Social and Behavioral Sciences Commons^™

Provisional Measures In Aid Of Arbitration, Ronald A. Brand

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The success of the New York Convention has made arbitration a preferred means of dispute resolution for international commercial transactions. Success in arbitration often depends on the extent to which a party may secure assets, evidence, or the status quo between parties prior to the completion of the arbitration process. This makes the availability of provisional measures granted by either arbitral tribunals or by courts fundamental to the arbitration. In this Article, I consider the existing legal framework for provisional measures in aid of arbitration, with particular attention to the sources of the rules providing for such measures. Those sources …

A More Capacious Concept Of Church, Philip Hackney, Samuel D. Brunson

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United States tax law provides churches with extra benefits and robust protection from IRS enforcement actions. Churches and religious organizations are automatically exempt from the income tax without needing to apply to be so recognized and without needing to file a tax return. Beyond that, churches are protected from audit by stringent procedures. There are good reasons to consider providing a distance between church and state, including the state tax authority. In many instances, Congress granted churches preferential tax treatment to try to avoid excess entanglement between church and state, though that preferential treatment often just shifts the locus of …

Climate Justice In The Anthropocene And Its Relationship With Science And Technology: The Importance Of Ethics Of Responsibility, Paolo Davide Farah, Alessio Lo Giudice

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Climate change is a global phenomenon. Therefore, globalization is the necessary hermeneutical horizon to develop an analysis of the metamorphosis climate change could cause at a political, social, and economic level. Within this horizon, this Article shows how the relationship between the concept of the Anthropocene epoch and the request for justice allows for framing a climate-justice and intergenerational equity–focused political interpretation of the effects of climate change. In order to avoid reducing such an interpretation to merely an ideological critique of capitalism, the conception of climate justice needs to be grounded in a rational, ethical model. This Article proposes …

Public Ownership And The Wto In A Post Covid-19 Era: From Trade Disputes To A 'Social' Function, Paolo Davide Farah, Davide Zoppolato

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Public ownership is closely bound to the need of the government to protect and guarantee the well-being of its citizens. Where the market cannot, or does not want to, provide goods and services, the State uses different tools to intervene, influence, and control some aspects of the private sphere of expression of its citizens in the name and interest of the collectivity. Although, in the past century, this behavior was accepted as one of the expressions of the public authority and part of the social contract, this perception has shifted partially in accordance with the wave of privatization programs initiated …

The Futures Of Law, Lawyers, And Law Schools: A Dialogue, Sameer M. Ashar, Benjamin H. Barton, Michael J. Madison, Rachel F. Moran

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On April 19 and 20, 2023, Professors Bernard Hibbitts and Richard Weisberg convened a conference at the University of Pittsburgh School of Law titled “Disarmed, Distracted, Disconnected, and Distressed: Modern Legal Education and the Unmaking of American Lawyers.” Four speakers concluded the event with a spirited conversation about themes expressed during the proceedings. Distilling a lively two days, they asked: what are the most critical challenges now facing US legal education and, by extension, lawyers and the communities they serve? Their agreements and disagreements were striking, so much so that Professors Hibbitts and Weisberg invited those four to extend their …

Too Much Of A Good Thing? A Governing Knowledge Commons Review Of Abundance In Context, Michael J. Madison, Brett M. Frischmann, Madelyn Sanfilippo, Katherine J. Strandburg

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The economics of abundance, along with the sociology of abundance, the law of abundance, and so forth, should be re-framed, linked, and situated in a common context for empirical rather than conceptual research. Abundance may seem to be a new, big thing, between anxiety over information overload, Big Data, and related technological disruptions. But scholars know that abundance is an ancient phenomenon, which only seemed to disappear as twentieth century social science focused on scarcity instead. Restoring the study of abundance, and figuring out how to solve the problems that abundance might create, means shedding disciplinary blinders and going back …

A Hague Parallel Proceedings Convention: Architecture And Features, Paul Herrup, Ronald A. Brand

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In Paul Herrup and Ronald A. Brand, A Hague Convention on Parallel Proceedings, 63 Harvard International Law Journal Online 1(2022), available at https://harvardilj.org/2022/02/a-hague-convention-on-parallel-proceedings/ and https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3894502, we argued that the Hague Conference on Private International Law should not undertake a project to require or prohibit exercise of original jurisdiction in national courts. Rather, the goal of current efforts should be to improve the concentration of parallel litigation in a “better forum,” in order to achieve efficient and complete resolution of disputes in transnational litigation. The Hague Conference is now taking this path. As the Experts Group and Working Group …

