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Articles 1 - 26 of 26
Full-Text Articles in Law
Calculating The Harms Of Political Use Of Popular Music, Jake Linford, Aaron Perzanowski
Calculating The Harms Of Political Use Of Popular Music, Jake Linford, Aaron Perzanowski
Articles
When Donald Trump descended the escalator of Trump Tower to announce his 2016 presidential bid, Neil Young’s “Rockin’ in the Free World” blared from the loudspeakers. Almost immediately, Young’s management made clear that the campaign’s use of the song was unauthorized. Neil Young was not alone. Trump drew similar objections from dozens of artists during his first two presidential bids. But as a matter of copyright law, it is unclear whether artists can prevent their songs from being played at campaign rallies.
Alston And The Dejudicialization Of Antitrust, Richard D. Friedman
Alston And The Dejudicialization Of Antitrust, Richard D. Friedman
Articles
A curious feature of NCAA v. Alston is the shoe that didn’t drop, at least not immediately. “Put simply,” Justice Gorsuch wrote for a unanimous Court, “this suit involves admitted horizontal price fixing in a market where the defendants exercise monopoly control.” Given that this pronouncement occurred on page fourteen of the Court’s opinion, one might have expected that the opinion would end on, say, page fifteen, for if there has been one fixed point in American antitrust law it has been that horizontal price-fixing, especially but not only by those with monopoly power, is per se illegal. Instead, the …
Just Say No To The Cheap Double Play, Richard D. Friedman
Just Say No To The Cheap Double Play, Richard D. Friedman
Reviews
The Infield Fly Rule has drawn a considerable amount of attention from legal scholars for nearly half a century. Much of the writing, in keeping with the tone of the keynote work discussing the rule, the famous Aside by William Stevens published in the University of Pennsylvania Law Review in 1975, has been whimsical and ironical. But the Aside was also a genuine piece of legal scholarship. And now, Howard Wasserman has written a book—an entire book!— on the rule, and done so without whimsy or irony.
Why Sports Law?, Sherman J. Clark
Why Sports Law?, Sherman J. Clark
Articles
This essay argues that sports law can be more than just a fascinating and topical subject with great appeal to those who work or hope to work in the field. It can also be a valuable intellectual and pedagogical enterprise—even for those who do not or will not work in sports. In particular, sports law can be a useful and clarifying lens through which to study the law more broadly. This is because sports enterprises and issues tend to put unique and potentially illuminating pressures on the law. Ordinary or unexamined assumptions often break down or prove inadequate when confronted …
Silent Similarity, Jessica D. Litman
Silent Similarity, Jessica D. Litman
Articles
From 1909 to 1930, U.S. courts grappled with claims by authors of prose works claiming that works in a new art form—silent movies—had infringed their copyrights. These cases laid the groundwork for much of modern copyright law, from their broad expansion of the reproduction right, to their puzzled grappling with the question how to compare works in dissimilar media, to their confusion over what sort of evidence should be relevant to show copyrightability, copying and infringement. Some of those cases—in particular, Nichols v. Universal Pictures—are canonical today. They are not, however, well-understood. In particular, the problem at the heart of …
College Sports And The Antitrust Analysis Of Mystique, Sherman J. Clark
College Sports And The Antitrust Analysis Of Mystique, Sherman J. Clark
Articles
In this response to Marc Edelman’s Article, The District Court Decision in O’Bannon v. National Collegiate Athletic Association: A Small Step Forward for College-Athlete Rights, and a Gateway for Far Grander Change, 71 WASH. & LEE L. REV. 2319 (2014), I highlight a set of conceptual issues that must be confronted if courts are to craft a coherent and stable body of law governing the NCAA’s treatment of student-athletes. First, the value of the product at issue here—college sports—is intimately connected with the nature of the labor used to create it. Second, the nature of that value is amorphous, contingent, …
Antibiotic Resistance, Jessica D. Litman
Antibiotic Resistance, Jessica D. Litman
