Texas Law Review See Also

Response How Norm Entrepreneurs and Membership Associations Contribute to Private Ordering: A Response to Fagundes

Robert C. Ellickson*

Austin is the Mecca of women’s .1 In 2001, Austin skaters transformed this moribund sport into a hipper form of entertainment, leading to its renaissance.2 The and the TXRD Lonestar Rollergirls, both based in Austin, are among the best known of the 147 women’s roller-derby leagues worldwide.3 It thus is fitting that the Texas Law Review is publishing David Fagundes’s sparkling account of how the derby skaters themselves came to create and honor a Master Roster that curbs infringement of skating pseudonyms.4 Especially since the early 1990s, legal scholars have produced dozens of thick descriptions of the social norms that govern particular social spheres.5

* Walter E. Meyer Professor of Property and Urban Law, Yale Law School. I am indebted to David Fagundes for his remarks on a preliminary version of this Response. 1. Kate Donbavand, The Devil in Derby Skates, GOZAMOS (April 9, 2010), http://gozamos.com/2010/04/the-devil-in-derby-skates/ (referring to Austin as ―the [M]ecca of roller derby revival‖). 2. Tam Eastley, Reborn in Austin, Roller Derby Spreads to Berlin, KUT NEWS (Feb. 16, 2012), http://kutnews.org/post/reborn-austin-roller-derby-spreads-berlin (―Modern roller derby dates back to 2001 in Austin, Texas where it was revived from what was essentially a multi-day skate-a-thon to what it is now: a full contact sport for women played entirely on quad roller skates.‖). 3. For a tally of the recognized leagues, see WFTDA, Member Leagues, http://wftda.com/leagues. 4. David Fagundes, Talk Derby to Me: Intellectual Property Norms Governing Roller Derby Pseudonyms, 90 TEXAS L. REV. 1093. 5. E.g., ROBERT C. ELLICKSON, ORDER WITHOUT LAW (1991) (rural neighbors); Lisa Bernstein, Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21 J. LEGAL STUD. 115 (1992) (diamond industry); Dotan Oliar & Christopher Sprigman, 248 Texas Law Review See Also [Vol. 90:247

Fagundes’s contribution to this genre is exemplary in many respects. In this Response, I highlight his major accomplishments, but also suggest how his account might have been deeper. In the latter sections, I discuss several critical issues that he has flagged. The skaters’ Master Roster is not a document that can be altered bottom-up by any random participant, but instead a document controlled top-down by self-appointed leaders whom the other skaters have come to regard as their authorized agents.6 These features invite discussion of the role of norm entrepreneurs and nongovernmental organizations in the overall system of social control.

I. Praise Fagundes deserves kudos for choosing to study the nonlegal protection of roller derby names. By accessing internet chat rooms and then following up with e-mail messages and interviews, he was able to burrow deep into the social world of the derby skaters. Because the skaters’ pseudonyms largely protect their privacy interests, he felt uncommonly free to pepper his article with references to specific participants, thereby bringing this social milieu to life. The descriptive portions of his article are page-turners, on account not only of the playfulness of the monikers that the skaters have chosen, but also Fagundes’s superior writing skills. Fagundes also has an eye for issues of theoretical importance. He recognizes that the renaissance of roller derby presents an opportunity to test the Demsetzian proposition that new forms of property rights emerge when cost-benefit conditions change.7 He convincingly argues that his findings add to the mountain of evidence that refutes the legal-centralist conception that individuals look only to the legal system to find the rules that govern their conduct.8 As all legal scholars who study norms agree, social order arises from not only state dictates and enforcement, but also from the decentralized social controls administered by individuals, households, and private associations.9

There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 VA. L. REV. 1787 (2008) (stand-up comedy); Kal Raustiala & Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92 VA. L. REV. 1687 (2006) (fashion industry). 6. See Fagundes, supra note 4, at 1115–26. 7. See id. at 1116 (citing Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. 347 (1967)). 8. When resolving disputes among themselves, the skaters ―have a particularly strong aversion to law and lawyers.‖ Id. at 1138. By contrast, when skaters deal with firms and individuals outside the derby world, they commonly are willing to invoke the protections of trademark law. Id. at 1129–31. See also ELLICKSON, supra note 5, at 94–100 (describing how rural residents of Shasta County, California, who applied norms to resolve disputes between neighbors, turned to the legal system to resolve disputes over serious auto accidents, in which the other party typically was a stranger). 9. See generally Richard H. McAdams, The Origin, Development and Regulation of Norms. 96 MICH. L. REV. 338 (1997) (discussing the emergence of norms in informal settings). 2012] Response 249

