Lunney’s Paradox: More Copyright May Lead to Less Creativity

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"

Translating Economics for Immigration Policy

Howard F. Chang, The Economics of Immigration Reform, 52 U.C. Davis L. Rev. ___ (2018).

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"

Procedural Innovations to Address the Secrecy Problem in National Security Litigation

Shirin Sinnar, Procedural Experimentation and National Security in the Courts, 106 Cal. L. Rev. 991 (2018).

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"

Taking Away Citizenship: Lessons from the British Advisory Committee

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.1 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.2 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"

Layers of Intentions

Martin Matczak, Three Kinds of Intention in Lawmaking, 36 Law and Philosophy 651 (2017).

“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"

Testing Main category

The question of the relationship between criminal law and family law has been amply explored in recent years, the seemingly neat separation between the fields coming under repeated challenge.1 Scholars have tackled the question from a variety of different perspectives: showing us how criminal law can function as family law for a specific section of the population, obliterating in the process basic family law assumptions about privacy and autonomy; 2 or demonstrating the ways in which family law and criminal law have always operated in tandem to enforce specific sexual mores or ideals of intimacy.3 In Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, Elisabeth Katz contributes to this body of scholarship in a way that has the potential to unmoor contemporary assumptions about the civil nature of family court jurisdiction.

In this carefully researched and thoughtfully written piece of legal history, Katz concentrates on the history of family courts and their jurisdiction especially in the first half of the twentieth century. Adding a plethora of original sources to the historical literature on domestic relations courts,4 Katz highlights aspects of this history that had perhaps gone underappreciated inside family law.5 At their inception, some of the most influential domestic relations courts in the country focused heavily on the criminal prosecution of nonsupport cases and no one at the turn of the twentieth century would have thought of domestic relations courts as anything other than a branch of the criminal courts. More importantly, Katz argues that criminal jurisdiction over non-support cases continued to be at the core of family courts’ expansive jurisdiction, even as states strategically recharacterized the nature of these courts as civil in order to give judges more flexibility without the necessity of criminal law protections.

Katz tells this story in three steps. The first step is the gradual criminalization of family non-support in the late nineteenth century. States adopted criminal penalties for family non-support, usually at the misdemeanor level, at the behest of overburdened charities using a discourse of paternal moral failures reminiscent of the “deadbeat dads” of more recent welfare reforms. Some criminalized non-support as a felony, but in most states misdemeanor non-support was judged sufficient to qualify for extradition, a tool thought of as necessary in an era of increasingly mobile family deserters.

A Two-Way Lens on Agency Independence

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"

Labor Power and Industrial and Political Democracy

Ewan McGaughey, Democracy in America at Work: The History of Labor’s Vote in Corporate Governance, 42 Seattle U. L. Rev. __ (forthcoming 2019), available at SSRN.

Like everybody else, I’ve been thinking a lot lately about democracy. How can we nurture faith in democracy when significant segments of the working class feel so disempowered that they either don’t vote at all or turn to nihilist, xenophobic, racist, or hateful visions of American life offered by speakers who seem to have less interest in governance than in nurturing grievances? Although turn-out in the mid-terms was high,1 as mid-term elections go anyway, still many people who could have voted did not vote. This invites the question about what law can do to build institutional structures and a culture that convinces the disaffected that they can join together to build a better world. One of the very few things on which one can find agreement between the right and the left today is that a lot of poor people and working people have been left behind by the elites that seem increasingly to control their work lives, their economy, and politics. But the agreement stops there, and the sense of polarized stalemate only breeds cynicism and despair.

I found an antidote to despair in reading Ewan McGaughey’s forthcoming paper, Democracy in America at Work: The History of Labor’s Vote in Corporate Governance. It is a perceptive, broadly synthetic, and snappily-written account of the past and possible future of labor’s role in corporate democracy. The paper enriched my thinking about re-linking democracy in political life with democracy in work life. It bubbles over with ideas about how law could create a more accountable form of capitalism. Based on an admirably succinct survey of the history of labor involvement in corporate governance, McGaughey articulates a bold, provocative, and exciting thesis: “Democratic voice in the economy is embedded in American tradition, efficient, legitimate, and (even without federal law reform) could be written into state laws today.” (P. 3.) Continue reading "Labor Power and Industrial and Political Democracy"

In Support of Arbitration

Pamela Bookman, The Arbitration-Litigation Paradox, __ Vand. L. Rev. __ (forthcoming), available at SRRN.

