Everything You Want: The Paradox of Customized Intellectual Property Regimes

Special interest groups share a dream: enacting legislation customized for, and hopefully drafted by, their industry. Customized rules created via legislative capture, though, are the worst case scenario from a public choice perspective: they enable narrow interests to capture rents without generating sufficient societal benefits. American intellectual property law offers useful case studies in legislative capture: special interests have created their own rules three times in the past forty years with the Semiconductor Chip Protection Act, Audio Home Recording Act, and Vessel Hull Design Protection Act. Paradoxically, though, these customized IP systems have consistently disappointed their drafters: all three of these systems lie in desuetude. This result challenges the conventional wisdom about regulatory capture by special interests, suggesting there is less to fear from legislative capture than most legal scholars believe, in intellectual property and beyond. The puzzle is why, when given free rein to design the rules that govern them, interest groups have done such a poor job in seizing that advantage. This Article brings together two scholarly debates. The first is within intellectual property: should IP doctrines be tailored by industry or comprise rules of general application? The second is within public choice: how risky is regulatory capture by special interests? The Article identifies two key reasons for the ineffectiveness of customized regimes. First, industry groups are fragile, fractal-like coalitions of disparate interests that often fracture between creators and copyists. Groups must choose between narrower, more politically attainable legislation and broader, more rewarding proposals that strain the coalition. Second, interest groups embed current business models and technologies into these systems, making regulation vulnerable to disruptive innovation. It explories how these findings affect proposals for customized regimes for artificial intelligence, weather data, traditional knowledge, privacy, and fashion. The Article concludes with a cautionary tale for interest groups that is otherwise welcome news: customized regimes are often less effective, and less threatening, than previously supposed

Fake News and Intent to Distribute: How the FTC Can Stop the Spread

The proliferation of fake news through targeted social media disinformation campaigns originating in the United States and abroad threatens the hallmark of a well-functioning democracy—“a well-informed electorate.” This Note will describe the most damaging type of fake news—knowingly false stories made with the intent to distribute in return for advertising income. First, this Note will provide an overview of fake news and explain why current legal frameworks are insufficient to effectively deter the spread of fake news. Then, this Note will argue that the Federal Trade Commission (FTC) has the authority to address this issue and will recommend the FTC adopt a rule based on a theory of intent to distribute. Finally, this Note will discuss how the proposed rule will better equip the FTC to combat the proliferation of fake news and deter its dissemination from the source—the author

Tinhatting the Constitution: Originalism as a Fandom

Several recent Supreme Court cases, most notably Bruen and Dobbs, have employed originalist methods to interpreting the Constitution, seeking to give the Second and Fourteenth Amendments, respectively, the meaning that was understood by the public in 1791 and 1868. In this imaginative exercise compiling massive amounts of textual evidence to arrive at conclusions regarding what unknown people were thinking, originalism resembles a type of fandom practice called RPF, or Real Person Fiction. This type of fan activity likewise compiles massive amounts of textual evidence to arrive at conclusions regarding what unknown people were thinking. It’s just that RPF revolves around celebrities instead of the Framers. This Article seeks to interrogate originalism through a fandom lens, viewing it as a type of RPF. Doing so can provide a different perspective on some of the criticisms that have been leveled at RPF, including its lack of neutrality and diversity. This Article finds that originalism is actually a particular RPF phenomenon known as “tinhatting,” in which those engaging in the imaginative exercise believe their conclusions to be the truth. Tinhatters are maligned in fandom, leading to query why originalists are not so easily dismissed

Zoning Matters: RLUIPA and the New Normal of Religious Discrimination

The protection of religious freedom under federal law waxes and wanes, depending on two unpredictable factors: judicial activism and congressional action. A review of dozens of cases involving alleged violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA), including two recent cases heard by the Supreme Court and the Fourth Circuit, reveals for the first time that many litigants and judges have ignored the congressional injunction to limit the reach of RLUIPA to two (and only two) forms of land-use regulation: zoning and landmarking. Plaintiffs have instead used RLUIPA to challenge water and sewer, septic, fire prevention, building, water pollution, environmental review, and other local and state regulations, as well as the use of eminent domain—all in the name of religious freedom. Central to the resolution of these disputes is the definition of the word “zoning.” Rather than ignoring the issue or taking a holistic approach to the meaning of zoning (and thereby submitting all forms of land use regulation to the most exacting scrutiny should they place a substantial burden on the free exercise of religion or otherwise fall under the proscriptions of the Act), courts and counsel need to consult the rich body of case law that describes the discrete substance and structure of American zoning. Adhering to the meaning of zoning as derived from the diverse laboratory of state courts meets the expectation of the bill’s champions in Congress, addresses the problem situations identified by experts who testified on the proposed legislation, and prevents the possibility of using RLUIPA as a strategy for neutralizing effective state and local environmental controls in a time when sustainability, safe structures, and the protection of water supplies rank high on the list of public health and safety needs. If, as a result of the findings in this Article, there should be a strong desire to expand the reach of the Act by amending the definitional section of RLUIPA, there is little likelihood that the near-unanimous support for RLUIPA and its predecessor Religious Freedom Restoration Act (RFRA) would be replicated. A contemporary effort to widen the reach of RLUIPA would very likely fall victim to lawmakers’ (and their constituents’) concerns that certain religious minorities (especially Muslims) are no longer worthy of special legislative protection, that many religious groups and individual believers have been using federal and state statutes designed to protect against religious discrimination as a means for discriminating on the basis of gender and sexual orientation, and that the environmental harms posed by lax enforcement of building codes, clean water, and other regulations outweigh the benefits of expanding RLUIPA’s protections