Author Archive for deven-desai
posted by Deven Desai
My paper with Gerard Magliocca made the New York Times in a piece called “Beyond 3-D Printers’ Magic, Possible Legal Wrangling,” and the fun continues. With patent reform on the table (pdf to the bill), the New America Foundation is holding a conference called Just How Broken Is the Patent System?. I will be on the kick-off panel with my friend Adam Mossoff. After some jousting over patents, property, and more with the help of Annie Lowery, the day will turn to industry folks, policy wonks, and more professors, to get into health and patents, green innovation, patent assertion, fixes to the patent system, and a keynote by Maureen K. Ohlhausen, Commissioner, Federal Trade Commission.
It promises to be a fun day. Hope to see folks there.
posted by Deven Desai
As I saw that Amazon is tinkering with drone delivery, I thought “How very Stephenson” and that the opening of Snow Crash tracked the idea of 30 minutes or less delivery. Of course, others thought of this connection overnight. And although Fox News hyped the idea as the Senate holding hearings on Amazon and Drones (“Senate to hold hearing to discuss Amazon package delivery drones“), the hearings were already in place as Fox reports. The Amazon glory is icing on the cake of let’s freak out about drones. And, yes, there are reasons to think about drones and what, if anything, should be done to regulate them. In this post I am more interested in the labor issues. Chris Taylor’s thoughts at Mashable get into this question. There are many limits to the tech. But as I wrote before, Amazon strikes me as well-placed to press into new ways to use this sort of technology to reduce its labor needs. Local distribution sites, same day or now maybe within an hour delivery, maybe on-demand printing of books (or 3D things), and Amazon could yet again change shopping. The Supreme Court declined to hear the case about forcing retailers to collect taxes even when they have no presence in a state. Amazon’s response of moving into states and taking on local retailers may prove to increase competition locally and in an ironic twist the idea that imposing taxes would be fair may prove to be what eats at local businesses more than expected.
posted by Deven Desai
There is a hidden paradox in Talent Wants to be Free: There is time to lock down, and a time to set free (maybe to sow, reap, and more too). Lobel notes that some work indicates that early stage industries may benefit from lock down. But she also makes the observation that a company locking down talent may be in decline. What can we make of this possible paradox?
I think that it shows how difficult it is for any company or industry to truly innovate. As Lobel notes, when things plateau, talent should be loosened up. Why? I suggest that the old hack of the Innovator’s Dilemma is in play. As a company is used to a certain business there are many reasons it won’t move on to the next thing. And it may not be able to see or be willing to work on the next thing. The folks who are into crazy late night work, start-up adrenaline, and the chance to press the edge of whatever field they are in find that the company has become stale. That may also be an industry. I believe that the convergence of businesses is part of why Silicon Valley companies looked to limit talent movement. They both did not want their core people help competitors build rival services and found that folks may be tempted to move to a seemingly new place. For example, a social network person may have jumped to Google to build Google + if their old firm was stable or a search technologist to Amazon or FaceBook, and so on. The respective verticals may be stale and converging. So the leaders start to find ways to keep labor in place (and probably sneak folks to their outfits as much as they can nonetheless). Is there another option? Sure.
Start a Bell Labs, Skunk Works, or Google X. In the short term at least, some of the best folks may stay and set up the next stage of your company. But as the scenario planning and related literature show, sooner or later the company will fail to turn that work into something. When that happens, some of the talent may be frustrated and leave. Again, the need for the payoff, the we planned for X and delivered X vortex takes hold and down the drain we spin. The upside is that other companies will lurk at the edge of the collapse and pick out the best of the wreckage. The key as Lobel argues is that the human capital be able to picked up. If not, the stalling, collapsing company keeps hold of good folks who might do great work elsewhere.
posted by Deven Desai
Professor Lobel’s book raises many questions. That is a good thing. I like books that connect to ideas that have been pinging about my brain and that spur new ones. Talent Wants to be Free does those things. For now, I will look at something that always lurks in this space for me: What type of innovation are we talking about?
