Monthly Archives: February 2014

Copyright as a Chill on Innovation

Michael A. Carrier, Copyright and Innovation: The Untold Story, 2012 Wisc. L. Rev. 891 (2012).

Sony’s Betamax was the first reprography technology to attract a copyright infringement lawsuit. Little did copyright experts back then realize how much of a harbinger of the future the Betamax would turn out to be. Countless technologies since then designed, like the Betamax, to enable personal use copying of in-copyright works have come to market. Had the Supreme Court outlawed the Betamax, few of these technologies would have seen the light of day.

The most significant pro-innovation decision was Supreme Court’s Sony Betamax decision. It created a safe harbor for technologies with substantial non-infringing uses. Entrepreneurs and venture capitalists have heavily relied on this safe harbor as a shield against copyright owner lawsuits. Yet, notwithstanding this safe harbor, copyright owners have had some successes in shutting down some systems, most notably, the peer-to-peer file-sharing platform Napster.

It stands to reason that decisions such as Napster would have some chilling effect on the development of copy-facilitating technologies. But how much of a chilling effect has there been? Some would point to products and services such as SlingBox and Cablevision’s remote DVR feature and say “not much.”

Antitrust and innovation scholar Michael Carrier decided to do some empirical research to investigate whether technological innovation has, in fact, been chilled by decisions such as Napster. He conducted qualitative interviews with 31 CEOs, co-founders and vice presidents of technology firms, venture capitalists (VCs), and recording industry executives. The results of his research are reported in this Wisconsin article, which I like a lot. Continue reading "Copyright as a Chill on Innovation"

Mello’s MedMal 2.0 Study Documents Discordant Outcomes in the Communication-and-Resolution Programs

• Michelle M. Mello et al., Communication-And-Resolution Programs: The Challenges And Lessons Learned From Six Early Adopters, 33(1) Health Affairs 20 (2014).
• Michelle M. Mello, Susan K. Senecal, Yelena Kuznetsov & Janet S. Cohn, Implementing Hospital-Based Communication-And-Resolution Programs: Lessons Learned In New York City, 33(1) Health Affairs 30 (2014).

In January of 2014, Health Affairs published an entire issue dedicated to new approaches to medical malpractice reform, featuring several jotworthy articles with overlapping lists of authors, including these two led by Michelle Mello. This work is invaluable as it provides an early look at two sets of demonstration projects exemplifying new solutions to the problems of medical error and medical liability.

Across the multiple medical malpractice crises and waves of reform, the traditional debates have focused on ways to reduce the number, amount, and variability of liability judgments—imposing shorter statutes of limitations, interposing screening panels to filter out some cases, narrowing the range of potential expert witnesses eligible to testify, and capping damages regardless of the individualized proof determined by the jury. Regrettably, there is no reason to think that these reforms actually reduced the number of medical errors patients suffer. In fact, they may have exacerbated that problem if they have weakened the (imperfect) deterrence signal sent by liability. This point was sharpened in 1999, when the Institute of Medicine released a report summarizing evidence estimating that over 40,000 Americans were being killed every year due to preventable medical errors: the equivalent of a couple of jumbo jets full of passengers crashing every day. Continue reading "Mello’s MedMal 2.0 Study Documents Discordant Outcomes in the Communication-and-Resolution Programs"

Denaturing the Family

Clare Huntington, Staging the Family, 88 N.Y.U. L. Rev. 589 (2013).

Legal scholarship has been increasingly attuned to the role of performance in constructing legal norms. In Staging the Family, Clare Huntington brings this sensitivity to family law. Accordingly to Huntington, people act out the “collective understandings of mother, father, child, and the family itself.” These collective understandings reflect and perpetuate the law’s definition of the family and the rights and responsibilities of its members. Through this mutually reinforcing process, the law’s participation is “normatively narrowing” because it recognizes and thus reinforces only the prevailing, “dominant” images of the family. A consequence, Huntington argues, is that the law has ignored “seismic demographic changes in family form” such as nonmarital families, cohabitation, same-sex couples, and assisted reproduction. In replicating dominant family forms, the law has also idealized them. By reproducing “[o]verwhelmingly positive images of the family,” Huntington writes, the law has approached child sexual abuse “as a problem of strangers lurking in the shadows” rather than a problem within families themselves. (P. 595.)

At the root of the law’s conservatism is that it treats the dominant image of the family as the “natural” one. Huntington’s proposed solution is to “decenter ” or “denature” those dominant images. Operationally, this means “recognizing broader social fronts so that no one performance takes precedence over all others” (P. 640), giving “far greater leeway to parties to decide for themselves whether they constitute a family” (P. 641), and, in the child welfare arena, moving away from “set scripts that reinforce dominant images of family.” (P. 644.) Continue reading "Denaturing the Family"

What Do People Think About Copyright?

