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posted by Orly Lobel
Peter Lee’s thoughtful review of Talent Wants to Be Free goes straight to the heart of the issues. Peter describes a “central irony about information” – so many aspects of our knowledge cannot lend themselves to traditional monopolization through patents and copyright that their appropriation is done under the radar, through the more dispersed and covert regimes of talent wars rather than the more visible IP wars. We’ve always understood intellectual property law as a bargain: through patents and copyright, we allow monopolization of information for a limited time as a means to the end of encouraging progress in science and art. We understand the costs however and we strive as a society to draw the scope of these exclusive rights very carefully. and deliberately. We have heated public debates about the optimal delineation of patents, and we are witnessing new legislative reforms and significant numbers of recent SCOTUS cases addressing these tradeoffs. But patents are only a sliver of all the information that is needed to sustain innovative industries and creative ventures. Without much debate, the monopolization of knowledge has expanded far beyond the bargain struck in Article I, Section 8 of the Constitution. Through contractual and regulatory law, human capital – people themselves - their skills and tacit knowledge, their social connections and professional ties, and their creative capacities and inventive potential are all the subject to market attempts, aided by public enforcement, of monopolization. Peter refers to these as tacit versus codified knowledge; I think about inputs, human inventive powers versus outputs – the more tangible iterations of intangible assets – the traditional core IP, which qualifies patentability to items reduced to practice (rather than abstraction) and copyrightable art to expressions (rather than ideas). Cognitive property versus intellectual property, if you will.
Lee is absolutely correct that university tech transfer and its challenges and often discontent is highly revealing in this context of drawing fences around ideas and knowledge. Lee writes “in subtle ways, Orly’s work thus offers a cogent exposition of the limits of patent law and formal technology transfer.” Lee’s recent work on tech transfer Transcending the Tacit Dimension: Patents, Relationships, and Organizational Integration in Technology Transfer, California Law Review 2012 is a must read. Lee shows that “effective technology transfer often involves long-term personal relationships rather than discrete market exchanges. In particular, it explores the significant role of tacit, uncodified knowledge in effectively exploiting patented academic inventions. Markets, patents, and licenses are ill-suited to transferring such tacit knowledge, leading licensees to seek direct relationships with academic inventors themselves.” And Lee’s article also uses the lens of the theory of the firm, the subject of the exchanges here, to illuminate the role of organizational integration in transferring university technologies to the private sector. I think that in both of our works, trade secrets are an elephant in the room. And I hope we continue to think more about how can trade secrets, which have been called the step child of intellectual property, be better analyzed and defined.
November 13, 2013 at 12:30 pm Posted in: Behavioral Law and Economics, Bioethics, Contract Law & Beyond, Corporate Law, Intellectual Property, Law and Psychology, Symposium (Talent Wants to be Free), Technology, Uncategorized Print This Post No Comments
posted by Orly Lobel
Both Vic Fleisher and Shubha Ghosh in their thoughtful commentary about Talent Wants to Be Free invoke the theory of the firm to raise question about the extent of desirable freedom in talent and knowledge flows. In its basic iteration, the theory of the firm suggests that arms-length contracting will not be optimal when one party has the ability to renegotiate and hold the other party up, which is the conventional rational for the desirability of talent controls. This is what I describe in the book as the Orthodox Model of employment intellectual property: firms fear making relational investment in employees and then having the employees renegotiate the contract under a threat of exit. Firms respond through mobility restrictions aimed at eliminating the transaction costs of this kind of opportunism. In the book, I accept, at least for some situations, this aspect of the benefits and confidence that are created for firms in internalizing production and ensuring ongoing loyalty by all players. The orthodox model thus explains post-employment controls as necessary to encourage optimal investment within the corporation. More company controls = more internal R&D and human capital investment. The new model developed in the book doesn’t deny these benefits but argues that the orthodox model is incomplete. The Dynamic-Dyadic Model asks about the costs and benefits when controls are employed. It suggests that yes, often, protecting human capital and trade secret investments is often in the immediate interest of a company, but that too much control becomes a double-edged sword. This is because of both the demotivating effects on employee performance when lateral markets are reduced and because over-time, although information leakage and job-hopping by talented workers may provide competitors with undue know-how, expertise, and technologies, constraining mobility reduces knowledge spillovers and information sharing that outweigh the occasional losses. The enriched model is supported by a growing body of empirical evidence that finds that regions with less controls and more talent freedom, such as California, have in fact more R&D investment, quicker economic growth and greater innovation.