I wonder about most discussions about innovation and disruption that focus on the private sector. Something, which for want of better or less exhausted words, we call innovation or disruption occurs at the firm level. But slowing down, we should parse these ideas. Marianna Mazzucuto has done some great work on the way the state is needed and has contributed to the innovations we all celebrate. Again, there are distinctions, as it may be that the work occurs at the state level (basic research), or that the state funded the core research. The counter-punch is that states may make big bets that pay off and they often make big bets that fail. That they fail seems a silly critic (though the linked Economist article makes it). I wonder whether any large institution struggles with two things. On the one hand, placing big bets at all takes bravery and/or vision. And on the other, what parts of the state or private sector carry forward that work is a big issue.
In other words, how much do market incentives skew focus for any of these outfits? Did Bell Labs or Parc do work that Mazzucuto would say was analogous to the state work? I think so. Today is Google doing some of that work? Microsoft Research? Sure. But in what way? The need for short-term payoffs is a problem for the core work that may then be transferred under Lobel’s ideals. Companies talk of moon shots and at the same time want them to occur within a year. Big leaps on the moon take years, perhaps more than a decade, of work to get to the wow moment.
Now it may be that an overall sector leads to great outcomes and breakthroughs, and thus the talent movement within a sector is needed as part of that process. Still I wonder at whether many of the areas the book considers and the issues about talent mobility relate more to applied innovations rather than bedrock work fueling a shift at a national or global economic scale. Remember Schumpeter drew on work that looked at long cycles and breakthroughs in fields that spawned many companies and sub-industries. So although I think it is wise to let talent be free, I wonder about whether that leads to better small steps (e.g., tweaks to phones, social networking, etc.) more than the sort of innovations that spur massive shifts in industry.
posted by Deven Desai
This week Concurring Opinions is hosting a symposium on Professor Orly Lobel’s book, Talent Wants to be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding. In simplest terms, Professor Lobel takes on some thorny problems in innovation policy debates including whether to lock down talent and ideas or to embrace the movement of people and knowledge. Though these tensions seem easy to understand, the natural desire to keep what one has means arguments to tie up whatever seems to be giving one an advantage creates larger debates about optimal control and outcomes. Professor Lobel’s work tangles with these core ideas and more.
Professor Lobel is leading thinker on the intersection of employment law, intellectual property law, regulatory and administrative law, torts, behavioral economics, health policy, consumer law and trade secrets as they relate to innovation. She is the Don Weckstein Professor of Labor and Employment Law at University of San Diego School of Law and holds an SJD and LLM fro Harvard as well as an LLB from Tel Aviv University. She is a member of the American Law Institute and the recipient of research grants from the Robert Wood Johnson Foundation, the American Bar Association litigation Fund, the Searle-Kauffman Fellowship, the Southern California Innovation Project, and Netspar, University of Tilburg. We are honored to have her join us for the symposium as our great list of guest authors engage with her book.
Our line-up of authors include Matt Bodie, Anupam Chander, Danielle Citron, Catherine Fisk, Vic Fleischer, Brett Frischmann, Shubha Ghosh, Ron Gilson, Peter Lee, and Frank Pasquale. We look forward to everyone’s contributions.
posted by Deven Desai
Will we ever be able to go off-grid again? What do we gain and lose if not? These questions came to mind as I was reading Anupam Chander’s Electronic Silk Road. The book is excellent. Indeed, these questions and the rest of this post’s ideas would not have come to mind had he not set out how the Electronic Silk Road operates and might operate. And my questions are perhaps prompted by a good book that addresses much and better still opens the doors to the next questions. Chander makes a strong case for benefits of a modern silk road where trust and trade work together and promote “net-work” which he defines as “information services delivered remotely through electronic communications systems.” This two way world facilitates labor shifted to Asia but also Google and Facebook spanning the globe with their services. His plea for new laws to address this change in trade makes sense. Our world of goods is fading to a world of digital things. Yet I wonder whether this new rule of trade maps to all the wonders we may want.
