Showing papers in "Notre Dame Law Review in 2011"

Collective Action and the Urban Commons

Abstract: Urban residents share access to a number of local resources in which they have a common stake. These resources range from local streets and parks to public spaces, to a variety of shared neighborhood amenities. Collectively shared urban resources suffer from the same rivalry and free-riding problems that Garrett Hardin described in his Tragedy of the Commons tale. Scholars have not yet worked up a theory about how this "tragedy" unfolds in the urban context, particularly in light of existing government regulation and control of common urban resources. This Article argues that the tragedy of the urban commons unfolds during periods of "regulatory slippage"--when the level of local government oversight and management of the resource significantly declines, leaving the resource vulnerable to expanded access by competing users and uses. Overuse or unrestrained competition in the use of these resources can quickly lead to congestion, rivalry, and resource degradation. Tales abound in cities across the country of streets, parks, and vacant land that were once thriving urban spaces but have become overrun, dirty, prone to criminal activity, and virtually abandoned by most users. Proposed solutions to the rivalry, congestion, and degradation that afflict common urban resources typically track the traditional public-private dichotomy of governance approaches. These solutions propose either a more assertive central government role or privatization of the resource. Neither of these proposed solutions has taken root, I argue, because of the potential costs that each carry--costs to the local government during times of fiscal strain, costs to communities where the majority of residents are non-property owners, and costs to internal community governance. What has taken root, however, are various forms of cooperative management regimes by groups of users. Despite the robust literature on self-organized management of natural resources, scholars have largely ignored collective action in the urban context. In fact, many urban scholars have assumed that collective action is unlikely in urban communities where social disorder exists. This Article highlights the ways in which common urban resources are being managed by groups of users in the absence of government coercion or management and without transferring ownership into private hands. This collective action occurs in the shadow of continued state and local government ownership and oversight of the resources. Formally, although the state continues to hold the regulatory reigns, in practice we see the public role shifting away from a centralized governmental role to what I call an "enabling" one in which state and local governments provide incentives and lend support to private actors who are able to overcome free-riding and coordination problems to manage collective resources. This Article develops this enabling role, marks its contours and limits, and raises three normative concerns that have gone unattended by policymakers. INTRODUCTION Urban residents share access to a number of local tangible and intangible resources in which they have a common stake. These resources range from local streets and parks to public spaces to a variety of shared neighborhood amenities. These collectively shared urban resources--what I call "urban commons"--are subject to the same rivalry and free-rider problems that Garrett Hardin wrote about in his Tragedy of the Commons tale. In this classic tale, Hardin warned of the depletion of open-access natural resources where it is difficult to exclude potential users who lack incentives to conserve or sustainably use the resource. (1) Many collectively shared, open-access urban resources have much in common with Hardin's conception of the "pasture open to all" prone to overuse or misuse if improperly managed or regulated. (2) The urban "commons" generally shares with traditional public goods both a lack of rivalry in consumption (nonrivalrous) and lack of excludability in access to and enjoyment of their benefits (nonexcludable). …

Regulating Systemic Risk: Towards an Analytical Framework

Abstract: The global financial crisis demonstrated the inability and unwillingness of financial market participants to safeguard the stability of the financial system. It also highlighted the enormous direct and indirect costs of addressing systemic crises after they have occurred, as opposed to attempting to prevent them from arising. Governments and international organizations are responding with measures intended to make the financial system more resilient to economic shocks, many of which will be implemented by regulatory bodies over time. These measures suffer, however, from the lack of a theoretical account of how systemic risk propagates within the financial system and why regulatory intervention is needed to disrupt it. In this Article, we address this deficiency by examining how systemic risk is transmitted. We then proceed to explain why, in the absence of regulation, market participants cannot be relied upon to disrupt or otherwise limit the transmission of systemic risk. Finally, we advance an analytical framework to inform systemic risk regulation. INTRODUCTION I. THE ROLE OF INTRA- AND INTER-INSTITUTIONAL CORRELATIONS IN THE TRANSMISSION OF LOCALIZED ECONOMIC SHOCKS TO THE FINANCIAL SYSTEM A. The Correlations as Systemic Risk Transmission Mechanisms B. Using the Correlations to Explain Financial Crises 1. The Great Depression 2. Long-Term Capital Management 3. Enron 4. The Recent Global Financial Crisis II. CONSTRAINTS ON THE ABILITY AND WILLINGNESS OF MARKET PARTICIPANTS TO ADDRESS SYSTEMIC RISK TRANSMISSION A. Impediments to Financial Market Self-Regulation 1. Explaining Risk Transmission Through the IntraFirm Correlation Between Low-Probability Risk and Firm Integrity a. Conflicts b. Complacency c. Complexity 2. Explaining Risk Transmission Through the InterInstitutional Correlation Among Financial Institutions a. Complexity Revisited b. The Tragedy of the Commons B. Future Impediments to Financial Market Self-Regulation III. IMPLICATIONS FOR REGULATING SYSTEMIC RISK A. Managing the Correlation Between Low-Probability Risk and Institutional Integrity 1. Regulating Conflicts 2. Regulating Complacency 3. Regulating Complexity B. Managing the Correlation Among Financial Institutions 1. Regulating Complexity Revisited 2. Regulating the Financial Commons C. Addressing Systemic Crises Ex Post D. Applying the Framework to Financial Crises 1. The Great Depression 2. Long-Term Capital Management 3. Enron 4. The Recent Global Financial Crisis CONCLUSION INTRODUCTION Governments worldwide are struggling with the challenge of regulating financial systemic risk--the risk that a localized adverse shock, such as the collapse of a firm or market, will have repercussions that negatively impact the broader economy. (1) In the United States, legislators have enacted an array of measures intended to strengthen the financial system, many of which consist of broad delegations of authority to regulators who will need to implement them in the years ahead. These measures, however, are largely a response to the recent global financial crisis. None is situated within a general theoretical framework for understanding how systemic risk is transmitted or how regulation should address it. As a result, financial regulatory reform may succeed in addressing the specific problems that led to the recent financial crisis. Because economic shocks are generally unpredictable, (2) however, the measures enacted are unlikely to be effective against future financial crises. This Article analyzes the potential for regulation to make the financial system more resilient to the risk of collapse. …

Three Concepts of Dignity in Constitutional Law

Abstract: The U.S. Supreme Court and constitutional courts around the world regularly use the term human dignity when deciding cases about freedom of speech, reproductive rights, racial equality, gay marriage, and bioethics. Judges and scholars treat dignity as an important legal value, but they usually do not explain what it means and often imply that it has one obvious core meaning. A close review of constitutional decisions, however, demonstrates that courts do not have a singular conception of dignity, but rather different conceptions based on how they balance individual rights with the demands of social policy and community values. Using the insights of political theory and philosophy, this Article identifies three concepts of dignity used by constitutional courts and demonstrates how these concepts are fundamentally different in ways that matter for constitutional law. In contentious cases, the concepts of dignity will often conflict. If constitutional courts continue to rely on human dignity, judges must choose between different understandings of dignity. This Article provides the groundwork for making these choices and defending a concept of dignity consistent with American constitutional traditions. INTRODUCTION I. THE ORIGINS OF THE LEGAL CONCEPT OF DIGNITY II. INHERENT DIGNITY A. Dignity as Intrinsic Human Worth B. Inherent Dignity and Negative Liberty C. Dignity as Intrinsic Worth in Judicial Decisions 1. Privacy 2. Sixth Amendment Right to Self-Representation 3. Ordered Liberty 4. Sexual Autonomy 5. Free Speech 6. Race and Gender Equality 7. Inherent Dignity Abroad D. Dignity and Autonomy at Odds? III. SUBSTANTIVE CONCEPTIONS OF DIGNITY A. Communitarian Dignity or Dignity as Coercion 1. The Concept 2. Examples of Dignity as Coercion a. Dwarf Throwing b. Bans on the Full Veil or Headscarves c. Prostitution and Pornography d. Self-representation e. Abortion f. Bioethics B. Dignity and Social-Welfare Goods C. Substantive Dignity at Odds with Inherent Dignity IV. DIGNITY AS RECOGNITION A. Recognition and the Socially Constituted Self B. Dignity as Recognition 1. Recognition by Others a. Hate Speech b. Defamation: Dignity and Reputation 2. Public Recognition and Respect a. Sexuality and Gender: Dignity of Social Inclusion b. Racial Equality: Separate Is Not Equal c. Socioeconomic or Material Equality C. The Difficulty of Dignity as Recognition CONCLUSION; CHOOSING DIGNITY INTRODUCTION A person who wants to wear a jacket that says "F--the draft" can do so because of the individual dignity at the heart of the First Amendment. (1) A dwarf cannot make his living by being thrown for sport because to allow this spectacle offends the dignity of the dwarf and the community. (2) Gay couples have the constitutional right to marry, not just enter into civil unions, because exclusion from the institution of marriage fails to recognize the dignity of gay couples. (3) Different concepts of dignity played a role in each of these decisions and hundreds more around the world in the adjudication of civil rights and liberties. In the last Term alone, the Supreme Court referred to dignity in a number of cases touching on diverse issues such as gun rights under the Second Amendment, free speech and campaign finance rules, and the death penalty. (4) As a fundamental precept of human rights and basic liberties, dignity really took hold after the Universal Declaration of Human Rights stated: "All human beings are born free and equal in dignity and rights." (5) But even in the Universal Declaration, the start of international efforts to protect human dignity, the drafters disagreed about the meaning of human dignity. …

Lost in Transition: The Implications of Social Capital for Higher Education Access

Abstract: The dearth of college counseling in the nation's public schools derails many students as they transition between high school and college. Compared to their more privileged peers with similar academic qualifications, low-income, minority, first-generation, and other vulnerable students are less likely to attend college. When these vulnerable students pursue higher education, they are more likely to attend vocational schools, community colleges, for-profit universities, and less selective four-year colleges. This phenomenon highlights a sorting process in the act of choosing among higher education options that further perpetuates socioeconomic inequality and limits the nation's global competitiveness. Generally, policymakers employ two approaches to promote college access among vulnerable students: (i) focusing on K-12 academic preparation to close achievement gaps that have a downstream impact on college access; and (ii) preserving college discretion for diversity admissions as well as providing financial aid to needy students. These approaches, however, yield only marginal returns because they fail to address social capital deficits (SCDs). Social capital reflects the ability of individuals to secure benefits through familial and extra-familial networks. Vulnerable students overwhelmingly lack access to social networks that provide valuable information to navigate the complex college admissions and financial aid processes. And the nation's public schools exacerbate this problem by not providing adequate college counseling support to their most needy students. Nationwide there are approximately 460 students for every high school counselor. In larger school districts, this ratio can rise to more than 700 students per counselor. These alarming statistics threaten to undermine the Obama administration's goal to lead the world in college graduates by 2020. Reaching this ambitious target inevitably depends on increasing the college-going rates of vulnerable students. In order to address the SCDs that limit higher education access for vulnerable students, this Article proposes an important solution that has been ignored by legal scholars--reforming the college counseling function in American public schools. This Article provides a framework to guide future legislation and reforms targeting SCDs, particularly the future reauthorization of the No Child Left Behind Act. INTRODUCTION I. SOCIAL CAPITAL AND HIGHER EDUCATION ACCESS A. Under-examined Higher Education Access Challenges for Vulnerable Students 1. The Inadequate K-16 Bridge Between Secondary School Academic Achievement and College Enrollment 2. College Under-Matching Among High Achieving Vulnerable Students a. Lessons from Chicago Public Schools b. Lessons from North Carolina Public Schools 3. The Higher Education Sorting Pattern B. The Significance of Social Capital 1. Defining Social Capital a. Sources of Social Capital b. Relationship to Other Forms of Capital 2. The Impact of SCDs on Vulnerable Student College Choice II. LIMITATIONS OF EXISTING LEGAL APPROACHES A. A Critical Strategy and Policy Gap B. Legislation and Programs Targeting College Access for Vulnerable Students 1. The Pathways to College Act 2. The Coaching Our Adolescents to College Heights Act (COACH Act) 3. TRIO Programs III. A VITAL SOLUTION: REFORMS TAILORED TO ADDRESS SOCIAL CAPITAL DEFICITS A. Enhancing College Counseling Capabilities in Public High Schools Nationwide 1. Existing Impediments to Effective College Counseling a. Counseling Resource Restraints b. Competing Counselor Roles c. Counselor Professional Development and Expertise 2. …

