an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Clearing Up the Court’s Confusion About License Plates
Corey Brettschneider & Nelson Tebbe
Last week, the Court heard arguments in Walker v. Sons of Confederate Veterans,
the Texas license plate case. Neither side’s lawyer could offer a coherent
theory of the case, and the Justices seemed equally confused. We have
offered an approach that clears up the confusion in a straightforward way.
Here, we show how that approach generates answers to the Justices’ questions at
oral argument. Those answers suggest that Texas did not violate the Constitution
by rejecting the plate.
In brief, here are the facts. Specialty license plates are
produced by the state, often at the request of a nonprofit, but they only
appear on cars if they are selected by drivers for a fee. Typically, a portion
of the fee goes to the group and a portion goes to the state. Texas currently offers
hundreds of specialty plates, and it generates significant revenue from
In this case, Texas denied an application by the Sons of Confederate Veteransto sponsor a specialty license plate that would have
exhibited the group’s name and logo alongside an image of the confederate
battle flag. After the group submitted its application, Texas solicited
comments from the public and learned that many Texans consider the confederate
flag to be offensive. Consequently, Texas denied the application. The group
sued, arguing that its freedom of speech had been violated.
At the core of the case is a dispute over whether specialty
plates are government speech or private speech. If the government is speaking,
then the government speech doctrine applies and the state can select the
messages it wishes to convey without violating the free speech rule against
If specialty plates constitute private expression, by
contrast, then Texas may well have to abide by the rules governing public
forums. According to those rules, it could not discriminate on the basis of
viewpoint and any content discrimination must be reasonable in light of the
purposes of the forum. Almost certainly, those rules would not allow it to
exclude the confederate group’s plate.
So are specialty plates government speech or private speech?
answer is that they are both—they are a form of mixed speech.
Texas offers the plates, but they are not displayed unless private drivers
choose them. That means that in order to figure out the right result in a
particular case, the Court should compare the government’s interests and the
private interests, and it should rule in favor of the side whose interests are
more significant, taking into account not just public policy but also
In Walker, Texas
has an interest of constitutional magnitude in avoiding the reasonable
perception that it is endorsing what many citizens would take to be racist
speech. That imperative is stronger than the group’s speech interest, which can
be partially satisfied with a bumper sticker.
This simple approach is powerful enough to answer all of the
Justices’ questions—something neither lawyer was able to do at last week’s oral
argument. For instance, the lawyer for the confederate group argued simply that
the plate would involve only private speech, and therefore that Texas could not
discriminate against the group’s message—or anyone else’s. But he ran into
trouble when the Justices started asking about limits. Justice Ginsburg led by
asking whether the state could deny a plate that displayed a swastika. The
lawyer answered that it could not, a response that left the Justices
scholars have responded to us by arguing that a state cannot select among
specialty plates at all, the hypothetical swastika plate shows why that
argument is wrong. Moreover, the argument is mistaken even if anti-Semitic
speech that is purely private remains fully protected. The risk that a
racialized message will be associated with the state is too great. Justice
Kennedy repeated Justice Ginsburg’s swastika question several times and in
several forms, and he always got the same answer—even a “racial slur” would be
protected. Justice Scalia then pointed out the obvious consequence of the
group’s theory, namely that Texas would have to abandon its specialty license
plate program altogether. And Justice Kennedy asked whether that would actually
curtail private speech—an ironic result
given the group’s emphasis on protecting private speech.
A better approach would be to recognize that of course Texas
has a legitimate interest in excluding racialized messages on specialty plates,
because of the reasonable concern that those words would be associated with the
state. Moreover, Texas’s concern would have constitutional status because the Equal
Protection Clause prohibits the state from endorsing such messages. So the
state’s interest in denying applications for plates that harm equal citizenship
for nonwhites is rooted in the Constitution. Even if flying the confederate
flag is not itself unconstitutional, Texas has a unique interest in avoiding
speech that it thinks implicates equal protection values. This interest is
distinct from merely avoiding offense. It is about rejecting complicity in a
message that triggers constitutional concerns.
Justice Breyer repeatedly asked about the state’s reasons
for rejecting the plate. Texas’s lawyer here consistently appealed to his
client’s concern about offensiveness. But the interests at stake here are more
distinct and important than offense, which often has little weight in the
context of the First Amendment. This was an invitation to discuss the equal protection
interests that Texas has in rejecting a symbol that many people take to be
associated with slavery and therefore at odds with equality principles. It is
because the message is not just offensive but potentially unconstitutional that
Texas has an overriding interest in rejecting the plate. Although the confederate
group’s interest in speaking also is supported by the Constitution, it can be
satisfied by a bumper sticker, as Justice Breyer pointed out.
Furthermore, the Establishment Clause would place at least
some limits on specialty plates—again suggesting that they cannot constitute
purely private speech. Although some existing plates contain religious
references, it presumably would be unconstitutional for Texas to offer a
specialty plate that read “Texas is a Christian State,” even if the plate were
proposed by a private group and displayed only by private choice. Just as Texas
could invoke an equal protection interest in rejecting the confederate plate,
so too it could invoke a nonestablishment interest in rejecting plates that
seem to involve official endorsement of a particular religion. All these
examples work together to suggest that the plates are partly attributable to
Texas, which for that reason has an interest in rejecting ones that abridge
strong public policies, including constitutional commitments.