There may be unintentional irony here. Chapter One epigraph quotes Keynes “What an extraordinary episode in the economic progress of man that age was which came to an end in August, 1914!” Does trade stop war or at least make countries less likely to war against each other? Maybe. To get there Chander points out that, “the characteristics that permit net-work trade might be deployed to create a robust infrastructure for such trade: real-time information transfer, low information and other transactions costs, the ability of individuals around the world to collaborate, and electronic identification.” But the same systems that may promote trade can lead to greater surveillance and repression.
In other words, the recent spying amongst countries may be a good thing. I fear greater coordination amongst countries rather than friction. Chander calls this issue “Stalinization—the imposition of the world’s most repressive rules on cyberspace, in aggregated form.” He acknowledges this point at p. 197. Nonetheless this greater connection and improved grid may be inescapable. The idea that local laws must balance global over-reach does not appear to address what happens when the big boys agree. The electronic silk road thus seems to kill the romance of the silk road.
The Silk Road evokes adventure, the ability to test, change identities, and yet somehow trade worked. Failure on the Silk Road or even mistakes or cheating could be hidden by moving from the Road to some other country. In that sense, a modern system of trade on a global scale seems to defeat the room for play that Julie Cohen has described in Configuring the Networked Self. To where would one go to experiment, reinvent, and rehabilitate? Even with greater freedom to communicate things can go awry. A WTO response may be futile if all agree on bad behavior. Public shaming of corporations may mean little when they are forced to comply. To be clear, I agree with much of what Chander offers and have hope that the mitigation he offers will take it root. At bottom it may be a faith that discourse and debate defeats evil in all forms. Part of me thinks this idea is true. Part wonders whether we have come that far from the days leading up to World War I or II. If not, tighter understanding and trade may do less than both Chander and I hope. Then again Chander may be setting us up for the next step in his ideas. I certainly hope so.
posted by Deven Desai
This week, a great group will be blogging about Professor Anupam Chander’s book, The Electronic Silk Road: How the Web Binds the World Together in Commerce. Professor Chander is a leading scholar on globalization and digitization. He is Director of the California International Law Center and Martin Luther King, Jr. Hall Research Scholar at UC Davis. He has been a visiting professor at Yale Law School, the University of Chicago Law School, Stanford Law School, and Cornell Law School. He is also a dear friend. Nonetheless, it is time for us to do what we hope to do well, and if lucky, our friends do for us. That is, it is time to press Professor Chander about his work as it tries to show us how the new Silk Road operates, what it promises, what is yields, and what it threatens. Work and services are now blending, if not blended. Old rules for trade struggle to adapt to new rules for information. Where will we go from here? Join Professor Chander and our panelists including Paul Berman, Miriam Cherry, Graeme Dinwoodie, Nicklas Lundblad, Frank Pasquale, Pierluigi Perri, Adam Thierer, Haochen Sun, Fred Tung, and of course Danielle Citron and me for the fun this week.
Heads Up 3D Printing and more: The Georgetown Law Journal Volume 102 Symposium: “Law in an Age of Disruptive Technology”
posted by Deven Desai
As you know Gerard and I have been working up our paper Patents, Meet Napster: 3D Printing and the Digitization of Things . It will be part of The Georgetown Law Journal Volume 102 Symposium: “Law in an Age of Disruptive Technology” which will take place on Friday November 8, 2013. There will be panels about driverless cars and mass surveillance as well. We hope to see many of you there. (RSVP at this link).
It is a great honor to be part of this lineup:
Keynote Address by Professor Neal Katyal
Chaired by Professors Deven Desai and Gerard Magliocca
Driverless Cars & Tort Liability
Chaired by Professor Bryant Walker Smith
Mass Surveillance Technology
Chaired by Professor Christopher Slobogin
Announcing Symposium on Orly Lobel’s Talent Wants to be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding
posted by Deven Desai
Think you have enough to read? Think again! I am honored to announce that Concurring Opinions will host a symposium on Orly Lobel’s book, Talent Wants to be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding. The event will run from Monday, November 11 to Friday, November 15. I came to know Professor Lobel’s work as I shared some of my thoughts on intellectual property, property theory, and technologically mediated creation in her seminar, Work, Welfare, and Justice, in 2008. I was thinking about who owns your email? What about work place creation? Who owns what you come up with at work? Does it matter whether you used company technology to create and learn? Professor Lobel was digging into related questions, and it has been a blast seeing her run with them. Now we have the pleasure of her book. The accolades have been coming in from academics in law and other fields as well as the business world. Business Week, Fortune, and Harvard Business Review have run articles by Professor Lobel that draw on the insights from the book.
