenly throughout the territory.
Abstract: I. Introduction Brazil is home to the largest reserve of water resources on the planet,1 containing approximately 8% of the world's existing freshwater.2 Its territory encompasses several gigantic water basins,3 including the vast Amazon River basin.4 Except for the Northeast, the entire country possesses an enviable abundance of water, for it sits upon enormous underground water reserves estimated to total 112,000 cubic kilometers.6 While in theory there are nearly 34 million liters of water available for each of Brazil's inhabitants, the truth is that water is distributed unevenly throughout the territory. The North and Central-West, for instance, have both the highest mean water discharge rate and the lowest population density in Brazil.7 Brazil is the largest country in South America; with an area of more than 8.5 million square kilometers,8 it is larger than the contiguous United States. Brazil shares a border with ten countries, a fact that highlights the importance of adding international legal arrangements to the national system of water use regulation. Organized into a federal republic (a fact that, as will be seen, creates both difficulties and opportunities in the legal-administrative organization of a water resources system), Brazil is divided into 26 states and a federal district (Brasilia). There are distinct variations in size, population, and wealth among the states, and this diversity determines, to a greater or lesser degree, the level of investment in the implementation of policies and norms for water use and basic sanitation. From geographic and political-administrative perspectives, the territory of Brazil is composed of five principal regions: Northern Region.-With approximately 3.5 million square kilometers (more than 42% of the entire nation's land), this region is known for the world's largest river basin: the Amazon.9 The rivers that constitute the Amazon River Basin are divided into three types. First, there are the rivers of the right bank of the Amazon River (or south bank), with crystalline waters that arise in large part from the Central Brazilian Plain (Rivers Tapajos, Madeira, and Xingu). Second, there are the largely sediment-filled rivers that form part of the Andes Range tributaries (River Solimoes). Third, there are the dark rivers of the left bank of the Amazon River (or north bank) that are born in the Guianas Plain (Rivers Negro, Trombetas, Paru, and Jari). In addition, there are the smaller Tocantins River and its principal tributary, the Araguaia, which drain out near Marajo Island into the estuary of the Amazon.10 Central-Western Region.-This region is dominated by the Central Brazilian Plain, which comprises a good part of the basins of the Rivers Amazonas, Parana, and Sao Francisco. The largest freshwater wetlands in the world, the Pantanal, are located in this region.11 Northeastern Region.-The most heterogeneous of the regions, this region has four zones: the Mid-North,12 the coastal Atlantic Forest, the Agreste,13 and the Sertao.14 In the Sertao, rains are sparse and there are periodic droughts.15 The principal river of the Northeast is the Sao Francisco.16 Southeastern Region.-The economic heart of the country, this region brings together the states with the greatest population and industrial production. The Rivers Sao Francisco and Parana, two of the most important in Brazil, have large extensions of their water basins in the Southeast. The River Grande, which divides the states of Minas Gerais and Sao Paulo, and the Tiete, which crosses the state of Sao Paulo, are two of the principal tributaries in the southeast Parana Basin. Southern Region.-Predominantly a subtropical climate due to the low latitudes, this is the coldest region of Brazil, with frequent frosts and, in the mountains of the states of Santa Catarina and Rio Grande do Sul, even snow. The rivers that cross the region form the Parana Basin almost in its entirety; they are crucially important for the country, above all for their hydroelectric potential. …

13 citations


Journal Article
TL;DR: The Plachimada bottling plant in India has been closed since 2003 in the wake of an adverse court ruling and a suspension order from the state government as discussed by the authors, both of which were issued following claims by the local Plachima council that Coca-Cola contributed to water shortages by significantly drawing down groundwater resources and by discharging lead and cadmium-containing sludge into local surface watercourses.
Abstract: I. Introduction: "I'd Like to Buy the World a Coke" Water is the basis of life; it is the gift of nature; it belongs to all living beings on earth. It is not a private property but a common resource for the sustenance of all. It is our fundamental obligation to prevent water scarcity and pollution and to preserve it for generations. Water is not a commodity. We should resist all criminal attempts to marketise, privatise and corporatise water. Only through these means we can ensure the fundamental and inalienable right to water for the people all over the world.1 The Coca-Cola Company's regional website for India proclaims that the company "exists to benefit and refresh everyone it touches," and that the company "strive[s] to deliver on this promise every day, creating a stronger and more sustainable future for our business and for the communities we serve."2 Since 1993, Coca-Cola has invested more than $1 billion throughout India in production facilities, wastewater treatment plants, distribution systems, and marketing equipment, making it one of the country's most important international investors. According to its website, the company directly employs around 6,000 people in India and indirectly supports employment for another 125,000 people.3 Also attracting CocaCola's attention is India's growing consumer class. CEO Neville Isdell has pledged to increase global marketing expenditures by $350-$400 million starting in 2005, with particular focus on such high-growth markets as Brazil, China, Russia, and India.4 Presently, nearly 80% of the company's income comes from markets other than the United States,5 and Isdell has announced a long-term target of 95%.6 Indeed, to underscore the importance of Coke's global growth strategy, Isdell made these announcements during a presentation to Wall Street analysts titled, "The Coca-Cola Manifesto for Change."7 Despite these ambitious goals, growing numbers of activists, consumers, and investors seem unwilling to sign on to the Coca-Cola Manifesto and, instead, have launched a concerted effort to undermine the company's international expansion. Hostile campaigns have arisen, for instance, in response to Coca-Cola's bottled water marketing practices in Great Britain,8 and its alleged complicity with human rights and labor abuses in Colombia.9 A great deal of international attention, moreover, has focused on the company's activities in India, where local citizens' groups charge that Coca-Cola has failed to live up to its promise to "benefit and refresh everyone it touches."10 Specifically, in addition to persistent claims that Coca-Cola products sold in India fail to meet international safety standards for DDT and other contaminants," the company has also faced strong objections from residents in several Indian communities who attribute the groundwater shortages that they are suffering to excessive consumption by local Coca-Cola bottling operations. The most significant of these controversies has taken place at Coca-Cola's largest bottling plant in India,12 a Plachimada, Kerala facility where protestors in January 2005 marked the 1,000th day of a permanent vigil held outside the property's gates.13 This community also marks the location where, one year earlier, protestors issued the Plachimada Water Declaration quoted at the outset of this Introduction. Originally opened in 2000,14 the Plachimada facility was viewed by political leaders as precisely the kind of foreign investment that enables economic growth and, ultimately, sustainable development.15 Nevertheless, the plant has been shut down since December 2003 in the wake of an adverse court ruling and a suspension order from the state government, both of which were issued following claims by the local Plachimada council that Coca-Cola contributed to water shortages by significantly drawing down groundwater resources and by discharging lead and cadmium-containing sludge into local surface watercourses.16 While still in operation, the plant consumed somewhere between 500,000 and 1,500,000 liters of water per day to produce a variety of bottled soda and mineral water drinks. …

