Archive for the ‘Economic Analysis of Law’ Category
posted by Michael Simkovic
Here is the overview.
Here is the first part.
July 24, 2013 at 8:52 am Tags: Economic Value of a Law Degree, economics Posted in: Economic Analysis of Law, Education, Empirical Analysis of Law, Law Practice, Law School, Law Talk Print This Post No Comments
posted by Arnold Kling
I reviewed Mark Weiner’s Rule of the Clan from a libertarian perspective.
Libertarians are impressed by order that emerges in an unplanned, decentralized way. No one knows how to make a pencil, and yet through the decentralized process of market trading, pencils are made readily available. If making a pencil does not require a central planner, then why do we need a strong central government?
The Hobbesian answer is that without a strong central government, we would have the “war of all against all.” The libertarian response echoes Karl Kraus. Kraus famously said something to the effect that “psychoanalysis is the disease which it purports to cure.” Libertarians point out that the state, which purports to be the cure for the war of all against all, is the leading cause of violent death and incarceration.
Weiner’s book contains a message for libertarians that is decidedly mixed. He argues, on the one hand, that there is a decentralized order that is an alternative to a strong central government. On the other hand, this order is not at all libertarian.
The decentralized order that Weiner describes is the rule of the clan. It is a cultural system in which individuals lack what we think of as liberty. Instead, the individual is subordinate to the extended family.
Libertarians have been known to use medieval Iceland as an example proving that a strong central government is not needed to maintain order. Weiner describes medieval Iceland as an example of the clan-based system of order, but from his depiction it is clearly not a model of a libertarian society.
Weiner uses legal historian Henry Maine’s distinction between a Society of Status and a Society of Contract. Rule of the clan embodies a society of status. Libertarians want to see a society of contract.
Libertarians see the “contract theory” of existing states as a fiction. I never signed an agreement giving authority to the people and institutions of my federal, state, and local government. Instead, those people and institutions have decided unilaterally what authority they can exercise over me.
Is it possible to extend the society of contract, giving less asymmetric power to the people and institutions that constitute the government? Libertarians believes that the answer is “yes.” However, Weiner claims that wherever the people and institutions of government lack strong asymmetric power, what we observe is the rule of the clan. Libertarians are faced with the burden of showing that while he may be correct in describing the decentralized orders that we have observed, there may yet emerge a more decentralized order that does not degenerate into the rule of the clan.
posted by Frank Pasquale
If only Detroit were a big bank, Treasury officials would be working round the clock this weekend to save it. Alas, this city is no Citi. It lacks a “winning business model” (like lobbying and bonuses for key federal officials). So municipal bankruptcy is on the horizon.
This rise of [robotized manufacturing] violates the deal that the capitalists made with American consumers after the great Depression, which is that they would provide people with well-paying jobs and the workers in turn would buy the commodities the factories produced, in a cycle of consumerism. If the goods can be produced without many workers, and if the workers then end up suffering long-term unemployment (as Detroit does), then who will buy the consumer goods? Capitalism can survive one Detroit, but what if we are heading toward having quite a few of them?
posted by Michael Simkovic
“[Paul] Campos argues that low-earning lawyers may be less likely to participate in SIPP in the first place because of the stigma involved in admitting that, even anonymously.”
By email, Jerry Organ asks related questions about the representativeness of our sample.
“SIPP” is the United States Census Bureau’s Survey of Income and Program Participation, and is one of the primary data sources used in The Economic Value of a Law Degree. Campos worries about stigma and non-response. Thankfully SIPP is specifically designed to deal with these problems and to include impoverished and stigmatized members of the population, including those who receive government aid.
The Census Bureau explains SIPP’s purpose as follows:
”To collect source and amount of income, labor force information, program participation and eligibility data, and general demographic characteristics to measure the effectiveness of existing federal, state, and local programs; to estimate future costs and coverage for government programs, such as food stamps; and to provide improved statistics on the distribution of income and measures of economic well-being in the country.”
The Census Bureau elaborates on the use of SIPP to analyze participation in Food Stamps and other anti-poverty programs here.
Census explains in greater detail how SIPP handles issues related to response bias, non-response bias, and weighting here. SIPP oversamples in poor neighborhoods, imputes when necessary, and adjust the sample weights to approach a nationally representative sample.