Articles
Ten years ago, when I wrote War Stories,' copyright lawyers were fighting over the question whether unlicensed personal, noncommercial copying, performance or display would be deemed copyright infringement. I described three strategies that lawyers for book publishers, record labels, and movie studios had deployed to try to assure that the question was answered the way they wanted it to be. First, copyright owners were labeling all unlicensed uses as "piracy" on the ground that any unlicensed use might undermine copyright owners' control. That epithet helped to obscure the difference between unlicensed uses that invaded defined statutory exclusive rights and other …
Readers' Copyright, Jessica D. Litman
Readers' Copyright, Jessica D. Litman
Articles
My goal in this project is to reclaim copyright for readers (and listeners, viewers, and other members of the audience). I think, and will try to persuade you, that the gradual and relatively recent disappearance of readers’ interests from the core of copyright’s perceived goals has unbalanced the copyright system. It may have prompted, at least in part, the scholarly critique of copyright that has fueled copyright lawyers’ impression that “so many in academia side with the pirates.” It may also be responsible for much of the deterioration in public support for copyright. I argue here that copyright seems out …
The Invention Of Common Law Play Right, Jessica D. Litman
The Invention Of Common Law Play Right, Jessica D. Litman
Articles
This Article explores playwrights' common law "play right." Since this conference celebrates the 300th birthday of the Statute of Anne, I begin in England in the 17th Century. I find no trace of a common law playwright's performance right in either the law or the customary practices surrounding 17th and 18th century English theatre. I argue that the nature and degree of royal supervision of theatre companies and performance during the period presented no occasion (and, indeed, left no opportunity) for such a right to arise. I discuss the impetus for Parliament's enactment of a performance right statute in 1833, …
Nonprofits And Narrative: Piers Plowman, Anthony Trollope, And Charities Law, Jill R. Horwitz
Nonprofits And Narrative: Piers Plowman, Anthony Trollope, And Charities Law, Jill R. Horwitz
Articles
What are the narrative possibilities for understanding nonprofit law? Given the porous barriers between nonprofit law and the literature about it, there are many. Here I consider two. First, nonprofit law and nonprofit literature are each enriched and made fully explicable by reference to the other. Nonprofit law has grown in parallel with literature. It may even be that important legal texts, texts about doing and being good, were imported directly from literary sources into law. Second, in writings ranging from sensational journalism to high literature, nonprofit laws and the scandals involving their violations have captured the public imagination for …
The Word And The Law, James Boyd White
The Word And The Law, James Boyd White
Articles
In this Article I shall first give a brief account of Milner Ball's book, The Word and the Law, saying something about the interesting and important way in which it connects theology, literature, and law. I shall then give a little more content to what I say about this achievement by engaging in a kind of reading of two texts, one theological and one literary, connecting both to the law. I mean this reading simultaneously to be my own and to reflect something of what I have learned from Milner. Another way to put this is to say that …
Human Dignity And The Claim Of Meaning: Athenian Tragic Drama And Supreme Court Decisions, James Boyd White
Human Dignity And The Claim Of Meaning: Athenian Tragic Drama And Supreme Court Decisions, James Boyd White
Articles
I am going to bring together what may seem at first to be two extremely different institutions for the creation of public meaning, namely classical Athenian tragedy and the Supreme Court opinion.1 My object is not so much to draw lines of similarity and distinction between them, as a cultural analyst might do, as to try to capture something of what I believe is centrally at work in both institutions, in fact essential to what each at its best achieves. I can frame it as a question: How is it that the best instances of each genre (for I will …
Free Speech And Valuable Speech: Silence, Dante, And The 'Marketplace Of Ideas', James Boyd White
