Law Commons^™

United States Response To Questionnaire Concerning Applied Arts Under Ip Law: The Uncertain Border Between Beauty And Usefulness, June M. Besek, Robert E. Bishop, Jane C. Ginsburg, Philippa Loengard, Nathalie Russell

Faculty Scholarship

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.

Debunking The Myth Of The Copyright Troll Apocalypse, Shyamkrishna Balganesh, Jonah B. Gelbach

Faculty Scholarship

Professor Matthew Sag’s Copyright Trolling, An Empirical Study tells a riveting tale of a litigation system run amok.1 A plaintiff files suit in federal court. Each instance of alleged unlawful conduct targeted in the suit may well entail little in the way of actual damages, and for that reason the complaint demands statutory rather than actual damages. The conduct in question is as common as it is allegedly unlawful and, in some people’s views, this conduct isn’t particularly objectionable. And the economics of the litigation in question simply don’t make sense without the aggregation of claims related to many individuals. …

Testimony Regarding The First Amendment Defense Act (Fada), Katherine M. Franke, Elizabeth A. Sepper, Ariela Gross, Sylvia A. Law, Martin S. Flaherty, Suzanne B. Goldberg, Carol Sanger, J. Stephen Clark, Florens Wagman Roisman, Gregory Magarian, Caroline Mala Corbin, Nomi Stolzenberg, Carlos A. Ball, Aaron Ezra Waldman, Aziza Ahmed, Jennifer A. Drobac, Deborah Widiss, Arthur S. Leonard, Martha M. Ertman

Faculty Scholarship

My testimony today is delivered on behalf of twenty leading legal scholars who have joined me in providing an in depth analysis of the meaning and likely effects of the First Amendment Defense Act (FADA), were it to become law. We feel particularly compelled to provide testimony to this Committee because the first legislative finding set out in FADA declares that: “Leading legal scholars concur that conflicts between same-sex marriage and religious liberty are real and should be addressed through legislation.” As leading legal scholars we must correct this statement: we do not concur that conflicts between same-sex marriage and …

Bringing International Tax Policy Into The 21st Century, Michael J. Graetz

Faculty Scholarship

Michael J. Graetz delivered the following remarks at the Tax Policy Center's "A Corporate Tax for the 21st Century" conference on July 14 in Washington. These remarks are substantially taken from his April 2015 Ross Parsons Lecture at the University of Sydney Law School.

Driverless Cars And The Much Delayed Tort Law Revolution, Andrzej Rapaczynski

Faculty Scholarship

The most striking development in the American tort law of the last century was the quick rise and fall of strict manufacturers’ liability for the huge social losses associated with the use of industrial products. The most important factor in this process has been the inability of the courts and academic commentators to develop a workable theory of design defects, resulting in a wholesale return of negligence as the basis of products liability jurisprudence. This article explains the reasons for this failure and argues that the development of digital technology, and the advent of self-driving cars in particular, is likely …

Is There Really A Sex Bureaucracy?, Suzanne B. Goldberg

Faculty Scholarship

This essay identifies several features of the higher-education context that can enrich The Sex Bureaucracy‘s account of why colleges and universities have adopted new policies and trainings to address sexual assault on their campuses. These features include: 1) schools’ preexisting systems for addressing student conduct; 2) the shared interest of schools in reducing impediments to education, including nonconsensual sexual contact; and 3) the pedagogical challenges of developing trainings that are engaging and effective. Taking these three factors into account, we can see that while federal Title IX intervention has had a profound effect, it is also important not to …

Reflections On Seminole Rock: The Past, Present, And Future Of Deference To Agency Regulatory Interpretations, Gillian E. Metzger, Aaron Nielson, Sanne H. Knudsen, Amy J. Wildermuth, Aditya Bamzai, Richard J. Pierce, Cynthia Barmore, William Yeatman, Christopher J. Walker, Kevin M. Stack, Andy Grewal, Steve R. Johnson, F. Andrew Hessick, Jonathan H. Adler, Catherine M. Sharkey, David Feder, Cass R. Sunstein, Adrian Vermeule, Ronald M. Levin, Kevin O. Leske, James Cleith Phillips, Daniel Ortner, William Funk, Kristen E. Hickman, Jeffrey A. Pojanowski, Adam White, Conor Clarke

Faculty Scholarship

Seminole Rock (or Auer) deference has captured the attention of scholars, policymakers, and the judiciary. That is why Notice & Comment, the blog of the Yale Journal on Regulation and the American Bar Association’s Section of Administrative Law & Regulatory Practice, hosted an online symposium from September 12 to September 23, 2016 on the subject. This symposium contains over 20 contributions addressing different aspects of Seminole Rock deference.

