In February, the Supreme Court announced its unanimous decision in a case that represents the first step in a well calculated attack on the conservative wing’s efforts to conflate Establishment Clause doctrine with Free Speech analysis. The case, Pleasant Grove City, Utah v. Summum, pitted a Salt Lake City church headed by Summum Ra against the city of Pleasant Grove in a fight over monuments displayed in a public park. For over thirty years, a monument of the Ten Commandments—originally donated by the Fraternal Order of Eagles—has stood in the city’s Pioneer Park. In 2003, and again in 2005, Summum asked Pleasant Grove also to display a monument dedicated to the “Seven Aphorisms of Summum” on park grounds. The city rejected Summum’s request, claiming that monuments in the park must have some significant connection to Pleasant Grove’s civic history. Summum, however, argued that, by opening Pioneer Park to privately donated monuments, the city has created a public forum for free expression purposes and cannot now discriminate against donations based on their content. In a forceful display of unanimity from a Court that might have fractured along a number of doctrinal lines, Summum lost—for now.
Tiered Originality and the Dualism of Copyright Incentives
In a well argued and thought-provoking new article, Gideon Parchomovsky and Alex Stein attempt to give copyright’s requirement of originality real meaning, by connecting it to the system’s avowed institutional goals. To this end, they focus on disaggregating originality into three tiers and providing creative works within each tier with a different set of rights and liabilities. Parchomovsky and Stein are indeed correct to lament the meaninglessness of originality under current copyright doctrine. Yet their proposal does not quite fully explore the incentive effects of differentiated originality, especially as between upstream and downstream creators. Nor does it tell us why some of copyright’s more recent innovations are not the right place to give effect to their ideas and principles. In this Response, I examine how their refashioned originality doctrine might fit within copyright’s incentive structure, and in the process ask whether there might be better ways of integrating it into the institution’s existing common law structure.
The Networked—Yet Still Hierarchical—Family
Melissa Murray’s article The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers exposes a reality of contemporary family life that family law had relegated to the invisible, parents’ reliance on networks of caregiving, both paid and unpaid. In doing so, The Networked Family makes several significant contributions to family law scholarship.
First, the article advances family law’s ongoing project of becoming responsive to the ways that families live their lives, regardless of formal rules. Murray achieves this objective by challenging the traditional understanding of parenthood as an indivisible, comprehensive, and exclusive status and focusing instead on the way parents often rely on nonparents in caring for children. Second, The Networked Family seeks to confer value on caregiving by acknowledging its important role and calling for greater official recognition—wherever such recognition might lead. Accordingly, the article has implications for how family law might treat even caregiving provided directly by parents. Third, Murray’s analysis joins that of other family law scholars who question family law’s existing boundaries and thereby suggest that fertile ground for much-needed reforms might lie beyond where conventional conceptualizations of the field end. In looking past family law’s usual cast of characters and urging inclusion of nonparental caregivers, The Networked Family helps reveal the implicit value judgments and assumptions that account for the contemporary construction of family law itself. These are all welcome and meaningful insights.
Although Murray consequently provides several worthwhile points of departure, this brief response attempts to follow just one strand, the possible implications of her analysis for certain inequalities and hierarchies that long have characterized family law. Here, I consider what Murray’s call for recognition of caregiving networks might mean, first, for the traditional gender stereotypes that family law once embraced but now professes to reject and, then, for the issues of race and class that family law all too routinely ignores. To be sure, at points Murray acknowledges these variables—for example, in noting the promise of one theoretical approach that she considers, dismantling the notion of legal parenthood altogether. My response takes a closer look at caregiving and hierarchies of gender, color, and class.