This paper theorizes a new discipline, comparative legal rhetoric, which can accomplish two important goals. First, in a society broken down by intractable polarization and win/lose dichotomies, comparative legal rhetoric identifies alternative, nontraditional and non-Western ways to communicate and persuade. How we talk is deeply connected to how we see the world. If we take a break from the win/lose argument structure that defines Western legal communication, we can uncover opportunities for understanding and healing. Second, a study of comparative legal rhetoric can generate cross-cultural understanding. This new discipline contains a trove of knowledge about how persuasion works in different cultures. Comparative legal rhetoric might also identify universal modes of persuasion, which would be useful knowledge for any law advocate. In Part One of the paper, I briefly explain why the comparative study of legal rhetoric is important and how traditional legal rhetoric often fails to achieve justice and equality. In Part Two, I provide a foundational introduction to the feeder disciplines that inform the new discipline of comparative legal rhetoric––legal rhetoric, comparative law, comparative rhetoric, and comparative cognitive psychology. Part Three explores lessons that comparative legal rhetoric can teach, studying rhetorical practices located outside of mainstream U.S. culture, including Navajo legal rhetoric, Quaker rhetoric, restorative rhetoric, and citizen’s rhetoric. Studying and applying these new communication processes can help solve disputes in a way that fosters more empathy, equity, and justice.
This Essay develops a Thirteenth Amendment theory supporting the removal of Confederate symbols from government properties. It argues that such monuments to the Lost Cause are badges of slavery that should have no place in public squares. The Essay discusses how white supremacist groups, such as those who participated in the 2017 Unite the Right March in Charlottesville, affectively draw together around monuments honoring leaders and soldiers who fought for the cause of slavery. Relying on the Thirteenth Amendment’s principles of freedom, states and municipalities can and should eliminate those monuments from their properties. Such policy initiatives communicate government’s disapproval of secession’s racist premises and advance the nation’s commitment to equal liberty untainted by the Confederacy’s peculiar institution.
In this Essay, I argue that sorority houses are a type of Confederate memorial. I make two claims. First, sororities have clearly announced their allegiance to the Old South through their architecture. Most sororities have constructed their buildings to mimic the design of antebellum plantations. The white columns, wide porches, and decorative pediments normalize an unthinking romanticism toward antebellum slave society—a culture that immiserated the South’s black inhabitants. Second, beyond the architecture, the institutions themselves should be regarded as monuments to the Confederacy because they remain profoundly segregated and perpetuate the caste-based racial division of campus. Data gathered for this study will demonstrate that many sororities still have no black members and almost all remain ethnic enclaves for White students. In the final section of the paper, I outline three realistic suggestions for reform. Universities could do much to dilute the taint of the Confederacy that hangs over the sororities.
The concept of “government speech,” like much of First Amendment doctrine, is built upon three familiar distinctions: the distinctions between speech and conduct, public and private, and coercive and non-coercive. All three distinctions are implicated by recent conflicts over Confederate monuments. The first distinction — between speech and conduct — prevents courts from appropriately weighing the discriminatory harms of Confederate iconography, in large part because of the assumption that most constitutional restraints on government apply to conduct and not to “mere” speech. The second distinction — between public and private speech — also tends to insulate the government’s expressive conduct. If the government is speaking, it need not abide by the neutrality requirements of the First Amendment; there is no necessity for the government to be even-handed in its pronouncements. The third distinction — between coercive and non-coercive speech — is also implicated by conflicts over Confederate statuary. Are citizens being coerced when they are required to pass a memorial honoring the Confederate dead in order to enter a government building? Are local taxpayers being forced to speak by state laws mandating that cities maintain their Confederate monuments? This Article argues that the distinctions underlying the government speech doctrine are in many instances untenable. It further considers two possible constitutional principles that might serve as checks on discriminatory government speech: a more robust principle of expressive equal treatment and a less stringent but nonetheless meaningful principle of minimal representativeness. If courts will not enforce the former than they should at least enforce the latter. Legitimate government speech must be, by definition, representative. The Article applies this principle to current controversies involving Confederate monuments.
