Friday, November 27, 2015

Even 12-year-olds can vote?!

From December 5-12 any residents of Cambridge, Ma. (including non-citizens) who are at least 12 years old may vote in the city's Participatory Budgeting election.  Residents will be able to vote for up to 6 projects, out of 23, to fund using $600,000 of the City's FY17 capital budget.

In addition to the low voting age, there are other interesting features of this election as well.  It will happen over a week -- call it Election Week -- and residents may vote online or at various events throughout the city.  Online voting is available in English and Spanish, while paper ballots will be available in English, Spanish, Portuguese, Haitian Creole, Chinese, Amharic, and Arabic. 

This is the second time the city has used a Participatory Budgeting election to decide how to allocate some of its funds.  It is unclear what turnout -- especially among the 12-18 year old group -- was like in the first round, but the city was happy enough with the results that it decided to use the process again for FY17.  12 is the lowest voting age I have seen for any election in the U.S.  I'm eager to learn whether many young people are voting in this Participatory Budgeting election, and how the low voting age is seen among the electorate.  

If anything, this is yet another example of a franchise-enhancing rule created at the local level -- the basis of my research for the next few months.  I'll be grateful for any thoughts or insights any of you might have on the topic.

Cambridge voting age 12

Posted by Josh Douglas on November 27, 2015 at 04:35 PM in Law and Politics | Permalink | Comments (0)

Happy Holiday, er, Birthday

As someone who has a birthday near a holiday, I know it’s not an easy thing. But a birthday that is being properly marked despite the holidays is Frank Sinatra’s 100th. As a T&E professor, I have come to know Sinatra as much for his tidy estate plan as his music, so I look forward to the major music concert in his name on Dec. 6 on CBS. So, if you're a music fan like me, add that to your holiday concert list.

Posted by Margaret Ryznar on November 27, 2015 at 11:36 AM | Permalink | Comments (0)

Once More Unto the Brine

In New York, an Asian dumpling
with all the flavors of Thanksgiving
encapsulated in one savory bite
dipped in artisan cranberry delight

A Parisian father affirming
love over hate, in the embers burning
images of twin towers, Beirut, Paris, Mali;
unarmed black young men shot: disproportionate volley

But faith restored is stronger, unshaking
after its near breaking
To see ‘hope in the unseen’—in the brine
The soul’s light streaming like Bonnie through Prine

Homecomings in places of our choosing
or of our birth, of our coupling; of conscious (re)coupling
On the heels of a Full Mourning Moon seeking cures
or tribally a Moon When the Deer Shed Antlers

The night calls for shedding, while the day calls for thanking
to see the homeless, the wounded, the incomplete remaking.
To air grievances; binge watch football and zombies
We, imperfectly, give thanks for this world of opportunity.

Posted by Caprice Roberts on November 27, 2015 at 08:54 AM | Permalink | Comments (2)

Wednesday, November 25, 2015

Tait on the Secret Economy of Charitable Giving

Allison Anna Tait (University of Richmond - School of Law) has posted The Secret Economy of Charitable Giving on SSRN. Here is the abstract:

Charitable giving is big business. In 2009, the Internal Revenue Service reported close to 100,000 private foundations, almost double the number from fifteen years earlier. Some of these charitable trusts, like the Gates Foundation, are multi-billion dollar enterprises. Trust instruments and other governing documents set forth the terms that control these gifts. Because charitable trusts can exist in perpetuity, however, changing circumstances sometimes render the terms difficult to fulfill. Courts can apply cy pres, a doctrine that allows for the modification of gift restrictions, but in the past courts have tended to apply cy pres narrowly and privilege donor intent above all other considerations. Recent reforms, however, have moved courts toward a more flexible application of the doctrine. In this Article, I analyze certain high-profile cases that have driven these reforms — including the presumption of general charitable intent, the recognition of “wasteful” as a criterion, and the deployment of deviation — and explain how these reforms represent positive change. Moreover, I provide a theoretical grounding to account for the correctness of these reforms. I argue that charitable giving should be understood as embedded in a nexus of material and social exchanges — part of the “charitable gift economy.” I describe how charitable giving provides a range of benefits to donors, including both tangible tax benefits and intangible benefits such as status, social identity, and “warm glow.” Based on this understanding of the charitable gift economy, courts and charities alike should embrace current reforms and seek to expand them further.

I found this article quite fascinating. Not only does Tait provide an excellent, concise but thorough account of the history of the doctrines of cy pres and deviation, but also she proposes a rich account of what she calls the "charitable gift economy" and how it ought to affect our understanding of the proper scope of cy pres and deviation. Essentially, she argues that donors receive a congeries of benefits associated with their charitable contributions, and courts ought to consider the nature of those benefits in determining the appropriate scope and duration of restrictions on charitable gifts. In other words, perhaps cy pres and deviation ought to become easier to invoke as time passes. As an aside, I also commend Tait's well-chosen quotes from Marcel Mauss and La Rochefoucauld in the epigraph of her paper.

Posted by Brian Frye on November 25, 2015 at 09:29 PM | Permalink | Comments (0)

Comparing the Arias and Holmes jury dynamics

In an earlier Prawfs post, I talked about the holdout in the Jodi Arias case and how the holdout was able to get her vote out of the jury room because she had been “treated” with the Colorado method of capital voir dire.  

That jury deliberated for five days and when they were released, those who wanted death were pretty vocal about how angry and frustrated they were with the holdout.  Compare that angry reaction to the calm reaction by the jurors in the James Holmes trial.  This eight-minute clip of Jury 17 describing the jury dynamics is well worth watching.  She describes how the jurors were cordial and respectful of each other.  When pressed by reporters as to whether tempers flared in the deliberation room, she said tempers didn’t, and that everyone simply recognized that the juror who was voting for life was firm in that position.  (Two other jurors were on the fence.)

So why was the Arizona jury so angry and the Colorado jury so calm? 

Continue reading "Comparing the Arias and Holmes jury dynamics"

Posted by Eric Carpenter on November 25, 2015 at 12:30 PM | Permalink | Comments (0)

The Law is a Sith

In Star Wars Episode 3, Obi-Wan Kenobi says that "Only a Sith deals in absolutes." (Yes, it seems contradictory for a Jedi to assert so absolutely that only a bad-guy Sith would peddle in simplistic worldviews.) But like the Sith (and apparently Obi-Wan himself), the law at least frequently deals in absolutes. Typically, people are either negligent and owe full compensation or not and owe nothing. They are either guilty and must serve at least a minimum sentence or not and go home free. In many places, if you deal drugs 999 feet away from school, your sentence is substantially enhanced but if you were 1001 feet away, it's not.

I wrote about the topic in general terms in a paper called Smooth and Bumpy Laws. In a new draft paper, I consider the smooth and bumpy features of criminal law in particular.