Vic is of course right that one solution to this problem is to recreate high-powered (market-like) incentives for performance within the firm. This is an aspect that I am greatly interested in and I analyze it in Talent Wants to Be Free as the question of whether controls and restrictions can effectively alternate with the carrots of performance-based compensation, vesting interests, loyalty inducing work environments, employee stock options and so forth. I too like Shubha am a fan of Hirschman’s Exit, Voice, and Loyalty and have found it useful in analyzing employment relations. I view the behavioral research as shedding light on these questions of what these intra-firm incentives need to look like in order to preserve the incentive to innovate. In a later post I will elaborate on the monitoring and motivational tradeoffs that exist in individual and group performance.
More generally, though, the research suggests that at least in certain industries, most paradigmatically fast-paced, high-tech fields, innovation is most likely when the contracting environments have thick networks of innovators that are mobile (i.e. Silicon valley) and firms themselves are horizontally networked. The flow of talent and ideas is important to innovation and rigid boundaries of the firm can stifle that interaction even with the right intra-firm incentives. The benefits in terms of innovation rise in these structures of denser inter-firm connections, but also, the costs of opportunism that drive the conventional wisdom are in fact lower than the traditional theory of the firm would predict. This is because talent mobility is a repeated game and at any given moment, a firm can be on either side of the raiding and poaching. Policies against talent controls have the effect of reducing the costs of opportunistic renegotiation by ensuring the firm can hire replacement innovators when it loses its people. To push back on Vic’s phrasing, talent wants to be appreciated and free. MIT economist Daron Acemoglu’s analysis of investments and re-investments in workers as a key ingredient of production and growth is helpful in understanding some of this dynamic. People invest in their own human capital without knowing the exact work they will eventually do, just as companies must make investment decisions in technology and capital funds without always knowing who they will end up hiring. Acemoglu describes the positive upward trajectory under these conditions of uncertainty: When workers invest more in their human capital, businesses will invest more because of the prospects of acquiring good talent. In turn, workers will invest more in their human capital as they may end up in one or more of these companies. The likelihood of finding good employers creates incentives for overall investments in human capital.
November 13, 2013 at 1:12 am Posted in: Behavioral Law and Economics, Economic Analysis of Law, Empirical Analysis of Law, Employment Law, Innovation, Intellectual Property, Symposium (Talent Wants to be Free), Technology, Uncategorized Print This Post No Comments
posted by Orly Lobel
This is a thrilling week for Talent Wants to Be Free. I am incredibly honored and grateful to all the participants of the symposium and especially to Deven Desai for putting it all together. It’s only Monday morning, the first official day of the symposium, and there are already a half a dozen fantastic posts up, all of which offer so much food for thought and so much to respond to. Wow! Before posting responses to the various themes and comments raised in the reviews, I wanted to write a more general introductory post to describe the path, motivation, and goals of writing the book.
Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids and Free Riding comes at a moment in time in which important developments in markets and research have coincided, pushing us to rethink innovation policy and our approaches to human capital. First, the talent wars are fiercer than ever and the mindset of talent control is rising. The stats about the rise of restrictions over human capital across industries and professions are dramatic. Talent poaching is global, acquisition marathons increasingly focus on the people and their skills and potential for innovation as much as they look at the existing intellectual property of the company. And corporate espionage is the subject of heated international debates. Second, as a result of critical mass of new empirical studies coming out of business schools, law, psychology, economics, geography, we know so much more today compared to just a few years ago about what supports and what hinders innovation. The theories and insights I develop in the book attempt to bring together my behavioral research and economic analysis of employment law, including my experimental studies about the effects of non-competes on motivation, my theoretical and collaborative experimental studies about employee loyalty and institutional incentives, and my scholarship about the changing world of work, along with theories about endogenous growth and agglomeration economies by leading economists, such as Paul Romer and Michael Porter, and new empieircal field studies by management scholars such as Mark Garmaise, Olav Sorenson, Sampsa Samila, Matt Marx, and Lee Fleming. Third, as several of the posts point out, these are exciting times because legislatures and courts are actually interested in thinking seriously about innovation policy and have become more receptive to new evidence about the potential for better reforms.
As someone who teaches and writes in the fields of employment law, I wrote the book in the hopes that we can move beyond what I viewed as a stale conversation that framed these issues of non-competes, worker mobility, trade secrets and ownership over ideas as labor versus business; protectionism versus free markets (as is often the case with other key areas of my research such as whistleblowing and discrimination). A primary goal was to shift the debate to include questions about how human capital law affects competitiveness and growth more generally. Writing about work policy, my first and foremost goal is to understand the nature of work in its many evolving iterations. Often in these debates we get sidetracked. While we have an active ongoing debate about the right scope of intellectual property, under the radar human capital controls have been expanding, largely without serious public conversation. My hope has been to encourage broad and sophisticated exchanges between legal scholars, policymakers, business leaders, investors, and innovators.
