Tiered Originality and the Dualism of Copyright Incentives

In a well argued and thought-provoking new article, Gideon Parchomovsky and Alex Stein attempt to give copyright’s requirement of originality real meaning, by connecting it to the system’s avowed institutional goals. To this end, they focus on disaggregating originality into three tiers and providing creative works within each tier with a different set of rights and liabilities. Parchomovsky and Stein are indeed correct to lament the meaninglessness of originality under current copyright doctrine. Yet their proposal does not quite fully explore the incentive effects of differentiated originality, especially as between upstream and downstream creators. Nor does it tell us why some of copyright’s more recent innovations are not the right place to give effect to their ideas and principles. In this Response, I examine how their refashioned originality doctrine might fit within copyright’s incentive structure, and in the process ask whether there might be better ways of integrating it into the institution’s existing common law structure.

The Networked—Yet Still Hierarchical—Family

Melissa Murray’s article The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers exposes a reality of contemporary family life that family law had relegated to the invisible, parents’ reliance on networks of caregiving, both paid and unpaid. In doing so, The Networked Family makes several significant contributions to family law scholarship.

First, the article advances family law’s ongoing project of becoming responsive to the ways that families live their lives, regardless of formal rules. Murray achieves this objective by challenging the traditional understanding of parenthood as an indivisible, comprehensive, and exclusive status and focusing instead on the way parents often rely on nonparents in caring for children. Second, The Networked Family seeks to confer value on caregiving by acknowledging its important role and calling for greater official recognition—wherever such recognition might lead. Accordingly, the article has implications for how family law might treat even caregiving provided directly by parents. Third, Murray’s analysis joins that of other family law scholars who question family law’s existing boundaries and thereby suggest that fertile ground for much-needed reforms might lie beyond where conventional conceptualizations of the field end. In looking past family law’s usual cast of characters and urging inclusion of nonparental caregivers, The Networked Family helps reveal the implicit value judgments and assumptions that account for the contemporary construction of family law itself. These are all welcome and meaningful insights.

Although Murray consequently provides several worthwhile points of departure, this brief response attempts to follow just one strand, the possible implications of her analysis for certain inequalities and hierarchies that long have characterized family law. Here, I consider what Murray’s call for recognition of caregiving networks might mean, first, for the traditional gender stereotypes that family law once embraced but now professes to reject and, then, for the issues of race and class that family law all too routinely ignores. To be sure, at points Murray acknowledges these variables—for example, in noting the promise of one theoretical approach that she considers, dismantling the notion of legal parenthood altogether. My response takes a closer look at caregiving and hierarchies of gender, color, and class.

Warming Up to Climate Change Litigation

There was never any doubt that Massachusetts v. Environmental Protection Agency (“Mass. v. EPA”) would be a closely watched and hotly contested case. Nor was there much question that Justice Anthony Kennedy would provide the pivotal swing vote. On many of the issues before the Court, the remaining justices were sure to be evenly divided. Justice Kennedy has shown an uncanny ability to find himself in the majority in close cases—environmental cases in particular —and this would be no exception.

The surprise in Mass. v. EPA is the facility and ease with which the Court dispatched opposing arguments and redefined prior precedents. Not content to widen doctrines on the margins, Justice Stevens’s majority opinion blazed a new path through the law of standing and unearthed newfound regulatory authority for the EPA. Under the Court’s new interpretation, the Clean Air Act (“CAA” or “the Act”) provides EPA with roving authority, if not responsibility, to regulate any substance capable of causing or contributing to environmental harm in the atmosphere.

The federal government did much to facilitate this course. At least since Clinton EPA General Counsel Jonathan Cannon first suggested EPA’s preexisting regulatory authority could reach greenhouse gases, various agencies laid the groundwork for the eventual regulation of greenhouse gases. Even during the second Bush Administration, EPA has been anything but a reluctant regulator, and as such the present administration was not the most compelling advocate for its own cause.

Now that EPA has authority to regulate greenhouse gases, regulatory controls on motor vehicles (as well as on other sources of greenhouse gases, including utilities and industrial facilities) are sure to follow. In time, however, Mass. v. EPA may come to stand for more than the simple proposition that Congress delegated authority to regulate greenhouse gases under the CAA. It may herald in a new era of state-sponsored litigation, environmental standing, and statutory interpretation—and yet still do little to cool down a warming planet.