Dec 7, 2011 Robert Leckeyequality
How is it that people of wildly varying politics come together in viewing homophobic bullying in schools as an urgent problem? With whom does tackling homophobic bullying through a law-and-order paradigm make us allies? What forms of systemic homophobia, at home and in schools, does a focus on individual bullies obscure? What assumptions about queer adolescents’ sexuality and agency underwrite campaigns against homophobic bullying? Why is it so much easier to crack down on bullies in school than it is to talk openly about sex?
The strength of Daniel Monk’s article is that he shows convincingly that people committed to fighting homophobia can and should ask these questions. His interest is the “conditions of possibility” that have constructed homophobic bullying, discursively, as “a legitimate object of social concern within civil society.” Monk identifies the key discourses that have converged so as to legitimate concern about homophobic bullying. He also explores the political investments that underlie them and the responses to bullying grounded in penal or criminal law.
One discourse is that of child abuse. Monk highlights the particularity of the social focus on homophobic bullying in schools. Gay rights and children’s rights organizations do not, he notes, address the effects of parental homophobia on children. Moreover, the construction of the school as a dangerous place, and by implication the home as safer, corresponds with political and socioeconomic privatizing shifts in the perception of schooling.
Another discourse is that of the child victim. The discourse of homophobic bullying draws on images—simultaneously appalling and reassuring—of the child as innocent victim. Monk’s worry is that the imagery of the child as victim silences other concerns. It desexualizes victims of bullying and effaces adolescents’ sexual agency. He reports that Stonewall, the leading gay rights organization in the UK, addresses homophobic bullying on its Web site, but not young people’s needs for information about safer sex.
The third discourse is that of “the tragic gay.” Monk’s analysis here will be counter-intuitive to many readers, but I found it disturbing and provocative. He suggests that the problematization of homophobic bullying has ushered in a shift by which the negative characteristics once associated with homosexuality are now associated with the victims of bullying. “Development into successful normal adulthood is not ‘arrested’ by paternal or maternal attachment, but rather by homophobia itself. In other words, the development question now is not, ‘What makes someone homosexual?’, but instead ‘What makes someone behave in a way that fails to conform to heteronormative behaviour’.” The queer youth remains “a reassuringly distinct and tragic ‘other’ from that of the heterosexual.” Now the developmental cause is not homosexuality, but bullying. The upshot? Queer youth still need help.
Monk is most bracing in his critique of the political aspirations associated with the fight against homophobic bullying. Bullying and its victims are measured as problematic against the metric of an imagined, post-homophobic future. If it weren’t for bullying, goes the thinking, queer adolescents might grow up to be more normal. Gay boys might be less effeminate. They might play more team sports. They might grow up to form more stable, “traditional” monogamous relationships. Here the crucial problem is that the harm chalked up to bullying is measured by an assimilative metric of straight-acting heterosexuality.
The article’s analysis of the turn to law-and-order policies by some opponents of homophobic bullying gave me pause. The clampdown on individual bullies, argues Monk, individualizes the bully through a pathological gaze. Focus on the individual perpetrator erases structural forms of homophobia. Readers may vary in the relevance they accord to Monk’s observation that policies making parents responsible for their children’s bullying bear hardest on economically disadvantaged single mothers.
Certainly some elements of the article will resonate most in the United Kingdom (Monk is based at the School of Law, Birkbeck, University of London). The Conservative government’s strong support for anti-bullying initiatives comes to mind. So does the focus on rigidly gendered school uniforms as a form of structural homophobia. But the general argument will resonate in North America, which has recently witnessed the “It Gets Better” campaign on youtube, as well as in other places.
Monk’s article is not an easy read. It is densely written and its interdisciplinary range is broad. The care with which he registers caveats—in a laudable effort to specify his critique’s limits—occasionally weighs on the text. But it will reward a thorough reading. I should add that it will annoy some people, including people I like and whose efforts I admire. Good critical scholarship often does.
The push for legal recognition of same-sex adult conjugality has rightly inspired a rich critical literature, chiefly from queer and feminist scholars. Daniel Monk’s article joins a small, but growing, body of work that turns a critical eye on legal and social efforts related to children, be they the children of same-sex parents or queer themselves.
Dec 5, 2011 Adrian Vermeuleconlaw
In the large and ever-growing category of articles I wish I’d written, the latest entry is Rick Pildes’s withering critique of a standard line about the Supreme Court. The standard line holds – roughly speaking, and its imprecision is one of the article’s main points – that the Court “cannot and does not stray too far from ‘majoritarian views’ …. If the Court does, larger political forces bring the Court back into line; the Justices, knowing this, do not wander far.” (p. 105). In the context of the Court’s recent Citizens United decision, Pildes exposes the ambiguity and fragility of this view.
Pildes traces the thesis of a majoritarian Court back as far as a book by Dean Alfange in 1937, although the same claims were clearly articulated by James Bryce in his neglected classic The American Commonwealth, first published in 1889. Whatever its origins, the thesis is usually associated with Robert Dahl’s classic 1957 article, which Pildes contrasts with the nearly contemporaneous identification of the “countermajoritarian difficulty” in Alexander Bickel’s 1962 book on the Court. Pildes argues that later commentators have taken the Dahl article and run too far with it, overreacting against a romanticized image of the Court as heroic guarantor of minority and individual rights. Thus Pildes offers a partial rehabilitation of Bickel as against, not Dahl himself, but rather Dahl’s successors.
The thesis of the majoritarian Court is really a complex of different theses, with different moving parts and different implications. In Pildes’s words, “[t]oday’s majoritarians are able to cast the Court as so powerfully constrained by ‘majoritarian pressures’ because they rely on constantly varying and slippery conceptions of ‘the majority’ that purportedly constrains the Court” (p.116). Among the possible “majoritarian” baselines are (1) current “mainstream public opinion,” as identified by aggregated national opinion polls; (2) a currently dominant political coalition in the nonjudicial branches; (3) a dominant political coalition at the time relevant Justices were appointed, which – because of the increasingly long average tenure of the Justices – will often differ from the coalition described by (2) above; (4) the presidential wing of the dominant party; (5) the “lawmaking elite”. (I have omitted citations to the theorists who have propounded one or another of these baselines, but Pildes’s article names names).
Part of the problem with these competing baselines is their very multiplicity. One or another of them is usually available to anyone who wishes to claim that the latest apparently countermajoritarian decision is really majoritarian, if only we understood the true state of politics. The consequence is that while particular majoritarian theses may be falsifiable, a general commitment to a majoritarian view of the Court is not, because it can skip happily among various ways of specifying the argument.
