Category: Articles and Books

0

Economic Dynamics and Economic Justice: Making Law Catastrophic, Middling, or Better?

Contrary to Livermore,’s post,  in my view Driesen’s book is particularly powerful as a window into the  profound absurdity and destructiveness of the neoclassical economic framework, rather than as a middle-ground tweaking some of its techniques.  Driesen’s economic dynamics lens makes a more important contribution than many contemporary legal variations on neoclassical economic themes by shifting some major assumptions, though this book does not explore that altered terrain as far as it might.

At first glance, Driesen’s foregrounding of the “dynamic” question of change over time may, as Livermore suggests, seem to be consistent with the basic premise of neoclassical law and economics:   that incentives matter, and that law should focus ex ante, looking forward at those effects.   A closer look through Driesen’s economic dynamics lens reveals how law and economics tends to instead take a covert ex post view that enshrines some snapshots of the status quo as a neutral baseline.  The focus on “efficiency” – on maximizing an abstract pie of “welfare”  given existing constraints —  constructs the consequences of law as essentially fixed by other people’s private choices, beyond the power and politics of the policy analyst and government, without consideration of how past and present and future rights or wrongs constrain or enable those choices.  In this neoclassical view, the job of law is narrowed to the technical task of measuring some imagined sum of these individual preferences shaped through rational microeconomic bargains that represent a middling stasis of existing values and resources, reached through tough tradeoffs that nonetheless promise to constantly bring us toward that glimmering goal of maximizing overall societal gain (“welfare”) from scarce resources.

Driesen reverses that frame by focusing on complex change over time as the main thing we can know with certainty.  In the economic dynamic vision, “law creates a temporally extended commitment to a better future.” (Driesen p. 52). Read More

All fiction to some degree takes place in an invented world, with invented people doing unreal things. In a way the upside down definition may be the most useful - fantasy is books published by fantasy imprints and shelved in the fantasy sections. As far as what content makes a book a fantasy book rather than general fiction, it varies with the reader. I guess you know it when you see it. Although magic swords are often a giveaway.

0

Law and Hard Fantasy Interview Series: Joe Abercrombie

joe_abercrombieThis post is a part of our ongoing interview series with fantasy authors who generally write in the burgeoning genre of gritty / hard / dark epic fantasy.   The series began with this book review post, and continued with interviews of George R. R. Martin and Patrick Rothfuss, and Mark Lawrence.

Today, I’m interviewing Joe Abercrombie.  Joe is the author, most famously, of the “First Law” trilogy, and some more recent spin-offs set in that world.  Joe’s writing is characterized by dark (very, very dark) humor, grit (as in dirt), and an unhealthy amount of revenge.  He’s on twitter, he has a blog, and he was nice enough to agree to answer some questions from me about his writing and its relationship to law.

DH: There’s been a lot of talk in recent years about the collapse of the “fantasy” and “fiction” categories. Is there anything useful about the distinction? If so, what are the minimal characteristics of books that would stay on your fantasy shelf?

JA: Any question about definitions and categorisations is always a complicated one, with lots of confusions and blurry areas. All fiction to some degree takes place in an invented world, with invented people doing unreal things. In a way the upside down definition may be the most useful – fantasy is books published by fantasy imprints and shelved in the fantasy sections. As far as what content makes a book a fantasy book rather than general fiction, it varies with the reader. I guess you know it when you see it. Although magic swords are often a giveaway.

DH: One marker of the trend toward harder / darker fantasy is more fulsome world-building and world-planning. But you are well-known as a guy who hates maps (recent books excepted!) Here’s a practical question: do you sit down and think about the rules of the world before you start to write, or do you start writing and work them out as you go along?

JA: I don’t know that I’d necessarily agree with your first assertion, there. I think a marker of the trend towards harder/darker fantasy is a greater focus on character and internal life over setting and world building, certainly I see that as key in what I’m doing. But you want the backdrop to be consistent and coherent. So you have some ideas about the rules of the world. Certainly you have some strong ideas about the effect certain cultures will have on the way the characters think. That’s the kind of world building I’m most interested in, I suppose you could say, the kind that has a direct effect on the behaviour of the characters, rather than the kind that specifies exactly how many thousand years the tower of Zarb had guarded Dragonfire Pass.

DH: What do you have against maps anyway?

