Digital Commons Network^™

Perpetual Evolution: A School's-Focused Public Law Litigation Model For Our Day, James S. Liebman

Faculty Scholarship

In celebrating the monumental accomplishments of the new form of public law litigation that Constance Baker Motley and her colleagues pioneered, this Essay reinterprets their paradigm-shifting body of work in a manner that obliges the current generation of civil rights advocates to change direction. In the hopes of reengaging the affirmative force of constitutional litigation after decades in which it has waned, this Essay argues that the central lesson to be derived from Motley’s generation lies not in the mode of public law litigation it pioneered but in the design of that litigation in the image of the dominant form …

Copyright, Jane C. Ginsburg

Faculty Scholarship

This chapter o􀁼ers an overview of copyright in general in common law and civil law countries, with an emphasis on the United States (US) and the European Union (EU). It addresses the history and philosophies of copyright (authors’ right), subject matter of copyright (including the requirement of 􀁿xation and the exclusion of “ideas”), formalities, initial ownership and transfers of title, duration, exclusive moral and economic rights (including reproduction, adaptation, public performance and communication and making available to the public, distribution and exhaustion of the distribution right), exceptions and limitations (including fair use), and remedies. It also covers the liability of …

Democratic Experimentalism, Charles F. Sabel, William H. Simon

Faculty Scholarship

Democratic Experimentalism is an orientation in contemporary legal thought that draws on both the critical impulses of modernist theory and the constructive practice of postbureaucratic organization.

Some of the core ideas of Democratic Experimentalism were formulated long ago, notably by pragmatists in the John Dewey mold, but they have been elaborated in response to social developments of recent decades. A recurring challenge presented by these developments is uncertainty, by which we mean the inability to anticipate, much less to assign a probability to, future states of the world. The constellation of changes that make contemporary economies more innovative produces uncertainty …

Franklin Delano Roosevelt As Lord Of The Admiralty 1913-1920, Joseph Sweeney

Faculty Scholarship

No abstract provided.

Authenticating Digital Evidence, Paul W. Grimm, Daniel Capra, Gregory P. Joseph

Faculty Scholarship

No abstract provided.

Accountable Algorithms, Joel R. Reidenberg

Faculty Scholarship

No abstract provided.

The Cold War And Comparative Law: A Reflection On The Politics Of Intellectual Discipline, Ugo Mattei, Alessandra Quarta

Faculty Scholarship

No abstract provided.

An Autopsy Of Cooperation: Diamond Dealers And The Limits Of Trust-Based Exchange, Barak D. Richman

Faculty Scholarship

Both academic and popular representations of the diamond industry describe trust-based relations and an industry arbitration system that sustain trade. In recent years, however, trust among merchants has eroded, and merchants have correspondingly lost confidence in the industry's arbitration. This article describes the events that have led to the breakdown of cooperative trust in the industry and derives lessons regarding the nature and limits of reputation-based exchange in the modern economy.

Patriotic Philanthropy? Financing The State With Gifts To Government, Margaret H. Lemos, Guy-Uriel Charles

Faculty Scholarship

Federal and state law prohibit government officials from accepting gifts or “emoluments” from outside sources. The purpose of gift bans, like restrictions on more explicit forms of bribery, is to protect the integrity of political processes and to ensure that decisions about public policy are made in the public interest — not to advance a private agenda. Similar considerations animate regulations on campaign funding and lobbying. Yet private entities remain free to offer gifts to government itself, to foot the bill for particular public projects they would like to see government pursue. Such gifts — dubbed “patriotic philanthropy” by one …

Controlling Systemic Risk Through Corporate Governance, Steven L. Schwarcz

Faculty Scholarship

Most of the regulatory measures to control excessive risk taking by systemically important firms are designed to reduce moral hazard and to align the interests of managers and investors. These measures may be flawed because they are based on questionable assumptions. Excessive corporate risk taking is, at its core, a corporate governance problem. Shareholder primacy requires managers to view the consequences of their firm’s risk taking only from the standpoint of the firm and its shareholders, ignoring harm to the public. In governing, managers of systemically important firms should also consider public harm. This proposal engages the long-standing debate whether …

The Responsibility Gap In Corporate Crime, Samuel W. Buell

Faculty Scholarship

In many cases of criminality within large corporations, senior management does not commit the operative offense — or conspire or assist in it — but nonetheless bears serious responsibility for the crime. That responsibility can derive from, among other things, management’s role in cultivating corporate culture, in failing to police effectively within the firm, and in accepting lavish compensation for taking the firm’s reins. Criminal law does not include any doctrinal means for transposing that form of responsibility into punishment. Arguments for expanding doctrine — including broadening of the presently narrow “responsible corporate officer” doctrine — so as to authorize …

