Digital Commons Network^™

Intellectual Property Through A Non-Western Lens: Patents In Islamic Law, Tabrez Y. Ebrahim

Faculty Scholarship

The intersection of secular, Western intellectual property law and Islamic law is undertheorized in legal scholarship. Yet the nascent and developing non-Western law of one form of intellectual property—patents—in Islamic legal systems is profoundly important for transformational innovation and economic development initiatives of Muslim-majority countries that comprise nearly one-fifth of the world’s population.

Recent scholarship highlights the tensions of intellectual property in Islamic law because religious considerations in an Islamic society do not fully align with Western notions of patents. As Islamic legal systems have begun to embrace patents in recent decades, theories of patents have presented conceptual and theological …

Between Irac & A Hard Place: A Strategy For Winning Early Student Buy-In To The Paradigm, Meg Holzer, Susan Greene

Faculty Scholarship

No abstract provided.

Race And Equity In The Age Of Unicorns, Lynnise E. Pantin

Faculty Scholarship

This Article critically examines startup culture and its legal predicates. The Article analyzes innovation culture as a whole and uses the downfall of Theranos to illustrate the deficiencies in Silicon Valley culture, centering on race and class. The Article demonstrates that the rise and fall of the unicorn startup Theranos and its founder, Elizabeth Holmes, is emblematic of the problem with the glorification and pursuit of the unicorn designation for startup ventures. The examination of the downfall of Theranos exposes how investors, founders, and others in Silicon Valley engage with each other in the context of pursuing unicorn status. The …

A Duty Of Loyalty For Privacy Law, Neil M. Richards, Woodrow Hartzog

Faculty Scholarship

Data privacy law fails to stop companies from engaging in self-serving, opportunistic behavior at the expense of those who trust them with their data. This is a problem. Modern tech companies are so entrenched in our lives and have so much control over what we see and click that the self-dealing exploitation of people has become a major element of the internet’s business model.

Academics and policymakers have recently proposed a possible solution: require those entrusted with people’s data and online experiences to be loyal to those who trust them. But many have concerns about a duty of loyalty. What, …

The Case Of The Nosy Neighbors, Johanna Gunawan, Woodrow Hartzog

Faculty Scholarship

Inspired by companies like Clearview AI, Nextdoor, and Amazon, this case study asks students to assume the role of a high-ranking ethics-focused employee at a (fictional) neighborhood-focused social media company. It involves challenging ethical questions around how social media services and surveillance tools are built and used, and the complicated relationship between companies, their users, and law enforcement authorities. Students should pay particular attention to the values implicated by certain design decisions, and the competing incentives for corporations that might complicate the picture for ethical decision making.

Ethical Challenges In The Middle Tier Of Covid-19 Vaccine Allocation: Guidance For Organizational Decision-Making, Nancy Berlinger, Matthew Wynia, Tia Powell, Aimee Milliken, Parinda Khatri, Fatma Marouf, Keisha Ray, Johanna Crane

Faculty Scholarship

This supplement to The Hastings Center’s “Ethical Framework” aims to help structure time-sensitive discussion of significant, foreseeable ethical concerns in responding to Covid-19 and to support collaboration across institutions throughout pandemic response and recovery. It is designed for use by county health systems and by hospitals, community health centers, and other health care organizations responsible for patient care or preventive health, including vaccine education, vaccine distribution, and vaccination. This document aims to support formal and informal convening and policy work within the same geographic region, such as a municipality, county, metropolitan area, state, or multistate area, led by public health …

Spoofing And Its Regulation, Merritt B. Fox, Lawrence R. Glosten, Sue S. Guan

Faculty Scholarship

Nearly a century after the United States enacted its first securities laws, urgent questions remain as to the scope of manipulation law: whether manipulation is possible in principle, and if so, how the law should respond in practice. Sharp disagreement among courts, economists, and legal scholars as to whether trading or quoting activity constitutes illegal manipulation has led to a legal framework that lacks precision and cogency. Moreover, the poorly articulated normative basis for court rulings has resulted in enforcement that is both under-inclusive and over-inclusive in ways that do a poor job of discouraging socially harmful transactions and enabling …

The Coming Shift In Shareholder Activism: From "Firm-Specific" To "Systematic Risk" Proxy Campaigns (And How To Enable Them), John C. Coffee Jr.

