Oct 25, 2010 TestUser6
This is a post by a user previously unknown to Zeta. It will test whether the username is linking properly. If so, it will link to YouTube.
First, please drop a note to your section editors when you pick the work you are going to review. While I don’t object to multiple reviews of the same work, it would be best if we had enough advance notice of subject collision to make sure that the reviews are substantially different from each other (as indeed were the two we published of Barton Beebe’s Intellectual Property and the Sumptuary Code).
Second, if you have a relationship, professional or personal, with the author of the work you are planning to review, please tell your section editors before you start writing. Section editors are free to have their own policy on conflicts of interest, and I gather they will vary. My own view is that disclosure in the review suffices for most professional relationships, but some sections plan to be tougher about this, and that’s their privilege.
Third, please keep in mind that Jotwell exists primarily to review the latest writing. Reviews of drafts and pre-prints at SSRN or BePress are absolutely fair game, indeed particularly welcomed. But if an article or book is more than a year or two old, it’s probably too old…unless it is going in our new “classics” section (see below).
And, I hope it goes without saying, please make an effort to get jots in on schedule, or warn us in advance if there is going to be a problem. We are pretty understanding about timing, but we do have a schedule to feed.
Oct 25, 2010 Michael Froomkin
John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973).
The purpose of this test post is to check if user photos and names in the zeta blog are picking up the link to the user name and photo.
They do not seem to have been doing this.
The coming year will bring new sections, and (I hope) improvements to our scheduling process. In the pipeline for the next semester are Anti-Trust, Fed Courts/Civil Procedure, and Legal History. Among the subjects on my to-do list for the next year or two are Bankruptcy, Contract, Family, Health Law, International Law, Law & Economics, Property and Tort. If you know someone who might be good to tap as a section editor for one of these subjects, please get in touch. (It might also be good to have a second Section Editor for Administrative Law or Constitutional Law. Suggestions – or self-nominations from Contributing Editors – welcomed.)
I also hope to revamp our scheduling mechanisms. As some of you have noticed, there can be significant delays between writing and publication. This is, on the whole, more feature than bug, as we try to rationalized the scheduling process, and the delays will never go away entirely. The problem is that sections at present vary widely as to the extent that every month is covered; there are also a couple of sections where people are not very good about keeping to schedules. The upshot is that it if we want to have a regular-seeming publication schedule (which in due course, as more sections come on line, I hope will be at least one post five days a week) it seems important to keep a buffer of articles in hand. I hope gradually to reduce the delay between submission and publication for most of you, but until we get more sections on line that depends primarily on smoothing out some of the hiccups experienced by some of the less reliable and productive sections.
Oct 13, 2010 James Grimmelmanncyber
There is a distinctive NYU School of Internet studies: philosophically careful, intellectually critical, rich in detail, and humanely empathetic. Its unofficial dean is Helen “values in design” Nissenbaum; her colleagues and students have included Siva Vaidhyanathan, Michael Zimmer, Gabriella Coleman, Alexander Galloway, and Gaia Bernstein. Almost none of them are lawyers (Seton Hall’s Bernstein being the notable exception), but their work speaks to those of us who are.
One of the most recent additions to the NYU School is Joseph Reagle, who received his Ph.D. in Media, Culture, and Communications in 2008 and is now a fellow at Harvard’s Berkman Center. His new book, Good Faith Collaboration: The Culture of Wikipedia (MIT Press, 2010) is an ethnography of Wikipedia, a modest, beautiful book that analyzes the site’s “good faith collaborative culture.” Reagle offers an extended reading of how this culture emerges from the interplay of ideology, technology, and social practice.
Why is Wikipedia’s culture so important? Nazis. Godwin’s Law (named after its author, Mike Godwin, who is now Wikipedia’s general counsel) states, “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.” This commonplace of online discourse captures one of the hard facts about online collaboration: discussions in text-only online media have a centrifugal tendency toward unproductive, extreme positions. Wikipedia, in particular, also faces the problem of ideologically self-interested editing; Reagle leads with a case study of an incident in which members of Stormfront tried to shape Wikipedia’s coverage of the neo-Nazi movement, leading to substantive disputes over article content and even more fractious procedural disputes over how other Wikipedians should respond. In the face of these dissipative forces, collaborative culture holds Wikipedia together.
Reagle convincingly argues that there is a crucial link between Wikipedia’s core substantive commitment (“NPOV,” short for “Neutral Point of View”) and its core procedural commitment (“Assume Good Faith”). NPOV refuses to privilege any one version of “the truth” and thus requires articles to fairly present all sides. Assume Good Faith and its related norms of patience, civility, and humor, refuse to privilege any person. Everyone — even neo-Nazis — is welcome to edit. Open-mindedness, about arguments and about people, is thus central to Wikipedia’s culture.
