Columbia Public Law & Legal Theory Working Papers

With Untired Spirits and Formal Constancy: Berne-Compatibility of Formal Declaratory Measures to Enhance Title-Searching

Jane C. Ginsburg — Fri, 10 May 2013 12:47:17 PDT

Formalities are back in fashion. Their acolytes fall into two camps, reflecting their different objectives. For formalities, which we shall define as conditions on the existence or enforcement of copyright, can divest authors of their rights, or instead enhance authors’ exploitation of their works by alerting their audiences to the authors’ claims. For one camp, formalities’ confiscatory consequences, once perceived as barbaric, are to be celebrated. A second camp enlists formalities to populate not the public domain, but the public record. Notice, registration and recordation, as declaratory measures, inform the public of the author’s claims and, by facilitating rights-clearance, help the author disseminate and derive compensation from her work. I prefer to call title-searching information “declaratory measures” rather than “formalities” because only “formalities,” in their Berne Convention sense, entail the loss of copyright or the limitation of basic remedies. The aspirations of the second camp tend toward information rather than confiscation, but many may be concerned that only the threat of the latter will impel provision of the former.

The perceived need to give title-searching measures teeth by penalizing authors who fail to declare or to register their claims allows the rhetoric of reformalization to conflate formalities’ two distinct goals. Recognizing that the “good cop” face of formalities tied to title-searching may attract more followers than the “bad cop” function of expropriating authors, some reformalizers may offer the kinder, gentler rationale of reducing search costs in support of declaratory obligations whose non fulfillment will confiscate the copyright. Not all the laments about high transactions costs, however, withstand analysis. For even were authors easily found and negotiations simplified, the real problem for many enthusiasts of formalities is having to transact at all, when in their view the object of the proposed translation should not, or should no longer, be protected in the first place.

This paper addresses the Berne Convention’s prohibition on the imposition of “formalities” on the “enjoyment or exercise” of copyright, and the compatibility with that cornerstone norm of declaratory measures to enhance title-searching. In the Berne context, “enjoyment” means the existence and scope of rights; “exercise” means their enforcement. Voluntary provision of title-searching information on a public register of works and transfers of rights is fully consistent with Berne, and should be encouraged. But may a member State impose sanctions or disabilities for failure to supply that information?

The first Part of this paper will address conditions on the existence or enforcement of rights. I conclude that “formalities” prerequisite to the initial attachment or persistence of protection, or that limit the scope of minimum rights or the availability of minimum remedies, violate the norms of Berne and subsequent multilateral instruments. By contrast, it may be permissible to condition “Berne+” subject matter, rights, or remedies on compliance with declaratory measures. The “Berne+” path, however, risks descending into controversies of characterization, as one contender’s “plus” proves another’s “minimum” norm.

The second Part of this paper will consider declaratory measures regarding ownership of rights under copyright. The Berne Convention generally does not cover copyright ownership, and one may urge that conditions on who may enjoy or exercise rights are a matter distinct from disabilities imposed on existence or enforcement in general. Accordingly, sanctions against the failure to provide information pertaining to the transfer of rights should be Berne-compatible. Specifically, I propose making the validity of a transfer of copyright depend on the transferee’s recordation in the Copyright Office of “a note or memorandum of the transfer” containing sufficient information to permit third parties to ascertain who owns what rights in the work. The second Part then endeavors to resolve some of the practical problems a mandatory recordation of transfer obligation might engender. These include time limits for recording the transfer, gaps in the title-searching record, and effect on transfers of rights in non-U.S. works when the United States is one of the territories covered by the grant.

Exceptional Authorship: The Role of Copyright Exceptions in Promoting Creativity

Jane C. Ginsburg — Mon, 04 Mar 2013 07:27:24 PST

It has been suggested that today’s authors need copyright exceptions and limitations more than they need exclusive rights. I will first test the proposition by examining what one might call authorship-oriented exceptions, from ‘fair abridgement’ in early English cases to the original meaning of ‘transformative use’ in the U.S. fair use doctrine. All of these exceptions trained on the promotion of creativity by allowing authors to make reasonable borrowings from old works in the creation of new ones. I conclude that both today’s assemblers of ‘remixes’ and yesterday’s traditional creators of works of entertainment or scholarship have needed the flexibility with which these kinds of exceptions temper exclusive rights.

Next I will examine the bolder proposition that, compared with their need for limitations on copyright, authors today neither desire nor require exclusive rights. The claim suggests that today’s authors do not (or should not) seek to make a living from or control the exploitation of their creations. Behind the belittling of exclusive rights there loom significant business interests built on the expansion of copyright exceptions. The exceptions in question do not foster creativity, they redistribute the fruits of creativity. They are authorship-undermining exceptions because their justification increasingly relies on the denigration of proprietary authorship.

It has long been popular to point out that the romantic author has long been a front for unromantic, unlovable copyright industries, from the booksellers of the eighteenth century to the MPAA and RIAA of today. I would like to suggest that today’s counterpart – or antidote? – to the romantic author, the techno postmodernist participant, is also a shill for big industry. The instrumentalization of the author, or of the anti-author, still serves big business, it’s just that the business consumes copyrighted works, rather than produces them.