On the other side, Texas’s lawyer argued that the plates are
government speech, and therefore that the state could reject the confederate
flag plate without violating the Constitution. But he too had difficulty
answering the Justices’ questions about limits. For example, Justice Kagan
asked whether the state could sponsor a plate that said “Vote Republican”
without offering a “Vote Democrat” plate. Texas’s lawyer had no clear answer to
this hypothetical, which recurred throughout the argument.
Our view is that Texas would be constitutionally obligated
to avoid discriminating against the Democrat plate—and that shows that there
are important private speech interests at stake, too.Justice Kennedy came close to suggesting that
limit when he asked “[i]s there a First Amendment standard that you can use to
deny [the ‘Vote Republican’] plate?” Because specialty plates involve private
speech as well as government speech, they must avoid blatant viewpoint
Moreover, Texas would have good reason to reject the “Vote
Republican” plate in the first place—because of the government speech component.
As we have eachargued,
the Constitution in fact places numerous constraints on government speech. One
of those constraints is a prohibition
government electioneering that is probably best rooted in the Speech Clause
itself. Texas could have a legitimate concern that it would be associated with
those messages and that there would be a real risk of impermissible government electioneering.
No government entity should be allowed to engage in an official endorsement of
a particular political party.
In a thoughtful response to our argument, John McGinnis has
questioned whether anyone would attribute the confederate flag to the state,
given the plethora of messages on specialty plates, some of which conflict with
each other. But Texas’s name on the plate may give the reasonable impression
that this speech carries the government’s imprimatur. Moreover, the comments
section of our recent piece provides a rough sample of opinion on whether the
plates are state or private speech. Commenters split relatively evenly on the
question. Perhaps for this reason, Justice Sotomayor took the position at oral
argument that specialty plates involve “hybrid speech,” both public and
Of course, approaches that require the Justices to weigh
competing interests have well-known downsides. But in this particular area of
law, recognizing that license plates constitute both government speech and
private speech, and considering the interests that support each side, offers an
approach for settling the cases that is clear and compelling.
is Professor of Political Science at Brown University.
Nelson Tebbe is
Professor of Law at Brooklyn Law School and Visiting Professor of Law at
Cornell Law School.
Can a government deny support for a specific exercise of religion? Yesterday, the Supreme Court declined to reviewBronx Household of Faith, an important decision from the Second Circuit that allowed one such denial of support. Although that decision is surprising as a matter of constitutional politics, it is probably correct conceptually and as a matter of doctrine.
At issue is a New York City policy that disallows using public school buildings after hours for “religious worship services” or for use “as a house of worship.” Under the policy, religious organizations may use the buildings on the same terms as other community groups for study and even prayer. Those uses are required by Supreme Court rulings that require equal access for religious groups under the Speech Clause. But the city drew the line at using the buildings for actual worship services. Support is the issue, not just access, because the city lets the groups rent the buildings at below-market rates.
Lawyers for the city make several arguments in support of the policy, but the essence of the city’s concern is that public school buildings will come to be identified as houses of worship. Moreover, the city is worried about perceived favoritism among religious groups. Because the buildings are used by the schools on many Fridays and Saturdays, they are effectively only available to groups that worship on Sundays – mainly Christian denominations.
While the policy was vigorously defended by the Bloomberg administration, Mayor DeBlasio criticized it before he became Mayor. More generally, too, the DeBlasio administration has a more nuanced and complicated position on church-state relations. In fact, many observers have been surprised that Mayor DeBlasio has not repealed the policy and that the city’s lawyers continue to defend it in court. One reason may be that until now, the policy has been enjoined by the courts and therefore has not been in force.
For years, the policy barring worship services has been in litigation. In an early stage, the district court ruled that barring worship services constituted impermissible viewpoint discrimination under the Speech Clause. That decision was reversed by the Second Circuit in an opinion written by Judge Leval and joined by Judge Calabresi, who reasoned that worship was a distinct type of activity with no analogue in secular expression or practices. Although a powerful dissent from Judge Walker urged the Supreme Court to take the case, the Justices declined to do so in 2011.
In a subsequent stage of the litigation, the district court ruled that the policy violated the Free Exercise Clause because it constituted discrimination on the basis of religion. That decision, too, was reversed by the same lineup in the Second Circuit just last year. Judge Leval reasoned that the city’s policy was merely a decision not to subsidize a protected activity rather than prohibited discrimination under the religion clauses. It compared the case to Locke v. Davey, where the Court upheld a Washington State college scholarship program that was available to all students who met certain criteria – except those majoring in the study of religion from a faith perspective. Like that program, the Second Circuit ruled, the New York City policy merely declines to subsidize an important liberty right without burdening it. Once more, that decision drew a sharp dissent from Judge Walker, who argued that the policy was much more like the City of Hialeah’s decision to ban animal killing out of antipathy toward Santeria, which practices animal sacrifice. Just as the Court struck down that instance of discrimination, Judge Walker reasoned, it should grant cert. and invalidate New York City’s biased policy under the Free Exercise Clause.
Another reason for allowing the government discretion to defund religion is that it allows the government to bolster basic nonestablishment values. New York City’s policy is a good example of that. The city was legitimately concerned that public school buildings were becoming identified with particular houses of worship in certain neighborhoods. That perception can abridge many of the various values identified with the Establishment Clause, including community harmony along religious lines, equal standing for nonfavored citizens, and support for the religious autonomy of people of other faiths or no faith. Even if opening the doors of public schools for actual worship would not be prohibited under current Establishment Clause doctrine, governments still should have some discretion to take into account local establishment effects and the concerns they raise.
