The United States is an outlier among democratic countries when it comes to the institutions charged with running our elections. Most other democratic countries have an independent election authority that enjoys some insulation from partisan politics in running elections. In the United States, by contrast, partisan election administration is the near-universal norm at the state level. In most states, the chief election authority — usually the Secretary of State — is elected to office as a nominee of his or her party, while in almost all the remaining states the chief election official is appointed by partisan officials. There is one conspicuous exception to the partisan character of election administration at the state level: Wisconsin’s Government Accountability Board (“GAB”). Established by the Wisconsin state legislature in 2007, the GAB has responsibility for election administration, as well as enforcement of campaign finance, ethics, and lobbying laws. Its members are former judges chosen in manner that is designed to ensure that they will not favor either major party. This makes the GAB unique among state election management bodies in the U.S. Is there any hope for nonpartisan election administration in an era of intense political polarization? This article considers this question by examining and assessing the performance of Wisconsin’s GAB. It concludes that the GAB has been successful in administering elections evenhandedly during its first five years of existence and, accordingly, that it serves as a worthy model for other states considering alternatives to partisan election administration at the state level. Part II discusses the origins and history of the GAB, putting it in the context of other electoral institutions in the U.S., as well as electoral institutions in other democratic countries. Part III discusses the most important election administration issues that have come before the Wisconsin GAB since its creation, including fierce partisan debates over voter registration and voter identification, errant reporting of election results in a very close state supreme court race, and contentious recall elections of the Governor and prominent state legislators. Part IV concludes by evaluating the GAB’s performance during these trying times and considering whether the Wisconsin model can and should be exported to other states.
{"title":"America's Top Model: The Wisconsin Government Accountability Board","authors":"Daniel P. Tokaji","doi":"10.2139/SSRN.2201587","DOIUrl":"https://doi.org/10.2139/SSRN.2201587","url":null,"abstract":"The United States is an outlier among democratic countries when it comes to the institutions charged with running our elections. Most other democratic countries have an independent election authority that enjoys some insulation from partisan politics in running elections. In the United States, by contrast, partisan election administration is the near-universal norm at the state level. In most states, the chief election authority — usually the Secretary of State — is elected to office as a nominee of his or her party, while in almost all the remaining states the chief election official is appointed by partisan officials. There is one conspicuous exception to the partisan character of election administration at the state level: Wisconsin’s Government Accountability Board (“GAB”). Established by the Wisconsin state legislature in 2007, the GAB has responsibility for election administration, as well as enforcement of campaign finance, ethics, and lobbying laws. Its members are former judges chosen in manner that is designed to ensure that they will not favor either major party. This makes the GAB unique among state election management bodies in the U.S. Is there any hope for nonpartisan election administration in an era of intense political polarization? This article considers this question by examining and assessing the performance of Wisconsin’s GAB. It concludes that the GAB has been successful in administering elections evenhandedly during its first five years of existence and, accordingly, that it serves as a worthy model for other states considering alternatives to partisan election administration at the state level. Part II discusses the origins and history of the GAB, putting it in the context of other electoral institutions in the U.S., as well as electoral institutions in other democratic countries. Part III discusses the most important election administration issues that have come before the Wisconsin GAB since its creation, including fierce partisan debates over voter registration and voter identification, errant reporting of election results in a very close state supreme court race, and contentious recall elections of the Governor and prominent state legislators. Part IV concludes by evaluating the GAB’s performance during these trying times and considering whether the Wisconsin model can and should be exported to other states.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":"113 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124805652","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Our paper examines how law-making regarding Native and Central Americans in the United States gives rise to documentary forms that challenge binaries that have plagued sociolegal scholarship. In the United States, plenary power gives the federal government what former U.S. attorney general Michael Mukasey termed the "administrative grace" to grant privileges to members of groups, such as immigrants and Native Americans, who are citizens of other nations, and thus whose allegiance is questioned. Matter of Compean 24 I&N Dec. 710 (A.G. 2009). Plenary power is understood by the Supreme Court as having "always been deemed a political one, not subject" to judicial oversight. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). This understanding makes plenary power something of a legal black box – analysis typically ends with the determination that the authority in question is a political one beyond legal review. Yet members of these groups experience plenary power precisely in its regulatory form, in the ways in which they are demanded to produce documents to establish juridical and political identities before the state. Such documents, which simultaneously produce and contest accounts of immigrant and indigenous histories, create alternative understandings in which law is characterized neither by gaps nor by gaplessness, but rather by embodiment in material form.
