Browsing by Author "Fagundes, Dave"
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Item Buying Happiness: Property, Acquisition, and Subjective Well-Being(William and Mary Law Review, 5/1/2017) Fagundes, DaveAcquiring property is a central part of the modern American vision of the good life. The assumption that accruing more land or chattels will make us better off is so central to the contemporary preoccupation with acquisition that it typically goes without saying. Yet an increasing body of evidence from psychologists and economists who study hedonics—the science of happiness—yields the surprising conclusion that getting and having property does not actually increase our subjective well-being. In fact, it might even decrease it. While scholars have integrated the insights of hedonics into other areas of law, no scholarship has yet done so with respect to property. This Article maps this novel territory in three steps. In Part I, it summarizes recent findings on the highly conflicted effect of the acquisition of both land and chattels on subjective well-being. In Part II, it explores the implications of these findings for four leading normative theories of property law, showing that in different ways the evidence produced by happiness studies undermines the core empirical propositions on which these theories rest. Part II also explores the potential of subjective well-being as a framework for assessing the optimal regulation of ownership. Finally, Part III investigates how looking at property through the lens of happiness can help us see this ancient body of law in a new light. Evidence from happiness studies casts doubt on some policies (state promotion of homeownership), while suggesting the appeal of others (tax incentives and disincentives designed to nudge acquisition in the direction of greater subjective well-being). Happiness analysis also suggests promising new insights about related aspects of property, including law’s attempts to prevent dispossession, the proper allocation of public versus private land, and the nascent sharing economy. This Article concludes by showing why these findings actually tell an optimistic, if nonobvious, story about the nature and future of property.Item Contextualizing Fan Action Committees(Harvard Journal of Sports and Entertainment Law, 2015) Fagundes, DaveItem Copyright 101(2021-11-17) Fagundes, DaveThis session is presented by Dave Fagundes, the Baker Botts LLP Professor of Law and the Research Dean at the University of Houston Law Center. It covers the basics of the federal Copyright Act and major judicial interpretations, including what works are protected, what acts are infringing, when unauthorized use may be permitted, and what common misunderstandings about copyright law to avoid.Item Costly Intellectual Property(Vanderbilt Law Review, 2012-04) Fagundes, Dave; Masur, Jonathan S.Though they derive from the same constitutional source of law, patents and copyrights vest very differently. Patents arise only after an applicant successfully navigates a cumbersome and expensive examination, while copyrights arise costlessly upon mere fixation of a work in a tangible medium of expression. Each of these vesting systems has drawn much criticism. Some scholars argue that the patent examination system imposes heavy costs while failing to eliminate invalid patents. Each of these claims, though, fails to take into account the social benefits (or costs) associated with the screening mechanism (or lack thereof) required for owners to perfect their rights. The social-welfare implications of process costs have been studied in other settings, but largely ignored in the intellectual property (IP) literature. In this Article, we leverage the insights of this literature to craft a novel theory showing why the much-maligned patent and copyright vesting systems are actually socially beneficial. Our analysis rests on a descriptive account of how patents and copyrights create differential social and private values, and shows that costly screens select differently across the classes of value in each of these cases, so that process costs are warranted in the patent setting but undesirable for copyright. Finally, we abstract the insights of this paper to generate two more general insights about law. First, we illustrate how this analysis of costly screens generates a broader account of how law does and should govern processes for vesting IP rights. In so doing, we offer a novel and unified theory of IP process. Second, we explore how our discussion of process costs in the IP setting illuminates the underappreciated benefits and costs of screens in other areas of law.Item Crystals in the Public Domain(Boston College Law Review, 1/1/2009) Fagundes, DaveThe law increasingly treats copyright as if it were any other form of property, and numerous writers decry this trend. In particular, scholars who express solicitude for the public domain fear that the propertization of copyright means an inevitable accretion of private rights in information at the expense of the public domain. This Article critiques this conventional view, arguing that the propertization of copyright has unappreciated advantages for users of public information goods. The conventional view relies on an overly narrow view of what propertization means. The treatment of copyright as a form of property generally entails not only reduction of entitlements to private ownership, but also the bounding of those entitlements with clearly demarcated, or crystalline, borders. Although many writers prefer muddy entitlements that create fluidity regarding the extent of the public domain, this Article argues instead that it is this very fluidity that is at fault for excessive accretion of private rights in information. Uncertainty about the extent of public entitlements in information allows well-capitalized private actors lay claim to resources whose public/private status is at all ambiguous, and then deter the public's claims through threats of litigation. By contrast, a public domain characterized by crystalline rule structures would benefit users, not only owners, by allowing them to better comprehend the extent of their entitlements and thus exploit common