Tuesday, April 28, 2015
CALL FOR PAPERS: The ADA at 25: Implications for People with Mental Disabilities
The AALS Section on Law and Mental Disability, along with the co-sponsoring Section on Disability Law, are looking for papers or abstracts of presentations for a panel on the ADA at the 2016 AALS Annual Meeting. At author's choice, selected papers may appear in the Law & Psychology Review. The Call for Papers appears below the fold.
F. Gregory Lastowka
It is with deep regret that I write that law prawf Greg Lastowka is no longer with us. He passed away yesterday. His home institution, Rutgers, has published this announcement here. He will be greatly missed by all who knew him and his extraordinary work.
The Linguistics of Certiorari Dismissal
Like many colleges, my undergraduate institution did not offer a pre-law major. So those of us who knew we wanted to go to law school had to find some other discipline as a major. I chose linguistics. I had lived abroad as a child, which made me interested in how other languages worked. And I liked the introductory linguistics courses more than I liked the introductory English and history courses that I took.
Much to my surprise, I’ve found the little linguistics that I learned in college has been useful later in life. The linguistics “school” that my thesis advisor belonged to sought to discern patterns in written and spoken language. These patterns were not the grammatical rules we memorize in junior high, but instead a complex web of intuitive rules that sometimes carry with them various meanings. For example, baseball aficionados say that a batter “flied out,” rather than saying that he “flew out.” Linguists interpret this deviation as an indication that the terms “fly ball” and “to fly out” have taken on their own independent meanings aside from the constituent words that were used to form them originally.
So imagine, to my delight, when I recently had a conversation about how to create the past tense of the common Supreme Court term “DIG.” The Supreme Court will sometimes, after granting certiorari in a case, decide that there is some reason that the Court should not decide the case after all. The Justices will dismiss the case as improvidently granted --- hence the acronym “DIG.” So how does someone use that acronym to indicate that a case had been dismissed on those grounds in the past? Happily, there is a law review article which gives us the answer (look at footnote 4). Rather than using the term “dug,” the Supreme Court Justices apparently use the term “digged” in spoke language, and scholars use the written form “DIGged.” Made my day . . .
Monday, April 27, 2015
Natural Rights and the "Human Right" to Intellectual Property
I am picking up from where I left off in my prior post on human rights and intellectual property. My concern with embracing a human right to intellectual property arises from the possibility that it will lead to more expansive intellectual property protections. I would tend to agree, therefore, with the report by the United Nations Special Rapporteur in the field of cultural rights (mentioned by Lea Shaver in her comment), which characterizes copyright as distinct from the human right to authorship.
Human rights are generally understood to be natural rights. If one accepts this proposition, how does treating intellectual property protection as a human right relate to the natural rights intellectual property scholarship? The intellectual property and human rights conversation is primarily an international intellectual property conversation. However, the natural rights framing of intellectual property rights is primarily a domestic intellectual property conversation. Both of these frameworks are based on natural rights theories, yet they appear to reach opposite conclusions. With some exceptions, proponents of natural rights justifications for intellectual property tend to support more expansive intellectual property protections. On the other hand, proponents of a human right to intellectual property speak of “balance” and of using human rights frameworks to respond to excessive intellectual property rights.
One might be inclined to dismiss the theoretical foundations for intellectual property as irrelevant to the practical aspects of intellectual property law. However, the framing of intellectual property rights can impact the way private citizens, including judges and policy makers, view intellectual property protection and infringement. Gregory Mandel’s study on the public perception of intellectual property rights, for instance, found that individuals who view intellectual property rights as natural rights tend to support more expansive intellectual property protection. This is consistent with legal scholarship that takes a natural rights approach to intellectual property. My inclination, then, is that distinguishing between copyright protection and the human right to the moral and material interests arising from one’s literary or artistic production is a step in the right direction.
Entry Level Hiring: The 2015 Report - Final (?) Call for Information
This is, I think, the final call for information for the 2015 Entry Level Hiring Report. I currently plan to close reporting on Friday, May 1. If, however, you know that there is ongoing hiring (last year, for example, I was told that some schools were working on hiring until mid-May), please let me know, and I will extend that date. Absent any such information, though, I will close the report on Friday, May 1.
If you have information about entry-level hires for this year, or know that there are outstanding entry-level offers that will not be resolved until after May 1, please either email me directly (slawsky *at* law *dot* uci *dot* edu), or add a comment to the original information-gathering post.
Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.
As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires:
Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation
Other Degrees: Type of Degree, Degree Granting Institution, Degree Subject
Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)
Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)
Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)
Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)
(Comments are closed on this post in order to drive comments to the original post.)
Google Announces Patent Purchase Experiment
Today, Google announced a patent purchase promotion, which is an open call for those who wish to sell their patents to the company. Some details are here, while others are here. The terms are remarkably simple--between May 8 and May 22, sellers must provide Google with the patent number and a proposed price. As part of the transaction, sellers obtain a non-exclusive license to practice the patent together with the purchase price if the offer is accepted.
In typical Google-style, the company states that this call is an experiment and an effort to eliminate the middle-man. In the company's words:
Unfortunately, the usual patent marketplace can sometimes be challenging, especially for smaller participants who sometimes end up working with patent trolls. Then bad things happen, like lawsuits, lots of wasted effort, and generally bad karma. Rarely does this provide any meaningful benefit to the original patent owner.
Of course, the looming question is what will Google do with any patents that it buys? Whatever it wants, of course. According to Google's FAQ on this issue:
Google maintains a large patent portfolio. Any patents purchased by Google through this program will join our portfolio and can be used by Google in all the normal ways that patents can be used (e.g., we can license them to others, etc.)
One interesting aspect of the program is the speed at which it is moving--sellers will be notified at the end of June, and the sales are expected to be closed by the end of August.
Advice on Biglaw
Recently, I have been approached by several students who are at the beginning of careers in large law firms. Apart from talking to them about the actual work, I find myself offering (sometimes unsolicited) more general career and even life advice. This is no doubt colored by my experience, which was a really positive one. I was fortunate to spend several years at Munger Tolles & Olson, a firm in Los Angeles (along with Tung Yin, a fellow Prawfsblawg guest blogger). It was a pretty unique place, where at the time I started, I believe no associate had ever left for another law firm. That changed pretty quickly after I started, but it was (and I believe still is) a place where associates were valued as professionals and the expectation was that they would succeed. Most of what I suggest is gleaned from keeping up with my fellow associates, classmates, and former students.
The following has become my standard pitch. I am a realist - none of these are things that can or should happen immediately, and all require work and even sacrifice.