Of course, there are limits on the practice of excluding religion. For example, governments cannot discriminate on the basis of faith, they should not be permitted to act on animus, and they should not impose unconstitutional conditions as part of their support programs. But none of these limits is at issue in the New York City situation.
Note that the Free Speech Clause is not central to today’s denial of cert., which concerned only the Second Circuit’s free exercise ruling (though the petitioners tried to implicate the 2011 speech decision as well). When it comes to free speech, the doctrine is much more favorable to the city, since the Court has repeatedlyreasoned that targeting religious perspectives for defunding amounts to viewpoint discrimination. For the moment, it seems as if the Second Circuit’s ruling that worship is different in kind will stand. Under that approach, excluding worship from public school buildings involves only a reasonable decision that the content of the speech is not appropriate, given the purposes of opening the schools to community groups, and that in this way worship services are like other forms of excluded activity such as gambling or commercial use.
What will happen now in New York City? Mayor DeBlasio said today that he is committed to keeping the schools open for worship services. It will be interesting to see how exactly the city refashions the policy so that worship services in New York City public schools may continue, while still protecting nonestablishment clause values.
Nelson Tebbe is Professor of Law at Brooklyn Law School and Visiting Professor of Law at Cornell Law School.
The (commercial) drones are coming. Amazon wants to deliver packages with them, as does Google, and
want to monitor their infrastructure with them. Known more properly as Unmanned Aircraft Systems (UAS), the Federal Aviation Administration has proposed
new rules to regulate commercial drone use, and states have passed laws in an attempt to protect privacy and prevent alleged misuse of the drones (for example, preventing hunting by UAS).
In 2012, Congress passed the Federal Aviation Administration Modernization and Reform Act (FMRA), in
which it directed the Federal Aviation Administration (FAA) to begin integrating Unmanned Aircraft Systems (UAS, or drones) into the national airspace. Section 332(c) required the FAA to
designate six UAS national test ranges to allow testing to begin at those sites (without this authority, UAS cannot be used for commercial purposes without
specific FAA authority). No funding was included in the test range designation; instead, UAS could fly at the ranges pursuant to a local, streamlined
approval process, avoiding the otherwise relatively lengthy existing FAA procedure).
Fifty applicants initially sought FAA authority to open test ranges, a number the FAA first reduced to 24 and finally to the six awardees (the FAA has
since issued proposed rules for more general commercial UAS use, and even more recently approved use of certain UAS below 200 feet without significant restrictions).
The UAS industry is an innovative industry. We can contrast UAS with industries, such as manufacturing or even gambling facilities, that states may seek to entice to locate within their borders for
purposes of encouraging economic development. Silicon Valley was not built by luring employers into the region. It was built – and succeeds – because of
the benefits that innovation bring to the region (and it is so successful that there are now various “Silicon” and “Valley” themed regions throughout the
world as others attempt to recreate Silicon Valley’s success).
I have posted a draft of my latest essay, The Path of Robotics Law, on SSRN. Here is the abstract: This
essay, written as a response to Ryan Calo's valuable discussion in
"Robotics and the Lessons of Cyberlaw," describes key problems that
robotics and artificial intelligence (AI) agents present for law.
first problem is how to distribute rights and responsibilities among
human beings when non-human agents create benefits like artistic works
or cause harms like physical injuries. The difficulty is caused by the
fact that the behavior of robotic and AI systems is "emergent;" their
actions may not be predictable in advance or constrained by human
expectations about proper behavior. Moreover,the programming and
algorithms used by robots and AI entities may be the work of many hands,
and may employ generative technologies that allow innovation at
multiple layers. These features of robotics and AI enhance
unpredictability and diffusion of causal responsibility for what robots
and AI agents do.
Lawrence Lessig’s famous dictum that “Code is
Law” argued that combinations of computer hardware and software, like
other modalities of regulation, could constrain and direct human
behavior. Robotics and AI present the converse problem. Instead of code
as a law that regulates humans, robotics and AI feature emergent
behavior that escapes human planning and expectations. Code is lawless.
second problem raised by robotics and AI is the "substitution effect."
People will substitute robots and AI agents for living things—and
especially for humans. But they will do so only in certain ways and only
for certain purposes. In other words, people tend to treat robots and
AI agents as special-purpose animals or special-purpose human beings.
This substitution is likely to be incomplete, contextual, unstable, and
often opportunistic. People may treat the robot as a person (or animal)
for some purposes and as an object for others. The problem of
substitution touches many different areas of law, and it promises to
confound us for a very long time.
Finally, the essay responds to
Calo's argument about the lessons of cyberlaw for robotics. Calo argues
that lawyers should identify the “essential characteristics” of robotics
and then ask how the law should respond to the problems posed by those
essential characteristics. I see the lessons of cyberlaw quite
differently. We should not think of essential characteristics of
technology independent of how people use technology in their lives and
in their social relations with others. Because the use of technology in
social life evolves, and because people continually find new ways to
employ technology for good or for ill, it may be unhelpful to freeze
certain features of use at a particular moment and label them “essential
characteristics.” Innovation in technology is not just innovation of
tools and techniques; it may also involve innovation of economic, social
and legal relations. As we innovate socially and economically, what
appears most salient and important about our technologies may also
by JB [link]
Saturday, March 28, 2015
Commemorating the Joint Committee on Reconstruction
Gerard N. Magliocca
This is a year filled with sesquicentennial anniversaries of the Civil War. Lee's surrender to Grant, Lincoln's assassination, and the ratification of the Thirteenth Amendment all occurred in 1865.
