Quoting from the abstract of Nicholas R. Parrillo’s Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950, 123 Yale L.J. 266 (2013).

Drawing upon new citation data and archival research, this Article reveals that judicial use of legislative history became routine quite suddenly, in about 1940. The key player in pushing legislative history on the judiciary was the newly expanded New Deal administrative state. By reason of its unprecedented manpower and its intimacy with Congress (which often meant congressmen depended on agency personnel to help draft bills and write legislative history), the administrative state was the first institution in American history capable of systematically researching and briefing legislative discourse and rendering it tractable and legible to judges on a wholesale basis. By embracing legislative history circa 1940, judges were taking up a source of which the bureaucracy was a privileged producer and user—a development integral to judges’ larger acceptance of agency-centered governance. Legislative history was, at least in its origin, a statist tool of interpretation.

Sounds like a very interesting read. The data files produced for this article can be downloaded here. — Joe

What is the government interest?

This simple query, even before one evaluates the interest (is it compelling? or even merely legitimate?), can be a vexing one for students, professors, litigators, and courts.   Legislative listing of such interests – – – whether in preambles, legislative history, or litigation – – – provides language but not necessarily meaning.

The above quote is Ruthann Robson’s (Professor of Law & University Distinguished Professor, CUNY School of Law) lead-in from her Constitutional Law Prof Blog post about San Diego law prof Dov Fox’s forthcoming George Washington Law Review article titled Interest Creep [SSRN].

From the abstract:

Judicial review has a blind spot. Doctrinal and scholarly focus on individual rights has crowded out alertness to the way in which legislatures and courts characterize the state interests on the other side of the constitutional ledger. This Article introduces and interrogates a pervasive phenomenon of judicial decisionmaking that I call interest creep. Interest creep is the uncritical expansion of underspecified interests like national security and child protection to capture multiple, distinct sources of government concern. By shielding such concerns from critical judicial appraisal, interest creep erodes the adjudicative duty to provide litigants, lawmakers, and lower courts with clear reasons for its decisions. Worse, interest creep generates incorrect legal outcomes when the discrete concerns that go by the name of a sweeping state interest cannot do the doctrinal work for which that shibboleth is enlisted. Only by disentangling the constellation of concerns that its reliance papers over will decisionmakers be able to assess the force with which those more particular concerns apply within diverse and dynamic contexts.

— Joe

Here’s a bit of reading material now that 3D printers and scanners are inexpensive enough to ask Santa to give you one.

3-D Printing and Product Liability: Identifying the Obstacles [SSRN] by Nora Freeman Engstrom, Stanford Law School:

Abstract: Though just in its infancy, 3-D printing seems poised to transform the goods we buy, the products we use, and the world we inhabit. A question frequently raised about 3-D printing, though, is how product liability law will apply to 3-D-printed goods. Tackling that important and timely question, this Essay applies contemporary product liability law to defective products from home 3-D printers. The analysis reveals that if home 3-D printing really does take off, PL litigation as we know it may well, in large measure, dry up. And if it doesn’t, the technology threatens to unsettle the theoretical justification for product liability law’s development.

Patents, Meet Napster: 3D Printing and the Digitization of Things [SSRN] by Deven R. Desai, Thomas Jefferson School of Law and Gerard N. Magliocca, Indiana University Robert H. McKinney School of Law:

Abstract: Digitization has reached things. This shift promises to alter the business and legal landscape for a range of industries. Digitization has already disrupted copyright-based industries and laws. As cost barriers dropped, individuals engaged with copyrighted work as never before. The business-to-business models of industrial copyright faltered and in some cases failed. Industries had to reorganize, and claimed foundations for copyright had to be re-examined. This Article examines a prime example the next phase of digitization: 3D printing and it implications on intellectual property law and practice.

3D printing is a general-purpose technology that will do for physical objects what MP3 files did for music. The core patent bargain—sharing the plans on how to make something in exchange for exclusivity—may be meaningless in a world of digitized things. While these devices will unleash the creativity of producers and reduce costs for consumers, they will also make it far easier to infringe patents, copyrights, and trade dress. This will force firms to rethink their business practices and courts to reexamine not only patent doctrine but also long established doctrine in areas ranging from copyright merger to trademark post-sale confusion. Moreover, Congress will need to consider establishing some sort of infringement exemption for 3D printing in the home and expanding the notice-and takedown provisions of the Digital Millennium Copyright Act to websites that host software enabling the 3D printing of patented items and distinctive trade dress. While a 3D printer is not yet a common household item, the time to start thinking about that future is now.

See also Michael Weinberg’s 3D Printing, Matisse, and the Arbitrariness of Copyright Terms (Discusses how a 3D-ed scanned and replicated 1909 Matisse bronze relief is the public domain in the US, but is still protected by copyright in France.) and his earlier Public Knowledge Policy Blog post Will 3D Scanners Usher in a New Era of Copyright Infringement?

