Two Models of Sociolegal Change

My article, Constitutional Safety Valve: The Privileges or Immunities Clause and Status Regimes in a Federalist System (previously mentioned here and commented on here), is finally out in the current issue of the Alabama Law Review. (Pre-publication version here.) This article represents the end point of a fairly long process that began with a seminar paper in law school. In 1996, I was impressed with the tenor of the debate in Congress over the Defense of Marriage Act; there were several statements to the effect that failing to wall off the status of legally married same-sex couples would lead to the downfall of society. It reminded me strongly of the rhetoric in Dred Scott that recognition of Scott’s citizenship would have calamitous effects. As I dug into it, I found even stronger parallels in antebellum debates in Congress over travelling black Northern citizens in Southern states, and the extension of slavery to the territories. Congress seemed, then as now, appeared alarmed at the prospect of a state-recognized social status to destabilize the societies of states that didn’t recognize that status, merely by virtue of individuals with that status travelling.

The antebellum debates were ultimately resolved by the Fourteenth Amendment, and in particular the Privileges or Immunities Clause. So I wrote a paper about how the Privileges or Immunities Clause had a forgotten purpose that would mediate an entrenched conflict between states over an inconsistently codified sociolegal status. Of course, that argument will have the most contemporary relevance if such a conflict in fact develops. But it’s not at all clear that we are heading that way. There’s another model of sociolegal change when it comes to anxiety over travellers bearing destabilizing statuses: divorce.

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What’s Your Favorite Legal Quotation?

It’s time for another in our semi-regular series of questions posed to Marquette Law faculty: What’s your favorite legal quotation? I’ll go first. There are a number of quotations that I could choose from, from cases (“The common law is not a brooding omnipresence in the sky”), apocryphal anecdotes (“Your honor, ten dollars wouldn’t pay for half the contempt I have for this court!”), or law review articles (“There are two things wrong with almost all legal writing. One is its style. The other is its content.”).

But my favorite, the one I quote more often than any other to students, clients, and anyone else who will listen, is not attributable so far as I know to any particular source. I heard it first from a partner I worked for, but I have since run across it in multiple other venues. It’s about litigation in court, and it goes something like this:

The most rock-solid, knock-down, absolutely sure-fire legal argument you can imagine has about an 85% chance of success.

I like this quotation because it pithily illustrates the dangers of over-confidence in litigation. There are at least two ways an assessment of one’s chances of success can go wrong.

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The Persistence of Legal Error

When I was in my first semester of law school, I was given a short memo assignment involving some principle of Connecticut contract law. I quickly found a case stating the relevant rule of law—every contract needs consideration, or something. But it quoted an earlier case. Being a good historian, I knew I couldn’t just use the more recent case—I had to track this down to its source. So I looked up the earlier case. But that in turn cited an even earlier one for the same rule. So I looked up that one. After about nine or ten iterations of this, I was in the 18th century, and courts were still citing earlier cases, now from English reporters that I couldn’t look up as easily. I gave up, and concluded that legal authority worked differently than historical authority—if an earlier court said it, that’s good enough, no matter where it originated or what the original context was.

The upside of this is that rules can get transmitted from case to case much more efficiently. The downside is that errors can spread just as easily. Take the idea from copyright law that contributory infringement liability is derived from the tort law concept of enterprise liability. This explanation is widespread in the case law. See, e.g., Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 794-95 (9th Cir. 2007); Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996); Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1293 (D. Utah 1999); Polygram Int’l Pub., Inc. v. Nevada/TIG, Inc., 855 F. Supp. 1314, 1320 (D. Mass. 1994). It’s also featured in the influential Nimmer treatise: “A separate avenue for third-party liability in the copyright sphere is contributory infringement, which forms an outgrowth of the tort concept of enterprise liability,” Nimmer § 12.04[A][3]. And, it’s taught in law schools. The textbook I used to teach copyrights from 2007 through last year used to have only a one-paragraph introduction to secondary liability, followed by cases such as Fonovisa, which included the “enterprise liability” explanation. So, I dutifully repeated it to my students in both copyright and Internet Law, even though I was not really sure what “enterprise liability” was.

It turns out that it is flat wrong. Contributory infringement liability has nothing whatsoever to do with enterprise liability.

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