Here is a link to a great legal theory lexicon post that is specifically aimed at helping 1Ls think about legal/policy issues.
In Con Law II, for example, I like to use the "veil of ignorance" tool to think about k-12 education of children and school choice. It goes something like this: If you were deciding what role government should play in financing the education of children, but you didn't know whether the curriculum at public schools would be religious or secular, liberal or conservative, multicultural or not multicultural, or whether you would find yourself in a family that is rich or poor or religious or non-religious, would you support a public school monopoly or some kind of parental choice/voucher scheme? The idea of the veil of ignorance is to force you to choose a system that would be fair for everyone (or almost everyone), because you are choosing the system without knowing what position you will be in when you step out from behind the veil of ignorance.
It works in all kinds of policy areas, including many property issues. We sort of used it when we discussed copyright.
If you are interested in this kind of legal analysis, Prof. Solum's post is very well done.
Saturday, September 22, 2007
Wednesday, September 19, 2007
"Tree Law"
Over at the PropertyProfs blog, a blog on which I have guest posted in the past, there is an interesting post about changes in "Tree Law." Here is a link. We won't cover this subject in the course, but it is interesting.
Tuesday, September 18, 2007
Liberal Theories of Property
Over at PropertyProf blog, Ben Barros is starting a series of posts on liberal theories of property. Here is a large excerpt (the quotations marks are weird for some reason, but the entire thing is from Ben's post) from a recent post (link):
One last perspective on liberty in market systems can be had in a view of a hypothetical national society without money and markets. Consider in such a system some characteristic problems in the allocation of housing to the population, for example. How to decide who gets what? Is every individual, regardless of age, to be allocated a room or some standard amount of floor space? Or is the allocation to depend on age and family structure? Is one’s allocated space to be near one’s place of employment, near one’s friends and relatives, within a mixed socioeconomic group or within a stratified one? Or suppose one wishes to make a trip. Who is to be entitled to transportation? For what reasons? How often? By air or bus? Suppose that one wishes to publish a book or pamphlet. Who is to be allowed to call on the services of editors, typesetters, distributors, and shipping services? Who is to be allowed to play the role of artist, musician, publicist, clergyman, union organizer, or party official?
All of these decisions, which the market leaves in the hands of individuals, must now be made by governmental authorities. Nothing we wish to do that requires expensive equipment, other resources, or help from others beyond the favors of family and friendship can be done without a request to and the cooperation of a government official. Call us free or not, in the absence of money and markets our way of living is transformed. For each of the decisions or results that we ourselves are accustomed to achieve through exchange – dozens of decisions in a single day for any one person – we must now ask for an official decision from a bureaucracy.
We don't have time to discuss this in class, but these theories are a golden thread that runs throughout the American law of property.
I'm working on a paper on liberal theories of property, i.e., those theories that link the protection of property to the preservation of individual liberty. As part of this project, I'll be posting a series of excerpts from various scholars' takes on the relationship between property and liberty. In future posts, I'll get to Charles Reich, Milton Friedman, and F.A. Hayek, but I thought I'd start with Charles Lindblom's Politics and Markets (1977). Lindblom is very much skeptical of markets and of private property, which makes the following observation all the more powerful:
One last perspective on liberty in market systems can be had in a view of a hypothetical national society without money and markets. Consider in such a system some characteristic problems in the allocation of housing to the population, for example. How to decide who gets what? Is every individual, regardless of age, to be allocated a room or some standard amount of floor space? Or is the allocation to depend on age and family structure? Is one’s allocated space to be near one’s place of employment, near one’s friends and relatives, within a mixed socioeconomic group or within a stratified one? Or suppose one wishes to make a trip. Who is to be entitled to transportation? For what reasons? How often? By air or bus? Suppose that one wishes to publish a book or pamphlet. Who is to be allowed to call on the services of editors, typesetters, distributors, and shipping services? Who is to be allowed to play the role of artist, musician, publicist, clergyman, union organizer, or party official?
All of these decisions, which the market leaves in the hands of individuals, must now be made by governmental authorities. Nothing we wish to do that requires expensive equipment, other resources, or help from others beyond the favors of family and friendship can be done without a request to and the cooperation of a government official. Call us free or not, in the absence of money and markets our way of living is transformed. For each of the decisions or results that we ourselves are accustomed to achieve through exchange – dozens of decisions in a single day for any one person – we must now ask for an official decision from a bureaucracy.
Talking about "money and markets" in this context is essentially the same thing about private property. Lindblom's hypothetical highlights a core aspect of the connection between property and freedom -- private property allows people to make decisions about their lives, especially those tied to the allocation of resources, independent of the government.
We don't have time to discuss this in class, but these theories are a golden thread that runs throughout the American law of property.
