Yearly Archives: 2019
Jan 24, 2019 Daniel BarnhizerContracts
Antonia Eliason,
Lillian McMurry and the Blues Contracts of Trumpet Records, 87
Miss. L.J. 279 (2018), available at
SSRN.
Professor Eliason’s Lillian McMurry and the Blues Contracts of Trumpet Records combines some of my favorite things—contract law, legal history, and Mississippi blues. Through the article, Eliason weaves a narrative of a compelling female protagonist, Lillian McMurry, who founded, operated, and finally closed the Trumpet Records (“Trumpet”) label in 1950s Jackson, Mississippi. This article provides a fantastic historical snapshot of the music industry at the time of itinerant blues artists who created the musical backbone of rock ‘n roll.
My interest in music industry contracting was sparked by Judge Jerome Frank’s dissent in M. Whitmark & Sons v. Fred Fisher Music Co. The majority opinion is relatively straightforward in upholding an artist’s assignment of contingent copyright renewal rights that would mature twenty-two years in the future. In contrast, Judge Frank in dissent exhibited remarkable judicial hubris (as well as, perhaps, the dark side of Legal Realist judging) in attempting to refuse specific enforcement of the original contract on fairness grounds. Specifically, Judge Frank would have substituted his own biased view of the relationship between artists and publishers: Continue reading "Singing the Blues in Contract Law"
Jan 23, 2019 Anthony SebokTorts
Kenneth S. Abraham & Leslie Kendrick,
There’s No Such Thing as Affirmative Duty, Virginia Public Law and Legal Theory Research Paper No. 2018-59, available at
SSRN.
When it comes to inherited scholarly categories and taxonomies, a prominent strand of modern American tort scholarship pursues a particular kind of deflationary agenda. The First and Second Restatements divided the law of negligence into sub-rules distinguished by spurious differences (for example, the section on “type of negligent acts” distinguished between “Use of Incompetent or Defective Instrumentalities” and “Want of Preparation”). The Third Restatement combined many rules that could be brought under a more general description – the laundry list of types of negligent acts has been radically pruned, leaving just a handful, such as “negligent failure to warn”.
Because the mission of the Restatement is to organize concepts latent in the common law, it is understandable that subsequent generations of reporters will see common themes between categories that were overlooked by their predecessors (and it is also possible that the law itself might evolve over time towards fewer principles as courts eliminate ad hoc categories). But reducing the number of rules, or principles, in the common law is not an unalloyed good. Debates still rage over whether the Restatement has, for all intents and purposes, removed duty as an element of the prima facie case in negligence in most cases of personal injury or property damage, and if it has, whether that move was salutary. Last year I reviewed for Jotwell an article by Prof. Stephen Sugarman calling for the merger of battery – an intentional tort – into negligence.
And now comes a proposal from Professors Ken Abraham and Leslie Kendrick to merge Chapters 3 and 7 of the Third Restatement, so that, instead of two general categories of duty in connection to physical harm, there will be just one rule of negligence for risk creation and there would be no need for a rule concerning affirmative duties. I will review Abraham and Kendrick’s arguments for the merger, suggest a few criticisms of their arguments, and conclude by evaluating the costs and benefits of pursuing yet another round of doctrinal deflation. Continue reading "Is Less Really More? Abraham and Kendrick on Getting Rid of Affirmative Duties"
Jan 22, 2019 Michael MadisonTechnology Law
Kristen E. Eichensehr,
Digital Switzerlands, 167
U. Pa. L. Rev. ___ (forthcoming 2019), available at
SSRN.
Battles over the public policy obligations and implications of late 20th-century and early 21st-century technologies have long been fought via metaphor as well as via megabyte and microeconomics. Today, modern information technology platforms are characterized brightly as “generative” and darkly as “information feudalism.” Public policy might be informed by treating some network providers as “information fiduciaries.” Or, borrowing the phrase that prompts Kristen Eichensehr’s thought-provoking paper, tech companies might be characterized as metaphorical “digital Switzerlands.” They might be neutral institutions in their dealings with national governments.
In Professor Eichenbehr’s telling, the idea of a corporate digital Switzerland resisting government aggression—refusing to cooperate with government requests for private user information, for example—comes from a recent suggestion to that effect by Brad Smith, president of Microsoft. As she notes briefly, it’s an old idea, not a new one, even if it has migrated from corporation-vs-corporation conflict to state-vs-corporation power dynamics. Ken Auletta’s history of Google reported that back in 2005, Google CEO Eric Schmidt characterized Google’s search engine and advertising platform as a neutral “digital Switzerland” in its treatment of content companies and advertisers. Schmidt was defending the idea that Google had no agenda vis-à-vis incumbent entertainment industry players. Google’s technology produced accurate data about consumer viewing practices. If that data led advertisers to pay less for their ad buys, that wasn’t Google’s intent—or its responsibility. Schmidt’s listener, the then-president of Viacom, erupted in protest: “You’re fucking with the magic!”