Furthermore, Pildes identifies a fallacy of aggregation that sometimes underpins majoritarian arguments. It may be true that any sufficiently large set of the Court’s decisions, taken as a whole, will be largely majoritarian, somehow defined. But the property that characterizes the group need not characterize its parts or members, so it does not follow that each decision within the set will be majoritarian, taken one by one; the latter claim commits what logicians call a fallacy of division. In economic terms, there is a difference between the short run elasticity and the long run elasticity of constitutional law. In the long run, political institutions – including the Court – will supply the law that a critical mass of people want, so constitutional rules will be long-run elastic. In the short run, however, constitutional law may be importantly countermajoritarian at any given time, because political adjustment of the law relies on mechanisms, like the appointments process, that take time to operate.
Indeed, as Pildes goes on to argue, it is plausible to think that the Court’s scope for countermajoritarian decisionmaking will increase in the future, given various background changes in American politics. The polarization of legislative parties and the increasing volatility in partisan control of the nonjudicial branches both tend to increase the “gridlock interval,” or the range within which the Court can decide what it wants because one party or the other will block efforts to overturn its decision. The same phenomena make it difficult for either party to muster a sustained strong of appointments that would reshape the Court’s behavior. The increasing tenure of the Justices creates an ever-widening gap between the preferences of the appointing coalition and the preferences of current national majorities. And there is a large gap between the Court’s diffuse or ambient support in public opinion and the public’s dim view of other institutions, especially Congress.
If the majoritarians have overreacted to Court romantics, Pildes offers balanced judgment and clearminded assessment of different majoritarian theses and mechanisms; he is careful to avoid overreacting in the other direction. Viewed over decades or generations, the Court will not get too far out of line with what enough people want. But that is a thin claim of dubious utility. The long run may be getting longer, as structural trends in politics clog or slow the mechanisms of political correction and thus give the Court increasing autonomy. In any event political life is a succession of short runs lived here and now; Keynes’s dictum about the 100 per cent rate of long-run mortality holds for constitutional law as well as for economics. The eventual elasticity of constitutional law offers cold comfort to anyone concerned with countermajoritarian judging.
Dec 2, 2011 Carole Silverlegalpro
Two years ago I had an opportunity to attend the “Future(s) of Professional Services Programme” organized by Harvard Law School and Oxford Said Business School. It was a terrific conference in many respects, not least for its interdisciplinarity, bringing together scholars from business and law whose work focused on professional service firms. As a lawyer studying law firms in the context of globalization, the insight of the business scholars was enlightening: by placing law firms in the larger context of professional service firms and by bringing the framework of management and strategy to bear on the study of law firms, legal scholars gain a new perspective from seeing the same picture from a different vantage point.
In truth, conversations with law firm leaders and others that have informed my own work on globalization and the legal profession indicate that decisions about law firm globalization and strategy are neither so clean nor logical as some of the management and strategy school research suggests. Rather, law firms’ activities with regard to globalization often are as much reactive and opportunistic as strategic. Nonetheless, the analysis of the business school scholars reflects the reality of regulation outside of the US, in that regulators involved in international as well as foreign regulation of their domestic legal profession increasingly are not trained as lawyers and have little incentive to treat lawyers particularly differently than other professional service providers (see, for example, Laurel Terry, The Future Regulation of the Legal Profession: The Impact of Treating the Legal Profession as “Service Providers”).
Listening to my fellow conference participants explain their analyses of what law firms were doing, I came away thinking that their explanation of what should happen with regard to law firm strategic decision-making was spot-on, even if not completely convincing as capturing the reality of what actually was happening. It is clear that lawyers and law firm leaders — particularly in the US — have much to learn from getting outside of their own skin, both from those who study their organizations and work from another perspective and from those whose work focuses on the work of lawyers and law firms from other countries. I worry that lawyers and law firms in the US may not engage sufficiently with these external frameworks to consider the ways in which the distinctive approaches in the US support or undermine competitiveness.
A new article by Susan Segal-Horn and Alison Dean revives these lessons, providing insight into the topic of global strategies for elite corporate law firms. In The Rise of Super-Elite Law Firms: Towards Global Strategies, Segal-Horn and Dean consider the drivers of globalization for law firms as well as the question of what firms should pursue as global strategies. Their work is informed by in-depth interviews with lawyers at three of the top ten UK-based global law firms as well as a smattering of clients (PP. 201-202), and structured within the framework of “global industry drivers.” (P. 195.) In this way, they consider law as any other industry; that is, they approach law in the same context as the study of non-law firms in which management and strategy are considered crucial for leadership and decision-making. This allows the reader to view the legal profession and law firms through an outsider’s perspective.
Segal-Horn and Dean approach the question of whether elite corporate law firms should pursue a global growth strategy by considering four areas of influence: market drivers, competitive drivers, cost drivers and government/regulatory drivers. Each area is further divided into forces that push towards globalization (“globalization enablers”) and those that inhibit global growth (“globalization inhibitors”). (PP. 203-209.) In all but the government/regulatory area, the enabling factors outweigh the inhibitors, pointing toward globalization as a sound strategic choice. According to Segal-Horn and Dean, the reason “super-elite legal firms invest[] in global strategies . . . is about long-term competitive advantage. The globalizing firms are making a specific bet on the nature of the development pathway of the industry and therefore on what will matter in this industry in the near future.” (P. 210.) Regulatory barriers are acknowledged by global firms in their “develop[ment of] strategies which allow them to overcome local regulations on who can practice where.” (P. 210.) Their analysis is perfectly consistent with staffing patterns in global firms, where the norm is for lawyers to be educated and licensed in the jurisdiction where they practice (Silver, DeBruin Phelan & Rabinowitz, Between Diffusion and Distinctiveness in Globalization: U.S. Law Firms Go Global). In considering incentives and barriers to globalization, the authors’ approach in situating regulation simply as one of four forces shaping strategic decision-making is a useful construct for placing law in context, although may not be the emphasis placed on regulation in an analysis by lawyers. Their approach also will be useful for law firms in reconsidering global strategies in light of changes since the economic downturn.