Lee Edwards, Bethany Klein, David Lee, Giles Moss & Fiona Philip, Isn’t it just a way to protect Walt Disney’s rights?: Media user perspectives on copyright, 16 New Media & Socy (2013).

When it comes to the issue of copyright in the digital age, it is not uncommon to read claims and counter-claims regarding the public’s perception of copyright enforcement and infringement through file-sharing mechanisms. Public policy in the field is often driven by assumptions that tend to be nothing more than guesswork as to their effectiveness and efficiency. While copyright policy has been the subject of several government-funded reviews in the UK in several years, these have usually failed to be conducted with the end-user of copyright works in mind, which seem to cement the idea that the subject is too complex for the public. It is therefore a very refreshing development when research is conducted to provide us with better empirical understanding of what the public really thinks with regards to copyright, going beyond mere conjecture and potential biases.

In Isn’t it just a way to protect Walt Disney’s rights?, the authors have set out to engage in an empirically sound exercise in order to ascertain the validity of various statements that are often part of copyright debates. They have put together a series of focus groups designed to get the opinion of “ordinary media users,” as the authors claim that this is a sector that does not often get their opinion represented in the copyright debates. The study’s methodology consisted in carrying out twelve focus groups based in Yorkshire, England, and each of these ranged from three to ten participants, who were recruited as pre-existing groups of media users, varying in age, background and experience with downloading media. The groups were asked to discuss topics relating to copyright, the creative industries, digital media, downloading and piracy for over one hour, and while the groups were directed, they were given a set of open-ended questions to explore the users’ experience, attitudes, and behaviour with regards to copyright. Continue reading "What Do People Think About Copyright?"

Dressed Up and Ready to Read

One of the most heated series of conversations I had with my colleagues in law school was about hair: color, style, length, and accoutrements. All of these choices apparently meant something. It was unclear to me what, precisely, my haircut at the time signalled—or didn’t—but it was clear to me that Hair Matters.

Thankfully, Ruthann Robson has authored Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from our Hairstyles to Our Shoes. The book is something of a relief for me. It clarifies how my hair (and clothes, and shoe) choices are constrained by the regulatory framework of the American Constitution. I feel less responsible for my Hair and Clothing Mistakes, since it is clear that my choices are subject to constitutional limits. And it has advanced my understanding of what Dressing Means. Continue reading "Dressed Up and Ready to Read"

Law Matters (A Bit)

• Brian R.Cheffins, Steven A. Bank, & Harwell Wells, Law and History by the Numbers: Use, But with Care, UCLA School of Law, Law-Econ Research Paper 13-21 (2014), available at SSRN.
• Brian R. Cheffins, Steven A. Bank, & Harwell Wells, Questioning “Law and Finance:” US Stock Market Development, 1930-1970, 55 Bus. Hist. 598 (2013), available at SSRN.

The relationship between civil and economic governing institutions and economic development is significant. Law matters to economic development. Acemoglu’s and Robinson’s comprehensive overview in Why Nations Fail: The Origins of Power, Prosperity, and Poverty provides a compelling case for the proposition that extractive institutions, in either sphere of civil life, can significantly retard economic progress and result in poor living conditions for the majority of people in a given society. Largely the province of development economists studying political institutions, the inquiry into the relationship between governance and economics in the corporate sphere was catalyzed by the famous work of Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer, and Robert Vishny (LLSV) in the late 1990s.  The relationship among economic development and the institutions of finance – corporations, markets, and financial institutions – has since progressed from development economics to corporate legal scholarship.

The study of economic development is, necessarily, historical, and is in its nature largely comparative.  A welcome corollary in legal scholarship to the introduction of development economics is a renewed interest in corporate and financial history.  Cheffins, Bank, and Wells (CBW), all excellent contributors to this industry, have performed a notable service with a recent interesting pair of papers.  In Questioning Law and Finance, they turn from the traditional comparative approach of the development literature to examine, longitudinally, what that literature might teach us about economic development in 20th century America as a function of corporate and securities law.  In Law and History by the Numbers, they step back to examine the extent to which empirical research of the type used in the economics literature can shed light on corporate legal analysis. Continue reading "Law Matters (A Bit)"

Not “Just the Facts”: Art, Rape Survival, and Imagining Law Reform

Yxta Maya Murray, Rape Trauma, The State, and the Art of Tracey Emin, 100 Cal. L. Rev. 1631 (2012).

