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Executive Agreements in Japan and the United States: Their Differences and Similarities
Get PDFThe national constitutions of Japan and the United States describe which domestic branches conclude “treaties” and how they do it. In both countries, the legislative branch plays a critical role in the treaty-making process, checking and controlling the executive branch. However, both nations enter international agreements without following the procedures explicitly provided in their national constitutions. Such agreements are called “executive agreements.” In both Japan and the United States, the practice of entering executive agreements has been recognized since the adoption of the current constitutions, and the number of such agreements—in lieu of treaties—is rising. Despite contrasting government and legal systems, the two countries share similarities with regard to executive agreements and the domestic legal force of international agreements. This Article compares the practices of entering executive agreements and shows some differences and similarities by analyzing the drafting history of the constitutions, the history of executive agreements, their types, and their domestic legal force
The Evidentiary Use and Misuse of Forensic Musicology in Copyright Litigation
No full textThe litigation of modern music infringement cases depends heavily on the testimony of expert forensic musicologists. Can or should our legal system rely on these experts to decide whether one composer has copied from another? The lecture will explore some answers to this question.Alfred C. Yen is Professor of Law and Dean\u27s Distinguished Scholar at Boston College Law School. He is a nationally known scholar who has published numerous articles about copyright law, the Internet, sports law, Asian-American legal issues, and law teaching. He is also the co-author of Copyright: Essential Cases and Materials (West Academic)
The Grapes of Roth
Get PDFShortly after Roth Greeting Cards was decided in 1970, its offhand reference to the “total concept and feel” of the cards at issue became the dominant standard in copyright law for determining whether two works were substantially similar. That is a remarkable achievement for a phrase that, in the words of the influential Nimmer treatise, “threatens to subvert the very essence of copyright.” It nevertheless had enormous appeal for federal judges, and the reason extends well beyond copyright law. “Total concept and feel” appeared at a critical juncture for the federal judiciary, as an older model of decision-making, based on discretion and reason, yielded to a more formalized process. For a time, the phrase allowed judges in copyright cases to continue using their discretion and aesthetic judgment in a legal world that had grown cold to both of those things.
The history of “total concept and feel” in copyright law thus opens a window on an important but underappreciated transition point in the law, one that occurred in the 1960s with reverberations that continue to the present day. The history related here shows how judges first attempted to pay tribute to formalism with capacious doctrine, a maneuver that allowed them to retain decision-making power in infringement cases at a time when jury trials were rare and summary judgment standards only loosely observed. But “total concept and feel” provided only fleeting respite from the rise of formalism. The same forces that pushed judges to adopt a new definition of substantial similarity eventually took that decision away from them entirely, placing it instead with juries, with anarchic results.
This history demonstrates two things. First, while copyright scholars tend to view the development of infringement doctrine as an unbroken chain of events, in fact copyright precedents come from three distinct eras, each with its own method of decision-making. The ready availability of judicial discretion in earlier eras can no longer be presumed. But second, the use of informed discretion in resolving copyright disputes is not so easily forgone. Even now, after discretion became anathema at trial and then at summary judgment, it is nevertheless reappearing at the pleadings stage as courts increasingly grant motions to dismiss. This development suggests that it would be better to end the “total concept and feel” maneuver and give judges and juries the information they need to make better decisions
The Shortseller Enrichment Commission? Whistleblowers, Activist Short Sellers, and the New Privatization of Public Enforcement
Get PDFTwo developments have transformed the detection of corporate fraud in the last decade: the Securities and Exchange Commission’s Whistleblower Bounty Program (WBP) and the rise of activist short sellers. The WBP offers up financial bounties to individuals who bring forward actionable information about securities fraud. Activist shorts conduct due diligence to identify overvalued public companies, take short positions, reveal the negative information, and then enjoy trading profits if and when the stock tanks. Considered separately, these institutions are widely regarded as socially valuable innovations that help deter fraud.
But, it turns out, they are not fully separate. Activist shorts have been participating actively and effectively in the WBP—both directly (submitting tips, filing claims, and winning awards) and indirectly (partnering with insider tipsters). Their participation has transformed the WBP into an undercover outsourcing program: a new way for the Securities and Exchange Commission (SEC) to pay private professionals to do work that traditionally has been done by SEC staff.
This privatization might be defensible, indeed laudable, if it yielded more efficient deterrence than what the SEC could achieve on its own. Unfortunately, it likely does not. The SEC may be paying activist shorts for information they would have made public even without the prospect of bounty (because of their trading strategy). In such cases, the public bounty payment does nothing to incentivize additional fraud detection and is merely a windfall for the recipient. Those funds could be better spent by expanding the SEC’s own enforcement capacity
Grade Expectations: Helping Students Process Feedback Better
No full textStudents busily work on assignments. They turn them in. I busily work on reviewing, scoring, and commenting on them. I give them back. We do it again. All of this can happen quietly in the background of legal writing classes, and it often does. But I think there is a better way than the quiet way: have a transparent talk with students about feedback