And Fagundes demolishes the view that norms only fill ―negative spaces‖ that the law hasn’t already occupied. In fact, when Hydra, the key norm entrepreneur in his tale, established the institutions that led to the Master Roster, she saw no reason to make a thorough investigation of the rules of trademark law that in fact provided an alternative source of name protection.10 Members of a closely-knit group typically sense that using the formal rules of private law is an inherently expensive process, and also anticipate that they themselves would outperform lawmakers in the tasks of establishing rules and enforcement mechanisms. When individuals hold these beliefs, they don’t waste time and money investigating the formal law that might apply, but instead reject it sight unseen. Derby skaters rightly consider their Master Roster system to be administratively cheaper than trademarking.11 And as long as they remain in control of the roster, they plausibly think that their Master Roster rules, substantive and procedural, will end up being sound.12 Fagundes also is alert to opportunities for fresh analytic contributions. He stresses that derby skaters regard their participation as ―identity constitutive,‖ an outlook that raises their estimation of the stakes involved when use of a skating name is infringed or diluted.13 He notes that derby skaters never sell their pseudonyms.14 The transfer of an established name would tend to create confusion and thus depreciate the value of all skating monikers.15

II. Underexploited Opportunities Although Fagundes’s account is admirably thick, at places some readers might wish for more detail and analysis.

A. Motivations That Induce Personal Contributions to the System of Informal Social Control Social forces constrain the actions of individuals, but social forces themselves do not generate norms. A new norm, such as the skaters’ Master Roster, instead emerges from the actions of specific individuals. In my view, the key participants in norm creation are the norm entrepreneurs who propose new institutional approaches (and, in many contexts, the opinion

10. Fagundes, supra note 4, at 1135–36. 11. Id. at 1134 (estimating the cost of a trademark at $1,000). 12. Id. at 1135–36. 13. Id. at 1098 (citing GEORGE A. AKERLOF & RACHEL E. KRANTON, IDENTITY ECONOMICS: HOW OUR IDENTITIES SHAPE OUR WORK, WAGES, AND WELL-BEING 88 (2010)). See also Fagundes, supra note 4, at 1112–13. 14. Id. at 1110 n.80. 15. Id. at 1110–11. Although Fagundes reports that there is no articulated norm against the sale of a name, the paucity of sales suggests otherwise. 250 Texas Law Review See Also [Vol. 90:247

leaders who mobilize support for a particular approach).16 As noted, Hydra, an Austin-based skater, was the key norm entrepreneur in Fagundes’s saga.17 He commendably aspired to understand why she was willing to put in so much effort to create the roster, given that she might have sat back and hoped that others would act.18 The law review literature on social norms highlights three different kinds of utility that a successful norm entrepreneur might garner.19 Although Fagundes refers to all three sorts of rewards, his discussion of them is scattered. First, in a foundational contribution, Richard McAdams advances a theory that supposes that Hydra’s peers would reward her with positive esteem.20 And it indeed appears that they did. Fagundes mentions that Hydra once served as the President of the Women’s Flat Track Derby Association (WFTDA).21 In fact, in 2006–2007, shortly after she relinquished the Master Roster to Paige Burner and others, she served as its first President.22 It is also pertinent that, beginning in 2008, the WFTDA began awarding the Hydra Trophy to the team that had won its annual championship tournament.23 Esteem was indeed hers. McAdams’s key insight is that it is virtually costless for a member of a group to confer positive or negative esteem on another member.24 As a result, there is no incentive to free-ride on others’ provision of esteem. Esteem sanctions thus help to overcome what some theorists of cooperation call the ―second-order collective action problem‖—the need to reward individuals who work to maintain informal systems of social control. Second, while McAdams posits that individuals value esteem for its own sake, Eric Posner supposes that garnering esteem is valued because it enhances a person’s future exchange opportunities.25 Fagundes might have

