Author: Bruce Boyden


What’s a Scènes à Faire?

I’ve been a bad guest, although unlike real-life bad guests, at least I haven’t been hogging the cheese dip. Still, I have at least one copyright-related post in me before I go — about the somewhat odd and infrequently invoked exception to copyrightability known as “scènes à faire.”

Traditional copyright law is full of doctrines that appear to make sense from a distance but become extremely difficult on closer examination. I think part of the reason this occurs in copyright is similar to the reason it occurs in constitutional law: there are broad shifts afoot both in the doctrine and in reality that have altered the context in which the underlying law was developed, but for various reasons no one — and particularly not courts — can admit that. So we’re left with doctrines that stick out, puzzle pieces that don’t quite fit.

One of the things that’s been occurring in copyright law is a slow shift from being a common law subject to a statutory one. There has always been a federal Copyright Act, of course, but until recently, courts took it as an invitation to fill in the gaps rather than an unyielding constraint on their actions. Large portions of traditional copyright are either nowhere to be found in the statute or are simply vague codifications of earlier common law. Even within the realm of common law doctrines, copyright shifted over the course of the twentieth century from being an equitable determination of fairness in competition for goods and services — books and plays — to being a legal determination of rights in intangible expression. In the 1930s, as separate equity proceedings were abolished, courts initially kicked a major part of the hard question there to juries, but then almost immediately began reclaiming various determinations for themselves.

Scènes à faire is an example. The scènes à faire doctrine is an exception to copyright protection. It emerged in the 1940s, not coincidentally only a few years after the merger of law and equity in federal courts after the 1938 adoption of the Federal Rules of Civil Procedure. The term itself was first used in an opinion by Judge Leon Yankwich of the Southern District of California — a judge who later played a role in resurrecting the four-factor fair use doctrine that we have today. The plaintiff in Cain v. Universal Pictures was James M. Cain, the noted author of “The Postman Always Rings Twice,” “Double Indemnity,” and other hard-boiled suspense stories. Read More


The Ghost of Louis Brandeis on How to Teach Law School

Hello again Co-Op! I’m happy to be back for a short guest-blogging stint that was, er, supposed to start in January but Danielle graciously allowed me to postpone into February. I’m hoping to make up for the radio silence in the last couple of weeks of the month. Anyway, without further adieu, today’s topic: Over at Prawfsblawg, a vibrant debate is going on about the perennial subject of how to best teach law school. There’s a lot of good things to be said on both sides of the that debate. I’d like to call attention in particular to the comment by Ray Campbell, which is devoid of the absolutes that tend to abound in this area. I’ve expressed my own thoughts on this topic during previous go-rounds here and here and here.

But by “perennial,” I meant that this debate is really ancient. It far pre-dates the recent financial crisis and downturn in the legal market. It pre-dates the Carnegie Report in 2007. It pre-dates the MacCrate Report in 1992. It pre-dates the 1921 Carnegie Report. Indeed, it pre-dates most law schools altogether. Benjamin Spencer’s recent article on the skills vs. doctrine debate — which includes the question of who would be the best teachers for whatever it is the students should be learning — shows that it goes back to the 1870s, and an ABA Report that concluded that the existing method of study — one taught mainly by professors with substantial practice experience — was “too brief for useful purposes,” and that the schools were inviting “unfit” and unprepared students to fill their seats, were giving “examinations, which are such only in name,” and were allowing “degrees [to be] thrown away on the undeserving and the ignorant.”

I was reminded of the length of time these sorts of discussions have been going on when I recently stumbled across a letter from the man pictured above, Louis Brandeis, to Dean Christopher Columbus Langdell of Harvard Law School. Langdell, of course, is possibly the single person most responsible for the form of legal education we have today. It was his idea at Harvard to replace classes taught by practicing lawyers with classes taught by academic law professors, hired soon after graduation after perhaps only a short judicial clerkship, and to extend the length of the program from eighteen months to three years. In particular, it was Langdell’s idea to teach law as a science, devoted to learning the general principles that pervade the law as revealed in cases, but not necessarily constituting the law of any particular jurisdiction. That is, Harvard would focus on a generalized notion of tort law, contracts law, etc., one that had the advantage, as Charles Whitebread used to say about the Model Penal Code, of being equally the law nowhere.

