Thursday, August 30, 2012

Sexist New Coke?

About a year ago, Bic unveiled Bic for Her, a pen designed for use by women in that it is smaller and, oh yeah, pink and crystal and other pretty colors. And it costs $0.15 more per pen. Commenters on Amazon have been having fun with this one for a couple of days. Not sure why this is bubbling up now, although one publication speculated that the wave of back-to-school shoppers have noticed them.

Posted by Howard Wasserman on August 30, 2012 at 10:02 AM in Culture, Howard Wasserman | Permalink | Comments (0) | TrackBack

Thursday, August 23, 2012

Presidential succession on TV

Presidential succession is a treasure trove for television plots. The West Wing featured six different storylines involving selection and succession of the president or vice president (some for drama, some necessitated by the untimely death of actor John Spencer).

This summer, we have been watching Political Animals, a cable mini-series depicting a thinly veiled Hillary Clinton (played wonderfully by Sigourney Weaver), divorced from a thinly veiled Bill Clinton, and working as Secretary of State for the man who beat her in the primary (who is not remotely reflective of Barack Obama). In Sunday's season finale, the Twenty-fifth Amendment returned as guest star.

Spoilers after the jump.

Air Force One crashes into the ocean off the coast of France and a rescue/recovery mission is under way; some bodies have been recovered, but not the President. The Vice President (who is a total sleaze and the political villain of the show) summons the Chief Justice to the Oval Office to administer the oath of office, which would make him the President. When told of this plan the Secretary of State races to find all the cabinet members and get them to sign a letter under § 4 of the Amendment, declaring the president unable to discharge his duties. The VP and the Secretary of State then have a showdown conversation in the Oval Office, in which she stresses the constitutional crisis that would arise if it turns out the president survived the plane crash and there were two presidents. The VP backs down and signs the letter (§ 4 requires the VP and a majority of the cabinet); the Secretary congratulates him on now being the acting president (but not the President) and the VP/AP shoots her an angry glare.

It was certainly done in a melodramatic fashion that was not poltically realistic. In reality, the Chief never would have even shown up at the White House or been prepared to administer the oath absent confirmation that the President was dead---he would not just have done it because the VP told him to. Or, if he were in the room, he certainly would have had something to say about whether the oath was constitutionally appropriate, rather than just standing there silently in the background (out of focus) as the two political leaders argue. Also, in reality, a VP would be highly circumspect before taking the oath (as Lyndon Johnson apparently was in 1963, albeit pre-Twenty-Fifth Amendment) and would want both certainty as to the president's condition and the public's mood; of course, the VP in this show is such a bad guy that his conduct is not surprising. Finally, since the possibility remained that the crash was  terror-related, every one of these public officals would have been sitting in the secret bunker, not in the White House or in Foggy Bottom.

Still, while the politics were not quite right (this is, after all, more of a soap than a political drama), they did get the Constitution right.

 

Posted by Howard Wasserman on August 23, 2012 at 10:05 AM in Culture, Howard Wasserman | Permalink | Comments (1) | TrackBack

Monday, August 20, 2012

Sgt. Pepper's Lonely Hearts Mad Men, Part II

Two months late with this one, but after focusing on it in late June, I dropped it as the summer progressed. In May, I wrote about a series of posts by Emily Viviani, arguing that the recent season of Mad Men lyrically, thematically, and structurally used Sgt. Pepper's as a template.

In June, Emily wrote the final piece on the last three episodes of the season. I think the lyrical connections are a stretch. But I was particularly intrigued at the way season's penultimate episode functions as a mirror-image of the premiere--like the version of the song "SPLHCB" that opens the album and the reprise that is the penultimate song.

It is thought-provoking, if nothing else.

Posted by Howard Wasserman on August 20, 2012 at 10:44 AM in Culture, Howard Wasserman | Permalink | Comments (0) | TrackBack

Thursday, July 12, 2012

A lawyer show I'd watch

Breaking Bad's Vince Gilligan ponders a spin-off featuring corrupt attorney Saul Goodman. Perhaps because Saul is so over the top, this could be an awesome show. See why after the jump.

 

Posted by Howard Wasserman on July 12, 2012 at 04:44 PM in Culture, Howard Wasserman | Permalink | Comments (0) | TrackBack

Friday, July 06, 2012

Is the (Printed) Law Review a Flower that Should Bloom?

Over at the Atlantic, Walter Olson reprises the claim that law reviews are worthless. Among his reasons, he notes the ready availability of other outlets for law professors to share their views about matters of significance (and in this vein, he has in mind websites like TNR or the Atlantic or law blogs like Volokh or Balkinization or perhaps ahem...). My initial response: let a thousand flowers bloom. If, in addition to writing for law reviews or university presses, prawfs want to write on blogs and do opeds, they should do so. But if Olson's saying, we should get out of the long form scholarship game, I say a pox on his house. I don't think he's actually saying that, although he suggests it by tired references to Chief Roberts' views about Bulgaria and Kant.

Regardless of whether Olson denies the net value of long form scholarship, I think he is wrong to assume that "talented law profs" seek out short form options to present their ideas because that's the first best place to be.  I can't speak for others, let alone the class of talented law profs, but I suspect at least some of us hardly desire to go online to do short form writing as such. Rather, it's more a matter of resignation about where the eyeballs might be and what civilians' attention levels are. If 50,000 or 1 million people read the articles on my SSRN page, I would probably never care to write an oped about a legal issue, let alone a blog post. Indeed, I suspect the reason we care about the placement ladder is largely an assumption that if it places in a top journal, it will get read more (by the right demographic). But writing to get the argument right requires patience and diligence. Opeds don't reward that. At best, they're a preview or a trailer of the real thing.

And fyi, Walter, writing for the Atlantic and whatnot is not always easier too. Compared to blogposts, opeds or essays for general mags are more annoying because of the comparative lack of control or slowness of publication. For example, the Times accepted an oped I co-wrote more than a month ago, and we're still waiting to hear (even vaguely) when it will run! Most opinion journal editors act like tyrants because they know they can get away with it. (Not you of course ___, ___,  etc!) And compared to law reviews, which are admittedly slower to publication (and this has changed somewhat with the proliferation of online law review addenda/fora/pennumbra etc), opeds or mainstream essays are neither easy to place nor necessarily reasonable about editing. At bottom, I usually enjoy the experience of  writing for law reviews more than writing for popular press.  Not always, but enough to want to stay in the law review publication game. To the extent I write for the mainstream media, it's more because I think I have an obligation to those who fund my scholarship to try to get the ideas out into the mainstream rather than simply hope for citations within the law review or philosophy/political theory literature. Anyway, I might be an outlier, and maybe Olson's narrower point, that we'd be better off with only online scholarship venues, is true. But, fwiw, I am happily the kind of person who still enjoys looking through the pages of HLR, the Mich LR books issue, and most of the other journals in our faculty lounge.

In any event, Olson's essay focuses on a sideshow. The real problem in law scholarship is not where it appears or how long it is, but whether it is lockboxed. To my mind, every piece of legal scholarship produced should be available online either in final draft or penultimate draft. I actually think scholars have an ethical duty to make that happen, at least in the law context. But that's another blog post.

 

Posted by Dan Markel on July 6, 2012 at 11:10 AM in Article Spotlight, Blogging, Culture, Law Review Review, Life of Law Schools | Permalink | Comments (2) | TrackBack

Tuesday, July 03, 2012

Signing Off and Remembering Andy

GriffithMultitasking has its limits -- especially in the midst of a major move. As I prepare to head south to Savannah Law School, I wistfully regret not having more time to post on Prawfs during the month of June as frequently as I would have liked, but, as always, I enjoyed my stay. This time around, I'd like to sign off with a posting dedicated to the late and always wonderful Andy Griffith. His first film, A Face in the Crowd (1957) is featured in Advocacy to Zealousness, but Griffith is best known as a fictitious television sheriff and lawyer. Whenever I watch A Face in the Crowd, I think about Griffith's wonderful range as an actor and artist, and how he was celebrated for only a small portion of what he was capable of conveying on the big and small screens of film and television, respectively. Having experienced Griffith as Lonesome Rhodes makes me see Andy Taylor and Ben Matlock a little differently -- with an increased awareness of the depth beneath the surface of affability, and a realization of Griffith's strategic choice to go further in his career by staying in second gear indefinitly rather than shifting to fourth for a brief several miles. He personified some of the most beloved characters related to law and order in popular cultural history. Much like Lonesome, yet in a vastly more positive and productive way, Griffith read his audience and went with what they wanted, what "worked" for the long haul, and he seemed to be at peace with his decision to embrace his "brand" throughout his career. Do we also do this as law professors, or do we continue to stretch and grow throughout our careers? If you've ever shown a Griffith clip in class, which one(s) did you use?

Posted by Kelly Anders on July 3, 2012 at 04:19 PM in Culture, Current Affairs, Film, Life of Law Schools, Teaching Law, Television | Permalink | Comments (2) | TrackBack

Wednesday, June 27, 2012

Nora Ephron, Distinguished Legal Theorist, RIP

It's with great sadness that I note Nora Ephron's passing. Here's the Times obit. She did so many things surpassingly well that I'm struck by the absence of discussion about her many contributions (perhaps unwittingly) to the realm of legal theory. Tomes could be written on her insights as they apply to law, and not just the human condition.  Here are just a few treasures of hers. Feel free to add your own in the comments. May her memory be a continued blessing to those who loved her.

1) In the end, I always want potatoes. Mashed potatoes. Nothing like mashed potatoes when you’re feeling blue. Nothing like getting into bed with a bowl of hot mashed potatoes already loaded with butter, and methodically adding a thin cold slice of butter to every forkful. The problem with mashed potatoes, though, is that they require almost as much hard work as crisp potatoes, and when you’re feeling blue the last thing you feel like is hard work. Of course, you can always get someone to make the mashed potatoes for you, but let’s face it: the reason you’re blue is that there isn’t anyone to make them for you. As a result, most people do not have nearly enough mashed potatoes in their lives, and when they do, it’s almost always at the wrong time."

2) You're the worst kind; you're high maintenance but you think you're low maintenance.

3) But, really, what's so hard about finding an apartment? What you do is look in the obituary section. You see who died, find out where they lived, and tip the doorman. What they could do to make it easier is combine the two. You know, Mr. Kline died yesterday, leaving behind a wife, two children, and a spacious three bedroom apartment with a wood burning fireplace. 

Posted by Dan Markel on June 27, 2012 at 09:48 AM in Culture, Current Affairs | Permalink | Comments (2) | TrackBack

Sunday, June 24, 2012

Changing the rhetoric on women's sports

The sports world marked yesterday's 40th anniversary of Title IX by showing a lot of women's sports on TV, including Olympic trials in a number of sports (such as diving and track) and a marathon of WNBA games.

I also caught a new Nike ad, titled Voices. It features close-up shots of basketball players Diana Taurasi and Lisa Leslie, boxer Marlen Esperaza, and marathoner Joan Benoit Samuelson (I still remember her winning the first Olympic women's marathon in Los Angeles in 1984, wearing a white painter's cap) talking about the obstacles and challenges they faced growing up and starting to play sports. Notably, each of the four is a different age (ranging from 20s to 55) and grew up at different stages in Title IX's 40-year history. Those head shots are interspersed with shots of young girls in uniform lip-synching their comments. This ad can be seen as the successor to Nike's famous 1995 If You Let Me Play (regarded by many as one of the all-time best ads). Both can be seen after the jump.

In watching them, note the new rhetoric and narrative. The earlier ad tried to convince the viewer that women and girls should be ableto play sports by citing all the instrumental benefits that come with participation in sports (better grades, increased self-confidence, better health, etc.). The new ad says that women and girls do and should play simply because they want to. Oh, and because they're really freaking good. This strikes me as progress.

Voices:

 

 

If You Let Me Play:

 

 

Posted by Howard Wasserman on June 24, 2012 at 10:10 AM in Culture, Current Affairs, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Friday, June 22, 2012

The People's Law School

Original_Volkswagen_Beetle_AdToday in 1934, the Reich Association of the German Automobile Industry commissioned Ferdinand Porsche to design a "people's car" that would be marketed to the masses, and that would serve as a competitive alternative to models that were only accessible to a fortunate few. Porsche's design later became the Volkswagen Beetle. If you had to design a model for a "people's law school," what would it contain, and how would it compare to schools that already exist?

Posted by Kelly Anders on June 22, 2012 at 12:16 PM in Culture, Current Affairs, Life of Law Schools | Permalink | Comments (8) | TrackBack

Sunday, June 17, 2012

Images of Father's Day

As the heavily involved father of a daughter, I am often keenly aware of two things: 1) the never-ending pop culture presentation of the goofy, clueless husband/father who never remembers important dates and is always scrambling at the last minute to get a gift or card, and 2) the ideas (and ideals) of the father-daughter relationship.

After the jump and in honor of Father's Day, I offer the following images:

IMG_2376This photo was taken at around 5 p.m. yesterday at a Target in Miami. The crowd (almost all women) stretches into the aisle, everyone waiting to get at the rack of Father's Day cards.

 

 

4852b0b088b4012f2fe200163e41dd5bThis is today's Doonesbury, which wordlessly captures the father-daughter relationship. It was a bit dusty around the house this morning.

Posted by Howard Wasserman on June 17, 2012 at 12:27 PM in Culture, Howard Wasserman | Permalink | Comments (0) | TrackBack

Thursday, June 14, 2012

Prison Rape and Cost Benefit Analysis

Over at the GULC faculty blog, Lisa Heinzerling has a very sharp post criticizing the Administration for undertaking a 168 page report that performs a cost benefit analysis of prison rape reform efforts. Prof. Heinzerling labels the effort "a labored, distasteful, and gratuitous essay on the economics of rape and sexual abuse."

I haven't had a chance to digest the report yet. Early feedback from some of my FB friends show substantial support for Prof. Heinzerling's point of view. I wonder what the defenders of the report might have to say in its favor, though I suspect some will say that the report is meant to offer its own defense!

Posted by Dan Markel on June 14, 2012 at 05:09 PM in Article Spotlight, Criminal Law, Culture, Current Affairs | Permalink | Comments (1) | TrackBack

Tuesday, June 12, 2012

NFL Bounty Scandal - Pre-Saints?

I feel I’m coming a little late to the party, given that this is my first guest post and we’ve almost hit the middle of June.  I’ll blame it on Law and Society in Hawaii, although Dave didn’t seem to have problems posting while he was there…

 I am hoping this month to post some things on drugs, guns, and general border crime stuff – all the fun stuff in my wheelhouse.  I also have enjoyed looking at some things on Fast and Furious and the Ted Stevens prosecution too, so I might say some stuff there too.   We’ll see how far we get.