Faculty Scholarship

This article distinguishes two types of shareholder activism: (1) firm-specific activism, which has a long history and focuses on changes at a specific target company, and (2) systematic risk activism, which seeks to reduce the systematic risk in a portfolio and thereby benefit diversified investors. Typically, such a systematic risk campaign may force a portfolio company to internalize negative externalities to benefit the other companies in the portfolio (such as by reducing carbon emissions or undertaking climate risk reforms). But, systematic risk activism faces an inherent difficulty: the party that leads this campaign and invests in the target company may …

Copyright And Parody: Touring The Certainties Of Intellectual Property And Restitution, Wendy J. Gordon

Faculty Scholarship

The essay that follows examines the boundary between two sets of rules. The first set arises under the law of Restitution, particularly the rule that volunteers ordinarily need not be rewarded. (Another way to state this same Restitution rule is to say that the retention of benefit voluntarily conferred is ordinarily not "unjust enrichment".) The second set of rules are those of Intellectual Property law, which creates property in a special kind of volunteer. My argument is simply that the law of Restitution leads almost directly to the law of Intellectual Property, though the two areas are premised on diametrically …

Supreme Court Precedent And The Politics Of Repudiation, Robert L. Tsai

Faculty Scholarship

This is an invited essay that will appear in a book titled "Law's Infamy," edited by Austin Sarat as part of the Amherst Series on Law, Jurisprudence, and Social Thought. Every legal order that aspires to be called just is held together by not only principles of justice but also archetypes of morally reprehensible outcomes, and villains as well as heroes. Chief Justice Roger Taney, who believed himself to be a hero solving the great moral question of slavery in the Dred Scott case, is today detested for trying to impose a racist, slaveholding vision of the Constitution upon America. …

A Code Of Ethics For Gene Drive Research, George J. Annas, Chase L. Beisel, Kendell Clement, Andrea Crisanti, Stacy Francis, Marco Galardini, Roberto Galizi, Julian Grunewald, Greta Immobile, Ahmad S. Khalil, Ruth Muller, Vikram Pattanayak, Karl Petri, Ligi Paul, Luca Pinello, Alekos Simoni, Chrysanthi Taxiarchi, J. Keith Joung

Faculty Scholarship

Gene drives hold promise for use in controlling insect vectors of diseases, agricultural pests, and for conservation of ecosystems against invasive species. At the same time, this technology comes with potential risks that include unknown downstream effects on entire ecosystems as well as the accidental or nefarious spread of organisms that carry the gene drive machinery. A code of ethics can be a useful tool for all parties involved in the development and regulation of gene drives and can be used to help ensure that a balanced analysis of risks, benefits, and values is taken into consideration in the interest …

Paying Americans To Take The Vaccine - Would It Help Or Backfire?, Christopher Robertson, Daniel Scheitrum, K. Aleks Schaefer, Trey Malone, Brandon R. Mcfadden, Kent D. Messer, Paul J. Ferraro

Faculty Scholarship

This research investigates the extent to which financial incentives (conditional cash transfers) would induce Americans to opt for vaccination against COVID-19. We performed a randomized survey experiment with a representative sample of 1,000 American adults in December 2020. Respondents were asked whether they would opt for vaccination under one of three incentive conditions ($1,000, $1,500, or $2,000 financial incentive) or a no-incentive condition. We find that—without coupled financial incentives—only 58% of survey respondents would elect for vaccination. A coupled financial incentive yields an 8-percentage-point increase in vaccine uptake relative to this baseline. The size of the cash transfer does not …

Improving The Credibility Of Empirical Legal Research: Practical Suggestions For Researchers, Journals, And Law Schools, Jason Chin, Alexander Dehaven, Tobias Heycke, Alexander Holcombe, David Mellor, Justin Pickett, Crystal Steltenpohl, Simine Vazire, Kathryn Zeiler

Faculty Scholarship

Fields closely related to empirical legal research are enhancing their methods to improve the credibility of their findings. This includes making data, analysis code, and other materials openly available, and preregistering studies. Empirical legal research appears to be lagging behind other fields. This may be due, in part, to a lack of meta-research and guidance on empirical legal studies. The authors seek to fill that gap by evaluating some indicators of credibility in empirical legal research, including a review of guidelines at legal journals. They then provide both general recommendations for researchers, and more specific recommendations aimed at three commonly …

Covid-19 And Its Impact(S) On Innovation, Clark Asay, Stephanie Plamondon Bair

Faculty Scholarship

In previous work, we explored how certain characteristics of adversity are often more conducive to innovation than others. In this Article, prepared as part of the Lee E. Teitelbaum Utah Law Review Symposium—The Law & Ethics of Medical Research, we review some of that work and apply it specifically to the COVID-19 context. We conclude by assessing certain policy implications in light of how the COVID-19 pandemic has both spurred and hindered innovation.