I am left wondering how a similar sort of outside-looking-in framework for analysis might usefully be applied to legal education, another segment of the legal profession in the US facing substantial challenges. In simply identifying relevant elements within each of the four industry drivers, our understanding of the influences shaping decision-making might be sharpened. While it is common among critics of US legal education to point to medical and business schools as models for the direction law schools should follow, little analysis of the relative merits of each system have been offered; even less attention in this regard is focused on legal education regimes in other countries. But in looking outside of our own system, whether to the education of other professional service providers or of lawyers in other countries, useful lessons may be learned about our place in an increasingly competitive market.
Nov 30, 2011 Sean Coylejuris
Martha Albertson Fineman,
The Vulnerable Subject and the Responsive State, 60
Emory L. J. 251 (2010), available at
SSRN.
Have philosophers of the liberal political order been correct in their understandings of the human condition? Moral arguments for liberalism have sometimes been difficult to separate from a standpoint from which liberal order appears as the archetype for social order generally: the human condition in its most exalted and successful form. Certain features of the Kantian legacy have provided much intellectual nourishment for liberal thinkers. Kant tells us: sapere aude! Lean not on others, but become autonomous! Neo-conservatives have seized upon this aspect of Kant’s thought, celebrating liberal society’s facilitation of the autonomous agent. Socialists, forced to engage with a liberal order that has triumphed over their deepest dreams, have emphasized a different dimension of Kant’s legacy, centring upon his ideas of equality and of justice.
Taking as its starting point ideas of equal protection under the United States Constitution, Martha Fineman’s article offers a criticism of recent writing in liberal theory for failing to understand the human condition in the right way. The most pressing characteristic of the subject of liberal politics is not autonomy, but vulnerability. One might say that neo-conservatives and those on the liberal left have misunderstood the nature of human vulnerability. For conservatives, vulnerability is connected with unfreedom. Full of ideals of personal liberty, they insist that as the state increases its organization of the welfare of the private sphere, people will become less resilient. Individuals must learn to stand on their own two feet if society is not to produce a class of dependent people. They have a point. Individuals will only become masters of their situation if they are allowed to create their own arrangements. Human freedom is a more ingenious solver of problems than the government’s legislative schemes. But liberal society itself does not equal the defeat of acquisitive and competitive instincts in human nature. Indeed, liberal society is unimaginable without a market that is also free to operate in uneven and cruel ways. The same neo-conservative philosophies thus also increase vulnerability, leading many to curse the inhumanity of a faceless system (the market) which remains harshly indifferent to their needs.
Socialists rightly criticize conservatives for their failure to respond to vulnerability. Many of the things that make people vulnerable (economic poverty, health, treatment of minority groups) do not abate in the face of increased opportunity. A social philosophy which leaves people to sink or swim will not render vulnerable individuals more resilient in the face of their vulnerabilities, nor force them to become resilient enough to overcome them. Autonomy for Kant was never a condition of being that human beings actually manifest, but an aspirational condition that we everywhere fail to manifest. Is it wise to found a politics upon a character (the autonomous subject) that does not exist? Socialists connect vulnerability with injustice. Following their instinct for greater organization, they demand that help must be available to those who are powerless to take charge of their situation. Difficult to argue with, there is however no doubt that this creates new focuses for dependence. Socialists frequently confuse vulnerability with welfare need. Alleviating the effects of certain forms of vulnerability, socialists have therefore encouraged people to become vulnerable in other ways, reliant on systems of support over which they have no meaningful control.
These arguments about the organization of liberal society are constantly at risk of equating liberal order with the removal of vulnerabilities. For conservatives, nothing matters more than the elimination of structures which inhibit freedom. The defeat of this last enemy will allow men to escape all others: surely no one who is the author of his own situation can be afflicted by vulnerabilities? More aware of the enormous range of human vulnerabilities, socialists prefer to put the power of the state behind the effort to mitigate them. Vulnerabilities are directly, rather than indirectly, politicized. Equality is the primary consideration: if vulnerabilities cannot be eliminated, they can at least be neutralized. But socialists may then foster a dream which propagates beyond the confines of socialist ideologies: the idea of the ‘ideally just society’. Everything will be put into the balance! Conservatives and socialists both see vulnerability in all too structural terms. Vulnerability is not natural but ‘done to us’. The right structure – or absence of structure – will overcome it.
Fineman’s article reminds us of the important truth that vulnerability is a permanent feature of the human condition. A politics genuinely attuned to the realities of the vulnerable subject must do more than create modifications to the operation of the market. Its efforts must be directed not simply at the removal of disadvantage or inequality, but must learn to deal with the effects of ‘systems of disadvantage that are almost impossible to transcend.’ (257) It must understand that autonomy is experienced unevenly, an aspiration that ‘cannot be attained without an underlying provision of substantial assistance, subsidy, and support from society and its institutions’. (260) Liberals who are serious about the merits of liberal society must do more to cultivate autonomy. They must come to realize that the success of their political ideals rests upon ‘a more active and responsive state.’ (id.)
In one sense, the development of a more responsive state is not the answer to the problem. Desperately necessary for addressing the growing ‘welfare vulnerabilities’ experienced in the West, a more interventionist philosophy for the state leaves society vulnerable to the danger that liberals have feared above all others: authoritarianism. Flying from the cruelty and indifference of invisible hands, we risk falling into the hands of protective institutions which (in Kant’s view) ‘everywhere’ place ‘restrictions on freedom’, and in the presence of which there is no end to the abuses to which we are vulnerable. Fineman is very aware of the problem (274), but wonders whether it is possible to work toward a conception of an active state in non-authoritarian terms. For myself, I remain pessimistic about this possibility. It would depend upon a means of overcoming another, equally ingrained and ineradicable dimension of the human condition to which Fineman is perhaps less sensitive: the presence of selfish and brutal instincts (in traditional Christian terms humanity’s ‘Fallen’ nature, which Augustine aptly calls the libido dominandi), which operate everywhere to subvert or corrupt even the best human motives and achievements. Political theory since the medieval period has lacked a proper sense of the extraordinarily narrow limits within which human efforts (especially collective ones) can meet with success. Fineman shares with most liberals a much more optimistic sense of what can be achieved. Her analysis is nevertheless relentlessly honest and challenging of what liberals have achieved. It raises important questions that many liberals have neglected or otherwise deflected by their analysis. Most of all, it reframes debates about equality and liberal justice in a new and fresh and urgent way. The importance of its vision should not be underestimated.
