Eugene Volokh's Blog, page 2637

Bill Patry Guest-Blogging

(Eugene Volokh)

I'm delighted to say that Bill Patry will be guest-blogging this week about his new book, How to Fix Copyright. I've known Bill for 18 years, from the time that he was copyright counsel to the U.S. House of Representatives Committee on the Judiciary. He has also been a Policy Planning Advisor to the Register of Copyrights, a full-time professor at the Cardozo School of Law, and a practicing copyright lawyer; and now he is Senior Copyright counsel at Google Inc. (though the book represents his personal views, and not those of his employer). He is also the author of an 8-volume, 6500-page treatise, Patry on Copyright (Thomson/West), a separate treatise on fair use (also West), a prior one-volume treatise on copyright that went through two editions (BNA Books), and many law review articles. Here's an excerpt of the How to Fix Copyright summary:

The arrival of the Internet was revolutionary, and one of the most tumultuous developments that flowed from it — the upending of the relatively settled world of copyright law — has forced us to completely rethink how rights to a work are allocated and how delivery formats affect an originator's claims to the work. Most of the disputes swirling around novel Internet media delivery systems, from Napster to Youtube to the Google Book Project, derive from our views on what constitutes a proper understanding of copyright. Who has the right to a work, and to what extent should we protect a rights holder's ability to derive income from it? Is it right to make copyrighted works free of charge?

How to Fix Copyright offers a concise and pithy set of solutions for improving our increasingly outmoded copyright system. After outlining how we arrived at our current state of dysfunction, the book offers a series of pragmatic fixes that steer a middle course between an overly expansive interpretation of copyright protection and abandoning it altogether. We have to accept that we cannot force people to buy copyrighted works, but at the same time, we have to enforce laws against counterfeiting. Most importantly, we have to look at the evidence — what furthers creativity yet does not deny protection to those who need it to create? We should also reject the increasingly strident (and ill-informed) denunciations of delivery systems: Google Booksearch and DVRs are merely technologies, and are not the problem. Throughout, the book stresses that we need to recognize that the consumer is king. Law can only solve legal problems, not business problems, and too often we use law to solve business problems.

Curriculum and Legal Education Reform

(Orin Kerr)

In a recent speech, Second Circuit Judge Jose Cabranes argued that law schools should get "back to basics" with more bread-and-butter courses and fewer "law and" courses, in addition to other changes:

To get back on track, law schools should shift their curricula back to core courses and away from the interdisciplinary classes that have grown in popularity, he said . . .

Cabranes lamented the move by law schools toward specialized, often interdisciplinary courses that can displace "black-letter" law courses — criminal and civil procedure, evidence and federal courts. He related a story about a friend's child who enrolled in a law school clinic focusing on housing court — but who had never taken a property law course.

Core law courses should come before clinics and interdisciplinary work, even if the latter are more popular with students and faculty, he said.

I'd love to see an empirical study on how much, if at all, the differences in what courses students take impact their skill sets and influence careers as lawyers. These days, most courses after the first year are elective, and students can take a wide range of classes. Students can decide to take all basic doctrinal classes or all "law and" classes. They can take a lot of clinic credits (at most schools, at least) or none. Or they can take a mix of classes here and there, blending different kinds of classes. The diverse choices of different students would seem to allow examination of whether such choices make any difference — or at least if the students who opted for one set of courses ended up with different careers than ones who opted for a different set. I'd be very interested to know if there's any difference; my first guess is that there is little or none.

Hat tip: Brian Leiter

Bleg on 3-strikes laws

(David Kopel)

What are the most draconian three-strikes laws currently on the books? Do any states still have a 25 year mandatory minimum for the third strike?

Separated at Birth?

(David Bernstein)

Yeye, Kai-Lan's grandfather, and the late Milton Friedman.

Why Study Law and Economics? And Is the JD Really the Doctor of Social Engineering?

