Law Commons^™

Social Media And The Press, Lili Levi

Articles

The Internet and social media are transforming news as we knew it, yet the precise consequences of these changes are not yet clear. Journalists now rely on Twitter, crowdsourcing is available through social media, facts and stories are googled, traditional print newspapers have websites and reporter blogs, "open newsrooms" invite community participation in the editorial process itself, video from citizen journalists is commonly used in mainstream media storytelling, bloggers consider themselves journalists, and media consolidation marries entities like AOL and the Huffington Post. In turn, changes in the news-access practices of readers are increasingly influencing the length, breadth, and subjects …

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

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 …

Moral Rights And Supernatural Fiction: Authorial Dignity And The New Moral Rights Agendas, Jacqueline D. Lipton

Articles

In recent years, several scholars have revisited the question of moral rights protections for creators of copyright works in the United States. Their scholarship has focused on defining a moral rights agenda that comports with American constitutional values, as well as being practically suited to current copyright business practices. Much of this scholarship has prioritized a right of attribution over other moral rights, such as the right of integrity. This Article evaluates some of these recent moral rights models in light of a sample of comments made by American supernatural fiction authors about their works. The Author questions whether the …

Embedded Advertising And The Venture Consumer, Zahr Said

Articles

Embedded advertising—marketing that promotes brands from within entertainment content—is a thriving, rapidly changing practice. Analysts estimate that embedded advertising expenditures will exceed $10 billion in 2010. The market continues to grow even as traditional advertising revenues contract. The relatively few legal scholars who have studied embedded advertising believe that it is under-regulated. Ineffective regulation, they claim, is deeply troubling because corporations may, with legal impunity, deceptively pitch products to trusting viewers. Critics charge that embedded advertising creates "hyper-commercialism," distorts consumers' tastes, taints the artistic process, and erodes faith in public discourse.

This Article argues that the critics are wrong. Sponsorship …

Baseball's Moral Hazard: Law, Economics, And The Designated Hitter Rule, Dustin E. Buehler, Steve P. Calandrillo

Articles

No subject prompts greater disagreement among baseball fans than the designated hitter rule, which allows teams to designate a player to hit for the pitcher. The rule increases the number of hit batsmen, and some have suggested this effect is a result of "moral hazard," which recognizes that persons insured against risk are more likely to engage in dangerous behavior. Because American League pitchers do not bat, they allegedly are not deterred by the full cost of making risky, inside pitches—namely, retribution during their next at bat.

Using a law-and-economics approach, this Article concludes that the designated hitter rule creates …

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

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 …

From Domain Names To Video Games: The Rise Of The Internet In Presidential Politics, Jacqueline D. Lipton

Articles

Senator Barack Obama's historic victory in the 2008 election marks some important milestones - notably that this country is ready for its first African-American president. His win also underscores the importance of understanding today's Internet as a campaign tool. No longer is the Internet a one-way communications medium between candidate and electorate. It is now a powerful multi-directional networking tool. It can bridge physical and virtual spaces in a way never before possible, bringing previously latent social and political groups together. Senator Obama's campaign strategists understood and capitalized on the capabilities of what has recently become known as Web 2.0 …

The Invisible Pregnant Athlete And The Promise Of Title Ix, Deborah Brake

Articles

The question of how law should respond to women who become pregnant, and whether to specially accommodate pregnancy or analogize it to other conditions, features prominently in virtually every area of sex equality law. In debates over women's equality in the workplace, for example, it has been the defining issue for the development of and debate over various models of equality in feminist legal theory. Until recently, however, the issue has been all but absent in debates and discussion about Title IX and its promise of sex equality in sports. This changed suddenly in 2007, when ESPN televised a program …

The Heart Of The Game: Putting Race And Educational Equity At The Center Of Title Ix, Deborah L. Brake, Verna L. Williams

Articles

This article examines how race and educational equity issues shape women's sports experiences, building upon the narrative of Darnellia Russell, a high school basketball player profiled in the documentary The Heart of the Game. Darnellia is a star player who, because of an unintended pregnancy, has to fight to play the game she loves.

This girl's story provides a unique and underutilized lens through which to examine gender and athletics, as well as evaluate the legal framework for gender equality in sport. In focusing on this narrative, we seek to give voice to black female athletes and to express their …

Title Ix As Pragmatic Feminism, Deborah Brake

Articles

This paper uses Title IX as a vehicle for exploring the potential benefits of pragmatism for feminist legal theory. Title IX is unusual in antidiscrimination law for its eclectic approach to theory, drawing from liberal feminism, substantive equality, antisubordination and different voice models of equality at various points in the law's approach to gender equality in sports. This paper argues that Title IX, as a pragmatic approach to theory, provides a promising example of how feminist legal theory can draw from pragmatism to navigate the double-bind and the backlash.

