Showing papers in "Michigan Law Review in 1990"

Democracy and Its Critics

Abstract: The course is focused on historical texts, most of them philosophical. Context for understanding the texts and the course of democratic development will be provided in lecture and discussions, and by some background readings (Dunn). We begin with the remarkable Athenian democracy, and its frequent enemy the Spartan oligarchy. In Athens legislation was passed directly by an assembly of all citizens, and executive officials were selected by lot rather than by competitive election. Athenian oligarchs such as Plato more admired Sparta, and their disdain for the democracy became the judgment of the ages, until well after the modern democratic revolutions. Marsilius of Padua in the early Middle Ages argued for popular sovereignty. The Italian citystates of the Middle Ages did without kings, and looked back to Rome and Greece for republican models. During the English Civil War republicans debated whether the few or the many should be full citizens of the regime. The English, French, and American revolutions struggled with justifying and establishing a representative democracy suitable for a large state, and relied on election rather than lot to select officials. The English established a constitutional monarchy, admired in Europe, and adapted by the Americans in their republican constitution. The American Revolution helped inspire the French, and the French inspired republican and democratic revolution throughout Europe during the 19 century.

Shareholder Passivity Reexamined

Abstract: This article assesses the extent to which the traditional passivity of American shareholders is a result of legal rules and conflicts of interest that discourage shareholder activism, or a result of collective action problems that discourage voting, proxy proposals, and other forms of shareholder activism. I develop a simple model of the decision of a large shareholder whether to vote or launch a proxy campaign. Large shareholders can have significant incentives to vote on an informed basis or launch proxy campaigns, especially for issues that are common across many companies and therefore involve economies of scale. However, they face significant legal impediments to owning large percentage stakes in companies or taking an activist role. These legal obstacles are reinforced by conflicts of interest that affect most major classes of institutional investors.

Heritage Preservation as a Public Duty: The Abbé Grégoire and the Origins of an Idea

Abstract: Public responsibility for the conservation of artifacts of historic or aesthetic value is now acknowledged everywhere. One way or another the state will ensure preservation of a Stonehenge or a Grand Canyon as well as a great many lesser cultural icons. We have names for such things "heritage" and "cultural property" are two of them; "patrimony" is a European counterpart but these words have no very specific meaning. Many, but by no means all, of the objects we feel constrained to protect are old. They include human artifacts as well as natural objects or places. Though it is customary to say that no one has a right to destroy those things comprising our heritage, many such items, especially works of art, are held and enjoyed as ordinary private goods without public access or regulation of any kind. This inconsistency illustrates the paradox of historical preservation. As uncontroversial as heritage preservation may appear when one thinks of historic monuments and artistic masterworks, the idea of an officially designated culture seems greatly at odds with modern sensibilities. The very idea of government involving itself in cultural life raises the unwelcome specter of censorship on one side and official propaganda on the other. In addition, there is the more general question of cultural policy as a tool of a paternalistic state that aspires to make its citizens good, a notion that has lost all cachet in our time. In short, state cultural policies appear to be out of harmony with modern ideas about the role of government. Nonetheless they flourish. Obviously there is some very strong attraction to the idea of a common heritage: a people and a community bound together in some shared enterprise with shared values. How did protection of cultural values come to be viewed as a proper public concern in a modern world centered on the liberty and autonomy of the individual? The pages that follow trace out one historical strand of the story in the hope of casting some light into this

The Negative Constitution: A Critique

Abstract: In the conventional wisdom, the Constitution is a charter of negative liberties. Governmental inaction is not actionable. The due process clause grants no affirmative rights. These phrases are meant to signal the end of discussion. Yet when conclusory incantations permit harm to flourish unchecked, they ought to be scrutinized with care. This article undertakes that scrutiny. Part I describes the current approach, which demands adherence to the notion of a negative constitution. Part II critiques the assumptions underlying the current approach and demonstrates its undesirable consequences in decisional law. Part III explores the tenacious barriers to recognition of affirmative governmental duties: the constitutional, philosophical, and common law roots of the notion of a negative constitution, as well as the belief that recognizing affirmative duties would be an invitation to chaos. Finally, Part IV proposes discarding the rhetoric of negative rights and suggests an approach for constructing a theory better designed to effectuate constitutional goals.

