Columbia Public Law & Legal Theory Working Papers

Gender Politics and Child Custody: The Puzzling Persistence of the Best Interest Standard

Elizabeth S. Scott et al. — Wed, 10 Aug 2011 08:13:20 PDT

The best interest of the child standard has been widely criticized by scholars for its vagueness and indeterminacy, and yet for forty years it has been the prevailing rule for resolving custody disputes. This article confirms the deficiencies of the standard, focusing particularly on a problem that has received little attention: Best interests poses daunting verifiability problems because a) much family information is private, b) parties often are unable to prove the qualitative factors that that lawmakers have endorsed as proxies for best interest, and c) the incommensurability of these factors precludes courts from assigning them appropriate weights. Despite the substantial risk of erroneous or arbitrary custody decisions, the best interest standard remains firmly entrenched, with the apparent approval of policymakers and courts. We explain this puzzle as the product of two interrelated factors. First, a protracted gender war has embroiled advocates for mothers or fathers for decades, thereby creating a political economy deadlock. The main front in the gender war has been the legislative battle over joint custody, but it has also played out in the efforts of mothers’ groups to make domestic violence a key factor in custody disputes and the responsive effort by fathers’ advocates to elevate claims of parental alienation. These efforts have brought apparent determinacy to important categories of cases, and thus have contributed to the entrenchment of the best interest standard. Second, courts and legislatures have failed to recognize the intractable problems inherent in resolving these contests because they mistakenly believe that psychologists and other mental health professionals have the expertise to obtain accurate family information and then to evaluate and compare the competing evidentiary claims. Courts routinely ask these professionals to guide them in making custody decisions- an unusual role for experts in legal proceedings. But mental health experts do not have the skill or knowledge to perform these functions; acting without the constraints generally applied to experts, they routinely go beyond the limits of science and of their own expertise in advising courts about custody. Their participation thus masks the deficiencies of the best interest standard and contributes to its perpetuation. Exposing the illusion that psychological experts can overcome the problems inherent in best interest determinations is an important step toward real reform and better custody decisionmaking. Desirable reforms include adoption of the ALI approximation standard, restrictions on the admissibility of psychological evidence, and encouragement of private ordering for resolving most custody disputes.

Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine

Abbe R. Gluck — Mon, 20 Jun 2011 08:35:08 PDT

Do the Erie Doctrine and its “reverse-Erie” mirror require state and federal
courts to apply one another’s statutory interpretation methodologies when they interpret one another’s statutes? Surprisingly, the courts have no consistent answer to this question—even though state and federal courts constantly interpret one another’s laws. What’s more, exploring this application of Erie reveals that one of the most important jurisprudential questions about statutory interpretation also remains entirely unresolved: namely, are the rules of statutory interpretation “law,” individual judicial philosophy, or something in between?

This Article argues that many federal courts are getting the Erie question wrong—or at least that they are unaware that the question exists in the first place. The Erie inquiry also makes clear that federal courts treat both state and federal statutory interpretation methodology as much less “lawlike” than they treat analogous interpretive principles, without acknowledging or justifying the distinction. Federal courts routinely bypass state interpretive principles when they interpret state statutes, but almost always look to other state methodological principles, including state rules of contract interpretation, choice of law, and constitutional interpretation. Further, unlike in those other areas, the U.S. Supreme Court does not treat even its own statements about federal statutory interpretation principles as “law” and does not give them
precedential effect. This practice has licensed an interpretive freedom for state and lower federal courts when those courts interpret federal statutes—a freedom that facilitates federal-law disuniformity that the Court generally does not tolerate in other contexts. This Article challenges the notion that statutory interpretation is sufficiently different from other decisionmaking regimes to justify these distinctions.

The Puzzling Resistance to Judicial Review of the Legislative Process

Ittai Bar-Siman-Tov — Tue, 17 May 2011 08:24:33 PDT

Should courts have the power to examine the legislature’s enactment process and strike down statutes enacted contrary to procedural lawmaking requirements? This idea remains highly controversial. While substantive judicial review is well-established and often taken for granted, many judges and scholars see judicial review of the legislative process as utterly objectionable. This Article challenges that prevalent position and establishes the case for judicial review of the legislative process.

The Article contends that, ironically, some of the major arguments for substantive judicial review in constitutional theory, and even the arguments in Marbury v. Madison itself, are actually more persuasive when applied to judicial review of the legislative process. Furthermore, the Article claims that some of the arguments raised by leading critics of judicial review may actually be employed as arguments justifying judicial review of the lawmaking process. Therefore, countering the orthodoxy in American constitutional law and theory, the Article argues that judicial review of the enactment process is no less important and is, in fact, more justifiable than substantive judicial review.