Following an introduction in Part I, Part II of this Article …

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 …

Sports Medicine Conflicts: Team Physicians Vs. Athlete-Patients, Steve P. Calandrillo

Articles

Team physicians for professional sports franchises face a conflict of interest created by the competing loyalties they owe to the team that employs them and to the athlete-patient they must treat. Marketing agreements under which physicians pay significant sums of money to be designated as the team's "official healthcare provider" exacerbate this conflict. These marketing arrangements call into question the independent judgment of team physicians and cause players to question the quality of care they receive.

This paper explores several solutions to the growing conflicts between athletes and team doctors with the goal of enhancing players' trust in the medical …

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 …

Changing Channels And Bridging Divides: The Failure And Redemption Of American Broadcast Television Regulation, Anthony E. Varona

Articles

No abstract provided.

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 …

A Pattern-Oriented Approach To Fair Use, Michael J. Madison

Articles

More than 150 years into development of the doctrine of "fair use" in American copyright law, there is no end to legislative, judicial, and academic efforts to rationalize the doctrine. Its codification in the 1976 Copyright Act appears to have contributed to its fragmentation, rather than to its coherence. This Article suggests that fair use is neither badly conceived nor badly applied, but that it is too often badly understood. As did much of copyright law, fair use originated as a judicially-unacknowledged effort via the law to validate certain favored social practices and patterns. In the main, it has continued …

The Struggle For Sex Equality In Sport And The Theory Behind Title Ix, Deborah Brake

Articles

Title IX's three-part test for measuring discrimination in the provision of athletic opportunities to male and female students has generated heated controversy in recent years. In this Article, Professor Brake discusses the theoretical underpinnings behind the three-part test and offers a comprehensive justification of this theory as applied to the context of sport. She begins with an analysis of the test's relationship to other areas of sex discrimination law, concluding that, unlike most contexts, Title IX rejects formal equality as its guiding theory, adopting instead an approach that focuses on the institutional structures that subordinate girls and women in sport. …

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.

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").

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.

Cheaters, Not Criminals: Antitrust Invalidation Of Statutes Outlawing Sports Agent Recruitment Of Student Athletes, Ricardo J. Bascuas

Articles

No abstract provided.

Sex As A Suspect Class: An Argument For Applying Strict Scrutiny To Gender Discrimination, Deborah Brake

Articles

In United States v. Commonwealth of Virginia' ("VMI"), the Supreme Court has a landmark opportunity to revisit the legal standard courts should use to review classifications which treat men and women differently. The VMI case involves an equal protection challenge to the state's exclusion of women from VMI and its establishment of an alternative, sex-stereotyped women's leadership program as a remedy to that exclusion. The United States, which brought the case against VMI, has asked the Supreme Court to rule that sex-based classifications, like classifications based on race, must be subjected to the highest level of constitutional scrutiny, or "strict …

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 …

'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 …

James Madison And Public Choice At Gucci Gulch: A Procedural Defense Of Tax Expenditures And Tax Institutions, Edward A. Zelinsky

Articles

Few academic doctrines can claim the intellectual and political success of tax expenditure analysis. In roughly a generation's time, Professor Surrey's procedural and substantive critique of tax subsidies has become entrenched in the law school curriculum and in legal scholarship. More impressively, the tax expenditure concept has been enshrined in federal law and become part of the daily discourse of the national budget process.

College Presidents And The Ncaa Presidents' Commission: All Bark And No Bite, Laurence M. Rose

Articles

No abstract provided.

The Tax Treatment Of Qualified Plans: A Classic Defense Of The Status Quo, Edward A. Zelinsky

Articles

The current tax treatment of qualified pension and profit sharing plans has been criticized by commentators as an unfair and expensive tax expenditure. In this Article, Professor Zelinsky challenges this characterization and defends the current treatment of qualified plans on the ground that it is at least as attractive as its alternatives and superior to many of them. After evaluating the current treatment and the alternatives under the criteria of measurability, administrability, liquidity, equity, and simplicity, Professor Zelinsky concludes that the present treatment of qualified plans can be viewed as an acceptable part of a normative income tax.

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?