resources without fear of suit. By way of illustration, this Article provides three examples of how copyright law could be reformed to create user-friendly crystalline entitlement structures. It then concludes by situating the propertization of copyright law, and this critique of the dominant narrative about that trend, in the context of current debates in property law more generally.Item Efficient Copyright Infringement(Iowa Law Review, 2013-07) Fagundes, DaveCopyright infringement is said to be socially costly because it robs owners of due recompense and depresses incentives for creative production. This Article contends that in order to achieve copyright’s goal of maximizing cultural production, this dominant story of infringement’s costs requires alongside it a counter-story identifying the rare but important instances where copyright infringement enhances social welfare. Part I explains the need for an account of the novel notion of efficient copyright infringement. Other types of unlawful conduct may also be beneficial, but copyright in particular warrants exploration of efficient infringement because maximizing creative production requires some level of unauthorized use, and because copyright’s political economy tilts in favor of expanding owners’ rights. Part II explores efficient copyright infringement’s domain, showing that unauthorized use of protected works of authorship will be prosocial where traditional private ordering is unavailable (or strongly undesirable) to facilitate a given use, and where that use is welfare-enhancing. Part III outlines broadly how a law of efficient copyright infringement might look. It first explains how the Copyright Act has failed to fully account for beneficial unauthorized use. It then considers a variety of ways that copyright damages could be structured to better accommodate efficient infringement. The Article concludes by situating this argument in the context of a growing literature that explores the surprising and underappreciated upside of unauthorized use of copyrighted works of authorship.Item Law & Neighborhood Names(Vanderbilt Law Review, 5/4/2019) Davidson, Nestor M.; Fagundes, DaveThis Article provides a novel investigation of how law both enables and constrains the ability of city residents to claim, name, and often rename their neighborhoods. A rich interdisciplinary dialogue in areas such as geography and sociology has emerged on the significance of place names, but this literature has largely ignored the legal dimensions of the phenomenon, with its implications for urban governance, belonging, and community conflict. This Article’s empirical exploration of the role of law in change and conflict regarding neighborhood identity thus advances the discourse both for legal scholars focused on urban dynamics and across disciplines. From gentrification fights sparked by efforts to rename the southern part of Harlem as “SoHa,” to a successful community movement to change the name of the area once known as South Central to “South Los Angeles,” neighborhood identity has long sparked controversy and is increasingly leading to proposals for legal change. These conflicts raise fundamental questions about urban governance and people’s sense of ownership over their communities: How do neighborhoods actually get their formal names and why is neighborhood identity so hotly contested? And how does law mediate what we use to identify local communities? Understanding the texture and significance of neighborhood naming conflicts, moreover, carries implications in two distinct areas of legal theory. First, in terms of property, neighborhood identity provides insights into collective cultural ownership in the absence of formal rights, reflecting the central tension in property theory between economic value and personhood. Likewise, conflicts over neighborhood naming shed new light on our understanding of local government law, foregrounding often-overlooked dynamics of formality and informality and the micro-scale interplay of public and private forces in urban governance. These related theoretical frames, finally, supply insights into the normative stakes in conflicts over neighborhood naming, where the advantages of formalization must be balanced against dynamics of exclusion and vulnerability, suggesting notes of caution for any attempt to reform the legal foundations of neighborhood identity.Item Property Rhetoric and the Public Domain(Minnesota Law Review, 2012-02) Fagundes, DaveThose who prefer broader intellectual property rights often deploy the rhetoric of physical property. By contrast, those who are concerned about maintaining public entitlements in information resist that rhetoric. In this Article, I take this dichotomy as a starting point for investigating the power of property rhetoric as a tool in public debate about the optimal scope of intellectual property rights. I first observe that this dichotomy is premised on a limited view of property as referring only nearly absolute private rights in owned objects. I then critique this prevailing assumption, showing that it fails to account for an alternative, social discourse of property that emphasizes both the limits on and communal aspects of ownership. Finally, I suggest a novel approach to the use of physical property rhetoric in debates about the ideal scope of patent and copyright. I argue that rather than resisting the invocation of property rhetoric, enthusiasts of the public domain should embrace it. Specifically, the public domain should be explicitly portrayed as a form of property, one in which we all enjoy a broad entitlement. This approach would encourage public respect for and stewardship of the public domain and would also provide needed pushback against content industries’ expansive intimations that all takings of information are wrongful.Item Property, Morality, and Moral Psychology(Texas A&M Journal of Property Law, 2015) Fagundes, DaveItem Talk Derby to Me: Intellectual Property Norms Governing Roller Derby Pseudonyms(Texas Law Review, 2012-04) Fagundes, DaveSome groups use endemic social norms rather than formal law to regulate their intellectual property (IP). This qualitative empirical study extends and critiques