A Welcome Conversation: Toward a New Historiography of Intellectual Property

This essay considers what tools should be used to study the legal history of intellectual property. I identify three historiographical strategies: narration, contest, and formation. Narration identifies the diverse “narrative structures” that shape the field of intellectual property history. Contest highlights how the inherent instability of intellectual property as a legal concept prompts recurrent debates over its meaning. Formation recognizes how intellectual property historians can offer insight into broader legal history debates over how to consider the relationship between informal social practices and formalized legal mechanisms. I consider Kara W. Swanson's Banking on the Body: The Market in Blood, Milk and Sperm in Modern America (2014) in light of these historiographical strategies and conclude that Swanson's book guides us to a new conversation in the legal history of intellectual property law.     

Drug Globalization: Eventual Legalization of Beer in Iceland and Marihuana Decriminalization in the USA

This article discusses whether different motivations for and perceptions of the police role, either as ‘law and order‐oriented thrill‐seekers’ or as ‘social workers’ lead officers to adopt different approaches towards the public. The first category police rank‐and‐file officers' desire for action and excitement, causing them to perceive policing as a mission, also causes them to have a distorted view of reality whereby they perceive members of the public either as significant adversaries or as insignificant ones. For them, ‘real police work’ means chasing and catching villains, and this delusional picture of what policing is may lead them to enlarge and redefine ‘insignificant criminals’ and thus perceive them as ‘villains’ who merit and justify police targeting. However, as these insignificant criminals—beggars, drug addicts, vagrants, ethnic minority youths, and drunks—are not perceived as actually ‘significant adversaries’, the targeting of and encounters with them also produce fatigue in police officers as these activities fail to comply with many police officers' desire to ‘catch the villain’, and the encounters are repetitive and tedious. Police fatigue and stereotyping may entail cynicism due to the ways in which some groups respond to police targeting, such as accusing the police of racism or threatening them with complaints. It is argued that the first type of police officers to a larger degree will experience fatigue and cynicism than the second type of officers—‘the social workers’—who are motivated by a will to ‘help others’, and who receive more rewarding responses from the public.     

Laws of Inclusion and Exclusion: Nomos,Nationalism and the Other

This article explores how and why contemporary nationalist ‘defence leagues’ in Australia and the UK invoke fantasies of law. I argue these fantasies articulate with Carl Schmitt’s theory of ‘nomos’, which holds that law functions as a spatial order of reason that both produces and is produced by land qua the territory of the nation. To elucidate the ideological function of law for defence leagues, I outline a theory of law as it relates to (political) subjectivity. Drawing on the work of Foucault, Agamben and Brown, I demonstrate how subjects form and are formed by historically contingent relationships to law in the contemporary neo-liberal moment. Turning to Lacan, I show how nationalistic invocations of law provide nationalists with a fantasy that the nation’s law represents them and holds them together (as the nation itself). Similarly, I argue that nationalists imagine that the other has their own law as well, which not only corresponds to the other, but functions as a legible index of the other’s otherness—a metonym for the threatening uncertainty and radical difference that the other represents. Drawing on Lacan’s concept of the big Other, I ultimately argue that nationalists aggressively (re)assert law not only to defend the nation, but to ensure their own symbolic and ontological security therein.

     

Trade Secrecy Injunctions,Disclosure Risks,and eBay's Influence

Historically, intellectual property (IP) owners could rely on injunctive remedies to prevent continued infringement. The Supreme Court's eBay v. MercExchange decision changed this, however. After eBay, patent courts no longer apply presumptions that push the deliberative scales in favor of injunctions (or “property rule” protection). Instead, patent injunctions require a careful four‐factor analysis, where plaintiffs must demonstrate irreparable injury (i.e., that money damages cannot compensate). Without question, eBay has made it harder for patent plaintiffs to secure injunctions, and has led many district courts to consider innovation policy concerns (e.g., the strategic behavior of patent “troll” plaintiffs) in the injunction calculus. By and large, courts’ more deliberative approach to patent injunctions post‐eBay has been viewed as beneficial for the patent system. Over the past decade, eBay’s influence has migrated to other areas of IP. This article offers the first account of eBay’s impact on federal trade secrecy injunctions. Important differences between trade secret law and other areas of IP—for example, the hard‐to‐quantify risk that disclosure poses to trade secret owners—has lessened eBay’s influence on trade secrecy injunctions. This article argues that disclosure risks justify a bifurcated approach to trade secrecy injunctions. That is, in cases involving the dissemination of trade secrets, courts should presume irreparable injury in the injunction calculus. However, in cases involving the unauthorized use of a trade secret—that is, where a defendant builds upon a plaintiff's trade secret but does not disseminate it—courts should not presume irreparable harm and, instead, should apply the eBay framework. As part of this assessment, courts should consider policy concerns related to cumulative innovation and employee mobility.     