Nov 28, 2011 Myrna Raedercrim
Deborah Tuerkheimer, Judging Sex, 97 Cornell Law Review (forthcoming 2012), available on SSRN. Professor’s Tuerkheimer’s article, Judging Sex is a valuable addition to the debate about where the line should be drawn when balancing the privacy of complainants in rape cases against the evidentiary and constitutional dimensions implicit in the right to present a criminal defense. She approaches the long-standing controversy with fresh eyes, arguing that any probative value imputed to sexual pattern evidence of complaining witnesses in an earlier era is clearly inapplicable in light of current sexual mores, thereby exposing the only basis for permitting such evidence as an inappropriate reliance on views of morality and sexual deviancy that no longer ring true. As a result, she presents a strictly evidentiary analysis of probative value (Rule 401) and prejudice (Rule 403), rather than falling back on the policy justifications for rape shields, which encourage rape reporting by protecting complainants from being subjected to detailed, embarrassing and often humiliating questions about their sexual histories.
Admittedly, rape shields also assume that the probative value of sexual history is low, and therefore make a categorical determination that the probative value of the evidence is substantially outweighed by considerations of complainant privacy and prejudice to the state when jurors refuse to convict because “she asked for it.” However, even today some rape shields permit sexual pattern evidence of the “alleged victim,” and interpretation of the Federal Rape Shield’s “exception” for constitutionally required evidence occasionally reaches the same result on the grounds that promiscuity, whether by numbers or types of sexual encounters, tells us something about consent in the current incident. By debunking the probative value of sexual pattern evidence, Tuerkheimer demonstrates that in the modern sexual environment, pattern evidence should only be admitted rarely when employing the probative value/prejudice (401/403) analysis. This conclusion also suggests that the Confrontation Clause would rarely require the admission of such evidence.
She points out that this analysis is particularly significant now because the consent defense in rape cases has become ever more popular given that the presence of the defendant’s DNA defeats any claim that he did not engage in sex, a staple of pre-DNA argument. As a result, consent is the only viable defense, even in some stranger rape cases. Moreover, prosecutors are now more willing to try acquaintance rape cases. However, in today’s world it is not uncommon for complainants to have a number of consensual sexual partners, with whom they may have engaged in anal, oral and even group sex, besides more traditional intercourse. Thus, even if prosecutors are more willing to try these cases, are they winnable if the judge lets jurors hear such pattern evidence?
The porous nature of rape shields is a topic I previously lamented about in Litigating Sex Crimes: Has the Last Decade Made Any Difference, 6 International Commentary on Evidence Art. 6, at 16-17 (2009):
Undoubtedly, the largest category of potentially rape proof women whose privacy is not guaranteed by shields is composed of young independent females, whether students or workers, who assume that drinking, partying, and freely engaging in consensual sex is not an invitation to be sexually assaulted, and view promiscuity as a feature of modern society.
In other words, they are caught up in the double standard that encourages sexual freedom for females, but then blames them for engaging in such behavior as inviting unwanted sex when they contend an act was not consensual. This disconnect is not surprising given that the judges and even jurors who assess these young women’s behavior are older, and often reflect social mores that are unforgiving of females who openly proclaim their sexuality. My suggestion was to deny admissibility unless the probative value of the specific pattern evidence could be demonstrated by clear and convincing evidence as a way of making its introduction more difficult. In contrast, Tuerkheimer asserts that even under current evidentiary standards sexual pattern evidence does not logically support a finding of consent. While I think this is a stretch in an “any tendency” FRE relevancy regime, I agree that the recent surveys she cites concerning sexual practices should overwhelmingly support exclusion under a 403 rationale, and as she suggests the only likely time that such evidence would be constitutionally required is when the prosecution has somehow opened the door to its use through overstatement or presentation of misleading evidence.
The recent attention-getting evidence she cites about changing sexual behavior comes from the 2010 National Survey of Sexual Health and Behavior, which finds that at least forty percent of women between the ages of 20 and 49 have engaged in anal sex, and most have engaged in oral sex. She also notes that a different national survey in 2005 found that among women over 25, about one in five had 7 to 14 sexual partners, and half of teenage girls engaged in vaginal sex. While one can always question precise estimates on the basis of faulty research methodology, undoubtedly applying outdated concepts of chastity to the “hook-up” generation results in inappropriate inferences about any link between sexual patterns and consent.
Tuerkheimer explains that rape shields rejected the view that sexually promiscuous women were more likely to consent to sex on any given occasion and that promiscuity indicated immorality that would render them untruthful. As a result, theories of admission shifted to “similarity” of past sexual encounters to the charged crime. She debunks treating sexual patterns like habits as ignoring the volitional character of sex. Similarly, she argues that sexual patterns cannot be considered abnormal, and they do not rest on statistical views of deviancy, but are in essence a judgment about the “appropriate bounds of female sexuality.” She discusses Gagne v. Booker, 606 F.3d 278 (6th Cir. 2010), which has been vacated and is awaiting an en banc decision by the Sixth Circuit. Gagne involved sex with two men, which the defendants claimed was consensual. The trial court excluded evidence of previous three way sex involving the complainant and one of the defendants who at the time of the earlier encounter was her boyfriend, as well as a different third man. Professor Tuerkheimer analyzes the varied opinions by the panel that reversed the conviction, finding that the majority’s opinion was animated by its view that the complainant’s behavior was deviant, that having sex with more than one partner was unique, and that the complainant’s excessive drinking vitiated the rationale of rape shield protection. She rejects these views as ignoring that the identity and relationship of the sexual partners matter, and that consent depends on the type of sexual activity with the particular person at the particular time in question. Therefore, she calls consent “contingent” and concludes that consent on one occasion is “not probative of consent on another.” She also reasons that the asymmetry between views that engaging in vaginal intercourse does not suggest propensity, but anal sex or three-way sex does, demonstrates this distinction is based on morality not probativity. Ultimately, she observes it is context that makes any prior sexual incident admissible, not simply the fact that the defense is consent.
While I might have wished a bit more attention to sexual patterns when the complainant is a prostitute or has a mental disability, and a discussion of the admissibility of expert rebuttal if such evidence is permitted, the article poses an important challenge to the status quo and suggests that judges as well as the rest of us need to put aside outdated assumptions when evaluating sexual pattern evidence. However, as I have discussed elsewhere, I think that some judges who are in jurisdictions where evidence of the defendant’s prior sexual acts are widely admitted are more willing to admit pattern evidence of complainants. In other words, they consider it unfair that the complainant and the defendant are treated so differently, although the rationales for rape shields and bad act evidence are completely dissimilar. Personally, I am no fan of propensity reasoning as it affects either the complainant or the defendant.