The Case for Legal Regulation of Physicians' Off-Label Prescribing

Abstract: INTRODUCTION Prescription drugs and biologics (1) can be used on- and off-label. On-label signifies that the particular use to which the drug is being put has been vetted by the Food and Drug Administration (FDA) through a series of trials or studies designed to establish the use's safety and efficacy. (2) Off-label use signifies that the particular use to which the drug is being put has not been formally approved by the FDA (3) and thus, unless it has been otherwise tested, its safety and efficacy for that use has not been established. (4) Typical off-label uses (OLU) include promoting, prescribing, and ingesting substances for conditions other than those for which they were approved, in higher-or lower-than-indicated dosages, and in populations other than those in which they were tested. (5) Pharmaceutical companies are largely prohibited from promoting their products' OLU. (6) However, OLU are otherwise legal. That is, notwithstanding a lack of evidence of safety and efficacy, physicians may lawfully prescribe and patients may lawfully take OLU. (7) As a result, it is estimated that OLU account for up to twenty-one percent of drugs and biologics used annually in the United States; this figure is significantly higher in certain specialized settings such as oncology and pediatrics. (8) It is likely the case that most people are unaware of the distinction between on- and off-label uses. (9) It is also likely that when physicians prescribe drugs for an off-label use, their patients are unaware of this fact or (correspondingly) that they may not be safe or effective. (10) Patients' lack of awareness is due at least in part to standard medical practice, which is not to disclose the OLU status of drugs to patients. (11) Depending on the physician, this practice has at least two explanations: some physicians believe it is unnecessary for patients to know of their drugs' OLU status, (12) while others are--like their patients--ignorant of that status and thus of the safety and efficacy of the drugs they prescribe. (13) Previous commentators have established up to four categories of OLU depending upon the evidentiary basis supporting their safety and efficacy: OLU justified by high-quality evidence, OLU justified by some but not high-quality evidence, OLU justified by the need or desire to innovate, and unjustified OLU. (14) OLU are justified by high-quality evidence of safety and efficacy using clinical investigation techniques not dissimilar to those employed by pharmaceutical companies applying for FDA approval. (15) OLU whose safety and efficacy have not been established by such clinical investigation techniques (problematic OLU) can cause significant harms: They can cause physical harm (including death) to patients both directly, if they turn out to be unsafe, (16) and indirectly, when they are ineffective and used in lieu of an existing, established alternative. (17) Patients also suffer harm when their physicians prescribe problematic OLU without disclosing in advance the relevant facts about the drug's off-label status and the dearth of evidence concerning safety and efficacy. Two related patient rights are violated in this setting. First, patients have the right to decide for themselves (as part of the informed consent process) whether or not they will accept particular medical treatment; long gone are the days when the law and medical ethics permitted physicians to make treatment decisions for their patients without ensuring in advance that they knowingly and voluntarily understood and accepted the associated risks and benefits. (18) Modern physicians have a corresponding legal and ethical duty to disclose all of the facts that are material to their patients' treatment decisions. (19) Although the argument to the contrary has been strangely successful, (20) it is difficult to imagine that there is not a more material fact than that a proposed treatment's--in this case, an OLU's--safety and efficacy have not been established. …

The Genetic Information Nondiscrimination Act as an Antidiscrimination Law

Abstract: This Article provides the first in-depth reading of the Genetic Information Nondiscrimination Act (GINA) as an antidiscrimination statute. GINA, touted as the first major civil rights legislation of the new century, passed in May 2008. Thus, both to understand GINA's potential impact, as well as to improve its efficacy, the statute must be analyzed as an antidiscrimination law. When read as an antidiscrimination statute, GINA takes a clear position on one of the most contested issues in that area of law: antisubordination versus anticlassification. This debate queries whether antidiscrimination law should seek to elevate the social status of certain subordinated groups or should prevent all consideration of particular forbidden characteristics. GINA as currently drafted plainly favors anticlassification; it protects individuals from any intentional differential treatment by health insurers or employers based on genetic information. In contrast, an antisubordination approach to protecting genetic information would focus not on outlawing all forms of intentional, differential treatment, but on preventing a genetic underclass from forming. In particular, an antisubordination framework would allow employers to consider genetic information for accommodation purposes and victims of discrimination to challenge facially neutral policies that produce discriminatory results. This Article proposes that amending GINA to include more antisubordination protections would better safeguard genetic information. INTRODUCTION I. UNDERSTANDING GENETIC INFORMATION A. Fear of Genetic-Information Discrimination 1. Social Genetic Determinism in the Past 2. Social Genetic Determinism in the Present and Future B. Norms Behind Protecting Genetic Information 1. Humanity 2. Democracy 3. Immutability 4. Privacy II. PROTECTING GENETIC INFORMATION A. GINA as an Antidiscrimination Statute B. What Makes GINA Different III. THEORIZING GENETIC INFORMATION A. Traditional Antidiscrimination Principles B. Antidiscrimination Principles and Genetic Information 1. Antisubordination and Genetic Information 2. Anticlassification and Genetic Information C. Benefits of Antisubordination Theory for Genetic Information 1. Title VII as a Paradigm 2. ADA as a Paradigm 3. Best Case Scenario CONCLUSION INTRODUCTION Genetic-information discrimination captures the imagination. It conjures images of gloomy dystopias in which the content of our genes determines the outcome of our lives. In this troubling vision of the future, our education, careers, incomes, relationships, and myriad other social, economic, and personal goods depend solely on our genetic material. Yet while this world might appear largely hypothetical, the possibility of genetic-information discrimination exists outside Orwellian fantasy. The fear that potential discriminators might use heredity in making decisions about our lives also feels uncomfortably familiar, reminiscent of a time when the State could sterilize a person against her will in the name of the public good. Failing to protect genetic information at once portends a bleak future and recalls an unfortunate past. Congress debated the issues surrounding the Genetic Information Nondiscrimination Act (GINA) (1) for close to thirteen years before passing the statute in a near-unanimous vote in May 2008. (2) Ultimately, it drafted GINA as civil rights legislation, intended to outlaw a burgeoning form of discrimination. (3) Specifically, GINA prohibits discrimination on the basis of genetic information in health insurance and employment. Title I prohibits health insurers from using genetic information for determining eligibility or premiums and from requiring genetic testing. (4) Title II proscribes employers from hiring, firing, classifying, or otherwise disadvantaging employees on the basis of genetic information. …

The Western Cultural Model of Creativity: Its Influence on Intellectual Property Law

Abstract: INTRODUCTION In this Article, I examine the Western cultural model of creativity, a set of ten implicit beliefs about creativity that members of Western and European cultures often hold The Article is organized into ten Parts, each corresponding to one of these ten beliefs In each of these Parts, I critically examine the belief by reference to scientific research on creativity--conducted primarily by psychologists, but also by historians and sociologists This research reveals that many of the ten beliefs are false, or at least highly misleading In each case, I draw on the research to propose an alternative view of creativity In several cases, the scientifically grounded view of creativity is diametrically opposed to the Western cultural model Following each of these discussions of the research, in each of the ten sections I then discuss implications for intellectual property law I conclude that several aspects of our current intellectual property regime are grounded in these ten beliefs For those beliefs that are not consistent with scientific research on creativity, this is problematic, because if IP law is not aligned with the empirical processes of creativity, then it will be less effective at its goal: "To promote the Progress of Science and useful Arts" (1) I discuss the implications and possible alternative IP regimes that would more closely align with scientific studies of creativity and innovation, thus more effectively promoting creativity and innovation When I presented this talk to the "Creativity and the Law" symposium, I asked each participant to respond by answering the following questions: Is the current IP regime grounded in this belief? If so, how? If scientific research shows the belief to be false, then what alternative IP regimes would better align with scientific research? I asked the participants to write down answers to these questions during my talk, and I collected these handwritten notes afterward The participants' comments are reproduced and attributed below These participants agree that much of our current intellectual property regime is grounded in these ten beliefs I conclude by discussing possible alternative IP regimes that would more closely align with the true nature of creativity and innovation I THE WESTERN CULTURAL MODEL or CREATIVITY Beliefs about creativity vary from country to country Most people in the United States--and in the Western world more generally--share a set of implicit assumptions about creativity Anthropologists refer to an integrated framework of assumptions as a cultural model (2) A cultural model is "a cognitive schema that is intersubjectively shared by a social group" (3) The theory of cultural models is built on theories of cognitive schemas; these theories were developed by cognitive scientists in the 1970s and 1980s A cognitive schema is an innate and learned mental structure that organizes related pieces of knowledge (4) Beginning in the late 1970s, cognitive anthropologists began to build on schema theory as they elaborated a cognitively grounded approach to culture, in which culture is seen as residing in part within the heads of its members These scholars proposed that cultural models were cognitive schemas that are intersubjectively shared among members of a social group (5) In this Article, I identify ten features of the Western cultural model that I call creativity beliefs There is some overlap across cultures, but also many differences The Western cultural model is rooted in a broader set of cultural assumptions known as individualism (6) Collectivist cultures are those in which people are integrated into strong, loyal groups These cultures value group goals and outcomes over the individual The self is defined by reference to the group and to one's position in it; there is no firm separation between individual and group In individualist cultures, in contrast, the ties between individuals are looser …

Special Education, Poverty, and the Limits of Private Enforcement

Abstract: This Article examines the appropriate balance between public and private enforcement of statutes seeking to distribute resources or social services to a socioeconomically diverse set of beneficiaries through a case study of the federal special education law, the Individuals with Disabilities Education Act (IDEA). It focuses particularly on the extent to which the Act's enforcement regime sufficiently enforces the law for the poor. The Article responds to the frequent contention that private enforcement of statutory regimes is necessary to compensate for the shortcomings of public enforcement. Public enforcement, the story goes, is inefficient and relies on underfunded, captured, or impotent government agencies, while private parties are appropriately incentivized to act as private attorneys general. This Article challenges that argument as not applicable to all circumstances. Instead, it uses the IDEA to identify certain features of institutional design that can make heavy reliance on private enforcement lead to predictable disparities in enforcement in favor of wealthier beneficiaries as opposed to poor beneficiaries, in contravention of the stated goals of some statutes. These features of institutional design include universal rather than means-tested service provision distributed by relying on nontransparent, nonprecedential, private bargaining over a highly individualized system where the contours of the right are determined through significant amounts of agency discretion. Where these features are present, the Article argues, greater attention to public enforcement, as opposed to private enforcement, is likely to be necessary if the goal is to avoid enforcement disparities in favor of wealthier beneficiaries. Alternatively, modifying these features may reduce enforcement disparities and make public enforcement less necessary. INTRODUCTION I. THE PROBLEM OF DISPARITIES IN PRIVATE ENFORCEMENT OF THE IDEA A. The Legal Framework of the IDEA's Enforcement System B. Enforcement Disparities C. Why Enforcement Disparities Matter II. INSTITUTIONAL DESIGN AND DISPARITIES IN PRIVATE ENFORCEMENT OF THE IDEA A. Institutional Design B. Information Asymmetries C. Externalities D. Transaction Costs III. WHY REFORM OF THE IDEA's PRIVATE ENFORCEMENT MECHANISMS Is INSUFFICIENT A. Incentivizing Lawyers by Changing Attorneys' Fees Rules B. Incentivizing Lawyers by Providing Damages C. Providing or Mandating Attorneys D. Bringing Class Actions E. Means-Testing or Eliminating Private Enforcement IV. PUBLIC ENFORCEMENT ADDRESSING THE NEEDS OF LOW-INCOME CHILDREN WITH DISABILITIES A. Rationales for Public Enforcement B. Proposals for Public Enforcement 1. Informational Regulation a. Design Details b. Assessment of Success and Feasibility 2. Monitoring and Investigation a. Design Details b. Assessment of Success and Feasibility 3. Financial Incentives a. Design Details b. Assessment of Success and Feasibility V. ENFORCING STATUTORY RIGHTS BEYOND THE IDEA CONCLUSION INTRODUCTION Scholars frequently focus on the importance of private enforcement of statutory regimes in a variety of fields with a concomitant nod to the limits of public enforcement. (1) They point to the efficiency of private enforcement, since private parties will take action only when the expected value of doing so outweighs their expected costs. (2) They note the significance of private parties acting as private attorneys general (3) and explore how both class actions and serial individual actions can produce policy change. (4) They express concern about relying on underfunded, captured, or impotent government agencies to enforce the law. (5) In turn, this focus on private enforcement results in expressions of dismay at doctrinal and legislative cutbacks on such enforcement; (6) advocacy around creating private rights of action in legislation or permitting private enforcement through judicially implied private rights of action or [section] 1983 suits; (7) and even suggestions that some government enforcement agencies ought to go out of business. …