Brandeis was a product of that model. He graduated from Harvard Law School in 1878, eight years after Langdell had started reforming Harvard and the first year the program was extended to three years. But a little more than ten years later he thought substantial alterations should be made to the curriculum. Brandeis worried, in effect, that Harvard Law students were not learning enough actual law:

To Christopher Columbus Langdell

December 30, 1889 Boston, Mass.

My Dear Prof. Langdell: My experience as one of the examiners for admission to the Suffolk bar has impressed upon me the importance of adding to the instruction at the School a thorough course on the peculiarities of Massachusetts law. I am aware that the introduction of such a course involves apparently a departure from the present policy of the School, but my experience and observation have convinced me that such a course would increase the usefullness as well as the membership of the School, and I therefore venture to submit to you with some detail my views of the proposed course, and the reasons which induce me to advocate it. Read More


Beyond Washington & Lee: A Call for Practical Exercises in Law School

784496_graduation.jpgWashington & Lee’s revision of its third year into a practice-based curriculum has attracted a considerable amount of attention in the law prof blogs, including a fascinating post from Deven Desai below suggesting that even W&L’s program may not go far enough. Over on one of Brian Leiter’s blogs, Leiter’s post drew several interesting comments, including several from Washington & Lee faculty members and students commenting on the theory and thought process that went into the decision. My wife and I both taught at W&L as visitors last year, and while we weren’t part of this debate, I was very impressed by the school and in particular with how W&L handles its first-year curriculum to address similar concerns.

But I was most interested to read two comments critical of W&L’s effort on Leiter’s blog, the first from an anonymous correspondent of Leiter’s quoted in his post: “If 100% practice is the way to run the third year, isn’t the obvious answer to make a J.D. program a two year affair?” Sam Bagenstos followed up in the comments in a similar vein:

This seems like a low-road strategy to me. Even if we stipulate that the major goal of our pedagogy is to train lawyers … the question is what kind of lawyers are we training our students to be. The best schools have or should have as their goal training people to be outstanding lawyers (and ethical, responsible professionals?) over the course of a career. The new Washington & Lee approach, I hate to say, is more closely directed to training students to be the best first-year associates they can be. I’m quite sure that a student who goes through that program will, to coin a phrase, be “ready on day one” for the kinds of tasks that new lawyers do on day one. But I’m far less certain that a student who goes through that program will be a better lawyer over the course of a career. I doubt that law schools have much of a comparative advantage over practitioners in the kind of on-the-job, practical training that is the focus of the new W&L third year.

I believe both of these comments are profoundly mistaken. I believe it is crucial in legal education to go beyond simply asking students to read cases and instead require students to apply those lessons in practical settings. The understanding of an appellate decision that comes from simply reading and discussing a case is a hollow form of understanding. It is understanding without context, and pedagogical studies have shown that context is critical to forming long-term memories. The student cannot begin to incorporate cases or doctrines into their broader context until the practical significance of the holdings or rules is made clear.

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Where’s Lexington and Concord in D.C. v. Heller?

Minute_Man_tn.JPGMike O’Shea has thoughts on tomorrow’s argument in D.C. v. Heller below; here are my own. Despite my recent posts on original understanding, I recognize that it’s often the most important interpretive method actually used by courts in constitutional cases; and even non-originalists like me might fall back on the original understanding for a clause like the Second Amendment where there’s nothing else to go on.

So I’m therefore a little puzzled by the way the D.C. v. Heller briefs downplay what the Framers would have regarded as the paradigmatic case of the confiscation of arms by the government: the Battles of Lexington and Concord, the events that started the Revolutionary War. It’s a bit as if briefs on a 1950s statute protecting ports from surprise attacks made only a passing mention of Pearl Harbor.

