The University of Chicago Law School Faculty Blog

David Souter, Human Rights Justice

In her profile of Justice David Souter in the New York Times this weekend, Linda Greenhouse notes that Justice Souter only crossed the Atlantic twice, once for his Rhodes Scholarship at Oxford, and the second time for an Oxford reunion. But for a judge who had spent such little time abroad, he certainly demonstrated concern (shall I dare say "empathy"?) for those beyond our shores. This was made clear in his decision in Sosa v. Alvarez-Machain, a case handed down on the last day of the Court's October 2003 term.

Sosa was the Court's first full engagement with the Alien Tort Statute (ATS), which formed but one sentence in the Federal Judiciary Act of 1789: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."

Diseases and National Borders

As the spread of swine flu has taught us yet again, today’s problems cannot be contained by national borders.

But even if we admit that our problems are global, perhaps we might still insist on purely local solutions. That is the argument of David Brooks this morning. In his provocative New York Times column “Globalism Goes Viral,” Brooks argues that rather than an “infrastructure of international cooperation,” a “decentralized” response is best.

Brooks begins his argument by contrasting the swift response of Mexican and American local authorities to the swine flu outbreak with his vision of the “globalist” alternative:

“If the response were coordinated by a global agency, those local officials would not be so empowered. Power would be wielded by officials from nations that are far away and emotionally aloof from ground zero. The institution would have to poll its members, negotiate internal differences and proceed, as all multinationals do, at the pace of the most recalcitrant stragglers.”

This so-called “globalist” alternative is certainly not the one promoted by the international lawyers I know. The “infrastructure of international cooperation” does not imply subservience to a dictator in Geneva. Rather it requires coordinating our responses so that, inter alia, (1) states share information with each other; (2) states continue commerce with each other, and do not exploit health fears for protectionist reasons; (3) states take steps before crises to improve their capacity to respond to such crises; and (4) experts from around the world collect and analyze data from around the world and offer measured responses to contain the crisis.

Interview with Madhavi Sunder on the future of women's rights in the Islamic world

Next month, Visiting Professor of Law Madhavi Sunder and Ernst Freund Distinguished Service Professor of Law and Ethics Martha Nussbaum are organizing a conference on "Democracy and Gender Equality in the Muslim World." The International Affairs Forum just posted an interview with Professor Sunder in which she discusses this very topic. Among other points, she says:

The values of freedom, equality, and human rights are not just Western feminist values but are also enshrined both within Islam, and within the local cultures, histories, and constitutional laws of many Muslim counties and communities. So a key strategy for women seeking religious meaning and community, and freedom and equality, will be to contest the false depiction of a monolithic Islam that mandates the oppression of women. In fact the history of Islam is much more heterogeneous, contested, and pro-woman and equality than this common vision suggests. Just highlighting this plurality of options, including pro-equality options, within Islam challenges the powerful claims of religious and political leaders that there is just one way to be Muslim.

You can read the entire interview here.

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 – 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 (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.

IP: Social and Cultural Theory (Madhavi Sunder)

I first want to thank Rob Merges for his deeply thoughtful engagement with my post. His incisive introductory remarks evince an openness to considering alternative points of view, regardless of his priors and where the future is unknown.

I want to make three points on this second day of our debate.

First, Rob’s post suggests that there is far more agreement today than I believe there was even just three years ago on the broadest claim I am making here: that the narrow economic approach to IP proves insufficient as a comprehensive approach to this law. Professor Merges suggests that he seeks to find answers to intellectual property’s troubles not only in more economic studies but in the writings of the well-known law firm of “Locke, Kant, & Co.” Today even economically oriented theorists of this law recognize the limits of the narrow “intellectual property-as-incentives” story. In his post Professor Merges tellingly reveals that he has “come to see that the optimal number of IP rights is not something that economic analysis is really equipped to determine, at least not with the current set of tools we have available.” I want to reiterate Rob’s statement about the limits: “economic analysis is inadequate to the very difficult task of determining exactly ‘how much’ IP is enough, and in some cases exactly how IP rights ought to be crafted and limited.” Economics is relegated, in Professor Merges’s account, to lower level administrative duties, not “foundational” questions: after we decide whom to reward, “economics can be "very helpful … in figuring out how to spend as little as possible administering the rights, collecting the money, and distributing payment.” The fact that today IP scholars of all persuasions can increasingly agree on the need to broaden our ambit is significant and should not be understated. The time is ripe for reform, not only of law but also of theory.