Journal Article
TL;DR: In this paper, a theory of punitive damages is proposed to answer two questions: (1) What place, if any, do punitive damages have in the civil law of tort, given that they appear to involve an idea of criminal punishment? (2) Why are punitive damages subject to special constitutional scrutiny, as in the Supreme Court's decision in BMW v. Gore, if they really are part of the civil case of tort?
Abstract: A contemporary theory of punitive damages must answer two questions: (1) What place, if any, do punitive damages have in the civil law of tort, given that they appear to involve an idea of criminal punishment? (2) Why are punitive damages subject to special constitutional scrutiny, as in the Supreme Court's decision in BMW v. Gore, if they really are part of the civil law of tort? The article offers a theory that can answer both of these questions. Punitive damages have a double aspect, corresponding to two senses of "punitive." Insofar as they pertain to the state's goal of imposing a punishment upon a defendant who merits deterrence or retribution, they have a criminal aspect. Insofar as they pertain to the plaintiff's "right to be punitive," they have a civil aspect. Drawing upon the theory of civil recourse that the author has developed as a challenger to corrective justice theory, the article explains what a "right to be punitive" means. It then uses the recourse theory of punitive damages to support a rational reconstruction of the Supreme Court's constitutional jurisprudence of punitive damages. When a case can be understood as involving principally a plaintiff's right to be punitive, heightened constitutional scrutiny is not appropriate. However, where, as in BMW v. Gore, the state is essentially imposing punishment, the excessiveness of a damages award is properly scrutinized under heightened constitutional standards. I. Introduction A. The Need for a Theory of Punitive Damages What does the word "punitive" mean in the phrase "punitive damages"? The standard answer is that punitive damages are intended to punish a defendant who has engaged in a form of tortious conduct that is particularly egregious. Courts routinely state that the "punishment" delivered by punitive damages is justified by both deterrent and retributive concerns.1 Indeed, in an area of law that sometimes seems cluttered with statistics and statutory developments, the mantra of "deterrence and retribution" as applied to punitive damages has the comforting ring of familiarity. Yet it is precisely this focus on punishment that leads to the greatest perplexities in punitive damages law. This is for two interrelated reasons, one sounding in constitutional law, the other in tort. Within constitutional law, what is most puzzling is that courts are as unintrusive as they are with regard to punitive damages. State courts are open about their reasons for imposing punitive damage awards. Litigants on both sides, as well as the constitutional courts receiving challenges to these cases, go right ahead and concede the punitive nature of the remedy sought. Most jurisdictions' state-of-mind standard for punitive damages approaches something like criminal scienter.2 Many states hold punitive damages to be uninsurable as a matter of public policy, just as criminal fines are.3 And some even demand a higher evidentiary standard-"clear and convincing evidence"-in light of the "quasi-criminal" nature of punitive damages.4 Yet until the 1990s, punitive damages triggered virtually no constitutional protection whatsoever, and even now such protection remains quite minimal-certainly a far cry from that afforded even the most minimal criminal sanction. The reason for the near-immunity from scrutiny for punitive damages awards has been, of course, that punitive damages are nominally civil and nominally part of private tort cases. But in a legal system that regularly cautions against elevating form over substance, it is peculiar that there has been near-immunity for what are openly labeled forms of "punishment." The constitutional puzzle leads us back to a more basic question in torts: Why are punitive damages part of tort law at all? Isn't tort law about compensation, making victims whole, or corrective justice? Even from an economic point of view, isn't it about deterrence by cost-internalization, or about insurance? Why is this criminal-seeming treatment found within our private law, our tort system? …

Journal Article
TL;DR: Pay without performance as discussed by the authors is a popular line of research in the area of executive compensation, where the authors argue that managers who control the corporation are inevitably tempted to put personal interest ahead of shareholders' wealth maximization.
Abstract: Executive Compensation: Who Decides? PAY WITHOUT PERFORMANCE: THE UNFULFILLED PROMISE OF EXECUTIVE COMPENSATION. By Lucian Bebchuk[dagger] and Jesse Fried.[dagger][dagger] Cambridge, MA: Harvard University Press, 2004. Pp. xii, 278. $24.95. I. Introduction U.S. corporate law vests control of the corporation in the board of directors and those executives to whom the board properly delegates decisionmaking authority.1 The discretionary powers thus conferred on directors and officers, however, are to be directed towards a single end; namely, the maximization of shareholder wealth. A business corporation is organized and carried on primarily for the profit of the stockholders. The powers of the directors are to be employed for that end. The discretion of directors is to be exercised in the choice of means to attain that end . . . .2 In practice, corporate governance all too often departs from this ideal model with respect to both means and ends. As to means, the statutory model of director primacy often gives way to a reality of management domination. The directors become mere figureheads who rubberstamp decisions made by senior management. The widespread phenomenon of the "Imperial CEO" is but the latest manifestation of this perversion of the statutory scheme.3 As for the ends, the managers who control the corporation are inevitably tempted to put personal interest ahead of shareholder wealth maximization. In particular, as executive compensation has spiraled up in the last couple of decades, many observers believe that top corporate managers are benefiting themselves at the expense of shareholders.4 This view finds two able advocates in law professors Lucian Bebchuk and Jesse Fried, who develop this argument in their new book, Pay Without Performance? They forcefully contend that "managers have used their influence [over corporate boards of directors] to obtain higher compensation through arrangements that have substantially decoupled pay from performance."6 In other words, the executive compensation scandal is not the rapid growth of management pay in recent years, as too many glibly opine,7 but rather the failure of compensation schemes to award high pay only for top performance.8 Bebchuk and Fried begin Pay Without Performance by setting up a foil against which the remainder of the book will argue-namely, those financial economists who contend that "despite some lapses, imperfections, and cases of abuse, executive [compensation] arrangements have largely been shaped by market forces and boards loyal to shareholders."9 The first four chapters of the book are thus devoted to knocking down the proposition that management pay is an efficient product of arm's-length bargaining between the board of directors and senior managers. The second major chunk of the book (Chapters 5 and 6) develops Bebchuk and Fried's opposing thesis, which they label the "managerial power" perspective. They claim that "directors have been influenced by management, sympathetic to executives, insufficiently motivated to bargain over compensation, or simply ineffectual in overseeing compensation."10 As a result, executive pay has greatly exceeded the levels that would prevail if directors loyal to shareholder interests actually bargained with managers at arm's length. The third major section of the book constitutes the bulk of the text, marching relentlessly through one form of executive compensation after another. Moving from severance payments (Chapter 7) to the ease with which managers may cash out equity-based compensation (Chapter 14), Bebchuk and Fried tell a consistent story of how management influence taints and distorts the compensation process. Although they frequently refer to theoretical models and empirical studies that support their argument, this section was clearly written with a lay reader in mind. Bebchuk and Fried's efforts in this regard are quite successful; they have produced a highly accessible indictment of executive compensation practices. …

Journal Article
TL;DR: McLain and Fleming as discussed by the authors argue that the real potential for progressive change lies not with the implantation of a more expansive catalogue of first and second generation rights, but with the advancement of distributive justice against a more traditional liberal standard that focuses primarily on civil liberties and formal equality.
Abstract: Linda McClain and Jim Fleming have written a thoughtful critique of one of the main arguments in my recent book Towards Juristocracy: The Origins and Consequences of the New Constitutionalism.1 In focusing on an argument that occupies approximately one-third of the book, they inevitably overlook some of the book's other (and I'd humbly suggest, at least equally significant) arguments. McClain and Fleming subject the book's genuinely non U.S.-centered themes to scrutiny by canonical liberal American constitutional theory. They correctly argue that liberal American constitutionalists have seldom harbored hopes that courts may advance progressive notions of distributive justice and social and economic rights.2 But just how relevant this point is for an understanding of the Canadian, Israeli, or South African constitutional landscape is not entirely clear. In each of these countries, the debate about the status of social welfare rights, such as the right to healthcare, education, housing, or work, is at the core of constitutional discourse-judicial, academic, and otherwise. The courts in these polities, while embracing a creative and often activist interpretation of so-called "first generation rights," have nevertheless remained lukewarm at best to the option of interpreting pertinent constitutional rights provisions to include social and economic rights.3 Echoing this selective judicial interpretation of constitutional rights, McClain and Fleming suggest that the real potential for progressive change lies not with the implantation of a more expansive catalogue of first and second generation rights. Rather, as they see it, the advancement of distributive justice is better assessed against a more traditional liberal standard that focuses primarily on civil liberties and formal equality.4 Had I adopted a definition of progressive change that includes gender equality, they suggest, one would have reached a less skeptical conclusion than mine concerning the potential ability of constitutionalization and judicial review to advance progressive notions of distributive justice.5 This is a soothing argument for anyone who wants to see courts as "the most enlightened branch." Alas, it is based on a simplistic and at times illinformed conceptualization of equality, capabilities, and life opportunities. My aim in this brief rejoinder is to address some of the thought-provoking points made by McClain and Fleming, while taking the opportunity to say a few words about the recent intellectual renaissance of comparative constitutional law. But first we must set the record straight. I. What Are the Arguments Actually Put Forth in Towards Juristocracy? Towards Juristocracy advances a number of arguments. It opens with the observation that "[o]ver the past few years the world has witnessed an astonishingly rapid transition to Juristocracy."6 From Canada and Israel to the European Union, fundamental constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries, whether domestic or supranational. Most of the polities that have hosted such an expansion of judicial power have recently adopted a constitution or undergone constitutional revision that contains a bill of rights and establishes some form of active judicial review.7 An adversarial rights discourse has been establishing itself in most of these polities as one of the dominant forms of political discourse.8 A commonly held belief that judicially affirmed rights are self-implementing forces of social change (removed from the constraints of political power) has gained a near-sacred status in public discussion. National high courts and supranational tribunals meanwhile have become increasingly important, even crucial, political decisionmaking bodies. To paraphrase Alexis de Tocqueville's observation about the United States, there is now very little moral or political controversy in the world of new constitutionalism that does not sooner or later become a judicial one. …