But another transformative event of 1865 may not be celebrated at all. In December 1865, Congress created the Joint Committee on Reconstruction, which gave us the Fourteenth Amendment. As far as I know, this conclave, which amounted to a Second Constitutional Convention, has never received any official recognition. Given that Reconstruction was condemned as a disaster until the 1960s, this lack of respect is unsurprising. We are well past that point now, though, and thus I hope that many elected officials, law schools, and bar associations will work to rectify that wrong. Posted
by Gerard N. Magliocca [link]
Intellectual property (IP) is a form of regulation. As I have argued elsewhere,  IP laws are deliberate
government interventions in the market to try to shape how people participate in that market, encouraging new creation by rewarding it with above-market
returns and discouraging imitation by imposing damages or even barring it altogether.
Once we understand IP laws as government social policies that seek to alter market outcomes, we can start to think of those laws as part of a broader
tapestry of government rules that affect innovation in a complex variety of ways. Daniel Hemel and Lisa Ouellette have already situated IP regimes among a
variety of other government policy levers designed to affirmatively encourage innovation and market entry, including prizes, grants, and tax incentives. 
But the potential role of regulation in encouraging market entry is not limited to offering various forms of government-sponsored largess to innovators.
More traditional forms of regulation restrict market entry. Doing so offers supracompetitive returns to market incumbents who benefit from the entry
barriers regulations impose. Taxi drivers benefit – or did until quite recently – from the absence of a truly competitive market, propped up by government
limits on market entry. So too do the learned professions, which limit entry into their fields, sometimes in quite blatantly anticompetitive ways.  Pharmaceutical companies benefit from the limits the FDA puts on generic entry, over and above – and
sometimes regardless of – the existence of patents. 
I’m looking forward to welcoming a superb group here to Yale this weekend for our second annual “Innovation Law Beyond IP” conference. I’m particularly excited about the main theme of our gathering this year: bringing the state back in.
I’ve puzzled for many years about the reflexive pessimism about the state that prevails in the field of IP. The dominant justification for IP law, in fact, relies at its core on a particular view of the state. As Kenneth Arrow noted long ago, IP rights create necessary inefficiencies, and these make the state a plausible competitor to the market on efficiency grounds. Why, then, should we use IP rather than the state? Because, as one of the leading IP law casebooks tells us:
Intellectual property rights have the advantage of limiting the government’s role in allocating resources to a finite set of decentralized decisions: whether particular inventions are worthy of a fixed period of protection. The market then serves as the principal engine of progress. Decentralized consumers generate demand for products and competing decentralized sellers produce them. By contrast, most other incentive systems, especially large-scale research funding, require central planning on a mass scale. (Merges, Menell & Lemley, 18)
This image of the state casts a long shadow in the field. So long, in fact, that it reaches deep into the “beyond IP” literature. Larry Lessig, for example, argues that “[I]f the twentieth century taught us one lesson, it is the dominance of private over state ordering.” (Future of Ideas, 12). We should rebel against IP law in part, Lessig says, because we should “limit the government’s role in choosing the future of creativity.” (Id. at xvi).
We love the word innovation. We pronounce it endlessly and, very often, meaninglessly. It seems like everything can be qualified as an innovation these days, and hence escape the legal control and the heavy hand of the state. Law and innovation are often presented in the popular media---and a portion of the literature---as two realities that shouldn’t mix. While innovation is an intangible, evolving, and trial-and-error process, law is made of stable and predictable rules.
Regulators seem to aim at a form of legal certainty which is not compatible with the inherent uncertainty that characterizes innovation. Therefore, whenever law tries to regulate innovative products and services, it often ends up stifling innovation by applying rigid and obsolete rules that constrain the freedom of innovators. As I have explained in my previous work on sharing economy, we have witnessed this problem with the prohibition of Uber in Europe, where the ‘old rules’ designed for taxi regulation have been used to prohibit this innovative form of peer-to-peer economy.
However, is this tension between law and innovation truly due to the inherent uncertainty of innovation, or to the normative uncertainty that confronts regulators? In other words, in many cases, clinical trials and ex ante evaluations may already provide regulators with sufficient information as to the potential risks and benefits of an innovation, but this may still not say much about the rules to be enacted in a concrete case, or the timing of such rules.
In 2009, the Texas Department of Health agreed to destroy a research biobank containing approximately 5.3 million infant blood samples. The samples, stored on index cards as dried blood spots, were collected over an eight-year period as part of a state program to screen newborns for genetic disorders and birth defects. The parents of each infant consented to the blood draw and the testing. Nevertheless, when four Texas parents discovered that the state retained the infant blood spots for future research, they sued (Beleno v. Lakey (W.D. Tex. 2009)). Andrea Beleno and the other parents alleged that the state’s use of infant blood spots for research purposes without their express consent violated their right to privacy under the Fourteenth Amendment, among other things. To settle the litigation, the state agreed to destroy its entire repository of more than five million infant blood spots, an invaluable and irreplaceable resource for biomedical research.