Can Ignorance Be Bliss? Imperfect Information as a Positive Influence in Political Institutions

Abstract: I. THE VALUE OF INFORMATION IN PUBLIC DECISIONMAKING UNDER THE LAW-AND-ECONOMICS MODEL 925 A. General Problems with Limited Information ........ 925 B. The Influence of Special Interest Groups in Public L aw 930 C. Solutions to the Special Interest Group Problem ..... 932 II. THE VALUE OF INFORMATION UNDER THE CIVIC VIRTUE MODEL 934 A . An Overview 934 B. Legal Application ......... 936 III. LIMITED INFORMATION AS A POSITIVE INFLUENCE IN DECISIONMAKING: THE UTILITARIAN VALUE OF PARTY IDENTIFICATION AND RELATED INSTITUTIONS ......... 939 A. Limited Information as a Value in Promoting Rational Decisionmaking 939 1. The Value of Party Identification and Related Party Structures 941 2. Party Identification and Public Dialogue ........ 944 B. Limited Information as a Benefit in Promoting Utilitarian Efficiency 947 1. The Influence of Special Interest Groups ........ 947 2. Party Identification 948 C. Limited Information and Nonideological Political

Progressive and Conservative Constitutionalism

Abstract: American constitutional law in general, and fourteenth amendment jurisprudence in particular, is in a state of profound transformation. The "liberal-legalist" and purportedly politically neutral understanding of constitutional guarantees that dominated constitutional law and theory during the fifties, sixties, and seventies, is waning, both in the courts and in the academy. What is beginning to replace liberal legalism in the academy, and what has clearly replaced it on the Supreme Court, is a very different conception - a new paradigm - of the role of constitutionalism, constitutional adjudication, and constitutional guarantees in a democratic state. Unlike the liberal-legal paradigm it is replacing, the new paradigm is overtly political - and overtly conservative - in its orientation and aspiration. Over the last few years, a substantial and growing number of Supreme Court Justices, federal judges, and some theorists, including Raoul Berger, Robert Bork, Frank Easterbrook, Michael McConnell, Sandra Day O'Connor, Richard Posner, and Antonin Scalia, have begun to articulate a profoundly conservative interpretation of the constitutional tradition. There are obviously many differences between the conservative views of each of these theorists. But there is also significant commonality: the conservatives share enough ground and sufficient themes that we can discern, without too much difficulty, an emerging conservative paradigm of constitutional interpretation - what this article calls "conservative constitutionalism." Conservative constitutionalism now dominates the Supreme Court, may soon dominate the federal judiciary, and has already profoundly shaped the constitutional law of the foreseeable future.

Idea, Process, or Protected Expression?: Determining the Scope of Copyright Protection of the Structure of Computer Programs

