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Articles 31 - 47 of 47
Full-Text Articles in Law
Bargaining In The Shadow Of Copyright Law After Tasini, Maureen A. O'Rourke
Bargaining In The Shadow Of Copyright Law After Tasini, Maureen A. O'Rourke
Faculty Scholarship
Copyright law often provides the background rules against which bargaining over rights in works of information takes place. By granting creators of works of authorship certain exclusive rights and providing protection against infringement of those rights, copyright law effectively gives authors bargaining chips to use in negotiations with those who would exploit their works in some way. Generally, however, copyright law does not explicitly address imbalances in bargaining power that affect the division of the surplus between the parties to a copyright license. When the would-be exploiter of the copyrighted work wields some degree of market power or brings significant …
Proliferation, Katharine B. Silbaugh
Proliferation, Katharine B. Silbaugh
Faculty Scholarship
In the spirit of intellectual inquiry, the editors have chosen to hold a symposium asking how the unique mission of the journal is to be justified. Self-assessment is a courageous undertaking. Here we see exemplified one of the great benefits of journals with a well-defined perspective: student editors take the mission of the journal seriously. They are not self-satisfied. They have chosen this perspective, not fallen into it, and they are willing to investigate whether it is worth their commitment. From this comes the simple answer-as long as there are students dedicated to the mission of feminist law journals, authors …
An Exclusive Right To Evoke, Stacey Dogan
An Exclusive Right To Evoke, Stacey Dogan
Faculty Scholarship
Ten years ago, in White v. Samsung Electronics America, the Ninth Circuit held that a robot violated Vanna White's publicity rights. Since the White decision, the tendency to equate evocation with infringement in trademark and right of publicity cases has only grown. In contrast to this expansionist trend in trademark and right of publicity law, however, courts in recent copyright cases have arguably backed off from a strong right to evoke. This Article identifies these trends and suggests some reasons for concern over an exclusive right to evoke. The author argues that if we wish to preserve a rich commons …
The Right To Health And The Nevirapine Case In South Africa, George J. Annas
The Right To Health And The Nevirapine Case In South Africa, George J. Annas
Faculty Scholarship
Thanks to activists in South Africa, the right to health as a human right has returned to the international stage, just as it was being displaced by economists who see health through the prism of a globalized economy and by politicians who see it as an issue of national security or charity. The current post-apartheid debate in South Africa is not about race but about health, and in this context, the court victory by AIDS activists in the nevirapine case has been termed not only, as stated in one British newspaper, “the greatest defeat for [President Thabo] Mbeki's government” but …
Who Should Regulate Class Action Lawyers?, Nancy J. Moore
Who Should Regulate Class Action Lawyers?, Nancy J. Moore
Faculty Scholarship
Ethical issues arise frequently in class action litigation. These issues include conflicts of interest, solicitation, application of the no-contact rule, the reasonableness of attorneys' fees, and the attorney-witness rule. There has been considerable difficulty applying existing rules of conduct to these situations, partly because of confusion regarding the relationship among class counsel, the named class representatives and absent members of the class. Thus as to conflicts of interest - perhaps the most pressing problem facing class action lawyers - it has been said that a "strict reading of the conflict of interest rules in class actions should be tempered, because …
Excuse And Justification In The Law Of Fair Use: Transaction Costs Have Always Been Only Part Of The Story, Wendy J. Gordon
Excuse And Justification In The Law Of Fair Use: Transaction Costs Have Always Been Only Part Of The Story, Wendy J. Gordon
Faculty Scholarship
In American copyright law, the doctrine of "fair use" has long been problematic. Every plausible litmus test that might simplify the "fair use" inquiry has proven inadequate, and copyright commentators have long sought an algorithm or heuristic to lend predictability and conceptual coherence to the doctrine. Twenty years ago, I published in this Journal an article entitled Fair Use as Market Failure, which suggested that the key to understanding the protean terms of "fair use" could best be found in the notion of market failure. That 1982 article has been often misapplied, by both courts and commentators. I am …
Reexamining The Posse Comitatus Act: Toward A Right To Civil Law Enforcement, Sean J. Kealy
Reexamining The Posse Comitatus Act: Toward A Right To Civil Law Enforcement, Sean J. Kealy
Faculty Scholarship
The military is currently prohibited by federal statute from participating in domestic law enforcement. The Posse Comitatus Act of 1878 ("PCA") establishes criminal penalties for people who willfully use members of the Army or the Air Force to execute the laws. Although a product of the Reconstruction Era, this law reflects a strong American tradition against the domestic use of the military that stretches back before the founding of the nation.
Corporate Fraud: See Lawyers, Susan P. Koniak
Corporate Fraud: See Lawyers, Susan P. Koniak
Faculty Scholarship
The accounting profession must bear a good deal of responsibility for the current wave of corporate scandals, as must those CEOs whose watchword was greed, lackadaisical directors, projections-for-hire investment analysts, banks selling methods designed to deceive, and institutional investors asleep at the switch. One set of villains, however, have managed thus far to float beneath the radar screen and thus escape the lion-sized portion of blame that should rightly be laid at their door: lawyers.
A Brief History Of Author-Publisher Relations And The Outlook For The 21st Century, Maureen A. O'Rourke
A Brief History Of Author-Publisher Relations And The Outlook For The 21st Century, Maureen A. O'Rourke
Faculty Scholarship
The Fiftieth Anniversary Edition of the Journal of the Copyright Society of the U.S.A. provides a particularly appropriate forum in which to discuss the current state of the copyright system. By some accounts, U.S. copyright law has been fabulously successful, encouraging the growth of industries whose copyrighted products both enrich American culture and contribute significant value to the economy.