Professor Lobel argues that as we move deeper into a world driven by human capital and talent is in increasing demand, we have to understand that a lock-down approach to innovation is a losing strategy. Nonetheless:
Many companies embrace a control mentality—relying more on patents, copyright, branding, espionage, and aggressive restrictions of their own talent and secrets than on creative energies that are waiting to be unleashed.
Unlocking talent, setting it free as she puts it, sets up a system where everyone wins. Will our discussants or you agree? I think so, but I am sure there will be new ideas and challenges during the event. Our panelists include Professor Lobel as well as:
October 23, 2013 at 4:06 pm Posted in: Behavioral Law and Economics, Intellectual Property, Political Economy, Property Law, Symposium (Talent Wants to be Free), Technology, Trade Print This Post No Comments
posted by Deven Desai
Danielle and I are happy to announce that next week, Concurring Opinions will host an online symposium on Professor Anupam Chander’s The Electronic Silk Road: How the Web Binds the World Together in Commerce. Professor Chander is a professor at U.C. Davis’s King Hall School of Law. Senators, academics, trade representatives, and pundits laud the book for its clarity and the argument Professor Chander makes. He examines how the law can facilitate commerce by reducing trade barriers but argues that consumer interests need not be sacrificed:
On the ancient Silk Road, treasure-laden caravans made their arduous way through deserts and mountain passes, establishing trade between Asia and the civilizations of Europe and the Mediterranean. Today’s electronic Silk Roads ferry information across continents, enabling individuals and corporations anywhere to provide or receive services without obtaining a visa. But the legal infrastructure for such trade is yet rudimentary and uncertain. If an event in cyberspace occurs at once everywhere and nowhere, what law applies? How can consumers be protected when engaging with companies across the world?
But will the book hold up under our panel’s scrutiny? I think so but only after some probing and dialogue.
Our Panelists include Professor Chander as well as:
And of course
Danielle Citron and I will be there too.
October 21, 2013 at 3:40 pm Posted in: Cyberlaw, DRM, Innovation, Intellectual Property, Political Economy, Privacy, Symposium (The Electronic Silk Road), Technology, Trade, Web 2.0 Print This Post One Comment
posted by Deven Desai
As Gerard noted, we have posted our draft of our paper “Patents, Meet Napster: 3D Printing and the Digitization of Things. The area is much fun. Along the way, claims about maybe possible became, oh they’re doing that? OK. Fix the draft and cite. Guns, compounding chemicals, low-temperature metals, oh my. The technology has moved and continues to move in many different ways. The paper has some doctrine, some science and technology studies, and some just plain old wow that’s wild technology. We are excited for the symposium at Georgetown, and we have time to edit and develop. We would love feedback about the legal implications and the technology.
Here’s the abstract perhaps to whet your appetite:
Digitization has reached things. This shift promises to alter the business and legal landscape for a range of industries. Digitization has already disrupted copyright-based industries and laws. As cost barriers dropped, individuals engaged with copyrighted work as never before. The business-to-business models of industrial copyright faltered and in some cases failed. Industries had to reorganize, and claimed foundations for copyright had to be re-examined. This Article examines a prime example the next phase of digitization: 3D printing and it implications on intellectual property law and practice.