(Kenneth Anderson)

Tomorrow is the first class in my 1L elective class in Law and Economics.  The 1Ls at my school are allowed one spring elective course, and can choose among an array of courses for 1Ls, including Law and Economics, International Law, Intellectual Property, Women and the Law, Law and Literature, and some others.  Law and Economics is popular, particularly among the many students who studied economics, business, or management as undergraduates, but also among students who didn't but perceive that they need to learn about these disciplines in order to be effective lawyers.

Demand is high enough that we offer two sections of the 1L Law and Economics class; at our school it is taught as a truncated version of the standard course.  I use Polinsky's short Introduction to Law and Economics, and we walk through various efficiency and Coase Theorem approaches to common law topics found in the first year.  I supplement this book with materials on public choice, some institutional materials, and a tiny bit of strategic behavior and prisoners' dilemma material.  It's a once a week class for two hours, not much time.  The most unusual materials I use are Coase's original Problem of Social Cost article, and then, as a non-technical introduction to risk, Peter Bernstein's intellectual history of risk, Against the Gods.

I've noticed, however, as the financial crisis has gradually moved to envelop lawyers and legal education, students are starting to ask questions about what exactly Law and Economics as a topic is supposed to do for them as practicing lawyers.  I've found students asking this question midway through the term or, increasingly, in frustrated or downright nasty comments on course evaluations — how is this useful to me as a lawyer?  Part of the frustration comes because economics either seemed so obvious to business, or because what many undergraduates studied as "economics" just was practical management studies. One arrives at law school, thinking it is the same in law, but it's not.  They assumed they would like it because it would be "practical" — economics would "solve" legal problems — but then it isn't and it doesn't.

I want to take up this question with students in the first class, while people still can opt out.  I talked about this last year, midway through the course, when I sensed student irritation that this seemed so intellectual and pointy-headed.  I said two things.  First, this is the language of the law today — these are the framing intellectual concepts underlying an awful lot of practical things in the law, and not just business or finance law, either.  Lawyers breathe words like externalities or efficiency; it's part of the atmosphere of American law.

Second, today there is a keen awareness in the legal system, among all its parts, that consequences matter.  I gave the example of some appellate decision on some environmental matter where the court was specifically called upon to weigh anticipated costs and benefits.  That was cheating a little bit — I deliberately picked a case in which the law itself called for a cost-benefit analysis as part of the very law at issue.  Even so, law and economics is the study of anticipated consequences in the law, and, well, no federal judge wants to issue a ruling and wake up the next day to discover he or she has unilaterally but inadvertently dismantled the securities markets.  But didn't know it because the parties had argued the law and cases and regulations, etc., but hadn't briefed the judge on the likely consequences of a given ruling for the system as a whole.

I thought that sounded pretty good, but interestingly the students weren't impressed.  As one of them put it, that might be fine for students at the top ten schools, but students at my school are not going to become judges or people who create the rules.  They are going to become, if they are lucky, lawyers doing much more modest tasks that take the existence of the rules — including their efficiency or inefficiency, and their consequences — pretty much for granted.  They are, after all, the rules of the game.  Microecon is mostly  "internal" as a mode of explanation to business and management studies; Law and Economics is "external," not internal, to law, as a mode of explanation; it "explains" law using materials external to it.

I increasingly worry that, at least for most students at most law schools, this comment is correct.  Law and economics is often associated with as much as there is in legal academia of conservative or libertarian thought.  But it might be better understood as studies in social engineering.  The economics-driven focus on the design of rules toward efficient ends sometimes makes it seem that the JD stands for, not juris doctor, but doctor of social engineering.

There is some ideological irony in this, of course.  If there is, however, I'd say it's a result of the focus on the design of regulatory systems.  It tends to turn traditional interpretive, discursive methods of law into social engineering design –and this implicitly underlies even free-market orientations in law and economics because they, too, are implicitly social choices about design.  (I think Dick Posner recently made some similarly critical remarks about the prevalence of law and economics in the curriculum.)