Moreover, I think judges and jurors distinguish between different types of defendants. A college student whose conviction will brand him as a sexual predator, and subject him to lifelong registration as a sex offender after he serves what may be a lengthy sentence benefits from the sentiment that Susan Estrich once described by saying “it is far easier to condemn date rape than it is to condemn the date rapist.” Until attitudes about sex, drinking, and victim blaming change, rape shields are likely to continue to be inconsistently interpreted. This raises the question of how to change public attitudes to overcome moralistic reasoning that is unduly sympathetic to defendants charged with acquaintance rape. Cultural shifts do occur. For example, there has been a sea change in attitudes about drunk drivers stemming from MADD’s campaign that drinkers should appoint designated drivers. Realistically I think cultural shifts require more than a good analytical argument, but Professor Tuerkheimer’s article provides support for such a change.
Nov 23, 2011 Charles A. Sullivanworklaw
Katie R. Eyer,
That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, __
Minn. L. Rev. __ (forthcoming 2011), available at
SSRN.
One might question the wisdom of a young, not-yet-on-the-market, scholar basically arguing that most of us in her field—including me—have been wrong in important ways. But wise or not, Katie Eyer’s article, That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law (forthcoming in the Minnesota Law Review) is a remarkable piece of research and exposition. She has an ability to deal with complicated issues in a lucid and spritely prose style. I almost enjoyed being informed how wrong I was!
Katie’s a Research Scholar at Penn and her piece starts with the conventional wisdom of 21st century employment discrimination law: there’s a lot of bias out there, maybe mostly of the unconscious type, but, in any event, pretty pervasive. While scholars like myself have proposed ways to deal with this reality insofar as federal judges are concerned, Katie suggests a deeper problem: “most people in most factual circumstances are unwilling to make robust attributions to discrimination.”
The implications of this should be obvious, but haven’t been: even if various academic schemes successfully dodged the Scylla of judicial gatekeepers, plaintiffs would still run afoul of the Charybdis of juries being resistant to inferring discrimination – “[E]ven when there is substantial evidence of traditional invidious discriminatory intent (including so-called “direct evidence”), most people will decline to make attributions of discrimination.” In fact, the author finds judicial and lay attitudes remarkably similar as regards the likelihood of discrimination.
If true, this reality would certainly put pain to efforts to deal with cognitive bias or discriminatory workplace cultures, at least efforts that rely on traditional litigation for vindication. Not only are such efforts not likely to do any good but they may do harm “by further expanding the capaciousness of discrimination doctrine” and thus widening the chasm between it and popular perceptions.
And Katie makes a persuasive case. Although others have observed the increasingly reluctance of society to believe that remaining inequalities are the result of intentional discrimination, That’s Not Discrimination undertakes an in-depth discussion of the psychological literature. That research shows that both minorities and the majority are unwilling to attribute negative outcomes to discrimination. For example, she cites a study in which mock jurors were presented evidence of discrimination that plaintiffs’ attorneys would salivate over (including plaintiff’s boss saying that “women should only be in subservient positions” and that he wanted to replace women with men). Almost half the “jurors” nevertheless found against the plaintiff. Other studies show that subjects themselves attribute their failures to discrimination far less often than the evidence presented to them would seem to support.
The article explores possible reasons for this phenomenon, including the cognitive dissonance that would result from discrimination existing in nation widely thought to be a meritocracy. But I can’t do justice to her analysis in this short review, so I won’t try.
However, I do want to highlight her central normative argument. She concludes her descriptive discussion by arguing that “crediting the findings of psychology scholars, both of the most commonly suggested types of reform seem likely to have significant limitations as mechanisms for meaningfully improving outcomes for discrimination litigants.” I think this is euphemistic way of saying many of us are barking up the wrong tree.
So what’s the right tree? It’s here (as is often the case) that her critique flags. She argues for greater resort to “extra-discrimination remedies.” No, that doesn’t mean even more discrimination. It means looking to “virtually any remedy for group-based inequality that are not founded in discrimination claims,” such as anti-poverty initiatives and just cause legislation. She then provides a laundry list of other examples, including the FMLA, school-based antibullying legislation, and common law claims. She believes that, while such situations would logically seem to also conflict with deeply-held notions of America as a meritocracy, such claims are not viewed as being as far-fetched as discrimination claims, which trigger “uniquely hostile responses.”
She does anticipate one objection to de-racing and de-sexing discrimination laws: “Most individuals who are deeply invested in the antidiscrimination enterprise . . . care about discrimination because it is discrimination.” But with a certain heartlessness she responds that it’s not like you guys are winning a lot of victories under the current regime.
It’s hard to disagree with either Katie’s observation or her rebuttal of the likely response, but I have another reservation: I’m not so sure that employee-leaning scholars and practitioners are doing so well in employment law read broadly. Actually just the opposite.
I hope the somewhat breezy tone of this review doesn’t suggest that I am not a very big fan of this article. I am. Whether or not I agree with Katie, That’s Not Discrimination is a thought-provoking piece well worth a read. I anticipate that Katie will be an important, and welcome, new voice in the academy’s employment precincts.
Nov 21, 2011 Camille Davidsontrustest
Browne C. Lewis,
Graveside Birthday Parties: The Legal Consequences of Forming Families Posthumously, 60
Case W. Res. L. Rev. 1159 (2009-2010), available at
SSRN.
“Procreation is no longer left to the living” proclaims Professor Browne Lewis in this essay entitled Graveside Birthday Parties: The Legal Consequences of Forming Families Posthumously. (P. 1159) She explores three legal issues that have resulted from posthumous reproduction. Specifically she addresses the issues of parentage, procreative freedom, and probate. Professor Lewis examines the steps that must be taken to identify the legal parents of posthumously conceived children. She further discusses the rights of the deceased gamete providers. Finally, she focuses on the inheritance rights of these posthumously conceived children.
In the not so distant past, a fertile man and woman needed to have sexual intercourse to create a baby. A traditional family consisted of a husband, wife and their children. The children were either the biological children of the husband and wife or their adopted children. A child who was born into a marital union was considered legitimate and one born outside of the marriage was illegitimate. Reproductive technology has altered the American family. Intercourse is no longer necessary to create a baby. Although reproductive technology has resulted in many medical miracles, the legal community has been slow to respond to the medical advancements. Further, the legal community must deal with mistakes that inevitably occur.
