Yearly Archives: 2011

Copyright’s New Narrative

Julie E. Cohen, Copyright as Property in the Post-Industrial Economy: A Research Agenda, 2011 Wisc. L. Rev. 141, available at SSRN.

Copyright law in the United States has traditionally been justified in both economic and property-based terms. In order to incentivize the socially optimal amount of creativity, the story goes, we grant to authors a certain bundle of rights over the work they create for a limited (although significant) period of time. Without this incentive, copyists, who need only to recoup the cost of copying and not the cost of production, would undermine the creator’s opportunity to profit from the work. The story thus assumes that commercial exploitation of creative work is the natural (and desired) end of the creative process and that some form of legal entitlement is needed as a means to that end. The focus thus shifts to the work itself: If the work demonstrates the required originality and modicum of creativity, and is fixed in a tangible medium of expression, it qualifies for copyright protection, regardless of the truth of the incentive narrative.

The longevity of the economic narrative derives, in part, from the identity of the players in the early copyright debates, in which printers and stationers were the primary agitators for increased rights over creative works and individual authors merely useful characters to make more human the arguments. But as various commentators have noted over the years, the economic story can be told only by some creators. We can assume, for example, that if Disney or Random House or Atlantic Records were not able to turn a profit from the creative works they bring to market, they would soon be out of the business. But for others, creativity stories are not tales of buying and selling; they are tales of emotion, passion, and inspiration, of creating without being motivated by commercial exploitation. Such artists are not completely indifferent to how their work is used – they might, for example, very much care about getting credit for their work so as to build their reputational, if not economic, capital. But the traditional copyright narrative, which assumes commercialization, does not map well onto the motivations and interests that these artists demonstrate. We might, therefore, ask whether the Constitution’s goal of “promot[ing] the progress of Science” would be better achieved by focusing less on whether a work is copyrightable and more on the interests of those involved in distributing that work to the public. Continue reading "Copyright’s New Narrative"

Coordinating Agencies

Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 Harv. L. Rev. ____ (Forthcoming 2012), available at SSRN.

Areas of fragmented and overlapping delegations of power to administrative agencies are common today. For example, fifteen federal agencies play roles in the American food safety arena. Similarly, twelve different agencies deal with exports, and numerous agencies regulate the financial sector, including the SEC, CFTC, OCC, FHA, FDIC, OTS and the Federal Reserve. In addition, as President Obama recently quipped during a State of the Union Address, we have one agency (the Department of the Interior) that is in charge of salmon while they are in fresh water, but a different one (the Department of Commerce) that handles them when they are in saltwater.

Despite the prevalence of these sorts of overlapping delegations in the regulatory arena, legal scholars generally have approached administrative law through a single-agency lens. In a forthcoming Harvard Law Review article titled Agency Coordination in Shared Regulatory Space, Professors Jody Freeman and Jim Rossi seek to change this picture. Specifically, Professors Freeman and Rossi depart from what they call the “single-agency focus that is so foundational to administrative law” by offering the “first comprehensive discussion in the legal literature of the problem of fragmented and overlapping delegations of power by Congress to administrative agencies.” Continue reading "Coordinating Agencies"

The Impairment of Public Sector Collective Bargaining Agreements

The great recession has hit state and local governments nationwide very hard.  Many have turned to the unions that represent their employees for wage, benefits and work rule concessions in an effort to reduce expenditures.  When they have been unable to secure such concessions, they have resorted to unilateral action abrogating their collective bargaining agreements.  Their actions have taken many forms.  Some are redressable under the contract’s grievance and arbitration procedures or in unfair labor practice proceedings before the state public sector labor relations agency.  However, in many cases such redress is not available, leaving the only avenue an action alleging an unconstitutional impairment of contract.

Stephen Befort‘s article, “Unilateral Alteration of Public Sector Collective Bargaining Agreements and the Contract Clause,” tackles head on the extremely important and timely topic of when unilateral modifications of public employee collective bargaining agreements in response to fiscal crises constitute an unconstitutional impairment of contract.  Befort first provides a brief background on the development of public sector labor law and public sector collective bargaining.   He observes that where unilateral modification of public employees’ collective bargaining agreements is accomplished through legislation, public sector labor relations acts are of little utility because the legislature is not the employer.  Consequently, the only generally available avenue of contest is under the Contract Clause of the Constitution.  Befort then provides useful and detailed background to the development of Contract Clause jurisprudence in general. Continue reading "The Impairment of Public Sector Collective Bargaining Agreements"

Constitutional Change and Living Trees

David A. Strauss, The Living Constitution (Oxford University Press, 2010).

