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Dancing on the Grave of Copyright?
Get PDFThe quarter century since Barlow’s writing allows us to assess his prophecy. The economy moved in the very direction that Barlow anticipated—from an economy focused on the ownership of things to an economy based on services and experiences. In high-income countries, services now account for three-quarters of the gross domestic product.
But intellectual property proved more resilient and adaptable than Barlow predicted. Intellectual property law both offered exceptions where necessary, while simultaneously expanding to cover new forms of creativity and activities. In this short essay, we argue that, for good or ill, intellectual property has reconfigured itself for an economy driven by information and experience.
But the evolution is hardly complete. New forms of expression keep testing the limits of intellectual property. Consider the blockbuster game Fortnite. Epic Games offers Fortnite game play for free—but users pay for virtual clothing or various “emotes”—dances that allow users to express themselves online during in-game play. Indeed, Fortnite players paid some $2.4 billion in 2018 for the right to engage in such expressions—literally, to “emote.” Internet entrepreneurs have figured out a way to commodify dancing itself. Barlow believed that the internet would liberate us from the commodifying forces of intellectual property—but rather, the internet brought commodification into previously intimate, sacred spaces. This essay considers IP in expressions of joy and shared meaning online in the form of emotes, GIFS, and memes: the stuff of which dreams are made. These aesthetic experiences bring playfulness and humanity to the internet. Are they the proper subject of intellectual property? Are such forms of cultural innovation and appropriation better addressed by ethics or law
Supreme Silence and Precedential Pragmatism: \u3cem\u3eKing v. Burwell\u3c/em\u3e and Statutory Interpretation in the Federal Courts of Appeals
Get PDFThis Article studies statutory interpretation as it is practiced in the federal courts of appeal. Much of the academic commentary in this field focuses on the Supreme Court, which skews the debate and unduly polarizes the field. This Article investigates more broadly by looking at the seventy-two federal appellate cases that cite King v. Burwell in the two years after the Court issued its decision. In deciding that the words “established by the State” encompass a federal program, the Court in King reached a pragmatic and practical result based on statutory scheme and purpose at a fairly high level of generality. Cases that cite King might be expected to accept or reject this kind of purpose move, and to generally be more attentive to matters of interpretation.
The results presented here reveal a dynamic landscape in which federal appeals courts seem relatively uncommitted to ideological battles over interpretive principles, notwithstanding the relatively small number of opinions that contain rhetorical flourishes in this area. Courts freely pursue the best reading of statutory text through textual and purposive means: linguistic analysis of the words, contextual readings of multiple statutory provisions and analysis of the statutory scheme, and evidence of purpose gleaned from textual and extra-textual sources. While not pervasive, legislative history commonly guides interpretation. These results hold across cases where text and purpose conflict and where text and purpose are in harmony. In cases of conflict, the results also hold across cases that reach results primarily based on text and cases that reach results based primarily on purpose. Further, given the opportunity to weigh in on lower court statutory construction debates, the Supreme Court has remained silent. This Article concludes that it is normatively desirable that lower federal courts have not embraced the statutory construction battles in an all-encompassing way. The Article concludes with the caveat that this research should be revisited to assess the effect of Donald Trump’s appointments to the judiciary
Techno-Optimism & Access to the Legal System
Get PDFFor legal technologists, apps raise the prospect of putting the law in the hands of disadvantaged people who feel powerless to deal with their legal problems. These aspirations are heartening, but they rest on unrealistic assumptions about how people living in poverty deal with legal problems. People who are poor very rarely resort to the law to solve their problems. In the situations when they do seek solutions, they confront educational and material impediments to finding, understanding, and using online legal tools effectively. Literacy is a significant barrier. More than 15 percent of all adults living in the United States are functionally illiterate, meaning that, at best, they read at the fourth-grade level. Inadequate access to the Internet and limited research skills compound the challenges. To reach people from marginalized groups, access-to-justice technologies need to be integrated with human assistance
