Category: General Law

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CCR Symposium: Paul Horwitz Responds

Over at Prawfs, Paul Horwitz offers a fairly harsh critique of our CCR Symposium, focusing both on the contents of the contributions and the posts that have not allowed comments. Here’s an excerpt:

[T]here’s something about the [decision not to allow comments] that I think is related to both the overall topic of the symposium and the views taken by those posters who are most sympathetic to Citron’s arguments. Those people who are most worried about the potential for “abusive” disagreement have also been, in my view, the symposiasts who have made the most sweeping, tendentious, and unsupported claims, both empirical and normative, in support of their arguments. That makes their “arguments” more like assertions. It not only prevents their arguments from being as strong as they could be — for, in saying they are making the most tendentious and unsupported arguments, I am not saying they are necessarily making bad arguments — but it also suggests, ironically enough given the topic, that those individuals who are making the claims that most demand heated disagreement are the same people who, on the one hand, fear being openly and heatedly (or “abusively”) contradicted, and on the other would enforce this fear through legal means. Moreover, the fact that they are taking matters into their own hands by blocking comments, although I am not crazy about this move, makes me question whether legal remedies are as necessary as they suggest they are.

Of course, the CoOp editors had every right to make this move. But I don’t think it was required, and I think the symposium posts that allow for commentary have been stronger, and produced stronger conversations, than the ones that haven’t, which in my view have been more likely simply to accept as true various assertions about both empirical and normative matters that are far more open to debate than they have acknowledged. Notwithstanding the existence of some critics on the panel, that is the best recipe for a “symposium” to become little more than a cheering section of collected monologues.

0

Rhetoric, Norm Creation and the CDA

In a previous post, I discussed how the rhetoric of free speech shapes norms of Internet conduct. Orin Kerr countered that a discussion of the rhetoric of free speech should also acknowledge the rhetorical impact of using the language of civil rights. I think Kerr is using the rhetoric of rhetoric to compare two very different uses. When I referred to the rhetoric of free speech, I was commenting on how the use of the terms “free speech” by Internet libertarians is (ironically) a conversation stopper. It is a conclusion that assumes that all Internet communication is in fact (1) speech and (2) constitutionally protected. When Citron uses the language of civil rights, she is doing so for more than rhetorical purposes. She discusses specific situations and explains why they should constitute civil rights violations. The effect is not to shut down discourse in a merely rhetorical way but to open the door to a possible remedy if the conduct/communication in fact constitutes a civil rights violation and is not outweighed by First Amendment concerns. In other words, Citron explains and argues why certain conduct should constitute a civil rights violation whereas the rhetoric of free speech does not bother with such explanations – it simply assumes. Of course, not all hurtful Internet communication is a civil rights violation and of course, much Internet communication (even if hurtful) is constitutionally protected speech. That’s not what I meant when I referred to the rhetoric of free speech (and that is not what Citron argues in her article). What I was referring to was the presumption in those two words – free speech — that all postings are protected speech and that anyone who suggests otherwise is a big crybaby (or a big red communist). Which brings me to the issue of norm creation…(cont’d after the jump)

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1

Innovation, Entrepreneurs, and Small Business

Jackelope_poster2.JPGLittle in the current economy gives one reason to be upbeat. Yet, the recent focus on entrepreneurial activities, innovation, and the best way to keep the country moving forward seems at least to focus on the best questions. What these new ventures look like and what they need to thrive varies from context to context. For example. Ann Bartow, Mike Madison, and I gave talks at West Virgina Law’s Digital Entrepreneurship: The Incentives and Legal Risks. We and several others looked at the different ways law can help or harm digital entrepreneurship. As Mike noted, Fordham just had a conference called When Worlds Collide: Intellectual Property at the Interface Between Systems of Knowledge Creation. And on April 24 the University of Wisconsin Law School is hosting a Creativity, Law and Entrepreneurship Workshop. As much as I love to talk about IP and innovation, two recent encounters reminded me that the law plays a huge role in business success in general.

In one case, a boutique gin distiller called Peach Street has made a damn fine gin called Jackelope. If you are in Colorado where the gin is made, the cost is about $30. If, however, you are lucky enough to buy it from a local store the price rises to around $45 per bottle. Now I will tell you that the gin is worth it. Nonetheless, facing competition from companies with better scale and larger distribution networks such as say Hendrick’s, Peach Street will have real problems. Hendrick’s is a favorite among gin drinkers and costs quite a bit less that Jackelope. I still say Jackelope is worth it. But getting people to try it at that price point is difficult. It may be that scale is Peach Street’s problem. It may have to find a way to lower its price and rely on volume to compete. If there is no way to lower the price point, Peach Street may be doing as well as it can for now. Yet, it could be that the Internet provides a lever that Peach Street would not have had ten years ago. The marketing is direct and sales could be handled online. That leaves distribution.