Courts largely view the public trust doctrine as limited by state legislative and executive policy. According to this widespread theory, states may be required to hold in trust a handful of historically-big waterbodies (referred to as “navigable” waters) for certain uses like commerce, but beyond that, states are free to dispose of water without considering the public’s interests.36 So there is no requirement that states consider, for example, the public’s interest in conserving Walker Lake, a lake much older that the state of Nevada itself. And not only can the public not meaningfully challenge a state’s legislative or executive decisions in state courts—but they can’t challenge the state’s abdication of the public trust in federal court, either. Because the scope of the trust is supposedly a state-law matter. Courts and litigants have struggled to craft a theory that will allow the state’s trust duties to extend to more water and more uses, and perhaps most importantly, enforceable in both state and federal courts. I suggest such a theory here. In short, this article explains why we should view the public trust doctrine as reflecting very basic principles of limited state authority over water. This limitation prevents states from seriously infringing on the public’s interest in all flowing water. In other words: when states (and occasionally the federal government) abdicate their public trust duties, they are permitting an infringement on the public’s fundamental right to water—a violation of due process and a violation of the states’ sovereign authority. This theoretical framework allows federal courts to review a state’s decision to forego its trust duties, even when it needs to go beyond those historical, navigable waters. After all, viewed this way, enforcing the public trust is a remedy to protect the public’s interest in natural waters generally. Not only should litigants be able to argue for an expansion of trust duties in state courts under state constitutions, they should also be able to argue for this expansion in federal courts under the U.S. Constitution. Interpreting which waters and uses are protected by the trust is, in effect, interpreting the extent of sovereign authority over water. That is a job uniquely for the judiciary. The court doors should be flung wide open in even the most restrictive of states, allowing citizens to challenge legislative and administrative decisions about water allocation. Courts will be empowered to expand the public trust even in the face of legislative and administrative obstinance.
How might improvements in artificial intelligence (AI) technology affect trademark doctrine? This Article approaches the question by imagining trademark law in a world in which we can fully outsource our purchasing decisions to AIs that satisfy our preferences better than we can. Leaving aside whether the technology is possible, this thought experiment tells us something about today’s trademark doctrine and how it is responding to changing online technology and culture. A sufficiently sophisticated AI would render trademarks superfluous in many situations. Trademarks function by simplifying information. We use them to stand in for a broad range of (sometimes contradictory) data assembled from a variety of sources. Because human cognition is limited, the ability of trademarks to serve as a shortcut is valuable, but it is a second-best solution. With unlimited time or enhanced capacities, we would be better able to find optimal products without relying on the simple information signals offered by trademarks. As it is, sifting through all the available data is not a wise use of our limited attention. But the hypothetical AI is not similarly limited, and a sufficiently advanced AI “shopper” would exist to analyze the context that trademarks allow us to ignore. The role of trademarks in such a world is more limited—and consequently requires less protection—than what we see today. Though the hypothetical AI does not, and may never, exist, we can see its forerunners in web platforms like Amazon and Facebook. They are already changing trademark doctrine, and they illustrate why trademarks may be less important in the future. Though these technologies raise any number of troubling questions, they are not the sort that trademark law is well-equipped to address.
Section 213 of the Internal Revenue Code (the Code) allows a deduction for unreimbursed expenses for medical care. To qualify as medical care, an individual’s outlay must meet the statutory definition of “medical care” set forth in §213. Specifically, an outlay must be for care that is either for “the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body.” Many costs raise few interpretive challenges. When an individual receives chemotherapy, for example, the costs tied to that care clearly satisfy the disease prong of §213. But as medicine advances, emerging technologies test the breadth of the Code’s concept of medical care. This Article examines the case of elective egg freezing — an increasingly available technology and, in some cases, a new employer-provided benefit — analyzing the likely treatment of such costs under current law. More broadly, this Article argues that the Internal Revenue Service’s (the Service) treatment of elective egg freezing under §213 will clarify its position on when reproductive care is qualifying medical care, its view on the proper scope of the structure/function prong, and may be predictive of its approach to emerging medical technologies. Because the Service’s chosen categorization could establish important and far-reaching precedent, this Article lays the groundwork for a principled discussion of the doctrinal and policy concerns at issue in categorizing elective egg freezing and similar emergent medical technologies.
Artists have always loved to hate the art market. They want to sell their work, but only on their own terms. Unfortunately, they usually lack the means to explain what they want and why they want it. But in 1971, two associates of a self-styled “Art Workers Coalition,” Seth Siegelaub and Robert Projansky, created the “Artist’s Contract,” a form agreement designed to explain what artists want and help them get it. Unsurprisingly, as a practical matter, the Artist’s Contract was not very successful. Few artists actually used it, and fewer still have tried to enforce it. We argue that to focus too narrowly on enforcement of the Artist’s Contract is to miss its point. Its purpose was not to create a formal contractual relationship but to describe and reshape the social and legal relationships that constitute the art market. This Article traces the social history of the Artist’s Contract, and its afterlife. We argue that, understood contextually, the Artist’s Contract reflects an attempt to (re)shape the “legal consciousness” of the art world. The contract was a legal form intended as a tool of social change, intended to catalyze a new, shared understanding among artists and collectors as to their mutual obligations and expectations. Its effectiveness has therefore to be weighed against metrics other than enforceability.