Up For Grabs film: Makeup Viewing
A reminder for those of you who missed our class time showing of the Up For Grabs film: it will be shown again Wednesday Sept. 19 (tomorrow) in Room 113 from 12:15-1:45 PM.
Saturday, September 15, 2007
Copyright vs. Property Rights of Consumers
Let's spend 30 minutes or so talking about this issue during Thursday's class. It is a fascinating issue involving conflicting property interests.
I recently had an online exchange concerning copyrights and property that I thought I would share with you. Here is the dialogue:
RFD:
I'm a law prof, and I think about issues like this for my Property law course.
I like to point out to my students that if I buy, say, a Bruce Springsteen cd, and bring it home and burn a copy for a buddy on my computer, we have a situation involving competing claims to property. Springsteen is the artist who claims to own the copying rights for "his" intellectual property. But I own the physical cd, the blank disc, and the computer. He wants the law to permit him to come into my house and tell me how I can use "my" property. [Who does he think he is? The Boss?]
I have published books and lots of law review articles, and I am delighted if someone copies them and distributes them to his or her students. It is the ideas that count for me, and the more people who read my articles the happier I am.
The problem with the law IMHO is that copyrights last too long. I think the law should probably allow the artist a 2 or 3 year copyright, and then declare that the intellectual property is in the public domain. This gives the artist/author a chance to recoup his investment in the intellectual property while still allowing the consumers reasonable use of their investment in technology.
Publius (name withheld) Responded:
So, you are glad if your ideas are enjoyed by others. That is the way it should be. You are proud of your work.
But, it seems, you do not value that work highly.
What if your work is used, as is, without embellishment, to make boatloads of money for someone else. Would you not want a piece of that?
Lets say you have created a unique combination of notes and lyrics that captivates billions by the very hearing. You've made it freely available to the world to enjoy. Kudos!
Then someone else uses your song as a background track to sell widgets. And because of the success of your creation, widget sales go through the roof. Would you not feel like you were owed something?
At what point do you not feel owed? When the widget company only makes millions? Or what about just thousands? Hundreds?
And what if the widget company makes billions in profit 10 years after you created your work? Or 20 or 30?
The point is, to be fair, the copyright laws have to be broad to protect the inherent value of any, and all, kinds of works, whether intellectual or tangible, for the projected possible lifetime of the creator of the work. Corporately owned copyrights have to be under the same protection, or the value of the copyright for the individual is diminished.
It seems that the only real copyright holders are the ones willing and able to fight for their copyrights.
It's tough being a creative person in our culture. But, it's a living, and I'd rather be doing this than anything else.
RFD responds:
Like I said, the artist should get copyright protection for a reasonable period. I could negotiate whether that should be 2 years or 5 years (maybe a little longer for commercial protection), but at some reasonably early date it should be part of the public domain. The point I was trying to make is that there are property rights on both sides of this issue--the intellectual property on one side, and the consumer's right to use his computer as he wishes on the other.
The other way to resolve this fairly is to define fair use as covering most reasonable consumer-to-consumer copying (as opposed to commercial exploitation) .
I just don't buy the argument that it is theft (in the moral, as opposed to the legal, sense) to burn a cd. Why not say that The Boss is stealing the consumer's property when he tries to stop the consumer from burning cds? Burning a cd that you bought onto a blank cd that you bought on your own computer is simply using your own property as you see fit.
Of course, consumers don't have the recording industry lobbying Congress on their behalf. So the laws are written to favor the entertainment industry. But almost everyone who owns a burner has burnt a copy of a cd without obtaining the copyright holder's permission. The People have effectively interpreted the laws made by their representatives to define fair use very broadly in the non-commercial area in order to balance the property rights of the entertainment industry with the property rights of the people.
How should the law of copyrights deal with consumer copying of cds and other intellectual property? Do you feel like a thief when you burn a copy of a cd for a friend? Should you? Should the law prohibit an activity that many honest people feel entitled to do? How much control should The Boss have over your use of your property in your home?
I recently had an online exchange concerning copyrights and property that I thought I would share with you. Here is the dialogue:
RFD:
I'm a law prof, and I think about issues like this for my Property law course.
I like to point out to my students that if I buy, say, a Bruce Springsteen cd, and bring it home and burn a copy for a buddy on my computer, we have a situation involving competing claims to property. Springsteen is the artist who claims to own the copying rights for "his" intellectual property. But I own the physical cd, the blank disc, and the computer. He wants the law to permit him to come into my house and tell me how I can use "my" property. [Who does he think he is? The Boss?]
I have published books and lots of law review articles, and I am delighted if someone copies them and distributes them to his or her students. It is the ideas that count for me, and the more people who read my articles the happier I am.