Topics include:

• History of Seminole Rock
• Empirical Examinations of Seminole Rock
• Understanding Seminole Rock Within Agencies
• Understanding Seminole Rock as Applied to Tax, Environmental Law, and Criminal Sentencing
• Why Seminole Rock Matters …

Comments On The Morality Of Freedom, Joseph Raz

Faculty Scholarship

The paper mixes comments on the ambitions that motivated writing The Morality of Freedom with observations on comments on the book, made at a conference in Jerusalem in 2016, by Japa Pallikkathayil, Avishai Margalit, Michael Otsuka, Jon Quong, Daniel Viehoff, Asaf Sharon and Arudra Burra. It acknowledges some of the critical points made while resisting others. Its strives to combine clarification of some of the themes in the book with recognition that its ideas require further development, and can be developed in various directions.

Nonmarital Families And The Legal System's Institutional Failures, Clare Huntington

Faculty Scholarship

As along-time critic of family law, I find it odd to be singing the system's praises. And yet I am. Sort of. In this issue of the Family Law Quarterly, which addresses cohabitation and nonmarital families, I want to focus on what happens when relationships end. For all its shortcomings, family law provides an institution to help divorcing couples restructure their families following the end of relationships. For nonmarital families, not so much. Unmarried parents theoretically can go to court when they separate, but most do not. Thus., as a practical matter, the legal system leaves unmarried parents without an …

Developing A Pedagogy Of Beneficiary Accountability In The Representation Of Social Justice Non-Profit Organizations, Amber Baylor, Daria Fisher Page

Faculty Scholarship

This article seeks to begin a conversation on how we teach the problem of beneficiary accountability in the representation of organizations with social justice missions: How do we guide students towards a fuller understanding of the moral responsibility to engage and respect the voices of the communities most directly affected by the non-profit organization’s mission? We look at the issue through the pedagogical lens of our experience supervising clinic students, deconstructing the problems of beneficiary accountability that students faced in the representation of two social justice organizations, surveying relevant legal scholarship on organizational representation and community lawyering, and considering alternative …

Designing Corporate Bailouts, Antonio E. Bernardo, Eric L. Talley, Ivo Welch

Faculty Scholarship

Although common economic wisdom suggests that government bailouts are inefficient because they reduce incentives to avoid failure and induce excessive entry by marginal firms, in practice bailouts are difficult to avoid for systemically significant enterprises. Recent experience suggests that bailouts also induce litigation from shareholders and managers complaining about expropriation and wrongful termination by the government. Our model shows how governments can design tax-financed corporate bailouts to reduce these distortions and points to the causes of inefficiencies in real-world implementations such as the Troubled Asset Relief Program. Bailouts with minimal distortion depend critically on the government’s ability to expropriate shareholders …

Sadly, The Paris Agreement Isn't Nearly Enough, Michael B. Gerrard

Faculty Scholarship

Climate change is a major contributor to migration and displacement. Persistent drought forced as many as 1.5 million Syrian farmers to move to overcrowded cities, contributing to social turmoil and ultimately a civil war that drove hundreds of thousands of people to attempt to cross the Mediterranean into Europe. Drought also worsened refugee crises in the Sahel, the Horn of Africa, and other parts of the continent.

When Extrinsic Incentives Displace Intrinsic Motivation: Designing Legal Carrots And Sticks To Confront The Challenge Of Motivational Crowding-Out, Kristen Underhill

Faculty Scholarship

The rise of “nudges” has inspired countless efforts to encourage individual choices that maximize personal and collective welfare, with a preference for less restrictive tools such as setting default options or reordering choice sets. As part of this trend, there has been renewed interest in the behavioral impacts of incentives – namely, rewards or penalties for shaping individual choices, including but not limited to financial incentives. Explicit incentives are pervasive in the law, including carrots offered by governments (for example, tax deductions for charitable contributions, rebates for recycling, sentence reductions for prisoners who complete drug rehabilitation programs, and incentives for …

Building Labor's Constitution, Kate Andrias

Faculty Scholarship

This essay begins with a puzzle: scholars have built a robust set of constitutional claims about labor rights, claims with deep roots in the labor movement’s own past struggles and its own traditions of constitutional claim-making. Yet, workers’ movements today have made no use of these claims, Andrias reports. The reason, she suggests, has to do with the deep mutual hostility between workers’ movements and the courts. If past were prologue, workers could at least use such arguments outside the courts, but, she argues, “in our [contemporary] legal culture, constitutional arguments are primarily judicial arguments,” and have a way of …

Executive Federalism Comes To America, Jessica Bulman-Pozen

Faculty Scholarship

This Article proposes a different way of thinking about contemporary American governance, looking to an established foreign practice. Executive federalism – “processes of intergovernmental negotiation that are dominated by the executives of the different governments within the federal system” – is pervasive in parliamentary federations, such as Canada, Australia, and the European Union. Given the American separation of powers arrangement, executive federalism has been thought absent, even “impossible,” in the United States. But the partisan dynamics that have gridlocked Congress and empowered both federal and state executives have generated a distinctive American variant.