Anniversary Topic # 4: What does the future hold?
Sunday, April 26, 2015
Ohio is Not New York. Or Even Texas.
The Times today has a write-up of the recent Deborah Jones Merritt study of employment outcomes for the JD Class of '10 in Ohio. As I described in more detail at the law & econ prof blog a few weeks ago, Prof. Merritt's study has, ahem, merits. It's a great snapshot of struggling graduates in Ohio, people who deserve our attention and support. The trouble is that the Times story reports these findings as though they told us something about the national law job market. Merritt's new data are all in Ohio, which may be a systematically different legal market than many others. Nonetheless, the Times story reports Merritt's findings as though they were representative of the whole country (and also describes the study as "published," when in fact it's an ssrn working paper). Most troublingly, the Times reports Prof. Merritt's conclusion that "the 2010 class had not recovered in the ensuing years" without any caveats.
Yet there are several serious caveats that ought to have been offered. For example, as I read the paper, Merritt 's claim depends entirely on a trend line she draws between 2010 national NALP data (which are based on self-reported survey results but supplemented with some web follow-up) and 2014 Ohio data (which Merritt hand-collected on the web). That is not likely to be a persuasive method of measuring employment trends for anyone, whether in Ohio or anywhere else. It's like comparing 2014 scoring in the NBA against 2010 scoring in college basketball. Unless you can show a really convincing case for why these groups are actually very similar to each other, the trend line is likely to be just random noise.
Deborah and I had an exchange about these issues on my blog. She convinced me that the method NALP used for supplementing some of the 2010 data was similar to her method (although that leaves the question whether it makes any sense to compare her results to the bulk of the NALP numbers, which used a quite different method). But she did not address the issue that the 2010 NALP data were for the whole country, not Ohio, and there is no a priori reason to think that Ohio was similar to the U.S. in 2010 or that its trend since has been similar. I left our exchange believing she would return to her project and revise it to reflect its serious limitations as a window into national trends. If that has happened, it is not reflected in the Times story.
Baseball reaches historic milestone
Changes in the Legal Professoriate and in the Market for Law Schools
I am not surprised that my hope of doing a whole series of posts on how things have changed in legal education has been dashed. It's likely that the two points I made in my previous post on the subject are the ones I wanted to make anyway--that (1) they haven't changed as much as I might have figured, or as much as circumstances demand, and that (2) although the story of law schools in the past seven years has been one of responding (or failing to respond) to changing circumstances in light of the economy and possible longer-term changes in the legal profession, it's also important to note that student views and attitudes about this have changed more than once since the first generation of law students, the one that applied before the economic downturn and suddenly found itself brutalized by it, came and went. Before moving to the last week's topic, however--and perhaps one more post about our friend Dan--let me add two slighter observations.
First, there have of course been changes in the professors themselves. Others--especially our co-blogger Sarah Lawsky, who has done such great and time-consuming work on this, and others elsewhere in the legal blogosphere--have done much more serious and empirically grounded work than anything I'll add here. I want to make one impressionistic point having to do with the rise of VAPs as one of the main conduits for entry into law teaching.
Saturday, April 25, 2015
If I've lost the media . . .
I have made pretty clear my view that the Alabama Supreme Court and Alabama public officials have not been defying federal courts or federal law over same-sex marriage, given the limited scope of district court orders and injunctions. And I thought I had convinced Emily Bazelon when she wrote this, based in part on interviews with Orin Kerr and with me.
But then on Friday's Slate Political Gabfest, in a preview of next week's Obergefell arguments, Bazelon used the words "rebel" and "defy" to describe recent events in Alabama. Oh well. A subsequent email exchange indicated differences in views about the interaction between the mandamus and the federal injunction and the effect of each on the other. In my view (which I explain further here), the injunction only obligated one probate judge, Don Davis, to issue licenses to the four couples who are plaintiffs in Strawser, which he did. At that point, the mandamus did not impose any obligations on Davis or anyone else that competed or conflicted with obligations from the federal court. We are back to one (functionally) lower federal court disagreeing with another lower federal court about federal law. That is disagreement, not defiance or rebellion.
Friday, April 24, 2015
On Anonymous Speech
When I drive into the BC parking lot, I'm always wary of the dad drivers with out-of-state plates. Not just because they're lost, texting their kid to find the right dorm, and pushing the family dog into the back seat with the other arm (although also that). It's because they're way more aggressive. And heck, if I'm honest, I am probably way more courteous -- stopping for pedestrians, waiving ahead left-turners -- in that parking lot than I am when I'm away from home. They know me, and who wants to face someone in the hall after you've just been rude to them on the road?
Anonymity, in short, is a shield for our worst impulses. We have a trove of data on this now. Probably I could just say, at this point, Cf. The Internet. But we have scientific studies, too. Putting your name on a blog post or a letter to the editor is like the hand-drawn eyes in the office kitchen (reported by Thaler & Sunstein in Nudge, if you don't remember): it's a prompt to imagine how other people would respond if they observed us acting unkindly or unethically.
I don't want to live in a community where everyone behaves like total strangers to one another, where moral obligations, norms of kindness and generosity of spirit and respect for disagreement can be shucked off. I don't want to blog in a place like that. And I don't want to vote in a place like that. For that reason, I've argued against the use of charitable organizations as shields for the anonymity of political contributors. And I have been very aggressively removing anonymous, spiteful comments from my threads during my time at prawfs.
Congratulations to Rick Garnett
The dean of Notre Dame Law School announced this week that our good friend and co-blogger Rick Garnett has been approved by the university administration as the law school's newest endowed professor. Rick will be the Schierl/Fort Howard professor at the Law School. I know Rick will be particularly pleased because the chair's previous occupants were two giants at Notre Dame: the great legal ethics scholar Tom Shaffer and the late Bob Rodes, who wrote lasting works in jurisprudence and many other areas. Both were friends and mentors to Rick, and I'm sure that it means the world to him to follow in their footsteps. Rick is a prolific scholar and public commentator, a much-loved teacher, and a total mensch--and, last but least, an active blogger, both here and at Mirror of Justice. The honor is well deserved. Mazel tov, buddy!
Repost: First Annual Civil Procedure Workshop
The first annual Civil Procedure Workshop will be held at Seattle University School of Law on July 16-17, 2015.