我们的论文考察了关于美国土著和中美洲人的立法如何产生了挑战困扰社会法律学术的二元性的纪录片形式。在美国，联邦政府被前司法部长迈克尔·穆卡西(Michael Mukasey)称为“行政特权”，可以向移民和印第安人等群体成员授予特权，这些群体成员是其他国家的公民，因此他们的忠诚受到质疑。2009年12月第24号法院案件(A.G.)。最高法院认为，绝对权力“一直被视为一种政治权力，而不受”司法监督。孤狼诉希区柯克案，187 U.S. 553(1903)。这种理解使绝对权力成为某种法律黑箱——分析通常以确定所讨论的权力是超越法律审查的政治权力而告终。然而，这些群体的成员正是在其监管形式中，以他们被要求在国家面前出示文件以确立法律和政治身份的方式，体验到完全的权力。这些文献同时产生了对移民和土著历史的描述，并对其提出了质疑，创造了另一种理解，在这种理解中，法律的特征既不是空白，也不是空白，而是物质形式的具体化。
{"title":"Routine Exceptionality: The Plenary Power Doctrine, Immigrants, and the Indigenous Under U.S. Law","authors":"S. Coutin, Justin Richland, Véronique Fortin","doi":"10.2139/SSRN.2181071","DOIUrl":"https://doi.org/10.2139/SSRN.2181071","url":null,"abstract":"Our paper examines how law-making regarding Native and Central Americans in the United States gives rise to documentary forms that challenge binaries that have plagued sociolegal scholarship. In the United States, plenary power gives the federal government what former U.S. attorney general Michael Mukasey termed the \"administrative grace\" to grant privileges to members of groups, such as immigrants and Native Americans, who are citizens of other nations, and thus whose allegiance is questioned. Matter of Compean 24 I&N Dec. 710 (A.G. 2009). Plenary power is understood by the Supreme Court as having \"always been deemed a political one, not subject\" to judicial oversight. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). This understanding makes plenary power something of a legal black box – analysis typically ends with the determination that the authority in question is a political one beyond legal review. Yet members of these groups experience plenary power precisely in its regulatory form, in the ways in which they are demanded to produce documents to establish juridical and political identities before the state. Such documents, which simultaneously produce and contest accounts of immigrant and indigenous histories, create alternative understandings in which law is characterized neither by gaps nor by gaplessness, but rather by embodiment in material form.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127032179","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Current debates over the autonomy of virtual worlds have an eerie similarity to discussions about the independence of cyberspace two decades ago. The history of the Internet offers some important lessons for how the law will affect virtual worlds, and how it should do so.
{"title":"The Dubious Autonomy of Virtual Worlds","authors":"Mark A. Lemley","doi":"10.2139/SSRN.2021521","DOIUrl":"https://doi.org/10.2139/SSRN.2021521","url":null,"abstract":"Current debates over the autonomy of virtual worlds have an eerie similarity to discussions about the independence of cyberspace two decades ago. The history of the Internet offers some important lessons for how the law will affect virtual worlds, and how it should do so.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122228321","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A largely dysfunctional American immigration system is only poorly explained by deliberate economic policy choices, longstanding public attitudes, explicit presidential decisions, or general gridlock. Instead of being accurately described by simple depictions of the political economy of the issue, immigration law's structure can be better appreciated by analyzing the intersecting effects of three separate dynamics — statutory compromises rooted in the political economy of lawmaking, organizational practices reflecting the political economy of implementation, and public reactions implicating the responses of policy elites and the larger public to each other. Together, these factors help constitute an immigration status quo characterized by intense public concern, continuing legal controversies, and powerful obstacles to change. For example, American immigration statutes –– particularly since 1986 –– have created a legal arrangement essentially built to fail, giving authorities regulatory responsibilities that were all but impossible to achieve under existing law. Meanwhile, implementation has been characterized by organizational fragmentation, with policy changes involving one agency often producing externalities not affecting that agency, and limited presidential power to make fundamental changes in the substance of immigration law. The resulting interplay of unrealistic statutory goals, enforcement, and growing public concern routinely threatens to engender a polarizing implementation dynamic, where agencies’ incapacity to enforce existing law tends to spur polarized political responses producing legislation that further exacerbates agency difficulties in meeting public expectations. Beyond what these developments tell us about immigration, they also reveal much about how statutory entrenchment in the United States is affected by political cycles capable of eroding the legitimacy of public agencies, and how powerful nation-states control, in limited but nonetheless significant ways, the transnational flows affecting their well-being and security.
