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Privative Copyright
Get PDF“Privative” copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of the author’s personal identity. Driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, these claims are almost as old as Anglo-American copyright law itself. Yet modern thinking has attempted to undermine their place within copyright law and sought to move them into the domain of privacy law. This Article challenges the dominant view and argues that privative copyright claims form a legitimate part of the copyright landscape. It shows how privative copyright claims derive from considerations that are genuinely authorial and seek to redress a form of harm that is unique to the nature of the work involved – a harm best described as “disseminative.” Tracing the historic evolution of privative copyright claims in Anglo-American copyright law, it develops a theoretical basis for understanding the workings of these claims and offers a framework for courts to deploy in adjudicating them, which addresses the concerns about free speech and censorship that have contributed to the ignominy that privative copyright claims continue to encounter in modern copyright jurisprudence
Copyright Protection for Applied Art and Works of Artistic Craftsmanship after \u3cem\u3eStar Athletica\u3c/em\u3e
Get PDFAs the very first session proclaimed, the Star Athletica case has not been a model of total clarity on the Supreme Court’s part. I’m going to explore that proposition. I will go through some basic elements of the copyright statute, and will then apply those rules to several examples. The Copyright Act sets out the category of pictorial, graphic, and sculptural (“PGS”) works, whose statutory definition includes applied art. That was the subject matter at issue in Star Athletica. The statute also provides that PGS works “shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned.” “Works of artistic craftsmanship” has been a somewhat overlooked category, but I think, as a result of Star Athletica and also the pending amendments of the Compendium of U.S. Copyright Office Practices, that this category will receive a lot more attention. It does not, however, necessarily follow that the meaning of that category will be any clearer than the standard for what is a PGS work
Delegating or Divesting?
Get PDFA gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution’s early history – most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation.
A case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court’s current nondelegation doctrine, the article employs history to challenge the doctrine – arguing that the Constitution does not limit Congress’s delegation of legislative power. But the article’s most central historical claims are mistaken. For example, when quoting key eighteenth century authors, the article makes errors of omission and commission – leaving out passages that contradict its position and misunderstanding the passages it recites. The initial goal of this Essay is therefore to explain the evidentiary mistakes in the attack on nondelegation.
This Essay’s broader aim, however, is conceptual: it points out two basic principles that have thus far received insufficient attention from both the defenders and opponents of administrative power.
First, the delegation problem can be understood more specifically as a question of vesting. To be sure, the nondelegation doctrine should be put aside – not on the grounds offered by Professors Mortenson and Bagley, but because the Constitution speaks instead in stronger terms about vesting. Thus, what are generically depicted as questions of delegation can be understood more specifically in terms of vesting and divesting. It thereby becomes apparent that Congress cannot vest in others, or divest itself of, any power that the Constitution vests in it.
Second, it is necessary to draw attention to a much-neglected idea of executive power. Recent scholarship has debated widely different conceptions of executive power – Mortenson’s view, now echoed by Bagley, being that executive power is an “empty vessel.” But all such scholarship tends to ignore another conception of executive power: that it involves the nation’s action, strength, or force. This understanding of executive power has foundations in eighteenth-century thought – as revealed even by the authors quoted by Mortenson and Bagley. Indeed, it is the conception asserted by Federalist Number 78 and evident in the Constitution itself.
A narrow historical inquiry thus points to broad conceptual lessons. Both delegation and executive power need to be reconsidered on the basis of the Constitution and its history
The Case for Unfair Methods of Competition Rulemaking
Get PDFA key feature of antitrust today is that the law is developed entirely through adjudication. Evidence suggests that this exclusive reliance on adjudication has failed to deliver a predictable, efficient, or participatory antitrust regime. Antitrust litigation and enforcement are protracted and expensive, requiring extensive discovery and costly expert analysis. In theory, this approach facilitates nuanced and fact-specific analysis of liability and well-tailored remedies. But in practice, the exclusive reliance on case-by-case adjudication has yielded a system of enforcement that generates ambiguity, drains resources, privileges incumbents, and deprives individuals and firms of any real opportunity to participate in the process of creating substantive antitrust rules. It is difficult to quantify this harm.
This Essay argues that rulemaking under § 5 of the Federal Trade Commission Act should supplement antitrust adjudication, and that this institutional shift would lower enforcement costs, reduce ambiguity, and facilitate greater democratic participation. We build on existing scholarship to debunk the view that the Federal Trade Commission (FTC) does not have competition rulemaking authority pursuant to the Administrative Procedure Act conferring Chevron deference, and trace legislative history to underscore how Congress designed the FTC to play a unique institutional role.
We close by outlining an initial set of factors that should weigh in favor of rulemaking: when there is significant learning from past enforcement and when private litigation would be unlikely. Finally, we pose questions in the context of the FTC’s recent hearings to prompt further discussion on where this unused tool would be most useful
Modern Provisions in Investment Treaties
Get PDFGovernments are pursuing substantive and procedural reform of the international investment regime in recognition that there are fundamental, systemic, and interrelated concerns about current approaches to investment governance, and that current approaches have failed to meet their purported objectives.
A vast majority of the 1,023 publicly-known treaty-based claims have been brought under “old-generation” treaties. In 2018, for example, 60% of such claims were brought under treaties originally concluded in the 1990s or earlier, and all but one was filed under a pre-2011 treaty. These old-generation treaties include vague and far-reaching obligations for states, generally do not include any reference to investor responsibilities (even in non-binding terms) or obligations, and rarely include provisions that seek to meaningfully reaffirm and protect the ability of states to regulate without having to pay compensation for adoption or enforcement of legitimate regulatory measures. Effective environmental, human rights, gender, health, labor, and other public interest provisions are generally absent from these agreements.