Thursday, April 23, 2015
Forum selection, upside-down
The family of Michael Brown has filed a civil rights action against the City of Ferguson, the former Chief of Police, and Darren Wilson. The complaint is a bit confusing. It appears to assert multiple individual, supervisory, and Monell counts for Fourth and Fourteenth Amendment violations, including a claim for loss of familial relationship under the Fourteenth Amendment, as well as excessive force. The complaint goes after Ferguson's larger patterns-or-practices of unconstitutional behavior, describing events going back as far as 2010. At the same time, the introduction describes it as a wrongful death action under Missouri law for violations of the U.S. and Missouri constitutions, even though the state Constitution is never mentioned again and no torts (battery, whatever) are asserted.
It is noteworthy--and puzzling--that the family filed in state rather than federal court. There is nothing state-based about the legal rights actually asserted in the Complaint; this is a straight-forward § 1983 claim asserting federal constitutional rights. The idea behind federal question jurisdiction was to offer parties the expertise and respect for federal law and federal rights that federal judges offer, as well as the freedom to protect those rights that comes with Article III protections. And that idea takes on special importance when asserting constitutional claims against local governments and local government officials that only became possible with the Fourteenth Amendment, where federal judges are insulated from the local pro-government pressures that might work against civil-rights plaintiffs. Indeed, arguments against congressional jurisdiction-stripping always have fought against the bogeyman of plaintiffs forced to pursue federal constitutional rights against local government institutions before an uninsulated local judiciary.* Has federal judicial procedure--Twiqbal, summary judgment, limits on discovery--become so hostile to civil rights plaintiffs and so pro-defendant that plaintiffs would prefer to litigate against a local government in state court? Consider that the two biggest hurdles that § 1983 plaintiffs regularly face--qualified immunity and the heightened demands for making a Monell claim--follow them into state court anyway. So why pick state over federal in this type of case?
Addition: Note that I am assuming the choice was strategic rather than familiar. The three lawyers on the case include one attorney from Clayton, MO and two from Tallahassee. The web site for the latter two indicates that they largely specialize in personal injury and automobile accident cases, although Civil Rights is listed as a practice area. I cannot find anything about the local attorney (who has been in front of the media since the fall). If all three are primarily PI lawyers who primarily litigate in state court, the choice of forum might simply have been an automatic move rather than a deliberate choice based on specialized understanding of § 1983 litigation.
The interesting question is whether the defendants remove, seeing as how they might see themselves as being in an advantageous position in either court.
How Things Have Changed
Dunce that I am, I set too big a topic for our anniversary posts this week: how law teaching, and law schools, have changed since PrawfsBlawg got started ten years ago. That's a book, not a blog post.
And yet...Although one could say a lot about this topic, on second thought I wonder if things have really changed that much. The environment in which law schools operate has changed dramatically, to be sure. And there have been interesting innovations in plenty of places--some for the good, others perhaps not so much. There have been important changes in how one becomes a law professor, but I'm not sure that who becomes a law professor has really changed: it's more a case of same cohort, different route. And if one asks the fundamental, global question--have law schools, taken as a whole, changed significantly in the last decade?--I find myself more inclined to answer "no" or "not much" than "yes." In one sense this is not a surprise. One can always count on institutional inertia. At the same time, given all the changes that are arguably necessary, and all the incentives to change, I find myself struck, if not actually surprised, at how little transformation there has been on the whole.
I can't or at least won't try to justify that conclusion in any detail. Instead, let me offer a few bite-sized observations about interesting changes I have seen. I hope to have the energy and diligence to discuss several changes over several posts, but I'll start with just one. Perhaps the most interesting change, from my perspective as a teacher, is the backward-and-forward shifts in the student body that I have seen, especially since 2008. I taught Legal Profession, aka legal ethics, throughout this period. Unsurprisingly, it turned out to be the best of my classes for learning something about students' attitudes toward law school and legal practice, in a way that distinctly altered my approach to the course.
Law School Sustainability 2015
In late 2012, I put up a post entitled "Law School Sustainability." I argued that law schools had to think seriously about making legal education sustainable by making it a worthwhile endeavor for graduates. Two and a half years later, sustainability has become even more of an imperative than a choice. It is not an exaggeration to say that some schools are struggling to stay in existence, and that most schools have had serious challenges to their operations. This December 2014 NYT article provided not only an overview of this situation -- it also provided a source for law school deans in convincing university administrations (or, for stand-alones, their boards) that the problems at their particular law school were not unique. "See? Even Northwestern is having these issues!"
There are two blunt forces that are channeling the deluge of changes on law schools today: money and the U.S. News rankings. Money is pretty straightforward: a school needs enough students to pay enough in tuition to cover the costs of operating the school. Schools will have various abilities to cover shortfalls. But a school at least needs to pay for itself to be sustainable. So money is pushing schools to take more students at higher tuition rates -- or, to cut costs to make up the shortfall. U.S. News, however, pushes in almost the opposite direction. It puts pressure on schools to take fewer students, to pay more money per student in educational expenses, and to cut tuition to get better credentialed students. (Ted Seto made this point yesterday, in discussing tuition sustainability.) So schools have played the game of ping-ponging back and forth between these two forces, depending on their finances.
Additional thoughts on Wong and June and the FTCA
I have a SCOTUSBlog opinion analysis on Wednesday's decision in U.S. v. Wong (along with U.S. v. June). A divided Court (Kagan writing the majority, for Kennedy, Ginsburg, Breyer, and Sotomayor) held that the statute of limitations in the Federal Tort Claims Act is not jurisdictional and is subject to equitable tolling.
This is the right conclusion--both that the statute is not jurisdictional and that it is subject to equitable tolling. But I have some additional thoughts after the jump.
The First Amendment and the Redskins’ Trademark, Part II: A Shot Across the Bow from the Federal Circuit
The following post is by Christine Haight Farley and Robert L. Tsai (both of American); it is their second guest post on the Washington Professional Football Team trademark case. It is cross-posted at the Sports Law Blog.
On Tuesday, the Federal Circuit issued a unanimous decision (In re Tam) holding that the mark THE SLANTS was properly refused registration because it is disparaging to people of Asian descent. Since 2010, Simon Shiao Tam, the front man for the Asian-American rock band “The Slants,” has been trying to obtain trademark recognition for the name of his band. The record shows that the band picked the name by thinking of “things that people associate with Asians. Obviously, one of the first things people say is that we have slanted eyes.” The record of the case confirmed that “slants,” used in the way proposed, would likely be received as a racial slur.