Posted by Adam Kolber on November 25, 2015 at 12:18 PM | Permalink | Comments (0)

Happy Thanksgiving

As family descends upon your kitchen this Thanksgiving (or, in my case, upon the Bears-Packers game), I am reminded of the reasons a high estate tax would not be popular. I have a forthcoming law review article arguing that not only do people want to leave their property to their family, but also that the family law system relies on this private safety net to a great extent. The article is available here.

Posted by Margaret Ryznar on November 25, 2015 at 11:45 AM | Permalink | Comments (0)

Bagenstos and "The Long Arc of the Accommodation Debate"

Howard always does a fine job of promoting his corner of Jotwell; I do not. But here is my con law jot on Samuel Bagenstos's excellent article "The Unrelenting Libertarian Challenge to Public Accommodations Law." Jotwell is devoted to writings that the editors and reviewers "like lots," but one can "like lots" an article that one doesn't entirely agree with, or that is not wholly in line with one's priors. When I can, I prefer to select articles of that sort for my own (rare) jots. So here is a jot on an article that I think superb and that "has troubled me for a year now." It is also, I suggest, one of the first and still one of the best of the current burgeoning line of what I call [anti-] "neo-Lochnerism" scholarship.

A contrary perspective can be found in the same journal issue in this article by Richard Epstein, but my discussion is along different lines. It spotlights the article's arguments and strengths, while emphasizing the implications of Bagenstos's observation that the balance between the "public" and "private," or "civil" and "social," spheres may prove permanently unstable and continually (but not constantly) contested. (In my view, legal academics are therefore unlikely to make unique or lasting contributions to the core conflict.) The strong critical insights Bagenstos brings to bear on previous attempts to fix the line between permissible and impermissible regulation apply well to the libertarian arguments he discusses, but they also apply to the other side of the debate.

One thing the article suggests, by comparison with later articles on "neo-Lochnerism," is that although many current liberal or progressive articles in the law reviews make use of Critical Legal Theory or Crit-type arguments to undermine their opponents and thus attempt to entrench a more egalitarian or progressive legal regime, there is a startling unwillingness in that literature to name CLS as the source of these undermining arguments, and still more reluctance to acknowledge that those arguments might undermine or destabilize their own positions. I should add that this point emerges from a reading of Bagenstos's article against some of the more recent literature; it's not a criticism of Bagenstos's article itself. Such, perhaps, is the inevitable fate of the Crits, who are applauded by normatively oriented legal scholars who are trying to resist some legal regime, but treated as unpersons when these scholars are trying to establish or entrench such a regime.

Some excerpts after the fold. If you haven't already, read Bagenstos's article!  

Continue reading "Bagenstos and "The Long Arc of the Accommodation Debate""

Posted by Paul Horwitz on November 25, 2015 at 11:15 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, November 24, 2015

Once Upon A Time in Copyright-Land

The Wu-Tang Clan is a popular hip-hop group, formed in 1993 in Staten Island, New York (shout-out to Josh Blackman) by RZA, GZA, Method Man, Raekwon, Ghostface Killah, Inspectah Deck, U-God, Masta Killa and the late Ol' Dirty Bastard. After achieving remarkable success as a group, the members of the Wu-Tang Clan gradually went in different directions, in many cases achieving similar success as solo artists.

In any case, in March 2014, the Wu-Tang Clan announced the release of a new album, Once Upon a Time in Shaolin. But there was a twist. They stated that they would create and sell only one copy of the album. And they meant it. The Wu-Tang Clan put the 128-minute concept album on Paddle8, an Internet art auction website, and sold it to an unnamed "private American collector" for a price "in the millions." The album is described as “a retrospective soundscape that threads 31 songs, skits, and stories into a 128-minute-long aural screenplay,” and the package includes a nickel-silver box, assorted artifacts, and a pair of $55,000 speakers.

Needless to say, the sale and its terms present a fascinating set of copyright issues. While the sales agreement is not public, the Paddle8 website explains its terms as follows:

The seller of this Artwork will provide the Buyer with a Certificate of Authenticity for the Artwork at the time the Artwork is delivered to the Buyer. The Buyer’s right of ownership of the Artwork and its content is for private use only. The Buyer acquires full public and commercial rights in the Artwork eighty eight (88) years from the date of sale. The seller has agreed, as a condition of the sale, not to ever release any of the content on the Artwork in any form, format, channel, medium or manner (including, print, disk, tape, electronic or virtual) to the public. This Artwork is offered for sale without copyright, broadcast rights, performers consents, and other reproduction rights. The Buyer must apply to the relevant parties to obtain such clearance and consents as may be necessary.

To begin with, it is unclear whether the agreement is to sell a copy of the recording or the copyright in the recording, or what rights it is intended to convey. As a consequence, it's not clear whether any dispute would sound in copyright or contract, per T.B. Harms. But further, the entire concept seem antithetical to the entire purpose of copyright law, which is to encourage the dissemination of works of authorship. It seems that the Wu-Tang Clan's decision to offer the album for sale as a unique object was inspired by the art market, but an audio recording is inherently not a unique object, as observed by Walter Benjamin, oh-so-many years ago. On balance, I am inclined to agree with "Method Man," who observed:

Fuck that album. I’m tired of this shit and I know everybody else is tired of it, too. Fuck that album, if that’s what they are doing. I haven’t heard anything like that, but if they’re doing crap like that, fuck that album. Straight up.

I’m just keeping it 100. When music can’t be music and y’all turning it into something else, fuck that. Give it to the people, if they want to hear the shit, let them have it. Give it away free. I don’t give a fuck; that ain’t making nobody rich or poor. Give the fucking music out. Stop playing with the public, man.

That said, it seems pretty likely that the ultimate result will be that the album is available for free, albeit perhaps illicitly, along the lines of Danger Mouse's Grey Album. So maybe the Wu-Tang Clan just hit on a clever way to cash in on the value of their album, while cutting out the middlemen. If so, I doubt that anyone is likely to find future takers for similar offerings.

Wu Tang

Posted by Brian Frye on November 24, 2015 at 08:20 PM | Permalink | Comments (1)

Chaffee on the "Collaboration Theory" of Charitable Organizations

Eric C. Chaffee (University of Toledo - College of Law) has posted Collaboration Theory: A Theory of the Charitable Tax Exempt Nonprofit Corporation (49 U.C. Davis L. Rev. __) on SSRN. Here is the abstract:

Legal scholarship regarding tax exempt nonprofit entities is meager at best. Although some excellent treatises, book chapters, and journal articles have been written, the body of scholarship relating to these entities is not nearly as healthy and robust as the scholarship relating to their for-profit companions. This is especially troubling considering that nonprofit entities help to improve our society in a myriad of different ways.

