Well-Being Analysis vs. Cost-Benefit Analysis

Cost-benefit analysis (CBA) is the primary tool used by policymakers to inform administrative decisionmaking. Yet its methodology of converting preferences (often hypothetical ones) into dollar figures, then using those dollar figures as proxies for quality of life, creates significant systemic errors. These problems have been lamented by many scholars, and recent calls have gone out from world leaders and prominent economists to find an alternative analytical device that would measure quality of life more directly. This Article proposes well-being analysis (WBA) as that alternative. Relying on data from studies in the field of hedonic psychology that track people\u27s actual experience of life-data that have consistently been found reliable and valid-WBA is able to provide the same policy guidance as CBA without CBA\u27s distortionary reliance upon predictions and dollar figures. We show how WBA can be implemented, and we catalog its advantages over CBA. In light of this comparison, we conclude that WBA should assume CBA\u27s role as the decisionmaking tool of choice for administrative regulation

Intelligent Design

When designers obtain exclusive intellectual property (IP) rights in the functional aspects of their creations, they can wield these rights to increase both the costs to their competitors and the prices that consumers must pay for their goods. IP rights and the costs they entail are justified when they create incentives for designers to invest in new, socially valuable designs. But the law must be wary of allowing rights to be misused. Accordingly, IP law has employed a series of doctrinal and costly screens to channel designs into the appropriate regime—copyright law, design patent law, or utility patent law—depending upon the type of design. Unfortunately, those screens are no longer working. Designers are able to obtain powerful IP protection over the utilitarian aspects of their creations without demonstrating that they have made socially valuable contributions. They are also able to do so without paying substantial fees that might weed out weaker, socially costly designs. This is bad for competition and bad for consumers. In this Article, we integrate theories of doctrinal and costly screens and explore their roles in channeling IP rights. We explain the inefficiencies that have arisen through the misapplication of these screens in copyright and design patent laws. Finally, we propose a variety of solutions that would move design protection toward a successful channeling regime, balancing the law’s needs for incentives and competition. These proposals include improving doctrinal screens to weed out functionality, making design protection more costly, and preventing designers from obtaining multiple forms of protection for the same design

There\u27s No Such Thing as Independent Creation, and It\u27s a Good Thing, Too

Independent creation is the foundation of U.S. copyright law. A work is only original and, thus, copyrightable to the extent that it is independently created by its author and not copied from another source. And a work can be deemed infringing only if it is not independently created. Moreover, independent creation provides the grounding for all major theoretical justifications for copyright law. Unfortunately, the doctrine cannot bear the substantial weight that has been foisted upon it. This Article argues that copyright law’s independent creation doctrine rests on a set of discarded psychological assumptions about memory, copying, and creativity. When those assumptions are replaced with contemporary accounts of how human memory influences the creative process, the independent creation doctrine becomes empirically meaningless. Independent creation, as copyright law understands it, does not exist. Because the independent creation doctrine lacks any meaningful legitimacy, it has become a site of legal privilege and bias. Copyright law’s treatment of independent creation has favored some creators’ claims at the expense of others, privileging plaintiffs, older creators, and wealthier creators. These biases distort the law’s attempt to optimally regulate cultural production. This Article offers several proposals for addressing these concerns, from rebalancing legal doctrines to a more radical solution: the wholesale jettisoning of independent creation. Copyright law does not need the independent creation doctrine, and it would be better off without it

Copyright, Creativity, and Contemporary Art

We invite parents for an interactive and thought-provoking class where you will learn about a recent case involving the Andy Warhol Foundation. Witness how Cardozo students are learning in and beyond the classroom and meet other parents from around the country.https://larc.cardozo.yu.edu/event-invitations-2021/1014/thumbnail.jp

There\u27s No Such Thing as Independent Creation, and It\u27s a Good Thing, Too

Independent creation is the foundation of U.S. copyright law. A work is only original and, thus, copyrightable to the extent that it is independently created by its author and not copied from another source. And a work can be deemed infringing only if it is not independently created. Moreover, independent creation provides the grounding for all major theoretical justifications for copyright law. Unfortunately, the doctrine cannot bear the substantial weight that has been foisted upon it. This Article argues that copyright law’s independent creation doctrine rests on a set of discarded psychological assumptions about memory, copying, and creativity. When those assumptions are replaced with contemporary accounts of how human memory influences the creative process, the independent creation doctrine becomes empirically meaningless. Independent creation, as copyright law understands it, does not exist. Because the independent creation doctrine lacks any meaningful legitimacy, it has become a site of legal privilege and bias. Copyright law’s treatment of independent creation has favored some creators’ claims at the expense of others, privileging plaintiffs, older creators, and wealthier creators. These biases distort the law’s attempt to optimally regulate cultural production. This Article offers several proposals for addressing these concerns, from rebalancing legal doctrines to a more radical solution: the wholesale jettisoning of independent creation. Copyright law does not need the independent creation doctrine, and it would be better off without it

Authorship and the Boundaries of Copyright: Ideas, Expressions, and Functions in Yoga, Choreography, and Other Works