JA: I love maps. I have loads of them. But I don’t necessarily want to share them with the reader. I want the reader to see the action in close up, not wide shot. I want them to be with the characters, not thinking so much about the setting.

DH: Is there any civil law in your world? By that, I mean a system by which contractual breaches and torts are enforced outside of blood feuds, deeds are recorded, property disputes disposed of? What does that system look like?

JA: It depends a little on the culture. In the North there has been a relatively primitive tradition of ownership by clans, judgement by elders and chieftains, but it’s broken down during a period of sustained warfare and a new king has tried to impose a new and much more centralised system, with varying success. The Union, by contrast, has a well-established aristocracy and a complex and extensive centralising bureaucracy, although with a weak king on the throne and a lot of pressure from external threats it’s become rather a corrupt system, prone to being carved into personal fiefdoms by powerful and charismatic individuals in the government. Hardly surprising, in a way, since the whole thing has been explicitly designed to allow one man (Bayaz) to maintain control. The whole thing’s further distorted by the conflict between old power and new money, as the Union has spread to include more diverse cultures and the merchant class has gained in influence.

Read More

stairway-to-heaven-1319562-m
0

FAN.1 (First Amendment News)

From time to time, I will post some First Amendment news items that might otherwise escape the attention of free expression enthusiasts.  It may be about a controversy or brief or new book or article or conference or what have you.  If you wish to send along your own newsworthy item for consideration, drop my an e-mail.  With that, here is my first dollop of news:

  • On February 15th the Harvard Law Review will host a conference on “Freedom of the Press” in celebration of the 50th anniversary of New York Times Co. v. Sullivan.  Participants include: Mark Tushnet (Harvard), Stuart Benjamin (Duke), Sonja R. West (U. Ga.), RonNell Andersen Jones (BYU), David Anderson (U. TX), Marvin Ammori (New America Foundation), Marjorie Heins (Free Expression Policy Project), Jonathan Zittrain (Harvard), Rebecca Tushnet (Georgetown), Caroline Corbin (U. Miami), Jack Balkin (Yale), Yochai Benkler (Harvard), and Dawn Nunziato (GWU).
  • Speaking of NYT v. Sullivan, Lee Levine (a noted First Amendment media lawyer) and Steve Wermiel (a professor at American University Law School) have just published The Progeny: Justice William Brennan’s Fight to Save New York Times v. Sullivan (American Bar Association, 2014). Check out my SCOTUSblog interview with the authors.
  • Recently, the Minnesota Law Review published a thought-proving article titled “Speech Engines” by James Grimmelmann (U. MD Law).  It is one of the best pieces of scholarship I have seen concerning the regulatory debates over just how the law – of copyright, trademark, defamation, privacy and of the First Amendment – should treat Google’s search engines.
  • Gabriel Schoenfeld, writing in the Weekly Standard, just reviewed Floyd Abrams’ latest book, Friend of the Court: On the Front Lines with the First Amendment (Yale University Press, 2013).  (For Mr. Abrams’ views on McCullen v. Coakley (the Mass. abortion-protest case now before the Court), see  Jonathan H. Adler’s post over at the Volokh Conspiracy.)
  • This June Yale Law School Dean Robert Post will release his latest book, Citizens Divided: Campaign Finance Reform and the Constitution (Harvard University Press, 234 pp., $25.00).  The book is an outgrowth of Post’s 2013 Tanner Lectures at Harvard.  Here is a little excerpt from the publisher’s blurb: “Defenders of the First Amendment greeted the ruling with enthusiasm, while advocates of electoral reform recoiled in disbelief. Robert Post offers a new constitutional theory that seeks to reconcile these sharply divided camps.” Post’s text is followed by commentaries by Pamela S. Karlan, Lawrence Lessig, Frank I. Michelman, and Nadia Urbinati.
0

Google Books and the Social (Justice) Contract

In channeling Judge Baer, Judge Chin at long last dropped the other shoe in the judicial effort to bring new information technology uses for copyrighted works fully in to the copyright regime. Congress has been slow to address the challenge of tapping the full copyright social utility/justice potential of these advances and it’s been left to the courts to sort it all out in the context of individual adversarial conflicts. Poignantly, when Jonathan Band asks “What [was] the Authors Guild fighting for?”, he also illustrates the tree-myopic/forest blind nature of the Guild’s position. What the Guild failed to see is that property rights fit into a larger socio-legal system: Yes your neighbor is precluded from trespassing on to your land but your ability to engage in whatever “private” activity strikes your fancy while thereon is limited by the legal system as a whole. Your land is individual private property, not an independent sovereign state.

