New Paternalism on the Slippery Slopes, Part 2: How New Paternalism Creates Gradients

A key conclusion of the literature on slippery slopes is that they are especially likely in the presence of gradients -- meaning situations in which there is a relatively smooth continuum from one policy to another, and in which it is difficult to draw sharp distinctions. Gradients don’t guarantee slippery slope events, but they increase their probability in the presence of other slope processes.

In “Little Brother,” Mario and I review the literature on gradients and slippery slopes, and then we consider how the new paternalists deliberately frame policy choice in terms of gradients (pp. 693-694):

The new paternalist paradigm, as presented by its leading advocates, relies on discarding sharp distinctions in favor of gradients. Specifically, they reject standard distinctions between choice and coercion and between public and private action. Cass Sunstein and Richard Thaler minimize the importance of the distinction between paternalism in the private and in the public sectors. In explaining their concept of “libertarian paternalism,” they say that the distinction between libertarian and non-libertarian paternalism “is not simple and rigid.” Moreover, they explicitly state that libertarian and non-libertarian paternalism lie on a continuum: “The libertarian paternalist insists on preserving choice, whereas the non-libertarian paternalist is willing to foreclose choice. But in all cases, a real question is the cost of exercising choice, and here there is a continuum rather than a sharp dichotomy . . . .”

Sunstein and Thaler thus present us with a gradient on which choice is characterized by low costs of escaping the prescribed course of action, while coercion corresponds to higher costs of escape. Who imposes the costs of escape and how these costs are imposed are regarded as unimportant questions.

In the pages that follow, we summarize the many and sundry policies that S & T regard as falling on the libertarian paternalist spectrum. Many of these are policies they never mention in their public defenses of libertarian paternalism. But they do appear in their academic work, and reading the list makes it apparent just how un-libertarian libertarian paternalism can be. We conclude (pp. 697-698):

At the far end of the continuum lies an outright ban on certain activities. Sunstein and Thaler embrace this conclusion: “Almost all of the time, even the non-libertarian paternalist will allow choosers, at some cost, to reject the proposed course of action. Those who are required to wear motorcycle helmets can decide to risk the relevant penalty, and to pay it if need be.”

Notice that the same argument would place outright prohibition of alcohol, drugs, or anything else on the same spectrum. You are free to use any drug you want, says the argument, if you are willing to incur the cost of potential imprisonment. At this end of the continuum, we find, lies genuine hard paternalism. In Sunstein and Thaler’s words:

A libertarian paternalist who is especially enthusiastic about free choice would be inclined to make it relatively costless for people to obtain their preferred outcomes. (Call this a libertarian paternalist.) By contrast, a libertarian paternalist who is especially confident of his welfare judgments would be willing to impose real costs on workers and consumers who seek to do what, in the paternalist’s view, would not be in their best interests. (Call this a libertarian paternalist.)

Movement along a paternalist continuum should come as no surprise when the two ends of the continuum depend on which word is italicized, as well as on the subjective confidence of the policymaker in his welfare judgments.

It bears emphasis that the sequence of steps we have outlined—from nudging (changing the order of cafeteria items) to pushing (imposing costs on those who deviate from the state’s preferred terms of contract) to shoving (ruling out some terms entirely) to controlling (banning some activities altogether)—is not our creation. Sunstein and Thaler present the same proposals in approximately the same order, to demonstrate the existence of a continuum.

A bit later (pp. 698-699) we respond to a natural objection: that the new paternalism is not to blame for the existence of a gradient that already exists.

Some may object that the existence of a gradient from soft to hard paternalism is just a fact, and that the new paternalists cannot be faulted for pointing it out. But the gradient in fact results from the conceptual framework that the new paternalists have adopted and urge the rest of us to adopt. The main problem with the framework, in our view, is that it defines freedom of choice (and libertarianism) in terms of costs of exit, without any attention to who imposes the costs and how. An alternative framework, one that is more consistent with the typical usage of words like coercion and choice, would focus on whether rights of person and property are abridged by a given policy. On this approach, a restaurateur’s decision about dessert placement and a government’s decision about whether to allow helmetless motorcycle riding simply would not be on the same continuum. The former is private and non-coercive, the latter public and coercive. This is the sort of framework that the new paternalists encourage us to reject in favor of theirs.

To put it another way, the new paternalists often say that people are subject to “framing effects” that alter their choices. Indeed, they say that such framing effects are evidence of irrationality. Yet they are exploiting a framing effect in their advocacy of new paternalism. They encourage us to adopt a conceptual frame that relies on gradients, rather than a conceptual frame that highlights important distinctions. We will revisit this point later. (As usual, footnotes have been omitted, but are available in the full paper.)

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New Paternalism on the Slippery Slopes, Part 1

Mario Rizzo and I have just published a new article, "Little Brother Is Watching You: New Paternalism on the Slippery Slopes," in Arizona Law Review. You can find the full text here.

