Online

Custom, Comedy, and the Value of Dissent

Professors Dotan Oliar and Christopher Sprigman’s new article on quasi-intellectual property norms in the stand-up comedy world provides yet another compelling example of the phenomenon that I have explored in which the governing intellectual property regime takes a backseat to social norms and other industry customs that dominate the lived experiences of many in creative fields. Their insightful treatment of the microcosm of comics reinforces my concern that customs are being used to expand IP law both inside and outside the courtroom. I am particularly appreciative of the editors of the Virginia Law Review for inviting this brief response, which allows me to build upon my work on the use of customs and norms in IP.

Although Oliar and Sprigman do not use the term “custom,” I think it is important to recognize that custom includes not only industry practices, but also the social norms that interest Oliar and Sprigman. Oliar and Sprigman make few specific recommendations as to how the law should engage with the norms they document. Nevertheless, they suggest that lawmakers and judges should “consider” seriously the existence of such norms. This leaves too much room for such norms to be incorporated into the law as governing customs—something I have resoundingly criticized except in the most narrow of circumstances. Oliar and Sprigman suggest that Congress should consider the norms of stand-up comedy because those norms provide incentives to create without reliance on the formal legal structure of copyright law. Accordingly, they suggest that Congress should resist expanding IP law because the social norms already fill the legal gaps.

I will organize this response as follows: First, I will consider why the existence of social norms does not adequately challenge the incentive rationale, and therefore does not provide a compelling basis for Congressional restraint. Second, I will consider whether the norms that have developed in the stand-up community are worthy of judicial or legislative deference (without regard to their incentive effect). Finally, I will consider what, if anything, the law should do to interrupt the restrictive norms that Oliar and Sprigman identify.

The Boundaries Are Dead, Long Live the Boundaries!

In our article Overcoming Procedural Boundaries, we set out to dispense with the anachronistic and dysfunctional distinction between civil and criminal procedure and to offer in its stead an alternative procedural divide that is better suited to the goals and purposes of the original dichotomy. The article is comprised of two parts, the first deconstructive and the second reconstructive. The deconstructive part seeks to show that the existing procedural taxonomy is inherently flawed both conceptually and practically. It highlights a fundamental shortcoming of our present procedural system in failing to provide adequate protections to individuals who are sued by the government or by large organizational entities and who face severe civil sanctions, while ensuring sweeping procedural safeguards for people and institutions facing only trivial criminal sanctions. We survey the many justifications for the civil-criminal rift in procedure, which include utilitarian, egalitarian, expressive, and liberal rationales, and challenge each one, showing them to be “obsolete if not completely unfounded.”

The second, reconstructive part of the article proposes cutting the Gordian knot binding substance to procedure and replacing the current bifurcated civil-criminal procedural regime with a model running along two axes: the balance of power between the litigating parties and the severity of the potential sanction (or remedy). The balance of power component of the model refers to its two sets of procedural rules and is aimed at remedying the asymmetry problems inherent to litigation. According to the proposed model, one set of rules would govern symmetrical litigation, that is, where both parties are either institutional entities (IE), including both governmental bodies and large organizational entities such as big corporations and financial institutions, or else individuals (IND), which would include small businesses. A second set of rules would govern asymmetric litigation, involving an individual on one side and an institutional entity on the other. The second trajectory in the model is the degree of harm that would be generated by an adverse ruling for the litigating parties, irrespective of whether the substantive legal regime governing the dispute is civil or criminal. In focusing on these two parameters, our proposed procedural regime maps out the entire procedural landscape. The article shows that the proposed model better realizes the objectives underlying the rationales for the current procedural regime.

In his thought-provoking response, Mr. Blenkinsopp raises several important points of criticism against our reconstructive move, arguing that our “attempt to erase boundaries ends up erecting new ones, which are perhaps equally arbitrary and dysfunctional.” In this brief response, we would like to address this criticism and use his arguments as a framework for clarifying some points of possible confusion.

Rights and Realities

Melissa Murray’s thought-provoking article The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers provides a compelling analysis of the limits of functional approaches to the family. Although these approaches have been among the most important concepts motivating family law reforms and scholarship over the past thirty years, Murray illustrates the many ways in which they have both overlooked the complexities of childrearing and positioned caregiving as the sole domain of parents and their functional equivalents. Murray then begins a process of deconstructing legal notions of caregiving in order to expose and challenge the choices made by states and scholars when they assign the rights and responsibilities of caregiving solely to parents, even broadly defined. Murray concludes by urging scholars and reformers to spend more time considering “the question of how families perform their caregiving work” in order to begin to address the gaps created by a family law regime that recognizes only parents and strangers in children’s lives.

Taking up Murray’s call for “others to join this important conversation,” I enthusiastically support Murray’s project. Her article is outstanding, and I hope it will spur a fundamental shift in family law scholarship. Indeed, despite her modesty, Murray has proposed several alternatives that could radically alter the law’s current view of the parent-child relationship and of family relationships in general. I support these proposals to the extent that they force reformers and scholars to confront who benefits and who is harmed by legal conceptions of the family, even ones that have been expanded to reflect functional approaches to the family. I fear, however, that Murray’s analysis may be held back by an assumption about the appropriate relationship between rights and reality often embraced by family law scholars including, at times, by Murray herself.

©Virginia Law Review Association. All rights reserved.