Copyright law may not be the answer, but what is the question? Dotan Oliar and Christopher Sprigman explore an example of a norm system—the one among stand-up comedians against joke theft—and show why it is likely superior to use of copyright to protect rights in jokes. In the course of their study they document both how formal copyright law is unsuited to protecting comedic material and what type of norm system, enforced by other comics and booking agents, has sprung up in its stead. From a property point of view, the likely bi-causal relationship between the development of the antiplagiarism norm and the rise of narrative, observational, and social commentary-style comedy out of earlier vaudeville and post-vaudeville styles is now, thanks to Oliar and Sprigman, one of the better documented cases of Demsetzian development we have. Oliar and Sprigman also argue that for all its dangers of mob justice and extreme simplicity, the norm system does protect investments in developing comedic material and is likely more effective and desirable than an enhanced copyright law that might well crowd out the norms system.
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The Immortality of Equitable Balancing
Professor Goldstein argues that courts should not weigh the burden on defendants in deciding whether to enjoin statutory violations. Such an undue hardship defense to a preventive injunction in statutory cases would, he reasons, allow courts to upend the policy choice that the legislature made in enacting the statute.
Goldstein sees this practice as a threat to legislative policy choices, because he views equitable discretion as giving judges open-ended discretion to reach whatever result makes sense to them. He shares this premise with Professors Abram Chayes and Zygmunt Plater; Chayes, however, wanted courts to have broad discretion in formulating injunctions in public law cases while Plater, like Goldstein, seeks to deny discretion to allow violations to continue. Plater wrote over a quarter century ago. Goldstein makes a valuable contribution not only by dealing with subsequently decided cases, but also going back in time to challenge the Supreme Court’s assumption that the courts have allowed an undue hardship defense for many centuries.
Wal-Mart, AT&T Mobility, and the Decline of the Deterrent Class Action
The justification for class actions rests on two main grounds: compensating victims whose claims are too small to be brought individually and deterring wrongdoing by aggregating claims to facilitate private enforcement. These two rationales overlap and compete with one another, as does their application to class actions certified under different subdivisions of Federal Rule of Civil Procedure 23. Broadly speaking, class actions certified under subdivision (b)(3) focus on compensation to individual class members, with deterrence resulting only from the defendant’s exposure to liability for paying such compensation, while class actions certified under subdivision (b)(2) focus on injunctions that prevent or deter future wrongdoing, without regard to the relief awarded to individual class members. In the recent decisions in Wal-Mart Stores, Inc. v. Dukes and AT&T Mobility LLC v. Concepcion, the Supreme Court cast further doubt on the deterrent function of the class action. More precisely, it sacrificed deterrence when compensation could not be accurately given. Wal-Mart restricted the remedies available in (b)(2) class actions to exclude individual monetary relief, and it also restricted the conditions under which any class action could be certified. AT&T Mobility restricted the conditions under which plaintiffs could get to court to bring a class action in the face of contracts requiring individual arbitration. These decisions are all the more significant for being widely misunderstood.