3D printing is a general-purpose technology that will do for physical objects what MP3 files did for music. The core patent bargain—sharing the plans on how to make something in exchange for exclusivity—may be meaningless in a world of digitized things. While these devices will unleash the creativity of producers and reduce costs for consumers, they will also make it far easier to infringe patents, copyrights, and trade dress. This will force firms to rethink their business practices and courts to reexamine not only patent doctrine but also long established doctrine in areas ranging from copyright merger to trademark post-sale confusion. Moreover, Congress will need to consider establishing some sort of infringement exemption for 3D printing in the home and expanding the notice-and takedown provisions of the Digital Millennium Copyright Act to websites that host software enabling the 3D printing of patented items and distinctive trade dress. While a 3D printer is not yet a common household item, the time to start thinking about that future is now.
posted by Deven Desai
As I work away on 3D printing I am looking at regulation literature. Ayres and Braithwaite’s Responsive Regulation is available on Amazon for 34.99 for Kindle or you can rent it starting at $14.73 (no kidding, it is that precise). There is a calendar and you can select the length of the rental (3 months comes out to $22.30 and to Amazon’s credit hover over a date and the price appears rather than having to click each date). On the one hand this offering seems rather nifty. Yet I wonder what arguments about market availability and fair use will be made with this sort of rental model for books in play. And this option brings us one step closer to perfect price discrimination. Would I see the same rental price as someone else? Would I need some research assistant to rent for me? Would that person’s price model be forever altered based on some brief period of working for a professor? What about librarians who rent books for work (I suppose work accounts would be differentiated but the overlap between interests may shift what that person sees on a personal account too). Perhaps Ayres and Braithwaite’s regulation pyramid is needed yet again.
posted by Deven Desai
That an inmate facing the death penalty is denied clemency is not unusual; what happened in Arizona this week was. Arizona has a clemency board that, as I understand it, was explicitly established to be a check on the executive in death penalty cases, but the Governor appears not to like that fact. As The Republic explained:
The clemency board, whose members are appointed by the governor, is supposed to make independent assessments of cases and make recommendations to [Governor] Brewer, who has final say in whether to grant a reprieve or a commuted sentence. But the former board members claim that Brewer, working through a top staff member, regularly “overtly attempted to influence” them not to grant clemency to state prisoners whose cases came before the board. (See also, Laird v. Sims, 147 P. 738 (1915).
The Board is a check and balance on the Governor under Arizona law, and it appears the Governor may be trying to get around that limit. I think that a recommendation by the Board for clemency does not mean the Governor has to grant it. Instead, it means that the Governor has more information from an independent group. But it may be that the Governor “is so concerned with appearing tough on crime that she ha[d] top aides bear down on the Arizona Board of Executive Clemency to ensure that it shows no mercy for prisoners in high-profile cases, according to former clemency-board members.” The Republic hints at possible job threats “Three of the board members were unseated for voting to recommend clemency, they said, and two resigned.” In other words, rather than make the tough call against a considered recommendation, an executive wants decisions that make certain policy stands easier.
Great power is something our country has tried to balance from its inception. We stray from checks and balances at our peril. Leaving aside whether the death penalty is OK (as that discussion is important but far too complex for this space), if one has the death penalty, a system that is cautious and considered about administering the ultimate sanction, death, shows understanding for the human condition. An extra check and evaluation, a system that requires anyone to take a stand before executing someone, matter. They invite reflection and debate. As part of the overall system of checks and balances, Arizona’s independent clemency board seems to have been born of wisdom, now undermined. That should not be the case.
posted by Deven Desai
Allow me to introduce my friend and colleague, Prof. Steve Semeraro. Steve’s research focuses on antitrust and criminal law. He authored the Law Professors’ Amicus Brief in the U.S. Supreme Court case Verizon v. Trinko. He currently serves as the Book Review Editor of the American Journal of Legal History and the antitrust & competition expert for the Ethics & Compliance Alliance. He is a graduate of Stanford Law School and has worked at the Department of Justice, Antitrust Division, where he led civil antitrust investigations of the optical disc and credit card industries. That brings us to why I asked him to guest blog for us.