Maximizing Autonomy in the Shadow of Great Powers: The Political Economy of Sovereign Wealth Funds

Katharina Pistor et al. — Thu, 17 Mar 2011 11:34:51 PDT

Sovereign Wealth Funds have received a great deal of attention since they appeared as critical investors during the global financial crisis. Reactions have ranged from fears of state intervention and mercantilism to hopes that SWFs will emerge as model long-term investors that will take on risky investments in green technology and infrastructure that few private investors are willing to touch. In this paper we argue that both of these reactions overlook the fact that SWFs are deeply embedded in the political economy of their respective sponsor-countries. This paper focuses on four countries that sponsor some of the largest SWFs worldwide: Kuwait, Abu Dhabi, Singapore and China. Each of these countries has been governed for decades by elites whose grip on power has been tied to the economic fortune of their country and their ability to pacify, or at least balance against, foreign powers. We argue that for these four countries, both the motives for establishing SWFs and the strategies they employ can best be explained by an “autonomy-maximization” theory. In a world where uncertainty—both economic and political—looms larger as a concern in the wake of the global financial crisis and political upheavals, such as the revolutions in Tunisia, Libya, and Egypt, elites use an increasingly diverse array of tools to protect their autonomy within the global system and hedge against unexpected turmoil. SWFs serve ruling elites by concentrating substantial resources, which can be used to pay-off domestic adversaries, to insure the economy against major downturns and thereby mitigate public discontent, to signal cooperation to major foreign powers, and to increase legitimacy in the global arena by presenting governance structures familiar to the West. We employ a comparative case study analysis to highlight the critical importance of these political economy dynamics in the establishment of SWFs, their governance structures, and their behavior in both normal times and during times of crisis.

The Anticanon

Jamal Greene — Mon, 07 Mar 2011 12:28:17 PST

Argument from the “anticanon,” the set of cases whose central propositions all legitimate decisions must refute, has become a persistent but curious feature of American constitutional law. These cases, Dred Scott v. Sandford, Plessy v. Ferguson, Lochner v. New York, and Korematsu v. United States, are consistently cited in Supreme Court opinions, in constitutional law casebooks, and at confirmation hearings as prime examples of weak constitutional analysis. Upon reflection, however, anticanonical cases do not involve unusually bad reasoning, nor are they uniquely morally repugnant. Rather, these cases are held out as examples for reasons external to conventional constitutional argument. This Article substantiates that claim and explores those reasons. I argue that anticanonical cases achieve their status through historical happenstance, and that their status is reaffirmed as subsequent interpretive communities avail themselves of the rhetorical resource the anticanon represents. That use is enabled by at least three features of anticanonical cases: their incomplete theorization, their amenability to traditional forms of legal argumentation, and their resonance with constitutive ethical propositions that have achieved consensus. I argue that it is vital for law professors in particular to be conscious of the various ways in which the anticanon is used—for example, to dispel dissensus about or sanitize the Constitution—that we may better decide if and when that use is justified.

IDEAL THEORY AND THE LIMITS OF HISTORICAL NARRATIVE

Anthony O'Rourke — Mon, 07 Mar 2011 12:28:16 PST

Some intellectual concepts that once played a central role in America’s constitutional history are, for both better and worse, no longer part of our political language.[1] These concepts may be so alien to us that they would remain invisible without carefully reexamining the past in order to challenge the received narratives of America’s constitutional development.[2] Should constitutional theorists undertake this kind of historical reexamination? If so, to what extent should they be willing to stray from the disciplinary norms that govern intellectual history? And what normative aims can they reasonably expect to achieve by exploring ideas in our past that are no longer reflected in the Constitution’s text or structure, or in constitutional doctrine? Aziz Rana’s The Two Faces of American Freedom provides not only an occasion for reflecting on these questions, but for exploring how deeply they are interrelated.

[1] See infra notes 84-86 and accompanying text.

[2] See infra notes 99-100 and accompanying text.