Government By Code? Blockchain Applications To Public Sector Governance, Pedro Bustamante, Meina Cai, Marcela Gomez, Colin Harris, Prashabnt Krishnamurthy, Wilson Law, Michael J. Madison, Ilia Murtazashvili, Jennifer Brick Murtazashvili, Tymofiy Mylovanov, Nataliia Shapoval, Annette Vee, Martin B. H. Weiss

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Studies of blockchain governance can be divided into analyses of the governance of blockchains (such as rules and power dynamics within a given network) and governance by blockchains (such as how blockchains can be implemented to improve self-governance of community-based peer production networks). Less emphasis has been placed on applications of distributed ledgers to public sector governance. Our review clarifies that the decentralization and distributive features that enable blockchains to link up loosely connected private organizations and public agencies to improve efficiency and transparency of government transactions. However, most blockchain applications lack clear advantages over the conventional digital recording of …

White Vigilantism And The Racism Of Race-Neutrality, Christian Sundquist

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Race-neutrality has long been touted in American law as central to promoting racial equality while guarding against race-based discrimination. And yet the legal doctrine of race-neutrality has perversely operated to shield claims of racial discrimination from judicial review while protecting discriminators from liability and punishment. This Article critiques the doctrine of race-neutrality by examining the law’s response to white vigilantism in the much-publicized criminal trials of Kyle Rittenhouse and that of Ahmaud Arbery’s assailants.

Blockchain Networks As Knowledge Commons, Ilia Murtazashvili, Jennifer Brick Murtazashvili, Martin B. H. Weiss, Michael J. Madison

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Researchers interested in blockchains are increasingly attuned to questions of governance, including how blockchains relate to government, the ways blockchains are governed, and ways blockchains can improve prospects for successful self-governance. Our paper joins this research by exploring the implications of the Governing Knowledge Commons (GKC) framework to analyze governance of blockchains. Our novel contributions are making the case that blockchain networks represent knowledge commons governance, in the sense that they rely on collectively-managed technologies to pool and manage distributed information, illustrating the usefulness and novelty of the GCK methodology with an empirical case study of the evolution of Bitcoin, …

Changing Every Wrong Door Into The Right One: Reforming Legal Services Intake To Empower Clients, Jabeen Adawi

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It’s recognized that people affected by poverty often have numerous overlapping legal needs and despite the proliferation of legal services, they are unable to receive full assistance. When a person is faced with a legal emergency, rarely is there an equivalent to a hospital’s emergency room wherein they receive an immediate diagnosis for their needs and subsequent assistance. In this paper, I focus on the process a person goes through to find assistance and argue that it is a burdensome, and demoralizing task of navigating varying protocols, procedures, and individuals. While these systems are well intentioned from the lawyer’s perspective, …

Playing At The Crossroads Of Religion And Law: Historical Milieu, Context And Curriculum Hooks In Lost & Found, Owen Gottlieb

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This chapter presents the use of Lost & Found – a purpose-built tabletop to mobile game series – to teach medieval religious legal systems. The series aims to broaden the discourse around religious legal systems and to counter popular depiction of these systems which often promote prejudice and misnomers. A central element is the importance of contextualizing religion in period and locale. The Lost & Found series uses period accurate depictions of material culture to set the stage for play around relevant topics – specifically how the law promoted collaboration and sustainable governance practices in Fustat (Old Cairo) in twelfth-century …

Temporality In A Time Of Tam, Or Towards A Racial Chronopolitics Of Intellectual Property Law, Anjali Vats

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This Article examines the intersections of race, intellectual property, and temporality from the vantage point of Critical Race Intellectual Property ("CRTIP"). More specifically, it offers one example of how trademark law operates to normalize white supremacy by and through judicial frameworks that default to Euro-American understandings of time. I advance its central argument-that achieving racial justice in the context of intellectual property law requires decolonizing Euro-American conceptions of time by considering how the equitable defense of laches and the judicial power to raise issues sua sponte operate in trademark law. I make this argument through a close reading of the …

The Vulnerable Sovereign, Ronald A. Brand

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The connection between sovereignty and law is fundamental for both domestic (internal sovereignty) and the international (external sovereignty) purposes. As the dominant forms of government have evolved over time, so has the way in which we think about sovereignty. Consideration of the historical evolution of the concept of sovereignty offers insight into how we think of sovereignty today. A term that was born to represent the relationship between the governor and the governed has become a term that is used to represent the relationships between and among states in the global legal order. This article traces the history of the …

Tools For Data Governance, Michael J. Madison

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This article describes the challenges of data governance in terms of the broader framework of knowledge commons governance, an institutional approach to governing shared knowledge, information, and data resources. Knowledge commons governance highlights the potential for effective community- and collective-based governance of knowledge resources. The article focuses on key concepts within the knowledge commons framework rather than on specific law and public policy questions, directing the attention of researchers and policymakers to critical inquiry regarding relevant social groups and relevant data “things.” Both concepts are key tools for effective data governance.