Journal Article
TL;DR: Kramer's The People Themselves as mentioned in this paper is a history of popular constitutionalism in America, focusing on the early years of the 20th century when the Court was the sole authoritative expositor of the United States Constitution.
Abstract: Are "the People" Missing in Action (and Should Anyone Care)? THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW By Larry D Kramer[dagger] New York: Oxford University Press, 2004 Pp xii, 363 $2995 For almost a half century, the Supreme Court has claimed that it is the final authority on the meaning and interpretation of the Constitution1 This notion is most forcefully asserted in the O'Connor-Kennedy-Souter opinion in Planned Parenthood v Casey, where the trio argued that when the Court decided a contentious constitutional issue, it was the duty of all Americans to put their differences aside and follow the Court's lead2 Subsequently, in Boerne,3 Dickerson,4 and Morrison,5 a majority of the Court signaled their adherence to the belief that the Court is the sole authoritative expositor of the Constitution This allegiance was subsequently validated when awestruck Democrats conceded that Bush v Gore6 (while disagreeable and wrong) was within the Court's province as "the ultimate interpretation of our Constitution" and had to be accepted7 If the ranking Democrat on the Senate Judiciary Committee believes this, it is no wonder that ordinary citizens do not "gainsay" the Court8 It wasn't always like this Thomas Jefferson never believed that the judiciary had the last word9 Andrew Jackson vetoed the rechartering of the Bank of the United States,10 showing his contempt for McCulloch v Maryland11 Abraham Lincoln and the Republicans rejected Dred Scott12 and refused to be bound by it (except in its exact holding that Scott was not free)13 Franklin D Roosevelt had prepared a message announcing that he would ignore the Court's decision in the Gold Clause Cases14 And if the Court had intervened uninvited into the deadlocked presidential election of 1876,15 the losers would not have been resigned to claiming "we've been robbed"16 Larry Kramer's The People Themselves demonstrates that "[t]his modern understanding reflects neither the original conception of constitutionalism nor its course over most of American history"17 Thus until the modern era, "[P]roblems of fundamental law-what we would call questions of constitutional interpretation-were thought of as problems that could be authoritatively settled only by 'the people' expressing themselves through"18 voting, petitioning, pamphletting, public meetings, as well as through intimidation of officials, and, if necessary, mob action19 This was a world of popular constitutionalism where the people exercised "active and ongoing control over the interpretation and enforcement of constitutional law"20 The Court was one, but only one, player in identifying the meaning of the Constitution Although Kramer is not an originalist,21 The People Themselves is a plea for the revival of the beliefs and actions of this earlier period While Kramer's history through the Jacksonian Era is sound, his conclusions about the past fifty years are deeply flawed First, he is oblivious to numerous modern movements that have vigorously opposed, in a variety of forms and fora, the Court's interpretation of the Constitution second, a look at these movements raises serious questions regarding how normatively attractive popular constitutionalism is in our era It may be, contrary to Kramer's position, both that we still have popular constitutionalism and that we would be better off without it I see four possibilities that may explain why I can see popular constitutionalism where Kramer does not First, Kramer's interpretation of what constitutes popular constitutionalism may be so elusive that only he can apply it Second, perhaps Kramer is indifferent to American constitutional development (outside the Court) after the Court-packing plan Third, maybe Kramer sees popular constitutionalism only when he approves of the goals of the protestors Finally, maybe deeds alone are insufficient for Kramer and without the requisite magic rhetoric they do not carry the appropriate meaning …

Journal Article
TL;DR: In the United States, buying land has generally been regarded as the best way to protect natural resources as mentioned in this paper. But we have doubts about the sufficiency of ownership as a means of protecting land and we are concerned about the general tendency to talk about land acquisition as if water were included by implication.
Abstract: I. Introduction In the United States, buying land has generally been regarded as the best way to protect natural resources. But we have doubts about the sufficiency of ownership as means of protecting land.1 We are also concerned by the general tendency to talk about land acquisition as if water were included by implication. Generally, it is not. Despite the intimate link between land and water in ecosystems, links between the two in conservation acquisitions have never been straightforward. The purpose of this Article is to explore the history and evolution of those ambiguous connections with particular reference to the growing importance of conservation easements as a tool of land acquisition. We use the term "riparian mindset" to describe the problematic impulse to use conservation as an excuse for buying land, while ignoring water or presuming that water necessary to achieving the conservation goals would simply be attached to the acquired land. The standard story of the American conservation movement begins with the Progressive era and focuses on reservations of federally owned public domain lands for national forest, park, and wildlife refuge purposes. Those reservations were, we have argued elsewhere, preceded and complimented by durable public and private efforts to acquire land for conservation purposes, initially and most obviously in the eastern United States, where the public domain was far less extensive. All of these early transactions were characterized by elements of the riparian mindset. In the West, where many states oversee water allocation without regard to riparian land ownership, the Supreme Court partially protected early federal land reservations from the consequences of not mentioning water in most of the key documents. In a long series of cases the Court fabricated an implied reservation of water.2 Advocates of early land acquisitions found no such safety net in the courts or in the riparian doctrine that prevails in the East. While voluble regarding both water quality and quantity in urging purchases of land, conservationists said and did little else about their putative water goals. Whatever success those land acquisitions have had in protecting water has been largely coincidental. But where the early transactions typically involved full-fee ownership, today, conservation easements are the dominant acquisition tool. Although the ecological connections between land and water are better understood in 2005 than they were a century ago, water has still not emerged as a clear conservation priority when acquisition programs are considered. A recent report for the Trust for Public Land (TPL) and The Nature Conservancy (TNC) suggests how rhetorically powerful water can be in a land acquisition program. It identifies broad rules for employing terms that appeal to the general electorate. "FIRST and foremost," the lesson was to talk about water: "[W]ater cannot be stressed enough . . . ."3 Secondly, the report emphasized the need to "stress 'preserving' water quality."4 But talking about water is not enough. It is common to note that ecosystem-level conservation demands moving beyond a parcel-by-parcel analysis. Herein we argue that it also means moving beyond a land-centric analysis. As global warming has already begun to alter basic assumptions about water availability, clarity about water protection seems mandatory. Conservation acquisitions must address land and water together.5 How that might be done, and what specific problems arise when combining water protection and conservation easements, are less clear. Acquisition-even full-fee purchase-is one strategy among many available for pursuing conservation goals. Like everything else, it has limitations. But conservation easements, now the dominant tool for acquiring conservation land, have most of the limitations of full-fee purchase, with additional problems as well. Moreover, just as conservation easements are more complex than full-fee acquisitions, we will argue that using conservation easements to address water issues adds additional layers of complexity. …

