In a recent article, Professor Bartlett argues that modifying legal tools in order to reduce implicit race and gender bias is a worthy goal, but one that is almost certainly unattainable. The modern workplace, in her view, is populated mostly by individuals who are well intentioned and committed to nondiscrimination. Legal “coercion” threatens their autonomy and sense of personal efficacy and, as a result, generates a backlash that is more likely to increase workplace bias than to reduce it. Instead of strengthening antidiscrimination laws, the most effective way to create workplace fairness is to restructure work in a way that facilitates our tolerant instincts. Doing so will reduce actions that are discriminatory and unlawful. At the same time, it will make us feel better about ourselves.
Volume 95
Pleasant Grove v. Summum: Losing the Battle to Win the War
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.