The University of Chicago Law School Faculty Blog

Fair Use and Downloading

As Eric Goldman notes on his blog, the Seventh Circuit issued an opinion yesterday in BMG v. Gonzales. The appeal squarely raised the question of whether downloading copyrighted music without permission using a peer-to-peer network is plausibly "fair use" and hence excused from liability. Judge Easterbrook, correctly in my view, thought not.

Along the way, Easterbrook includes two interesting discussions that seem likely to have broad implications.

Gold Farming & Cutting out the Middleman in Virtual Worlds

There's an interesting Times article today on the latest form of outsourcing, and Greg Lastowka, who has written neat scholarship on the law of virtual worlds, blogs about it here.  Essentially, large numbers of Chinese workers are employed playing videogames in virtual worlds for twelve hours a day, earning gold, weapons, and armor, which they then sell to Westerners who want virtual gold, weapons, and armor but have more real-world income than time or skill for gaming.  If the Times has it right, then this has become a major industry in China.

All of this raises something of a puzzle:  Why don't software developers cut out the middleman? 

Sunstein on the Chicago Judges Project

Cass Sunstein and a team of faculty and students in the Chicago Judges Project are hard at work analyzing such questions as whether votes of federal judges are predictable from their ideology. In this short interview from the Research at Chicago series, Cass Sunstein discusses judicial behavior on federal courts, examining considerable data on how appointees have voted, and considers whether judges are affected by their colleagues. This interview is available in both audio and video versions. For instructions, click here.

The Wisdom of Solomon

Earlier this week the Supreme Court heard oral argument on the effort by major Law Schools (not ours) to attack the Solomon Amendment on First Amendment grounds. As everyone now knows this provision is intended to strip University of all government support if they do not allow military recruiters equal access to their facilities for recruitment purposes, notwithstanding a “don’t ask, don’t tell” policy, which clearly discriminates against gays and lesbians in the military.

Why are the Schools Still Closed?

Much of New Orleans has reopened, including half the hotels and one-third of the restaurants, but only one or two public schools - and those for just eight days before the holidays.  Why?  One explanation is that parents made other plans post-Katrina, and the children are in schools in other states until the New Year.  This is supported by the fact that only a modest percentage (about 10%) of Catholic schools have reopened.  It is also plausible that officials are especially careful about environmental risks when it comes to schools, though one would think that if restaurants and hotels can reopen, schools can as well.

Media coverage has avoided the question of which teachers and administrators continue to be paid.  Some teachers and administrators have been reported as looking for work in other states, and some have taught in temporary or temporarily expanded schools, so that reopening in mid-term may present too great a coordination problem.

The Solomon Amendment

The Supreme Court heard argument yesterday in Rumsfeld v. FAIR, which poses the question whether the application of the Solomon Amendment to law schools violates the First Amendment. Stated simply, the Solomon Amendment provides that if any part of a university denies military recruiters equal access to its placement facilities and services, the university will lose its federal funding. The Solomon Amendment was enacted in response to the decision of almost all law schools (including the University of Chicago Law School) in the late 1980s and early 1990s to ban military recruiters as part of an overall policy of excluding any recruiter who discriminates among students based on race, religion, gender, sexual orientation, etc.

In Rumsfeld v. FAIR, a group of law schools and law professors challenge the constitutionality of the Solomon Amendment on the ground that it violates their rights to freedom of speech and association. They claim that the Solomon Amendment violates these rights in essentially three ways: (1) It prohibits their symbolic expression of opposition to discrimination in the military. (2) It compels them to associate with the military. (3) It compels them to distribute information about military recruiting.

California Court Overprotects Teen Privacy

Over at Concurring Opinions, the always-interesting Dan Solove has a neat post up about a privacy case arising out of a California high school, which the New York Times covered last week.  The case involves a homosexual teenager who was "out" to many fellow students, but not to her parents.  A school administrator learned of the teen's orientation, and informed her parents, causing a great deal of family turmoil.  One of the legal questions raised is whether the teenager had a "reasonable expectation of privacy" in her sexual orientation.  The court said "yes," and Dan Solove likes that result, invoking a paper I recently published in our law review to support the court's decision.

I'm always happy to see my arguments cited by others, but I'd part ways with Dan (and the court) on this interesting case.  While U.S. courts often protect privacy too little, I think the California court here may be on the path toward overprotecting privacy.

Sunstein and FDR

Another archival item from the Research at Chicago series. Cass Sunstein's 2004 book, The Second Bill of Rights: FDR'S Unfinished Revolution and Why We Need It More than Ever rediscovered a relatively obscure speech - FDR's 1944 State of the Union Address, in which Roosevelt articulated the idea that human beings have inherent economic and social rights. This short interview about that speech is available in both audio and video versions. For instructions, click here.

Polarization: Planned and Spontaneous

One of the most interesting findings in modern social science involves group polarization -- the process by which like-minded people go to extremes. More technically, deliberating groups tend to end up in a more extreme position in line with their predeliberation tendencies. (A good discussion can be found in Roger Brown, Social Psychology: The Second Edition (1985); at the University of Chicago the phenomenon has been explored for both juries and three-judge panels.) It follows, for example, that after talking with one another, those who are excited about Judge Alito will be still more excited about him; those who are skeptical of him will be still more skeptical after internal discussions. (Of course this is a statistical regularity, not an unbroken rule.)

Women’s Bodies: Violence, Security, Capabilities - Part VI

Note: This is the sixth and final post in a series, the whole of which is an article by Martha Nussbaum. The article, entitled "Women’s Bodies: Violence, Security, Capabilities," appeared in the Journal of Human Development (Vol. 6, No. 2, July 2005).  Comments are encouraged on parts or on the whole.

Strategies for women’s empowerment

How can we make progress against violence of all the kinds I have described? This is a vast topic, and yet I feel that it can be illuminated by the theoretical approach I have defended. In addition to the obvious strategies of legal reform and better law enforcement, the capabilities approach urges us to think about how we might mobilize one capability to help another. If the analysis of the second section shows that the bad things all hang together, it is also true that supporting one capability helps support others, and sometimes, in an area as culturally contested as this one, the indirect approach through a different capability may be the best. Good women’s organizations typically do not march into a village saying ‘We are here to change gender roles and stop men from beating their wives’. Even when violence is a big part of their agenda, they typically pursue more indirect strategies, giving women greater bargaining power and exit options through economic empowerment.

Note: This is the sixth and final post in a series, the whole of which is an article by Martha Nussbaum. The article, entitled "Women’s Bodies: Violence, Security, Capabilities," appeared in the Journal of Human Development (Vol. 6, No. 2, July 2005).  Comments are encouraged on parts or on the whole.

Strategies for women’s empowerment

How can we make progress against violence of all the kinds I have described? This is a vast topic, and yet I feel that it can be illuminated by the theoretical approach I have defended. In addition to the obvious strategies of legal reform and better law enforcement, the capabilities approach urges us to think about how we might mobilize one capability to help another. If the analysis of the second section shows that the bad things all hang together, it is also true that supporting one capability helps support others, and sometimes, in an area as culturally contested as this one, the indirect approach through a different capability may be the best. Good women’s organizations typically do not march into a village saying ‘We are here to change gender roles and stop men from beating their wives’. Even when violence is a big part of their agenda, they typically pursue more indirect strategies, giving women greater bargaining power and exit options through economic empowerment.