Monthly Archives: February 2012

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Law in the Books vs. Law in the World: The Case of Copyfraud

Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford Law Books, 2011).

So what does my frustration with the New York Mets have to do with copyright law?  A surprising amount.  And I say this even though the Mets have done a lot of things to make life difficult for their fans.  Over the years, I’ve watched my ballclub pay insane money to a series of pitchers who could not pitch, hitters who could not hit, managers who could not manage.  I’ve endured a seemingly endless string of Subway Series failures against the hated Yankees. I’ve celebrated the demise of the awful Shea Stadium, only to see it replaced with a new ballpark named for a bank that combined greed, arrogance, and ineptitude at a scale nearly sufficient to destroy the American economy.

And yet, from an IP geek like me, the ways in which the New York Mets have abused the copyright laws of the United States are even worse. Continue reading "Law in the Books vs. Law in the World: The Case of Copyfraud"

 
 

A Modest Proposal on Preservation

William Hubbard, Preservation Under the Federal Rules: Accounting for the Fog, the Pyramid, and the Sombrero, available at Lawyers for Civil Justice.

William Hubbard’s Preservation Under the Federal Rules: Accounting for the Fog, the Pyramid, and the Sombrero is an elegant, important, and provocative argument about what the Federal Rules of Civil Procedure should say about duties to preserve documents and electronically stored information. And it could not be timelier. The Judicial Conference’s Civil Rules Advisory Committee is actively considering rules that, for the first time, would expressly address preservation obligations and the consequences of not doing so. This effort is driven by a perception that—at least for a small percentage of the federal caseload—preservation burdens have contributed to spiraling costs in civil cases. Hubbard joins a distinguished list of authors who have written about preservation issues, but his paper seemed to attract the attention of a number of rulemakers at the Civil Rules Advisory Committee’s most recent meeting in November 2011.

Many have argued that the current Federal Rules, which are mostly silent on preservation obligations, need to be revised to expressly address preservation issues. As for what a federal preservation rule would look like, discussions have largely centered on three main questions: trigger (when does the duty to preserve arise), scope (what types and sources of information should be subject to preservation) and sanctions (what are the consequences of failing to preserve). Hubbard offers policy suggestions for all three. Continue reading "A Modest Proposal on Preservation"

 
 

Public Criminal Law at its Best

Guyora Binder, Making the Best of Felony Murder, 91 B. U. L. Rev. 403 (2011). available at SSRN.

“Making the Best of Felony Murder” is the culmination of a series of articles (and one book review essay) that have addressed the felony murder rule in American states and precedes a monograph to be published by Stanford University Press later this year. [The Origins of American Felony Murder Rules, 57 Stan. L. Rev. 59 (2004) (ssrn); The Culpability of Felony Murder, 83 Notre Dame L. Rev. 965 (2008) (ssrn); Meaning and Motive in the Law of Homicides, 3 Buff. Crim. L. Rev. 755 (2000); Felony Murder (Stanford University Press, forthcoming 2012).]  Binder has saved the best for last, and offered us not only a reading of the felony murder rule destined to help wake us up from a particularly telling pedagogic mystification, but a model of history and political theory as analytic tools for reconstructing doctrine.

Throughout this project, Binder challenges the view that felony murder rules are an archaic survivor of a hoary English common law approach to homicide liability (and criminal liability more generally) which endure in contemporary law despite clashing severely with the principles of modern criminal law liability because of their popularity with elected legislatures and prosecutors.  In addition to being a core “lesson” in first year criminal law classes, this view of felony murder arguably anchors a broader modernist conception of criminal law theory first laid down in the 1930s by criminal law scholars such as Herbert Wechslerand Roland Perkins, and refined in our era by giants such as our own Sandy Kadishand Frank Zimring. Continue reading "Public Criminal Law at its Best"

 
 

On (Not) Explaining Law’s Reason-Giving Power

David Enoch, Reason-Giving and the Law in Oxford Studies in Philosophy of Law, (Leslie Green & Brian Leiter, eds., Oxford University Press, 2011), also available at OUP Proofs.