It is about a good a survey as one is likely to find conducted by people who care a great deal about nonresponse and accurate estimates.
Additionally, to the extent that any lingering nonresponse bias may cause those with low earnings to be less inclined to participate, this bias will affect both law graduates and bachelor’s degree holders. What we measure in the Economic Value of a Law Degree is the earnings premium, or difference in earnings that is attributable to the law degree. The biases should wash out, or more likely, bias down our estimates of the law degree earnings premium, because bachelors are far more likely than law graduates to live in poverty.
Indeed studies that have compared earnings reported in SIPP to earnings from administrative data (tax and social security administration data) find that SIPP data underestimates earnings premiums because more highly educated and higher income individuals tend to underreport earnings, while less educated and lower income individuals tend to over report. We make no attempt to correct for this downward bias in our earnings premium estimates to offset any lingering selection on unobservables.
Individual response bias issues also won’t affect federal student loan default data, which is administrative data from the Department of Education. As noted in the article and in previous blog posts, former law students default on their student loans much less frequently than former students of bachelor’s degree or other graduate degree programs.
posted by Michael Simkovic
“The study blends the winners and losers, to come up with its $1,000,000, earnings figure, but that misses the point of my book: which is that getting a law degree outside of top law school – and especially at bottom law schools –is a risky proposition . . . Nothing in the article refutes this point.”
Professor Tamanaha is correct that the $1 million figure is an average, but we didn’t write a 70 page article with only one number in it.
The Economic Value of a Law Degree not only reports the mean or average—it reports percentiles, or different points in the distribution. At the 75th percentile, the pre-tax lifetime value is $1.1 million – $100,000 more than at the mean. At the 50th percentile, the value is $600,000. At the 25th percentile, the value is $350,000. These points in the earnings distribution do better than breaking out returns by school—they allow that even some people at good schools have bad outcomes (and vice versa). Thus we capture, and at length, exactly the concern Tamanaha expresses.
As we discuss in the article, for technical reasons related to regression of earnings to the median, our 75th and 25th percentile values are probably too extreme. The “75th percentile” value is likely closer to the 80th or 85th percentile for lifetime earnings, and the “25th percentile” is likely closer to the 20th or 15th percentile.
In other words, roughly the top 15 to 20 percent of law school graduates obtain a lifetime earnings premium worth more than $1.1 million as of the start of law school. Roughly the next 30 to 35 percent obtain an earnings premium between $1.1 million and $600,000. In the lower half of the distribution, roughly the first 30 to 35 percent obtain an earnings premium between $350,000 and $600,000. Roughly the bottom 15 to 20 percent obtain an earnings premium below $350,000. These numbers are pre-tax and pre-tuition.
Even toward the bottom of the distribution, even after taxes, and even after tuition, a law degree is a profitable investment. And that is before income based repayment, which can substantially reduce the risk at the bottom of the distribution.
We also present student loan default rates for 25 standalone law schools, most of which are low ranked institutions, and all of which have student loan default rates that are below the average for bachelor’s and graduate degree programs. The average law school default rate is approximately one third of the average default rate for bachelor’s and graduate programs.
People with law degrees are not immune from risk. No one is. But the law degree reduces the risk of financial hardship. Law degree holders face significantly less risk of low earnings than those with bachelor’s degrees, and also face lower risk of unemployment. Increased earnings and reduced risk appear to more than offset the cost of the law degree for the overwhelming majority of law students.
Frank McIntyre and I did not miss the point of Brian Tamanaha’s Failing Law Schools. Rather, we disagree with his conclusions about the riskiness of a law degree because data on law degree holders does not support his conclusions. We discuss Tamanaha’s analysis on pages 20 to 24 of The Economic Value of a Law Degree.
We believe that Professor Tamanaha’s views deserve more attention than we could give them in the Economic Value of a Law Degree. Because of this, last Spring, we also wrote a book review of Failing Law Schools, pointing out both the strengths and weaknesses of his analysis. We will make the book review available on SSRN soon.
If Professor Tamanaha disagrees with our estimates of the value of a law degree at the low end, we’re happy to hear it. But he should not say that we ignored the issue. We look forward to a productive exchange with him, on the merits.
posted by Frank Pasquale
Fables have been in the politico-economic air of late. The FT’s Martin Wolf considered the locust part of a master metaphor for the future of the global economy. He concluded that “the financial crisis was the product of an unstable interaction between ants (excess savers), grasshoppers (excess borrowers) and locusts (the financial sector that intermediated between the two).”