 But first, I’ve been doing some research on prominent prosecutions gone wrong (hence the interest in both Fast and Furious and the Ted Stevens prosecution, and we can likely chalk the John Edwards prosecution up there now as well).  One of the “case studies” I’m looking at is from the Archer Daniels Midland price-fixing investigation in the mid-90s (and thankfully, Kurt Eichenwald put everything together in a nice book for me to read: The Informant (published in 2000 and made into a movie staring Matt Damon in 2009, although I can’t find the movie anywhere here in Laramie so I haven’t seen it yet)).  While reading through the book, I noticed something that seems to have a played a prominent role in sports news this past few months, so I wanted to comment slightly on that.

 By way of background:

the ADM investigation involved a number of FBI agents, AUSAs, folks from Main Justice and other officials investigating ADM allegedly engaging in price fixing with other foreign corporations.  The FBI became involved when Mark Whitacre (“the Informant”) started cooperating and recorded numerous conversations with officials from other companies and persons working at his own company.  Whitacre seems to have acted at times as a rogue agent (and also seems to have engaged in embezzlement from ADM while working as a CI (confidential informant)) and ultimately got a pretty high chunk of time in prison.  While my research deals with the problems inherent in having a prosecutor run such an investigation, that isn’t the point of this post. 

 To make a long post short (too late), I noticed some information about the NFL bounty scandal in the book.  On p. 465 of the book, Eichenwald describes a FBI interview of Ron Ferrari, one of Whitacre’s salesmen and someone the FBI thought might be involved in the price-fixing.  Ferrari played linebacker for the 49ers during the Joe Montana years, and the FBI questioned him about $25,000 in a safe-deposit box (thinking it might have come from price-fixing).  Ferrari tells the FBI this is money from “unofficial bonuses” he received while playing football for the 49ers.  He goes on to indicate that sometimes, when there were unpopular players on the other team, the coaches would pay “little bonus payments” for a “particularly vicious hit on one of those unpopular guys.”  This seems exactly what the NFL bounty scandal is all about, but this is an allegation of it happening in the mid-80s, a long time before the Saints “bountygate” came out.

 So, after my exhaustive internet research on this issue (about 2 minutes on Google), as far as I can tell, this information never made it to the NFL.  In 2000, Eichenwald provides evidence about these bounties occurring in the NFL, and yet, no mention is made of that within the Saints “bounty-gate” discussion.  Of course, I’m not surprised that none of this information really made much of a dent back in 2000 because a) it isn’t likely that anyone associated with the NFL read Eichenwald’s book, and b) the bounty-gate stuff seems more of a big deal now given all of the concussion-related news and suits that have arisen in the past year or so.

 Of course, now that I’ve written this post, I’m sure I’ll be getting called by Roger Goodell… 

 Thanks for letting me post, and I look forward to trying to post some interesting things here while I’m here.    

 

Posted by Stewart Young on June 12, 2012 at 02:29 PM in Criminal Law, Culture, Film, Sports | Permalink | Comments (1) | TrackBack

Tuesday, June 05, 2012

"The Wire: The Musical"

Funny.

 

Posted by Howard Wasserman on June 5, 2012 at 06:13 PM in Culture, Howard Wasserman | Permalink | Comments (1) | TrackBack

Monday, May 28, 2012

Sgt. Pepper's Lonely Hearts Mad Men

I just found this, although the discussion has been going on for a couple of weeks. Yi! News is a relatively new group blog featuring a "blend of news coverage and original features in the fields of sports, music, politics, law, social media and whatever else is pertinent to today’s 20-something audience." It's main writers include several law students and a practicing lawyer.

Several weeks ago, a guest author, Emily Viviani, proposed a theory that the current (fifth) season of Mad Men has been thematically, lyrically, and structurally following Sgt. Pepper's Lonely Hearts Club Band. The first installment (covering Side One, for those of us who remember records having "sides") is here; the first three songs of Side Two are here, here, and here. Emily has not updated her discussion to link yesterday's episode, "The Other Woman", to "Good Morning, Good Morning," but I'm looking forward to it. Having just checked the lyrics, I think I see where she may go with it.

It's an interesting theory (confession: I've done the "Wizard of Oz"/"Dark Side of the Moon" thing), particularly given the time frame covered in the season (it started in June 1966, we are now sometime in January 1967, and Sgt. Pepper was released in June 1967). And one episode even revolved hevaily around Don not "getting" or recognizing the Beatles and ended with Don listening (without much enjoyment) to "Revolver," the 1966 album that marked the band's transition and led directly to Sgt. Pepper.

Emily's theory is that the final episode (linked to "A Day in the Life") will land on February 10, 1967, the day the 25th Amendment, a direct response to the Kennedy Assassination, was ratified. If so, it gives new meaning to the line "He blew his mind out in a car".

Could Matt Weiner really be doing this on purpose? If so, it is utterly brilliant.

Posted by Howard Wasserman on May 28, 2012 at 01:19 PM in Culture, Howard Wasserman | Permalink | Comments (0) | TrackBack

Monday, May 21, 2012

Reading Assignments as a Condition of Bail? Really?

Well, as Judge Vaughn Walker says, it might have something to do with the seat.

That's because when Judge Walker's successor, Judge Yvonne Rogers, became a federal district court judge in San Fran, she seems to have inherited his penchant for creative sanctioning. You might recall Walker garnered fame not only for his role in striking down Prop 8's restriction on same-sex marriage, but also for the shaming sanction  he imposed on Shawn Gementera, who had to stand outside a post office with a sign that said "I stole mail.  This is my punishment."  (The Gementera sanction was affirmed by a divided panel on the Ninth Circuit and the opinion is now part of many crim law casebooks. Disclosure: I had a small role in the appellate proceedings.)

Now, Judge Rogers has triggered some curiosity across the country for a recent bail provision imposed on Otis Mobley. Specifically, while Mobley is released in advance of his upcoming trial, he is required, as a condition of bail, to read certain books for an hour a day and to write a report for a half hour a day.

The reading list hasn't yet been circulated, but still, one has to wonder about the suitability of such a condition with respect to bail. It wasn't included in the list of conditions recommended by the magistrate judge--not surprisingly.  Regardless of how one feels about such creativity in the context of punishment,* one has to wonder about its usage when it comes to bail conditions.

After all, bail is pre-trial, and thus pre-adjudication. Moreover, we do have this business associated with the presumption of innocence. SO, while it's one thing to say that the moral weight of such a presumption can be overcome when it comes to substantial and reasonable fears having to do with flight risk or danger to the community (or danger to the judicial process itself in cases of witness tampering), those issues are hard to imagine as related to the conditions associated with reading and writing reports. Rather, it seems as if reading and writing reports are tethered to the blaming and communicative functions of punishment for wrongdoing. To my mind, such conditions should not be imposed because they blur the lines of what we're trying to achieve, as a society, before and after adjudication. To be clear, I'm not saying that Mobley should not be released (although he has some, um, icky issues to work out) and I'm not saying he should be detained pre-trial. But the judge's order is curious because it is likely to be conceptually confused about the nature of pre-trial release and detention. It would be nice if we could find out, soon, what the judge is assigning, and why.

*Putting aside some rule of law reservations that nag at me about "creative" sanctions and punishment generally, I'm largely in favor of guilting punishments (which are designed to facilitate moral education without the public degradation associated with shaming punishments). As a general matter, it's fair to say that assigned reading and writing can facilitate those valuable guilting goals, perhaps even quite well. (Still, I'm not sure I'd go so far as ordering a defendant to write a book, as this WSJ story details about a defendant in a pharma-related crime.).  By contrast, I have a strong aversion to shaming punishments, which I think are largely illiberal and anti-retributive in spirit, as laid out here, among other places. For those interested in alternative sanctions more generally, I've linked to a few here (under media appearances) for some news stories over the years about the phenomenon.

 

Posted by Dan Markel on May 21, 2012 at 03:57 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Culture, Current Affairs, Dan Markel | Permalink | Comments (2) | TrackBack

Sunday, May 20, 2012

On the Alleged Cultural Insensitivity of the Fojol Bros.

The Fojol Bros. is one of the most popular food trucks in Washington, DC and is partly responsible for the popularity of food trucks in the nation's capital more generally.  It is also at the heart of a recent and growing controversy about race and culture.  The Fojol Bros. -- a self-described "traveling culinary carnival" that offers Indian, Ethiopian, and Thai food -- has come under fire for the manner in which they sell their food.  In particular, the food truck purveyors, who are all said to be white, wear turbans and fake novelty mustaches, and play Indian music  in the background (see this Travel Channel spotlight of the food truck).

This led DC local Drew Franklin to issue an "Open Letter to the 'Fojol' Bro-dawgs" on Facebook, in which he charged that those behind the food truck are "brazenly insulting of others' cultures," "over-the-top racist," "worthy ambassadors of poor taste," "faux-mustachioed goons," and "well-meaning (if woefully misguided) white boys with a contemptible sense of humor."  Franklin determines that the Fojol Bros. approach is "not cool," "decidedly uncool," "unacceptable," and "an embarrassment to my city."  An online petition subsequently emerged, declaring that the purveyors' presentation amounts to a "stereotype and mockery," and imploring visitors to make clear that they "are not OK with their Orientalist and racist appropriation of South Asian and East African cultures." As of today, the petition has been signed by over 1,000 people -- a not insignificant number.  A writer with the Washington City Paper -- which I read regularly when I lived in DC -- agrees with the critics, calling the ethnic aesthetic of the Fojol Bros. "unsettling and offensive and lazy all at once."

As a Sikh of Indian descent whose members of my immediate and extended family wear turbans and have beards, as someone whose civil rights work and entry into academia was triggered by post-9/11 discrimination against Muslims, Sikhs and South Asians, and as someone who has written about the post-9/11 experiences of Sikhs in book, journal, and essay formats, I believe I am within the zone of those who are implicated by and can speak to the Fojol Bros. tactics.   My preliminary verdict: as with Johnny Carson's Carnac and ESPN's Tony Kornheiser (who both predated the "hipster" fad), I find the Fojol Bros.' schtick tacky, but not offensive or racist.  

First, there is the argument, as a Columbia sociology professor told The Washington Post, that the Fojol Bros. "'harken[s] back to a colonial period when it was okay to exoticize' other cultures."  Put more directly, angry asian man, a popular blog that provides sharp commentary on racial issues involving Asian-Americans, opines that the Fojol Bros. are "totally colorblind -- and I mean that in the worst way -- of the privilege that makes [them] think this is okay."  It seems to me that intent is a relevant, if not important, consideration in weighing the propriety of this food truck's schtick.  Whereas colonialists and some whites may have appropriated certain cultural elements in the course of subjugating other people, or based such appropriation on feelings of entitlement or superiority, I do not see any evidence that this is taking place here.  Justin Vitarello, one of the food truck's owners, for example, says of turbans: "They're beautiful. They're comfortable. They're colorful."  The Fojol Bros. appear to be engaged in an attempt to be whimsical and light, rather than one to belittle or marginalize. 

For the same reason, the highly-charged criticism that the Fojol Bros. is participating in a "minstrel act" fails to persuade.  Minstrel shows generally portrayed African-Americans in a negative light as slow, lazy, dumb, and incompetent, etc.  As far as I can tell, there are no such characterizations by the Fojol Bros. -- there is no "brown-face," "[t]here's no accents" as Vitarello notes, and there are no negative behavioral or mental traits that are stereotyped or caricatured.  (These qualities make the food truck distinct from Ashton Kutcher's "brown-face" depiction of "Raj," a generic Bollywood producer).  It seems, rather, that the Fojol Bros. act and speak as they normally do, though they happen to wear turbans and fake mustaches, while listening to Indian music. 

To be sure, in some instances the wearing of some cultural or ethnic elements may, by itself, give rise to reasonable charges of racism -- even if the wearer does not intend any harm, even if there is no accent, and even if there is no skin alteration or manipulation of facial features.  That does not mean, though, that any wearing of certain items automatically supports a charge of racism.  In other words, even eschewing an inquiry into the purveyors' subjective intent, it has not been clearly demonstrated that the wearing of the colorful turbans and fake mustaches is objectively racist or improper.

As far as turbans are concerned, I acknowledge that turbans, for some, are sacred pieces of attire that are effectively extensions of one's self.  But turbans are not categorically sacred or significant.  The religious do not have a monopoly on the use of turbans or their meaning.  In fact, turbans are worn by different people (e.g., the religious and non-religious, Sikhs, Muslims, Afghans, Indians, Iranians, Persians, and North Africans) for different reasons (e.g., "to signify their class, caste, profession or religious affiliation," or "to demonstrate their wealth and power").  Indeed, I have attended a number of weddings where white men, who are usually part of the groom's party, wear turbans of the same exact sort worn by the Fojol Bros.  Not once did I hear or witness an objection to these individuals' wearing of a turban as part of the wedding events.  These individuals, it seems to me, wore the turbans to be festive, and the Fojol Bros. appear to be doing so as well.  The only difference, then, is that the individuals at weddings effectively had "our" permission and approval, whereas the Fojol Bros. don't.  That difference does not, in my view, justify the view that one is offensive and racist, while the other not.  (It is true that the Fojol Bros. are engaged in a commercial enterprise rather than a wedding -- but the underlying festive motivation may be comparable if not identical.  Others, such as artists Andre 3000 and Snoop Dogg, have worn turbans as part of their commercial persona, the latter of which was largely celebrated by Indians and Sikhs.  The commercial nature of wearing turbans, therefore, does not transform the wearing into something "wrong.")

Thus, it is difficult to contend that the Fojol Bros. are extending colonialist attitudes or ambitions, or are taking advantage of some dominant or exceptionalist mindset that enables them to poke fun at the other with impunity.  Moreover, their schtick seems to be qualitatively different than minstrel shows.  Nor does the wearing of turbans, on its own, objectively signify disrespect.

Let me be so bold as to suggest that Fojol Bros. may be doing a favor to targeted communities.  After 9/11, turbans became equated with terrorism, due to the fact that Osama bin Laden and his cronies wore turbans and their images were broadcast regularly on television.  Some Sikh civil rights activists and I used to remark that we have been unable to offer the American public an alternative to the turban-means-terrorism reflex.  Perhaps the Fojol Bros. can help diminish the turban's terrorist connotation, if not normalize the turban, such that people will see it as something other than a marker or cue for hatred, anger, and violence. 

At bottom, it seems to me that the fuss over the Fojol Bros. amounts to purely subjective instincts or judgments as to what is "offensive," "wrong," or "not cool."  As the Supreme Court has said, “[c]onduct that annoys some people does not annoy others.” Coates v. Cincinnati, 402 U.S. 611, 614 (1971), and relatedly “what is contemptuous to one man may be a work of art to another,” Smith v. Goguen, 415 U.S. 566, 573 (1974).  Such subjective viewpoints hardly constitute a sound reason to compel the Fojol Bros. to change their ways.

