Zittrain on the Effect of RIAA Mistakes
I just caught up with the first case in which the RIAA misidentified a defendant in their litigation offensive against P2P. Here is a link to the Boston Globe story, which quotes Jonathan Zittrain as follows:
Jonathan Zittrain, an associate professor of Internet law at Harvard Law School, said the dismissal shows that the record companies may find it tough to prevail if their lawsuits go to court. Their legal strategy assumes that most defendants will settle rather than fight, and the lawsuits are so damaging to their public image that they cannot afford protracted legal battles with alleged file-swappers, he added.
''This is a very high-stakes strategy for the record companies,'' he said. ''It's either going to work in the short term, or they're going to have to pull the plug on it.''
An official of Mrs. Ward's Internet service provider, Comcast, said that the company had investigated the case and that it gave the right name associated with the Internet identifier, known as an I.P. number, that the industry lawyers demanded. But like many service providers, Comcast issues its I.P. numbers "dynamically," with the numbers shifting each time a user goes online. Both Comcast and the recording industry group say they can accurately trace the I.P. number back to a single user; nonetheless, identifying a particular user can be tricky.
In a move that could complicate the RIAA's pursuit of peer-to-peer pirates, the American Civil Liberties Union said Monday it had filed court documents accusing the trade association of illegally using thousands of subpoenas to unmask alleged copyright infringers.
The recording industry's subpoenas, filed under the Digital Millennium Copyright Act (DMCA), violated due process and constitutional rights shielding Internet users' anonymity, the ACLU claims.
As Baude observes, "This is not, of course, going to help the fight for copynorms."
The American Constitution at its founding is often associated with "the Enlightenment," and modern liberal constitutionalism continues to be associated with what Bruce Ackerman refers to as "the spirit of the Enlightenment." This article contrasts the essential features of the classical or historical Enlightenment with those of the modern Enlightenment, as reflected in the thinking of theorists like Rawls, Dworkin, and others and as embodied in a good deal of modern constitutional doctrine. The article argues that the modern Enlightenment is more accurately viewed as an inversion than a continuation of the classical Enlightenment. Moreover, this inversion threatens to undermine the historic constitutional commitments - to freedom of speech, freedom of conscience, individual rights, and equality. Hence, those who are concerned to maintain the historic constitutional commitments might naturally wish for a recovery of the classical Enlightenment. But the prospects for such a recovery are not promising. And the principal obstacle to any such recovery is . . . the modern Enlightenment.
Wendel on Law and Disagreement
W. Bradley Wendel (Washington and Lee Law School) has posted Civil Obedience (forthcoming Columbia Law Review) on SSRN. This paper promises to be very interesting. Here is the abstract:
This paper is an attempt to construct a theory of legal ethics that takes justified moral disagreement as a central, rather than a marginal case. It assumes that people disagree in good faith about rights, justice, and moral obligations, but must nevertheless find a way to leave together in a stable, ordered society. The framework for resolving disagreement in an orderly fashion is obviously the law, which provides the benefit of coordinated collective action in the face of moral disagreement. In a reasonably well functioning democracy, the law also treats people who disagree with one another respectfully, by providing fair procedures for resolving disputes. Although we may disagree about specific moral issues, as citizens we all share the following beliefs: (1) people disagree in good faith about what rights and duties we should have, (2) our views about the matter in question are just that - our views, and not conclusive of the debate, (3) we need to treat others in the public debate with respect, and not act peremptorily toward them, and (4) the disagreement must end somewhere, and we need to move on. Because of our shared interests in interacting peacefully with those with whom we disagree, we have a reason to respect the resolution of moral questions provided by the law. For this reason, the law is authoritative for citizens over a wide domain of contestable moral issues. This conception of authority owes a great deal to Joseph Raz, as well as Jeremy Waldron's recent book Law and Disagreement.