Now Geoff Mulgan has entered the fray with the excellent book The Locust and the Bee: Predators and Creators in Capitalism’s Future. As Mulgan observes,
If you want to make money, you can choose between two fundamentally different strategies. One is to create genuinely new value by bringing resources together in ways that serve people’s wants and needs. The other is to seize value through predation, taking resources, money, or time from others, whether they like it or not.
posted by Andrew Blair-Stanek
Why have sexual harassment and anti-smoking laws been so successful in changing entrenched social norms in the U.S. over the past few decades? In a 2000 U. Chicago Law Review article, Dan Kahan observed that combatting these ills took the approach of “gentle nudges,” imposing moderate remedies that were within the range of what decisionmakers (e.g. judges and juries) thought was reasonably proportional to the violation. Because these moderate remedies were enforced, norms shifted, and lawmakers could ratchet up the remedies. By contrast, Kahan observed that “hard shoves” imposing remedies substantially exceeding social norms fail to be enforced or to change norms. For example, France tackled sexual harassment by making it a criminal offense, which French society saw as vastly disproportionate. As a result, French sexual-harassment law went unenforced against conduct that would have easily incurred liability under U.S. law, and French norms barely shifted.
There is an underexplored connection between Kahan’s “gentle nudge” vs. “hard shove” dichotomy, and Calabresi & Melamed’s “property rule” vs. “liability rule” dichotomy. Calabresi & Melamed observed that remedies are either (1) liability rules, such as compensatory damages, or (2) property rules, such as injunctions or prison, which aim to deter. Liability rules generally overlap with “gentle nudges” in that they aim for proportional compensation. Property rules largely overlap with “hard shoves.”
The debate over the relative merits of property rules and liability rules has raged in academia and the courts. Bringing Kahan’s observations into the mix weighs in favor of liability rules, which are more likely to be enforced – and to shift norms.
I explore the relationship between these two dichotomies in sections II.C.3 and IV.C of a forthcoming article looking at IRS enforcement (or lack thereof). But their interrelationship is promising for anyone interested in either the property-rule/liability-rule debate or in altering social norms.
June 28, 2013 at 6:25 pm Tags: Calabresi and Melamed, gentle nudge, hard shove, Kahan, liability rules, property rules, taxes Posted in: Economic Analysis of Law, Employment Law, Law Rev (Virginia), Tax Print This Post 7 Comments
posted by Stephen Galoob
Day 2 of the conference saw a spirited panel (featuring Scott Shaprio, Ken Ehrenberg, Michael Guidice, and Brian Tamanaha) about the (ir)reconcilability of legal anthropology and sociolegal studies with analytic jurisprudence. Much of the discussion (not to mention the spirit) here concerned the appropriate definition of a “concept.” If that kind of question does not induce somnolence for you, then read on! Read the rest of this post »
posted by Andrew Blair-Stanek
Regardless of your take on the IRS targeting conservative groups applying for 501(c)(4) status, the episode demonstrates once again that Congress, the Administration, and the media have multiple avenues to pressure the IRS to act or to reconsider earlier actions. This susceptibility to political pressure has broad, counterintuitive implications for how to best deter violations of requirements throughout tax law.
In their path-breaking law & economics article, Calabresi & Melamed observed that every entitlement can be protected by either a property rule (e.g. injunctions, disgorgement of profits) or a liability rule (e.g. compensatory damages). The same is true in tax law. When a taxpayer violates a requirement for a favorable tax status, the tax code either imposes additional tax proportionate to the harm (a liability rule) or imposes the draconian penalty of taking away the tax status entirely (a property rule).
Which rule is most likely to deter a well-connected organization from violating a requirement imposed on it by tax law? At first glance, property rules (i.e. yanking the organization’s favorable tax status) appear to be the most effective deterrent. But the IRS routinely hesitates to take this draconian step, which would result in complaints to Congress, the Administration, the media, and other organizations. Even if the tax code, as written, imposes this property-rule remedy, the IRS can and often does decline to impose it in practice.
