2018, Vol. 112, No. 5
Intellectual property (IP) scholars have recently turned their attention to social norms—informal rules that emerge from and are enforced by nonhierarchically organized social forces—as a promising way to spur innovation in communities as diverse as the fashion industry and the open-source software movement. The narrative that has emerged celebrates social norms’ ability to solve IP’s free-rider problem without incurring IP’s costs.
But this account does not fully consider the dark side of social norms. In fact, certain social norms, when overenforced, can create substantial barriers to the most socially beneficial creative pursuits. Because IP scholars have left unexplored how social norms can hinder innovation in this way, the harm they cause has gone unmitigated.
This Article sheds light on the dark side of innovation norms. It coins the term “anti-innovation norms” to label these counterproductive social forces. Using the double lens of sociology and psychology, it gives a full theoretical account of three types of anti-innovation norms: research priority, methodology, and evaluation norms—all of which interfere with socially beneficial boundary-crossing innovation.
Our elucidation of anti-innovation norms has both theoretical and policy implications. On the theory side, it suggests that IP scholars to date have been too focused on addressing the free-rider problem. This has caused them to overlook other barriers to innovation, like those posed by the set of anti-innovation norms we describe here. This focus on free riding may also help explain why innovation and norms scholars have paid little attention to debates within the broader literature on law and social norms concerned with identifying situations in which social norms are welfare reducing. On the policy side, it points to innovation dilemmas that IP is not fully equipped to solve. While changes to the IP doctrines of attribution and fair use in copyright and nonobviousness in patent law can counteract anti-innovation norms at the margin, a comprehensive solution requires innovation scholars to broaden their vision beyond the IP toolkit. We take the first steps in this direction, proposing a number of interventions, including novel funding regimes and tax credits.
Notes & Comments
Porchlight Music Theatre, a non-equity theatre company in Chicago, decided to capitalize on the popularity of Lin-Manuel Miranda’s smash hit Hamilton by producing one of Miranda’s earlier works, In the Heights. This earlier work tells the story of a predominantly Latinx community in New York’s Washington Heights neighborhood. Porchlight’s production, however, received significant negative attention when it was revealed that the lead character—Usnavi, an immigrant from the Dominican Republic—would be played by a white actor. While casting white actors in nonwhite roles is nothing new and has been a persistent (and persistently criticized) practice in both theatre and film, the casting for In the Heights struck a nerve. This particular production incensed the Chicago theatre community because of the importance of racial identity to the story. In the Heights focuses on the lives of immigrant families and their daily struggles with the gentrification of their neighborhood. Casting a white actor in the lead role in such a story elicited a significant backlash.
This Note examines the damage done to authorial intent when the racial identity of casting undermines key elements of the author’s expression, and proposes that the existing tools of U.S. copyright law may provide a solution. Current production licensing and casting practices do not afford adequate protection of authorial intent regarding key character traits such as racial or gender identity. Consequently, this Note urges an incorporation of the moral rights concept of the right of integrity into the current copyright framework through an expansion of derivative rights protections. By focusing on when character identity elements are central to the expression of the author, these extensions of existing law will allow playwrights to protect the integrity of their work in subsequent productions without unduly inhibiting the artistic expression of the theatre companies performing the work.
This Article uncovers and names a phenomenon of pressing importance for healthcare policy and religious liberty law: the rise of zombie religious institutions—organizations that have contractual commitments to religious identity but lack actual attachments to churches or associations of religious people. Contracts create religion—sometimes in perpetuity—for institutions that are not, or never have been, religious and for providers who do not share the institution’s religious precepts. This Article details religion’s spread across healthcare through affiliations, mergers, and—most surprisingly—sales of hospitals that continue religious practice after their connection to a church ends. These contracts require hospitals—secular and religious, public and private, for-profit and nonprofit—to comply with religious tenets. “Religious” institutions far removed from the paradigm of the church populate the marketplace. In this way, private law impedes public policy, expanding the universe of institutions eligible for religious exemption from otherwise applicable laws. Moreover, as the category of religious institution loses its specialness, theories of religious institutionalism founder. The presumption of autonomy of religious institutions from regulation cannot survive in the marketplace where religious identity can be bought and sold.