The problem with the law IMHO is that copyrights last too long. I think the law should probably allow the artist a 2 or 3 year copyright, and then declare that the intellectual property is in the public domain. This gives the artist/author a chance to recoup his investment in the intellectual property while still allowing the consumers reasonable use of their investment in technology.
Publius (name withheld) Responded:
So, you are glad if your ideas are enjoyed by others. That is the way it should be. You are proud of your work.
But, it seems, you do not value that work highly.
What if your work is used, as is, without embellishment, to make boatloads of money for someone else. Would you not want a piece of that?
Lets say you have created a unique combination of notes and lyrics that captivates billions by the very hearing. You've made it freely available to the world to enjoy. Kudos!
Then someone else uses your song as a background track to sell widgets. And because of the success of your creation, widget sales go through the roof. Would you not feel like you were owed something?
At what point do you not feel owed? When the widget company only makes millions? Or what about just thousands? Hundreds?
And what if the widget company makes billions in profit 10 years after you created your work? Or 20 or 30?
The point is, to be fair, the copyright laws have to be broad to protect the inherent value of any, and all, kinds of works, whether intellectual or tangible, for the projected possible lifetime of the creator of the work. Corporately owned copyrights have to be under the same protection, or the value of the copyright for the individual is diminished.
It seems that the only real copyright holders are the ones willing and able to fight for their copyrights.
It's tough being a creative person in our culture. But, it's a living, and I'd rather be doing this than anything else.
RFD responds:
Like I said, the artist should get copyright protection for a reasonable period. I could negotiate whether that should be 2 years or 5 years (maybe a little longer for commercial protection), but at some reasonably early date it should be part of the public domain. The point I was trying to make is that there are property rights on both sides of this issue--the intellectual property on one side, and the consumer's right to use his computer as he wishes on the other.
The other way to resolve this fairly is to define fair use as covering most reasonable consumer-to-consumer copying (as opposed to commercial exploitation) .
I just don't buy the argument that it is theft (in the moral, as opposed to the legal, sense) to burn a cd. Why not say that The Boss is stealing the consumer's property when he tries to stop the consumer from burning cds? Burning a cd that you bought onto a blank cd that you bought on your own computer is simply using your own property as you see fit.
Of course, consumers don't have the recording industry lobbying Congress on their behalf. So the laws are written to favor the entertainment industry. But almost everyone who owns a burner has burnt a copy of a cd without obtaining the copyright holder's permission. The People have effectively interpreted the laws made by their representatives to define fair use very broadly in the non-commercial area in order to balance the property rights of the entertainment industry with the property rights of the people.
How should the law of copyrights deal with consumer copying of cds and other intellectual property? Do you feel like a thief when you burn a copy of a cd for a friend? Should you? Should the law prohibit an activity that many honest people feel entitled to do? How much control should The Boss have over your use of your property in your home?
Copyright Discussion For Thursday's Class
Let's try to think about the copyright issue as follows: Assume that the law of copyright would be determined by the unanimous consent of two persons--A, who serves as the representative for the intellectual property community (artists and the entertainment industry) and B, who serves as the representative of ordinary consumers (people like you and me who wish to have the right to use our property without unreasonable retsrictions).
Can you think of a copyright rule that would be a reasonable compromise, one that both A and B could accept on behalf of the competing stakeholders?
Can you think of a copyright rule that would be a reasonable compromise, one that both A and B could accept on behalf of the competing stakeholders?
Friday, September 14, 2007
Baseball and Possession
UPDATE
We have a winner!
Mr. Fox nailed it.
The play I had in mind is when the middle infielders are attempting to turn a double play. For example, ground ball to 2B, the 2B flips to the SS who drops the ball in the course of transfering the ball from glove to bare hand to make the throw to 1B.
These guys are so quick that the ball is in the glove for only a fraction of a second (and thus not clearly controlled in the glove). Yet the umpires, almost without exception, rule that if the ball is dropped in the process of turning the double play a catch is made and the runner is out at second. Thus, it is a Finkelman "non-catch" catch.
Congratulations to Mr. Fox!
Another Update
Daniel comes up big in comment 8 below--the intentional non-catch that is ruled a catch. I hadn't thought of this one, but I should have because I saw Mike Lowell try this tricky move and get caught in a Red Sox game earlier this season.
Since this is a big baseball weekend (Sox-Yanks--"say it ain't so, Joba"), here is a fun question for those of you who love the game of baseball to think about.
There is one play in baseball in which umpires basically use the Finkelman "you don't have to control the ball in your glove to make a catch" rule.
For 100 imaginary points, what is that play?
We have a winner!
Mr. Fox nailed it.
The play I had in mind is when the middle infielders are attempting to turn a double play. For example, ground ball to 2B, the 2B flips to the SS who drops the ball in the course of transfering the ball from glove to bare hand to make the throw to 1B.