Steve’s work on the $7.25 billion Visa and Mastercard settlement which addresses disputes between merchants and Visa and Mastercard was cited by Professor Alan Sykes, the court appointed expert for the settlement. I asked Steve to post a bit about the settlement. He has agreed. So welcome, Steve, and we look forward to your posts.
posted by Deven Desai
To all who participated by posting, commenting, or just reading, I offer many thanks. I have enjoyed this symposium immensely. Mark’s book continues to provoke, and now there are many more views to consider and explore. I think the range of engagement shows that regardless of whether one agrees or disagrees with the book, Mark has presented powerful ideas in a way that speaks to many disciplines. I wanted to say more and found so much more to digest that I couldn’t. That too is a good sign. The symposium sated me and created new hungers. I encourage folks to find more about the Rule of the Clan at his site for the book. For those who wish to follow his work in general his blog, Worlds of Law, is great place to do so. Again many thanks to all and especially to Mark for the book.
posted by Deven Desai
Clans are seductive. Mark’s book, The Rule of the Clan, shows why. The Rule of the Clan does not bring up The Godfather that I recall, but then it did not need to. The book forced the opening of The Godfather into my head. Couldn’t shake it. That opening is a microcosm of many ideas in the book. Mark shows that the impulse to embrace the clan is not weird; it is understandable. For me, Mark’s theory explains the tension between two major forces, the liberal state and the clan; both of which offer much, and both of which run into each other (Jeanne L. Schroeder’s post captures this point well). As I understand the book, the move to the clan or rise of clan systems is a symptom of liberal society in decline. At the same time there is a balance. Clan structures are warm and safe in many ways. As a first generation immigrant, I have never plugged into whatever the hell it means to be an Indian in America. At times, I wish I could. Did I reject all clans? No. No one is an island; all need some communal succor. I went to a boarding school. Boarding schools at all levels fill gaps in family life. Even as a day student, the honor code, the crest, the motto (principes non homines), and the people created a structure of support and security like no other. And days before graduation, the founding headmaster made it a point to tell us that once we left, we were in a different world, outside the clan, where maintaining honor was a bit rougher. Cal, Yale, Princeton, Quinn Emanuel, Google, the Cory Booker Campaign, had clan-like qualities too. Some of those institutions find subtle ways of excluding you even when you are in. But some of those networks have power and help in tough spots. As that grows, as one rises in the institution, individualism is less tolerated. Identity merges with the group as one drinks the culture, and loyalty, sometimes blind, ensues. But they rarely have the power of the clans that cause concern. Or they rarely exercise it for all in the clan.
So consider the Godfather scene. What happens when all structures are gone? Where do you turn? Your company? Your school? No. You seek the Godfather. The immigrant undertaker, Bonasera, who tries to live under the new rules of his new country, America, finds that the system fails him. He tries to adapt to his new world. He lets his daughter date outside his clan, but she is attacked. The culprits receive a suspended sentence and go free “that very day.” The system is at best theater for him. He wants revenge for the beating and attempted rape of his daughter. He goes to the clan, the Godfather. But the Godfather challenges him about being outside the clan, and this exchange follows:
Bonasera: I didn’t want to get into trouble.
Don Corleone: I understand. You found paradise in America, you had a good trade, you made a good living. The police protected you and there were courts of law. And you didn’t need a friend like me. But, uh, now you come to me, and you say: “Don Corleone, give me justice.” But you don’t ask with respect. You don’t offer friendship. You don’t even think to call me Godfather. Instead, you come into my house on the day my daughter is to be married, and you ask me to do murder for money.
Bonasera: I ask for justice.
Don Corleone: That is not justice. Your daughter is still alive.
And in the end Don Corleone is clear that the people who will take care of the problem must be “reliable people, people who aren’t going to be carried away. After all, we’re not murderers, in spite of what this undertaker thinks.” The rules of the feud (the book describes the importance of feuds as something other than anarchy) persist even for those not in the system. That maybe a quirk and inaccurate for most clans, but the idea of this scene is seductive. It, in fact, is true. It is why people can love the idea of Don Corleone or Tony Soprano.
