Legal Theory Blog

New Papers on the Net
Here is the roundup:

Il-Horn Hann, (Southern California, Business) Kai-Lung Hui (National University of Singapore, Computing), Sang-Yong Lee (National University of Singapore, Computing)and Ivan Png (National University of Singapore, Computing) upload The Value of Online Information Privacy: An Empirical Investigation. Here is the abstract:
Concern over online information privacy is widespread and rising. However, prior research is silent about the value of information privacy in the presence of potential benefits from sharing personally identifiable information. We analyzed individuals’ trade-offs between the benefits and costs of providing personal information to websites. We found that benefits – monetary reward and future convenience – significantly affect individuals’ preferences over websites with differing privacy policies. We also quantified the value of website privacy protection. Among U.S. subjects, protection against errors, improper access, and secondary use of personal information is worth US$30.49 – 44.62. Finally, we identified three distinct segments of Internet consumers – privacy guardians, information sellers, and convenience seekers.

Sacha Wunsch-Vincent (Institute for International Economics) posts The Digital Trade Agenda of the U.S.: Parallel Tracks of Bilateral, Regional and Multilateral Liberalization, forthcoming in Aussenwirtschaft. From the abstract:

What the U.S. has not yet achieved on digital trade multilaterally, it now plans to seed in a tight net of gradually increasing bilateral agreements that are negotiated sequentially. The digital trade negotiations on the bilateral front help the U.S. to build coalitions of like-minded trade partners that will make it easier to converge to a consensus that strongly resembles the U.S. approach on the regional or even the multilateral level. But the U.S. negotiators will be likely to face the same problems as in the WTO when the U.S. starts to approach partners for preferential trade agreements that are economically more important and that are also very inclined to rank “cultural diversity” high on their agenda. With respect to other elements, however, (e.g. IPR protection, service liberalization, and general awareness of free digital trade) the U.S. multi-track initiative for digital trade remains a very promising undertaking that may also foreshadow how majorities can be found among an increasingly heterogeneous WTO membership.

Genevra Richardson (University of London – Queen Mary & Westfield College) uploads Autonomy, Guardianship and Mental Disorder: One Problem, Two Solutions, forthcoming in the Modern Law Review. Here is the abstract:

The law in England and Wales governing both the provision of medical care in the case of adults with incapacity and the provision of care and treatment for mental disorder presents serious problems for the principle of patient autonomy. The adult with incapacity has no competence either to consent to or to refuse medical treatment but the law provides no statutory structure for substitute decision making on that adult’s behalf. On the other hand the law does allow a person with mental disorder to be treated for that disorder despite his or her competent refusal. The nature of these inconsistencies is considered and the implications which flow from the singling out of mental disorder are examined with reference to experience in two Australian jurisdictions. The current proposals for reform of the Mental Health Act are then considered in the light of the conclusions drawn.

Jan Broekman (Illinois) offers Solidarity and Multiculturalism, forthcoming chapter in THEORY OF LAW AND SOCIETY (2003). From the abstract:

“The European Union will be nothing if not multicultural.” This slogan puts multiculturalism in a global and legal perspective. Multiculturalism is defined here as the major feature of a society, which is predominantly composed of groups with different ethnic, geographic, religious and cultural roots striving for equal positions among its citizens on the market of labor, goods and capital. The legal support system is based upon the concept of solidarity. Its realization, however, clashes in an exemplary manner with formal requirements of law and administration in the EU.

Davison M Douglas (William and Mary) uploads The Rhetorical Uses of Marbury v. Madison: The Emergence of a ‘Great Case’, forthcoming in the Wake Forest Law Review. Here is the abstract:

Marbury v. Madison is today indisputably one of the “great cases” of American constitutional law because of its association with the principle of judicial review. But for much of its history, Marbury was not been regarded as a seminal decision. Between 1803 and 1887, the Supreme Court never once cited Marbury for the principle of judicial review and nineteenth-century constitutional law treatises were far more likely to cite Marbury for the decision’s discussion of writs of mandamus or the Supreme Court’s original jurisdiction than for its discussion of judicial review. During the late nineteenth century, however, the exercise of judicial review became far more controversial. Proponents of judicial review seized upon the Marbury decision to legitimize their claims for an expansive conception of the doctrine – particularly after the Court engaged in an extraordinarily controversial exercise of judicial review in 1895 in the Pollock decisions declaring the newly enacted federal income tax unconstitutional. In the process, Marbury became, for the first time, a “great case” – as measured by its treatment in judicial opinions, legal treatises, and casebooks – a moniker that would have been ill applied to the decision for most of the nineteenth century. Marbury’s significance today cannot be attributed to the pathbreaking character of the decision. Rather, Marbury became “great” because proponents of an expansive doctrine of judicial review have needed it to assume greatness.

Paul Caron (Cincinnati) offers Back to the Future: Teaching Law Through Stories, forthcoming in the University of Cincinnati Law Review. The abstract:

This Essay explains the pedagogical theory behind the new Law Stories series of books to be published by Foundation Press. The Law Stories series is intended to enrich the use of the case method of instruction in the law school classroom. By focusing on fewer cases and pausing for an in-depth review of the seminal cases in the field, the professor can empower students to construct their own schematic understanding of the area of law. Cognitive science teaches that such active learning produces more lasting value to students who are better equipped to process new information and solve new problems within the context of their self-constructed schemata. Professors thus should resist the temptation to do this work for students, conveying our schemata in a top-down fashion, with students playing merely a passive role in receiving this oracular wisdom. As a result, Professors should not sacrifice depth of coverage at the alter of scope of coverage; rather than rush through the signature cases in our subject in order to get to the latest hot topic or fashionable theory, professors should savor the opportunity to unpack with our students what it is that makes these cases central to a deep understanding of the field. The Law Stories series provides the raw material to enhance the study of the foundation cases in different subjects. As the initial book in the series, Tax Stories provides an in-depth examination into ten pivotal United States Supreme Court cases in the development of the federal income tax that provide fresh insights both into particular doctrinal areas of tax law as well as issues of wider application across the tax law.

Christopher Drahozal (Kansas) Nonmutual Agreements to Arbitrate, forthcoming in the Journal of Corporation Law. From the abstract:

An increasing number of courts, albeit still a minority, refuse to enforce nonmutual arbitration clauses (clauses that require one party but not the other to arbitrate, in whole or in part) in consumer and employment contracts. Critics take the view that such clauses are unfair to consumers and employees, who must arbitrate their claims while the business avoids arbitration of at least some of its own claims. This article challenges the view that nonmutual arbitration clauses necessarily are unfair. Certainly to the extent market forces constrain business (mis)behavior, nonmutual arbitration clauses may make consumers better off. Commentators who criticize (and courts that invalidate) nonmutual arbitration clauses, however, are skeptical of markets and question the effectiveness of market constraints. This article shows that even accepting – for the sake of argument – the skeptical view of markets and business behavior held by critics of pre-dispute consumer arbitration clauses, a requirement that arbitration clauses contain mutual promises to arbitrate may actually make consumers worse off, not better off. Moreover, such a mutuality requirement may result in arbitration proceedings that are less fair, rather than more fair, to consumers. Thus, while a poorly functioning market is a necessary condition for a mutuality requirement to make sense as a policy matter, it is not a sufficient condition. Courts that refuse to enforce nonmutual agreements to arbitrate may be harming consumers rather than helping them.

Howard Erichson (Seton Hall) posts Beyond the Class Action: Lawyer Loyalty and Client Autonomy in Non-Class Collective Representation, forthcoming in the University of Chicago Legal Forum. From the abstract:

Class actions receive the lion’s share of academic and policymaking attention, but in practice much mass litigation proceeds on a non-class basis. Non-class mass litigation often resembles class actions in the following sense: numerous plaintiffs depend upon the work of counsel with whom they have no meaningful individual lawyer-client relationship, over whom they have no meaningful control, and whose loyalty is directed primarily to the interests of the group as a whole. Class actions retain the distinction of binding nonparties, but in the relationship between counsel and the represented group, non-class litigation resembles class actions to a much greater extent than generally recognized. Given the attention that class actions have received, it makes sense to look to certain class action concepts and developments to inform our understanding of non-class collective representation.