Digital Commons Network^™

Fall 2021 Supplement To Brauneis & Schechter, Copyright: A Contemporary Approach, Robert Brauneis, Roger E. Schechter

GW Law Faculty Publications & Other Works

This Fall 2021 Supplement is the product of our effort to capture important developments in copyright law since the publication of the second edition of Copyright: A Contemporary Approach. It includes two new principal cases, both Supreme Court decisions: the 2021 fair use decision in Google LLC v. Oracle America, Inc., and the 2020 decision about copyright protection for state statutes in Georgia v. Public.Resources.Org. The supplement also includes notes on many other cases, and a few new features that we thought would enhance study of U.S. copyright law. In light of the passage of the Music Modernization Act in …

Posted: No Phising, Lawrence J. Trautman, Mohammed T. Hussein, Emmanuel U. Opara, Mason J. Molesky, Shahedur Rahman

Emory Business Law Review

Any engineering approach to cybersecurity must recognize that many breaches are the result of human behavior, rather than sophisticated malware. Effective cybersecurity defenses require a systematic engineering approach that recognizes the organizational, cultural and psychological barriers to effectively dealing with this problem. The U.S. Securities and Exchange Commission (SEC) defines “phishing” as, “the use of fraudulent emails and copy-cat websites to trick you into revealing valuable personal information—such as account numbers for banking, securities, mortgage, or credit accounts, your social security numbers, and the login IDs and passwords you use when accessing online financial service providers.” Once this information is …

Violations During The Pandemic Of Law School Faculties' Authority To Decide Methods Of Instruction, Richard K. Neumann Jr.

Hofstra Law Faculty Scholarship

During the pandemic, some universities have required as much “in person” teaching as possible everywhere on campus — including a university’s law school. Universities and their administrators who did this were wrong for three reasons. First, their fears that students would not enroll unless taught “in person” turned out to be unfounded. National postgraduate and professional school enrollment, including law school enrollment, actually increased even though almost half the country’s colleges and universities began the fall semester or quickly went primarily or entirely online.

Second, these weren’t decisions about public health alone. They were also decisions about the quality of …

Cybersecurity Leaders: Knowledge Driving Human Capital Development, Sharon L. Burton

Publications

Cybersecurity leaders must be able to use critical reading and thinking skills, exercise judgment when policies are not distinct and precise, and have the knowledge, skills, and abilities to tailor technical and planning data to diverse customers’ levels of understanding. Ninety-three percent of cybersecurity leaders do not report directly to the chief operating officer. While status differences influence interactions amid groups, attackers are smarter. With the aim of protecting organizations and reducing risk, knowledge about security must increase. Understanding voids are costly and increased breach chances are imminent. Burning questions exist. What are needed technological learnings for cybersecurity leaders to …

The Curious Crypto Question: Do Patents Advance Fintech Innovation? The Paradox Arising From Five Key Recent Trends, Katopis, Chris J.

Santa Clara High Technology Law Journal

The Author examines some recent trends in intellectual property (U.S. patents) in the fintech sector, summarizes this empirical data, and discusses the potential implications of these developments.

Should Personal Information And Biometric Data Be Protected Under A Comprehensive Federal Privacy Statute That Uses The California Consumer Privacy Act And The Illinois Biometric Information Privacy Act As Model Laws?, Buresh, Donald L.

Santa Clara High Technology Law Journal

The issue addressed in this paper was that only a minority of states have passed privacy and biometric privacy rights laws. The collection, storage, use, and dissemination of personal information and biometric data is becoming paramount due to the public’s ever-increasing desire for security. The purpose of this study was to understand and evaluate the privacy and property issues that states confront that are inherent within the use and results of employing personal information and biometric data to enhance corporate security in their efforts to protect individual privacy. This research addressed the following questions: (1) What are the biometric privacy …

Taxing Buybacks, Daniel J. Hemel, Gregg D. Polsky

Coase-Sandor Institute for Law & Economics Research Paper Series

A recent rise in the volume of corporate share repurchases has prompted calls for changes to the rules governing stock buybacks. These calls for reform are animated by concerns that buybacks enrich corporate executives at the expense of productive investment. This emerging antibuyback movement includes prominent politicians as well as academics and Republicans as well as Democrats. The primary focus of buyback critics has been on securities-law changes to deter repurchases, with only passing mention of potential tax-law solutions.