Abstract: ion that is more general still. ' Two commentators have suggested an example of the application of levels of abstraction analysis to the structure of computer programs rather than the programs themselves: [A]n "abstraction" analysis might define structure at one level of abstraction by a detailed flowchart that reflects the operation of each subroutine of the program as well as the rela· tionships among subroutines. At a somewhat higher level of abstraction, structure might be depicted by a flowchart of the logical links among subroutines. At an even higher level, still possibly considered to depict structure, the program could be described by a simple list of the subroutines in the order they appear (e.g., "billing routine followed by accounts payable routine"). Ladd & Joseph, supra note 70, at 10. The example begins much as the approach suggested in the text by identifying the implementation of the program at its lowest level as the lowest level of abstraction. The authors next move to a representation of the whole structure of the programion. The authors next move to a representation of the whole structure of the program and finally to organization wholly independent of structure or function. These levels correspond roughly to what this Note has called sequence, structure, and organization, respectively. See supra note 27 and accompanying text. This approach is easy to apply and a step in the right direction, but it treats the structure of the program as something independent of the program and builds its abstractions upon the structure of the program rather than the program itself. This considers insufficiently the possibility that lower levels of structure might contain more protected expression than higher levels. It is unclear what questions one must ask to determine where in Ladd and Joseph's hierarchy of levels the division between idea and expression falls. It is also unclear what it means to say, for example, that structure is protected as such but organization is not and whether that could possibly be a correct result. 153. See supra notes 19-25 and accompanying text. Several commentators have briefly de· scribed a similar approach with greater emphasis upon the relationship between the levels of abstraction and the programmer's approach to writing the program. Reback & Siegel, Toward a Comprehensive Test/or Software Copyright Infringement, COMPUTER LAW., Dec. 1984, at 1, 4· 10; see also Reback & Hayes, The Plains Truth: Program Structure, Input Formats and Other Factual Works, CoMPUTER LAW., Mar. 1987, at 1, 4-7. One difference between the approach described by these commentators and that described here is that they seemingly equate levels of abstraction with levels of a program's structure. See Reback & Hayes, supra, at 6; Reback & Siegel, supra, at 4. This Note would instead view a program from a very large number of levelsion with levels of a program's structure. See Reback & Hayes, supra, at 6; Reback & Siegel, supra, at 4. This Note would instead view a program from a very large number of levels of abstraction. At each level, the program has a structure. This Note forms these abstractions by conceptually substituting the functions of modules for their implementations at different levels of a program's structure and in different parts of a program. While Reback, Hayes, and Siegel would identify a single level of a program's structure as a "level of abstraction,'' this Note suggests that one abstract view of a program might consist of a particular level of that program's structure, the literal instructions and the functions of all of the modules at that level of the program's structure, and all of the higher levels of the program's structure. February 1990] Note Copyright Protection 899 is simply copying parts of the Jower levels, and if the copying is extensive, all leve1s of a program's structure. · · Developing a set of abstract views of a program is relatively easy; the task of determinillg th,e point in this set of abstractions at which the additional detail in the next-lowest. level constitutes expression rather tha11 idea is much more difficult. Professor Chaffee's pattern test154 is an attempt at a general solution to this problem in the context of novels and plays. By its own terms, it is not well suited to computer programs. Whether there is any expression in the structure of a program viewed at a particular level of abstraction can only be. apswered after a more fundamental inquiry into the details of the program. Beginning with the highest level of abstraction, the function of a program is in every case an idea.155 At any lower level of ~bstraction, one ·must consider the details present in ihe structure of the program at that level of abstraction but missing from the structure· of the program at the next highest level of abstraction to deterniine whether they too are idea. These details consist of a set of module functions and client relationships. 156 At each level, these details should· be considered part of the idea of the program if they are not sufficiently original to be protected or the use of these structural details is necessary157 efficiently to implement the program as it exists at the higher le:vel of abstraction.158 Eventually, one will reach the level of individual instructions. Even sequences of literal instructions cannot constitute protected expression when they are not original or they are necessary to the efficient implementation of the program's function. 159 154. See supra text accommpanying note 50. 155. See supra note 126. 156. See supra note 27 and accompanying text. 157. Although a program could always theoretically be implemented with a trivial structure, this could prove quite difficult and would be contrary to general programming practices. See supra note 21 and accompanying text. No aspect of any program's structure should be found protected on the grounds that the underlying function could conceivably be implemented in a way contrary to generally accepted programming practices. 158. See 3M. NIMMER, supra note 40, § 13.03(A][l]; Reback & Siegel, supra note 153, at 45. This inquiry is in some sense the same inquiry made in Whelan Assocs. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222, 1238 (3d Cir. 1986) ("[T]he structure of the program was not essential to that task .•. . "),cert denied, 479 U.S. 1031 (1987), and Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1253 (3d Cir. 1983), cert dismissed, 464 U.S. 1033 (1984), except here it is conducted level by level and incorporates an efficiency qualification. The approach to distinguishing idea from expression suggested here differs from the Whelan rule in its definition of function. See supra notes 20, 73, and accompanying text. Moreover, the Whelan rule lacks an explicit means of distinguishing process from expression such as that proposed in section IIl.B. This Note's approach is also in some respects similar to that described in Davidson, supra note 38, at 1082-85. Davidson does not explicitly build levels of abstraction but rather conceives of a program as a collection of nested "black boxes," which correspond to modules, and then determines a level of protection for each black box. 159. CONTU REPORT, supra note 11, at 20. No single instruction can ever be very original; neither can any individual word of a novel or play. The question is whether there is sufficient originality in some meaningful sequence of instructions. See Declaration of Melville B. Nimmer, supra note 114, UU 14-15. For example, a well-known and often used sequence of instructions for 900 Michigan Law Review [Vol. 88:866 Although this inquiry is by design essentially the same as that applicable to any literary work, it is necessary to make one concession to the utilitarian nature of computer programs. Computational efficiency, which might be defined differently depending upon one's objectives, plays a role in this inquiry because the use of some structures over others may be indicated by concern for the efficient use of computer or human resources. 160 If ideas and, in particular, functions are not to be protected by copyright, surely it is no response to a claim that the use of a particular set of modules is necessary to implement a function to argue that the accused program might have been written in a way that requires larger amounts of memory space or processor or programmer time, or makes the program more difficult to learn or use. While it is absolutely essential that necessary or conventional implementations of a function not be protected, there will probably be relatively few cases where a particular implementation of a function is necessary. With the possible broad exception of operating system programs, where the design of the computer may actually dictate some significant aspects of the implementation of the program,161 there are usually many ways to implement any function. 162 For example, even if all teleprompter programs would have the same four modules at the highest level, 163 the likelihood that any of these modules could be implemented efficiently with only one structure is probably very small. Claims of necessity should thus be viewed with some skepticism. This method of distinguishing idea from expression in the context of computer program structure, regrettably, may not be very easy to apply. Distinguishing idea from expression is never easy, and the computer program context makes this inquiry especially difficult for sorting the items in a list is no more deserving of copyright protection than a dozen lines of Hamlet contained in an otherwise original play. 160. One commentator recently suggested that copyright should not protect aspects of a structure motivated by such functional concerns as efficiency of execution. Menell, supra note 18, at 1085. This concern for not protecting aspects of structures resulting from design decisions made in the interest of computational efficiency stands behin