{"title":"The Political Economies of Immigration Law","authors":"Mariano-Florentino Cuéllar","doi":"10.2139/SSRN.2027278","DOIUrl":"https://doi.org/10.2139/SSRN.2027278","url":null,"abstract":"A largely dysfunctional American immigration system is only poorly explained by deliberate economic policy choices, longstanding public attitudes, explicit presidential decisions, or general gridlock. Instead of being accurately described by simple depictions of the political economy of the issue, immigration law's structure can be better appreciated by analyzing the intersecting effects of three separate dynamics — statutory compromises rooted in the political economy of lawmaking, organizational practices reflecting the political economy of implementation, and public reactions implicating the responses of policy elites and the larger public to each other. Together, these factors help constitute an immigration status quo characterized by intense public concern, continuing legal controversies, and powerful obstacles to change. For example, American immigration statutes –– particularly since 1986 –– have created a legal arrangement essentially built to fail, giving authorities regulatory responsibilities that were all but impossible to achieve under existing law. Meanwhile, implementation has been characterized by organizational fragmentation, with policy changes involving one agency often producing externalities not affecting that agency, and limited presidential power to make fundamental changes in the substance of immigration law. The resulting interplay of unrealistic statutory goals, enforcement, and growing public concern routinely threatens to engender a polarizing implementation dynamic, where agencies’ incapacity to enforce existing law tends to spur polarized political responses producing legislation that further exacerbates agency difficulties in meeting public expectations. Beyond what these developments tell us about immigration, they also reveal much about how statutory entrenchment in the United States is affected by political cycles capable of eroding the legitimacy of public agencies, and how powerful nation-states control, in limited but nonetheless significant ways, the transnational flows affecting their well-being and security.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133361835","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper conjoins three texts – the “Confessions of Nat Turner,” Walter Benjamin’s “Capitalism as Religion,” and Max Weber’s “Science as a Vocation.” Benjamin and Weber provide interpretive prisms through which to examine Turner’s confession. Though quite unlike each other, each glances at the demonic – a matter of some significance when one considers the meaning of the “full faith and credit” held due the decision of the Southampton (Virginia) County Court to hang Turner for his attempted 1831 slave rebellion. Like guilt/debt, the dual meanings of Schuld that, for Benjamin, confirmed the existence of a religious – specifically a Christian – structure in capitalism, the conjunction of faith and credit has its own demonic ambiguity, simultaneously sacralizing (faith) and secularizing (credit) the authority of the law. In capitalism as religion and as law, these demonic ambiguities fuse together in an overwhelming simultaneity that is at once economic and juridical, moral and psychological, profane and sacral. This simultaneity – and Turner’s attempt to disrupt it – is the paper’s chief concern.
