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Stuntz, Schauer, and Miller:
The January issue of the Harvard Law Review has been posted on line, and it features three very strong contributions: Bill Stuntz's The Political Constitution of Criminal Justice, a terrific and important article I blogged about a few months ago when it was in draft form; a review by Fred Schauer of the new biography of H.L.A. Hart (a book I recently started reading, and so far is excellent), and an interesting article by Arthur Miller, Common Law Protections for Products of the Mind: An "Idea" Whose Time Has Come. The introduction of Miller's article has one of the more unusual passages I have read in a while:
  I began this Article in the fall of 1956 — that's right, just about fifty years ago. As a second-year law student on the Harvard Law Review, I had become fascinated with copyright and for my Note was assigned the topic of legal protection for noncopyrightable and nonpatentable mental creativity — ideas. I dutifully prepared a preliminary draft, ran the gauntlet of what was then called "intermediate editing," and ultimately produced a polished draft ready for final editing. Then, out of the blue, a funny thing happened on the way to publication.
  The Review's president and I were asked to confer with the University's outside counsel. He informed us that the Law School and its then Dean, Erwin N. Griswold, had been sued by an angry Argentinean who claimed that a series of books on the tax systems of other nations, which the School was developing in conjunction with the United Nations, was based on his idea. Publication of my work product while the litigation was pending would have presented a classic catch-22. A Note sympathetic to idea protection would be used by the plaintiff's counsel against Harvard and Dean Griswold; a Note rejecting idea protection would be seen as propaganda for the school and the Dean, lack credibility, and damage the Review's reputation.
  We concluded that discretion was the better part of valor, and the Note was placed on the "back burner" until the case ended. . . .
  In the years between then and now I have loved, litigated, taught, and written on questions of intellectual property, nurturing the thought that sooner or later I would finish my "2L Note." . . . To that end, this Note of my youth — turned Article of my maturity — seeks to reconceive and render rational the law of ideas.
Defending the Indefensible:
Technologically speaking, copyright is becoming obsolescent. The Internet has made everyone a publisher, and peer-to-peer distribution systems make control practically impossible. What can be done?

Digital restrictions management are readily bypassed, as anything intended to be read, listened to or watched must ultimately be presented in an analog form for our senses to perceive it. At this point if not before, the content may be recaptured and re-recorded.

Moreover, there is a valid question whether copyright in fact promotes the useful arts and sciences, or whether by constraining the distribution of knowledge it slows the creation of new things.
1.22.2006 1:51pm
Henry Schaffer (mail):
"Technologically speaking, copyright is becoming obsolescent."

But profit-oriented companies (content owners and technology providers) and governments disagree - and are working very hard to implement DRM (digital rights management) to enforce copyright protection, and even to remove some of the limits on copyright protection (e.g. fair use.) Take a look at Microsoft's DRM site to see what one company offers, and they aren't the only one. Also consider the recent (1998) extension of copyright term in the US, as an example of DRM advocacy by government. (The EU implemented a similar extension.)

I'm not advocating DRM, but I think one must not discount those who are working to implement more and more DRM and other protections.
1.22.2006 2:28pm
Defending the Indefensible:
Henry:

I think I already pointed out the inevitable failure of DRM (Digital Restrictions Management). The "analog hole" cannot ultimately be closed. Even if it came down to someone using a microphone or video camera pointed at a screen, the output can be recaptured and re-recorded.
1.22.2006 3:10pm
Defending the Indefensible:
Off Topic to this thread, but David Bernstein above blogged a rather partisan bit of invective regarding Juan Cole and Justin Raimondo, leaving comments off to prevent disagreement. I think it's very unfortunate, because I think a fruitful dialogue would be possible, and one-sided posts like that make the VC a less enjoyable place to visit.
1.22.2006 3:16pm
Wintermute (www):
Yuk on the Stuntz. Save your time:

[T]he best thing to do with the massive body of Fourth Amendment privacy regulation, together with the equally massive body of law on the scope and limits of the exclusionary rule, is to wipe it off the books.


When crimes are victimless — think drugs — the focus should be on discrimination against black suspects and defendants.
1.22.2006 4:20pm
Andy Freeman (mail):
> David Bernstein above blogged a rather partisan bit of invective regarding Juan Cole and Justin Raimondo, leaving comments off to prevent disagreement.

Wrong. Bernstein didn't prevent anything. He merely refused to host a specific discussion. Disagree all you want, on your nickle. (The VC doesn't owe you access to its audience.)
1.22.2006 7:52pm
publius (mail) (www):
I just did a quick read of the Stuntz summary - I'm sure it's interesting (Stuntz doesn't really write un-interesting stuff), but I doubt I'll buy the overcompensation argument. Maybe this is my political bias/cynicism coming through, but I don't think any of the acts deemed "overcompensation" would diminish in the absence of constitutional protections. criminals are just easy political targets - and showing mercy isn't really possible in the age of the attack ad and digital demagoguery

but again, i haven't read the article yet, so i may be missing the point right now.
1.22.2006 10:51pm
David M. Nieporent (www):
Publication of my work product while the litigation was pending would have presented a classic catch-22. A Note sympathetic to idea protection would be used by the plaintiff's counsel against Harvard and Dean Griswold; a Note rejecting idea protection would be seen as propaganda for the school and the Dean, lack credibility, and damage the Review's reputation.
Not to digress, but this isn't a "classic catch-22" at all. A catch-22 is not a situation where one faces two options which are undesirable or have drawbacks. A "classic catch-22" -- at least assuming that such phrase is defined by the book itself -- involves a paradox, or two choices that contradict, not merely choices one doesn't like.
1.23.2006 2:47pm
Allen Asch (mail) (www):
Wintermute wrote:

Yuk on the Stuntz. Save your time:

[T]he best thing to do with the massive body of Fourth Amendment privacy regulation, together with the equally massive body of law on the scope and limits of the exclusionary rule, is to wipe it off the books.

Amazingly, that's almost exactly where I stopped reading the Stuntz article, despite disagreeing quite a bit with the analysis in previous parts (though, admittedly, I skimmed a lot of the stuff between about page 20 and page 40 of Stuntz's 72 page PDF file).

Actually, I gave up at the beginning of the very next paragraph beyond the one Wintermute quoted where Stuntz claimed:

"One could stop there. The law of policing might work reasonably well — better than the current system — without any constitutional regulation."

Having spent several years as a public defender, I find this claim particularly hard to believe. This claim is based either on naivete or an inhumanely utilitarian definition of what is a "working" criminal justice system.

Allen Asch
1.23.2006 9:01pm