Law
and the Information Society: A
Politics of Intellectual Property | Intellectual
Property Policy On-Line| The
Debate on the White Paper | Abstracts
|
Legal
and Social Theory: Universalism
and Identity Politics | Legal
Realism and the Social Contract | Abstracts
|
Older Material:
The
Search for an Author:
Shakespeare and the Framers |
A Process
of Denial: Bork and Post-Modern Conservatism | Abstracts
|
Some Recent Papers:
Law and the Information Society
"This Article argues that we need a politics, or perhaps a political
economy, of intellectual property. Using the controversy over copyright
on the Net as a case-st
udy and the history of the environmental movement
as a comparison, it offers a couple of modest proposals about what such
a politics might look like -- what theoretical ideas it might draw upon
and what constituencies it might unite...."
"This is an article developed from my presentation
to the Intellectual
Property
Online Panel at the Harvard Conference on the Internet and
Society. The panel was a reminder of both the importance of intellectual
property and the dangers of legal insularity. About 400 people attended
the panel; 90% of them were not lawyers. Accor
dingly, the is my attempt
to lay out the basics of intellectual property policy and the counter intuitive
economics of networks in as straightforward and non-technical way as possible.
I have tried to keep the footnotes to a minimum and the analogies appr
opriately
geeky. This in other words, is what non-lawyers should know (and what a
number of government lawyers seem to have forgotten) about intellectual
property policy on the Net...".
"A debate over the Clinton Administration White Paper on Intellectual
Property on the National Information Infrastructure-- including a letter
from
100 law professors commenting on the draft, responses from Assistant
Secretary of Commerce, Bruce Lehman, defending the White Paper -- and a
legal analysis of the White Paper's analysis of current law, by James Boyle.
This debate is also forthcoming in vo
lume 10, Harvard Journal of Law and
Technology 1996."
Legal and Social Theory
"This is an article about political correctness and the attack on
political correctness. Alongside the silliness of PC and
of the conservative
attacks on PC lies deeper and worthier motif -- an issue that appears in
everything from the argument over speech codes to that over reading lists,
from the critique of affirmative action to the laments over the soul of
the humanities
. Thus, although the debate as it currently exists is singularly
free of intellectual nourishment, it has at its heart a profound philosophical
and political issue. This issue could be described in its most abstract
form as the conflict between universali
sm and particularism. Admittedly,
it is hard to imagine that anything in the skeptical, ironic world of the
sound-bite, MTV and the Simpson's could merit such an exalted label. It
is even harder to imagine that we would find such issues in a debate that
h
as been so firmly situated between the mediocre and the fallacious, between
poor reporting and worse argument. The conflict is there nevertheless."
"This article is a contribution to the theoretical and historical
literature about Lon Fuller, a figure who is of interest
both for his own
sake and because of his "iconic" role in the history of legal
thought over the last fifty years. At the same time, the article aspires
to make a broader argument about the relevance of legal realism to the
social contract tradit
ion in political theory..."
A Random Sampling of Older Material
"Although this article was prompted by the publication of The Tempting
of America, its subject is wider than that book alone. As I went further
back into Mr. Bork's
intellectual history, I discovered that the arguments
in his most recent book followed a formula developed in his earlier writings.
Like The Tempting of America, Mr. Bork's other work follows a lapsarian
pattern -- a tale of a fall from grace, coup
led with a strategy for redemption.
A state of corruption and decay is identified in some institution or area
of law. The rot is traced to a particular departure from the proper state
of affairs, a wilful violation of an authoritatively decreed scheme oft
hings. A method is prescribed by Mr. Bork which will allow us to escape
our current fallen state and return to a condition of righteousness. Mr.
Bork speaks strongly in favour of his method, pronouncing it "inescapable"
or "unavoidable.&quo
t; Yet it is obvious that Mr. Bork's panacea has
all the same features as the disease it is supposed to cure. At first,
Mr. Bork offers a lengthy and thunderous denial that the cure is indistinguishable
from the disease. Eventually, he falls silent for a
while, only to emerge
in two or three years with some new, and newly ineluctable, redemptive
method. The process then repeats itself. Readers familiar only with Mr.
Bork's most recent writings will be surprised to find that in the past
he has been, succes
sively, a libertarian, a process theorist, a devotee
of judicial restraint, a believer in neutral principles, a "law and
economist" and an advocate of two distinct forms of originalism. At
the time, each of these theories was offered as being th
e only possible
remedy to the subjectivity and arbitrariness of value judgements in a constitutional
democracy and the other theories he had held, or was about to hold, were
rejected out of hand. .. The Tempting of America is, in one sense,
the wea
kest and most obviously flawed of Mr. Bork's panaceas. He criticises
contemporary liberal constitutional jurisprudence for being arbitrary,
politically biased, indeterminate, and a-historical. Yet his prescription
for cure -- the philosophy of original un
derstanding -- is even more obviously
possessed of these flaws. Indeed, as the quotation at the head of this
page demonstrates, in an earlier incarnation he himself had dismissed it
as "naive." Mr. Bork's rhetoric of denial must thus be correspo
ndingly
stronger and more thunderous. Yet in another sense, The Tempting of
America may mark a departure -- albeit a fragmentary and contradictory
one -- from the endless process of denial. Instead, it marks a shift to
a different form of conservat
ive thought, one that could be called either
pre- or even post-modern. "
".....There is a controversy over the true identity of Shakespeare,
a controversy notable for the intemperate statements to which it gives
rise. Three Supreme Court Justices agree to hear a staged oral argument
on the issu
e. Briefs are written, and replies. (These you have.) There
is a televised oral argument. (This you do not have.) The court decides
in favor of the traditional claimant to Shakespeare's laurels, each Justice
rendering a separate opinion. (The opinions, to
o, are provided.) The attorneys
retire in some confusion, unaccustomed to the importance they are presumed
by their audience to possess. The parties disperse, already arguing over
the significance of the ruling. Apart from the rather bizarre subject matte
r,
the media attention and the eminence of the panel, it sounds like a typical
piece of litigation. But behind this bare narrative lies another story,
as full of strange personalities, unlikely arguments, and philosophical
puzzles as Umberto Eco's, The Na
me of the Rose -- a book about semiology
masquerading as a murder mystery... My argument is that the Shakespeare
debate has much to tell us about attitudes to textual indeterminacy and
to the romantic picture of the author on which so much of our interpre
tive
tradition -- both constitutional and literary -- depends."
All articles
© James Boyle
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