And still, there is so much more to do! The participants of the symposium are pushing me forward with next steps. The exchanges this week will certainly help crystalize a lot of the questions that were beyond the scope of the single book and several new projects are already underway. I will mention in closing a couple of other colleagues who have written about the book elsewhere and hope they too will join in the conversation. These include a thoughtful review by Raizel Liebler on The Learned FanGirl, a Q&A with CO’s Dan Solove, and other advance reviews here. Once again, let me say how grateful and appreciative I am to all the participants. Nothing is more rewarding.
November 11, 2013 at 5:25 pm Posted in: Behavioral Law and Economics, Book Reviews, Corporate Law, Economic Analysis of Law, Empirical Analysis of Law, Employment Law, Innovation, Intellectual Property, Symposium (Talent Wants to be Free), Technology, Uncategorized Print This Post No Comments
posted by Thomas Healy
Because there are no arguments at the Supreme Court today and because I was too busy to post last week, I want to take this opportunity to offer some thoughts about Wednesday’s argument in Town of Greece v. Galloway, the case involving legislative prayer before a municipal body.
Most accounts of the argument suggest that the Court is likely to uphold the town’s practice of opening its meetings with a prayer in spite of the fact that the prayers have been overwhelmingly sectarian in nature. I agree with this prediction. Although Justice Kennedy seemed uncomfortable with the idea of relying exclusively on history to support legislative prayer, it seems doubtful that he would join the four liberal members of the Court to strike down the practice. Even some of the liberal justices expressed concern at the prospect of embroiling the Court in the difficult question of what makes a prayer sectarian. As Justice Kagan stated near the end of the argument, “it’s hard because the Court lays down these rules and everybody thinks that the Court is being hostile to religion and people get unhappy and angry and agitated in various kinds of ways.”
But what interests me more than the likely outcome of the case is the test the Court will use to analyze the town’s practice. The Second Circuit struck down the prayer under the endorsement test, which holds that governmental action violates the Establishment Clause when it sends a message of endorsement or disapproval of religion. The endorsement test was introduced by Justice O’Connor in the mid-1980s and has been embraced by a majority of the Court in several cases over the years.
During Wednesday’s argument, however, the endorsement test was barely mentioned. Part of this was due to the strategy of the plaintiff’s lawyer, Professor Douglas Laycock, who focused his argument entirely on the issue of coercion. The town’s practice of sectarian prayer amounts to coercion, Laycock argued, because citizens who bring petitions before the town council will feel pressured into participating in the prayer so as to avoid offending the council members they are petitioning. Read the rest of this post »
posted by Gerard Magliocca
I was in Washington on Thursday and had a quick look at Justice Sutherland’s opinions. I found quite a bit of interest, though I’m still in my researching and “do-I-want-to-write-this-book” phase.
One thing worth mentioning now. Senator Sutherland voted for the statute that banned the interstate transport of goods made with child labor that was later struck down by the Court in Hammer v. Dagenhart. He explained that while there were doubts about the validity of such a prohibition, he thought that he should swallow those doubts unless they were strong and given that child labor was so evil. I don’t know what he thought about the Court’s subsequent cases, as he was not a Justice in either Hammer or the Child Labor Tax Cases.
posted by Peter Lee
Orly’s ambitious and thought-provoking book covers a significant amount of intellectual ground. She deftly navigates covenants not to compete, nondisclosure agreements, trade secrets, and intellectual property assignments to provide a compelling argument for the free flow of talent in the modern economy. Orly’s work raises a host of questions that space constraints no doubt prevented her from more fully exploring, and I would encourage her to extend her analyses in subsequent work.
One aspect of Orly’s work that I found particularly intriguing is that it reveals a central irony about information. The title of her book is a play on Stewart Brand’s famous phrase “information wants to be free.” While this statement has a contemporary ring, the observation that information is “slippery” and readily appropriable has a long pedigree and has had significant legal and policy ramifications. As Orly notes, Thomas Jefferson invoked the freely appropriable nature of technical information to help justify exclusive rights on inventions. More formally, economists have long characterized technical knowledge as a public good that is nonrival, nonexcludable, and capable of nearly costless transmission. The “slipperiness” of technical information is now largely taken for granted and provides significant theoretical justification for exclusive rights on knowledge assets. Indeed, IP scholars such as Polk Wagner have argued that information’s natural tendency to slip through cracks and build upon itself should alleviate concerns that strict exclusive rights can bottle up knowledge. Information, after all, wants to be free.
Orly’s account of the talent wars, however, reveals that much information does not naturally want to be free. As Orly recognizes, much technical information is tacit and personal to a particular creator or inventor. Such tacit knowledge takes the form of intangible know-how that is difficult and sometimes impossible to codify. Importantly, even when an invention is disclosed in a patent, much valuable technical knowledge related to that invention often remains tacit and is not formally shared. The inadequacy of patent disclosure and the difficulty of transmitting tacit knowledge create a need for companies licensing patents to somehow obtain this information. This is evident, for example, in university patenting and technology transfer, a field that Orly addresses. Empirical accounts of academic technology transfer show that private companies, in parallel to licensing university patents, often seek direct interactions with faculty inventors precisely to obtain their patent-related tacit knowledge.
