Professor James Boyle, Duke Law School, Science & Towerview, Durham NC 27708.  (ph.) 919 613-7287 (fax) 919-668-0995. e-mail++boyle@law.duke.edu++

Recent Articles: What the Squabbles over Genetic Patents Could Teach Us Advances in Genetics 2003| The Second Enclosure Movement Law & Contemporary Problems 2003 |  Fencing Off Ideas Daedalus Intellectual Property Issue Spring 2002 13 | The First Amendment and Cyberspace: The Clinton Years 63 Law and Contemporary Problems 337 (2000) |Cruel, Mean or Lavish?: Economic Analysis, Price Discrimination and Digital Intellectual Property 536 Vanderbilt Law Review 2007 (2000) | A Non-Delegation Doctrine for the Digital Age 50 Duke L. J. 5 (2000) | Missing the Point on Microsoft Salon (April 2000) | Conservatives and Intellectual Property 1 Engage 83 (2000) |Britney Spears & Online Music Financial Times (May 2000) |Whigs and Hackers Financial Times (Feb 2001)

James Boyle  is William Neal Reynolds Professor of Law and co-founder of the Center for the Study of the Public Domain at Duke Law School.  He joined the faculty in July 2000.    He has also taught at American University, Yale, Harvard, and the University of Pennsylvania Law School.  He is the editor of Critical Legal Studies (Dartmouth/NYU Press (1994), special editor of Collected Papers on the Public Domain (Duke: L&CP 2003) and author of Shamans, Software and Spleens: Law and Construction of the Information Society (Harvard University Press 1996). He is the winner of the 2003 World Technology Award for Law  for his work on the "intellectual ecology" of the public domain, and on the "second enclosure movement" that threatens it; (a disappointing amount of which was foretold in his 1996 New York Times article on the subject.)  Professor Boyle writes on legal and social theory, on issues ranging from political correctness to constitutional interpretation and from the social contract to the authorship debate in law and literature.   Most recently his work has focused on the information age. He is currently working on a book about the Public Domain.  His recent essays include discussion of the "Opposite of Property," First Amendment implications of Clinton-era intellectual property policy as it affects the Internet, the economic rhetoric of price discrimination in digital commerce, and the administrative and constitutional restraints on Internet governance. His shorter pieces include Missing the Point on Microsoft,  which appeared in Salon, an article on Gnutella, Napster and online music in the Financial Times, and Conservatives and Intellectual Property, a speech to the National Federalist Society. His book reviews on social theory and the environment,  the naturalistic fallacy in environmentalism, and on  competing approaches to copyright have appeared in the Times Literary Supplement.  Professor Boyle teaches Intellectual Property, the Constitution in Cyberspace, Law and Literature, Jurisprudence and Torts.  He is one of the founding Board Members of Creative Commons, which is working to facilitate the free availability of art, scholarship, and cultural materials by developing innovative, machine-readable licenses that individuals and institutions can attach to their work, and of Science Commons, which aims to expand the Creative Commons mission into the realm of scientific and technical data. He is also a member of the academic advisory boards of the Electronic Privacy and Information Center, the Connexions open-source courseware project, and of Public Knowledge. He recently started writing as an online columnist for the Financial Times' New Economy Policy Forum.

Some Recent Papers:
Law and the Information Society

The Second Enclosure Movement and the Construction of the Public Domain 66 Law and Contemporary Problems 33 (2003)
"We are in the middle of a second enclosure movement. It sounds grandiloquent to call it “the enclosure of the intangible commons of the mind,” but in a very real sense that is just what it is... True, the new state-created property rights  may be “intellectual” rather than “real,” but once again things that were formerly thought of as either common property or uncommodifiable are being covered with new, or newly extended, property rights....In the second half of this article, I offer an historical sketch of various types of skepticism about intellectual property, from the anti-monopolist criticisms of the Framers of the U.S. Constitution, through the emergence of affirmative arguments for the public domain, to the use of the language of the commons to defend the possibility of distributed methods of non-proprietary production. In many ways, it turns out, concepts of the public domain show the same variation in assumptions, and the same analytic differences, as the concept of property itself. I conclude by arguing that, for a number of reasons, the appropriate model for the change in thinking which I argue for comes from the history of the environmental movement."
 