The fact that the registrant wished to re-appropriate an ethnic slur and try to create a positive connotation did not alter the outcome. Nor was the Court troubled that the user’s own race formed part of the background for assessing the objective meaning of the mark in commerce. Both of these jurisprudential choices are consistent with the Federal Circuit’s approach to statutory interpretation, which strives for an objective meaning of trademarks in actual use. In our view, the private cooptation of illiberal ideas can generate terrific art and might very well help to change social meaning in the long run. But you don’t need trademark protection to engage in such projects of appropriation; indeed, granting one user legal protection might even stifle others who would like to experiment further with taboo ideas.
Wednesday, April 22, 2015
More IP Prawf Lateral Moves...
In addition to the four additions to Texas A&M discussed here, Scott Hemphill (Columbia) will be joining NYU Law (the announcement is here). In addition, Ann Bartow (Pace) will be joining the University of New Hampshire School of Law as the Director of the Franklin Pierce Center for Intellectual Property (this announcement is here). Congratulations!
A (very) brief note on law employment statistics
You, reader, are in the wrong place for the debate over how law schools should present employment data. Mike Simkovic has a long series of posts (I link here just to the latest, which in turn includes links to the earlier work), and Bernie Burk has weighed in here and here. To digest, Mike says that it is reasonable for law schools to report "unemployment" figures using standard BLS definitions, which include part-time workers and workers employed outside law as employed. Bernie says this is potentially misleading, since applicants probably also would like to know what share of the employed are full-time or in JD-required jobs. Mike notes that the definition of unemployment can be googled (probably by an 8th-grader, but he says "by a college graduate") pretty easily -- a step, I might add, that might reasonably be expected of someone who is relying on data to decide how to spend 3 years of their life.
I write this post, though, because for whatever reason Mike hides his best response to Bernie's point at the bottom of a long post: "There is a distinction between the potential for additional information to be useful and the stronger claim that summary information is inherently misleading."
CFP: Eighth Junior Faculty Federal Courts Workshop
The University of California, Irvine School of Law will host the Eighth Annual Junior Faculty Federal Courts Workshop on September 11-12, 2015. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. Confirmed senior scholars include, at this time, Erwin Chemerinsky (UCI Law), Evan Lee (UC-Hastings), Thomas Lee (Fordham), Carrie Menkel-Meadow (UCI Law), James Pfander (Northwestern), and Joan Steinman (IIT Chicago-Kent College of Law).
Tuesday, April 21, 2015
In the marketplace of ideas, Twitter has decided that online trolls are bad for business. Back in February, it was reported that Twitter's CEO Dick Costolo told staff "We lose core user after core user by not addressing simple trolling issues that they face every day." This statement suggested that keeping Twitter safer from abusers had become a corporate goal.
Recently, Twitter began to roll out changes that puts meaning behind Costolo's statement. Rather than asking the victim to track down an abuser, Twitter has flipped the script to test a new a feature to lock the abuser's account for a period of time. The account can be reactivated if the user provides a phone number verification, and then deletes all of the tweets that are in violation of terms of service. A screen shot of the procedure is below (and a text explanation is here on Ars Technica).
Additionally, Twitter's guidelines have been amended to broaden the definition of prohibited conduct to include "threats of violence against others or promot[ing] violence against others" (expanded from the “direct, specific threats of violence against others” in the former policy). In addition, the company is implementing measures to limit distribution of certain tweets that exhibit "a wide range of signals and context that frequently correlates with abuse including the age of the account itself, and the similarity of a Tweet to other content that our safety team has in the past independently determined to be abusive."
The sheer size and volume of Twitter's platform, and the types of distinctions that will have be made, make implementation of these standards a challenge. Of course, the platform is in the private sector, and these guidelines are a form a type of private governance. I wonder where this direction will take the company, what the impact will be on public discourse, and whether it will affect the behavior of other online platforms.
A Human Right to Intellectual Property?
The merger between trade and intellectual property, referred to as “strange bedfellows” in the 1990’s, has become the norm as a result of the WTO Agreement on Trade-related Intellectual Property Rights, and subsequent agreements. Intellectual property and human rights may seem like strange bedfellows as well. However, there is a greater connection between these two areas of law than one might imagine.
Article 27(2) of the Universal Declaration of Human Rights (UDHR) provides that “everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” The International Covenant on Economic, Social, and Cultural Rights contains similar language. A number of scholars have considered the relationship between human rights instruments and intellectual property rights (i.e. Helfer, Yu, Shaver, Land, Chapman, Carpenter, and others). Some (Chapman, for instance) have suggested that this UDHR provision provides a basis for a human right to copyright or patent protection.
Writing on corporations and the possible human right to intellectual property, I found myself reluctant to accept the notion of a right to intellectual property as a human right. I like the idea of considering the impact of intellectual property rights on human rights, as has been done in the access to medicines debate, for instance. However, I am generally uncomfortable with the notion of a human right to intellectual property. Equating the UDHR human right to a right to copyright or patent protection raises a number of issues, and I doubt that it is ultimately a good idea. However, I am willing to be convinced otherwise.
All is Vanity.
I’ve enjoyed the set of recent reflections on Prawfs’ astonishing ten-year run. Orin's great insights about blogging’s lack of internal credit & Paul’s characteristically wise post about the aging medium both hit points I would’ve written if I were faster on the draw, and smarter. Or perhaps not. Like Paul, I’m increasingly averse to writing about the medium, or about legal education itself. So these recap posts scratch an itch that perhaps ought to be left alone. Indeed, it feels far too often that most law blogging by professors is a less rigorous version of the Journal of Legal Education, or worse (?) an unending and unedifying list of law professor dean searches.
Why, I wondered, has the energy left the building?
- Because there are fewer fans. This is most of it. Prawfs started in the seven years of hiring plenty, and we’re now deep in the middle of the seven years of drought. There are many fewer young law professors than there were in 2005, and those few that remain are well-advised to keep their heads down and do what’s necessary to survive increasingly difficult internal climbs to tenure. Prawfs' and like blogs' rise had many parents, but a hiring glut has to take place of pride.
- Because of status and everything that comes with it. When Prawfs began it looked possible that academics from elite institutions would join the fray. That’s – by and large – not what happened. True, there are some faculty blogs at Chicago and elsewhere, and some subject-matter-specific blogs where elite academics occasionally deign to write. But very few academics from top ten schools blog regularly. That means: (1) blogs are still largely written by those who’ve not yet “arrived”; (2) bloggers generally work at schools with worse employment numbers, which makes them embarrassed to noodle in public; (3) it’s harder to move the needle on public conversations (excepting, as always, the VC, which is sui generis); (4) institutional support for blogging is resource-constrained. (See #5.)