Patrol Officer Perceptions of Agency Rewards and Punishments: A Research Note

The theory of operant conditioning is based on the premise that people are motivated to engage in, or refrain from, certain behaviors because of the rewards and punishments they may receive (Honig 1966; Skinner 1974). While managers within law enforcement agencies frequently use both rewards and punishments to try to guide the behavior of their officers, little information exists about how police officers perceive the rewards and punishments they utilize. This study surveyed a sample of patrol officers to determine how they ranked the value of several specific rewards, and the severity of several specific punishments. The findings suggested that a hierarchy of rewards and punishments exists in the minds of law enforcement officers, the ranking seemed to be associated with how they could impact the officer’s off-duty quality of life, and significant variation existed between officer responses. Interesting differences were also found by officer gender, tenure, and education.     

Relational Embeddedness and Socially Motivated Case Screening in the Practice of Law in Rural China

Based on an ethnographic study conducted in rural China, this article demonstrates that relational embeddedness—that is, concrete and durable relationships among law practitioners, clients, adversaries, and the surrounding communities—holds the key to our understandings of the legal profession's case screening. Over the past decade, legal services in rural China have been commodified significantly. Despite that, relationships with extended families, community members, and local political elites have continued to shape law practitioners’ professional decision‐making. By carefully scrutinizing multiplex relationships involved in legal services, law practitioners seek to meet the practical needs of their personal life, and more importantly, to uphold moral obligations derived from communal life. Seen in this light, the practice of law is an integral part of a moral economy in the countryside. Rather than giving rise to a more progressive form of services, the legal profession's participation in this moral economy often reinforces existing power structures in Chinese society. By introducing the concept of relational embeddedness into sociolegal research, this study unpacks the complex consequences of the recent legal reforms in China; it also enriches our theoretical understandings of related concepts, such as social capital, networking, and guanxi in the practice of law.     

The role of soft law in advancing the rights of persons with disabilities in the EU: A ‘hybridity’ approach to EU disability law

This article discusses the role of soft law in advancing the rights of persons with disabilities in the European Union (EU). In doing so, it revisits the emergence of the standalone, yet cross-cutting, field of ‘EU disability law’ through the lens of the ‘hybridity theory’ advanced inter alia by Trubek and Trubek. Being speculative in nature, this article construes EU disability law as a fruitful area for an enquiry into the dynamic relationship between hard and soft law. Until the entry into force of the Treaty of Amsterdam, soft law was crucial to attract disability within the sphere of action of the EU and to embed the social model of disability, displaying a value-setting role. In the post-Amsterdam period, soft law and hard law coexisted, being complementary to one another. Both contributed to a common objective, namely that of advancing equality of opportunities for persons with disabilities. After the conclusion of the UN Convention on the Rights of Persons with Disabilities, the dynamic relationship between hard and soft law has become more complex and akin to what Trubek and Trubek define as ‘transformation’.     

Sex and Capacity: The Management of Monsters?

The first consideration by a civil court of the test of capacity to engage in sexual relations – X City Council v MB, NB and MAB – is as recent as 2005. This article places this and subsequent cases in the historical context of the way in which the law has constructed the sexuality of persons with intellectual impairment. The article argues that, beginning with a series of rape cases in the mid to late nineteenth century, which recognised the concept of consent given through the expression of animal instincts, the law has accepted and deployed a model of intellectual impairment which understands expressions of sexuality in terms of an increasingly unstable opposition between vulnerability and danger, understood as the presence or absence of instinct, and as indicating an underlying ‘monstrosity’. The article argues that the historical continuity apparent in the modern case law is unfortunate and should be rectified.     

Stealing more is better? An economic analysis of Islamic law of theft

This study is the first attempt (in the field of Law and Economics) to apply economic analysis to shari’a or Islamic criminal law, in particular, that aspect of the law pertaining to theft. Shari’a imposes two main punishments for theft; hadd, a fixed penalty of amputation of the offender’s right hand under certain conditions and ta’zir, a discretionary punishment, less severe than hadd. From the viewpoint of marginal deterrence and multiplier principles, lesser crimes with low social harm are punished more severely with hadd whereas crimes with high social harm are punished with ta’zir. Moreover, as the probability of detection and sanction is less in those crimes of high social harm, criminals would have more incentive to commit them. Consequently, if Islamic criminal law is to be applied in its current form, crimes of high social cost are likely to become more frequent.     