One man created a series of bodily movements to be performed with musical accompaniment by a group of people. Another man created a different series of bodily movements to be performed with different musical accompaniment also by a group of people. The first man was Vaslav Nijinsky, and the creation was the choreography for the ballet Le Sacré du Printemps. The second man was Richard Simmons, and the creation was Sweatin’ to the Oldies. Is there a difference between these creations for purposes of their copyrightability? If so, where does it lie

Well-Being Analysis vs. Cost-Benefit Analysis (with J. Bronsteen & J. Masur) (symposium)

Cost-benefit analysis is the primary tool used by policymakers to inform administrative decisionmaking. Yet its methodology of converting preferences (often hypothetical ones) into dollar figures, then using those dollar figures as proxies for quality of life, creates systemic errors so large as to deprive the tool of value. These problems have been lamented by many scholars, and recent calls have gone out from world leaders and prominent economists to find an alternative analytical device that would measure quality of life more directly. This Article proposes well-being analysis (WBA) as that alternative. Relying on data from the field of hedonic psychology that tracks people’s actual experience of life — data that has consistently survived scrutiny by passing the social science tests of reliability and validity — WBA is able to provide the same policy guidance as CBA without CBA’s distortionary conversion of preferences to dollars. We show how WBA can be implemented, and we catalog exhaustively its superiority over CBA. In light of this comparison, we conclude that there is no reason for CBA to continue as the decisionmaking tool of choice for administrative regulation

On the Legal Consequences of Sauces: Should Thomas Keller\u27s Recipes Be Per Se Copyrightable?

The restaurant industry now takes in over $500 billion a year, but recent courts have been skeptical of the notion that one of its most valuable assets, original recipes, are subject to copyright protection. With more litigation looming and the contours of the debate insufficiently mapped out, this article establishes the appropriate groundwork for analyzing the copyrightability of recipes. I show that, contrary to recent appellate court opinions, recipes meet the statutory requirements for copyrightability. I argue, by analogizing to musical compositions, that written recipes work to satisfy the fixation requirement of copyright law just as musical notation does for compositions. Accordingly, the dish is the final work of authorship, the recipe is the fixation medium, and the various cooking techniques - braising, grilling, sous vide - are the potentially patentable processes. In order to meet copyright law\u27s requirement of originality, though, the work must be deemed expressive. To determine whether and how recipes are expressive, I interviewed some of America\u27s best chefs, each of whom claimed to use recipes to express various ideas and emotions. Since there are no doctrinal limitations to recipes\u27 copyrightability, in Part II, I offer reasons for the late recognition as protectable works. First, I consider the marginalized status of the sense of taste in the history of Western aesthetic philosophy. For many philosophers, only objects that presented themselves to the eyes and ears, such as music, painting, and literature, could be truly beautiful. Partly out of the fear that fancy foods can lead to gluttony, Western, and more specifically Anglo-American writers have often tried to limit cuisine to its fundamentally nutritive components, further isolating it from the realm of creative expression. Furthermore, the producers of cuisine have been treated no better than their products. Throughout history cooking has been the province of lowly household servants and housewives, with only a select few chefs rising to the status of artisan. Chefs rose from the ranks of obscurity far more slowly than did writers, painters, and musicians. Finally, chefs have a long history of directly copying recipes and dishes from their predecessors, suggesting that the norms of Romantic original authorship formed much later in cuisine than in other arts. In Part III, I return to the law to consider whether the copyright monopoly should be extended to culinary creations. Chefs are not likely to take serious advantage of copyrights, as the time and money necessary for suit would rarely be worth the benefit. The chefs I interviewed were uncomfortable with the idea of owning their recipes, and they all approved of others using their recipes, subject to certain limits. Increased innovation is also unlikely as a more robust intellectual property regime would likely inhibit chefs\u27 willingness to experiment with other chefs\u27 dishes. Furthermore, the public domain would not see any meaningful increase, because few chefs who currently keep their recipes secret will be persuaded to publish them to obtain the limited benefits of copyright. The article concludes by arguing that formal copyright protection is not necessary for culinary creation, because a vibrant system of social norms already exists to sanction plagiarism, encourage attribution, and reward innovation. Thus, although recipes meet the formal doctrinal requirements of copyright law, an extension of the monopoly is neither necessary nor appropriate at this time

Welfare as Happiness (with J. Bronsteen & J. Masur)

Perhaps the most important goal of law and policy is improving people’s lives. But what constitutes improvement? What is quality of life, and how can it be measured? In previous articles, we have used insights from the new field of hedonic psychology to analyze central questions in civil and criminal justice, and we now apply those insights to a broader inquiry: how can the law make life better? The leading accounts of human welfare in law, economics, and philosophy are preference-satisfaction - getting what one wants - and objective list approaches - possessing an enumerated set of capabilities. This Article argues against both major views and in favor of a third, defining welfare as subjective well-being. As a result, we advocate the replacement of cost-benefit analysis (CBA, the tool of the preference-based approach) with well-being analysis (WBA). Like its sibling CBA, WBA compares the costs and benefits associated with enacting some law or policy. But while CBA requires monetizing costs and benefits to make them commensurable, WBA simply considers their direct effects on reported well-being. Groundbreaking new research in hedonic psychology makes this possible, and we discuss how it can be accomplished