David Strauss has written an elegant and compelling book, the distillation of his work on constitutional interpretation over the last decade or more.   His argument is at once positive and normative. Strauss argues that most U.S. constitutional interpretation – and some of the most important and foundational of the Supreme Court’s constitutional decisions – can only be understood as a form of common law adjudication, developed over time based on practice and precedent far more than on constitutional text.  As a normative matter, Strauss argues that living constitutionalism, developed and constrained through the methods of common law adjudication, is a superior approach to interpreting the Constitution than is originalism.   Those not familiar with Strauss’ work should read the book; those who are will still enjoy the concision and insight with which his prior articles have been distilled.

The first two chapters include his attack on originalism and his defense of the virtues of common law constitutional adjudication.  The attack on originalism synthesizes critiques of the impossibility, and undesirability, of the kind of “constraint” imposed by originalism’s commitment to interpreting in light of specific original understandings, including the difficulty of reconstruction, the challenges of “translation” and the democratic challenge of giving controlling force to the original understandings of an instrument intended for present governance. Moderate originalism, he argues, in its appeal to general principles diminishes the key feature of constraint that originalism’s proponents emphasize. Continue reading "Constitutional Change and Living Trees"

Juries and Emerging Democracies

Brent T. White, Putting Aside the Rule of Law Myth: Corruption and the Case for Juries in Emerging Democracies, 43 Cornell Int’l L.J. 307 (2010), available at SSRN.

One prevailing idea is that democracy, which fosters economic development, requires the rule of law. In other words, the rule of law will remedy the economic woes of emerging democracies. Another prevailing idea is that juries are antithetical to the rule of law. Because foreign companies are less likely to invest in a country with juries, which do not follow the law, emerging democracies should not establish juries. Brent White boldly questions both of these ideas in his article Putting Aside the Rule of Law Myth: Corruption and the Case for Juries in Emerging Democracies.

White’s proposal comes at a time in the United States—the country with the most extensive jury trial right—when juries are in decline, with jury trials occurring in approximately only 2% of criminal cases and 1% of civil cases. So, you might ask, if juries do not seem necessary in an established democracy, why should juries be the answer in emerging democracies? Continue reading "Juries and Emerging Democracies"

Father of the Iowa Trust Code

Martin D. Begleiter, Son of the Trust Code – The Iowa Trust Code after Ten Years, 59 Drake L. Rev. 265 (2011), available on SSRN.

Back in 2001, Professor Martin Begleiter published an article analyzing the drafting and revision of Iowa’s comprehensive new Trust Code, of which he was a primary author.1  A decade later, Professor Begleiter has released a follow-up work, Son of the Trust Code—The Iowa Trust Code after Ten Years. This new article chronicles the evolution of the Iowa Trust Code during its first decade of operation, discussing both legislative amendments and judicial pronouncements. Professor Begleiter’s new work, like his former one, not only offers a fascinating look into the legislative and judicial processes but provides invaluable lessons for other states which have recently adopted, or are considering adoption, of the Uniform Trust Code or other comprehensive legislation regulating trusts.

Three factors combine to give Begleiter’s article national relevance and enduring significance.  First, his subject matter is vitally important. The promulgation of the Uniform Trust Code (“UTC”) gets my vote as being the most significant trust law development of the 21st Century.  Enacted in approximately half of the states, and under consideration in numerous others, the UTC has reinforced timeless principles of trust law while revolutionizing others — generating robust scholarly debate among its many supporters and detractors. The Iowa Code, however, is not an enactment of the UTC. Rather, while it often parallels the UTC, the Iowa Trust Code was developed through an independent drafting process.  Accordingly, studying the Iowa Trust Code offers an opportunity to compare and contrast Iowa’s approaches to crucial issues with the UTC’s approaches to those same issues. Continue reading "Father of the Iowa Trust Code"

Trust in the World of the Global Lawyer

Robert K. Vischer , Big Law and the Marginalization of Trust, 25 GEORGETOWN J. LEGAL ETHICS ____ (forthcoming 2011), available at SSRN.

In many respects, law practice involves a brave new work of global lawyering.  On a daily basis, lawyers from Main Street to Wall Street represent clients with transnational legal needs.  At the same time, lawyers face pressure to reduce the costs of delivering legal services.  Cost containment initiatives include outsourcing legal work to subcontractors who provide services at a lower cost.  Whether legal work is sent to Indiana or India, outsourcing results in less personal connections between clients and the lawyers who originally were retained to handle the representation.  Increasingly, in-house counsel unbundle the corporation’s legal work, dividing the work among numerous law firms rather than relying on one firm to meet needs on a full-service basis. For many, these trends threaten the very fabric of the trust relationship between clients and their attorneys. In his forthcoming article, Big Law and the Marginalization of Trust, Professor Robert Vischer examines the role of trust in the current climate and economic reality of global lawyers. As the title suggests, the article considers whether trust is a casualty of the trends in the structure, operation, and regulation of law firms. Rather than simply declaring trust dead, Professor Vischer persuasively explains why trust is of vital importance to lawyers, the clients we serve, and society.

