Copyright (c) 2009 University of Virginia Law School All rights reserved. http://law.bepress.com/uvalwps Recent documents in University of Virginia Legal Working Paper Series en-us Wed, 15 Jul 2009 07:59:42 PDT 3600 http://law.bepress.com/uvalwps/uva_publiclaw/art140 http://law.bepress.com/uvalwps/uva_publiclaw/art140 Wed, 01 Jul 2009 12:46:33 PDT Fashion design presents a significant challenge to the current enthusiasm for expansive intellectual property rights. Despite an absence of protection under American copyright law, creativity and innovation in fashion design remain vibrant. Nonetheless there is substantial sentiment in favor of some form of copyright for fashion design, and a "Design Piracy Protection Act" was recently re-introduced in Congress. This brief essay, part of a forthcoming colloquy in the Stanford Law Review, analyzes and critiques a defense of limited copyright protection for fashion design advanced by Scott Hemphill and Jeannie Suk. We argue that even limited design protection is unnecessary and unwise, and may well undermine those designers it is intended to help. We nonetheless agree with Hemphill and Suk on many other points of analysis, including the importance of understanding competing impulses -- dubbed "differentiation" and "flocking" -- that spur apparel purchases, and on the more general point that fashion design cannot easily be subsumed under conventional copyright analysis. Kal Raustiala Intellectual Property Law Public Law and Legal Theory http://law.bepress.com/uvalwps/uva_publiclaw/art139 http://law.bepress.com/uvalwps/uva_publiclaw/art139 Wed, 01 Jul 2009 12:37:05 PDT Copyright law seeks a balance between private incentives to create new works, and public access to the works created. To achieve this balance, copyright law must be based on a theory of harm - i.e., we must understand the kinds of uses that cause significant harm to authors' incentives, and those that do not, so that we might focus on regulating the former and not the latter. And here is where the problem arises: although we understand copyright's concept of harm at an abstract level - i.e., copyright "harm" arises from any use that threatens to suppress author incentives significantly below the optimal level - the theory is exceedingly difficult to apply in many cases. The formulation of a complete and administrable theory of harm is a holy grail for copyright scholars. But there are other, more modest, ways to nudge copyright law back toward its utilitarian justification. We can rely on a set of indirect strategies to push the incentives of rightsholders in a direction that will helpfully separate unauthorized uses that reduce author incentives from those that do not. I want to briefly suggest and defend two related strategies. First, we should distinguish between conduct we know will harm author incentives over the run of cases, and conduct with more ambiguous effects. So creation and distribution of exact copies of a work should be treated differently than creation of a derivative work. The first we know will almost always be harmful; whether the second is depends on the facts of a particular case. Second, we should re-structure copyright's burdens of proof to better filter harmful from harmless uses. This second strategy grows out of and is aimed at implementing the first. For cases involving infringing conduct that is very likely to cause harm, we should preserve copyright's current strict liability rule. Indeed, perhaps we should strengthen it by limiting the availability of the fair use defense in these cases of "per se" copyright liability. But for cases involving infringing conduct in our second category - i.e., where the effect of the infringing conduct is ambiguous - we should require plaintiffs to prove that they have been harmed in some substantial way. There are two principal benefits of such a change. First, by requiring that plaintiffs show substantial actual or likely harm in these "rule of reason" copyright infringement cases, we will encourage plaintiffs who have suffered substantial harm to come forward, while discouraging suits by rightsholders who suffer no harm, or only speculative harm. Second - and perhaps most importantly - altering the plaintiff's prima facie case in this way will produce information about harms and benefits of different uses of copyrighted works. To do this effectively, the law needs to place the burden on the party most likely to have information about the harm - in virtually all cases, that is likely to be the plaintiff. The law as structured now does not reliably produce this information, with the result that copyright litigation does not help us to know more about how incentives to create are or are not harmed. If we hope to improve our understanding over time, we should re-structure the law so that litigation produces the information about harm that we currently lack. Christopher Sprigman Antitrust Intellectual Property Law Law and Economics Public Law and Legal Theory http://law.bepress.com/uvalwps/uva_publiclaw/art138 http://law.bepress.com/uvalwps/uva_publiclaw/art138 Wed, 01 Jul 2009 12:24:19 PDT This Essay explores the implications for constitutional history of several documents I found in the archives of Supreme Court Justices William O. Douglas, William J. Brennan, Jr., Thurgood Marshall, Potter Stewart, and Harry Blackmun. In particular, I discuss (1) portions of an early draft of Justice Douglas's opinion in the 1972 vagrancy case of Papachristou v. City of Jacksonville; (2) memoranda from Justices Brennan and Stewart about that opinion; and (3) memoranda between Justices Brennan and Douglas about