Journal Article
TL;DR: The legacy of water development can be divided into two categories: those that dismember riverine systems through development and extractive uses: agriculture, inland shipping channels, hydropower, floodplain development, and urban water use.
Abstract: Soon after the Constitution was ratified, the national government began a water development program based on the premise that rivers best serve society if they are controlled, diverted, and dammed. In 1802, the year the Army Corps of Engineers was established, such an approach was an accurate reflection of the needs and realities of the new nation. In 2005, it is hopelessly anachronistic and no longer reflects the economic interests or social values of the country. As a result, there is a critical disjuncture between U.S. water policy and America's water needs. But political tradition, fueled by pork-barrel politics and special-interest welfare, has made it politically difficult to move beyond the policies of the past. Despite this resistance, there is an inexorable movement toward a new era in water policy, one that is more accurately characterized as river policy, because it focuses on healthy, intact river systems that are viewed as an integral part of the public commons. Thus, the next era in national policy will focus on restoring and preserving intact riverine systems. The uses of rivers can be divided into two categories. The first includes those uses that dismember riverine systems through development and extractive uses: agriculture, inland shipping channels, hydropower, floodplain development, and urban water use. The second category consists of those uses that thrive only in the context of healthy, intact river systems: habitat preservation, water quality preservation, and recreation and tourism. This Article's argument is not that we should abandon the first category in favor of the second, but rather that current levels of development can easily meet the needs of the first category. Indeed, we can reverse some development and still adequately meet the needs of economically rational uses. The new policy era represents a reprioritization of water favoring nonextractive, sustainable, economically viable uses that serve the broad, long-term public interest. This Article will assess some of the accomplishments, and costs, of 200 years of water development and then present an analysis of current uses and preferences. This analysis will make obvious the gap between what we have done to our rivers and what we want from our rivers. I. The Legacy of Water Development In a sense, the long-held policy of developing rivers has been wildly successful. Such projects have been viewed as so clearly beneficial that elected officials and government bureaucrats have championed them for two centuries. Believing that any project was better than no project, a broad array of political forces pushed for these projects even when their economic justifications were questionable, if not overtly illogical. Driving this attitude was a larger social construct that mankind was best served by captive rivers that otherwise were a plague on society. W.J. McGee, President Theodore Roosevelt's water advisor, captured this belief succinctly when he explained that the control of water "was the single step remaining to be taken before Man becomes master over Nature."1 This belief was reflected in the policies and organizational culture of the federal government's principal water development agencies, the Army Corps of Engineers and the Bureau of Reclamation. The Corps of Engineers revealed its philosophy in a 1950s-era film produced to extol the virtues of the Kissimmee River channelization project; the film's narrator explained that the project was designed to "control the water and make it do our bidding," subduing the "crazed antics of the elements."2 The Bureau of Reclamation had a similar philosophy. A 1946 report, recommending that dams be built in the Grand Canyon, was titled "The Colorado River, A National Menace Becomes a Natural Resource."3 The Bureau's most colorful commissioner, Floyd Dominy, forcefully summarized its attitude when he said "[t]he unregulated Colorado River was a son of a bitch. It wasn't any good. …

Journal Article
TL;DR: In this paper, a farmer in California who receives water from a project operated by the Bureau of Reclamation (BOR), an agency of the U.S. government, has argued that the BOR's prior appropriation of water from his land is not an absolute right by any means.
Abstract: Dramatis Personae (in order of appearance): Faith is a farmer in California who receives water from a project operated by the Bureau of Reclamation (BOR), an agency of the U.S. government. Her 320-acre farm was established by her parents 40 years ago, on arid land they bought in anticipation of the federal government's building that water project to capture, store, and deliver water to irrigate the farm and others like it. For most of the last four decades, in years of normal and wet precipitation, Faith has received 1600 acre-feet of water to irrigate cotton. In drought years, she has received less, and in a couple of extremely dry years she has received no water. Over the most recent several years, however, the government has taken steps, mandated by a suite of federal and state laws (most prominently, the federal Endangered Species Act),1 to restore some semblance of aquatic health to the river system that supplies water to Faith and other farmers. These steps have led the BOR to interrupt delivery of water to Faith more often than previously in years of less-than-normal precipitation. Faith has filed a claim for compensation. This conversation assumes that Faith can claim a legal interest in a surface water right under the California state law of prior appropriation for the water used to irrigate her farmland.2 Frank /5 a government lawyer representing the project that delivers water to Faith. Rodger is Faith's lawyer. I. The Nature of Private Property Rights in Water A. Conflicts Between Appropriative and Riparian Water Rights Faith: I believe in a healthy environment, and I'm all for protecting fish. But when the government takes my water to do that, I want to be paid. The Constitution protects property like my water right from governmental confiscation. I'm not asking for special treatment here. Frank: Let me start by saying, Faith, that I agree-water rights are a form of property. But not all property is the same. Property rights can attach to things as intangible as stocks and patents and to things as tangible as furniture and land. The degree to which the Constitution protects property rights against governmental action varies a great deal, depending on, among other things, the nature of the property right involved. Faith: Are you suggesting my water right is not genuine property? Frank: Your water right is property, but it's a very peculiar kind of property. Your water right does not give you an absolute entitlement to a fixed amount of water every year. It is much more limited than that. The most obvious limit is, of course, that Mother Nature must make the water available. As you well know, in dry years you may get nothing because no water may be available. But besides nature's limits, the law qualifies the very character of your property right in some important ways. It is not an absolute right by any means. In fact, the law affords your water right little or no protection from certain kinds of actions by the government or by private parties. For example, in California, as in most states, there are actually several different types of water rights. Looking first at rights in surface water, California recognizes two kinds of water rights-prior appropriation (the right you have) and riparian rights.3 Riparian rights are much different from prior appropriation rights. They are not based on actual use of water, but arise merely from owning land that borders a watercourse. On the stream from which the water you use is taken, there are probably riparian landowners who have such water rights. Integrating their riparian water rights with your appropriative rights can be difficult. Indeed, the U.S. Supreme Court once observed that the task of meshing the two very different kinds of rights has "vexed [the California] judiciary for a century."4 Sometimes the rights fundamentally conflict with each other; that is, both cannot be satisfied at the same time. …

Journal Article
TL;DR: This paper showed that the preferences in the admissions program upheld in Grutter v. Bollinger were larger than those in the admission program struck down in Gratz, and that the fraction of qualified minority applicants for whom race was decisive was smaller in the admitting program suspended by Grutter and Gratz than it was in the one suspended by Bollinger.
Abstract: The Supreme Court's affirmative action decisions in Grutter v. Bollinger and Gratz v. Bollinger changed the meaning of "narrow tailoring." While the narrow tailoring requirement has always had multiple dimensions, a central meaning has been that the government must use the smallest racial preference needed to achieve its compelling interest. We might have expected, therefore, that if the Court were to uphold one of the two programs at issue in Grutter and Gratz, it would, all other things being equal, uphold the program with smaller racial preferences. We show, however, that the preferences in the admissions program upheld in Grutter were larger than the preferences in the admissions program struck down in Gratz. This result was not necessarily wrong, but the Court's analysis was wrong. The Grutter and Gratz Courts replaced the "minimum necessary preference" requirement with a requirement that admissions programs provide "individualized consideration," which we show amounts to a "Don't Tell, Don't Ask" regime. The Court will not "ask" probing questions about the size and differentiation of preferences as long as the government decisionmaker does not "tell " the Court how much of a racial preference it is giving. Indeed, as an example of the differential standards the Court applied, we demonstrate that while the Court impugned the admissions program at issue in Gratz for making race decisive for "virtually every minimally qualified minority applicant," in fact the fraction of qualified minority applicants for whom race was decisive was smaller in the admissions program struck down in Gratz than it was in the admissions program upheld in Grutter. We call for a return to the minimum necessary preference requirement. Instead of examining whether preferences are "individualized, " courts should determine whether the constitutionally relevant benefits of granting preferences of a given size outweigh the constitutionally relevant costs, both overall and at the margin. I. Introduction The Supreme Court's decisions in Grutter v. Bollinger1 and Gratz v. Bollinger2 represent a sea-change in the requirement that affirmative action plans be "narrowly tailored" to further a compelling government interest. While the narrow tailoring requirement has always had multiple dimensions,3 a central meaning has been that the government must use the smallest racial preference needed to achieve its compelling interest.4 Sometimes expressed as a requirement that plans use the "least restrictive" or "least burdensome" alternative, a core idea has been that plans should use the minimum necessary racial preference.5 If the government objectives could be fulfilled without use of a racial preference, then no racial preference would be allowed.6 If only mild racial preferences were needed to achieve the compelling government interest, then nothing more than mild preferences would be constitutionally countenanced. Grutter and Gratz changed all of this. At least in the university admissions context, these opinions jettisoned this "minimum necessary preference" requirement and in its place imposed a requirement that affirmative action programs be "individualized." This Article unpacks the possible meanings of individualization. We show that the Court's individualization inquiry requires consideration of the extent to which racial preferences are (1) quantified, (2) undifferentiated, and (3) excessive.8 Under Grutter and Gratz, quantification of preferences essentially triggers stricter scrutiny of differentiation and excessiveness. The Grutter and Gratz decisions establish a kind of "Don't Tell, Don't Ask" regime. If the government decisionmaker does not "tell" courts how much of a racial preference it is giving (by not quantifying its preferences), courts will essentially not "ask" probing questions about whether the preferences are differentiated or excessive. In sharp contrast, courts will subject plans that do "tell" to stricter scrutiny-which is likely to be fatal in fact. …