A final note: while I conferred with multiple turbaned Sikhs in writing this post, I do not claim to speak for other Sikhs, Indians, or South Asians on the subject.  Of course, individuals within and outside of these groups are free to weigh in on the controversy as they see fit.  And whether the Fojol Bros. schtick is a wise business move is beyond the scope of this post.  This is to only note that, for my purposes, I do not find the schtick offensive or racist.  I honestly commend the critics for expressing themselves in word and in action by refusing to do business with this food truck.  The Fojol Bros. may very well go on without the turbans and mustaches -- but I suspect it will be due to the prospect of lost profits, not the force of any critics' advanced principles.

Posted by Dawinder "Dave" S. Sidhu on May 20, 2012 at 03:56 PM in Culture, Food and Drink, Religion | Permalink | Comments (0) | TrackBack

Thursday, May 10, 2012

Not the end of football

Back in February, I wrote about an essay on Grantland by Tyler Cowen and Kevin Grier describing how footbal could end as a major sport as a result of head-injury lawsuits. Today in Slate, Will Oremus challenges that conclusion, arguing that the difficulty of proving liability in these cases given an assumption-of-risk defense and state-law sovereign immunity, makes it unlikely that we will see the numbers of big-money judgments that would cause high schools and colleges to want to get out of the football business.

Interestingly, Oremus rejects the idea that change can happen through lawsuits against individuals or even educational institutions. In his view, any change should

come not from the courts but from high-school athletic conferences, scholastic sports associations, and the NCAA. As the research rolls in, they need to take a hard look at the aspects of the game that inflict the most damage and implement rule changes accordingly. If football ends someday, it should only be because the powers that oversee the sport have tried everything to make it safe and determined that it can’t be done—not because lawsuits have spooked schools into giving up.

This is a sharp reflection of the modern understanding of tort law, the courts, and the administrative state. The regulating institutions should take care of the problems--even if those institutions have vested interests in protecting what they are supposed to be regulating. And courts do not achieve justice or truth at the systemic level--they only play on people's fear to surrender and pay out windfalls to a few individuals.

Posted by Howard Wasserman on May 10, 2012 at 02:13 PM in Culture, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Who Should Enjoy Credit for SSM Progress? My vote: Andrew Sullivan.

Success has many fathers, the old saying goes. With Obama finally coming out of the closet and embracing SSM openly, we might take a moment to pause and wonder: who warrants credit for this development?

Joe Biden the other day extended kudos to the TV show, Will and Grace. That might be right as a matter of mass culture. And no doubt Mitt Romney himself will eventually take credit for it, notwithstanding his current squeamishness. (Make sure to watch the Jon Stewart clip.)

But among the chattering classes of columnists, lawyers, and academics, many of whom were advocating SSM prior to Will and Grace, which only appeared 1998-2006, I think substantial (though certainly not exclusive) credit should go to Andrew Sullivan, and derivatively, through his support for Sullivan's editorship of TNR, Marty Peretz.  (For long-time readers, you may recall this is a point I made in a comment years ago with respect to an interesting exchange spurred by Ethan on whether TNR is "liberal.") 

Sullivan had edited TNR from 1991-1996. Whatever the merits of his editorship generally, and there were some wacky things that occured under his watch, he did an awful lot to persuade and then mobilize elite opinion and thought-leaders into support for same-sex marriage. He has remained a provocative and thoughtful writer on a range of political and cultural issues, but my sense is that his early years as a writer and editor for TNR will mark his most lasting contribution. Of course, this is just my speculation and no doubt it is related to when I became "aware" of the injustices to the LGBT community -- I was in college during Sullivan's editorship. So perhaps I should ask SSM supporters reading this blog who are roughly  five to 15 years older than I am (I'm turning 40 this year): when did you become an SSM supporter and who or what intellectual influences do you attribute it to?

Posted by Dan Markel on May 10, 2012 at 10:13 AM in Culture, Current Affairs | Permalink | Comments (0) | TrackBack

Friday, May 04, 2012

Brief Thoughts on Photoshop Diversity and Elizabeth Warren

Many thanks to Dan and the rest of the Prawfs regulars for having me as a guest this month. I'll be posting mostly about issues relating to my recent research on antidiscrimination, affirmative action, and diversity.

On that note, I have followed the recent discussion of Elizabeth Warren's racial self-identification with great interest. That discussion seems to me a symptom of an uneasiness with affirmative action and the diversity rationale that goes far deeper than the question of whether Professor Warren's self-identification was "accurate," or whether she was "seeking an advantage."

In my article Racial Capitalism, forthcoming in the Harvard Law Review, I argue that the diversity rationale for affirmative action assigns a value to non-white racial identity.  As a result of this value, the diversity rationale also creates incentives for predominantly white institutions to display and promote the presence of non-whiteness within the institution.

Schools' promotional materials provide one window into this phenomenon. At the extreme, schools have been known to photoshop people of color into photographs to communicate the impression of diversity and racial integration. In 2000, the University of Wisconsin notoriously photoshopped a black student into its admissions brochure (the original and photoshopped brochure can be seen here). Other schools have engaged in similar photoshopping, and the practice certainly isn't limited to schools (for a few examples, see here and here).

But even when promotional materials don't involve photoshopping, colleges and universities still engage in measures to advertise their racial diversity. A recent study examined the promotional materials of 371 colleges and universities and found that non-white students were significantly overrepresented in photographs -- for example, Asians made up 3.3% of enrolled students but 5.5% of students depicted, and blacks made up 7.9% of enrolled students but 12.4% of students depicted. Indeed, the trope of schools visually proclaiming their diversity  has become so common as to provide fodder for satire.

The drive to display diversity is not limited to the visual. Virtually every college, university, and graduate school website includes a prominent link to statistics touting the diversity of the school's student body.  And U.S. News currently maintains a ranking system -- apart from its influential but opaque system of overall rankings -- based on a "diversity index." Schools who score high on that metric often publicize their status.

So where does this leave us with respect to Professor Warren? Perhaps with the idea that Warren's racial self-identification is one issue, and Harvard's decision to claim her as a person of a particular racial identity is another. Sociological research suggests that it's relatively common for people of racially mixed backgrounds to identify themselves differently at different times and for different reasons, and Warren's explanation that she identified herself as Native American in law school directories because she wished to meet others who shared her background and experiences seems, at the very least, plausible.

An institution often has different incentives.  Given the value placed on diversity, an institution often has every incentive to maximize its apparent diversity.  This might happen with or without the knowledge of its members -- that is, Harvard might have chosen to tout Elizabeth Warren's Native American identity with or without her knowledge or consent.  Of course, I don't know exactly what happened in this particular situation, and it may be that no one really remembers at this point.  From personal experience, though, I know that institutions do claim individuals to boost their diversity numbers.  For instance, a large law firm where I worked for a summer decided to identify me as "Asian" in statistics proclaiming the diversity of its summer class, even though I'd elected not to self-identify in a demographic questionnaire it circulated.

My ultimate point is simply that it's analytically useful to separate institutional use of racial identity from individual self-identification.  Sometimes the two have little in common -- ask any person of color who's been involuntarily photoshopped into a picture.

I look forward to delving more deeply into these topics in coming weeks.

Posted by Nancy Leong on May 4, 2012 at 09:45 AM in Constitutional thoughts, Culture, Law and Politics | Permalink | Comments (0) | TrackBack

Wednesday, May 02, 2012

The politics of apolitical TV

We've been watching and enjoying the new HBO comedy Veep, which follows the exploits of a marginalized, marginally competent woman VP. The show draws a lot of humor from the way the titular Veep flails away, constantly asking her secretary whether the President has called (he never has), and working (not very well) on two token, dead-end policy items the President has given to her--"clean" jobs (and the issue is whether to put someone from the oil industry on the VP's clean-jobs commission) and filibuster reform.

The show (and commenters on the show) have made much of the show's supposedly apolitical approach. The President never is seen, no one mentions which party is in power, and the policy goals discussed are supposed to be non-partisan. This is at least supposed to be a far cry from The West Wing, which featured what I once called a "Democratic president that real Democrats only dream about-imagine a President with Bill Clinton's political skills, Michael Dukakis' policy goals, Jimmy Carter's commitment to monogamy, and Daniel Patrick Moynihan's intellect."

So does the show succeed at being apolitical?

Some Republicans initially complained that the show was another example of Democrats making fun of Sarah Palin, although that is only true if all depictions of an in-over-her-head female politician now are parodies of Sarah Palin. That we now associate this sort of character with Palin just shows the difficulty of political parody--truth has surpassed satire (part of why I actually find it hard to watch The Daily Show at times).

But filibuster reform is not an apolitical issue, at least in the current environment. It is something strongly wished for by many liberals and progressives, particularly among academics and political commentators, who view the Senate as a defective, unrepresentative, anti-democratic institution made worse by the costless, silent, and routine filibuster that is functionally an all-purpose super-majority requirement. Now that might be a product of momentary political majorities and President Romney and a 52-seat Republican Senate would be pushing the elimination of the filibuster as a matter of patriotic duty (actually, this may be a virtual 2013 certainty if events unfold that way). But the notion that the Senate needs reforming, given its unrepresentative nature, is a decidedly lefty view right now.

The last point is to consider what it says that filibuster reform is one of the symbolic-but-pointless issues that a President would dump on a marginalized VP. It makes sense in one way, in that it has no chance of going anywhere, so it is precisely the no-chance symbolism you pawn off. On the other hand, knowing the reality of routine filibusters and what they have wrought shows this as a genuine problem with an actually attainable solution; one would hope a President would get behind this as a real issue in the interest of his political agenda. But from a show's standpoint, it is the type of procedural/technical concern about which the public does not care--and thus neither would the President.

Posted by Howard Wasserman on May 2, 2012 at 09:57 AM in Culture, Howard Wasserman, Law and Politics, Television | Permalink | Comments (1) | TrackBack

Saturday, April 28, 2012

Community does L&O

I am a big fan of the show Community, which last week did a spot-on parody of Law & Order. Two highlights:

First, a legal note. The producers had to figure out how much of what they were doing constituted fair use and what they had to pay royalties for. Probably to avoid a fight, they paid to use the "chung-chung." Was that necessary?

Second, I wanted to flag a part of the courtroom scene. Annie, playing the attractive young brunette ADA, is cross-examining the "defendant" and nails the L&O meme in which the attorney, in the guise of asking a question, launches into an inappropriate (usually sanctionable, grounds-for-a-mistrial) speech, then says "withdrawn" when there is an objection, as if that makes it OK. Here, Annie didn't even bother waiting for an objection:

Is that why you hit your wife? Withdrawn! Is that why you smoke pot and pop pills? Withdrawn! Are you a virgin? Withdrawn!

Funny stuff.

Posted by Howard Wasserman on April 28, 2012 at 07:36 AM in Culture, Howard Wasserman | Permalink | Comments (2) | TrackBack

Tuesday, April 03, 2012

Freakonomics and cheering speech

Interesting Freakonomics Podcast (beginning at 28:00) from a few weeks ago, discussing booing at sporting events, art, and politics. It had some interesting tidbits that I can use when I return to writing on the subject.

One is that the Colonies brought over from England the concept of "audience sovereignty," which vested in the audience the right to boo and jeer political speakers--precisely what Alexander Meiklejohn eliminated from his theory of the freedom of speech. The second is the story of Johnnie LeMaster, a light-hitting shortstop for the San Francisco Giants. In 1979, LeMaster made some comments opposed to gay rights, causing fans to boo him continuouslys. After several weeks LeMaster had a jersey made up with "Boo" on the back and wore it for a game, which immediately won fans over. And third is an interview with former Pennsylvania Governor and Philadelphia Mayor Ed Rendell, who talked about booing, especially when politics intervenes in sports.

Posted by Howard Wasserman on April 3, 2012 at 03:12 PM in Culture, First Amendment, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Tuesday, March 27, 2012

Upcoming Conference on Race and Criminal Justice at NYU

Folks,

I'm passing on some information of an exciting conference I wish I could attend, hosted by my friends at the NYU Center on the Administration of Criminal Law. 

--

You are cordially invited to "New Frontiers in Race and Criminal Justice," the Center's fourth annual major conference.It will be held on Tuesday, April 17, 2012, in Greenberg Lounge, Vanderbilt Hall, New York University School of Law, 40 Washington Square South, New York, NY.  We are pleased to announce that our keynote speaker will be Michelle Alexander, author, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, and Associate Professor of Law, The Ohio State University, Moritz College of Law.  5.5 NY CLE credits will be offered in Areas of Professional Practice.

Please RSVP via this link or the Center website (www.prosecutioncenter.org). Please feel free to forward this invitation to friends and colleagues. (You may also RSVP by cutting and pasting http://its.law.nyu.edu/rsvp/annual/ into your browser.)

Panel subjects will include: What should prosecutors do to address racial bias and the disproportionate impact of criminal justice policies on communities of color? How can law enforcement and police officers mitigate implicit racial bias? What can and should be done about mass incarceration, sentencing, and collateral consequences of conviction? The scholars and practitioners who will participate are:

  • Anthony S. Barkow, Partner, Jenner & Block LLP; Former Executive Director, Center on the Administration of Criminal Law
  • Rachel E. Barkow, Segal Family Professor of Regulatory Law and Policy and Faculty Director, Center on the Administration of Criminal Law
  • The Honorable James E. Boasberg, United States District Judge, District of Columbia
  • Bennett Capers, Professor of Law, Maurice A. Deane School of Law at Hofstra University
  • Lisa Daugaard, Deputy Director and supervisor, Racial Disparity Project, Defender Association of Seattle, Washington
  • Angela J. Davis, Professor of Law, American University Washington College of Law  
  • James Forman, Jr., Clinical Professor of Law, Yale Law School
  • Vanita Gupta ('01), Deputy Legal Director, American Civil Liberties Union
  • Ketanji Brown Jackson, Vice Chair, United States Sentencing Commission
  • Ronald Machen, United States Attorney, District of Columbia
  • Glenn E. Martin, Vice President of Development and Public Affairs, The Fortune Society
  • L. Song Richardson, Associate Professor of Law, American University Washington College of Law
  • Kami Chavis Simmons, Associate Professor of Law, Wake Forest University School
  • David A. Sklansky, Yosef Osheawich Professor of Law, U.C. Berkeley School of Law
  • J. Scott Thompson, Chief of Police, Camden, New Jersey
  • Tom R. Tyler, Professor of Psychology, Yale Law School
  • Whitney Tymas, Director, Prosecution and Racial Justice, Vera Institute of Justice

The conference will begin at 11:00 a.m. and end at approximately 5:45 p.m. Lunch will be served and the event will be followed by a reception.

