Faculty Scholarship Digest

November 2010

On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise.


Article

Daniel C.K. Chow

Daniel Chow, Anti-Counterfeiting Strategies of Multi-National Companies in China: How a Flawed Approach is Making Counterfeiting Worse, 4 G’TOWN J. OF INT’L L. 749 (2010).

In this powerful article, Dan, an international expert on the counterfeiting problem in China, offers a highly revealing window on that problem and the ineffectiveness of current responses by closely describing the institutional interests and incentives that fuel the counterfeiting industry. The article begins by setting out the basic picture of counterfeiting in China, a problem that has exploded over the past decade with industry losses plainly in the billions of dollars; global trade in counterfeit goods is now estimated to exceed $250 billion annually, with as much as eighty percent of those goods originating in China. Dan then describes how the problem is not lack of enforcement as such. On the contrary, “there is a torrent of enforcement activity in China, but with little or no deterrence.” Dan documents that enforcement cases are easily brought, but the fines are small and criminal penalties rare. Why? The article explains that, although the PRC central government has engaged in many reforms to bring China’s intellectual property law into compliance with national standards, enforcement is a local matter, and local officials have local economies that rely on the counterfeiting industry. Moreover, very often the same officials charged with “enforcement against counterfeiting serve on the Board of Directors” of the companies engaged in counterfeiting in violation of PRC law. No surprise then, that penalties are light.

The article offers an equally strong critique of multinational corporations’ own anti-counterfeiting efforts, which amount to enforcement, enforcement, enforcement—with Brand Enforcement Units, private investigation companies and law firms all benefitting from a veritable enforcement industry that is ultimately not only ineffective but counterproductive regarding counterfeiting. The article explains the operational features and incentives that support this ineffective pathology. As Dan describes, “[e]nforcement without deterrence benefits a lot of constituencies,” and its failures lead not to a different approach but to demand for more enforcement. Although the article expresses no optimism of escape from this cycle in the immediate future, a final section outlines a better way forward, though success Dan cautions will have to be measured over years and decades. He points to shifting corporate incentives to a long-term approach, investing in education about the critical value of intellectual property to long-term efficient economic development, a more realistic accounting to corporations of the value of current enforcement approaches (present industry practice unrealistically assumes that each counterfeit product seized results in an additional sale of a genuine product, i.e., seizing a $30 fake Rolex is worth $3,000 on the assumption that a real Rolex that will now be sold) as well as addressing the problems through World Trade Organization and other legal actions that, successful or not, will help bring public scrutiny to the local corruption that is at the root of the problem.


Joshua  Dressler

Joshua Dressler, Feminist (or “Feminist”) Reform of Self-Defense Law: Some Critical Reflections, 93 MARQUETTE L. REV. 1475 (2010).

This article is a revised version of the George and Margaret Barrock Lecture on Criminal Law which Joshua delivered at Marquette in April 2010. Before turning to critiques of changes in the law of self-defense that have been advanced by feminist arguments, Joshua begins by noting that the criminal law is a thoroughly male creation with thoroughly male concerns, so that feminism “has enhanced the law by forcing rethink[ing]” and produced valuable and important reforms. The article then turns to self-defense law and, after setting out the general feminist critique (the law developed from male on male violence), addresses two reforms Joshua opposes.

First, over the past decade under so called “Make My Day” laws, many states have abandoned the duty (outside the home) to retreat—when safe retreat is an option—before using deadly force. This same movement has also created a rebuttable presumption inside the home (where there usually is no duty to retreat) that, when someone forcibly enters a dwelling, the occupant has the reasonable belief of threat of great bodily harm necessary to justify the use of deadly force—in short, a presumption that intruders can be shot. The article explains how the National Rifle Association has very successfully advanced such reforms by “the linking of gun ownership with the protection of women against male violence” (quoting an NRA past president). Joshua criticizes these reforms, suggesting the weakening of the retreat rule devalues human life, while also suggesting that feminist rhetoric has, to some degree, been coopted here in a way that many feminists would not support.

The second reform relates to Battered Women’s Syndrome and the feminist effort to allow abused women to use BWS to claim justified self-defense after killing their abusers in “non-confrontational situations,” e.g., when the abuser is sleeping. Joshua, who has written a great deal in this area, argues that some form of “imminence requirement” should be retained in self-defense law, and that the appropriate defense for a BWS claim is duress—a defense that excuses conduct, while still finding it unjustified.


john a. powell (w/Stephen M. Menendian), Remaking Law: Moving Forward Beyond Enlightenment Jurisprudence, 54 ST. LOUIS UNIV. L. J. 1035 (2010).

This ambitious article addresses a book-length topic: the continued dependence of law on Enlightenment thinking, while the sciences and other disciplines have moved forward, abandoning such Enlightenment concepts as pure objectivity and embracing the inevitable role of context and relativity. The article begins with a crisp summary of the tremendous change wrought during the Enlightenment, when European thinking abandoned its approach dating back to antiquity that “knowledge was ultimately a product of divine revelation,” for belief in empiricism and rationality and a consequent belief in universal truths objectively discoverable through neutral observation and reason. john and his co-author next survey the overwhelming influence of these Enlightenment principles on American law, from the Federalist Papers, to common law subjects such as Criminal law and Torts, to statutory law and legal method.

