BOTH sides in our nation’s ongoing immigration disputes are spinning the Arizona v. United States ruling as a victory—plus an occasion to appeal to supporters for more money to battle through the fall election cycle and the predictable next rounds of litigation and legislation. It’s the federal side, however, that has the better claim to success.
Online
On Proportionality and Federalism: A Response to Professor Stinneford
John Stinneford’s latest article sheds fresh light on the original public meaning of the Eighth Amendment. Stinneford provides a cogent rejoinder to Justice Scalia’s position that the Cruel and Unusual Punishments Clause contains no proportionality principle. But to show that the Clause contains some proportionality requirement gets us only part of the way to an understanding of what that proportionality principle demands. And Stinneford’s work falters in its articulation of the proportionality requirement of the Cruel and Unusual Punishments Clause as understood in 1791. He claims, in essence, that the Clause was understood as generally constraining Congress from inflicting punishments that were significantly harsher than those imposed at common law for the same offense. While Stinneford’s assertion that the Clause imposed common-law constraints on Congress’s power to punish is well supported, he incorrectly assumes a consensus in 1791 about the nature of the common law. To the contrary, the conceptions of the common law in 1791 were far from homogenous. Specifically, around that time, a more modern, Realist notion of the common law began to emerge and was championed by the Anti-Federalists, who conditioned ratification of the Constitution on the inclusion of a Bill of Rights and whose views are therefore critical to an understanding of the Cruel and Unusual Punishments Clause. Thus, while Stinneford is probably correct that the Clause was widely understood in 1791 as imposing common-law constraints on the federal government’s power to punish, it is unlikely that there was any consensus as to what that meant. In particular, the Anti-Federalists—and their political heirs, the Republicans—took a more state-centered approach than Stinneford would allow.
Of Coase and Comics, or, The Comedy of Copyright
Dotan Oliar and Christopher Sprigman’s There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy is one of a small number of recent case studies that supply relevant data. The major virtue of this work is that it does for the premise of Anglo-American intellectual property law what Ellickson did for Coase. It moves the discussion from theory to practice. Does intellectual property law supply incentives to produce and distribute creative goods? In some salient contexts, the answer is “no” or, at least, “not so much.” Oliar and Sprigman argue that stand-up comedians are creative and productive folks who live by a system of social norms, rather than by a system of intellectual property law.
Not only does this comic code encourage creativity, it also apparently has something to do with comedy itself. Along with an Ellicksonian tale of norm-based social ordering by a group (not an Ellicksonian close-knit group, but an identifiable loose-knit group), Oliar and Sprigman tell a related and partially Demsetzian story of the evolution of these norms. Comedy once was a commons, but social norms privatized its contents.
Here, I focus on what There’s No Free Laugh teaches other scholars. The challenge posed by Ellickson looms large. Ellickson went to Northern California looking for Coasean transactions, found something closer to the Balinese cockfight “thickly” described by Clifford Geertz, and had the humility to write up what he found: a combination of economics and culture. How might Oliar and Sprigman’s study form the basis for equally rich follow-on scholarship? The important lessons here may be partly what a thick version of law and economics can teach intellectual property law, and partly what a thick account of culture can teach law and economics.