Category: General Law

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Kristin Davis’s Future (and Now Current) Reputation

sexandcity.jpgSome may remember the actress Kristin Davis as the good girl from Sex and the City. Well good compared to the characters around her. The film based on the show is due to be released on May 30. And just in time pictures of someone naked and a sex video that are allegedly of Ms. Davis have surfaced on the Internet. A quick search of Google News shows that 86 (I am sure the number will increase) news outlets have covered the story. The range of coverage is broad: international papers (U.K., New Zealand, Canada), domestic paper’s web sites, and online venues all are in the game. Some show a cropped version of one of the pictures that suggest the person is engaging in shall we say a sex act. Others such as MSNBC and E!Online use pictures of Ms. Davis where she is in an evening dress or smiling.

Ms. Davis and her representatives have denied that the material, allegedly taken by an ex-boyfriend in 1992, is real. Some of the gossip sites claim that the pictures are obviously altered. Will any of these points matter?

Put differently, is this one about reputation or attention or both? I suggest both. For even though MSNBC tries to take the high ground, the page has links to “More from Access Hollywood.” Those links are for video for the upcoming film and photo gallery for the show. So yes, Ms. Davis’ reputation is affected. But the attention may help her movie do well. None of which supports the idea that it is OK to circulate the photos. Rather it goes to the way that almost anything that draws attention may generate value. So one should not be surprised that claims for reputation and attribution rights will rise, as the attention economy progresses. My paper, Property, Persona, and Preservation looks at the Attention Economy as does my next article Property, Persona, Permission which is out to law reviews now.

In short with information coming at us from many directions, attention is the scarce resource. Attribution and reputation relate to attention for individuals will want credit, and they will want control over how a work is used lest such use harm their reputations.

For those interested in further reading on the idea, Richard Lanham’s Economics of Attention is worth the read. In addition, Greg Lastowka, Digital Attribution: Copyright and the Right To Credit, 87 B.U. L. REV. 41 (2007), Julie Cohen, Examined Lives: Informational Privacy and the Subject as Object, 52 STAN. L. REV. 1373 (2000); Wendy Gordon, On Owning Information: Intellectual Property and the Restitutionary Impulse, 78 VA. L. REV. 149 (1992), and Margaret Jane Radin, Property Evolving in Cyberspace, 15 J.L. & Com. 509 (1996) all have seeds of this idea from different angles. Last Frank Pasquale’s Copyright in an Era of Information Overload: Toward the Privileging of Categorizers, 60 VAND. L. REV. 135 (2007) looks at how information increases search costs which in my view is a matter of attention as well.

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The Law Review Footnote Fetish Revisited (Again)

footnotepage.pngI have offered before various theories for the footnote fetish among American law reviews. Today, I came across the following passage written by A.W.B. Simpson:

This is the phenomenon of laws of citation, and it has really struck the common law only in the last century. It seems to me to be a symptom of the breakdown of a system of customary or traditional law. For the only function served by rules telling lawyers how to identify correct propositions of law is to secure acceptance of a corpus of ideas as constitution the law. If agreement and consensus actually exit, no such rules are needed, and if it is lacking to any marked degree it seems highly unlikely that such rules, which are basically anti-rational, will be capable of producing it. It is therefore not surprising to find that today, when there is great interest in the formulation of source rules in the common law world, the law is less settled and predictable it was in the past when nobody troubled about such matters. IN a sense this is obvious. There is only a felt need for authority for legal propositions when there is some doubt as whether it is correct or not; in a world in which all propositions require support from authority, there must be widespread doubt. (A.W.B. Simpson, “The Common Law and Legal Theory,” in Oxford Essays in Jurisprudence, 2d ser. A.W.B. Simpson ed. (OUP 1973) 98-99)

Simpson is talking about the rise of rules governing the concept of precedent and legal authority, but perhaps there is an analogous point to be made about American law journals. Compared to the UK, I would submit that American legal thinking is much more fragmented. In part this is because we have at least 51 semi-autonomous legal systems with which to cope, and partly this is because the American legal academy is more riven with methodological and ideological disagreement than is the legal intelligentsia in the UK. Hence, American scholars — and law review editors — suffer from the anxiety about authority that Simpson identifies as the reason for the rise of legal citations.

