History

New Book—Lakefront: Public Trust and Private Rights in Chicago, by Joseph D. Kearney and Thomas W. Merrill

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Post by Henry Smith I have just read and greatly enjoyed this wonderful new book by Joe Kearney and Tom Merrill about the shaping of the Chicago Lakefront. Sometimes this shaping is literal (or littoral?), because Kearney and Merrill embed a highly expert and engagingly written history of the legal controversies surrounding the Lakefront with … Read more

Book Announcement: Jennifer Rothman, The Right of Publicity: Privacy Reimagined for a Public World

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Post by Patrick Goold

Last month it was revealed that Facebook shared users’ personal information with political consulting firm, Cambridge Analytica, and that such information may have been used to influence the US 2016 presidential elections and the UK Brexit vote.  For many, this event has highlighted the need for stronger privacy laws in the twenty-first century. Jennifer Rothman, The Right of Publicity: Privacy Reimagined for a Public World (Harvard University Press, 2018) is therefore as timely as it is fun to read. In a monograph packed with illuminating re-readings of leading cases alongside engaging celebrity stories, Rothman argues that a modified right of publicity could be an important tool for protecting individuals’ privacy interests in the Information Age.

The rights of privacy and publicity are sometimes seen as opposites. Privacy protects shrinking violets who wish to avoid the public’s gaze, while publicity protects the interests of celebrities who seek out the limelight, or so it is said. Indeed, some claim that the right of publicity was created precisely because privacy law failed to adequately protect the interests of public figures. According to a common historical narrative, courts frequently rejected celebrities’ attempts to restrain the use of their names and images under privacy law.  Privacy being the last thing any celebrity really needed, judges found privacy laws to be the wrong vehicle for protecting valuable celebrity personas; and thus there existed a need for a new and separate cause of action.  

In The Right of Publicity, Rothman shows the privacy-publicity divide is often an overly simplistic and unhelpful dichotomy. To begin with, the claim that a separate right of publicity was required to protect celebrities’ interests is historically incorrect. The original right of privacy that emerged in the late nineteenth century was regularly employed by public figures (ranging from the likes of inventor Thomas Edison, sportspeople such as golfer Jack Redmond, and politicians such as J.P. Chin) to restrain unwanted publicity. Furthermore, this right was used by individuals to prevent actions that we would now consider commercial misappropriation of name and likeness. Early privacy cases restrained the non-consensual use of an artist’s photo on an advert for life insurance, the use of a famous physician’s signature on quack medicinal pastilles, and there was uproar when society woman Mary M. Hamilton Schuylyer could not use privacy laws to prevent the use of her image on a commercial for flour.  

The true story behind the right of publicity’s origin is far more interesting than the conventional one; it is also, however, far more worrisome and troubling. The right of publicity was created not to adequately protect celebrity interests, but to protect the interests of Hollywood and other big businesses. The new right of publicity enabled businesses to commodify celebrity personas.  Whereas the right of privacy was a non-transferable personal right, the right of publicity was, and remains, a transferable property right. Hollywood and others pushed for the right of publicity’s adoption because doing so enabled them to acquire exclusive rights in celebrity personas, and thus monopolize the commercial exploitation of public figures’ identities.

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HLS Private Law Workshop; Maureen Brady, From Rocks to Rods: The history and theory of metes and bounds demarcation

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Post by B. Palle, Graduate Fellow and SJD Candidate at Harvard Law School

In the most recent Private Law Workshop, Professor Maureen Brady presented her fascinating historical study of the development of metes and bounds demarcation in property law in pre-Revolution New Haven.

New England colonies mandated land recording at least from the early decades of the Seventeenth Century. But these requirements did not specify that the recording be in any standardized form. And when landowners in colonial New Haven (in the 1690’s, say) transferred land or recorded deeds, they relied on a peculiar system to demarcate boundaries: the system of metes and bounds. Under this system, landowners would demarcate boundaries by referring to geographical features such as creeks, orchards, boulders, and trees, as well as neighbors who owned adjacent parcels of land. One might suppose that such a system would impose “astronomical” information costs: the effort required in interpreting and understanding such an idiosyncratic system would seem prohibitively high. Nevertheless, the system worked well for a time. There was very little litigation over property in New Haven before 1700: Brady says that her research revealed just three such disputes. But why did the residents of New Haven (and, indeed, in New England more generally) choose to adopt such an apparently costly mode of demarcating boundaries? And how and why did such a system function so smoothly. In analyzing these questions, Brady looks beyond paper records (such as land deeds) to the social context in which the system operated.

Until the 18th Century, the residents of New Haven constituted a “small,” “homogenous” and a “cohesive” group. Within this close-knit community, residents established a set of social practices that helped them identify the boundaries of their land holdings with reasonable certainty. Brady mentions two: perambulations and land distribution programs.

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HLS Private Law Workshop; Lisa Bernstein, Revisiting the Maghribi Traders (Again)

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Post by Patrick Goold

Avner Greif’s study of Maghribi Jewish traders in the eleventh century is a seminal work in the literature on private ordering. In a couple of highly influential articles (here and here), Greif documented how this group of merchants created elaborate trading networks across the Islamic Mediterranean. Greif argued that the Maghribi formed a close-knit “coalition” that could eschew enforcement of agreements by lawsuits and the threat of liability and instead rely on reputation-based community enforcement. However, in recent years, historians of the period, including  Jessica Goldberg, as well as Jeremy Edwards and Sheilagh Ogilvie, have questioned Greif’s thesis, suggesting that there is little evidence of Maghribi traders boycotting members for misconduct, and some evidence that they relied on courts.

