Why We Fight

united_we_win31I often wonder why it is that some people disagree with my political views.  My logic is unassailable, the breadth of my historical knowledge is unmatched, my moral foundation cannot be questioned, and I am far more charming and better looking than my opponents.  Why don’t they agree with me?

My summer project was to seek an answer to this mystery.  I chose three books to read that I thought would provide some insight into the ideological fault lines that seem to run through every facet of our daily lives (and indeed seem to run through this very blog).  What follows are the lessons that I have learned.  I suppose other readers might draw different lessons.  My recommendation is that you read these books for yourself.

My first goal was to understand why the “big government” charge persistently leveled by Republicans against the Obama Administration seems to resonate with some people, but not with others.  Some clues are provided by Gary Wills in A Necessary Evil: A History of American Distrust of Government.  Writing some ten years ago, Wills documents the origin and growth of the arguments against “big government” and in favor of individualism and local control over the course of our nation’s history.  Over time, he argues, these disparate strands of thought have coalesced into a more general anti-government creed.  The specifics of this creed – the belief that amateur, local and voluntary conduct creates greater public well being than professional, centralized, and mandatory regulation — resembles the political philosophy currently espoused by many of President Obama’s critics.

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Thoughts on Yeager: Role of Appellate Judges, Special Verdict Forms, and the Significance of a Hung Jury

enronLast week, in Yeager v. United States, the Supreme Court resolved a longstanding tension between two aspects of Double Jeopardy law: the collateral estoppel doctrine, which precludes relitigation of issues previously found in the defendant’s favor, and the hung jury rule, which permits relitigation of charges as to which a jury cannot reach agreement.

Yeager, an Enron employee, was charged with multiple counts of fraud and insider trading.  The counts were factually linked: Yeager’s alleged fraud was that he knowingly participated in making false statements to investors regarding the performance of a new Enron project, while his alleged insider information was his knowledge that the project was not actually going so well.  At trial, the jury acquitted Yeager of fraud, but hung on insider trading.  A long line of Supreme Court cases permits retrial when the jury hangs, and the government indeed sought to take advantage of this Double Jeopardy exception by recharging Yeager with insider trading.

Yeager nonetheless presented a Double Jeopardy defense, invoking the collateral estoppel rule of Ashe v. Swenson.  In Yeager’s view, the first jury necessarily determined that the government failed to prove he knew the falsity of the statements made to investors.  If he did not know about the gap between what investors were told and the actual state of affairs, then the government’s insider trading theory would collapse.  In the government’s view, however, the first jury might have acquitted instead based on doubt about whether Yeager actually participated in making the false statements; uncertainty about what the jury actually decided in its acquittal would preclude application of Ashe.  The district court agreed with the government’s view, but the Fifth Circuit reversed.  The Supreme Court then affirmed, holding that application of the collateral estoppel doctrine was not affected by the seeming inconsistency in the jury’s treatment of the fraud and insider trading counts.

Besides its holding, three aspects of Yeager strike me as worthy of note. 

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$1.92 Million Damage Award for Filesharing

Musical Notes$1,920,000 for filesharing. As reported by the L.A. Times, Ars Technica, and Ben Sheffner, that’s what a jury in Minnesota just awarded several record labels for the willful infringement of their recordings by Jammie Thomas (now Jammie Thomas-Rasset), the Minnesota woman who allegedly downloaded and uploaded copyrighted songs over KaZaA. $1.92 million is an astounding figure, seemingly out of all proportion to any harm Jammie Thomas-Rasset could have caused, or to any reasonable deterrent. Even the record labels appear to be backing away from the award; nearly the first words out of spokesperson Carla Duckworth’s mouth were that they remain “willing to settle.” Ben Sheffner, of the Copyright & Campaigns blog, correctly notes that the verdict might in fact be “too huge” for the recording industry’s own good.

This is hardly a new issue. Record companies and movie studios often sue filesharers for far fewer works than the defendant actually copied, and settle for relatively small amounts given the range of statutory damages. It’s a problem if the law that media companies use to protect their works is so draconian that they are afraid to deploy it to their full advantage. You don’t see this in other areas of the law; no one routinely files breach of contract actions for one-tenth of their expectation damages just to avoid the appearance of a windfall.

So what’s the source of the problem? I think the explanation is the massive inertia of the copyright system in dealing with the fundamental alteration of the information universe: namely, that everyone is now a publisher. And, while it’s easy to scoff at the existing situation, it’s harder than most people think to figure out how to fix it. Which is why we are where we are.

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