Whether that is good or bad for students at the very top law schools, I am fairly sure that it not what my students will mostly do in their careers.  Some of them (we're a DC school, so maybe even many of them), will eventually be writers of regulations or regulatory guidance — in which the approach is law-creating, forward-looking, and consequentialist.  But I don't think it's true of the vast majority of students outside of the top twenty law schools.  Perhaps I am wrong.  And it might very well be true — indeed, I think so — that whether one spends one's career doing regulatory design or not, it is still valuable as an intellectual frame for the study of law, whatever and however one does it in practice. Still, the design emphasis is not that of the lawyer in practice most of the time — though studying a field of law through the lens of its efficient or inefficient design might be the best way to grasp the field as whole, in order to better practice it in its particulars.

Does this gap matter to the study of law?  Does it matter whether it was my students visiting at the University of Virginia or my own more modestly ranked school?  My unhappy students did not dispute that law and economics sought to teach them a particular way of understanding law and legal questions, a particular vocabulary and method — they instead questioned whether that vocabulary and method was very useful to lawyers who had to deal internally with legal materials and system and rules as they were, not as they might be designed hypothetically toward greater or lesser efficiency.  Their role in the legal system is not to play God.

So let me put it to you.  What should I tell my 1L students tomorrow as to why they should study law and economics — or not?  (Please give answers for the students who understand that implicit in this question is an opportunity cost and understand it in that jargon, and those who do not or at least do not already know the terminology.)

Congratulations!

(David Bernstein)

Congratulations to my former GMUSL student and George Mason alum Josh Blackman, who will be a tenure-track lawprof at South Texas Law School starting this Fall. Congratulations also to Brian Frye, who was my research assistant when I visited at Georgetown Law Center in 2003. Brian will be starting a tenure-track gig at University of Kentucky this Fall. Brian joins former Bernstein RAs Jeffrey Jackson of Washburn Law School (from the same Georgetown semester) and Nate Oman of William and Mary (who helped me with You Can't Say That! as a college student) in the legal academy.

Finally, congratulations to GMUSL alum and current George Mason visiting assistant professor Jeremy Kidd, who has accepted a tenure-track appointment at Mercer Law School. I think this is the first time George Mason has placed two alums in tenure-track academic posts in the same year.

The Nazis and Political Ignorance

(Ilya Somin)

In today's Wall Street Journal, Jonah Lehrer has an article arguing that political ignorance makes democracy work better, and may even be essential to its survival. Much of the article is based on extrapolations from a dubious study of fish behavior, which I criticized here. Lehrer takes the argument a step further by claiming that excessive political knowledge may have been a big factor in facilitating the Nazis' rise to power in 1930s Germany:

If every voter was well-informed and highly opinionated, then the most passionate minority would dominate decision-making. There would be no democratic consensus—just clusters of stubborn fanatics, attempting to out-shout the other side. Hitler's rise is the ultimate parable here: Though the Nazi party failed to receive a majority of the votes in the 1933 German election, it was able to quickly intimidate the opposition and pass tyrannical laws.

That the Nazis succeeded because German voters were too knowledgeable would have come as news to Adolf Hitler, who wrote in Mein Kampf that "[t]he receptivity of the great masses is very limited, their intelligence is small, but their power of forgetting is enormous." As a result, he advocated taking advantage of political ignorance by using crude and simplistic propaganda:

All propaganda must be popular and its intellectual level must be adjusted to the most limited intelligence among those it is addressed to. Consequently, the greater the mass it is intended to reach, the lower its purely intellectual level will have to be. But if, as in propaganda for sticking out a war, the aim is to influence a whole people, we must avoid excessive intellectual demands on our public, and too much caution cannot be extended in this direction.....

Once understood how necessary it is for propaganda in be adjusted to the broad mass, the following rule results:

It is a mistake to make propaganda many-sided, like scientific instruction, for instance....

[A]ll effective propaganda must be limited to a very few points and must harp on these in slogans until the last member of the public understands what you want him to understand by your slogan. As soon as you sacrifice this slogan and try to be many-sided, the effect will piddle away, for the crowd can neither digest nor retain the material offered.