- Because the party is elsewhere. You may have noticed that Concurring Opinions, my home, has been relatively quiet of late. But have you read Frank Pasquale’s twitter feed (7000+ followers). Or, better yet, followed Dan Solove’s LinkedIn privacy forum (~900,000 followers!!)? LinkedIn, Facebook and Twitter, etc. are where the action is. People read law professor blogs, by-and-large, to learn who has died, who is moving to what schools, and to guesstimate if their article will be accepted. Also, there are recipes.
- Because of preemption. Everything has been written before, including this sentence. Law professors care more than most about preemption. The weight of past posts is starting to press on our heads, no?
- Because we didn’t innovate. Again, generalizing, blogs have remained stagnant in form. That wasn’t inevitable. But even blogs about cutting edge topics are conventionally organized. Economy plays a large role here – as do law schools’ IT support, which has other fish to fry. Just a for-instance: compare Stanford Law’s fantastic landing page to a blog they’ve nested inside. Get the sense that the money for the renovation started to run out at some point? Being stuck in a reverse-chron, wordpress, format has meant that symposia can “disorienting” and unwelcoming to outsiders. At Temple, I’ve been pushing hard against the trend, and we’ve started a business law newspaper using Hive, a nice wordpress-based platform that at least looks fresh. But if law professors wanted to be unconventional, technologically-savvy, innovators, they wouldn’t have become law professors.
All of this makes me feel wistful, because I remember when Prawfs (and Co-Op) started and the medium felt both transformative and exciting. Blogging has been amazing for me professionally. A post – and Dan Kahan’s generosity in response to it - got me involved with the cultural cognition project. Many other articles started as half-baked pieces of dreck at various blog homes. It’s also been great personally, as I met many of my better friends in the academy through Prawfs or CoOp or the Conglomerate, making conferences less overwhelming, and knocking down disciplinary and subject-matter barriers.
But all things change. I am optimistic about the future of law, the legal academy, and public conversations about both – I just don’t think the future will be blogged.
Dan Markel could be an exhausting friend, and I didn’t always have the energy to talk with him. In the weeks before his death, I’d put off a conversation long overdue. On July 17, 2014, I texted him to prompt that phone call, asking “what’s new with you.” Later that day, he texted back, writing, “Lots. Will call shortly.” I’m sorry we didn’t get to have that call. I’m sorry that he’s not around to celebrate this anniversary. He would’ve found my pessimism about professor blogging silly, and would have, I think, expressed enthusiasm and optimism I don’t currently feel about the future of Prawfs and law blogging more generally. Even if I'm right - and the glory of blogging is behind us - it's still worth recognizing that Prawfs has chugged along for a decade, adding tremendous value in the academy, largely because of his initiative and spirit.
Monday, April 20, 2015
Johnson Argument on Vagueness—and Plea Bargaining?
Today the Supreme Court held argument on whether the residual clause of the Armed Career Criminal Act is vague, not vague, or subject to a saving construction. Early on, Justice Alito asked a question that I think is at the heart of the case--namely, “whether the statute is unconstitutionally vague or whether this Court’s interpretations of the statute create the basis for a vagueness argument?” Or, as I’ve put it before, Who made a vague law vague? (For his part, Justice Alito seemed skeptical that "a statute [can] be vague simply because this Court messes it up.")
In this post, I will set aside the main vagueness debate to highlight a surprising aspect of the argument: the Chief Justice’s concern about prosecutorial overreaching during plea bargaining. This issue is becoming a theme for the Chief—and could have important implications.
Chanel and Mrs. Jones
Last fall, fashion house Chanel filed a trademark action against hairstylist Chanel Jones (discussed here at The Fashion Law), to prevent Jones from using her first name in connection with her business. The case was notable given the relative size of the parties and the distance between their markets--Jones' hair salon is in Merrillville, Indiana, which seems more than a stone's throw from the Rue Cambon in Paris which Chanel calls home. Why bother?
Moreover, the press' attention was undoubtedly caught by the fact that the company filed suit against an owner using her first name for her business, which is a common practice for personal service concerns. As Gene Quinn remarked in a different context, "How crazy would it be if you couldn’t even use your own name on your store front?" Well, as this survey of the case law by Christopher Bussert points out, in the past courts have enjoined companies from using their founder's name on their products and/or services when a senior (read: prior) user has established rights to the same name.
As background, since the 1960's, Chanel (or alternatively Shanelle) has become an increasingly popular first name.
A Few Thoughts on Johnson v. United States and the Void for Vagueness Doctrine
While most Court watchers are gearing up for the same sex marriage cases, I’ve been eagerly awaiting this morning’s argument in Johnson v. United States. Johnson is an odd case. The Supreme Court originally granted cert on the narrow issue whether possessing a short-barreled shotgun qualifies as a violent felony under the Armed Career Criminal Act. The parties briefed that issue and argued it before the Court. But then, rather than deciding the case, the Justices set the case for re-argument and asked the parties to brief whether a portion of the ACCA is unconstitutionally vague.
Over at SCOTUSBlog, Rory Little has a very good overview of the case. He also summarizes the Solicitor General’s brief on the vagueness issue, calling it a “tour de force.” I agree with Little that the government’s brief is quite good. But I wanted to take a quick minute to articulate what I see as a relatively significant oversight in the Solicitor General’s analysis.
ADA at 25, Chicago style
On Friday, I had the good fortune of attending the kick off event for ADA25Chicago. There are a lot of celebratory events and academic conferences planned this year commemorating the 25th anniversary of the ADA, but this was different. It brought together politicians (including Dick Durbin and Tammy Duckworth), corporate figures (including the President/COO of Motorola, where the event was held), and civic leaders (including representatives of the Chicago Community Trust), as well as state and local government. These individuals did not just give speeches, but expressly set the stage for actual commitments.
The organizers had already gathered pledges from Chicago civic organizations and employers to establish programs to advance opportunities for people with disabilities, to create programs within six months throughout the region to increase civic engagement around disability issues, and to develop lasting “legacy projects” around the key themes of employment, education, and community living for people with disabilities. ADA25Chicago has already planned a visible presence sponsoring events at Chicago’s many summertime festivals and cultural events (disability awareness, good food, and craft beer? Count me in!). And there are specific plans in place to hold these groups publicly accountable for their commitments.
I posted earlier about the disconnect between how those inside and outside the disability rights community view disability issues. ADA25Chicago is one of the most sophisticated efforts I have ever seen to address that gap. By gathering elites, and creating a plan to mobilize and hold their feet to the fire on accountability, this was a really exciting beginning. I really look forward to watching how this all unfolds.