Roe v. Wade. These documents--which I have reproduced in an appendix--shed new light on several apparently disparate issues in constitutional law: the Supreme Court's use of void-for-vagueness doctrine; the social and constitutional history of vagrancy law; the possibility and contours of constitutional regulation of substantive criminal law; the relationship between Papachristou and Roe; and the development and conceptualization of substantive due process. These documents invite us to think both more deeply and more broadly about who was engaged in constructing the intellectual framework of modern fundamental rights, about where in the constitution such rights would be located, and about what the contours of such rights would be. Risa Goluboff Constitutional Law Legal History Public Law and Legal Theory http://law.bepress.com/uvalwps/uva_publiclaw/art137 http://law.bepress.com/uvalwps/uva_publiclaw/art137 Wed, 01 Jul 2009 12:09:18 PDT This is the first study to explore the forensic science testimony by prosecution experts in the trials of innocent persons, all convicted of serious crimes, who were later exonerated by post-conviction DNA testing. Trial transcripts were sought for all 156 exonerees identified as having trial testimony by forensic analysts, of which 137 were located and reviewed. These trials most commonly included testimony concerning serological analysis and microscopic hair comparison, but some included bite mark, shoe print, soil, fiber, and fingerprint comparisons, and several included DNA testing. This study found that in the bulk of these trials of innocent defendants--82 cases or 60%--forensic analysts called by the prosecution provided invalid testimony at trial--that is, testimony with conclusions misstating empirical data or wholly unsupported by empirical data. This was not the testimony of a mere handful of analysts: this set of trials included invalid testimony by 72 forensic analysts called by the prosecution and employed by 52 laboratories, practices, or hospitals from 25 states. Unfortunately, the adversarial process largely failed to police this invalid testimony. Defense counsel rarely cross-examined analysts concerning invalid testimony and rarely obtained experts of their own. In the few cases in which invalid forensic science was challenged, judges seldom provided relief. This evidence supports efforts to create scientific oversight mechanisms for reviewing forensic testimony and to develop clear scientific standards for written reports and testimony. The scientific community can through an official government entity promulgate standards to ensure the valid presentation of forensic science in criminal cases and thus the integrity and fairness of the criminal process Brandon L. Garrett Criminal Law and Procedure Public Law and Legal Theory http://law.bepress.com/uvalwps/uva_publiclaw/art136 http://law.bepress.com/uvalwps/uva_publiclaw/art136 Wed, 01 Jul 2009 12:01:08 PDT A puzzle is raised by cases of false confessions: How could an innocent person convincingly confess to a crime? Post-conviction DNA testing has now exonerated 240 convicts, 39 of whom falsely confessed to rapes and murders. As a result, there is a new awareness that innocent people falsely confess, often due to psychological pressure placed upon them during police interrogations. Scholars increasingly examine the psychological techniques that can cause people to falsely confess and document instances of known false confessions. This Article takes a different approach, by examining the substance of false confessions, including what was said during interrogations and how the confession statements were then litigated at trial and post-conviction. Doing so sheds light on the phenomenon of confession contamination. Not only can innocent people falsely confess, but all except one of these exonerees were induced to deliver false confessions with surprisingly rich, detailed, and accurate information. We now know that those details could not have originated with these innocent people, but rather must have been disclosed to them, most likely during the interrogation process. However, our constitutional criminal procedure does not regulate the post-admission interrogation process, nor do courts evaluate the reliability of confessions. This Article outlines a series of reforms that focus on the insidious problem of contamination, particularly through videotaping interrogations in their entirety, but also by reframing police procedures, trial practice, and judicial review. Unless criminal procedure is reoriented towards the reliability of the substance of confessions, contamination of facts may continue to go undetected, resulting in miscarriages of justice. Brandon L. Garrett Criminal Law and Procedure Public Law and Legal Theory http://law.bepress.com/uvalwps/uva_publiclaw/art135 http://law.bepress.com/uvalwps/uva_publiclaw/art135 Wed, 01 Jul 2009 11:52:57 PDT In corporate crime investigations, when prosecutors pursue charges against both employees and corporations, confessions raise several novel questions without clear answers in constitutional criminal procedure. First, corporations confess. The firm, a target of a criminal investigation, may itself admit to crimes by employees as part of a settlement agreement with prosecutors. While useful to study in their impact and form, as a constitutional matter such confessions can not be coerced; the Supreme Court has adopted a "collective entity rule" that corporate persons may not invoke Fifth Amendment privilege. Second, before itself confessing, the firm may encourage employees to provide statements to law enforcement, placing