16. Robert C. Ellickson, The Market for Social Norms, 3 AM. L. & ECON. REV. 1, 15–17 (2001). 17. Fagundes, supra note 4, at 1116. 18. Id. at 1138–46. The classic source on the risk that free-riding will result in the underproduction of public goods is MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS (1971). 19. Fagundes asserts that members of what he (oddly) calls the ―rational-choice‖ school believe that an individual seeks only ―pecuniary gain‖ or ―tangible rewards,‖ as opposed to, for example, status or a sense of self-respect. Fagundes, supra note 4, at 1141–43. This caricature was rarely apt even during the 1970s, when a crude form of Chicagoan law-and-economics was ascendant. With the subsequent advent of norms scholarship and behavioral economics, it verges on the fanciful. Does any contemporary legal scholar deny the reality of, say, altruism and status-seeking? 20. See generally McAdams, supra note 9. See also Fagundes, supra note 4, at 1140 (discussing status rewards). 21. Fagundes, supra note 4, at 1116. 22. Board of Directors, WOMEN’S FLAT TRACK DERBY ASS’N, http://wftda.com/board-of- directors.

23. The Hydra, WOMEN’S FLAT TRACK DERBY ASS’N, http://wftda.com/hydra-trophy. 24. McAdams, supra note 9, at 355–75. 25. ERIC A. POSNER, LAW AND SOCIAL NORMS (2000). Fagundes discusses Posner’s analysis at 1128 & n.178. The current version of the Master Roster rules is available at 2012] Response 251

questioned Hydra about opportunities that her work on the roster had opened up for her. Her answers possibly might have contributed to the resolution of the McAdams–Posner debate. Third, several legal scholars who study the emergence of norms emphasize the role of first-party sanctions, as opposed to third-party sanctions such as positive esteem.26 For example, Yochai Benkler, Dan Kahan, Lior Strahilevitz, and other legal scholars have argued that most individuals, as a result of the forces of nature and nurture, harbor a deeply internalized norm of reciprocity.27 An individual of this sort may contribute to the creation of a norm because contributing is intrinsically pleasurable. Fagundes alludes to this possibility when he describes the Master Roster as a ―labor of love‖ and a product of ―altruism.‖28 To illustrate, Hydra, after putting in long hours maintaining the Master Roster of pseudonyms, might have basked in a warm glow of self-satisfaction.29 Conversely, if she had thought of herself as a free-rider on the efforts of others, she might have felt the cold prickle of guilt.30 Fagundes might have worked harder to fathom the motivations of the skaters who served as administrators of the Master Roster. He reports that Hydra and Paige Burner both ceded those positions after a few years in office. Had their glows of self-satisfaction become less warm as the years passed? Did they find the work increasingly boring? Had they sensed that their status had begun to plateau? Were they, as Posner might suppose, witnessing a falloff in advantageous exchange opportunities?

http://twoevils.org/rollergirls/rules.html. The pseudonyms of the roster’s administrators appear at the bottom of this webpage. These identifications give derby skaters some capacity to confer both esteem and exchange opportunities. 26. See, e.g., ELLICKSON, supra note 5, at 126–32; Robert D. Cooter, Normative Failure Theory of Law, 82 CORNELL L. REV. 947, 969 (1997). 27. YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM (2006); Dan M. Kahan, The Logic of Reciprocity: Trust, Collective Action, and Law, 102 MICH. L. REV. 71, 72 (2003); Lior Strahilevitz, Charismatic Code, Social Norms, and the Emergence of Cooperation on the File-Sharing Networks, 89 VA. L. REV. 505 (2003). 28. Fagundes, supra note 4, at 1140, 1150 n.283. 29. Intrinsic rewards may have particularly motivated Paige Burner. The hours that Paige Burner devoted to name-roster project far exceeded Hydra’s. Id. at 1150 n.281. But the skaters, at least in their associational decisions, conferred more esteem on Hydra. See supra notes 20–24 and associated text. 30. Cf. Fagundes, supra note 4, at 1127–29 (discussing motivations that limit free-riding). The possibility of self-sanction is gaining currency within the discipline of economics. See generally James Andreoni, Warm-Glow Versus Cold-Prickle: The Effects of Positive and Negative Framing on Cooperation in Experiments, 110 Q.J. ECON. 1 (1995); Pierpaolo Battigalli & Martin Dufwenberg, Guilt in Games, 97 AM. ECON. REV. 170 (2007). 252 Texas Law Review See Also [Vol. 90:247

