Volume 77, Number 5

November 2002

Foreclosing on Fame: Exploring the Uncharted Boundaries of the Right of Publicity

Melissa B. Jacoby, Diane Leenheer Zimmerman

Since the 1950s in the United States, fame increasingly has been treated as a commodity rather than a purely personal attribute. States, encouraged largely by entertainers, sports figures, and their families, have created a new form of intellectual property interest called the right of publicity, a right to exploit one’s identity for commercial purposes. This right permits famous people—and increasingly their heirs and legatees—to control how, and demand payment when, their names and faces are used by others. Moreover, the right is freely alienable, meaning that it can be transferred to third parties in whole or in part. Most of the scholarship examining this form of intellectual property has concentrated on the justifications for giving famous people this kind of control over, and right to profit from, the commercial use of their identities, or on the First Amendment ramifications of the interest. In other words, the scholarship has focused on the pros and cons of creating a property interest that advantages a celebrity, her heirs, and assigns. But the legal assignment of property status to an interest can, under some circumstances, decrease, rather than increase, the control that the “owner” has over the valued asset. That darker side of the equation has received almost no attention either in the literature or in the case law dealing with publicity. In this Article, we examine the right of publicity as an asset in the context of the debtor-creditor system. Whereas personal rights in one’s privacy or reputation are generally unavailable for creditor seizure and sale, the transformation of the persona into a commodity logically should make it vulnerable to seizure by an unsatisfied creditor, permitting control over how the right is exploited to be transferred by sale to the highest bidder. The right of publicity presents some complexities in the debtor-creditor context because the property interest in some cases may need to be disentangled from its residual overlay of personal rights, and because the use of property to satisfy a creditor’s claims must be handled in a way that respects the debtor’s right to the benefits of her future labor. Our examination of the issues leads us to conclude that the complexities presented by treating publicity rights as property in the debtor-creditor context are resolvable and indeed are similar to those presented by other types of property that are currently recognized as such in the debtor-creditor system and used to satisfy unpaid debts; the complexities do not militate against treating the right of publicity as an asset in the debtor-creditor system.

Provisional Precedent: Protecting Flexibility in Administrative Policymaking

Kenneth A. Bamberger

The rule of strict stare decisis, when a court construes a statute before an agency does, the judicial interpretation becomes binding precedent, even when Congress has delegated primary interpretive authority to the agency. In this Article, Kenneth Bamberger argues that the Supreme Court’s adherence to this strict rule of precedent for the interpretations of administrative statutes undermines the separation-of-powers justifications for agency administration and jeopardizes effective policymaking. He illustrates how the Supreme Court’s decision in United States v. Mead, which limits the types of agency constructions that deserve judicial deference, dramatically increases the opportunities for courts to interpret statutes on their own. In response to the constitutional and normative disconnects caused by judges’ enhanced ability to commandeer agency discretion, Bamberger proposes a model of provisional precedent as an alternative to strict stare decisis. This approach, based on the federalism model that governs federal court adjudication of state law issues, gives stare decisis effect to reasonable judicial constructions of regulatory statutes only until governing agencies make binding interpretations of their own.

Integration, Affirmative Action, and Strict Scrutiny

Elizabeth S. Anderson

This Article defends racial integration as a central goal of race-based affirmative action. Racial integration of mainstream institutions is necessary both to dismantle the current barriers to opportunity suffered by disadvantaged racial groups, and to create a democratic civil society. Integration, conceived as a forward-looking remedy for de facto racial segregation and discrimination, makes better sense of the actual practice of affirmative action than backward-looking compensatory rationales, which offer restitution for past discrimination, and diversity rationales, which claim to promote non-remedial educational goals. Integrative rationales for affirmative action in higher education also could easily pass equal protection analysis, if only the point of strict scrutiny of racial classifications were understood. Unfortunately, the development of strict scrutiny as an analytical tool has been hampered by the Court’s confusion over the kinds of constitutional harm threatened by state uses of racial classification. This Article sorts out these alleged harms and shows how strict scrutiny should deal with them. It shows how narrow-tailoring tests constitute powerful tools for putting many allegations of constitutional harm from race-based affirmative action to rest, and for putting the remainder into perspective. It also argues that there is no constitutional or moral basis for prohibiting state uses of racial means to remedy private-sector discrimination. Integrative affirmative action programs in educational contexts, which aim to remedy private-sector discrimination, can therefore meet the requirements of strict scrutiny, properly interpreted.


“We Would Not Defer to that Which Did Not Exist”: AEDPA Meets the Silent State Court Opinion

Claudia Wilner

The Antiterrorism and Effective Death Penalty Act (AEDPA), enacted in 1996
changed both federal habeas procedure and the relationship between federal and state courts. A new provision, § 2254(d), requires federal courts to defer to the legal conclusions of state courts unless those conclusions are “contrary to, or involved an unreasonable application of clearly established federal law.” This deferential schema becomes problematic when, as often happens, a prisoner presents a federal constitutional claim to the state courts, but the state court opinions denying relief do not mention the federal claim. How can federal courts assess the reasonableness of a decision that may not exist? The circuit courts have proposed widely variant solutions to this problem, ranging from de novo review to an extreme deference to state court results. In this Note, Claudia Wilner argues that a federal court should not defer to a state court decision unless it is accompanied by an opinion that actually discusses the federal claim. After considering and rejecting the various circuit approaches to reviewing silent state court opinions, she proposes a new approach that balances Congressional intent, Supreme Court precedent, federalism concerns, and the interest of the prisoner seeking review.

An Analysis of State Responsibility for the Chinese-American Airplane Collision Incident

Margaret K. Lewis

In this Note, Margaret Lewis revisits the Chinese-American air-crash incident of 2001 to evaluate the claims made by each nation that the other acted in violation of international law. After assembling the relevant laws that would have been applied if the matter were resolved in an international tribunal, Lewis concludes that the United States was not in contravention of any of them. She does, however, suggest that it would be best if the two countries formulated “rules of the road” to reduce the probability of repeat accidents and to avoid protracted disputes over international law like those witnessed in the instant case.

In Whole or In Part: Group Rights, the Intent Element of Genocide, and the “Quantitative Criterion”

David Alonzo-Maizlish

In the 1990s, in the wake of large-scale massacres, the United Nations Security Council established the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR). The statutes of these courts adopted the definition of genocide from the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), which requires an “intent [by the accused] to destroy, in whole or in part, a national, ethnical, racial or religious group” to prove genocide. In practice, the tribunals have struggled to apply the intent requirement. The ICTR, in its first genocide conviction, ruled that intent may be inferred from certain presumptions of fact, including the general context of the acts in question and the nature and scale of atrocities. Later, the ICTY applied a “quantitative criterion” by ruling that any inference of genocidal intent requires that the accused’s actions affect a great number of people. In this Note, David Alonzo-Maizlish argues that, as a threshold for genocidal intent, the “quantitative criterion” contradicts the object and purpose of the definition of genocide in the Genocide Convention. By reviewing the theory and history of group rights and the Genocide Convention, Alonzo-Maizlish demonstrates that the quantitative element is incompatible with the group-held right to exist on which the concept of genocide is premised He concludes that the “quantitative criterion” is an obstacle to the development of a meaningful intent standard.