The Opposite of Property:  Symposium Foreword   66 Law and Contemporary Problems 1 (2003) The terms “public domain” and “commons” are used widely, enthusiastically, and inconsistently.  In the context of innovation policy, they are generally used to refer to the “outside” or the “opposite” of intellectual property, in two broad ways— each with a number of sub-varieties. The most useful way to understand these terms and the ways they are used, I believe, is in relationship to the implicit fear or concern about intellectual property that each attempts to alleviate and the implicit ideal of the information ecology that each attempts to instantiate. For example, we might have as our principal concern that intellectual property rights raise the cost of access to some informational resource, with the public domain correspondingly a realm of costless access traced tightly around the limits, in duration, extent, and scope, of the minimum intellectual property rights necessary to provide incentives. Alternatively, our concerns might center not on price but on single-entity control—choke points on innovation created by intellectual property rights, particularly when those are in the hands of an entity controlling a vital resource, such as a dominant operating system, or a fundamental genetic technology with no easy “work arounds.” We might believe that intellectual property rights themselves could, in certain conditions, be used to create a distributed, decentralized and non-commodified form of innovation that was both efficient and democratically desirable. Here, the emphasis is not on whether there is control, but on the type of control exercised...If the papers in this collection can spur us to look at the opposite of property with the same historical care, analytical precision, and occasional utopian romanticism that we display when looking at property, they will have accomplished all that we could have hoped.

The First Amendment and Cyberspace: The Clinton Years 63 Law and Contemporary Problems 337 (2000) "Certain particular features of cyberspace in general, and of the Clinton Administration's "plan" for cyberspace in particular, are likely to force the courts to confront a series of tensions and omissions in First Amendment doctrine. Admittedly, the Clinton Administration's role of "making" free speech law in some of these cases is similar to the Nixon Administration's role in "making" law on executive privilege, another area in which the current Administration has excelled. However, both in terms of speech regulation and in terms of providing raw material for the legal controversies that shape the law of the First Amendment, the Clinton Administration's legacy is considerable, and nowhere more than in cyberspace....

Cruel, Mean or Lavish?: Economic Analysis, Price Discrimination and Digital Intellectual Property 536 Vanderbilt Law Review 2007 (2000) "The question I wish to study could be put crudely like this: will the economic analysis of price discrimination provide the new economic rhetoric to justify the next stage of intellectual property expansionism in the United States? Over the last twenty years, there has been an enormous extension of intellectual property; a far-ranging enclosure movement over the public domain, paralleling the eighteenth century's enclosure of common lands. Intellectual property rights have been broadened to cover more subjects, deepened to cover them for a longer time, widened to cover them in more ways. Current law is actually nibbling at the two areas that supposedly could never be owned, facts and ideas respectively. Given the inventiveness of the lawyers and lobbyists for the holders of intellectual property, this may seem like an unwise challenge to issue, but at a certain point they will run out of commons to enclose. Alexander is reported to have wept when he found had no new worlds to conquer. Jack Valenti and Hilary Rosen are unlikely to do the same. Where will they turn when they run out of new areas to commodify and how will they justify themselves to policy makers and to the public?......The plan is fairly easy to work out. After claiming new, larger and longer intellectual property rights, the next step is to engage in much more fine-grained regulation of how that intellectual property can be used. Owners of content will rely on shrinkwrap contracts and technological restraints to strip users of the standard rights offered by intellectual property systems: the right of fair use, first sale and so forth. Software, music, e-texts, and movies will be licensed rather than sold to users. As a result, some of the privileges people take for granted with a book -- the ability to lend it, resell it, criticize it, parody it and so on -- will be explicitly waived by contract. Technological encryption and watermarking schemes will be used to tie digital objects to particular people and computers, so that there are physical as well as legal restraints on their use of those objects. These schemes will prevent (or at least hamper) not only black market "piracy" of intellectual property, but "gray market" resale, non-market gift or loan transactions and competitive attempts at decompilation and reverse engineering. And this project of controlling users in the "after-market" receives at least a superficial justification from the economics of price discrimination.....

A Non-Delegation Doctrine for the Digital Age 50 Duke L. J. 5 (2000) "Internet policy has been dominated by classical liberal and neo-liberal rhetoric, both inside and outside the law. Admiring (and rather formalistic) discussions of the role of property, contract, and private choice in creating digital space have often seemed to hearken back to classical legal thought. The job of the state was to define rights (expansively), allow contracts of adhesion, and then get out of the picture, secure in the knowledge that it was not regulating. Professor Julie Cohen went so far as to label the tendency "Lochner in Cyberspace." How ironic it would be if this revival of classical legal thought, this exaltation of private ordering, were to be checked in some small part by a version of the nondelegation doctrine -- which in its day was deployed to protect the classical legal scheme against the advent of the New Deal. The weapons used to hold back the advent of the administrative state might be turned to its contemporary defense. Not Lochner, but Carter in cyberspace....