B. The Personal Attributes of Successful Norm Entrepreneurs Hydra unilaterally published early versions of both the Master Roster and the rules to govern the legitimacy of a proposed pseudonym.31 Apparently without protest, the other skaters accepted Hydra’s system as authoritative. Fagundes might have included more explicit discussion of what enabled Hydra to pull off this feat. To be successful, a norm entrepreneur has to propose norms of high quality. In my view, the members of a group are apt to apply utilitarian criteria when assessing the merits of a proposed norm. This requires attention to both the administrative costs of the norm and its incentive effects.32 Hydra’s rules had both of these virtues.33 Her roster rules retrospectively awarded entitlements to incumbent users of pseudonyms and prospectively favored those who first submitted for registration a sufficiently fresh name. First-in-time rules of course are commonly observed in property law, including intellectual property law.34 These rules are relatively simple to apply, and also—in most instances— reward an innovator who has exhibited the Lockean virtue of productive labor.35 By analogy, the relatively high quality of Edmond Hoyle’s unilaterally proffered rules for card games36 and of Henry Robert’s rules for conducting meetings37 presumably helped both of these norm entrepreneurs win adherents. According to Daniel Nazer, by contrast, none of the various efforts by would-be norm entrepreneurs to set out the entitlements of a surfer to ride a breaking wave has yet to command a consensus among surfers worldwide.38 Endorsement by respected opinion leaders also can help trigger a cascade toward a meritorious new norm.39 Fagundes does not discuss

31. Soylent Mean appears to have been a key figure in the development of the current system of rules. Fagundes, supra note 4, at 1118. 32. Robert C. Ellickson, A Hypothesis of Wealth-Maximizing Norms: Evidence from the Whaling Industry, 5 J.L. ECON. & ORG. 83, 87 (1989). Successful norm entrepreneurs thus commonly have superior technical knowledge about how to solve the collective-action dilemma that the group confronts. See Ellickson, supra note 16, at 15. 33. Cf. Fagundes, supra note 4, at 1117 (referring to Hydra’s ―five simple rules‖). 34. Id. at 1118 n.129. Hydra’s Master Roster also may have become focal because it was first in time, in a social context where skaters would prove to be amenable to the application of first-in- time rules of entitlement. 35. A rule that a pseudonym belongs to the first person to have invented or used it (as opposed to have submitted it for registration), would have been yet more Lockean, but also much less simple to apply. See id. at 1116–17 (discussing problems arising, prior to Hydra’s roster, in the application of a first-to-use norm). 36. See History of Hoyle, HOYLE, http://www.hoylegaming.com/c-9-history-of-hoyle.aspx. 37. See The Official Roberts Rules of Order Online Homepage, ROBERT’S RULES ASSOCIATION, http://www.robertsrules.com/. 38. Daniel Nazer, The Tragicomedy of the Surfers’ Commons, 9 DEAKIN L. REV. 655, 664, 705 (2004) (describing initiatives of the Surfrider Foundation of and the websites NEsurf and Surfline). 39. See Ellickson, supra note 16, at 16 (emphasizing the superior social intelligence and social standing of these individuals). 2012] Response 253

whether or not Hydra’s system picked up endorsements during its formative days. In addition to the high quality of Hydra’s roster rules, her high status in the derby world may have enabled her to succeed even without others’ signals of support. Internet sources reveal that, when Hydra initiated her roster, she was already a roller derby star. She started skating in Austin in 2001, prior to the first official bouts there, and thus was an early contributor to the rebirth of the sport.40 In 2003, she received the Golden Skate Award, and in each year between 2002 and 2005 (the span during which she started her Master Roster),41 she won the annual award for Best Team Pivot.42 In both 2005 and 2006, well after her initiation of the roster, Hydra was honored as Miss Texas Rollergirl.43 As noted, in 2005 Hydra handed off responsibility for the Master Roster to a team of three volunteers headed by Paige Burner.44 Why did the other skaters accept the authority of these unelected and somewhat less illustrious successors? Here again the utilitarian merits of the roster likely were key. The derby skaters probably acquiesced in the transfer because they recognized the value of perpetuating Hydra’s Master Roster. The roster had helped them solve the collective-action problem that they faced, and also had emerged as their focal solution to that problem.45

