Four recent and compelling publications from my colleagues at UMass Law examine privacy and the right of publicity, LGBTQ civil rights, legal pedagogy, and law librarianship in public service.
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| Prof. Marlan |
Professor Dustin Marlan has done the hard work of building the philosophical foundation for a personality-based
right of publicity, disentangled from Warren-Brandeis privacy. "Unmasking the Right of Publicity"
is
available on SSRN and forthcoming in the
Hastings Law Journal.
This Article examines the potential influence of psychoanalytic
thought on the conception of publicity as a right distinct from privacy.
In the landmark case of Haelan Laboratories v. Topps Chewing
Gum, Judge Jerome Frank articulated the modern right of publicity. The
right is now most often seen to protect the strictly commercial value of
one’s “persona”—the Latin-derived word originally meaning the mask of
an actor. Among other criticisms, the right of publicity is frequently
accused of lacking a coherent justification, permitting only economic
redress against public harms to the persona, and stripping away
individual identity by allowing for an alienable, proprietary right in
one’s personality. Why might Judge Frank have been motivated to create a
transferable intellectual property right in the monetary value of one’s
persona distinct from the psychic harm to feelings, emotions, and
dignity protected under the rubric of privacy?
Judge Frank was a
leading figure in the American legal realist movement known for his
unique and controversial “psychoanalysis of certain legal positions”
through seminal works including Law and the Modern Mind, Why Not a
Clinical Lawyer-School?, and Courts on Trial. His work drew heavily on
the ideas of psychoanalytic thinkers, like Sigmund Freud and Carl Jung,
to describe the distorting effects of infantile and unconscious wishes
and fantasies on the decision-making process of legal actors and judges.
For Judge Frank, the psychoanalytic interplay between dual parts of the
personality supported the realist interpretation of lawmaking as a
highly subjective and indeterminate activity. Indeed, though Judge Frank
provided little rationale for articulating a personality right separate
from privacy in Haelan, he had given a great deal of attention to the
personality in his scholarly works.
In the spirit of Judge
Frank’s psychoanalytic jurisprudence, this Article suggests that the
right of publicity’s aim, apart from the personal right to privacy, may
be understood through the psychoanalytic conception of the
personality—one divided into public and private spheres. In the
psychological sense, the term persona, or “false self,” refers to an
individual’s social facade or front that reflects the role in life the
individual is playing. That is, as a metaphor for the actor and their
mask, the persona is used to indicate the public face of an individual,
i.e., the image one presents to others for social or economic advantage,
as contrasted with their feelings, emotions, and subjective
interpretations of reality anchored in their private “true self.”
However,
the law’s continued reliance on a dualistic metaphor of the
personality—i.e., divided sharply into inner (private) and outer
(public) subparts—appears misguided amidst a growing technology,
internet, and social media-driven need for interwoven privacy and
publicity rights. The Article thus concludes by examining
intersubjective personality theory, which might provide a useful
conceptual update in its view of the personality as contextual,
relational, and dependent on social interaction—rather than divided
sharply between the public and private.
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| Prof. Ho |
Professor Jeremiah Ho has authored a piece building on the
Masterpiece Cakeshop case (
U.S. 2018) and continuing his important work in
LGBTQ civil rights. "Queer Sacrifice in
Masterpiece Cakeshop" is
available on SSRN and forthcoming in the
Yale Journal of Law and Feminism. Here is the abstract:
This Article interprets the Supreme Court’s 2018 decision, Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Commission, as a critical
extension of Derrick Bell’s interest convergence thesis into the LGBTQ
movement. Chiefly, Masterpiece reveals how the Court has been more
willing to accommodate gay individuals who appear more assimilated and
respectable—such as those who participated in the marriage equality
decisions—than LGBTQ individuals who are less “mainstream” and whose
exhibited queerness appear threatening to the heteronormative status
quo. When assimilated same-sex couples sought marriage in Obergefell v.
Hodges, their respectable personas facilitated the alignment between
their interests to marry and the Court’s interest in affirming the
primacy of marriage. Masterpiece, however, demonstrates that when the
litigants’ sexual identities seem less assimilated and more
destabilizing to the status quo, the Court becomes much less inclined to
protect them from discrimination and, in turn, reacts by reinforcing
its interest to preserve the status quo—one that relies on religious
freedoms to fortify heteronormativity. To push this observation further,
this Article explores how such failure of interest convergence in
Masterpiece extends Derrick Bell’s thesis on involuntary racial
sacrifice and fortuity into the LGBTQ context—arguing that essentially
Masterpiece is an example of queer sacrifice. Thus, using the
appositeness of critical race thinking, this Article regards the
reversal in Masterpiece as part of the contours of interest convergence,
queer sacrifice, and fortuity in the LGBTQ movement. Such observations
ultimately prompt this Article to propose specific liberationist
strategies that the movement ought to adopt in forging ahead.
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| Prof. Flanagan |
Professor Rebecca Flanagan has authored an article in
legal pedagogy in which she endeavors to bring some clarity to the process of preparing law students for this rapidly evolving market.
Better by Design: Implementing Meaningful Change for the Next Generation of Law Students was published at
71 Me. L. Rev. 103 (2019). Here is the abstract:
This article presents a fictitious, utopian law school to challenge the
assumption that legal education has met adequately the challenges of
preparing law students for an evolving profession. By presenting the
utopian ideal, the author highlights how adoption of best practices in
learning and cognitive sciences could transform legal education from a
highly criticized institution to a dynamic, self-transforming academy
designed to meet the changing needs of students and the practicing bar.
Librarian Jessica Almeida has co-authored an article on
law librarianship in public service, "Hosting a Successful Transcription Party," appearing in the
AALL Spectrum, March/April 2019, at 42. The work describes how New England law librarians and the Rhode Island State Archives used a transcription event to combine service and outreach to the community.