This kind of propaganda was an important part of the Nazis' electoral success under the Weimar Republic, when they eventually managed to get over one third of the vote, making themselves the single most popular party. If the average German voter was "well-informed," it would have been much harder for the Nazis to achieve so much electoral success. For example, a well-informed German electorate would have been skeptical of absurd Nazi claims that Germany's political and economic crisis was caused by the tiny Jewish minority. They might also have rejected the Nazis' crude zero-sum view of the world economy, which posited that Germany could only achieve prosperity by conquering other nations. It isn't possible to list here all the different ways that the Nazis benefited from voter ignorance. But the bottom line is that a more knowledgeable German electorate would not have been to their advantage.

Lehrer also presents a distorted view of what happened after the Nazis took control of the government in early 1933. They did not "intimidate the opposition" by being "the most passionate minority," as may have occurred in the fish study. Rather, they did so by the more conventional method of banning all opposition parties, imprisoning their leaders, and inflicting severe punishment on anyone who resisted. Absent these measures, it is unlikely that they would have been unable to crush the opposition so completely. There is no reason to believe that an electorate composed of "opinionated and well-informed" voters would necessarily give in to the most "most passionate" minority absent the use of force. Indeed, the more opinionated and well-informed you are, the less likely it is that you will change your mind about an important issue merely because a "passionate minority" loudly claims that you are wrong. As Hitler recognized, crude propaganda is usually most effective with ignorant audiences.

I don't deny that there can be unusual situations where political ignorance is actually beneficial. But the rise of the Nazis is one of the last places to look for evidence that ignorance leads to bliss.

Comment Posting Delays

(Eugene Volokh)

For some technical reason, over the last couple of days we've been seeing delays with the public posting of some of the comments. Our apologies, and don't take it personally — it's not you, it's us. We hope to have this under control soon.

Chess and the Open Source Revolution

(David Post)

From Tyler Cowen, via James Grimmelmann: Soren Riis has a really fascinating essay on the rather astonishing recent developments in the world of computer chess [Part 1, Part 2, and Part 3) focusing on the the lifetime ban, recently handed down by the organizers of the World Computer Chess Championships, issued against the author of "Rybka," a highly successful computer chess program, on the grounds that it is using "plagiarized" code.

It's a fascinating story in its own right, but particularly for what it says about innovation and information; here's the key figure, showing the improvements in computer chess play in the last two decades:

What happened in the mid-2000s that led to the sudden improvement in both the overall quality of computer and the rate at which new programs became seriously competitive? Riis writes:

What happened? Starting with the release of the first open-source Fruit in mid-2004, and continuing with the release of subsequent versions of Fruit, open-source engine Stockfish, and especially the release of reverse-engineered Rybka derivatives, highly detailed recipes for building strong, modern chess engines have been in the public domain. Fledgling chess programmers as well as programming veterans have not failed to take notice and the state of the art has advanced rapidly. As a result of this spread of knowledge new programs receive a tremendous performance boost and become "fast climbers".

There's a great deal more in the original essay about the nature of proprietary rights and the norms and customs in this particular community — well worth reading.

This Just In: File-Sharing is a Religion

(David Post)

In Sweden, at least — where, according to this article in PC Magazine, the government has just officially recognized the "Church of Kopimism," whose central tenet is that "information is holy and copying is a sacrament," and whose sacred symbols are CTRL-C and CTRL-V.

I haven't the faintest idea, of course, what it means, in Sweden, to be officially recognized as a religion, and what consequences flow from the determination; we live in a country where, obviously, there is no government body charged with determining what is, or is not, a "religion" (though courts, equally obviously, must from time to time make such a determination when looking at Free Exercise challenges to government action, or at Religious Freedom Restoration Act claims). But I wonder how a defendant in a file-sharing copyright action might fare by raising a RFRA defense ?

And while we're on the subject of religious nonsense, the same article informs us that "scientists in the U.K. have recently discovered that Apple technologies actually provide some people with a religious experience . . . [finding that] Apple products stimulate the same parts of the brain as religious imagery does in people of faith."

[Thanks to V. Steinbok for the pointer]