This Article critically examines the policy arguments against buybacks and arrives at a mixed verdict. On the one hand, claims that …

The Law Of Restitution For Mistaken Payments: An Economic Analysis, Dhammika Dharmapala, Nuno Garoupa

Coase-Sandor Institute for Law & Economics Research Paper Series

The law of restitution and unjust enrichment has emerged as an important and independent branch of private law globally, but has attracted relatively little economic analysis. The aim of this paper is to develop a general conceptual framework for the economic analysis of the core example of restitution - mistaken payments. We develop a formal model in a parsimonious setting with two buyer-seller pairs, with low (high) transaction costs within (across) pairs. This model generates several novel insights, based on the idea that mistaken payments to strangers impose a “transaction tax” on contracting parties. It sheds new light on distortions …

The Rhetorical Transformations And Policy Failures Of Prescription Drug Pricing Reform Under The Trump Administration, Rachel Sachs

Scholarship@WashULaw

Throughout his four years in office, President Trump made prescription drug pricing a focus of his policy agenda. President Trump not only used strong language to criticize the pharmaceutical industry and its practices but also introduced ambitious reform policies that had previously lacked acceptance among Republican policy makers. President Trump appears to have been successful in developing a new populist form of rhetoric that Republicans can use in support of novel drug pricing reforms such as the ones his administration considered. From a policy perspective, however, the Trump administration failed to implement any of their more ambitious reform ideas. This …

Pandemic Nationalism, Covid-19, And International Law, Leila Nadya Sadat

Scholarship@WashULaw

This Essay explores possible reforms to the World Health Organization (WHO) considering its response to the COVID-19 pandemic. It also suggests using existing mechanisms to enforce the WHO Constitution and the International Health Regulations (IHR). The Essay focuses on three aspects of global health governance: (1) how nationalism of powerful States renders pandemic control difficult given the “weakest-link public goods” character of global health emergencies; (2) how legal and practice reforms might nonetheless strengthen and fortify the WHO’s response; and (3) how existing provisions of the WHO Constitution and the IHR might be enforced through the dispute resolution clauses in …

Disruptive Implications Of Legal Positivism’S Social Efficacy Thesis, Brian Z. Tamanaha

Scholarship@WashULaw

The social efficacy thesis holds that for law to exist it must be generally obeyed by the populace. Accepted by virtually all legal positivists, this is the most neglected thesis of legal positivism. Despite its nigh universal acceptance by theorists, however, the efficacy thesis is surrounded with unanswered questions with significant implications. Several questions immediately come to mind: How widespread must conformity to law be? What must people conform to (all areas of law)? Who must conform (legal officials, government officials, the entire populace, significant groups)? What does conformity entail (normatively, knowingly, behaviorally)? This essay explores these issues and a …

Pragmatic Reconstruction In Jurisprudence: Features Of A Realistic Theory, Brian Z. Tamanaha

Scholarship@WashULaw

A century ago the pragmatists called for reconstruction in philosophy. Philosophy at the time was occupied with conceptual analysis, abstractions, a priori analysis, and the pursuit of necessary, universal truths. Pragmatists argued that philosophy instead should center on the pressing problems of the day, which requires theorists to pay attention to social complexity, variation, change, power, consequences, and other concrete aspects of social life. The parallels between philosophy then and jurisprudence today are striking, as I show, calling for a pragmatism-informed theory of law within contemporary jurisprudence. The realistic theory outlined in this essay focuses on what law does, what …

Put Even More Women And Minorities In Charge, Peter H. Huang

South Carolina Journal of International Law and Business

No abstract provided.

Prosecuting Bride Kidnapping: The Law Isn't Enough; Aligning Cultural Norms With The Law, Alexandria Mckenna Lundberg

Case Western Reserve Journal of International Law

No abstract provided.