The picture of Wikipedia that emerges is messy, contentious, and productive. Conflict is routine; NPOV and Assume Good Faith are sometimes honored only in the breach. Arguments over small matters like naming conventions may seem like a tremendous waste of energy. But this endless series of discursive crises, small and large, in fact keeps Wikipedians engaged in articulating — in producing — the spirit of collaboration. This point is consistent with Dave Hoffman and Salil Mehra’s conclusion in Wikitruth Through Wikiorder that Wikipedia’s arbitration system “functions not so much to resolve disputes and make peace between conflicting users, but to weed out problematic users while weeding potentially productive users back in to participate.” I would add that Reagle also shows why the arbitration system itself is of secondary importance in Wikipedia’s collaborative structure; the real work of holding it together and negotiating its meanings takes place on its Talk pages, mailing lists, and meetups.
The book’s central chapters deal with a twinned pair of threats to this open, good-faith model: that it will be too chaotic and that it will be too controlled. Observing Wikipedia’s anyone-can-edit ideals, some critics have worried that it will be overrun by vandals, trolls, sock puppeteers, and the just plain ignorant. Others fear that Wikipedia betrays those same ideals by vesting too much control in a shadowy group of administrators led by Jimmy Wales, who have the software-based power to censor, revert, and bully. (One of Reagle’s chapter epigraphs — J.S’s second law — amusingly plays on this fear.) Eric Goldman, one of Wikipedia’s most thoughtful academic critics, has argued that that excessive openness and excessive control are Wikipedia’s Scylla and Charybdis, and questioned how long the channel between them will remain wide enough to be navigable. Reagle gives more cause for optimism; he shows how a self-produced culture of collaboration has so far enabled Wikipedia to resist both external threats and internal capture.
Two sections stand out as particularly astute. The first is Reagle’s discussion of “neutrality” (building on his previous work), which explains how a term without a clear underlying meaning can still be an effective principle around which to organize a community. The second is his chapter on “encylopedic anxiety,” which demonstrates that much criticism (and more than a little praise) of Wikipedia is in fact unrelated to how it does or doesn’t work. Instead, people project their hopes and fears onto reference works; concerns about Wikipedia’s open editorial policies are arguably just another iteration of previous concerns about whether dictionaries should present the “is” or the “ought” of language. Reagle is too polite, though, to criticize even the deeply misguided: the whole book is suffused with a generous tolerance. For such a thoughtful analysis of Wikipedia’s good-faith culture, that is very much as it should be.
Oct 6, 2010 Notreally Aneditor
Philosophers of law and philosophers of language used to hang out together more. H.L.A. Hart spent Saturday mornings over at J.L. Austin’s in the 1950s and 60s, hashing out questions of meaning and usage with Paul Grice. Hans Kelsen did not think much of Wittgenstein, but in the 1920s he chummed around with Moritz Schlick, Otto Neurath, and other members of the celebrated Wiener Kreis, the Vienna Circle of philosophers who were making the analysis of language a foreground concern. But, as the twentieth century wore on, practitioners of the two specialties wandered apart. For thirty years on, legal philosophers have tended to dwell on somewhat inward debates over legal positivisms and postscripts thereto, while philosophers of language have been on a great hunt for a semantics of natural languages generally, which has led them to investigate things like naming, reference, and the truth conditions of modal and counterfactual statements. True, the philosophers of law have tried to keep up with the philosophers of language; but, the philosophers of language with the philosophers of law? Not so much. There’s no shortage of legal philosophy that purports to say what philosophers of language would say about law, but next to nothing directly from philosophers of language about law. Are we legal philosophers getting it right?
The silence from the other side of the table made me uneasy. So I was excited to run across this essay by Scott Soames. Soames is Director of the School of Philosophy at USC, where he can lunch with Andrei Marmor, the distinguished philosopher of law. The essay is the concluding chapter of the first volume of Soames’s collected essays, most of which have to do with technical topics in philosophy of language. The Introduction to the volume is a useful preliminary survey of his views of such things as why linguistic structures aren’t likely to map onto the psychological substructures of linguistic competence, and the respective roles of semantics and pragmatics, as reflected in his “least common denominator” view of semantic content. At the end of the Introduction, Soames pauses to reminisce:
There was a time, just a few decades ago, when philosophy and the philosophical study of language were thought to be one and the same. Then, every significant philosophical question was thought to be a linguistic question. Thankfully, that is no longer so.