The Organized Irresponsibility Principle and Risk Arbitrage

In an age of accelerating wealth at the very top and accelerating risks at the bottom, there is a clear disjunction between the flow of social benefits and social damages produced by different actors and their share of these respective benefits and damages. Yet, the specific processes that generate the dualization of tracks of accumulation of rewards or accumulation of risks and precarity are still up for debate. In tackling this dual process in a way that is attuned to the critical contribution of contemporary forms of the law to this uneven accumulation of wealth and of risks, this paper focuses on organized irresponsibility—where individuals can cumulatively contribute to risks, but avoid individual culpability—and how relations of organized irresponsibility provide extensive opportunities for risk arbitrage. Risk arbitrage is correspondingly a process where actors, whether it be individuals or larger organizations, can produce social risk, appropriate benefit from these risks, and disproportionately avoid the consequences of the risks so as to benefit from the overall “cycle of reward and risk”—even if society as a whole is worse off. The paper identifies organized irresponsibility as fundamentally undergirded by mismatches between existing configurations of law and the existing complexity of the processes of the production of social goods and risks. This paper proceeds to show how gaps in the law enable the organized irresponsibility principle—that given a level of risk production, the greater the number of actors involved and the greater complexity between causes and the risk’s impacts, the less overall culpability that tends to be assigned. It then shows how the organized irresponsibility principle enables relationships of risk arbitrage that intensify contemporary risk and inequality.     

Constitutionalising the Market,Marketising the Constitution,and to Tell the Difference: On the Horizontal Application of the Free Movement Provisions in EU Law

Ever since the Court's judgment in Walrave, there has been a concerted effort in caselaw and doctrine to limit the horizontal direct effect of free movement provisions to exceptional circumstances. This article suggests that this effort has always been incoherent, and is simply untenable after Viking and Laval. The implications are far reaching, especially in the sphere of the free movement of capital and corporate governance where the Court is well on its way of imposing a model of shareholder primacy on European company law. Full direct horizontal effect will also have important repercussions for private law and its ability to resolve conflicts between economic freedoms and fundamental rights. Given the nature of the free movement provisions, their horizontal effect will sometimes lead to a constitutionalised market and sometimes to a marketised constitution, without there being any principled way of distinguishing between the two. In that light, horizontal direct effect is very unlikely to enhance the effectiveness of internal market law—whichever model of the social market economy it is thought to embody—and is best abandoned.     

Social Insurance Monopolies in Community Competition Law and the Italian Constitution: 'Practical' Convergences and 'Theoretical' Conflicts

An Italian judge, following earlier suggestions of the national antitrust Authority, has referred to the Court of Justice for a preliminary ruling under Article 234 EC Treaty two questions on the interpretation of Articles 81 and 86 of the EC Treaty. With those questions, raised in an action brought by a self‐employee against the Istituto Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro (INAIL) concerning the actor's refusal to pay for social insurance contributions, the Tribunale di Vicenza has in summary asked the Court of Justice whether the public entity concerned, managing a general scheme for the social insurance of accidents at work and professional diseases, can be qualified as an enterprise under Article 81 EC Treaty and, if so, whether its dominant position can be considered in contrast with EC competition rules. This article takes this preliminary reference as a starting point to consider in more general terms the complex constitutional issues raised by what Ge´rard Lyon‐Caen has evocatively called the progressive ‘infiltration’ of EC competition rules into the national systems of labour and social security law. The analysis is particularly focused on the significant risks of ‘constitutional collision’, between the ‘solidaristic’ principles enshrined in the Italian constitution and the fundamental market freedoms protected by the EC competition rules, which are implied by the questions raised in the preliminary reference. It considers first the evolution of ECJ case law—from Poucet and Pistre to Albany International BV—about the limits Member States have in granting exclusive rights to social security institutions under EC competition rules. It then considers specularly, from the Italian constitutional law perspective, the most recent case law of the Italian Constitutional Court on the same issues. The ‘contextual’ reading of the ECJ's and the Italian Constitutional Court's case law with specific regard to the case referred to by the Tribunale di Vicenza leads to the conclusion that there will probably be a ‘practical convergence’in casu between the ‘European’ and the ‘national’ approach. Following the arguments put forward by the Court of Justice in Albany, the INAIL should not be considered as an enterprise, in line also with a recent decision of the Italian Constitutional Court. And even when it was to be qualified as an enterprise, the INAIL should in any case be able to escape the ‘accuse’ of abuse of dominant position and be allowed to retain its exclusive rights, pursuant to Article 86 of the EC Treaty. This ‘practical convergence’in casu does not, however, remove the latent ‘theoretical conflict’ between the two approaches and the risk of ‘constitutional collision’ that it implies. A risk of a ‘conflict’ of that kind could be obviously detrimental for the European integration process. The Italian Constitutional Court claims for herself the control over the fundamental principles of the national constitutional order, assigning them the role of ‘counter‐limits’ to the supremacy of European law and to European integration. At the same time, and more generally, the pervasive spill over of the EC market and competition law virtually into every area of national regulation runs the risk of undermining the social and democratic values enshrined in the national labour law traditions without compensating the potential de‐regulatory effects through measures of positive integration at the supranational level. This also may contribute to undermine and threaten, in the long run, the (already weak) democratic legitimacy of the European integration process. The search for a more suitable and less elusive and unilateral balance between social rights and economic freedoms at the supranational level should therefore become one of the most relevant tasks of what Joseph Weiler has called the ‘European neo‐constitutionalism’. In this perspective, the article, always looking at the specific questions referred to the Court of Justice by the Tribunale di Vicenza, deals with the issue of the ‘rebalance’ between social rights and economic and market freedoms along three distinct but connected lines of reasoning. The first has to do with the need of a more open and respectful dialogue between the ECJ and the national constitutional courts. The second is linked to the ongoing discussion about the ‘constitutionalization’ of the fundamental social rights at the EC level. The third finally considers the same issues from the specific point of view of the division of competences between the European Community and the Member States in the area of social (protection) policies.     