The Challenge Of Covid-19 And The World Health Organization’S Response: The Principal-Agent Model Revisited, Miron Mushkat, Roda Mushkat

American University International Law Review

No abstract provided.

The Fight Ahead, Bernard E. Harcourt

Faculty Scholarship

The sitting president of the United States, squarely defeated in the 2020 election and denied a second term, staged a counterrevolution on January 6, 2021-the day Congress was scheduled to confirm the results of the Electoral College. It was an unprecedented sight. A mob stormed the Capitol, overtook the House and Senate chambers, and ransacked the Speaker's office. Instigated by the president, the insurrection was enabled by the leaders of the Republican Party who, for months, refused to recogniz.e the election results.

This counterrevolution was long in the making. Its eruption fully exposed the deep rift in this country.

Disease And Data In Society: How The Pandemic Expanded Data Collection And Surveillance Systems, Alan Butler, Enid Zhou

American University Law Review

The COVID-19 pandemic1 is a global tragedy of historic proportions, and its impacts on our families, communities, and social structures will be felt for many years to come. From the significant to the mundane, COVID-19 has changed many aspects of daily life. One of the less obvious but more long-lasting changes may well be the expansion of data collection and surveillance systems adopted both in response to, and as a result of, the pandemic.

Tracing The Invisible: Information Fiduciaries And The Pandemic, Anne L. Washington, Lauren Rhue

American University Law Review

Predictive data technology designed to contain the COVID-19 pandemic was not as successful as promised. Data-centric solutions to providing testing and tracing did little to limit the virus’s spread in part because they served only the most visible parts of society. This Article argues for more robust solutions to protect individuals’ privacy—whether those individuals are currently visible or invisible to pandemic technology—if pandemic technology is to provide the universal coverage necessary for a public health emergency, such as the COVID- 19 pandemic. First, we contend that current pandemic data technology operates under rigid technical and social assumptions that thwart participation …

The Invisible Ban: Negligent Disparate Impact, Kenneth R. Davis

American University Law Review

Title VII provides two primary anti-discrimination theories: disparate treatment and disparate impact. Disparate-treatment law prohibits intentional employment discrimination against a member of a protected class. Disparate impact law imposes strict liability on employers for using facially neutral employment practices that have a disproportionately adverse effect on a protected class.

This Article proposes following the structure of tort law as a template for the law of employment discrimination. A comparison of Title VII to tort law reveals that an analogy to negligent torts is absent from Title VII. The very language of Title VII provides the means to rectify this deficiency …

Reconstructing Patent Eligibility, Talha Syed

American University Law Review

Patent law’s doctrine of ineligible subject matter is widely agreed to be in a bad state of repair. Even those welcoming the Supreme Court’s return to express subject-matter bars have been left disoriented by the Court’s pronouncements in this area. Which subject matter is ineligible, why it is ineligible, and how it might become eligible have all remained enshrouded in mystery.

The nub of the problem, this Article contends, is two-fold. First, from its nineteenth-century origins to the present, courts grappling with ineligibility doctrine have remained in the grip of a series of “physicalist” misconceptions of the object of patent …

Oil, Gas, And Mineral Law, Austin W. Brister, Michael G. Szymanski

SMU Annual Texas Survey

This article is a survey of the relevant developments in oil, gas, and mineral law from December 1, 2019, through November 30, 2020. The article focuses on law likely to be influential to Texas practitioners.

Dehors The Record: A Correction Of A Final Jeopardy Question, Thomas E. Baker

FIU Law Review

No abstract provided.

