Category: General Law


A Little More on the Preservation (Or Destruction) of One’s Creations

bookburn2.JPGDan’s post about Kafka and Lior Strahilevitz’s The Right to Destroy raises a question about which Dan and I have tangled and with which I still struggle: what are the rights of heirs in intellectual property? My article currently out to law reviews, Who Cares About Heirs (In Copyright)? attacks the idea that heirs matter at all.

Here is the abstract:

Although the harms of the Copyright Term Extension Act and Congress’ authority to pass the act have been well-discussed, an underlying assumption merits consideration: heirs matter in copyright. When one examines the dominant theories offered to justify copyright from utilitarian to Lockean labor to Hegelian personhood to social planning, no justification for descendible copyright is found. Even if one cedes the idea that custom or tradition supports the ability to inherit real property or money, the nonrivalrous nature of copyright changes the analysis. Exploitation of copyrighted work in life allows one to accumulate wealth and pass it on to descendants. In contrast, allowing the underlying work that can be exploited in life to pass to the next generation denies others the ability to use the intellectual resources that have already been exploited. In addition, investigating the nature of creative and productive systems reveals that the longer such resources are locked up, the more creativity and innovation are hindered and harmed rather than increased. This result poses an additional harm as it limits the material available for individuals to use as they develop what Martha Nussbaum has called the basic capability to experience and create expressive works. As such this Paper argues that life is the proper and theoretically supported terminus for copyright interests.

The paper builds on my article, Property, Persona, Preservation (forthcoming Temple L. Rev.) In that article I use the question of what happens to one’s email when one dies to explore “the normative theories behind creators’, heirs’ and society’s interests in the[ir] works. All three groups have interests in preservation, but the basis for the claims differs.” Part of that article draws on Lior’s work and finds that whether one calls it destruction or preservation the author should have strong control over the work.

As to whether Dan’s concerns over privacy apply in this area, I think it is an open question and one I look forward to addressing in upcoming work. For now, it seems to me that many family privacy claims have little to do with privacy and more to do with economic gain. That is not to say privacy issues are not in play and are always false. Rather as Dan has well-documented, the term privacy has multiple meanings and may be a real concern. Still, the effects of denying access to creations based on privacy claims may be so pernicious that another approach is required.

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Baffled By Community Organizing

Bell_brain_cut.jpg First, it appears that hardcore left-wing and hardcore right-wing folks don’t process new data. An fMRI study found that confirmation bias — “whereby we seek and find confirmatory evidence in support of already existing beliefs and ignore or reinterpret disconfirmatory evidence” — is real. The study explicitly looked at politics:

During the run-up to the 2004 presidential election, while undergoing an fMRI bran scan, 30 men–half self-described as “strong” Republicans and half as “strong” Democrats–were tasked with assessing statements by both George W. Bush and John Kerry in which the candidates clearly contradicted themselves. Not surprisingly, in their assessments Republican subjects were as critical of Kerry as Democratic subjects were of Bush, yet both let their own candidate off the hook.

The neuroimaging results, however, revealed that the part of the brain most associated with reasoning–the dorsolateral prefrontal cortex–was quiescent. Most active were the orbital frontal cortex, which is involved in the processing of emotions; the anterior cingulate, which is associated with conflict resolution; the posterior cingulate, which is concerned with making judgments about moral accountability; and–once subjects had arrived at a conclusion that made them emotionally comfortable–the ventral striatum, which is related to reward and pleasure.

In other words: “‘We did not see any increased activation of the parts of the brain normally engaged during reasoning,’” said the study’s leader in an Emory University press release. “Essentially, it appears as if partisans twirl the cognitive kaleidoscope until they get the conclusions they want, and then they get massively reinforced for it, with the elimination of negative emotional states and activation of positive ones,” Westen said.

So maybe this explains how a party that offered churches and other faith-based organizations who, as far as I know, engage in community organizing to achieve social goals, can attack the idea of community organizing. Now before our more conservative readers jump in, no, I do not have a great example for the left. I am sure it exists. As stated above, BOTH sides engage in this rather poor example of living up to using their brain to process.