Examples of this problem abound throughout tax law. My favorite example is a real estate investment trust (or “REIT”) that had its IPO in 2007 and revealed in its SEC filing that it was in clear violation of one of the requirements (I.R.C. § 856(a)(2)) to qualify as a REIT for tax purposes. How brazen! But what was the IRS to do? The requirement is protected by a property rule: the only remedy available to the IRS was to take away the REIT’s favorable tax status entirely. This would have been draconian. All the REIT’s shareholders would have complained to their congresspersons, the financial press would have run stories, and the National Association of Real Estate Investment Trusts would have raised a ruckus. The IRS didn’t dare impose this property-rule remedy. The IRS did nothing, and the REIT suffered no consequences for the violation.
Would this REIT have been so brazen if the requirement had, instead, been protected by a liability rule, which would merely have imposed additional tax proportional to the violation? Almost certainly not. And that is the counterintuitive result: liability rules are often more effective in practice than draconian property rules in deterring taxpayers from violating tax-law requirements.
The relative merits of property rules and liability rules in tax law are explored in depth by this forthcoming Virginia Law Review article.
June 4, 2013 at 11:18 am Tags: Calabresi and Melamed, law and economics, liability rules, property rules, tax law Posted in: Economic Analysis of Law, Law Rev (Virginia), Tax Print This Post 2 Comments
posted by Jay Kesten
Before I sign off, I’d like to thank Danielle et al. for their hospitality. I’m very glad to have had this opportunity to share some of my thoughts, and to get some great feedback. Let me finish up by offering an alternative rationale – grounded in public choice theory – for limited shareholder authority over corporate political spending.
Shareholder regulation of corporate political activity may not only decrease agency costs within the firm, it may improve overall societal welfare. First, diversified shareholders might be able to constrain the costs of rent-seeking behavior that merely redistributes wealth between portfolio firms. Second, all shareholders may want to reduce the possibility of political extortion by removing from management the final say on certain kinds of political expenditures. Allowing shareholders to regulate corporate political activity could limit these social welfare-decreasing activities, and channel corporate resources to more productive uses. I sketch these arguments in more detail below. Read the rest of this post »
posted by Jay Kesten
Nearly half a century ago, Albert Hirschman formalized two ways in which members of organizations could express their displeasure: exit and voice. Exit is market-based expression, and is typically quiet, impersonal and cheap. Voice, by contrast, is political expression — it is usually loud, messy, and expensive. From an efficiency perspective, exit is thus generally favored as a matter of institutional design.
Corporate law largely track Hirschman’s theory. Shareholders’ voice rights are, by default, quite constricted, and the business judgment rule imposes an important limitation on seeking judicial remedies. In most cases, unhappy shareholders’ only practical method of expressing their discontent is to exit the firm by selling their shares.
But Hirschman warns that in certain circumstances, such as where the barriers to exit are sufficiently high, it is preferable to adjust institutional design to facilitate or strengthen members’ voice rights. Corporate political activity presents exactly such a case, because the standard shareholder remedies – suing, voting for the board of directors, and selling their shares – are either unavailing or exceptionally costly. I treat this range of options in more detail elsewhere, but below I will briefly describe these problems with a focus one key area in which corporate political activity differs markedly from other types of corporate action, and then turn to an important objection. Read the rest of this post »
posted by Ryan Calo
Judge Richard Posner took the occasion of the Boston bombing to remind us of his view that privacy should lose out to other values. Privacy, argues Judge Posner, is largely about concealing truths “that, if known, would make it more difficult for us to achieve our personal goals.” For instance: privacy helps the victims of domestic violence achieve their personal goal of living free from fear; it helps the elderly achieve their personal goal of staying off of marketing “sucker lists;” and it helps children achieve their personal goal of avoiding sexual predators online.
To be fair, Judge Posner acknowledges that some concealment is fine and that privacy laws may even “do some good.” He worries rather about civil libertarians who would limit the expansion of surveillance to the point that we can neither deter, nor apprehend terrorists like the men responsible for bombing the marathon. “There is a tendency to exaggerate the social value of privacy,” Judge Posner believes, and it just might get us killed.
Judge Posner is a founding member of the law and economics movement and, as such, it would seem fair to analyze his claim from the perspective of incentives. Does video surveillance deter crime in general? Empirical evidence suggests that cameras merely displace crime, and Judge Posner concedes that picking terrorists out of a crowd before they act is impracticable. Does video surveillance help with identification? Sure. But the quick identification of the Boston bombers from private footage suggests we have enough surveillance. Moreover, hardened terrorists have proven willing to die in an attack, making identification moot.