CONTEXTUALIZING REGIMES: INSTITUTIONALIZATION AS A RESPONSE TO THE LIMITS OF INTERPRETATION AND POLICY ENGINEERING

William Simon et al. — Mon, 07 Mar 2011 12:28:14 PST

When legal language and the effects of public intervention are indeterminate, generalist law-makers (legislatures, courts, top-level administrators) often rely on the normative output of contextualizing regimes – institutions that structure deliberative engagement by stakeholders and articulate the resulting understanding. Examples include the familiar practices of delegation and deference to administrative agencies in public law and to trade associations in private law. We argue that resort to contextualizing regimes is becoming increasingly common across a broad range of issues and that the structure of emerging regimes is evolving away from the well-studied agency and trade association examples. The newer regimes mix public and private participation in novel ways. Their structures are less hierarchical than those of traditional administrative agencies and less clearly bounded than those of traditional trade associations. While the traditional regimes function to make solutions developed in more specialized realms available to generalist law-makers, the newer ones function to organize collaborative inquiry where neither specialists nor generalists have well-developed understandings of problems or solutions. We explore the structure of such regimes and their relation to generalist law-makers through three examples – a health and safety regime that straddles private and public law (the California Leafy Greens Products Handler Marketing Agreement), a civil rights regime (the Juvenile Detention Alternatives Initiative), and an international environmental regime (the Dolphin Conservation Program of the Inter-American Tropical Tuna Commission).

“European Copyright Code” – Back to First Principles (with Some Additional Detail)

Jane C. Ginsburg — Fri, 28 Jan 2011 11:29:00 PST

The “Wittem Group” of copyright scholars has proposed a “European Copyright Code,” to “serve as an important reference tool for future legislatures at the European and national levels.” Because, notwithstanding twenty years of Directives and a growing ECJ caselaw, copyright law in EU Member States continues to lack uniformity, the Wittem Group’s endeavor should be welcomed, at least as a starting point for reflection on the desirable design of an EU copyright regime. Whether or not the proposed Code succeeds in influencing national or Community legislation, it does offer an occasion to consider the nature of the rights that copyright secures, and of the goals that a copyright system should serve.

The following commentary will reproduce the provisions of the proposed Code, together with annotations of particular articles. The proposed Code contains five chapters: (1) Works; (2) Authorship and Ownership; (3) Moral Rights; (4) Economic Rights; (5) Limitations. The text provides neither for remedies, nor for voluntary formalities. It also does not address neighboring rights. The five chapters vary in ambition, from cautious synthesis to radical prescription. If some timidity characterizes the chapters addressing authors’ rights, the hallmark of the chapter on limitations is its temerity, displaying an impetus to break through the rigidity of the current EU and national systems of copyright exceptions in order to favor EU-wide uses of copyrighted works in which, in the drafters’ perception, the interests of third parties, including the public, outweigh those of the authors or copyright owners. Reaction to the Wittem endeavor may turn at least in part on one’s assessment of whether the drafters have correctly stated and/or weighted the third party interests.

User-Generated Content Sites and Section 512 of the US Copyright Act

Jane C. Ginsburg — Mon, 22 Nov 2010 09:08:15 PST

This book chapter considers the liability of entrepreneurs of ‘user-generated content’ (UGC) sites. These immensely popular fora, such as YouTube and My Space, enable their participants to post and view a great variety of content, not all of it in fact generated by the posting user. The legislative compromise worked out between telecommunications providers and content owners in the 1998 ‘Digital Millennium Copyright Act’ provides the statutory framework, at once insulating the operators of UGC sites from debilitating copyright sanctions, while still affording meaningful relief to copyright owners. The statutory criteria to qualify for the section 512(c) safe harbor are designed to ensure that the beneficiaries of the safe harbor remain copyright-neutral with respect to the content they host.

The recent District Court decision in Viacom v. YouTube, however, indicates that the statutory safe harbor may shield even the entrepreneur who anticipates – indeed “welcome(s)” – massive infringements so long as the entrepreneur lacks “actual or constructive knowledge of specific and identifiable infringements of individual items.” While the statute makes clear that the entrepreneur should not be pressed into service as the investigative arm of the copyright owner, the Viacom decision does not simply decline to impose an obligation to seek out the infringers who may lurk within the user base. Rather, the decision arguably rejects neutrality to read into the statute a high degree of solicitude not only for online entrepreneurs whose businesses occasionally may accommodate infringing users, but also for those who effectively solicit infringers. If, by contrast, the neutrality principle does animate the statute, a court could appropriately apply that principle through a duty to take reasonable precautions to avoid apparent and repeat infringements.

