Ipse Dixit

In this episode, Ronald J. Colombo, Professor of Law and Associate Dean for Distance Education at the Maurice A. Deane School of Law at Hofstra University, discusses his 2013 article "The Naked Private Square," which appeared in the Houston Law Review, as well as his recent scholarship on the right of business corporations to assert religious rights under the First Amendment. Colombo observes that charitable corporations largely uncontroversially assert free exercise and freedom of association claims, and argues that business corporations should be able to assert similar rights. Among other things, he points out that business corporations can and do express beliefs in much the same way as charitable organizations, and nothing prevents them from adopting religious purposes. Colombo suggests that a business corporation's claim to religious liberty should be decided on a fact-specific and context sensitive basis. He also reflects on the Supreme Court recent decisions in Hobby Lobby and Masterpiece Cakeshop, and considers where the Court is likely to go next.

Keywords: Free Exercise, Citizens United, Expressive Association, Religious Corporation, First Amendment, Benefit Corporation, B Corporation, Corporate Rights

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The Homicide Squad is a special segment of Ipse Dixit devoted to murder ballads, those delightfully grisly folk songs that tell stories about the ultimate sin.

Most murder ballads are based on true stories, more or less. And many of those true stories took place in Appalachia.

Each episode of the Homicide Squad will focus on a different murder ballad. I will explain the true story behind the song, when it has survived. And I will explore how the song has evolved over time, sharing several different versions to illustrate different interpretations.

The subject of this first episode is one of my very favorite murder ballads, The Banks of the Ohio.

Tracks:

1. Red Patterson's Piedmont Log Rollers, Down on the Banks of the Ohio (1927).
2. Bascom Lamar Lunsford, Banks of the Ohio (1953).
3. Blue Sky Boys, Down on the Banks of the Ohio (1936).
4. Irene and Ellen Kossoy, The Banks of the Ohio (1956).
5. Joan Baez, Banks of the Ohio (1961).
6. Clarence Ashley (with Fred Price on fiddle, Clint Howard, and Doc Watson), Banks of the Ohio (1961).
7. Kristen Hersh, Banks of the Ohio (1998).
8. Dolly Parton, Banks of the Ohio (2014).
9. Vandaveer, Banks of the Ohio (2013).

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In this episode, Bridget J. Crawford, James D. Hopkins Professor of Law at Pace University School of Law, and Emily Gold Waldman, Professor of Law and Associate Dean for Faculty Development & Strategic Planning at Pace University School of Law, discuss their article "The Unconstitutional Tampon Tax," which will appear in the University of Richmond Law Review. Crawford and Waldman observe that many states exempt "necessities" from sales tax, but do not exempt menstrual hygiene products, which puts a significant financial burden on women, especially low-income women. They argue that burden is unconstitutional, because a tax on menstrual hygiene products is a de facto tax on women. And they explain how opposition to "tampon taxes" relates to current movements to secure women's rights. Crawford is on Twitter at @ProfBCrawford and Waldman is on Twitter at @egwaldman.

Keywords: Equal Protection, Gender, Sex, Discrimination, Menstrual Hygiene, Tax, Taxation, Sales Tax, Tampons

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On Sunday, February 5, 1984, Judge Stephen G. Breyer of the United States Court of Appeals for the First Circuit addressed the Congressional Copyright and Technology Symposium, making five points about copyright law and policy. A transcript of his address is available here. Among other things, Breyer reflected on his influential article, "The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs" (1970), which he wrote as a law professor, as the Copyright Office was considering what became the Copyright Act of 1976. Breyer discussed the economic and moral justifications for copyright, the application of the economic justification, why it should apply differently in different contexts, how new technology requires rethinking of the scope of copyright protection, and why we should be wary of extending too much protection. In 1994, Breyer was appointed to the United States Supreme Court, where he has been the key dissenter in many copyright cases.

Also of interest in relation to this speech might be:

• Barbara A. Ringer, The Demonology of Copyright, October 24, 1974.
• Stephen G. Breyer, The Uneasy Case for Copyright: A Look Back Across Four Decades, 79 Geo. Wash. L. Rev. 1635 (2011).
• Pamela Samuelson, The Uneasy Case for Software Copyrights Revisited, 79 Geo. Wash. L. Rev. 1746 (2010).

I found Breyer's address especially interesting because of his brief and oblique reference to the story of St. Columcille and the "Battle of the Book," in which he references High King Diarmed's ruling, "To every cow its calf; to every book it's copy," as the origin of the moral theory of copyright. This observation reappears in Breyer's dissent in Golan v. Holder, 132 S. Ct. 873, 902 (2012). Breyer understandably relies on Augustine Birrell's 1889 account of the Columcille legend. A. Birrell, Seven Lectures on the Law and History of Copyright in Books 42 (1899). But in a forthcoming article, I will argue that the treatment of the "Battle of the Book" as the "first copyright litigation" reflects only a misunderstanding of what was intended as an allegorical claim to political legitimacy by a 16th century Irish king.