This Article seeks to fill a void in the existing scholarship by offering an essentialist theory for charitable tax exempt nonprofit corporations that helps to explain the essence of these entities. Beyond the purely academic metaphysical inquiry into what is a corporation, understanding the essential nature of these corporations is important because it helps to determine how they should interact with society, what rights they should have, and how they should be governed by the law. This discussion is especially timely because the recent opinions by the Supreme Court of the United States in Citizens United and Hobby Lobby have reinvigorated the debate over the essence of the corporation.

This Article breaks new ground by offering a new essentialist theory of the corporation, which shall be termed “collaboration theory.” The decades of debate over the essence of for-profit corporations has coalesced into three prevailing theories of the corporation, i.e., the artificial entity theory, the real entity theory, and the aggregate theory. The problem is that none of these prevailing theories fully answers the question of what is a corporation.

Collaboration theory suggests that charitable tax exempt nonprofit corporations are collaborations among the state governments, federal government, and individuals to promote the public good. Unlike the prevailing theories of the corporation, collaboration theory explains both how and why charitable tax exempt nonprofit corporations exist, which provides a fuller and more robust understanding of these corporations. Collaboration theory advances the existing scholarship by finally offering an essentialist theory for nonprofit corporations, and it shows remarkable promise for understanding the essential nature of for-profit corporations as well.

I saw Chaffee present this article at the Central States Law Schools Association 2015 Annual Scholarship Conference at the University of Toledo College of Law in October and was very impressed. And I could not recommend the paper more highly. As he observes, while the scholarship relating to the taxation of charitable organizations is vast and quite sophisticated, scholarship relating to the governance and theory of charitable organizations is considerably more meager. Unsurprisingly, tax scholars tend to see charitable organizations as an interesting taxation issue, and corporations scholars tend to see charitable organizations (to the extent they notice them) as just another corporate form.

By contrast, Chaffee sees the charitable organization as a unique organizational form that traditional theories of business corporations cannot adequately describe. As he explains:

This theory is superior to the existing essentialist theories of for profit corporations because it answers why corporations exist, rather than simply struggling with how they exist. The reason why charitable tax exempt nonprofit exist is because they are collaborations to promote the public good among state governments, the federal government, and individuals. How they exist is as separate entities because collaboration yields something greater than the state government, federal government, and individuals could achieve alone, yet the state and federal governments can circumscribe these entities rights because the state and federal governments are part of the collaboration.

But as Chaffee further observes, "collaboration theory" may enrich our understanding of business corporations as well, by explaining the normative justification for corporations, rather than just describing their function. In order to understand what corporations - charitable or otherwise - should look like and how they should be governed, we must understand their purpose and justification. Chaffee's article provides a helpful step in that direction. 

Posted by Brian Frye on November 24, 2015 at 06:52 PM | Permalink | Comments (3)

The Blandification of Stephen Colbert

I'm a big fan of Stephen Colbert--an extraordinary smart and talented comedian--especially in his days as a correspondent on The Daily Show. I liked The Colbert Report, too, but his character's personality could sometimes be a little much (and did we really have to wait each night for his audience's clapping to quiet down?). So I was excited to learn that he'd be playing his naturally charming self on his late night talk show. 

It's probably too soon to predict how his show will fare. This article suggests that his political views may be alienating a good chunk of his potential audience. My own concern with the show is two-fold: First, he's got more time to fill. Material that's hysterical for about 20 minutes is a bit less hysterical spread out over a much longer time period. Just as I think scholarship should roughly be a function of interesting ideas per unit time spent reading it, comedy is roughly a function of humor value per unit time spent consuming it. Second, The Colbert Report was much more subversive than his current show. I was surprised how much his late night show sticks to a relatively common formula. I get that he used to have a half-hour show on Comedy Central and now has a longer show on a major broadcast network. Still, one can regret the possibility that Colbert has been forced to tame his comedic sensibilities. 

Posted by Adam Kolber on November 24, 2015 at 05:42 PM | Permalink | Comments (6)

ABA-LSD realizes it screwed up

A couple of weeks ago, I wrote about the ABA Law Student Division's National Appellate Advocacy Competition, which featured an appellate court unanimously reversing a district judge in a hate-crimes prosecution by saying "We fear that [the district judge] allowed his personal feelings as a black man to color his view of the evidence."

The LSD has released a revised record, with that line removed. Good for them for coming to their senses (presumably following some loud complaints), although without explanation, apology, or acknowledgement of the change or the original mistake. And I remain appalled that the drafters would have included such a line in the first place. It will be interesting to see if there is longer-term fallout from this.

Posted by Howard Wasserman on November 24, 2015 at 03:11 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

E.L. v. V.L.

A cert petition was filed last week in a very interesting case. A few states recognize—whether by statute or case law—second parent adoption, which allows a second parent of the same gender as the biological parent to adopt a child without terminating that parent’s parental rights. As you can imagine, this is very useful for same-sex parents who want to be both recognized as the parents.

In the case, Georgia had allowed a second parent adoption by a same-sex partner, even though Georgia’s second parent statute at the time required a marriage between the prospective adoptive parent and the biological parent (this was pre-Obergefell, so the parties did not have the choice to marry). Otherwise, the biological parent would have to terminate  parental rights for an adoption to proceed. 

Now, after breaking up, the women are fighting over visitation in the state of Alabama, and the Alabama Supreme Court is refusing to recognize the second parent adoption that happened in Georgia, on the grounds that Georgia misapplied its own adoption statute by allowing a second parent adoption to proceed despite the lack of a marriage.

The constitutional problem, of course, is that the Full Faith and Credit Clause requires state courts to recognize each other’s judgments. There is, however, a narrow exception to the Full Faith and Credit Clause: a court need not grant Full Faith and Credit to a judgment issued by a sister state court that lacked jurisdiction. This is where the Alabama Supreme Court hangs its hat: by granting a second parent adoption when there was no marriage, the Georgia court lacked subject matter jurisdiction.

Of course, there are other arguments besides Full Faith and Credit—for example, the need for finality of adoption decisions and the child’s best interests to have a parent legally recognized if the parent raised the child (especially for visitation purposes).

It’ll be interesting to see whether the U.S. Supreme Court will want to hear this case, and if so, whether it will serve as a proxy for the same-sex adoption issue.

Posted by Margaret Ryznar on November 24, 2015 at 11:40 AM | Permalink | Comments (5)

Another military justice oddity comes under attack -- this time, guilty pleas

The American military justice system has been under sustained, serious criticism for about a decade now.  The primary criticism is that commanders do not take sexual assault cases very seriously.  Congress and the President have already plucked the low-hanging fruit from the military justice tree: the rape statute has been rewritten (until 2007, the military used the common law definition); the pretrial investigation, where victims generally had to testify and be subject to cross examination, has become a limited hearing; the commander’s authority to reverse a court-martial’s finding of guilt or to reduce a sentence has been sharply reduced; and an exception to the character rules that allowed an accused to present good military character evidence during the merits has been restricted. 