The temptation or desire for quick, personal justice cannot be escaped. If it were as simple as the film, many more might seek it even with the owed, unknown favor lurking behind the exchange. Liberal democracy is always balancing that desire for immediate, visceral, decentralized satisfaction against a slower, less personal system. As Arnold Kling offers, anyone asserting a new decentralized order will work must show “a more decentralized order that does not degenerate into the rule of the clan.” So too for liberal democracy. That system must constantly prove itself. When that proof is lacking or has faded from recent memory, calls for dismantling the state will arise. They may not be accurate. But they suggest that things are not as they should be. When they start to gain force, rather than throwing the state out altogether, we must reassess and reestablish the parts of the state that give room for individuals to thrive. The Rule of Clan provides a chart to understand these constant currents, and let’s us decide what course to take.
Clip of the opening after the jump
posted by Deven Desai
Bold. We might favor the bold, but taking such a tack can be dangerous. So why be bold? Perhaps because you have an insight, a vision, and it compels you to say what you see. Mark Weiner’s Rule of the Clan is bold in this way. It presents how an ancient, persistent part of society, the clan, shapes our world. Mark says we may hope that societies are either clan-based or liberal modern ones, but that is not so. He shows why that is the case. And he shows that if we fail to understand the clan impulse, we fail to see the ways the very liberal, modern state we cherish may rot from within. The lack of normative coherence that may be inherent for modern liberal states and the way clans reemerge when the state is weak create fertile ground for clans to take over. When that happens the freedom and space for individuality we cherish and take as a given, give way to clan structures. Those structures are understandable. They provide societies a certain stability and meaning, but when we embrace them, we give up the freedom we want. Mark shows that the cry to dismantle the state undermines the institution that gives us freedom. We must learn the way the drive towards clans operates, if our freedoms are to persist.
There is much more to say, and I will post my thoughts later. For now let me say Concurring Opinions is honored to host this symposium on The Rule of the Clan. As Mark’s initial post notes, we have a great, international and interdisciplinary group participating with us this week. We look forward to their contributions and your comments.
posted by Deven Desai
We need more outlets to challenge the way things run. Challenging corporations is difficult, necessary, and proper. Someone in San Diego tried to do that. He is losing his case. It turns out that if you scribble anti-bank messages, you could face 13 years in jail. The medium: washable children’s chalk, not spray paint, on the sidewalk in front of banks. The bank: Bank of America. Now, you might think the First Amendment would be an issue here; it’s not. According the news report, “a judge had opted to prevent the defendant’s attorney from ‘mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial,’ and the defendant must now stand trial on 13 counts of vandalism.” The defendant was saying other banks were better banks. Bank of America did not like it, claimed it cost $6,000 to clean up the chalk, and apparently used its influence to have the city gang unit investigate and hand the case to the attorney’s office. Given that this defendant may not be allowed to engage in this speech, because of anti-graffiti and, my bet, property laws, all that may be left is the Web. I think offline mediums matter and should be protected. The Web is an alternative, not a substitute. But even on the Web a protester will have problems.
As I argue in Speech, Citizenry, and the Market: A Corporate Public Figure Doctrine, corporate power to speak has gone up. Corporate power to limit speech has not. A corporate public figure doctrine would allow someone to use a corporation’s logo and name to challenge to corporation on public issues. A corporation’s word mark is its given name; its logo, its face. Just as we would not limit the ability to question and identify human public figures for speech, we should not do so for corporate public figures. A foundational commitment of free speech law, perhaps the foundational commitment, is that public figures don’t and can’t own their reputations. Yet, through trademark and commercial speech doctrines corporations have powerful control over their reputations. If corporations are people for free speech purposes, as a constitutional matter, their control over their reputations can be no greater than the control other public figures have. Corporations cannot have it both ways. Corporations want and receive many of the legal rights natural persons receive. They should be subject to the same limits as other powerful, public figures.
HT: Fred von Lohmann for noting the story on Facebook.
PS. I am not saying corporations should be challenged, because they are corporations. That is silly. In that sense, I would challenge those who challenge, but that’s me.