Subsidizing the Press

David M. Schizer — Tue, 31 Aug 2010 09:20:57 PDT

Information is the lifeblood of a free society, and the professional press is a crucial source of information. For many years, the positive externalities from investigative and beat reporting were cross-subsidized by robust advertising and subscription revenue. Yet the professional press is experiencing a severe economic crisis, and news organizations across the nation are on the brink of insolvency. When an activity that generates positive externalities is undersupplied, the textbook policy response is a government subsidy. Yet if the press becomes financially dependent on the government, would they be deterred from monitoring and criticizing the government? If so, the subsidy would undercut the very social benefits it is meant to preserve.

In response to this conundrum, this Article proposes a three-part analytical framework for evaluating press subsidies. The first step is to assess how effectively the subsidy safeguards press independence, including the extent to which the First Amendment helps to achieve this goal. The second criterion, which this Article calls “focus,” gauges how effectively a subsidy channels resources to externality-generating activities, as opposed to other uses. For example, a subsidy that induces press organizations to hire more reporters is superior to one that can be used, instead, to fund pay raises for the advertising staff or more attractive office space. The third criterion is political plausibility. How likely is a subsidy to attract political support? And how much political support does it need? One that can be implemented under current law, for example, requires less political support than one that depends on broad new legislation.

Based on this framework, the principal recommendation of this Article is for news organizations to make greater use of the nonprofit form. By providing a subsidy through the charitable deduction, we would not empower the government to choose how much funding to allocate to each news organization. Instead, the charitable deduction allows the government to piggyback on the judgments of private donors about which charities to support. In addition, this subsidy is feasible politically since it already can be used, to a significant extent, under current law. This Article also considers four alternative subsidy structures, highlighting their strengths and weaknesses and showing the tradeoffs they present.

“The Sole Right...Shall Return to the Authors”: Anglo-American Authors’ Reversion Rights From the Statute of Anne to Contemporary U.S. Copyright

Lionel Bently et al. — Tue, 24 Aug 2010 07:38:39 PDT

This study of author’s reversion rights begins with the Statute of Anne and the debates that led up to the adoption of section 11, which vested in the author a second fourteen-year term, provided he or she was still alive at the end of the initial fourteen-year term. The study then will address the impact of the author’s reversion right on publishing practice and authors’ welfare in the United Kingdom through the eighteenth century to the demise of the reversion right in 1814. We will suggest that the apparent lack of use of the reversion right by authors in the eighteenth century was a result of a host of factors, including but not limited to the common (but by no means universal) contractual practice which purported to confer on a publisher the entirety of an author’s rights. In addition, we call attention to the multiple and shifting interpretations of what was required by section 11, as well as the social and economic limitations on an author’s capacity to take advantage of the reversion. The second half of this study turns to the law and publishing practices in the United States, where reversion rights have proved more enduring if not always more beneficial to authors.

The study concludes that history and practice suggest at best inconsistent achievement of reversonary rights’ aim to offset the author’s weaker bargaining position by assuring her a future opportunity to make a better deal. Legislators might improve the reversion rights regime, but it is not clear that authors’ lots will accordingly ameliorate. Substantive regulation of contracts of transfer, rather than rights to terminate those transfers, may offer the preferable path to ensuring meaningful and effective protection of authors’ interests in reaping the fruits of their intellectual labors.

The Structure of Terrorism Threats and the Laws of War

Matthew C. Waxman — Wed, 26 May 2010 09:48:26 PDT

This article considers a major debate in the American and European counterterrorism analytic community—whether the primary terrorist threat to the West is posed by hierarchical, centralized terrorist organizations operating from geographic safe havens, or by radicalized individuals conducting a loosely organized, ideologically common but operationally independent fight against western societies—and this debate’s implications for both jus ad bellum and jus in bello. Analysis of how the law of armed conflict might be evolving to deal with terrorism should engage in more nuanced and sophisticated examination of how terrorism threats are themselves evolving. Moreover, the merits of legal reform proposals depend on their capacity to meet strategic needs while protecting humanitarian, liberty, and conflict-resolution interests. That capacity, in turn, depends on how well the assumptions underlying those proposals track accurately the anticipated—but uncertain—future terrorism threat environment.

