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.

Protecting Same-Sex Marriage and Religious Liberty

In Hollingsworth v. Perry and United States v. Windsor, or perhaps in some more clearly justiciable case a few years hence, the Supreme Court will decide whether states can prohibit same-sex marriages. The Becket Fund for Religious Liberty argued in both pending cases that protecting religious liberty is a rational basis for banning same-sex marriage.

The conflict between religious liberty and gay rights is bad for both sides and dangerous for the American tradition of individual liberty. The Court can protect the rights of both sides.

Placebo Statutes?: Sarbanes-Oxley and Ethics Code Disclosures

In Placebo Ethics, Usha Rodrigues and Mike Stegemoller (“R&S”) show that Section 406 of the Sarbanes-Oxley Act and its implementing rules have failed to generate disclosures that shed enough light on conflicts of interest and related ethical issues involving senior financial executives at publicly traded companies. They suggest two different stories of failure. One is on the part of those making disclosure decisions at public companies, presumably lawyers, who fail to comply with the letter or spirit of the Section 406 rules. The other is on the part of policymakers, particularly at the Securities and Exchange Commission (“SEC”), whose dim articulation of the rules and subsequent failure to enforce enabled such widespread evasion. R&S seem quite troubled by both.

My comments are about these supposed failures and, more generally, the diffusion of securities law compliance norms among publicly traded issuers. I fully agree with R&S that Section 406 has failed to produce much of value. I am less convinced that many thoughtful observers ever expected it to, or that the investing public has somehow been lulled into thinking otherwise.