If someone starts freaking out about how 3D scanners will somehow mean the end of intellectual property as we know it, tell them to take a deep breath.  Sit them down.  Scan their face.  Turn it into a 3D printed mug and fill that mug with whatever liquid you think will best help them to relax.

Instead of a beer coffee mug or a Matisse bronze, I’m thinking about scanning and printing the last print volume of Ohio’s official reports to use as a door stop because TR Legal’s publishing contract has terminated. — Joe

Hat tip to Slaw’s Monday’s Mix for information about the following University of Ottawa Press book.

The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law, Edited by Michael Geist.

Description

In the summer of 2012, the Supreme Court of Canada issued rulings on five copyright cases in a single day. The cases represent a seismic shift in Canadian copyright law, with the Court providing an unequivocal affirmation that copyright exceptions such as fair dealing should be treated as users’ rights, while emphasizing the need for a technology neutral approach to copyright law.

The Court’s decisions, which were quickly dubbed the “copyright pentalogy,” included no fees for song previews on services such as iTunes, no additional payment for music included in downloaded video games, and that copying materials for instructional purposes may qualify as fair dealing. The Canadian copyright community soon looked beyond the cases and their litigants and began to debate the larger implications of the decisions. Several issues quickly emerged.

This book represents an effort by some of Canada’s leading copyright scholars to begin the process of examining the long-term implications of the copyright pentalogy. The diversity of contributors ensures an equally diverse view on these five cases, contributions are grouped into five parts. Part 1 features three chapters on the standard of review in the courts. Part 2 examines the fair dealing implications of the copyright pentalogy, with five chapters on the evolution of fair dealing and its likely interpretation in the years ahead. Part 3 contains two chapters on technological neutrality, which the Court established as a foundational principle of copyright law. The scope of copyright is assessed in Part 4 with two chapters that canvas the exclusive rights under the copyright and the establishment of new “right” associated with user-generated content. Part 5 features two chapters on copyright collective management and its future in the aftermath of the Court’s decisions.

This volume represents the first comprehensive scholarly analysis of the five rulings. Edited by Professor Michael Geist, the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, the volume includes contributions from experts across Canada. This indispensable volume identifies the key aspects of the Court’s decisions and considers the implications for the future of copyright law in Canada.

You can download the complete book as an open access PDF from the above link. — Joe

Hat tip to DigitalKoans for calling attention to Jingfeng Xia’s The Open Access Divide, Publications 2013, 1(3), 113-139; doi:10.3390/publications1030113. Here’s the abstract:

This paper is an attempt to review various aspects of the open access divide regarding the difference between those academics who support free sharing of data and scholarly output and those academics who do not. It provides a structured description by adopting the Ws doctrines emphasizing such questions as who, what, when, where and why for information-gathering. Using measurable variables to define a common expression of the open access divide, this study collects aggregated data from existing open access as well as non-open access publications including journal articles and extensive reports. The definition of the open access divide is integrated into the discussion of scholarship on a larger scale.

— Joe

Hat tip to Legal Informatics Blog for calling attention to D’Aspremont and Van den Herik’s The Digitalization of the Assembly Line of Knowledge About Law: A Reinvention of the Confrontational Nature of Legal Scholarship? [SSRN]. Here’s the abstract:

This paper reflects upon the rise of new tools of production and dissemination of knowledge about law as well as their impact on the dynamics and the nature of the profession of legal scholar. Taking the contemporary international legal scholarship as a case-study, it discusses the potentially dramatic changes brought about by the new media of communication, not only with respect to the configuration of the assembly line of knowledge about law in the 21st century but also regarding the profession of legal academic as a whole.

This paper starts by distinguishing modes of law-making and modes of knowledge-production with a view to showing that these two modes of production of authoritative statements share are not always following radically different dynamics. It then recalls that the production of knowledge about law has always been estranged from the State and rested on a competitive social process between professionals. The paper subsequently makes the point that knowledge-producing processes in international legal scholarship have been dramatically altered in the cyber-age. Knowledge about international law is now created, selected and disseminated through previously unknown channels that cannot be influenced by the State. These mutations have required legal scholars to change how they envisage and construe their contribution to the production of knowledge and thus how they see their own profession. The paper finally formulates some concluding remarks about what it means for the discipline as a whole.

— Joe

Hat tip to Legal Research Plus for calling attention to this interesting NBER working paper:

Searching for Physical and Digital Media: The Evolution of Platforms for Finding Books by Michael R. Baye, Babur De los Santos, Matthijs R. Wildenbeest

NBER Working Paper No. 19519; Issued in October 2013

Abstract: This paper provides a data-driven overview of the different online platforms that consumers use to search for books and booksellers, and documents how the use of these platforms is shifting over time. Our data suggest that, as a result of digitization, consumers are increasingly conducting searches for books at retailer sites and closed systems (e.g., the Kindle and Nook) rather than at general search engines (e.g., Google or Bing). We also highlight a number of challenges that will make it difficult for researchers to accurately measure internet-based search behavior in the years to come. Finally, we highlight a number of open agenda items related to the pricing of books and other digital media, as well as consumer search behavior.

Joe