The University of Chicago Law School Faculty Blog

Video: Eric Posner and Jack Balkin, "The Politics of Emergency"

Last week, Kirkland and Ellis Professor of Law Eric Posner recorded a conversation with Yale's Jack Balkin on the Bloggingheads.tv site on "The Politics of Emergency." Among the topics covered were: executive power in a time of emergency, whether the president can change reality, secrecy in the Obama administration, and imagining an executive branch 2.0. The video is embedded below, or can be watched on the Bloggingheads site.

Solving the Foreclosure Problem

There is no shortage of ideas about the current foreclsoure problem, but unfortunately very little progress in Washington. The problem is that an unusually large number of homes, and I will stick to residential mortgages in this post, are "underwater," meaning that the outstanding balance exceeds the apparent, current value of the property. Homeowners are thus tempted to "walk away" from the property, and abandoned properties lose value when they are not maintained. Moreover, there is a perception that the banks would often be willing to renegotiate the mortgages, because they are currently not in much of a position to foreclose and resell at a "profit," but ownership and credit claims on the property are dispersed in a way that makes renegotiation difficult. Nearly everything in this paragraph requires modification, argument, and upending, but I will focus on a mere few items here.

How can homeowners walk away when they are in debt?  In some jurisdictions, home mortgages are indeed non-recourse loans, so that the mortgage holder cannot go after the borrower personally. but in other places the problem is simply a practical one compounded by legal regulation. There are many protections against foreclosure, in part because there are often sad stories associated with past abuses. In many places it is estimated that it takes 18 months to eject a homeowner and sell the property in a way that yields a clean title. The home can suffer serious damage in 18 months. Moreover, many of these borrowers do not have much in the way of other assets or earnings, especially in the current economic climate. For some, that is why they have fallen behind on their payments.

The Guantanamo Detainees and the Obama Administration

As an unabashed civil libertarian who sharply criticized many of the policies of the Bush administration, particularly in the “war on terror,” I have high hopes for the administration of President Obama. I know many of the officials in the Department of Justice and I know that they, too, are committed to the protection of civil liberties. But it is easy to defend civil liberties when one is not also charged with the responsibility of protecting the nation’s safety. Faced with that burden, the temptation to play it safe must be great, indeed.

Attorney General Eric Holder recently filed an important memorandum with the federal district court overseeing the habeas corpus petitions filed by more than two hundred of the individuals still detained at Guantanamo Bay. In this memorandum, the Obama administration made clear that it is “refining its position” with respect to the government’s “authority to detain those persons now being held at Guantanamo Bay.

An important element of this memorandum is the new administration’s repudiation of the Bush doctrine that the president has inherent authority as “commander-in-chief” of the armed forces to decide on his own whom he can detain, for how long, and under what conditions. The memorandum instead anchors its authority in congressional authorization and acknowledges that the president must act in accord with both the Constitution and the principles of international law. This is a much welcome return to the rule of law.

IP: Social and Cultural Theory—Closing Thoughts (Madhavi Sunder)

It is difficult to confine discussions of intellectual property to a handful of days, and indeed, we’ve stretched beyond the week I had originally planned.  But during that time, we have been treated to the insights of leading figures in intellectual property discourse, Mario Biagioli, Rochelle Dreyfuss, Graeme Dinwoodie, and Rob Merges, and even been graced with visits by law and economics scholar Omri Ben-Shahar and numerous helpful, and provocative guest commentators. I am grateful to all of them for engaging this topic so eloquently.

The issues have ranged far and deep: from whether economic theory is capacious enough to define the scope and limits of intellectual property in a digitized and globalized information regime; to whether economics can usefully learn from sister disciplines such as anthropology, science and technology studies, and literary theory. We deliberated on the equally grand and ambiguous concept of “development” and its relationship to culture and intellectual property.

While we have all agreed on the important insights and methods of economic analysis for intellectual property law, even the economically oriented scholars among us are cognizant of its limitations, evincing an openness to insights from diverse fields as we think more deeply about law’s role in regulating and promoting cultural production. The challenge going forward will be to better recognize the reemerging plurality in intellectual property scholarship and to consider how social and cultural analyses may better illuminate our economic insights, and vice versa.