Journal Article
TL;DR: For example, this paper argued that there was insufficient probable cause to obtain a warrant for a search of Moussaoui's laptop in the wake of the 9/11 attacks, and argued that a crime eventually occurs does not mean that probable cause existed at every antecedent point in time.
Abstract: [A]lthough I thought that probable cause existed ("probable cause" meaning that the proposition has to be more likely than not, or if quantified, a 51% likelihood), I thought our United States Attorney's Office . . . [is] regularly requiring much more than probable cause before approving affidavits, (maybe, if quantified, 75%-80% probability and sometimes even higher) . . . .1 I. Introduction Nearly a month before the September 11 attacks, FBI agents in Minneapolis arrested Zacarias Moussaoui on an immigration overstay violation. His perplexing determination to fly, or simply steer, a jumbo jet, combined with his links to radical Muslim fundamentalists, sparked concern in the FBI's Minneapolis field office. Moussaoui's claims, when questioned, to being "just a businessman," proved specious, and agents were eager to confirm, or allay, their relatively inchoate concerns by searching Moussaoui's laptop computer. Yet Moussaoui refused to consent. Was there probable cause to obtain a warrant?2 Coleen M. Rowley, the Chief Division Counsel of the FBI's Minneapolis office, thought so.3 As reflected in the quotation that introduces this Article, she placed the likelihood of criminal activity at greater than fifty percent. The established practice in the federal system, however, requires law enforcement officers to secure approval for warrant applications from a prosecutor, and in Rowley's estimation, the U.S. Attorney's Office in Minneapolis required showings akin to a "clear and convincing" evidentiary IMAGE FORMULA13 standard. In late August, Rowley instead tried to convince FBI headquarters to approve a warrant under the Foreign Intelligence Surveillance Act. But headquarters balked, despite the persistent, and increasingly frantic, efforts on the part of Rowley and others in the Minneapolis office. Months after the September 11 attacks, Rowley sent FBI Director Robert Mueller a memo excoriating headquarters for its refusal to approve the warrant application.4 Among the important issues raised in the Rowley Memorandum5 is the meaning of probable cause, that elusive and perhaps hopelessly indeterminate constitutional standard for the issuance of law enforcement warrants.6 For her arguments on this point and several others, Rowley was hailed, after the memo's publication, as "[t]he blunt Midwesterner" ultimately vindicated in her struggle with Washington bureaucrats. And yet, was she vindicated? The fact that a crime eventually occurs does not mean that probable cause existed at every antecedent point in time. If a police officer sees four former felons gathering in the back room of a bar, probable cause does not then exist to arrest them and search their homes. Even if it emerges that a bank robbery could have been prevented had warrants been issued, hindsight bias should not cloud an assessment of probable cause. Perhaps sensing the direction and violence of the political winds, Director Mueller declined to make this point forcefully in response to the Rowley Memorandum. In fact, he joined the chorus of fulsome praise. But in the midst of his commendation of the "aggressive[]" efforts of the Minneapolis field office, Mueller struck this discordant note: "The attorneys back at the FBI determined that there was insufficient probable cause for a [warrant], which appears to be an accurate decision."8 In effect, then, Mueller seemed to suggest, if ever so tactfully, that with respect to one of the central points of her memo, Rowley was wrong.9 IMAGE FORMULA15 The layperson may be excused for finding all of this bewildering. We are to understand that the FBI acted commendably in investigating Moussaoui, that there was a nontrivial likelihood that he was engaged in criminal activity of the gravest sort, and that the search the FBI proposed to conduct of Moussaoui's laptop was narrowly tailored to address its concerns. …

Journal Article
TL;DR: Trass's Eats, Shoots, and Leaves (ESLeaves) as discussed by the authors is the first British book on punctuation to become a bestseller in the US.
Abstract: Don't Know Much About Punctuation: Notes on a Stickler Wannabe EATS, SHOOTS & LEAVES: THE ZERO[-]TOLERANCE APPROACH TO PUNCTUATION By Lynne Trass London: Profile Books, 2003 Pp xxvii, 212 £999 Any experienced editor who spends much time in both Britain and America will probably conclude that, on the whole, British standards of punctuation are somewhat lower than American ones An example or two won't really suffice, but I'll give them anyway The renowned legal scholar Peter Birks's obituary in The Times last summer-written by an Oxford don-was riddled with the most elementary punctuation errors: many missing commas, several wrongly inserted commas, a superfluous hyphen, missing hyphens, and a missing apostrophe (omitted from master's degree)-not to mention a couple of grammatical bungles1 These weren't discretionary matters: professional editors would call them outright errors There were 11 inarguable punctuation mistakes Regular readers of The New York Times, the closest analogous publication to The Times, would find it unthinkable for such sloppy work to appear in its own obit pages2 As another example, serious slippage on apostrophes started earlier in England than it did in America, and it has gone further British names such as Harrods and Selfridges lost their apostrophes long before similar names in America started losing them In 1979, Garners Steakhouse could be seen prominently in London-yet the proprietor was someone named Garner, not Garners I couldn't help asking, and I wasn't the only American in my group driven to distraction over the point Small wonder that the late Robert W Burchfield, editor in chief of the Oxford Dictionary Supplement, predicted that the apostrophe would disappear from English3 He was preceded by George Bernard Shaw, who in 1902 wrote that "[t]here is not the faintest reason for persisting in the ugly and silly trick of peppering pages with these uncouth bacilli"4 ' Yes, the Brits (not Brit's) have long needed help in punctuation5 Not that Americans can't use some as well, but the British need it even more In fact, it's fair to say that in edited prose, American standards of usage are generally higher than British ones That may seem hard to substantiate, but 25 years of close professional observation, and voluminous research and writing on the subject, make it pretty clear to me So it's heartening to think that a British book on punctuation could become a runaway bestseller No punctuation book before Lynne Truss's Eats, Shoots & Leaves6 ever did that Even in the early 19th century-when the American Lindley Murray became known as "the father of English grammar"7 on both sides of the Atlantic, and his grammar books sold more than 15 million copies8-contemporary punctuation books probably fared poorly After all, Murray's 1795 English Grammar contained 15 pages on the subject, and that treatment probably struck most readers as adequate One imagines that the soon-to-appear books on punctuation didn't sell so very well There was Cecil Hartley's 1818 Principles of Punctuation? followed a few decades later by John Wilson's 1856 book entitled The Elements of Punctuation,10 which by 1899 appeared in its 31st edition (the printings were probably small)11 There was Adams Sherman Hill's 1878 booklet called General Rules for Punctuation,12 abstracted from his excellent Principles of Rhetoric13 Marshal Bigelow's Punctuation and Other Typographical Matters14 appeared three years later Then in 1893, Edmund Shaftesbury's One Hundred Lessons in Punctuation15 was published That book opens with stupendous hyperbole: "Probably the science and art of punctuation involve more departments of human learning than any other one branch of study"16 That's the kind of overearnestness that helped give punctuation books a bad name-to the extent that they had any name at all Fast-forward 90 years-past the splendid, instructive works of Robert M …