some in the precarious position of deciding whether to speak and inculpate themselves or invoke Fifth Amendment privilege and be disciplined or fired. The question then arises whether the Fifth Amendment protects such employees. This Article develops how the Fifth Amendment, as interpreted by the Supreme Court in its line of "penalty cases," offers scant protection absent substantial formal cooperation between prosecutors and the employer.Instead, cooperation with internal investigators and law enforcement will be structured by employment contracts and a firm's interest in avoiding conflicts of interest and formation of unintended attorney-client relationships between employees and corporate counsel. Thus, not only may the corporation confess, but the environment in which employee confessions occur is largely defined by interests of the corporation. Brandon L. Garrett Corporations Public Law and Legal Theory http://law.bepress.com/uvalwps/uva_publiclaw/art134 http://law.bepress.com/uvalwps/uva_publiclaw/art134 Mon, 29 Jun 2009 08:57:44 PDT Discretion is at the center of most accounts of bureaucracy. Legal scholars in particular have called for agency supervisors, such as Congress, the courts, or the President, to tame that agency discretion. Strangely absent from these accounts is a ubiquitous phenomenon: administrative agencies routinely limit their own discretion when no source of authority requires them to do so. This Article aims to create a category of such "self-regulation" and argue that scholars have been mistaken to ignore it. It first defines the category of self-regulation, including the feature of administrative law that makes the category interesting, which is that courts will under certain conditions force agencies to follow their self-regulatory measures. That feature of administrative law gives agencies some capacity--albeit limited--to credibly commit to the stability of their self-regulatory measures. The Article next identifies what an agency can accomplish by self-regulating. That includes controlling delegation within the agency, inducing reliance by outside parties, protecting agencies' policy choices into the future and from political interference today, and producing public goods like information or reputation. Finally, the Article concludes by demonstrating that serious study of self-regulation could change the way we understand agencies and the need for and utility and wisdom of various controls on their behavior. Elizabeth Magill Administrative Law Public Law and Legal Theory http://law.bepress.com/uvalwps/uva_publiclaw/art133 http://law.bepress.com/uvalwps/uva_publiclaw/art133 Mon, 29 Jun 2009 08:55:54 PDT Robert Alexy has for many years been a prominent analyst of the role of principles in legal argumentation, and an equally prominent defender of the rationality of balancing and proportionality modes of legal decision-making. But although Alexy's defense of proportionality and balancing against charges by Jurgen Habermas and Justice Antonin Scalia that balancing is essentially an irrational process is sound, Alexy in the process is too quick to collapse the important differences between the process of balancing competing principles and the process of interpreting a canonical written text. Although both can be and are frequently rational, rationality is not the same as external constraint, and the ability of canonical texts to provide a degree of external constraint on legal decision-making that cannot be provided by open-ended principles is a difference that should not be lost in the well-aimed efforts to demonstrate that both can be rational and both have important places in legal argumentation and decision-making. Frederick Schauer Public Law and Legal Theory http://law.bepress.com/uvalwps/uva_publiclaw/art132 http://law.bepress.com/uvalwps/uva_publiclaw/art132 Wed, 24 Jun 2009 15:30:03 PDT When the ideas of the founding period of the American republic have been studied by legal scholars, they have tended to approach that inquiry from a particular perspective. They have begun by positing a set of ideas as central to the interpretation of the United States Constitution over the course of its history, and have then proceeded to examine the status of those ideas in the founding period against the backdrop of their subsequent development over more than two centuries. This posture toward the ideas of the framing, I will be arguing, has produced two distorting effects on their recovery. The first effect has been to overstate the significance of some constitutional ideas with which later generations of Americans have been preoccupied; the second has been to understate the special importance attached to other ideas of the founders. G. Edward White Constitutional Law Legal History Public Law and Legal Theory http://law.bepress.com/uvalwps/uva_publiclaw/art131 http://law.bepress.com/uvalwps/uva_publiclaw/art131 Wed, 24 Jun 2009 15:21:55 PDT From 1938 to 1940, Karl Llewellyn produced a substantial book manuscript entitled The Theory of Rules, but he never finished it, and it has never before been published. This Essay is the preliminary version of the Introduction to my edited version of that manuscript, which will be published by the University of Chicago Press in 2010. In the Introduction I connect what is Llewellyn's most extensive analysis of rules and their role in legal decision-making with the development of Llewellyn's thought, with the major themes of the Legal Realist view about the place of rules in law, and with the philosophical and jurisprudential literature on rules in general. Frederick Schauer Public Law and Legal Theory