Corporations, Unions, and the Illusion of Symmetry

Prominent corporate and labor law scholars claim that corporations and unions should be treated symmetrically when it comes to spending money on ideological activities. Citizens United v. FEC recognized this symmetry in one respect, by holding that both corporations and unions can spend unlimited amounts of money on politics. But Citizens United ignored the fact that dissenting employees have a right to avoid paying for union spending with which they disagree, while dissenting shareholders have no such right. Sensing that the Supreme Court might expand union dissenters’ rights in Friedrichs v. California Teachers Ass’n, these scholars intensified their calls for legal reform to bring the disparate treatment of corporations and unions into line.

This Article argues against the idea of moving towards greater union-corporate symmetry. The strength of arguments for symmetry depends on accurately identifying the principle underlying dissenters’ rights. On this score, existing accounts propose several candidates—from the idea that it is illegitimate to use power in the economic sphere to achieve goals in the political sphere, to the view that dissenters should not suffer misattribution of ideological beliefs, to claims about the corruption that comes from using other people’s money for political speech. But none of these principles hold up to scrutiny.

In their place, this Article argues—on both doctrinal and normative grounds—that dissenters’ rights are best seen as grounded in concerns for individual freedom of conscience. It then shows how the freedom-of-conscience principle undermines the case for union-corporate symmetry. The structure of modern corporations—and in particular the nature of modern capital markets—severs the link between shareholders’ wallets and their consciences. And when compared to the direct connection between dissenting employees and unions, threats to shareholder conscience are remote. Recognizing this fundamental difference between corporations and unions provides reason to be skeptical of various arguments for legal reform based on appeals to symmetry and clears the way for more persuasive claims to take their place.

The Amicus Machine

The Supreme Court receives a record number of amicus curiae briefs and cites to them with increasing regularity. Amicus briefs have also become influential in determining which cases the Court will hear. It thus becomes important to ask: Where do these briefs come from? The traditional tale describes amicus briefs as the product of interest-group lobbying. But that story is incomplete and outdated. Today, skilled and specialized advocates of the Supreme Court Bar strategize about what issues the Court should hear and from whom they should hear them. They then “wrangle” the necessary amici and “whisper” to coordinate the message. The result is orchestrated and intentional—the product of what we call “the amicus machine.”

This Article has two goals: The first is to offer a new description of the origin of many Supreme Court amicus briefs, explaining how it is that the Justices and the advocates benefit from this choreographed amicus process. Second, we make the perhaps surprising claim that the amicus machine is normatively desirable. Others have warned about the influence of the powerful lawyers of the Supreme Court Bar generally. While acknowledging these risks, we argue that—when it comes to amicus briefs—the benefits of specialization outweigh the costs.

Unbundling the “Tort” of Copyright Infringement

Judges and jurists orthodoxly view copyright infringement as a singular legal wrong, a.k.a. the tort of copyright infringement. In recent years, commentators have expressed mounting concern about the judicial test for this tort. Courts have no unified method for determining whether two works are substantially similar. The fair use doctrine is so unpredictable that some find it nothing more than the “right to hire a lawyer.” And while some judges treat infringement as a property tort, like trespass or conversion, others think of it as an economic tort, like unfair competition. Scholars therefore find the test for infringement—copyright’s “infringement analysis”—to be inconsistent and incoherent.

This Article provides a revised positive theory of copyright that clarifies the infringement test. The Article argues that copyright infringement is not one singular tort, but a group of torts. Using an analytic jurisprudential method, the Article “unbundles” infringement into five “copy-torts”: consumer copying, competitor copying, expressive privacy invasion, artistic reputation injury, and breach of creative control. Because copyright infringement is not one tort there cannot be one single infringement test. Instead, copyright’s basic infringement analysis mutates doctrinally and theoretically to provide a unique legal test for each of the copy-torts. The variation in the infringement analysis is not necessarily inconsistent or incoherent, but enables courts to test for the different copy-torts. Understanding the different copy-torts will therefore make the infringement analysis more predictable. Not only will practitioners better foresee how courts will apply the test to their cases, judges are also provided with a guide to applying the correct legal standards in infringement actions. To make the analysis even more predictable, the Article proposes a method of adjudicating hard cases that will help courts conceptually separate the copy-torts, thus ensuring they apply the correct legal tests in the future.