Reforming Competence Restoration Statutes: An Outpatient Model
Get PDFDefendants who suffer from mental illness and are found incompetent to stand trial are often ordered committed to an inpatient mental health facility to restore their competence, even if outpatient care may be the better treatment option. Inpatient facilities are overcrowded and place the defendants on long waiting lists. Some defendants then spend weeks, months, or even years in their jail cell, waiting for a transfer to a hospital bed.Outpatient competence restoration programs promise to relieve this pressure. But even if every state suddenly opened a robust outpatient competence restoration program, an obstacle looms: the statutes governing competence restoration, which default to the inpatient treatment model. Several states mandate inpatient restoration in their statutory scheme. The rest allow for outpatient restoration, but the language of these laws often preserves the inpatient default by requiring defendants to meet a series of nebulous criteria before allowing them to participate in outpatient treatment. This Article is the first to examine how the language of competence restoration statutes, even those that allow for outpatient treatment, defaults to commitment to an inpatient facility. I do so by examining the wide latitude these statutes give to judges to place defendants in inpatient care and show how that discretion, paired with widespread false presumptions about the mentally ill, leads to overcommitment of incompetent defendants in state mental health facilities.I propose amendments to these statutes that will encourage judges to place defendants in outpatient care. Statutes must flip from inpatient-required or inpatient-unless to outpatient-unless, defaulting to outpatient treatment unless some specific criteria justify committing the defendant to an inpatient facility. Such a change would relieve pressure on inpatient facilities, opening up space for those who truly need inpatient treatment for competence to be restored. It would also ensure that specific criteria—not misunderstandings or fears about the mentally ill—inform the decision to commit the defendant to inpatient care
Gender Inequity Throughout the Legal Academy: A Quick Look at the (Surprisingly Limited) Data
Get PDFThe long-standing overrepresentation of female law faculty in skills teaching and service-oriented positions is well documented. In contrast, the historical underrepresentation of female law faculty in top dean and tenured or tenure-track teaching positions has been widely recognized but difficult to quantify. The American Bar Association has a link in the statistics archives of its website to a chart from Fall 2013 on the gender, ethnicity, and status of law faculty. The Association of American Law Schools (AALS) links to the same chart on its website. This chart replaced a similar chart covering 2008 to 2009 that the ABA has since removed from its website and is no longer available. To my knowledge, this is the extent of the data on gender, ethnicity, and status of law faculty provided by either organization. Although the ABA and the AALS, in turn, publish faculty data reported to the ABA by individual law schools, the data breakdown by gender and ethnicity distinguishes only between full and part-time faculty and does not indicate title or security of position. As part of its annual questionnaire, the ABA collects this information from law schools but does not release it. Ongoing access to historical and current information is critical in raising awareness about and making progress on gender equity issues
Post Secularism and the Woman Question
Get PDFI will discuss the “woman question in post secularism” by offering my critique of Saba Mahmood’s book “Politics of Piety: The Islamic Revival and the Feminist Subject”. But before I do so, let me just state that I am a legal academic and I am not a reader of the field of anthropology. I am unfamiliar with the theoretic jargon of the discipline- even less so of the jargon of the subfield, anthropology of religion from which Politics of Piety hails. Each discipline is autonomous more so fields of study within each discipline. Those fields usually coalesce around a celebrity figure of a theorist who originates a theoretic language that his or her mentees use to signal their affiliation with this field. Critique of the celebrity figures of the field usually occurs by way of addition, modification, and complexification and rarely in the form of radical critique. Radical critique is usually costly for those affiliated with a field because of the way academia is organized. One needs the reference letter, the invitation to a conference, and the book review. This is all to say that Politics of Piety may have already been subject to a great deal of critique-addition/modification/complexification, sadly being an outsider and missing the subtleties of exchange between mentors and mentees within the anthropology of religion, I am unaware of any of it.