The result in Beleno is not unique. Individuals have been asserting the right to control the use of biological samples and data with increasing frequency. In a highly-publicized case involving the Havasupai tribe, Arizona State University agreed to return DNA samples and discontinue several lines of research following objections from tribe members (Havasupai Tribe v. Ariz. Bd. of Regents, 220 Ariz. 214, 217 (2008)). They argued that, although they may have consented to the use of their DNA for diabetes research, they did not consent to other uses, including research on schizophrenia and ancient human migration. After the tribe brought suit seeking $50 million in damages, the university settled, notwithstanding the fact that tribe members signed broad consent forms potentially authorizing the research.
It is axiomatic under U.S. law that there is no property interest in mere facts. Nevertheless, as these cases show, with respect to human genetic data, a de facto property regime has emerged in all but name. This regime has enabled individuals to exert strong proprietary rights over the use of data obtained from them, leading to instances in which research has been hindered or stopped, and in which valuable resources have been destroyed. The mechanism by which individuals have been able to assert control over “their” data is informed consent.
The problem of the commons has existed as long as humans have formed communities: how do you protect against overfishing in an ocean no one owns, but everyone uses? How do you prevent pollution in a sky that belongs to no one, but everyone breathes?
In talking about more traditional natural resource-based commons problems, economists and lawyers have largely debated the relative merits of two approaches to solving the commons problem:
letting the state resolve the problem (through laws); or
letting the market resolve the problem (through privatization).
An alternative approach, developed by Elinor Ostrom — and which won her a Nobel Prize in Economics in 2009 — escapes this binary, and suggests that a voluntary self-governing citizenry will create its own institutions and solutions to commons problems. Ostrom created a framework for analyzing and studying these institutions, as a means of creating societal preconditions to support their development.
But protecting and allocating natural resources like fish or air or land is slightly different than allocating culture and knowledge. “Knowledge commons” — as Brett Frischmann, Michael Madison, and Katherine Strandburg explain in Governing Knowledge Commons — are created by humans and are both intellectual and cultural. In natural resources, the problem of the commons stems from the self-interest individuals have in depleting a common resource; but in intellectual and cultural resources, the problem of the commons stems from the challenge of incentivizing the ongoing creation of these resources, while also recognizing that such contributions are public goods.
A “big data revolution” is afoot in the social sciences. The increasing volume, variety, and velocity of data are irresistible raw material for inquiry. For its most optimistic exponents, the “datistic turn” renews social science by focusing inquiry on objective, verifiable, and measurable facts.* Explicit models of behavior premised on (quasi-)experimental evidence may render once-soft fields as hard as biology, chemistry, or physics. On this account, experimental or quantitative social science has led the way, and other fields must conform their methods accordingly, or risk marginalization or extinction.
The datistic turn should revive interest in a neglected meta-field: the philosophy of social science. Lively debates raged in mid-20th century between some forerunners of today’s big data devotees (behaviorists), and interpretive social scientists committed to more narrative, normative, and holistic inquiry. The behaviorists’ tendency to treat mental processes as a “black box” is uncannily echoed in many current researchers’ uncritical acceptance of extant corporate data sets (and limits imposed on their use) as objective records. Given firms’ triple layers of real and legal secrecy, and obfuscation, journals should be wary of such research until it is truly reproducible. Moreover, given the importance of key firms themselves to understanding our society, their internal decisionmaking should be archived for eventual release (even if it is decades in the future). Social scientists might consider going beyond analysis of extant data, and joining coalitions of activists, to assure a more expansive, comprehensible, and balanced set of “raw materials” for analysis, synthesis, and critique. In short, rather than solely watching society, social science must now commit to assuring the representativeness and relevance of what is watched. The only alternative to “future-forming” research is to let the most powerful pull the strings in comfortable obscurity, while scholars’ agendas are dictated by the information that, by happenstance or design, is readily available.
Genomics—the study of organisms’ entire genomes—holds great promise to advance biological knowledge and facilitate the development of new diagnostics and therapeutics. Genomics research has benefited greatly from various policies requiring the rapid disclosure of nucleotide sequence data in public databases. The result is a genomic data commons, a widely-accessible repository of information from which all members of the scientific community can draw. Notably, this intensely productive space operates almost completely outside of formal intellectual property law through a combination of public funding, agency policy, and communal norms.
The genomic data commons has attracted significant scholarly interest both because of its great potential to advance biomedical research as well as its broader lessons about the nature of commons-based productivity. For instance, Jorge Contreras has charted the evolution of the genomic data commons from a system that essentially disseminates information into the public domain into a more complex, “polycentric” governance institution for managing knowledge resources. This paper, which grows out of Brett Frischmann, Michael Madison, and Kathy Strandburg’s project to study commons governance, explores less appreciated but highly significant complexities of managing genomic information. In so doing, it seeks to shed greater light on the nature of commons in general.
In particular, this paper focuses on the governance challenges of correcting, updating, and annotating vast amounts of sequence data in the commons. Most legal accounts of the genomic data commons focus on researchers’ initial provisioning of data and access to such data by other scientists. Delving into the science of genome sequencing, assembly, and annotation, however, this paper highlights the indeterminate nature of sequence data and related information. Quite simply, the genomic data commons is full of errors and incompleteness. Accordingly, this paper examines four approaches for correcting, completing, and updating existing data: contributor-centric data management, third-party biocuration, community-based wikification, and specialized databases and genome browsers. It argues that these approaches reveal deep tensions between centralization and fragmentation of control within the genomic data commons, a tension that can be mitigated through a strategy of replication.