Viewing American law and politics through the …

A Response To Professor Rascoff's Presidential Intelligence, Philip C. Bobbitt

Faculty Scholarship

Professor Samuel Rascoff’s Presidential Intelligence reflects both the conceptual and research strengths of the author, which are formidable, and the practical difficulties of intelligence reform, which are no less so. Rascoff is certainly right that to be effective – in the still-unfolding constitutional environment that must contend with terror groups armed with unprecedented weapons and communications technology – the intelligence community (IC) must act within the law and the rules governing that community must be reformed to make this possible. He is inclined to believe that the answer lies in heightened presidential management. I’m not so sure. The actual presidential …

A Model Company Act And A Model Company Court, Ronald J. Gilson

Faculty Scholarship

This paper is a contribution to a symposium on the European Model Company Act ("EMCA ") in which I argue that a model company court powerfully complements the EMCA. A particular characteristic of company law complicates the intermediating role of a model act in a federal system. Because complex corporate transactions inevitably are associated with significant uncertainty, especially when they present conflicts of interest, transaction designers and legislative drafters tend to frame applicable contractual and legal rules as standards, such as fairness and equal treatment, rather than as rules. In turn, the effectiveness of a standard in the face of …

"Section 5 And 'Unfair Methods Of Competition': Protecting Competition Or Increasing Uncertainty?", Tim Wu

Faculty Scholarship

Since the late 1980s, Section 5 of the FTC Act has come to center on a certain kind of case, the so-called anticompetitive “scheme” featuring extraordinary and nefarious conduct – like gaming a standards process, rigging industry tests, that sort of thing. Deception, fraud, bad-faith and oppressive action are typical. This kind of self-restraint has, to its credit, yielded a focus on cases where the conduct is extraordinary, an anticompetitive intent is obvious and the harm is substantial. At this point, the self-imposed limits on Section 5 enforcement are extensive enough that a critic could fairly accuse the agency of …

Harvey Goldschmid: The Scholar As Realistic Reformer, John C. Coffee Jr.

Faculty Scholarship

Harvey Goldschmid was a Renaissance Man – extraordinary teacher, farsighted public servant, skillful negotiator, and corporate statesman. But sometimes, less attention is given to his career as a legal scholar. Here too, however, his work has had impact and will last.

Wedlocked: The Perils Of Marriage Equality – The Author Meets Her Readers, Katherine M. Franke

Faculty Scholarship

You write a book and you wonder: “will anyone read it?” This Boston University Law Review Annex Symposium on Wedlocked answers my question. Not only did “someone” read the book, but those “someones” are some of the scholars I admire most, and they took the time and thought to engage Wedlocked’s arguments in this symposium. Thank you to each of the scholars who participated in this symposium, thank you to Professor Linda McClain for inviting their participation, and thank you to James Tobin, the Online Editor for the BU Law Review, for providing a home for this conversation about …

After The Golden Victory: Still Lost At Sea, Victor P. Goldberg

Faculty Scholarship

In The Golden Victory the House of Lords held that when determining damages for a repudiatory breach, in a conflict between the compensatory principle and finality, the former trumped. The decision was recently ratified by the Supreme Court in Bunge SA v. Nidera BV. The claim in this paper is that this was a mistake; properly conceived, there is no conflict. The contract should be viewed as an asset and compensation would entail determining the decline in value of that asset at the time of the breach. The value of the contract at that moment would reflect the possible effects …

Intellectual Property In News? Why Not?, Sam Ricketson, Jane C. Ginsburg

Faculty Scholarship

This Chapter addresses arguments for and against property rights in news, from the outset of national law efforts to safeguard the efforts of newsgathers, through the various unsuccessful attempts during the early part of the last century to fashion some form of international protection within the Berne Convention on literary and artistic works and the Paris Convention on industrial property. The Chapter next turns to contemporary endeavors to protect newsgatherers against “news aggregation” by online platforms. It considers the extent to which the aggregated content might be copyrightable, and whether, even if the content is protected, various exceptions set out …

G2i Knowledge Brief: A Knowledge Brief Of The Macarthur Foundation Research Network On Law And Neuroscience, David L. Faigman, Anthony Wagner, Richard J. Bonnie, Bj Casey, Andre Davis, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Gideon Yaffe

Faculty Scholarship

Courts are daily confronted with admissibility issues – such as in cases involving neuroscientific testimony – that sometimes involve both the existence of a general phenomenon (i.e., “G”) and the question of whether a particular case represents a specific instance of that general phenomenon (i.e., “i”).

