Political Economy Commons^™

Color Of Creatorship - Author's Response, Anjali Vats

Articles

This essay is the author's response to three reviews of The Color of Creatorship written by notable intellectual property scholars and published in the IP Law Book Review.

Tax And Time: On The Use And Misuse Of Legal Imagination, Anthony C. Infanti

Book Chapters

In daily life and in tax law, time is taken for granted as something that is ever present but beyond our control. Time moves endlessly and relentlessly forward, constantly slipping from our grasp. But what if life were more like science fiction? What if we could, at will, move through time to alter its course? Or what if we could harness time by turning it into an exchangeable commodity, truly using time as money? In fact, there is no need to open a novel or watch a movie to experience time travel or to see time used as a medium …

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

Articles

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.

Latina And Latino Critical Legal Theory: Latcrit Theory, Praxis And Community, Marc Tizoc Gonzaléz, Sarudzayi M. Matambanadzo, Sheila I. Velez Martinez

Articles

LatCrit theory is a relatively recent genre of critical “outsider jurisprudence” – a category of contemporary scholarship including critical legal studies, feminist legal theory, critical race theory, critical race feminism, Asian American legal scholarship and queer theory. This paper overviews LatCrit’s foundational propositions, key contributions, and ongoing efforts to cultivate new generations of ethical advocates who can systemically analyze the sociolegal conditions that engender injustice and intervene strategically to help create enduring sociolegal, and cultural, change. The paper organizes this conversation highlighting Latcrit’s theory, community and praxis.

The Color Of Creatorship: Intellectual Property, Race, And The Making Of Americans (Introduction), Anjali Vats

Book Chapters

INTELLECTUAL PROPERTY LAW, the body of legal doctrine and practice that governs the ownership of information, is animated by a dichotomy of creatorship and infringement. In the most often repeated narratives of creatorship/infringement in the United States, the former produces a social and economic good while the latter works against the production of that social and economic good. Creators, those individuals whose work is deemed protectable under copyright, patent, trademark, trade secret, and unfair competition law, create valuable products that contribute to economic growth and public knowledge. Infringers, those individuals who use the work of creators without their permission, steal …

Foreword: The Dispossessed Majority: Resisting The Second Redemption In América Posfascista (Postfascist America) With Latcrit Scholarship, Community, And Praxis Amidst The Global Pandemic, Sheila I. Velez Martinez

Articles

As LatCrit reaches its twenty-fifth anniversary, we aspire for this symposium Foreword to remind its readers of LatCrit’s foundational propositions and ongoing efforts to cultivate new generations of ethical advocates who can systemically analyze the sociolegal conditions that engender injustice and intervene strategically to help create enduring sociolegal, and cultural, change. Working for lasting social change from an antisubordination perspective enables us to see the myriad laws, regulations, policies, and practices that, by intent or effect, enforce the inferior social status of historically- and contemporarily-oppressed groups. In turn, working with a perspective and principle of antisubordination can inspire us to …

Property Musings At The U.S.-Mexico Border, Gerald S. Dickinson

Articles

President Donald J. Trump issued an Executive Order calling for “a physical wall on the southern border” of the United States in January, 2017. In his address before Congress, the President stated, “[W]e will soon begin the construction of a great wall along our southern border.” The political response to the Executive Order has been swift. Representative Lamar Smith of Texas views the Executive Order as a testament to the President “honoring his commitment” to immigration enforcement. Senator Ron Johnson of Wisconsin favorably compares the border mandates in Israel and Egypt as successful examples of how to mitigate illegal immigration. …

Positive Education Federalism: The Promise Of Equality After The Every Student Succeeds Act, Christian Sundquist

Articles

This Article examines the nature of the federal role in public education following the recent passage of the Every Student Succeeds Act in December 2015 (“ESSA”). Public education was largely unregulated for much of our Nation’s history, with the federal government deferring to states’ traditional “police powers” despite the de jure entrenchment of racial and class-based inequalities. A nascent policy of education federalism finally took root following the Brown v. Board decision and the enactment of the Elementary and Secondary School Act (“ESEA”) with the explicit purpose of eradicating such educational inequality.

