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Copyright and Parody: Touring the Certainties of Intellectual Property and Restitution
Get PDFThe essay that follows examines the boundary between two sets of rules. The first set arises under the law of Restitution, particularly the rule that volunteers ordinarily need not be rewarded. (Another way to state this same Restitution rule is to say that the retention of benefit voluntarily conferred is ordinarily not unjust enrichment .) The second set of rules are those of Intellectual Property law, which creates property in a special kind of volunteer. My argument is simply that the law of Restitution leads almost directly to the law of Intellectual Property, though the two areas are premised on diametrically opposed baseline certainties.
For simplicity\u27s sake, the essay primarily uses one methodology - that of economics. Of course, American and Canadian law have many dimensions. Rules and practices are most stable when they are supported by the convergence of many policies, of which economics is merely one.16 Thus the essay does address some additional policies, such as autonomy and the principle of equal respect for persons, when they are particularly apt. Nevertheless, for ease of exposition, the economic analysis will dominate. Hopefully, it will demonstrate both why the boundaries between liberty and property are fuzzy, and the nature of some of the principles that help shift the boundaries in one direction or another.
The essay then turns to examining the doctrine of property law that the intentional crossing of a property boundary is prima facie actionable. The essay uses three American doctrines from intellectual property, fair use , the idea/expression dichotomy , and substantial similarity , to demonstrate that in appropriate circumstances, even this apparent certainty must give way.
In its final stage, the essay turns from exposition to advocacy. I hope to persuade my Canadian readers to reconsider the certainty with which Canadian law now favors an established artist\u27s interests over those of a parodist and her audience.
Today Canada and the United States have adopted quite opposed approaches to parody. In the U.S., the fair use , doctrine will often shelter a parody that embodies a substantial portion of the work that it ridicules. This was demonstrated vividly in the recent U.S. Supreme Court case considering whether a rap group, Live Crew could, without permission, lawfully record and commercially distribute a parody of the Ray Orbison hit, Oh, Pretty Woman. 17 The Court remanded the copyright owner\u27s infringement case for further consideration, in an opinion that stressed the open-ended nature of the fair use doctrine.18 In Canada, by contrast, the doctrine of fair dealing does not provide much shelter for parodies,19 and this hostility is underlined by Canada\u27s generous statutory treatment of what it calls the artist\u27s moral right of integrity . 20 Although the Supreme Court of Canada has not addressed any case of parody , the Canadian fair dealing statute lays out a set of crystalline rules into which it would be difficult to squeeze most parody cases.
The essay elucidates an economic logic that helps to explain the uncertain, open-ended, case-by-case treatment of the United States courts. In the process, it is hoped that at least some Canadians might be led to appreciate the merits of an approach which, under the fair use doctrine , sometimes does allow parodies to distort copyrighted works. My argument is in part motivated by the value that transgressive and appropriative works bring to a culture.22 Nevertheless, as mentioned, in this piece I will largely confine my analytic tools to the economic.
Intellectual property law is exciting because it is where we can see new rights being created as we watch. It reminds us that much of what concerns scholars comes to life daily in the hands of judges and legislators
You no longer have to be a lawyer to practice law in Arizona. That\u27s good and bad
No full textNew rules allow nonlawyers to practice law and own law firms in Arizona. This welcomed revolution in access to justice will have profound effects on the justice system and legal profession.
And like all broad reforms, it has possible unintended consequences.
The new rules allow nonlawyers to invest in and manage Arizona law firms structured as “Alternative Business Structures” — business entities that provide legal services and include nonlawyers with economic interests or decision-making authority.
Nonlawyer economic interests or decision-making authority must be disclosed to a special committee and both the Alternative Business Structure and its investors are subject to various licensing and ethics requirements
State Joint Employer Liability Laws and Pro Se Back Wage Claims in the Garment Industry: A Federalist Approach to a National Crisis
Get PDFThe garment industry, one of the largest manufacturing bases in the United States, withholds millions of dollars annually from its employees in unpaid minimum wages. However, courts have not clearly addressed the question of whether the Fair Labor Standards Act, which establishes federal wage and hour laws, makes garment manufacturers and retailers liable for the minimum wage violations of their contractors. The U.S. Department of Labor (DOL), the federal agency that enforces wage and hour laws, investigates few garment contractors, and collects little of the total owed back wages. Further, the DOL\u27s relationship with the INS compromises its ability to advocate on behalf of immigrant workers, who form the backbone of the garment industry.
