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March|April 2006
The Accidental Abolitionist By Jake Lundberg
Elsewhere
A Firebrand Flickers By Deborah Dinner
Lordly Law By Louise Arimatsu

Elsewhere

John Paul Stevens's retro ruling, a jam band jurisprudence, the parallels of publishing and perishing, and other ideas from the nation's law reviews.

A BAND OF MERRY DOWNLOADERS

The Grateful Dead disbanded in 1995, but the group's fluid riffs and legion of fans still have much to teach us about life, the road, and federal copyright law. In a recent article, Mark Schultz describes the Dead's pioneering policy of allowing fans to record and distribute its live music for free as a model for big-time recording companies, whose litigation tactics have failed to stop music lovers from trading copyrighted music online.

For more than 30 years, the Dead's almost endless concert tours offered Deadheads, who followed the band from show to show, the ephemeral music of improvisation and the chance to preserve it on tape. By the mid-1980s, forests of spindly stands holding recording mics were a common sight at Dead concerts. Deadheads, meanwhile, rewarded the band's generosity with cultic loyalty and a willingness to abide by and enforce the rules: No selling the recordings for profit, and no copying of studio recordings or other commercial releases.

What the Dead lost in financial control over much of its music, says Schultz, the band gained in increased record, tape, and CD sales. The model was so successful that other jam bands—groups that toured often and improvised heavily—allowed fans to tape concerts and were similarly rewarded with communities of customers who complied with copyright rules and punished those who didn't, sometimes by reporting them to the bands' lawyers.

Schultz explains this law-abiding behavior as an example of "reciprocity," the notion that people repay the actions of others with like actions. Most people will follow the rules, he says, as long as they think the rules are fair—and that others are following them. Jam band fans communicate with one another, and even with band members, relationships that encourage self-policing and cooperation that goes both ways. Last November, when the Dead tried to stop an Internet library from allowing visitors to download the group's concert recordings for free, an online petition caused the band to reconsider.

The lawsuits that big recording companies bring against illegal file sharers, on the other hand, suggest that lots of people are committing copyright violations. As a result, the litigation doesn't scare off file sharers: why should they follow the rules if no one else does? The companies also create the impression that they are unfair by, Schultz says, charging high prices for CDs. Music fans retaliate by file sharing and, because they have no relationship with the companies or one another, they don't feel guilty about it.

Schultz thinks recording companies should stress that most people obey copyright law, but that those who don't will get sued. He also advises industry executives to treat complaints about CD prices and other problems seriously and to take a tip from the Dead by answering questions about the industry's fairness: "Let me know your mind," Jerry Garcia once sang, "Whoh, oh, what I want to know is, are you kind?" Berkeley Technology Law Journal, Vol. 21, Spring 2006

RASUL'S LONG STRANGE TRIP

In 2004, the Supreme Court grappled with the question of whether Guantánamo Bay detainees have the right to challenge their confinement in United States federal courts. Writing for a 6-3 majority, Justice John Paul Stevens declared that "the answer to the question presented is clear." Since the United States claims jurisdiction over Guantánamo in its lease agreement with Cuba, and since no one disputes that federal courts hold jurisdiction over the people working there, the same protections should be extended to the people detained there, too. This answer may have been clear to Stevens, but he took a rather complicated route to get to it. In "The Law Clerk Who Wrote Rasul v. Bush," Joseph T. Thai charts the unusual course of Stevens's reasoning to reach his landmark conclusion.

It was widely assumed that the court's Rasul decision would hinge on its reading of Johnson v. Eisentrager, a 1950 decision that denied habeas corpus review to "enemy aliens" held abroad—in this case, 21 German soldiers seized by U.S. forces in China during World War II and transferred to a U.S. prison in occupied Germany. In oral arguments, however, Stevens confounded lawyers for both parties by declaring that the Eisentrager decision didn't hold sway. It had already been overruled, Stevens advised. The guiding light in Rasul, he said, could instead be found in an obscure 1948 dissent, authored by Justice Wiley Rutledge and largely drafted by one of his law clerks—John Paul Stevens.

Thai traces the roots of Stevens' reasoning in Rasul back to his work on that earlier case, Ahrens v. Clark. Ahrens emerged from the petitions of 120 Germans detained on Ellis Island. A Supreme Court majority rejected their request for a hearing in the U.S. District Court for the District of Columbia, saying that the detainees must be present in the court's area of jurisdiction. Stevens presented Rutledge with detailed arguments supporting the detainees, which Rutledge relied on heavily in his dissent.

