Saturday, July 31, 2010
Friday, July 30, 2010
Chief Justice Roberts recently explained that he does not pay much attention to law review articles, reportedly stating that they are not “particularly helpful for practitioners and judges.” Chief Justice Roberts’s criticism echoes that made by other judges, some of whom, like Judge Harry Edwards, have been much more strident in the contention that legal scholarship is largely unhelpful to practitioners and judges. Perhaps inspired by criticisms like those leveled by Chief Justice Roberts and Judge Edwards, legal scholars have sought to investigate the relevance of legal scholarship to courts and practitioners using a variety of means. One avenue of investigation has been empirical, where several studies, using different, and sometimes ambiguous, methodologies have observed a decrease in citation to legal scholarship and interpreted the observation to mean that legal scholarship has lost relevance to courts and practitioners.
The study reported here examines the hypothesis that legal scholarship has lost relevance to courts. Using empirical techniques and an original dataset that is substantially more comprehensive than those used in previous studies, it examines citation to legal scholarship by the United States circuit courts of appeals over the last 59 years. It finds a rather surprising result. Contrary to the claims of Justice Roberts and Judge Edwards, and contrary to the results of prior studies, this study finds that over the last 59 years – and particularly over the last 20 years – there has been a marked increase in the frequency of citation to legal scholarship in the reported opinions of the circuit courts of appeals. Using empirical and theoretical methods, this study also considers explanations for courts’ increased use of legal scholarship.
Download the paper from SSRN at the link.
Thursday, July 29, 2010
Wednesday, July 28, 2010
Protecting property rights in creative works represent a classic institutional approach to a specific economic problem of non-rivalness and non-excludability of information. By providing the copyright owner with an enforceable right against non-paying members of society, copyright laws encourage the production and dissemination of literary and artistic works to society for the purposes of learning. Implicit in the grant of property rights is the assumption that commercial incentives foster creative activity and productivity. In recent years, literary and artistic works have increasingly become the subject matter of exclusive property rights and control, particularly as new technologies emerge to provide users of creative works with greater access to informational goods. As a result of expanding property rights in literary and artistic works, society’s access to, and use of, information has, however, been severely restricted by increasing access costs despite the development of enabling technologies to facilitate greater access. This Article examines the general social claim to a right of access to information for the purposes of furthering the constitutional goals of promoting progress, and proposes that the question of access to information is a question of sustainable resource use that should not evoke the exclusionary rights of a strict property rule. The rights under copyright laws protect economic privileges in information and govern society’s use of informational resources. They do not provide copyright owners with a general right to exclude socially beneficial uses of informational works, are specifically tailored to increase social welfare, and must be distinguished from a property right to exclude others from use of a thing. Exclusionary property rights in creative works, arise, if at all, to protect an author’s creative integrity, validate the importance of authentic authorship, and provide personal and moral incentives for authors to produce creative works of social value. Property rights and economic privileges, this Article proposes, encourage the production of informational goods and are necessary to ensure the advancement of science and the useful arts in accordance with the Constitutional goals of the copyright system.
Download the article from SSRN at the link.
Here's the Washington Post summarizing analysis on the Library of Congress' Copyright Office's recent ruling allowing individuals to "jailbreak" their cell phones. Here's a link to Librarian of Congress James Billington's announcement on the permissibility of jailbreaking.
Note that the announcement also discusses fair use of otherwise protected DVDs, for example, in educational settings (class one).
Tuesday, July 27, 2010
Monday, July 26, 2010
An average child will have watched between 10,000 and 15,000 hours of television and more than 200,000 commercials by the time they have turned 18. What they watch and how they are influenced depends upon what is available to them. Television can treat children as ‘Little Consumers,’ or it can be used to have a positive impact. Television can be mindless entertainment, or educational. The problem is that there is little incentive for broadcast television to cater to children’s needs instead of those of an advertiser.
To address these issues, Congress instructed the Federal Communications Commission (FCC) to limit the amount of advertising during children’s programming and increase the amount of educational and informational television content broadcast over the air by enacting the Children’s Television Act (CTA) in 1990. Since that time, content on other media has exploded. Cable, satellite, and internet services providers are now the dominate sources of content. Given this change some question the CTA’s importance and whether it impinges on the 1st amendment rights of broadcasters.
Despite these concerns, the CTA is still an important piece of legislation because it informs broadcasters of their obligations as public fiduciaries of the nation’s valuable broadcast airwaves. But it is questionable whether one of the major benefits of the CTA has been met, that of increasing the amount and quality of educational programming on broadcast television. The FCC’s implementation may need some fine-tuning to address these issues while balancing the broadcaster's and children's needs.
Download the article from SSRN at the link.
In this essay, we discuss an old idea that's gained new currency: taxing media devices or distribution systems to fund media content. We argue that such media income redistribution is fundamentally inconsistent with American press traditions, highly problematic under the First Amendment, difficult to implement in a world of media abundance and platform convergence, and likely to cause serious negative side effects.
Download the article at the link.