Pharmaceutical M&A Activity: Effects On Prices, Innovation, And Competition, Barak D. Richman, Will Mitchell, Elena Vidal, Kevin Schulman

Faculty Scholarship

The rise of blockbuster pharmaceutical acquisitions has prompted fears that unprecedented market concentration will weaken competition. Two of the most prominent concerns focus on the upstream and downstream ends of the pharmaceutical industry: (1) the concern that these mergers will concentrate the market for discovery and will therefore lead to fewer discoveries; and (2) the concern that merging large marketing, sales, and distribution forces will strengthen the hands of select pharmaceutical manufacturers and weaken downstream competition. Having considered potential dynamic effects in the industry and conducted a series of preliminary interviews with knowledgeable observers, though, this Article argues that neither …

How To Restructure Venezuelan Debt (¿Cómo Restructurar La Deuda Venezolana?), Mitu Gulati, Lee C. Buchheit

Faculty Scholarship

English Abstract: There is a growing consensus that Venezuela will not be able to persist for much longer with its policy of full external debt service. The social costs are just too great. This implies a debt restructuring of some kind. Venezuela, principally through its state-owned oil company, Petróleos de Venezuela, S.A. (“PDVSA”), has extensive commercial contacts with the United States. Not since Mexico in the 1980s has an emerging market country with this level of commercial contacts attempted to restructure its New York law-governed sovereign debt. Holdout creditors in a restructuring of Venezuelan sovereign debt will therefore present a …

Inequality Rediscovered, Jedediah Purdy, David Singh Grewal

Faculty Scholarship

Widespread recognition that economic inequality has been growing for forty years in most of the developed world, and in fact has tended to grow across most of the history of modern economies, shows that the period 1945-1973, when inequality of wealth and income shrank, was a marked anomaly in historical experience. At the time, however, the anomalous period of equality seemed to vindicate a long history of optimism about economic life: that growth would overcome meaningful scarcity and usher in an egalitarian and humanistic period that could almost qualify as post-economic. This has not been the experience of the last …

Voice And Exit As Accountability Mechanisms: Can Foot-Voting Be Made Safe For The Chinese Communist Party?, Roderick M. Hills Jr., Shitong Qiao

Faculty Scholarship

According to Albert 0. Hirschman's famous dichotomy, citizens can express their preferences with their "voice" (by voting with ballots to elect better representatives) or by "exit" (by voting with their feet to choose better places to live). Suppose, however, that ballot-voting is ineffective: Can exit not merely aid but also replace voice? Using the People's Republic of China, a party state without elective democracy as a case study, we argue that exit is not a substitute for, but rather a complement to, voice. China's bureaucratic promotion system plays the same role that local elections do in the United States, promoting …

Fashion's Function In Intellectual Property Law, Christopher Buccafusco, Jeanne C. Fromer

Faculty Scholarship

Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear under-standing of the nature of functionality in fashion design. This Article proposes a robust account of fashion’s function. It argues that aspects of garment designs are functional not only when they affect the physical or technological performance of a garment but also when they affect the perception of the wearer’s body. Generally, clothes are not designed or chosen simply …

Functionality Screens, Christopher Buccafusco, Mark A. Lemley

Faculty Scholarship

Among intellectual property (IP) doctrines, only utility patents should protect function. Utility patents offer strong rights that place constraints on competition, but they only arise when inventors can demonstrate substantial novelty after a costly examination. Copyrights, trademarks, and design patents are much easier to obtain than utility patents, and they often last much longer. Accordingly, to prevent claimants from obtaining “backdoor patents,” the other IP doctrines must screen out functionality. As yet, however, courts and scholars have paid little systematic attention to the ways in which these functionality screens operate across and within IP law.

We have four tasks in …

The Nature Of Sequential Innovation, Christopher Buccafusco, Stefan Bechtold, Christopher Jon Sprigman

Faculty Scholarship

When creators and innovators take up a new task, they face a world of existing creative works, inventions, and ideas, some of which are governed by intellectual property (IP) rights. This presents a choice: Should the creator pay to license those rights? Or, alternatively, should the creator undertake to innovate around them? Our Article formulates this “build on/build around decision” as the fundamental feature of sequential creativity, and it maps a number of factors—some legal, some contextual—that affect how creators are likely to decide between building on existing IP or building around it. Importantly, creators are influenced by more than …

Saving The Political Consensus In Favor Of Free Trade, Timothy Meyer

Faculty Scholarship

No abstract provided.