The book: Politics of Piety was published in 2005 and has had a great and successful career in EuroAmerican academia. One sees it cited everywhere- and I mean everywhere- typically in the context of denouncing Western feminism-sometimes one sees the word “secular” inserted between “Western” and “feminism= or in asserting a counter and different kind of feminism to the Western one. The book, which anthropologizes the piety movement among women in the nineties of the twentieth century, namely, the women of the mosque in Egypt, has never been translated to Arabic. It has been more than a decade since its publication and has had a huge and formative effect on a whole generation of academics in EuroAmerican Academia especially among those interested in the study of Islam and Muslims and yet seems to have had a bare life in the Arab world. It appears that a book that talks about an Arab phenomenon has caused an explosion in the West but has landed a DUD in the Arab world. The question is why
The Shallow State: The Federal Communications Commission and the New Deal
Get PDFAmerican lawyers and law professors commonly turn to the New Deal for insights into the law and politics of today’s administrative state. Usually, they have looked to agencies created in the 1930s that became the foundation of the postwar political order. Some have celebrated these agencies; others have deplored them as the core of an elitist, antidemocratic Deep State. This article takes a different tack by studying the Federal Communications Commission, an agency created before the New Deal. For most of Franklin D. Roosevelt’s first two presidential terms, the FCC languished within the “Shallow State,” bossed about by patronage-seeking politicians, network lobbyists, and the radio bar. When Roosevelt finally let a network of lawyers in his administration try to clean up the agency, their success or failure turned on whether it could hire the kind of young, smart, hard-working lawyers who had at other agencies proven themselves to be the “shock troops of the New Deal.” Only after James Lawrence Fly, formerly general counsel of the Tennessee Valley Authority, became chairman and hired lawyers like himself did the FCC set sail. It cleaned up its licensing of radio stations and addressed monopoly power in the industry without becoming the tool of an authoritarian president or exceeding its legislative and political mandates
No Arbitrary Power: An Originalist Theory of the Due Process of Law
Get PDF“Due process of law” is arguably the most controversial and frequently-litigated phrase in the American Constitution. Although the dominant originalist view has long been that Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees and don’t constrain the “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there’s a weighty case for some form of substantive due process. In this Article, we review and critique these findings employing our theory of good-faith originalist interpretation and construction.
We begin by investigating the “letter” of the Due Process of Law Clauses — that is, the original meaning of their texts. Next, to develop doctrine by which this meaning can be implemented, we identify the clauses’ original function — their “spirit” — of barring arbitrary exercises of power over individuals that rest upon mere will rather than constitutionally proper reasons. We contend that the original letter and spirit of the “due process of law” in both clauses requires federal and state legislators to exercise their discretionary powers in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends and imposes a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends. Finally, we confront hard questions concerning the scope of the states’ reserved powers, acknowledging the flaws in the “police-power” jurisprudence associated with the so-called “Lochner era” and we delineate an approach that will better safeguard all “person(s)” against arbitrary power.
By so doing, we assist state and federal legislators by providing clarity concerning the constitutionally proper ends that federal and state legislators can pursue; aid state and federal judges by equipping them to review legislators’ pursuit of those ends; and help members of the public by enabling them to monitor the performance of their legislative and judicial agents
Brief of Amici Curiae 116 Law Librarians and 5 Law Library Organizations in Support of Respondent, Georgia v. Public.Resource.Org, Inc., No. 18-1150 (U.S. Oct. 16, 2019)
Get PDFDue process and the rule of law require that the public has meaningful access to “the law.” Every major modern society since the Greeks has recognized the importance of this principle. Roscoe Pound, Theories of the Law, 22 Yale L.J. 114, 117 (1912).
In the United States, “the law” largely comes from appellate courts, legislatures, and administrative agencies who have been granted rule-making authority. As every first year law student learns, those law-making bodies have developed highly specific methods for communicating their pronouncements of law through official publications, such as the Official Code of Georgia Annotated (“OCGA”).