C. Overlapping Social Circles That Go Undiscussed A small group of self-perpetuating volunteers govern the Master Roster and choose to operate it on a money-free basis.46 The social circle surrounding the roster, however, overlaps several other social circles that have different characteristics. Fagundes mentions the WFTDA, a seemingly more bureaucratic organization, but says little about the functions this association performs.47 Why didn’t Hydra, when she became the WFTDA’s

40. See Fagundes, supra note 4, at 1100; Hydra, TEXAS ROLLERGIRLS, http://www.texasrollergirls.org/teams-staff/retired-skaters/hydra/. 41. Fagundes is vague regarding the exact date, undoubtedly because Hydra herself was. See Fagundes, supra note 4, at 1116. 42. Hydra, supra note 40. 43. Id. 44. Fagundes, supra note 4, at 1116. Successful transfer of authority is anticipated in Max Weber’s classic discussions of the ―routinization of charisma‖ and the designation of successors. See 2 MAX WEBER, ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETIVE SOCIOLOGY 1121–27 (Guenther Roth & Claus Wittich eds., 1978). 45. See THOMAS C. SCHELLING, THE STRATEGY OF CONFLICT 57–59 (1960) (introducing the notion of focal points). Fagundes ultimately characterizes a battle between two rival claimants over a derby name as a Prisoners’ Dilemma. Fagundes, supra note 4, at 1113. As Richard McAdams has warned, however, not all collective-action dilemmas can be shoe-horned into this category. See Richard H. McAdams, Beyond Prisoners’ Dilemma: Coordination, Game Theory, and Law, 82 S. CAL. L. REV. 209, 223–25 (2009) (describing other games such as Hawk-Dove). 46. Fagundes, supra note 4, at 1150–51. 47. Id. at 1111, 1130–31. The WFTDA is a nonprofit organization organized as a non-profit business league association under section 501(c)(6) of the Internal Revenue Code. All About 254 Texas Law Review See Also [Vol. 90:247

first president, arrange for the association to take over management of the roster? Because skaters are not paid, their norms are said to emerge ―in the absence of market forces.‖48 Yet when filmmakers and game-makers seek to portray women’s roller derby, skaters do not hesitate to seek a piece of the financial largesse.49 Spectators pay to attend a roller derby bout, but we learn nothing about who shares in the proceeds at the gate. At places, Fagundes suggests that social proximity to money transactions either weakens norms sustained by gift-exchange and altruism, or interacts with them in zero-sum fashion.50 Market and nonmarket systems of exchange perhaps are better seen as complements than as antagonists or offsets. A well-socialized adult should able to see the advantages of being able to move seamlessly from a world of gift exchange within the household to a world of commerce at the local supermarket.51 Perhaps a derby skater can as well.

III. The Role of Membership Associations in the Overall System of Social Control Fagundes discusses whether the rules that Hydra and her successors developed to govern skater pseudonyms can properly be characterized as a body of ―law.‖52 He articulates the notion of a law/norms ―binary,‖ and then rightly criticizes that conception.53 The rules of the overall system of social control cannot be reduced to any twosome. I have found it useful to distinguish among five ―controllers‖ in a society that are capable of making rules and undertaking enforcement actions.54 The three pertinent ones, for present purposes, are the various ―third-party‖ controllers: the diffuse social forces that create norms, the governments that create laws, and the organizations that create organizational rules. A government has geographically defined boundaries and potentially can coercively control all individuals within those boundaries, even if they have not submitted themselves to its authority.55 A nongovernmental organization, such as the WFTDA, lacks these powers. As Fagundes implies, the social-control functions of nongovernmental hierarchies warrant greater scholarly attention than they have received.56