Assisted reproductive technology was first used to assist infertile married couples in becoming pregnant. It has also been used to assist same sex couples and single individuals to create families with children. Methods to extract and freeze sperm and eggs have allowed deceased individuals to become parents. A dead man’s sperm may be used to impregnate a woman long after his death. A surrogate may use the eggs of a dead woman to conceive a child. Professor Lewis laments that while physicians hail the benefits of the procedures, lawyers are forced to deal with unforeseen legal consequences.
Professor Lewis explains the importance of determining the legal parents of a posthumously conceived child. Inheritance through intestacy, financial support, and government benefits require a legal parent-child relationship. With respect to posthumously conceived children, the legal parent is sometimes difficult to identify. For example, when a surrogate carries a baby, there may be two women who claim to be the mother of that baby. Lewis identifies the two common types of surrogacy agreements—traditional and gestational. Traditional surrogates use their ova and their womb to carry a baby for someone else. Although the surrogate and the baby have a genetic connection, that may not be enough to establish a legal relationship. A gestational surrogate is not biologically linked to the baby that she carries. Yet, that lack of a biological relationship does not necessarily preclude a legal relationship between a gestational surrogate and the baby she carries. Professor Lewis points out that legislatures have provided little guidance and Courts have dealt with the legal issues on a case-by-case basis. She compares cases in New Jersey, California and Ohio that illustrate the variances among courts.
Issues of paternity are also complicated. A majority of state legislatures have enacted legislation to designate the paternity of children conceived using artificial insemination. According to Professor Lewis, in a majority of jurisdictions, a sperm donor is never the legal father of the child. She suggests that courts should allocate paternity based on the best interests of the artificially conceived child.
I would love to see Part II of Professor Lewis’ essay expanded to a separate article. In this section we see the intersection of property law and decedents’ estates. Professor Lewis ponders “whether permitting posthumous conception interferes with the reproductive rights of the deceased gamete provider.” (P. 1169) She asks, “who has the legal right to possess the dead man’s sperm.” (P. 1169) Currently, courts evaluate requests for such sperm on a case-by-case basis.
In the final portion of her essay, Professor Lewis ponders how posthumously conceived children affect the distribution of a man’s estate. Very few states have even attempted to address the issue. Of the eleven states that have legislation, six adopt the Uniform Parentage Act and five set forth independent solutions. Therefore, for a majority of jurisdictions, courts have determined the inheritance rights of such children on a case-by-case basis. Should posthumously conceived children have the same rights as a man’s other children? If so, how are the posthumously conceived child’s rights balanced against a state’s desire for a timely and orderly distribution of a decedent’s estate?
The legal community has been slow to respond to the many legal issues that have developed as a result of the medical advancements that have enhanced the way children are conceived. In this essay, Professor Lewis begins to explore this new and exciting area of law. I agree with her as she states that the medical community “will continue to push the envelope when it comes to reproductive technology.” (P. 1182) The legal community will need to respond accordingly. I look forward to the many conversations and debates.
Nov 18, 2011 Mortimer Sellersjuris
Robin West’s new book on “normative jurisprudence” should have an immense and lasting effect on American discourse about the law. This volume should be important for two reasons and in two senses of the word should: first, because Professor West has great authority in the American legal academy as an early and much-admired proponent of feminist jurisprudence, law and literature, and critical legal studies; and second, because she is in this volume on almost every point and in almost every way correct about the purpose, value, and nature of jurisprudence and the law.
I distinguish two senses of the word “should” in this way because the central argument West makes is that although both the “is” (predictions about existing power and authority) and the “ought” (justice) matter in understanding the path of American jurisprudence, the latter is more important, and much overlooked. West calls for a renewed “normative jurisprudence”, by which she means a jurisprudence dedicated to studying not primarily what the law is, but what it ought to be — how to make the law more just.
For the most part West’s advocacy restricts itself to mapping the province of jurisprudence — what “jurisprudents” (as she calls them) ought to be talking about — which is justice. She doesn’t say as much about what justice is or could be in practice. But simply to speak of “justice” or “normative” jurisprudence at all commits West to what she recognizes must amount to a revival of the secular natural law tradition. And she goes further: Robin West embraces the ancient doctrine that laws are and only can be just to the extent that they advance the “common, human good”. Brava!
When West insists that the study of jurisprudence (properly so-called) requires the pursuit of just laws through a better understanding of justice, the human good, and human nature, she repeats simple truths well stated and restated by Aristotle, Marcus Tullius Cicero, Thomas Aquinas, Thomas Paine, John Adams, and most students of the law in most cultures for most of human history — but oddly absent in the discourse of contemporary American lawyers and legal academics. The bulk of this volume is dedicated to gently and sympathetically explaining how and why American jurisprudence went off the rails — and eloquently, persuasively urging her colleagues back onto the right track.
This book will be influential in large part because West takes such trouble to address the fashions and obsessions of her errant contemporaries. The three main chapters engage (seriatim) proponents of what West identifies as the three currently dominant jurisprudential traditions of (1) natural law, (2) positivism and (3) critical legal theory, represented in American legal discourse by (1) Ronald Dworkin and Lon Fuller, (2) Oliver Wendell Holmes, Jr., and (3) Janet Halley — all indulgently chided for slipping away from the earlier and more ambitious jurisprudence of (1) Thomas Aquinas, (2) Jeremy Bentham, and (3) Peter Gabel and Roberto Unger. What Aquinas, Bentham, Gabel and Unger have in common — West also mentions John Finnis — is their commitment to advancing a “moral brief”: their attempt to explain how laws and the world could be made to be more just and therefore less oppressive to real human beings.
This is indeed what lawyers, legislators, and law professors ought to be doing, but I cannot help feeling that in her effort to persuade by offering an “internal” critique of contemporary jurisprudence, flattering each theory’s intentions, West is too kind to legal positivism and the critical legal studies movement, and unfair to “liberals” such as Ronald Dworkin, who try to make American law live up to its declared ideals. Briefly, the father of legal positivism wasn’t Bentham, but Hobbes, and the essence of positivism has always been the promotion of stability and legal certainty at the expense of justice. Similarly, the essence of CLS was always the denial of (moral) truth and (legal) constraint, in order to empower ones allies and friends. (And the refusal to accept that any idea or concept has an “essence”, which is why I so delight in saying so.)
These last three sentences lost me half the readers who made it this far, which is why perhaps West’s approach is best — to show that in fact we all in the end agree (or would agree if we thought about it) that the only good purpose of law is justice.