Beyond Economic Analysis of Intellectual Property: The Need For Social and Cultural Theory (Madhavi Sunder)

Over the course of the last century intellectual property has grown exponentially, but its march into all corners of our lives and to the most destitute corners of the world has paradoxically exposed the fragility of its economic foundations while amplifying its social and cultural effects. Today intellectual property laws bear considerably upon central features of human flourishing, from the developing world’s access to food, textbooks, and essential medicines, to the ability of citizens everywhere to democratically participate in political and cultural discourse.

Despite these real world changes, intellectual property scholars insist on explaining this field through the narrow lens of a particular economic vision.Intellectual property is understood solely as a tool to solve an economic "public goods" problem: nonrivalrous and nonexcludable goods such as music and scientific knowledge will be too easy to copy and share—thus wiping out any incentive to create them in the first place—without a monopoly right in the creations for a limited period of time.

In a forthcoming book, iP: YouTube, MySpace, Our Culture, under contract with Yale University Press, I argue that an intellectual property law befitting our new participatory century must lift its gaze beyond the narrow goal of incentivizing the creation of more intellectual products to facilitating critical and autonomous participation in the cultural sphere. Modernity is not simply technology. A modern intellectual property law must promote our capacity to author our own lives. These are not too lofty concerns for intellectual property law. Recall that the first copyright statute in England, the Statute of Anne, subtitled "An Act for the Encouragement of Learning," had as its aim nothing less than the promotion of Enlightenment itself. Today, august bodies from the European Patent Office (EPO) to the World Intellectual Property Organization (WIPO) urge the need for a broader understanding of intellectual property law.

Reading the Quran in Kuala Lumpur

Reading the Quran in Kuala Lumpur may ultimately prove much more revolutionary than reading Lolita in Tehran.

Two decades ago, a small group of women of letters in Kuala Lumpur—journalists, lawyers, academics—grew frustrated by the rise of political Islam here and their inability to challenge it. Regressive laws began curtailing the rights of Malaysian women, and yet women were told they could not question the laws because they were “Islamic,” and thus indisputable.

Undeterred, the women decided to read the Quran for themselves. Fortuitously, the African American theologian Dr. Amina Wadud had just arrived to take up her first teaching job at the International Islamic University in Kuala Lumpur. Wadud was fresh from completing her dissertation on a feminist interpretation of the Quran. The women began meeting weekly, with Wadud leading the Quranic study group.

Ressentiment, the Internet, and the Cloak of Invisibility

At last weekend's privacy conference, Martha Nussbaum described in vivid terms the objectification of women by men acting anonymously on the internet.  This was not a simple argument that men look at porn and fantasize a level of control they will never achieve legally in the real world.  Instead she (and Brian Leiter and others) described the systematized targeting of individual woman in "cyber cesspools," complete with engineered images of rape and sodomy of the target, exhortations to molest and kill, revelation of personal addresses and social security numbers, and cybertrespasses designed to erase the target's web presence. This is not only control and objectification in fantasy (which is bad enough but usually not actionable), but control, objectification, and psychic rape in the real world.

Most interestingly, Martha exposed much of the motivation of the wrongdoers as a species of ressentiment explored by Nietzche, an attempt by the powerless and resentful to wrest control from the strong whom they envy and fear.  It is no surprise that the worst abuses described at the conference were perpetrated against successful women who would be likely to prevail in an open contest of wits.  Only anonymous rumour can bring them down. Think of the arch-example of ressentiment:  James Claggart whose envy and distorted desire for Billy Budd leads to his whispered lies about Billy's involvement in mutiny.