Financing The World Health Organization: What Lessons For Multilateralism?, Kristina Daugirdas, Gian Luca Burci

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When it comes to financing the work of international organizations, voluntary contributions from both state and nonstate actors are growing in size and importance. The World Health Organization (WHO) is an extreme case from this perspective, with voluntary contributions - mostly earmarked for particular purposes - comprising more than 80 percent of its funds. Moreover, nonstate actors are by now supplying almost half of WHO’s funds, with the Bill and Melinda Gates Foundation ranking as the second-highest contributor after the United States. A number of public-health and international relations scholars have expressed alarm over these trends, arguing that heavy reliance …

Online Dispute Resolution, Ronald A. Brand

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This chapter was prepared from a presentation given by the author at the 2019 Summer School in Transnational Commercial Law & Technology, jointly sponsored by the University of Verona School of Law and the Center for International Legal Education (CILE) of the University of Pittsburgh School of Law. In the paper, I review online dispute resolution (ODR) by considering the following five questions, which I believe help to develop a better understanding of both the concept and the legal framework surrounding it:

A. What is ODR?

B. Who does ODR?

C. What is the legal framework for ODR?

D. What …

The Circulation Of Judgments Under The Draft Hague Judgments Convention, Ronald A. Brand

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The 2018 draft of a Hague Judgments Convention adopts a framework based largely on what some have referred to as “jurisdictional filters.” Article 5(1) provides a list of thirteen authorized bases of indirect jurisdiction by which a foreign judgment is first tested. If one of these jurisdictional filters is satisfied, the resulting judgment is presumptively entitled to circulate under the convention, subject to a set of grounds for non-recognition that generally are consistent with existing practice in most legal systems. This basic architecture of the Convention has been assumed to be set from the start of the Special Commission process, …

The Cisg: Applicable Law And Applicable Forums, Ronald A. Brand

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Despite being in effect for over thirty years, a debate continues on whether the United Nations Convention on Contracts for the International Sale of Goods (CISG) has been a success. With 89 Contracting States, it clearly is widely accepted. At the same time, empirical studies show that private parties regularly opt out of its application. It has served as a model for domestic sales law, and as an important educational tool. But has it been a success? In this article I consider that question, and suggests that the scorecard is not yet complete; and that it will perhaps take significantly …

Is Blockchain The Next Step In The Evolution Chain Of [Market] Intermediaries?, Marcela Gomez, Pedro Bustamante, Martin B. H. Weiss, Ilia Murtazashvili, Michael J. Madison, Wilson Law, Tymofiy Mylovanov, Herminio Bodon, Prashabnt Krishnamurthy

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The blockchain is a decentralized solution for handling transactions where we are concerned (among other aspects) with the accuracy and verification of transactions. One of its main promises is to eliminate the need for centralized entities or intermediaries and legal enforcement. Rather than trusting self-interested human intermediaries, the blockchain provides an alternative that relies on transparent computational protocols (Werbach 2018).

In this paper, we delve into this broker-less claim and analyze whether the blockchain needs an intermediary to allow for widespread access to its functionality and whether the blockchain itself is an intermediary. The latter would turn the blockchain into …

Ostrom Amongst The Machines: Blockchain As A Knowledge Commons, Herminio Bodon, Pedro Bustamante, Marcela Gomez, Prashabnt Krishnamurthy, Michael J. Madison, Ilia Murtazashvili, Jennifer Brick Murtazashvili, Tymofiy Mylovanov, Martin B. H. Weiss

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Blockchains are distributed ledger technologies that allow the recording of any data structure, including money, property titles, and contracts. In this paper, we suggest that Hayekian political economy is especially well suited to explain how blockchain emerged, but that Elinor Ostrom’s approach to commons governance is particularly useful to understand why blockchain anarchy is successful. Our central conclusions are that the blockchain can be thought of as a spontaneous order, as Hayek anticipated, as well as a knowledge commons, as Ostrom’s studies of self-governance anticipated.