This might mean, “Thankfully, we can go back to doing philosophy,” but in fact what Soames means is that:
today, linguistic semantics and pragmatics, cognitive science, and the general study of language and information are struggling to emerge as productive and interconnected areas of scientific inquiry. (17)
Philosophy of law is struggling, too, but not, evidently, to do that; and it should not expect an invitation to that party. Of course, “philosophy of language still has much to contribute to every area of philosophy.” The concluding essay, “Interpreting Legal Texts,” is meant to serve as our portion.
Soames critiques a number of cases that turned on a word. PGA v. Martin (is it “golf” if the player rides in a cart?); Nix v. Hedden (is a tomato a fruit, or a “vegetable”?); Smith v. US (does one who barters a firearm “use” it?); and a pair of Boy Scout cases from California (are the Scouts a “business establishment”? a “religious organization”?). He also takes up Lon Fuller’s “No sleeping in any railway station,” and — though only in footnote — Hart’s “No vehicles in the park.” The discussions, insightful in their own right, are an effective medium for Soame’s lessons.
One lesson we are to take is that what we say is often more than what the words we use say. As a consequence, what statutes mean is often more than their semantic content, which is anyway less than we tend to suppose. Another lesson is that the text’s semantic content, even when it is plain, is not what the interpreter wants anyway. What the interpreter wants is the wider “enriched” content consisting of what the text was used to say. What the doctor treating a gunshot victim says by saying “You aren’t going to die,” is “You aren’t going to die from this wound,” and not “You are not going to die, period.” One further lesson, for judges, is that although “the meanings of legal texts, plus the facts of the case, often fail to determine its outcome … this shouldn’t be taken to show that the content of the law embodied in those texts doesn’t determine the outcome, and mustn’t be used to invite judicial legislation” (404, italics in original). Finally, even where a case is “genuinely hard” — because even the text’s pragmatically “enriched” content fails to determine an outcome — the court has only a narrow residual discretion, which is constrained by “further principles” that “routinely guide the interpretation of incomplete, inconsistent, or otherwise defective linguistic materials” (404). Soames does not say what these further principles are, but presumably they include the traditional canons of construction and perhaps doctrines of institutional deference such as the Chevron doctrine. They most certainly do not include the judge’s “moral and political views,” or “Fullerian or Dworkinian views of … broad social, political, and moral matters,” for which there “may” be residual room within what Soames is convinced are very narrow limits (423).
“A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used,” as Holmes wrote in Towne v. Eisner. Much of what Soames has to say may not startle those who have had a legal education. We have been taught to attend to context, and are in possession of aperçus such as Holmes’s. It is illuminating, though, to have it explained by someone who makes no pretense of having equivalent training, but who has thought long and hard about how language works and sometimes fails to work. Soames emphasizes a distinction (already noted) between semantically hard and genuinely hard case, and he divides the latter category into three subcategories. It would be interesting to try to map his distinctions onto those that have emerged by the toil of those lawyers, judges, and academics who have long worked the jurisprudential fields. It would also be interesting to figure out how Soames would handle “due process” and “equal protection,” those twin wooly bears of constitutional adjudication. None of the cases he discusses involve them; but they are sources of much of the clamor against judicial legislation.
A philosopher of language, wanting to make use of the tools he best knows, may miss the (to lawyers, obvious) point that legal and (especially) constitutional interpretation is inescapably, to some degree, a political and moral exercise through and through. Consider this:
Just as you [viz., whoever you are] have no standing to reinterpret my remark [viz. any remark] to conform to your moral and political views, simply because the meaning of my sentence doesn’t fully determine the content of my remark, so judges applying the law have no standing to reinterpret it, simply because the linguistic meanings of the relevant legal texts don’t fully determine the content of the law. (404, italics in original)
Now, read in a friendly way, this is indisputable; and Soames immediately adds that “other principles” (apparently not meaning anything specifically Dworkinian by this) constrain the judge in carrying through with the interpretative task. In conversation, the hearer has the option of asking for clarification, lacking which she may choose not to decide what was meant. Not so with judging. Soames knows all this, but note the too-easy analogy between the “standing” interpreters generally lack, to use moral/political stuff to fill gaps in remarks generally, with the “standing” judges have with respect to gaps in the law. The pragmatics of a legislative enactment or a judicial decree is a very different sort of animal compared to a comment or suggestion or even order made by one person to another in conversation (see, e.g, Brian Bix, “Can Theories of Meaning and Reference Solve the Problem of Legal Determinacy?” Ratio Juris 16:281-95 (2003[/note]. A sentence like “Don’t sleep in the subway, Darling,” normally occurs in a context dramatically unlike that in which “It shall be a misdemeanor to sleep in any railway station,” is normally found. Soames is aware of this of course, but he seems to want to confine this complication to a place at the tail-end, and to one that “isn’t very large” (423) anyway. But it may be that the semantics and pragmatics that work adequately in normal discourse may need adjustments for legislation, precedent, etc. right from the start, and all the way through. And, in the process of making that adjustment, Soames, like any philosopher of language fully domesticated in the peculiar domains of the law, will have to plow again many of the same, familiar furrows. But I think what he has had to say already merits careful study, for it throws light from a fresh angle on the nature of law and legal discourse
Oct 5, 2010 PJ NotReallyEditor
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Oct 5, 2010 Michael Froomkin
This post should have three para on the front page. More by accident than design, in the late Twentieth Century the United States Government found itself with de facto and also probably legal control of the DNS. Oddly, at the time, this did not feel like an unmitigated blessing as it thrust the US government into controversies that seemed to have no politically palatable solutions.
