In her response to Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law (101 Calif. L. Rev. 609), Professor Melissa Murray compares contemporary criminal child molestation statutes to Jeremy Bentham's Panopticon, the all-observing watchtower that normalizes expectations of constant state surveillance. Arguing that the enforcement of child-molestation laws creates a near-constant sense of surveillance and encourages male and female caregivers to regulate their own behavior by adopting the identities favored by the state, Professor Murray illustrates how such well-meaning statutes may, in fact, perpetuate outdated gender stereotypes.
There is great confusion among scholars and courts about whether and when appellate courts may, or must, defer to trial courts' findings of social fact in constitutional rights cases. The Supreme Court has never directly decided the question and indeed has addressed it only once, in passing. A common assumption, promoted by scholars and adopted as binding by some circuits, is that the deferential, "clearly erroneous" standard of Federal Rule of Civil Procedure 52(a)(6) does not apply to social facts. This Article challenges that assumption. There is nothing in the text of the rule that supports this conclusion. Moreover, except in certain readily identifiable circumstances, it makes sense for appellate courts to defer to trial courts' findings of social fact. Federal bench trials are better suited than the appellate process to vetting social facts when laws are challenged as violating constitutional rights. When key social facts are missing from the trial record, a remand for further factfinding at the trial level will often be workable and appropriate. Since a court's findings of social fact can determine whether constitutional rights claims succeed or fail, it is crucial to achieve a clearer understanding of the roles and respective authority of appellate and trial courts in factfinding in constitutional rights cases. This Article sorts out the tangle of rules and precedents concerning appellate review of trial court factfinding in the constitutional rights context. It then proposes a framework for assessing whether and when appellate courts should defer to trial courts' findings of social fact in constitutional rights cases.
Legal literature is replete with references to the infamous "slippery slope"-situations in which a shift in policy lubricates the path towards further, perhaps more controversial, reforms or measures. Less discussed is the idea of a "sticky slope." Sticky slopes manifest when a social movement victory acts to block, instead of enable, further policy goals. Instead of greasing the slope down, they effectively make it "stickier." Despite the lack of scholarly attention, sticky slope arguments show up again and again in legal argument, particularly in areas focused on minority rights. Formal legal doctrine can create sticky slopes insofar as it reduces legal protections for marginalized groups as they gain political power. Informally, sticky slopes can also develop through backlash, through legal arguments whose valences drift from their original intention, or through society's exhaustion with attempting to address the problem of inequality to seemingly little effect.
I argue that attentiveness to sticky slopes is important for three reasons. First, awareness of the prospect of a sticky slope can be important in long-term social movement strategizing. Where social movements are in pursuit of a cluster of related political ends, they will want to choose their tactics carefully so as to minimize the degree that their past accomplishments can be turned against them. Second, when deployed by legal actors, sticky slope arguments sometimes do not play true causal roles, but instead act as a mask for other, less tolerable justifications. Unmasking sticky slope logic can force legal policymakers to be more explicit about the rationales and implications of their decision. Third, sticky slopes reveal how prior victories are themselves sites of social conflict and controversy over meaning, which social movements will want to turn to their preferred ends.
Recent scholarship on intellectual property ("IP") law argues that doctrinal and theoretical sophistication in IP requires an understanding of "midlevel" principles, purportedly constitutive of IP's positive law. Proponents of this line of scholarship claim these principles serve as a bridge, connecting IP doctrine and practice with deeper foundational philosophical principles. They assert that such midlevel principles-the principles of proportionality, nonremoval, dignity, and efficiency, for instance-explain, predict, and justify IP cases. According to this scholarship, IP doctrine, case outcomes, and statutes are suffused with midlevel principles. In turn, the scholarship treats midlevel principles as consistent with broadly conflicting foundational accounts of property entitlement, from Lockean liberalism on the economic right, to Rawlsian egalitarianism on the left. The result is an account of IP law that unifies practice and the positive law with facially conflicting accounts of foundational property theories. This Essay argues that such claims to IP unification-however revolutionary-are untenable. Drawing from prominent IP cases, including cases addressing the patentability of DNA, this Essay demonstrates that midlevel principles are not rigorously embodied in the positive law of IP and therefore cannot serve to explain or predict case outcomes. Further, these midlevel principles conflict with important liberal "foundational" accounts of property, thereby calling into question the justificatory force such principles might hold. Moreover, contrary to Professor Robert P. Merges's view, different foundational principles, whether maximizing wealth, net aggregate value, or the position of the least well-off, will yield different substantive outcomes in IP cases. Accordingly, this Essay shows that any project conjoining this set of midlevel principles with maximizing distributive principles cannot be sustained. A sophisticated understanding of IP, its theory, and crucially its legal doctrine and practice, does not, and should not, include midlevel principles understood to be consistent with such variously competing foundations. Instead, this Essay acknowledges that courts deciding IP cases often invoke forward-looking foundational principles, whether aimed at utility or distributive justice.
This is a response to the commentary by Professor David H. Blankfein-Tabachnick ("B-T") on my book, Justifying Intellectual Property (JIP) (2011). In JIP, I describe IP law at three levels: foundations, midlevel principles, and specific doctrines and institutions. At the bottom are foundational justifications for the field, ultimate rationales for why a society would have an IP system. In JIP, I explain why utilitarianism-the traditional standard-bearer in the IP field-has failed as a viable foundation. I argue instead for a more deontological foundation, built on the insights of Locke, Kant, and Rawls. At the same time, I recognize that a good number of my colleagues do not share my doubts about utilitarianism, and that they continue to recognize it as the ultimate basis of IP law. I also acknowledge that various scholars have argued persuasively for alternative foundations based for example on traditional religious precepts. Given this level of disagreement, I turn in JIP to what I call "midlevel principles." These are common themes and tropes that pervade case law and policy discussion in the IP field. The four principles I discuss (proportionality, efficiency, nonremoval or public domain enhancement, and dignity) are consistent with a wide range of divergent foundational commitments. These principles serve as a common language, permitting pluralistic foundational commitments while facilitating analysis and argumentation at the level of basic policies. Midlevel principles facilitate discourse between committed utilitarians, believers in a Talmudic basis for IP law, Kantians, and so on. Finally, at the top of the analytic structure in JIP is the level of specific rules, doctrines and institutions-the everyday surface features of the world of IP discourse.
B-T makes two basic points about JIP. He says that I am wrong to argue that midlevel principles are independent of foundational commitments. And he says that my midlevel principles are not quite right because they do not adequately explain specific case outcomes, including several he uses as examples.
On the first point, I argue in this response that B-T misreads some of the texts on which I ground my deontological rationale for IP law. In particular, I reject his argument that Rawls's concern with distributive justice cannot be reconciled with the property theories of Locke and Kant. As I do in JIP, I argue that viable IP protection (based on Locke and Kant) is well within the range of fair institutional structures that reasonable agents might agree upon in the original Rawlsian position. And on the second point, I argue that B-T misconceives the role of midlevel principles. They are not superdoctrines that control specific case outcomes, but instead conceptual themes that permeate the field, tying together discrete and disparate areas of doctrine and practice. I point out that echoes of these themes can be found in the very cases B-T chooses to illustrate his critique. I also elaborate a bit on how we should think about midlevel principles in IP law. Empirically, they are common themes and tropes found throughout IP cases and policy discussions. But conceptually, they can be thought of as the product of an overlapping consensus in the spirit of the later Rawls.
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