“A logical analysis of the idea of justice would seem to be a very hazardous business. Indeed, among all evocative ideas, that of justice appears to be one of the most eminent and the most hopelessly confused.” –Chaïm Perelman1 I. INTRODUCTION One difficult question that political and moral thinkers have grappled with is how to limit justice.2 We have a tendency to see justice as potentially applicable to almost any circumstance in which values are somehow involved with interpersonal behavior.3 Yet (...) in our contemporary parlance it does not seem appropriate to use the language of justice in all such situations. While there may be significant disagreement over which situations are appropriate for the use of the concept, there does appear to be some agreement.. (shrink)

The U.S. Supreme Court regards parental rights as fundamental. Such a status should subject any legal procedure that directly and substantively interferes with the exercise of parental rights to strict scrutiny. On the contrary, though, despite their status as fundamental constitutional rights, parental rights are routinely suspended or revoked as a result of procedures that fail to meet even minimal standards of procedural and substantive due process. This routine and cavalier deprivation of parental rights takes place in the context of (...) divorce where, during the pendency of litigation, one parent is routinely deprived of significant parental rights without any demonstration that a state interest exists—much less that there is a compelling state interest that cannot be achieved in any less restrictive way. In marked contrast to our current practice, treating parental rights as fundamental rights requires a presumption of joint legal and physical custody upon divorce and during the pendency of divorce litigation. The presumption may be overcome, but only by clear and convincing evidence that such an arrangement is harmful to the children. (shrink)

Geographic Indications (GIs) are a form of trademark protection afforded to products that are historically the product of a particular place and production process by restricting use of the name to products that actually come from the place in question; “Champagne” can only come from that region of France, for example. GIs are often proposed as a way to protect indigenous cultural products from Western appropriation: a global GI regime would ensure that “Mysore” silk sarees were produced in India, and (...) thus ensure that the traditional producers of these goods would be the beneficiaries of purchases of them. Such a strategy would return both economic value and cultural recognition to the producers of these goods. -/- In this paper, I argue that the move to branding culture puts the source indicating function of trademarks radically into question, thereby increasing the risks associated with an expansion of GIs. Increasingly, consumers consume brands not for the products they designate, but for the affiliation with the brands themselves. Since the benefits of source protection to indigenous communities depend upon a consumer’s desire to have a product actually from that source community, if consumers care more about the brand designation than the actual source, those benefits will be more difficult to realize. Instead, the logic of trademarks in late capitalism will tend to push geographic source protections toward becoming de facto IP rights in culture. -/- After an introductory section, the second section of the paper theorizes trademarks as part of a process of commodification in order to suggest that the logic of the process leads to an emphasis on brands themselves as sources of value, rather than the products to which they refer. The third section uses this theoretical frame to discuss the risk that geographic source protections will tend to reduce cultural diversity, both by tending to promote exoticized images of cultures, and by increasing the importance of standardization. The fourth section situates these concerns in the larger context of David Harvey’s work on capitalist accumulation, in order to underscore how the reification of culture discussed in the third section can be used as a tool by cultural elites to suppress dissent and treat the source protection as intellectual property rights in culture. The concluding section offers some policy suggestions for ways to ameliorate these risks. (shrink)

Emerging technologies raise the possibility that we may be able to treat trauma victims by pharmaceutically dampening factual or emotional aspects of their memories. Such technologies raise a panoply of legal and ethical issues. While many of these issues remain off in the distance, some have already arisen. In this brief commentary, I discuss a real-life case of memory erasure. The case reveals why the contours of our freedom of memory—our limited bundle of rights to control our memories and be (...) free of outside control—already merit some attention. (shrink)