The Corporate Governance of Iconic Executives

Abstract: This Essay explores the special corporate governance challenges posed by iconic executives. Iconic executives are complex, bittersweet figures in corporate governance narratives. They are alluring, larger-than-life corporate figures who often govern freely. Iconic executives frequently rule like monarchs over their firms, offering lofty promises to shareholders, directors, and managers under their reign. But like many stories of powerful and influential figures, the narratives of iconic executives also contain adversity and danger. Part of the acquiescence and enchantment with such figures is rooted in the virtuous promises embodied by their presence, promises of unity, accountability, and effectiveness in corporate governance. Unfortunately, for many shareholders, these promises turn out to be illusory, empty, and full of peril The threatening hollowness of such promises exists because the virtues of unity, accountability, and effectiveness pledged by iconic executives also contain the vices of excessive deference, overconfidence, and licentiousness. Given such dangerous duplicity, this Essay calls for greater governance of iconic executives. INTRODUCTION I. ICONIC EXECUTIVES II. THE PROMISE OF UNITARY CORPORATE EXECUTIVES A. Unity B. Accountability C. Effectiveness III. THE PERILS OF IMPERIAL CORPORATE GOVERNANCE A. Excessive Deference 1. Organizational Deference 2. Legal Deference B. Overconfidence C. Licentiousness CONCLUSION INTRODUCTION The modern corporation is one of the greatest fictions and inventions of humankind. (1) It has made unparalleled wealth, unmatched progress, and unimaginable innovations a reality through the ingenuity and hard work of enterprising individuals. Nonetheless, the modem corporation is not without its flaws and challenges, imperfections and difficulties coded in its essential form. The modern corporation is owned by its shareholders, but governed by its directors and officers. (2) This inherent dissonance between ownership and management creates many advantages, (3) but also presents many corporate governance challenges. (4) Such challenges are exponentially magnified and further complicated when the manager of a corporation is of elevated stature and prominence, when the corporate manager is an "iconic executive." (5) This special set of challenges resides in corporate governance territory partially distinct from plots claimed by directorism, (6) managerialism, (7) and shareholderism. (8) The aim of this Essay is to venture into this distinct territory and explore this special set of corporate governance issues: the corporate governance challenges posed by powerful and influential iconic executives. This Essay does not intend to serve as a normative, wholesale indictment of the corporate governance of iconic executives, nor does it intend to serve as a descriptive, resigned apology of the status quo. Instead, this Essay inquires into the unique considerations presented by the corporate governance of iconic executives and cautions against blind assent to their governance. This Essay proceeds with this inquiry in three parts. Part I begins with a character sketch of iconic executives. (9) It describes their distinct attributes and functions in the modern corporation, and proffers an explanation for their seductive allure. Part II then explores the promise of iconic executives. Borrowing from constitutional law's discourse on the unitary presidency, (10) it illuminates the interrelated virtues of unity, accountability, and effectiveness in having a strong corporate unitary executive. Pivoting into the shadows, Part III examines the vices of such imperial governance and warns of the perils of iconic executives. Utilizing an instructive, albeit inelegant, penumbra cast by political despots, dictators, and strongmen, it warns against excessive deference, overconfidence, and licentiousness in boardrooms and executive suites. …

Adolescent Brain Science After Graham v. Florida

Abstract: INTRODUCTION In Graham v. Florida, (1) the Supreme Court held that the Eighth Amendment prohibits a sentence of life without possibility of parole for a nonhomicide crime committed when the offender was under the age of eighteen. (2) Justice Kennedy's majority opinion (3) in this closely watched case is remarkable for a number of reasons, chief among them its rejection of the "death is different" mantra (4) that had for so long prevented principles from death penalty jurisprudence from informing constitutional bounds on term-of-years sentencing. (5) Having broken down that wall, the Graham Court easily applied to juvenile life without parole the developmental conclusions that had partially underlain its earlier abolition of the juvenile death penalty. (6) Developmental neuroscience--that is, the study of life-course changes in the brain's structure and function (7)--contributed to this aspect of Graham. Justice Kennedy, citing to amicus briefs from the American Psychological Association and American Medical Association, wrote that: "[D]evelopments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence." (8) In an earlier article, The False Promise of Adolescent Brain Science in Juvenile Justice, this author noted the pendency of Graham and its companion case, Sullivan v. Florida. (9) Because both Terrance Graham and Joe Sullivan offered scientific arguments closely paralleling those made by the defendant in Roper v. Simmons, (10) and because largely the same lineup of amici had done the same, I predicted that "[t]he Court's treatment of developmental neuroscience may provide valuable insight, largely absent in Roper, to its attitude toward its relevance." (11) Did it? It did. Justice Kennedy's opinion in Graham clarified what his opinion in Roper had left ambiguous: the Court (or at least a majority of its members at that time) believed neuroscience relevant to general propositions as to the normal developmental course of adolescence. To the extent that such propositions drove conclusions as to juveniles' special legal status, neuroscience partially supported those conclusions. This Essay analyzes the influence of neuroscience in Graham and offers some predictions as to the decision's future impact. As this issue was explicitly set to one side in False Promise, the Essay provides an opportunity to both supplement that article and reflect on its conclusions. Part I distills its essential arguments and reports on subsequent developments. Part II more closely dissects the neuroscientific arguments made by the defendants and amici in Graham and Sullivan, as well as the Court's treatment of those arguments. Part III reflects on the possible impact of the decision. I predict that its most dramatic effects will have little to do with developmental neuroscience. As to that science, I argue that the Graham Court gave it the maximum weight it presently can bear. The decision therefore provides welcome support for legal policy-makers--whether in courts or legislatures--who seek to draw modestly on such science in reinforcing commitments to the special legal status of youth. But the predictable post-Graham temptation to place even greater weight on developmental neuroscience should--for the many reasons articulated in False Promise, which remain unaltered--be resisted. I. ADOLESCENT BRAIN SCIENCE IN JUVENILE JUSTICE In False Promise I sought to measure the legal impact of developmental neuroscience by identifying and analyzing cases in which arguments relying on such science--sometimes marginally, often centrally--had been made before the courts. I demonstrated that most such arguments fail to persuade and sought to explain why. Just as important, I undertook to explain why developmental neuroscience claims should have only a modest legal impact, and that only within limited parameters. …

Scary Monsters: Hybrids, Mashups, and Other Illegitimate Children

Abstract: She didn't really make it. She made it but she shouldn't have. She made it but look what she made it about. She made it but she isn't really an artist, and it isn't really art. She made it but it's derivative. She made it but it's infringing. She made it but it violates the DMCA. She made it but she's a thief and a pirate. She made it BUT .... (1) History has many themes. One of them is that women should be quiet. (2) [S]ometimes a scream is better than a thesis. (3) INTRODUCTION Reproduction means two things: In copyright, we generally use the term to mean duplication. But sexual reproduction is not duplication. It is the creation of something new from something old. And it's perhaps this double meaning that often makes reproduction seem uncanny, whether because of its exactness or because of its divergences from the original. Human creativity, like human reproduction, always makes new out of old in ways that copyright law has not fully recognized. The genre of vidding, a type of remix made mostly by women, demonstrates how creativity can be disruptive, and how that disruptiveness is often tied to ideas about sex and gender. The most frightening of our modern creations--the Frankenstein's monsters that seem most appropriative and uncanny in light of old copyright doctrine--are good indicators of what our next generation of creativity may look like, especially if creators' diversity in gender, race, and economic background is taken into account. 1. MONSTERS FROM THE ID (4) Mary Wollstonecraft Shelley spawned a monster. Frankenstein: or, The Modern Prometheus (1818) introduced Dr. Frankenstein as well as his creation, who shares his name. Frankenstein's monster is put together out of parts of other people, given new, independent life by men through science. (5) Dr. Frankenstein is the creator/repurposer in the narrative, but Mary Shelley is the puppetmaster behind him. (6) Frankenstein is still timely two centuries later; anxieties about reproduction, who gets to control it, and whether appropriate reproduction can consist of cutting and pasting what's gone before are central both to this key early science fiction text and to current debates over fair use, especially with respect to so-called "user-generated content." The connection between copying and horror has been noted before. Michael Newman, for example, discusses the "uncanny" appropriation art of Richard Prince, who re-photographed mainstream ads. To Newman, Prince's works "have the quality of deja vu, of repetition, which renders them strange, like the cadaver brought back to life in a horror story." (7) Note the implication that the source was dead before being revived. The intervention of the artist brought it back to life, but that is not unqualifiedly a good thing. It raises the issue of whether dead, commodified things should stay dead. Reproduction is uncanny because it creates life where there was none, and because of its double meaning: reproduction results in an entity that is the same/not the same as the original/its mother. Today, a largely female community of artists creates in similar fashion to Dr. Frankenstein and Richard Prince, though we tend to call the overall genre "remix" or "mashup." Vidders make vids: reedited footage from television shows and movies, set to music that directs viewers' attention and guides them through the revisioned images. This practice, growing out of media fandom, can trace its genealogy starting in the early 1970s with slideshows carefully coordinated with music. (8) A vid, Francesca Coppa has written, is an argument made through quotation and narrative. (9) This type of creativity foregrounds its constructedness, its debts to earlier works, with editing ("cutting") taking the place of the stitches used to suture the limbs of Frankenstein's monster. "Whatever their explicit themes and narratives, [vids] represent a queer form of reproduction that mates supposedly incompatible parents ('original' media source and 'original' creativity) to spawn hybrid offspring. …

Genius against Copyright: Revisiting Fichte's Proof of the Illegality of Reprinting