Historical Antecedents Of The 2020 Presidential Election, Thomas H. Lee

Faculty Scholarship

Antecedenti storici dell’elezione presidenziale del 2020 – Starting from former President Trump’s speech that propelled the storm of Capitol Hill on January 6th, the article provides an historical account of the transition of powers between administrations in the past decades and centuries. The analysis, on the one hand, highlights the traditionally peaceful nature of such transitions, while, on the other, it points to the instances when disputes concerning the electoral outcome occurred.

The Racial Architecture Of Criminal Justice, I. Bennett Capers

Faculty Scholarship

One of the pleasures of contributing to symposia—especially symposia where each contribution is brief—is the ability to engage in new explorations, test new ideas, and offer new provocations. I do that now in this essay about race, architecture, and criminal justice. I begin by discussing how race is imbricated in the architecture of courthouses, the quintessential place of supposed justice. I then take race and architecture a step further. If we think of architecture expansively—Lawrence Lessig’s definition of architecture as “the physical world as we find it” comes to mind—then it becomes clear that race is also imbricated in the …

Private Facilitators Of Public Regulation: A Study Of The Environmental Consulting Industry, Dave Owen

Faculty Scholarship

Most accounts of businesses and regulators depict adversarial relationships. In these accounts, businesses typically seek to avoid or limit public regulation or, alternatively, to distort it so it serves private rather than public ends. This article uses a study of the environmental consulting industry to explore a different set of relationships between businesses and public regula- tion. These consultants generally work for for-profit companies, and they serve as regulatory intermediaries between busi- nesses and government. Those dual roles raise concerns that environmental consultants, like many other businesses, will seek to subvert regulatory schemes or will serve as instruments of regulatory …

Law, Land Use, And Groundwater Recharge, Dave Owen

Faculty Scholarship

Groundwater is one of the world’s most important natural resources, and its importance will increase as climate change continues and the human population grows. But groundwater management has traditionally been governed by lax and uneven legal regimes. To the extent those regimes exist, they tend to focus on the extraction of groundwater rather than the processes—referred to as groundwater recharge—through which water enters the subsurface. Yet groundwater recharge is crucially important to the maintenance of groundwater supplies, and it is also highly susceptible to human influences, particularly through our pervasive manipulation of land uses. This Article discusses the underdeveloped law …

Groundwater Recharge For A Regional Water Bank: Kern Water Bank, Kern County, California, Michael Kiparsky, Kathleen Miller, Phoebe Goulden, Anita Milman, Dave Owen

Faculty Scholarship

The Kern Water Bank is a semi-private groundwater bank operated by the Kern Water Bank Authority in Kern County, CA. The bank stores water from the State Water Project (SWP), Central Valley Project (CVP), and the Kern River. It is massive in scale, covering over 20,000 acres, with approximately 2.5 million acre feet diverted to the bank since 1995. The bank stores water on behalf of its member water agencies, which include both public and private water entities mainly focusing on agricultural use, along with a small number of municipal and residential customers. Water is withdrawn by the member agencies …

Tort Theory, Private Attorneys General, And State Action: From Mass Torts To Texas S.B. 8, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

Late twentieth-century tort theory was dominated by scholars who regarded tort law as primarily a means employed by government to deter anti-social conduct. On this model, tort plaintiffs are cast as private attorneys general whose lawsuits promote safety. Tort theorists today better appreciate that this approach obscures crucial respects in which tort law is private law–law that empowers persons who have been wronged to redress the wrongs done to them. But in practice there is a continued failure to perceive the ways in which the deterrence model has shaped and distorted views of tort law, as evidenced by the terms …

Combination Therapy Patents: A New Front In Evergreening, Garth W. Strohbehn, Alec J. Kacew, Daniel A. Goldstein, Robin C. Feldman, Mark J. Ratain

Faculty Scholarship

No abstract provided.

