Current Issue

Smooth and Bumpy Laws

Adam J. Kolber • 03 Jul 2014

Modest differences in conduct can lead to wildly different legal outcomes. A person deemed slightly negligent when harming another may owe millions of dollars. Had the person been just a bit more cautious, he would owe nothing. Similarly, when self-defense is deemed slightly negligent, a person may spend several years in prison. Had the person been just a bit more cautious, he would have no criminal liability at all. Though the law must draw difficult lines, the lines need not have such startling effects. We can adjust damage awards and the severity of prison sentences anywhere along a spectrum.

A legal input and output have a “smooth” relationship when a gradual change to the input leads to a gradual change to the output. The prior examples are not smooth but “bumpy”: a gradual change to the input sometimes dramatically affects the output and sometimes has no effect at all. The law is full of these bumpy relationships that create hard-to-justify discontinuities.

In this Essay, I discuss the relative advantages of smooth and bumpy legal relationships and explain how the choice of an input-output relationship differs from the choice between rules and standards. I argue that smooth relationships will often create less “rounding error” than bumpy relationships by more closely approximating our underlying moral norms.

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Circuit

The New “Human Equity” Transactions

Shu-Yi Oei & Diane M. Ring • 26 Jun 2014

Are we entering an era where investors can acquire an equity stake in an individual?  A new family of marketplace transactions provides individuals with financing for business, entrepreneurship, education, or diversification purposes in return for the individual’s promise to pay a percentage of her income for a period of years. This Essay briefly discusses the legal, regulatory, and public policy issues these new transactions raise, and proposes an analytical approach to grappling with such issues.

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Circuit

To Unseal or Not to Unseal: The Judiciary’s Role in Preventing Transparency in Electronic Surveillance Applications and Orders

Brian L. Owsley • 03 Jun 2014

This essay addresses the issue of transparency in the judiciary regarding the sealing of applications for electronic surveillance.  Specifically, it concerns the experiences of a federal magistrate who attempted to unseal a number of surveillance applications and orders.

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Circuit

Wawrzynski v. H.J. Heinz Co.: The Lucky Ketchup Packet

Lauren Blakely • 19 Apr 2014

For years, the Supreme Court and the Federal Circuit have dismissed state law claims by small inventors on the grounds that federal patent law preempts state laws offering patent-like protections. Recently, David Wawrzynski, a man who claims he invented the idea for Heinz’s new “Dip & Squeeze®” ketchup packet, filed state law claims against Heinz alleging it stole his idea. Instead of dismissing his claims, the Federal Circuit transferred the case to another court for a decision on the merits. This Casenote explores precedent and policy in an effort to understand why claims related to this ketchup packet invention were lucky enough to escape dismissal.

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