A number of prominent legal positivists in recent years (including Jules Coleman and Scott Shapiro) have taken it as an urgent project – and have taken it as their project – to “explain law’s normativity.”  By that, they report that what needs to be explained is the way that law gives us reasons for action.  There is always something a little ironic when legal positivists try to explain the normativity of law, for it is generally considered to be foundational to that approach to law that it denies any necessary moral content to legal systems in general or valid legal norms in particular.

In “Reason-Giving and the Law,” David Enoch has worked as much to “deflate” the problem of law’s reason-giving as to resolve it. His basic point is that there is nothing that remarkable about the giving of reasons for action. Continue reading "On (Not) Explaining Law’s Reason-Giving Power"

 
 

Feminist Judgments

Rosemary Hunter, Claire McGlynn and Erica Rackley eds. (2010) Feminist Judgments: From Theory to Practice (Hart Publishing, Oxford).

‘Before rules, were facts: in the beginning was not a Word, but a Doing. Behind decisions stand judges; judges are men; as men they have human backgrounds.’ (Llewellyn 1931, p. 1222) Gender-neutralised, the sentiments contained in Llewellyn’s famous words and the article which they introduce still hold – the human background of judges is important, and ‘doings’ or ‘tangible realities’ rather than words and abstractions, are what makes law dynamic, purposeful, and responsive (if slowly) to an even more dynamic social context.

How, then, might law be different if judicial decisions were routinely made by feminists? What would a ‘female-gendered mark on the law’ actually look like? (p. 8). Feminist Judgments: From Theory to Practice begins to answer these (and other) questions. It presents twenty-three alternative feminist judgments for actual cases, and commentaries to accompany the cases, written by feminist academics and activists. All of the cases were decided in England and Wales, and most (though not all) were decided relatively recently and reflect current law. The idea of re-writing judgments from a feminist perspective has a Canadian precedent in the Women’s Court of Canada (see Majury 2006) while the idea of rewriting judgments (not necessarily feminist) has a US precedent in two books edited by Jack Balkin (2002; 2005, but see Majury 2006, n14). Whereas the Canadian cases focus on equality jurisprudence under the Canadian Charter of Rights, the cases in Feminist Judgments deal with a very broad range of legal matters: consent to medical treatment, same-sex marriage, capacity to marry, the defence of provocation, refugee law, manslaughter by neglect, trespass to property, custody to children under family law, pregnancy discrimination, consent to bodily harm, evidence and many more. Some of these areas are framed by British and European equality and human rights law, but many rely on development of the common law or interpretations of statutory provisions. Some of the judgments affirm the decision made in the existing case but do so using a different reasoning process, while others reject the original decision. Continue reading "Feminist Judgments"

 
 

The Boundaries of Legal Professionalism in England & Wales

As a current PhD student, whose research interests include legal professionalism and large law firms, I wish Andrew Francis’ latest book had been written several years ago. In just 228 pages, the book positively canters through many of the research themes I spent months compiling for my own literature review.

For example, by the end of chapter one, a novice reader will be made aware of the size, entry routes and recent reforms to the English and Welsh legal market, to name but a few topics. By the end of the first page of chapter 2, the reader will be introduced to many historical, and current, writers on a range of issues relating to legal professionalism – no mean feat in a mere 20 pages. Continue reading "The Boundaries of Legal Professionalism in England & Wales"

 
 

Public Pension Plan Problems

Amy B. Monahan, Public Pension Plan Reform: The Legal Framework, 5 Educ., Fin. & Policy 617 (2010).