Briefly, by 1775 the conflict between Britain and Massachusetts was coming to a head. Parliament passed increasingly restrictive acts, and transferred British troops from Nova Scotia to Boston to enforce them, but they had little impact outside of the confines of Boston itself. In 1775, the Massachusetts legislature was meeting in Concord, and had built up a store of arms there to arm colonial militia. General Gage in Boston, under orders from London to do something, sent an expedition to Concord to round up the leaders of the legislature — people such as Samuel Adams and John Hancock — and confiscate or destroy the hidden caches of arms. Starting at Lexington, local militias assembled to block the troops’ progress, shots were fired, and the war began. In Concord, the British regulars searching the town did in fact destroy cannon and supplies and threw shot into the river.

Surely this story of national government troops being sent to confiscate arms held by people now recognized as heroes would have been prominent in the minds of those proposing that “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” (Indeed, the whole tale of 1770s Massachusetts probably inspired the Third and Fourth Amendments as well.)

The Heller brief focuses the most on this story, detailing the history of pre-war Massachusetts, and noting that the Revolution began with the raid on Lexington and Concord. But what I’ve described as the “paradigmatic case” of arms confiscation is a little muted. Lexington and Concord in the Heller brief stand, not as the evil that is itself to be prevented by the Second Amendment, but as the occasion for various Framers to indicate their displeasure at the gun confiscation that resulted afterwards in Boston under General Gage:

Americans reacted strongly to the disarmament of Boston. Thomas Jefferson and John Dickinson drafted a “Declaration of the Causes and Necessity of Taking Up Arms,” issued by the Second Continental Congress on July 6, 1775. Gage’s disarmament scheme figured prominently among the “Causes” for armed revolt [listed in the Declaration].

It seems an odd way to characterize the importance of “the shot heard round the world.”

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The Constitution as Ritual

218830_basilica_di_san_pietro_vatican.jpgOne of the attractive features of originalism, I think, derives from the belief that sentences simply mean what they originally meant, either to the speaker or to the audience. This is a definitional argument: the definition of “to mean” is “what was originally meant,” and thus, by definition, if the Constitution does not mean what it originally meant it does not mean anything at all (in the same way that the set of all square circles is an empty set). I think this argument is mistaken. I think there are other sorts of sentences out there that have legitimate meanings that are not those necessarily assigned by either speakers or audiences (actual or potential) at the time.

Definitional originalism is usually argued for by analogizing the Constitution’s sentences to ordinary English sentences spoken in a quotidian context. For example, suppose you’re given a map with instructions written on it by a pirate telling you how to find his treasure. (OK, that may not be quotidian, but you could easily change the hypo to make it so: say it’s a grocery list.) If you want to find the treasure, you need to know what the words would have meant to the pirate’s likely audience. Fail to do that, and you fail to find the treasure.

Of course, if you really want to find the treasure, you need to know what the pirate actually intended, not just how audiences at the time would likely have interpreted the words. This is the point made by Stanley Fish recently in the Cardozo Law Review: the marks and sounds that ordinarily connote meaning are not “communications” at all unless and until they are communicating an intelligent being’s intended message. This, of course, is the old, disreputable “original intent originalism.” Fish argues, however, that whatever the practical difficulties it may pose, interpretation simply is the search for original intent. For example, if one knows that an alarm bell in a building is being rung by a monkey, it doesn’t mean “fire;” it means nothing at all. To paraphrase Hilary Putnam, Fish’s theory is that meanings just are in the head. And for the treasure map, it appears Fish is correct, at least if you want the treasure.

The problem with definitional arguments is that there is no good way to argue for them. If one’s interlocutors don’t buy the premise, then there is little to do but repeat it, perhaps while jumping up and down and waving one’s arms around. And it is particularly difficult if the proposed definition doesn’t cover the universe of possibilities.