Center on the Administration of Criminal Law  http://www.prosecutioncenter.org

 

Posted by Dan Markel on March 27, 2012 at 12:23 PM in Criminal Law, Culture, Current Affairs | Permalink | Comments (1) | TrackBack

Monday, March 12, 2012

Social Media and the Kony 2012 Campaign

By now, you all (likely) will have come across the Kony 2012 campaign. Sponsored by a US-based charity group, Invisible Children, this campaign aims to raise public awareness about the Lord’s Resistance Army (LRA) and its leader, Joseph Kony, through a 30 minute video that has gone viral – receiving upwards of 60 million hits (and growing fast). This documentary video has caught the attention of a star-studded cast, including Justin Bieber, George Clooney, and Lady Gaga. Kony remains at large, despite having been indicted by the International Criminal Court (ICC) in 2005 and notwithstanding the weakening of the LRA. (A rebel group, the LRA has inflicted mass atrocities in Northern Uganda, but for several years now has fled the country). Kony is charged with an array of war crimes and crimes against humanity. The Kony 2012 campaign encourages his capture and supports the intervention of Ugandan
government armed forces (assisted by American special-ops). Ever mobile, Kony is no longer in Uganda, but likely in the Central African Republic. The brutal entanglement of children in the LRA, as combatants, sex slaves, and domestic helpers, has been central to the reach of the Kony 2012 campaign and its attendant calls for support.

This campaign demonstrates the power of social media to mobilize and raise awareness. But this campaign also demonstrates the ability of social media to essentialize, sensationalize, and reductively simplify. For starters, in addition to the horrors inflicted by the LRA, the government of Uganda has also been responsible for human rights abuses in the country, including massive displacement of the local population, and also outside the country. Second, in calling for armed action, the video exhorts the very militarization that, in turn, has plagued Northern Uganda and Southern Sudan for decades already. The process of peace and justice in Northern Uganda is painstakingly complex – at the national level amnesties have played a key role – and criminal prosecutions are far from a self-evident solution, especially at the ICC. The problem of child soldiering is much more complex than the video portrays. The saving grace of international humanitarianism can only go so far – the vast majority of LRA child soldiers, after all, exited the LRA not by humanitarian rescue but, instead, by escaping or abandoning the group. Reintegration, moreover, needs to occur locally. Criminal prosecutions of a handful of recruiters are not a cure-all. To be sure, the LRA has relied on brutal abduction of children. World-wide, however, and including elsewhere in Africa, a majority of child soldiers demonstrate some initiative in coming forward and enlisting in fighting forces. Child soldiering is a global phenomenon, not just an African phenomenon – the majority of child soldiers in fact are not on the African continent. Nor are the majority of child soldiers young children – most are adolescents, often older adolescents; approximately 40% are girls; some child soldiers are implicated in grievous acts of atrocity, at times against other children.

The best way to prevent child soldiering is to understand it as a composite of practices, not as a singular practice to be generalized from the LRA. A better way to reintegrate former child soldiers, and attend to restorative needs, is to humanize former child soldiers, not present them passively as devastated mindless victims or deranged cold-blooded automatons programmed to kill. Oxford University Press recently published my book, Reimagining Child Soldiers in International Law and Policy, which I wrote to advance a nuanced conversation so as to meaningfully improve preventative and rehabilitative efforts (youtube summary here). But nuanced conversations tend to lack catchy sound-bites. Does Invisible Children, then, have it right – put a simple image forward, boldly through #StopKony, and then follow up, as it does, with some texture in responsive, albeit at times defensive, posts
that parry criticism, concern, and commentary?

Posted by Mark Drumbl on March 12, 2012 at 04:38 PM in Criminal Law, Culture, Current Affairs, International Law, Law and Politics, Television | Permalink | Comments (0) | TrackBack

Tuesday, March 06, 2012

Pinterest, Jigidi, and factor four of the fair use defense

One of the best things about being a law professor is that your students leave your classroom and, if you’ve done your job right, see things in and about the world that they may not have before.  Recently, two of my copyright students wrote to call my attention to two sites that raise the same interesting emergent online copyright issue. 

Pinterest describes itself as an “online pinboard” that allows users to “organize and share things you love.”  Pinterest users each have a space on the site (their “pinboard”) that allows them to re-post images they like from around the internet, and organize them into categories (e.g., food, pets, etc.).  Jigidi enables users to post images in the form of online jigsaw puzzles that users can solve.  (N.B. I solved one and found it fun as hell.)  Of course, many other sites like Facebook enable possibly infringing reposting of images, but the difference with Pinterest/Jigidi, I think, is that they function exclusively to enable reposting of photos, so the infringement concern is central to their site’s main purpose.

Both sites are careful to admonish users to respect the copyrights of the photos they post.  And even if users post infringing content, both sites might be able to avoid secondary liability by taking advantage of the DMCA’s sec 512 safe harbor provisions.  Regardless, though, users who post copyright protected photos to either site without authorization would be liable for infringement, unless of course they could take advantage of copyright’s infamously slippery fair use defense

There is already some writing around the blogosphere about possible fair use arguments with respect to these sites.  In connection with Pinterest, at least, here is a very thoughtful and detailed post from a lawyer and Pinterest user named kirsten, who chose to take down her page on the site due to copyright concerns.  Rather than recapitulating the entire fair use argument, I want to focus on how one particular element of the fair use defense—factor four—has played out in this dialogue. 

This factor requires that courts considering fair use assess “the effect of the use upon the potential market for or value of the copyrighted work.”  Thinking about Pinterest and Jigidi in light of factor four raises interesting  issues not only about its application to those sites, but also about the meaning and function of that element of the fair use defense, in the digital world and beyond.  I explore this issue below the fold.

First, factor four disfavors uses that harm the “potential market for or value of the copyrighted work.”  One suggestion about this factor in connection with Pinterest (that might also apply to Jigidi) is that because the photos appear as full-size reproductions (rather than, say, mere thumbnails), they’re market substitutes.  The flaw in this argument is that not all substitutes are market substitutes.  If a user pins a photo to her pinboard that doesn’t harm the market for the original unless somehow it leads to lost revenue for the owner.  In other words, merely causing someone to experience the photo outside the owner’s sphere of control doesn’t per se harm the owner’s market for that photo.

A plausible answer to this point is that re-postings like Pinterest enable photos to be pirated, eviscerating sales of the original.  True that this is a concern, but you gotta prove it.  Mere conjecture about theoretical market harm doesn’t do the trick under factor four.  The Second Circuit held as much in Texaco, when they emphasized that only harm to “traditional, reasonable, or likely to develop markets” counts.  Conjecture doesn’t.  This also answers a possible objection one might make in the Jigidi context.  Perhaps, one might say, Jigidi users have undermined the jigsaw puzzle market for owners of the rights in some of the featured photos.  This is possible, but depends on whether there actually is such a market (or whether one is reasonably likely to emerge).  The sort of theoretical market that economists are so good at imagining doesn’t do the trick.

This limit exists for a good reason:  If any conceivable or imaginable market harm caused factor four to weigh in favor of fair use, then users could never win on that factor.  Owners can always make the point that a fair user could have just sought a license, and that their failure to pay that license is a lost royalty that establishes market harm. And while that claim is always theoretically true, it often isn’t practically plausible.  If users had to negotiate a little royalty with each owner before posting their work on Pinterest or Jigidi, the transaction costs of the hassle would swamp the marginal benefit of re-posting the image at all.  And while it would be great to have an efficient online licensing clearinghouse enabling users to clear and pay cheaply for rights whenever they re-posted an image (sort of like the App Store), we don’t have that yet.

A second issue with both Pinterest and Jigidi is that one might imagine that factor four helps, rather than hurts, the case for fair use because by re-posting images on either site, users have created publicity for an owner’s work and provided a marginal lift (rather than a hit) to the owner’s economic well-being.  However plausible this claim, most courts have been skeptical of it.  Their take has been that owners, not users, should have the final say in determining what the highest and best use of a work should be.  Blogger kirsten makes a similar point in explaining her decision to take down her Pinterest page: 

“what finally sealed the deal for me  as I tried desperately to talk myself out of deleting my gorgeous inspiration boards, was when I thought of some of the photographers whose work I had pinned from other websites.  Would they want me posting their images?  My initial response is probably the same as most of yours:  “why not?  I’m giving them credit and it’s only creating more exposure for them and I LOVE when people pin my stuff!”  But then I realized, I was unilaterally making the decision FOR that other photographer.  And I thought back to the thread on Facebook where the photographers were complaining about clients posting photos without their consent and I realized this rationale is no different than what those clients argue:  “why can’t I post them – it’s just more exposure for you.”  Bottom line is that it is not my decision to make.  Not legally and not ethically.”

I think kirsten made a thoughtful decision, and likely a rational one given the heavy liability associated with copyright infringement.  (Even a single act can lead to penalties of up to $150k, regardless of the economic harm you cause the owner.)  But two things about this rationale concern me.

First, the statute nowhere delegates exclusively to owners the decision to determine the highest and best use of a work.  It merely says that if a use harms “the potential market for or value of the copyrighted work,” it is less likely to be fair.  This is an objective test about the actual effect of a use on the value of a work.  It should make no difference what the subjective opinion of the owner is.  To hold otherwise, as so many courts have, is to confuse copyright (a suite of six and only six exclusive rights) with control.  Owners may not like that copyright does not extend them complete control over their works, but as a matter of law, it plainly does not.

Second, if pinning on Pinterest or making puzzles on Jigidi is fair use, then it is something users are free, indeed entitled, to do.  There is a very plausible argument that users enjoy such an entitlement in this case.  And given that, it seems concerning that users of these sites would stop making uses to which they may be fully entitled due to the fear engendered by the threat of infringement.  This isn’t to fault their decision—on the contrary, it’s likely a rational one.  This is to fault copyright law for making it possible for owners to threaten innocuous uses like the ones on Pinterest and Jigidi with massive infringement judgments.  This is a systematic problem rather than one local to the Pinterest/Jigidi issue, as Jim Gibson and many other writers have plausibly warned.  Since owners will almost always have more resources than individual users, the threat of massive infringement liability affects the entire digital world, encroaching on space that Congress carved out in the interest of users to maintain a healthy public/private balance in our copyright law.

Posted by Dave_Fagundes on March 6, 2012 at 12:11 PM in Culture, Current Affairs, Intellectual Property | Permalink | Comments (2) | TrackBack

Friday, February 17, 2012

RIP, Gary Carter

Gary Carter passed away the other day. He was 57; the cause was brain cancer. Gary was no law prawf. He was a baseball player: the catcher for the Montreal Expos and then the Mets. He was inducted into the Hall of Fame as an Expo. I grew up in Montreal and in the 70's and 80's and just loved that team. He was "the Kid" while I was a kid. Hanging out in the bleachers of the Olympic Stadium eating cheap hot dogs on a sunny day was a big joy. The Expos never did too well, with only one real chance at the NL title in a strike-torn season. But they had heart and humility; they were a group of people, not performers; and the game was simple, not starry. Gary Carter was a cheerful and earnest guy, full of spirit and private faith. The Expos have long left Montreal. And now one of their pillar players, too, has left. The Montreal press is in mourning. Of course Gary is remembered most for keeping the Mets alive while in the jaws of death in the 1986 World Series. But to me, and many others, he is remembered for playing for fun. Time to pull out that vintage Expos cap. RIP.

Posted by Mark Drumbl on February 17, 2012 at 09:03 AM in Culture, Sports | Permalink | Comments (0) | TrackBack

Tuesday, February 07, 2012

The Savvy of Perry

I had the chance to skim quickly the Perry decision earlier today. I skipped the boring stuff, yes. And, not having followed the litigation carefully, I was surprised to discover the argument that swayed Reinhardt and Hawkins. Indeed, I don't remember anyone saying: it's not the right to gay marriage that the 9th has to decide, but rather the wrong of withdrawing the right to gay marriage. Thus Roemer controls.

Genius. Kennedy will affirm this "narrower" holding, thereby creating more time for older homophobes (who make up only part of the constituency that opposes gay marriage) to die off and thus allow the trend of gay marriage rights at the state level to percolate and evolve. Satisfies libertarians somewhat and federalists somewhat more for letting states decide these contested issues.

So, who deserves credit for this strategy? From the Perry decision in the Ninth, it seems like the argument was introduced on appeal by the city attorneys of San Francisco, but I wasn't sure. Anyone know if this argument was ventilated beforehand or in the amicus briefs? In any event, it's the kind of foxiness good lawyers should be recognized for, even if it's likely to stick in the craw of uber-lawyers Olson and Boies. They, after all, tried to address the larger issue at trial and Judge Walker's "adjudicative" facts determinations will be somewhat for naught. The Ninth Circuit's ruling, for now, is a Roe-avoidance mechanism.

Posted by Dan Markel on February 7, 2012 at 11:09 PM in Constitutional thoughts, Culture | Permalink | Comments (19) | TrackBack

Monday, February 06, 2012

Is Sheryl Sandberg a Model for (Female) Prawfs?

I have a bit of a friend-crush on Sheryl Sandberg. No, I don't know her. But her sister was my classmate, and through FB, I get to keep track of some of her accomplishments. So from afar, I admire much of what she's done and come to represent. That said, as much as I love her advice to women (and men) about the need for audacity in professional and personal life, I also harbored some concern that audacity comes more cheaply to folks who aren't struggling financially. There was a fun piece about Sheryl's soon-to-come riches in the Times yesterday, and one of the quotations archly noted the same point:

“I’m a huge fan of her accomplishments and think she’s a huge role model in some ways, but I think she’s overly critical of women because she’s almost implying that they don’t have the juice, the chutzpah, to go for it,” said Sylvia Ann Hewlett, president of the Center for Talent Innovation, a research organization on work-life policy, and director of the Gender and Policy Program at Columbia University.

“I think she’s had a golden path herself, and perhaps does not more readily understand that the real struggles are not having children or ambition,” Ms. Hewlett continued. “Women are, in fact, fierce in their ambition, but they find that they’re actually derailed by other things, like they don’t have a sponsor in their life that helps them go for it.”

With much affection, I can think of a few friends in the academy who have internalized Sheryl's powerful message. But if Ms. Hewlett is right, as I think she is, then the message of toujours l'audace is one that must be shared by male mentors as well as female ones. I realize it's controversial to even acknowledge this, but I think male mentorship/sponsorship of women (the sort that happened when Summers took Sandberg under his wing) has been jeopardized by concerns that the menfolk want to avoid the creation of whispering campaigns of inappropriate behavior. There certainly was a lot of icky or abusive stuff that used to happen that our new norms have (thankfully) made less frequent.  But, as a consequence, doors remain always open, and the kind of mentorly candor necessary for professional growth is, accordingly, more rare, and perhaps less desired. Perhaps the best way to overcome this is not by shutting out mentorship altogether, but by mentoring in small groups. For instance, the other day, we had a faculty lunch talking about tactics and strategies relevant to the law review submission process, as well as the craft of a good thesis. Peer mentoring also happens. E.g., our juniors are meeting frequently to workshop ideas, and, much like at Prawfsfests and similar venues, there is space and time for safe feedback, though again, candor, expertise (or insight into the folkways of an institution from a senior member) and individualized attention might be reduced because of the group dynamic.

