Of Coase and Comics, or, The Comedy of Copyright

Dotan Oliar and Christopher Sprigman’s There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy is one of a small number of recent case studies that supply relevant data. The major virtue of this work is that it does for the premise of Anglo-American intellectual property law what Ellickson did for Coase. It moves the discussion from theory to practice. Does intellectual property law supply incentives to produce and distribute creative goods? In some salient contexts, the answer is “no” or, at least, “not so much.” Oliar and Sprigman argue that stand-up comedians are creative and productive folks who live by a system of social norms, rather than by a system of intellectual property law.

Not only does this comic code encourage creativity, it also apparently has something to do with comedy itself. Along with an Ellicksonian tale of norm-based social ordering by a group (not an Ellicksonian close-knit group, but an identifiable loose-knit group), Oliar and Sprigman tell a related and partially Demsetzian story of the evolution of these norms. Comedy once was a commons, but social norms privatized its contents.

Here, I focus on what There’s No Free Laugh teaches other scholars. The challenge posed by Ellickson looms large. Ellickson went to Northern California looking for Coasean transactions, found something closer to the Balinese cockfight “thickly” described by Clifford Geertz, and had the humility to write up what he found: a combination of economics and culture. How might Oliar and Sprigman’s study form the basis for equally rich follow-on scholarship? The important lessons here may be partly what a thick version of law and economics can teach intellectual property law, and partly what a thick account of culture can teach law and economics.

The Impotence of Delaware’s Taxes: A Response to Barzuza’s Delaware’s Compensation

PERHAPS the most hackneyed and intractable debate in all of business law concerns the question of whether Delaware has incentives to provide an optimal corporate law, whatever that is. The world seems divided into the race-to-the-topers and the race-to-the-bottomers, with increasing amounts of scholarship piling up on both sides, none of which seems to be convincing the other side or moving policy forward in a meaningful way. When asked to respond to the latest salvo in this battle, I feared more of the same. But after reading Professor Michal Barzuza’s thought-provoking article, Delaware’s Compensation, I am convinced that there are still interesting things to be said about the optimality of the state-as-competitor-for-charters model of modern American corporate governance. I do not find Professor Barzuza’s proposal for making the franchise tax proportional to firm value convincing or necessarily desirable, but, because of the natural check provided by state competition, it is unlikely to do much harm.

Counterinsurgency, The War on Terror, And The Laws of War: A Response

As a graduate student attending George Washington University in the late sixties, I attended a debate between John Norton Moore and Richard Falk concerning both the wisdom and validity of the ongoing war in Vietnam. As John Moore rose to respond to Professor Falk’s critique of the Vietnam conflict, he uttered this very memorable line: “Dick, I disagree with but two of your points—your premise and your conclusion.” After all of these years, I can offer this same assessment regarding Ganesh Sitaraman’s article stating his perceived need for revision of the existing Law of War (LOW) in order for the United States to successfully implement a modern counterinsurgency strategy.

The premise: An ongoing “global insurgency” now represents the single most significant national security threat to the United States. Counterinsurgency has become the warfare of this age, and the current LOW cannot effectively accommodate this military reality.

The conclusion: It is essential that the international community devise two Laws of War—a conventional Law of War and a law for “counterinsurgency war.”