In the 1980s and before, control of a small network used primarily by academics was of little interest to most people. But as the Internet began to become commercialized in the late ’80s and early 90s, and as its growth accelerated, DNS issues became more contentious and began to concern even the White House. Proposals to create new top-level-domains (TLDs) ran into opposition from organized trademark-holders who already were concluding that the existing DNS was an obstacle to their legal rights and brand management objectives. Creating new TLDs threatened more cybersquatting and more trademark disputes, and they wanted none of it. On the other side, would-be registries and registrars wishing to enter the domain name selling market sought more names to sell, while firms who found themselves a little late to the Internet party wanted short memorable names. Both sides looked increasingly to the White House to solve their problems, and the White House, in the person of Ira Magaziner, wanted to get rid of the (to this day unsolved) problem as fast as possible.
On June 5, 1998, the National Telecommunications and Information Administration (“NTIA”) of the United States Department of Commerce issued a policy statement, the “White Paper,” calling on private sector Internet stakeholders to form a not-for-profit corporation to take over the administration of the DNS and the Internet numbering system. On October 26, 1998, ICANN was incorporated as a California not-for-profit corporation, and it then asked DOC to choose it as DOC’s private partner. After a number of complexities that need not detain us now, on November 25, 1998, DOC chose a somewhat modified ICANN to be its partner or agent and basically handed ICANN de facto control over the DNS.
The legal basis of the original ICANN-DOC relationship rested on three agreements: (1) a Memorandum of Understanding, later replaced by a “Joint Project Agreement”; (2) ICANN’s Cooperative Research and Development Agreement (CRADA) with the US Government. and (3) a contract between ICANN and the US Government for performance of the so-called IANA function (relating to the assignment of IP and protocol numbers).
Over the course of the past decade, each of these agreements had a number of amendments; these amendments gradually gave ICANN more authority or more independence. Full independence from the US was clearly ICANN’s goal. But the US retained leverage over ICANN for a number of reasons. Some were contractual, and are discussed below. Others were political and institutional. Of these institutional reasons, likely the most important was the role played by Network Solutions Inc. (NSI), a private for-profit company that had made a fortune selling domain names, especially in the .com domain for which its served as registry and first monopoly and then primary and then primus inter pares registrar. The actual root zone file was and is housed on a computer run by NSI, not ICANN, seemingly a source of some heartburn in Marina del Ray. ICANN had a long and sometimes adversarial relationship with NSI, and even at best the relationship was certainly arms-length. This allowed the US Government significant leverage: There was, at the end of the day, little chance that someone at NSI would take orders from ICANN if the USG told them not to.
The MOU was repeatedly amended during its life. Ultimately in September 2006, DOC and ICANN rebadged the MOU as a “Joint Project Agreement”. By that point, ICANN’s obligations to perform specific work items was much reduced. In contrast, however, the legal relationship between ICANN and the US was not that different from what it had been, and ICANN continued to press for full independence. While the US Government may have had some concerns about its legal authority to cut ICANN free, the political ramifications of being accused of “losing the Internet,” likely loomed larger. Despite this, ICANN’s case for independence continued to gather steam.
ICANN’s formal arguments rested in part on commitments in the White Paper that had called ICANN into being, and on the various statements from US Government officials since then. In response to the objectives set by the US, ICANN established a lengthy paper record – sometimes even congruent with reality – designed to demonstrate that it was achieving each of the objectives set for it in the MOU. And indeed, even if the objectives had not all been met on the original short timetable, the checklist of objectives that the US was willing to say had not been achieved kept shrinking from MOU Amendment to Amendment.
If the legal regime of the MOU and even the JPA retained features entrenching the US government’s residual authority, that same authority was under increasing assault in the international political realm. Non-US governments and interest groups increasingly asked why it should be that the US Government should have a uniquely controlling position in the DNS. Where once the bulk of Internet users had been in the US and perhaps a handful of other countries, now the Internet was increasingly global. Influential voices in the EU and Japan, soon joined by others from every continent and region, began to push for the US to divest itself of its controlling position, or for ICANN’s role to be turned over to a more international body.