This timely Article argues that current federal education …

Community Integration Of People With Disabilities: Can Olmstead Protect Against Retrenchment?, Mary Crossley

Articles

Since the passage of the Americans with Disabilities Act (ADA) in 1990, states have made significant progress in enabling Americans with disabilities to live in their communities, rather than institutions. That progress reflects the combined effect of the Supreme Court’s holding in Olmstead v. L.C. ex rel. Zimring, that states’ failure to provide services to disabled persons in the community may violate the ADA, and amendments to Medicaid that permit states to devote funding to home and community-based services (HCBS). This article considers whether Olmstead and its progeny could act as a check on a potential retrenchment of states’ …

Beyond The 'Resiliency' And 'Grit' Narrative In Legal Education: Race, Class And Gender Considerations, Christian Sundquist

Articles

Law schools have been struggling to adapt to the “new normal” of decreased enrollments and a significantly altered legal employment market. Despite the decrease in traditional attorney jobs, as well as the possibility that artificial intelligence systems such as “ROSS” will displace additional jobs in the future, there still remains a significant gap in legal services available to the poor, middle class, and immigrants. The integration of social justice methodologies in the classroom thus has become critically important to the future of legal education and of the very practice of law.

Many commentators on the future of legal education have …

Keeping It Real: Why Congress Must Act To Restore Pell Grant Funding For Prisoners, Spearit

Articles

In 1994, Congress passed the Violent Crime Control and Law Enforcement Act (VCCLEA), a provision of which revoked Pell Grant funding “to any individual who is incarcerated in any federal or state penal institution.” This essay highlights the counter-productive effects this particular provision has on penological goals. The essay suggests Congress acknowledge the failures of the ban on Pell Grant funding for prisoners, and restore such funding for all qualified prisoners.

Health And Taxes: Hospitals, Community Health And The Irs, Mary Crossley

Articles

The Affordable Care Act created new conditions of federal tax exemption for nonprofit hospitals, including a requirement that hospitals conduct a community health needs assessment (CHNA) every three years to identify significant health needs in their communities and then to develop and implement a strategy responding to those needs. As a result, hospitals must now do more than provide charity care to their patients in exchange for the benefits of tax exemption, and the CHNA requirement has the potential both to prompt a radical change in hospitals’ relationship to their communities and to enlist hospitals as meaningful contributors to community …

Bridging The Gap Between Unmet Legal Needs And An Oversupply Of Lawyers: Creating Neighborhood Law Offices - The Philadelphia Experiment, Jules Lobel, Matthew Chapman

Articles

In the United States there is, simultaneously, an abundance of unemployed lawyers and a significant unmet need for legal care among middle-class households. This unfortunate paradox is protected by ideological, cultural, and practical paradigms both inside the legal community and out. These paradigms include the legal chase for prestige, the consumer’s inability to recognize a legal need, and the growing mountain of debt new lawyers enter the profession with. This article will discuss a very successful National Lawyers Guild experiment from 1930s-era Philadelphia that addressed a similar situation, in a time with similar paradigms, by emphasizing community-connected lawyering. That is, …

Economic Interest Convergence In Downsizing Imprisonment, Spearit

Articles

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 …

Giving Meaning To 'Meaningful Access' In Medicaid Managed Care, Mary Crossley

Articles

As states seek to shift Medicaid recipients with disabilities out of traditional fee-for-service settings and into managed care plans, vexing questions arise about the impact on access to needed care and providers for beneficiaries with medically complex needs. With many states expanding their Medicaid program as part of health care reform and cost-containment pressures continuing to mount, this movement will likely accelerate over the next several years. This Article examines the possibility that disability discrimination law might provide a mechanism for prodding states in the planning stage to anticipate and plan for likely access issues, as well as for challenging …