{"title":"Demonic Ambiguities: Enchantment and Disenchantment in Nat Turner’s Virginia","authors":"C. Tomlins","doi":"10.2139/SSRN.2034443","DOIUrl":"https://doi.org/10.2139/SSRN.2034443","url":null,"abstract":"This paper conjoins three texts – the “Confessions of Nat Turner,” Walter Benjamin’s “Capitalism as Religion,” and Max Weber’s “Science as a Vocation.” Benjamin and Weber provide interpretive prisms through which to examine Turner’s confession. Though quite unlike each other, each glances at the demonic – a matter of some significance when one considers the meaning of the “full faith and credit” held due the decision of the Southampton (Virginia) County Court to hang Turner for his attempted 1831 slave rebellion. Like guilt/debt, the dual meanings of Schuld that, for Benjamin, confirmed the existence of a religious – specifically a Christian – structure in capitalism, the conjunction of faith and credit has its own demonic ambiguity, simultaneously sacralizing (faith) and secularizing (credit) the authority of the law. In capitalism as religion and as law, these demonic ambiguities fuse together in an overwhelming simultaneity that is at once economic and juridical, moral and psychological, profane and sacral. This simultaneity – and Turner’s attempt to disrupt it – is the paper’s chief concern.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126587193","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
While names like Charles Hamilton Houston (architect of the NAACP Legal Defense Fund strategy to end school segregation), Rosa Parks (mother of the Civil Rights Movement), Earl B. Dickerson (civil rights lawyer and first black University of Chicago Law School graduate), Sadie Alexander (first African American woman to earn a PhD, and first to earn a JD from the University of Pennsylvania), and William Hastie (first African American federal judge) resonate in the hearts and minds of those interested in or knowledgeable about civil rights icons or blacks in the legal profession, little is known amongst majority culture about the fraternal networks that sustained, propelled, and organized such individuals. In light of the unique history and organizational structure of these organizations, we analyze a peculiar aspect of black fraternal life — violent, initiatory hazing. While violent hazing has been an enduring aspect of black, fraternal culture, poetry — often aimed at buoying the spirits of pledges — has taken a central role in that culture. Herein, we explore the evidential value of poetry in tort cases that deal with facts around black fraternity and sorority hazing.
{"title":"Poetry as Evidence","authors":"G. Parks, Rashawn Ray","doi":"10.2139/SSRN.2011627","DOIUrl":"https://doi.org/10.2139/SSRN.2011627","url":null,"abstract":"While names like Charles Hamilton Houston (architect of the NAACP Legal Defense Fund strategy to end school segregation), Rosa Parks (mother of the Civil Rights Movement), Earl B. Dickerson (civil rights lawyer and first black University of Chicago Law School graduate), Sadie Alexander (first African American woman to earn a PhD, and first to earn a JD from the University of Pennsylvania), and William Hastie (first African American federal judge) resonate in the hearts and minds of those interested in or knowledgeable about civil rights icons or blacks in the legal profession, little is known amongst majority culture about the fraternal networks that sustained, propelled, and organized such individuals. In light of the unique history and organizational structure of these organizations, we analyze a peculiar aspect of black fraternal life — violent, initiatory hazing. While violent hazing has been an enduring aspect of black, fraternal culture, poetry — often aimed at buoying the spirits of pledges — has taken a central role in that culture. Herein, we explore the evidential value of poetry in tort cases that deal with facts around black fraternity and sorority hazing.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127429323","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay, which is part of a symposium on UC Irvine Law School’s innovations in legal education, describes the required, year-long, first-year course on the Legal Profession. Responding to a number of calls for improved law school instruction on the legal profession and professional ethics, the course offers students an empirically grounded understanding of actual practice realities and critical perspectives on those practices, drawn from history, sociology, philosophy, economics, and psychology. It situates issues of legal ethics and professionalism in broader contexts, including the history and social structure of the bar, the market for legal services, and the organizations of practice. It relies heavily on theoretical and empirical literature about the profession, as well as case studies, simulations, and commentary by guest speakers. We require our students to engage with issues of the profession from the very start of law school, and we pitch the course in terms that appeal to the students’ self-interest – as an effort to help them chart successful, rewarding, and responsible careers in law. This essay describes the premises, goals, circumstances of creation, and content of our Legal Profession course. We also assess the success of the course and identify continuing challenges.