Anniversary Topic # 3: How law teaching and law schools have changed
Topics might include:
• Changes in the profession.• Trends in scholarship or teaching• The law school "crisis"• More specifically, how were things different between the period before 2008, the economic period of crisis (including law school crisis) around 2008-2012, and the post-2012 era, in which there is still crisis but many or most students entering law school are well aware of it. I find a great difference between students who entered or graduated between 2009 and 2012 or so, who came to law school with one set of expectations and left them with very different expectations and often no job, and were embittered by it, and the newest students, who have a more pragmatic and much more chastened set of expectations and goals around law school.• How different these changes are from changes in the rest of the academy, or whether the law school exceptionalism about this is not actually so great. In this I'd be especially interested to hear from guests or permanent bloggers with PH.D.'s or connections to other disciplines and faculties, who can talk about their experience in both law and some other faculty or sector of the academy.• Changes in civility and in your dealings with students, commenters, and others.• The rise of the VAP and other fellows.
Sunday, April 19, 2015
Legal Academic Blogging and Influence vs. Credit
Back in 2005, I predicted the following future for academic law blogging:
A continued increase in the overall amount of law blogging until we reach a natural equilibirum, and then a roughly constant amount of blogging with frequent turnover among active law bloggers. Here's my thinking. Right now law blogs are pretty new, and the number of law bloggers is increasing. But it's much easier to start a blog than to keep it up. A typical post might take an hour or so to research, write, and edit. And the better and more thoughtful the post, the more time it takes. Only so many people are willing to put in those hours on a regular basis, and members of that
twistedelite group presumably will change over time, too.
Among law professor blogs, the big variable would seem to be whether blogs eventually will be taken more seriously in the scholarly community than they are now. Right now most lawprof bloggers do it for fun, but don't consider blogging "real work." If this changes, I think it will transform the nature of law blogs considerably. Whether that would be a good thing or a bad thing is an open question.
I think the prediction in my first paragraph mostly came true, and pretty quickly, although there has been somewhat less turnover than I expected.
As for the "big variable" of the second paragraph, I think the answer depends on what it means for blogs to be "taken more seriously." Over time, we have learned that lawprof blogs are great for influence but not for credit. By "influence," I mean influence on debates both within legal academia and in the broader legal and judicial community. A lot of people read blogs. Legal blogs can help shape how those communities think about particular legal problems. We saw that possibility in 2005, and I think that potential has been often realized in the decade since. In that sense, blogs are now taken seriously.
On the other hand, it turned out that lawprof blogging doesn't generate much internal credit within the legal academic world.
Deferred Prosecution Agreements: Right Problem, Wrong Fix
Yglesias has a good write-up of the problems with regulating big financial firms, but he (and Elizabeth Warren) get to the wrong solutions.
Lateral hires and PrawfsBlawg
Brian Leiter's updated list of tenured lateral moves features several from the Prawfs community. Steve is going to University of Texas in 2016 (where he and former GuestPrawf Bobby Chesney will have the national security market cornered). Current guest Brian Galle is moving from BC to Georgetown. And another former GuestPrawf, Aaron Bruhl, is headed from Houston to William & Mary.
Congratulations and good luck to all.
When blogging (and bloggers) get old
I explained in my first symposium entry how I have used blogging in my time here. Although I have not gone back to review seven years of posts, I do not believe my writing here has changed all that much either in quantity or in content (law v. life, serious legal issues v. pop-culture asides).* This may be because I have not taken on as many administrative responsibilities as Rick and Paul have (I have never served as an associate dean, for example), so I have not lost the time to devote to writing here. And since I wrote less about legal education and law schools than Paul did, I probably became less disillusioned than he by the tenor of the discussion.
* Although to be frank, I have written so many posts here that I do not remember a lot of what I have written. I have on occasion reviewed old posts and thought, "Did I write this? And did I really mean that at the time?"
Saturday, April 18, 2015
Eleventh Circuit flunks Civ Pro
We just started Erie last week and one of my students found this Eleventh Circuit decision from March. The Erie analysis (at pp. 25-31) is so utterly ridiculous and facile as to make me wonder if any of the judges (or their clerks) ever took Civ Pro. (Note: The conclusion is right; it's the analysis that would warrant an F on an essay exam).
An Appreciation of Legal Blogging (and Twitter!)
Last month, I had the pleasure of being a guest blogger here. This month, I have read with interest and surprise the recent lamentations of legal blogging posted by some of the founders and earliest adopters of the medium. I was particularly affected by Paul Horowitz’s post on PrawfsBlawg. His comments on anonymous commenters seem particularly thoughtful and apt. On the other hand, I felt myself defending (in my own head) blogging and Twitter culture while reading his criticisms.
As a junior scholar, I have found the opportunity to read PrawfsBlawg immensely gratifying and educational. I write and think about criminal justice. I am willing (if not happy) to admit that the volume of dense and rigorous scholarship I want to and must consume in order to write my own articles essentially prevents me from reading important, rigorous, and dense scholarship in other areas – first amendment law, education law, and international law, just to name a few.
But, while I can’t find the time to read 25,000 words about, say, the right to privacy versus the first amendment right to expression, I can certainly read and digest Amy Landers’ recent post about a New York Appellate court’s dismissal of a complaint against a photographer for invading the privacy of children when he shoots “from the shadows of [his] home into theirs.” I might even click on the hyperlink she provided and read the decision.
"Get off my lawn!" -- or, how (my) law-blogging has changed
I like the title of Paul's 10th anniversary, "How has blogging changed?" post better than the one I chose. (Maybe I should have gone with this, from Grandpa Simpson.) And, I think Paul captured well a lot of what I wanted to say, at least with respect to the question "how has my blogging changed."
I started blogging, at Mirror of Justice, in 2004 (and came a bit late to the Prawfsblawg crew). I used to post more often, and about more things. I'm not sure why, but tenure, promotion, and a stint in administration seem to have coincided with (even if not caused) a kind of narrowing. As Paul discussed, I think I'm more reluctant than I was before 2008 to blog about our law-teaching vocation, at least in part out of nervousness about being flamed in comments or elsewhere for being self-indulgent or omphaloskeptical. And, I think I'm more hesitant than I was when I started about addressing politically charged, "hot button," or "culture war" issues of the day, including the law-and-religion area in which I write. This trend puts me in a bit of a bind: I'm getting uneasy and hesitant about blogging about (a) what I do and (b) what I write about. I'm not sure what's left . . . Duke basketball (or Notre Dame football)? Adverbs (and here)? Skyscrapers?
