In There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy we explored how, why, and what stand-up comedians have created at different points in the history of stand-up comedy. From this study, we offered insights into how intellectual property (“IP”) law affects human motivation to create, how legal and non-legal motivations interact, and how the emergence of IP entitlements (in comedians’ case, norm-based entitlements) may change creative practices.
We consider ourselves very fortunate to have received four insightful responses to our paper by scholars who each have done great work on IP and social norms. We thank each of them for commenting on our work. Reading their responses made us think again about the boundaries of our project, and about the implications of our findings and arguments. Their critiques are both internal to the paper—taking issue with our findings and logic—and external, suggesting possible extensions and noting questions for future research. We cannot, given the breadth and depth of the response papers and the time and space allotted to us, give each of the critiques the full attention they deserve. We will focus our reply on what we see as the core issues identified in each of the responses.
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Massive Hard Drives, General Warrants, and the Power of Magistrate Judges
Most legal scholars who write at the intersection of technology and the Fourth Amendment spend much of their time building upon Professor Orin Kerr’s many clear and insightful articles, and I am no exception. It is thus with great respect and deference that I explain what Professor Kerr gets wrong in his latest article, Ex Ante Regulation of Computer Search and Seizure.
In Ex Ante Regulation, Professor Kerr tries to disrupt a trend emerging from the lower federal courts: the imposition by magistrate judges of limits on what the police can do with a search warrant for digital evidence stored on computer hard drives. These judges have tried to impose a diverse set of requirements and restrictions on these warrants—catalogued by Professor Kerr—such as limits on how long the police can retain a computer and what they can do when they examine its hard drive.
Professor Kerr offers both doctrinal and normative arguments against ex ante search warrant restrictions. His doctrinal arguments are the more provocative ones: he thinks ex ante warrant restrictions like these are lawless acts, beyond the constitutional and statutory power of magistrate judges. I disagree, and in this Essay, I respond almost entirely to these arguments, because if they are correct, then a normative debate is almost beside the point.
For support, Professor Kerr points to four Supreme Court cases which, as he concedes, “[v]iewed in isolation . . . do not definitively rule out the lawfulness of ex ante restrictions on the execution of computer warrants,” but which he claims, “[t]aken together . . . undercut every aspect of the lawfulness of such restrictions.” I respectfully disagree. Two of the cases are easy to distinguish, as Professor Kerr seems to concede.
The Confrontation Clause and the High Stakes of the Court’s Consideration of Briscoe v. Virginia
IN October Term 2008, the Supreme Court handed down Melendez-Diaz v. Massachusetts—the latest case in the Crawford line under the Confrontation Clause. In Melendez-Diaz, the prosecution sought to introduce an affidavit by a forensic analyst that stated a given substance was cocaine. The defendant objected, arguing that the Confrontation Clause required that the analyst testify in person. Justice Scalia, writing for a five-Justice majority that included Justices Ginsburg, Souter, Stevens, and Thomas, held that the reports of forensic analysts are “testimonial,” and thus a prosecutor can only introduce such a report if the analyst is subject to “confrontation,” or if the defendant waives that right.
The Court handed down Melendez-Diaz on a Thursday. The following Monday, the Court granted certiorari in Briscoe v. Virginia. In that case, the Supreme Court of Virginia—writing one year before Melendez-Diaz—had assumed that an analyst’s report was “testimonial,” but it held that the confrontation right was satisfied by a Virginia statute that allowed the defendant to call the analyst as an adverse witness during the defense phase of trial. The Court heard arguments in Briscoe on January 11, 2010.
This essay will explore the options and compromises available to the Court in Briscoe. Moreover, it will explore how these various options can be used as a vehicle to shape future jurisprudence under the Confrontation Clause.