Abstract: This essay is dedicated to the memory of Keith Aoki, dear friend and colleague. INTRODUCTION The "romantic author" or "romantic genius" has been central to the history and critique of copyright for a few decades now. (1) A figure of radical individuality, genius was mobilized between the end of the eighteenth century and the middle of the nineteenth century to conceptualize a new kind of property authors could claim in their texts and other works deemed expressive. Drawing a sharp conceptual separation between the content of a work and the unique and therefore original form adopted by the author to express such content, the romantic genius is seen as the direct ancestor to the foundational notion of "personal expression" in modern copyright. (2) Genius functioned as a remarkably effective legal fiction rather than an accurate description of the process of literary or artistic production. Some authors may describe or experience their work as coming together unexpectedly, in a creative flash, by divine inspiration, or in a dream, but that does not erase the fact of the inevitable borrowings, collaborations, and extensive labor that goes into any form of cultural production. I do not wish, however, to expose the mythical nature of the romantic author and the way it denies visibility to the many social dimensions of creativity by casting it an instantaneous and seemingly natural process. That critique has been articulated well and often already. My point is quite different: whether or not genius has functioned well in the past as a foundational myth of literary property, the kind of creativity attributed to that figure can in fact easily undermine the very notion of property it is deemed to have established. More precisely, it is not that some elements of the figure of the romantic genius support the notion of intellectual property while others play against it, but rather that the very same dimensions that make genius into such a powerful tool for establishing copyright are also capable of undermining it. Genius is copyright's pharmakon--simultaneously a cure and a poison. (3) This paradox has been hiding in plain sight for a couple of centuries, nicely spelled out in the Romantic text frequently credited for having established the modern idea/expression dichotomy: Johann Gottlieb Fichte's 1793, Proof of the Illegality of Reprinting. (4) I. TRAJECTORIES AND TIMELINES It was claimed in eighteenth-century British debates over the existence of literary property that works should be initially owned by their authors because they embodied some imprint of the author's creative agency--a pattern that made them distinguishable from all others. A shared strategy was to distinguish a work's "form," "style," and "sentiment" from its content so as to argue that a book or an engraving was more than a material paper object. The patterns in which its letters, characters, or lines were arranged on the printed surface actually conveyed something more ineffable than ideas, things, facts, and knowledge. (5) That formal stylistic quality (much easier to grasp as a pattern than to spell with any clarity) functioned simultaneously as the mark of authorial agency and as the boundary mark of the author's work and property--however hazy that boundary may actually turn out to be. As Francis Hargrave put it in 1774: Every man has a mode of combining and expressing his ideas peculiar to himself. The same doctrines, the same opinions, never come from two persons, or even from the same person at different times, cloathed wholly in the same language. A strong resemblance of stile, of sentiment, of plan and disposition, will be frequently found; but there is such an infinite variety in the modes of thinking and writing as well in the extent and connection of ideas, as in the use and arrangement of words, that a literary work really original, like the human face, will always have some singularities, some lines, some features, to characterize it, and to fix and establish its identity; and to assert the contrary with respect to either, would be justly deemed equally opposite to reason and universal experience. …

Charity Law's Essentials

Abstract: The boundary between charity and business has become a moving target. Social enterprises, philanthropy divisions of for-profit companies (most notably at Google), and legislation creating hybrid nonprofit/for-profit forms all use business models and practices to mold and pursue charitable objectives. This Article asserts that charity law must be streamlined in order to respond to these and other dramatic charitable innovations. My new vision of charity law centers around two essential requirements. First, charity law must continue to demand that charities maintain an other-regarding orientation, pursuing benefits for someone other than their own leaders and managers. Second, existing charity law must be revised and supplemented to mandate that charities utilize group governance. Additionally, this dual focus should be intensified by removing the limits on commercial and political activity that currently clutter charity law. These reforms will enhance charity law's ability to regulate traditional charities. Moreover, focusing charity law on its essentials will reveal the tools necessary to respond to the exciting developments blurring the boundary between charity and business. INTRODUCTION The boundary between charity and business has become a moving target. Google located its philanthropic efforts within its for-profit company, rather than in a traditional nonprofit foundation. Social entrepreneurs are forming for-profit companies to pursue environmental, educational, and public health objectives. Jurisdictions are creating hybrid forms of organization, which blend elements of a charity and those of a business enterprise. Scions of business speak of the need to incorporate social goals and responsibility into their models, in order to generate sustainable success. Yet, the serious shortcomings of current charity law thwart its ability to respond to these dramatic innovations. Legislators, regulators, and courts can enable charity law to do so by identifying and focusing on its essentials. So, what are charity law's essentials? First, one must unpack the concept of "charity." To be a charity, an organization must pursue a charitable mission as its dominant and overriding purpose. Notably, such charitable missions go well beyond almsgiving. They embrace a broad array of missions, each pursuing some vision of the good, and include entities as diverse as the American Red Cross, your local community theater, and most U.S. law schools. The ways an individual charity achieves its charitable mission can and should evolve in response to changing times and circumstances. Still, the mission imperative remains the touchstone of what is a charity. The problem with the mission touchstone, however, is enforcement. Accountability to mission is exceedingly difficult to measure and police. Perhaps some donors or patrons may be willing to monitor mission and withhold their support and patronage as a sanction, but these efforts will be limited and insufficient. Public enforcement threatens undesirable government influence on the content of charities' missions. Moreover, public enforcement of mission undermines charities' autonomy, the characteristic that enables them to be innovators, to take countermajoritarian positions, to serve the underserved. (1) Ultimately, charities must be trusted to police mission themselves. A key goal of charity law is thus to assist charity leaders and stakeholders in enforcing mission. Until now, discussions of charity law have argued the essential way that charity law does this is through the nondistribution constraint. A charity must reinvest its residual earnings in its mission to serve others, rather than route those earnings to individuals who possess organizational control. (2) Current charity law embodies this rule and the slightly more general idea that charities must use their assets to benefit some charitable class. This requirement that charities maintain an other-regarding orientation focuses charities on mission by declaring self-regarding behavior unacceptable. …

The Case against Institutional Conscience

Abstract: INTRODUCTION In the United States today, federal laws immunize healthcare providers who refuse, on moral or religious grounds, to perform or assist in performing certain procedures. These "conscience clauses" cover not just individual providers, but institutions as well. Catholic hospitals (1) are chief among those institutions receiving conscience protection. Catholic hospitals operate in accordance with the Ethical and Religious Directives for Catholic Health Care Services ("Directives"), promulgated by the U.S. Conference of Catholic Bishops (USCCB). (2) The Directives define Catholic healthcare's mission of caring for the underserved and also limit or prohibit particular medical treatments, including abortion, tubal ligation, vasectomy, advance directives, and other end-of-life procedures. (3) Catholic hospitals assert the right, as an entity, to act in accord with the Directives, which are deemed to be a hospital's conscience. Further, all employees must comply with the Directives. (4) Therefore, the recognition of institutional conscience restricts the full protection of individual conscience for those employees whose moral or religious persuasions diverge from the Directives. That restriction is possible because a Catholic hospital's conscience overrides individual conscience when the two conflict, sometimes causing practitioners serious dilemmas. In December of 2000, a Catholic hospital asked its Chief of Obstetrics and Gynecology, Dr. Yogendra Shah, to step down from that position because he performed abortions at a private clinic. (5) In March of 1998, a Roman Catholic hospital in New York forced Dr. David Mesches out of his position as Chairman of the Department of Family Medicine. (6) In an attempt to ensure the completion of a merger between one Catholic and two secular hospitals, Dr. Mesches had offered to lease space in his offices as a clinic to provide the reproductive services that the surviving hospital would no longer offer. (7) Dr. Mesches commented to a local newspaper that the right to an abortion is "the law of the land" and added "it's the right thing to do." (8) He was afterwards dismissed. (9) A recent article, which published the results of thirty interviews with obstetrician-gynecologists who described their experiences treating miscarriages in Catholic hospitals, documented the challenge faced by those who work in Catholic hospitals and struggle to abide by the Directives. (10) Dr. S, who used to work in an urban Catholic hospital in the Northeast, described the following situation: I'll never forget this; it was awful--I had one of my partners accept this patient at 19 weeks. The pregnancy was in the vagina. It was over.... And so he takes this patient and transferred her to [our] tertiary medical center, which I was just livid about, and, you know, "we're going to save the pregnancy." So of course, I'm on call when she gets septic, and she's septic to the point that I'm pushing pressors on labor and delivery trying to keep her blood pressure up, and I have her on a cooling blanket because she's 106 degrees. And I needed to get everything out. And so I put the ultrasound machine on and there was still a heartbeat, and [the ethics committee] wouldn't let me because there was still a heartbeat. This woman is dying before our eyes. I went in to examine her, and I was able to find the umbilical cord through the membranes and just snapped the umbilical cord and so that I could put the ultrasound--"Oh look. No heartbeat. Let's go." She was so sick she was in the [intensive care unit] for about 10 days and very nearly died.... She was in DIC [disseminated intravascular coagulpathy].... Her bleeding was so bad that the sclera, the white of her eyes, were red, filled with blood.... And I said, "I just can't do this. I can't put myself behind this. This is not worth it to me." That's why I left. …

Solicitation, Extortion, and the FCPA

Abstract: The U.S. Foreign Corrupt Practices Act (FCPA) prohibits firms from paying bribes to foreign officials to obtain or retain business. It is one of the most significant and feared statutes for companies operating abroad. FCPA enforcement has never been higher and nine-figure monetary penalties are not uncommon. This makes the implementation of robust FCPA compliance programs of paramount importance. Unfortunately, regardless of whether they have compliance measures in place, many firms report that they face bribe requests and extortionate threats from foreign public officials on a daily basis. The implications of these demand-side pressures have gone largely unexplored in the FCPA context. This Article helps fill that gap. First, I describe the nature and frequency of bribe solicitation and extortion to illustrate the scope of the problem and the costs it imposes on firms and other market participants. I then argue that current FCPA enforcement policy in cases of solicitation and extortion raises several unique corporate governance and compliance challenges and ultimately poses a risk of overdeterrence. Though these concerns can be partially addressed through enhanced statutory guidance, I conclude by urging regulators to shift some of their focus from bribe-paying firms in order to directly target bribe-seeking public officials. Confronting the market for bribe demands in this way will help reduce corruption in general while also allowing employees and agents to spend less time worrying about how to respond to bribe requests and more time on legitimate, value-enhancing transactions. INTRODUCTION I. FCPA ENFORCEMENT A. Background 1. Anti-Bribery Provisions 2. Accounting and Internal Control Provisions B. Recent Enforcement Trends II. DEMAND-SIDE PRESSURES: THE PROBLEM OF BRIBE SOLICITATION AND EXTORTION A. Nature and Frequency of Bribe Demands B. Costs C. Incongruity of the FCPA and Other International Anti-Bribery Instruments D.FCPA Enforcement in Cases of Solicitation and Extortion... III. GOVERNANCE AND COMPLIANCE CHALLENGES A. Practical Issues B. Expansive and Aggressive Statutory Interpretation 1. The Meaning of "Corrupt" and the FCPA's Business Nexus Requirement 2. The Facilitation Payment Exception 3. Who Is a "Foreign Official"? 4. Implications: Increased Monitoring Costs and the Risk of Overdeterrence IV. SUGGESTIONS AND ALTERNATIVES A. Changes to the FCPA 1. Permit All Bribes 2. Clearly Prohibit All "Bribes" a. Clarifying the Purpose of Anti-Bribery Legislation b. Normative Fairness Concerns c. Market Exit B. Enhanced Regulatory Guidance C. Demand-Side Intervention CONCLUSION INTRODUCTION Maintaining compliance with the Foreign Corrupt Practices Act (FCPA) a represents one of the most significant issues facing American firms today. The U.S. Department of Justice (DOJ) recently said that enforcing the FCPA, which prohibits firms from bribing foreign officials to obtain business, is now its top priority--"second only to fighting terrorism." (2) This has translated into a sharp rise in FCPA case volume during the past decade. (3) Last year alone saw more FCPA actions than ever before in the statute's thirty-three-year history, with resulting fines routinely reaching into the hundreds of millions of dollars. (4) Estimates further suggest that federal regulators currently have over 200 open FCPA investigations, (5) leading to the observation that FCPA enforcement is "at an all time high and likely to remain there." (6) In many respects the increasing rate of enforcement is a positive development. Bribery blights lives, undermines democracy, and distorts markets. The FCPA's resurgence is a key part of the global anticorruption response and encourages firms to adopt compliance programs designed to counter corrupt practices. …

