In There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy we explored how, why, and what stand-up comedians have created at different points in the history of stand-up comedy. From this study, we offered insights into how intellectual property (“IP”) law affects human motivation to create, how legal and non-legal motivations interact, and how the emergence of IP entitlements (in comedians’ case, norm-based entitlements) may change creative practices.
We consider ourselves very fortunate to have received four insightful responses to our paper by scholars who each have done great work on IP and social norms. We thank each of them for commenting on our work. Reading their responses made us think again about the boundaries of our project, and about the implications of our findings and arguments. Their critiques are both internal to the paper—taking issue with our findings and logic—and external, suggesting possible extensions and noting questions for future research. We cannot, given the breadth and depth of the response papers and the time and space allotted to us, give each of the critiques the full attention they deserve. We will focus our reply on what we see as the core issues identified in each of the responses.
Volume 95
The Confrontation Clause and the High Stakes of the Court’s Consideration of Briscoe v. Virginia
IN October Term 2008, the Supreme Court handed down Melendez-Diaz v. Massachusetts—the latest case in the Crawford line under the Confrontation Clause. In Melendez-Diaz, the prosecution sought to introduce an affidavit by a forensic analyst that stated a given substance was cocaine. The defendant objected, arguing that the Confrontation Clause required that the analyst testify in person. Justice Scalia, writing for a five-Justice majority that included Justices Ginsburg, Souter, Stevens, and Thomas, held that the reports of forensic analysts are “testimonial,” and thus a prosecutor can only introduce such a report if the analyst is subject to “confrontation,” or if the defendant waives that right.
The Court handed down Melendez-Diaz on a Thursday. The following Monday, the Court granted certiorari in Briscoe v. Virginia. In that case, the Supreme Court of Virginia—writing one year before Melendez-Diaz—had assumed that an analyst’s report was “testimonial,” but it held that the confrontation right was satisfied by a Virginia statute that allowed the defendant to call the analyst as an adverse witness during the defense phase of trial. The Court heard arguments in Briscoe on January 11, 2010.
This essay will explore the options and compromises available to the Court in Briscoe. Moreover, it will explore how these various options can be used as a vehicle to shape future jurisprudence under the Confrontation Clause.
Good Scholarly Intentions Do Not Guarantee Good Policy
Professor Bartlett has written a bold article pushing back against what might be called inchoate or half-hearted empiricism. The half-hearted empiricist recognizes the value of empirical evidence to help solve a legal problem but, for whatever reason, fails to acknowledge the complexity and uncertainties of the evidence and as a result offers haphazard prescriptions. Professor Bartlett’s article demonstrates what a whole-hearted commitment to empiricism looks like: it involves an engagement with primary sources rather than a reliance on secondary sources (or tertiary sources in the form of law review summaries of secondary sources), a review of research relevant to a problem rather than a review of a subset of research focused on one particular aspect of a problem, and a struggle to find usable prescriptive lessons in a literature that ranges from basic-level research with little obvious real-world application to applied research that can be so situation-specific that its generalizability can be questioned. Whole-hearted empiricism is hard, messy work, as well as a frustrating undertaking. Unlike theory- or model-based approaches to policy that self-consciously simplify the world and avoid many empirical complications, an evidence-based approach must confront empirical complexities and try to find meaning in the midst of ever-changing empirical evidence, imperfect studies, and contradictory findings located among the fragmented social sciences. Consequently, rarely will consensus exist on the prescriptive meaning of the assembled evidence. It should thus not be surprising that, after saying a few words on the dangers of half-hearted empiricism, I raise some questions about the empirical conclusions and recommendations offered by Professor Bartlett and suggest that her attempt to foster good intentions might more usefully be focused on firms rather than managers.