The tacit, sticky nature of technical information relates to another theme that permeates Orly’s work: agglomeration economies and the importance of place. In theory, patents adequately disclose the inventions they cover, which has the effect of reducing transaction costs in licensing negotiations. Among other implications, such ex ante disclosure should make licensing negotiations less sensitive to geographic proximity; at least with respect to appropriating technical knowledge, a potential licensee should not have a great need to interact directly with an inventor, for the patent itself discloses the technology. However, empirical studies of academic licensing show that licenses tend to cluster around licensor universities. To be sure, a host of factors helps explain such clustering, from universities’ commitment to local economic development to the spatially concentrated nature of professional networks (a theme that Orly also highlights). But the need for faculty inventors to literally sit down with licensee firms to convey patent-related tacit knowledge also contributes to such agglomeration. While some information can be transmitted by reading a patent a thousand miles away, sometimes transferring patent-related technical knowledge requires side-by-side demonstrations of a new technology or that ever-valuable personal conversation over a cup of coffee.
In subtle ways, Orly’s work thus offers a cogent exposition of the limits of patent law and formal technology transfer. In theory, the patent system provides a public repository of technical knowledge from which all can draw in their innovative pursuits. At the very least, licensees themselves should be able to rely on the disclosure of patents to adapt licensed inventions for commercial use. However, much information is not freely appropriable. Even when an invention is disclosed, much information remains tacit and personal to the inventor. Thus, patents are inherently limited as a vehicle for disclosing and transferring technologies, thereby creating a need for much costlier, geographically constrained, tacit knowledge transfer between individuals.
In a broader sense, Orly’s observations highlight an interesting paradox about the “freedom” of information. In the classic economic account, the ease of appropriating technical information represents a problem. This problem is resolved by subjecting technical information to exclusive rights, thus shoring up incentive to invent. However, Orly’s study reveals that much information is subject to a different problem: it is too difficult to appropriate, as it resists formal codification and disclosure. This creates a need for a different type of policy intervention, one that focuses on enhancing the mobility of the underlying sources of information—people—rather than information itself. Paradoxically, the fact that much information is not truly free provides all the more reason that the talent generating that information should be.
November 11, 2013 at 12:46 pm Tags: human capital, innovation, patent law, tacit knowledge Posted in: Innovation, Intellectual Property, Symposium (Talent Wants to be Free), Technology, Uncategorized Print This Post No Comments
Upcoming Boston University Law Review Symposium: America’s Political Dysfunction, Constitutional Connections, Causes, and Cures
posted by Danielle Citron
On November 15-16, 2013, the Boston University Law Review is hosting a terrific symposium entitled “America’s Political Dysfunction: Constitutional Connections, Causes, Cures.”
In recent years and especially in recent months, many have despaired over America’s political dysfunction. A conference at University of Texas asked, “Is America Governable?” Some, like Mann and Ornstein, have contended that “it’s even worse than it looks.” Others, like Levinson, have claimed that we face a “crisis of governance.” Schlozman, Verba, and Brady have criticized “the broken promise of American democracy,” Gutmann and Thompson have lamented the breakdown in “the spirit of compromise,” and Lessig has argued that we have “lost” our republic through the corruption of money.
More generally, there is considerable talk of dysfunction, breakdown, and failure in the air these days. Just consider these titles: Bruce Ackerman, The Failure of the Founding Fathers, not to mention The Decline and Fall of the American Republic; Ronald Dworkin, Is Democracy Possible Here?; Alan Wolfe, Does American Democracy Still Work?; and Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It), along with Framed: America’s 51 Constitutions and the Crisis of Governance.
BU Law Review is hosting a conference that will assess such claims about dysfunction, breakdown, and failure. But unlike some prior conferences, it will focus on constitutional connections, causes, and cures. Taking up the forms and manifestations of dysfunction, breakdown, and failure, the conference will ask “What, if anything, does the Constitution have to do with all this?” For example, are we experiencing a constitutional failure, as distinguished from a moral failure, a political failure, an institutional failure, or a failure of policy that may or may not be directly related to the Constitution? Are the lamented dysfunction, breakdown, and failure caused by the Constitution? Do they stem from a feature or defect of the Constitution? Do they result from constitutional requirements? Are they made more likely by our constitutional design?