The Law and Economics of the Exclusionary Rule

Abstract: The exclusionary rule is premised on behavioral assumptions about how the law shapes police conduct. This Article uses a law and economics approach and formally models the implications of these assumptions. It shows: first, that in attempting to deter police violations, the rule does little to discourage police harassment of ordinary citizens, particularly minorities, potentially even leaving police with a dominant strategy to search; and second, when applied at trial, the rule decreases the benefit of the doubt received by defendants who are most likely to be actually innocent. Judicial attempts to mitigate these costs of the exclusionary rule in fact exacerbate them. The manifold jurisprudential rules that make up this area of law can be assessed in terms of the extent each effectively differentiates between the guilty and the innocent. Assessed in this way, it becomes clear that much of the secondary jurisprudence in search and seizure law further aggravates the problem. A means of assessing the appropriateness of this secondary jurisprudence is provided, that promotes better screening between innocent and guilty defendants. INTRODUCTION I. THE EFFECTS OF THE EXCLUSIONARY RULE AT THE POLICING STAGE A. The Theory and Empirics of Deterrence--The Problem of Selection Bias B. Information and Incentives--Principal-Agent Problems C. Perjury and Aggressive Policing--Substitution Effects D. A Formal Economic Model of the Exclusionary Rule at the Policing Stage II. THE EFFECTS OF THE EXCLUSIONARY RULE IN THE COURT ROOM A. Implications from the Absence of Evidence B. Juror Resistance C. Juror Error D. Perverse Screening E. A Formal Economic Model of the Exclusionary Rule at the Trial Stage III. POSSIBLE SOLUTIONS AND THEM LIMITS A. Jury Instructions Are Not a Solution B. Mitigation Through Evidentiary Rules Is Not an Adequate Solution C. Amending the Exclusionary Rule Will Not Work D. Abolishing and Replacing the Exclusionary Rule E. Judicial Distortion of the Exclusionary Rule F. An Alternative Approach CONCLUSION INTRODUCTION The exclusionary rule is the principal remedy of constitutional criminal procedure, and also its most controversial element. For many, the notion of refusing to allow juries to consider relevant evidence because of police misconduct is anathema to the nature and purpose of juridical inquiry. (1) but it is arguably also the only way to deter constitutional violations. (2) The existing literature centers on these normative and empirical questions, but neither has brought any resolution, nor are they considered likely to do so. (3) This Article provides a new approach, applying a law and economics analysis to the exclusionary rule, which allows for a reassessment of its costs and benefits. Rigorously drawing out the implications of the Supreme Court's behavioral assumptions unveils additional costs that the rule imposes. Most significantly, this Article shows first, that the exclusionary rule is unlikely to be effective under most realistic conditions--and thus its benefits are questionable--and second, that its costs fall overwhelmingly on innocents, both defendants and non-defendants. This same analysis provides a means of assessing the secondary doctrinal components of search and seizure law and a mechanism for reforming the most harmful effects of the exclusionary rule. The exclusionary rule was developed as an automatic and binary mechanism whereby evidence is admitted or not admitted, depending on the violation of a fixed constitutional line, regardless of the substantive unfairness to the defendant or the probative value of the evidence. But after its initial development (4) and the broadening of its application to all the states, (5) the Supreme Court has gradually narrowed the rule through the institution of a number of exceptions, including exempting knock-and-announce violations, (6) creating a good-faith exception for court administrators, (7) and extending that exception to police officers in certain circumstances. …

To Promote the Creative Process: Intellectual Property Law and the Psychology of Creativity

Abstract: INTRODUCTION Intellectual property is the primary area through which the law seeks to motivate and regulate human creativity. The U.S. Constitution grants Congress the power "[t]o promote the Progress of Science and useful Arts," (1) and Congress responded by enacting patent and copyright law in an effort to spur technological and artistic innovation. Because innovation usually requires some form of creativity as an antecedent, intellectual property law generally should also promote, and certainly should not impede, creativity. Despite the value of facilitating creativity for intellectual property law, understanding creativity is hardly something within the competent domain of law and legal analysis. Not surprisingly, the legislative and judicial development of intellectual property law has paid remarkably little attention to modern knowledge concerning how to promote creativity. Over the past several decades, however, a wealth of psychological research has provided new insights into creativity and the creative process. This research yields valuable lessons for intellectual property law and indicates that certain areas of patent and copyright law may counterproductively hinder the very creativity that the law is designed to inspire. Psychological research on creativity provides insight into at least three cognitive domains pertinent to the task of intellectual property law: motivation, collaboration, and convergent versus divergent thought processes. A variety of psychological research explores differences between convergent and divergent thinking, and, relatedly, between problem-finding and problem-solving creativity. Problem-finding creativity concerns identifying a new problem that no one has recognized before, while problem-solving creativity involves solving an identified problem. Research indicates that these two types of creativity can involve different cognitive processes and can lead to different types of creative achievement. Intellectual property law, however, generally treats both types of creativity identically, producing legal doctrine that does not motivate or reward either type optimally. Patent law, for example, applies the same nonobviousness requirement to both problem-finding and problem-solving innovation, even though the activities that produce such innovation can be significantly different, can result from differing motivation, and likely could best be promoted by different manners of reward. Experimental cognitive research also reveals that intrinsic motivation is highly conducive to creative productivity, while purely extrinsic motivation tends to decrease creative function. This robust finding sounds a note of caution across intellectual property law--law's ability to promote creativity not only may be limited, but could even be detrimental to the extent it turns an artist's or inventor's internally motivated activity into one conducted primarily for the copyright or patent prize. Experiments reveal that certain types of extrinsic motivation can enhance intrinsic motivation, although the line that separates positive from negative extrinsic influences is subtle. (2) In general, extrinsic motivation that confirms the creator's competence without instituting control can synergistically enhance intrinsic motivation, while extrinsic influences that are perceived as controlling counteract intrinsic motivation, and can reduce creativity. While certain aspects of intellectual property law may successfully leverage the extrinsic motivation of a creativity prize, other aspects are more troubling and should be revised in light of these creativity studies. Additional psychological research highlights the dynamic value of collaboration to creativity. Studies reveal that group collaboration can allow group members to build on each others' ideas in ways that synergistically enhance individual and overall creativity. (3) Similarly, various research finds that artists and scientists generate more creative outputs when exposed to a greater variety of input references, an outcome that is more likely in collaborative research. …

Circuit Court Interpretations of Garcetti V. Ceballos and the Development of Public Employee Speech

Abstract: INTRODUCTION The Supreme Court has firmly established that the First Amendment's ambit covers the speech of public employees, (1) but the extent of that coverage is subject to certain constraints. One such restriction, as pronounced in Garcetti v. Ceballos, (2) consists of a categorical denial of the Constitution's protection for speech made "pursuant to [an employee's] official duties." (3) Unfortunately, the Court in Garcetti explicitly refused to provide a definite framework for delineating the scope of employment. (4) Instead, the Court merely stated that "[t]he proper inquiry is a practical one." (5) Though many have characterized Garcetti as a hallmark of formalism in its adoption of an absolute prophylactic rule, (6) the decision "has provided considerable room for the circuit courts to carve out ... their unique and circuit-specific determinations of the [case's] import." (7) For these courts, concluding that an employee's speech fails within or without his or her official duties has become an indeterminate affair. Though the circuits do share a number of tests, Garcetti's nebulous language has allowed great leeway for courts to adopt their own unique approaches. As a result, the process of resolving a public employee's scope of employment for First Amendment purposes often varies with the jurisprudence of the individual circuits. More importantly, even where a court can plainly ascertain the scope of employment, Garcetti's categorical holding provides no leeway for speech of such public importance that it may deserve constitutional protection despite the fact that it exists because of the employee's official duties. This Note aims to shed light on the similarities and discrepancies that exist among the federal circuit courts (8) in defining the scope of official duties according to Garcetti's mandate, as well as to propose a new take on the public employee speech analysis. Part I begins with a very brief history of the development of the First Amendment jurisprudence regarding public employee speech, including an analysis of the Supreme Court's holding in Garcetti. Part II delves into the vast array of circuit court constructions of Garcetti. This includes an examination of the factors that the circuits share as well as those that are distinctive to certain courts. Finally, Part III examines circuit decisions that seemingly take an expansive view of the scope of employment. The Part also addresses certain defenses and criticisms of Garcetti and its subsequent implementation by the courts of appeals, ending with a proposal for the future of the First Amendment's application to public employee speech. Specifically, the law should return to a balancing standard in resolving these types of cases, where the initial "scope of employment" inquiry is settled by a contextual analysis that focuses on those duties either plainly required by employers or so intertwined as to be nearly inseparable. I. THE EVOLUTION OF PUBLIC EMPLOYEE SPEECH JURISPRUDENCE Until the latter half of the twentieth century, courts did not accept the notion that the First Amendment might protect public employee speech. Yet the last sixty years have yielded an intricate jurisprudence extending the First Amendment to public employees in limited circumstances. This Part presents a succinct history of the Supreme Court's treatment of public employee speech, focusing especially on the Court's decision in Garcetti. A. The Pre-Garcetti Era Constitutional recognition of public employee speech rights is a relatively recent phenomenon. Until the middle part of the twentieth century, public employees "enjoyed no recognized constitutional protection from conditions placed upon their employment, including those that restricted constitutional rights, such as free speech." (9) This all changed, however, in the 1950s and 1960s as the Supreme Court began to acknowledge a place within the First Amendment for such speech. …

Customary International Law as U.S. Law: A Critique of the Revisionist and Intermediate Positions and a Defense of the Modern Position

Abstract: INTRODUCTION I. THE MODERN POSITION" EXPLICATION AND PRELIMINARY DEFENSE A. The Basic Case for the Modern Position 1. Constitutional Structure and Original Intent 2. Pre-Erie Doctrine a. State Authority to Depart from Customary International Law b. Supreme Court Review of Customary International Law c. The General Law as an Intermediate Status 3. Post-Erie Doctrine B. The Limits of the Modern Position 1. Sabbatino and the Inapplicability of Some Customary International Law Norms to Some Acts of Foreign States 2. The Paquete Habana and the Applicability of Customary International Law to Federal Officials C. Sosa and the Modern Position II. THE INTERMEDIATE THEORIES A. Ramsey's Position 1. Nonpreemptive Federal Law as State Law 2. Ramsey's Textual and Historical Support B. Young's Position 1. Young's Criticisms of the Modern Position 2. Young's Intermediate Status for Customary International Law a. State Choice-of-Law Rules i. The Diversity and Indeterminacy of Existing Choice-of-Law Approaches ii. The Inappositeness of Choice-of-Law Rules iii. The Likelihood of Special Choice-of-Law Rules iv. The Role of the Federal Courts v. Summary b. Federal Choice-of-Law Rules C. Aleinikoff's Position D. The Bellia-Clark Position E. The Bradley-Goldsmith-Moore Position III. THE MODERN POSITION, REDUX A. The New Ways of Making Customary International Law B. The New Topics Addressed by Customary International Law IV. STATE INCORPORATION OF CUSTOMARY INTERNATIONAL LAW CONCLUSION INTRODUCTION In a recent referendum, the citizens of Oklahoma overwhelmingly approved a State constitutional amendment providing that the courts of the State "shall not consider international law or Sharia law" in rendering their decisions. (1) The amendment's exclusion of Sharia law has garnered most of the media attention, (2) but more consequential by far is the measure's directive to the State courts to disregard international law. Similar measures have been proposed in other States, some of them merely barring consideration of Sharia law or foreign law, (3) but others barring consideration of international law as well. (4) These measures are clearly unconstitutional insofar as they would prohibit the State courts from enforcing one of the two main forms of international law--treaties--as the U.S. Constitution by its terms requires State courts to give effect to the nation's treaties, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (5) But the federal Constitution does not expressly address the status of the other principal form of international law--customary international law, or the unwritten law that governs the relations among states and "results from a general and consistent practice of states followed by them from a sense of legal obligation." (6) These proposed State laws thus starkly raise the question whether the States may prohibit their courts from giving effect to the United States' obligations under customary international law. (7) The answer provided by the Restatement (Third) of Foreign Relations Law is a clear "no." Reflecting the settled view regarding the status of customary international law in the U.S. legal system at the time that it was approved in 1987, the Restatement asserts that such law has the status of federal law. (8) As such, it preempts inconsistent State law; State courts must follow federal court interpretations of it; and State court interpretations of it are reviewable in the federal courts. …