 

Judge Baer reminded rights holders of this aspect of the social contract and now Judge Chin has made it clear to the Guild that this is not some narrow, eccentric application of copyright social utility. Property rights, including copyrights, exist to advance society, and to state the obvious, information technology has evolved our society. Like all other rights, customs, and expectations, however, whereas some aspects of copyright as previously envisioned fit comfortably into our new configuration others don’t fit at all. And when that ill-fit impedes important social progress modifications must be made, and if necessary, expectations altered.

 

The courts’ reasoning in both Hathitrust and Google Books moves fair use jurisprudence further toward the express consideration of copyright social justice in the application of the doctrine. As Kevin Smith notes, the judges in both cases have seized this opportunity to retrofit fair use, and it seems to me that these decisions push beyond questions of aesthetic and even functional transformation and pave the way for weighing social transformation in assessing the first fair use factor. I have also applied some of the legal conclusions drawn from Bill Graham Archives and other Grateful Dead archive projects to specific copyright social justice needs, for example, that of socially beneficent access to the literature of the Harlem Renaissance. Like some other historically and culturally important works, many of these books enjoy only marginal commercial market value and similar to the information harvested through data mining, “digital fair use” may be the only means by which to return these works to the general public. The social resuscitation of significant works through mass-digitization, and other uses that serve important and otherwise unattainable copyright social objectives, should be considered a purpose that satisfies the first fair use factor.

 

Authors and other copyrights holders would do well to finally get ahead of the information technology curve. The Authors Guild’s mistake was not so much in the effort to preserve what they considered to be their property rights or even in the effort to extract every conceivable drop of revenue out those rights, but rather, in failing to accept that in order for these rights to retain any value they must function as part of a thriving societal system or eventually forfeit the basis for legal recognition. In the analog world, the public’s access to most books remains largely dependent upon the vagaries of the commercial marketplace. Digital information technology has presented the opportunity to compile the world’s books toward the creation of global libraries accessible to every human being on a socially equitable basis. To believe that analog social inequity will be permitted to endure indefinitely in the face of digital information possibilities is simply unrealistic. Keeping in mind that the stimulation, perpetuation, and re-ignition of the cultural expression/dissemination/inspiration combustive cycle is the raison d’etre of copyright will enable authors to embrace digital change and as Gil Scott Heron sang, possibly even direct the change rather than simply be put through it.

 

0

The Dualities of Freedom and Innovation

What a rollercoaster week of incredibly thoughtful reviews of Talent Wants to Be Free! I am deeply grateful to all the participants of the symposium.  In The Age of Mass Mobility: Freedom and Insecurity, Anupam Chander, continuing Frank Pasquale’s and Matt Bodie’s questions about worker freedom and market power, asks whether Talent Wants to Be Free overly celebrates individualism, perhaps at the expense of a shared commitment to collective production, innovation, and equality. Deven Desai in What Sort of Innovation? asks about the kinds of investments and knowledge that are likely to be encouraged through private markets versus. And in Free Labor, Free Organizations,Competition and a Sports Analogy Shubha Ghosh reminds us that to create true freedom in markets we need to look closely at competition policy and antitrust law. These question about freedom/controls; individualism/collectivity; private/public are coming from left and right. And rightly so. These are fundamental tensions in the greater project of human progress and Talent Wants to Be Free strives to shows how certain dualities are pervasive and unresolvable. As Brett suggested, that’s where we need to be in the real world. From an innovation perspective, I describe in the book how “each of us holds competing ideas about the essence of innovation and conflicting views about the drive behind artistic and inventive work. The classic (no doubt romantic) image of invention is that of exogenous shocks, radical breakthroughs, and sweeping discoveries that revolutionize all that was before. The lone inventor is understood to be driven by a thirst for knowledge and a unique capacity to find what no one has seen before. But the solitude in the romantic image of the lone inventor or artist also leads to an image of the insignificance of place, environment, and ties…”.  Chapter 6 ends with the following visual:

 

Dualities of Innovation:

Individual / Collaborative

Radical/Incremental

Accidental /Deliberate

Global /Local

Passion / Profit

Art/Science

Exclusive/Shared

Inscribed/Tacit

 

And yet, the book takes on the contrarian title Talent Wants to Be Free! We are at a moment in history in which the pendulum has shifted too far. We have too much, not too little, controls over information, mobility and knowledge. We uncover this imbalance through the combination of a broad range of methodologies: historical, empirical, experimental, comparitive, theoretical, and normative. These are exciting times for innovation research and as I hope to convince the readers of Talent, insights from all disciplines are contributing to these debates.