Indeed. The reader should take many lessons from Eichensehr’s article. Foremost among them is this: Wandering into the digital Switzerlands of contemporary technology, whether because Microsoft (in its obvious self-interest) says that’s how we should do things or because that’s an objectively useful place to begin, is fucking with the magic—that is, the mythos that guides how scholars and policymakers think about technology purveyors and their civic roles and responsibilities. Continue reading "Fucking With the Magic"
Jan 21, 2019 Lorna Fox O'MahonyProperty
As debates about “exclusion” and “sharing” continue to animate property and political discourses, scholarship tackling questions about how and for whom property and property law works is timely.
Scholarship examining the power of property law to promote inclusion through informal, contractual and proprietary forms (e.g., easements, leases, trusts, concurrent estates, and co-ownership arrangements), or property law’s “sharing” impulse, have typically focused on the social and economic benefits of hanging a different sign: that says not “keep out” but “come on in.” The legal power to include has also been lauded as a powerful enabler of innovation for the “sharing economy”—from for-profit platforms like Airbnb and Uber to not-for-profit initiatives like foodbanks and makerspaces.
Scholarship exploring the potential of the sharing economy as a vehicle for economic growth, innovation and micro-entrepreneurialism has examined how facilitating access to property, resources, time and skills can enable those who are excluded from these opportunities under conventional ownership models.
While the emergence of the ‘sharing economy’ has prompted intense interest amongst property scholars, it has also provoked a raft of public and policy concerns linked to precarity and exploitation of labor in the “gig economy.” Professor Rashmi Dyal-Chand’s new book, Collaborative Capitalism in American Cities: Reforming Urban Market Regulations, casts new light on practices of sharing. Continue reading "Sharing and the City: Re-imagining Regeneration for America’s Urban Core"
Jan 18, 2019 Christopher J. SprigmanIntellectual Property Law
The title of Glynn Lunney’s new book, Copyright’s Excess, presents a puzzle for those of us who have reflected on the nature and function of copyright law. Copyright is typically justified as a system of incentives. By giving authors (and by contract, publishers) exclusive control over commercially significant reproductions and distributions of their artistic and literary works, copyright helps to ensure that the copyright owner, and not copyists, will capture any profits made from exploiting the work. Copyright, in short, is supposed to help authors make more money. And in a world that works as economists expect, more money for authors should lead to more creative output. The equation seems simple: more copyright = more art and culture. But is this true? Is it possible that copyright protections might backfire, and result in less creative output rather than more?
Lunney’s book offers considerable evidence that, at least in the music industry, it is at least an uncomfortably plausible possibility that more copyright has led to less creativity. Lunney, a lawyer-economist, takes a painstaking look at music sales data dating back to the early 1960s, including data tracking the rise of recording music revenues up to Napster’s debut in 1999, followed by their precipitous decline. The shock to music industry revenues caused by Napster (and what followed) provided the makings for a terrific natural experiment: did increased revenue from the early 1960s to 1999 lead to more new music? And did plummeting revenues after 1999 lead to a dearth of new music? Continue reading "Lunney’s Paradox: More Copyright May Lead to Less Creativity"
Jan 17, 2019 Jill FamilyLexImmigration
Scholarship that translates and connects one discipline to another is a special treasure. The need for this type of scholarship is especially great in immigration law. Immigration law is interwoven with many other disciplines, but immigration law scholars often are so occupied with the extreme complexity and immediacy of the legal discipline that it can be difficult to branch out. I’m selfishly fond of The Economics of Immigration Reform by Howard Chang because it does a great service to those of us who needed a lucid and approachable explanation of the economics behind immigration law reform. Professor Chang explains in detail why immigration restrictionists are wrong when they argue that less immigration makes economic sense. If less immigration is desirable, it is not for economic reasons.
Professor Chang uses economic theory to evaluate recent legislation proposed to restrict legal immigration. Along the way, Professor Chang examines two major economic studies that both concluded that immigration produces a positive fiscal impact, one from 1997 and one from 2017. In the process of using the studies to evaluate proposed limits on immigration, Professor Chang teaches us that the assumptions underlying any economic study affect outcomes. Continue reading "Translating Economics for Immigration Policy"
Jan 16, 2019 Pamela BookmanCourts Law
Public litigation implicating national security issues faces a particularly thorny problem: the need for secrecy. On one hand, this kind of litigation—whether challenging the military’s use of Agent Orange in Vietnam, or the practice of putting individuals’ names on a No Fly list, or the Trump Administration’s “Muslim Ban”—raises important public issues and represents a paradigm case for judicial transparency. On the other hand, government defenses rely on state secrets with potentially vast consequences for national security, a situation where transparency can be dangerous.
