The Marginalism Argument

This article from Sunday’s Boston Globe (front page, below the fold), is a great example of the weirdness of the marginal argument — the absence of protection means that, at the margin, there are those who elect not to participate. What’s left out, of course, is the needed balancing of the benefit of this marginal participant against the cost of a prior restraint on expression — but I really should read the article (“The Law, Culture, and Economics of Fashion.” C. Scott Hemphill and Jeannie Suk. Stanford Law Review, V.61 n.5. March 2009. pp 1147-1199. Kal Raustiala and Chris Sprigman present some counters, grounded in the “negative space” discussion, in “The Piracy Paradox Revisited” pages 1201-1225. Hemphill and Suk get to rebut in “Remix and Cultural Production.” C. Scott Hemphill and Jeannie Suk. Stanford Law Review, V.61 n.5. March 2009. pp 1227-1232.) to find out whether Prof. Suk’s argument includes this (it is not really here in the Globe): Should the law protect fashion from knockoffs? [pdf]

Jeannie Suk is poised, elegant, but decidedly conservative in her attire of muted grays, browns, and blacks. She is as well known for her teachings on feminism as for being the first Asian-American woman on the tenure track at Harvard Law School.

So why is the 37-year-old Suk, a Guggenheim fellow at Harvard Law School, at the heart of a heated debate in the fashion world about designer dresses and $900 shoes?

After coauthoring an extensive piece for the Stanford Law Review about why American fashion designers should have copyright protection against inexpensive knockoffs, something Euro pean [sic] designers have enjoyed for more than 25 years, Suk became a sought-after authority on the subject. Now Senator Charles Schumer of New York is drafting legislation that would give American fashion designers copyright protection and Suk is helping with the bill’s language.