Letters
Government-run System Could Reward Creativity
I read with great interest "When Sharing Is a
Crime" (Spring 2004), outlining the Berkman Center conference
exploring solutions to uncompensated music sharing on the Internet.
The problem of how to incentivize the creation of intellectual property
works (such as music) while simultaneously maximizing their
dissemination to all consumers who seek them has been the subject of
debate for centuries. Today, copyright and patent protection do a fairly
decent job of providing financial motivation to creators but do a
relatively poor one of ensuring distribution to all potential users who
stand to benefit. Devices that allow music sharing accomplish the
distributional goal at the expense of diluting incentives to
musician-innovators.
As Professor William Fisher notes, a better system would be one which
accomplishes both pursuits. Analogous to his compulsory licensing scheme
would be a pure government-run reward system, under which today's
intellectual property works would be paid for by the government instead
of by the marketplace. What was formerly private intellectual property
would become public domain, freely reproducible by anyone at its
marginal cost (instead of the monopoly price that prevails under
copyright or patent). Of course, tax revenue would need to be raised to
finance the necessary rewards to induce creation but would be offset by
the corresponding substantial price decreases in what were previously
copyrighted and patented works.
HLS Professor Steve Shavell has published an interesting analysis of
such a proposal (Shavell & van Ypersele, 44 J. L. & Econ. 525,
2001), and there is also my own ("An Economic Analysis of Intellectual
Property Rights," 9 Fordham I.P., Media & Ent. L.J. 301, 1998).
Valuing the rewards would be the trickiest prong of the proposal but is
by no means an insurmountable problem, especially when weighed against
the large distributional benefits that would follow.
Steve Calandrillo '98
Seattle
Statue Not Needed to Show Clark's Contributions
Charles
Facktor's letter (Spring 2004) calls Dean Clark's record "mixed at
best." Clark was a wonderful dean. He did more than any other dean in
the history of the school to improve the quality of life of the
students. Facktor asks: "Will statues be built to honor this man?" I'd
contribute toward a statue, but I think Clark is too modest to pose for
one.
John Jay Osborn Jr. '70
San Francisco
Concerned About the Absence of Concern
The letter
from Charles Facktor touched me painfully. The dorms are plainly no
better than they were 40 years ago. Far worse for a foreign student in
1965 was the absence of concern. Devastated by the steely asceticism of
my room in my first week after arriving from England, I collapsed with a
viral illness and was effectively incommunicado. Were it not for the
curiosity of a passing colleague (who assured me that I looked like
death and irritatedly but blessedly fetched me a bowl of soup), I might
well have died. Some attempt at welfare concern (but perhaps that has
been reformed) as well as more civilized furnishings will, I hope,
spring forth from our new dean's female sensibility and humanity.
Anthony Beck LL.M. '66
London
An Early Contributor to Gay Rights Movement
This letter is prompted by your article in the
Spring 2004 issue of the Bulletin on the first reunion of GLBT alumni.
I was a co-founder of Lambda Legal Defense and Education Fund Inc.,
which came into existence in 1972-73, and I was a member of the board of
directors for the first 10 years or so.
Those were the hardest years for the gay movement. By the 1980s, gay
pride had taken hold. But in the early '70s, for example, we could not
find one lesbian lawyer to join our board.
In those early years, we did mount a challenge to the New York sodomy
law in the Court of Appeals, but mostly we represented lesbian mothers
who were in danger of losing custody of their children, and we handled a
variety of military cases.
We did not achieve a great deal in the '70s, but we existed. And our
very existence was critical to the eruption of the gay civil rights
movement in the '80s. One could say that Harvard Law School's first
contribution to the gay civil rights movement was me.
Shepherd Raimi '55
New York City
Have Times Changed for GLBT Students at HLS?
As a gay graduate of HLS ('88), I read with interest your article "Coming out
Party," describing the first-ever reunion of gay, lesbian, bisexual
and transgendered graduates. Finally, I thought, perhaps HLS is becoming
a friendly place for GLBT students.
Yet I searched the article in vain for the mention of some faculty
involvement. I am now a law professor myself, and I know that faculty
visibility is a key first step to create both an intellectual and
emotional home that is welcoming to GLBT students. When I was at HLS, it
was a time when most of us (me included) would not appear in the
yearbook for fear of negative career consequences. This was a choice the
appropriateness of which was affirmed by faculty behavior. When I and
others approached faculty we knew to be gay (because of mutual friends,
for example), the closet--and office--doors were politely but firmly
closed in our faces, with nary an acknowledgment of our shared GLBT
status.
After I read the article, I in fact went to check the list of openly
GLBT faculty published in the Association of American Law Schools
directory. To my great disappointment, HLS remains sadly behind the
curve: Despite one of the largest tenured and tenure-track faculties in
the nation, the sole tenured or tenure-track faculty member listed is
Professor Janet Halley, a 2000 hire and a national expert on sexual
harassment and sexuality law. By contrast, Yale Law School boasts twice
as many openly GLBT tenured or tenure-track faculty as Harvard.