Journal Article
TL;DR: Hirschl's most recent work, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism as discussed by the authors, is a powerful and sobering book about the origins and consequences of the new constitutionalism.
Abstract: Constitutionalism, Judicial Review, and Progressive Change TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM. By Ran Hirschl.[dagger] Cambridge, MA: Harvard University Press, 2004. Pp. 286. $52.50. I. Introduction: Against Juristocracy We want to begin by marveling at the ambition, erudition, and passion of Ran Hirschl's powerful and sobering book, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism.1 Hirschl's aim, roughly, is nothing less than to do for the world what Gerald Rosenberg set out to do for the United States in The Hollow Hope: Can Courts Bring About Social Change?2 That is, he aims to dispel what he views as the hollow hope that constitutionalism and judicial review will bring about progressive change around the world. At the outset, though, we should note two differences between Hirschl's and Rosenberg's projects. One, Rosenberg pointedly asked the question, "Can courts bring about social change?" and answered in the negative, whereas Hirschl instead asks, "Have courts brought about progressive economic change?" and concludes that they have not. Two, Rosenberg argued that courts cannot bring about liberal social change, whereas Hirschl argues that courts have not brought about progressive economic change. Rosenberg focused on the hollow hopes of liberals for social change securing, for example, racial equality (Brown v. Board of Education3) and women's reproductive freedom (Roe v. Wade4), while Hirschl focuses on hollow hopes for progressive economic change furthering distributive justice and securing welfare rights. Hirschl develops powerful and provocative arguments about the origins and consequences of the new constitutionalism-the "astonishing rapid transition to what may be called juristocracy."5 By this coinage, he refers to the transfer of "an unprecedented amount of power from representative institutions to judiciaries," evident in the increasing adoption of judicial review, even in countries that historically have resisted it.6 The book is certain to engender serious engagement with these arguments, and it deserves to do so. In critiquing Hirschl's analysis of constitutionalism and judicial review, we shall focus on the three points sketched below. The first two emphasize American constitutional theorists and jurists, and the third looks primarily at constitutionalization in Israel, Canada, and South Africa. (Hirschl focuses on these three countries, along with New Zealand.) Although Hirschl's focus is not on American constitutional theorists and jurists or on American constitutional practice, he does suggest that the American practice of constitutionalism and judicial review-and justifications of that practice-have inspired other countries to adopt constitutional limitations and judicial review. Thus, such theorists and justifications are a brooding omnipresence and warrant analysis. One of the great virtues of Hirschl's book is that it is accessible to generalists in constitutional law as well as to specialists in comparative constitutional law.7 And, happily, three out of four of the countries he analyzes are English-speaking, with opinions in English. 1. Since when are constitutionalism and judicial review paths to progressive economic change? Here we concede for the sake of argument that courts have not brought about progressive economic change, but we question whether liberals and progressives in American constitutional law ever harbored any hollow hopes that courts would do so. 2. The missing discourse of taking constitutions seriously outside the courts. Here we concede that some American liberals and progressives have viewed the American Constitution as securing welfare rights, but we contend that they have conceived these rights, not as judicially enforceable, but as what Lawrence G. Sager calls "judicially underenforced" norms.8 These American liberals and progressives have looked to legislatures, executives, and citizens generally to enforce more fully these constitutional norms by taking the Constitution seriously outside the courts. …

Journal Article
TL;DR: Schwarcz et al. as discussed by the authors discussed the role of lawyers and accountants in disclosing information to investors in structured finance transactions, particularly where accountants separately use these opinions, beyond their traditional primary use, for determining whether to characterize the transactions as debt.
Abstract: Steven L. Schwarcz* Significant controversy surrounds the issuance of legal opinions in structured-finance transactions, particularly where accountants separately use these opinions, beyond their traditional primary use, for determining whether to characterize the transactions as debt. Reflecting at its core the unresolved boundaries between public and private in financial transactions, this controversy raises important issues of first impression: To what extent, for example, should lawyers be able to issue legal opinions that create negative externalities? Furthermore, what should differentiate the roles of lawyers and accountants in disclosing information to investors? Resolution of these issues not only helps to demystify the mystique, and untangle the morass, of legal opinion giving, it also affects the very viability of the securitization industry, which dominates American, and increasingly global, financing. * Stanley A. Star Professor of Law & Business, Duke University School of Law; Founding Director, Duke Global Capital Markets Center. E-mail: schwarcz@law.duke.edu. The author thanks, for their invaluable comments, James Boyle, John C. Coffee Jr., C. Ronald Ellington, Arthur Field, Donald W. Glazer, Scan Griffith, Susan Komak, Jonathan Macey, Barry Nakell, Richard Painter, Nancy Rapoport, Robert Rasmussen, Daniel Schwarcz, William Simon, participants in a Columbia Law School symposium on this Article sponsored by the Center for Corporate Governance, and participants in faculty workshops at Cornell Law School, Duke University School of Law, Fordham Law School, and University of North Carolina School of Law. He also thanks John Douglas, Andrew Hecht, Rori Bailin, and especially Jesse H. Rigsby, IV, for research assistance, and Mike Laussade, Jennifer Curtin, and their colleagues at the Texas Law Review for excellent editorial assistance. Although the author is a consultant and possible expert witness in a case involving legal opinions in structured finance, the views expressed in this Article are entirely his own and intended to be impartial. In a vital area of finance, lawyers are being increasingly criticized,1 and sometimes even threatened with liability,2 for issuing traditionally required legal opinion letters.3 Although their primary use is to assure investors and rating agencies on bankruptcy issues,4 these so-called "true sale" and "nonconsolidation" opinions are often separately used by accountants for advising that structured-finance transactions5 should be characterized, in a company's financial statements, as "off-balance-sheet financing" rather than debt.6 The former characterization allows a transaction to be accounted for as a sale of assets and not a borrowing-the rationale being that the assets are (as the opinions provide) legally sold by the company to a separate entity,7 and even bankruptcy of the company will not reverse that sale or allow a court to consolidate the assets of the company and that separate entity.8 Thus, the company engaging in the transaction does not have to show additional debt on its balance sheet.9 Structured-finance transactions include securitization, project finance, and similar transactions in which companies originating financial assets, such as accounts receivable, loans, or lease rentals, utilize special-purpose vehicles (SPVs, sometimes referred to interchangeably as special-purpose entities or SPEs) to facilitate the transaction. In a typical securitization transaction, for example, the company (sometimes referred to as the "originator") sells rights to payment from the financial assets to a wholly owned SPV, which in turn transfers these rights to an independent SPV, which in turn issues securities to capital market investors. The independent SPV uses the proceeds of the issuance to pay the first SPV for the financial assets, and the first SPV then uses those proceeds to pay the originator. The investors, who are repaid from collections of the financial assets, buy the securities based on their assessments of the value of the financial assets. …

Journal Article
TL;DR: In this article, the authors argue that patent laws strike a "delicate" balance "between inventors, who rely on the promise of the law to bring the invention forth, and the public, which should be encouraged to pursue innovations, creations, and new ideas beyond the inventor's exclusive rights."
Abstract: Writing for a unanimous Court in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Justice Anthony Kennedy recognized that patent laws strike a "delicate" balance "between inventors, who rely on the promise of the law to bring the invention forth, and the public, which should be encouraged to pursue innovations, creations, and new ideas beyond the inventor's exclusive rights."1 At a very high level, Congress, acting through its Article I power, effectuates that balance by placing requirements of usefulness, innovation, nonobviousness, and disclosure upon inventors and rewarding those who meet the statutory requirements with a right of exclusion over their inventions for a limited time. That balance, however, is put at risk when a court-typically the Federal Circuit-alters the existing rules and changes the requirements for patentability set by Congress. Recognizing this concern, Justice Kennedy's opinion in Festo cautioned against unexpected changes in the law: Fundamental alterations in [patent rules] risk destroying the legitimate expectations of inventors in their property. . . . "To change so substantially the rules of the game now could very well subvert the various balances the [Patent and Trademark Office (PTO)] sought to strike when issuing the numerous patents which have not yet expired . . . ."2 Because the Federal Circuit has jurisdiction over nearly all patent appeals in the United States,3 that court influences the scope and direction of patent law and works to develop a comprehensive body of law that can be relied upon by inventors who are investing time and money into the development of new technology. When the Federal Circuit changes course and applies new standards of patentability to issued patents,4 many patents thought to be valid and enforceable are suddenly at risk of being held worthless. All may not be not lost for patent holders, however. Militating against the government's power to control property rights is the Takings Clause, which prevents the government from taking private property for public use without providing just compensation.5 The Takings Clause prevents the government from requiring "some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."6 This Note examines the Takings Clause implications of Federal Circuit decisions that dramatically depart from settled precedent. Specifically, this Note argues that when the Federal Circuit makes a fundamental change in the law that dramatically departs from settled precedent, that change should raise questions under the Takings Clause of the Fifth Amendment. Part I outlines the Supreme Court's Takings Clause jurisprudence, grapples with whether the Takings Clause applies to intellectual property, and sketches a preliminary definition of a "judicial taking." Part II defends a judicial takings doctrine, both in the general and patent-specific contexts, and responds to several common objections. Part III fleshes out the judicial takings concept: subpart III(A) addresses threshold questions; subpart III(B) addresses procedural considerations; and subpart III(C) illustrates how the Supreme Court's regulatory takings jurisprudence would apply to fundamental changes in patent law. Part IV concludes. I. Takings and Judicial Takings The Fifth Amendment provides, in part, that "private property [shall not] be taken for public use, without just compensation."7 Subpart A explores the Supreme Court's factual, ad-hoc balancing test for regulation short of repossession under the Takings Clause. Subpart B addresses whether the Takings Clause does (or even should) apply to intellectual property in general and to patents specifically. Subpart C sketches the contours of a judicial taking that is defended in Part II and more fully developed in Part III. A. Takings The Supreme Court has recognized that "[t]he question of what constitutes a 'taking' for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty. …