An Incentives Approach To Patent Settlements: A Commentary On Hovenkamp, Janis & Lemley, Maureen A. O'Rourke
An Incentives Approach To Patent Settlements: A Commentary On Hovenkamp, Janis & Lemley, Maureen A. O'Rourke
Faculty Scholarship
Professors Hovenkamp, Janis, and Lemley have attempted to clarify one of the most vexing issues facing antitrust and intellectual property law today: What analytical framework should antitrust authorities and courts use in considering whether patent settlement agreements in infringement cases violate the antitrust laws? The issue is complex because many ostensibly anticompetitive restraints in settlement agreements are perfectly legal if the underlying patent right is valid. Unfortunately, in some cases, the relevant patents are either invalid or not infringed. Thus, the antitrust analysis hinges on resolution of an intellectual property question.
Controlling Opportunistic And Anti-Competitive Intellectual Property Litigation, Michael J. Meurer
Controlling Opportunistic And Anti-Competitive Intellectual Property Litigation, Michael J. Meurer
Faculty Scholarship
It is useful to think of intellectual property (IP) law both as a system of property rights that promotes the production of valuable information and as a system of government regulation that unintentionally promotes socially harmful rent-seeking. This Article analyzes methods of controlling rent-seeking costs associated with opportunistic and anti-competitive IP lawsuits. My thinking is guided to some extent by the analysis of procedural measures for controlling frivolous litigation, and analysis of antitrust reforms designed to control strategic abuse of antitrust law. These analogies lead me to focus on pre-trial and post-trial control measures that reduce the credibility of weak …
Does Punishment For 'Culpable Indifference' Simply Punish For 'Bad Character'? Examining The Requisite Connection Between Mens Rea And Actus Reus, Kenneth Simons
Faculty Scholarship
The conventional mental state or culpability categories recognized in the criminal law are purpose, knowledge, recklessness, and negligence. Should the law also recognize as an additional category some version of "culpable indifference"? Yes, according to a number of scholars; and some courts have also recognized this category, especially in the context of depraved heart murder. Culpable indifference can describe a modestly culpable mental state, sufficient for manslaughter liability (or, with respect to a circumstance element, roughly equivalent in seriousness to cognitive recklessness). It can also identify a more aggravated form of culpability, sufficient for murder (or, with respect to a …
Puppy Love: Bioterrorism, Civil Rights, And Public Health, George J. Annas
Puppy Love: Bioterrorism, Civil Rights, And Public Health, George J. Annas
Faculty Scholarship
Florida has been the state humorists most like to make fun of since the 2000 presidential election, especially when it comes to politics. And humorists are almost the only commentators who can be counted on to tell us the truth about the state of American politics today. When Californians decided to recall their Governor, for example, Conan O'Brien observed: "Yesterday Arnold Schwarzenegger announced he would run for governor of California. The announcement was good news for Florida residents, who now live in the second-flakiest state in the country."' And when more than 200 people filed to run for Governor, Jay …
Darwin, Design, And Disestablishment: Teaching The Evolution Controversy In Public Schools, Jay D. Wexler
Darwin, Design, And Disestablishment: Teaching The Evolution Controversy In Public Schools, Jay D. Wexler
Faculty Scholarship
The controversy over teaching evolution in public schools is once again hot news. Ever since the Supreme Court decided in 1987 that Louisiana could not constitutionally require teachers to give equal time to teaching creation science and evolution, critics of evolution have adopted a variety of new strategies to change the way in which public schools present the subject to their students. These strategies have included teaching evolution as a "theory" rather than as a fact, disclaiming the truth of evolutionary theory, teaching arguments against evolution, teaching the allegedly nontheistic theory of intelligent design instead of creationism, removing evolution from …
Race, Civil Rights, And Immigration Law After September 11, 2001, Susan M. Akram
Race, Civil Rights, And Immigration Law After September 11, 2001, Susan M. Akram
Faculty Scholarship
This article is part of a symposium on "Migration Regulation Goes Local: The Role of States in U.S. Immigration Policy." Although only time will tell, September 11, 2001 promises to be a watershed in thehistory of the United States. Not long after the tragedy, supporters and critics alike saw the federal government as "pushing the envelope" in restricting civil liberties in the name of national security. This article analyzes the nation's response to the horrific loss of life of September 11 and shows how the centralization ofimmigration power in the hands of the federal government, may exacerbate the civil rights …
The New Face Of Investment Arbitration: Nafta Chapter 11, William W. Park
The New Face Of Investment Arbitration: Nafta Chapter 11, William W. Park
Faculty Scholarship
To protect American investment abroad, the United States traditionally endorsed arbitration as a preferred means to resolve disputes between investors and host countries. Yet a growing awareness of the down-side of arbitration, at least from the perspective of the party seeking the home-town justice of its own courts, has led to media attacks and legislative initiatives intended to hobble neutral international adjudication. This article suggests that assaults on investment arbitration are misguided, and may end up doing more harm than good. On balance, NAFTA arbitration serves as a positive force in the protection of legitimate economic expectations, enhancing the type …
Hipaa Regulations: A New Era Of Medical-Record Privacy?, George J. Annas
Hipaa Regulations: A New Era Of Medical-Record Privacy?, George J. Annas
Faculty Scholarship
The new privacy regulations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) become effective April 14, 2003. This article outlines the implications of the new policy for practicing physicians. The regulations will affect virtually every physician, because they apply to any health care provider who conducts any business electronically, including billing. The regulations require health care providers to provide patients with a privacy notice that informs them who will have access to their records without their explicit consent and about patients' rights to inspect and amend their own records.