Tocqueville vs. Michael Clayton

We’ve come a long way from Tocqueville’s vision of lawyers as an American aristocracy, nobly tempering the masses’ unruly demands for equality. Even in the mid-twentieth century people like the Auchinclosses could see the attorney as a noble arbiter of business disputes. Some believe that the movie Michael Clayton indicates that the cultural status of law as a profession is nearing a new low. But there is an inevitable duality to law practice that makes such a judgment dicey, and not a little unfair.

First, here is Patrick Radden Keefe’s take on the film:

[B]eneath the expertly deployed suspense lies something more interesting: an indictment of the mercenary universe of white-shoe law firms and a devastating—and unusually accurate—look at the demoralized lives of the lawyers who work for them. Granted, George Clooney’s Clayton is an improbable 17th-year associate. But when he says, “I’m not a miracle worker; I’m a janitor,” he could be speaking for the whole profession. . . .

In Michael Clayton, as in real life, the firm doesn’t employ people so much as consume them, creating a culture in which personal or familial obligations always take second place to work. [A general counsel’s] fidelity to the job is absolute—she has nothing else . . .—and she offers a frightening specter of “zealous advocacy” taken to its logical extreme. . . .

Whatever the explanation, Michael Clayton offers an only slightly exaggerated portrait of a profession undergoing a kind of slow-motion existential crisis. . . Firms are attempting to accommodate the lifestyles of their employees in a variety of ways, from “kindness committees” to weekly yoga sessions. . . .

I’d think those last points would be cause for celebration. But even if concessions to associates are few and far between, the main body of the “Clayton critique” of life in the law strikes me as inconsistent. If lawyers are doing good things, then we should be happy that they are devoting themselves wholeheartedly to the job (as long as some workplace-humanizing policies are in place). For those that are doing bad things, the answer is not a dismissive “let’s kill all the lawyers,” but rather, “let’s get some good lawyers to the other side.”

I suppose that just kicks the question up another level–is it good to have the type of conflict that lawyers specialize in? Sometimes it may well not be. But it seems to me to be far too easy for critics of the legal profession to paint with a broad brush and say that one lawyer’s bad conduct should lead us to judge all lawyers poorly. A more just response would contemplate how we can get more skillful people fighting on the opposite side of the inevitable defenders of wrongdoing in any profession.

PS: For more on Michael Clayton, see Jeff Lipshaw with the funniest long blawg post title of the year.

2

Fear of Helmet Hair? Coaches Refuse To Wear Helmets

dodgersfinger.jpgHere is an interesting one for sports and law or law like discussions. MLB has a rule that all base coaches must wear a helmet. The rule was a response to a minor league coach being killed by a line drive last year. Larry Bowa, the third base coach for the L.A. Dodgers, and Mariano Duncan, the first base coach for the Dodgers, have refused to wear the helmet. Bowa (who by the way inspired a guy I knew to name his pet boa constrictor Larry) has publicly flaunted the rule and claimed “I’m willing to write out a check for whatever the fine is for every game,” Bowa said. “Whatever 162 games is, I’ll write out a check for it.” He has since backed off the position based on a threat of being ejected. Bowa claims he may show up in catcher’s gear just to show the silliness of the rule.

It is all rather silly as baseball can easily be. Still given the assumption of risk position that baseball embraces, the comments that if anyone knows the dangers of being in an area where small, hard objects fly at you, it has to be a base coach have some merit. As one comment asked why not require umpires to wear helmets? In addition, one discussion suggested that given the knowledge just have the umpires sign a waiver. Baseball is not a lens for all things though some will say otherwise. Here, however, the way the law permeates the views of the rule, whether it must be obeyed, and possible ways to opt out, makes me think that maybe baseball is America’s game because it tracks the litigious nature of our country.