Several of the Supreme Court’s most controversial constitutional doctrines hinge on claims about electoral accountability. Restrictions on the President’s power to remove agency heads are disfavored because they reduce the President’s accountability for agency actions. Congress cannot delegate certain decisions to agencies because then Congress is less accountable for those choices. State governments cannot be federally commandeered because such conscription lessens their accountability. And campaign spending must be unregulated so that more information reaches voters and helps them to reward or punish incumbents for their performances.
There is just one problem with these claims. They are wrong—at least for the most part. To illustrate their error, I identify four conditions that must be satisfied in order for incumbents to be held accountable. Voters must (1) know about incumbents’ records, (2) form judgments about them, (3) attribute responsibility for them, and (4) cast ballots based on these judgments and attributions. I then present extensive empirical evidence showing that these conditions typically are not met in the scenarios contemplated by the Court. The crux of the problem is that voters are less informed than the Court supposes, more likely to be biased by their partisan affiliations, and less apt to vote retrospectively than in some other way. Accountability thus does not rise in response to the Court’s interventions—at least not much.
The qualifiers, though, are important. If the Court’s claims are mostly wrong, then they are partly right. If accountability does not rise much due to the Court’s efforts, then it does go up a bit. These points are established by the same studies that document the general inadequacy of the Court’s reasoning. With respect to certain voters in certain settings, accountability is influenced by presidential control over agencies, congressional delegation to agencies, federal commandeering of state governments, and regulation of campaign spending. That is why this Article discounts accountability as a constitutional value but not does reject it altogether.
Notes & Comments
The Supreme Court held in 1985 that agency refusals to enforce are presumptively unreviewable under the Administrative Procedure Act. In doing so, the Court created an exception for when an agency has “consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” Courts and scholars have mostly interpreted this abdication exception as capturing only total nonenforcement, which is when an agency completely stops enforcing its statutory responsibilities. On the other hand, the D.C. Circuit allows review of all general enforcement policies, regardless of whether they implicate abdication—but rarely do agencies create such official policies. Both these approaches, however, fail to allow review when the agency is underenforcing its responsibilities so severely that it achieves substantially the same effect as total nonenforcement.
This type of “severe underenforcement” poses concerning problems. It can potentially undermine complex statutory schemes and implicates constitutional separation of powers concerns. This Note argues that courts and scholars have misread the abdication exception to include only total nonenforcement. Because severe underenforcement poses the same types of concerns that compelled the Court to establish the abdication exception, courts should also allow review under the Administrative Procedure Act when there is severe underenforcement. Adopting a severe underenforcement approach to the abdication exception would help alleviate the concerns it poses and check agency overreach via underenforcement.
The recent spike in mass shootings, topped by the October 1, 2017, Las Vegas massacre, dubbed the “deadliest mass shooting in modern U.S. history,” has brought newfound urgency and attention to lone wolf violence and terrorism. Although a topic of pressing concern, the phenomenon—which centers on mass violence inflicted by one individual—is underexamined and undertheorized within legal literature. This scholarly neglect facilitates flat understandings of the phenomenon and enables the racial and religious double standards arising from law enforcement investigations and prosecutions of white and Muslim lone wolves.
This Essay contributes a timely reconceptualization of the phenomenon, coupled with a typology adopted from social science, for understanding the myriad forms of lone wolf terrorism. In addition to contributing the theoretical frameworks to further examine lone wolf terrorism within legal scholarship, this Essay examines how the assignment of the lone wolf designation by law enforcement functions as: (1) a presumptive exemption from terrorism for white culprits and (2) a presumptive connection to terrorism for Muslim culprits. This asymmetry is rooted in the distinct racialization of white and Muslim identity, and it is driven by War on Terror baselines that profile Muslim identity as presumptive of a terror threat.
Recent disputes in Ohio and Nevada about whether lawyers should be allowed to wear “Black Lives Matter” pins in open court expose a fault line in First Amendment law. Lower courts have generally been unsympathetic to lawyers who display political symbols in court. But it would go too far suggest that free speech has no relevance in courtrooms. This Essay argues for a way to strike a balance.