But that's just me. How has blogging, or law-blogging more specifically, changed? Dave's right, I think: It's become, in various ways, more "serious." There's maybe a chicken-and-the-egg dynamic here: Once the Supreme Court cited law blogs, helping to validate them as more than just vehicles for doodles and musings, it became possible -- and then, perhaps, expected -- that blog-content would shift toward being the kind of stuff that could be cited by the Supreme Court. Thankfully, over the last ten years, other outlets have proliferated for the doodles, musings, clever quips, and ironic bon mots -- Twitter, Instagram, and (for the oldsters among us) Facebook. I suppose, before long, these will be transformed by respectability, too, and we'll have to work harder on crafting Robert Jackson-esque (or KimKierkegaardashianian) tweets.
Friday, April 17, 2015
Reflections on Prawfs at 10: taking seriousness seriously
Inspired by Paul’s typically thoughtful and comprehensive response to the question Howard posed for this week—How has law blogging changed in the past ten years?—I’ll offer some much briefer reflections on this issue. One impression I have about how blogging has changed in the legal academy at least is that is has become more serious, both in the sense that people take it seriously and that the medium itself is more serious. The first trend is probably good but I’m less sanguine about the latter, as I explain below the jump.
No Country for Old Men: Blogging After a Decade
On this tenth anniversary of Prawfsblawg, I'd also like to think and talk a little about how blogging has changed in that period, at least from the perspective on one blogger. My answer is " it has changed for the worse," but I admit up front that much of this has to do with my own experience, and the simple fact of doing it for ten years.
Thursday, April 16, 2015
Measuring the Impact of Faculty Scholarship
Given the intensity of the reactions folks had about how to measure productivity, I’ve been a little hesitant to post my thoughts on impact.
So, in addition to the qualifications I previously mentioned, let me add that I think it may be impossible to quantify the impact of legal scholarship. Indeed, I am uncertain how one goes about quantifying the impact of most things. We could, for example, obviously state that the Mona Lisa has exerted a greater influence on art than the shabby art projects that I completed and my mother hung on our refrigerator. But can we assess the impact of the Mona Lisa as compared to the ceiling of the Sistine Chapel?
To put this in terms of legal scholarship, I can confidently say that Holmes’ The Path of the Law has exerted a greater impact than any article that I have ever published (or will ever publish). But how can we compare The Path of the Law to, for example, Warren & Brandeis’ The Right to Privacy? We can count how many citations each article receives in Westlaw’s JLR database, we could count the court citations each has received, and we could even ask a bunch of respected law professors to vote which article they believe had a greater impact. But the fact that Holmes’ article has 3,322 cites in JLR, while Warren and Brandeis have only 2,451 doesn’t seem to settle the question---or at least it doesn’t settle the question for me.
In any event, assuming that we have to come up with some way to measure impact---and that is a major premise of academic analytics---I suggest that we quantify the following for each faculty member:
Ice cream Court of the United States
I missed this suggestion from a few weeks ago that Ben & Jerry's needed to name some flavors after women. Two proposals after the jump: Ruth Bader Ginger and Sonya [sic] Sotomayoreo Mint Cookie.
Multiple choice and formative assessment
The following is by Ben Spencer (Virginia) and is sponsored by West Academic.
The forthcoming ABA standards require law schools to pay better attention to how they assess student learning. Such assessment can not only measure student achievement after the conclusion of a unit or course (summative assessment), but can also be used as a tool to enhance the learning of the material throughout the course (formative assessment). Formative assessment permits students to determine their own level of understanding at a point when they can improve before the final exam and permits the instructor to discover areas of student weakness at a time when further training can still occur.
Wednesday, April 15, 2015
The Yale School of Law and Super-Parenting
In case you were feeling accomplished for having gotten the kids to school on time this morning, Heather Gerken has written nine YA vampire novels for her tween daughter. Gerken reports that her daughter "was never impressed that I was working full time, part of a two-career household and still outpacing J.K. Rowling by a considerable margin." My favorite line of the article: "The women [in the book] are ambitious and career-oriented, and some have the emotional I.Q. of a tree frog."
Gerken joins fellow Yalies Ian Ayres and Amy Chua in showing us the ways to channel our inner achievers into the more mundane joys of parenting. Ayres promised his children a puppy if they wrote and published an article in an academic peer-reviewed journal. Lo and behold, they did. And now they have Cheby, named for the mathematician that discovered Chebychev‘s inequality. In January we got an update from the Tiger Mother herself as her teenage daughters sleep past noon. I appreciate the introspection in constructing a pretty incisive self-parody, but since her shtick is how extreme she's willing to be, self-parody and honest reportage are a little difficult to differentiate.
Intellectual Property Conversations: International & Domestic
I think it is fair to say that international intellectual property is generally seen as distinct from general (i.e. domestic) intellectual property (IP), both in terms of scholarship and teaching. Thus, from what I gather, international intellectual property panels tend not to draw huge crowds during the annual IP scholars meetings. However, I see a fair amount of overlap between general IP scholarship and the international IP issues that some of us tend to explore. Among others, I see overlap when it comes to questions about the role of IP, the scope of IP rights, and whether the current international model and the mandated levels of intellectual property protection align with societal goals.
Writing international intellectual property scholarship requires an understanding of international law, and trade law in particular. This is due to the merger between trade law and intellectual property law that came about as a result of the World Trade Organization Agreement on Trade-Related Intellectual Property, commonly referred to as TRIPS. Post-TRIPS, there have been a number of other “trade-related” agreements that aim to protect intellectual property rights in the global arena. In addition to various bilateral trade agreements and investment treaties, there are multilateral agreements that have chapters or provisions on intellectual property. These include the Anti-counterfeiting Trade Agreement, the Trans-Pacific Partnership, and the Trans-Atlantic Trade and Investment Partnership. The two latter agreements are currently being negotiated.
There are complexities to the international discussion insofar as it involves some analysis of international legal obligations. However, the intellectual property aspects often address similar issues to those raised by some of the domestic scholarship. The articles discussed by Amy Landers and Dave Fagundes in their recent posts, for instance, are pertinent to some of the recurring themes in international intellectual property scholarship. Both international and domestic scholars might ask: what is the utilitarian calculus, and is society being well served? If not, is there some assumption (i.e. “faith”) that IP rights must be protected due to some natural entitlement? If so, is this beneficial to society or just to the IP producer?
Those of us who write primarily on international IP issues can, and do, draw on domestic IP scholarship for our analysis of international issues. In this globalized economy, maybe it’s time for international IP scholarship to become more integrated into the mainstream so that there can be a greater exchange of ideas between general IP and international IP scholars. Making connections between domestic and international IP, where possible, can only enrich the conversation.