If this finding is accurate, where does Orwell’s newspeak fit in?

By 2050—earlier, probably—all real knowledge of Oldspeak will have disappeared. The whole literature of the past will have been destroyed. Chaucer, Shakespeare, Milton, Byron—they’ll exist only in Newspeak versions, not merely changed into something different, but actually contradictory of what they used to be. Even the literature of the Party will change. Even the slogans will change. How could you have a slogan like “freedom is slavery” when the concept of freedom has been abolished? The whole climate of thought will be different. In fact there will be no thought, as we understand it now. Orthodoxy means not thinking—not needing to think. Orthodoxy is unconsciousness.

Is it that we are subject to these sorts of force-fed, binary positions? Or is it that we are all likely to engage in these behaviors, but it is our duty to stop and think? And in thinking do we seek logical, supported positions, even ones that force us to leave a comfort zone but that may lead to better understanding or do we fake it and rest easy in what we want to hear and know as the fMRI study suggests? I believe that we are capable of breaking these lazy habits. It is not easy and the endeavor never ends. Still I am not sure what else it is we are supposed to be doing if not continually asking questions and engaging with the views we may not like on our way to better understanding.

image source: wikicommons, public domain


Department Stores, Computer Forensics, and the Private Police


The September 1st issue of the New Yorker includes a fascinating article (not yet available online, but here’s the abstract) by John Colapinto about the high-tech, mini-police departments being set up by department store chains to catch shoplifters. The article, which focuses in particular on Target, veers for a brief moment into one of my areas of interest–computer forensics. Target has hired a “senior computer investigator” named Brent Pack, a former Army computer crime investigator who helped analyze the Abu Ghraib photographs. Why does Target need a computer investigator? Mr. Pack

analyzes digital storage devices seized from suspected retail-crime gangs–BlackBerrys, photo memory cards, cell phones, business servers, and desktop computers. . . . At the moment, Pack was analyzing a hard drive seized by the police in a phony-check-writing operation that had victimized Target stores. “I’m going through here and looking for any evidence of check-writing software on any of their hard drives,” he said, pointing to the computer screen, which showed a JPEG of a blank check

Is it proper for the police to delegate its forensic work to Target? The FBI agents I used to work with as a DOJ computer crimes prosecutor kept a tight leash on the data they had seized and were reluctant to share data with state and local cops, much less private parties. They justifiably worried about ensuring that non-FBI analysts were staying within the scope of the warrant, because courts have suppressed electronic evidence obtained outside of the scope of the warrant and have even thrown out all of the evidence obtained if the warrant was executed in flagrant disregard of its terms. I’m not saying that the use of a third-party forensic analyst should automatically result in a flagrant disregard ruling, but it will invite scrutiny.

And even if one can justify the use of private forensics specialists generally, shouldn’t the police refrain from giving 500 gigabytes of personal information to victims of crimes? Because victims–even corporate victims–have a strong incentive to solve the crimes committed against them, might they not feel more pressure than a cop to look beyond the scope of warrants, peering deeply into the private lives of data owners?

I am even more worried about a much more troubling possibility: Is Target seizing cellphones and laptops from suspected shoplifters? Discussing another, anonymous store, not Target, Colapinto describes how suspected shoplifters get hauled into interrogation rooms and questioned at length by former law enforcement agents. In addition to this, are store security personnel frisking suspects and seizing electronic devices? I can understand how a department store might be entitled to engage in a limited search to look for its stolen property, but does this justify the seizure, retention, and subsequent analysis of cell phones and laptops?