In order for a complex, highly technical body of law to perform this coordination function for ordinary citizens, there must be a body of experts who interpret and apply the law - that is, lawyers. Lawyers have a difficult dual role. They are ordinary moral agents in the same way as citizens, but they are also administrators of the legal system. My claim is that the moral agency of lawyers must be subordinated to their obligation to treat the law as an authoritative resolution of moral disputes, even in cases where the lawyer believes the law is morally wrong. This claim stands in contrast with many academic legal ethicists, who treat lawyers as ordinary moral agents first, and administrators of the law second. For example, Deborah Rhode argues that "[l]awyers can, and should, act on the basis of their own principled convictions, even when they recognize that others could in good faith hold different views." This position is incompatible with the coordination function of the law, which replaces the principled convictions of individuals with a distinctive social position on the matter, which is nevertheless authoritative for individuals.
Lawyers commit a moral wrong, vis-a-vis the second-order moral reasons to treat the law as authoritative, if they act directly on the basis of their own principled convictions, rather than deferring to a legal rule on point. This sounds like the familiar "dominant view" of legal ethics, in which lawyers are supposed to serve as zealous advocates of their clients' interests, regardless of contrary moral considerations. My position differs significantly from the dominant view, however, in treating the law, rather than the preferences of clients, as the principal consideration for lawyers to take into account in their ethical deliberation. Lawyers who treat the law only instrumentally, as a "cost of doing business" which may be disregarded by a client intent on manipulating the law, undermine the capacity of law to serve as a stable framework for coordinated social action in the face of disagreement. In an Enron-type case involving "aggressive" accounting and blatant manipulation of legal norms, lawyers can still be criticized in moral terms. The difference is that the appropriate moral framework is not derived from the first-order reasons about which there exists persistent disagreement, but from second-order reasons relating to the coordination function of the law.
Wright on Legal Responsibility
Richard Wright (Illinois Institute of Technology - Chicago-Kent College of Law) posts The Grounds and Extent of Legal Responsibility (forthcoming in the San Diego Law Review, Vol. 41) on SSRN. Here is the abstract:
This article identifies and discusses the three principal limitations on the extent of legal responsibility for tortiously caused harm and explains and justifies them by reference to the principle of interactive justice, which holds one legally responsible for causing (or being imminently about to cause) harm to another's person or property as a result of conduct that is inconsistent with others' right to equal freedom.
The three principal limitations prevent liability for a tortiously caused harm when (1) the harm almost certainly would have occurred anyway in the absence of any tortious conduct or condition (the "no worse off" limitation), (2) there was a superseding cause of the harm (an actual cause of the harm that (i) intervened between the defendant’s tortious conduct and the plaintiff's injury, (ii) was a necessary ("but for") cause of the plaintiff's injury, and (iii) was highly unexpected), or (3) the harm did not occur as part of the realization and playing out of one of the foreseeable risks that made the person's conduct tortious, before the hazards created by the realization of that risk had dissipated (the "risk playout" limitation).
None of the three limitations match the usual academic prescription for limiting the extent of legal responsibility for tortiously caused harm, which would rely solely on a harm-matches-the-risk ("harm-risked") limitation that is often confused with, but which differs significantly from, the risk-playout limitation. However, as this article demonstrates, the results reached by the courts are consistent with the three stated limitations rather than the harm-risked limitation, despite the longstanding efforts of the academic drafters of the Restatements to install the harm-risked limitation as the sole, comprehensive limitation on the extent of legal responsibility for tortiously caused harm.
These three limitations are neither exclusive nor absolute. Some of them do not apply or apply less broadly to some intentional torts and some strict liability actions. Moreover, there are other limitations on the extent of legal responsibility, such as the de-minimis-contribution limitation, as well as limitations on legal responsibility for certain types of losses – such as pure emotional distress, pure economic loss, and wrongful birth – that are more appropriately handled as categorical limitations on the scope of a person's duty rather than as limitations on the extent of legal responsibility for tortiously caused harm.