1

A Time for Action: The Double Gain of Freer Regions and the Double Speak about Talent Droughts

As Catherine Fisk and Danielle Citron point out in their thoughtful reviews here and here, the wisdom of freeing talent must go beyond private firm level decisions; beyond the message to corporations about what the benefits of talent mobility, beyond what Frank Pasquale’s smartly spun as “reversing Machiavelli’s famous prescription, Lobel advises the Princes of modern business that it is better to be loved than feared.” To get to an optimal equilibrium of knowledge exchanges and mobility, smart policy is needed and policymakers must to pay attention to research. Both Fisk and Citron raise questions about the likelihood that we will see reforms anytime soon. As Fisk points out — and as her important historical work has skillfully shown, and more recently, as we witness developments in several states including Michigan, Texas and Georgia as well as (again as Fisk and Citron point out) in certain aspects of the pending Restatement of Employment — the movement of law and policy has actually been toward more human capital controls rather than less. This is perhaps unsurprising to many of us. Like with the copyright extension act which was the product of heavyweight lobbying, these shifts were supported by strong interest groups. What is perhaps different with the talent wars is the robust evidence that suggests that everyone, corporations large and small, new and old, can gain from loosening controls. Citron points to an irony that I too have been quite troubled by: the current buzz is about the intense need for talent, the talent drought, the shortage in STEM graduates. As Citron describes, the art and science of recruitment is all the rage. But while we debate reforms in schooling and reforms in immigration policies, we largely neglect to consider a reality of much deadweight loss of through talent controls.

The good news is that not only in Massachusetts, where the governor has just expressed his support in reforming state law to narrow the use of  non-competes, but also in other state legislatures , courts and agencies, we see a greater willingness to think seriously about positive reforms. At the state level, the jurisdictional variations points to the double gain of regions that void or at least strongly narrow the use of non-competes. California for example gains twice: first by encouraging more human capital flow intra-regionally and second, by its willingness to give refuge to employees who have signed non-competes elsewhere. In other words, the positive effects stem not only from having the right policies of setting talent free but also from its comparative advantage vis-à-vis more controlling states. This brain gain effect has been shown empirically: areas that enforce strong post-employment controls have higher rates of departure of inventors to other regions. States that weakly enforce non-competes are on the receiving side of the cream of the crop. One can only hope that legislature and business leaders will take these findings very seriously.

At the federal level, in a novel approach to antitrust the federal government recently took up the investigation of anti-competitive practices between high-tech giants that had agreed not to poach one another’s employee. This in fact relates to Shubha Gosh’s questions about defining competition and the meaning of free and open labor markets. And it is a good moment to pause about the extent to which we encourage secrecy in both private and public organizations. It is a moment in which the spiraling scandals of economic espionage by governments coupled with leaks and demand for more transparency require us to think hard. In this context, Citron is right to raise the question of government 2.0 – for individuals to be committed and motivated to contribute to innovation, they need some assurances that their contributions will not be entirely appropriated by concentrated interests.

0

The FTC and the New Common Law of Privacy

I recently posted a draft of my new article, The FTC and the New Common Law of Privacy (with Professor Woodrow Hartzog).

One of the great ironies about information privacy law is that the primary regulation of privacy in the United States has barely been studied in a scholarly way. Since the late 1990s, the Federal Trade Commission (FTC) has been enforcing companies’ privacy policies through its authority to police unfair and deceptive trade practices. Despite more than fifteen years of FTC enforcement, there is no meaningful body of judicial decisions to show for it. The cases have nearly all resulted in settlement agreements. Nevertheless, companies look to these agreements to guide their privacy practices. Thus, in practice, FTC privacy jurisprudence has become the broadest and most influential regulating force on information privacy in the United States – more so than nearly any privacy statute and any common law tort.