So some questions: What is to be done? Do we have a mentorship deficit? If so, what's the best way for it to be overcome? Relatedly, can audacity ripen w/o the safety net and sponsorship that Sandberg has had? Or is this entirely misguided, and Sheryl's work/life balance story should be of no greater interest than Zuck's? (Signed, civil, and substantive comments invited.)

Posted by Dan Markel on February 6, 2012 at 11:44 AM in Article Spotlight, Culture, Current Affairs, Employment and Labor Law | Permalink | Comments (3) | TrackBack

If you let me play . . .

My late father-in-law (who lived his adult life surrounded by a wife, two daughters, two granddaughters (although one grandson), and string of female cats) used to say he did not really become an impassioned feminist (although he had always supported women's rights) until he had daughters and the demand that women and girls get fully equal opportunities came home.

Last Wednesday was National Girls and Women in Sports Day, whose celebratory purpose is obvious, particularly in this, the 40th anniversary of Title IX. Yesterday, the University of Miami sponsored a girls' sports clinic, featuring stations with members of various UM women's teams and a short speech by women's basketball coach Katie Meier. This was followed by tickets to a women's basketball game (UM is the defending ACC champion and ranked 7th in the nation). Halftime featured a scrimmage of 3d and 4th grad girls from my daughter's school (which runs a popular girls' basketball league). And every timeout during the game featured announcements of various statistics and information about the benefits girls enjoy from playing sports. And doing it all on the day of the Super Bowl--arguably the culture's most male-centered day of the year--was brilliant counterprogramming. Of course, many of the girls left the game talking about how they were going home to watch the Super Bowl, which I hope reflects the instantiation of a general love of sports in many different forms.

I was very impressed with Meier's remarks, where she talked about how relatively new opportunities are for girls in sports (Meier is about my age, so she was growing up when Title IX was in its relative infancy), how sports have allowed her to have a career she never could have dreamed of when she was a kid, and the benefits that sports have for people in all walks of life. She particularly emphasized something I never thought of--that sports teach you how to fail and how to come back from failure, an ability we can use in all aspects of our lives. I also was struck by one statistic that was announced during the game--today, 1-in-3 high-school girls play some sport, compared with 1-in-250 in 1971 (the year before Title IX). Finally, I was amazed by how fast the women players were--I had not seen a women's game live in a long time and the athleticism was surprising. I often have said that women are about 50 years behind men in most sports (i.e., women play a game that looks somewhat like the men's game of 50 years ago); I wonder if it may be less, at least in terms of speed and quickness.

After the jump, one of the great commercials of all time and the source of most of the statistics about girls' sports participation.*

 

  

* And a key piece of evidence in my arguments for why it really is difficult to separate commercial from political speech.

Posted by Howard Wasserman on February 6, 2012 at 09:31 AM in Culture, Howard Wasserman, Sports | Permalink | Comments (2) | TrackBack

Sunday, February 05, 2012

Imagine a world with AALS Injury Reports

Rob Gronkowski is officially "questionable" for the Big Game today, though he walked without a limp yesterday.

Under the NFL system of mandatory injury reporting, players are listed based on the likelihood that they will play: out, doubtful (25%), questionable (50-50), or probable (75%). The report also must list the area of the injury (e.g., "ankle"). The system was created in 1947 in response to allegations that players had provided gamblers with secret "insider" information about injuries that were likely to influence the game.

Though coaches are notorious for the gamesmanship involved in using the injury reports - e.g., Tom Brady was listed on the injury report every week for over two years without ever missing a start - the NFL Injury Report survives today, defended by the League as necessary for the integrity of the game and claiming that such data is in the public interest.

Who needs to know whether Rob Gronkowski's injury is really a high ankle sprain or whether he walked with a limp or not?

People betting on football. People playing fantasy football (though most fantasy football seasons end before the Super Bowl). The media. Sport fans. In our football-obsessed run up to the Biggest Game of the Year, who doesn't need to know?

What about the athletes? Are they better off in a system that requires mandatory reporting - and public sharing - of injury information? Sports betting, fantasy football, greater media attention all increase the NFL's revenue, from which athletes will be paid. At the same time, athletes may have good reason to NOT want to share their personal medical information. They may wish to avoid being a target for other athletes (e.g., Kyle Williams having a history of concussions). The injury may be embarrassing in nature (e.g., George Brett having hemorrhoids years ago) or may have occurred in an embarrassing manner (e.g., Dustin Penner injuring his back while eating pancakes).

I don't think the discourse or expectation that athletes are not entitled to privacy about their own bodies or medical information stems from the NFL Injury Reports. I think the continued existence of the reporting requirement (albeit with wink/nod strategic non-compliance) and the lack of athlete interest in bargaining to change the rules is all due to the norm that athletes should be viewed as the sports industry's performance machines, viewed as a collective of body parts rather than people with privacy rights.

What other industries force this bargain on its employees where personal health or medical information is deemed public interest? Top ranking government officials (the President, SCOTUS Justices, etc.)? Actors when their injuries affect filming? Other celebrities? Am I missing any others? Can you imagine if law professors had the equivalent injury reporting requirement?

Posted by Shawn Markus Crincoli on February 5, 2012 at 09:21 AM in Culture, Sports | Permalink | Comments (1) | TrackBack

Tuesday, January 24, 2012

Ironic, crass, stark reminder, reclaiming imagery? You decide

Courtesy of Eric Muller, who has thought (and written about) the experience of the Holocaust, is this web site selling this shirt (and others) to mark Yom Ha'Shoah. The shirts purport to be a statement of memory and solidarity.

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Ironic? Crass? Offensive? Stark and meaningful reminder? Show of solidarity? Reclaiming of hateful imagery? Something else?

Posted by Howard Wasserman on January 24, 2012 at 10:23 PM in Culture, Howard Wasserman | Permalink | Comments (4) | TrackBack

Wednesday, December 14, 2011

Six Things Wrong with SOPA

America is moving to censor the Internet. The PROTECT IP and Stop Online Piracy Acts have received considerable attention in the legal and tech world; SOPA's markup in the House occurs tomorrow. I'm not opposed to blacklisting Internet sites on principle; however, I think that thoughtful procedural protections are vital to doing so in a legitimate way. Let me offer six things that are wrong with SOPA and PROTECT IP: they harm cybersecurity, are wildly overbroad and vague, enable unconstitutional prior restraint, undercut American credibility on Internet freedom, damage a well-working system for online infringement, and lack any empirical justification whatsoever. And, let me address briefly Floyd Abrams's letter in support of PROTECT IP, as it is frequently adverted to by supporters of the legislation. (The one-word summary: "sellout." The longer summary: The PROTECT IP letter will be to Abrams' career what the Transformersmovie was to that of Orson Welles.)

  1. Cybersecurity - the bills make cybersecurity worse. The most significant risk is that they impede - in fact, they'd prevent - the deployment of DNSSEC, which is vitally important to reducing phishing, man-in-the-middle attacks, and similar threats. Technical experts are unanimous on this - see, for example, Sandia National Laboratories, or Steve CrockerPaul Vixie / Dan Kaminsky et al. Idiots, like the MPAA's Michael O'Leary, disagree, and simply assert that "the codes change." (This is what I call "magic elf" thinking: we can just get magic elves to change the Internet to solve all of our problems. Congress does this, too, as when it includes imaginary age-verifying technologies in Internet legislation.) Both bills would mandate that ISPs redirect users away from targeted sites, to government warning notices such as those employed in domain name seizure cases. But, this is exactly what DNSSEC seeks to prevent - it ensures that the only content returned in response to a request for a Web site is that authorized by the site's owner. There are similar problems with IP-based redirection, as Pakistan's inadvertent hijacking of YouTube demonstrated. It is ironic that at a time when the Obama administration has designated cybersecurity as a major priority, Congress is prepared to adopt legislation that makes the Net markedly less secure.
  2. Wildly overbroad and vague- the legislation (particularly SOPA) is a blunderbuss, not a scalpel. Sites eligible for censoring include those:
    •  
      • primarily designed or operated for copyright infringement, trademark infringement, or DMCA § 1201 infringement
      • with a limited purpose or use other than such infringement
      • that facilitate or enable such infringement
      • that promote their use to engage in infringement
      • that take deliberate actions to avoid confirming high probability of such use

    If Flickr, Dropbox, and YouTube were located overseas, they would plainly qualify. Targeting sites that "facilitate or enable" infringement is particularly worrisome - this charge can be brought against a huge range of sites, such as proxy services or anonymizers. User-generated content sites are clearly dead. And the vagueness inherent in these terms means two things: a wave of litigation as courts try to sort out what the terminology means, and a chilling of innovation by tech startups.

  3. Unconstitutional prior restraint - the legislation engages in unconstitutional prior restraint. On filing an action, the Attorney General can obtain an injunction that mandates blocking of a site, or the cutoff of advertising and financial services to it - before the site's owner has had a chance to answer, or even appear. This is exactly backwards: the Constitution teaches that the government cannot censor speech until it has made the necessary showing, in an adversarial proceeding - typically under strict scrutiny. Even under the more relaxed, intermediate scrutiny that characterizes review of IP law, censorship based solely on the government's say-so is forbidden. The prior restraint problem is worsened as the bills target the entire site via its domain name, rather than focusing on individualized infringing content, as the DMCA does. Finally, SOPA's mandatory notice-and-takedown procedure is entirely one-sided: it requires intermediaries to cease doing business with alleged infringers, but does not create any counter-notification akin to Section 512(g) of the DMCA. The bills tilt the table towards censorship. They're unconstitutional, although it may well take long and expensive litigation to demonstrate that.
  4. Undercuts America's moral legitimacy - there is an irreconciliable tension between these bills and the position of the Obama administration - especially Secretary of State Hillary Clinton - on Internet freedom. States such as Iran also mandate blocking of unlawful content; that's why Iran blocked our "virtual embassy" there. America surrenders the rhetorical and moral advantage when it, too, censors on-line content with minimal process. SOPA goes one step farther: it permits injunctions against technologies that circumvent blocking - such as those funded by the State Department. This is fine with SOPA adherents; the MPAA's Chris Dodd is a fan of Chinese-style censorship. But it ought to worry the rest of us, who have a stake in uncensored Internet communication.
  5. Undercuts DMCA - the notice-and-takedown provisions of the DMCA are reasonably well-working. They're predictable, they scale for both discovering infringing content and removing it, and they enable innovation, such as both YouTube itself and YouTube's system of monetizing potentially infringing content. The bills shift the burden of enforcement from IP owners - which is where it has traditionally rested, and where it belongs - onto intermediaries. SOPA in particular increases the burden, since sites must respond within 5 days of a notification of claimed infringement, with no exception for holidays or weekends. The content industries do not like the DMCA. That is no evidence at all that it is not functioning well.
  6. No empirical evidence - put simply, there is no empirical data suggesting these bills are necessary. The content industries routinely throw around made-up numbers, but they have been frequently debunked. How important are losses from foreign sites that are beyond the reach of standard infringement litigation, versus losses from domestic P2P networks, physical infringement, and the like? Data from places like Switzerland suggests that losses are, at best, minimal. If Hollywood wants America to censor the Internet, it needs to make a convincing case based on actual data, and not moronic analogies to stealing things off trucks. The bills, at their core, are rent-seeking: they would rewrite the law and alter fundamentally Internet free expression to benefit relatively small yet politically powerful industries. (It's no shock two key Congressional aides who worked on the legislation have taken jobs in Hollywood - they're just following Mitch Glazier, Dan Glickman, and Chris Dodd through the revolving door.) The bills are likely to impede innovation by the far larger information technology industry, and indeed to drive some economic activity in IT offshore.

The bills are bad policy and bad law. And yet I expect one of them to pass and be signed into law. Lastly, the Abrams letter: Noted First Amendment attorney Floyd Abrams wrote a letter in favor of PROTECT IP. Abrams's letter is long, but surprisingly thin on substantive legal analysis of PROTECT IP's provisions. It looks like advocacy, but in reality, it is Abrams selling his (fading) reputation as a First Amendment defender to Hollywood. The letter rehearses standard copyright and First Amendment doctrine, and then tries to portray PROTECT IP as a bill firmly in line with First Amendment jurisprudence. It isn't, as Marvin Ammori and Larry Tribe note, and Abrams embarrasses himself by pretending otherwise. Having the government target Internet sites for pre-emptive censorship, and permitting them to do so before a hearing on the merits, is extraordinary. It is error-prone - look at Dajaz1 and mooo.com. And it runs afoul of not only traditional First Amendment doctrine, but in particular the current Court's heightened protection of speech in a wave of cases last term. Injunctions affecting speech are different in character than injunctions affecting other things, such as conduct, and even the cases that Abrams cites (such as Universal City Studios v. Corley) acknowledge this. According to Abrams, the constitutionality of PROTECT IP is an easy call. That's only true if you're Hollywood's sockpuppet. Thoughtful analysis is far harder.

Cross-posted at Info/Law.

Posted by Derek Bambauer on December 14, 2011 at 09:07 PM in Constitutional thoughts, Culture, Current Affairs, Film, First Amendment, Information and Technology, Intellectual Property, Law and Politics, Music, Property, Web/Tech | Permalink | Comments (1) | TrackBack

Tuesday, December 13, 2011

Interesting Questions About Shaming and Accountability

I recently returned from a wonderful visit at the IDC in Herzliya, where I taught a mini-course on punishment theory; it was a good opportunity for me to test out some materials from Criminal Law Conversations (which I now highly recommend, by the way). All that is background to a question I just received from a student of mine there who asked, on behalf of her friend, of a possible campaign to hold deadbeats responsible for their delinquency. 

 

"Here is the rundown: My organization wants to come up with an innovative project that furthers women's rights in some way.  My boss came up with the idea for a website that would allow women who have gone to court and won a judgment against their ex-husbands for child support or whatnot (which the ex-husband is not paying or complying with) and post their picture and a summary of the judgment on the internet. The point being to hold these men publicly accountable and maybe shame them into paying up. This sounds like it has a potential of being illegal and crossing some confidentiality boundaries. In the U.S. are family court decisions open record?"
 
My student raised another question regarding shaming for child support issues. She said she thought that in Seattle one can be held in contempt of court and incarcerated for failing to pay child support. If contempt of court is a crime, then would it become part of the public record or would that be a private family court decision? 
Although I've written on public shaming sanctions, I don't know the specific governing law as to this issue in Washington or Israel for that matter. But the issue here is private shaming, not public shaming. It makes me think of the story about the South African radio station trying to stigmatize men who, on account of their philandering, were introducing HIV to their spouses; the radio djs called out the men for bad behavior on the radio station. My intuition would be that free speech principles coupled with private actors and public records would be sufficient to prevent legal recourse by these "shamed" men both in the US and in Israel, but I'd be curious to hear if others disagree as a practical matter, putting aside the normative issues of whether such men should be shamed. For what it's worth, I have reasonably strong views against public (state-sponsored) shaming, but privately initiated exposure of wrongdoing, especially when it is intermediated by the internet and it reflects wrongdoing that has already been adjudicated, is quite different and doesn't raise a lot of the same concerns I have elaborated elsewhere.
(Only signed, verifiably addressed, and substantive comments are invited.)