In the wake of federal inaction, some states have implemented antisweatshop laws designed to enforce minimum wage and hour laws. For example, New York has focused on manufacturer and contractor registration enforcement. However, New York\u27s efforts have not resulted in increased wage and hour compliance. California\u27s new law, Assembly Bill 633 (AB633), the Sweatshop Accountability Bill, improves on New York\u27s approach by considering manufacturers and retailers guarantors of back wages owed by their contractors, and by providing a private cause of action for workers to assert claims against manufacturers through a Labor Commission hearing. However, AB633 lacks an efficient and effective adjudicative process, and suffers from vagueness on joint liability provisions. States where the garment industry flourishes should independently investigate garment employees\u27 claims for owed back wages in Labor Commission hearings, and add a presumption that retailers and manufacturers are joint employers unless the contractor provided a unique service separate from the company\u27s production process.
Critics may argue that (1) joint liability collapses the distinction between employers and entities that utilize legitimate independent contractors, (2) admitting a state investigation in the hearing denies due process to the parties, and (3) aggressive minimum wage enforcement will hasten globalization and worsen overall employee conditions. However, presuming joint liability is appropriate in industries that use contingent labor to avoid liability. Further, any loss in due process by admitting investigations does not prejudice either party disproportionally, and is outweighed by efficiency and fairness. Finally, even if enforcing labor laws results in contracting overseas, states should defend a basic standard of living over sub-poverty employment.
Alternatively, critics may respond that a hearing process does not remove enough barriers, and that states should establish a strict liability insurance regime, like unemployment insurance, to reimburse workers for owed back wages. However, assuming the equal efficacy of both approaches, a state-led joint liability/pro se approach is superior because it maintains due process protections and treats nonpayment of back wages as an illicit act. Nevertheless, if guarantors restructure their production process to defeat the joint employer presumption, or if hearings fail to provide sufficient procedural protections for workers, states should consider a strict liability, insurance-based regime to help resolve this national crisi
Trafficking and the Shallow State
Get PDFMore than two decades ago, the Trafficking Victims Protection Act (TVPA) established new, robust protections for immigrant victims of trafficking. In particular, Congress created the T visa, a special form of immigration status, to protect immigrant victims from deportation. Despite lofty ambitions, the annual cap of 5,000 T visas has never been reached, with fewer than 1,200 approved each year. In recent years, denial rates also have climbed. For example, in fiscal year 2020, U.S. Citizenship and Immigration Services denied 42.79% of the T visa applications that the agency adjudicated, compared with just 28.12% in fiscal year 2015. These developments came as former president Donald J. Trump proclaimed a deep commitment to end the “epidemic” of human trafficking and to protect “innocent” victims.Though scholars have critiqued the general protection framework for immigrant victims of trafficking, this Article unearths an understudied problem: the often-unseen role of the “shallow state.” In contrast to the much-discussed “deep state” of career bureaucrats, this Article suggests that low-level administrative actors adjudicating humanitarian immigration cases have subtly worked to undermine protections for immigrant victims of trafficking. This Article demonstrates how administrative actors through a range of tactics, including delay, rejection, and heightened stakes, have contorted the T visa application process to make it more difficult for immigrant victims to navigate. The Article explores how these actions—often diffuse and obscured—have been hard to identify and subject to judicial review. It warns that these bureaucratic tendencies have resulted in declining approval rates with the potential to erode protections for immigrant victims of trafficking for years to come. It, thus, prescribes not only greater attention to such practices but also administrative and judicial remedies
What is United About the United States?