The real remaining piece of fruit – or really, the trunk of the tree – is the commander’s authority to make the prosecutorial decision in each case.  That is where critics are currently focusing their attention.

So I was a bit surprised when I saw this recent AP article that criticizes a different feature of the military justice system – the guilty plea process.  The article highlights a case where an officer assaulted several prepubescent girls, recorded those assaults, and distributed those recordings to others.  The officer pleaded guilty and military judge sentenced him to 144 years in prison but through the terms of a pretrial agreement, the commander reduced that sentence to 20 years. 

This shocked the authors.  They point out that in many jurisdictions, the prosecutor might just make a recommendation that the trial judge can accept or reject.  The trial judge isn’t bound by the recommendation (think Jared Fogle).  Here, the authors suggest that the military judge should have the power to reject a plea agreement if the judge does not agree with the sentencing terms.

So how could that happen?  Why is it that in the military, the judge can sentence someone to 144 years and a commander can reduce it to 20?

Continue reading "Another military justice oddity comes under attack -- this time, guilty pleas"

Posted by Eric Carpenter on November 24, 2015 at 10:36 AM | Permalink | Comments (1)

Election Results? Lies! Let's Recount

Fun fact of the day: if you rearrange the letters in "Election Results," it becomes "Lies! Let's Recount." Isn't it ironic?  (h/t Brutally Honest Entrepreneur)

Posted by Josh Douglas on November 24, 2015 at 10:08 AM in Law and Politics | Permalink | Comments (2)

Monday, November 23, 2015

"Of Foxes, Hedgehogs, and . . . Law School"

My former colleague, Dan Myers -- who is now the Provost of Marquette University -- has an essay in the Fall 2015 issue of the Marquette Lawyer called "Of Foxes, Hedgehogs, and Marquette Law School."  He writes, among other things, that "[l]aw schools, like most academic divisions, have a natural tendency to operate more like hedgehogs than foxes, and this tendency is reinforced by an administrative structure that sets the law school in a somewhat peripheral functional location at a university. . . .  It is incumbent on law schools to resist and to find ways of becoming more vulpine in their activities and reach."  

Dan makes a good point about the potential of administrative (or even simply geographical) matters to "reinforce[]" "more like hedgehogs" practices.  At the same time, I think there's a fair bit about legal education, legal scholarship, and the legal enterprise itself that has a "natural tendency" in the opposite direction.  My impression is that, sometimes, this latter "natural tendency" is stunted not by anything inherent in or interior to the enterprise of law schools but instead by expectations in Universities' central administrations or other units that law schools should become less "vulpine" -- that is, more siloed, specialized, and heavily invested in specific methodologies.  

Dan's piece points to some good things going on at Marquette and he expresses his support for them and their fox-like potential.  I wonder, though, if part of the project of "find[ing] ways of [helping law schools] becom[e] more vulpine in their activities and reach" is to let them be themselves?  

Posted by Rick Garnett on November 23, 2015 at 02:13 PM in Rick Garnett | Permalink | Comments (2)

Should Non-Citizens Be Allowed to Vote? (Local Law Edition)

Municipalities have vast powers to define the electorate, as I explained when noting that some local jurisdictions have expanded voting rights to sixteen- and seventeen-year-olds.  Similarly, some municipalities have granted the right to vote to non-citizens.  Studying these local laws on voting rights is vital to understanding and protecting the right to vote more generally.

Currently there are six Maryland towns that allow non-citizens to vote in all city elections.  Two Massachusetts cities, Cambridge and Amherst, have also passed laws granting the right to vote to non-citizens, but these ordinances cannot go into effect unless the state legislature approves them.  In Chicago, non-citizens may vote in school board elections.  New York City also used to allow non-citizens to vote for school board until the city disbanded the elected school boards in 2002.

Continue reading "Should Non-Citizens Be Allowed to Vote? (Local Law Edition)"

Posted by Josh Douglas on November 23, 2015 at 02:09 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (1)

Reverse Socratic

Like many of the teaching candidates now working on it, I have a teaching philosophy from my meat market days, and it is partly devoted to the virtues of the Socratic method, or at least a modified Socratic method. However, as I was teaching my 100-person tax course recently, I got a small dose of what I will call “reverse Socratic”—the students were particularly enthusiastic about finding out more about a particular code section and were asking wonderful questions that linked together to build our understanding of that provision. I must admit, I kind of liked it as a teaching tool—so I didn’t insist on being the one asking the questions. I think reverse Socratic works particularly well in tax, where creative lawyers excel.   I guess it’s time to update my teaching philosophy, at least when it comes to tax.

Posted by Margaret Ryznar on November 23, 2015 at 11:35 AM | Permalink | Comments (5)

The "Do You Have Any Questions?" Question

Legal academic job interviewers frequently end with "So, do you have any questions for us?" I understand where the question comes from. We've been inquiring into all manner of a candidate's job history and scholarly work for the prior 20 minutes or so and we want to: (1) recognize that hiring is a two-way street and show that we care about the candidate's interests and concerns, (2) perhaps see how the candidate handles the DYHAQ question and what it might reveal about the nature and extent of the candidate's interest in the position, and (3) signal that the interview is coming to a close.

Still, I'm not a big fan of the DYHAQ question. It often has an artificial quality about it. For one thing, candidates have frequently had several prior opportunities to ask questions. Often, candidates have to struggle to ask a variation of the same question or select from a repertoire of pre-conceived questions. Meanwhile, candidates really do have a ton of questions, but the questions may be perceived as inappropriate--or at least risky--to ask until an offer has been made. For example, what is the salary? What are the issues that divide the faculty? How easy or hard is it to get tenure? Can my spouse get a job here? Candidates may find polite ways of asking questions like these, but they're not risk-free relative to blander questions. Sometimes something will come up in the course of the interview or a prior interview and you'll be able to ask a genuine, non-prearranged, more-or-less spontaneous question. But that's unusual and takes some skill.

As an alternative, interviewers could simply say, "I see we're just about out of time. Please feel free to call or email any of us if you should have any questions." Were I an interviewee, I'd have no problem with that. In fact, I think some of the best interviews are ones where the conversation is so organic that you're rushing to discuss topics you really care about and have no time for needless formalities like the DYHAQ question. At a minimum, if some interviewers stopped asking the question, then it will not feel so artificial on the occasions when it is asked.