July 1, 2013 at 1:13 pm Tags: citizens united, dilution, First Amendment, free sp, public figure, trademark Posted in: Constitutional Law, First Amendment, Intellectual Property, Political Economy, Politics, Technology, Web 2.0 Print This Post 20 Comments
posted by Deven Desai
Writing well requires attention to style and execution, but it also requires interaction. John Gardner’s works on writing explains his views on temperament and talent. In On Becoming A Novelist he also addresses training and education. What he says about writers workshops applies for classrooms, conferences, and more:
In a bad workshop, the teacher allows or even encourages attack. … In a good workshop, the teacher establishes a general atmosphere of helpfulness rather than competitiveness or viciousness. Classmates of the writer of the writer whose work has been read do not begin, if the workshop is well run, by stating how they would have written the story, or by expressing their blind prejudices on what is or is not seemly; in other words, they do not begin by making up some different story or demanding a different style. They try to understand and appreciate the story as it has been written. They assume, even if they secretly doubt it, that the story was carefully and intelligently constructed and that its oddities have some justification. If they cannot understand why the story is as it is, they ask questions. … It takes confidence and good will to say, “I didn’t understand so-and-so,” rather than belligerently, “So-and-so makes no sense.” It is in the nature of stupid people to hide their perplexity and attack what they cannot grasp. The wise admit their puzzlement (no prizes are given in heaven for fake infallibility)… John Gardner, On Becoming A Novelist, p. 81
This attitude reminds me of my introduction to rhetoric class. We had to re-state what the author said for our first essay. We lost points for doing anything more. Saying “I think…” was not allowed. We were not ready to have an opinion. As Philippe Nonet used to say, “That you think it does not matter. Only what you show matters.” Tough advice. But good. He also said we have to let the idea present itself. We have to let it be.
A good workshop is a place where we let the writing be. Take it at face value and root around to see what is being said. Some will be good, some bad, some confusing. We will not agree with all that is said. But as Garder says, if we admit our puzzlement and share well, the writer may see how to improve or explain what was missed. Then all will have learned and constructed a new way forward. I think this approach applies to much more than writing, but leave that for another time.
posted by Deven Desai
I am pleased to announce Concurring Opinions will host a symposium on Mark Weiner’s The Rule of the Clan from July 22 to July 26. Mark’s book has received strong reviews:
“This erudite, quick-paced book demonstrates what the mix of modernity and clans can create: ‘medieval Iceland plus Kalashnikovs.’” — The New York Times
“Accessible, mesmerizing, and compelling.” — New York Journal of Books
“A highly revealing study with global implications.” — Kirkus Reviews
“The best book I have read this year … A libertarian case for a strong central state … directly challenges what many libertarians currently believe.” — Arnold Kling, economist, askblog and Library of Economics and Liberty
And he has been interviewed about his book by several media outlets including the Brain Lehrer Show on WNYC.
The line up is great, and we are excited to host this event and group. The list of participants shows that the book has caught the attention of a range of scholars crossing disciplines and nationalities. Here is the list, and we hope all enjoy this event.
Prof. Mark Fenster, Levin College of Law, University of Florida, author of Conspiracy Theories: Secrecy and Power in American Culture.
Dean Lucas Grosman, University of San Andrés School of Law, Argentina, author of Escasez e Igualdad: Los derechos sociales en la Constitución.
Dr. Arnold Kling, Adjunct Scholar, Cato Institute, blogger at askblog, author of Unchecked and Unbalanced: How the Discrepancy Between Knowledge and Power Caused the Financial Crisis and Threatens Democracy. Dr. Kling is also the author of “State, Clan, and Liberty,” a review of The Rule of the Clan for The Liberty Fund’s Library of Economics and Liberty.
Dr. Doyle R. Quiggle, Jr., author of “Ibn Tufayl’s Hayy Ibn Yaqdan in New England: A Spanish-Islamic Tale in Cotton Mather’s Christian Philosopher?” Dr. Quiggle has taught oratory, rhetoric and classics to U.S. soldiers in both Djibouti and Afghanistan.
Prof. Jeanne Schroeder, Cardozo School of Law, author of The Triumph of Venus: The Erotics of the Market. Prof. Schroeder is also the author of “Family Feud,” a review of The Rule of the Clan soon to be under consideration for publication.