Foucault in Cyberspace: Surveillance, Sovereignty and Hard-Wired Censors -- .This is an essay about law in cyberspace. I focus on three interdependent phenomena: a set of political and legal assumptions that I call the jurisprudence of digital libertarianism, a separate but related set of beliefs about the state's supposed inability to regulate the Internet, and a preference for technological solutions to hard legal issues on-line. I make the familiar criticism that digital libertarianism is inadequate because of its blindness towards the effects of private power, and the less familiar claim that digital libertarianism is also surprisingly blind to the state's own power in cyberspace. In fact, I argue that the conceptual structure and jurisprudential assumptions of digital libertarianism lead its practitioners to ignore the ways in which the state can often use privatized enforcement and state-backed technologies to evade some of the supposed practical (and constitutional) restraints on the exercise of legal power over the Net. Finally, I argue that technological solutions which provide the keys to the first two phenomena are neither as neutral nor as benign as they are currently perceived to be. Some of my illustrations will come from the current Administration proposals for Internet copyright regulation, others from the Communications Decency Act and the cryptography debate. In the process, I make opportunistic and unsystematic use of the late Michel Foucault's work to criticise some the jurisprudential orthodoxy of the Net.

A Politics of Intellectual Property: Environmentalism for the Net  47 Duke L.J. 87 (1997) "This Article argues that we need a politics, or perhaps a political economy, of intellectual property. Using the controversy over copyright on the Net as a case-study and the history of the environmental movement as a comparison, it offers a couple of modest proposals about what such a politics might look like -- what theoretical ideas it might draw upon and what constituencies it might unite...."

Intellectual Property Policy On-Line: A Young Persons Guide. [earlier draft of an article published in vol 10 Harvard Journal of Law and Technology 1996] "This is an article developed from my presentation to the Intellectual Property Online Panel at the Harvard Conference on the Internet and Society. The panel was a reminder of both the importance of intellectual property and the dangers of legal insularity. About 400 people attended the panel; 90% of them were not lawyers. Accordingly, this is my attempt to lay out the basics of intellectual property policy and the counter intuitive economics of networks in as straightforward and non-technical way as possible. I have tried to keep the footnotes to a minimum and the analogies appropriately geeky. This in other words, is what non-lawyers should know (and what a number of government lawyers seem to have forgotten) about intellectual property policy on the Net...".

The Debate on the White Paper (HTML format). "A debate over the Clinton Administration White Paper on Intellectual Property on the National Information Infrastructure-- including a letter from 100 law professors commenting on the draft, responses from Assistant Secretary of Commerce, Bruce Lehman, defending the White Paper -- and a legal analysis of the White Paper's analysis of current law, by James Boyle. This debate is also published in volume 10, Harvard Journal of Law and Technology 1996."

A Theory of Law and Information: Copyright, Spleens, Blackmail and Insider Trading Originally published in 80 Calif. L. Rev. 1413 (1992).

Legal and Social Theory

The Anachronism of the Moral Sentiments: Integrity, Post-Modernism and Justice "This is an essay about the relationship between post-modernism and justice. My topic is the apparent disjunction between post-modernists' moral and political intuitions on the one hand and their philosophical views and cultural leanings on the other. Crudely put, the essay asks what we can learn from the fact that someone who rejects the notion of "integrity" as either a psychological, moral or textual quality, nevertheless condemns the Dean or the Senator for having "no integrity," admires the display of principled consistency in public life or the interpretation of the Constitution, and would characterise the difference between, say, Nelson Mandela and Bill Clinton, as the difference between a principled ascetic who would endure jail or death for his beliefs and a pack of cut-out caricatures, reshuffled at every shift in public opinion, held together only by an expensive suit and a set of selfish appetites."

Universalism and Identity Politics. [unpublished draft] "This is an article about political correctness and the attack on political correctness. Alongside the silliness of PC and of the conservative attacks on PC lies deeper and worthier motif -- an issue that appears in everything from the argument over speech codes to that over reading lists, from the critique of affirmative action to the laments over the soul of the humanities. Thus, although the debate as it currently exists is singularly free of intellectual nourishment, it has at its heart a profound philosophical and political issue. This issue could be described in its most abstract form as the conflict between universalism and particularism. Admittedly, it is hard to imagine that anything in the skeptical, ironic world of the sound-bite, MTV and the Simpson's could merit such an exalted label. It is even harder to imagine that we would find such issues in a debate that has been so firmly situated between the mediocre and the fallacious, between poor reporting and worse argument. The conflict is there nevertheless."

