Weekly Top 5 Papers – January 25, 2013


1. A Brief Introduction to the Basics of Game Theory
by Matthew Jackson (Stanford University – Department of Economics)

2. Ham Sandwich Nation: Due Process When Everything is a Crime
by Glenn Reynolds (University of Tennessee College of Law)

Glenn Harlan Reynolds
The “Due Process When Everything Is A Crime” piece started germinating with a chapter for my political-ethics book (coauthored with Peter W. Morgan) “The Appearance of Impropriety,” back in 1997. But it was one of those pieces that somehow just wouldn’t write. I planned to work on it several summers, but I always wound up writing something else instead. Then in the past few weeks, the publicity surrounding the Aaron Swartz prosecution, and the David Gregory non-prosecution, somehow jarred me loose. Also, the possibility (not present in 1997) of writing a shorter piece for law reviews’ online supplements made it easier. The short article has also drawn interest from book publishers. I love scholarship in the 21st century! My experience with this piece also echoes advice I give to new scholars: If a piece won’t write, don’t try to write it. Write something else. Trying to write a piece that won’t write is frustrating and the results are usually sub-par. And if you wait, it’ll eventually come around.

3. Micro-Symposium on Orin Kerr’s ‘A Theory of Law’ by
Laura Appleman (Willamette University College of Law)
Shawn Bayern (Florida State University – College of Law)
Adam Chandler (Yale University – Law School)
Miriam Cherry (Saint Louis University – School of Law)
Ross Davies (George Mason University School of Law)
Lee Fennell (University of Chicago Law School)
Paul Gowder (University of Iowa – College of Law)
Caitlin Hartsell (Washington University in Saint Louis)
Kieran Healy (Duke University)
Robert James (Pillsbury Winthrop Shaw Pittman LLP)
Jeffrey Kahn (Florida State University – College of Law)
Orin Kerr (George Washington University – Law School)
Jacob Levy (McGill University – Department of Political Science)
Jeffrey Lipshaw (Suffolk University Law School)
Orly Lobel (University of San Diego School of Law)
Geoffrey Manne (International Center for Law & Economics (ICLE))
Chad Oldfather (Marquette University – Law School)
Ronak Patel (University of the Pacific – McGeorge School of Law)
Jeffrey Pojanowski (Notre Dame Law School)
Alexandra Roberts (Boston University School of Law)
Kent Scheidegger (Criminal Justice Legal Foundation)
Arthur Stock (Independent)
Anders Walker (Saint Louis University – School of Law)

4. The Hidden History of the Second Amendment
by Carl Bogus (Roger Williams University School of Law)

Carl T. Bogus
I wrote “The Hidden History of the Second Amendment” more than a dozen years ago. It got a fair amount of attention at the time. Some historians endorsed it – at least to the extent of saying they found its thesis plausible and deserving of attention – including Garry Wills and Don Higginbotham, the distinguished historian who specializes in military history of the colonial and Revolutionary periods.

But, frankly, the article did not get the kind of attention that I thought it deserved. After all, its thesis is intriguing and radical: that, in significant part, James Madison wrote the Second Amendment to assure his constituents in Virginia, and the South generally, that the federal government could not use its newly-acquired constitutional powers to indirectly subvert the slave system by disarming the militia, on which the South relied for slave control. It is true that my thesis depends on circumstantial evidence. I do not claim Madison said this was his motivation. But, as evidence experts will tell you, circumstantial evidence can be as strong as direct evidence. During the ratification debates, for example, Patrick Henry and George Mason publicly accused Madison of writing a Constitution that empowered the federal government to subvert the slave system in exactly that way. Madison, therefore, had strong political reasons to fix the problem when he entered the First Congress. Who believes that politicians – even eighteenth century giants such as Madison – openly disclose all of their motivations?

To my surprise, the recent massacre at in Newtown ignited a resurgence of interest in “The Hidden History of the Second Amendment.” Even more surprising, as far as I can tell this resurgence is not taking place mainly among scholars but among people from all walks of life, who – learning about it from social media or radio shows – are taking the initiative to find, download, and read a heavily-footed, 99-page law review article.

5. Money from Music: Survey Evidence on Musicians’ Revenue and Lessons About Copyright Incentives
by Peter DiCola (Northwestern University School of Law)

Peter DiCola
I first wanted to do a survey-based study like “Money from Music” when I was in graduate school. File-sharing technology spread like wildfire back in 1999 and 2000 and copyright law became increasingly controversial. Since then, copyright advocates have held that copyright is essential to musicians making a living by creating music. Meanwhile, copyright critics have expressed their doubts, often asserting that musicians could “just sell T-shirts” or rely on money from live performances. Unfortunately, this debate has gone on for more than a decade with almost no facts beyond a few anecdotes. One paper isn’t going to fill that void; at most it’s a first step. But I wanted to figure out how money gets filtered through the industry and eventually reaches the musicians to support their creative activities. In 2011, I finally had the chance to work with colleagues to create a nationwide survey of musicians about how they earn revenue in very specific terms. The survey asked about everything from big items like live performance revenue to small items like payments from specific funds administered by the music unions.

The results show that musicians are a very diverse group and that the ways in which they collect revenue are similarly diverse. In the paper I talk about a distinction between sources of revenue that are directly related to copyright (like composition royalties and sales of recordings) and sources that are indirectly related to copyright, if at all (like live performances and teaching). I find that most musicians earn a fairly small share of their revenue from sources directly related to copyright. But I hasten to add that certain segments of musicians, particularly composers and higher-income musicians, rely heavily on direct copyright revenue. A survey about revenue with this direct-indirect distinction can’t answer the tough causal questions about the effect of copyright. For instance, the indirect channel may be nonetheless important in magnitude for musicians’ incentives. But this framework allows one to identify the ways copyright might be operating to provide incentives and to rule out other ways, at least for certain segments of the musician population. In future years, I would like to replicate the survey to begin tracking changes over time. It would have been even better to collect data for the last decade or two, of course. But I think the industry is still changing and it would be interesting to observe how musicians’ reliance on different revenue sources changes in response.

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