In my final post of this mobblog I wish to response to some specific issues raised by Rob Merges and Graeme Dinwoodie in their latest posts.

IP: Social and Cultural Theory (Graeme Dinwoodie)

It's hard coming late to this conversation, because so many complex issues have already been raised.  But, if it's not too selective, I want to focus on just two: the importance of consciously separating descriptive and prescriptive questions as we broaden the debate in the ways that Madhavi suggests; and, building upon what Rochelle Dreyfuss has mentioned about our forthcoming book, I want to emphasize the international dimension to the dynamic on which Madhavi has focused.

In her original post, Madhavi suggests that her critique of the "narrow" focus of current IP thinking is both descriptive and prescriptive.  The ensuing discussion has covered both descriptive and prescriptive questions.  But there are dangers in eliding this distinction.  (I think we all do it now and then, but it seems especially easy to do when engaging in economic analysis in IP).  We see this, for example, in trademark law.  If one goes back 50 years, the functions of trademark law were expressed in relatively uncontested terms: ensuring consumers get what they want, and cracking down on "pirates and cheats".  This is broad language, allowing the injection of a range of values that cut either in favor of or against broad trademark protection; in fact, if we now look at the mid-twentieth century scope of protection, it looks relatively confined.  But in the last thirty years that justification for trademark protection was reformulated in the language of law and economics, and in particular in the language of search costs (including by the Supreme Court).  Search costs surely are an important part of the description of how trademarks function, and also one reason why prescriptively we offer them legal protection.  But it has too quickly become an all-encompassing prescriptive guide: if certain conduct increases search costs, it should be prohibited; conduct that doesn't clearly increase search costs should be of no concern to trademark law.  And there is a tremendous attractiveness to this: we don't have to work out who are "pirates" and "cheats" and we don't have to consider "what consumers want".  But maybe we need to struggle more with those questions, which don't lend themselves so readily to economic analysis.

IP: Social and Cultural Theory (Rob Merges)

It has been great fun reading, thinking about, and responding to these posts. My thanks to Madhavi and all the contributors, who have offered some truly stimulating ideas and comments.

I want in this, my final post, to pick up on a thread first developed by Madhavi, and periodically referenced by other contributors: the role of IP in what is sometimes called "the development agenda." Now, "development," like "culture," is wide-ranging yet deeply ambiguous. So let me clarify a bit how I understand the term.

At the most basic level, development is about economics. It is about providing food and meeting the other basic needs of the world's poorest people. At this level, IP policy has a small but important role. (The alleviation of suffering, even if only modestly, is inherently important.) For example, when it can be shown that IP rights are getting in the way of basic sustenance, those rights have to give way. If it is clear, for example, that patents on a certain foodstuff are interfering with sustenance in some demonstrable way, the patents must not be enforced. This dictate of distributive justice is actually built into any reasonable theory of property rights -- any theory that aspires to hold a place in a liberal world society. It is for example present in the foundations of John Locke's theory of property. His charity proviso actually says not just that property claims must yield in the face of abject need; it says that the poor in these circumstances actually have a claim on the title to some portion of the property held by the well-off. Destitute status is not, in other words, a condition outside the institution of property rights that modifies the force of those rights. It is built into the fabric of the rights themselves.

IP: Social and Cultural Theory – A Reply to the Question ‘Why Culture?’ (Madhavi Sunder)

Mario Biagioli asks why, after spending so much time in my earlier published writings deconstructing the reified notions of “culture” and “traditional knowledge,” I am now offering a cultural theory of intellectual property to stand beside and illuminate the dominant economic account.