This article addresses a central but overlooked contradiction in antebellum American culture: at a time when blacks were prohibited from testifying against whites in many American courtrooms, former slaves consistently presented themselves in print as, in the words of Frederick Douglass, "eye-witness[es] to the cruelty of slavery" and offered their personal narratives as, according to Harriet Jacobs, "testimony" to "what Slavery really is." Fashioning themselves and their anti-slavery writing in these terms, the article contends, formerly enslaved African-Americans like Douglass and Jacobs participated in a widespread antebellum tendency to figure the debate over slavery in legal language. Imagining the national slavery controversy as an ongoing criminal trial occurring in a vast courtroom, those who contributed to that debate depicted slavery as a crime, slaveholders as perpetrators and defendants, slaves as victims and eye-witnesses, white abolitionists as advocates for the slave, and the American reading public as a court of public opinion. Viewing each of these roles in light of changes in early American jurisprudence, as well as from the vantage point of specific legal crises over slavery, the article explores how figurative appropriations of legal rhetoric structured race relations in the print debate over slavery between 1830-1860.
Forces of Consent
University of Connecticut - School of Law
This essay considers the Anglo-American legal treatment of sadomasochistic sexual practices, under which the consent of the masochist furnishes no defense to a charge of assault against the sadist. The law's unwillingness to recognize the masochist's consent in this context, I argue, suggests unease with the ways in which S/M reflects and exposes the operations of law. The essay begins with Robert Cover's work on law's potential to domesticate violence, locating an aporia around sadomasochistic sexuality and the putative irrationality it represents at the heart of Cover's account. It then discusses the legal regulation of homosexuality as a backdrop against which to situate the legal treatment of S/M within discussions of privacy and consent.
Under Bowers v. Hardwick, sodomy as a "victimless crime" nevertheless wrought its injury on the polity; the majority in that case effected an erosion of the boundaries separating private and public, individual bodies and the social body. Lawrence v. Texas has reinscribed these boundaries in the name of choice and personal autonomy. Cases addressing sadomasochistic sexual practices, however, reason in the reverse direction: identifying a public injury in violence unchecked and then locating it on the body of the masochist, regardless of the nature of his participation. With his apparent passivity or even active receptivity in the face of violence, the masochist putatively lacks the kind of rationality that would render him capable and deserving of autonomy and respect.
Theorists of consent, however, demonstrate that consent frequently mystifies the relationship between active and passive. The essay considers Elaine Scarry's work on consent before contemplating the doctrine that deems consent to sadomasochism legally unintelligible. Courts and commentators alike seem nonplussed by a practice that apparently merges sex and violence, pain and pleasure. Their anxiety about sadistic aggression unchecked inspires them largely to neglect the masochist's complex role.
Moreover, while courts and others have denounced these practices - and implicitly the ways in which they play out fundamental legal and political narratives of consent and subjection - as outside the bounds of cognizable human behavior, many theorists of S/M have celebrated its reflective function, seeing it as an expose of power relations. Proponents and detractors alike of sadomasochism generally disregard the gender of the participants, although gender has clearly shaped the legal doctrine. The male masochists involved in the major cases have rendered recognition of consent in that context even more fraught. The essay notes certain ideals of masculinity at work in the construction of the ideal legal subject, ideals to which male masochism poses a radical challenge.
Finally, the essay draws an analogy between the suspicion of sadomasochistic consent and that of consent to psychoanalytic treatment. In both of these contexts, what begins as a quintessentially volitional act, indeed one that often takes the form of a contract, appears to get subsumed immediately into compulsion. The essay concludes by suggesting that consent in these contexts highlights the extent to which categories of compulsion and volition, emphatically distinguished in our culture, come to haunt one another.