The Constitutional Right Not to Participate in Abortions: Roe, Casey, and the Fourteenth Amendment Rights of Healthcare Providers

Abstract: The Fourteenth Amendment rights of various parties in the abortion context--the pregnant woman, the fetus, the fetus's father, the state--have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman's Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor's right to decide whether to participate in abortion procedures? The Court's substantive due process analysis typically looks for rights that are "deeply rooted" in our history and traditions. Accordingly, this article addresses the historical basis for finding that providers do indeed have a Fourteenth Amendment right not to participate in abortions. This historical analysis shows that this right to refuse passes the Court's stated test for Fourteenth Amendment protection. In fact, the right to refuse actually has better historical support, and better satisfies the Court's stated tests, than the abortion right itself. Beyond this historical case, a healthcare provider's right to make this decision also fits squarely within the zone of individual decision making protected by the Court's opinions in Casey and Lawrence v. Texas, and protects providers from the types of psychological harm that the Court recognized in Roe and Casey. For these reasons, under Roe and Casey, a healthcare provider has a Fourteenth Amendment right not to participate in abortions. INTRODUCTION Dr. Lisa Harris had performed abortions for years. But while performing one particular abortion, she experienced what she called a "brutally visceral" emotional response. At the time, Dr. Harris was pregnant, and she had felt her own baby kick while she was performing the abortion. She described the experience as "one of the more raw moments" of her life. (1) From that point on, Dr. Harris found that performing abortions "did not get easier," and that she grew to find the process "sadder." (2) Still, Dr. Harris chose to continue providing abortions. Indeed she wrote about her experience to draw attention to the psychological impact of providing abortions. (3) Dr. Harris hopes that an open discussion of the psychological burdens of providing abortions will strengthen the pro-choice movement and help make abortions more widely available. (4) Different doctors, of course, have different approaches to the question of whether or not to perform abortions. Some choose not to perform them at all. Others perform abortions for their entire careers, enduring protests, threats, and physical violence to provide a service they deem critically important. (5) Still others perform abortions for a time and later decide they wish to stop, (6) or decide midcareer to begin providing abortions. (7) In short, physicians--like the rest of us-have come to a variety of opinions about abortion. Those opinions quite naturally influence whether they are willing to participate in abortions or not. What does the Constitution say about this state of affairs? Suppose after the abortion described above, Dr. Harris had experienced a change of heart and decided she no longer wished to provide abortions. Does she have the constitutional right to make that decision on her own? Or could the government force her to continue to provide abortions against her will, perhaps as a condition of being a licensed obstetrician? Courts and commentators have repeatedly examined the Fourteenth Amendment rights of various parties in the abortion context, including the pregnant woman, (8) the fetus, (9) the states, (10) and the father. (11) These decisions often presume and rely upon the presence of a willing doctor to perform the abortion. (12) To date, though, no scholars have explored in any depth whether the healthcare provider has Fourteenth Amendment rights to decide for herself whether to participate in abortions. …

Religious argument, free speech theory, and democratic dynamism

Abstract: I don't want no commies in my car. No Christians either. (1) INTRODUCTION I. THE PROBLEM OF RELIGIOUS ARGUMENT IN PUBLIC POLITICAL DEBATE A. Logical Consistency in the Competing Positions 1. The Restrictive Position: From Danger to Normative Constraint 2. The Permissive Position: No Danger, No Constraint B. Religious Argument's Potential Danger for Liberal Democracy C. Permissive Theorists' Inadequate Response to the Potential Danger of Religious Argument II. NORMATIVE INSIGHTS FROM FREE SPEECH THEORY A. Communist Advocacy and the Existential Dilemma of Expressive Freedom B. The Incremental Tension Between Political Stability and Political Dynamism III. RECASTING THE NORMATIVE CASE FOR ADMITTING RELIGIOUS ARGUMENT INTO PUBLIC POLITICAL DEBATE A. Welcoming Religious Argument into Public Political Debate 1. Lessons from the Communist Speech Controversy 2. Lessons from the Stability-Dynamism Controversy. B. Welcoming Criticism of Religion into Public Political Debate CONCLUSION INTRODUCTION What is the normatively proper role in public political debate for arguments grounded in religion or similar conscientious beliefs? Political and legal theorists continue to clash over this issue, and the 2008 national election demonstrated its practical importance and contentious nature. During the presidential campaign, Democratic candidate Barack Obama had to address concerns about the politics and theology of his pastor, Reverend Jeremiah Wright, (2) and Republican hopeful Mitt Romney had to address concerns about his membership in the Church of Jesus Christ of Latter-day Saints (LDS). (3) The LDS Church played a leading role in passing a California initiative that banned same-sex marriage, (4) and U.S. Catholic bishops urged parishioners to support candidates who embraced Catholic positions on key social issues, principally abortion. (5) Casting a long shadow over the election were the nation's two ongoing wars in the Muslim nations of Afghanistan and Iraq, which also implicated policy toward the Jewish state of Israel. All of these issues, to varying degrees, inspired arguments grounded in religious belief and/or antipathy. Such arguments, even in an era of declining religiosity in the United States, (6) implicate the normative propriety of religious argument. No normative constraint could ever bleach our political debate of all religious advocacy. Norms operate as amorphous vectors, not as precise endpoints. Even so, normative standards can exert a powerful influence over public discourse. If broadly accepted norms of public political debate urged constraints on religious argument, then opponents of a position advanced in religious terms would feel justified in decry ing the religious argument as out of bounds, rather than addressing its merits; media outlets would see less need to include overtly religious arguments in reporting on political controversies; and religious believers who wished to argue politics on religious grounds would have strong reason to doubt the ethics and efficacy of doing so. The normative question of religious argument in public political debate has sharply divided leading political theorists. On the restrictive side of the debate stand such liberal thinkers as Robert Audi, Kent Greenawalt, and John Rawls. Each of these theorists has contended that religious argument undermines the stability and cohesiveness of liberal democracy and that liberal norms of public political debate should therefore constrain religious argument. Most restrictive theorists embrace some version of what Rawls calls the "public reason" principle, which requires religious believers to cast their religiously grounded arguments in terms accessible to the secular polity. (7) On the opposing, permissive side of the debate stand such religious liberty advocates as Stephen Carter, Michael McConnell, and Michael Perry. …

Transnational Class Actions and Interjurisdictional Preclusion

Abstract: INTRODUCTION As global markets have expanded and transborder disputes have multiplied, American courts have been pressed to certify transnational class actions--i.e., class actions brought on behalf of large numbers of foreign citizens or against foreign defendants. (1) The Supreme Court's recent decision in Morrison v. National Australia Bank Ltd. (2) is likely to reduce the number of "foreign-cubed" or "f-cubed" securities fraud class actions filed in the United States, at least in the short term. (3) But Morrison is unlikely to inhibit the filing of transnational class actions involving securities listed on domestic stock exchanges, transnational class actions raising claims that arise under federal laws that apply extraterritorially, or transnational class actions against defendants whose conduct within the United States is the "focus" of Congressional concern. In short, even after Morrison, class counsel are likely to keep filing transnational class actions and defense counsel are likely to keep opposing them. Defendants in transnational class actions often oppose certification by arguing that the superiority prong of Rule 23 (b) (3) is not satisfied. (4) In particular, defendants argue that a class action is not superior to alternative means of dispute resolution because European courts will not recognize or accord preclusive effect to an American class action judgment in the defendant's favor. Thus, defendants fear repetitive litigation on the same claim in foreign courts even if they were to prevail in an American court. (5) In considering this argument against certification, American courts often use judgment recognition and preclusion terminology interchangeably. They discuss the "'possibility' that a foreign court may not recognize a judgment" (6) and the fear that an American class action judgment "might not be given preclusive effect in foreign courts" (7) as though recognition and preclusion analyses are identical. But they are not. American courts are conflating what should be a two-step analysis into one. They should be asking, first, would the foreign court recognize the American class action judgment? And second, if it would, what preclusive effect, if any, would the American class action judgment have in the foreign court? Instead, while employing both recognition and preclusion terminology, the American courts typically focus only on the former question, examining only whether the foreign court would decline to recognize the American class action judgment because it violates "international public policy." (8) The American courts rarely, if ever, consider the second step: the preclusive effect, if any, that an American class action judgment would receive if it were recognized abroad. The failure to address this second step is problematic because even if a foreign court were to recognize an American class action judgment, the defendant could face a risk of relitigation if the judgment were not accorded robust preclusive effect. This Article seeks to analyze the missing second step--the preclusive effect of an American class action judgment--drawing heavily on a project by the British Institute of International and Comparative Law (BIICL) undertaken to assess the preclusive effects of judgments under the national laws of a select group of European countries. (9) Even in Europe, where the Brussels/Lugano Regime governs the recognition and enforcement of Member State judgments in civil and commercial matters, (10) little attention has been paid to the question of the preclusive effects to be afforded to such judgments. (11) The Article is divided into three Parts. Part I examines the preclusive effects of class action judgments in U.S. courts. A defendant who raises the risk of repetitive litigation abroad to oppose certification of a transnational class action at home assumes that, in a purely domestic case, a class action judgment in its favor would shield it from duplicative individual suits by absent class members in American courts. …