竞争法对知识产权的保护与限制

知识产权法对知识所建构的权利义务规范以及民法基本原则对知识产权的保护和限制存在着天然的缺陷。知识的私有性与社会性,决定了知识产权与反不正当竞争法和反垄断法的被保护与被规制的关系。反不正当竞争法着眼于侵权人,保护知识产权不受侵犯;反垄断法着眼于权利人,以便防范知识产权的滥用。二者弥补了私法层面对知识产权保护的不足和对滥用知识产权行为制约的局限。     

Legal Transnationalism: The Relationship between Transnational Social Movement Building and International Law

This article examines the compelling enigma of how the introduction of a new international law, the North American Agreement on Labor Cooperation (NAALC), helped stimulate labor cooperation and collaboration in the 1990s. It offers a theory of legal transnationalism—defined as processes by which international laws and legal mechanisms facilitate social movement building at the transnational level—that explains how nascent international legal institutions and mechanisms can help develop collective interests, build social movements, and, ultimately, stimulate cross‐border collaboration and cooperation. It identifies three primary dimensions of legal transnationalism that explain how international laws stimulate and constrain movement building through: (1) formation of collective identity and interests (constitutive effects), (2) facilitation of collective action (mobilization effects), and (3) adjudication and enforcement (redress effects).     

Preserving the Law’s Coherence: Citizens United v. FEC and Stare Decisis

In addition to striking down the portions of the Bipartisan Campaign Reform Act that limited the amount of money corporations and unions could spend on independent expenditures, Citizens United v. FEC overturned two decisions of the Supreme Court of the United States, an action that stands in contrast to the principle of stare decisis. This article analyzes the discussions of stare decisis in the various Citizens United opinions and compares these discussions to existing scholarly debate on the proper role of stare decisis in constitutional law. It also examines citations and discussions of Citizens United in state supreme court and federal circuit court of appeals cases to analyze how the justices’ discussions of stare decisis in Citizens United have influenced lower courts. The article concludes that the Citizens United opinions that discussed stare decisis — particularly Justice Anthony Kennedy's majority opinion and Chief Justice John Roberts’ concurrence — are highly problematic for a number of reasons. The applications of stare decisis in the opinions were also flawed. Citizens United has thus made it even easier for lower courts to abandon stare decisis and overturn precedent.     

DEVELOPMENT AND FRACTURE OF A DISCIPLINE: LEGACIES OF THE SCHOOL OF CRIMINOLOGY AT BERKELEY

In the early twentieth century, the University of California—Berkeley opened its doors to police professionals for instruction in “police science.” This program ultimately developed into the full‐fledged School of Criminology, whose graduates helped shape American criminology and criminal justice until well into the 1970s. Scholarship at the School of Criminology eventually fractured into three distinct traditions: “Administrative criminology” applied scientific methods in pursuit of refining law enforcement practices, “law and society” coupled legal scholarship with social scientific methods, and “radical criminology” combined Marxist critiques of the state with community activism. Those scientific traditions relied on competing epistemic premises and normative aspirations, and they drew legitimacy from different sources. Drawing on oral histories and archival data permits a neo‐institutional analysis of how each of these criminological traditions emerged, acquired stability, and subsided. The Berkeley School of Criminology provides fertile ground to examine trends in the development of criminal justice as a profession, criminology as a discipline and its place in elite universities, the uncoupling of criminology from law and society scholarship, and criminal justice policy's disenchantment with the academy. These legacies highlight how the development of modern criminology and the professionalization of American law enforcement find precedent in events that originate at Berkeley.     

