Studies in Law, Politics and Society: Volume 29

The expansion of copyright and the shrinking of the public domain did not begin with the Internet, but the Internet has exacerbated the problem. The threat posed by digital technology has led industries to obtain increasingly absolute protection over their “property.” In this paper I will argue that developing a vibrant public domain is essential for resisting the overextension of copyrights and patents. Developing the public domain as a counterpoint to copyright and patent law is vital to an energized public sphere and by extension a democratic system.

The 1922 Supreme Court anti-trust exemption awarded to organized baseball was quick to grasp the prerogatives of the emerging U.S. popular culture industries, and displays the anomalies of performance in the law. The trade and commerce in cultural performances yield contradictory opinions about the distinctions between the functions of work and play, as well as the properties of work and the performing arts. The interconnecting functions of a sport like organized baseball, as an industry, an art, and a popular cultural entertainment makes baseball a rich object for analysis in the perplexing historical puzzle of decentralized U.S. cultural policy.

Drawing from televised debates over capital punishment on CNN’s Crossfire from February 2000 to June 2002, I argue that Teles’s (1998) theory of “dissensus politics” is useful in understanding the U.S.’s preservation of capital punishment as well as current divisions in death penalty sentiment within the U.S. I pose the retention of capital punishment as the product of rival elites who are unwilling to forsake capital punishment’s moral character (and often the political benefits it offers), and who consequently ignore an American public that appears to have reached a measured consensus of doubt about the death penalty.

The United States adopted a new welfare regime in 1996. The centerpiece of this legislation is a notion of personal responsibility that redefines the relation between individuals and the state. I use this law as a foil to outline a new paradigm of legal research. We must understand welfare, I argue, as part of a self-referential legal system. Law is legitimated by particular kinds of fair, democratic political agreement. When material inequalities undermine political participation, however, the law must insure the bases of its own legitimacy through welfare. Welfare law is thus vital to a nation’s legal system as a whole. Seen from this perspective, the current American welfare system fails to fulfill the basic presuppositions of legal legitimacy.

The relationship between social class, prostitution and drug use is complex. The role of illegal drugs in elite prostitution is dramatically different from that found among streetwalkers. The backgrounds of the escort service girls, their relatively comfortable and safe working conditions, and the desires of their customers produces and maintains a pattern of drug use that is in sharp contrast to that found on the street.

Much of the philosophical debate between religionists and secularists has focused on whether to permit people to invoke publicly religious arguments to justify their position on laws and policies. There is a question related to this debate whose answer is often regarded by both liberals and religionists as intuitive and straightfoward: May religionists offer secular justifications in the public square to support or oppose laws and policies without sincerely accepting such reasons as consistent with their respective religion? Some religionists and especially some prominent liberals tend to answer in the negative, disdaining the thought of embracing an alternative that seems duplicitious. I argue that such negative responses tend to neglect the value of insincerity in public justifications.