The conference will address not only whether there are such constitutional connections to and causes of dysfunction, but also whether any proposed cures would likely alleviate it. For example, Putnam has proposed building social capital. Sandel and Ackerman have called for reinvigorating the civic and deliberative dimensions of political and constitutional discourse and practice. Seidman has proposed “giving up on the Constitution.” Levinson, Lessig, and Sabato have proposed amending the Constitution or holding a constitutional convention to adopt a new one. Will such proposals alleviate dysfunction or will the conditions giving rise to them virtually insure that they will fail?
The papers and proceedings will be published in Boston University Law Review.
This conference will take place in Barristers Hall. All – including not only professors, law students, graduate students, and undergraduates, but also alumni and the general public – are welcome to attend. To register, please contact Elizabeth Aggott, Events & PR Manager, at firstname.lastname@example.org. If you have academic questions about the program, please contact Professor James E. Fleming at email@example.com. Read the rest of this post »
posted by Gerard Magliocca
The review from the Civil War Book Review is here. Hopefully I will start getting some substantive posts up soon, but I’m in a busy stretch right now with conferences.
posted by Zephyr Teachout
It is axiomatic that the beginning of ideology is perception. If I do not perceive, for example, continuous identity (see Parfitt), then the concept of personal responsibility is at least troubled. If I perceive God to exist–with good intentions–some other beliefs flow from that. If I perceive a difference between acts and omissions, the ideology of “first, do no harm” is sensible; if I perceive no such difference it is not. And, within the realm of law, if I perceive markets and government as opposite, or private and public as distinct, various possible sets of ideologies flow from that. One cannot protect markets from the government if markets are the government, and one cannot protect the public sphere from the private if there is no difference. Some of these kinds of perceptions can be tested for their truthiness–others are neither true not true, just sets of perception categories.
It becomes easy, then, to support ideologies we are skeptical about by using the rhetorical framework which assumes a set of perceptions.
Something I’ve been wondering about recently: the role of the perception of the existence of corporations in ideology. Corporations can be described as existing–as most modern ideologies do–or there is no such thing as corporations, there are merely rights and obligations and liabilities that attach to people due to rules. The collection of rules can be corporate law without having to reify the corporation as a particle of the political and economic imagination. I haven’t fully worked this out yet, but my general, background guess is that the language of “corporations aren’t people,” much like “don’t think like an elephant,” actually creates the personification of corporations, which helps maintain and strengthen the sense of their existence–their inevitable existence–and the strengthening of the set of rights related to individuals because of corporate law. ”Corporations are evil,” or “are profit maximizing”–all do the same thing–they anthropomorphize a set of rules. That anthropomorphizing both condemns and naturalizes at the same time.
Inasmuch as some corporate rules might be socially beneficial, and others not, some de-naturalization of the corporate descriptor seems like it would be useful. In other words, trying to talk about corporate law without reifying corporations might actually do more to open up our imagination about corporate law.
posted by Gerard Magliocca
My talk at the National Constitution Center will air on Sunday at 10PM on C-Span Book TV.
UPDATE: Originally I said Saturday, but that was a mistake.
posted by Miriam Cherry
There are so many compelling ideas and stories about globalization and technology packed into Anupam Chander’s The Electronic Silk Road that it is difficult to select an appropriately blog-sized piece to discuss. Other commentators have noted the apt portmanteau “glocalization,” citing Chander’s insights into how harmonization of international trade principles must take into account both the global reach and local effects of technology and the trade in services. A difficult regulatory challenge to be sure, but one that provides Chander with rich intellectual material to analyze.
In the interest of covering as much of the book as possible, I wanted to use this blog post to discuss glocalization within Chapter Four, “Pirates of Cyberspace.” Here Chander discusses instances where a firm or organization may be frustrated with the law of its nation or a set of nations; and as a result decides to engage in regulatory arbitrage by moving offshore.
Traditionally the issue has been framed in the negative; as a jurisdictional “race to the bottom.” Local regulation is found to be “too burdensome” and some number of firms respond by moving offshore. Whether it is labor standards or corporate compliance, this leads critics to complain that these arbitrageurs are eroding hard-won rights – and opening the door to exploitation of workers, investors, or customers.
Implied in this chapter, however, is that while some sort of race may be inevitable, given competing regulatory regimes, it may not necessarily always be part of a race to the bottom. In fact, it may be that some forms of regulatory arbitrage may promote values that have grown in tandem with the Internet, such as free speech or the exchange of free information. For example, media and journalists are flocking to Iceland for favorable speech and blogging laws; Sweden has allowed Pirate Bay a refuge. These individuals or organizations may in some sense be “scofflaws,” but they may be promoting values that are at the very least be worthy of debate. (Of course one cannot help but wonder whether the “race to the bottom” or “race to the top” is somehow bound up with one’s ultimate feeling about the substantive regulations involved).