One of the more noticeable effects of the on-going global financial crisis is the increased attention being paid to the amount of money being spent by state governments on public pension plans. Unlike private sector pension plans, which are governed by the federal Employee Retirement Income Security Act of 1974 (ERISA), public pensions are instead covered by a vast array of complex state laws and regulations.  So while most people are pointing out that something must be done about the burgeoning public pension funding deficits, many have been stymied about how to undertake the amendment of these plans in a legal fashion.

Part of the problem is that states have adopted different legal theories to protect public pension rights. To some states, pension rights are property rights, while in other states, pension rights are contractual in nature.  Still a few states adhere to the traditional approach and see public pensions as mere gratuities.  In any event, and as many states have found out much to their dismay, the business of amending a public pension plan is a tricky one, filled with legal minefields. Just ask the states of Colorado, Minnesota, and South Dakota, which have been all sued after seeking to reduce the annual cost-of-living- adjustment (COLA) for current retirees.

All this chaos in the public pension plan world requires some ordering principles. At least as far as organizing states’ various legal approaches to public pension plans, Amy Monahan’s paper, Public Pension Plan Reform: The Legal Framework, does exactly that.  Understanding that many states are either currently going through a process, or contemplating a process, to amend their public pension plans to save money in these difficult economic times, Monahan first explains the difference between private pension plans and public pension plans, and then effectively explains the primary legal approaches states have taken to protect public employee pension rights. Continue reading "Public Pension Plan Problems"

 
 

The Failings of Donor Intent

In his May, 2011 article, Who Are The Beneficiaries of Fisk University’s Stieglitz Collection?, Alan L. Feld presents an intriguing case study. Charitable giving is not new, nor are the issues of donor standing, beneficiary standing or the doctrine of cy pres.  In fact, the issues arising from the obsolescence or dis-utility of charitable gifts recently have captured the attention both of the general public and the academy.  Professor Susan N. Gary’s article entitled, The Problems With Donor Intent: Interpretation, Enforcement, and Doing the Right Thing, 85 Chi-Kent L. Rev. 977 (2010) presented a comprehensive analysis of the legal issues implicated in a variety of noteworthy failed charitable gifts.

By focusing on the Stieglitz Collection, a muti-million dollar collection of artwork housed and maintained at Fisk University in Nashville, Professor Feld’s article serves as an important complement to the somewhat longer piece by Professor Gary.  Professor Feld raises important issues including the role of the state’s attorney general in overseeing charitable trusts, fidelity to the all too often enigmatic intent of the donor, the tension between the doctrine of cy pres and literal interpretation of conditions on gifts, the importance of determining the charitable beneficiaries, and questions of who has standing to sue to enforce charitable purposes.  Professor Feld presents compelling reasons for expanding the legal standing of the beneficiaries of a charitable trust. Continue reading "The Failings of Donor Intent"

 
 

Superfriends of the APA

• Comments on H.R. 3010, The Regulatory Accountability Act of 2011, submitted by the ABA Section of Administrative Law and Regulatory Practice to the House Judiciary Committee (Oct. 24, 2011).
• Testimony of Sidney A. Shapiro (University Distinguished Chair in Law, Wake Forest School of Law; Vice President, Center for Progressive Reform), Hearing on H.R. 3010, Regulatory Accountability Act of 2011, House Judiciary Committee (Oct. 25, 2011).

In early December 2011, the House passed two alarming bills that, if ever enacted, would wreak havoc on the rulemaking process.1  On December 7, it passed the REINS Act—the acronym stands for “Regulations from the Executive In Need of Scrutiny.”  This bill is simple in its design, requiring congressional approval for regulations that have an economic impact in excess of $100 million.  Considered as a reform of the rulemaking process, it has the honest virtues of a clean kill—a bullet to the head.  Less than a week before, on December 2, the House passed the Regulatory Accountability Act (“RAA”).2  The RAA would cripple rulemaking by adding dozens of new procedural and analytic requirements to the process.  These requirements include, among many other things, extensive cost-benefit analysis at multiple stages of the process and even formal rulemaking for “high impact” rules.  Yes—that’s right, formal rulemaking could come back from the (almost) dead.  Rather than a clean kill, the RAA promises to haul rulemaking into a back alley and beat on it until maybe it dies.

