Legal Landscape

Kevin Lewis

October 09, 2009

"Weeds, glass, bricks, pieces of pipe and shingle splinters have replaced the knot of aging homes at the site of the nation's most notorious eminent domain project. There are a few signs of life: Feral cats glare at visitors from a miniature jungle of Queen Anne's lace, thistle and goldenrod. Gulls swoop between the lot's towering trees and the adjacent sewage treatment plant. But what of the promised building boom that was supposed to come wrapped and ribboned with up to 3,169 new jobs and $1.2 million a year in tax revenues? They are noticeably missing. Proponents of the ambitious plan blame the sour economy. Opponents call it a 'poetic justice.' 'They are getting what they deserve. They are going to get nothing,' said Susette Kelo, the lead plaintiff in the landmark property rights case." [Associated Press, September 25, 2009]


There's No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy

Dotan Oliar & Christopher Jon Sprigman
Virginia Law Review, December 2008, Pages 1787-1867

In this paper, we analyze how stand-up comedians protect their jokes using a system of social norms. Intellectual property law has never protected comedians effectively against theft. Initially, jokes were virtually in the public domain, and comedians invested little in creating new ones. In the last half century, however, comedians have developed a system of IP norms. This system serves as a stand-in for formal law. It regulates issues such as authorship, ownership, transfer of rights, exceptions to informal ownership claims and the imposition of sanctions on norms violators. Under the norms system, the level of investment in original material has increased substantially. We detail these norms, which often diverge from copyright law's defaults. Our description is based on interviews with comedians, snippets of which we include throughout the paper. Our study has implications for intellectual property theory and policy. First, its suggests that the lack of legal protection for intellectual labor does not entail a market failure by necessity, as social norms may induce creativity. Second, it suggests that the rules governing a particular creative practice affect not only how much material is created, but also its kind. Third, we suggest that comedians' IP norms system emerged over the past half century as technological change increased the benefit of having property rights in jokes and concomitantly reduced the costs of enforcing those rights. Fourth, we note that stand-up's norms system recognizes only a limited set of forms of ownership and transfer. We suggest that the system's crude rights structure is driven by the fact that effective enforcement requires that ownership be clear to the community. Lastly, social norms offer a way to regulate creative practices that do not sit well within IP law's one-size-fits-all mold. They do so, moreover, without imposing on society the costs of disuniformity in the formal law, including legal complexity and industry-driven lobbying. Stand-up's norms system has both benefits and costs, which we detail in the paper. However, norms-based IP systems offer an alternative (or supplementary) cost/benefit bundle which in some cases may be superior to that of formal law alone. In stand-up's case, norms economize on enforcement costs and appear to maintain a healthy level of incentives to create alongside a greater diversity in the kinds of humor produced. A final assessment of stand-up's social norms system awaits further work. With what we currently know, we are cautiously optimistic.


Judge Sonia Sotomayor's Tax Opinions

Stephen Cohen
Georgetown Working Paper, August 2009

Judge Sonia Sotomayor has written three published opinions on federal taxation, one as a District Court judge and two as a Court of Appeals judge. Two of the opinions deal with routine matters and are unremarkable in the sense that it is difficult to imagine the cases coming out any other way. Her third opinion, however, in William L. Rudkin Testamentary Trust v. Commissioner, 467 F.3d 149 (2d Cir. 2006), aff'd sub nom. Knight v. Commissioner, 552 U.S. 181, 128 S. Ct. 782 (2008), generated a sharp difference of opinion with Chief Justice Roberts. Although Chief Justice Roberts, writing for the Supreme Court, affirmed the result in this third opinion, he criticized Judge Sotomayor's reasoning (despite the fact that both the Solicitor General and the Department of the Treasury had endorsed it) and offered instead a different rationale. After a careful reading, I find the rationale of Judge Sotomayor's opinion as least as valid as, and probably preferable to, that of Chief Justice Roberts. I also find Chief Justice Roberts' criticism of Judge Sotomayor's rationale logically flawed and therefore unwarranted.


Do Animals Have an Interest in Liberty?

Alasdair Cochrane
Political Studies, October 2009, Pages 660-679

Proponents of justice for animals often argue that non-human animals have an interest in liberty. Furthermore, they usually claim that this animal interest in liberty is intrinsic rather than instrumental; that is to say, liberty is regarded to be good for animals in itself, irrespective of its contribution to the achievement of other goods, such as pleasure. For this reason they argue that legislating to improve welfare standards in zoos, circuses, laboratories and agriculture is inadequate. Instead, they claim that such practices are analogous to human slavery, necessarily harmful and must be abolished. In this article I refute this assertion and claim that for most animals, their interest in liberty can only ever be instrumental. In doing so I outline and reject two different arguments in favour of an intrinsic animal interest in liberty: first, that liberty is an intrinsic interest of animals because they possess preference autonomy; and second, that it is good for animals to be free, where freedom is defined as the ability to exercise one's natural functionings. I conclude that most animals do not possess an intrinsic interest in liberty because they are not autonomous in the relevant sense; that is, they cannot frame, revise and pursue their own conception of the good. If my conclusion is correct, this would have important effects on our obligations to non-human animals. I end the article by introducing some of these possible implications. Specifically, I propose that for most animals, our obligations do not consist of liberating them, and that it might be permissible to use and interfere with animals more often than other proponents of justice for animals have suggested. If this is the case, not all of the ways we keep and use animals need to be abolished. Nevertheless, many need to be reformed to improve welfare standards.


