• Archive for January, 2010

    Free Speech, Democracy, and the Citizens United Decision

    by  • January 28, 2010 • Faculty Commentary • 0 Comments

    By Professor Steven J. Heyman

    Last week, in Citizens United v. Federal Election Commission, the Supreme Court overruled its previous doctrine and declared that the First Amendment protects the rights of business corporations to run advertisements to support or oppose candidates for public office.  The 5-4 decision reflected a familiar division between the Court’s conservative and liberal wings:  Justice Kennedy’s majority opinion was joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito, while Justice Stevens’s dissent was joined by Justices Ginsburg and Breyer and the Court’s newest member, Justice Sotomayor.

    One of most striking things about the Citizens United decision is the way in which the Justices relied on the same concepts to reach diametrically opposite results.  For Justice Kennedy, the decision was necessary to protect the integrity of the democratic process.  By contrast, Justice Stevens insisted that the Court’s decision would gravely endanger our democracy.  The academic and political reactions to Citizens United have reflected the same basic disagreement.  To understand what is at stake in Citizens United, we need to understand the basis of this disagreement.


    Entertainment Sans Copyright

    by  • January 21, 2010 • Faculty Commentary, Scholarship • 1 Comment

    By Henry H. Perritt, Jr.

    In its issues surrounding the end of the first decade of the 21st Century, the New York times carried several articles speculating about the future of the communications and entertainment industries. One, a traditional glass-is-half-full slap at technology, bemoaned the fact that the new Blue Ray video-disc technology would fall short of making available the complete archives of all movies every shot—nevermind that the back catalogue of movies would not be available at all to consumers without such technology and its predecessors in the digital realm.[1] Others provided greater insight as to the core value underlying entertainment works, regardless of format and distribution technology. Manhola Dargis pointed out that, since the time of Edison’s innovation, through the onset of television, Internet distribution, and portable video players, what draws consumers is “narrative strategies and visual style.”[2] Regardless of the technology of delivery, it’s the “camera placement [and] editing that direct your attention,” and cause you to “fall under [the] sway of the movie, lock[ing] you into the story.”[3] A publishing-house president explained that publishers, as distinct from distributors of traditional printed book or e-book formats, “select, nurture, position, and promote” authors’ works.[4]

    Only the most obtuse—or those who make their livings solely from aggressive enforcement of copyright—now deny that digital technologies have revolutionized the popular music industry, offering consumers a much richer variety of musical styles and performers, even as they have killed off the major labels and CD retailers.[5] Video entertainment is next, and it’s far from clear that consumers should weep at the demise of the values of lying, cheating, egomania, greed, and follow-the-leader at the expense of creative impulses which long have defined Hollywood and co-opted the “indie” part of the film industry.[6]

    As bandwidth and storage continues to explode and iPhone-like devices penetrate every pocket, some trends are likely to enhance the power of consumers to “fall under the sway” of compelling video narratives: wireless streaming, packaging of video entertainment into smaller bites, chained together in sequels, recalling the era of serialized fiction in the magazines of a century ago. YouTube has connected audiences with millions of short-form video works, some of which have proved quite popular. Significant fractions of the most popular televisions shows have a serial character. Soap operas demonstrated for decades the viability of serialization of narrative. (more…)

    Estate Tax Repeal

    by  • January 15, 2010 • Faculty Commentary • 0 Comments

    By Professor Jeffrey Sherman

    As you probably heard, Congress failed to act to prevent the scheduled one-year repeal of the federal estate tax.  I'm flabbergasted that Congress allowed this to happen, since quite a large number of simple, noncontrovertial temporary fixes were on the table, but it has indeed happened.  Consequently, no estate tax will be imposed on the estates of individuals who die in 2010.  On January 1, 2011 (again, unless Congress acts), the pre-2001 estate tax will bounce back into existence, with the old (higher) rates and the old (lower) exemptions.
    The generation-skipping transfer tax will likewise disappear for 2010 and then reappear on January 1, 2011, although the mechanics of this temporary disappearance are more complicated than they are for the estate tax.
    The federal gift tax will continue throughout 2010, but in slightly altered form.


    C-K Blog Site Maintenance

    by  • January 7, 2010 • Scholarship


    The C-K Faculty Blog is temporarily off-line while undergoing a design conversion.

    We expect content to be available again in 24 to 36 hours.  We appreciate your patience.

    Please check back!

    An Environmental Policy for the 21st Century

    by  • January 6, 2010 • Faculty Commentary • 0 Comments

       By Professor Dan Tarlock

    For the past few years, the United States environmental movement has been focused on promoting an effective national and international legal regime to curb greenhouse gas emissions. To date, regional and national self-interest have defeated these efforts. Ironically, one of the positive bi-products of this effort will create a new challenge for environmental politics and law. The push for climate change legislation has spurred new efforts to conserve energy and to switch to non-carbon sources of energy. This effort has traction at all levels of government and is likely to create a new boom in private and public infrastructure construction. New solar plants, wind farms, high speed rail lines contribute and other environmental projects will contribute to a more rational energy policy and better protection of our air, water and soil. But, environmental law is not well suited to deal with the possibility of a “green” public works movement. The reason relates back to the beginning of the environmental movement in the now mythic 60s.