Caufield Meets Quixote

p003Last Thursday, a brief was filed with the United States Court of Appeals for the Second Circuit in the case of Salinger v. Colting.  This lawsuit, alleging breach of copyright, has received a great deal of attention because the plaintiff is the reclusive author J.D. Salinger.  He sued Swedish author Fredrik Colting in New York over the latter’s book 60 Years Later: Coming Through the Rye, a novel in which one character is a 76 year old Holden Caufield.  United States District Judge Deborah Batts rejected Colting’s argument that his use of the Holden Caufield character constituted a critical commentary on the Salinger novel The Catcher in the Rye, and therefore fell within the “fair use” exception to copyright infringement.  She granted Salinger’s request for a preliminary injunction preventing the publication of the work in the United States.  Salinger’s lawyers filed a brief asking the Second Circuit to uphold Judge Batts’ order on August 13.

Some observers of the case have focused on its unusual grant of the plaintiff’s request for an injunction — this is a rare instance of U.S. law allowing a prior restraint on publication.  Other observers have debated the intersection of First Amendment rights and copyright protections implicated by the lawsuit.  In contrast, when I heard about the case, my thoughts turned to Don Quixote.

Continue ReadingCaufield Meets Quixote

Regulation and the Second Law of Thermodynamics

stephen_hawkingAt first blush, one would not think that Barney Frank and Stephen Hawking would have anything in common.  The first is the Chairman of the House Financial Services Committee, and is currently conducting hearings on the regulatory reform of the financial markets.  The second is the noted University of Cambridge professor of theoretical physics and the author of the best selling book A Brief History of Time.

 However, in my mind both men are associated with the Second Law of Thermodynamics.  This law of physics states that the entropy of an isolated system always increases over time.  Stephen Hawking described it in more comprehensible terms in A Brief History of Time:

It is a common experience that disorder will increase if things are left to themselves.  . . .  In any closed system disorder, or entropy, always increases with time.

 Therefore, when I think of Hawking, I think of someone who can explain the Second Law of Thermodynamics.  When I think of Barney Frank, I think of someone who is desperately trying to avoid its operation.

I would contend that all forms of market regulation follow the Second Law of Thermodynamics.  In each case, a comprehensive statutory scheme is enacted as law, it imposes a closed system of rules on market actors, and over time the scheme inexorably breaks down.  Federal securities regulation, which began with the Securities Act of 1933 and the Securities Exchange Act of 1934, provides the perfect case history of this principle in action.

Continue ReadingRegulation and the Second Law of Thermodynamics

The Umpire, the Wise Latina, and the Cabinetmaker

scraper_oblique_rearThe confirmation hearings for Judge Sonia Sotomayor are over, and the reviews have been overwhelmingly negative.  The public tuned in expecting a discussion of the nominee’s qualifications and a debate on the role of the Supreme Court in our constitutional system.  What they got, instead, was a battle of metaphors.

Republican Senators on the Judiciary Committee compared the ideal Supreme Court justice to a baseball umpire.  An umpire confines himself to calling balls and strikes without allowing his preference for one team or the other to influence the performance of his duties.  The umpire metaphor is designed to support the view that judges apply the law objectively and even handedly.

While the umpire metaphor expresses a commendable aspiration, one can’t help but wonder whether this is an attainable goal. 

Continue ReadingThe Umpire, the Wise Latina, and the Cabinetmaker