Regular readers (if I still have any) will know I've written a great deal about the new paternalism. Just click on the subject tag "paternalism" on this post for a sampling. Mario and I also published a prior article about how new paternalist policies are vulnerable to slippery slopes; the present article is a more comprehensive treatment of the issue.

The article is quite long. As a result, I expect few people will read the whole thing. I've therefore decided to excerpt the article in a series of blog posts. I won't be covering all of our arguments in the paper, but I'll be pulling out some passages I particularly like -- and that might otherwise be missed.


Since Mario has already posted the abstract on his blog, I'll start by posting parts of the longer summary in the introduction. Here are the opening paragraphs, which explain the idea of the "new paternalism" (pp. 687-688).

Paternalist arguments advocate forcing or manipulating individuals to change their behavior for their own good, as distinct from the good of others. Paternalism has been with us for millennia. Recently, however, a seemingly new form has arisen that we call “the new paternalism.” Unlike the old paternalism, which sought to make individuals behave consistently with the (often moralistic or religious) preferences of policymakers, the new paternalism seeks to help individuals maximize their own welfare as they see it themselves. ...

The new paternalism is supported by a growing body of research in behavioral economics showing that individuals are not fully “rational,” as economists understand that term, but instead are subject to a variety of cognitive errors and biases. The list of such deviations from strict rationality includes—but is not limited to—status quo bias, optimism bias, susceptibility to framing effects, and lack of willpower or self-control. Thus individuals are viewed as “pawns in a game whose forces [they] largely fail to comprehend.” To the extent that these cognitive problems cause individuals to make systematic and predictable choices that are inconsistent with their own well-considered preferences, there is potential for paternalistic interventions that will help them do better. In fact, these interventions have been described as “free lunches . . . that would help people achieve more of what they truly want.”

And then our central claim in the article (pp. 687-688):

New paternalists distinguish their views from hard paternalism by emphasizing the moderate character of their proposals. Christine Jolls and Cass Sunstein frequently refer to their proposals for debiasing behavior through law as a “middle ground” between laissez-faire and more heavy-handed paternalism, one that is a “less intrusive, more direct, and more democratic response to the problem of bounded rationality.” Colin Camerer, et al., present their model of “asymmetric paternalism” as “a careful, cautious, and disciplined approach” to evaluating paternalistic policies. Cass Sunstein and Richard Thaler characterize their “libertarian paternalist” approach as a “relatively weak and nonintrusive type of paternalism” that in its “most cautious forms . . . imposes trivial costs on those who seek to depart from the planner’s preferred option.” In short, the new paternalists claim we can attain significant improvements in individual welfare with relatively small interventions that do not substantially restrict liberty or autonomy.

Our thesis is that the new paternalism’s claim to moderation is not sustainable. A recent body of literature, to which we have contributed, has rehabilitated slippery-slope reasoning by examining the specific processes by which slippery slopes occur, as well as the circumstances under which slippage is most likely. The insights of the slippery-slope literature suggest that new paternalist policies are particularly subject to expansion. We argue that this is true even if policymakers are rational. But perhaps more importantly, we argue that the slippery-slope threat is especially great if policymakers are not fully rational, but instead share the behavioral and cognitive biases attributed to the people their policies are supposed to help. Consequently, accepting new paternalist policies creates a risk of accepting, in the long run, greater restrictions on individual autonomy than have heretofore been acknowledged. Inasmuch as new paternalists claim to be interested in preserving autonomy, this surely must be taken into account as an unrecognized or unacknowledged cost to be balanced against any possible gains from their policies.

I've omitted citations, but they can be found in the full article. Next up: how the new paternalism blurs important distinctions.

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Halloween Doppelgangers

If you've walked into a Halloween store recently, you've probably been treated to a soundtrack of what seem to be classic haunting favorites, like "Thriller" and "Ghostbusters" and "Weird Science." But if you listen closely, you will realize the original songs have been spirited away, their places taken by substandard doppelgangers -- lousy covers performed by unknown studio musicians.

But why not just play the originals? After all, Michael Jackson's "Thriller" is probably playing on scores of radio stations nationwide this very minute, as I compose this blog post. So why not play it in the stores, too?

You'll know the answer if you've read my post from two years ago on the strange phenomenon of crappy karaoke covers. Rather than using modern technology to strip out the vocals from originals, karaoke track producers recreate the whole songs from scratch. Halloween stores are doing the same thing for the same reason. To use the original recording for any commercial purpose, you must get the permission of the copyright holder and negotiate a price; but to use the melody and lyrics, you don't need permission and you pay only a low price fixed by statute.

The result, of course, is economic waste. Were it not for this legal structure, both Halloween shoppers and karaoke singers could use the originals, and economic resources wouldn't get spent on the creation of lousy knock-offs. The goal of the law, of course, is to assure that the artists get compensated for their effort. But the reality is that the artists get only nominal compensation (from the music/lyrics payment), while music listeners get treated to second-rate performances.