ICANN responded to the threat of the creation of a transnational competitor (or successor) with several initiatives designed on the one hand to appeal to non-US government and technical constituencies while on the other hand not angering the US government on whose good will, or at least acquiescence, ICANN still depended if it were ever to achieve its goal of independence.
ICANN opened a branch offices in Brussels, where the European Commission has its headquarters. ICANN revamped its ccTLD operations to remove some of the practices that had most irritated foreign governments. It also supported every foreign government that sought to take over the domestic ccTLD, whether or not this move was opposed by the incumbent – a policy likely at odds with earlier Internet norms. More importantly, ICANN gradually expanded the role of its Government Advisory Committee (GAC).
Sep 30, 2010 Kevin E. Collinsip
If you ever find that your reading in the field of intellectual property is becoming repetitive, or if you feel you’ve already cataloged all of the different cookie cutters that are commonly used to stamp out contemporary scholarship, then here’s what you should do: sit down to read Barton Beebe’s Intellectual Property and the Sumptuary Code and enjoy the ride. It’s not exactly conventional beach reading for the dog days of August, but Beebe does build an intricate sand castle—he articulates a highly original thesis concerning the social function that certain trademark-related doctrines are playing in contemporary society—both expecting and hoping that it will soon collapse under its own weight.
For those of you who, like me, are not entirely literate in the history of fashion, a sumptuary law is a law that regulates luxury expenditure and enforces social hierarchy. (P. 810.) A sumptuary code, in turn, is roughly the social-norm analog of a sumptuary law. It is a semiotic system of consumption practices through which individuals send signals about their differences and similarities. (P. 812.) And unlike sumptuary laws, which have largely disappeared, sumptuary codes are very much alive and well.
Beebe argues that emerging technological conditions threaten the viability of the contemporary sumptuary code in that “most competitively consumed goods can be persuasively simulated,” meaning that “our increasingly powerful copying technologies threaten quickly to dilute the rarity and thus the distinctiveness of otherwise distinctive goods.” (P. 814.) In much less refined language, where once upon a time I could rely on scarcity, price, and closely guarded knowledge to ensure that the things that I and my kind consumed were not available to everyone immediately, and therefore to ensure that my consumption of those goods was meaningful under the sumptuary code, advanced technologies of dissemination and reproduction, overseas sweatshops, and overnight delivery mean that I no longer can.
Beebe sees intellectual property law as a last line of defense for those who are interested in maintaining a meaningful sumptuary code. “If we wish to preserve our system of consumption-based distinction, then we require a set of laws to do the work that our material conditions once did.” (P. 815.) In particular, Beebe convincingly discusses at length how antidilution law, geographic indications, and traditional cultural protections restrict the production—and thus indirectly the consumption—of goods and enables consumption to retain some meaning in a sumptuary code.
Beebe’s recasting of these doctrines lying at the periphery of trademark law as the tools of last resort for those who are interested in maintaining a meaningful sumptuary code is an insightful elaboration on a more general theme that carries through a great deal of recent trademark scholarship. The commonly observed trend is that trademarks are moving from being means (the labels placed on goods desired by consumers to indicate the origin of the goods) to ends (the desired goods themselves). What does it mean for the mark to be a good desired by the consumer? The mark is valuable because it signifies something to those who see the consumer consuming it. What does the mark signify? It sends a message about social status that, absent expansive trademark law, would be drowned out by static. Trademark-related doctrines serve the social function of enabling marks to carry meaning not only about the goods to which they are attached to the consumer but also about the people to whom the goods are attached to those who witness the consumption. In other words, trademark-related doctrines serve the social function of enabling a sumptuary code.
Beebe is no fan of exclusive consumption-based social hierarchies that sumptuary codes usually maintain and reinforce, so he seems to delight in foreseeing the possible demise of the very social function of trademark-related doctrines that he so carefully and ingeniously unveils. Intellectual property does not simply maintain the meanings of extant marks. It creates incentives for “Progress” (with the capital “P” to be taken with some irony, as Beebe fully recognizes) in that new market entrants will fabricate new marks and attempt to endow them with new meanings. In Beebe’s crystal ball, the inevitable “arms race” among mark producers will wear out consumers’ abilities to consume meaningful symbols and thereby herald the end of the sumptuary code. In Beebe’s own language, “as our system of consumption-based social distinction produces more and more commodified forms of distinction, the ability of individuals to comprehend these forms may reach a limit, one beyond which a seeming infinitude of such forms of distinction appears to blur into indistinction.” (P. 882.) Beebe then concludes with a utopian vision of what non-consumption-based systems of social distinction might rise from the pile of sand into which his castle has crumbed, but, to avoid spoiling all of your beach-time fun, this final twist I leave for you to discover yourselves.