As Chander points out, if we are not careful, one jurisdiction’s laxity on some regulatory issue may end up deciding the rules globally. If regulation is determined by where services are rendered, local regulation may stamp out trade through its complexity. The challenge, then, of glocalization in the face of piracy or any type of regulatory arbitrage is to, in the words of Depeche Mode – “get the balance right.”
posted by Albert Wong
By Albert Wong and Valerie Belair-Gagnon, Information Society Project at Yale Law School
In a recent article in the Columbia Journalism Review, we reported that major US newspapers exhibited a net pro-surveillance bias in their “post-Edward Snowden” coverage of the NSA. Our results ran counter to the general perception that major media outlets lean “traditionally liberal” on social issues. Given our findings, we decided to extend our analysis to see if the same bias was present in “traditionally conservative” and international newspapers.
Using the same methods described in our previous study, we examined total press coverage in the Washington Times, one of the top “traditionally conservative” newspapers in the US. We found that the Washington Times used pro-surveillance terms such as security or counterterrorism 45.5% more frequently than anti-surveillance terms like liberty or rights. This is comparable to USA Today‘s 36% bias and quantitatively greater than The New York Times‘ 14.1% or the Washington Post‘s 11.1%. The Washington Times, a “traditionally conservative” newspaper, had the same, if not stronger, pro-surveillance bias in its coverage as neutral/”traditionally liberal”-leaning newspapers.
In contrast, The Guardian, the major UK newspaper where Glenn Greenwald has reported most of Snowden’s disclosures, did not exhibit such a bias. Unlike any of the US newspapers we examined, The Guardian actually used anti-surveillance terms slightly (3.2%) more frequently than pro-surveillance terms. Despite the UK government’s pro-surveillance position (similar to and perhaps even more uncompromising than that of the US government), the Guardian‘s coverage has remained neutral overall. (Neutral as far as keyword frequency analysis goes, anyway; the use of other methods, such as qualitative analysis of article tone, may also be helpful in building a comprehensive picture.)
Our extended results provide additional context for our earlier report and demonstrate that our analysis is “capturing a meaningful divide.”
On a further note, as several commenters suggested in response to our original report, the US media’s pro-surveillance bias may be a manifestation of a broader “pro-state” bias. This theory may be correct, but it would be difficult to confirm conclusively. On many, even most, issues, the US government does not speak with one voice. Whose position should be taken as the “state” position? The opinion of the President? The Speaker of the House? The Chief Justice? Administration allies in Congress? In the context of the Affordable Care Act, is there no “pro-state” position at all, since the President, the Speaker, and the Chief Justice each have different, largely irreconcilable views?
November 1, 2013 at 11:02 am Posted in: Anonymity, Civil Rights, Culture, Current Events, Cyber Civil Rights, Government Secrecy, Politics, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Technology, Uncategorized Print This Post 10 Comments
posted by Gerard Magliocca
(I posted this earlier in the week, but then realized that it would get in the way of the Symposium and took it down. Now it’s back up.)
THE PRIME MINISTER: I mean, why should we bug Hugh Halifax’s telephone? I mean, one of my own administration. Don’t know where they got such a daft idea. Sheer paranoia.
SIR HUMPHREY APPLEBY: Yes, the only thing is…
THE PM: I mean, why should we listen in to MPs? Boring, stupid ignorant windbags, I do my best not to listen to them. He’s only a PPS. I have enough trouble finding out what’s going on at the Ministry of Defence, what could he know?
SIR HUMPHREY: So I gather you denied that Mr Halifax’s phone had been bugged.
THE PM: Well, obviously. It was the one question today to which I could give a clear, simple, straightforward, honest answer.
SIR HUMPHREY: Yes. Unfortunately, although the answer was indeed clear, simple and straightforward, there is some difficulty in justifiably assigning to it the fourth of the epithets you applied to the statement inasmuch as the precise correlation between the information you communicated and the facts insofar as they can be determined and demonstrated is such as to cause epistemological problems of sufficient magnitude as to lay upon the logical and semantic resources of the English language a heavier burden than they can reasonably be expected to bear.
THE PM: Epistemological? What are you talking about?
SIR HUMPHREY: You told a lie.
PM: But it wasn’t my fault. I didn’t know he was being bugged.
BERNARD WOOLEY: Prime Minister, you are deemed to have known. You are ultimately responsible.
PM: Why wasn’t I told?
SIR HUMPHREY: The Home Secretary might not have felt the need to inform you.
THE PM: Why?
SIR HUMPHREY: Perhaps he didn’t know either. Or perhaps he’d been advised that you did not need to know.
PM: Well I did need to know.
BERNARD: Apparently the fact that you needed to know was not known at the time that the now known need to know was known, and therefore those that needed to advise and inform the Home Secretary perhaps felt that the information that he needed as to whether to inform the highest authority of the known information was not yet known and therefore there was no authority for the authority to be informed because the need to know was not at this time known or needed.