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The New Originalism: Answering the Questions Nobody Asks?

constitution_thumb_295_dark_gray_bg.jpgOriginalism is back in the blogs. Michael Dorf posted a brief column on Findlaw, Who Killed the “Living Constitution”?, followed by a comment from Larry Solum, a rejonder from Randy Barnett, a response from Dorf, and another reply from Barnett. (This follows the flurry of activity a couple of weeks ago on the meaning of “natural born citizen” — see Jim Lindgren, Solum, Jack Balkin, and Solum). This debate is over “New Originalism,” and how much New Originalism differs from Old Originalism or from “Living Constitutionalism” (presumed to be the only other choice — more on that in some other post).

Balkin, Barnett, and Solum are all “New Originalists” — originalists who stress, not the original intent of the authors of a particular legal text, which is unrecoverable in many instances, but rather its “original public meaning” — the meaning that a given sentence would have been assigned by its audience at the time it was drafted. Over the past few years, in a book by Barnett, in two articles by Balkin, in numerous blog posts, and in various other places the general contours of New Originalism have been delineated. Broadly, New Originalism looks to original public meaning to the extent that is helpful; if not, then the interpreter of a constitutional provision is free to look elsewhere for meaning, such as the structure of the text, court precedents, or what have you. That latter process, drawing from the work of Keith Whittington, is called “construction,” to differentiate it from “interpretation” of the Constitution, which (the story goes) requires looking only at original public meaning. New Originalism can therefore be thought of as a kind of Chevron two-step analysis for constitutional law: (1) Is there a clear original public meaning? (2) If not, is the proposed interpretation reasonable under other interpretive methods?

Dorf argues that, to the extent the analysis stops at Step One, New Originalism can produce some “odious” results, a remark Barnett takes him to task for. I would modify Dorf’s concern to add that the problem is not so much “odious” results, but bizarre results; results not only out of step with where the law is, but out of step with any plausible account of where it’s going–which is what would distinguish, in my mind, Sweatt v. Painter from a decision finding, for example, that the original public meaning of the letters of marque clause was to permit Congress to require the entire citizenry to wear chicken costumes on Sunday. Sure, that’s ridiculous; but suppose we dug up incontrovertible evidence that that’s what the public would have understood by it (what else could “letters of marque” mean?). Barnett is apparently willing to bite the bullet and say, well, if that’s what the original public meaning was, we’re stuck with it, until the Article V amendment process runs its course. Break out the chicken suits.

But although that debate is philosophically interesting, I don’t think it’s where the real action is, so resolution of that particular criticism of Dorf is not terribly important. Rather, my impression is that Barnett, Balkin, and Solum believe relatively few controversial questions will actually get resolved at Step One. (I should note that Balkin’s Step One, by explicitly incorporating “principles,” can be Step-Two-like. I don’t think that fundamentally changes my analysis.) Rather, most questions will be proceeding to Step Two.

And Dorf’s criticism there is, Step Two is not a heck of a lot different than Living Constitutionalism. Nearly all of the interesting constitutional interpretation issues jump immediately to Step Two–the nonoriginalist part of New Originalism. That is, all of the phrases of the Constitution that produce actual litigation–“equal protection of the laws,” “due process,” “commerce,” “necessary and proper,” “freedom of speech,” “cruel and unusual punishment,” etc.–all are vague, and therefore not susceptible to Step One resolution. Original public meaning can do nothing to resolve any of those disputes.

This, according to New Originalists, is actually a feature of their theory, not a bug. Original public meaning gives us the bedrock on which constitutional interpretation rests; it tells us that when the Constitution says “thirty-five years old,” it can’t be read to allow a president who is only thirty; it tells us that the obligation of the national government to protect states against “domestic violence” does not refer to spousal abuse. The problem is, no one argues those issues. There are no cases in which someone petitions the Supreme Court for a ruling on whether states should get three senators. New Originalism answers the questions no one asks.