At this week’s HLS Private Law Workshop, Lisa Bernstein presented a draft essay that revisits this topic (Revisiting the Maghribi Traders (Again): A Social Network and Relational Contracting Perspective). Bernstein proposes to revise Greif’s analysis by swapping out the notion of “coalition” on which he relied for social network analysis and relational contract theory. While this is an alternative account of the Maghribi activities, it nonetheless supports Greif’s central thesis.

Although Maghribi merchants sometimes formed partnerships with one another, they more commonly used each other as reciprocal agents under a legally unenforceable agreement known as a Suhba. Under a Suhba, a merchant who asked his agent to perform a task (for example, travel to a foreign city to sell the merchant’s flax) would become obligated to perform a task of equal value (for example, introduce the agent to other important merchants). This system enabled the traders to diversify their trading portfolios and reach many markets across the Mediterranean without needing to travel with their goods. The center of this trading activity was Fustat, today part of Old Cairo, and it is a cache of documents in the Cairo Geniza that serve as the main historical record of the merchants’ activities.

Bernstein argues that the Maghribi traders were organized as a “semi-closed bridge and cluster network with small-world properties.” Within trading centers (cities like Fustat), most trade was conducted in the open with witnesses. Meanwhile, business and social interactions resulted in a dense network of ties that enabled reputation information to spread easily. These “network clusters” were then “bridged” by a number of social institutions and organizations. Postal routes between trading centers enabled information about reputation to flow between clusters. A handful of dominant traders also had personal and family ties spreading across a number of cities. In addition, an institutional functionary known as the “merchant’s representative” had an incentive to insure accurate information about dealings was transmitted between merchants. The merchant’s representative was a trader from a foreign city who established himself in a trade outpost. The representative’s stature in his new city depended on his ability to entice foreign merchants to do business there, which in turn depended on his ability to ensure that traders in the city kept their obligations. This structure of these bridges and clusters enabled reputational information to flow across the Islamic Mediterranean in such a way that network governance could potentially play a major role in supporting Maghribi trade.   

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HLS Private Law Workshop: Shyamkrishna Balganesh, Copyright as Legal Process

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Post by Patrick Goold

2017 marks the bicentennial of Harvard Law School. It is fitting, therefore, that the first Private Law Workshop of the semester focused on intellectual legal history and, in part, the influence of some of Harvard’s most prominent law professors. Shyamkrishna Balganesh presented his work-in-progress Copyright as Legal Process. In it, Balganesh argues that copyright underwent a “quiet metamorphosis” in the twentieth century. Under the influence of the Legal Process School of jurisprudence, copyright evolved from private law to public law. What’s more, this evolution has entailed a fundamental transformation in the conception of law at the heart of modern copyright.

From 1870 to 1950, copyright law was, according to Balganesh, normatively and structurally part of American private law. The “private law conception” of copyright crystalized during the age of Legal Formalism (or Classical Legal Thought), and was characterized by a focus on the horizontal legal relationship between the copyright owner and the copyist. The owner’s copyright was, axiomatically, an individual right; users of the protected work were duty-bound not to copy; he who copied the work wronged the owner. This right-duty relationship was largely self-justifying. Courts rarely discussed the “purpose” of copyright law; on the occasions they did, they claimed copyright’s purpose was to uphold a right-duty relationship, and that any broader social goals were merely a welcome by-product. Furthermore, the private law conception involved a particular understanding of judicial reasoning. When adjudicating copyright disputes, courts rarely appealed to policy, nor paid particular deference to the wording or history of the Copyright Act 1909. Instead, courts tended to search for established “copyright principles” (such as the idea-expression dichotomy, or the nature of authorship) and reasoned therefrom.

Perhaps surprisingly, the private law conception of copyright – according to Balganesh –  was largely maintained through the Legal Realist period. While the Realists claimed legal doctrine was indeterminate and thus were skeptical that judicial reasoning could be objective, they nevertheless valorized the judiciary (and notably a number of high-profile Realists served on the bench). Realism emphasized judicial creativity in solving cases, while simultaneously placing little faith in statutory interpretation. As a result, when adjudicating copyright disputes, courts continued to show Congress little deference, but instead trusted judicial craftsmanship to resolve the particularized problems that arose.

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Harvard Law School’s Private Law Workshop: Patricia McMahon, The Interplay Between Nineteenth Century Codes and the Fusion of Law and Equity

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Post by Patrick Goold

Codification of the common law and the fusion of law and equity were two of the most prominent law reform efforts of the nineteenth century. Legal historians have, however, rarely considered the connection between these two movements. At a recent Private Law Workshop, Patricia McMahon tried to map out the interplay between the fusion and codification movements of nineteenth century New York and England. McMahon finds that while often fusion and codification mutually supported each other, there was an inherent tension between the two goals, and this tension has continued relevance for today.

On one level, fusion was a boon to the codification movements. In New York, procedural fusion was accomplished in 1848 with the adoption of the New York Code of Civil Procedure, also known as the Field Code after its principle architect David Dudley Field. Field believed that the codification of procedure was the best way to transition from separate systems of law and equity to one single court. The success of the Field Code for legal procedure proceeded to serve as an example that codes and codification was a realistic possibility. In both New York and England, those wishing to codify the substantive common law pointed to Field’s Code as proof that codes worked!

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