The article is particularly interesting in providing context for understanding the concept of trust and the role it plays in professional relationships. Professor Vischer starts by discussing the nature of trust and the difference between cognitive and affective trust, referring to the definition of trust as a “state of mind that enables its possessor to be willing to make herself vulnerable to another—that is to rely on another despite a positive risk that the other will act in a way that can harm the trustor.” (quoting  A Cognitive Theory of Trust by Claire A. Hill and Erin Ann O’Hara). The discussion of vulnerability is particularly timely given that a few experts have urged the 2020 Ethics Commission to consider adopting separate ethics rules to regulate large law firms that represent sophisticated clients who can presumably protect themselves and are therefore not vulnerable. This relates to Professor Vischer’s observation that different potential clients may require different degrees and manifestations of trust. Continue reading "Trust in the World of the Global Lawyer"

Vision and Loss

Sarah P. Woo, Regulatory Bankruptcy: How Bank Regulation Causes Firesales, 100 Geo. L. J. __ (forthcoming).

It is so very lucky that Sarah Woo chose to write Regulatory Bankruptcy: How Bank Regulation Causes Firesales as one article, not the four it could have been. When she died this summer, the legal academy lost a truly original thinker and careful researcher who asked the right questions—and had the knowledge, insight, and judgment to answer them. It is a huge loss.

Regulatory Bankruptcy is the rare article that finds smart answers to interesting questions, which also happen to be good answers to very important questions. The project occupies the intersection of bankruptcy, financial regulation, risk management, and crisis response, and makes theoretical and empirical contributions to each of these fields. I especially appreciate the way in which it helps flesh out the under-studied relationship between law and macroeconomic policy. Continue reading "Vision and Loss"

Violence Against Men: In Prison and Out

Kim Shayo Buchanan, Our Prisons, Ourselves: Race, Gender, and the Rule of Law, 29 Yale L. & Pol’y Rev. 1 (2010).

In her hilarious book Bossypants (which is another thing I like lots but alas, falls outside my mandate), Tina Fey reveals some insider knowledge about the male-dominated world of Saturday Night Live:  “Male comedy writers piss in cups. Also, they like to pretend to rape each other. It’s . . . Don’t worry about it. It’s harmless, actually.”

I had that anecdote in mind as I began preparing to write this review of Kim Buchanan’s article. Then, in a moment of synchronicity, two days before I actually sat down at my computer to write, I ran across this joke in a free humor magazine, the kind printed on newsprint and assembled to support advertisements for local businesses in small rural towns. I apologize in advance for its offensiveness, but it completely makes my – and Buchanan’s – point. Continue reading "Violence Against Men: In Prison and Out"

Legal History as American Intellectual History

Daniel T. Rodgers, The Age of Fracture (Harvard University Press, 2011).

While histories of the United States are just beginning to creep into the 1980s, Daniel Rodgers has produced a panoptic intellectual history that takes his readers into the twenty-first century. As someone who came of age in what Rodgers compellingly titles the “age of fracture,” I found it disconcerting to read about my own intellectual development in a history book. Okay, what I really mean is that it made me feel old. But I suspect that it would make Rodgers happy to learn that his book stretched out and rematerialized time for this reader. After all, coursing through the book is dismay at how the abstraction of time and discounting of history has impoverished everything from economic to political theory. In other words, his book is, in part, a historian’s lament, and it should appeal to historians for this reason alone. The Age of Fracture is also a meditation on the causes of America’s current tattered social welfare state, a capstone to the story begun by Rodgers in his equally breathtaking Atlantic Crossings: Social Politics in a Progressive Age (1998). Legal historians should take particular interest in the book. It places in historical context a number of trends in legal thought, from law and economics to originalism.

Rodgers argues that during the closing decades of the twentieth century, liberals’ and conservatives’ concepts of power, time, identity, wealth, and community fragmented, becoming thinner, smaller, and more malleable. Individual choices replaced historical and structural forces as explanatory variables. Rodgers deftly interweaves trends from across the political spectrum. He argues that the Foucauldian turn among leftist academics was of a piece with conservatives’ embrace of rational choice theory (both trends dematerialized power). Colorblind constitutionalism, Rodgers also contends, shared implications with black intellectuals’ “celebration of paradox, improvisation, and hybridity” in 1990s race theory (both discounted the heavy hand of the past in shaping the present). (140) Continue reading "Legal History as American Intellectual History"

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