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.

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.

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.

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?

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.

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.

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.