If you are the sort of person who frequents JOTWELL’s administrative law page, then you probably already know something about both these bills.  Regarding the REINS Act, it may be fair to say that there isn’t all that much to know—it is easy to describe what it does and its anti-regulatory intent is as plain as the summer sun.  The RAA is a far more complex beast, which makes it very difficult to summarize and concisely assess.  Such work is important because proponents of the RAA might find themselves in control of the Senate and the Presidency someday not too long from now.  If this eventuality occurs, one must hope that the powers-that-may-be can be persuaded that they didn’t really want to cripple administrative rulemaking.  They just said they did when they didn’t have the power to make it happen.

It is with this context in mind that I want to draw your attention to two excellent pieces of administrative law scholarship that were submitted to the House Judiciary Committee as it considered the RAA.  (Links to both are at the top of this short essay.) Continue reading "Superfriends of the APA"

 
 

New Comparative Constitutional Scholarship on Enforcing Second Generation Rights

The Texas Law Review recently published an important symposium on Latin American constitutionalism. Many of the articles make important contributions to the field of comparative constitutional law, not least because the English-language literature in the field has been dominated by discussions of constitutional doctrine in Europe and North America. (Not surprisingly, the part of the literature on creating constitutions has had a wider geographical range.)

The two articles I have singled out deal with a phenomenon of growing importance outside the United States, the judicial enforcement of social and economic – so-called “second generation” – rights. Interpreting constitutions adopted or amended substantially much more recently than the U.S. Constitution has been, constitutional courts around the world have moved past the question on which U.S. scholars typically focus – whether courts should enforce second-generation rights – to consider how to do so. Or, perhaps more precisely, many courts have embarked on projects of enforcing second-generation rights, and their performance allows scholarly evaluation, informed by actual experience in additional to theoretical speculation, of judicial enforcement of second-generation rights. Continue reading "New Comparative Constitutional Scholarship on Enforcing Second Generation Rights"

 
 

Aggression v. Atrocity in the History of International Law: From the Tokyo Trial to the Vietnam War

Samuel Moyn, From Antiwar Politics to Antitorture Politics, available at SSRN.

Columbia University history professor Samuel Moyn (visiting at Yale Law School in the spring term of 2012) has recently posted his paper From Antiwar Politics to Antitorture Politics on SSRN, a paper I heard him present at a November session of the Critical Analysis of Law workshop at my law school, the Faculty of Law, University of Toronto.  I write about it here on JOTWELL because it is an excellent paper, which law professors might not otherwise hear about, offering an extremely thoughtful intervention on the recent history of international law.

Moyn’s thesis is that international law in the human rights era has moved from a Nuremberg-informed concern with the crime of waging aggressive war to a preoccupation which he thinks first developed in the later stages of the Vietnam War with crimes committed in the conduct of war itself, with the means and methods of warfare so familiar to us now in post-9/11 debates about the detainment and torture of prisoners in the “War on Terror.”  Until My Lai in 1969, Moyn argues, Americans were shockingly cavalier about illegal military acts committed in the Vietnam War that were widely known to be occurring – mistreatment of POWs (direct military shootings and torture of suspected South Vietnamese subversives), search and destroy missions that made little or no effort to distinguish between combatants and civilians, and massive aerial bombardments, including unauthorized bombings in Cambodia and Laos.  When American lawyers entered the debate about the legality of the war, Moyn shows that they paid little attention to crimes committed in the conduct of the war.  Here he focuses on the activities of “The Lawyers Committee Concerning American Policy in Vietnam” between 1965 and 1969.  This group concentrated on aggression and the legality of American intervention in Vietnam and nowhere addressed the law governing the conduct of warfare.  Things did change.  Moyn gives a central place in his story to Richard Falk, a member of this group and an academic lawyer who eventually became very vocal in his opposition to the war, including an emphasis on illegal methods of conducting it.  The second person who features prominently in his paper is a more conservative critic, Telford Taylor, a military man who had been a prosecutor at Nuremberg, whose popular book Nuremberg and Vietnam: An American Tragedy (1970) condemned the war.  Taylor made the allegations of war crimes committed in Vietnam “respectable,” as he could not be seen as relying on spurious accounts from the far left or dismissed as a Communist sympathizer.  Taylor followed the post-My Lai trend of emphasizing war crimes, casting doubt on the whole idea of aggressive war from Nuremberg.  Taylor appreciated that “unlike at Nuremberg where it was obvious who had started World War II, the Vietnam era showed that one man’s aggressor was another man’s victim (and vice versa).” Continue reading "Aggression v. Atrocity in the History of International Law: From the Tokyo Trial to the Vietnam War"