Get PDFJack Balkin’s The Cycles of Constitutional Time aims, among other things, to preserve and promote what Jack regards as “democracy and republicanism,” understood as “a joint enterprise by citizens and their representatives to pursue and promote the public good.” My question is whether and how this normative project is possible in a world full of perceptions of social, political, and moral phenomena akin to the white dress/blue dress internet controversy of 2015. Even if Madison had the better of Montesquieu in 1788 (and that is questionable), the United States has grown dramatically since the founding era, in a patchwork, and often violent, fashion that paid little attention to preconditions for republican governance. The kind of basic homogeneity that Montesquieu thought was essential for republicanism – and here we are talking about agreement on things as basic as the nature and purpose of law and the meaning of “the public good” – is absent from the contemporary United States, and there is no good reason to think that anything on the horizon can take its place. As a result, the very concept of “the United States” is dubious, as is any project founded on that idea. Perhaps the one way to salvage such a project would be a massive reduction in the size and scope of government, so that the consequences of battles over essentially contested concepts such as justice and law are not apocalyptic. Put another way: The kind of republican cooperation and trust that Jack desires is probably possible only if the stakes of cooperation and trust are very low. Thus, there may be an additional element for successful republicanism that escaped even Montesquieu’s keen attention: a government of carefully defined and sharply limited powers
Do Lenders Still Monitor? Leveraged Lending and the Search for Covenants
Get PDFIt was once conventional wisdom that lenders routinely influenced corporate managers’ decision making. Covenants constrained borrower risk taking and compelled specific affirmative obligations to protect lenders. Recent policy discussion, however, laments loan markets’ turn to various forms of high-risk lending. So-called leveraged loans — relatively risky, below-investment-grade loans — more than doubled in outstanding dollar terms, growing from about 1.2 trillion by 2019. These risky loans have taken up a larger and larger share of the loan markets over time. More leveraged loans are also “covenant-lite,” issued without traditional financial maintenance covenants. And regulators worry about “add-backs” — borrowers’ growing practice of making upward adjustments to projected earnings that tend to weaken leverage constraints./= / \u3e/= / \u3eMoreover, bank regulatory changes have incentivized “originate-to-distribute” loan syndications that enable non-bank lenders to hold and trade leveraged loans too risky for banks to keep. Syndicated lending now involves greater and greater participation by nonbank or “institutional” lenders like hedge funds, CLOs (collateralized loan obligations), and mutual funds. Commentators worry about the new species of risky loans, with their dearth of traditional covenants and the fewer instances of lender intervention, which may portend instability in debt markets. At the same time, weakened covenant protections may lead to weakened corporate governance./= / \u3e/= / \u3eIn this Article, I respond to these fears, arguing that they may be overblown. The increasing share of leveraged and covenant-lite loans may not necessarily evidence undisciplined debt issuance. Many seemingly troublesome loans are issued as subparts of deals that include loans with traditional covenants and cross-default provisions, which effectively constrain borrower behavior. Though add-backs may increase firm leverage, they may also improve the informativeness of earnings-based financial covenants. In addition, while the incidence of loan covenant violations has dropped dramatically across U.S. public firms, recent research suggests that covenants have become more efficient. In effect, covenants are doing more with less. Financial covenants have generally become less restrictive and more discriminating in differentiating distress from non-distress situations
Effects of Political versus Expert Messaging on Vaccination Intentions of Trump Voters
Get PDFTo increase COVID-19 vaccine uptake in resistant populations, such as Republicans, focus groups suggest that it is best to de-politicize the issue by sharing five facts from a public health expert. Yet polls suggest that Trump voters trust former President Donald Trump for medical advice more than they trust experts. We conducted an online, randomized, national experiment among 387 non-vaccinated Trump voters, using two brief audiovisual artifacts from Spring 2021, either facts delivered by an expert versus political claims delivered by President Trump. Relative to the control group, Trump voters who viewed the video of Trump endorsing the vaccine were 85% more likely to answer “yes” as opposed to “no” in their intention to get fully vaccinated (RRR = 1.85, 95% CI 1.01 to 3.40; P = .048). There were no significant differences between those hearing the public health expert excerpt and the control group (for “yes” relative to “no” RRR = 1.14, 95% CI 0.61 to 2.12; P = .68). These findings suggest that a political speaker’s endorsement of the COVID-19 vaccine may increase uptake among those who identify with that speaker. Contrary to highly-publicized focus group findings, our randomized experiment found that an expert’s factually accurate message may not be effectual to increase vaccination intentions