Authenticating Digital Evidence, Paul W. Grimm, Daniel J. Capra, Gregory P. Joseph

Faculty Scholarship

No abstract provided.

Creating A Data Resource: What Will It Take To Build A Medical Information Commons?, Patricia A. Deverka, Mary A. Majumder, Angela G. Villanueva, Margaret Anderson, Annette C. Bakker, Jessica Bardill, Eric Boerwinkle, Tania Bubela, Barbara J. Evans, Nanibaa’ A. Garrison, Richard A. Gibbs, Robert Gentleman, David Glazer, Melissa M. Goldstein, Hank Greely, Crane Harris, Bartha M. Knoppers, Barbara A. Koenig, Isaac S. Kohane, Salvatore La Rosa, John Mattison, Christopher J. O’Donnell, Arti K. Rai, Heidi L. Rehm, Laura L. Rodriguez, Robert Shelton, Tania Simoncelli, Sharon F. Terry, Michael S. Watson, John Wilbanks, Robert Cook-Deegan, Amy L. Mcguire

Faculty Scholarship

National and international public–private partnerships, consortia, and government initiatives are underway to collect and share genomic, personal, and healthcare data on a massive scale. Ideally, these efforts will contribute to the creation of a medical information commons (MIC), a comprehensive data resource that is widely available for both research and clinical uses. Stakeholder participation is essential in clarifying goals, deepening understanding of areas of complexity, and addressing long-standing policy concerns such as privacy and security and data ownership. This article describes eight core principles proposed by a diverse group of expert stakeholders to guide the formation of a successful, sustainable …

Overcoming The Legal And Regulatory Hurdles To Value-Based Payment Arrangements For Medical Products, Gregory W. Daniel, Thomas Barker, Arti K. Rai, Christian Springer, Marianne Hamilton Lopez, Jane Kalinina, Katie Greene, Jingyuan Qian, Mark B. Mcclellan

Faculty Scholarship

No abstract provided.

Just And Speedy: On Civil Discovery Sanctions For Luddite Lawyers, Michael Murphy

Faculty Scholarship

No abstract provided.

Democratizing Entrepreneurship: Online Documents, Tools, And Startup Know-How, Jeff Thomas, Praveen Kosuri, Bernice Grant

Faculty Scholarship

No abstract provided.

Generating Rembrandt: Artificial Intelligence, Copyright, And Accountability In The 3a Era--The Human-Like Authors Are Already Here- A New Model, Shlomit Yanisky-Ravid

Faculty Scholarship

Artificial intelligence (AI) systems are creative, unpredictable, independent, autonomous, rational, evolving, capable of data collection, communicative, efficient, accurate, and have free choice among alternatives. Similar to humans, AI systems can autonomously create and generate creative works. The use of AI systems in the production of works, either for personal or manufacturing purposes, has become common in the 3A era of automated, autonomous, and advanced technology. Despite this progress, there is a deep and common concern in modern society that AI technology will become uncontrollable. There is therefore a call for social and legal tools for controlling AI systems’ functions and …

Andrea Yates: A Continuing Story About Insanity, Deborah W. Denno

Faculty Scholarship

No abstract provided.

Antitrust, Consumer Protection, And The New Information Platforms, Mark R. Patterson

Faculty Scholarship

No abstract provided.

Aggregation As Disempowerment: Red Flags In Class Action Settlements, Howard M. Erichson

Faculty Scholarship

Class action critics and proponents cling to the conventional wisdom that class actions empower claimants. Critics complain that class actions over-empower claimants and put defendants at a disadvantage, while proponents defend class actions as essential to consumer protection and rights enforcement. This Article explores how class action settlements sometimes do the opposite. Aggregation empowers claimants’ lawyers by consolidating power in the lawyers’ hands. Consolidation of power allows defendants to strike deals that benefit themselves and claimants’ lawyers while disadvantaging claimants. This Article considers the phenomenon of aggregation as disempowerment by looking at specific settlement features that benefit plaintiffs’ counsel and …

Lawful Gun Carriers (Police And Armed Citizens): License, Escalation And Race, Nicholas J. Johnson

Faculty Scholarship

No abstract provided.

Oil And Gas Secured Transactions In Kansas, Joseph A. Schremmer

Faculty Scholarship

Successfully handling oil and gas secured transactions in Kansas requires understanding two bodies of law: Article 9 of the Kansas Commercial Code (Article 9 or UCC) and Kansas real property law. This article surveys the creation, perfection, priority, and enforcement of consensual liens in oil and gas property under both sets of rules.