Copyright (c) 2009 All rights reserved. http://works.bepress.com/bezanson Recent documents in Randall P Bezanson en-us Sun, 31 May 2009 03:45:12 PDT 3600 http://works.bepress.com/bezanson/4 http://works.bepress.com/bezanson/4 Fri, 01 May 2009 08:12:02 PDT The history of art is replete with examples of artists who have broken from existing conventions and genres, redefining the meaning of art and its function in society. Our interest is in emerging forms of art that trespass - occupy space, place, and time as part of their aesthetic identity. These new forms of art, which we call trespassory art, are creatures of a movement that seeks to appropriate cultural norms and cultural signals, reinterpreting them to create new meaning. Marcel DuChamp produced such a result when, in the early twentieth century, he took a urinal, signed his name to it, titled it Fountain, and called it art. Whether they employ 21st century technologies, such as lasers, or painting, sculpture and mosaic, music, theatre, or merely the human body, these new artists share one thing in common. Integral to their art is the physical invasion of space, the trespass, often challenging our conventional ideas of location, time, ownership, and artistic expression. Their art requires not only borrowing the intellectual assets of others, but their physical assets.This is trespassory art B art that redefines and reinterprets spaceCart that gives new meaning to a park bench, to a billboard, to a wall, to space itself.Our purpose is to propose a modified regime in the law of trespass to make room for the many new forms of art with which we are concerned B art that is locationally dependent or site specific. We begin by briefly describing and characterizing these often-new artistic forms. This provides a jumping off point for addressing the basic question this article seeks to addressCshould the law accommodate these new types of art, and if so, to what degree? We first turn to the law of trespass, with particular focus on real property, both public and private, but also with an eye to personal and intellectual property. We conclude that adjusting trespass remedies for artistic trespass through a set of common law privileges would better balance the competing interests of owners and artists than do current trespass rules. We then turn to a set of constitutional issues and conclude that our common law proposal is consistent with, and in some ways perhaps required by, the First Amendment. Finally, we summarize our proposal and then revisit the value of trespassory art as art in our creative culture. Randall P. Bezanson Communications Law Constitutional Law Intellectual Property Law Public Law and Legal Theory Torts Law and Society http://works.bepress.com/bezanson/2 http://works.bepress.com/bezanson/2 Fri, 01 May 2009 07:33:56 PDT Our manuscript entitled "The Foundations of Federalism: An Exchange" is occasioned by the Supreme Court's federalism jurisprudence which, in our judgment, calls for a broad ranging exploration of the constitutional concept of federalism itself. That exploration takes place in the form of a dialog between us which, while rewritten from its original form, nevertheless reflects our actual exchanges over an 18 month period. Our conclusion is that such terms as "sovereignty" generally have no place in American constitutional federalism, that the Supreme Court's efforts to enforce federalism limitations have been ineffective and, in some instances, counterproductive, and most basically that federalism itself is best seen in non-theoretical terms, but instead as a practical and untidy system of occasions for sober second thought by federal and state governments engaged in the federal legislative process. On federal-state power conflicts, the Constitution should be seen as a purposeful "incompletely theorized agreement," to quote Cass Sunstein. Randall P. Bezanson Administrative Law Constitutional Law Jurisprudence Law and Society Politics State and Local Government Law http://works.bepress.com/bezanson/3 http://works.bepress.com/bezanson/3 Fri, 01 May 2009 07:33:56 PDT Since its beginning, the actual malice test first announced in 1964 in New York Times v. Sullivan, has suffered from problems that are increasingly traceable to the changing face of journalism. Its demand that the mind of the reporter be proved "with convincing clarity" has adverse consequences for plaintiffs and news organizations alike. End runs around the subjective state of mind inquiry by plaintiffs have become more common. And the actual malice test's predictability, its capacity as a standard of liability to yield consistent and coherent results across a body of cases, remains a hollow promise. As Robert Sack famously put it, successful libel plaintiffs "resemble the remnants of an army platoon caught in an enemy crossfire." Perhaps the central flaw in the subjective malice/recklessness test is its focus on individual rather than corporate conduct, a shortcoming so fundamental that, in our judgment, the test should be supplemented, in the press setting at least, with what we call an institutional reckless disregard standard. This would be a largely objective assessment of the corporate decisions that affect journalism when they manifest knowing indifference to the risk of defamatory falsehood that flow from the decisions. Why would such a standard be preferable? First, the actual malice/reckless disregard standard focuses on the state of mind of a reporter or editor instead of on the underlying factors that can give rise to defamatory publication, and over which writers and editors may have little or no control. Second, the actual malice/reckless disregard standard is blunt-edged. Third, while libel actions may be traumatic for journalists, the shift of financial liability to the business as a whole insulates journalists from responsibility for knowing and false misbehavior, thus in effect making them more indifferent to the risks their behavior imposes on others. Fourth, by exacting punishment based on conduct of journalists, not on organizational recklessness, the actual malice/recklessness inquiry frees news organizations to adopt risky practices without fear of consequences. At a time when market-based forces are placing great financial pressure on newsrooms and the publicly traded organizations that own most of them, a rule that frees journalistically dangerous corporate decisions from cost or consequence is likely, perversely, to facilitate the very choices that the law should discourage. For these reasons we propose a different method of liability for news organizations, one that rests liability on corporate decisions that are known to present a heightened risk of falsity and defamation because of the impact of such decisions on staffing, training, editorial oversight, copyediting and related factors that affect the reliability of the news product and that cannot be justified on grounds related to the quality or journalistic performance of the news organization. We believe that decisions that are knowingly, indeed often calculatedly, taken to increase profits or personal wealth at the cost of slipshod journalism should not be relieved, as they are now, from consideration in establishing liability Randall P. Bezanson Communications Law Constitutional Law Intellectual Property Law Torts http://works.bepress.com/bezanson/1 http://works.bepress.com/bezanson/1 Fri, 01 May 2009 07:33:55 PDT Our manuscript entitled "The Foundations of Federalism: An Exchange" is occasioned by the Supreme Court's federalism jurisprudence which, in our judgment, calls for a broad ranging exploration of the constitutional concept of federalism itself. That exploration takes place in the form of a dialog between us which, while rewritten from its original form, nevertheless reflects our actual exchanges over an 18 month period. Our conclusion is that such terms as "sovereignty" generally have no place in American constitutional federalism, that the Supreme Court's efforts to enforce federalism limitations have been ineffective and, in some instances, counterproductive, and most basically that federalism itself is best seen in non-theoretical terms, but instead as a practical and untidy system of occasions for sober second thought by federal and state governments engaged in the federal legislative process. On federal-state power conflicts, the Constitution should be seen as a purposeful "incompletely theorized agreement," to quote Cass Sunstein. Randall P. Bezanson Constitutional Law Courts Jurisprudence Legal History Public Law and Legal Theory