{"title":"Our Institutional Commitment to Teach about the Legal Profession","authors":"Ann Southworth, Catherine L. Fisk","doi":"10.2139/SSRN.1851862","DOIUrl":"https://doi.org/10.2139/SSRN.1851862","url":null,"abstract":"This essay, which is part of a symposium on UC Irvine Law School’s innovations in legal education, describes the required, year-long, first-year course on the Legal Profession. Responding to a number of calls for improved law school instruction on the legal profession and professional ethics, the course offers students an empirically grounded understanding of actual practice realities and critical perspectives on those practices, drawn from history, sociology, philosophy, economics, and psychology. It situates issues of legal ethics and professionalism in broader contexts, including the history and social structure of the bar, the market for legal services, and the organizations of practice. It relies heavily on theoretical and empirical literature about the profession, as well as case studies, simulations, and commentary by guest speakers. We require our students to engage with issues of the profession from the very start of law school, and we pitch the course in terms that appeal to the students’ self-interest – as an effort to help them chart successful, rewarding, and responsible careers in law. This essay describes the premises, goals, circumstances of creation, and content of our Legal Profession course. We also assess the success of the course and identify continuing challenges.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131824049","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the fall semester of 2009, I taught a course called “Statutory Analysis” to half of the students in the inaugural first year class at the University of California, Irvine, School of Law. This article is my attempt to dissect and analyze the “Statutory Analysis” class that I created, and to make some preliminary assessments of its strengths and weaknesses. Part I of this essay offers an explanation of the ambitions and intentions of the founding faculty members who decided to include the course in the first year curriculum and who settled on the basic parameters of the course. Part II sets forth the basic parameters of my Statutory Analysis class. In Part III of the essay, I explore the benefits and limitations of this particular statutory analysis course. In Part III, Section A, I discuss the compromises I made in terms of the coverage of criminal law. Part III, Section B focuses on the cost this course design exacts from efforts to teach the history, theories and tools of statutory interpretation. Ultimately, I believe that the course I designed has expanded first year students’ understanding of and attention to issues of statutory interpretation without extracting too great a cost in terms of their knowledge of substantive criminal law. Nevertheless, anyone wishing to implement such a course should carefully consider both the benefits and the costs of doing so.
{"title":"Statutory Analysis: Using Criminal Law to Highlight Issues in Statutory Interpretation","authors":"Jennifer M. Chacón","doi":"10.2139/SSRN.1851885","DOIUrl":"https://doi.org/10.2139/SSRN.1851885","url":null,"abstract":"In the fall semester of 2009, I taught a course called “Statutory Analysis” to half of the students in the inaugural first year class at the University of California, Irvine, School of Law. This article is my attempt to dissect and analyze the “Statutory Analysis” class that I created, and to make some preliminary assessments of its strengths and weaknesses. Part I of this essay offers an explanation of the ambitions and intentions of the founding faculty members who decided to include the course in the first year curriculum and who settled on the basic parameters of the course. Part II sets forth the basic parameters of my Statutory Analysis class. In Part III of the essay, I explore the benefits and limitations of this particular statutory analysis course. In Part III, Section A, I discuss the compromises I made in terms of the coverage of criminal law. Part III, Section B focuses on the cost this course design exacts from efforts to teach the history, theories and tools of statutory interpretation. Ultimately, I believe that the course I designed has expanded first year students’ understanding of and attention to issues of statutory interpretation without extracting too great a cost in terms of their knowledge of substantive criminal law. Nevertheless, anyone wishing to implement such a course should carefully consider both the benefits and the costs of doing so.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132711867","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Global intellectual property rules have had adverse consequences for the promotion and protection of a range of human rights, including the rights to food, health, water, culture, equality and non discrimination, and freedom of expression. Nonetheless, these issues have been framed in human rights terms primarily at the international and regional levels. Domestic human rights advocates have largely not taken up the issue of how intellectual property law affects the enjoyment of human rights. This Article argues that this incomplete translation is due to widespread reliance on a fairly narrow understanding of human rights. Human rights, when understood only as a set of legal rules and institutions, inevitably devolves into a debate about reconciling conflicting rights. This is an important conversation, but it is also a limiting one. The emancipatory potential of human rights often lies not in its power as a set of legal rules but in the way in which those rules can be employed by affected individuals to make claims and demand political change. Using the case study of law and politics around intellectual property mobilization, the Article argues that framing intellectual property in more robust human rights terms is important for challenging the fundamental power structures that undergird the intellectual property regime. The Article then argues that the Marrakesh Treaty — a new treaty that requires states to create mandatory exceptions to copyright to protect the rights of individuals with disabilities — charts a new path for human rights advocacy on intellectual property. This treaty has the potential to lay a foundation for better translation of intellectual property issues into human rights advocacy by identifying a clear violation and by activating domestic human rights advocates. Creating a foundation for affected individuals and human rights advocates to participate in intellectual property lawmaking is essential to realizing the potential of human rights for revising the essential bargains of the international intellectual property system.