existing work on this topic by examining how roller derby skaters guarantee exclusive use of the pseudonyms under which they compete. Roller derby names are a central part of this countercultural, all-girl sport, adding to its distinctive combination of punk and camp. Skaters have developed an elaborate rule structure, registration system, and governance regime to protect the uniqueness of their pseudonyms. The development of this extralegal governance scheme despite the ready availability of IP theories (e.g., trademark, right of publicity) to protect derby names shows that IP norms emerge independently of law's substantive (un)availability, so long as the relevant group is close-knit and the norms are welfare enhancing. These groups are especially likely to craft formal regulation and registration schemes to buttress informal norms where the relevant community is identity constitutive and where the intangible goods arise from nonmarket production. This study also suggests another way of thinking about the problem of supplying property systems, casts (further) doubt on the coherence of the prevailing neoclassical economic assumptions underlying IP law, and reflects on what it means for rules to be law.Item The Moral Psychology of Copyright Infringement(Minnesota Law Review, 2016-06) Buccafusco, Christopher; Fagundes, DaveNumerous recent cases illustrate that copyright owners sue for infringement even when an unauthorized use of their work causes them no economic harm. This presents a puzzle from the perspective of copyright theory as well as a serious social problem, since infringement suits designed to remedy non-economic harms tend to stifle rather than encourage creative production. While much scholarship has critiqued copyright’s economic theory from the perspective of authors’ incentives to create, ours is the first to explore this issue from the perspective of owners’ motivations to sue for infringement. We turn to moral psychology, and in particular to moral foundations theory, to analyze the essential reasons that make owners feel that they have been wronged. Recent work in this field shows that people generally exhibit moral indignation for a variety of reasons, including but by no means limited to experiencing economic harm. So while copyright law assumes that owners are economically rational beings who will sue only to protect their creative incentives, our analysis shows that owners will also sue over concerns related to sullied purity, breached loyalty, and a sense of injustice. Outlining the moral psychology of copyright infringement generates both theoretical and practical payoffs. First, it allows us to chart a middle course between the traditional copyright theories of economic consequentialism and moral rights. We show that actively accounting for owners’ innate sense of moral outrage better allows us to craft a copyright system that is truer to its constitutional goals of optimizing creative production. Second, it enables us to explore a variety of different policy levers — statutory, constitutional, and administrative — that could ameliorate the social problems raised by infringement suits not motivated by copyright-relevant harm. This Article represents a first step toward a fuller empirical exploration of the subjective experience of copyright infringement, as well as an illustration of the potential that moral psychology and moral foundations theory have for law generally.Item The Varieties of Motivation and the Problem of Supply: A Reply to Professor Ellickson(Texas Law Review, 2012) Fagundes, DaveWhen the author read Order Without Law back in his first year of law school, it never occurred to him that he would one day be part of a conversation with the author of that book about private ordering in the world of women's roller derby. Happily, though, it turns out that his imagination was limited, as evinced by Professor Robert Ellickson's thoughtful critique, How Norm Entrepreneurs and Membership Associations Contribute to Private Ordering: A Response to Fagundes, written in response to his Texas Law Review article about intellectual property norms governing roller derby pseudonyms. Among the many reasons that Ellickson's response is valuable is that it has allowed him to further elaborate the story of derby-name regulation in two ways. First, it highlighted places where he could have pushed the analysis of the Master Roster further. And second, it created the opportunity to explore some of those issues in this space.Item Why Less Property Is More: Inclusion, Dispossession, & Subjective Well-Being(Iowa Law Review, 2018-05) Fagundes, DaveThe twin notions of exclusion and possession dominate our cultural and legal conceptions of property. This Article uses the lens of hedonics-the emergent science of happiness-to make a case for the less appreciated notions of inclusion and dispossession. Evidence from this new field shows that owners maximize their welfare, not when they amass land and chattels and keep others away from them, but when they pursue the polar-opposite strategies of inclusion and dispossession, such as sharing their property, donating it to charity, or giving it away. This Article begins its defense of inclusion and dispossession by providing background about the idea of happiness and law, an increasingly important conceptual framework for welfarist analysis of law and policy. It then reviews the hedonics evidence about property, which reveals that despite the hegemony of exclusion and possession, what increases owners' subjective well-being is using their property to create social ties, to give it to a meaningful cause, or just to get rid of it. The Article then considers specific strategies of inclusion and dispossession. The Article reveals unappreciated ways that inclusion and dispossession enhance owners' subjective well-being, and then suggests particular forms of choice architecture that have the potential to optimize the overall social welfare produced by each of them. Finally, this Article concludes by considering the implications for property theory of the novel notions of inclusion and dispossession, emphasizing that this claim works to enrich, not undermine, the institution of private ownership.