Self-Defense and the Limits of WMD Intelligence

Matthew C. Waxman — Wed, 26 May 2010 09:48:25 PDT

During the 2008 presidential campaign, then-candidate Barack Obama stated: “Sometimes, the preventive use of force may be necessary, but rarely. The experience of Iraq underscores that often, perceived threats are not as real [as] they may seem, and our intelligence may be imperfect. But, when our intelligence is good and defensible we should not rule out the use of force.” This chapter examines ways of assessing legally whether that intelligence is sufficiently good and defensible. It argues that an objective reasonable necessity approach to WMD capability assessments can serve long-term peace and security objectives and, more specifically, how the law governing use of force might evolve to guide capability assessments. A reasonable necessity approach, combined with an objective standard of assessing WMD capability and operating as a narrow legal alternative to formal U.N. Security Council authorization, can best balance and allocate competing risks in an environment of significant capability uncertainty. Moreover, the substantive evidentiary issues forced to the surface through objective reasonableness analysis are critical to managing some of the dangers of operating outside explicit U.N. Security Council authority, and are critical to the effective operation of the legal processes that the strict UN Charter constructionists advocate.

Minimalism and Experimentalism In the Administrative State

Charles F. Sabel et al. — Wed, 05 May 2010 13:19:07 PDT

Minimalism is our name for the dominant liberal perspective on public policy implementation in contemporary legal scholarship. Minimalism emphasizes public interventions that incorporate market concepts and practices and that centralize and minimize administrative discretion. This essay appraises Minimalism in relation to a competing liberal view of the administrative state. Experimentalism emphasizes interventions in which central government affords broad discretion to local administrative units but measures and assesses their performance in ways designed to induce continuous learning and revision of standards. We fault Minimalist scholarship for ignoring an important reorientation in public policy along Experimentalist lines in the U.S. and elsewhere since the 1990s. We also argue that, in practice, Minimalism is excessively preoccupied with static efficiency norms and price signals and insufficiently attentive to learning and to “weak signals” of risk and opportunity. Experimentalist intervention is a more promising approach in the growing realm of policy areas characterized by uncertainty about both the definition of the relevant problem and its solution.

Lawmakers as Lawbreakers

Ittai Bar-Siman-Tov — Fri, 23 Apr 2010 08:13:42 PDT

How would Congress act in a world without judicial review? Can lawmakers be trusted to police themselves? This Article examines Congress’s capacity and incentives to enforce upon itself “the law of congressional lawmaking”—a largely overlooked body of law that is completely insulated from judicial enforcement. The Article explores the political safeguards that may motivate lawmakers to engage in self-policing and rule-following behavior. It identifies the major political safeguards that can be garnered from the relevant legal, political science, political economy, and social psychology scholarship, and evaluates each safeguard by drawing on a combination of theoretical, empirical, and descriptive studies about Congress. The Article’s main argument is that the political safeguards that scholars and judges commonly rely upon to constrain legislative behavior actually motivate lawmakers to be lawbreakers.

In addition to providing insights about Congress’s behavior in the absence of judicial review, this Article’s examination contributes to the debate about judicial review of the legislative process, the general debate on whether political safeguards reduce the need for judicial review, and the burgeoning new scholarship about legislative rules.

Discrimination by Comparison

Suzanne B. Goldberg — Thu, 18 Mar 2010 12:15:26 PDT

Contemporary discrimination law is in crisis, both methodologically and conceptually. The judiciary’s favored heuristic for observing discrimination – a comparator who is like the discrimination claimant but for the protected characteristic – has nearly depleted discrimination jurisprudence and theory. The resulting deficit can be explained, in turn, by the comparator methodology’s profound mismatch with current understandings of identity discrimination and the realities of the modern workplace. Even in run-of-the-mill cases, comparators often cannot be found, particularly in today’s mobile, knowledge-based economy. This difficulty amplifies for complex claims, which rest on thicker understandings of discrimination developed in second-generation intersectionality, identity performance, and structural discrimination theories. By collapsing an observational heuristic into a defining element of discrimination, courts have largely foreclosed these theories from consideration, leaving the mismatch in place and sharpening the divide between theory and practice. At the same time, courts have further shrunk the very idea of discrimination by disregarding the lesson of harassment and stereotyping jurisprudence that discrimination can occur without a comparator present.

The comparator methodology retains its appeal, despite these deficiencies, because its empirical patina enables courts to avoid making sociologically-oriented inquiries that stretch core judicial competencies. That is, the methodology permits courts to evaluate discrimination claims without appearing to engage in a subjective analysis of workplace dynamics. Given the complex nature of both identity and discrimination, however, these comparisons produce a false certainty at best. By contrast, alternate methodologies, including the contextual consideration favored in harassment and stereotyping jurisprudence as well as the hypothetical comparator embraced in European law, offer a meaningful framework for matching discrimination law and norms to workplace facts, while preserving judicial legitimacy. With comparators off of their methodological pedestal, we may yet recover space for the renewed development of discrimination jurisprudence and theory.