If you have suggestions for how to handle the question or the dynamic, I encourage you to post them in the comments. One question I would sometimes ask is: What do faculty generally do for lunch? I'm genuinely interested in this question. It can say a lot about faculty interaction. It also gives interviewers flexibility in their response: they can focus on the nature of faculty camaraderie or they can talk about more practical issues like the school's locale and/or cafeteria. It may also reveal interesting facets of student life or student-faculty interaction--aspects of a school you might not otherwise observe during a short visit.

Posted by Adam Kolber on November 23, 2015 at 11:20 AM | Permalink | Comments (12)

Platinum Cards of Social Change II

In a post a couple of months ago titled "Social Movements: The Platinum Card of Social Change," I offered some thoughts on a Balkinization post by Mark Graber. There, Graber wrote, "The Constitution of the United States remains an effective means of combatting governmental policies that inflict stigmatic harm on members of the upper-classes, but a far less effective means of combatting government policies that inflict material deprivation on the lower classes." I suggested in response that "Graber's statement would still be largely true if it were extended beyond the Constitution and the courts, to say that social movements are a relatively effective means of serving the social interests of the upper classes, and a relatively ineffective means of serving the material interests of the lower classes." I concluded with this observation/prediction:

One might question whether the current prominence of the Black Lives Matter movement serves as a counter-example. I doubt it. For one thing, it's too early to know how successful the movement will be. For another, it's possible that the movement's greatest tangible reforms will end up being directed toward stigmatic harms shared by African-Americans of all socio-economic levels and not material harms suffered by the poorest in the community. Finally, and I suspect this is true of most or all social movements, at the end one would want to know how much of the actual payout resulting from the movement and whatever reforms it achieves is siphoned off, cy-pres fashion, by more affluent sectors--giving rise to more jobs by professional consultants, for instance, or resulting in foundation grants to think tanks and most certainly to universities and their many institutes

That sentence was recalled for me the other day by the announcement that Brown University "expects to spend more than $100 million over the next 10 years to deal with issues of racism and diversity at the institution." That announcement, of course, stands alongside Yale's recent announcement of a $50 million diversity initiative--directed primarily at faculty diversity, not at students.  

Since my prediction was based on the same historical experiences and tendencies, if not inevitabilities, that underlay Graber's post, there's no back patting involved here. I just thought the Brown announcement, taken together with Yale's and (doubtless, given both genuine sentiment and competition in the elite university market) others to come, was a striking example. One might add the following:

1) This shouldn't be seen just as a response to recent campus protests, I think, but should be seen as a response in some measure to BLM and other protests, debates, and social movements over the past year or so. A lot of the recent discussions have focused on universities and campus issues in isolation, but they should be seen as having some relation to a larger social movement. 

2) One needn't approve or disapprove of how private universities choose to allocate their resources to note nevertheless that if the most substantial acts of resource redistribution in response to such movements takes place at elite and/or well-funded universities--and, moreover, is often directed at faculty and administrators rather than students or applicants--this is not, perhaps, a response directed at those institutions or sectors of the population that most urgently need resources and reforms. We could, I suppose, view universities as serving as vanguards of social change; but we could also view the story as one of a form of capture or siphoning of the energy of social movements toward narrower and more elite interests.

3) I say nothing here about the motives of the institutions in question, or of those who end up devoting greater efforts toward, and/or enjoying more success at, resource redistribution within elite institutions than elsewhere. My assumption, however, is that we should apply to the universities' actions the same kind of analysis we would apply to the actions of other large corporations. I assume there is a good deal of sincerity in these actions (just as, in fairness, there is a good deal of sincerity when a tech company pushes for equal benefits for same-sex couples, or a religious closely held corporation sues to avoid complicity in the provision of coverage for abortifacients). But I also assume, as I would with other corporations, that sincerity alone does not result in the ostensible movement of tens of millions of dollars. Presumably there are also intra-institutional politics and resource disputes involved, and possibly these announcements are also efforts to buy peace, occasionally to buy silence or co-opt various actors, and to compete with other institutions in the university market. 

Posted by Paul Horwitz on November 23, 2015 at 11:01 AM in Paul Horwitz | Permalink | Comments (0)

Seeking the truth

Later this term, SCOTUS will decide Bank Markazi v. Peterson, which involves a challenge under United States v. Klein to a law applicable to an action seeking to attach Iranian assets to satisfy a default judgment for victims of Iranian-sponsored terrorism. I was contacted by both sides of the case about being involved in a scholars' amicus, obviously because both sides believed that my previous work on Klein supported their position. I hope that means  I really was looking for the truth.

Posted by Howard Wasserman on November 23, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, November 22, 2015

Doonesbury on student evaluations


Posted by Howard Wasserman on November 22, 2015 at 05:08 PM in Howard Wasserman, Teaching Law | Permalink | Comments (8)

Saturday, November 21, 2015

California’s Right-to-Die Law

As a Trusts & Estates professor, I would be remiss if I did not mention California’s new right-to-die law. California was the first state to recognize cohabitants’ property rights and the first state to recognize no-fault divorce, and now these are the majority approaches. While California is not the first state to have a right-to-die law on the books (it’s the fifth), it’s the first big state. If history is any indication, we’ll see a lot more of these laws in the foreseeable future.

In the meantime, the debate will change from whether we should have assisted suicide to what these laws would look like. How do we define “terminally ill”? How many medical opinions regarding the person’s illness are needed? How long of a waiting period should exist after the initial request for aid in dying? How many requests should a patient have to make?

California modeled its law on Oregon’s. The California law requires a mentally fit patient and 2 doctors to determine that a patient has less than 6 months to live. The state's legal change was significantly prompted by the case of Brittany Maynard, a young woman with terminal brain cancer who moved from California to Oregon to legally end her life in 2014.

Posted by Margaret Ryznar on November 21, 2015 at 11:30 AM | Permalink | Comments (13)

Goals of Remedies: Beyond Compensation

Remedies for civil litigation serve a variety of important goals. It is too often assumed that all cases must involve the compensation goal. Of course many cases have a compensatory purpose. Further, that purpose may be one of many remedial ends in a given case such as a particularly outrageous, malicious tort that warrants a punitive award supplementing compensation. Some cases, however, have no compensatory component. Distinct remedial functions may operate without a compensatory anchor in appropriate cases. Beyond compensation goals may include: symbolic, dignitary, substitutionary, litigation incentives, deterrence, prevention, and punishment.

Commonly in civil causes of action, the core remedy seeks to compensate—to make whole. The underlying goal to undo harm by making whole is intuitive. How we achieve that goal is more complicated. In easy cases, the converter might return a taken item belonging to the other (of course if time is lost or the item diminished, other relief will be available as well). Another simple example involves harm easily monetized by the money it takes to cure the injury.

Much of civil litigation, however, arises out of wrongs that can’t literally be undone. So the law does the best it can. It substitutes money for harm caused. Even if we cannot materialize a receipt for fixing it, and in fact, never will.