Then there are the unintended consequences—a mainstay of economic analyses of the law. The fact that an act of terrorism will be caught on video and spread to every screen in America greatly enhances its intended impact, which in turn makes the option more attractive to our enemies.
One can quibble with my data points. But any honest, empirically-informed cost-benefit analysis of additional surveillance will yield at best a mixed picture. I submit that Judge Posner’s argument yesterday is dead wrong by the terms of the very movement he founded.
posted by Taunya Banks
The original title for this post was The People’s Supreme Court? because it was triggered by an article in last week’s New York Times about the increased use by law firms of place-holders (paid stand-ins) for seats at the United States Supreme Court. According to the article, “place holding is common at Congressional hearings and is on the rise at the Supreme Court, where seats for last month’s arguments went for as much as $6,000.” An earlier piece, published around the time the same-sex marriage cases were argued, noted that the practice has its detractors, including former Congressman Barney Frank, whose proffered remedy is televised Supreme Court arguments.
I changed the title of this post after an incident on Friday. While returning to my law school midday I passed a scraggly group picketing in front of a neighboring Marriott Hotel. The signs said that the protesters were picketing because the Carpenters Union had a beef with the management. As my very general description suggestions, I did not look at the signs too closely. I was distracted because many of the protests were so drunk or drugged that they could not walk in a circle. A colleague with whom I was walking informed me that some labor unions now hire homeless people to walk picket lines for them. Surely the Union did not think that the picketing would be effective. I was astonished that actual Union members were shirking their membership responsibilities, but did I have a right to be appalled?
Hiring stand-ins for pay is a very American institution. Read the rest of this post »
posted by Frank Pasquale
I was honored to see Prof. John Banzhaf weigh in on a recent post on wellness programs. That post suggested parallels between the addictiveness of tobacco, and that of many food products. Little did I know the NYT was about to publish a blockbuster article on exactly that issue:
[In a 1999 meeting of food industry leaders,] [t]he first speaker was a vice president of Kraft named Michael Mudd. . . . As he spoke, Mudd clicked through a deck of slides — 114 in all — projected on a large screen behind him. The figures were staggering. More than half of American adults were now considered overweight, with nearly one-quarter of the adult population — 40 million people — clinically defined as obese. Among children, the rates had more than doubled since 1980.
Mudd then did the unthinkable. He drew a connection to the last thing in the world the C.E.O.’s wanted linked to their products: cigarettes. First came a quote from a Yale University professor of psychology and public health, Kelly Brownell, who was an especially vocal proponent of the view that the processed-food industry should be seen as a public health menace: “As a culture, we’ve become upset by the tobacco companies advertising to children, but we sit idly by while the food companies do the very same thing. And we could make a claim that the toll taken on the public health by a poor diet rivals that taken by tobacco.”
Illustration: Via Engadget article on interactive ad patents.
posted by Deven Desai
Ghostbusters, Die Hard, my lunch in grade school all had Twinkies (OK my lunch also alternated with Ding Dongs). In Ghostbusters the Twinkie symbolized psychokinetic energy, in Die Hard it substituted for a cop’s doughnuts, in my lunch it was I guess dessert but substituted for real food. The Wall Street Journal reports, however, that the era is over. Hostess Brands, Inc. is seeking permission to liquidate the company. It’s attempt at reorganization has failed. According to WSJ, “A victim of changing consumer tastes, high commodity costs and, most importantly, strained labor relations, Hostess ultimately was brought to its knees by a national strike orchestrated by its second-largest union.”
There are real people, places, and assets behind these brands. 18,000 workers will lose their jobs. 36 plants will close. The facilities and land will be sold. There is product inventory too. “Loaves of bread and plastic packages of icing-filled desserts” need to go. WSJ suggested that big box stores will be where the food stuff ends up. I remember when Coke changed its formula and folks hoarded the original Real Thing. I wonder whether that will happen with Twinkies. (Given the supposed shelf-life of a Twinkie, a strange pastry cellar built for and owned by some fanatic seems plausible to me).
