Introduction and Table of Contents

This is the table of contents and introduction to the edited volume Theodor Adorno, published by Ashgate as part of the International Library of Essays in the History of Social and Political Thought. Posted in OpenBU at author's request and with publisher's consent

Professionals, Politicos, and Crony Attorneys General: A Historical Sketch of the U.S. Attorney General as a Case for Structural Independence

Historically, the office of the U.S. Attorney General has been identified as “quasi-judicial” or having “quasi-judicial” aspects. Other parts of the Department of Justice (DOJ) have also been described as quasi-judicial, such as the Office of Legal Counsel and the Solicitor General. A glance at a list of past attorneys general seems to confirm this judicial aspiration in practice. Nine attorneys general became U.S. Supreme Court justices, and others were notably judicious and professional in their tenure in the office. Of course, there are some infamous examples of unprofessional cronyism—the appointment of friends or associates to positions of authority, without properly considering their qualifications—but there are famous counterexamples of those who stood up to the presidents they served in defense of legal principles. The “insider” friend, fixer, or brother of the president was presumably the exception. But a closer examination of the history of the Office of the Attorney General reveals a surprising pattern: the nineteenth century had relatively few crony-ist appointments in an era known for patronage, but the twentieth century ushered in more partisan insiders, hacks, and fixers, just as the DOJ’s power grew enormously. This shift was remarkably bipartisan, starting under President Woodrow Wilson, a Democrat, and then continuing immediately after under President Warren G. Harding, a Republican. Perhaps this turn in the late 1910s started an era of partisan escalation as each political party pushed the norms as they rotated into power. This Article suggests that these trends have contributed to making the DOJ partisan and allowing some presidents to imagine the Attorney General as the president’s personal lawyer and fixer. In just over half of the past century, the Office of the Attorney General has been filled by a partisan insider

Market failure and intellectual property: a response to Professor Lunney

Professor Lunney\u27s piece in this volume is interesting enough that I forgive him for misportraying my own work. In this short reply I will clarify my position, and then examine both the place of my market failure argument and the place of some of Professor Lunney\u27s arguments within the future of Intellectual Property scholarship as a whole

Vertical Restraints and Powerful Health Insurers: Exclusionary Conduct Masquerading as Managed Care?

Overt competition is a relative newcomer to the health care field-a field rarely even referred to as an industry a mere twenty-five years ago. In the early sixties most observers still considered commercial motives basically inapplicable to the delivery of medical services.\u27 But perceptions have changed now that more than 11 percent of the gross national product is spent on the health sector of the economy, a development made possible primarily because insurance to pay for expensive treatment and technology has become more widely available. Delivering medical services is commonly considered big business now, and the same kinds of competitive and anticompetitive behavior that have always been found in commercial markets can be clearly observed in the health industry of the 1980\u27s.2 Moreover, health insurers have evolved into major actors in the medical morality play, shaping policy as middlemen by managing the costs of care through vertical restraints on provider autonomy that might have seemed inconceivable to their cost-passthrough predecessors.

Trespass-copyright parallels and the harm-benefit distinction

Responding to Shyamkrishna Balganesh, Foreseeability and Copyright Incentives, 122 Harv. L. Rev. 1569 (2009)Currently, the elements of a plaintiff’s cause of action for copyright largely follow the tort of trespass to land in that volitional entry (for land) or volitional copying (for copyright) gives rise to liability regardless of proof of harm and without any need for the plaintiff to prove the defendant acted unreasonably. Many scholars have criticized copyright law for following the strict liability model of real property trespass, and have suggested alternatives that would more resemble conditional causes of action such as unfair competition, nuisance, or negligence. In Foreseeability and Copyright Incentives, Professor Shyamkrishna Balganesh argues that copyright plaintiffs should be required to prove foreseeability in order to make out a copyright claim. In this response, Professor Wendy Gordon suggests some new reasons why the tort of copyright infringement should be reformulated to abandon the trespass-to-land model, and explores some of the merits and shortcomings of Balganesh’s own version of the revised tort

When Law Frees Us to Speak

A central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyberharassment and sexualprivacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, the law has an equally important expressive role. In this Article, we highlight law’s capacity to shape social norms and behavior through education. We focus on a neglected dimension of law’s expressive role: its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We present new empirical research showing cyberharassment law’s salutary effects on women’s online expression. We then consider the implications of those findings for victims of sexual-privacy invasions

Assertive modesty: an economics of intangibles

At the center of our Symposium stand two papers: A Manifesto Concerning the Legal Protection of Computer Programs (Manifesto) and Legal Hybrids: Between the Patent and Copyright Paradigms (Legal Hybrids). Both are stimulating. Both are lengthy. As a result, my primary role is that of a guide: this Comment will summarize the authors\u27 proposals, analyze certain aspects in greater detail, and outline their explicit and implicit methodologies. Part I of the Comment describes the papers\u27 positions and methodologies. Part II highlights some of the papers\u27 many contributions to the literature, and offers some other evaluative observations

Copyright norms and the problem of private censorship

This chapter "Copyright norms and the problem of private censorship" was originally published in Copyright and Free Speech: Comparative and International Analyses edited by Jonathan Griffiths and Uma Suthersanen, 2005, pp. 67-96. Link to OUP Catalog: https://global.oup.com/academic/product/copyright-and-free-speech-978019927604

Fidelity to Natural Law and Natural Rights in Constitutional Interpretation

It is an honor and a pleasure to comment on Professor Robert P. George\u27s elegant and provocative paper.\u27 For one thing, he is a leading proponent of reviving the natural law tradition in political, legal, and constitutional theory.2 For another, he was a reader of my Ph.D. dissertation in constitutional theory at Princeton University over a decade ago. I am happy to have the chance to reciprocate by reading a work of his and providing a critique of it. Fortunately, I learned at Princeton that vigorous criticism and disagreement are fully compatible with friendship and respect

Excuse and justification in the law of fair use: Transaction costs have always been part of the story

In American copyright law, the doctrine of fair use has long been problematic. Every plausible litmus test that might simplify the fair use inquiry has proven inadequate, and copyright commentators have long sought an algorithm or heuristic to lend predictability and conceptual coherence to the doctrine. Twenty years ago, I published in this Journal an article entitled Fair Use as Market Failure, which suggested that the key to understanding the protean terms of fair use could best be found in the notion of market failure. That 1982 article has been often misapplied, by both courts and commentators. I am pleased to publish in the Fiftieth Anniversary issue of this Journal a clarification of my position on market failure and fair use