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How Top-Ranked Law Schools Got That Way, Pt. 3

Part one and part two of this series focused on the top law schools in U.S. News and World Report's 2010 rankings, offering graphs and analysis to explain why those schools did so well. This part rounds out the series by way of contrast. Here, we focus on the law schools that ranked 41-51 in the most recent USN&WR rankings, those that ranked 94-100, and the eight schools that filled out the bottom of the rankings.



The above chart shows the weighted and itemized z-scores of law schools about 1/3rd of the way from the top of the 2010 USN&WR rankings. Note the sharp downward jog at Over$/Stu—a residual effect, perhaps, of the stupendously large Over$/Stu numbers we earlier saw among the very top schools. Note, too, that three schools here—GMU, BYU, and American U.—buck the prevailing trend by earning lower scores under PeerRep than under BarRep (GMU's line hides behind BYU's). As you work down from the top of the rankings, GMU offers the first instance of that sort of inversion; all of the more highly ranked schools have larger itemized z-scores for PeerRep than for BarRep. It raises an interesting question; Why did lawyers and judges rank those schools so much more highly than fellow academics did?




The above chart shows the weighted, itemized z-scores of the law schools ranked 94-100 in the 2010 USN&WR rankings—about the middle of all of the 182 schools in the rankings. As we might have expected, the lines bounce around more wildly on the left, where they trace the impact of the more heavily weighted z-scores, than on the right, where z-scores matter relatively little, pro or con. Beyond that, however, no one pattern characterizes schools in this range.




The above chart shows the weighted and itemized z-scores of law schools that probably did the worst in the 2010 USN&WR rankings. I say, "probably," because USN&WR does not reveal the scores of schools in the bottom two tiers of its rankings; these eight schools did the worst in my model of the rankings. Given that uncertainty, as well as for reasons explained elsewhere, I decline to name these schools.

Here, as with the schools at the very top of the rankings, we see a relatively uniform set of lines. All of the lines trend upward, of course. These schools did badly in the rankings exactly because they earned strongly negative z-scores in the most heavily weighted categories, displayed to the left. Several of these schools did very badly on the Emp9 measure, and one had a materially poor BarPass score. Another of them did surprisingly well on Over$/Stu, perhaps demonstrating that, while the very top schools boasted very high Over$/Stu scores, no amount of expenditures-per-student can salvage otherwise dismal z-scores.

[Crossposted at Agoraphilia, MoneyLaw.]

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How Top-Ranked Law Schools Got That Way, Pt. 2

In the first post in this series, I discussed the mysterious distribution of maximum z-scores in the top two tiers of law schools in U.S. News & World Report's 2010 rankings, and focused on the top-12 schools to solve that mystery. In brief, among the very top schools, employment nine months after graduation" ("Emp9") varies too little to make much of a difference in the schools' overall scores, whereas overhead expenditures/student ("Over$/Stu") varies so greatly as to almost swamp the impact of the other factors that USN&WR uses in its rankings. Here, in part two, I focus on the top 22 law schools in USN&WR's 2010 rankings. In addition to the Emp9 and Over$/Stu effects observed earlier, this wider study uncovers some other interesting patterns.



The above graph, "Weighted & Itemized Z-Scores, 2010 Model, Top-22 Schools," offers a snapshot comparison of how a wide swath of the top schools performed in the most recent USN&WR rankings. It reveals that the same effects we observed earlier, among just the top-12 schools, reach at least another ten schools down in the rankings. With the exception of Emory and Georgetown, Emp9 scores (indicated by the dark blue band) barely change from one top-22 school to another. Over$/Stu scores, in contrast (indicated by the middle green hue), vary widely; compare Yale's extraordinary performance on that measure with, for instance, Boston University's.

This graph also reveals some other interesting effects. Like the Emp9 measure, the Emp0 measure (for "Employment at Graduation," indicated in yellow-green) varies little from school to school. Indeed, it varies even less than the Emp9 measure does. Why so? Because all of these top schools reported such high employment rates. All but Minnesota reported Emp0 rates above 90%, and all but Georgetown, USC, and Washington U. reported rates above 95%.

These top 22 schools also reported very similar LSATs. Their weighted z-scores for that measure, indicated here in light blue, range from only.20 to .15. The weighed z-scores for GPA, in contrast, marked in dark green, range from .24 to .06.

As the graph indicates, the measures worth 3% or less of a school's overall score—student/faculty ratio, acceptance rate, Bar exam pass rate, financial aid expenditures/student, and library volumes and equivalents—in general make very little difference in the ranking of these schools. One exception to that rule pops up in the BarPass scores (in dark orange) of the California schools, which benefit from a quirk in the way that USN&WR measures Bar Pass rates. Another interesting exception appears in Harvard's Lib score (in white)—only thanks to its vastly larger law library does Harvard edge out Stanford in this ranking.