And, Hostess Brands will sell…its brands. That is where the most money may be made. As I point out in From Trademarks to Brands, brands are not the same thing as trademarks. In the early days of trademarks, one could not sell a brand without the facilities. Today the brand as assest is a given. Selling it as thing is sanctioned by the law even though such practices do not do well within the law economics explanations for trademarks. I argue that a way to understand the move from direct competition to anonymous source, the growth of goodwill, and the expansive view of merchandising and licensing can be explained by brand practices much more than Landes and Posner’s law and economics view. (64 Florida L. Rev. 981, 1009-1019).
I wonder how folks will perceive the sale. If a company buys the name Twinkie or Ding Dong and then makes the cakes with different ingredients or sources for the ingredients, will that matter? What if the taste varies? What if in a year people think Hostess still makes Twinkies and buys the brand based on that error? Is that confusion we care about? Maybe we should not care about any of these. Then again if someone buys Twinkie and uses a new recipe, and then someone makes Twinkies with the original recipe, should that be allowed? Probably not but why is unclear. A healthy market that assumes rational consumers should be able to let information about such variances drive the market, right? Of course we don’t do that in trademark law.
Hmm, perhaps some sugar will help fuel thinking through these points. Better get Twinkies and Ding Dongs before this incarnation is gone.
posted by Deven Desai
Everyone thinks jobs are being outsourced; they are, in fact, being desourced. When Mitt Romney claims he will create jobs, when Barak Obama claims the same, when Google, Apple, or Amazon assert they build out the economy, they all overstate. Worse, they ignore the reality that both manufacturing and service jobs are dying. Robots, artificial intelligence, and the new information-at-scale industries all but assure that outcome. The ability to build and sell without humans is already here. I am not saying that these shifts are inherently bad. They may even be inevitable. What we do next is the question. To answer that question, we need to understand the ways humans will be eliminated from manufacturing and service jobs. We need to understand what I call desourcing.
Focus on manufacturing is a distraction, a sideshow; so too is faith in service jobs. A recent New York Times article about Apple, noted that manufacturing accounts for only about eight percent of the U.S. labor force. And, The Atlantic’s Making It in America piece shows how manufacturing is being changed by robots and other automation. According to some, the real engine is service labor “and any recovery with real legs, labor experts say, will be powered and sustained by this segment of the economy.” That is where desourcing comes in. Many talk about the non-career path of service sector jobs. A future of jobs that have low pay and little room to rise is scary and a problem. Amazon explains why that world might be heaven.
The world of low wage, high stress service work is being replaced by automation. Amazon gave up its fight against state taxes, because it is moving to a model of local distribution centers so that it can deliver same-day delivery of goods. According to Slate, Amazon will spend more than $1 billion to build centers all over the U.S. and hire thousands of people for those centers. The real story is that like any company Amazon wants to reduce operation costs; it must automate or perish as Technology Review put it. It will do that, in part, by using robots to handle the goods. Self-driving cars and autonomous stocking clerks are the logical steps after ATMs and self-serve kiosks at movie theaters and grocery stores. I am always amazed at the folks who line up at movie theater ticket windows rather than use the kiosks. A friend said to me that we should walk up to the window to keep those jobs. It is a nice idea, but I think untenable. We all want to move faster and pay less. Welcome to desourcing.
Desourcing means reducing or eliminating humans from the production or service equation. Humans are friction points. More and more we can reduce those points of contact. We no longer need to send work to other humans.
There are many economic questions that are beyond what can be addressed in a short piece. But here are some ideas on which to chew. The returns from this approach are tremendous for the companies that desource. For example, by one account, Apple makes $473,000 per employee; yet “About 30,000 of the 43,000 Apple employees in this country work in Apple Stores, as members of the service economy, and many of them earn about $25,000 a year.” So we may satisfy our need for instant gratification as companies reduce their costs, but that money will go to corporate bottom lines. Whether it will really reach the rest of the economy is not so clear precisely because a smart company will invest in desourcing. I suppose at some point companies will have to realize that they need masses who can buy stuff. Yet I think some studies indicate that serving the upper end of the economy works better than serving the masses. In theory, a company may offer goods at lower prices but to do that, it will need lower production costs. And less workers means lower costs.