THE PM: What?
SIR HUMPHREY: We could not know that you would deny it in the House.
THE PM: Well, obviously I would if I didn’t know and I were asked.
SIR HUMPHREY: We did not know that you would be asked when you didn’t know.
THE PM: But I was bound to be asked when I didn’t know if I didn’t know.
SIR HUMPHREY: What?
posted by Vanderbilt Law Review
The Vanderbilt Law Review is pleased to announce the publication of our October 2013 issue:
L. Rush Atkinson, The Fourth Amendment’s National Security Exception: Its History and Limits, 66 Vand. L. Rev. 1343 (2013).
John M. Newman, Copyright Freeconomics, 66 Vand. L. Rev. 1409 (2013).
Monica Youn, The Chilling Effect and the Problem of Private Action, 66 Vand. L. Rev. 1437 (2013).
Keane A. Barger, Be a Liar or You’re Fired! First Amendment Protection for Public Employees Who Object to Their Employer’s Criminal Demands?, 66 Vand. L. Rev. 1541 (2013).
Cameron T. Norris, Your Right to Look Like an Ugly Criminal: Resolving the Circuit Split over Mug Shots and the Freedom of Information Act, 66 Vand. L. Rev. 1573 (2013).
Michael Snow, Seeing Through the Murky Vial: Does the FDA Have the Authority to Stop Compounding Pharmacies from Pirate Manufacturing?, 66 Vand. L. Rev. 1609 (2013).
Are you interested in writing a response to one of these pieces? Visit Vanderbilt Law Review En Banc for more details.
posted by Marc Poirier
United States v. Windsor, – U.S. –, 133 S.Ct. 2675 (2013), invalidated the federal Defense of Marriage Act (DOMA) on somewhat murky constitutional grounds. It also provided the catalyst for this month’s move to marriage equality under state constitutional law in New Jersey. But it did so in a most curious way.
In Lewis v. Harris, 908 A.2d 196 (N.J. 2006), a unanimous New Jersey Supreme Court had held that same-sex couples could not be denied the equal rights and benefits guaranteed by the New Jersey constitution. However, a four-person majority in Lewis demurred as to whether the state had to allow same-sex couples to marry, allowing the legislature instead to choose to create a new status that would provide the same rights and benefits as marriage, but with a different name. In short order the legislature enacted a Civil Union Act, which became effective in 2007.
From the outset, it was clear to marriage equality advocates that that civil union would not and could not convey the equal rights and benefits that Lewis v. Harris mandated. The New Jersey Civil Union Review Commission held hearings and made extensive findings to that effect, unanimously. But how to persuade either the courts or the legislature to make the move all the way to marriage equality? Both legislative and judicial mechanisms were deployed. As to litigation, there was an initial attempt in 2010 to return the matter directly to the New Jersey Supreme Court, by way of a motion in aid of litigant’s rights filed in Lewis v. Harris. It failed because the court determined, on a 3-3 vote, that an evidentiary record was necessary. 202 N.J. 340 (2010). It is this evidentiary trial process that Windsor short-circuited. Read the rest of this post »
October 29, 2013 at 12:08 pm Tags: civil union, domestic partnership, equal protection, fundamental right, liberty, marriage equality, Windsor v. United States Posted in: Civil Rights, Constitutional Law, Family Law, LGBT, Uncategorized Print This Post 3 Comments
posted by Zephyr Teachout
I have argued in several articles and a forthcoming book that the Anti-Corruption Principle was and is a foundational constitutional principle. Larry Lessig has argued the same in a book, several articles, and a brief before the Supreme Court. He also runs a fascinating tumblr of corruption conversations at the convention. We both show how it motivated the Constitutional convention and was the overwhelming topic of the convention. The founding drafters would judge their own success or failure in terms of the Constitution in terms of whether or not it protected against corruption. As George Mason said as the Constitutional Convention got under way: “If we do not provide against corruption, our government will soon be at an end.” I am not going to recite the argument here–its a substantial, text and history based argument. However, it leads to treating the Anti-Corruption Principle like federalism or the separation of powers–a fundamental structural part of the Constitution.
There are two general disagreements with this view: First, that I, and or Lessig, don’t characterize the meaning of corruption at the time properly (we have slight differences), and second, that it was not and is not a Constitutional principle. Seth Tillman, and Rob Natelson citing Seth Tillman, have both recently argued that there is no such principle. Tillman sees a kind of smoking-gun flaw with the argument–the evidence that the word “corruption” was taken out of the impeachment clause as a ground for impeachment.
Tillman writes: ”But when the Framers had a chance (actually multiple chances) to give this concept prominence in the Constitution’s actual text, the Framers chose not to do so. It is not as if they forgot to use this term or, instead, used some close synonym; rather, they actively took this term out of the Constitution. So why should we today embrace the corruption concept as one having constitutional scope or dimension?”