My project follows through on an intuition about the value of architectural copyright that dates from my days as an architect before I went to law school. When I was an architect, I believed that copyright would be valuable to me not because it prevented other architects from borrowing from my designs but rather because it gave me more bargaining power in relation to the building owners who were my clients. More specifically, my current project identifies the hidden wisdom of architectural copyright before the adoption of the Architectural Works Copyright Protection Act (AWCPA) of 1990—an odd copyright regime that, to date, no one has sought to justify. Formalizing my old intuition, I argue that the primary benefit of pre-AWCPA copyright was not an augmented incentive to create but rather the resolution of a variant of Arrow’s information paradox. That is, pre-AWCPA architectural copyright was a well-engineered copyright regime because it allowed strangers to free ride on design information while it prevented building owners who were contractually related to architects from opportunistically appropriating disclosed information without full payment.
Before the AWCPA, copying original expression from an architectural drawing amounted to infringement, but copying the exact same original expression from a constructed building did not. Economically speaking, pre-AWCPA architectural copyright was therefore a defeasible right because it lost much of its economic value upon the construction of a building. Pre-AWCPA copyright was a facially odd copyright without an analog in any other copyrightable subject matter. Imagine protecting the drawings used to design useful articles, but not the conceptually separable aspects of the useful articles themselves. Alternatively, imagine protecting the sketches made in preparation for large-scale murals or mosaics, but not the completed murals or mosaics.
Pre-AWCPA copyright has been widely criticized by critics who evaluate it under the incentives-access tradeoff that underpins conventional economic justifications of copyright. Aspiring to a maximalist regime, some copyright scholars criticize pre-AWCPA copyright directly, arguing that its defeasible rights are too paltry. Because free riding on constructed buildings is permitted, they posit that it does not generate meaningful incentives to invest in creative architectural design. Others, aspiring to a minimalist regime, argue in favor of thin—or perhaps even non-existent—copyright protection for architecture. However, they do not defend the defeasible nature of pre-AWCPA rights as a good way to limit an architect’s copyright rather than, say, a strictly administered substantial similarity test. In sum, pre-AWCPA architectural copyright was not only weak, but runtish as well. If the point of copyright is to generate incentives for creativity and tamping down on the most egregious free riding is the most palatable way of having copyright augment the incentive to create, pre-AWCPA copyright simply misses the mark.
The sub-theme for Innovation Law Beyond IP 2 is “Bringing the State Back In.” That theme prompted me to submit a proposal in part because I am not sure the state ever left. The assumption of bringing the state back in seems to be that it has been pushed out or ignored. Marianna Mazzacuto’s white paper on the state and innovation and her follow-up book, The Entrepreneurial State, on the topic offer another perspective: that society has under-valued the state’s role in innovation.
As I kicked around the conference theme, I thought about the number of times I had said the term. "Innovation" has been gutted of meaning. When I worked it Silicon Valley, I was constantly hearing that everything and everyone was "innovative." What do you want to be? Innovative. Why should we fund you? We are innovative. Why shouldn’t we tax you? We will stop innovating. It reached a point that I’d not be surprised if someone claimed to be innovative in the way they crossed a street. The ever-present invocation of innovation made me think: what exactly do we mean by innovation? And are some innovations more important than others? Furthermore, from where do innovations come?
Part of the problem is that the focus on innovation in general misses that any given innovation is part of a system, and it is the system that matters. If we think about systems that support innovation, it appears that there are three parts to such a system:
The state plays a role for each part. The problem today seems to be that as soon as one talks of the state being involved in anything, what Fred Block has called “market fundamentalism” rises to challenge and deny that the state has any role to play. In addition, the Schumpeterian idea of gales of creative destruction has been claimed by many sides of the innovation policy debate and confuses the debate further. As I read Schumpeter, I found that he recognized the differences between invention and innovation. He also recognized that not all innovations are equal.
Over 10,000 new platform companies have sprouted and mushroomed in less than a decade and they continue to pop up daily. The platform economy, while not easy to define or quantify, was valued in 2013 at $26 billion with predictions of an exponential growth to $110 billion in the next few years. A recent Price Waterhouse report predicts that globally, revenues from the platform sectors could hit $335 billion by 2025.
So what’s your business? You don’t need to open a restaurant to host cooking events; you don’t need to become a taxi driver to offer paid rides; you don’t need to open a hotel to be a lodging host; you don’t need to start a moving company to get paid for helping someone relocate. Platform businesses are challenging conventional industries in every realm, including hotels (Airbnb, Couchsurfing, Homeaway, VRBO), office space (Liquid Space, ShareDesk), parking spaces (ParkingPanda, Park Circa), transportation (Lyft, Sidecar, Uber), restaurants (Eatwith, Feastly, Blue Apron, Munchery), used clothing (ThredUp), household tools (Open Shed), outdoor gear (Gearcommons), capital (Zopa; Prosper, Kickstarter, Bitcoin), broadcasting (Aereo, FilmOn.com), co-developing (Quirkly, Etsy), legal services (Upcounsel), medical services (Healthtap), academic tutoring (Uguru), everyday errands such as grocery shopping and laundry (TaskRabbit, Instacart, Airtasker, Washio), and specialized errands, such as flower delivery (BloomThat), dog-walking (DogVacay) and package delivery (Shyp).
New digital technologies are turning everything into an available resource: services, products, spaces, connections, and knowledge, all of which would otherwise be collecting dust. It’s been called the sharing economy, the disaggregated economy, the peer-to-peer economy (P2P), human-to-human (H2H), the community marketplace, the on-demand economy, the app economy, mesh economy, gig economy, and the "Uberization of everything."