Am I My Brother's Keeper: Familial DNA Searches in the Twenty-First Century

Abstract: INTRODUCTION Over twenty-five years ago, British researcher Alec Jeffreys discovered DNA fingerprinting, (1) a technique used to identify the unique genetic material of an individual by analyzing sequences of deoxyribonucleic acid (DNA). (2) Today, DNA fingerprinting has expanded from a fledgling tool of law enforcement to a ubiquitous, valuable asset in criminal investigations and prosecutions. Correspondingly, criminal DNA databases have grown in size and function, ushering in a new advent of DNA searches. For example, "familial DNA searches" compare crime scene DNA evidence to offender profiles already in a DNA database, searching for a partial DNA match in the hopes that the perpetrator is a relative of an offender whose profile is already present in the database. (3) In July of 2010, California's use of familial DNA searches came to the forefront of the public eye with the arrest of Lonnie D. Franklin Jr., the alleged "Grim Sleeper" serial killer who may have been responsible for at least ten murders in the South Los Angeles area over a period of twenty-five years. (4) Often called "familial" DNA searches, partial match DNA searches have been used in criminal investigations and in missing person identifications. Although the United Kingdom pioneered the use of familial DNA searches in criminal investigations, recent efforts in California and Colorado indicate a growing interest in the use of familial DNA searches in America. (5) However, familial DNA searches implicate concerns over false positive results and placing family members of offenders, whose DNA profiles remain in a DNA database, under lifelong genetic surveillance. Also, because minorities constitute a disproportionate percentage of offenders in DNA database systems, familial searches may have a disproportionate effect on minority communities. Such concerns are of even greater importance because recent state and federal laws are beginning to allow DNA collection from arrestees, rapidly expanding the pool of available DNA profiles. With these changes occurring, society and national and state governments must address the growing role of DNA profiling in the American criminal justice system. Part I addresses the recent interest in familial DNA searches, while Part II analyzes the combined effects of allowing familial DNA searches in criminal investigations when DNA databases are expanded by requiring DNA samples from arrestees, in particular looking to California as a prototype. Part III asks whether these changes in the size and function of criminal DNA databases are a "database creep" (6) or the inevitable result of DNA profiling. This Note concludes that there are weak legal objections to expansions in the size and function of DNA databases while there are strong policy objections. Also, California is a likely prototype for other states interested in performing familial DNA searches and collecting DNA samples from arrestees. In addition, a universal DNA database is beginning to be recognized as a serious possibility and potential solution to disparities in nonuniversal, expanded DNA databases. This Note concludes that there should be greater discussion of the advantages and disadvantages to DNA profiling and expansion in the size and function of DNA databases. I. THE EMERGENCE OF FAMILIAL DNA SEARCHES A. The Use of DNA Profiling DNA profiling has been a useful tool for law enforcement, and law enforcement agencies are eager to see expansion in DNA database use and size. (7) DNA profiling can augment criminal investigations in many ways. A majority of crimes are committed by repeat offenders, (8) an important reason why DNA profiling is an effective tool. (9) DNA databases would likely provide more hits if criminals' "DNA profiles [could] be entered into the system early in their career, [so that] they can be identified when future crimes are committed." (10) Because DNA matching "may succeed when other forms of forensic or witness evidence has proved insufficient or unreliable in helping bring offenders to justice for crimes committed some years earlier," (11) it is increasingly used to generate suspect leads rather than support incriminating evidence against a previously identified suspect. …

Creativity, Improvisation, and Risk: Copyright and Musical Innovation

Abstract: The goals and beneficiaries of copyright frameworks have long been contested in varied contexts. Copyright is often treated as a policy tool that gives creators incentives to create new works. Incentive theories of copyright often emphasize appropriability, which enables copyright owners to ensure that they profit from their copyrighted works by exercising control over uses of and access to, such works. Although copyright clearly imposes costs in the form of restrictions on access to copyright-protected works and inefficiencies in the form of deadweight loss, the benefits of copyright are thought by many to outweigh the costs. Copyright discussions may at least implicitly assume that copyright frameworks, and the control rights that accompany such frameworks, increase creativity. However, little is actually known about the extent to which copyright increases creativity. Further, conceptualizations of creativity within legal discussions remain vague. Copyright discussions often pay significant attention to the risks to ownership for copyright owners posed by potential users and uses of copyright protected works. However, a focus on risks to ownership may obscure the presence of other types of risk in copyright contexts. Copyright control mechanisms may also pose significant risks to creativity and innovation because they may not sufficiently acknowledge the importance of uses of existing works as a creative force. Musical innovation, for example, has come in many instances from creators taking creative risks through uses of existing materials in ways that do not fit well within dominant copyright assumptions about creativity. Creators operating within such creative paradigms may expose themselves to greater legal risks as a result of their uses of copyright protected material. Copyright discourse would benefit from greater attention to potential dangers that copyright frameworks might pose for creativity and innovation. Further, greater consideration should be given to the extent to which risks taken by creators in the creative process, evident in practices such as improvisation, may foster creativity. INTRODUCTION Although copyright has expanded to artistic practices that necessarily involve more than the visual, a visual-textual bias in copyright has remained. The expansion of copyright to music underscores potential incompatibilities in applying visual copyright to an artistic practice, such as music, that is both oral and aural. In fact, music creation does not require writing, but may include oral and, at times, written traditions. Courts in music copyright cases give primacy to visual, written aspects of music and typically assume that oral musical expressions fall into the category of a performance, which is in turn assumed to derive from and be secondary to an underlying written musical composition. The visual bias in music copyright has become more problematic in the post-sound-recording era, when copyright increasingly protects things other than written musical expression. Further, the twentieth-century displacement in the popular music arena of European-based music by African-based music, which often embeds significant elements of oral music traditions, particularly challenges music copyright's visual assumptions. I. COPYRIGHT, CREATIVITY, AND RISK A. The Goals of Copyright The Intellectual Property Clause of the U.S. Constitution provides that: "The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (1) The authority for copyright thus embeds two key concepts that have long been a focus of intellectual property scholarship: progress/innovation and the rights of authors. Authors' fights have been typically conceived of as a type of property right, (2) hence "intellectual property," but could, in reality, be structured in a number of different ways. …

Harvesting Intellectual Property: "Inspired Beginnings" and "Work Makes Work," Two Stages in the Creative Processes of Artists and Innovators

Abstract: This Article is part of a larger empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents, and business partners. The book-length project involves the collecting and analysis of stories from artists, scientists, and engineers about how and why they create and innovate. It also collects stories from their employers, business partners, managers, and lawyers about their role in facilitating the process of creating and innovating. The book's aim is to make sense of the intersection between intellectual property law and creative and innovative activity, specifically to discern how intellectual property intervenes in the careers of the artists and scientists. This Article is an overview of the first two chapters of the book. The first is entitled "Inspired Beginnings" and explains how people describe the embarkation on a life's work in art and science mostly as a function of intrinsic or serendipitous forces. The second chapter is entitled "The Work of Craft: Work Makes Work" and explores the varied ways the interviewees describe their daily work in terms of the pleasure of sitting in a defined space (lab, studio, study) and focusing on the details of a project. This second chapter also discusses how work is described in terms of natural metaphors (e.g., harvesting or fishing) and the possible ramifications of this rhetoric for intellectual property law and policy. INTRODUCTION I. CONTEXT: THE PLACE OF THIS PROJECT II. PROJECT DESIGN III. PROJECT FINDINGS A. Inspired Beginnings 1. Natural Forces and Serendipity 2. Urgency and Play B. The Work of Craft: Work-Makes-Work 1. Time/Space 2. Hard Work 3. Harvesting Tangible Property IV. IP's PLACE: IMPLICATIONS AND CONCLUSIONS A. Tentative Implications B. Conclusions APPENDIX A: INTERVIEW DATA SAMPLING APPENDIX B: DATA ANALYSIS INTRODUCTION This Article is part of a larger empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents and business partners. The book-length project involves the collecting and analysis of stories from artists, scientists and engineers about how and why they create and innovate. It also collects stories from employers, business partners, managers and lawyers about their role in facilitating the process of creating and innovating. The book's aim is to make sense of the intersection between intellectual property law and creative and innovative activity. Specifically, its goal is to unpack the motives behind creative and innovative activity and to discern how intellectual property intervenes in the careers of the artists and scientists. This Article is an overview of the first two chapters of the book. The first chapter is entitled "Inspired Beginnings" and explains how people describe the embarkation on a life's work in art and science mostly as a function of intrinsic or serendipitous forces. The second chapter is entitled "The Work of Craft: Work Makes Work" and explores the varied ways the interviewees describe their daily work in terms of the pleasure of working in a defined space (a lab, studio, or study) and hewing their project, shaping it. This chapter also discusses how work is described in terms of natural metaphors (harvesting or fishing) and the possible ramifications of this rhetoric for intellectual property law and policy. Part I of this Article situates this study in the context of other empirical projects that investigate intellectual property law and practice. Part II discusses the project design in more detail. And Part III explores the transcripts, sharing the words and stories of those interviewed for what they say about beginnings and daily work of creation and innovation in the arts and sciences. Specifically, Part III imposes certain structures on the interviews that I see emerging after close attention to language patterns and narrative repetitions within the transcripts themselves. …

Copyright Publication: An Empirical Study

Abstract: INTRODUCTION On August 28, 1968, Martin Luther King ignited the conscience of the world when he delivered the speech I Have a Dream from the steps of the Lincoln Memorial. While thousands gathered on the mall and millions watched live on television, King challenged the United States to envision a future in which we live up to our founding principles of equality. He proclaimed, "I have a dream that one day this nation will rise up and live out the true meaning of its creed: 'We hold these truths to be self-evident, that all men are created equal.'" (1) The speech was a defining moment of the civil rights movement. (2) In 1999 historians awarded it first place in the list of the 100 most eloquent and significant political speeches of the twentieth-century. (3) Both excerpts and the complete text have been printed in newspapers. (4) It has been broadcast on television and in movie theaters internationally. (5) Over a million people have viewed the speech on YouTube. (6) The idea that such a famous speech could be considered "unpublished" defies reason. (7) But under copyright law, whether the speech has been published is an open question. The answer is of critical importance because it affects the extent to which the public may have access to the speech and many other works that contribute to our cultural heritage. If the speech was "published" without the notice required by copyright law, it is in the public domain, and may be freely copied, played, posted on the Internet, and used in documentary films because it belongs to all of us. (8) But if unpublished despite the lack of notice, it is protected by copyright, and the King Estate has the exclusive power to control its distribution until 2058. (9) The three courts charged with deciding the issue arrived at three different conclusions. In 1963, a New York federal district court held that it was not published, and therefore protected by copyright law. (10|) The Court issued a preliminary injunction prohibiting the defendants from selling records of the speech. (11) On the day of the March on Washington, CBS was the only network that provided continuous coverage. (12) Thirty years later, CBS attempted to use its own video recording of the speech in a historical documentary about the twentieth century. (13) In 1998, CBS was sued by the King Estate for copyright infringement. (14) This time, a federal district court in Georgia found that the speech was published without notice and is now in the public domain. (15) In 1999, the Eleventh Circuit reversed the 1998 decision and sent it back to the district court, expressly dodging the merits and finding that factual disputes should have precluded summary judgment. (16) Before the legal significance of the facts could be resolved at trial, the case settled. (17) Based on this mixed litigation record, there is no apparent clarity on whether I Have a Dream has been published. It is difficult to tell which district court got it right--the one that found the speech to be protected by copyright or the one that found it to be in the public domain. Anyone seeking to make a documentary film about the civil rights movement may feel compelled to use some of this footage, but until the question of copyright publication is clarified, the King Estate will control when the footage may be used and at what cost. A filmmaker who believes that use of this speech is necessary to make a true documentary about Martin Luther King, famous speeches, the civil rights movement, or American history in the twentieth century risks being sued in federal court by the King Estate just as CBS was. Based on a murky question of copyright law, this critical piece of our cultural history will be under the control of the King Estate until 2058. (18) Many cultural treasures--both famous and unknown--remain buried by uncertainty over whether, for copyright purposes, a work has been published. In an effort to untangle some of this uncertainty, this Article presents the first empirical study of copyright publication case law. …