An Invitation Regarding Law And Legal Education, And Imagining The Future, Michael J. Madison

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This Essay consists of an invitation to participate in conversations about the future of legal education in ways that integrate rather than distinguish several threads of concern and revision that have emerged over the last decade. Conversations about the future of legal education necessarily include conversations about the future of law practice, legal services, and law itself. Some of those start with the somewhat stale questions: What are US law professors doing, what should they be doing, and why? Those questions are still relevant and important, but they are no longer the only relevant questions, and they are not the …

The Shifting Sands Of Employment Discrimination: From Unjustified Impact To Disparate Treatment In Pregnancy And Pay, Deborah L. Brake

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In 2015, the Supreme Court decided its first major pregnancy discrimination case in nearly a quarter century. The Court’s decision in Young v. United Parcel Service, Inc., made a startling move: despite over four decades of Supreme Court case law roping off disparate treatment and disparate impact into discrete and separate categories, the Court crafted a pregnancy discrimination claim that permits an unjustified impact on pregnant workers to support the inference of discriminatory intent necessary to prevail on a disparate treatment claim. The decision cuts against the grain of established employment discrimination law by blurring the impact/treatment boundary and …

Ip Things As Boundary Objects: The Case Of The Copyright Work, Michael J. Madison

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My goal is to explore the meanings and functions of the objects of intellectual property: the work of authorship (or copyright work) in copyright, the invention in patent, and the mark and the sign in trademark. This paper takes up the example of the copyright work.

It is usually argued that the central challenge in understanding the work is to develop a sensible method for appreciating its boundaries. Those boundaries, conventionally understood as the metaphorical "metes and bounds" of the work, might be established by deferring to the intention of the author, or by searching for authorship (creativity or originality) …

Preparing For Service: A Template For 21st Century Legal Education, Michael J. Madison

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Legal educators today grapple with the changing dynamics of legal employment markets; the evolution of technologies and business models driving changes to the legal profession; and the economics of operating – and attending – a law school. Accrediting organizations and practitioners pressure law schools to prepare new lawyers both to be ready to practice and to be ready for an ever-fluid career path. From the standpoint of law schools in general and any one law school in particular, constraints and limitations surround us. Adaptation through innovation is the order of the day.

How, when, and in what direction should innovation …

Qualification Of Taxable Entities And Treaty Protection, Anthony C. Infanti, Bernard Moens

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This report was prepared for the 2014 International Congress of the International Fiscal Association. The general reporters for the Congress asked IFA branches around the world to prepare a report designed to provide information on how countries address (1) the question of when domestic and foreign entities are treated as transparent or taxable and (2) conflicts between different countries’ treatment of entities as transparent or taxable for treaty purposes. This report constitutes the IFA U.S.A. Branch’s submission to the general reporters.

The report is divided into two sections. The first section of the report provides a general description of how …

Economic Interest Convergence In Downsizing Imprisonment, Spearit

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This Essay employs a variation of the “interest convergence” concept to examine the competing interests at stake in downsizing imprisonment in the United States. In the last few decades, the country has become the world leader in both incarceration rates and number of inmates. Reversing these trends is a common goal of multiple parties, who advocate prison reform under different rationales. Some advocate less imprisonment as a means of tempering the disparate effects of imprisonment on individual offenders and the communities to which they return. Others support downsizing based on conservative values that favor reduced government size, spending, and interference …

Visions Of The Future Of (Legal) Education, Michael J. Madison

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One law professor takes a stab at imagining an ideal law school of the future and describing how to get there. The Essay spells out a specific possible vision, taking into account changes to the demand for legal services and changes to the economics and composition of the legal profession. That thought experiment leads to a series of observations about values and vision in legal education in general and about what it might take to move any vision forward.

Lost Classics Of Intellectual Property Law, Michael J. Madison

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Santayana wrote, “Those who cannot remember the past are condemned to repeat it.” American legal scholarship often suffers from a related sin of omission: failing to acknowledge its intellectual debts. This short piece attempts to cure one possible source of the problem, in one discipline: inadequate information about what’s worth reading among older writing. I list “lost classics” of American scholarship in intellectual property law. These are not truly “lost,” and what counts as “classic” is often in the eye of the beholder (or reader). But these works may usefully be found again, and intellectual property law scholarship would be …

Book Review -- William Patry, How To Fix Copyright, Michael J. Madison

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I review William Patry’s book How to Fix Copyright. The book is noteworthy for its ambitious yet measured effort to diagnose where copyright law has gone astray in recent years. It is less successful with respect to proposing possible changes to the law. Most interesting are parallels between How to Fix Copyright and an earlier comprehensive look at copyright law in the digital era: Paul Goldstein’s Copyright’s Highway: From Gutenberg to the Celestial Jukebox. William Patry and Paul Goldstein each have a lot of faith in the power of consumer choice in the cultural marketplace. That faith leads …