 

Posted by Dan Markel on December 13, 2011 at 11:09 AM in Blogging, Criminal Law, Culture | Permalink | Comments (2) | TrackBack

Saturday, December 10, 2011

Copyright and Your Face

The Federal Trade Commission recently held a workshop on facial recognition technology, such as Facebook's much-hated system, and its privacy implications. The FTC has promised to come down hard on companies who abuse these capabilities, but privacy advocates are seeking even stronger protections. One proposal raised was to provide people with copyright in their faceprints or facial features. This idea has two demerits: it is unconstitutional, and it is insane. Otherwise, it seems fine.

Let's start with the idea's constitutional flaws. There are relatively few constitutional limits on Congressional power to regulate copyright: you cannot, for example, have perpetual copyright. And yet, this proposal runs afoul of two of them. First, imagine that I take a photo of you, and upload it to Facebook. Congress is free to establish a copyright system that protects that photo, with one key limitation: I am the only person who can obtain copyright initially. That's because the IP Clause of the Constitution says that Congress may "secur[e] for limited Times to Authors... the exclusive Right to their respective Writings." I'm the author: I took the photograph (copyright nerds would say that I "fixed" it in my camera's memory). The drafters of the Constitution had good reason to limit grants of copyright to authors: England spent almost 150 years operating under a copyright-like monopoly system that awarded entitlements to a distributor, the Stationer's Company. The British crown had an excellent reason for giving the Company a monopoly - the Stationer's Company implemented censorship. Having a single distributor with exclusive rights gives a government but one choke point to control. This is all to say that Congress can only give copyright to the author of a work, and the author is the person who creates / fixes it (here, the photographer). It's unconstitutional to award it to anyone else.

Second, Congress cannot permit facts to be copyrighted. That's partly for policy reasons - we don't want one person locking up facts for life plus seventy years (the duration of copyright) - and partly for definitional ones. Copyright applies only to works of creative expression, and facts don't qualify. They aren't created - they're already extant. Your face is a fact: it's naturally occurring, and you haven't created it. (A fun question, though, is whether a good plastic surgeon might be able to copyright the appearance of your surgically altered nose. Scholars disagree on this one.) So, attempting to work around the author problem by giving you copyright protection over the configuration of your face is also out. So, the proposal is unconstitutional.

It's also stupid: fixing privacy with copyright is like fixing alcoholism with heroin. Copyright infringement is ubiquitous in a world of digital networked computers. Similarly, if we get copyright in our facial features, every bystander who inadvertently snaps our picture with her iPhone becomes an infringer - subject to statutory damages of between $750 and $30,000. Even if few people sue, those who do have a powerful weapon on their side. Courts would inevitably try to mitigate the harsh effects of this regime, probably by finding most such incidents to be fair use. But that imposes high administrative costs, and fair use is an equitable doctrine - it invites courts to inject their normative views into the analysis. It also creates extraordinarily high administrative costs. It's already expensive for filmmakers, for example, to clear all trademarked and copyrighted items from the zones they film (which is why they have errors and omissions insurance). Now, multiply that permissions problem by every single person captured in a film or photograph. It becomes costly even to do the right thing - and leads to strategic behavior by people who see a potential defendant with deep pockets.

Finally, we already have an IP doctrine that covers this area: the right of publicity (which is based in state tort law). The right of publicity at least has some built-in doctrinal elements that deal with the problems outlined above, such as exceptions when one's likeness is used in a newsworthy fashion. It's not as absolute as copyright, and it lacks the hammer of statutory damages, which is probably why advocates aren't turning to it. But those are features, not bugs.

Privacy problems on social networks are real. But we need to address them with thoughtful, tailored solutions, not by slapping copyright on the problem and calling it done.

Cross-posted at Info/Law.

Posted by Derek Bambauer on December 10, 2011 at 06:03 PM in Constitutional thoughts, Corporate, Culture, Current Affairs, Film, First Amendment, Information and Technology, Intellectual Property, Property, Torts | Permalink | Comments (4) | TrackBack

Monday, December 05, 2011

The End of Hockey (Fighting)?

Unlike Wasserman, Vladeck, and Bodie, I'm just a nerd with little interest in and patience for following the sports pages these days. (Unfortunately, I still have tons of useless trivia stuck in my head from my days of fandom as a kid.)

Nonetheless, I've been drawn into John Branch's series of pieces on Derek Boogaard in the NYT this week. Boogaard died at the age of 28 not long ago, due to an overdose from painkillers. He was a brutal "enforcer" for his hockey teams, and the series by Branch effectively underscores the complicity of officials, owners, coaches and fans in the gladiatorial aspects of Boogaard's life and death. Notwithstanding too many links to videos of important fights in Boogaard's career, I highly recommend the series so far. (The links are too tempting and I feel like Leontius looking back at the executioner's carnage.) I'd be surprised if it's not a finalist for a Pulitzer. More importantly, I think it shows to a wide audience of NYT readers just how pervasive the senseless violence on the ice is; it might also spur some important changes to the game of hockey itself. 

Importantly, if Boogaard's family sought the chance to do something (and maybe without them too), the series could lay the foundation for the kind of tort litigation/media onslaught against the hockey industry that we've seen work (and not work so well) in other areas. Boogaard was a bruiser, and, from my criminal law perspective, I could see all sorts of reasons why local and enterprising DA's might try to make a case against him and the "enforcer" crew of which he was a critical part (consent as a defense be damned!). But he was, as the articles show, vulnerable to all sorts of social influences and financial incentives that others bear responsibility for as well. Not every social problem requires legal redress in the courts. But even (or especially) if the NHL won't fix itself -- and it seems to have resisted efforts to change the penalty structure for more than 90 years -- I hope it will be spurred to change by moral entrepreneurs in the courts and elsewhere inspired by Branch's series on Boogaard. There's no reason for thinking that brutal disabling fights are a necessary feature of hockey. And if they are, then I'm all in favor of a new sport of senseless violence-free shmockey.

Update: I've been alerted to Jeff Yates' paper on reducing violence in sports through criminal prosecutions. And you might want to check out the NYT's latest report: namely, that Boogaard's head was massively diseased from all the concussions he suffered.

{Signed, verifiably addressed, and substantive comments are invited.}

Posted by Dan Markel on December 5, 2011 at 03:25 PM in Article Spotlight, Culture, Current Affairs, Dan Markel, Sports, Torts | Permalink | Comments (14) | TrackBack

Sunday, November 20, 2011

Should the U.S. Prohibit Anonymous Sperm Donation?

In the United States, a movement urging legally prohibiting sperm-donor anonymity is rapidly gaining steam. In her forthcoming article in the Georgetown Law Journal, The New Kinship (not yet up on SSRN), and in her wonderful book, Test Tube Families, Naomi Cahn is among this movement’s most passionate and thoughtful supporters. She argues for mandatory sperm-donor registries of the type in place in Sweden, Austria, Germany, Switzerland, the Australian states of Victoria and Western Australia, the Netherlands, Norway, and, most recently, the United Kingdom and New Zealand. The UK system is typical in requiring new sperm (and egg) donors to put identifying information into a registry and providing that a donor-conceived child “is entitled to request and receive their donor’s name and last known address, once they reach the age of 18.”

In my new Article, Rethinking Sperm Donor Anonymity: Of Changed Selves, Non-Identity, and One-Night Stands, forthcoming in the same issue of the Georgetown Law Review (out in print in Jan or Feb 2012 and up on SSRN now), I explain why the arguments for these registries fail, using Cahn’s Article as my jumping off point.

I demonstrate four problems with the arguments Cahn offers for eliminating anonymous sperm donation:

(1) Her argument for harm to sperm donor and recipient parents fails in light of the availability of open-identity programs for those who want them, such that she imposes a one-size-fits-all solution where it would be better to let sperm donor and recipients parents choose for themselves.

(2) Her argument for harm to children that result from anonymous sperm donation fails for reasons relating to the Non-Identity Problem. This portion of the Article summarizes work I have done elsewhere, most in-depth in Regulating Reproduction: The Problem With Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2011) and Beyond Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2012 and up on SSRN soon).

(3) She has sub silentio privileged analogies to adoption over analogies to coital reproduction. When the latter analogy is considered, her argument is weakened. I show this through a Swiftian Modest Proposal of a Misattributed-Paternity and One-Night-Stand Registry paralleling the one she defends for sperm donation.

(4) The argument may not go far enough even on its own terms in endorsing only a “passive” registry in which children have to reach out to determine if they were donor conceived, rather than an “active” registry that would reach out to them. If we recoil from such active registries, that is a reason to re-examine the reasons in favor of the less effective passive ones.

For the reasons discussed, despite my admiration for this paper and all of Cahn’s work, I am not persuaded by the argument for adopting a mandatory sperm-donor identification registry of the kind in place elsewhere in the world. Indeed, I think these registries should be eliminated, not replicated. At a moment in which the idea of these registries is rapidly gaining popularity and attention in the United States, I hope my dissenting voice will be heeded.

Posted by Glenn Cohen on November 20, 2011 at 10:39 PM in Criminal Law, Culture, Current Affairs, Gender, Legal Theory | Permalink | Comments (10) | TrackBack

Thursday, November 17, 2011

Choosing Censorship

Yesterday, the House of Representatives held hearings on the Stop Online Piracy Act (it's being called SOPA, but I like E-PARASITE tons better). There's been a lot of good coverage in the media and on the blogs. Jason Mazzone had a great piece in TorrentFreak about SOPA, and see also stories about how the bill would re-write the DMCA, about Google's perspective, and about the Global Network Initiative's perspective.

My interest is in the public choice aspect of the hearings, and indeed the legislation. The tech sector dwarfs the movie and music industries economically - heck, the video game industry is bigger. Why, then, do we propose to censor the Internet to protect Hollywood's business model? I think there are two answers. First, these particular content industries are politically astute. They've effectively lobbied Congress for decades; Larry Lessig and Bill Patry among others have documented Jack Valenti's persuasive powers. They have more lobbyists and donate more money than companies like Google, Yahoo, and Facebook, which are neophytes at this game. 

Second, they have a simpler story: property rights good, theft bad. The AFL-CIO representative who testified said that "the First Amendment does not protect stealing goods off trucks." That is perfectly true, and of course perfectly irrelevant. (More accurately: it is idiotic, but the AFL-CIO is a useful idiot for pro-SOPA forces.) The anti-SOPA forces can wheel to a simple argument themselves - censorship is bad - but that's somewhat misleading, too. The more complicated, and accurate, arguments are that SOPA lacks sufficient procedural safeguards; that it will break DNSSEC, one of the most important cybersecurity moves in a decade; that it fatally undermines our ability to advocate credibly for Internet freedom in countries like China and Burma; and that IP infringement is not always harmful and not always undesirable. But those arguments don't fit on a bumper sticker or the lede in a news story.

I am interested in how we decide on censorship because I'm not an absolutist: I believe that censorship - prior restraint - can have a legitimate role in a democracy. But everything depends on the processes by which we arrive at decisions about what to censor, and how. Jessica Litman powerfully documents the tilted table of IP legislation in Digital Copyright. Her story is being replayed now with the debates over SOPA and PROTECT IP: we're rushing into decisions about censoring the most important and innovative medium in history to protect a few small, politically powerful interest groups. That's unwise. And the irony is that a completely undemocratic move - Ron Wyden's hold, and threatened filibuster, in the Senate - is the only thing that may force us into more fulsome consideration of this measure. I am having to think hard about my confidence in process as legitimating censorship.

Cross-posted at Info/Law.

Posted by Derek Bambauer on November 17, 2011 at 09:15 PM in Constitutional thoughts, Corporate, Culture, Current Affairs, Deliberation and voices, First Amendment, Information and Technology, Intellectual Property, Music, Property, Web/Tech | Permalink | Comments (9) | TrackBack

Tuesday, November 15, 2011

The Curricular Powder Room?

A female friend who teaches family law recently wryly suggested to me that family law had become "the curricular powder room," in that circa 2011 it is a subject whose teaching and scholarship is dominated by women in the American legal academy.  This was not always so. In her work on the development of family law textbooks out of domestic relations courses, my wonderful colleague Janet Halley's What Is Family Law? A Genealogy, Part I and II (the latter is forthcoming) shows that in its early days family law textbook writing was dominated by men, just like all other fields of law, and the female dominance is of fairly recent vintage.

I only dabble in family law with my reproductive technology work, but my experience with the various conferences I attend has led me to believe that the number of heterosexual men who primarily write and teach in the area and have joined the academy in the last 10 years or so is extremely small, and even when I teach family law topics I can feel myself performing my sexuality to some extent as if it were a ritual to get access or credibility.  The only other field that I know of which comes close in terms of gender splits, is health law, although here the split feels more like 50/50, which is striking more because of the gender disparity of almost all the other fields in law.

Of course, one reaction to all this is that it is the other legal fields that are the problem in terms of gender skew so far in favor of men, and I am sympathetic to that point, but in this post I am primarily curious about what the ramifications are of family law having become "the curricular powder room"?

Would family law scholarship and teaching be different if more men were involved? Does the female domination of it lead to a kind of reactive devaluation of its importance or seriousness by the rest of the legal academy? Are there methodological correlates to the gender skew – for example, again from my relative outsiders' perspective, there seems to have been less law and econ in family law than elsewhere, and I wonder if that is partially a function of gender (but worry that this hypothesis itself might be based on gender stereotypes)? What impact does all this have on our students' enrollment in these classes, experienc of them, and career choices in the area? Are any of these descriptive claims (if they obtain) actually problems, or at least things the field should be concerned with?

Posted by Glenn Cohen on November 15, 2011 at 11:12 PM in Culture, Gender, Legal Theory, Teaching Law | Permalink | Comments (9) | TrackBack

Monday, November 07, 2011

Originalism Owns the Eighteenth Century: An Essay with A Compulsory (Voting) Exercise

In the Sunday NYT, Reid Hoffman, chairman at LinkedIn, is quoted as saying “[e]ntrepreneurs ... often spend too much time creating products and too little figuring out how to get people to use them.” This probably applies as well to scholars. Even in the relatively open, interdisciplinary world of the law school, our scholarship can get specialized enough that many colleagues (never mind the public at large) may not follow the broad contours and insights of our subfields unless we give them a lever or two. Not that the value of accessibility should always trump the competing values. But some levers, sure.