The Role of Creativity in Trademark Law

Abstract: INTRODUCTION I. TRADEMARK LAW A. Implementation B. Theory II. THE CREATOR AND CREATIVITY A. The Mark's Creator B. Creativity's Role in Trademark Law CONCLUSION INTRODUCTION From her outre fashion--such as a dress of bubbles and a lobster headpiece (1)--to her music, Lady Gaga is frequently touted as a creative force in contemporary pop culture. (2) Just who created her moniker, however, is the centerpiece of a 2010 lawsuit filed against her (which has since settled on confidential terms). (3) Her ex-boyfriend and music producer Rob Fusari sued her to recover a percentage of her revenues, alleging a breach of contract pursuant to which Fusari had helped Lady Gaga craft some of the songs on her debut album and introduced her to key music executives. (4) Particularly interesting is the tale Fusari tells in his complaint to build his case. A significant part of his claim rests on the allegation that he created the "Lady Gaga" name. According to Fusari, he crafted the name when he sent Stefani Germanotta (Lady Gaga's birth name) (5) a text message from his cell phone containing the Queen song title, "Radio Ga Ga," which his phone's spell checking program changed to "Lady Gaga." (6) According to Fusari, "Germanotta loved it and 'Lady Gaga' was born." (7) Lady Gaga sings a different tune. As she tells it, she came up with the name following Fusari's repeated singing to her of "Radio Ga Ga" as a joke, due to some Queen-like harmonies in her recordings. (8) From the vantage point of trademark law, this dispute is fascinating. The disagreement centers on who originated Lady Gaga's brand name: surely a bona fide trademark for her musical services, products, and the like. (9) Nonetheless, nowhere to be found in Fusari's complaint or Lady Gaga's subsequent counter-complaint is any claim that Fusari is the proper owner of the "Lady Gaga" trademark. (10) This Article situates this lawsuit in trademark law by exploring the role of creativity in trademark law. Trademark law--unlike patent and copyright law, its intellectual property cousins--is not structured to reward creators for producing particular content. (11) That is unsurprising because trademark law and theory--as described in Part I--is significantly different than that of patent and copyright. As the Supreme Court recently remarked, trademark law was "not designed to protect originality or creativity," while patent and copyright law were. (12) Nonetheless, as Part II analyzes, there are critical ways in which trademark law, like patent and copyright law, seeks to encourage creative activity, even without directly rewarding marks' creators. This underappreciated current of incentive to be creative courses through trademark law in ways that complement trademark law's basic purposes. At the same time, however, trademark law's drive to reward creativity has also likely helped justify its expansion in ways unmoored from core trademark theory. I. TRADEMARK LAW As a springboard for analysis of the role of creativity in trademark law, this Part recounts fundamental aspects of trademark law, starting with its current implementation and followed by a discussion of the principles understood to be animating the law. A. Implementation Words, symbols, logos, and sometimes a product's design or packaging may be protected under trademark law. (13) According to the Lanham Act, these are protectable under federal law so long as they are "used by a person" in commerce in a distinctive way "to identify and distinguish his or her goods ... from those manufactured or sold by others and to indicate the source of the goods, even if that source is Moreover, state laws frequently protect trademarks as well, see, e.g., Joe Cole, Trademark Terms Under the Lanham Act and State Law, 19 J. CONTEMP. LEGAL ISSUES 70, 70-72 (2010), but I do not discuss that avenue of protection herein. unknown." (14) Federal law similarly protects marks that designate services. …

Witnessing the Witness: The Case for Exclusion of Eyewitness Expert Testimony

Abstract: INTRODUCTION [A]t about 11:30 p.m. on July 24, 1966, [Casey Reynolds, a white man,] was engaged in changing a tire when three men approached from across the highway. One of them shot him from a short distance away. The three then ran up to within three or four feet. Reynolds arose from his stooped position and held on to his wife, who had left the car to watch him as he worked. One of the men put his hand on Mrs. Reynolds' shoulder. Reynolds testified that this was Coleman [who was black]. Within a few seconds a car with its lights on approached, and the three men turned and "ran across the road...." As they turned to go, Reynolds was shot a second time. He identified petitioner Stephens [also black] as the gunman, stating that he saw him "in the car lights" while "looking straight at him." (1) In the two weeks that followed, Reynolds was only able to vaguely describe his attackers and unable to identify them from a series of mugshots. Three months later, Reynolds was called to the police station, where he was presented with a lineup of six men. Reynolds suddenly remembered, immediately identifying Stephens and Coleman as his assailants. At trial, Reynolds again identified the two men and "repeated on cross-examination his testimony on direct; he said he saw Coleman 'face to face,' 'I looked into his face,' 'got a real good look at him.'" (2) Coleman and Stephens were both convicted. (3) At trial, Reynolds was asked to the take the stand and testify regarding the events of that tragic evening. During his testimony he indicated that, despite the short duration of the events, he could clearly identify the two shooters. He sat in the witness box and told his story to a jury of his peers entrusted with the task of determining whether or not he was telling the truth. How, though, can a jury be certain that he was right? Our criminal system requires the jury to find the accused "guilty beyond a reasonable doubt," but even such a high standard of culpability cannot ensure that the jury is right every time. When the freedom of two men is at stake, is Reynolds's accuracy not crucial? Only Casey Reynolds, his wife, and his three assailants knew exactly what happened that night, and even then each may have had a different recollection, but Reynolds was certain that he recognized the two men. It was nighttime and he had his back turned as they approached, catching a glance of them after being shot. In the course of a few seconds, his wife was threatened, and he was surely stressed. He was shot a second time. In the proceeding weeks he was unable to clearly describe his attackers. Yet, during a lineup and again at trial he picked out the two men at whom he said he "got a real good look." (4) These extreme circumstances must cast significant doubt on his ability to not only see, but also to remember, the men from that night. Situations such as this have given rise to calls for reform in the criminal justice system to ensure that innocent people are not sent to jail on the basis of inaccurate eyewitness testimony. The Innocence Project, a "national litigation and public policy organization dedicated to exonerating wrongfully convicted people," (5) estimates that eyewitness identification was a factor in seventy-five percent of convictions overturned through DNA testing, making it the "single greatest cause of wrongful convictions" in the United States. (6) "More than 4250 Americans per year are wrongfully convicted due to sincere, yet woefully inaccurate eyewitness identifications." (7) These numbers reveal two problems with eyewitness identification. First, it demonstrates a shortcoming in the cognitive ability of the human brain to process, store, and recall memories. Second, in trial situations, juries may be unduly receptive to this mode of unreliable testimony. Over the last thirty years, the field of cognitive psychology has made dramatic strides in understanding the way the brain encodes and stores memories. …

A Note on Incentives, Rights, and the Public Domain in Copyright Law

Abstract: I. A GAP IN MINIMALIST COPYRIGHT DISCOURSE The idea that the purpose of copyright law is to provide incentives for creativity is among the most fundamental and most established ideas in North American copyright discourse. (1) There can be no doubt, of course, that copyright discourse in North America is highly contested. Some regard it as nothing less than the site of so-called "copyright wars," of intense struggles--intellectual as much as practical, political as much as theoretical--between copyright maximalists and copyright minimalists, advocates of high copyright protection and advocates of low copyright protection. (2) This manifest presence of vibrant, vigorous, and vivid controversy, however, obscures the depth of the latent agreement that frames it. Few, if any at all, would contest the bedrock idea that copyright law is about providing incentives for creativity. (3) The pervasiveness of the hold that instrumentalism has over the North American copyright imagination is paralleled only by the ease with which that imagination summarily rejects or dismisses rights-based accounts of copyright law--accounts rooted in a vision of the inherent dignity of authorship. One of the nodal points of the copyright wars is the ongoing discussion about the expansion of copyright scope and copyright subject matter since the enactment of the Statute of Anne, (4) the world's first copyright statute, in eighteenth century England. Predictably, whereas copyright minimalists object strenuously to this expansion, copyright maximalists support it. Equally unsurprisingly, both maximalists and minimalists formulate their position from the shared standpoint of instrumentalist copyright theory. My purpose here is to offer minimalists some words of both caution and comfort. The cautionary aspect is that minimalism ought to be far more suspicious than it actually is about the instrumentalist hegemony in copyright discourse. Instrumentalist discourse is, in my view, part and parcel of the very expansion that minimalism seeks to counter. Copyright protection has consistently expanded since Donaldson v. Beckett (5) affirmed (a) the supremacy of the Statute of Anne over common law copyright, and (b) the still prevailing view that copyright law is not a juridical recognition of rights inherent in the act of authorship but rather a policy instrument designed to promote the public interest in creativity. Thus, historically speaking, copyright expansion has taken place and continues to take place under the supremacy of instrumentalism. To be sure, this historical correlation is not by itself sufficient to persuade us that instrumentalism is necessarily complicit in the constriction of the public domain. It does strike me as sufficient, however, to generate significant unease about any uncritical adoption of the instrumentalist paradigm in the name of the expansion of the public domain. (6) The comfort I seek to offer is that there are, of course, alternative accounts of copyright law. These accounts are none other than the rights-based accounts that, in its habitual endorsement of instrumentalism, minimalism dismisses far too summarily. One of the major complaints that minimalism levels against rights-based discourse is that, once enshrined as a matter of inherent dignity, the rights of authors under copyright law cannot be easily constrained. With this complaint in mind, I want to emphasize that, on the contrary, rights-based discourse envisions not only the claims of authorship but also, and therefore, those of the public domain as a matter of inherent dignity. The rights-based account of authorship is also a rights-based account of the public domain. My purpose is, in short, to generate minimalist unease about instrumentalism and to evoke the as yet largely unexplored potential of a rights-based minimalism. (7) At the very least, I seek to undo the widespread apprehension that rights-based accounts are necessarily maximalist accounts. …

Collateral Censorship and the Limits of Intermediary Immunity

Abstract: The law often limits the liability of an intermediary for the speech it carries. And rightly so, because imposing liability on intermediaries can induce them to filter out questionable content and this "collateral censorship" risks suppressing much lawful, even highly beneficial, speech. The "collateral censorship" rationale has its limits, though, and correspondingly, so should the applicability of intermediary immunity. The worry with collateral censorship is not just that intermediaries censor, but that they censor more than an original speaker would in the face of potential liability. Increased censorship, in turn, is the product of applying liability targeted at original speakers to entities whose interests diverge from original speakers. Where the "intermediary" has the interests of an original speaker, and so should be regarded as one, or where the form of liability already takes into account the intermediary's interests, collateral censorship is not the problem, and immunity is not the right response. This understanding should, in particular, inform the interpretation of [section] 230 of the Communications Decency Act of 1996, a federal statute that broadly immunizes Internet intermediaries from speech torts and many other forms of liability. In cases involving the republication of e-mails, questionnaires, member screening, and contract claims, among others, courts have begun to explore the limits of this immunity, but have done so haphazardly and inconsistently, having largely lost sight of the underlying rationale for immunity. Focusing on the conditions that generate problematic collateral censorship provides a principled basis upon which to define the limits of intermediary immunity generally, and [section] 230 in particular. INTRODUCTION Suppose I find that someone has posted a defamatory comment about me on an online message board. Is the operator of the message board liable? Or suppose someone e-mails me a bit of juicy gossip, and I repeat the gossip on my blog. Am I liable? Or suppose I pay my Internet service provider to scan my incoming e-mails for viruses, but my ISP fails to do so, and an e-mail virus infects my computer. Is my ISP liable? Under a federal statute, [section] 230 of the Communications Decency Act of 1996, (1) the answer to the first question is definitively no. (2) Indeed, as that statute has been interpreted by the courts, a message board operator is not liable for a defamatory comment posted by a third party even if the target of the comment asks the operator to remove the posting and the operator refuses. (3) Some commentators have criticized this result as unduly allowing message board operators and other Internet intermediaries to ignore even patently unlawful speech without facing any consequences, to the detriment of those harmed by the speech. (4) The result, however, appears firmly entrenched in the courts, which have repeatedly defended it on both statutory and policy grounds. (5) The second and third questions, and others like them, have received far less academic attention. Existing commentary has largely focused on critiquing intermediary immunity generally and suggesting alternatives to [section] 230, (6) rather than on defining the types of factual and legal settings in which such immunity is appropriately applied. Given the courts' interpretation that [section] 230 eliminates even notice-based liability, defining the applicability of that immunity becomes all the more important. Such issues of applicability have arisen with increasing frequency, and courts have struggled to find a coherent framework to address them. The answers they have given so far have been largely inconsistent and unprincipled. (7) This Article provides a framework for understanding both how to conceptualize the limits of intermediary immunity as a policy matter and how courts should interpret [section] 230. In order to define the bounds of intermediary immunity, and answer the second and third questions, we need to return to the first question and determine more precisely why intermediary immunity might be an appropriate response in the situation of a message board operator's liability for defamatory content. …