In this article, we contend that the FTC’s privacy jurisprudence is the functional equivalent to a body of common law, and we examine it as such. The article explores the following issues:

  • Why did the FTC, and not contract law, come to dominate the enforcement of privacy policies?
  • Why, despite more than 15 years of FTC enforcement, have there been hardly any resulting judicial decisions?
  • Why has FTC enforcement had such a profound effect on company behavior given the very small penalties?
  • Can FTC jurisprudence evolve into a comprehensive regulatory regime for privacy?

 

 

The claims we make in this article include:

  • The common view of FTC jurisprudence as thin — as merely enforcing privacy promises — is misguided. The FTC’s privacy jurisprudence is actually quite thick, and it has come to serve as the functional equivalent to a body of common law.
  • The foundations exist in FTC jurisprudence to develop a robust privacy regulatory regime, one that focuses on consumer expectations of privacy, that extends far beyond privacy policies, and that involves substantive rules that exist independently from a company’s privacy representations.

 

You can download the article draft here on SSRN.

0

Harvard Law Review Privacy Symposium Issue

The privacy symposium issue of the Harvard Law Review is hot off the presses.  Here are the articles:

SYMPOSIUM
PRIVACY AND TECHNOLOGY
Introduction: Privacy Self-Management and the Consent Dilemmas
Daniel J. Solove

What Privacy is For
Julie E. Cohen

The Dangers of Surveillance
Neil M. Richards

The EU-U.S. Privacy Collision: A Turn to Institutions and Procedures
Paul M. Schwartz

Toward a Positive Theory of Privacy Law
Lior Jacob Strahilevitz

1

Privacy Self-Management and the Consent Dilemma

I’m pleased to share with you my new article in Harvard Law Review entitled Privacy Self-Management and the Consent Dilemma, 126 Harvard Law Review 1880 (2013). You can download it for free on SSRN. This is a short piece (24 pages) so you can read it in one sitting.

Here are some key points in the Article:

1. The current regulatory approach for protecting privacy involves what I refer to as “privacy self-management” – the law provides people with a set of rights to enable them to decide how to weigh the costs and benefits of the collection, use, or disclosure of their information. People’s consent legitimizes nearly any form of collection, use, and disclosure of personal data. Unfortunately, privacy self-management is being asked to do work beyond its capabilities. Privacy self-management does not provide meaningful control over personal data.

2. Empirical and social science research has undermined key assumptions about how people make decisions regarding their data, assumptions that underpin and legitimize the privacy self-management model.

3. People cannot appropriately self-manage their privacy due to a series of structural problems. There are too many entities collecting and using personal data to make it feasible for people to manage their privacy separately with each entity. Moreover, many privacy harms are the result of an aggregation of pieces of data over a period of time by different entities. It is virtually impossible for people to weigh the costs and benefits of revealing information or permitting its use or transfer without an understanding of the potential downstream uses.

4. Privacy self-management addresses privacy in a series of isolated transactions guided by particular individuals. Privacy costs and benefits, however, are more appropriately assessed cumulatively and holistically — not merely at the individual level.

5. In order to advance, privacy law and policy must confront a complex and confounding dilemma with consent. Consent to collection, use, and disclosure of personal data is often not meaningful, and the most apparent solution – paternalistic measures – even more directly denies people the freedom to make consensual choices about their data.

6. The way forward involves (1) developing a coherent approach to consent, one that accounts for the social science discoveries about how people make decisions about personal data; (2) recognizing that people can engage in privacy self-management only selectively; (3) adjusting privacy law’s timing to focus on downstream uses; and (4) developing more substantive privacy rules.

The full article is here.

Cross-posted on LinkedIn.

0

Last Call for Contracts Survey

 

 

 

 

 

Contracts teachers are asked to complete a brief online survey to help the planning and execution of a symposium Washington Law Review is preparing to host on the exciting new book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter, by Lawrence A. Cunningham of George Washington University (published by Cambridge University Press in 2012).

This innovative text embraces a modern, narrative approach to contract law, exploring how cases ripped from the headlines of recent years often hinge on fundamental principles extracted from the classic cases that appear in contracts casebooks. Such an approach suggests new ways to imagine modern casebooks.  In addition to an article by Prof. Cunningham, the WLR will publish in its December 2013 issue  a half dozen pieces by many luminaries and notables, including:

Charles Knapp (NYU/Hastings)

Brian Bix (Minnesota)

Erik Gerding (Colorado)

Jake Linford (Florida State)

Jennifer Taub (Vermont)

To help these scholars and WLR editors with this effort, please fill out the online survey today!