So could the Internet unleash the mighty not-so-mythical beast that is Jackelope gin? It is hard to tell but seems unlikely. Liquor laws and interstate shipping rules are complicated enough so that smaller companies have a difficult time navigating the wine rules which may or may not map to spirits. As a law, technology, and innovation problem, one would hope that we could reduce the country’s internal trade barriers on alcohol and stimulate more business. Microbrewed beer, local (i.e., non-Californian) wines, and artisan spirits are growing industries. Letting them reach potential markets across the country makes sense. So perhaps one area where the law can help entrepreneurs is working to navigate the current regulations on interstate alcohol sales and advocating for simpler regulations so that business is regulated but not strangled.

11

My American Name

When I was a kid growing up, I wished I were named Smith instead of Wu. I wished I were named Smith, because I believed that if that were the case then I would not face teasing and taunting, the childhood cruelties of the playground. Of course, I had an “American” first name. My parents, immigrants from China, had given me that name, but they used another name at home. They made the distinction between public and private, because they understood how important it was to assimilate. Other Asian American children were assigned a name by a teacher who likely believed herself to be doing the kid a favor. Or they announced to their elders that they were choosing their own nickname in an act of American rebellion.

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6

Making Change

I need to adjust my attitude. As a teacher, I find myself increasingly intolerant of ignorance. The problem, however, is that I also am intolerant of the ignorant. In my profession, the former may be acceptable, but the latter is not. There are two recurring examples I encounter in the world that never fail to prompt me to lament the state of our educational system and believe the end is near: the virtually universal inability of people to make change without a calculating device to do simple subtraction (with coins, the result must be a number of no greater than two digits, but an astonishing number of people are baffled if you hand them an odd amount above the total in order to receive, say, a quarter in return), and the common question, “what state is Washington, D.C. in?”

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3

Why You Should Take Admiralty

I wasn’t planning to talk about admiralty this month, but as Nate suggested that I do so I thought I’d give it a whirl. I am teaching the course this semester, and it is without a doubt my favorite. So let me tell you why it’s a great class to take if you’re in law school now.

1. Admiralty is a great review course for the basic common-law subjects. You examine contract, tort, property, and civil procedure rules that are somewhat different from those on land, which forces you to think about the principles underlying those concepts. For example, maritime contracts are not covered by the Statute of Frauds, many admiralty actions do not allow for a jury trial, and the but-for causation presumption from a violation of a safety statute is stronger here than in ordinary negligence.

2. Admiralty is a leading body of international law. Those of you with a bent towards that subject would probably find a lot to learn here about how that doctrine gets crafted. Moreover, there are specific subjects, such as the treatment of piracy, that bear on current problems like terrorism.

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6

Who Could Be Hired Today?

The trend in hiring law professors with graduate training in other disciplines as well as law degrees is not new; it’s been underway at least since I was a student (1988-1991). Some of the best classes I took were with individuals who had such backgrounds. But the emphasis has become even more intense in recent years. It is no longer considered obligatory to put in a few years doing actual legal work, before signing up for the AALS faculty recruitment conference.

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7

Technology and Business Models

Here some thoughts prompted by the Q&A for Panel 1 at Southwestern’s Copyright Reform Conference.

One idea that came up was the way in which law and technology intersect. Nimmer claimed that the 1976 Act would have addressed DeCSS. Fred von Lohmann said no, Betamax and other cases would have said non-infringing uses mean DeCSS is allowed.

The part that I am not sure worked was when FvL ceded that DVDs would not have been offered had it not been for the DMCA, but that now we don’t need that protection. In other words, the DMCA was necessary in 1977, but not needed for continuing success of the DVD market today. DVDs would still be in play with or without the DMCA.

When I followed up with him he said that the point was that incumbent copyright industry often if not always overstates the way disruptive technologies will impact creation. That point makes more sense to me.

Yet, by ceding that at some point in time one had to have the DMCA to encourage the industry to pursue DVDs, a bigger point comes to the fore. One does not know what technology will or won’t be disruptive. Furthermore, because we don’t know we should allow for more open systems to see what happens. Nonetheless, at least with DVDs we may find that certain technologies will not be pursued without the law agreeing to protect an existing business model.

Put differently, I suggest that if the law is protecting a business model, it should do so for a limited time (and I think that is what FvL was trying to say). This explanation explains the seeming inconsistency with DVDs and the DMCA. One may have to offer protection to stimulate the incumbent or new endeavor. Once that model is flourishing, however, one should cease to offer that protection. Of course as a practical matter, once an industry has that protection, it will not give it up easily. The best question then may be: How do we assess when protection is necessary and when to remove that protection? Simply saying that industry in hindsight overstates the problem or is incorrect about the effects does little to help the system move forward. More on that in follow-up posts about the conference.

5

What I’m Looking For

In Professional Responsibility, we just covered Model Rule 3.4(e), which states in part, “A lawyer shall not . . . in trial . . . assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused . . .” I actually make it a point to mention this Rule in virtually every course I teach. I do so to counteract the common tendency among not only students but the general public to preface statements and arguments with, “I believe” or “I feel,” or as if it became more persuasive, “I strongly believe,” or “I really feel.”

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