I am not saying I know what will solve this riddle. I offer desourcing, because I have not seen a satisfying answer to the issue. There may not be one; for we may be stil sorting what to do as the digital age takes full hold. As the computer science folks say in early training, “Hello world.”
posted by Mike Carroll
Like the other commenters on From Goods to a Good Life, I also enjoyed the book and applaud Professor Sunder’s initiative in engaging more explicitly in the values conversation than has been conventionally done in IP scholarship. I also agree with most of what the other commenters have said. I want to offer plaudits, a few challenges, and some suggestions about future directions for this conversation.
September 21, 2012 at 11:13 am Posted in: Book Reviews, Civil Rights, Culture, Cyberlaw, Economic Analysis of Law, Innovation, Intellectual Property, Jurisprudence, Law and Humanities, Law and Inequality, Politics, Property Law, Symposium (From Goods to a Good Life), Technology, Trade Print This Post No Comments
posted by Dave Hoffman
So this is interesting:
“The mediator who managed the Sept. 11 victims-compensation fund and settlements with those affected by the 2010 BP Gulf oil spill has been hired by Pennsylvania State University in the hope of settling the civil claims of Jerry Sandusky’s victims.
The university announced Thursday that it had hired Kenneth R. Feinberg to facilitate negotiations for the four current lawsuits and more expected to be filed by those sexually abused by the former assistant football coach.”
One way to read this is that PSU is going to make available a large pool of money to a diverse victim class, and has hired Feinberg for his expertise dividing complex pies in ways that leave most folks relatively satisfied. But there’s another reading that seems at least plausible. Associating with Feinberg transmutes the human errors which enabled Sandusky’s crimes into a “disaster”, implying less particularized responsibility. Plaintiffs refusing to partake in the common pool can potentially be framed as selfish, grasping, etc. That so even though almost by definition, these disaster pools allocate less money to every plaintiff than their individual claims are “worth”.
posted by Deven Desai
Why bother to have intellectual property rights? That question is the question for IP. Madhavi Sunder has answers. Some excellent work on the subject has looked at whether economics has new answers about IP rights and their structure. Others have taken a hard look at whether any economic argument works. Like books by James Boyle, Brett Frischmann, and Julie Cohen, Sunder’s book runs right at intellectual property law and tackles the hard question. Sunder proposes that we have left off asking what is the good; not just the good produced but the good for all of us. In the tradition of critique she asks about power dynamics and whether free culture is also fair culture. She forces us to consider the realities of exchange culture and rules that bind our ability to engage and thus limit our freedom to author ourselves. In my work on trademarks, brands, and culture, I looked at specific ways we have moved from one-way mass market systems to two-way interactive ones as I questioned whether trademark rules make sense and improve society. I love this book because Sunder takes this point and drills into local, national, and global levels. She challenges current narratives about how and why we create with concrete examples of overflowing creation, unfair results, and troubling societal outcomes all of which abound despite claims about incentives and social welfare creation in IP law. Still, she believes the law has the foundations for “plural values at stake in cultural production.” Her prescription is that we should be “ripping, mixing, and burning” law to get to the world where we have not only goods, but a good life. I recommend the book and look forward to our discussion here at Concurring Opinions.
September 11, 2012 at 1:40 am Posted in: Culture, Cyberlaw, DRM, Economic Analysis of Law, Innovation, Intellectual Property, Symposium (From Goods to a Good Life), Web 2.0 Print This Post No Comments
posted by Deven Desai
This week Concurring Opinions is hosting a symposium on Madhavi Sunder’s From Goods to a Good Life (Amazon) published by Yale Press which offers a preview. Madhavi’s work has pushed how many colleagues and I think about intellectual property. I am honored to organize this discussion.
I have more to say about the book, but to whet your appetites, I offer this quote:
The full cultural and economic consequences of intellectual property policies are hidden. We focus instead on the fruits of innovation—more iPods, more bestsellers, more blockbuster drugs—without concern for what is being produced, by whom, and for whose benefit. But make no mistake: intellectual property laws have profound effects on human capabilities…
The symposium will include contributions from Mike Carroll, Laura DeNardis, Brett Frischmann, Mike Madison, Mark McKenna, Frank Pasquale, Zahr Said, Lea Bishop Shaver, Jessica Silbey, and Molly Van Houweling.
September 10, 2012 at 11:24 pm Posted in: Culture, Cyberlaw, DRM, Economic Analysis of Law, Innovation, Intellectual Property, Political Economy, Symposium (From Goods to a Good Life), Web 2.0 Print This Post 7 Comments