The Place of the Presidency in Historical Time
Get PDFThis Essay arises from a symposium based on Jack Balkin’s book, The Cycles of Constitutional Time, which argues that America’s constitutional development is marked by patterns of decline and renewal. I contend that the presidency today has become endowed with outsized expectations borne of popular frustrations with a centuries-old document that is desperately in need of updating. As a result, Presidents enjoy imbalanced and dangerous power to initiate legal reform or stymie it. Going forward, three dynamics are worth watching. First, noisy signals coming from performative transformation can obscure the true source and scope of legal changes initiated by a President. This dynamic frustrates accountability and exacerbates the possibility of unearned transformation. Second, institutional imbalance over the ability to generate legal change can take the form of ad hoc bureaucratic work-arounds. Third, modern Presidents are increasingly tempted to rely on social movements to gain and retain power. These developments augment a President’s ability to influence the pace or degree of legal change, but each also carries significant pitfalls
Patient responses to physician disclosures of industry conflicts of interest: A randomized field experiment
No full textMost patients in the United States depend on physicians who have financial relationships with the healthcare industry. These physician-industry relationships represent a conflict of interest: a potential clash between the physicians’ professional responsibilities and their self-interest. We conducted a randomized field experiment to assess the impact of written disclosures of physicians’ conflict of interest on patients’ appointment attendance, knowledge of these conflicts of interest, and their trust in their physician and hospital. Patients (N = 1903) attending outpatient clinics at a large U.S. academic hospital from 2015 to 2016 who had appointments with physicians earning more than $20,000 from industry in the last year were randomized to receive (or not receive) disclosures of their physicians’ financial conflicts of interest (with or without explanation of the risks and/or benefits of such conflicts) in their appointment-reminder letters. There were no differences across condition in missed or cancelled appointments. For patients who attended eligible appointments with their physician and completed the post-appointment survey (N = 867/1276; 68% response rate), the disclosure intervention revealed significant improvement in patients’ knowledge of their physicians’ financial relationships but no significant differences in patients’ trust in their physician or hospital. Risk and benefit framings of financial relationships did not significantly affect any outcomes. These findings highlight that although mailed financial conflict of interest disclosures are effective as an educational tool, disclosure cannot be a panacea to addressing physician-industry relationships if the intended purpose is for patients to assimilate the information into their decision-making and account for potential physician bias
THE FIDUCIARY SOCIAL CONTRACT
No full textThe United States Constitution is, in form and fact, a kind of fiduciary instrument, and government officials acting pursuant to that document are subject to the background rules of fiduciary obligation that underlie all such documents. One of the most basic eighteenth-century fiduciary rules was the presumptive rule against subdelegation of discretionary authority. The rule was presumptive only; there were recognized exceptions that permitted subdelegation when it was specifically authorized by the instrument of agency, when it was validated by custom or tradition, and when it was necessary for accomplishment of the agent’s authorized purposes. To what extent might that third exception justify broad subdelegation of legislative authority by Congress to administrative agencies? Part of the answer, which is beyond the aims of this essay, depends on ascertaining the nature of the job entrusted to Congress under the Constitution, which means ascertaining the scope of Congress’s delegated powers. Another part of the answer depends on the extent to which expertise can and may serve as justification for entrusting others with tasks with which one has previously been entrusted. What would a responsible fiduciary approach to expertise—whether for purposes of advice or subdelegation—look like in the modern administrative state? The answer requires a careful examination of the idea of expertise and how it can be applied, and misapplied, in modern governance. This essay offers only the briefest introduction to that problem by trying to frame the questions that responsible fiduciaries need to ask before subdelegating authority. Such questions include: (1) What are the limits of the principal’s own knowledge? (2) What reason is there to think that gaps in that knowledge can, even in principle, be filled by experts? (3) Will application of expert knowledge lead in any particular instance lead to better decisions, given the ubiquitous problem of second-best? and (4) Have you picked the right experts, and will they actually apply expertise rather than using their claim to expertise as a cover for pursuing other goals? These questions in the context of the modern administrative state are just one aspect of a broader problem of nonexperts trying to evaluate—both before and after the fact—the work product of experts