Free Speech And Valuable Speech: Silence, Dante, And The 'Marketplace Of Ideas', James Boyd White
Articles
This Essay is a slightly expanded version of the inaugural Mellinkoff Lecture in Law and Humanities, presented at the UCLA School of Law last April in honor of the memory of Professor David Mellinkoff, the distinguished author of ground-breaking work on the nature of legal language. It addresses four related questions. What is the nature of the kind of speech and expression that realizes most completely the human capacity for finding and expressing meaning? How does our own world of public speech measure up to that standard? How, indeed, does our own talk in the law measure up, especially our …
One Inspiring Jury, Phoebe C. Ellsworth
One Inspiring Jury, Phoebe C. Ellsworth
Reviews
Americans love to complain about the jury. They complain about being called for jury duty. They complain about jury verdicts in highly publicized cases. They are outraged by the failure to convict "obviously guilty" criminals, such as the police officers in the cases of Rodney King and Amadou Diallo, the Menendez brothers in their first trial, and of course O.J. Simpson. In civil cases, they are appalled when plaintiffs win huge damage awards in "obviously frivolous" lawsuits. Juries are ignorant and uneducated, juries are gullible, juries are swayed by passion and prejudice rather than reason. Criticizing jury verdicts allows us …
Reading Texts, Reading Traditions: African Masks And American Law, James Boyd White
Reading Texts, Reading Traditions: African Masks And American Law, James Boyd White
Articles
My subject in this Essay is the relation between a text or other artifact and the tradition against which it acts. I want to begin by borrowing from a book that seems to me to represent a model-not the only model, of course, but a very good one-of a certain kind of cultural investigation. The book is Inventing Masks by Z.S. Strother, an art historian at Columbia University who specializes in African art. Its material subject is a set of face masks made by the Central Pende, an African people in what is now the Democratic Republic of Congo.
Clint Eastwood And Equity: Popular Culture's Theory Of Revenge, William I. Miller
Clint Eastwood And Equity: Popular Culture's Theory Of Revenge, William I. Miller
Book Chapters
Revenge is not a publicly admissible motive for individual action. Church, state, and reason all line up against it. Officially revenge is thus sinful to the theologian, illegal to the prince, and irrational to the economist (it defies the rule of sunk costs). Order and peace depend upon its extirpation; salvation and rational political and economic arrangements on its denial. The official antivengeance discourse has a long history even preceding the Stoics, taken up and elaborated by medieval churchmen and later by the architects of state building.
Notes From The Editorial Advisory Board, James Boyd White
Notes From The Editorial Advisory Board, James Boyd White
Articles
The tenth anniversary of this Journal is an occasion not only for celebrating its remarkable achievements, but also for thinking again about the nature and premises of the work it reflects. One way to begin might be with its two central terms, "law" and "humanities" (or the obvious alternative to the second, "literature").
Review Of Authority: Construction And Corrosion, William I. Miller
Review Of Authority: Construction And Corrosion, William I. Miller
Reviews
This is in many ways an engaging book, written in a refreshingly direct and unobfuscatory style. Its chief problem is living up to the rather grand expectations raised by the title, expectations that the author half-way through the enterprise admits he did not mean to evoke (p. 74). What the reader will find is less a systematic essay or sustained treatment of authority than several penetrating readings of intense conflicts dealing with a substantially narrower issue: controlling who gets to speak in public settings that are authority conferring - in councils, senates and law courts.
The Trouble With Hairdressers, Donald J. Herzog
The Trouble With Hairdressers, Donald J. Herzog
Articles
Why should hairdressers, of all unlikely candidates, have come to exemplify equality, to be a cultural obsession of sort? Suffice it to say that hairdressers happened to occupy a social position that made it possible to demonize them.