The PC Harangue An earlier version of this essay appeared in the Stanford Law Review at 45 Stan. L. Rev. 1457 (1993) "The PC "debate" is not a debate, it is a harangue -- a politically motivated, brilliantly publicized conservative attack on progressive ideas in academia. "Political correctness" is the newest addition to the rich American lexicon of political abuse. It carries multiple connotations -- ranging from the silly (calling short people "vertically challenged") to the Stalinist. Not since the McCarthy period and its "dangerous foreign ideologies" have conservatives had such an effective club with which to beat the left. Anyone who thinks that racial and gender injustice are still live issues can be branded as both silly and dangerous. Who wants to be labelled as "PC"? Ironically, the label that is supposed to describe censorious leftists has probably done more to silence progressives than anything since the accusation that the left lost us China...."

Legal Realism and the Social Contract. 78 Cornell Law Review.  "This article is a contribution to the theoretical and historical literature about Lon Fuller, a figure who is of interest both for his own sake and because of his "iconic" role in the history of legal thought over the last fifty years. At the same time, the article aspires to make a broader argument about the relevance of legal realism to the social contract tradition in political theory..."

Nature/Culture? reviewing Social Theory and the Environment by David Goldblatt. A revised version of this article appeared under the (strange) title "What the Left has to Say" in the TLS. (Times Literary Supplement February 28th 1997.) "It is a striking irony of contemporary politics that environmentalists take towards the natural world, towards the ecosystem, the same -- essentially Burkean -- attitudes that conservatives take towards the social world and the social system. Burke wrote powerfully about the "fail and feeble contrivances of reason" and the dangers posed by the "delusive plausibilities of moral politicians;" he portrayed civil society as a fragile edifice which has stood the only real test of social institutions, the test of survival, and is now imperilled by the arrogance of reformers who believe that their tinkering will have only beneficial consequences. Most of those on the left -- I include myself -- would reject this kind of pessimism about the power of reason when applied to something like changes in sex roles but find it convincing when the 'delusive plausibilities' come from those who claim that they understand the impact of clearing a kelp bed .. "

Is Subjectivity Possible? The Postmodern Subject in Legal Theory 62 U. Colo. L. Rev. 489 (1991) This article puts forward a thesis and then attempts to prove (or at least to develop) that thesis in two related areas. The thesis is that legal theory in general, and critical legal theory in particular, has concentrated too much on critiques of objectivity, wrongly assuming that "subjectivity" was an unproblematic term. Subjectivity, like mortality, has seemed not only attainable but inevitable. It is objectivity which is presumed to be the problematic goal of our theories and our attempts at doctrinal interpretation. This article reverses the focus, concentrating on the construction of subjectivity in law and social theory... Having pointed out that critical theories focus mainly on the impossibility of reaching "objectivity," I show that some of the same critiques can be turned on the construction of "subjectivity" as well. The parallelism is more than mere symmetry. Just as the concept of objectivity can be used to armour decisions or social practices, so theoretical results and ideological slant can be dictated by loading up the abstract "subject" of a political or economic theory with a particular set of drives, motivations, and ways of reasoning...I then turn to the legal "subject" around whom the law revolves and try to develop a sketchy history of the changing qualities which that subject has been believed to possess. I conclude that the ideas associated with postmodernism are a useful framework for understanding the subject in legal theory and in legal practice. In fact, bizarre as it may seem, the law already incorporates a more postmodern view of the subject than either economics or mainstream political theory.

A Random Sampling of Older Material
 

The Politics of Reason: Critical Legal Theory and Local Social Thought

An introduction to Critical Legal Studies and an investigation of the tension between structuralism and subjectivism in legal and social theory

Thomas Hobbes and the Invented Tradition of Positivism: Reflections on Language Power and Essentialism

This is an essay about the legal theory of Thomas Hobbes and about the things that are revealed when one compares Hobbes's ideas with the main line of legal positivism. Hobbes occupies a paradoxical position in traditional jurisprudence--revered but frequently overlooked, hailed a precursor but not as a founder, and used alternately as a bogeyman and an illustration of the difference between political and legal theory. If one actually looks at Hobbes's works, rather than footnoting them, cite unseen, one finds a rich stewpot of ideas; great dollops of wisdom about language, interpretation, power, legitimacy, epistemology, definition, scholasticism, human nature, and law. Of course, Hobbes has never been ignored. He still plays Mutt to Locke's Jeff in college courses in political theory. But at a time when legal theorists are rediscovering the fact that there is no bright line separating legal from political theory, that questions of legitimacy may resolve themselves into questions of epistemology, and that language and power are inextricably connected, Hobbes's work deserves rereading, if only to see how legal positivism defines its own margins.