The so-called doctrine of res ipsa loquitur has been a mystery since its birth more than a century ago. This Article helps solve the mystery. In practical effect, res ipsa loquitur, though usually thought of as a tort doctrine, functions as a rule of trial practice that allows jurors to rely upon circumstantial evidence surrounding an accident to find the defendant liable. Standard jury instructions in negligence cases, however, inform jurors that they are permitted to rely upon circumstantial evidence in reaching a verdict. Why, then, is another, more specific circumstantial evidence charge necessary or desirable? We describe and evaluate the arguments that have been made in support of and in opposition to the res ipsa instruction. One theory is that jurors are confused in performing their task when given only standard instructions; the charge, therefore, clarifies their task, thereby improving the quality of their decisionmaking. A competing theory is that the instruction biases jurors in favor of plaintiffs, thereby degrading the quality of decisionmaking. Our theoretical analysis concludes that the bias explanation is stronger. We reach this conclusion by applying for the first-time modern learning on cognition to the res ipsa instruction. To support our theoretical conclusion, we report the results of experiments designed to determine the effects of the instruction. All these experiments were intended first to confirm that the res ipsa instruction has an effect and second to confirm or refute our theoretical conclusion that the instruction biases rather than clarifies. While the empirical results did not demonstrate bias, they also failed to show the absence of bias. Moreover, we found no evidence that the instruction reduces confusion. Our conclusion is that the charge has no positive effect, and either may create a bias or, at best, is meaningless.
The common-law mortgage has been much maligned. Legal historians have called it everything from “clumsy” to “mendacious.” Following their lead, the current Restatement (Third) of Property: Mortgages, and the leading treatise on mortgage law, denounce the modern incarnation of the common-law mortgage – the “title theory” of mortgages – in favor of the “lien theory”. As many states have adopted this view, the common-law mortgage has been nearly eliminated from the modern legal landscape. But the consensus is wrong. Critics of the common-law mortgage have failed to appreciate the historical background of secured lending and execution of civil judgments that explains the mortgage's basic form, and they failed to appreciate changes that the mortgage underwent over time. By understanding the legal and social context of the turn of the seventeenth century, one can appreciate how the original common-law mortgage made sense. By then comparing the original common-law mortgage with that of roughly the late-nineteenth century, one can see how certain problematic characteristics of mortgages were not characteristics of the common-law device, but rather a side-effect of well-intentioned interventions by judges sitting in equity. Appreciating these realities shows how the common-law mortgage was a logical and clever device, undeserving of the criticism to which it has been subject; it also provides of cautionary tale of judges disregarding parties’ clearly stated intent in contracts; and it highlights the need for a reassessment of basic mortgage doctrine in the present. In the course of demonstrating these points, this article also provides a useful summary of the basic contours of secured lending and execution of civil judgments at common law in force from approximately the late-medieval period to the nineteenth century.
Current federal law does not require sellers of fine art to pay a share of the sale price to the artists, although Congress and federal agencies have been debating the advantages and disadvantages of such a duty, commonly referred to as Artists’ Resale Rights (ARR), since the 1970s. What is often missing from this discourse is the role that state law might play in this ecosystem. This issue, and especially California’s 1976 ARR law, the only state-enacted ARR to date, is the focus of this Article. States are often said to be the laboratories of democracy as they can experiment with various legal rules and produce rich comparative empirical data. The Article explores whether states can be the laboratories of ARR as well. It reaches three conclusions: First, there is a vibrant debate concerning the impacts and overall desirability of resale royalties, but that debate is driven by relatively scarce empirical data. Second, if states decide to adopt ARR they can provide some of that missing information. Third, subject to minor restrictions, states are allowed to enact ARR legislation, and the recent Ninth Circuit decisions that held the California ARR act unconstitutional are, for the most part, misguided, as it does not fully recognize the important role that states play in the markets for creative goods.
Many states have asserted copyright over their own official state legal texts, limiting access to those materials and attempting to monetize them. This Article aims to provide helpful analysis for state officials deciding whether to pursue such policies and for courts reviewing challenges to such practices. Prior scholarship in this area has focused on the issue of whether such copyright assertions can be valid under federal law given the inherent conflicts they pose to due process and democratic ideals. This Article aims to expand this dialogue in a couple of ways — first, by situating the controversy within the broader arc of legal history, and second, by focusing on matters of present-day practicalities and economics. In so doing, the thrust of this Article is to go beyond arguing that states must surrender their copyright claims over state legal materials and to concentrate instead on providing reasons why states should see it in their own interest and the interest of their citizens to renounce such claims. The policy arguments this Article sets out — including with regard to business behavior, political engagement, and fiscal responsibility — end up providing not merely reasons for states to abstain from aggressive copyright claiming, but also reasons for reviewing courts to deny such claims, including by way of fair use analysis. With the aim of providing insight into matters of practicality and economics, this Article assumes that state legislators and officials are acting in good faith — and are not motivated by a desire to undermine constitutional values — when they enter into deals with private legal publishers to monetize official state legal information. The question is, then, what good-faith motivations might a state have in attempting to use copyright to put official state legal information behind a paywall? I look at the plausible answers and respond to them. One answer is that proprietary/closed-access systems are “low cost.” I explain why this is an economic misunderstanding. Another reason is a strong faith that public-private partnerships are an efficient means of delivering public goods. I explain why a public-private partnership structure in this context is problematic. Another reason is a belief that harm done by limitations on access to the law is merely of theoretical or academic concern. I explain why that is not the case.