To best understand how a few law schools made it to the top of USN&WR's rankings, we should contrast their performances with those of the many schools that did not do as well. I'll thus sample the statistics of the law schools that ranked 41-51 in the most recent USN&WR rankings, those that ranked 94-100, and the eight schools that filled out the bottom of the rankings. Please look for that in the next post.

[Crossposted at Agoraphilia, MoneyLaw.]

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How Top-Ranked Law Schools Got That Way, Pt. 1

How do law schools make it to the top of the U.S. News & World Report rankings? USN&WR ranks law schools based on 12 factors, each of which counts for a certain percentage of a school's total score. Peer Reputation counts for 25% of each law school's overall score, for instance, whereas Bar Passage Rate counts for only 2%. More precisely, USN&WR calculates z-scores (dimensionless statistical measures of relative performance) for each of the 12 factors for each school, multiplies those z-scores by various percentages, and sums each school's weighted, itemized z-scores to generate an overall score the school. USN&WR then rescales the scores to run from 100 to zero and ranks law schools accordingly.

In earlier posts I described my model of the most recent U.S. News & World Report law school rankings (the "2010 Rankings"), quantified its accuracy, and published itemized z-scores for the top two tiers of schools. (Separately, I also suggested some reforms that might improve the rankings.) Studying those z-scores reveals a great deal about how the top-ranked law schools got that way. The lessons hardly jump out from the table of numbers, though, so allow me to here offer some illustrative graphs.



The above graph, "Weighted & Itemized Z-Scores of Top 100 Law Schools in Model of 2010 USN&WR Rankings," reveals an interesting phenomenon. The items on the left of the graph count for more of each school's overall score, whereas the items on right count for less. We would thus expect the line tracing the maximum weighted z-scores for each item to drop from a high, at PeerRep (a measure of a school's reputation, worth 25% of its overall score), to a low, at Lib (a measure of library volumes and equivalents, worth only .75%). Instead, however, the maximum line droops at Emp9 (employment nine months after graduation) and soars at Over$/Stu (overhead expenditures per student). The next graph helps to explain that mystery.



The above graph, "Weighted & Itemized Z-Scores, 2010 Model, Top-12 Schools," reveals two notable phenomena. First, the Emp9 z-scores, despite potentially counting for 14% of each school's overall score, lie so close together that they do little to distinguish one school from another. In practice, then, the Emp9 factor does not really affect 14% of these law schools' overall scores in the USN&WR rankings. (Much the same holds true of top schools outside of these 12, too.)

Second, the Over$/Stu z-scores range quite widely, with Yale having more than double the score of all but two schools, Harvard and Stanford, which themselves manage less than two-thirds Yale's Over$/Stu score. That wide spread gives the Over$/Stu score an especially powerful influence on Yale's overall score, making it almost as important as Yale's PeerRep score and much more important than any of the school's remaining 10 z-scores. In effect, Yale's extraordinary expenditures per student buy it a tenured slot at number one. (I observed a similar effect in last year's rankings.)

Other interesting patterns appear in "Weighted & Itemized Z-Scores, 2010 Model, Top-12 Schools." Note, for instance, that Virginia manages to remain in the top-12 despite an unusually low Over$/Stu score. The school's strong performance in other areas makes up the difference. Though it is not easy to discern from the graph, Virginia's reputation and GPA scores fall in the middle of these top-12 schools' scores. Northwestern offers something of a mirror image on that count, as it remains close to the bottom of the top-12 despite a disproportionately strong Over$/Stu score. The school's comparatively low PeerRep and BarRep scores (the lowest of those in the top-12) and GPA (nearly tied for the lowest) score pull it down; Northwestern's Over$/Stu score saves it.

[Since I find I'm running on a bit, I'll offer some other graphs and commentary in a later post or posts.]

[Crossposted at Agoraphilia, MoneyLaw.]

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Free Willie?

Thanks to comments on my earlier post, Copyright Duration and the Mickey Mouse Curve, I've been encouraged to reflect on what would happen if, in fact, Steamboat Willie had fallen into the public domain. Could we then reuse Mickey Mouse, the star of that show, without facing any liability to the Walt Disney Company? I drafted this answer for my book, Intellectual Privilege (here edited for blogging):

Scholars have made surprisingly strong arguments that Steamboat Willie, a cartoon that the Walt Disney Company cites as establishing its copyright rights in Mickey Mouse, has fallen into the public domain. As a thought experiment, let us assume the truth of that claim. What would happen if Walt Disney Company—if, indeed, nobody—held a copyright in Steamboat Willie? Certainly, each of use would by default enjoy complete freedom to copy, distribute, display, or perform the cartoon, because the expiration of the work's copyright would also end the exclusive rights of the Walt Disney Company and its assigns the exercise those statutory privileges. So, too, would we escape copyright's limitations on making derivative versions of Steamboat Willie—versions that might show Mickey standing at a lectern rather than at a pilot's wheel, for instance, or have him expounding on copyright law.