In "Copyright and Inequality," I explored the ways in which copyright protection often – perhaps inevitably – fails to incentivize books for certain audiences, because they are too poor, speak the “wrong” languages, or require niche content or formats. The project I will present at the Beyond IP 2 conference examines a possible solution to copyright’s inequality problem, one which holds the potential to finally bring books to billions of readers long neglected by the mainstream publishing industry.
Social publishers are defined by the centrality of a social mission rather than the pursuit of profit. For this reason, they often rely heavily on social subsidies and treat their product as a social good to be distributed free or at cost. Often, but not always, social publishers also engage in social production. These alternative content-production models leverage intrinsic motivations, social networks, and peer production enabled by digital platforms.
My project analyzes this emerging phenomenon to understand how law and policy can help social publishers reach their fullest potential, and to derive broader lessons from this example of intellectual production without IP.
Empirical investigation into different modalities of knowledge production, distribution, access, and preservation has accelerated in recent years. Much of the energy behind that effort emerges from the intuition that formal intellectual property law frameworks are inadequate and/or incomplete to describe what one observes in the world when examining the governance of innovation. “Peer production” frameworks, and frameworks simply “beyond intellectual property,” are likewise inadequate and/or incomplete; broad, simple labels cannot themselves correct for the errors and omissions of IP as such and cannot capture the significance of diverse ground-level details.
Yet policymaking cannot proceed effectively if it tries to align law with micro-level experience, or if researchers advance policy arguments based on isolated case studies of innovation “beyond intellectual property.” What is needed is an empirical strategy for investigating the mechanics of innovation systems that encourages both micro-level and system-level inquiry and invites comparing and eventually synthesizing lessons across diverse innovation domains, accepting linkages among commons-based production, user-innovation, IP-based production, and state-sponsored production. Commons-based production, sometimes in part referred to as “peer production,” is widespread and heavily theorized, yet commons governance is under-researched. One-off studies and anecdotes have been collected without a strategy for using that data to build a larger model of knowledge and innovation governance.
Next week, scholars from around the world will gather at Yale Law
School to discuss different institutions that impact knowledge
production at the Innovation Law Beyond IP 2 conference. One of the
topics will be how legal rules and infrastructure can sustain or
undermine commons-based peer-production. Trademark law is one such
legal regime that is rarely discussed in this context. Unlike
copyright law’s Creative Commons and open source licenses,
trademark law has not generated new inventions to support
collaborative production on the internet. Trademark law provides some
support for collaborative projects like Wikipedia and Linux by
protecting their brands from imposters and making the brands
distinguishable so that the projects can use them to recruit new
contributors. But brand protection can also impose restrictions that
go against communities’ values and slow down their work. Over the
past decade, communities and their lawyers have found different
strategies to reconcile their novel forms of knowledge production
with the stringent requirements of trademark law.
The core tension between collaboration and trademark law is the
requirement of quality control. The quality control requirement is
based on the theory that a trademark should be a reliable indicator
of a good’s origin. When trademark holders provide permission for
someone to use their mark, they usually retain the right to inspect
the quality of the goods that carry the mark and impose restrictions
on how the mark may be used. Open source and free culture
communities, on the other hand, thriveonopennessanddecentralization.
These communities rely on technical tools and social norms to
maintain the quality of their project.
In 2010, collaborative communities got a wake-up call with aNinthCircuitruling that the Freecycle Network had lost the legal rights in its logo due to non-traditional brand management.
Freecycle had failed to enter into proper quality control provisions
with affiliate organizations when they gave the organizations general
permission to use the Freecycle logo without specific restrictions.
The Court found this to be naked licensing, a form of trademark
abandonment, that limited the Freecycle Network’s ability to
enforce their trademark. This case served as a warning of the riskofnakedlicensing
to collaborative communities that were too open. Since then,
collaborative communities have been grappling with how to protect
their marks in a manner that fits open source and free culture
Among other aspects and dimensions, the frame “Beyond IP” summarizes two key complementary insights in contemporary politics of intellectual property. The first insight touches upon the limits, shortcomings and social costs that are associated with legal ordering of cultural/information production through intellectual property regimes. The second insight lists alternative structures, institutions and regulatory options for the promotion of innovation and ubiquitous cultural flourishing. Both insights reside upon concrete and persuasive arguments.
At least to some degree, the shift from an IP-centric approach to alternate methodologies that go beyond IP was stimulated by the emergence of digitization and networked communications platforms. New methods and reduced costs of producing, storing and distributing content/information provide fertile grounds and constant demonstration that there are enhanced schemes, beyond IP, for cultural and knowledge sustainability.
“Beyond IP” is not just a frame for mobilization but also a descriptive term that captures and summarizes contemporary information, creative and cultural activities, which rest upon concepts of free content, free access and openness as their building blocks.
Yet, it is at this juncture that another, less noticed, aspect of “Beyond IP” is being revealed: the political economy of certain “Beyond IP” realms, and particularly market-oriented realms, may be counterintuitive to the above-mentioned premises.
The reason for this striking disconnect underlines the differences between these two fields of inquiry. Conflict, after all, is a recurring feature of both vertical and horizontal federalism. What divides the two fields is how we should respond to the ineluctable fact of friction. State-federal friction has long been understood to be both a problem and a valuable part of a well-functioning democracy. Moreover, most vertical federalism scholars think that the political arena, not the judiciary, is the right forum for these fights. Political institutions, not the courts, represent the true “safeguards” of federalism.