The Law And Ecology Of Dam Removals, Dave Owen, Kim Sager-Fradkin

Faculty Scholarship

No abstract provided.

The First Amendment And Algorithms, Stuart M. Benjamin

Faculty Scholarship

No abstract provided.

Mark Of The Devil: The University As Brand Bully, James Boyle, Jennifer Jenkins

Faculty Scholarship

In recent years, universities have been accused in news stories of becoming “trademark bullies,” entities that use their trademarks to harass and intimidate beyond what the law can reasonably be interpreted to allow. Universities have also intensified efforts to gain expansive new marks. The Ohio State University’s attempt to trademark the word “the” is probably the most notorious. There has also been criticism of universities’ attempts to use their trademarks to police clearly legal speech about their activities. But beyond provocative anecdotes, how can one assess whether a particular university is truly bullying, since there are entirely legitimate reasons for …

Deterring Algorithmic Manipulation, Gina-Gail S. Fletcher

Faculty Scholarship

Does the existing anti-manipulation framework effectively deter algorithmic manipulation? With the dual increase of algorithmic trading and the occurrence of “mini-flash crashes” in the market linked to manipulation, this question has become more pressing in recent years. In the past thirty years, the financial markets have undergone a sea change as technological advancements and innovations have fundamentally altered the structure and operation of the markets. Key to this change is the introduction and dominance of trading algorithms. Whereas initial algorithmic trading relied on preset electronic instructions to execute trading strategies, new technology is introducing artificially intelligent (“AI”) trading algorithms that …

Beyond Profit, Emilie Aguirre

Faculty Scholarship

Etsy was a crown jewel of socially responsible businesses. It prioritized female entrepreneurship, its employees, and environmental stewardship. It was widely admired as a company pursuing social goals alongside profit goals. But after scaling up through an IPO, Etsy fell apart both socially and financially. Similar stories proliferate in the world of socially conscious business. What happened? Standard accounts point to greedy investors, capitalism, and short-termism as the culprits.

But this Paper identifies a more fundamental problem: business law is not designed to facilitate scale-ups for companies that articulate objectives beyond profit. It lacks a durable commitment mechanism for these …

Final Report Of The Durham Statement Review Task Force, Durham Statement Review Task Force

Faculty Scholarship

No abstract provided.

Drugs, Patents, And Well-Being, Christopher Buccafusco, Jonathan S. Masur

Faculty Scholarship

The ultimate end of patent law should be to spur innovations that improve human welfare-innovations that make people better off. But firms will only invest resources in developing patentable inventions that will allow them to make money-that is, inventions that people will want to use and buy. This can gravely distort the types of incentives that firms face and the types of inventions they pursue. Nowhere is this truer than in the pharmaceutical field There is by now substantial evidence that treatments for diseases that primarily afflict poorer people-including the citizens of developing nations-are dramatically underproduced, compared with drugs that …

Artificial Intelligence As Evidence, Paul W. Grimm, Maura R. Grossman, Gordon V. Cormack

Faculty Scholarship

This article explores issues that govern the admissibility of Artificial Intelligence (“AI”) applications in civil and criminal cases, from the perspective of a federal trial judge and two computer scientists, one of whom also is an experienced attorney. It provides a detailed yet intelligible discussion of what AI is and how it works, a history of its development, and a description of the wide variety of functions that it is designed to accomplish, stressing that AI applications are ubiquitous, both in the private and public sectors. Applications today include: health care, education, employment-related decision-making, finance, law enforcement, and the legal …

Insuring The 'Uninsurable': Catastrophe Bonds, Pandemics, And Risk Securitization, Steven L. Schwarcz

Faculty Scholarship

In principle, governments could protect against the potential economic devastation of future pandemics by requiring businesses to insure against pandemic-related risks. In practice, though, insurers do not currently offer pandemic insurance. Although they may well be able to obtain sufficient actuarial data to set pandemic underwriting standards and rate tables, insurers are concerned that they lack sufficient capacity, as an industry, to cover those risks, which are likely to occur worldwide and to be highly correlated. Pandemics therefore are in the class of risks, like war, terrorism, and riots, that are deemed “uninsurable,” at least by private markets. This Article …