The Walt Disney Company would retain its copyrights in later, plumper versions of the Mickey Mouse, of course. Contemporary artists wanting to reinterpret the character free from the company's veto would thus have to draw inspiration primarily from the earlier, skinnier, version. Given that the characters would share a common ancestor, however, even mice derived solely from Steamboat Willie would often strongly resemble the modern-day Mickey Mouse.

Would Walt Disney Company object to those unauthorized reuses of Steamboat Willie? It might, indeed. Some such uses might substitute for sales of the company's wares, after all, or cast its most prominent spokes-mouse in an unsavory light. But copyright law would, per the assumption behind our thought experiment, offer the company no solace. The Walt Disney Company could not plausibly claim that patent or trade secret law gives it the power to limit free use of Steamboat Willie, either. Nor could it invoke the right of publicity, which though sometimes shockingly effective in limiting speech about celebrities, has thus far not stretched to cover cartoon characters.

Trademark and unfair competition law would probably offer the Walt Disney Company its most potent weapon against any movement to emancipate Steamboat Willie. Generally speaking, that area of law allows the holder of a name, symbol, or other mark to prevent latecomers from using in commerce marks likely to confuse consumers about the source or affiliation of a particular good or service. Thus, for instance, can Nike bar someone from putting its famous "swoop" on non-Nike clothes. The Walt Disney Company uses Mickey Mouse as a mark designating its goods and services. If a consumer did not know (ex hypothesis) that the image and voice of Mickey Mouse, qua the character Willie, had fallen into the public domain, and that consumer saw a cartoon of a substantially similar Mickey Mouse in a new context, the consumer might naturally, yet wrongly, assume that the newer Mickey Mouse had issued from the same source as so many other cartoons featuring the character: The Walt Disney Company. On that argument, consumer ignorance would give the company cause to censor derivative versions of the copyright-free Mickey Mouse.

Perhaps the addition of disclaimers, such as noting, "Not a Walt Disney Company production!" in a cartoon's margin, would suffice to dispel consumer confusion. That would ward off only a "passing off" claim—one where a mark's holder accuses another of selling bogus wares under that mark—however. The same disclaimer would set the defendant up for a "reverse passing off" claim—one where Disney would charge that cartoonist wrongly sold Disney's product (intellectual creations about Mickey Mouse) under another's name. Disney could thereby damn those who use Steamboat Willie both if they do use disclaimers and if they do not. Happily for anyone who wants to free Willie, however, the Supreme Court has cut through that Gordian knot of liability.

The Supreme Court held in Dastar Corp. v. Twentieth Century Fox Film Corporation that, once a work has fallen into the public domain, its former copyright holder cannot use federal unfair competition law to demand credit from those who reuse the work. Still more broadly, the Court flatly excluded copyrighted works from the scope of section § 43(a)(1)(A) of the Lanham Act, the federal law barring passing off, whether direct or reverse. The Court explained the policy reasons for thus limiting unfair competition law:

Assuming for the sake of argument that [defendant] Dastar's representation of itself as the "Producer" of its videos amounted to a representation that it originated the creative work conveyed by the videos, allowing a cause of action under § 43(a) for that representation would create a species of mutant copyright law that limits the public's "federal right to 'copy and to use,'" expired copyrights.

Dastar voiced broad concerns, and lower courts have read it accordingly. They have extended it to bar state law claims of unfair competition, a result the U.S. Constitution's Supremacy Clause would apparently mandate. Lower courts have also extended Dastar to bar unfair competition claims arising out of the use of uncopyrighted and uncopyrightable works. Plainly, the case has done a great deal to ensure that copyright's privileges go no farther than copyright itself.

The exact scope of Dastar's preemptive effect remains as yet uncertain, granted. Even if it suffered the uncopyrighting of Steamboat Willie we've hypothecated here, for instance, the Walt Disney Company would perhaps still have the right to bring suit under § 43(a)(1)(B) of the Lanham Act against those using liberated versions of Mickey Mouse to deceptively market their wares, such as by falsely advertising a new Spaceship Willie as a Disney original. The Dastar Court left that question open. Lower courts have, however, read the case to bar § 43(a)(1)(B) claims alleging no more than false marketing about whether permission was granted for an uncopyrighted work. Under that reasoning, the Walt Disney Company could not even stop the authors of Spaceship Willie from selling it as, "A wholly original take on Mickey Mouse," or, conversely, as "Mickey Mouse in the finest tradition of Walt Disney." Thus might Dastar and its progeny help Mickey Mouse, when and if he escapes copyright, from achieving the status of a great cultural icon, akin to Santa Claus or Uncle Sam.

[Crossposted at Agoraphilia, TechLiberation Front.]