Journal Article
TL;DR: Clark v. Martinez as mentioned in this paper was a seminal case in the history of the notion of strong unitary principle in the interpretation of a single word in a single provision. And it was the case that led to the creation of a new and unique canon of statutory construction, a canon that this article will refer to as the strong-unitary principle.
Abstract: [We decline to] establish within our jurisprudence, beyond the power of Congress to remedy, the dangerous principle that judges can give the same statutory text different meanings in different cases. -Clark v. Martinez, 125 S. Ct. 716, 727 (2005) (Scalia, J.). I. Introduction The Supreme Court's statutory interpretation cases present an ongoing clash among methods of statutory interpretation-a clash that reflects a larger dispute over the proper judicial role in our system of government. On one side, the textualists tend to prefer mechanical, rules-based methods of interpretation that, at least ostensibly, minimize the role of judicial choice in the interpretive process.1 The other side, often (though not invariably) in the name of implementing congressional intent, prefers a more flexible, standards-based approach, which calls upon courts to make intelligent choices and, on appropriate occasions, to deviate from the most straightforward reading of statutory text in order to reach the most appropriate result.2 In this clash among interpretive methods, the textualists recently won another battle. Indeed, their victory was unusually powerful. Not only did Justice Scalia convince the Supreme Court to resolve a case on textualist grounds, he convinced six other Justices to join an opinion stating that a particular textualist rule of statutory construction is so strong that it must always apply; courts lack power to deviate from it. The case, Clark v. Martinez,3 turned on the question of whether a single term in a single statutory provision must always have a single meaning. If, for example, a statute takes the form, "if (A or B), then C," must C have the same meaning in cases involving A as in cases involving B? In Martinez, the Supreme Court said the answer is always yes.4 Like so many issues of statutory interpretation, this seemingly simple question implicates the largest issues, both of statutory interpretation and, ultimately, the proper judicial role in our system of government. Martinez is notable on two levels: first, for its creation of a new and unique canon of statutory construction, and second, for what it says about the Supreme Court's understanding of the judicial role. This Article explores Martinez on both levels, using the case as a window into the larger questions of statutory interpretation and the separation of powers. First, the Article explores whether there is really a canon of statutory construction that requires courts to determine that a single phrase in a single statutory provision always has a single meaning-a canon that this Article will refer to as the strong unitary principle. Scholars have long considered the canons of construction as a fruitful field of study,5 but the question of whether courts actually employ the strong unitary principle has received but little attention.6 In Martinez, however, the Supreme Court not only determined that it would read the statute before it in accordance with the strong unitary principle, but it held that the principle must always apply.7 The Court asserted that any contrary interpretive approach would be "novel" and "dangerous."8 This Article first shows that the Court erred in its descriptive claim that departure from the strong unitary principle would be "novel." In numerous cases, courts, including the Supreme Court, have applied the contrary principle that a single term or phrase in a single statutory provision may have multiple meanings-an interpretive approach that this Article will call the polymorphic principle. As this Article will show, courts employ the polymorphic principle in a variety of situations, most commonly when some special rule of statutory interpretation calls for a particular construction of statutory text in one circumstance, but has no application in other circumstances.9 Courts also sometimes employ the polymorphic principle when necessary as a pure policy matter.10 The Article then takes on the Court's normative assertion that the polymorphic principle is "dangerous. …

Journal Article
TL;DR: In this paper, the authors provide a close analysis of Washington's famous remarks in Corfield v. Coryell, which is considered to be the most famous interpretation of the Privileges and Immunities Clause.
Abstract: Justice Bushrod Washington's famous discussion in Corfield v. Coryell1 of the meaning of the Privileges and Immunities Clause2 is, as Charles Fairman remarked, "certainly one of the most famous pronouncements ever made in a circuit court."3 The fame of Washington's decision is well-deserved, for it was long considered the authoritative interpretation of the Privileges and Immunities Clause.4 His discussion of the clause was one of the first offered by a federal court. He was surely capable of undertaking such initiatory interpretation, as he was no doubt aware of the original understanding of the clause. He had studied law with James Wilson (whom he replaced on the Supreme Court in 1798) and had been a member of the Virginia ratifying convention, where he had voted with James Madison, John Marshall, and others in favor of the Constitution.5 In fact, his pronouncement in Corfield represents one of the few elaborate interpretations of the Privileges and Immunities Clause left by anyone who participated in the adoption of the Constitution.6 Washington's Corfield opinion not only served as a leading interpretive authority for the Privileges and Immunities Clause, but also greatly influenced the drafting of the later Privileges or Immunities Clause of the Fourteenth Amendment.7 In the minds of the drafters of that Amendment, Corfield provided the most authoritative interpretation of the expression "privileges and immunities of citizens."8 Indeed, Washington's pronouncement was the legal authority to which the congressional framers most frequently appealed in describing the constitutional privileges of citizenship.9 Most notably, while introducing the proposed Amendment to the Senate, Jacob Howard explained the import of the "privileges and immunities of citizens" secured therein by means of a lengthy quotation from Corfield.10 Washington's exposition of "privileges and immunities of citizens" is, therefore, essential to American constitutional studies, for it provides evidence crucial to any inquiry into the roots of two different clauses of the Constitution: the Privileges and Immunities Clause of Article IV and the Privileges or Immunities Clause of the Fourteenth Amendment. Through Corfield, Washington both became the leading judicial expounder of the former provision and posthumously influenced the drafting of the latter. Surely, if one is to understand the history of the privileges of citizenship, as guaranteed in both the original and the amended Constitution, one must understand Corfield. Despite the compelling significance of the case, legal scholars have largely failed to give Corfield much attention. Even in studies devoted to the Privileges and Immunities Clause, discussions of the case generally cover no more than a few pages.11 In sum, Corfield v. Coryell remains a famous, important, but largely unexamined constitutional case. It is the purpose of this Note to provide, for the first time, a close analysis of Justice Washington's famous remarks. After surveying the scholarly treatment of Corfield in Part I, I begin the study with a sketch of the understanding of the Privileges and Immunities Clause that prevailed before Corfield. In Part II, I briefly examine the Framers' understanding of the provision; in Part III, I discuss some of the important questions that the Framers left unanswered; and, in Part IV, I survey the ways in which courts grappled with the clause prior to the Corfield decision. In Part V, the longest part, I present a detailed analysis of Justice Washington's opinion. In the concluding part, I consider in what way this opinion sheds light on the original understanding of the Privileges or Immunities Clause of the Fourteenth Amendment. I. The Limited Scholarship on Corfield In large part, the failure by scholars to give Corfield any careful attention is due to the fact that, for the courts, Washington's pronouncement no longer carries the authority that it once enjoyed. …