Thus, in most instances, juries determine the appropriate amount of money to compensate the plaintiff for the harm caused by the tortfeasor, breaching party, or other offender. Each body of substantive law has preferences for the best way to measure the harm so that the jury is guided to a principled award. These measurements include, for example, diminution in value and benefit of the bargain damages. Regardless of the underlying cause of action, concerns naturally arise when we need to translate harm that is not already in dollars.

The more intangible and nonpecuniary the harm, the greater the tension is. Yet, juries regularly place a dollar figure on such items as pain and suffering, lost limbs, and loss of consortium. For contracts, a plaintiff may claim the benefit of the bargain is lost profits, which means anticipated profits that would have been made if the breaching party had performed as promised. Not all such damages are recoverable because the law provides doctrines of limitation to restrain the measurement guides. Doctrines of limitation generally bound the decisionmaker to reasonably certain, foreseeable, and non-avoidable damages.

If the law limited its remedial force at this point, fewer critiques of excesses might flow, but certain harms would remain unremedied, unprevented, undeterred, and unpunished.

Accordingly, civil redress must go—when appropriate—beyond compensation. Civil litigation may in fact have nothing to do with compensation. The examples are varied but include enjoining imminent irreparable harm; setting aside a transaction that violates fiduciary duty; disgorging wrongful gains. Unjust enrichment and restitution claims saliently prove this point: they have nothing to do with compensation. That is why the remedy of restitution on an unjust enrichment claim is not called damages. The purpose of the remedy is to prevent unjust enrichment by the wrongdoer; thus, to measure it we look to the defendant’s gain not plaintiff’s loss. More on this later.

Posted by Caprice Roberts on November 21, 2015 at 11:00 AM | Permalink | Comments (0)

Friday, November 20, 2015

Mother, Child, and Meat Machines

Check out this wonderful magnetic resonance image of a mother kissing her son, along with Rebecca Saxe's brief description of the circumstances.

Looking at the image, I had the semi-conscious thought, "here's one sack of bone and soft tissue that loves another sack of bone and soft tissue." It's very hard to reconcile, I think, our understanding of ourselves both as persons that can love and as physical organisms that can love. Yesterday, in a comment, I described humans as meat machines. I'm not very fond of that expression, but I think it captures a side of ourselves that we sometimes prefer to ignore.

Posted by Adam Kolber on November 20, 2015 at 03:13 PM | Permalink | Comments (4)

Hello, Delete Button

Today, Adele has dropped her long-awaited third album. In promoting it, she mentioned that she had created enough music to release an album sooner, but had thrown it all away. For example, she had written a few songs about parenthood, but decided that they were boring. She had called in musical greats to co-write songs, and ruffled feathers when she decided those songs were boring too. She ended up with 11 tracks on her album, which has been criticized as short. Her single off the album, “Hello,” took a slow 6 months to write. 

There’s something to be learned from every person’s creative process, and I think Adele’s lesson is as good as any—if you don’t like it, pitch it.  The problem, of course, is how painful it is to do because of our investment in our work and the pressure to produce.  But, Adele's a reminder that it's possible to do, and necessary too.

Posted by Margaret Ryznar on November 20, 2015 at 11:45 AM | Permalink | Comments (0)

Thursday, November 19, 2015

Civ Pro and the lagging bar exam

Civ Pro is now a subject on the Multistate Bar Exam. But I learned earlier today that the questions are not going to incorporate the 2015 discovery amendments until 2018. In the meantime, test-takers are expected to know (and bar prep courses are going to teach) the rules as of 2012 and current jurisdiction/procedure statutes.

This strikes me as insane.  I intentionally taught my Spring 2015 students the amended rules, knowing that passage was inevitable (I would have done the same this fall were I teaching the class then), knowing that this is the law they would use as lawyers, even if it won't be effective for another few months. Now it turns out they need to learn something entirely different in between. In other words, the final "vetogate" before the practice of law requires them to learn law that is different than what they learned in school and different from what they will actuallysue on the other side of the vetogate. It makes even less sense given that the Bar is using current statutes along with the old rules--if the questions can remain up-to-date on statutes without imposing an enormous exam-writing problem, they should be able to remain up-to-date on the rules.

Update I: In response to a comment, I have not heard any explanation, only a statement to bar prep/academic support folks that they should continue using the current prep manual until 2018.

Update II: An emailer points out that it may not have as great an effect on Civ Pro teachers, as the current 1Ls, the first group to deal with the amended rules, will take the Bar in 2018, the first year of testing on the new rules. But, as I noted above, it punishes the past students of profs who attempt to be proactive about rules changes (as did last spring). And it leaves questions about what to do in, for example, Advanced Civ Pro/Complex Lit, Pretrial Practice, or other upper-level courses that deal with the FRCP? For that matter, consider students doing a clinic/internship involving federal practice or a judicial clerkship--current 2Ls and 3Ls are going to deal with one version of discovery now and a very different version for the Bar.

Posted by Howard Wasserman on November 19, 2015 at 08:30 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (8)

T7, T17 instead of T14?

One of the criticisms of the U.S. News rankings is the way it reports its results.  U.S. News uses a process where they gather a lot of data, run it through the Willy Wonka gobstopper machine, and out pops some magical raw number.  U.S. News then gives each school an overall score that is the percentage of that school’s number compared to the top number (Yale, which is reported as 100).  But then, U.S. News racks and stacks those scores and simply reports a ranking.  The actual score of the variable that U.S. News is trying to measure – quality – falls out.  (For this discussion, I’m assuming, probably incorrectly, that the U.S. News instrument measures what U.S. news claims it measures – quality). 

There could be a huge drop in quality between a school ranked 40 and a school ranked 41, or hardly any drop in quality between schools ranked 50 and 100, and the reader would not know.  U.S. News goes to all this work and then reports a number that is pretty much meaningless.  And for some people, those numbers may matter.  A potential student who is deciding between schools may factor those numbers into her decision, along with cost, location (near family, near a major legal market), bar passage rates (already factored a little bit into the quality score), job prospects, etc. 

Probably the best way to report the scores would be in standardized units (z-scores) where U.S. News would calculate the mean of the raw scores and then report each school’s standard deviation above or below that mean.  If the z-scores of two schools are pretty close together, then it might not make any sense to spend more to go to a school with a slightly higher z-score.  If the z-scores are far apart, it might. 

We could figure out the z-scores (for the overall scores, at least) except that U.S. News doesn’t report the overall scores for the fourth quartile of schools.  We could also take the data that U.S. News provides and calculate a raw score for each school, trying to replicate the way that U.S. News comes up with its raw score, and then report out z-scores based on that.  One problem is that many of the schools in the fourth quartile are missing important data, and another problem is that that would take some real effort.