Two years later, when the court considered Eisentrager, it cited the majority opinion in Ahrens and concluded that the Germans weren't entitled to constitutional or statutory protections. But things have changed during the years since Eisentrager, Stevens reasoned in his Rasul opinion. A 1973 decision, Braden v. 30th Judicial Circuit, found that a prisoner did not need to be present in a court's jurisdiction to claim habeas corpus rights. This development, Stevens argued, effectively rejected the Ahrens majority and affirmed the eloquent argument that Rutledge had made in his dissent on behalf of detainees beyond the reach of the courts.

Following the thread of Ahrens through Stevens's labyrinthine reasoning in Rasul may prove useful, Thai suggests, particularly as reports emerge of more U.S. detentions in far-flung locations. Virginia Law Review, Vol. 92, Issue 3 (May 2006)

AGAINST CHAMBERS OF SECRETS

There are many plausible explanations for the popularity of the Harry Potter series. One is that author J.K. Rowling has created a world that functions entirely without lawyers. There is, however, plenty of law, as evidenced by the growing academic interest in the series, which delves into the legal norms of the Potter universe.

"Harry's story is a story about law, and about a society trying to establish a rule of law," writes Aaron Schwabach, a law professor at the Thomas Jefferson School of Law in San Diego, Calif. Schwabach is one of nine authors of the most sweeping collection of Potter legal scholarship to date: a series of essays collected under the title "Harry Potter and the Law," originally presented at a conference at the University of Gloucestershire in England and recently published by the Texas Wesleyan Law Review. Schwabach, who has written on war crimes tribunals, contributes a nuanced treatment of the laws governing dangerous curses.

The articles also explore the ways in which Potterian law might be instructive for those of us in the Muggle—that is, non-magical—world. Several writers observe that the portrayal of legal institutions in the books is overwhelmingly negative. The Ministry of Magic, for example, seems woefully incapable of doing anything to combat the series's villain, Lord Voldemort. In "Harry Potter and the Half-Crazed Bureaucracy," Benjamin Barton, an associate professor at the University of Tennessee, issues a prophecy that's bad news for secretive government agencies: Rowlings's picture of governmental incompetence is likely to produce a "substantial uptick of distrust of government" as the Harry Potter generation grows up.Texas Wesleyan Law Review, Vol. 12, Issue 1, 2005

THE FIVE STAGES OF LAW REVIEW SUBMISSION

In her 1969 book, On Death and Dying, Elisabeth Kübler-Ross classified the five stages of grief that a terminally ill patient goes through: denial, anger, bargaining, depression, and finally acceptance. In an article recently posted on the Social Science Research Network, Brannon P. Denning and Miriam A. Cherry argue that Kübler-Ross's framework for understanding dying can also explain the process of submitting an article for publication in a law review.

In a series of scenes, the authors recount the inner dialogue of a fictional professor, Patrick Denton, who has submitted an article for publication. Initially, Denton denies that silence from the law reviews he's sent his article means anything at all. But as reality sets in, Denton grows angry with a process he can't control.

From anger, a dying person's emotions will often give way to what Kübler-Ross described as "magical thinking"; a momentary emotional crest from which a person, struggling for control, feels empowered to negotiate a way out of his fate. This is the bargaining stage and it's in this moment of delusion, say Denning and Cherry, that academics think they can somehow broker a deal with law reviews that are, as a group, about as interested in negotiating as the Grim Reaper is.

Near the paper's conclusion, after a dismal round of replies from law reviews, Denton plunges into a depression. His lone acceptance notice, from a lackluster law review, forces him to question his place in the academy. The scene ends with the demoralized professor craving booze. The authors close the piece by offering their version of the popular "Serenity Prayer," recited by adherents to Alcoholics Anonymous, who seek grace and understanding through accepting that which they cannot change.

Denning and Cherry, who teach at the Cumberland School of Law at Samford University, received no offers for publication when they shopped their paper. When reached by Elsewhere, the authors acknowledged the irony of the situation, then suggested a deal for publication of the article in Legal Affairs. It wasn't clear whether the overture was a sign that they'd accepted their fate or hoped to bargain their way out of it.

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