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What I Like About the New Battlestar Galactica

In honor of the BSG interviews that Dan, Dave, and Deven have posted below (which I hope to listen to soon), I thought I’d chime in with what I like about the show. I’m a big fan; BSG is one of only 3 “must-see” shows for me currently on television (the other 2 are Lost and the PBS NewsHour). My enthusiasm has waned a bit since “New Caprica,” but here’s what struck me as particularly interesting about at least the first couple of seasons:

1. The villains continually have the upper hand. That may not initially seem like a plus. But think of the number of shows where the heroes sail through life, barely needing to worry, while the villains face setback after setback that repeatedly results in defeat. E.g., Perry Mason, CSI, Star Trek (any generation), or the first Battlestar Galactica, where being trained by the Cylon defense force seemed to be a guarantee of utter incompetence in combat. Heroes that appear to face more realistic challenges that do not carry with them a guarantee of success are, at least, a refreshing change, and are more dramatically interesting for avoiding repetition and cliche.

Warning: Mild spoilers follow

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The Wikileaks Injunction Case

wikileaks.jpgSince it involves a blend of civil procedure, internet law, and copyright — i.e., my entire teaching package — I really have no excuse for not posting on the Wikileaks injunction matter. For those who have not been following it, a Swiss bank with a branch in the Cayman Islands, Bank Julius Baer (“BJB”), filed suit against the website in federal court in California and obtained a pair of emergency orders essentially shutting the domain name down. Wikileaks is a user-edited website, much like Wikipedia, but where the purpose is not to post encyclopedia entries, but rather leaked documents from governments and private entities. BJB argued as a basis for the orders that someone, allegedly a former employee, posted stolen documents revealing confidential aspects of BJB’s operations.

The orders require the domain name registrar, Dynadot, to point the domain name to an empty page. This doesn’t shut down the site, exactly, it just makes it harder to find. It’s like an order to a telephone company ordering a vanity 1-800 number like 1-800-BBOYDEN disconnected. Sure, you can still reach me on my cell and work numbers, but you’ll have to go look those up and most people won’t bother. (Note: I don’t actually have a 1-800 number — it’s a hypothetical.) The “Order Granting Permanent[!] Injunction” and “Amended TRO and Order to Show Cause re Preliminary Injunction,” both dated Feb. 15, are available online, as is the entire court docket, via Justia. (See Michael Froomkin’s discussion of why the relationship between the two orders is confusing.)

There’s lots of focus on the broader question of whether domain-name-disabling is a prior restraint barred by the First Amendment. I want to focus on several lesser but still interesting nuggets: the overlooked privacy interests at stake, the role of the DMCA, the breadth of TROs in the internet age, and “futility” arguments against anti-leak injunctions based on internet distribution.

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Why Is EZ Pass Suing Its Own Customers?

Toll BoothI had intended to post much more over the past couple of weeks, but Time did not permit. I asked it to be flexible, but Time tends to be a stickler about deadlines.

Anyway, a few days ago, I read a New York Times article on attempts by the EZ Pass system to crack down on toll evaders — drivers who purposefully go through the unmanned EZ Pass lanes and attempt to hide their license plates from the cameras by shielding them with various objects, including, in one odd case, a baby (I’m not sure I can picture how that was attempted). I was struck by this quote, about the money lost to toll evaders:

That is why Mr. Crosby and the other image review clerks are on the front lines of the never-ending battle to track down evaders who avoid paying tolls, wittingly or not. They each examine about 1,500 photos a day to identify the license plate numbers of the cars and trucks that go through E-ZPass toll booths without the electronic tags, or with ones that were broken or expired.

“If you let the bad guys get away with it, the good guys won’t pay,” said John Riccardi, a liaison for the Port Authority of New York and New Jersey at the service center.

This argument seems plausible on its face. Failing to enforce the EZ Pass lanes will diminish respect for the tolls, and lead to widespread toll evasion. But it is inconsistent with an argument heard frequently in copyright circles: that copyright enforcement, through lawsuits or DRM, fails to achieve any deterrent effect at all against the “bad guys,” and only forces “good guys” to jump through unnecessary hoops. Indeed, the argument sometimes goes, copyright enforcement decreases respect for copyrights, rather than increasing it. So does this argument apply to EZ Pass as well? Should EZ Pass be criticized, as the RIAA often is, for “suing its own customers”?

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