Unfortunately, courts have yet to carefully consider the implications of “G2i” for their admissibility decisions. In some areas, courts limit an expert’s testimony to the general phenomenon. They insist that whether the case at hand is an instance of that phenomenon is exclusively a jury question, and thus not an appropriate subject of expert …

Law In The Shadow Of Violence: Can Law Help To Improve Doctor-Patient Trust In China?, Benjamin L. Liebman

Faculty Scholarship

Can law help to address the lack of trust in doctor-patient relationships in China? This essay examines the role that law, on the books and in practice, has played in the rise and resolution of patient-doctor disputes and conflict in China. Law has generally played a secondary role in medical disputes: most patient claims never make it to court, and there is little evidence that negotiated outcomes are influenced by legal standards. Yet a legal framework weighted in favor of hospitals and doctors almost certainly exacerbated doctor-patient conflict in the 2000s. Patients facing legal procedures and rules that appeared to …

The Questionable Origins Of The Copyright Infringement Analysis, Shyamkrishna Balganesh

Faculty Scholarship

Central to modern copyright law is the test for determining infringement, famously developed by Judge Jerome Frank in the landmark case of Arnstein v. Porter. The “Arnstein test,” which courts continue to apply, demands that the analysis be divided into two components: actual copying – the question whether the defendant did in fact copy – and improper appropriation – the question whether such copying, if it did exist, was unlawful. Somewhat counterintuitively, though, the test treats both components as pure questions of fact, requiring that even the question of improper appropriation go to a jury. This jury-centric approach …

Inclusion, Exclusion, And The "New" Economic Inequality, Olatunde C.A. Johnson

Faculty Scholarship

Is racial inequality an unwelcome intruder to the new discourse on economic inequality? The present discourse on economic inequality emphasizes decades-long trends that have increased economic inequality, whether as a result of reoccurring features in the structure of capitalist economies or more recent changes in institutional, structural, and economic conditions. Researchers direct us to the rising fortunes of the top earners and asset holders relative to the rest, the declining fortunes of the middle class harmed by stagnating wages, and the declining share of industries (like manufacturing) in the economy. This new economic inequality discourse has preoccupied economists, garnered its …

Berne-Forbidden Formalities And Mass Digitization, Jane C. Ginsburg

Faculty Scholarship

This Essay addresses the Berne Convention's prohibition on the imposition of "formalities" on the "enjoyment and the exercise" of copyright, and the compatibility with that cornerstone norm of international endeavors to facilitate mass digitization, notably by means of extended collective licensing and "opt-out" authorizations. In the Berne context, "enjoyment" means the existence and scope of rights; "exercise" means their enforcement. Voluntary provision of copyright notice and of title-searching information on a public register of works and transfers of rights is fully consistent with Berne and should be encouraged. But the Berne Convention significantly constrains member states' ability to impose mandatory …

Duties To Organizational Clients, William H. Simon

Faculty Scholarship

Loyalty to an organizational client means fidelity to the substantive legal structure that constitutes it. Although this principle is not controversial in the abstract, it is commonly ignored in professional discourse and doctrine. This article explains the basic notion of organizational loyalty and identifies some mistaken tendencies in discourse and doctrine, especially the "Managerialist Fallacy" that leads lawyers to conflate the client organization with its senior managers. The article then applies the basic notion to some hard cases, concluding with a critical appraisal of the rationale for confidentiality with organizational clients.

Economic Crisis And The Integration Of Law And Finance: The Impact Of Volatility Spikes, Edward G. Fox, Merritt B. Fox, Ronald J. Gilson

Faculty Scholarship

The 2008 financial crisis raised puzzles important for understanding how the capital market prices common stocks and in turn, for the intersection between law and finance. During the crisis, there was a dramatic fivefold spike, across all industries, in "idiosyncratic risk" – the volatility of individual-firm share prices after adjustment for movements in the market as a whole.

This phenomenon is not limited to the most recent financial crisis.This Article uses an empirical review to show that a dramatic spike in idiosyncratic risk has occurred with every major downturn from the 1920s through the recent financial crisis. It canvasses three …

Juvenile Sentencing Reform In A Constitutional Framework, Elizabeth S. Scott, Thomas Grisso, Marsha Levick, Laurence Steinberg

Faculty Scholarship

In the past decade, the Supreme Court has transformed the constitutional landscape of juvenile crime regulation. In three strongly worded opinions, the Court held that imposing harsh criminal sentences on juvenile offenders violates the Eighth Amendment prohibition against cruel and unusual punishment. Roper v Simmons in 2005 prohibited the imposition of the death penalty for a crime committed by a juvenile. Five years later, Graham v. Florida held that no juvenile could be sentenced to life without the possibility of parole (LWOP) for a nonhomicide offense. Then in 2012, Miller v. Alabama struck down statutes that required courts to sentence …