Non-Profit Hospitals, Tax Exemptions And Access For The Uninsured, Mary Crossley

Articles

These comments approach the topic of tax exemption for non-profit hospitals from the perspective of the 46 plus million Americans who have no health insurance and the significant additional number who are underinsured. In essence, persons who are underinsured have some form of health coverage but they remain at serious risk for significant out-of-pocket expenditures when they become sick. From this perspective, the key question is what role, if any, do the non-profit health care sector and, more particularly, non-profit hospitals have to play in addressing the vexing problems posed by the large number of uninsured and underinsured. These problems …

Infected Judgment: Legal Responses To Physician Bias, Mary Crossley

Articles

Substantial evidence indicates that clinically irrelevant patient characteristics, including race and gender, may at times influence a physician's choice of treatment. Less clear, however, is whether a patient who is the victim of a biased medical decision has any effective legal recourse. Heedful of the difficulties of designing research to establish conclusively the role of physician bias, this article surveys published evidence suggesting the operation of physician bias in clinical decision making. The article then examines potential legal responses to biased medical judgments. A patient who is the subject of a biased decision may sue her doctor for violating his …

Equal Opportunity, Individual Liberty And Meritocracy In Education: Reinforcing Structures Of Privilege And Inequality, Christian Sundquist

Articles

The paradigm of equal opportunity inevitably seeks to reproduce and maintain structures of class and racial privilege. The deficit story of equal opportunity is as follows: equal opportunity is a truly objective, neutral, and fair method to allocate educational, employment, and political resources to members of society, without regard to race, class, gender or ethnicity. The ideal of equality assumes the possibility of an objective measure of merit under which individuals' free choices and preferences may be evaluated. Accordingly, through the creation of a baseline that presupposes the inherent sameness of all people and disregards systemic discrimination as a fallacy, …

Becoming Visible: The Ada's Impact On Healthcare For Persons With Disabilities, Mary Crossley

Articles

This Article will adopt the perspective of individuals with disabilities in their encounters with the health care finance and delivery system in the United States, and will pose the question of what the past decade has shown the ADA to mean (or not mean) for those individuals' ability to seek, receive, and pay for effective health care services. To that end, this Article will provide an overview of three broad areas on which the ADA has had varying degrees of impact.

Part II of the Article will examine how the ADA has affected the rights of an individual with a …

Medicaid Managed Care And Disability Discrimination Issues, Mary Crossley

Articles

This article examines issues potentially raised under the Americans with Disabilities Act (ADA) by states' decisions whether and how to include disabled Medicaid recipients in the massive shift towards Medicaid managed care. Part II briefly examines the special issues that disabled Medicaid recipients pose with respect to managed care enrollment. These include issues of cost, quality, access, and program design and implementation. Part III describes various approaches that state programs have taken or are proposing to take with respect to the enrollment of disabled Medicaid recipients in managed care. These approaches range from simply excluding the SSI population from managed …

Medical Futility And Disability Discrimination, Mary Crossley

Articles

The concept of medical futility, which originally developed in the medical literature as a basis for allocating between physician and patient decisional authority regarding end-of-life treatment, is increasingly appearing in discussions regarding possible methods of containing medical costs by limiting treatment. This use of medical futility as a rationing mechanism, whether by a state Medicaid program or by a hospital, raises concerns regarding its impact on persons with severe disabilities near the end of life. This article considers how the applicability of the Americans with Disabilities Act to cost-conscious futility policies might be analyzed. After developing arguments that proponents and …

Of Diagnoses And Discrimination: Discriminatory Nontreatment Of Infants With Hiv Infection, Mary Crossley

Articles

Evidence of physician attitudes favoring the withholding of needed medical treatment from infants infected with HIV compels a reassessment of the applicability and adequacy of existing law in dealing with selective nontreatment. Although we can hope to have learned some lessons from the Baby Doe controversy of the mid-1980s, whether the legislation emerging from that controversy, the Child Abuse Amendments of 1984, has ever adequately dealt with the problem of nontreatment remains far from clear. Today, the medical and social characteristics of most infants infected with HIV introduce new variables into our assessment of that legislation. At stake are the …