Sep 30, 2010 Laura Heymannip
In his most recent article, Barton Beebe provides a typically sophisticated and rich analysis of the ways in which intellectual property law is used to reinforce exclusivity, much as sumptuary laws have done throughout history. Such laws, by regulating the fashions of the citizenry, enacted a dialogue about distinction and group identity, in which those permitted to wear certain costuming could communicate to others their inclusion in a particular class. Sumptuary laws accomplished formally what now sometimes occurs through more vague forces of collective action: the price of a designer handbag forecloses wide adoption (until its double becomes available at Target), and limited editions of collectibles ensure that the competition for exclusivity is played out openly. The same processes take place in the noncommercial realm: the names given by those in higher socioeconomic classes to their children, for example, trickle down over time to parents in lower socioeconomic classes with particular aspirations for their children, thus diluting the prestige of the name among the wealthy, who then abandon it in the next generation.
The importance of a system of distinction is not necessarily, Prof. Beebe notes, tied to a desire for superiority or opposition, although presumably at least some individuals are so motivated. Rather, a level of “optimal distinctiveness” allows individuals to construct their own identities while affiliating with other individuals who share their interests. (Indeed, in some cases, these affiliations coalesce around a message of “counterconformity” that rejects the hierarchy created by status goods, thus resulting in, ironically, a new mode of conformity that further contributes to the clamor of voices all proclaiming themselves to be different.) And for some consumers, close enough is good enough: so long as a handbag appears to others to be a designer brand and doesn’t fall apart on repeated uses, it serves both the purpose of holding one’s personal items and the purpose of signaling one’s place in the social and economic hierarchy — as Prof. Beebe phrases it, it represents relative utility, if not full absolute utility.
Prof. Beebe contends that although the sumptuary laws of old may no longer be in force, such codes are still enacted today through intellectual property law. The ability of modern technology to create near-perfect copies — whether of diamonds, musical recordings, or handbags — means that material manufacture no longer contains its own inherent constraints on acquisition and consumption. Indeed, even the producers of “authentic” goods have difficulty distinguishing these simulations from their own products. Intellectual property law, Prof. Beebe argues, provides these constraints, imposing by legal means what can no longer be imposed naturally. Intellectual property law, after all, often concerns itself with acts of copying, impersonation, and inauthenticity: purporting to be something or someone other than the original.
To illustrate this phenomenon, Prof. Beebe considers two forms of authenticity protection that intellectual property law takes: antidilution law and geographical indicators. Trademark’s antidilution law nominally concerns itself not with uses that substitute for the utility of the good in the marketplace but with uses that chip away at the uniqueness of the trademark, a feature that by definition, and unlike other forms of intellectual property, is rivalrous. As Prof. Beebe points out, however, courts’ reluctance to embrace this theory of antidilution law has led to their use of other intellectual property doctrines, such as post-sale and sponsorship confusion in the trademark context as well as copyright law, to accomplish the same goal. Indeed, Prof. Beebe astutely notes, copyright law’s extension of infringement to works that are substantially similar to the protected work “include[s] copying that, while perhaps not fully substitutive in nature, is nevertheless dilutive of the distinctive style or ‘aesthetic appeal’ of the plaintiff’s work.” (P. 862.) Likewise with the pending Innovative Design Protection and Piracy Prevention Act: As Prof. Beebe notes, it is not the threat of lost sales that motivates such legislative efforts — the market for the Versace gown is not likely to overlap significantly with the market for the department-store copy — but a desire to maintain a hierarchy of distinction in which the class-based signals sent by the wearer of the Versace gown are clear and unmistakable.
Geographical indicators and other statements of authenticity (such as those identifying a good as from a particular indigenous group) serve as a similar communication of distinction and difference. Whereas the circumstances of production might previously have indicated authenticity — only certain producers had access to the materials and know-how that could result in certain goods — technology has often eliminated this advantage, requiring producers to communicate their products’ origin stories explicitly. Of course, when copies can barely be distinguished on their face from the original, a statement of authenticity tends to communicate nothing more about a product’s qualities than the claimed authenticity itself. And yet presumably, as Prof. Beebe suggests, these statements are made because consumers care about such origins. It matters to them from whom or from where a product originated — that “Champagne” comes from France, not from California — even though the qualities of that product may be identical to its differently denoted competitor.