The article then turns to a demonstration that, while “the Newtonian or classical model grounded the social sciences of the Enlightment” [and Anglo-American law], [m]odern science—from physics and chemistry to biology and psychology—has jettisoned Newtonian concepts and models in favor of more relational approaches.” From there, the article “take[s] seriously the insights of relativity, quantum physics, systems science, and the mind sciences” it describes by confronting their ramifications “for our practice and conceptions of law.” Addressing the famous “judges as umpires” analogy in particular, john and his co-author contend that judges “are not separate from the law they announce or purport to interpret, the facts they deem relevant, or the players they identify as parties.” The article demonstrates impacts of the Enlightment-derived framework it criticizes in concrete terms, with examples from a number of civil rights cases, and demonstrates the difference a post-Enlightenment perspective would make.

Ultimately, though, the article’s “argument is not just that new developments in the physical and mind sciences call into question older paradigms upon which the law is constructed.” More than this, john and his co-author call for recognition of the “need to accept contingency, openness, fallibility, and a different basis for objectivity.” The article gives a sense of what such a paradigm shift in the law and legal thinking might look like in a number of areas.


rose.933

Paul Rose, Common Agency and the Public Corporation, 63 VAND. L. REV. 1355 (2010).

In this important article, Paul offers a reconceptualization of the agency role of corporate managers that offers significant descriptive and prescriptive payoffs. The relationship of corporate managers to shareholders is traditionally seen as one of agent to principal. Traditional problems of such agency relationships (the agent may shirk her duties or may use her delegated power to benefit herself at the expense of her principal) are recognized in the corporate setting, and recent decades have brought the traditional response to such agency problems: empowering the principle (in this case the shareholders).

The crux of Paul’s insight in this article is that this traditional model misses the diversity of interests of the principles (shareholders) who are sharing a “common agent,” the corporate management. Shareholders frequently differ in their goals for the corporation and, perhaps more significantly, in their preferences regarding corporate governance—hedge funds, mutual funds, pension funds, and insurance companies, for example, have different preferences in this area. In this common-agency context, generic shareholder empowerment, while addressing the shirking and management expropriation problems described above, can simultaneously create potentially worse problems of certain empowered shareholders “maximizing their own utility...at the expense of other shareholders or corporate stakeholders.” As the article describes, such influential shareholders may, and in fact do, “extract private benefits from the corporation, incur and impose lobbying costs, and pressure corporations to adopt inapt corporate governance structures.”

After describing how this common agency model (defined as shareholders with heterogeneous interests some of whom can influence management to advance their particular preferences) often accurately describes the landscape of public corporations and detailing numerous ways (from receipt of private benefits to cross-shareholder monitoring) that increased shareholder power can unfortunately increase the costs of “common agency,” even as it reduces traditional agency costs, the article turns to realistic regulatory approaches that, by accounting for the threat of common agency costs, ought to be more efficient. The article considers this a serious matter. Given where things stand, Paul argues, “[w]ithout limitations on the exercise of shareholder power, enhancing shareholder power is more likely to exacerbate agency costs than resolve them.” Recognizing that “an attempt to reduce shareholder power is likely to meet strong resistance,” Paul suggests employing regulatory tools with shareholders that are already used with management to control agency costs—fiduciary duties and disclosure requirements. The article considers the “considerable complexities” in the “complicated challenge” of such an effort to regulate shareholders to reduce the costs of common agency.


Book

David A. Goldberger

Organization for Security and Co-Operation in Europe Office for Democratic Institutions and Human Rights Panel of Experts on the Freedom of Assembly (including David Goldberger and nine others), GUIDELINES ON FREEDOM OF PEACEFUL ASSEMBLY (2d ed. 2010).

This treatise is designed to assist lawmakers in ensuring that laws regarding freedom of assembly comport with European and international standards and commitments, while also helping those charged with implementing such laws and, ultimately, those affected by the implementation. The Guidelines, first published in 2007, provide a “toolkit” of examples of good practices, description of relevant case law, and parameters and key principles within which different jurisdictions may follow diverse approaches. Basic principles, legitimate restrictions, and procedural and implementation issues are all covered in detail.


Book Supplement

Larry T. Garvin

Larry T. Garvin (w/the late E. Allan Farnsworth), FARNSWORTH ON CONTRACTS (3rd ed.) 2011-1 Cumulative Supplement (Walters Kluwer 2010).

This latest version of the supplement to the famous three volume contracts treatise includes more than 100 pages of new material since last year’s update, including coverage of upcoming American Law Institute and Uniform Law Commission projects related to contract law and important developments in many individual subjects within the law of contracts. As usual, the supplement has the comprehensive and impeccable coverage that has become Larry’s trademark.