Despite reforms in the elements and evidentiary rules concerning rape and sexual assault crimes, successful prosecutions often face more practical narrative problems in convincing the jury of the credibility of complainants when the timing and manner of their accusation falls outside of how jurors may imagine the normal rape survivor would present herself to authorities. The proper place of psychiatric and psychological expertise about what is sometimes denominated “rape trauma syndrome” in trials and proper instruction of jurors in those trials has been the subject of serious critical debate among feminist legal scholars and rape survivors for twenty years. The sharp question of whether individual rape survivors or rape survivors as a class benefit from the ability to describe the rape survivor whose complaint comes “late” or is delivered in a flat and calm affect to police or medical authorities as suffering from a syndrome remains unresolved, and the same dilemma emerges in the domestic violence realm with “battered women’s syndrome evidence.”

Yxta Maya Murray brings us into this long and always troubling debate quite literally with the example of British artist and rape survivor Tracey Emin, whose work is both quoted and depicted in rare law review color photos. This article stands out amongst the many great criminal law articles that I’ve read in the past couple of years because it combines empirical social science, art, and humanities analysis, which gives us new purchase on concrete legal questions that have already received a great deal of both conceptual and empirical research. Continue reading "Not “Just the Facts”: Art, Rape Survival, and Imagining Law Reform"

Andrew Taslitz

Andrew Taslitz

With sadness we note the passing of Jotwell criminal law co-editor Andrew Taslitz who has died at age 57.  (See his obituary here.) Andrew was a graduate of Queens College and the University of Pennsylvania Law School.  After a practice career with the Philadelphia District Attorney’s Office, and in private practice, Andrew spent 23 years at Howard University School of Law.  He joined the law faculty at American University in 2012.  Andrew’s teaching included evidence, criminal procedure, and criminal law.  His scholarship dealt centrally with criminal law and procedure including one book on legal history, Reconstructing the Fourth Amendment: A History of 1789-1868 (2009), as well as Rape and the Culture of the Court Room (1999) and dozens of articles on criminal procedure and criminal law.  One of the most admired criminal law teachers of our time, Andrew’s passion for law and its reform were evident to his students, colleagues, and many readers.

Jackson

•  Neil H. Andrews, Money and Other Fundamentals: English Perspectives on Court Proceedings, Meditation, and Arbitration, U Cam. Faculty of Law Research Paper No. 38/2013 (2013) available at SSRN.
•  Stuart Sime, A Practical Approach to Civil Procedure (16th ed. 2013).
•  Stuart Sime & Derek French, Blackstone’s Guide To The Civil Justice Reforms 2013 (2013).

The banes of every civil-justice system are delay and expense.  The two maladies are often run together in a single phrase as if they were one disease, but they are distinct problems whose antidotes sometimes work at cross-purposes.  One solution to delay, for instance, is to impose early, firm deadlines during litigation, but that can simply induce parties to “lawyer up” and spend more money in the rush to meet truncated deadlines.  Conversely, keeping the cost of litigation down may induce more people to sue, which will drive up the length of time to resolution.

In England, where I taught this past Fall, the delay-and-cost two-step has played out over fifteen years and two sets of procedural reforms.  The first, and better known, effort occurred in 1998, when the Wolff reforms (named after Lord Chief Justice Woolf, principal author of the report Access to Justice) led to the creation of the Civil Procedure Rules.  The principal innovation of the Woolf reforms was case management, an idea that had been growing in popularity on the American side of the Atlantic since the 1970s.  But it also included a number of other innovations—such as pre-action protocols in which parties in some cases exchanged information before suit, greater resort to ADR, and a rule (“Part 36”) that operates akin to but more broadly than Federal Rule of Civil Procedure 68—that were designed to both reduce delay and lower the cost of litigation. Continue reading "Jackson"

Beyond Contraceptive Mandate Doctrinalism

James D. Nelson, Conscience, Incorporated, Mich. St. L. Rev. (forthcoming), available at SSRN.

Perhaps the single hottest issue in American law and religion right now is the dispute over the so-called “contraceptive mandate.” The Affordable Care Act requires employers to extend insurance coverage to include contraceptive care. It includes some exemptions for particular churches and other religious organizations, but the Obama administration has refused to extend that exemption too widely. A number of businesses or business owners have complained that this mandate violates “their” religious consciences and that, under the Religion Clauses of the First Amendment and/or the Religious Freedom Restoration Act, an exemption is required. Key questions raised by the controversy include whether corporations have religious rights at all, whether the mandate constitutes a substantial burden, and whether the mandate is generally applicable or not. Lower court rulings are all over the map. The Supreme Court will hear two of those cases next month.

Articles on the contraceptive mandate are a growth industry right now but, with all due respect, few of them have said anything all that deep. Much of the work on this issue is still at the shadow-amicus-brief stage of legal doctrinalism, in which the first articles addressing a legal issue read like standard legal briefs lining up on one side of the issue or the other. There is some value in that for the litigants, and for those scholars who are rehearsing for amicus participation. But those articles really are just rehearsals, efforts to fight tomorrow’s battles with yesterday’s tools. Continue reading "Beyond Contraceptive Mandate Doctrinalism"