 
 

The End of “Notice and Consent” as Meaningful Privacy Protection

Scott Peppet, Unraveling Privacy: The Personal Prospectus & the Threat of a Full Disclosure Future, 105 NW L. Rev. (forthcoming 2012), available on SSRN.

Scott Peppet’s article Unraveling Privacy: The Personal Prospectus & the Threat of a Full Disclosure Future has offered a fundamental challenge to reigning privacy paradigms in cyberlaw.  The old privacy law assumed that the right set of laws could help individuals hide embarrassing facts or disable invasive tracking.  The encroaching “full disclosure future” ensures that those who try to maintain secrets look like they have “something to hide.”  We used to be afraid of shadowy watchers collecting incriminating “digital dossiers;” now we worry over not measuring up when rivals reveal better “personal prospectuses” than our own.  Peppet’s elegant interweaving of social science and law renders us unable to rely on old privacy paradigms like “notice and consent” online.

Something to Hide

Traditionally, privacy law experts have assumed that a combination of markets and law can preserve privacy.  Firms will compete to offer more or less privacy.  Data collectors will provide customers with various “privacy settings” that tailor online services to optimize self-disclosure.  Some have proposed “personal data vaults” to manage the emanations of sensor networks that track movements and actions in real space.  Jonathan Zittrain’s classic article on “privication” proposed that the same technologies used by copyrightholders to monitor or stop dissemination of works could be adopted by patients concerned about the unauthorized spread of health information. Continue reading "The End of “Notice and Consent” as Meaningful Privacy Protection"

 
 

The Copyright Law is An Ass: A Brash New Installment in this Fascinating Ongoing Series!

Yvette Joy Liebesman, Downstream Copyright InfringersKan. L. Rev (forthcoming), available on SSRN.

This article is a fine example of smart and accessible copyright scholarship that identifies and clearly describes a perplexing aspect of the current law, and then succinctly proposes sensible solutions.  The somewhat startling problem that Saint Louis University Law Prof Yvette Joy Liebesman identifies is this: A consumer who purchases authorized downloads of musical recordings, intending to behave legally and in consummately copyright law compliant manner, may actually be guilty of copyright infringement if the songs she purchases in digital format turn out to infringe the copyrights of other songs, such as by including unauthorized samples of vocal or instrumental riffs.

Liebesman points out that based on the ways the pertinent statutory provisions of the Copyright Act were written and interpreted, had the same people purchased the same songs, but with the copies embedded in vinyl or written on a compact disk, they would not be vulnerable to liability infringement for owning them.  But the recording industry has been so eager to frighten off prospective unauthorized downloading of music that it persuaded Congress and the courts to construct a legal regime under which even legal downloaders are at risk, facing strict infringement liability for completely innocent acts of (e.g.) purchasing songs from iTunes and loading them on an iPod.  This group of potential defendants includes me, and most of you reading this. Continue reading "The Copyright Law is An Ass: A Brash New Installment in this Fascinating Ongoing Series!"