Disability Discrimination and Family Law
Tomorrow, the Second Circuit will hear arguments in Forziano v. Independent Group Home Living. Paul Forziano and Hava Samuels lived at different group homes in New York. Paul is 31 and in the mild-to-moderate range of intellectual disability; Hava is 37 and in the moderate range. After meeting, falling in love, and dating for six years, they decided to get married. Their parents were supportive of their decision.
They requested that they be allowed to live together as a married couple in one of their group homes. This request was refused. Over time, various explanations were offered, including that the group homes were not adequately staffed to support the married couple with the dynamics of their relationship, that home designs could not accommodate married couples, and that the request was unprecedented. These reasons were generally shown to be inaccurate. Other explanations more explicitly ran through the opinions of medical and rehabilitation personnel that people with intellectual disabilities generally, and Paul and Hava specifically, should not be getting married (despite the fact that their right to do so was protected by state law). Paul and Hava did get married, and were forced to live 3 miles apart from each other. Only after filing a lawsuit were they able to find a place in a group home together. The trial court denied all of plaintiffs' claims for relief, holding, amongst other things, that plaintiffs had been treated differently because they wanted to get married, not because they had disabilities.
In a series of recent papers, I have suggested that disability has lower political salience than some other movements and/or issues (like marriage equality, the civil rights movement, abortion, or even gun rights). By this I mean that people care about these issues, and vote based on them, in a way that they simply do not for disability. Disability has generally stayed out of the culture wars. Inside the movement, disability is thought about in civil rights terms. Outside, not so much.
The Fifth Circuit Jumps the Non-Article III Shark
A big thanks to Will Baude for alerting me to yesterday's fascinating decision by the Fifth Circuit in United States v. Hollingsworth, in which a divided panel upheld the constitutionality of a non-Article III magistrate judge trying without the defendant's consent a petty criminal offense committed on a "federal enclave." Hollingsworth is a great case for federal courts nerds, because it brings together two different threads of the Supreme Court's jurisprudence regarding non-Article III federal adjudication: (1) Congress's power to relegate certain matters to non-Article III magistrate judges; and (2) Congress's power to relegate certain matters to non-Article III "territorial" courts. Unfortunately, Hollingsworth combines these threads in a manner that utterly confuses them. Thus, although the panel reached what in my view is the right result, it did so for deeply flawed reasons, which I elaborate upon below the fold.
Diversifying Startup Funding Sources
As someone interested in the growth of new ideas and innovation, I'm very interested in the financial infrastructure required to undertake creative activity. Although there is a high level of disagreement about the appropriate legal incentives needed to create new medicines, new technologies, new films and works of art, at a certain point there can be little dispute that time, resources, and dollars are required to create and ultimately bring products to market. Indeed, some work in the economics field has considered that the U.S.'s venture capital funding system has been a major factor to this country's ability to develop groundbreaking solutions. All puns aside about Snoop Dogg's recent decision to provide seed funding for weed startups (sorry! someone had to say it), there appears to be no limit to the types of funding sources.
For example, there has been a spate of recent press about mutual funds who are quietly beginning to provide startup funding in exchange for private stock. According to The New York Times, the growth potential of startups has attracted funding from more conservative sectors who are attracted by success of companies with high valuations including Uber, Airbnb, and Pintrest. Of course, there are limitations on the level of risk that these funds will tolerate. Balance is everything--according to the piece, "Fidelity’s Uber stock, for example, represents less than 1 percent of each fund’s total holdings."
I cannot help but wonder at the role that these funds will play to the overall management and direction of startups. Innovation isn't all about the money. Some of the value that many venture capitalists provide includes making introductions, advising, pointing out potential pitfalls and professionalizing operations. It isn't clear from the press whether mutual funds are providing these same benefits, although it may exist. Moreover, it may be that the mutual funds' decision to invest in more mature startups will alleviate this issue.
Nonetheless, in my view it is a very positive development to see more dollars moving toward the creation of new businesses. I am hopeful that some of this work will result in more invention, research, innovation and all of the benefits that those things can provide.
An End to “One Size Fits All” Procedure?
The following is from former (and future) GuestPrawf Jordy Singer (New England)
That’s the upshot of a new report issued today by the American College of Trial Lawyers Task Force on Discovery and Civil Justice, and the Institute for the Advancement of the American Legal System. The ACTL and IAALS collectively call for a new civil procedure regime characterized by fact-based pleading (for both plaintiffs and defendants), sharp discovery limits, case-specific rules and protocols, and extensive judicial management.
Some details on the proposals, and a few thoughts on what it all means, after the jump.
Tuesday, April 14, 2015
The Moral Psychology of the Fair Play, Fair Pay Act
Yesterday, four members of Congress introduced the “Fair Pay, Fair Play Act,” a bill that would entitle owners of copyrights in sound recordings to recover royalties for radio airplay of those tracks on terrestrial radio stations. That performers don’t receive such royalties may seem surprising, but it’s just one of many strange outcomes generated by the statutory labyrinth that is the Copyright Act.
At first blush, the rationale for such a revision seems simple and appealing. Performers work hard to create sound recordings, so when radio stations broadcast those recordings, why shouldn’t they get paid? After all, the songwriters who wrote those tunes get a royalty each time they are played. But upon closer examination, this rationale is more puzzling. The purpose of copyright law, expressed in the Constitution, is to promote the progress of science and the useful arts (including creative innovation) by means of financial incentives secured by exclusive rights in authors’ works of authorship.
Copyright’s incentives story may explain the FPFPA going forward (performers may be more likely to create future sound recordings if they can expect more remuneration via performance rights), but this account cannot make sense of the retroactive application of the law to already-created songs. And much of the industry force behind the act comes from performers who recorded older, classic tracks who feel aggrieved that they have not gotten royalties from their hit recordings for decades.
So if incentives cannot explain this sense of entitlement to recover additional royalties for past creation, what does? One account may lie in Mark Lemley’s snappy new essay, Faith-Based IP, discussed by Amy Landers in her earlier post on this site. The musicians and Congresspeople behind FPFPA may simply be relying on the notion that copyright owners have pre-political rights that should be recognized regardless of whether the existence of those rights would drive innovation, or even regardless of whether those rights would generate social welfare. At the surface, this may be a plausible account, but I want to propound a different account, one that draws on a forthcoming paper I co-authored with Chris Buccafusco, The Moral Foundations of Copyright Infringement. I elaborate this alternative theory below the fold.