Scholars of horizontal federalism are much less sanguine about interstate conflict – lawyers, after all, hate spillovers -- and most of them look to the judiciary to referee state-to-state conflict. Congress, administrative agencies, political parties, networked interest groups – all are thought to safeguard vertical federalism. But even though those same institutions are available to mediate conflict among the states, there is no safeguards account to be found in horizontal federalism.
The current state of the law and literature makes clear why no one has thought to develop a safeguards account to match the one that dominates debates over vertical federalism. Why bother with the political safeguards if politics are the problem and the judiciary is the solution? Because we lack a descriptive and normative argument that interstate conflict serves productive ends, there is no reason to think that spillovers can or should be left to the free play of politics.
Our paper begins to build the descriptive and normative arguments necessary for a safeguards account. First, we debunk that me arguments routinely invoked for cabining spillovers and the interstate conflict they generate, including principles of territoriality, equality among the states, and democratic self-rule (all of which are typically grouped under the larger rubric of “sovereignty”). Second, we build the affirmative case for valuing the role that spillovers play in a well-functioning democracy, many of which have to do with the values associated with “living under someone else’s law.” Finally, we spend some time identifying the political institutions and can and do safeguard horizontal federalism.
by Heather K. Gerken [link]
The conventional justification for IP is that information is a public good (i.e., it is non-rival and non-excludable), and making information excludable through IP allows it to be efficiently supplied by private markets. Both sides of this account have been questioned: not all information has the characteristics of a public good or can be made excludable through IP, and propertization is not the only way the state compensates public-goods providers. As Daniel Hemel and I analyzed in Beyond the Patents–Prizes Debate, the state also encourages information production through mechanisms such as tax incentives and direct spending. One challenge for domestic innovation policy is recognizing that, like conventional public finance mechanisms, IP facilitates a transfer from consumers to innovators, and that the off-budget nature of this IP “shadow” tax should not affect the innovation policy choice.
In our paper "Intellectual Property as Global Public Finance," Daniel and I examine information production at the global level, where conventional public finance mechanisms are lacking. Many information goods are global public (or quasi-public) goods, so under the conventional account, global coordination is needed to prevent countries from free-riding on each others' information production. Global IP treaties such as the TRIPS Agreement help solve this global coordination problem by requiring countries to contribute to the extent that they use the information produced under IP laws, with defection punished by trade sanctions. In the global context, the off-budget nature of IP laws may be an asset, as it facilitates creation of this stable Nash equilibrium in a way that maps onto very different national public finance regimes.
If this were the full story, one would expect to find little state investment in non-IP innovation mechanisms for which free-riding cannot be prevented. And yet governments at all levels do invest significant resources beyond IP in producing information goods. Daniel and I offer a number of hypotheses to explain these investments. For example, producing information goods has local production externalities, so nation-states may compete to attract innovative individuals and firms. Relatedly, rent-seeking may cause countries to use information subsidies to circumvent free-trade limits on industrial subsidies, and may cause industry interest groups to lobby for grants and tax credits to extract subsidies from the state. Non-pecuniary motivations such as altruism and the pursuit of prestige may supplement these incentives for high-profile goods.
Yesterday and the day before, I blogged about the unexpected benefits associated with spillovers – when one state’s policy affects citizens in another state -- and the friction they generate. Today, I want to connect those observations to a larger set of questions about federalism.
What’s so striking about the near-universal hostility to interstate spillovers is that it stands in stark contrast to one of vertical federalism’s central tenets. While we mourn friction between the states, friction between the states and the federal government has been a celebrated feature of American democracy for centuries. When federal policy spills over into a traditional state domain or state policy spills over into the federal realm, it causes the same kind of friction that arises from interstate spillovers. This friction has led to all sorts of problems, including inefficiency, conflict, and division. Federalism scholars don’t deny these harms. They simply insist that we also pay attention to the productive possibilities associated with state-federal friction.
In a recent article entitled “The Political Safeguards of Horizontal Federalism,” Ari Holtzblatt and I argue that it’s time to apply this lesson to the horizontal realm. Like friction between the states and federal government, friction among the states comes with both costs and benefits, and it’s here to stay. Our goal, then, shouldn’t be to eliminate interstate friction, but to harness it—taking advantage of its many democratic benefits while avoiding its more serious costs.
In the spirit of this observation, my co-author and I build a case for the political safeguards of horizontal federalism.
For decades we’ve debated whether “political safeguards” preserve healthy relations between the states and the federal government and thus reduce or eliminate the need for judges to referee state-federal tussles. But no one has made such an argument about relations among the states, and the few scholars to have considered the question insist that such safeguards don’t exist. Our Article takes the opposite view.
Although the literature on horizontal federalism has been burgeoning, it’s not surprising that the literature is missing an account of the political safeguards of horizontal federalism given the field’s core commitments, all of which push against a safeguards account. Developing a political safeguards account for horizontal federalism, then, involves both excavation and construction. First, we must dig into the doctrine and scholarship in order to account for the puzzling differences between the fields. Second, once we’ve examined (and debunked) the arguments that have prevented scholars from even thinking to develop a safeguards account, we must build it. I’ll talk about both projects tomorrow. Posted
by Heather K. Gerken [link]