This makes it doubly surprising when she turns on Dworkin for taking a similarly “internal” view of the United States Constitution and the common law, interpreting them in the interest of justice, and therefore legitimating (as she sees it) a profoundly unjust system. This criticism of constitutionalism needs to be argued for, not asserted, and leads to my one criticism of this book, which is that it too easily attributes the injustices of the United States to the American legal system, and not primarily to the judges, lawyers and above all law professors whose pernicious doctrines deny justice as the proper purpose of law and the state.
But in the end these differences are matters of tone and law school generation. West studied under liberals and saw the dangers of complacent constitutionalism. I studied under crits and saw the damage of self-indulgent antinomianism. What we both saw and what anyone must know who can see or hear or feel or live in America today is that injustice is everywhere and often supported and advanced by the very laws and legal system of which we are the priests and expositors in our law schools, courts and classrooms. To serve without question makes us complicit in oppression.
Robin West has done a tremendous service by reminding American lawyers that jurisprudence and the law must be normative to have any value at all — and that it matters which norms these are. “To willfully fail to act … is shameful” she tells us. I agree.
Nov 16, 2011 James Grimmelmanncyber
Felix T. Wu,
Collateral Censorship and the Limits of Intermediary Immunity,
87 Notre Dame L. Rev. 101 (2011), available at
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“Section 230” contains the single most important provision in all of Internet law:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Felix Wu’s Collateral Censorship and the Limits of Intermediary Immunity — his first article as a law professor — offers a perceptive new interpretation of this enigmatic sentence. It has always been clear that Section 230 protects intermediaries — the Googles, Facebooks, Comcasts, and bloggers of the world — from being held liable for user-generated content. But consensus in the core gives way to controversy in the penumbra: just how far does or should the immunity reach?
In Zeran v. America Online, the Fourth Circuit gave an answer stunning in its absoluteness and its simplicity: the immunity applies no matter whether the intermediary is on notice of the content and of its wrongfulness. The courts have uniformly agreed: even if an offending post is transparently false and hurtful, and even if this fact is pointed out to the intermediary, and even if the intermediary cackles with glee, still it will be immune. This protection is the legal bedrock on which Internet empires have been built; it has also left countless victims of online thuggery without any effective legal recourse. The limited academic debates on Section 230 have largely focused on whether the Zeran rule is fine as it is, whether it should be rolled back to some form of notice-based liability, or whether it needs other exceptions for particularly egregious situations. There are good articles here, but one does not need a very long string cite to run through them.
Wu’s move, so elegant that it is obvious in hindsight, is to recognize that there are really two questions about Section 230, not one. The first is how strong its protection should be: this was the issue in Zeran and it is the one on which scholars have mostly divided. The second is when that protection should apply at all: this part has received less attention. If we have two sliders to play with, perhaps we should set them differently. Section 230 could be broad and shallow: shielding intermediaries in a variety of factual settings but offering only a thin immunity that can be overcome with a sufficient showing of malice or unconcern on the intermediary’s part. Or it could be narrow and deep: protecting intermediaries only from defamation and closely related torts, but offering absolute protection when it does.
Having distinguished these sliders, Wu offers guidance on how to set them. He does so by reconstructing a theory of what Section 230 is supposed to do: prevent “collateral censorship.” It’s a commonplace that an online intermediary can’t be counted to stick up for its users when its own ass is on the line. (Exhibit A: PayPal and Amazon disgracefully dropped WikiLeaks based on little more than Joe Lieberman’s disgraceful jawboning.) Faced with even the vague and distant threat of liability for user speech, the rational intermediary will yank the challenged content. It has nothing to gain and everything to lose by doing anything else. This gives opponents of speech an easy-to-use heckler’s veto: just threaten the intermediary. A robust, deep immunity recognizes that the intermediary has much weaker incentives than the original poster does.
As Wu demonstrates, however, this rationale only works some of the time. It fails when the intermediary has a speaker’s own incentives because it has adopted the user’s speech as its own. Wu’s example is Barrett v. Rosenthal, where the defendant reposted an email message to two USENET newsgroups: she was not just acting as a gateway, she was “speaking in her own right.” This distinction helps understand why some of the other problematic cases in the section 230 canon, such as Blumenthal v. Drudge and Doe v. Ciolli, are so problematic. These are cases in which the intermediary at least plausibly “obtains the social benefits of speech” and so may not deserve Section 230’s full protection.
Wu also argues that the collateral censorship rationale fails when the law in question is actually designed to target intermediaries rather than users. He gives an illuminating exegesis of the statutory phrase “be treated as the publisher or speaker,” which he claims should not apply when the intermediary is the recipient of the information in question. His example here is MySpace v. Doe, in which the fourteen-year-old plaintiff had been sexually assaulted by a man she met on MySpace. Among her causes of action against MySpace was a claim for negligence based on its failure to implement effective age verification that would have kept her from meeting her attacker. The Fifth Circuit held this theory of liability preempted by Section 230, but Wu disagrees. Doe’s negligence claim wasn’t really about treating MySpace as the “speaker” of her assertion that she was older than she was, and liability here would not raise the incentive-mismatch problem Section 230 was designed to address.
These are just a few of the analytical gems in this treasure chest of an article. His explanation of when intermediaries are and are not really acting as intermediaries alone is worth the price of admission, and will be of use to scholars working on a range of Internet problems. Even where its arguments are less persuasive — I’m not convinced that it really engages with the best arguments for immunity in the Roommates.com housing discrimination case — it has fresh and important insights. Wu’s recommendations don’t fit cleanly into a “pro-” or “anti-” Section 230 camp; anyone who teaches, writes, or cares about Internet law will be challenged and energized by his reinterpretation of the caselaw.
This what good doctrinal scholarship looks like. Wu starts with a real problem, one that is frequently before the courts. He brings to bear the scholar’s comparative advantages: abstraction, time, and theoretical rigor. Having achieved a synoptic view, he returns to the specific, making well-argued recommendations that courts can put to work in actual cases. “Collateral Censorship and the Limits of Intermediary Immunity” is an outstanding debut.
Nov 14, 2011 Michael Carrollip
Media Piracy in Emerging Economies (Joseph Karaganis, ed., 2011).
For those of us who study intellectual property law or the relationship between law and the Internet, these are interesting times. So interesting, in fact, that it is difficult to keep up and to have a real sense for how the activities regulated by intellectual property law are evolving around the world. Now, thanks to Joseph Karaganis and the team of researchers whose efforts he has coordinated to produce Media Piracy in Emerging Economies (“MPEE”), we have a much clearer picture about how interesting, and puzzling, the times in which we live really are.