The continuing centrality of culture to what makes human life worth living leads me to concur wholeheartedly with the anthropologist James Clifford’s modus vivendi: “culture is a deeply compromised idea I cannot yet do without.” Culture is the sphere in which human beings participate, share meaning, and enjoy life’s riches together, from art to music to literature and technology. And far from becoming less important in modern life, claims for rights to cultural diversity, preservation of languages, and more recently cultural participation only grow and become more boisterous. As Rob Merges helpfully noted earlier this week, culture offers sustenance—food, medicines, etc. But culture is more than that. Culture is an arena for innovation, communicative action, shared community, celebration of difference, and ultimately mutual understanding. Furthermore, as noted in the 2004 Human Development Report, titled Cultural Liberty in Today’s Diverse World, the cultural sphere increasingly has profound effects on other spheres, from politics, to social relations, to economic development. Surely, in a post 9/11 world we are wary of and ever vigilant against crass visions of “cultures” as hermetically sealed off from modernity and the locus of civilizational clashes. Mario’s questions are born of genuine concern about the frequent misuse of the culture concept. But the potential for abuse of the culture concept is precisely why it is so important to elaborate normative accounts that would privilege the values of participation, liberty, openness, fluidity, plurality, and fairness within and among cultural groups today.

IP: Social and Cultural Theory - Culture Metrics (Mario Biagioli)

I have a couple of specific comments on Rob's notion of "professional creatives," and a more general one on Madhavi's comprehensive notion of "culture.

Given that the parameters of evaluation of the quality of cultural artifacts are notoriously difficult to define (and probably impossible to fix in any non-local sense), I'm a bit surprised by Rob's assumption that there are people -- his "professional creatives" -- who seem naturally endowed with (or professionally selected for) a capacity to deliver "products that become cultural icons and shared touchstones." Professional creatives are those who can produce the cultural canon.

My first point is that Rob's narrative seems to internalize and reproduce the logic of IP that Madhavi is trying to question.  Better than traditional authors, professional creatives are endowed not only with a unique personal expression but also a high-quality one.  They produce work that is not only distinct, but also trend- and canon-setting.  The fact that their work may be the result of a lot of schooling, observing, and copying others is not foregrounded in this picture.  He mentions, instead, the kind of environment professional creatives need after having given birth to their works:  "large-scale organizations often needed to assemble their individual contributions into sophisticated, refined and polished form").  Rob may have compressed a longer and more complex narrative down to a few lines to make it fit the blog format, thus making it less nuanced than it really is.  Still, in the form presented here, social entities and resources are mentioned only as part of the process through which the work is refined after being conceived rather than of the process leading to its conception.  When it comes to the work of the professional creatives, the traditional notion of authorship based on individual personal expression is left, it seems, unquestioned.

Student Blogger - Health Law - "Horse Lawyers" or Essential Engineers?

Professor M. Gregg Bloche on the broken US health care system and what law professors can do to fix it.

Lots of people think the US health care system is in serious trouble. Health care costs are growing much more quickly than the economy as a whole. If they continue to grow at current rates, health care alone will account for 30% of GDP in 25 years and 50% in 75 years. This kind of growth in costs isn't sustainable – something clearly has to change. Even worse, quality of care isn't very good. Americans receive appropriate care only a little more than half the time, and life expectancy is lower than many countries with lower per-capita levels of health spending. As many as 100,000 Americans may die prematurely each year from medical errors. Millions cannot afford basic care, much less the expensive treatments that are driving cost increases.

None of this is news, of course. Problems with the health care system have become a major political, media, and social issue. Everyone seems to have an opinion on the problem and possible solutions. Do lawyers – or more specifically legal academics - have something to contribute to this debate? If so, what?

Professor M. Gregg Bloche (visiting Chicago this quarter from Georgetown) addressed these questions at length in his paper "The Emergent Logic of Health Law" presented at last week's Works in Progress(WiP) talk.

IP: Social and Cultural Theory (Madhavi Sunder)

Ah … participatory culture! We are midstream in our week-long mobblog and I am overjoyed by the thoughtful contributions, diverse disciplinary perspectives, critiques, and sage advice being offered.

On Monday I raised these questions: Do we need to expand the theoretical framework for intellectual property beyond a narrow economic analysis to include social and cultural theory? Why has there been resistance to social and cultural accounts of this law? Despite the resistance, are such approaches in fact emerging, and if so, why?

The answers thus far are illuminating, refreshing, and suggest good reasons for hope that our global intellectual property landscape is indeed headed for an era of progressive reform.