Reading this Article kept bringing me back to David Sklansky’s excellent article, The Private Police, 46 UCLA L. Rev. 1165 (1999) (abstract). A decade ago, Sklansky traced the rise of private police forces, focusing in particular on neighborhood patrol services starting with Pinkertonism in the 1800’s. He noted that as these entities play a greater role in policing society, this might give rise to the kind of invasions the Fourth (and Fifth and Sixth) Amendment was intended to prevent. If Target is seizing cell phones from suspected thieves–and I must stress that it is not clear from this article that they are–it realizes Sklansky’s fears.


A Brief Encomium on Teaching the UCC

One of the fun things about teaching the UCC is that you can use it as a vehicle for showing to students the concrete implications of differing jurisprudential approaches. For example, this week in my secured transactions class we discussed the apparently mundane issue of what it means for a debtor to have rights in collateral or the power to transfer rights, a pre-condition for the creation of a security interest under 9-203(b) of the UCC.

The fun comes when you play around with various other sections of the UCC that allow possessors of property to transfer rights to goods that they don’t own. Hence, for example, under 2-403 a seller with voidable title can transfer good title to a good-faith purchaser (which includes a secured creditor), while an merchant entrusted with goods can transfer all of the entrusters rights in goods to a buyer in the ordinary course (which does not include a secured creditor). There is a certain enjoyment in showing how the different sections of the code fit elegantly together to provide concrete answers. Even more fun is the way in which the code provisions play havoc with many students’ intuitive understanding of what it means to “own” something or to “have title to it.”

The UCC, of course, is a child of the legal realists and the polemic against “transcendental nonsense.” Llewellyn, Gilmore, and their accomplices were trying as hard as possible to wring from commercial law abstractions like “title,” making the outcomes of cases turn on reasonable business practice (as understood by law professors, to be sure) rather than the manipulation of lawyers’ abstractions. The Code’s elegant — if at times counterintuitive — certainty on some questions provides a nice object lesson for the virtues of rejecting legal Platonism. At the same time, some of the Code’s persistent problems — like the train wreck that is 2-207’s approach to the battle of the forms or the persistence of certain circular priorities under Article 9 — shows the limitations of extreme legal nominalism. At times, it would seem that Langdell — or at any rate Williston — had a point.

The virtue of the Code as a pedagogical device for teaching the intellectual history of American legal thought is that can make jurisprudence concrete and practical in precisely the way that makes the law such a fascinating place for seeing philosophical rubber hitting the road.


Irrational Reactions?: Effects on Premature Obit for Steve Jobs

Apparently major news outlets have a practice of writing obituaries of famous people a little before they are dead. When one leaks, and it is about someone who has had some health problems in the past, the draft can cause a stir. That just happened when Bloomberg inadvertently posted its obit for Steve Jobs, Apple’s CEO. According to CNET, folks have even speculated that Jobs is ill again and gone so far as to demand that shareholders receive some sort of disclosure about his health. I have read that Berkshire Hathaway has begun a gentle move to prepare folks for a hand-off from Warren Buffett. Maybe Apple should take a similar approach. Nonetheless, are CEOs really evaluated based on whether they will keel over while in office? Some companies that seem to have super-strong and seemingly great CEOs who can handle ups and downs of a business may be great examples of the idea behind management matters. Others, however, have CEOs come and go (relatively speaking) and the free-agent styled system has to know that a CEO may jump for a host of reasons. This blip seems to highlight that some companies have long-haul management and some do not. One can imagine some pros and cons for having a strong almost cult-like leader and for having a professional manager who may have risen from within a large company or come from the outside.

A simpler matter is, as CNET notes, the effect rumors can have on a stock. Blogs and newspapers can and do publish at an extremely fast pace. My guess is that we will not change that and we may want that rush of information. The difficult part will be learning not to go on impulse and as one person argues that is what distinguishes humans from other creatures on the planet:

Counterintuitively, much of what makes us human is not an ability to do more things, … but an ability to inhibit automatic responses in favor of reasoned ones; consequently, we may be the only species that engages in delayed gratification and impulse control (thank you, prefrontal cortex).


Investing in Africa

africanmoney.jpgHere is a bit of good news. According to the WashPo, investors unimpressed by sluggish growth in the United States and Europe are looking for other places to put their money and are turning to Africa.