These levers may be, partly about the marketing, partly about the design. On the marketing, many of us have heard the message to have at the ready a short ‘elevator ride’ pitch about our scholarship. This is advice I try to follow. But, at least for my late-eighteenth-century work on election law, I still run into a messaging problem--that many academics glean too much meaning when I identify my historical period. Late-eighteenth-century? Then of course the work is originalist in method and purpose. Some audiences go further with the historical cue, apparently assuming that eighteenth-century scholarship is not only originalist but also tied into a hidden conservative political agenda. Before I can get across that, well actually, my work approaches the founding more from the perspectives of social-science history and the history of political thought, the ‘elevator ride’ may be over.

I find the eighteenth-century-to-originalism-to-political-conservatism cascade of assumptions odd. After all, there are now originalists of all political stripes (a Jack Balkin or Akhil Amar for a Robert Bork or a Justice Scalia). And there are originalist scholars of integrity of various stripes who are quite serious about their primary sources and who are not narrowly results-oriented (not to deny there's also a stream of the cringe-worthy ‘forensic history’ in the journals). Then (like me) there are constitutional historians who write on the eighteenth-century but who are not (or not primarily) engaged with originalism or with any approach to contemporary constitutional interpretation (think, perhaps, of Mary Sarah Bilder, Dan Hulsebosch, Alison LaCroix).

However, I can’t say for sure that the cognitive short-cuts are non-adaptive for most purposes. The Legal History Blog (one of my favorite reads, by the way) even uses as one of its subject-matter labels: “Originalism & the founding period.” It has no labels such as “Originalism & the post-Civil War amendments”, “Cultural History & the founding,” or “Economic modeling & the founding.” Originalism & the founding are monogamously paired, while “Ancient law,” “Medieval law,” and “14th amendment” get to be stand-alones. I imagine this labeling practice responds to some reality that’s ‘out there.’

There may be other subjects of legal scholarship that elicit equally-tight audience expectations, but, if those of you working in other areas often encounter this sort of thing, I’m not aware of it. Maybe the simple information that a scholar has written on sexuality and gender will trigger in some audiences an expectation of political liberalism and identity politics? (Unless there’s also a mention of natural law? Then the opposite assumption?) If I meet an environmental law prof, maybe I suspect she’s a person who spends her weekends hiking and rafting, and maybe also, I have mild expectations she’s not strongly de-regulatory in her politics, but this is about as far I go with the cues based solely on subject-matter.

What to do if the cues mislead? I’ve been encouraged to preemptively incorporate criticism of originalism into my spiel. But this feels too much like: “I am not now, nor have I ever been X.” Anyway, my historical writing (to date) simply isn’t designed to take a stand on approaches to constitutional interpretation today. It’s geared more towards explanation and understanding of some political and legal features of our world, and the sometimes-patterned ways in which they’ve changed over time. Rather than continue with the corrections, though, I’m wondering if I should quit fighting the fact that ‘Originalism Owns the Eighteenth Century’. Maybe a user-friendly lever would leverage rather than resist expectations?

Marketing may not be a strong suit for scholars. Certainly, it’s not for me. Yet I’d like to think that, if we fashion the user-friendly marketing lever, maybe we can be more stubborn about not compromising on the deeper design choices.

My marketing practice for today is to imagine I’m sketching an essay in response to another piece from the Sunday Times, this one a thoughtful op-ed by William Galston in favor of compulsory voting.http://www.nytimes.com/2011/11/06/opinion/sunday/telling-americans-to-vote-or-else.html

After his policy argument, Galston winds down with a concession that:

"[T]he United States Constitution gives the states enormous power over voting procedures. Mandating voting nationwide would go counter to our traditions (and perhaps our Constitution) and would encounter strong state opposition."

What Galston doesn’t mention (something I don’t believe I’ve ever seen mentioned in a treatment of modern compulsory voting) is that several of the American colonies had a history of compulsory voting (including some laws that were enforceable by fines that could be levied either on individuals or on towns), and that a compulsory-voting tradition was sufficiently salient in Massachusetts during the U.S. ratification that a few ‘name-brand’ founders made reference to it in their argument for empowering Congress to regulate congressional elections under the Congressional Elections Clause (article I, section 4, clause 1). More generally, Galston’s emphasis on the states’ (not Congress’s) constitutional power over voting procedures is entirely conventional today, but is not an easy fit with the way the federal right to vote was often described during the U.S. ratification debates as, well, a federal right.

Playing to the ‘18th century = originalism’ audience expectations, I could work on developing my own views about constitutional authority and then take a stand on what role the early history should play in constitutional interpretation today. But I’m not sure I have to do that. User-friendly marketing might just mean an originalism-tease--that I raise the possibility that the early history should have sway. Then I use any attention garnered to divert audiences to some of my interpretive and explanatory concerns. (How and when did we change from a political culture when mandatory voting was plausible in some colonies/states to a libertarian world in which it is un-American? When and why was the federal understanding of the federal right to vote forgotten? What features of modern political parties suggest that Galston’s right to think that opposition to a congressional mandate for mandatory voting would be very dramatic?) Of course, by the time I’d get through one of these social-science-y or political theory questions, I’d be long past an elevator ride or even a blog post.

Posted by Kirsten Nussbaumer on November 7, 2011 at 10:52 AM in Constitutional thoughts, Culture, Current Affairs, Law and Politics, Legal Theory | Permalink | Comments (0) | TrackBack

Sunday, November 06, 2011

Sex and the Single Bathroom

I have a confession to make. I’ve recently used the women’s washroom.

Let me explain.  On the 5th floor of Griswold Hall where I have my office, there are two single occupancy bathrooms with locks – one male and one female, not to be confused with the Ally McBeal style unisex bathroom.  Rather, this is a single occupancy bathroom that unlike George Constanza's is not limited to people with disabilities.

It turns out, though, that only the women’s single-occupancy bathroom has Palmolive with which I can wash my glasses before class (one of the assistants who is a woman mentioned this to me one day when I needed to clean them). It is unclear to me why only the women's bathroom has Palmolive,  but I have worried about disrupting something important if I moved it to the men’s. So I’ve started going into the women’s bathroom before class, locking the door, washing my glasses, and then leaving. I have received some funny stares from people who have caught me doing it…but it has caused me to re-examine my single-occupancy bathroom behavior and expand my gender subversive bathroom routine more generally:

If at a restaurant with single use bathrooms there is a line-up for the men’s but none for the women’s, I will walk over to the women’s. This too engenders funny looks, and I’ve noticed I am shyer about doing it when the men in line are more macho … no doubt a form of gender panic on my part.

So I am curious whether I am doing something wrong, and whether all single occupancy bathrooms should be neutered? The strongest argument I can fathom for gendering them is that women and men take different amounts of time in the bathroom, such that separate allocations are desirable. But, if anything, it seems to me that women get the short end of the stick on this one, and both more distributively fair and more efficient then to have both bathrooms be open to both sexes. But perhaps I am missing something?

Posted by Glenn Cohen on November 6, 2011 at 11:28 PM in Culture, Current Affairs, Gender, Housekeeping | Permalink | Comments (42) | TrackBack

Saturday, November 05, 2011

De-lousing E-PARASITE

The House of Representatives is considering the disturbingly-named E-PARASITE Act. The bill, which is intended to curb copyright infringment on-line, is similar to the Senate's PROTECT IP Act, but much much worse. It's as though George Lucas came out with the director's cut of "The Phantom Menace," but added in another half-hour of Jar Jar Binks

As with PROTECT IP, the provisions allowing the Attorney General to obtain a court order to block sites that engage in criminal copyright violations are, in theory, less objectionable. But they're quite problematic in their particulars. Let me give three examples.

First, the orders not only block access through ISPs, but also require search engines to de-list objectionable sites. That not only places a burden on Google, Bing, and other search sites, but it "vaporizes" (to use George Orwell's term) the targeted sites until they can prove they're licit. That has things exactly backwards: the government must prove that material is unlawful before restraining it. This aspect of the order is likely constitutionally infirm.

Second, the bill attacks circumvention as well: MAFIAAFire and its ilk become unlawful immediately. Filtering creep is inevitable: you have to target circumvention, and the scope of circumvention targeted widens with time. Proxy services like Anonymizer are likely next.

Finally, commentators have noted that the bill relies on DNS blocking, but they're actually underestimating its impact. The legislation says ISPs must take "technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States" to Web sites targeted under the bill, "including measures designed to prevent the domain name of the foreign infringing site (or portion thereof) from resolvingto that domain name's Internet protocol address." The definitional section of the bill says that "including" does not mean "limited to." In other words, if an ISP can engage in technically feasible, reasonable IP address blocking or URL blocking - which is increasingly possible with providers who employ deep packet inspection - it must do so. The bill, in other words, targets more than the DNS.

On the plus side, the bill does provide notice to users (the AG must specify text to display when users try to access the site), and it allows for amended orders to deal with the whack-a-mole problem of illegal content evading restrictions by changing domain names or Web hosting providers.

The private action section of the bill is extremely problematic. Under its provisions, YouTube is clearly unlawful, and neither advertising or payment providers would be able to transact business with it. The content industry doesn't like YouTube - see the Viacom litigation - but it's plainly a powerful and important innovation. This part of E-PARASITE targets sites "dedicated to the theft of U.S. property." (Side note: sorry, it's not theft. This is a rhetorical trope in the IP wars, but IP infringement simply is not the same as theft. Theft deals with rivalrous goods. In addition, physical property rights do not expire with time. If this is theft, why aren't copyright and patent expirations a regulatory taking? Why not just call it "property terrorism"?)

So, what defines such a site? It is:

  1. "primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates" violations of the Copyright Act, Title I of the Digital Millennium Copyright Act, or anti-counterfeiting laws; or,
  2. "is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out the acts that constitute a violation" of those laws; or, 
  3. the owner "operates the U.S.-directed site with the object of promoting, or has promoted, its use to carry out acts that constitute a violation" of those laws.

That is an extraordinarily broad ambit. Would buying keywords, for example, that mention a popular brand constitute a violation? And how do we know what a site is "primarily designed for"? YouTube seems to have limited purpose or use other than facilitating copyright infringement. Heck, if the VCR were a Web site, it'd be unlawful, too. 

The bill purports to establish a DMCA-like regime for such sites: the IP owner provides notice, and the site's owner can challenge via counter-notification. But the defaults matter here, a lot: payment providers and advertisers must cease doing business with such sites unless the site owner counter-notifies, and even then, the IP owner can obtain an injunction to the same effect. Moreover, to counter-notify, a site owner must concede jurisdiction, which foreign sites will undoubtedly be reluctant to do. (Litigating in the U.S. is expensive, and the courts tend to be friendly towards local IP owners. See, for example, Judge Crotty's slipshod opinion in the Rojadirecta case.)

I've argued in a new paper that using direct, open, and transparent methods to censor the Internet is preferable to our current system of "soft" censorship via domain name seizures and backdoor arm-twisting of private firms, but E-PARASITE shows that it's entirely possible for hard censorship to be badly designed. The major problem is that it outsources censorship decisions to private companies. Prior restraint is an incredibly powerful tool, and we need the accountability that derives from having elected officials make these decisions. Private firms have one-sided incentives, as we've seen with DMCA take-downs

In short, the private action measures make it remarkably easy for IP owners to cut off funding for sites to which they object. These include Torrent tracker sites, on-line video sites, sites that host mash-ups, and so forth. The procedural provisions tilt the table strongly towards IP owners, including by establishing very short time periods by which advertisers and payment providers have to comply. Money matters: WikiLeaks is going under because of exactly these sort of tactics. 

America is getting into the Internet censorship business. We started down this path to deal with pornographic and obscene content; our focus has shifted to intellectual property. I've argued that this is because IP legislation draws lower First Amendment scrutiny than other speech restrictions, and interest groups are taking advantage of that loophole. It's strange to me that Congress would damage innovation on the Internet - only the most powerful communications medium since words on paper - to protect movies and music, which are relatively small-scale in the U.S. economy. But, as always with IP, the political economy matters. 

I predict that a bill like PROTECT IP or E-PARASITE will become law. Then, we'll fight out again what the First Amendment means on the Internet, and then the myth of America's free speech exceptionalism on-line will likely be dead.

Cross-posted at Info/Law.

Posted by Derek Bambauer on November 5, 2011 at 05:06 PM in Civil Procedure, Constitutional thoughts, Culture, Current Affairs, First Amendment, Information and Technology, Intellectual Property, Law and Politics, Music, Property, Web/Tech | Permalink | Comments (2) | TrackBack

Wednesday, November 02, 2011

Stem Cells, IVF, and Abortion: Is There a Right and Left Position?

This is my third post inspired by the Mississippi Personhood Amendment, and this one turns to the normative issues.

Many people who identify as pro-life as to abortion, oppose stem cell derivation involving the destruction of pre-embryos (or “embryos” simpliciter if you prefer, language is power), and often discard of embryos as part of IVF. Many people who are pro-choice by contrast oppose prohibitions on abortion, stem cell derivation, or IVF embryo discard.  What I try to show my students in the classes I teach, and I want to argue here, the three issues do not necessarily go together and the terrain is more complicated than the way it is usually presented.

First, for the left. As Judith Jarvis Thompson most famously tried to show in her (still quite controversial) work, support for an abortion right is not necessarily inconsistent with recognition of fetal personhood. That is, even if one believes fetuses are full persons, one can still support a right not to be a gestational parent (to use my terminology) for women that stems from bodily integrity or perhaps autonomy.  As I have argued, as a normative and as a constitutional matter recognition of a right not to be a gestational parent does not necessarily imply recognition of a right not to be a genetic parent, which suggests that the abortion right and the right to engage in IVF discard are quite severable because prohibiting the destruction of excess IVF embryos does not require forcing unwanted gestational duties on anyone. The disconnect is even stronger when it comes to stem cell derivation, where none of the “rights not to procreate” is involved. That means that one can very happily be pro-choice as to abortion, and prohibit embryo discard or destruction via stem cell derivation.

Second, as to the right....

Let us assume the pro-life position on abortion depends on the view that fetuses are persons or close enough to persons that their protection trumps the interests in avoiding gestational parenthood of pregnant mothers. That position does not imply that the destruction of embryos at all stages of development is also equally problematic. A lot depends on one’s theory of why fetuses should be given personhood or rights claims against destruction (on this issue I highly recommend Cynthia Cohen’s chapter on personhood in her book on stem cells). If your theory of personhood is about the actual possession of criteria X, on some ways to fill in “X” – such as fetal pain, which I have written about here – fetuses late in gestation may possess the criteria but not embryos as the stage they are discarded/destroyed as part of IVF or stem cell derivation.  Similarly, many have defended a 14-day or later view of personhood, where personhood begins on the 14th day after fertilization where embryonic twinning – the potential for an embryo to become monozygotic twins – ends. This argument is usually premised on problems with numerical identity. If the embryo was a person before day 14, but twins into two people, which one was it – person A or person B? Many find this argument persuasive, although certainly there are objectors (for example, those who say that if a stick is broken into two that does not mean it wasn't originally one stick, though others doubt the analogy).  For present purposes all I want to suggest is someone who opposes abortion can thus fairly easily consistently oppose prohibition on destruction of early embryos.

