Let’s Be (More) Critical of the Law

Photo Credit: Jim, the Photographer

Yesterday, I had the pleasure of listening to an amazing talk by Kendra Albert on legal talismans. According to their definition, a legal talisman is a legal phrase used as a shorthand for non-legal concepts in online discourse. One of their primary examples was the phrase “defamation.” It’s a phrase used in terms of service, in community guidelines, and in the news. Colloquially, people may assume it means to harm someone by publishing lies but there’s a complicated doctrinal and legal history behind the phrase. If a legal phrase like that is added to a document like a binding terms of services agreement, we should know what we’re actually telling people.

In prohibiting someone from defaming another, you may be banning more than insults. For example, it wasn’t until the past decade that courts started to reject arguments that falsely calling someone homosexual wasn’t per se defamatory. This means that until recently, a court could presume that you harmed someone and could hold you legally liable for calling them gay. What’s more, mistakenly publishing that a white person was a “negro” was also defamatory per se. Having these doctrines on the books meant that being black and being gay were equated with other statements linking people to categories that deserved “social approbation” such as being a thief or a murderer. Legal phrases sometimes mean more than what you think they mean.

But you’re can’t be conscious of those types of problems with legal talismans or any law without being critical of legal doctrine. Albert examined legal talismans through a critical legal theory lens — this means examining the problematic ways social power dynamics may have influenced the development of the law. When I asked Albert how writers and legal practitioners could bridge this critical knowledge gap and make better decisions about the problematic legal talismans they invoked, they said that we should be learning more critical legal theory in law school. They said that we needed to write about it. So I am.

For me, this talk and call to use critical legal theory came a couple of days after I read the article “Intellectual Property at the Intersection of Race and Gender: Lady Sings the Blues” by Professor K.J. Greene. The paper, in part, examined how the structure of copyright and trademark law prevented black musicians from asserting their economic rights for their creative works. Although I have taken a number of classes on intellectual property, I had never applied critical race theory or feminist legal theory to the doctrine. But even intellectual property is not free of America’s power dynamics.

The first thing Greene’s paper recognizes is that although the Patent and Copyright Clause granting authors and inventors exclusive rights to their works for limited periods of time is as old as America, these rights were not extended to black Americans. Blacks did not have equal rights and there was no way for the majority of them to effectively assert such intellectual property rights until the past few decades after the civil rights movement. From there he outlines how the structure of copyright law — from its idea/expression dichotomy to the fixation requirement to even the formalities that were part of the law until its amendment in 1976 all created an incredibly high bar for illiterate or semi-illiterate black jazz and blues musicians to obtain copyrights on their improvised cultural productions. In regards to trademark law, Greene discussed how trademark protection allowed brands like Aunt Jemima and Uncle Ben to perpetuate racial stereotypes that in turn stigmatized minorities. Although trademark law currently prohibits companies from gaining federal trademark protection for marks that would be considered disparaging to certain groups, even that is being challenged before the Supreme Court.

But Greene is not the only scholar who is currently paying attention to the racial and gender dimensions of intellectual property law. His paper notes that there is a growing movement to examine the how intellectual property, perceived to solely be a system of incentives, in fact perpetuates racial or gendered social systems of inequality. No law, including intellectual property law, exists in a vacuum.

Greene’s paper and Albert’s talk were further reminders that power dynamics play a huge role in the legal institutions law students are trained to implicitly trust. But we shouldn’t trust them. I don’t believe the law is some type of boogeyman. But the people who write and interpret laws are as flawed as the rest of us and have their biases. The difference is that their biases are institutionalized. If we — meaning law students — don’t begin to critically analyze intellectual property and other seemingly “neutral” bodies of law, in the future we won’t recognize or deconstruct the doctrines that are technically lawful but wholly unjust.