The Evolution of Criminal Law and Police during the Pre-modern Era

Douglas Allen & Yoram Barzel
Journal of Law, Economics, and Organization, forthcoming

Increased standardization was a by-product of technical innovations during the Industrial Revolution. An unfortunate side effect of standardization was enhanced opportunities for theft and embezzlement. Two significant modern institutions radically evolved during the eighteenth to mid-nineteenth centuries to control these growing problems: criminal law and public police. These institutions strongly interacted with the pace of the Industrial Revolution. Our argument explains this evolution and is tested through an analysis of several historical facts: the role of early police, the fall of the watch system, the creation of improvement commissions, the removal of possession immunity, the rise and fall of factory colonies, and the fall and rise of court cases during the eighteenth century.


Radicalization of U.S. prisoners

Bert Useem & Obie Clayton
Criminology & Public Policy, August 2009, Pages 561-592

Concern has been expressed that prisoner radicalization poses a high probability threat to the safety of the United States. Although the threat of terrorist acts planned in prison is known to be above zero because of a nearly executed terrorist plot hatched in a state prison, the central finding of this research is that the actual probability is modest. The reasons for a modest probability are fourfold: Order and stability in U.S. prisons were achieved during the buildup period, prison officials successfully implemented efforts to counter the "importation" of radicalism, correctional leadership infused antiradicalization into their agencies, and inmates' low levels of education decreased the appeals of terrorism.


Controlling Violent Offenders Released to the Community: An Evaluation of the Boston Reentry Initiative

Anthony Braga, Anne Piehl & David Hureau
Journal of Research in Crime and Delinquency, November 2009, Pages 411-436

Despite the high level of funding and policy interest in prisoner reentry, there is still little rigorous scientific evidence to guide jurisdictions in developing reentry programs to enhance public safety, particularly for managing those who pose the greatest safety risks. The Boston Reentry Initiative (BRI) is an interagency initiative to help transition violent adult offenders released from the local jail back to their Boston neighborhoods through mentoring, social service assistance, and vocational development. This study uses a quasi-experimental design and survival analyses to evaluate the effects of the BRI on the subsequent recidivism of program participants relative to an equivalent control group. The authors find that the BRI was associated with significant reductions — on the order of 30 percent — in the overall and violent arrest failure rates.


The Foreign Corrupt Practices Act: The Failure of the Self-Regulatory Model of Corporate Governance in the Global Business Environment

Miriam Weismann
Journal of Business Ethics, September 2009, Pages 615-661

The American regulatory model of corporate governance rests on the theory of self-regulation as␣the most effective and efficient means to achieve corporate self-restraint in the marketplace. However, that model fails to achieve regular compliance with baseline ethical and legal behaviors as evidenced by a century of repeated corporate debacles, the most recent being Enron, WorldCom, and Refco. Seemingly impervious to its domestic failure, Congress imprinted the same self-regulation paradigm on legislation restraining global business behavior, the Foreign Corrupt Practices Act. This anti-bribery initiative prohibits unethical and illegal payments made to foreign public officials in an effort to eradicate bribery as a rational-choice global market entry strategy. However, this paper illustrates, using newly complied statistics from 1977 to 2008, that the FCPA has not had a dramatic impact on U.S. global corporate behavior despite its recent high profile coverage and the tough regulatory rhetoric about corporate compliance. The paper also extends the prior Cragg and Woof FCPA efficiency study and provides current empirical evidence to resolve several unanswered questions raised by that earlier study.


Google and the Proper Antitrust Scrutiny of Orphan Books

Jerry Hausman & Gregory Sidak
Journal of Competition Law and Economics, September 2009, Pages 411-438

We examine the consumer-welfare implications of Google's project to scan a large proportion of the world's books into digital form and to make these works accessible to consumers through Google Book Search (GBS). In response to a class action alleging copyright infringement, Google has agreed to a settlement with the plaintiffs, which include the Authors Guild and the Association of American Publishers. A federal district court must approve the settlement for it to take effect. Various individuals and organizations have advocated modification or rejection of the settlement, based in part on concerns regarding Google's claimed ability to exercise market power. The Antitrust Division has confirmed that it is investigating the settlement. We address concerns of Professor Randal Picker and others, especially concerns over the increased access to "orphan books," which are books that retain their copyright but for which the copyright holders are unknown or cannot be found. The increased accessibility of orphan books under GBS involves the creation of a new product, which entails large gains in consumer welfare. We consider it unlikely that Google could exercise market power over orphan books. We consider it remote that the static efficiency losses claimed by critics of the settlement could outweigh the consumer welfare gains from the creation of a valuable new service for expanding access to orphan books. We therefore conclude that neither antitrust intervention nor price regulation of access to orphan books under GBS would be justified on economic grounds.