The use of intellectual property to replicate the force of sumptuary laws, argues Prof. Beebe, unmoors intellectual property law from its core interests in promoting the creation of goods so as to eventually encourage copying (in the case of copyright law and patent law) and in ensuring consumers are able to find the goods or services they want without being confused as to the product’s source (in the case of trademark law). Prof. Beebe is somewhat despairing of any major change in this state of affairs, although he notes one bright spot on the horizon: the emergence of a commons-based system of innovation in which freely given creation, rather than consumption, is the focus. In order for this system of innovation to flourish, however, it needs to provide contributors the reputational gains that, at least in part, inspire them to create and contribute. So, as Prof. Beebe concludes, attribution becomes a key value that intellectual property law should promote, if only by encouraging “the growth and extension of the social movements that both rely on and help to propagate this system of social distinction.” (P. 885–86.)
Prof. Beebe does caution that the modes of attribution that allow innovators to get credit for their work are the same modes that allow designers to promote their sumptuary code–based interests, but this should concern us only so much. So long as consumers of all types — whether economic or intellectual — know what they are getting and from whom they are getting it, the choice as to how much to consume from what sources should remain theirs. This is not to say that intellectual property law is currently operating within such narrow boundaries — Prof. Beebe’s discussion of post-sale confusion, which is typically not confusion at all, illuminates the fact that trademark owners use the law in many cases not to eliminate confusion but to eliminate competition. But it is to say that intellectual property law should not much care that Louis Vuitton’s trademark has a signaling effect as well as a source-identifying effect, even if some might believe that the purchase of the former is a wasted expenditure.
The importance of attribution and our fluid system of naming practices also mean that intellectual property law has more work to do about what authorship and source mean in the realm of creative products. Although these are exalted concepts in copyright and trademark law, they are more complicated in practice. Copyright law uses the word “author” both for the writer whose hand holds the pen and for the corporate entity that merely sponsors the creative work, and trademark law allows corporations to disseminate goods under various sub-brands and change their names after public relations blunders without fear of liability. And sometimes, as in the case of Andy Warhol’s Factory — which created original “Andy Warhols” for which the artist’s primary role was to affix his signature — a communicative product complicates questions both of authorship and of source, leaving us the task of distinguishing authentic from inauthentic. For now, we can be fairly confident that, contrary to the Court’s view in Dastar Corp. v. Twentieth Century Fox Film Corp., authorship and source are indeed of interest to consumers of creative products. And as Prof. Beebe correctly asserts, it will be intellectual property’s challenge going forward to determine how to appropriately address these interests.
Sep 17, 2010 George Mundstocktax
Louis Kaplow,
Utility from Accumulation, Harvard Law and Economics Discussion Paper No. 654 (2009), available at
SSRN.
Wealth, like virtue, is its own reward. This notion underlies our transfer tax system. Notwithstanding, discussions of income tax policy frequently view wealth as just deferred future consumption rather than as an end of itself. Professor Louis Kaplow, in Utility from Accumulation, reminds us that the benefits from having wealth in addition to providing financing for future consumption should be taken into account in all tax analyses and that, if so, very different conclusions on a number of issues can be reached.
The importance of Professor Kaplow’s point cannot be overemphasized. If wealth is just deferred future consumption, taxing the income from wealth — from savings, from capital — distorts the decision of whether to consume now or in the future. The resulting incentive to consume sooner rather than later reduces economic efficiency. An example of tax rules that are consistent with this view is that we now have a very low tax on the return to savings (as a consequence of the low and expansive special rate on capital gains), rather than, as Pre-Reagan, having a lower tax on services (“earned”) income than on the return to wealth.
But, as Professor Kaplow explains, there are benefits from wealth in addition to being able to spend it at some time in the future:
It is familiar that individuals might derive utility from accumulation, that is, from the possession (in contrast to the expenditure) of wealth… The benefits may be internal (peace of mind, a sense of success) or external (status, power). Another possibility is that individuals merely behave as if there is utility from accumulation, due perhaps to evolutionary imperatives or habits developed during working years that persist through retirement. [Footnote omitted.] Utility from accumulation may help to explain the existence of misers, of high-ability individuals who continue working longer and harder than seems to be justified by needs for future consumption or bequest motives, and, relatedly, of people who view their wealth more as a measure of success (a way of keeping score) than as a means to more tangible ends.
Professor Kaplow discusses how the utility from accumulation explains a variety of empirical phenomena. For example, retirees do not spend as much in retirement as otherwise would be expected. Another interesting example noted is that people give to charities at death (with no income tax benefit) rather than while still alive when they would benefit from generating an income tax deduction and they would be able to enjoy the intangible benefits of the donation.
The heart of the article is a mathematical model of lifetime utility that reflects utility from consumption, gifts, bequests, and saving. The model demonstrates that, if people value wealth for its own sake, lifetime consumption and inter vivos giving must decline. Since people save more, more wealth remains at death to bequeath.
Professor Kaplow does not attempt to measure the utility of accumulation. He observes that it likely varies considerably from individual to individual. The utility nevertheless can have real economic significance, because those who do value wealth save a great deal.