In any event, what do folks think? Keep the rule but let coaches opt out (this may lead to forcing those who wish to be safe foregoing safety to look tough or comply with the group)? Force all to wear helmets, umpires and coaches (but of course leave players off as they would look silly or maybe they are more focused on the ball)? See not as easy as one might think.

cross posted at Madisonian

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Thoughts on Architecture and Energy from My Crawlspace

hermitag.jpgI am happy to say that I live in one of the more beautiful spots in the United States. There are few things as good for the soul as an early morning walk through the tidewater of the Chesapeake with a large, friendly dog. The climate, however, can make comfortable living difficult; our summers are deadly muggy and the winters are just cold enough that you care whether your furnace and insulation work.

I was thinking all these thoughts recently while slithering through the crawl space beneath my house to repair a broken heating duct. I find do-it-yourself home repair depressing, not because I necessarily dislike it or because I am bad at it (although I often am), but rather because it always brings home to me how crappily built my house is. It is a nice enough looking house and I love our neighborhood, but the construction sucks. My walls consist of framing, plaster board, and siding over cardboard covered insulation. You could literally break your way through the exterior walls of my house with your bare hands. (Well maybe you might want a pair of gloves.) My unfinished attic is insulated with piles of foam insulation. My roof needs to be replaced. And so on…

In addition to late-night ulcers about roofing and siding replacement, my house consumes a lot of energy. In the winter I need to burn lots of gas to keep it warm and in the summer it will rapidly turn into an inferno without air conditioning. My built world thus carries within itself a set of assumptions about commodity prices and consumption habits. What follows from this, however, is not a rant in favor of new eco-friendly technology. Rather, what I want is a return to the past.

Now admittedly, one of the ways that Virginians of old dealt with the heat was to die like flies while enduring extreme discomfort. However, there were other strategies, most notably architecture. A few years ago I visited The Hermitage, Andrew Jackson’s home outside of Nashville, a spot that can vie with Williamsburg for oppressively hot and humid summers. (Although, I still think that we win.) We arrived at mid-day in July. There are few things as good as a hot, muggy, southern day to bring home the horror of slavery. I suspect that I lack the imagination to really “get” what it would be like to be whipped and abused, but I can imagine day after day of backbreaking and unrequited toil in the Virginian sun. Hellish. The interior of Jackson’s plantation house, however, was remarkably pleasant.

The effect was achieved without air conditioning. High ceilings and transom windows gathered hot interior air high above our heads and created circulation from room to room. Thick (2-3 feet) stone exterior walls further lowered the interior temperature, and the walls themselves were protected from direct exposure to the sun by broad porches running the length of the house. The cumulative effect was not entirely unlike what my card-board-and-siding castle achieves by sucking up huge amounts of electricity.

I don’t necessarily draw a regulatory conclusion from these musings. I don’t know enough about the costs of substitutes, etc. to know if the James City County zoning board ought to require stone walls and porches. I suspect that as energy prices stay high, the housing market will gradually respond, but the response will necessarily be slow. Still, it strikes me as a bit irrational to do with energy consumption what one can do with architecture. Stone houses also look cooler.

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More Restrictions for the Beijing Olympics: Blogging? Legitimate! Content? Well, Let’s Talk About That

National_museum_of_China_2008_countdown_clock.jpgMy previous post about England and the Olympics noted possible restrictions on athletes making political statements. The comments offered some interesting points regarding what politics and the Olympics could mean so allow me to say thanks for those here. Now it appears that the IOC has placed limits on blogging by athletes. The IOC has acknowledged that “blogging is ‘legitimate form of personal expression,’.” Nice of them to say so; most were unsure about that. Of course the IOC has placed restrictions. The blogs are to be diaries or journal with no interviews of fellow athletes or writing about them. And oh yes, copyright is in play as “Bloggers are prevented from posting audio clips or videos of ‘any Olympic events, including sporting action, opening, closing and medal ceremonies or other activities which occur within any zone which requires an Olympic identity and accreditation card [or ticket] for entry.'” Blogs cannot use other athletes’ photos, be for commercial gain, and no advertising is allowed while Olympics content is on screen. The best part as reported by the AP “Domain names for blogs should not include any word similar to “Olympic” or “Olympics.” Bloggers are, however, urged to link their blogs to official Olympic Web sites.”