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Copyright Duration and the Mickey Mouse Curve

Herewith another recent addition to my draft book, Intellectual Privilege: A Libertarian View of Copyright, (inspired, in part, by Berin Szoka's recent claim, "I just don’t know what the right balance [for copyright] is! I’m glad there are others patient enough to try to figure it out. This is why we have economists and… yes, even lawyers!"):

As an illustration of the public choice pressures that drive copyright policy, consider the fate of the copyright in Steamboat Willie, a 1928 cartoon that the Walt Disney Company cites as establishing its copyright claim in Mickey Mouse. Scholars have made a surprisingly strong case that, because the requisite formalities of the 1909 Copyright Act were not satisfied, Steamboat Willie has fallen into the public domain. The Walt Disney Company has responded to such claims by threatening to bring suit for "slander of title," demonstrating how seriously it takes its copyright in Steamboat Willie. Let us take that copyright seriously, too, then, so that we might better understand the public choice effects of the Walt Disney Company's interests.



The above figure illustrates how the duration of the copyright that the company claims in Steamboat Willie—marked by the solid grey line—has twice approached expiration—a limit marked by the dashed grey line. In both instances, federal lawmakers amended the Copyright Act to extend copyright's duration, both for copyrighted works generally and works, such as Steamboat Willie, that predated the amendments. The line marking the copyright term in Steamboat Willie jogs upward both on the effective date of the 1976 Act (January 1, 1978) and again on the effective date of the Sonny Bono Copyright Term Extension Act (October 27, 1998). (Steamboat Willie did not receive the maximum possible copyright duration under either extension due to complications arising from the work's status as a work in its second term under the 1909 Copyright Act.) No one can, of course, say with certainty whether or to what degree lobbying by the Walt Disney Company drove those copyright term extensions, which fortuitously or not saved the (supposed) copyright in Steamboat Willie from falling into the public domain. It does not take a great deal of skepticism, however, to predict that federal lawmakers will extend copyrights again before 2023, at which time Steamboat Willie will once more risk sailing beyond the limits of copyright's duration.

Given the rough-and-tumble of real world lawmaking, does the rhetoric of "delicate balancing" merit any place in copyright jurisprudence? The Copyright Act does reflect compromises struck between the various parties that lobby congress and the administration for changes to federal law. A truce among special interests does not and cannot delicately balance all the interests affected by copyright law, however. Not even poetry can license the metaphor, which aggravates copyright's public choice affliction by endowing the legislative process with more legitimacy than it deserves. To claim that copyright policy strikes a "delicate balance" commits not only legal fiction; it aids and abets a statutory tragedy.

[Crossposted at Agoraphilia, TechLiberation Front.]

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Reforms Suggested by Modeling the Law School Rankings

As I recently observed, the close fit between law schools' scores in U.S. News & World Report's rankings and the scores of those same schools in my model of the ranking "suggests that law schools did not try game the rankings by telling USN&WR one thing and the ABA . . . another." Since both Robert Morse, Director of Data Research for USN&WR, and the ABA Journal saw fit to comment on that observation, perhaps I should clarify a few points.

First, I have no way of knowing whether or not law schools misstated the facts, by accident or otherwise, to both the ABA and USN&WR. The fit between USN&WR's scores and my model's scores indicates only that law schools reported, or misreported, the same facts to each party.

Second, this sort of consistency test speaks only to those measures USN&WR uses in its rankings, that it does not publish with its rankings, and that the ABA collects from law schools: median LSAT, median GPA, overhead expenditures/student, financial aid/student, and library size. Measures that USN&WR uses and publishes—reputation among peers and at the Bar, employment nine months after graduation, employment at graduation, student/faculty ratio, acceptance rate, and Bar exam performance—go straight into my model, so I do not have occasion to test their consistency against ABA data. In some cases—the reputation scores and the employment at graduation measure, the ABA does not collect the data at all. This proves especially troubling with regard to the latter. We have little assurance that USN&WR double-checks what schools report under the heading of "Employment at Graduation," and no easy way to double-check that data ourselves.

Third, and consequently, USN&WR could improve the reliability of its rankings by implementing some simple reforms. I suggested three such reforms some time ago. USN&WR has largely implemented two of them by making its questionnaire more closely mirror the ABA's and by publishing corrections and explanations when it discovers errors in its rankings. (I claim no credit for that development, however; I assume that USN&WR acted of its own volition and in its own interest.)

Another of my suggested reforms remains as yet unrealized, however, so allow me to repeat it, here: USN&WR should publish all of the data that it uses in ranking law schools. It could easily make that data available on its website, if not in the print edition of its rankings. Doing so would both provide law students with useful information and allow others to help USN&WR double-check its figures.