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In this episode, Irina D. Manta, Associate Dean for Research and Faculty Development, Professor of Law, and Founding Director of the Center for Intellectual Property Law at Maurice A. Deane School of Law at Hofstra University, discusses her provocative article "Tinder Lies," which will appear in Wake Forest Law Review. Manta observes that today most people use dating apps and websites to find prospective romantic partners, which makes it much easier to meet people, but also increases their vulnerability to misleading information. She observes that people often make false or misleading claims on their dating profiles, some of which are relatively innocuous, like their height or weight, but others of which may be much more serious, like their marital status. This may impose significant emotional and personal costs on people who are misled. Typically, courts do not permit civil actions for fraud in the dating context. But Manta argues that we should create a cause of action that can be enforced in small claims court. Manta is on Twitter at @irina_manta.

Keywords: Legal Recovery, fraud, trademark law, small claims, misrepresentation, sexual law

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In 1979, Magnus Records released a documentary record of the National March on Washington for Lesbian and Gay Rights and the Gay Freedom Train, created by Jok Church and Adam Ciesielski, offering the following description of the record:

The featured speakers from the March on Washington are: Robin Tyler, Steve Ault, Tom Robinson, Lucia Valeska, Allen Ginsberg, Arlie Scott, Richard Ashworth, Florynce Kennedy, Mary Watkins, and Kate Millet. The Gay Freedom Train features speeches by Rev. Troy Perry and Robin Tyler.

The record also lists the "Five Demands" of the March on Washington:

1. Pass a comprehensive lesbian/gay rights bill in Congress
2. Issue a presidential executive order banning discrimination based on sexual orientation in the Federal Government, the military and federally-contracted private employment
3. Repeal all anti-lesbian/gay laws
4. End discrimination in lesbian mother and gay father custody disputes
5. Protect lesbian and gay youth from any laws which are used to discriminate against, oppress and/or harass them in their homes, schools, jobs and social environments

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In this episode, Andrew Selbst, a Postdoctoral Scholar at Data & Society Research Institute and Visiting Fellow at the Yale Information Society Project, discusses his article "The Intuitive Appeal of Explainable Machines" (co-authored with Solon Barocas, Assistant Professor in the Department of Information Science at Cornell University), which will appear in the Fordham Law Review. Selbst begins by framing the promise and peril of algorithmic decisionmaking. Among other things, he explains how algorithmic decisionmaking works and describes the current debate over how to regulate it. In particular, he notes that many regulatory proposals focus on requiring the explanations of how an algorithm works. But he and Barocas argue that regulators should also require justifications for the construction of those algorithms, and propose some ways in which those justifications could be provided.

Keywords: algorithmic accountability, explanations, law and technology, machine learning, big data, privacy, discrimination

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In this episode, Nicole Pottinger, a third-year law student at the University of Kentucky and summer intern at the United States Copyright Office, discusses her experiences at the Copyright Office, the mechanics of copyright registration, and our co-authored paper "Registration is Fundamental." Among other things, Pottinger explains what happens at the Copyright Office and why authors should consider registering their works of authorship. She also discusses the pending United States Supreme Court case Fourth Estate Public Benefit Corp. v. Wall-Street.com, how it could affect copyright registration, and why we concluded that copyright registration is important to the copyright system. You can also read Pottinger's summary of the case here. Pottinger is on Twitter at @nicolepottinger.

Keywords: copyright, copyright office, copyright registration, supreme court, SCOTUS

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In this episode, Laura I. Appleman, Van Winkle Melton Professor of Law at Willamette University College of Law, discusses her article "Deviancy, Dependency, and Disability: The Forgotten History of Eugenics and Mass Incarceration," which will appear in the Duke Law Journal. Appleman explains the history of the concept of "disability" and how it has often led to incarceration, at one time in asylums and today in penitentiaries. Among other things, she describes how the concept of disability has changed over time, and how those changes have intersected with ideological, political, and policy shifts. And she discusses how disability, primarily in the form of mental illness, plays a critical role in contemporary mass incarceration. She also makes suggestions for reform, focused on rehabilitation, rather than punishment. Appleman is on Twitter at @lawandlitprof.

Keywords: mass incarceration, institutionalization, eugenics, carceral state, disabled

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In 1961, the Union Oil Company of California produced an album titled "The Living Constitution of the United States." The album consists primarily of a recitation of the text of the Constitution of the United States by four men, respectively representing a northerner, an easterner, a southerner, and a westerner. A narrator also provides some explanatory context. Of course, it is accompanied by a "patriotic" score. The "technical consultant" on the album was Professor Arvo Van Alstyne of the University of California at Los Angeles Law School. As the producers of the album explained:

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