Why the Google Books Settlement is Procompetitive

Einer Elhauge
Harvard Working Paper, September 2009

Although the Google Books Settlement has been criticized as anticompetitive, I conclude that this critique is mistaken. For out-of copyright books, the settlement procompetitively expands output by clarifying which books are in the public domain and making them digitally available for free. For claimed in-copyright books, the settlement procompetitively expands output by clarifying who holds their rights, making them digitally searchable, allowing individual digital display and sales at competitive prices each rightsholder can set, and creating a new subscription product that provides digital access to a near-universal library at free or competitive rates. For unclaimed incopyright books, the settlement procompetitively expands output by helping to identify rightsholders and making their books saleable at competitive rates when they cannot be found. The settlement does not raise rival barriers to offering any of these books, but to the contrary lowers them. The output expansion is particularly dramatic for out-of-print books, for which there is currently no new output at all.


White Sale: Judicial Campaigning in the Post-Republican Party of Minnesota v. White Era

Mark McKenzie & Brian Arbour
Texas Tech Working Paper, August 2009

Many have worried about recent changes in judicial campaigns in terms of increased costs and acrimonious rhetoric. Some scholars have concerns that the Supreme Court's Republican Party of Minnesota v. White further changed the nature of judicial campaigns, allowing candidates to take positions on controversial legal issues and engage in negative campaigning. In this paper, we investigate the effects of White by utilizing the varying state interpretations of White in conjunction with a mail survey of lower court judicial candidates across six states. We find that only a small minority of judges take positions on politically-charged issues or engage in negative campaigning. Most lower court judicial candidates campaign on traditional themes and issues, like experience or qualifications or court administration issues. Moreover, we find no evidence to suggest White has had any effect on the tone or content of judicial rhetoric for lower court races.


Baptists and Church-State Advocacy: An Analysis of the Effects of Membership Opinion on Lobbying the Supreme Court

Andrew Lewis
American University Working Paper, August 2009

Interest groups provide an opportunity for citizen interests to be represented before the Supreme Court. In recent decades, numerous religious advocacy organizations have formed, seeking to influence the Court. Among these groups, advocacy organizations connected to religious denominations have structural advantages, as they can easily overcome the collective action problem. They have advantages in resources, membership numbers, and leadership autonomy. However, they are constrained because their members do not join for ideological incentives, as denominational group membership comes as a byproduct of their affiliation with a local church. This may reduce their ability to gain influence. Two denominational groups, the Southern Baptist Convention's Ethics and Religious Liberty Commission (ERLC) and the Baptist Joint Committee (BJC), serve as a useful case study to analyze how the structure of denomination advocacy groups affects political decisions, particularly lobbying the Supreme Court and taking positions on constitutional issues. Using the Baylor Religion Study, this study compares the activities of the BJC and ERLC on church-state issues, evaluating the congruence between their members' opinions on church-state issues and the groups' official church-state positions and amicus brief filings. It finds that the members of both the BJC and the ERLC prefer government support and accommodation of religion. These opinions differ from the actions that the groups take, especially the BJC. The BJC takes positions and actions that are incongruent with the policy opinions of its membership, and the ERLC takes positions more in line with the views of its membership, though it does not support accommodation as much as its members do. I argue that it is the structure of these denominational groups that allows the members to take positions that are incongruent with the positions of the membership. Particularly, denominational leaders have increased autonomy, because the members do not join for the benefits that the group offers, the members cannot easily leave the group, and the group leaders do not depend on membership dues. This study has implications for the tactics that groups targeting the Court may take and citizen representation before the Court. It also describes the opportunities and constraints of religious denominational advocacy groups, which differ from the opportunities and constraints of other citizen religious groups.


Security of Property Rights for Whom?

Terra Lawson-Remer
NYU Working Paper, July 2009

Using a new set of indicators that measure the Property Insecurity of ethnopolitical minority groups, I find that Property Insecurity is not correlated with the Risk of Expropriation facing foreign investors and domestic elites — revealing that the aggregate measures of 'institutional quality' broadly used in the cross-country empirical development literature proxy only limited dimensions of the institutions being measured. Existing widely used Risk of Expropriation indicators, initially designed to assess the security of property rights faced by foreign investors, are relevant to the experiences of elites but fail to adequately incorporate the perspective of marginalized minority groups — so do not reflect the risk of expropriation faced by a country's population more broadly. It has been widely argued that secure private property rights are a prerequisite for economic development. This article demonstrates that it fundamentally matters whose property rights are secure. I find that Property Insecurity of ethnopolitical minorities does not reduce growth in either the short or long term; that the severity of Property Insecurity for the worst-off group in a country is strongly related to the onset of armed conflict; and that controlling for civil war, Property Insecurity is associated with higher growth. Economic growth can occur when the property rights of elites are secure but marginalized minorities face high a risk of expropriation, because land is reallocated into the hands of investors with access to capital. However, the potentially growth enhancing effect of forced displacement and resettlement is mitigated because the property insecurity of minorities is also correlated with conflict, which reduces growth.

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