A Conversation Between Milner Ball And James Boyd White, Milner S. Ball, James Boyd White
A Conversation Between Milner Ball And James Boyd White, Milner S. Ball, James Boyd White
Other Publications
The editors of the Journal invited me to review James Boyd White's Acts of Hope. In response I proposed inviting Professor White to join me in a conversation about his work. First the editors and then he accepted the proposal. Professor White and I agreed that we might call a halt to this experiment at any time because we would not subvert our friendship in the attempt to enact an instance of it in print. The editors accepted the risk that we might at last have no pages for them. - MSB
Still Photographs In The Flow Of Time, Richard D. Friedman
Still Photographs In The Flow Of Time, Richard D. Friedman
Reviews
Rarely is an image of the actual moment of death captured and preserved. When it is, as in the famous photographs of President John F Kennedy's assassination or of the summary execution of a Viet Cong officer by a South Vietnamese police chief,4 it is haunting. Even photographs of the moment before sudden death have great power-whether death is totally unexpected (as in a photograph of Luis Donaldo Colosio campaigning for the presidency of Mexico just before his assassination'), planned (as in a photograph of a man bound in an electric chair awaiting execution6 ), or in doubt and anticipated …
Deep Inner Lives, Individualism And People Of Honour, William I. Miller
Deep Inner Lives, Individualism And People Of Honour, William I. Miller
Articles
With the exception of St Augustine and perhaps Abelard, often praised as modern before their time, it is not unusual to find it maintained that the individual was not available in any serious conceptual, psychological or even sociological way before the seventeenth century. Our thick and deep self, according to this view, is thus a rather recent phenomenon. Some more expansive souls find the individual already emerging a century earlier, during the Reformation. Within the last three decades, medievalists, chagrined at being contemned by classicists on one flank and an alliance of Renaissance scholars, early modernists, modernists and post-modernists on …
Law, Literature, And The Humanities: Panel Discussion, James Boyd White, Nancy L. Cook, Judy M. Cornett, Clark D. Cunningham, Thomas D. Eisele, L. H. Larue, David Ray Papke
Law, Literature, And The Humanities: Panel Discussion, James Boyd White, Nancy L. Cook, Judy M. Cornett, Clark D. Cunningham, Thomas D. Eisele, L. H. Larue, David Ray Papke
Other Publications
This panel discussion took place on April 21, 1994, as part of the University of Cincinnati College of Law's 1994 Robert S. Marx Lecture presented by Professor James Boyd White: The Authority of Law and Philosophy in Plato's Crito.
'I Can Take A Hint': Social Ineptitude, Embarrassment, And The King Of Comedy, William I. Miller
'I Can Take A Hint': Social Ineptitude, Embarrassment, And The King Of Comedy, William I. Miller
Articles
The phrase "I can take a hint," when said seriously, contains its own denial. It reveals that the speaker has not been very adept at recognizing the hints already given, nor very graceful about not making a scene once he has recognized them. Its very utterance has the effect of punishing the hint-giver by making her hint fail as a hint. The truly successful hint works by gaining its end with no extra awkwardness added to the social encounter. The good hint should be barely perceived by the person toward whom it is directed. We could even say that it …
What Can A Lawyer Learn From Literature?, James Boyd White
What Can A Lawyer Learn From Literature?, James Boyd White
Reviews
Judge Posner's recent book, Law and Literature: A Misunderstood Relation, has already attracted considerable attention and it is likely to attract even more. The author is a well-known judge, famous for his work in law and economics; in this book he takes the bold step of entering a field very different from that in which he established his reputation; and the book itself both reflects a wide range of reading and contains an enormous number of bibliographical references, all in support of its claim, made in the preface, to be the "first to attempt a general survey and evaluation …
Law And Literature: 'No Manifesto', James Boyd White
Law And Literature: 'No Manifesto', James Boyd White
Articles
With what hopes and expectations should a lawyer turn to the reading of imaginative literature? To books and articles that purport to connect that literature in some way with the law? In particular, is "law and literature" -to which this Symposium is directed-to be thought of as an academic "field" like law and psychiatry, say, or law and economics? If so, what can it purport to teach us? If not, how is it to be thought of?