So dear athletes write about your experience but please be sure that you do not ask your potential friends from other teams and who spread the joy of amateur sport and connectedness to agree to a picture on your blog. Also do not use anything that looks like you are at the Olympics except for linking to the official site (how you will do that without using the words and symbols of the Olympics, the IOC leaves to you). In the interests of harmony (and odd copyright concerns) please take no pictures for your memories although we have some lovely glossies for your purchase. In short, please write a dry, personal journal with none of the pictures, thoughts, and discussions you might have in daily life while being thrilled to be at the Olympics.

Are fans not allowed to photograph the events? Talk to people? This generation of athletes could provide a great insight about the games from the individual perspective. They could have some commercial gain (maybe a Wheaties box although I prefer Belushi’s Little Chocolate Donuts, The Donuts of Champions) in their future. What exactly is the IOC trying to do here? The invocation of alleged amateurism and copyright is bizarre if not insulting. Let them write. Let them take pictures.

In a recent talk, Erwin Chemerinsky suggested that security and safety may be reasons to prevent speech but even then only rarely. In that view the IOC’s limit on posting information related to security may make some sense. But the rest? Well draw your own conclusions.

Image: WikiCommons; GNU Free Documentation License, Version 1.2

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Trial Tactics, Boundaries, and Penalties

The idea that one should be a zealous advocate for my client may be good, but it can also lead to large sanctions. The image of the “I’ll do anything to win” lawyer may be exacerbated by media; yet many firms have that attitude without any need of media reinforcement. Two recent intellectual property cases highlight the problems of that approach. Both involve millions of dollars. One resulted in close to 2 million dollars in sanctions, and the other will likely result in a sanction of similar amount. Both raise questions about judges, trials, and questions of law or fact. When, if ever, should a judge stop a trial that seems to have no basis or that has an event so egregious that it will merit setting aside a jury verdict? If a judge lets the case proceed, and then later sets aside the verdict as well as ordering the payment of fees, should the fee claim be stopped at the time at which the offending event occurred? A recent patent case highlights these problems.

Read More

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Open Crimson: Harvard’s Arts and Sciences Goes Open Access

NewtonsPrincipia.jpgAccording the Chronicle of Higher Education “Harvard University’s Faculty of Arts and Sciences adopted a policy … that requires faculty members to allow the university to make their scholarly articles available free online.” Faculty may ask for a waiver of the policy bu the default will be that they provide an electronic copy to the University which then make it available online. As the Chronicle notes, Peter Suber’s posts at Open Access News cover the topic well (text of the motion, Provost’s statement, long post that links to earlier thoughts and other views on the subject). Suber thinks this vote means “Harvard will be the first university in the US to adopt an OA mandate. The Harvard policy will also be one of the first anywhere to be adopted by faculty themselves rather than by administrators.” The University of California has a similar policy in draft form and may have started the process earlier, but Harvard seems to be the first.

Now for the law:

In legal terms, the permission granted by each Faculty member is a nonexclusive, irrevocable, paid-up, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit. The policy will apply to all scholarly articles written while the person is a member of the Faculty except for any articles completed before the adoption of this policy and any articles for which the Faculty member entered into an incompatible licensing or assignment agreement before the adoption of this policy. The Dean or the Dean’s designate will waive application of the policy for a particular article upon written request by a Faculty member explaining the need.

Let’s say it once more, “a nonexclusive, irrevocable, paid-up, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit.” First does anyone know whether anyone from Harvard Law was invited to this party? Second, although the policy of open-access has merits, when mandated by the University it appears that certain Creative Commons approaches are negated. Third, derivative works problems seem to lurk in this policy. Put differently, where does ShareAlike and non-derivative work restriction fit if at all? Maybe these issues are of less importance than a big move by a big player to go open access, and I hope the idea works. Still the policy seems a bit dictatorial and maybe overbroad. As I have just looked at this one, thoughts are much appreciated.

Last for any institution thinking of an open access move, Suber’s longer post walks through some fascinating nuances of permission (faculty gives the copy to the school, school then posts) and deposit policies (faculty required to handle the posting) for open access as well as offering an overview of the area.

Image by Andrew Dunn, source: WikiCommons; Creative Commons Attribution ShareAlike 2.0 License

cross-posted at Madisonian