These guys are so quick that the ball is in the glove for only a fraction of a second (and thus not clearly controlled in the glove). Yet the umpires, almost without exception, rule that if the ball is dropped in the process of turning the double play a catch is made and the runner is out at second. Thus, it is a Finkelman "non-catch" catch.
Congratulations to Mr. Fox!
Another Update
Daniel comes up big in comment 8 below--the intentional non-catch that is ruled a catch. I hadn't thought of this one, but I should have because I saw Mike Lowell try this tricky move and get caught in a Red Sox game earlier this season.
Since this is a big baseball weekend (Sox-Yanks--"say it ain't so, Joba"), here is a fun question for those of you who love the game of baseball to think about.
There is one play in baseball in which umpires basically use the Finkelman "you don't have to control the ball in your glove to make a catch" rule.
For 100 imaginary points, what is that play?
Next Week
For next Thursday's class, we will finish up our discussion of the finders/possession cases and talk a little bit about copyright and property rights (watch for the blog posts on the copyright issue). We will also do some general background reading from the casebook:
Casebook p.2-12; 23-31
Casebook p.2-12; 23-31
Monday, September 03, 2007
Taking Property in China Even Worse Than in the USA
From the Volokh Conspiracy Ilya Somin reports:
"As bad as things are with eminent domain in this country, it's much worse in China, as shown in this Boston Globe/LA Times article on the government's forcible displacement of people to build subway lines in Shanghai:
In China, labor is cheap, the land belongs to the government . . . and political pressure moves largely in one direction - from the Communist Party leadership on down.
"If the government wants to do something, even if the conditions are not ready for it, it will be done," said Zheng Shiling, a Chinese architect who teaches at Tongji University in Shanghai.
The system essentially works like this: Planners draw subway lines on a map. Party officials approve them. Construction begins. If anything is in the way, it is moved.
If they need to, Chinese planners "just move 10,000 people out of the way," said Lee Schipper, a transportation planner who has worked with several Chinese cities as director of research for Embarq, a Washington-based transportation think tank. "They don't have hearings."
The article claims that most of those displaced don't mind:
What is striking in Shanghai is how few people seem to mind this upheaval, in part because the city has dramatically improved the compensation it provides to dislocated people and businesses, and in part because residents accept the idea that the subway represents the greater good for the city.
Perhaps Shanghai residents really don't "mind" being forcibly uprooted from their homes for "the greater good" as defined by "the Communist party leadership." But I suspect that their lack of protest has something to do with the fact that China is an authoritarian state where speaking out against the government can lead to severe punishment. As I explained in more detail in this post, it is a major mistake for Western journalists to take expressions of support for government policy in repressive societies at face value. Unfortunately, LA Times reporter Mitchell Landsberg joins a long line of reporters who have fallen into this trap. At this late date, there's really no excuse for it."
It's a little better here, but perhaps not as much as it should be. We will study the law of Takings and eminent domain later this year. By the way, that reference to "the greater good" reminds me of the battle cry of dark wizards in Harry Potter and the Deathly Hallows.
"As bad as things are with eminent domain in this country, it's much worse in China, as shown in this Boston Globe/LA Times article on the government's forcible displacement of people to build subway lines in Shanghai:
In China, labor is cheap, the land belongs to the government . . . and political pressure moves largely in one direction - from the Communist Party leadership on down.
"If the government wants to do something, even if the conditions are not ready for it, it will be done," said Zheng Shiling, a Chinese architect who teaches at Tongji University in Shanghai.
The system essentially works like this: Planners draw subway lines on a map. Party officials approve them. Construction begins. If anything is in the way, it is moved.
If they need to, Chinese planners "just move 10,000 people out of the way," said Lee Schipper, a transportation planner who has worked with several Chinese cities as director of research for Embarq, a Washington-based transportation think tank. "They don't have hearings."
The article claims that most of those displaced don't mind:
What is striking in Shanghai is how few people seem to mind this upheaval, in part because the city has dramatically improved the compensation it provides to dislocated people and businesses, and in part because residents accept the idea that the subway represents the greater good for the city.
Perhaps Shanghai residents really don't "mind" being forcibly uprooted from their homes for "the greater good" as defined by "the Communist party leadership." But I suspect that their lack of protest has something to do with the fact that China is an authoritarian state where speaking out against the government can lead to severe punishment. As I explained in more detail in this post, it is a major mistake for Western journalists to take expressions of support for government policy in repressive societies at face value. Unfortunately, LA Times reporter Mitchell Landsberg joins a long line of reporters who have fallen into this trap. At this late date, there's really no excuse for it."
It's a little better here, but perhaps not as much as it should be. We will study the law of Takings and eminent domain later this year. By the way, that reference to "the greater good" reminds me of the battle cry of dark wizards in Harry Potter and the Deathly Hallows.
Subscribe to:
Posts (Atom)