WFTDA, WOMEN’S FLAT TRACK DERBY ASS’N, http://wftda.com/about-WFTDA. It is the successor of the first women’s derby association, established in 2004. Id. 48. Fagundes, supra note 4, at 1143. 49. Id. at 1129–31. 50. Id. at 1146. 51. See ROBERT C. ELLICKSON, THE HOUSEHOLD: INFORMAL ORDER AROUND THE HEARTH 102–06 (2008) (describing the advantages of gift exchange in intimate contexts). 52. Fagundes, supra note 4, at 1146–49. 53. Id. at 1149. 54. ELLICKSON, supra note 5, at 126–32. 55. Id. at 127–28. 56. Fagundes, supra note 4, at 1135. There is a cursory discussion of the roles of associations in social control in ELLICKSON, supra note 5, at 248–49. 2012] Response 255

Business associations exist to produce goods and services for sale to outsiders. Membership associations, by contrast, exist to provide goods and services to members. Some types of membership associations, such as labor unions, residential community associations, and bar associations, have attracted sustained attention from specialized scholars. Theorists with an interest in the workings of the overall system of social control, however, seldom discuss, in general terms, the roles that membership associations play in rule-making, rule-enforcement, and adjudication. Under what circumstances are membership associations formed? Both the residents of rural Shasta County and nineteenth-century whalers were closely knit and honored shared norms, but neither group ever formed a membership organization to help coordinate their interactions.57 The derby skaters, by contrast, created the WFTDA and also conferred legitimacy on the hierarchs who administered their Master Roster. If members of a group pursue utilitarian ends, they can be expected to favor creation of an association when they anticipate that an institution of that sort would efficiently provide public goods that they value.58 When members do create a private membership association, there arises the question of the powers that the association should possess.59 Fagundes mentions the possibility of a ―user-generated governance system.‖60 I interpret this phrase to refer to what I will call a ―strong association‖—that is, a hierarchy that designates agents both to promulgate rules to govern member behavior and also to arbitrate disputes involving the application of these rules. Hydra and her successors at the Master Roster possessed these two powers. In other contexts, by contrast, members of a group may establish a ―weak organization‖—one unauthorized to engage in rulemaking and adjudication.

A. Strong Membership Associations A strong association is most likely to emerge in a context where the members of a group anticipate that a hierarchy of this sort would be able to provide the public good of social control better than it could be provided by any alternative mechanism, such as the legal system or their own self-help enforcement of norms. Lisa Bernstein found that both Manhattan diamond dealers61 and Memphis cotton merchants62 had strong associations; Mark West found that Japanese sumo wrestlers did as well.63

57. See ELLICKSON, supra note 5, at 115–120, 191–206. 58. See Fagundes, supra note 4, at 1135–38. Because incentives to free-ride cannot always be countered, there likely are a suboptimal number of associations. 59. Membership associations vary widely in formality of organization. A team in a bowling league governed solely according to the oral understandings of its members would fall near the pole of informality. Near the other pole would be a nonprofit association formally chartered under state law. 60. Id. at 1099, 1131, 1143. 61. Bernstein, supra note 5. 256 Texas Law Review See Also [Vol. 90:247

Fagundes’s study is intriguing because when Hydra first set up the roster she was not acting on the authority of the WFTDA (or any of its predecessors). Instead, she unilaterally asserted personal authority both to adopt rules governing the acceptability of a new pseudonym and to adjudicate any disputes that would arise under those rules.64 In due time, the superior quality of Hydra’s services and her high social standing in the skating community earned her roster legitimacy in the eyes of derby skaters.65 They seem to have been aware that they were facing a challenging collective-action problem that they would be unable to solve in the absence of a leader with hierarchical powers. Hydra, in short, had done them a favor. Once the roster had been established, path-dependence and the skaters’ antipathy to formal structure appear to have kept it under the aegis of Hydra’s self-perpetuating successors, as opposed to the WFTDA. This arrangement has shortcomings because the Master Roster’s administrators have limited enforcement powers. When a skater proposed the name Izabelle Ringer, the roster managers declined to approve it because it would have infringed the entitlements of Isabelle Ringer. The managers also encouraged Isabelle to send cautionary e-mails to Izabelle.66 Nonetheless, Izabelle continued to skate in bouts.67 If the WFTDA were to have been maintaining the roster, by contrast, it might have been able to sanction the team that had included Izabelle among its skaters.68

