Article

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 But that story is incomplete and outdated.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.

Legal Design for the “Good Man”

Consequentialist analysts of legal rules tend to focus their attention on Holmes’s “bad man,” who conforms to legal rules only out of fear of legal sanctions. On this view, legal rules should be designed to give self-interested legal subjects sufficient reason to choose socially optimal actions. But many people conform to legal rules simply because they are the rules, even when their self-interest dictates doing otherwise.

At first glance, this focus on the bad man seems to make sense. Lawmakers, it is plausible to suppose, don’t have to worry about the “good man” when designing legal rules because he will do what they want him to do anyway by conforming to the law. In other words, good man analysis of law is simple and so can be safely ignored.

But good man analysis of law is much more complex than scholars have previously supposed, and ignoring the good man will therefore lead consequentialist lawmakers to err. People are motivated to comply with legal rules for various different kinds of reasons, and this variety matters for their behavior by affecting both their short-run responses to legal rules and their long-run attitudes towards the law. A lawmaker ought to design legal rules in a way that attends to this variety if her aim is to design socially optimal rules.

This Article systematically analyzes the problem of legal design in the face of the diversity of motivational types that exist in the population of legal subjects. Part I develops a typology of good persons by exploring the causes and consequences of legal norm internalization—the ways in which a person’s preferences are transformed such that he comes to value complying with legal rules for the sake of the rules. Part II argues that a good person’s type matters for his behavior in a number of important ways. For example, it affects the way in which he chooses among actions that conform to legal norms and the ways in which he responds to the various kinds of uncertainty to which the legal system exposes him. Part III derives normative implications of my analysis for consequentialist lawmakers, while also addressing the converse worry that good man analysis of law is too complex to be tractable. The overall aim is to systematically examine the ways in which a diversity of motivations in the population complicates the problem of legal design for legislators, judges, and administrative officials, and to develop an organizing framework that can be used to think about the problem rigorously, which I illustrate by exploring some examples.

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