Monthly Archives: October 2018

Creative Vigilantism

Amy Adler & Jeanne C. Fromer, Taking Intellectual Property into Their Own Hands, 107 Cal. L. Rev. __ (forthcoming 2019), available at SSRN.

It’s no longer news that a major proportion of property regulation happens outside the bounds of the law thanks to social norms and their extralegal enforcement. Yet legal scholars continue to find new and fascinating ways to advance this insight. The latest installment in the conversation about the norm-based regulation of intangible property is Amy Adler and Jeanne Fromer’s Taking Intellectual Property into Their Own Hands.

This sparkling article1 adds a novel perspective to the dialogue that has been developing for more than a decade about the extralegal regulation of creative production. Most of this work considers how a given group regulates their distinctive works via norms, without recourse to copyright or trademark law. This move has been made with respect to recipes developed by French chefs, roller derby skaters’ nicknames, clowns’ face makeup, tattoo artists’ ink designs, and many others. Continue reading "Creative Vigilantism"

Does the Center Want to Hold?

David Adler, The Centrist Paradox: Political Correlates of the Democratic Disconnect (May 01, 2018), available at SSRN.

The very idea of a meaningful left-center-right political spectrum always seemed suspect to me. Many commentators have warned against conflating cultural and economic “wings.” The cultural left wants to get the state out of the bedroom (so to speak). The economic left wants to get the state into the boardroom. The cultural right wants to inject the state into the bedroom, to regulate sexual and procreative matters. The economic right wants the state out of the boardroom, sweeping away pesky regulations of the workplace and the market.

Plainly, one might be on the economic right but on the cultural left, or vice versa. It would be a mistake to try to cram these different dimensions into one. Would someone who happened to fall simultaneously on the economic left and the cultural right count as…a centrist? An outlier? (Gene Debs called socialism “Christianity in action“—where does that put him?)

Set this worry aside, and assume that correlations with, say, attitudes about immigration serve to validate the use of a one-dimensional spectrum. Extensive surveys have been conducted that ask respondents where they place themselves. Some of these surveys go on to ask about attitudes toward democracy and elections and the importance of having a strong, decisive leader unfettered by a congress or parliament. David Adler, a young researcher who recently moved from London to Athens, has looked at this data and has uncovered what he calls the “Centrist Paradox.” Anyone who is concerned about the direction democracies are taking ought to take a careful look, too. Continue reading "Does the Center Want to Hold?"

All’s Well That Ends Well, Sort of

Oona A. Hathaway and Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (2018).

“There ought to be a law about that” is a common response to circumstances we don’t like. But outlawing war? We might as well legislate against the flu. A new book called The Internationalists: How a Radical Plan to Outlaw War Remade the World authored by Professors Oona A. Hathaway and Scott J. Shapiro of Yale Law School shows how the endless cycle of war and peace prior to World War I has given way to a New World Order, post World War II. Today, they argue, war is no longer legitimate and might does not make right. But this New World Order comes at a cost as civil wars and internal disputes challenge established national borders (forged themselves by war). Has one form of aggression just replaced another?

Hathaway and Shapiro have produced a readable and provocative book that I like because of its extensive coverage over three self-contained but connected parts. The first part is about Hugo Grotius and the background that led to his groundbreaking book on international law and war. Or perhaps, his book is actually about war as international law, as conquest became the preferred means of resolving conflict among nations. A 17th Century naval battle in the Straits of Singapore between the Dutch and the Portuguese was the catalyst for a legal dispute that Grotius infamously resolved by laying down principles for just war. But these principles expanded beyond their boundaries to support the use of aggression to resolve a wide range of disputes, going beyond the limits of “just war.” Grotius, as Hathaway and Shapiro tell us, laid the foundations for a world order which recognized the nation’s right of conquest, a license to kill within skirmishes, and gunboat diplomacy. Within this order, nations had to remain impartial or take sides; there was no room for intervention through sanctions or mediation. Invariably, nation-states would be forced into conflicts, such as border disputes, debt defaults, or assassinations, with resulting regional or global escalation.  World War I was the culmination of the international order that Grotius wrought. Continue reading "All’s Well That Ends Well, Sort of"

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