B. Weak Membership Associations Even a weak membership association typically enforces at least one basic rule: that it will provide services only to those who pay its dues and fees.69 Beyond that, a weak association by definition does not impose significant mandatory rules of conduct on its members.70 It instead attracts support by providing public goods other than the social control of the

62. Lisa Bernstein, Private Commercial Law in the Cotton Industry: Creating Cooperation Through Rules, Norms, and Institutions, 99 MICH. L. REV. 1724 (2001). 63. Mark D. West, Legal Rules and Social Norms in Japan’s Secret World of Sumo, 26 J. LEGAL STUD. 165 (1997). 64. Fagundes, supra note 4, at 1116–24. 65. See supra text accompanying notes 31–43. 66. Fagundes, supra note 4, at 1126 n.169. 67. Id. 68. Fagundes discusses the problem of enforcement. See id. at 1124–29. 69. See, e.g., How to Join the Society of American Magicians, THE SOC’Y AM. MAGICIANS, http://www.magicsam.com/jointhesam.asp (providing a list of the various membership levels and associated dues); NAT’L ASS’N COMEDIANS, LLC, http://www.nacomedy.com/ (listing membership dues as $10.99 per year for comedian members and $125 per year for associate members); Financial Statements, COUNCIL FASHION DESIGNERS AM., http://www.cfda.com/financial- statements/ (follow ―2009 Financial Statement‖ hyperlink) (listing membership dues as part of the income in 2009 in the combined financial statement of the Council of Fashion Designers of America and the CFDA Foundation). 70. Cf. Joel M. Podolny & Karen L. Page, Network Forms of Organization, 24 ANN. REV. SOC. 57, 59 (1998) (describing entities of this general type). 2012] Response 257

membership. Thus a weak organization may hold an annual convention, circulate a newsletter, seek to generate favorable publicity for members, and lobby public officials on their behalf. An association of licensed professionals commonly promulgates a code of ethics for its members.71 A strong association would have the authority to delicense members and otherwise enforce its code.72 Even though a weak association would lack these enforcement powers, the code’s principles might nonetheless still have some bite. The association’s members might look to it for guidance in how to identify miscreants, whom the members then could punish with negative gossip or other informal penalties. Several of the groups that Fagundes mentions in his introduction have created weak membership associations. In 1902, U.S. magicians organized the still-vibrant Society of American Magicians. Jacob Loshin’s discussion of disputes between magicians arising out of the copying of tricks, however, never mentions the Society’s involvement in these disputes.73 Oliar and Sprigman’s study of the comedians’ methods of controlling the nonconsensual borrowing of jokes similarly makes no reference to the involvement of the National Association of Comedians.74 This same pattern is reflected in the social arrangements of fashion designers, the subject of an article by Raustiala and Sprigman.75 The Council of Fashion Designers of America, the designers’ most influential association, holds gala events and supports educational programs, but steers clear of disputes over the alleged stealing of designs.76 The members of all these groups are unable to turn to law to prevent the copying of innovations. Their unwillingness to involve their associations in infringement disputes may indicate that they expect that their diffuse enforcement of informal norms will adequately constrain copying that they deem to be illegitimate.

IV. Conclusion Talk Derby to Me is a major contribution. To say that David Fagundes could have pushed the edge of the envelope a bit more is not to detract from what he has accomplished. Thanks in part to the inventiveness of the derby skaters themselves, his article enthralls as well as enlightens.

71. For examples, see generally CODES OF PROFESSIONAL RESPONSIBILITY: ETHICS th STANDARDS IN BUSINESS, HEALTH, AND LAW (Rena A. Gorlin ed., 4 ed. 1999). 72. See, e.g., Bernstein, supra note 5, at 115; Bernstein, supra note 62, at 1738; West, supra note 63, at 194 & n.81. 73. Jacob Loshin, Secrets Revealed: Protecting Magicians’ Intellectual Property without Law, in LAW AND MAGIC: A COLLECTION OF ESSAYS 123 (Christine A. Corcos ed., 2010). 74. Oliar & Sprigman, supra note 5. 75. Raustiala & Sprigman, supra note 5. 76. Id. at 1756.