Beyond the Private Attorney General: Equality Directives in American Law

Olati Johnson — Fri, 09 Mar 2012 10:52:31 PST

American civil rights regulation is generally understood as relying on private enforcement in courts, rather than imposing positive duties on state actors to further equity goals. This Article argues that this dominant conception of American civil rights regulation is incomplete. Rather, American civil rights regulation contains a set of “equality directives,” whose emergence and reach in recent years has gone unrecognized in the commentary. These federal-level equality directives use administrative tools of conditioned spending, policymaking and oversight powerfully to promote substantive inclusion with regard to race, ethnicity, language, and disability. These directives move beyond the constraints of the standard private attorney general regime of antidiscrimination law. They engage broader tools of state power just as recent Supreme Court decisions have constrained private enforcement. They require states to take proactive, front-end, and affirmative measures, rather than relying on backward-looking, individually-driven complaints. And, these directives move beyond a narrow focus on individual bias to address current, structural barriers to equality. As a result, these directives are profoundly transforming the operation and design of programs at the state and local levels, and engaging both traditional civil rights groups and community-based groups in innovative and promising new forms of advocacy and implementation.

Occupy Information: the Case for Freedom of Corporate Information

Roy Peled — Fri, 09 Mar 2012 10:52:30 PST

The global financial crisis illustrated what was well known for decades, but not as well felt – that the enormous power amassed by large corporations can have devastating effect on almost every individual around the globe in case of a wave of massive corporate failures. The summer 2011 worldwide social protests built on that understanding calling for more public control of corporations and mover public oversight on the way they operate. 46 years ago, demand for similar oversight over government operations, and a will to limit government power vis-à-vis the citizenry and to provide the public with tools to become more engaged in democratic processes was the background to the enactment of FOIA. This article argues that today similar tools need to be applied to corporations, as they hold much of the information required to allow democratic participation in current affairs, and because of the great public interest in understanding and overseeing their operations. It suggests to do so by imposing upon them a general duty of disclosure, with specific exceptions. It examines the justifications for FOIA and then their applicability to corporate information. It reviews existing mechanisms in the US and other countries, that allow for access to some corporate information, and discusses how they fall short of meeting the needs of an open and democratic society. After considering possible arguments against the notion of freedom of corporate information, it reaches the conclusion that, subject to certain limitations, it is a much needed legal reform whose advantages significantly outweigh its downsides, and which can contribute significantly to a better functioning democratic society and a more responsible corporate world.

Moral Rights in the US: Still in Need of a Guardian Ad Litem

Jane C. Ginsburg — Wed, 15 Feb 2012 12:12:51 PST

Over ten years ago in the Cardozo Arts and Entertainment Law Journal, I inquired whether authors’ “moral rights” had come of (digital) age in the US. Ever-hopeful at that time, I suggested that then-recent legislation enacted to enable the copyright law to respond to the challenges of digital media might, in addition to its principal goal of securing digital markets for works of authorship, also provide new means to protect authors’ interests in receiving attribution for their works and in safeguarding their integrity. The intervening years’ developments, however, indicate that, far from achieving their majority, US authors’ moral rights remain in their infancy, still in need of a guardian ad litem. Nor is it clear what legal institution can assume that role. Judicial interpretation of the Digital Millennium Copyright Act underscores that text’s limited utility as a legal basis for attribution rights. Moreover, the US Supreme Court’s 2003 decision in Dastar v Twentieth-Century Fox has probably left authors worse off, because the Court removed recourse to the Lanham Trademarks Act as a source of attribution (and perhaps, integrity) rights. If statutes and caselaw afford no general basis of moral rights, might the convergence of contract law and digital communications yield agreements, private in form but public in impact, that collectively approximate attribution and integrity rights?

This assessment of developments in moral rights in the U.S. since 2001 will first analyze the caselaw construing section 1202 of the DMCA, which prohibits removal or alteration of “copyright management information.” It will next summarize the damage Dastar has done to the development of moral rights. Finally, I will consider the extent to which online contracts and practices may supply an effective basis for the assertion of attribution and integrity rights. De facto implementation of attribution rights through digital watermarking and other means of incorporating authorship information in connection with the communication of digital copies or performances of work make possible the recognition of many levels of creative contributions, but without a legal obligation to credit creators, it is unclear whether authorship information will remain connected to the copies of their works. Regarding integrity rights, respect for the work as the author created it may, in the absence of enforceable legal or contract norms, yield to online users’ preference for “remix.” In that light, an alternative moral right of the author, proposed by Prof. Jessica Litman, and recounted in the previous AELJ essay, to compel comparison of the altered version with the original by obliging the modifying user to link back to it, is better than nothing. But, without a legal obligation to disclose alterations or link back to the original, the prospects for even this weakened integrity right do not presage imminent adolescence, much less a vigorous adulthood, for moral rights in the US.

The Evidence of Things Not Seen: Non-Matches as Evidence of Innocence

James S. Liebman — Wed, 15 Feb 2012 12:12:49 PST

Exonerations famously reveal that eyewitness identifications, confessions and other “direct” evidence can be false, though police and jurors greatly value them. Exonerations also reveal that “circumstantial” non-matches between culprit and defendant—e.g., a non-matching aspect of an eyewitness’s description or a loose button at a crime scene—can be telling. Although non-match clues seem uninteresting because they are easily explained away, they often turn out to match the real culprit when he or she is eventually caught. This article uses “non-exclusionary non-matches” and their seeming polar opposite, inculpatory DNA, to show that: (1) all evidence of identity derives its power from the aggregation of individually uninteresting matches or non-matches, but (2) our minds and criminal procedures conspire to hide this fact when they contemplate “direct” and some “circumstantial” evidence (e.g., fingerprints), making it seem stronger than it is , and to magnify the fact as to non-exclusionary non-matches, making them seem weaker than they are. We propose ways to use matches and non-matches more effectively to avoid miscarriages.

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.