A Process of Denial: Bork and Post-Modern Conservatism 3 Yale Journal of Law and the Humanities 263 (1991)

"Although this article was prompted by the publication of The Tempting of America, its subject is wider than that book alone. As I went further back into Mr. Bork's intellectual history, I discovered that the arguments in his most recent book followed a formula developed in his earlier writings. Like The Tempting of America, Mr. Bork's other work follows a lapsarian pattern -- a tale of a fall from grace, coupled with a strategy for redemption. A state of corruption and decay is identified in some institution or area of law. The rot is traced to a particular departure from the proper state of affairs, a wilful violation of an authoritatively decreed scheme of things. A method is prescribed by Mr. Bork which will allow us to escape our current fallen state and return to a condition of righteousness. Mr. Bork speaks strongly in favour of his method, pronouncing it "inescapable" or "unavoidable." Yet it is obvious that Mr. Bork's panacea has all the same features as the disease it is supposed to cure. At first, Mr. Bork offers a lengthy and thunderous denial that the cure is indistinguishable from the disease. Eventually, he falls silent for a while, only to emerge in two or three years with some new, and newly ineluctable, redemptive method. The process then repeats itself. Readers familiar only with Mr. Bork's most recent writings will be surprised to find that in the past he has been, successively, a libertarian, a process theorist, a devotee of judicial restraint, a believer in neutral principles, a "law and economist" and an advocate of two distinct forms of originalism. At the time, each of these theories was offered as being the only possible remedy to the subjectivity and arbitrariness of value judgements in a constitutional democracy and the other theories he had held, or was about to hold, were rejected out of hand. .. The Tempting of America is, in one sense, the weakest and most obviously flawed of Mr. Bork's panaceas. He criticises contemporary liberal constitutional jurisprudence for being arbitrary, politically biased, indeterminate, and a-historical. Yet his prescription for cure -- the philosophy of original understanding -- is even more obviously possessed of these flaws. Indeed, as the quotation at the head of this page demonstrates, in an earlier incarnation he himself had dismissed it as "naive." Mr. Bork's rhetoric of denial must thus be correspondingly stronger and more thunderous. Yet in another sense, The Tempting of America may mark a departure -- albeit a fragmentary and contradictory one -- from the endless process of denial. Instead, it marks a shift to a different form of conservative thought, one that could be called either pre- or even post-modern. "

The Search for an Author: Shakespeare and the Framers, 37 Am. Univ. L. Rev. 625 (1988)

".....There is a controversy over the true identity of Shakespeare, a controversy notable for the intemperate statements to which it gives rise. Three Supreme Court Justices agree to hear a staged oral argument on the issue. Briefs are written, and replies. (These you have.) There is a televised oral argument. (This you do not have.) The court decides in favor of the traditional claimant to Shakespeare's laurels, each Justice rendering a separate opinion. (The opinions, too, are provided.) The attorneys retire in some confusion, unaccustomed to the importance they are presumed by their audience to possess. The parties disperse, already arguing over the significance of the ruling. Apart from the rather bizarre subject matter, the media attention and the eminence of the panel, it sounds like a typical piece of litigation. But behind this bare narrative lies another story, as full of strange personalities, unlikely arguments, and philosophical puzzles as Umberto Eco's, The Name of the Rose -- a book about semiology masquerading as a murder mystery... My argument is that the Shakespeare debate has much to tell us about attitudes to textual indeterminacy and to the romantic picture of the author on which so much of our interpretive tradition -- both constitutional and literary -- depends."
 

**Modernist Social Theory:  Roberto Unger's Passion  98 Harv. L. Rev. 1066 (c) Harvard Law Review

"On the dust jacket of Roberto Unger's new book, Passion, is a picture of Adam and Eve, their genitals covered by some fairly implausible greenery, being evicted from the Garden of Eden in considerable distress. At first blush the picture evokes the trinity of shame, self-conscious sexuality, and lust that forms the perimeter of our ideas about passion. After one has read Professor Unger's book, however, the image is likely to evoke a different vision of passion, perhaps even a different vision of personality and politics. The main theme of the book is the conception of 'infinite personality': the belief that the ability to transcend 'contexts,' to go beyond the current arrangements of self and society, lies at the very heart of being. Seen in the light of this idea, the eviction of Adam and Eve can be understood as a result of the original act of context-breaking: an assertion of infinite possibilities that shatters a finite, if paradisiacal, social world. By reversing the Sunday school story of the Fall, we can begin to understand both the reverence and the apparent heresy that inform Unger's radicalism. The apple is the metaphor not simply for knowledge, but for the knowledge of contingency: the arbitrary limitations imposed by structures, whether of personality or of society. But if one puts it that way, then Eve made the right choice..."

All law journal articles except Modernist Social Theory © James Boyle

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