The Story of Bob Jones University v. United States: Race, Religion, and Congress’ Extraordinary Acquiescence

Olati Johnson — Thu, 11 Mar 2010 14:32:48 PST

On May 25, 1983, the Supreme Court ruled 8-1 that the United States Internal Revenue Service (IRS) had authority to deny tax-exempt status to Bob Jones University, Goldsboro Christian School, and other private and religious schools with racially discriminatory educational policies. The Court relied on the statute’s broad purpose and placed significant weight on Congress’ failure to enact legislation to overturn the IRS policy. A complete account of the legislative history, provided here, both supports and undercuts the Court’s opinion. More importantly, this story provides an account of the dynamic interaction among a Supreme Court critical of racial integration, a Congress divided on this issue, and a presidency at war with itself. In the end, the story suggests that Bob Jones may have a limited role in shaping interpretive methodology, but that the case reveals how all three branches of government (as well as the public) interact to shape a statute’s meaning.

Avoiding Eight-Alarm Fires in the Political Economy of Systemic Risk Management

Jeffrey N. Gordon et al. — Thu, 04 Mar 2010 09:56:51 PST

The inherent tensions in the financial sector mean that episodes of extreme stress are inevitable, if unpredictable. This is so even if the regulatory and supervisory regimes are in many respects effective. The capacity of government to intervene may determine whether the distress is confined to the financial sector or breaks out into the real economy. Although adequate resolution authority to address a failing financial firm is a necessary objective of the current regulatory reform, a firm-by-firm approach will be unable to address a major systemic failure such as the Crisis of 2007-08, which may require capital support of the financial sector to avoid severe economic harm. We therefore propose standby systemic emergency finding authority, triggered by agreement among Treasury, the Federal Reserve, and the FDIC. Such a fund, scaled appropriately to the size of the US economy, $1 trillion, should be funded (and partially pre-funded) by risk-adjusted assessments on all large financial firms, who benefit from systemic stability. Standby emergency authority avoids the need for high stakes legislative action mid-crisis, which can be destabilizing even if successful and catastrophic if not. The “triple key” constraint and on-going monitoring and oversight should address concerns of legitimacy and accountability.

The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism

Abbe R. Gluck — Fri, 05 Feb 2010 07:46:48 PST

This Article offers the first close study of statutory interpretation in several state courts of last resort. While academics have spent the past decade speculating about the “death of textualism,” the utility of legislated rules of interpretation, and the capacity of judges to agree on a single set of interpretive rules, state courts, as it turns out, have been engaging in real-world experiments in precisely these areas. Several state courts have articulated governing interpretive regimes for all statutory questions. Methodological stare decisis—the practice of giving precedential effect to judicial statements about methodology—is generally absent from federal statutory interpretation, but appears to be a common feature of some states’ statutory case law. Every state legislature in the nation has enacted certain rules of interpretation, which some state courts are, in an unexpected twist, flouting. And, far from textualism being “dead,” what emerges from these state cases is a surprisingly strong consensus methodology—what this Article terms “modified textualism”—a theory that shares textualism’s core components but has broader potential appeal. These state developments offer a powerful counter-paradigm to that of the U.S. Supreme Court, where persistent interpretive divides and a refusal to treat methodological statements as precedential have made interpretive consensus seem impossible. They also highlight that, for all the energy that the statutory interpretation wars have consumed, the legal status of methodology itself—whether it is “law” or something “less”—remains entirely unresolved.

The US Experience with Copyright Formalities: A Love/Hate Relationship

Jane C. Ginsburg — Fri, 15 Jan 2010 08:27:20 PST

Copyright formalities – conditions precedent to the existence or enforcement of copyright, such as provision of information about works of authorship that will put the public on notice as to a work’s protected status and its copyright ownership, or deposit of copies of the work for the national library or other central authority, or local manufacture of copies of works of foreign origin – have performed a variety of functions in US copyright history. Perhaps of most practical importance today, formalities predicate to the existence or enforcement of copyright can serve to shield large copyright owners who routinely comply with formalities from the infringement claims of smaller copyright owners, particularly individual authors, who may lack the information or resources systematically to register and deposit their works.

This article will first define “formalities,” and then will consider their conceptual foundations. Next, it will examine the U.S. experience with formalities, from the first copyright statute of 1790 to the present. Finally, it will consider whether and how the beneficial, information-providing role of formalities might be achieved, without engendering forfeitures of protection or posing practical impediments to meaningful enforcement of copyright.