Traditionally, courts have confronted the secrecy problem in national security litigation in one of two ways. Courts may abstain from hearing national security cases “because adjudication will lead to the dangerous exposure of sensitive national security information or to intractable challenges in reviewing and managing such information.” Alternatively, courts may defer to the executive branch’s judgment on a particular factual or judgment question. Both solutions often stop litigation in its tracks, preventing the court from evaluating cases on their merits. Continue reading "Procedural Innovations to Address the Secrecy Problem in National Security Litigation"
Jan 15, 2019 Allison Brownell TirresLegal History
Since 2006, the United Kingdom has denaturalized more than 350 of its citizens. This represents an increase of almost four-hundred percent from the prior five decades. The United Kingdom is an outlier in this respect. Other countries have instituted denaturalization proceedings in recent years, but no western nation has done so at the rate of the British Home Office. How do we explain this precipitous increase in revocations of citizenship in the past decade? In their remarkable recent article, Patrick Weil and Nicholas Handler argue that a pivotal–and much overlooked–change was Parliament’s passage of a law in 2002 that abolished an advisory committee, established in 1918, that had effectively curtailed abuses of power by the government. The advisory committee was composed of persons with judicial experience, including members of the House of Lords, but it was not empowered as a court. Because of this committee, Britain saw a decrease in citizenship revocations between World Wars I and II, unlike in other countries in the west where they increased precipitously in this period. After World War II, the committee was an effective bulwark against Cold War-era attacks on the foreign-born.
What is most remarkable is that this highly influential committee was never formally empowered with the final say. The Home Secretary, who oversees the Home Office, could always overrule the committee’s decisions. How could an advisory committee with little formal legal power nevertheless have such a dramatic impact? The answer, according to the authors, lies in the way that the committee used a combination of rule of law norms, public shaming, and courageous speech to push back against politically-motivated attacks on the foreign-born. Weil and Handler use close and thorough readings of a trove of archival material to explain how the committee “effectively leveraged its ‘advisory’ role into one of de facto appellate review” (P. 354). Once the committee was disbanded in 2002, this important review power more or less disappeared. Like many things in life, we may only be aware of how important this kind of review is now that it is gone. Continue reading "Taking Away Citizenship: Lessons from the British Advisory Committee"
Jan 14, 2019 Brian BixJurisprudence
“Legislative intention” is one of those concepts that many people use without recognizing the complexity of the underlying idea. The issue of statutory interpretation is frequently characterized as being a disagreement between “intentionalists” and “textualists,” an argument regarding what role, if any, lawmakers’ intentions should be given in determining the meaning and application of statutes. However, even if one starts from the position that legislative intentions are important, there is a further question regarding which intentions we are talking about.
This is where Marcin Matczak’s article, Three Kinds of Intention in Lawmaking, comes in. Matczak analyzes legislative intentions using the analytical structure J. L. Austin offered for talking about the intentions of everyday speech: locutionary intentions, illocutionary intentions, and perlocutionary intentions. The first, locutionary intentions, refers to (“semantic”) meaning—what the speaker was trying to say. The second, illocutionary intentions, refers to the type of speech act intended. Austin was well known for pointing out that utterances sometimes change things in the world—e.g., “I now pronounce you man and wife” can change the legal status of the individuals involved (he called such utterances “performative”). More generally, a set of words can be intended to be a special kind of utterance: e.g., a promise, request, order, etc. Austin’s third category, perlocutionary intentions, regard how the person making the utterance hopes to change the world through the words chosen (e.g., getting other people to do things because the speaker has made certain promises, requests, or orders). Continue reading "Layers of Intentions"
Jan 11, 2019 Anne Joseph O'ConnellAdministrative Law
Miriam Seifter,
Understanding State Agency Independence, 117
Mich. L. Rev. __ (forthcoming 2018), available at
SSRN.
In recent decades, our field of administrative law has taken an empirical turn, at least in part. We now know more about on-the-ground practices of federal agencies and their treatment in the federal courts, for example. Our focus, however, has been relentlessly on the federal level. To the extent that scholars look outside the federal government, to states or to private entities, for instance, they almost always examine the interaction with federal entities. Miriam Seifter’s work should divert your attention to the states—both to learn about state practices and to consider what those practices might tell us about federal institutions.
In her latest piece, Understanding State Agency Independence, Seifter examines agency independence at the state level and uses that examination to contribute a new perspective on agency independence at the federal level. Continue reading "A Two-Way Lens on Agency Independence"
