• Faculty Commentary

    Commentary on scholarship, current events, and other news by Chicago-Kent faculty.

    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.


    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.


    Audio: Prof Birdthistle – Student Workshop on Mutual Fund Litigation

    by  • December 21, 2009 • Faculty Commentary, Faculty Workshops/ Conferences, Multimedia • 0 Comments

    This past fall the Supreme Court heard oral arguments in Jones v. Harris Associates, a case concerning discrepancies in mutual fund fee arrangements.  With such a major mutual find case hitting the court, our very own mutual fund expert, Professor William Birdthistle, was interviewed by a range of media outlets and multiple posts appeared here in this blog on his various contributions to the issue, including discussion of his amicus brief in the case.  Professor Birdthistle also agreed to give a workshop to the Chicago-Kent student body on the litigation, just days before arguments were heard by the court.  You can listen to his talk by clicking play below.

    Prof. Birdthistle – Mutual Fund Litigation

    The Behavioral Economics of Gift-giving, or How to Increase Net Social Welfare this Holiday Season

    by  • December 14, 2009 • Faculty Commentary • 2 Comments

    By Christopher Buccafusco

    smiley face Economist Joel Waldfogel has posted an interesting piece on Slate discussing the economic irrationality of gift-giving.  In summary (and not attempting to do the argument justice), Waldfogel argues that the $50 someone might spend on a sweater for you would be better spent on themselves, because gift-givers have limited knowledge about others’ preferences.  Between the giver and the receiver, the receiver is in a much better position to know what she wants and will enjoy.  He bases this conclusion on surveys that he has analyzed showing that people normally value the things they buy for themselves at or above what they pay for them, but they value the gifts they receive substantially less than was paid for them.  Thus, rather than giving your mother a gift this year (and certainly instead of a donation to the Human Fund), you should give her a card noting that you have spent the money on yourself instead because doing so increases net social welfare (NB Waldfogel doesn’t suggest this.  He recommends cash, gift cards, or donations).

    A couple of thoughts about Waldfogel’s insight.  First, the gift valuation discrepancy that Waldfogel detects may have relatively little to do with preference satisfaction and a lot more to do with quasi-rational psychological phenomena.  Considerable research suggests that people are often poor predictors of their own hedonic experiences, leading them to make choices that don’t in fact make them as happy as they thought (e.g., the sweater I’m wearing today.  I thought I would like it more than I do).  Additionally, other similarly situated people often provide a very good gauge of how well you are going to like something, even if they seem to be quite different from you.  While grandma’s choice of tie might not be a winner, a colleague’s wine, music, or book selection might be very successful (a point Waldfogel acknowledges).  And perhaps most importantly, there is good reason to think that the added value people ascribe to the things they purchase is the result of some combination of ownership effects and dissonance reduction.  People might (subconsciously) say to themselves, “I picked out that sweater.  I like myself an awful lot.  Therefore, I must like that sweater an awful lot, too.”  Moreover, having spent $50 on the sweater, they are motivated by a desire to reduce cognitive dissonance and claim that they do in fact value it that much, even if they would never pay that much for it again.

    Second, I want to suggest that everyone think about how to give happiness-maximizing, non-adaptable gifts for the holidays this year.  So many of the things that we give and receive provide only transient joy – perhaps a little fun and surprise when unwrapping the gift, and then some rapidly decreasing enjoyment over the next several days and weeks.  I don’t have kids, but I’d guess that the moment-by-moment happiness that children experience in the days after Christmas returns to pre-holiday levels pretty rapidly.  Having spent hundreds of dollars on your children, are they any happier on January 20th than they were on December 20th?  If not, what kinds of gifts can we give to others that will provide them with longer-lasting pleasure?  I imagine that these answers might be somewhat idiosyncratic.  I, for example, enjoy receiving cellar-worthy bottles of wine.  I feel like I get extended pleasure from thinking about drinking the wine for years, finally drinking the wine with the person who gave it to me, and then remembering drinking the wine in the following years.  Perhaps the least idiosyncratic answer is that we should give the gifts of fellowship, and society.  Spending time with family and friends in social settings receives among the highest happiness ratings, and overall social time is highly predictive of general life satisfaction.  So forget the fancy gifts and must-have toys.  Spend your holiday time with the people you care about.

    Do you have other suggestions for non-adaptable holiday gifts?

    Copyrights, Contracts, and E-Books

    by  • December 12, 2009 • Faculty Commentary • 0 Comments

    By Christopher Buccafusco

    The NY Times has just published a story on the renewed controversy concerning publication rights in electronic versions of books originally published in the days before digital book readers.  Copyright students will recall the lawsuit from 2002 pitting dead-tree-book publishers like Random House against digital publishers like RosettaBooks.  They will also recall that these cases tend to be resolved according to contractual interpretation (i.e., did the original licensing agreement include new media or not?) rather than copyright doctrine.  I guess with the exploding success of Kindle, &c. the publishers have decided that the issue is worth re-litigating.

    Are there important social, cultural, or economic implications of these suits or is does it just come down to who gets paid for already-created works?  Should one party be made to bear the risk of not specifically including or excluding new technologies from licensing?  Could the law assign the rights to unforeseeable media to one party or the other to reduce transaction costs?

    “You’re So Vain”: I Bet You Think Suit is About You

    by  • December 4, 2009 • Faculty Commentary • 1 Comment

    By Christopher Buccafusco

    Carly Simon’s 1972 song “You’re So Vain” was a #1 hit and ranked 72nd on Billboard’s list of the greatest songs of all-time.  But was it also defamation?
    Let’s assume for purposes of this post, that the reference to spending time with “the wife of a close friend” is defamatory and untruthful.  Also, let’s ignore various constitutional issues about malice, public figures, and damages.  All of these are big assumptions, but, hey, it’s a blog post.

    The key issue then becomes whether a plaintiff could establish that the song was “of and concerning” him.  Over the years, a number of men have been suggested as the song’s object, including Warren Beatty, James Taylor, and Mick Jagger.  Simon has avoided identifying the song’s subject, saying that he is a composite of three different men.  Apparently, however, she has at least told NBC President Dick Ebersol, who paid $50,000 in an auction for the right to learn.

    Could any or all of these men successfully claim that the song was of and concerning them?  Could Ebersol be compelled to testify?  And, could Simon defend herself because, after all, the song isn’t really about whomever it is supposedly about?  Of course, anyone who did bring suit would only be confirming Simon’s initial observation of his vanity.

    With assistance from 1L GSOT Daniel Taylor.