LA Copyright Society

Upcoming Zoom Event

Wednesday, March 10, 2021

@ 7:00 p.m. (PST)

The Curious Case of the

Restatement of Copyright Law

Professor Shyam Balganesh

For nearly a century, the American Law Institute’s (ALI) Restatements of the Law have played an important role as sources of law in the American legal system. And in all of this time, they refrained from restating areas of law dominated by a uniform statute despite the proliferation and growing importance of such statutes, especially at the federal level. This omission was deliberate and in recognition of the fundamentally different nature of the judicial role and of lawmaking in areas governed by detailed statutes. Then in 2015, without much deliberation, the ALI embarked on the task of restating U.S. copyright law, an area dominated by a detailed federal statute. In so doing, the ALI ignored not just calls to revisit the form and method of its traditional Restatements but also the extensive history of the deep mismatch between the Restatements and statutory domains that has informed the working of the enterprise over the course of the last century.

Professor Balganesh will discuss his article, coauthored with Professor Peter Menell, Restatements of Statutory Law: The Curious Case of the Restatement of Copyright, exploring the analytical and historical foundations of that mismatch and why perfunctory extension of the common law Restatement model to copyright law produces incoherent, misleading, and seemingly biased results that risks undermining the legitimacy of the eventual product. Professor Balganesh will also discuss how the mismatch is capable of being remedied by a series of modest—yet significant—changes, which could allow the project to serve as a template for future statutory Restatements.

Professor Balganesh writes and teaches in the areas of copyright law, intellectual property, and legal theory. He has written extensively on understanding how intellectual property and innovation policy can benefit from the use of ideas, concepts, and structures from different areas of the common law, especially private law. His recent work explores the interaction between copyright law and key institutional features of the American legal system. He is also working on a series of articles advancing an account of “legal internalism” that explains the shape and trajectory of legal thinking. Balganesh’s work has appeared in leading law journals, including the Columbia Law Review, Harvard Law Review, Stanford Law Review, University of Pennsylvania Law Review, and Yale Law Journal. He is also a co-author of sections of the leading copyright law treatise Nimmer on Copyright.

Before joining the Columbia Law School faculty, Balganesh was a professor of law and co-director of the Center for Technology, Innovation and Competition at the University of Pennsylvania Carey Law School. Prior to that, he was a Bigelow Fellow at the University of Chicago Law School. He received his J.D. from Yale Law School, where he was an articles and essays editor of the Yale Law Journal and a student fellow at the Information Society Project. Prior to that, he spent two years as a Rhodes Scholar at Balliol College, Oxford, where he received a B.C.L. and M.Phil in 2017, he was elected a member of the American Law Institute, and since 2015 has served as an adviser to the Restatement of the Law, Copyright. Balganesh also has been recognized for his teaching: In 2017, he received the Robert A. Gorman Award for Excellence in Teaching and, in 2015, the A. Leo Levin Award for Excellence in an Introductory Course, both at the University of Pennsylvania Law School.