Foreign investment is pouring into the continent at unprecedented rates, doubling in recent years to around $39 billion, according to U.N. figures. In recent months, some investors have even appeared convinced that Africa might be a safer spot to sink their money than the shakier U.S. and European markets.

“People are looking for diversification,” said Hurley Doddy, chief operating officer of Emerging Capital Partners, a private equity group based in Washington whose investments in Africa have jumped from $400 million in 2000 to $1.5 billion this year. “A lot of the problems the U.S. economy is having, you simply do not have that in Africa.”

Of course, one might just as easily say that the United States economy does not have the same problems as the African economy, and ultimately $39 billion is not a big chunk of the international capital market. The other issue that the article does not explore is the extent to which this direct investment is going into extractive industries, especially oil. Turning petro-dollars into wide-spread prosperity is a tricky matter, and too often the availability of huge amounts of easy wealth simply makes political corruption/kleptocracy easier. Indeed, it is no accident that in the U.S. three of the states that have traditionally had some of the most corrupt and dysfunctional political cultures — Louisiana, Texas, and Alaska — are also (or at least in the case of Texas, used to be) essentially petro-states.

Still, foreign investment in Africa is good. It would be better if the story were in the business section rather than the international section.


A Classroom Participation Technique for Cold-Callers: The “Catch”

In honor of the start of the fall semester, I wanted to share a classroom participation technique I started using last semester with encouraging results. I cold call in my classes, but I give every student the opportunity to pass three times during the semester when they don’t feel prepared. (Because of where I teach, I notice a suspicious uptick in passes on Mondays following fresh snowfall in the mountains!) As long as I’m notified of a student’s desire to pass before class begins, I won’t call on him or her.

Last semester I started giving students the option of using the reverse of a pass, which I punnily dubbed a “catch.” When a student feels especially prepared for a given class–perhaps she has had a lot of time to read the night before or maybe she has already read the case before for another class–she can put herself on call by sending me a “catch” before class begins. In return, I promise students who catch that I will not call on them for at least three subsequent classes.

Very few students caught (catched?) last semester, but on those occasions when they did, it led to some of the most productive Q&A I’ve had with students in five-plus years (including two years as an adjunct) of law teaching. The students who caught no doubt benefited by regaining some control over their fate; their classmates benefited from hearing good discussions of the days’ topics; and I gained the benefits of an on-call system without having the rest of the class skip the reading.

If you cold call already, try out this tweak this semester, and let me know how it goes.


Which is More Confusing: ECPA or the Tax Code?

Hearing Sarah Lawsky crack wise so often and so hilariously about the Internal Revenue Code during her visit made me think of a little joke I have used many times when lecturing about the Electronic Communications Privacy Act (ECPA). After warning listeners that ECPA is complex and confusing, I will often say something like, “And I challenge any tax experts in the room to go head-to-head with me in a battle for the title of ‘most confusing part of the U.S. Code.'” The comment usually inspires a few polite titters–from the kind of people who find jokes about comparative statutory complexity funny–so I keep using it.

The problem is, I have no idea whether I have a leg to stand on. Can ECPA really hold a candle to the infamous complexity of the IRC? Is there another part of the U.S. Code that makes both of these seem lucid in comparison?

This connects to James Grimmelmann’s recent series of posts about a new lawyer being a menace to his or her clients. He has been developing the point that mere book larnin’ isn’t enough to prepare a lawyer to represent a client competently, at least not in certain substantive areas, and he offers wills & trusts, bankruptcy, and copyright as examples. What makes a substantive area of law more complicated than another?