None of that means that zealots on either side are capable of being nuanced here. The cultural cognition project, if anything, suggests the opposite.  Still I hope that judges and academics are better poised to see the nuances here.

Posted by Glenn Cohen on November 2, 2011 at 10:36 PM in Article Spotlight, Culture, Current Affairs, Gender, Religion | Permalink | Comments (3) | TrackBack

Wednesday, October 26, 2011

How Baseball Made Me a Pirate

Major League Baseball has made me a pirate, with no regrets.

Nick Ross, on Australia's ABC, makes "The Case for Piracy." His article argues that piracy often results, essentially, from market failure: customers are willing to pay content owners for access to material, and the content owners refuse - because they can't be bothered to serve that market or geography, because they are trying to force consumers onto another platform, or because they are trying to leverage interest in, say, Premier League matches as a means of getting cable customers to buy the Golf Network. The music industry made exactly these mistakes before the combination of Napster and iTunes forced them into better behavior: MusicNow and Pressplay were expensive disasters, loaded with DRM restrictions and focused on preventing any possible re-use of content rather than delivering actual value. TV content owners are now making the same mistake.

Take, for example, MLB. I tried to purchase a plan to watch the baseball playoffs on mlb.com - I don't own a TV, and it's a bit awkward to hang out at the local pub for 3 hours. MLB didn't make it obvious how to do this. Eventually, I clicked a plan that indicated it would allow me to watch the entire postseason for $19.99, and gladly put in my credit card number.

My mistake. It turns out that option is apparently for non-U.S. customers. I learned this the hard way when I tried to watch an ALDS game, only to get... nothing. No content, except an ad that tried to get me to buy an additional plan. That's right, for my $19.99, I receive literally nothing of value. When I e-mailed MLB Customer Service to try to get a refund, here's the answer I received: "Dear Valued Subscriber: Your request for a refund in connection with your 2011 MLB.TV Postseason Package subscription has been denied in accordance with the terms of your purchase." Apparently the terms allow fraud.

Naturally, I'm going to dispute the charge with my credit card company. But here's the thing: I love baseball. I would gladly pay MLB to watch the postseason on-line. And yet there's no way to do so, legally. In fact, apparently the only people who can are folks outside the U.S. And if you try to give them your money anyway, they'll take it, and then tell you how valued you are. But you're not.

So, I'm finding ways to watch MLB anyway. If you have suggestions or tips, offer 'em in the comments - there must be a Rojadirecta for baseball. And next season, when I want to watch the Red Sox, that's the medium I'll use - not MLB's Extra Innings. MLB has turned me into a pirate, with no regrets.

Cross-posted at Info/Law.

Posted by Derek Bambauer on October 26, 2011 at 07:48 PM in Criminal Law, Culture, Information and Technology, Intellectual Property, International Law, Music, Odd World, Sports, Television, Web/Tech | Permalink | Comments (34) | TrackBack

Monday, October 17, 2011

More federal jurisdiction on TV

I love when TV even indirectly or incidentally throws some law into the mix. Last night's episode of HBO's Boardwalk Empire actually turned on federal jurisdiction.

For those of you who don't watch the show, the main character is Enoch "Nucky" Thompson, an Atlantic City (N.J.) government official/political-machine boss/bootlegger/gangster in the early 1920s, loosely based on real-life Atlantic City boss/bootlegger Nucky Johnson). In early 1921, Thompson has been charged in state court with election fraud. His lawyer discovers that part of the fraud included bringing prostitutes from Philadelphia to Atlantic City to provide sexual favors for certain individuals in exchange for voting Republican. This violates the Mann Act of 1910, which generally prohibits the transportation of women across state lines for "immoral purposes." This means that Thompson now can be charged in federal court.

The lawyer arranges for the women to "report" Thompson to the New Jersey Attorney General, who is prosecuting the case. And while he  is initially thrilled about these new charges and the federalization of the case, the story makes clear that Thompson (and his attorney) welcome this development, since  U.S. Attorney General Harry Daugherty (Warren Harding's real AG) is one of Thompson's cronies and likely will make sure the charges are dismissed. Thompson later tells his mistress, with a smile, "I violated the Mann Act."

Hey, the federal government was overcharging even in 1921.

Posted by Howard Wasserman on October 17, 2011 at 01:20 PM in Culture, Howard Wasserman, Television | Permalink | Comments (0) | TrackBack

Friday, October 14, 2011

Behind the Scenes of Six Strikes

Wired has a story on the cozy relationship between content industries and the Obama administration, which resulted in the deployment of the new "six strikes" plan to combat on-line copyright infringement. Internet security and privacy researcher Chris Soghoian obtained e-mail communication between administration officials and industry via a Freedom of Information Act (FoIA) request. (Disclosure: Jonathan Askin and I represent Chris in his appeal regarding this FoIA request.) The e-mails demonstrate vividly what everyone suspected: Hollywood - in the form of the music and movie industries - has an administration eager to be helpful, including by pressuring ISPs. Stay tuned.

Posted by Derek Bambauer on October 14, 2011 at 11:10 AM in Blogging, Culture, Current Affairs, Film, Information and Technology, Intellectual Property, Judicial Process, Law and Politics, Music, Web/Tech | Permalink | Comments (0) | TrackBack

Wednesday, October 05, 2011

Have you ever been to a bar (or other entertainment establishment) named after some part of the Constitution?

I'd like to second Rick Garnett's endorsement of Daniel Okrent's book on Prohibition called Last Call.  It's a great read, and I relied on it a lot when writing the chapter of my forthcoming Odd Clauses book on section 2 of the Twenty-First Amendment, which says that "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."  As Larry Tribe once pointed out, this is one of only two instances where the Constitution directly regulates private individuals rather than the government, with the other instance being the Thirteenth Amendment's prohibition on slavery.

I should probably say that I enjoyed Okrent's book somewhat more than the Ken Burns special on Prohibition that's been airing over the past few days, but that might be the historical present tense, wildly overused in these kinds of documentaries, tends to make me vomit.

Unsurprisingly perhaps, there are a lot of bars around the country named after the Twenty-First Amendment.  We have one here in Boston, and there are also such places in San Francisco and Washington DC.  Not to mention Fayeteville, Arkansas.   I've been thinking of doing a tour of them to promote my book.  Not really. 

This makes me wonder whether there are other bars, restaurants, or different kinds of entertainment establishments named after parts of the Constitution, and if not, whether there should be, and what they would look like.  I've thought about opening up an Incompatibility Clause Theater here in Beantown next to my new Letters of Marque Clause teahouse, but frankly, I don't have any idea what would play there.   Thoughts?

 

Posted by Jay Wexler on October 5, 2011 at 12:53 PM in Culture, Jay Wexler | Permalink | Comments (10) | TrackBack

Sunday, October 02, 2011

What Commons Have in Common

Thanks to Dan and the Prawfs crew for having me! Blogging here is a nice distraction from the Red Sox late-season collapse.

I thought I'd start with a riddle: what do roller derby, windsurfing, SourceForge, and GalaxyZoo have in common?

Last week, NYU Law School hosted Convening Cultural Commons, a two-day workshop intended to accelerate the work on information commons begun by Carol Rose, Elinor Ostrom, and Mike Madison / Kathy Strandburg / Brett Frischmann. All four of the above were presented as case studies (by Dave Fagundes, Sonali Shah, Charles Schweik, and Mike Madison, respectively). Elinor Ostrom gave the keynote address, and sat in on most of the presentations. It's exciting stuff: Mike, Kathy, and Brett have worked hard to adapt Ostrom's Institutional Analysis and Development framework to analysis of information commons such as Wikipedia, the Associated Press, and jambands. Yet, there was one looming issue that the conferees couldn't resolve: what, exactly, is a commons?

The short answer is: no one knows. Ostrom's work counsels a bottom-up, accretive way to answer this question. Over time, with enough case studies, the boundaries of what constitutes a "commons" become clear. So, the conventional answer, and one supported by a lot of folks at the NYU conference, is to go forth and, in the spirit of Clifford Geertz, engage in collection and thick description of things that look like, or might be, commons.

As an outsider to the field, I think that's a mistake.

What commons research in law (and allied disciplines) needs is some theories of the middle range. There is no Platonic or canonical commons out there. Instead, there are a number of dimensions along which a particular set of information can be measured, and which make it more or less "commons-like." Let me suggest a few as food for thought:
  1. Barriers to access - some information, like Wikipedia, is available to all comers; other data, like pooled patents, are only available to members of the club. The lower the barriers to access, the more commons-like a resource is. 
  2. State role in management - government may be involved in managing resources directly (for example, data in the National Practitioner Data Bank), indirectly (for example, via intellectual property laws), or not at all. I think a resource is more commons-like as it is less managed by the state.
  3. Ability to privatize - information resources are more and less subject to privatization. Information in the public domain, such as Shakespeare's plays, cannot be privatized - no one can assert rights over them (at least, not under American copyright law). Some information commons protected by IP law cannot be privatized, such as software developed under the GPL, and some can be, such as software developed under the Apache License. The greater the ability to privatize, I'd argue, the less commons-like.
  4. Depletability - classic commons resources (such as fisheries or grazing land) are subject to depletion. Information resources can be depleted, though depletion here may come more in the form of congestion, as Yochai Benkler argues. Internet infrastructure is somewhat subject to depletion, while ideas or prices are not. The greater the risk of depletion,the less commons-like.

Finally, why do we care about the commons? I think that commons studies are a reaction to the IP wars: they are a form of resistance to IP maximalism. By showing that information commons are not only ubiquitous, but vital to innovation and even a market economy, legal scholars can offer a principled means of arguing against ever-increasing IP rights. That makes studying these resources - and, hopefully, putting forward testable theories about what are and are not attributes of a commons - vital to enlightened policymaking.

(Cross-posted to Info/Law.)

Posted by Derek Bambauer on October 2, 2011 at 05:22 PM in Culture, Information and Technology, Intellectual Property, Legal Theory, Property, Research Canons | Permalink | Comments (0) | TrackBack

Tuesday, September 13, 2011

What's in an Acronym?

Last weekend, I had the honor of attending Lavender Law, the annual conference of the National LGBT Bar Association. I gave a few talks and chaired a wonderful panel on cyberbullying and the First Amendment, but, as with many conferences, it was the individual and informal conversations with colleagues that were particularly rewarding.

On Friday, I met Mason Davis, Executive Director of the Transgender Law Center in San Francisco, California, and asked him how he responds to members of the gay and lesbian community who feel that they face different issues than members of the transgendered community and that gay and lesbian interest groups should not be diverted to transgender issues when gay causes are so in need. They wonder why the L and the G should always be linked with the T.

The question might seem strange or even hateful, but it exists as a undercurrent in many minority groups. All groups fighting for their civil rights do so with allies, or, at a minimum, with different generations or different subgroups. But, not every group wants or needs the same things. Not everyone's direct personal interests are always aligned and, in fact, those interests could be so misaligned that affiliation could, some think, be a bad idea. It is not often openly discussed, but many gay men have approached me wondering why our leaders' time is spent on issues like health insurance for gender reassignment surgery, for example, or our lobbyists would oppose clearly pro-gay legislation if it did not include pro-transgender elements.

I do not write on or research transgender issues. Nor do I know any transgendered persons, and I regret that. I am concerned that my views on these issues may be colored by the uniformity of my social and professional circles. Therefore, I have always stayed on the sidelines of these debates, unsure of where I stand until I could understand transgendered persons' needs better. But it always struck me as very selfish to think that just because a gay person's personal interests are not the same as a transgendered person's, that means that should not be allies in the search for civil rights. After all, gay men and lesbians are not always concerned with the same issues. In the 1980s and early 1990s, HIV/AIDS was almost exclusively a gay male concern, not a lesbian one.

I asked Mr. Davis if he hears these objections and how he responds.

He said he hears it all the time, but in his experience, it's not selfishness. Some gay strategists find gay people more relateable to the average American voter, so inclusion of transgender issues makes a successful gay rights strategy more difficult. Other gay donors are concerned about this or that issue and would prefer that their money be used for their area of concern. But, while our goals are not always the same, Mr. Mason says that we are all part of the same project: we are all trying to be who we really are unencumbered by discrimination, but some of us need a little more help to be who we really are.

Gays and lesbians can be who they really are by coming out of the closet, by being out at home and in the workplace and by marrying their partners and starting families. They are concerned with tearing down barriers that stand in their way: Don't Ask, Don't Tell, employment discrimination, same-sex marriage bans, second-parent adoption bans, and so on. But, transgendered individuals need a little bit more to become who they really are. They have unique medical hurdles to cross in order to get there, but Mr. Mason believes that L's, G's and T's are all searching for the same thing. We all want a country where nothing stands in the way of our true self.

I have yet to field test this argument on some of my gay friends. What do you think?

Posted by Ari Ezra Waldman on September 13, 2011 at 08:28 PM in Culture, Gender | Permalink | Comments (8) | TrackBack

Sunday, September 11, 2011

Personalizing the national anthem

Patriotic and political rituals pervade our sporting events. And the performing of The Star-Spangled Banner, a part of just about every game, is heightened at major games and events (championships, Super Bowls, all-star games, event finals). And we expected that to even more so at today's Women's Final of the U.S. Open, played in New York on the tenth anniversary of 9/11.

What I find interesting is the way artists can and do try to personalize the anthem, changing the entire tune and musical style of the song (particularly in non-traditional styles), and the way our reactions to that have changed. What is widely regarded as the first attempt at restyling was Jose Felciano's acoustic slow Latin jazz rendition before Game 5 of the 1968 World Series in Detroit, which outraged fans (NBC stations were inundated with angry phone calls) and lead some radio stations to stop playing Feliciano's music for a time. On the other hand, the response was much more favorable to Marvin Gaye's rendition at the 1983 NBA All-Star Game. And in 2010, Feliciano was invited back to Detroit to perform his version of the anthem during a memorial ceremony for late Tigers announcer Ernie Harwell. Are there other recent examples of performers making stylistic changes to the song?

All of which is by way of saying that our reaction to Queen Latifah's gospel/soul rendition before today's match is a product of its time. It probably would have been a subject of controversy 40 years ago; it now becomes an instant classic. Enjoy.

 

Posted by Howard Wasserman on September 11, 2011 at 05:45 PM in Culture, Howard Wasserman, Sports | Permalink | Comments (2) | TrackBack

Saturday, September 10, 2011

Hogwarts College of Law

Ah, the things that come up over lunch with faculty colleagues. And now we can pose them to the blog community:

What are the law school equivalents to all of the different courses offered at Hogwarts (Defense Against the Dark Arts, Potions, Spells, etc.)?

Posted by Howard Wasserman on September 10, 2011 at 09:57 AM in Culture, Howard Wasserman, Teaching Law | Permalink | Comments (7) | TrackBack