Community agreements with third countries frequently contain provisions on State aids. These provisions are designed to achieve a range of different objectives, related both to developing trade between the contracting parties and to economic and legal/regulatory development within the partner State. This paper takes a particular model of State aid clause - those found in the Europe Agreements (EAs) and the Stabilisation and Association Agreements (SAAs) - in order to explore the implications of a harmonisation obligation applied within the context of accession to the EU. In these agreements the State aid rules - and in particular those relating to the application of Community-based criteria - are intended to contribute to the pre-accession adoption of the acquis communautaire by the associate States (including those who are not yet candidates). These clauses are striking in their emphasis on the full adoption of Community-based standards for the approval of aids, including large quantities of 'soft law', while saying very little as to the appropriate procedures for enforcement. The experience of implementing these clauses illustrates the practical difficulties of applying Community norms and standards outside the procedural structures, integration mechanisms and single market objectives of actual EU membership. The associate States are required to demonstrate their capacity for applying and enforcing the Community-derived rules while balancing the needs of their own economic development against an undefined 'common interest'.
The discretionary power to detain asylum seekers on arrival in the UK has been described by one human rights organisation as 'extraordinary and largely unrestrained' (Amnesty International 1996). Although decisions made by immigration officers can lead to long periods in prison or in prison-like conditions, these actions are considered to be administrative and are therefore not subject to the legal constraints that apply to criminal justice agencies. This article traces the many sources of discretion in the use of Immigration Act detention, using an analytical framework developed by Schneider (1992). Discretion is found to originate from the vague and permissive nature of detention guidelines (rule-failure discretion), the priority given to operational considerations at ports (rule-binding discretion) and the failure to resolve conflicts between policy objectives (rule-compromise discretion).
This article reports the subjective views of young adult offenders, regarding their experience of a police-probation initiative in the southwest region of England. Project ARC (Addressing Repeat Criminality) was a pilot scheme that targeted persistent offenders, mainly drug offenders, by offering them an intensive form of probation supervision. The procedure of allowing these offenders to speak and listening to their voices has been seen as an excellent and powerful method to depict vividly their perception of probation experience and views on the usefulness of the crime reduction project. Several central themes emerged from the in-depth interview data, regarding the success or otherwise of the initiative in addressing their criminal behaviour. These include offenders' attitudes to offending, self-explanations for their criminality, views of peer associations and the usefulness of the Project ARC intervention. Finally, the offenders' first hand accounts also offer invaluable insight to the police and probation services on how the project can and should be further improved in order to reform their offending behaviours.
Kontorovich on Liability Rules for Constitutional Rights at Chicago
Eugene Kontorovich (George Mason) is workshopping Liability Rules for Constitutional Rights: The Case of Mass Detentions on at the University of Chicago today. It should be up on SSRN soon, but in the meantime, here is an abstract:
Constitutional law assumes that rights should always be protected by property rules – that is, the government can only take them with the individual’s consent. This Article extends to constitutional law the insights of Calabresi and Melamed’s famous article on property and liability rules. Whether rights should be protected by property rules or liability rules depends on the transaction costs of negotiating a transfer of rights. As transaction costs rise, liability rules become more attractive.
This Article shows that liability rules can have an important role in constitutional law. Using mass detentions in national security emergencies as a case study, it shows that property rule protection of individual rights sometimes leads to perverse and inefficient results. While the government has repeatedly resorted to mass detentions in emergencies, the Court has never blocked such measures. This is a perverse result of constitutional law’s insistence on property rule protection even when transaction costs of transferring liberty rights become extraordinarily high. Holding that a policy violates rights would require, under a property rule, enjoining potentially vital security measures. The Court is unwilling to impose such costs on society. Thus it simply avoids finding that mass detentions violate rights. This creates large groups of uncompensated victims, who are often members of vulnerable ethnic minorities. It also stunts and distorts the development of constitutional law.
Switching to liability rules in mass detention situations can, counterintuitively, result in greater redress for detainees, as well deterring detentions and preserving the integrity and predictability of substantive law. Furthermore, the transaction cost analysis developed in this Article has implications that extend beyond mass detentions to a variety of other constitutional contexts.