Who’s In the Club?: A Response to Oliar and Sprigman

Volume 95

95 Va. L. Rev. Online 1
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DOTAN Oliar and Christopher Sprigman contribute to a growing body of case study literature focused on arenas in which social norms supplement or replace formal legal mechanisms as methods of allocating rights to intellectual creations. They document in fascinating detail the ways in which comedians enforce a norm of exclusive rights in jokes, using a variety of informal mechanisms to penalize “joke thieves.” They also show that this present-day norm is a relatively new development, having replaced an earlier regime in which comedians shared jokes on the vaudeville circuit.

The emphasis on “thick” description of the varied means by which creativity is governed in the world is a welcome development. Michael Madison, Brett Frischmann, and I have recently proposed a framework for systematizing such studies in the arena of “constructed cultural commons” for creating and sharing intellectual goods. Social norms are often constitutive of such commons, exemplified by research-tool-sharing among scientists. In these and other situations, going back to Ellickson’s famous case study of ranchers and farmers in Shasta County, social norms are often explained as mechanisms for solving collective action problems. From this rational-choice perspective, enforcement of social norms benefits group members by helping them avoid self-defeating Prisoner’s Dilemma-type situations by coordinating certain activities.