To that, I now add this proposed reform: USN&WR should either convince the ABA to collect data on law school graduates' employment rates at graduation or discontinue using that data in its law school rankings. That data largely duplicates the more trustworthy (but still notoriously suspect) "Employment at Nine Months" data collected by the ABA and used by USN&WR in its rankings. And, unlike that data, law schools do not report "Employment at Graduation" numbers under the threat of ABA sanctions. We cannot trust the employment at graduation figures and USN&WR does not need them.

Among the reforms I suggested some two years ago I also included one directed at the ABA, calling on it to publish online, in an easily accessible format, all of the data that it collects from law schools and that USN&WR uses in its rankings. I fear that, in contrast to USN&WR, the ABA moved retrograde on that front. I leave that cause for another day, however; here I wanted to focus on what my model can tell us about USN&WR's rankings.

[Crossposted at Agoraphilia, MoneyLaw.]

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What I Learned at the FBI

On Thursday I attended a seminar at the FBI for film and TV writers. There was lots of useful information, but what I found most interesting was the FBI agents' use of language. Specifically, I noticed that they regularly used the word 'forfeit' as a transitive verb meaning 'to acquire by asset forfeiture.' As in: "The FBI forfeited $2.6 million in this operation."

Of course, this is a perfect reversal of meaning. The standard meaning of 'forfeit' is to lose or to abandon, not to acquire.

I don't know that this says anything particular about FBI psychology, except that asset forfeiture has become so routine that they needed a shorter word -- "acquire by asset forfeiture" being rather cumbersome. I suppose that agents just naturally extracted the only verb embedded in the phrase 'asset forfeiture.' Words like 'seize' and 'confiscate' either didn't occur to them, or else seemed too narrow because they don't necessarily imply keeping the seized assets.

Still, it was jarring to hear this casual use of a word to mean something so diametrically opposite its original meaning. At first I was genuinely confused; when I heard an agent say the FBI had forfeited a bunch of money in some operation, I momentarily thought the FBI had actually returned the money to someone. But what are the odds of that?

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Unconstitutional Copyrights?

As part of a revise-and-resubmit process, I've been spending much of my summer upgrading my draft book, Intellectual Privilege: A Libertarian View of Copyright. That effort has led me to revisit copyright's constitutional foundations. I find them very shaky, indeed. This passage (with footnotes excerpted) explains why modern copyright law often fails "to promote the Progress of Science and the useful Arts":

What would copyright look like if we took the Constitution at its word, requiring that copyright promote the progress of both science and the useful arts? We would then have to look askance at the current practice of affording copyright protection to such purely artistic creations as songs, plays, novels, paintings, and sculptures. Even supposing that "science" reaches broadly enough to cover all of the humane sciences—a reading that Malla Pollack documents as an original meaning of the term—copyright law today focuses far more on the expressive arts than on the "useful" ones.

Taking "Science and useful Arts" seriously would thus radically narrow the proper scope of copyright. The first Copyright Act, enacted in 1790 by some of the same people who wrote and ratified the Constitution, covered only maps, charts, and books. Permitting copyrights in first two types of works plainly promoted both science and the useful arts. Lawmakers in 1790 probably regarded books, too, primarily as tools rather than diversions. Novels had yet to rise to prominence, after all; the first American one, William Hill Brown's THE POWER OF SYMPATHY, had appeared only the year before, and even it aimed at practical ends, promising "to Expose the fatal consequences of SEDUCTION." Judging from the titles in libraries and on sale, fiction made up only a small portion of the books available in late eighteenth century America. The 1790 Copyright Acts moreover excluded such purely artistic expressions as songs, plays, paintings, and sculptures—even though its drafters undoubtedly knew of and appreciated those sorts of works.

It appears, then, that "[t]o promote the Progress of Science and useful Arts" originally meant that that copyrights had to serve practical ends, rather than merely expressive ones. But originalists should not alone embrace that constitutional limitation on copyright's scope. Given that "Science" now connotes a more technical and specialized endeavor than it did in the eighteenth century, the plain, present, public meaning of the Constitution likewise counsels against extending copyright protection to purely artistic works. Whether we give the Constitution's text its original meaning or its current one, therefore, copyright should cover little more than maps, charts, non-fiction books, illustrations, documentaries, computer programs, and architecture. Most songs, plays, fictional books, paintings, sculptures, dances, movies, and other artistic works, because they fail to promote the progress of science and the useful arts, would on that reasoning not qualify for copyright protection.

However rigorously logical, that argument against the constitutionality of almost all modern copyright law will, I grant, probably generate more grins than agreement. Courts and commentators have hitherto hardly bothered to distinguish between "Science and useful Arts"; still less have they taken those words to impose real limitations on federal power. Here as elsewhere, acquiescence to long-accepted practices has dulled us to the Constitution's bracingly straightforward words. We should read them anew and reflect that the Founding generation did not evidently think that granting statutory privileges to such purely artistic creations as romantic operas or pretty pictures would promote the progress of both science and the useful arts. Furthermore, most citizens today would, if presented with the Constitution's plain language rather than the convoluted arguments of professional jurisprudes, probably say the same thing about pop songs, blockbuster movies, and the like. That is certainly not to say that purely expressive works lack value. They may very well promote such important goals as beauty, truth, and simple amusement. The Constitution requires that copyright promote something else, however—"the Progress of Science and useful Arts"—and a great many works now covered by copyright cannot plausibly claim to do both.