I think the best we can do without much effort is to graph the distributions of the overall scores using Brian Huddleston’s U.S. News data.   I did that, and a couple of things jump out. 

Continue reading "T7, T17 instead of T14?"

Posted by Eric Carpenter on November 19, 2015 at 05:31 PM | Permalink | Comments (10)

Setting the Record Straight on Resettlement of Syrian Refugees

The following is by Jill Goldenziel, former guest Prawf, FOD, and a research fellow at Harvard Kennedy School's International Security Program of the Belfer Center for Science and International Affairs and a Senior Fellow at the University of Pennsylvania's Fox Leadership Program.

In the wake of the Paris attacks, 27 U.S. governors and several presidential candidates have called for Syrian refugee resettlement to be halted. Members of Congress have drafted legislation that would cease resettlement immediately. In light of these debates, it’s important to remember the legal framework governing refugee resettlement in the U.S.—along with some important facts.

Continue reading "Setting the Record Straight on Resettlement of Syrian Refugees"

Posted by Howard Wasserman on November 19, 2015 at 04:08 PM in International Law, Law and Politics | Permalink | Comments (0)

The Significance of Lawmaker Views About Free Will

In a recent paper, I argue that, lawmakers over the last several centuries (including today, perhaps) have likely understood moral responsibility in a way that is inconsistent with the modern scientific worldview. They likely viewed us as having souls that make decisions independent of the causal forces of the universe. Nevertheless, a plausible case can be made that lawmaker views, outdated though they may be, ought not be ignored entirely when considering the legal meaning of words like "intent." If lawmakers took intent to mean something about contra-causal souls, words like "intent" may be inconsistent with the modern scientific worldview and require updating. 

Paul Litton, by contrast, following in the path of Stephen Morse, believes the law is clearly compatibilist. On the compatibilist view, the law doesn't require updating because, even if we are mechanistic creatures who make choices caused by the atoms in our brains, so long as we satisfy compatibilist criteria of responsibility (for example, we have certain rational powers of deliberation or the like), the law deems us responsible.

I don't deny that this is a plausible interpretation of the law. But as I've suggested, I don't think it's the only plausible interpretation. Moreover, I question the legal basis for the compatibilist interpretation. While some will certainly proclaim compatibilism's virtues on philosophical grounds, when we care about the meaning of the law, we not infrequently consider the intent of the law's crafters. And a plausible case can be made that the law's crafters were, by and large, not compatibilists. I use the qualifier "plausible" on purpose. We don't have a lot of relevant data (at least I don't). And there are important questions about how to construe intentions and how much, if any, legal weight to give them. But if the Chief Justice in NFIB v. Sebelius can worry about whether we live in "the country the Framers of our Constitution envisioned," then it's worth noting how lawmaker intentions are sometimes construed broadly and flexibly when interpreting the law.

In response to my position, Litton imagines a case in which a defendant tests the law’s assumptions about free will and a judge actually seeks to resolve the matter. The judge Litton envisions takes an overtly compatibilist view of the criminal law. The judge accepts that everything the defendant did was deterministically caused by factors beyond his control, but he holds him responsible anyway:

Continue reading "The Significance of Lawmaker Views About Free Will"

Posted by Adam Kolber on November 19, 2015 at 03:05 AM | Permalink | Comments (2)

Wednesday, November 18, 2015

Prosecuting Insider Trading

The law on insider trading has been accused of being too vague, and soon it might be accused of being too narrow—the U.S. Supreme Court last month declined to hear an appeal from a case that significantly narrowed the definition of insider trading by requiring proof that an inside tip recipient knew the confidential information came from an insider and that the insider disclosed the information for a clear personal benefit. The result of the case was the overturning of 2 convictions for insider trading and dropped charges against others.

The problem for prosecutors is thus increasingly two-fold: they can’t count on the legal framework for their efforts, and, as commentators have noted, catching insider trading is difficult in the first place. My co-author and I set out to see if we could aid prosecution of insider trading by detecting the presence of an insider trading in the first place, and how the market responds to the insider’s activity.

Analyzing the dataset composed of shares from NASDAQ, AMEX, the New York Stock Exchange, and over the counter (OTC) markets, we find that insider trades are different from surrounding trades in both trade to trade price impact and trade lot volume, when compared with trades executed in the same thirty minute interval by other traders. The size and volume effect is most pronounced on the two specialist exchanges of the American Stock Exchange (AMEX) and the New York Stock Exchange (NYSE). Trade to trade price movement is statistically significant at the 1% level for the panel of NYSE and AMEX shares.

While insider trades possess attributes that differentiate them from surrounding trades, a great deal of those attributes depends on the trade characteristics – aggressive market orders will draw scrutiny due to their price impact, whereas limit orders are less noticeable. Insiders trade lot sizes that are also larger than other market participants at the time, thereby potentially drawing attention from regulators and surveillance departments.

You can read our article forthcoming in the Wake Forest Law Review here.

Posted by Margaret Ryznar on November 18, 2015 at 11:40 AM | Permalink | Comments (2)

Some Interesting Data From the Yale Law Journal Survey

A statement from the Yale Law Journal announces the release of two reports as part of a two-year project of "address[ing] our diversity challenges and identify[ing] ways we can better foster an inclusive community." One of those is described as qualitative. The other is quantitative: Patterns in Yale Law Journal Admissions and Student Scholarship, by Ian Ayres and Anthony Cozart. Many of the data are quite interesting, with "interesting" here meant more literally than the word generally is in blogging; the word is used with no intention of signaling irony, suggestiveness, or implicit judgment.

By way of background, I should note that I am (slowly, slowly) at work on a book about social class and the American legal professoriate, with the general and, I hope, non-partisan thesis that social class, both currently and as a matter of background, influences the individual and cultural surround of law professors and, hence, affects the issues they are most likely to view as salient and to make a focus of their writing. This is (I will argue) often implicit and relatively rarely acknowledged; that in turn often takes social class both as a subject and as an admitted influence off the table, and makes class itself a less salient or frequently examined issue or identity aspect than other aspects of identity that receive frequent discussion. Without here suggesting how scholarship might change if things were different, and what topics might be more frequently discussed and (as important) accorded more prestige if they were--and certainly without suggesting that it would or must necessarily come from a particular political position--I suggest that more self-awareness and -examination would have an effect on the body of scholarly work produced by law professors, if greater recognition were given to class and its effects on who we are and what we see and do. (Needless to say, I'm happy to hear from correspondents on this project--especially those law professors who think their own experience and/or background is highly unusual in one direction or the other, or conversely who think their background is utterly typical, and might be willing to share that experience and their observations and views.)