Keeping it focused on legislation, what factors conspire to make a statute complex and confusing (and, as an aside, can a statute be complex but not confusing or confusing but not complex?) Within my areas of expertise, here are a few factors that make ECPA complex:

  1. ECPA defines many terms, and it defines many terms in ways that are disconnected from ordinary meaning. (I’m looking at you, “electronic storage”!)
  2. ECPA (and more generally speaking, the Wiretap Act which predates ECPA) has many parallel definitions that Congress may not have intended to treat alike (yes, I’m talking about you two, “wire communication” and “electronic communication.”).
  3. ECPA interacts in mysterious ways with other laws (try to figure out what “readily accessible to the general public” means!)
  4. ECPA is rarely litigated. Orin Kerr explains how this has made a mess of the law in Lifting the ‘Fog’ of Internet Surveillance: How a Suppression Remedy Would Change Computer Crime Law, 54 Hastings Law Journal 805 (2003).
  5. ECPA regulates technology, so its meaning often shifts as technology changes. This problem is exacerbated because the basic structure and essential definitions are unchanged from 1986, so a law written to regulate mainframes is today applied to Web 2.0 and cloud computing.

So to all of the tax experts out there, what makes the tax code so complicated? Do all of the factors listed above apply to the IRC as well? The IRC is much longer than ECPA, and it is supplemented with reams of CFRs and other regs, but that can’t be enough alone to earn it the title, can it?

And what say you bankruptcy and copyright experts?

And even more generally, what are the objective metrics we can use to calculate comparative statutory complexity. (Yes, I’m picturing a NCAA-style tourney bracket right now.)


Presidential Politics and The Future Court

At last night’s Faith Forum with Rev. Warren, we got another look at the two candidates’ views of the Supreme Court. Asked which sitting Supreme Court justice they wouldn’t have appointed, we got mostly predictable answers, though not entirely so.

Sen. McCain named four Justices. He named Justices Ginsburg, Breyer, Souter, and Stevens – the four who often vote together, and the press designates as the “liberal wing” of the Court. He claimed that nominations to the Court “should be based on the criteria of proven record of strictly adhering to the Constitution of the United States of America and not legislating from the Bench. Some of the worst damage has been done by legislating from the bench. And by the way, Justices Alito and Roberts are two of my most recent favorites.”

Sen. Obama named three Justices. He first named Justice Thomas, referring not just to disagreement with his Constitutional interpretation, but also to his relative inexperience at the time of his nomination. He added Justice Scalia on grounds of constitutional disagreement as well. Most interesting is his explanation for not nominating Roberts (whom he voted against). Sen. Obama stated: “One of the most important jobs of the Supreme Court is to guard against the encroachment of the executive branch on the power of the other branches. I think he has been a little bit too willing or eager to give an administration, whether mine or George Bush’s, more power than the Constitution originally intended.” This was certainly more thoughtful than merely repeating the standard cant about strict adherence. What are the implications of these contrasting views?

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I’m Back and Thanks

MonteAlban2.JPGJust a quick note of thanks to my co-bloggers and our guests for some great posting over the past two weeks. I took my first proper vacation in the past three years and went to Oaxaca City and Huatulco in Mexico. Oaxaca City is wonderful. The city seemed to have endless secret restaurants, cafes, museums, and galleries. Exploring the world of moles and chocolates alone could be a week long trip. The surrounding sites, Monte Alban, Mitla, and Teotitlan Del Valle offer fantastic sites dating back more than a thousand years as well as examples of hand-woven rugs (the demonstration of the process including the fermentation of local plants to create the dyes was excellent). My friends and I then moved on to the coast. That was not as much of the idealized beach trip as desired. Nonetheless, the pristine beaches (some only accessible by sea) and the snorkeling was great. The trip to the nearby cloud forest where Pluma coffee is grown took us to a town that straddles a mountain ridge. The farmers were meeting and invited us in for a bit. They were discussing upcoming harvest planes and had the full burlap bags at commodity trading size and weight ready to go in the back of the room. The leader also asked whether we wanted to buy some coffee. We said yes and then he told us to explore the town and return as they would roast it right then. The smell wafted through the nearby plaza as we waited. I am not a coffee person but the aroma alone made me reconsider that position.

I have put more pictures below the fold.

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