Tort Law as Corrective Justice: A Pragmatic Justification for Jury Adjudication

Abstract: The past few years have seen a great deal of controversy concerning the continued viability of the tort system as a remedy for accidental injuries. Talk of a "torts crisis" has been widespread in both the public media and the scholarly community. While some accuse the insurance industry of orchestrating the crisis, there can be no question that lack of confidence in the tort system is both widespread and deeply felt. The depth of this feeling can be seen in the frequent proposals by respectable scholars and responsible officials that the system as a whole should be radically altered or abolished. What is new and surprising in these developments is the widespread dissatisfaction with the alleged "generosity" of the tort system. Many tort plaintiffs are sympathetic claimants while defendants are often large and seemingly callous institutions. Beyond this, the system itself - with its reliance on jury verdicts and its emphasis on public accountability - has served as a deeply democratic symbol of the state's commitment to individualized justice. Nevertheless, there is a growing perception that the system is arbitrary and excessive and that its costs far outweigh its benefits.

Stalking the Squeeze: Understanding Commodities Market Manipulation

Abstract: Commodities manipulations often have spectacular results. Not all dramatic upheavals in the commodities markets result from manipulation, however; indeed, sometimes when prices rise sharply the market is performing one of its most important functions, cushioning the impact of external forces that might otherwise have been far more disruptive.1 Thus, attempting to discern the line between a manipulated