Journal Article
TL;DR: In this article, the authors examined both the adequacy of the contingent-worker protections afforded by Title VII of the Civil Rights Act of 1964(13) and the possible common law alternatives.
Abstract: The American workforce is evolving. While the American economy continues to rebound from the dotcom collapse and the events of September 11, the number of full-time jobs has declined.1 Companies are increasingly drawing from a growing transient and contingent workforce, one that has no long-term connection to any particular entity nor any long-term job security, and one that often receives few or no benefits and substantially less pay than its full-time counterparts.2 Companies hire independent contractors or easily expendable temporary and leased employees to work alongside their own regular workforces; this practice smoothes out virulent manufacturing cycles or seasonal sales periods at relatively little expense and without long-term commitment.3 Alternatively, outsourcing entire segments of nonessential operations has become increasingly popular as companies hire staffing firms at home and abroad to take control of their technical support, engineering, and call centers, often for pennies on the dollar.4 The contingent workforce, while having no precise definition, essentially encompasses the class of individual workers who are not regular, full-time employees of a company.5 Such workers can be divided into two broad categories: (1) contingent employees, that is, those individuals hired to work for a client company by staffing firms; and (2) independent contractors, who, unlike contingent employees, have no direct attachment to any employer at all.6 Given the fact that the contingent workforce appears to be increasing in size, several commentators have criticized the general failure of labor and employment laws to protect it and have called for either increased statutory protection for these workers or independent regulation of the industry.7 It has been argued that one of the primary motivations of employers who hire contingent workers is the entire avoidance of employment regulations.8 By supplementing their core employment force with contingent workers, some employers can keep their employment numbers below the statutorily defined minimum for qualification as an "employer," which allows such employers to completely escape the reach of certain employment regulations.9 In a related argument, commentators also maintain that individual contingent workers often do not receive federal employment discrimination protection because they do not meet the statutory or common law definitions of "employee."10 This Note reacts primarily to the latter complaint that individual contingent workers lack protection from client company discrimination.11 While this argument carries some force, individuals in contingent work arrangements are not entirely left out in the cold when it comes to remedies for client company discrimination. Although some commentators have called for the amendment of federal employment discrimination statutes to specifically address contingent workers, these broad reforms may not be necessary. In order to adequately assess the necessity of such reforms, one must first take a principled look at both the plain language and judicial interpretations of the federal antidiscrimination laws to determine the protections, and gaps in protection, created by the statutory scheme. Then, in a step that most commentators seem to have omitted,12 one must investigate the existing and potential common law alternatives for contingent workers who do not benefit from the antidiscrimination scheme's protections. Thus, this Note examines both the adequacy of the contingent-worker protections afforded by Title VII of the Civil Rights Act of 1964(13) and the possible common law alternatives. Part I explores in detail the nature of contingent employment arrangements, i.e., where staffing firms assign individuals to work for client companies. It concludes that, despite the general prevailing view to the contrary,14 these workers have adequate protection from discrimination under Title VII via two judicial interpretations of Title VII's span of coverage: (1) the acknowledgment of indirect or de facto employment relationships between contingent employees and client companies;15 and (2) the adoption of an interference theory under Title VII, whereby an individual can obtain a remedy from an employer who discriminatorily interferes with her existing or prospective third-party employment relationships. …

Journal Article
TL;DR: In this paper, the authors present an economic case against extending property rights to embryonic inventions and ideas and propose an alternative legal regime that would enhance innovation without impoverishing the public domain.
Abstract: If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea . . . .1 I. Introduction The metaphor "a marketplace for ideas" is a prominent theme in First Amendment scholarship.2 In the First Amendment context, ideas provide the impetus for robust public debate, a foundational element of a democratic society. Ideas not only spark debate, but are an indispensable input in technological progress and innovation. While legal and economic scholarship has focused on patents, which protect inventions, little attention has been given to the sine qua non of invention, and therefore of patents: the underlying idea. Thomas Jefferson famously expressed the unsuitability of ideas as a subject of private property: That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.3 Modern intellectual property law is a far cry from what Jefferson envisioned. Indeed, inventions were already made "a subject of property" in 1790-the year the first patent, an improved method of making pearl and pot ashes, was issued to Samuel Hopkins.4 To date, millions of inventions have been protected by property rights under our patent law.5 And as for ideas, since inventions embody ideas, millions of ideas have indirectly become the subject of private property. Ironically, the very fact that information by nature is "less susceptible than all other[] [assets] of exclusive property" led to legal intervention. The concern was that information holders would not disclose their information to the public if they would be deprived of the value of the information. This concern, known as the "disclosure paradox," was first articulated by Nobel laureate Kenneth Arrow. Arrow pointed out that when information is not legally protected, the information holder faces a catch-22: in order to sell the information, she must disclose it to the potential buyer; but once she does, she has nothing left to sell.6 Patent law solves the disclosure paradox. It grants property rights to inventors in exchange for their disclosure of new inventions to the public. Patent law provides patentees with the option either to exclude others from the invention or to license the invention at a price of their liking. Traditionally, patent protection extended only to full-fledged inventions.8 Naked ideas could not be protected under patent law.9 In recent years, however, the legal landscape has changed. Patent law has significantly expanded its reach. Rather than limiting protection to fully developed inventions, patent law is gradually extending its reach to cover "embryonic inventions," and even naked ideas.10 This Essay has two goals. The first is to present an economic case against extending property rights to embryonic inventions and ideas.11 Specifically, this Essay argues that property rights in ideas will hinder technological progress and, therefore, that the recent trend toward expanding the scope (or, if you want, the reach) of patent law is at odds with the constitutional mandate behind the enactment of patent protection-"To promote the Progress of Science and useful Arts."12 This Essay's second goal is to propose an alternative legal regime that would enhance innovation. To this end, this Essay contemplates the possibility of formalizing a very limited and narrow legal entitlement in ideas in order to establish a marketplace where ideas may be exchanged. After rejecting existing models of property and intellectual property protection as the foundation for a market for ideas, we propose an original market design that could enhance innovation without impoverishing the public domain. …

Journal Article
TL;DR: The Limitation of Shipowners' Liability Act (LSHL) as discussed by the authors provides a special exception from liability-the fire defense-which allows the shipowner to avoid all liability for cargo damage caused by a fire on board, unless the ship owner was personally at fault.
Abstract: In 1851, Congress passed a law, which is still in force . . . .1 -Oliver Wendell Holmes, The Common Law I. Introduction The 1851 law to which Justice Holmes referred-the Limitation of Shipowners' Liability Act2-is now over 150 years old and it "is still in force." You may ask yourself, "Why?"3 Did the 31st Congress diligently craft a legislative masterpiece that would withstand the test of time by wisely anticipating future technological and economic developments? No. This 1851 law, rushed through with little debate at the end of the session,4 is an example of legislative largesse and favoritism that, while it may have been appropriate in 1851, may not be necessary or appropriate in 2005. The Limitation of Shipowners' Liability Act contains a provision known as the Fire Statute5 that represents a significant departure from the almost-strict liability imposed by the common law on a shipowner operating as a common carrier. The Fire Statute provides a special exception from liability-the fire defense-which allows the shipowner to avoid all liability for cargo damage caused by a fire on board, unless the shipowner was personally at fault. Justice Holmes noted that it is "[a] very common phenomenon" that "[t]he customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains."6 The Fire Statute is a fine example of this phenomenon. Some such rules "adapt[] ... to ... new reasons which have been found for [them]. . . , and enter[] on a new career";7 however, there appear to be no currently legitimate reasons for the Fire Statute, and it simply persists in the U.S. Code as an outdated concession to a special interest group. When The Common Law was published in 1881, it was still "early in the morning" for this 1851 law; now that it is late in the evening, what should we do with the fire defense?8 This Note proposes answers to that question for Congress, the United Nations, and the Supreme Court. In the 1920s, much of the international community adopted an essentially identical fire defense for shipowners by signing the Hague Rules,9 the predominant international convention on rules governing maritime bills of lading. In 2002, however, the United Nations Commission on International Trade Law (UNCITRAL) began working on a new Transport Law Project, which the United Nations hopes will replace the Hague Rules and bring uniformity to international trade law.10 Unsurprisingly, not all of the parties are satisfied with the existing preferential liability treatment of maritime common carriers, and one of the issues that UNCITRAL has yet to resolve is the allocation of risk between the cargo owner and the carrier in the event that cargo is damaged as a result of fire." The developing nations, as well as other nations responsive to cargo interests, seek a more balanced allocation of risk, but carrier interests, of course, do not want to give up the favorable liability scheme created by the fire defense. This Note focuses on the risk allocation choices available, ranging from strict liability for the carrier to no liability for the carrier. After considering the choices and the various schemes associated with each choice, I recommend that UNCITRAL abandon the fire defense and treat cargo loss caused by fire under a simple fault-liability scheme that makes the carrier liable unless it proves that it was not at fault. In addition to the fire defense's role in the ongoing UNCITRAL Transport Law Project, there is currently a split of opinion between the U.S. circuit courts of appeals related to the application of the fire defense in light of the overlapping provisions of the Fire Statute and the Carriage of Goods by Sea Act (COGSA), which is the U.S. enactment of the Hague Rules.12 I argue in this Note that the U.S. Supreme Court, although unable to actually abandon the fire defense as long as the Fire Statute and COGSA are still in force, should not adopt either of the circuit's opinions, but should instead construe these statutes more favorably to cargo interests by assigning the burden of proof to the carrier to show that it was not personally at fault in the event of fire. …