My project focuses on the professoriate, not the students. In the case of Yale, however, that distinction is famously thin and the data on students might be viewed as a study of embryonic law professors. Much of the interesting data appear in a chart at pages 7-9 discussing the characteristics of all applicants, including transfer and third-year students, to volumes 123 through 125 of the Yale Law Journal. There is this, for instance, on the political views of the applicants:

Political Views:

Democratic, Liberal, or Progressive 35%

Republican, Conservative, or Libertarian 9%

Moderate 17%

Other (e.g., Independent) 6%

Did Not Disclose 44%

I do not find any of this terribly surprising (and I  hope people don't equate "interesting" with "surprising"). But I am curious about the large percentage who did not disclose their political identification. There are all kinds of reasons one might refuse to disclose this, and having no reason at all or asserting that it ought to be irrelevant would be fine with me. But it is much higher than, say, the number of students who did not disclose or provided no information about their racial identification. Among other possibilities, I'd be interested in knowing whether many of these students were conservative and unwilling to say so. Or, rather, were they liberal or progressive and unwilling to answer for more strategic reasons--because they thought it would be detrimental to have too large a percentage of the class openly identified as such?

Highly interesting as well are the data on what the study calls "Family Characteristics." Of the students surveyed--who, remember, were students who had applied to the YLJ, not just the editors of that journal--46 percent disclosed family incomes of $100,000 or greater, including 19 percent from families with incomes over $250,000. (By comparison, those with family incomes under $60,000 made up 11 percent of those surveyed. Again, a high number of students--23 percent--did not disclose any family income information. On parental education, fully 45 percent of the journal applicants surveyed reported that both parents had attended graduate school--kind of a patrimonie des clercs. (No data are given on the percentage of applicants with at least one parent who attended graduate school.) Of the students themselves, 29 percent had attended Harvard, Yale, or Princeton, and 43 percent some Ivy League university, while 35 percent attended a private non-Ivy university; by contrast, the 2011 CHE Almanac showed 73 percent of post-secondary students attended public colleges and universities and 0.4 percent attended Ivies, with 16 percent attending private colleges and universities. Only six percent of the applicants surveyed provided no information about their educational background. Also, ten percent had also attained a master's or doctorate.    

All interesting, and of course there is much more in the study. For my purposes, I regret that the portion of the study that looks at students whose notes or comments were accepted for publication focuses on race and gender only, not on family or educational background. 

Posted by Paul Horwitz on November 18, 2015 at 08:26 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, November 17, 2015

Scalia (sort of) gets it, the media (still) doesn't

According to this story, Justice Scalia gave (an unrecorded) talk at Princeton. Robert George, a Princeton faculty member and a leading opponent of marriage equality, claims that Scalia "declared that though Supreme Court rulings should generally be obeyed, officials had no Constitutional obligation to treat as binding beyond the parties to a case rulings that lack a warrant in the text or original understanding of the Constitution." Needless to say, that caused the reporter  from Think Progress, Ian Millhiser, to lose his mind, as well as to question the accuracy of George's recollections.

A few thoughts after the jump.

Continue reading "Scalia (sort of) gets it, the media (still) doesn't"

Posted by Howard Wasserman on November 17, 2015 at 09:33 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (20)

Gilden on Raw Materials and the Creative Process

Andrew Gilden (Stanford Law School) recently posted Raw Materials and the Creative Process, 104 Georgetown L.J. __ (2016), on SSRN. Here is the abstract:

There has been a marked shift in how intellectual property laws address free speech, creative expression, and artistic practices that involve extensive copying. Over the past decade, courts increasingly have shielded authors from claims of infringement if they used a preexisting image or likeness as “raw material” for a new work. Both copyright law’s fair use doctrine and right of publicity law’s First Amendment defense have coalesced around this raw material inquiry, and similar notions of cultural raw material long have pervaded IP scholarship.

This Article is the first to challenge the emerging “raw material” framework, and it uncovers a range of normative and conceptual shortcomings. First, the growing body of raw material case law has unequally expanded artists’ ability to freely copy from the world around them: famous artists have been shielded, but lesser-known artists have not. Second, in distinguishing between a creative work and its raw materials — between “raw” and “cooked” imagery — courts have drawn from a range of analogous social hierarchies. For instance, courts repeatedly associate “raw material” with appropriated images of women and racial minorities. Lastly, the raw material framework distorts the creative practices it aims to promote; artists often appropriate familiar imagery not because it is “raw,” but because it offers a rich source of shared cultural meaning. This Article puts forward a set of alternative approaches that situate questions of IP infringement more concretely in the actual creative processes at issue.

I have read this article several times now & have found that it richly rewards each re-reading. Essentially, Gilden examines the "transformation" of fair use doctrine prompted by Judge Pierre Leval's seminal article Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990), by investigating the practical effects of Leval's suggestion that courts presented with fair use defenses ask whether the allegedly infringing junior work "transformed" the copied elements of the senior work. In particular, Gilden focuses on Leval's use of the "raw and cooked" metaphor to analyze transformativeness: a use is "raw" and not transformative if it does not add meaning to the senior work, and "cooked" or transformative if it does add meaning to the senior work. Notably, Leval borrowed the metaphor from French anthropologist Claude Levi-Strauss, and courts have adopted it, without acknowledging - or perhaps even realizing - its source.

Of course, Leval's article was immensely important to the rationalization and expansion of the fair use doctrine under the 1976 Act. But Gilden observes that Leval's use of the "raw & cooked" metaphor may have had unintended effects. In particular, his study of cases suggests that a court's assessment of whether an allegedly infringing use is "raw" or "cooked" is affected by the court's familiarity with the context of the use, in particular the rhetorical forms common to different social groups. In other words, courts appear to be less likely to find fair use when the judge in unfamiliar with the aesthetic genre or social group in which the allegedly infringing author is working. This is a troubling finding, because it suggests that marginal and minority authors may be less able to successfully make fair use defenses than majority authors.

Interestingly, Gilden is not alone in questioning the rhetoric of "transformation." Amy Adler's fantastic new article Fair Use and the Future of Art also questions the "transformativeness" requirement from a different angle, asking whether it is consistent with social practice among contemporary artists, and suggesting that courts should focus on market substitution instead. And I have previously addressed similar issues, in an article considering Andy Warhol's use of copyrighted images and trademarks in his artwork. And at a recent Belmont Law Review symposium, I presented a draft paper titled Aesthetic Nondiscrimination & Fair Use, drawing on Gilden & Adler's work to argue that the aesthetic nondiscrimination doctrine, which provides that judges should not (cannot?) consider the aesthetic value of a work when determining whether it is original and protected by copyright, should also apply to fair use. In other words, judges should not consider the aesthetic value of a "transformation" when determining whether it is a fair use, but only whether it changes the original. I hope to have a draft posted soon!


Posted by Brian Frye on November 17, 2015 at 07:21 PM | Permalink | Comments (0)