And Yale is not unusual: I am one of three openly GLBT tenured or
tenure-track faculty at Georgia State, a relatively small law school in
the socially conservative South. In November, Georgians will likely vote
to adopt a constitutional amendment banning same-sex marriage, while
same-sex couples will have married in Massachusetts. This contrast
underlines how striking it is that HLS evidences the conservativeness it
does with respect to sexual orientation diversity.
Thus, I continue to wonder: Why is HLS so different? What is it about
HLS's institutional culture that continues to inhibit the GLBT faculty
from identifying themselves, to other colleagues and to students? And, I
further wonder, how many students continue to feel, as I did 16 years
ago, that at its foundation, HLS pays little more than lip service to
equality on the basis of sexual orientation?
Colin Crawford '88
Atlanta
On the Court, HLS Holds Firm Against Flag
Amendment
Your report on
Professor Richard Parker's testimony in favor of the Flag Protection
Amendment (Spring 2004) reminds me of the contrary role of Harvard Law
School graduates in the flag cases of Texas v. Johnson, 491 U.S. 397
(1989) and United States v. Eichman, 496 U.S. 310 (1990). In both
discussions, the four HLS graduates, across the spectrum from Scalia to
Kennedy to Blackmun to Brennan, held that flag desecration laws were
unconstitutional. As I recall, the presumed ideological confusion was
never explained in terms of a common legal education.
In those days, the Harvard bloc needed the vote of Justice Marshall.
Today we command a majority, assuming that Justice Ginsburg forgives the
school's unjustified refusal to award her a degree.
Spencer Ervin '59
Bass Harbor, Maine
Counsel Did Not Protect Free Speech Rights
The spring issue included a profile of Michael
Hess '65 that contained the following: "In the late '90s . . . as
corporation counsel for New York City, Hess restricted a Ku Klux Klan
rally and a Million Youth March that, according to him, would have
created chaos. 'But their right to speak was still protected,' he
said."
Mr. Hess' characterization of his actions with respect to the Million
Youth March is nearly the opposite of what really happened. In two
consecutive years, 1998 and 1999, Mr. Hess tried to prevent the Million
Youth March from occurring at all, and the march's organizers repeatedly
had to obtain federal court injunctions. Those courts repeatedly held
that the denials of events permits violated the First Amendment. (See
Million Youth March, Inc. v. Safir, 18 F. Supp. 2d 334, S.D.N.Y. 1998,
155 F. 3d 124, 2d Cir. 1998, finding that the city violated the First
Amendment by denying a permit for the summer 1998 event; Million Youth
March, Inc. v. Safir, 63 F. Supp. 2d 381, S.D.N.Y. 1999, finding that
again the city violated the First Amendment by denying march permit for
summer 1999 event.)
I worked on the 1998 case as a volunteer for the New York Civil
Liberties Union and remember well Mr. Hess' high-volume, virtually
screaming, oratory in the courtroom. Such antics bore no relation to his
present effort to portray himself as a wise elder statesman of the law
who, in his profile, offered such bromides as "it's very important for a
lawyer to remain very rational and stay calm."
This history is too recent and too well-documented for Mr. Hess to
re-characterize himself as a champion of the Constitution rather than
just another bureaucrat who violated the First Amendment rights of those
disliked by his political patron.
Scott Moss '98
New York City
How Could Women Students Not Have Faced
Discrimination?
I was amazed by Richard Schnadig's letter to
the editor in the Spring edition of the Bulletin, where he claimed
that women in his class did not face any difference in treatment based
on their sex.
Mr. Schnadig cannot possibly believe that HLS existed within some sort
of feminist utopian bubble (and it is hard to imagine that such a
feminist utopia can exist when the professors are all or nearly all
male).
Mr. Schnadig graduated from HLS in 1964, a mere ten years after HLS had
agreed to admit women. Before 1964, there was no federal law
prohibiting sex
discrimination, and newspaper ads for jobs were segregated by gender.
The Supreme Court had held that a woman could be constitutionally denied
a law
license, prohibited from working as a bartender unless the bar was owned
by her husband or father, and in 1961 had upheld a statute automatically
placing men on juror rolls, but placing only those women who had asked
to be included on the rolls. Much sex specific legislation was still in
effect In 1959, Justice Ruth Bader Ginsburg graduated in the top of her
class, was unable to find a job at a law firm in New York, and was told
that Justice Frankfurter said he would not hire her because she was a
woman. In 1977, the first female president of the HLS law review, Susan
Estrich, was told by Judge Skelley Wright that Justice Brennan did not
want to hire her because she was a woman. To claim that female HLS
students did not face discrimination is simply ridiculous.
Catherine Caporusso '95
Arlington Heights, IL
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