{"title":"The Marrakesh Treaty as 'Bottom Up' Lawmaking: Supporting Local Human Rights Action on IP Policies","authors":"Molly K. Land","doi":"10.2139/SSRN.3310380","DOIUrl":"https://doi.org/10.2139/SSRN.3310380","url":null,"abstract":"Global intellectual property rules have had adverse consequences for the promotion and protection of a range of human rights, including the rights to food, health, water, culture, equality and non discrimination, and freedom of expression. Nonetheless, these issues have been framed in human rights terms primarily at the international and regional levels. Domestic human rights advocates have largely not taken up the issue of how intellectual property law affects the enjoyment of human rights. \u0000 \u0000This Article argues that this incomplete translation is due to widespread reliance on a fairly narrow understanding of human rights. Human rights, when understood only as a set of legal rules and institutions, inevitably devolves into a debate about reconciling conflicting rights. This is an important conversation, but it is also a limiting one. The emancipatory potential of human rights often lies not in its power as a set of legal rules but in the way in which those rules can be employed by affected individuals to make claims and demand political change. \u0000 \u0000Using the case study of law and politics around intellectual property mobilization, the Article argues that framing intellectual property in more robust human rights terms is important for challenging the fundamental power structures that undergird the intellectual property regime. The Article then argues that the Marrakesh Treaty — a new treaty that requires states to create mandatory exceptions to copyright to protect the rights of individuals with disabilities — charts a new path for human rights advocacy on intellectual property. This treaty has the potential to lay a foundation for better translation of intellectual property issues into human rights advocacy by identifying a clear violation and by activating domestic human rights advocates. Creating a foundation for affected individuals and human rights advocates to participate in intellectual property lawmaking is essential to realizing the potential of human rights for revising the essential bargains of the international intellectual property system.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126446736","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Legal historians have long taken their intellectual cues from the problematic of the “law and” theory. The “law and” theory has been influential both intellectually and institutionally because of the capaciousness of the conjunctive metaphor. “Law and” allows all manner of claims about the natures of law and history, and about the insights one might gain from studying law as part of other domains of human activity. The pragmatic usefulness of the conjunction papers over abiding doubts about the continuing intellectual coherence of the framework that encompasses so much sociolegal historical work. The sixteen papers in this symposium issue of the UC Irvine Law Review responded to an invitation to consider legal history through a lens other than that provided by the “law and society” framework. Instead of parsing relations between distinct domains of activity, between law and what lies “outside” of it, the objective of historical research about law might be to imagine them as the same domain: “law as . . . .” The ellipses began as a hopeful invitation to consider what law is if it is not half of a conjunction. The ellipses became statement of principle: law can and should be imagined in many ways, including as the five themes reflected in these papers: law as the language of social relations, law as consciousness, law as enchanted ritual and spectacle, law as sovereignty, and law as economic/cultural activity.
{"title":"Foreward: 'Law as . . .': Theory and Method in Legal History","authors":"Catherine L. Fisk, R. Gordon","doi":"10.2139/SSRN.2066039","DOIUrl":"https://doi.org/10.2139/SSRN.2066039","url":null,"abstract":"Legal historians have long taken their intellectual cues from the problematic of the “law and” theory. The “law and” theory has been influential both intellectually and institutionally because of the capaciousness of the conjunctive metaphor. “Law and” allows all manner of claims about the natures of law and history, and about the insights one might gain from studying law as part of other domains of human activity. The pragmatic usefulness of the conjunction papers over abiding doubts about the continuing intellectual coherence of the framework that encompasses so much sociolegal historical work. The sixteen papers in this symposium issue of the UC Irvine Law Review responded to an invitation to consider legal history through a lens other than that provided by the “law and society” framework. Instead of parsing relations between distinct domains of activity, between law and what lies “outside” of it, the objective of historical research about law might be to imagine them as the same domain: “law as . . . .” The ellipses began as a hopeful invitation to consider what law is if it is not half of a conjunction. The ellipses became statement of principle: law can and should be imagined in many ways, including as the five themes reflected in these papers: law as the language of social relations, law as consciousness, law as enchanted ritual and spectacle, law as sovereignty, and law as economic/cultural activity.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":"273 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125836022","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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