Without provisions that effectively protect regulatory space and flexibility, and meaningfully advance sustainable development objectives of states parties, respondent host states have been left exposed to costly investor-state dispute settlement (ISDS) proceedings and claims challenging public interest measures. Investor claimants have also relied on investment treaties and ISDS to make threats of claims in order to distort government measures or conduct in foreign investors’ favor. In the context of COVID-19, for example, some law firms seized on the pandemic to advise multinationals on strategies for relying on investment treaties and ISDS to bring claims against governments on the basis of COVID-related measures
Holmes\u27s Understanding of His Clear-and-Present-Danger Test: Why Exactly Did He Require Imminence?
Get PDFFor all the suggestiveness and staying power of his market-in-ideas metaphor, Justice Oliver Wendell Holmes’s most significant influence on First Amendment law has turned out to be his notion that only imminent harm can justify punishment for expressions of opinion. This emphasis on the time dimension in the calculus of harm is now entrenched in modern doctrine. It is easy to imagine how First Amendment law might have developed differently had Holmes’s peculiar focus on imminence not been a factor in shaping how the freedom of speech has come to be understood in the United States
Summary: Combating Climate Change with Section 115 of the Clean Air Act
Get PDFThe scale and scope of the climate crisis calls for comprehensive nationwide efforts to reduce greenhouse gas emissions. New legislation, passed by Congress and signed by the President, is the first and best option for climate action at the federal level. This could be a version of the Green New Deal, a carbon tax, sectoral limits, an emissions cap with compliance trading, or another approach. What matters most is that the legislation effectively cut the greenhouse gas emissions driving the world’s temperatures ever higher. Unfortunately, the prospect for federal legislation is uncertain, while strong and decisive action is needed now. A president committed to tackling climate change will need a backup plan in case Congress remains gridlocked, one that relies on existing statutes to achieve the deep emission reductions the science says we need
The Eagle Theory
Get PDFThis Article evaluates three interpretations of the Takings Clause capable of generating a regulatory takings doctrine. The first, the Epstein interpretation, puts primary emphasis on what it means to provide “just compensation” for takings; the second, the Penn Central interpretation, centers on what it means to “take” property; the third, which I call the Eagle theory, in honor of Steven Eagle, this year’s Brigham-Kanner prize recipient, focuses on when the government has taken “private property.” The Article argues that the Eagle theory has the most plausible basis in the original understanding of the Takings Clause, rests on a theory about the Clause that enjoys broad contemporary support, and is the most capable of generating predictable outcomes at a reasonable cost. The primary drawback of the Eagle theory is that it cannot serve as a general source of protection for property rights against arbitrary or oppressive government action. If adopted as the basis for the regulatory takings doctrine, therefore, the Eagle theory would have to be supplemented with a second source of constitutional protection for property, such as substantive due process. This, as it happens, is precisely what Steven Eagle has urged
Deals
Get PDFOver a quarter of a century ago, Ron Gilson, Dan Raff, and I developed a new course, The Economics of Complex Transactions, which came to be known as Deals. The motivation for the course was our perception of a great imbalance in the law school curriculum, which was weighted heavily toward litigation, particularly appellate litigation. While a substantial number of our graduates were becoming transactional lawyers, there was hardly anything available to prepare them for that practice. Our concept was that lawyers were transaction engineers and, when designing contracts, they faced a generic set of problems. Furthermore, there were techniques for coping with these problems that transcended particular transaction types.
The first two-thirds of our course focused on the problems and provided techniques to cope with them. In the remaining third, the students were given the papers from a particular transaction and were asked to explain how the parties dealt with the problems, and if they could have done better. The types of transactions ranged from corporate acquisitions, long-term contracts, movie deals, construction projects (including a multi-billion-dollar expansion of the Panama Canal), venture capital and private equity deals, and pharma-biotech projects. We built the course around several concepts: risk; information (adverse selection in particular); moral hazard; and adaptation to change (the reliance-flexibility tradeoff). We emphasized reverse engineering – if we observe that parties do X, then we try to find an explanation for it
Why Should We Care About International Law?
Get PDFInternational lawyers are used to having their discipline dismissed. A conspicuous strand of thought in U.S. foreign policy circles — known as realist — posits that international law does not matter. Realists of course recognize that states and other global actors speak the language of international law. But they view this discourse as cheap talk or epiphenomenal. They contend that state decisions on the international plane are animated not by the dictates of international law but by material interests and power. States act consistently with international law insofar as they have independent reasons for acting that way. If those reasons dry up, states, especially powerful states, can just violate the law; because the international legal system lacks centralized enforcement agents, any repercussions for the violation will be determined not by law but by the participants’ own interests and power relations. International law is again irrelevant.
The realist position goes to the heart of the enterprise, so international relations and legal scholars have devoted enormous energy to refuting it. There is now an expansive literature on the efficacy of international law. Most of this work measures international law’s efficacy in terms that realists can appreciate, by asking whether international law helps to achieve specific policy outcomes — for example, reductions in greenhouse gas emissions, trade restrictions, or incidents of torture. The analysis ultimately turns on the facts. But it also entrenches a particular view of what makes international law worthwhile. It suggests that international law matters insofar as it advances the material outcomes that it itself prescribes