Beyond Plea Bargaining: A Theory Of Criminal Settlement, Richard Lorren Jolly, J.J. Prescott

Articles

Settlement is a term rarely used in criminal law. Instead, people speak almost exclusively of plea bargaining—i.e., enforceable agreements in which a defendant promises to plead guilty in exchange for a prosecutor’s promise to seek leniency in charging or at sentencing. But a traditional plea agreement is just the most visible instance of a much broader class of possible criminal settlement agreements. In terms of their fundamentals, criminal settlements are indistinguishable from their civil counterparts: through either an atomized or comprehensive bargain, parties exchange what they have for what they want, advancing their respective interests in cost minimization, risk mitigation, …

The Impending Judicial Regulation Of Artificial Intelligence In The Administrative State, Aram A. Gavoor

GW Law Faculty Publications & Other Works

Artificial Intelligence (AI) algorithms are being deployed in executive branch agencies at a brisk pace and with no executive branch account for their use. The proliferation of AI in government raises civil rights concerns because it has been found—at a general level—to succumb to racial and gender biases when AI algorithms are incompetently or intentionally trained. Policy solutions have been put forth to mitigate the issue of such AI uses in government, some of which are in the process of being implemented. Despite these gains, the political branches of the federal government have limited time to act before their primary …

The Resilience Of Substantive Rights And The False Hope Of Procedural Rights: The Case Of The Second Amendment And The Seventh Amendment, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

At first glance, there seem to be strong affinities between the Second Amendment and the Seventh Amendment. Both the right to keep and bear arms and the right to civil jury trial potentially empower ordinary citizens. Both could check elites.

But there are crucial differences between these rights. I focus on two of them here. The first is relatively straightforward; it concerns individual accountability—or the lack thereof—and the ability to understand responsibilities. Gun owners and users generally have individual responsibility for their actions, and the ability to understand their responsibilities. In contrast, by design civil jurors lack individual responsibility. And …

Constitutional Law: Blockchain’S Challenge For The Fourth Amendment, Paul Belonick

The Judges' Book

No abstract provided.

Natural Oligopoly Responses, Repeated Games, And Coordinated Effects In Merger Analysis: A Perspective And Research Agenda, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

When the 1968 Merger Guidelines were drafted, both the economics and antitrust literatures addressed how competition could be softened when oligopolists anticipated the natural and predictable responses of their rivals to their competitive moves, such as price cuts or output expansion. But when economists developed new models of oligopoly behavior, and of coordinated efects in particular, the older ideas were dropped—until the 2010 Guidelines, when the older ideas were reincorporated along with the newer ones. Our article points out limitations of the workhorse repeated game model of oligopoly conduct for analyzing coordinated efects of mergers, and suggests ways to make …

Making Learning Work: A Family Guide To Supporting Your Child In Hybrid And Remote Learning, Center For Public Research And Leadership

Center for Public Research and Leadership

Are you still trying to figure out how to support your child’s learning in a way that is safe and works for your child and family? Many families are in the same situation.

We hope this guide lightens your load and helps you make schooling decisions that meet your needs. Inside you will find practical tips, resources, and tools for use during the pandemic and beyond.

Hacer Que La Educación Funcione: Una Guía Familiar Para Ayudar A Su Hijo En La Educación Híbrida Y A Distancia (Making Learning Work: A Family Guide To Supporting Your Child In Hybrid And Remote Learning), Center For Public Research And Leadership

Center for Public Research and Leadership

In Spanish
¿Todavía está tratando de averiguar cómo apoyar la educación de su hijo de una manera segura y que funcione para su hijo y su familia? Muchas familias se encuentran en la misma situación.

Esperamos que esta guía aligere su carga y le ayude a tomar decisiones escolares que satisfagan sus necesidades. En su interior encontrará consejos prácticos, recursos y herramientas para usar durante la pandemia y más allá.

In English:
Are you still trying to figure out how to support your child’s learning in a way that is safe and works for your child and family? Many families …

The Law And Science Of Climate Change Attribution, Michael Burger, Jessica A. Wentz, Radley Horton

Sabin Center for Climate Change Law

There is overwhelming scientific agreement that human activities are changing the global climate system and that these changes are already affecting human and natural systems. Significant advances in climate change detection and attribution science – the branch of science that seeks to isolate the effect of human influence on the climate and related earth systems – have continued to clarify the extent to which anthropogenic climate change causes both slow onset changes and extreme events. The spike in deaths and costs associated with extreme events and the prospect for slow onset changes with irreversible impacts has inspired a marked increase …