‘Mutual aid is present in every crisis’: An Interview with Dean Spade

The Covid-19 pandemic unravelled a crisis of the modern state, and its legal institutions on the one hand, and on the other hand of our interpretive frames—both philosophical and scientific. It is here that the idea and practice of mutual aid gains significance, both to think about how we can respond to acute crises of planetary scales as well as to the crisis of critique in the discipline of law. The task of mutual aid is not to rehabilitate law out of its crisis or to restore conditions and systems back to a state prior to a crisis. This is because, as Dean Spade says in this interview, ‘they are not broken systems needing to be fixed. They are working exactly as they were designed to work, constantly sharpening violence against targeted populations and enriching a very few people.’ Spade—Wismer Professor of Gender and Diversity at the Seattle University School of Law and a founder of the Sylvia Rivera Law Project—is a key scholar-activist voice on mutual aid in North America and Europe. He is author, most recently, of Mutual Aid: Building Solidarity During this Crisis (And the Next). In this conversation with Oishik Sircar, Spade discusses his theoretical and political influences, how he relates the idea of crisis to critique, his sobering assessment of the limitations not only of law reform but of the role of legal education in radical transformation, his own understandings of mutual aid, his favourite words, why and how he does not see himself only as a legal scholar-activist, and his vision of hope and hopelessness in times of acute and intense crises.

     

Political Expertise, Social Worldviews, and Ideology: Translating “Competitive Jungles” and “Dangerous Worlds” into Ideological Reality

The psychological bases of ideology have received renewed attention amid growing political polarization. Nevertheless, little research has examined how one’s understanding of political ideas might moderate the relationship between “pre-political” psychological variables and ideology. In this paper, we fill this gap by exploring how expertise influences citizens’ ability to select ideological orientations that match their psychologically rooted worldviews. We find that expertise strengthens the relationship between two basic social worldviews—competitive-jungle beliefs and dangerous-world beliefs and left–right self-placement. Moreover, expertise strengthens these relationships by boosting the impact of the worldviews on two intervening ideological attitude systems—social dominance orientation and right-wing authoritarianism. These results go beyond previous work on expertise and ideology, suggesting that expertise strengthens not only relationships between explicitly political attitudes but also the relationship between political attitudes and their psychological antecedents.     

Introduction: contact and domestic abuse

ABSTRACT

This article introduces the special issue of the Journal of Social Welfare and Family Law on contact disputes and allegations of domestic abuse. It first describes the aims and findings of the International Symposium on Contact Disputes and Allegations of Domestic Violence – Identifying Best Practices at which the papers in the special issue were originally presented. It then outlines the position in England and Wales regarding allegations of domestic abuse in child arrangements cases, highlighting the difference between the ‘law in the books’ and the ‘law in action’. Thirdly, it discusses the research evidence on another prominent international approach to domestic abuse allegations – legislative presumptions against custody or unsupervised visitation/contact for abusive parents. The experience of presumptions in the USA and New Zealand suggests that a similar gap between ‘law in the books’ and ‘law in action’ exists, together with potential problems of legislative drafting. Finally, the article outlines the contributions of the other papers in the special issue to our understanding of international approaches to ensuring safety for children and resident parents in family proceedings where allegations of domestic abuse are raised.     

Punishing Wrongs from the Distant Past

On a Parfit-inspired account of culpability, as the psychological connections between a person’s younger self and older self weaken, the older self’s culpability for a wrong committed by the younger self diminishes. Suppose we accept this account and also accept a culpability-based upper limit on punishment severity. On this combination of views, we seem forced to conclude that perpetrators of distant past wrongs should either receive discounted punishments or be exempted from punishment entirely. This article develops a strategy for resisting this conclusion. I propose that, even if the perpetrators of distant past wrongs cannot permissibly be punished for the original wrongs, in typical cases they can permissibly be punished for their ongoing and iterated failures to rectify earlier wrongs. Having set out this proposal, I defend it against three objections, before exploring how much punishment it can justify.