Those specific methods and their resulting official publications serve a number of important functions that are intrinsic to the underlying purpose of supporting democracy and of fair notice of the law. Official publications of the law assure the reader of the reliability and currency of the text, as well as its acceptance for use in other parts of the legal system, such as for citation before a court. Access to official publications is also critical for conducting and supporting legal scholarship, teaching legal research, preserving state legal materials, and providing equal and equitable access to legal information. A critical feature that enables those uses is that the government has identified the publication as holding special weight as an official, authoritative source.
The major point of this brief is that when a state gives official status to a publication containing binding legal pronouncements, the contents of the whole of that publication must be freely and fully accessible by the public. Assertion of copyright over even portions of the publication effectively renders access and use of the core statutory text meaningless. In addition to the logistical difficulties of disentangling binding edicts of law from ancillary materials published with it, if the publication must be disassembled into its component parts for reuse-annotations protected and filtered out, while the statutory text may be copied - the remaining pieces are no longer the “official” publication and unusable for their intended purpose. A state should not be allowed to assert the broad and powerful coercive rights granted by copyright over an official publication of law by interweaving clearly uncopyrightable edicts of law with otherwise copyrightable ancillary materials, such as annotations. Granting copyright protection over even portions of the OCGA would harm law librarians and by extension the public, while granting a windfall to publishers and states who should need no copyright incentive to fulfill their constitutional obligation to publish official copies of their laws. Accordingly, this Court should affirm the decision of the 11th Circuit
Boilerplate and Party Intent
Get PDFIt is commonly recognized that parties often do not read or understand contract boilerplate they agree to, and that such parties might not intend all the terms in it. Less often noticed are decisions that favor boilerplate over evidence of the parties’ contrary intent for the very reason that it is boilerplate. This article discusses that phenomenon. It identifies decisions in which courts favor boilerplate terms over other evidence the parties’ intent because it is boilerplate, discusses the rules that explain those outcomes, and examines the reasons behind the rules.
A contractual writing, whether individually negotiated and drafted or boilerplate, often displaces other evidence of the parties’ agreement. Plain meaning rules, the parol evidence rule, and the use of formalities can all operate to limit extrinsic evidence of the parties’ intent. But each rule also has special application to boilerplate. Plain meaning rules can serve to generate uniform construction of standard terms or adhesive contracts across multiple transactions. Some authorities suggest that standard terms and adhesive contracts are presumptively integrated, avoiding the standard inquiry into the parties intent to integrate under the parol evidence rule. And the judicial construction of boilerplate language sometimes transforms it into something like a legal formality—words whose legal effect depends on their form rather than their meaning.
In addition to these special applications of general rules to boilerplate writings, boilerplate is sometimes subject to more specific rules that limit evidence of the parties’ contrary intent. When the law mandates that boilerplate language be included in a contractual writing, the government’s understanding of that language should, ceteris paribus, control, even if the parties understood it differently. In markets that benefit from uniform contract terms and where a large portion of market participants employ a standard form to achieve those benefits, courts should seek to construe forms uniformly, with limited regard for individual parties’ understandings of them. Courts have at their disposal a number of tools to achieve such uniform construction. Courts sometimes defer to the non-binding construction other courts have put on the same language. Depending on the circumstances, they might also restrict their interpretation to the standard form’s plain meaning, defer to the form author’s interpretation of it, defer to regulators’ interpretation of it, or deploy a stringent contra proferentem rule. Finally, section 211(2) of the Restatement (Second) of Contracts suggests that it is sometimes reasonable to construe adhesive contracts at the expense of non-drafting parties’ understandings of them, although the Restatement leaves it unclear just when that is. Although there is not much judicial support for section 211(2), courts certifying consumer class actions have recently begun citing the provision for the proposition that boilerplate terms in consumer contracts should be construed without considering evidence of individual consumers’ understandings of them