I have three responses. First, the absence of the word “corruption” does no more to the anti-corruption principle than the deliberate choice to exclude “separation of powers” does to the separation of powers principle. Second, the reason the word was taken out is because corruption is ill-suited to bad-intent criminal law statutes, and well-suited to prophylactic statutes or constitutional provisions that don’t reference state of mind. Tillman has a common confusion–he treats the scope of the word corruption as that which can be defined in a criminal-law like statute. Third, Tillman’s particular argument contrasts with his general support for the anti-corruption principle.
posted by Julie Goldscheid
A recent post reminds readers that the 2000 decision in U.S. v. Morrison, in which the Supreme Court struck the 1994 civil rights remedy enacted as part of the first Violence Against Women Act, eliminated a valuable remedy that held promise for survivors of gender violence. The post is correct that the civil rights remedy might have provided a remedy for the survivor in a recent rape case out of Maryville, Missouri, in which the prosecutors dropped charges. Indeed, while the civil rights remedy was in effect, it afforded relief for numerous survivors, in cases involving both domestic violence and sexual assault. A number of states laws still afford similar relief, some through laws providing civil remedies for survivors of gender violence that were enacted in response to the Morrison decision. These laws should be used whenever possible to provide compensation to survivors and to help shift enduring notions about “legitimate” rape, ideas that victims ask for abuse and lie about complaints, and other antiquated and discredited but nevertheless enduring stereotypes.
The loss of the civil rights remedy in Morrison need not mean the loss of civil rights advocacy for survivors of gender violence. Instead, we might think expansively about how to use existing remedies and how to develop new arguments and strategies. For example, recent efforts leverage civil rights laws to challenge law enforcement’s under-responsiveness as well as over-responsiveness to gender violence claims.
Civil rights campaigns should be conceived broadly; although the 1994 civil rights remedy took the form of a private right of action, civil rights strategies can address a range of inequities. The case of Marissa Alexander, comes to mind. She was convicted in Florida of aggravated assault with a deadly weapon, for firing what she described as a warning shot intended to make her husband, who had a documented history of violence, stop his threats and abuse. In stark contrast to George Zimmerman, she was not afforded immunity under Florida’s “stand your ground” law. The case was appealed, and the appellate court ordered a retrial, based on its conclusion that the trial court’s jury instructions on self-defense were erroneous (the court rejected her arguments that she should receive immunity under the “stand your ground” law). Advocates are calling on the prosecution, to drop the charges entirely.
Civil rights violations take a range of forms and require a range of responses. A combination of legal advocacy and grassroots organizing, even in the face of setbacks, holds the potential to advance the promise the 1994 civil rights remedy held, and to promote justice for survivors.
posted by Gerard Magliocca
Each of the bloggers here at CoOp gets to decide whether to permit comments on his or her posts. Starting next month, I’m going to experiment with a model that Andrew Sullivan uses on his blog. Sullivan does not allow comments on posts. Instead, he does follow-up posts with critiques from reader emails, plus (sometimes) his responses. This works well. Indeed, when he has polled his readers about whether they want comments, they always vote it down in favor of his system. Frank is also going to try the Sullivan approach, though he can speak for himself.
Here’s how this will work starting on Nov. 1. Email me comments on a post. If I want to reproduce what you’ve said in another post, I’ll ask if I can use your name or if you’d rather be anonymous.
I’ll try this for a month and see how it goes. This post, though, will have comments.
UPDATE: To repeat, I am going to try this for a MONTH to see how it works. I think some of you have unrealistically high expectations about the quality of my November posts.
posted by Frank Pasquale
Airlines’ push to lure high-paying fliers with flatbed business seats and premium economy loungers is leaving economy-class passengers with less space. A push over the past decade by carriers to expand higher-fare sections has shrunk the area devoted to coach on many big jetliners. But airlines don’t want to drop passengers. So first airlines slimmed seats to add more rows.
An interesting idea was floated in the comments section of the piece: fliers could buy 2 seats (or a row of 3 seats for 2 people) to get a bit more space, without shelling out the enormous price of first-class. I imagine this is not controversial for the very wide flier, but has anyone who’s just over the 17-inch one-seat-width tried it? Given how one-sided airline ticket contracts are, it seems unlikely that one could simply assume the full use of two seats.
The commenter mentioned that he bought 2 seats for his father so he’d have his medical equipment next to him. Shouldn’t an airline be accommodating that as a matter of course anyway (if not to comply with the ADA, if only as an expression of some compassion toward the plight of the ill)?
posted by Gerard Magliocca
I’m pleased to tell you that my book on Bryan and the Populist Party will be coming out in paperback, available for pre-order here.