The article notes that its conclusions have a role to play in the analysis of a variety of tax topics. Obviously, the article helps one understand estate and gift tax policy. More importantly in the current climate, however, the article says something very important about income taxation: There is no a priori economic-efficiency reason that income from capital should be taxed at a low, or even zero, rate. As we debate how the federal government should find more revenue, this fact must be kept in mind throughout. Professor Kaplow’s article provides the needed, rigorous reference.
Sep 7, 2010 Anna Gelperncorp
Jeffrey Sklansky,
The Moneylender as Magistrate: Nicholas Biddle and the Ideological Origins of Central Banking in the United States, 11
Theoretical Inquiries in Law No. 1, Article 12 (2010), available at
BePress.
I signed up for the August review slot before considering the August mindset. Several things about August make it ill-suited to reviewing: summer is gone, May ideas have hit the wall, and Congress picked July to pass a law that is too-hard-to-teach but too-big-to-skip. I yearn for holiday fun, theoretical breakthrough, and instructional clarity, combined. And I happen on last winter’s symposium in Theoretical Inquiries in Law, Money Matters: The Law, Economics, and Politics of Currency, and historian Jeffrey Sklansky’s article on Nicholas Biddle, President of the Second Bank of the United States.
The volume is part of a wave of crisis-inspired scholarship that is helping fill the wide and widely-acknowledged gap in legal treatments of macroeconomics and finance. This lot stands out for its thorough interdisciplinarity, its thematic coherence, and the gratifying match between what it promises and what it delivers. Contributions from law, economics, history, sociology, and political science are all at impressive levels, but more importantly, they work well together while exploiting the particular advantage of each discipline. Although none offers a grand legal theory of money or a spell to stop crises, together, the articles begin to tease out a picture of the law’s role in constructing money at the intersection of public and private credit, domestic and international regulation—exposing the political, contingent, and instrumental character of money law, even as they highlight the power of legal ideas and techniques.
For an article to shine in this group, it helps to have a colorful protagonist. Biddle served as President of the Second Bank for sixteen years beginning in 1823 (four years after McCulloch v Maryland), and led its losing battle with Andrew Jackson. He was also a litigator specializing in “international debt-collection,” a legislator, a bureaucrat, a poet and an editor. He edited, among other things, a digest of commercial laws of the United States’ major trading partners, Lewis and Clark’s journals, and a literary weekly. And he graduated from Princeton at 15.
Like its talented subject, Sklansky’s piece moves easily among history, law, economics, architecture, politics and literature. Morsels of Biddle’s poetry, his part in fueling the Greek revival, and the contemporary political uses of Mary Shelley’s Frankenstein are enjoyable and rewarding, more for the way the author combines them to frame Biddle’s civic vision in context:
[I]n the solid geometry of pillars and planes, Biddle found an analog for his notion of banking as the poetry of capital, distilling the Platonic ideals concealed within the hustle and bustle of market relations.
Then there is the theoretical insight. In mapping its lawyer-subject’s worldview, the article hits on what I think is still the core legal challenge of central banking: steering aggregate economic activity through the medium of individually regulated financial institutions, while maintaining both technocratic autonomy and political legitimacy. Decades before federal paper money took hold, Biddle headed a hybrid institution that was quite unlike today’s Federal Reserve. Yet he too grappled with a fast-growing gaggle of money-printing private banks, which he sought to control and whose actions reflected back on him with real estate bubbles, financial crises, and urgent demands for public accountability.
Biddle’s conceptions of monetary policy and regulation projected nationalist ambition rooted in international trade and debt experience; they were global to begin with, and from the start, appeared to struggle with the relationship between finance and the real economy. Biddle’s answer to the accountability challenge, in Sklansky’s telling, constructed the central banker as a public servant autonomous from the markets and politics alike, protecting both from themselves and each other, and legitimate thereby. (Curiously, this was similar to his vision of the lawyer.) Whether it is compelling or delusional is beside the point; we are still arguing about central bank independence and regulatory capture with lawyers under-represented in the debate.
Biddle is a famous guy and I am not a Biddle buff, so have limited capacity to assess Sklansky’s contribution to the Biddle canon. However, in my August moment, this historian gave me food for thought on framing legal approaches to central banking. Seeing as I have been looking for a while, and as the Fed did rather well in the recent financial overhaul, I am very grateful.
***
Separately and in brief, do not miss Marcus Miller and Joseph Stiglitz on macro-bankruptcy, or “Super Chapter 11.” They started this project after the Asian financial crises in the 1990s, and have recently published the latest iteration. Then and now it is hardly pragmatic, but important for forcing us to face the logical implications of deploying bankruptcy in a financial crisis.