A little background. It is no secret that economic globalization and developments in digital technologies are interrelated but independent forces shaping the character and quality of human life around the globe. These forces have pulled the industries in the United States, Europe and Japan that produce capital-intensive film, music, software, video games and related media in different directions. Globalization has led to increased market access for media goods produced by these industries, but the growth of digital networks and related technologies have undermined these industries’ traditional production and distribution practices. To manage these divergent forces, media industry executives have invested heavily in influencing intellectual property law and policy.
Modern developments started with investments in the “harmonization” agenda, which focused on establishing minimum threshold intellectual property rights around the world without also harmonizing limitations and exceptions to those rights. This effort successfully produced the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), appended to the agreement forming the Word Trade Organization. TRIPS laid the groundwork for media companies to enter emerging markets armed with exclusive rights enforceable against those who would might reproduce or distribute these goods without license. Achieving “harmony,” however, required compromise by the delegations representing the U.S., E.U., and Japan. More recently, these delegations have responded to the media industries’ dissatisfaction with this compromise by adopting a two-pronged strategy: (1) demand changes in trading partners’ substantive law to increase rights through bilateral and plurilateral “free trade” agreements; and (2) pressure public officials at home and abroad to invest a greater share of scarce public resources in the enforcement of these exclusive rights to increase these companies’ revenues, or, in some cases, to provide public cover through the criminal law or otherwise for private investments in enforcement. This latter effort is the centerpiece of the modern media and proprietary software industry enforcement agenda.
One of the most effective ways to shake loose public resources is to scare public officials. So, it should be no surprise to learn that these industries have invested significantly in a campaign to do just this. First, they argue that they are one of the few export industries that we have left, an argument with greater purchase in the United States than elsewhere. (Message: The country is economically vulnerable; you need us, and every lost sale abroad contributes to the U.S. trade deficit.) Second, we’re losing substantial sales to “piracy”. (Message: help us out because you need us to increase our sales, particularly exports.) Third, these pirates are also harming U.S. interests by undermining the rule of law and by supporting terrorists or organized crime. (Message: you wouldn’t want to be accused of turning a blind eye to terrorism, would you?)
Seeking data to support their alarmist rhetoric, these industries have invested substantially in surveys and studies that purport to show — wait for it — that U.S. media and software producers are losing billions of dollars in revenue every year to “piracy”. Until recently, these data were accepted uncritically and repeated by various public officials ranging from members of Congress, the United States Trade Representative, and the Federal Bureau of Investigation, notwithstanding the obvious concern about bias in industry-sponsored research, exacerbated by industry’s unwillingness to share the data or even the methodology in some cases. Many of us have been discouraged by this failure to take a responsible look at the claims and the data that purport to support them. This is finally starting to change. From the be-careful-what-you-ask-for department, the Government Accountability Office responded to a congressional requirement in the PRO-IP Act that it assess some of these data. GAO did, finding that “[t]hree widely cited U.S. government estimates of economic losses resulting from counterfeiting cannot be substantiated due to the absence of underlying studies.”
This is not to say that claims about the scale of unauthorized reproduction, consumption and reuse of copyrighted media are wholly without substance. Of course, there are many around the world who avail themselves of the opportunities and power afforded by digital technologies and networks and globalized trade channels to acquire or engage with media goods on terms other than those offered by the copyright owners. But, what is the extent of these activities? Does it vary by country and by sector? Industry-sponsored studies generally paint with a broad brush.
The MPEE, in contrast, digs in provide the reader with a much richer sense for the demand for both imported and local media goods in a number of emerging economies. This study, funded by the International Development Research Centre and the Ford Foundation, reports the results of considerable quantitative and qualitative research of a type rarely seen. I will make three general observations and then offer a quick set of highlights from the individual contributions.
First, the study accepts the characterization of “piracy”, at least in its title, to describe the range of unauthorized uses of media goods in countries under study. While this was understandably done to meet the industry studies on their own terms, the reader may overlook the quick qualification of the term offered in the opening essay and some of the important findings about how there is no real alternative to unauthorized consumption in the countries studied because copyright owners have chosen to price their media products as luxury goods in emerging markets even when these goods are designed for mass consumption in their high-income economies. As Joe Karaganis writes, “[o]ne person’s piracy has always been someone else’s market opportunity, and the boundary between the two has always been a matter of social and political negotiation.” (P. 3.)
Second, the study importantly disaggregates the data and shows how unauthorized use affects different media industries differently, particularly the software industry. These real sectoral differences should be taken into account for anyone offering policy proposals that generalize to all works covered by copyright.
Third, the study calls attention to the social and legal diversity in the environments in which copyright law operates on the ground, even among countries that have “harmonized” their laws. Enforcement initiatives vary depending on the general institutional environments for the rule of law as well as the specific legal environment in which copyright operates, particularly in Russia. These data not only should inform our understanding of the world as it is, but should also inform our imagining of how the world might be even as digital technologies become more powerful and pervasive and as the scale of globalized trade increases. Local differences will continue to persist and to matter for how media goods are produced, distributed, and used.
With respect to the individual contributions, Joe Karaganis makes a number of important contributions in the opening chapter, “Rethinking Piracy”. He carefully and critically reviews the “empirical” studies of piracy done to date, showing how little we reliably know about the breadth and economic effects of unauthorized use of copyrighted mass media works. He also generalizes from the specific findings to show how intellectual property rights generally are enforced extra-judicially through raids in emerging economies, that this enforcement has little effect in deterring unauthorized uses, and that the relationships between pricing of authorized and unauthorized copies of media goods shape or reflect the markets in the countries studied.
There is not space here to call attention to the many interesting findings in the country studies of India, Brazil, Russia, South Africa, Mexico, and Bolivia, nor in the interesting coda on the book trade and the United States’ role as a “pirate” nation up through the end of the nineteenth century. Suffice it to say that each supplies its own reward. The reader is grateful for the researchers’ efforts. By getting an overall, and a street-level view, one appreciates the nuances about the degrees to which the enforcement policy agenda of multinational media and software companies has and has not found local adherents in each place, and finds interesting the varied responses from local media producers and distributors to the workings of the informal market. As a significant bonus, while at one time a study, this document also offers a range of telling anecdotes to illustrate the human dimension of the market actors and makes for interesting armchair travel!