Arbitration and litigation are often treated as opposites. Arbitration in its idealized version is sleek, fast, and endlessly adaptable. Litigation is its foil: clunky, inexpert, and sometimes captured. As a consequence, being pro-arbitration and anti-litigation are assumed to go hand-in-hand.

In The Arbitration-Litigation Paradox, Pamela Bookman challenges this account. With a focus on international commercial arbitration, Bookman suggests that hostility to litigation undermines the key role of courts in supporting arbitration. In other words, to be pro-arbitration, sometimes courts need to be pro-litigation as well. Continue reading "In Support of Arbitration"

Family Courts as Criminal Courts: A Story of Origins

Elizabeth Katz, Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, __ U. Chi. L. Rev. __ (forthcoming 2019), available at SSRN.

The question of the relationship between criminal law and family law has been amply explored in recent years, the seemingly neat separation between the fields coming under repeated challenge.1 Scholars have tackled the question from a variety of different perspectives: showing us how criminal law can function as family law for a specific section of the population, obliterating in the process basic family law assumptions about privacy and autonomy;2 or demonstrating the ways in which family law and criminal law have always operated in tandem to enforce specific sexual mores or ideals of intimacy.3 In Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, Elisabeth Katz contributes to this body of scholarship in a way that has the potential to unmoor contemporary assumptions about the civil nature of family court jurisdiction.

In this carefully researched and thoughtfully written piece of legal history, Katz concentrates on the history of family courts and their jurisdiction especially in the first half of the twentieth century. Adding a plethora of original sources to the historical literature on domestic relations courts,4 Katz highlights aspects of this history that had perhaps gone underappreciated inside family law.5 At their inception, some of the most influential domestic relations courts in the country focused heavily on the criminal prosecution of nonsupport cases and no one at the turn of the twentieth century would have thought of domestic relations courts as anything other than a branch of the criminal courts. More importantly, Katz argues that criminal jurisdiction over non-support cases continued to be at the core of family courts’ expansive jurisdiction, even as states strategically recharacterized the nature of these courts as civil in order to give judges more flexibility without the necessity of criminal law protections. Continue reading "Family Courts as Criminal Courts: A Story of Origins"

Exclusionary Equality: France’s State-Feminism and Its Other Women

Darren Rosenblum, Sex Quotas and Burkini Bans92 Tul. L. Rev. 469 (2017).

Feminism in the Global North began as a critical social movement emphasizing the societal oppression and exclusion of women and the inadequacies of the patriarchal state. Since the 1960s, it has evolved into a fragmented constellation of groups and theoretical positions often with deep divergences and seemingly intractable disagreements. One of these disagreements has been about feminism’s relationship to the state. Some feminists have traditionally been uncomfortable with and wary of institutional political power. And for good reason. Alliances with a patriarchal state produces only limited success with considerable costs. Other feminists have taken the position that we must take what we can get. In order to improve the lives of women, we must engage the state—become insiders and change the structure from within.

Regardless of how feminists orient to the state, most commonly recognize that state-alliances invariably result in mixed results often with unintended and undesired consequences. Often the gains benefit elite women at the expense of minorities. Furthermore, engagement with the state and the use of state power can present problems if one takes the position that generally feminism is a politics and a project that promotes liberation and equality. For example, the critical feminist literature on mass incarceration points out that the use of criminal law and state apparatus has resulted in the disproportionate incarceration of men of color. This has resulted in serious consequence for women by destroying many families and communities of color. Furthermore, gender neutral applications of criminal law have sometimes led to the policing of women themselves.1

Darren Rosenblum’s essay, Sex Quotas and Burkini Bans, is part of this critical literature raising important questions about feminist alliances with and uses of state power in France. Rosenblum’s article adds to the literature by exploring state uses of and, indeed, promulgation of a “state feminism.” Rosenblum traces the feminist movement for equal political representation (Parité). With the passage of Parité giving women a 50% quota, the state absorbed the “feminist interest in sex difference and women’s equality” making it a core state value. And then, as Rosenblum shows, these ideas “disappear in plain sight.” (P. 470.) The state, having incorporated a feminist position on equality, used it to exclude certain categories of women. Continue reading "Exclusionary Equality: France’s State-Feminism and Its Other Women"