This argument against the constitutionality of most modern copyright relies, by the way, on a prior argument about the structure of the copyright clause; to wit, that "Science and useful Arts" modifies both "authors" and "inventors." Also, I intend to follow up the above with an analysis of how the Supreme Court in Eldred took a view almost exactly opposite to the text-based one I've embraced. (I'd call that an admission, were I not proud to disagree with the Court.)

[Crossposted at Agoraphilia, TechLiberation Front.]

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Z-Scores in Model of 2010 USN&WR Law School Rankings

If you want to know how U.S. News & World Report's law school rankings work, you'll want to know about z-scores. In very brief, z-scores measure how well each school performed relative to its peers, thereby establishing its rank. (See here for a fuller explanation.) My model of the rankings aims to recreate those z-scores, and thus the rankings themselves, by duplicating both the data and the methodology that USN&WR uses. Here are the results for the law schools most recently ranked in the top 100:



For cross-year comparisons, please see the similar reports I offered in 2005, 2006, 2007, and 2008. This year, in response to a reader's request, I've added various diagnostic measures, such as the mean, median, and standard deviation of each itemized category of data. As I did last year, I again provided weighted z-scores, meaning simply that I've multiplied the z-scores in each category of data by the percentage that category influences a school's overall score. That method of presenting z-scores has the virtue of highlighting which scores matter the most.

Unsurprisingly, you'll generally find the largest numbers in the upper, left-hand corner of the chart. There lie the most heavily-weighted z-scores of the law schools that scored the highest in USN&WR's rankings. Consider, for instance, the .71 weighted z-scores enjoyed by Yale and Harvard under the "PeerRep" category; those numbers nearly swamp the effect of other measures of those schools' performances, and have twice the impact of the peer reputation scores of schools ranked as close as 20th from the top.

This presentation of the data also shows how very little influence many of the things that USN&WR measures have on its rankings. The weighted z-scores for Bar pass rates, for instance, vary between only .07 and -.02, with a whole lot of zeros filling that span. Bar passage rates evidently do not matter much to any school's USN&WR score.

Rankings geeks will doubtless find close study of this table rewarding. I'm especially interested in the surprising impact of the top schools' overhead expenditures/student—a phenomenon that I discussed in some detail last year. Perhaps I'll return to that topic, and raise some new ones, in later posts. In the meantime, I welcome your own observations.

[Crossposted at Agoraphilia, MoneyLaw.]

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Accuracy of the Model of the 2010 USN&WR Law School Rankings

I earlier offered a snapshot comparison of the scores generated by my model of the 2010 U.S. News & World Report law school rankings and the original. After Robert Morse, director of data research for USN&WR, asked me if I could quantify the fit between the two data sets, I realized that others might share his curiosity. Here, then, are the r-squared measures (more precisely, the squares of the Pearson product moment correlation coefficients) for each of the models I've done over the past few years:

2010 rankings: 0.999
2009 rankings: 0.999
2008 rankings: 0.999
2007 rankings: 0.997
2006 rankings: 0.995

What do those numbers mean? In brief, an r-squared closer to 1 (or –1) shows a closer fit between the two data sets. It might seem a bit absurd to report these results out to three decimals, but I wanted to make clear that the model has yet to obtain results absolutely identical to those reported by USN&WR. I daresay, though, that any r-squared above .99 shows a pretty strong correlation.

[Crossposted at Agoraphilia and MoneyLaw.]

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A Model of the 2010 USN&WR Law School Rankings

As in every year since 2005, I this year again built a model of the law school rankings published by the U.S. News & World Report ("USN&WR"). Figuring out the rankings—the "2010" rankings, as USN&WR's calls them—proved especially trying this time around. USN&WR changed several parts of its methodology this year and the ABA, which distributes statistical data on which my model depends, fell far behind its usual publication schedule. Finally, though, the model ended up generating scores gratifyingly close to those that USN&WR assigned law schools. Here's a snap-shot comparison of the results:



For details about how and why I modeled USN&WR's law school rankings, as well as for similar snap-shots, see these posts from 2005, 2006, 2007, and 2008.

Perhaps in later posts I'll offer some reflections on what this year's model of the USN&WR rankings teaches. For now, I'll just offer this happy observation: The close fit between USN&WR's scores and the model's scores suggests that law schools did not try game the rankings by telling USN&WR one thing and the ABA (the source of much of the data used in my model) another. Even a skeptic of law school rankings can find something to like in that.

[Crossposted at Agoraphilia and MoneyLaw.]

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