Black Metropolis Research Consortium
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Dark Law on the South China Sea
Get PDFIn Democracies and International Law, Tom Ginsburg warns of an emerging post-liberal order influenced by powerful authoritarian regimes and new illiberal laws that repurpose global rights, undermine international courts, and expand executive power. Autocrats and kleptocrats embedded in the global economy increasingly appear to use international law to preserve their power, protect norms of non-intervention, and enhance the global stability of autocratic rule. Legalistic autocrats, for example, exploit judicial deference and vague statutory language in national security laws to circumvent checks on their authority. This process, which I call “dark law,” aids in the consolidation of state power and the global entrenchment of authoritarianism. In this Essay, I argue that dark law also contributes to the construction of authoritarian international law. Conflicts in the South China Sea illustrate how authoritarian regimes use law to pursue illiberal ends. By disregarding multilateral treaty obligations, resisting third-party adjudication, and repurposing national security laws, authoritarian states sabotage maritime norms and principles. International dark law makes global waterways more dangerous for sailors and fishing communities, undermines international cooperation on marine protection, and threatens maritime accountability and ocean governance. Future protection of oceans and seas depends on state compliance with international law and the effectiveness of multilateral enforcement
Clearview AI, TikTok, and the Collection of Facial Images in International Law
Get PDFPrivate companies’ collection of facial images is on the rise globally, which has major implications for both economic development and privacy laws. This Comment uses the facial recognition technology company Clearview AI and the video sharing app TikTok as case studies to examine the problems raised by these practices. After summarizing the relevant legal regimes created by the United Nations (U.N.) and the European Union (E.U.), it applies the E.U. privacy regime to TikTok’s most recent Privacy Policy. The Comment concludes by proposing updates to the E.U. and U.N. privacy regimes to more effectively regulate TikTok’s data collection and analogous business practices. These proposed updates include treating all facial images as special category biometric data under the E.U. regime and amending the U.N. regime to specifically cover digital privacy
Faculty Collage October 2022.2
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Countercyclical Corporate Governance
Get PDFThe American economy has lurched from crisis to crisis for over a decade, enduring long stretches of high unemployment, market dysfunction, and ineffective government policy. Despite the enormous scale of this suffering and disruption, the full implications of the experience have not been absorbed by the corporate governance literature. Corporate law’s focus on delivering financial returns to shareholders works reasonably well in a robust economy, when markets function effectively and align shareholder incentives with the goal of maximizing social wealth. But these tidy mechanisms fail in periods of macroeconomic stress, when markets send faulty signals and firms pursuing short-term shareholder profits can destroy social wealth. The layoffs or price increases often desired by shareholders can be useful in a healthy economic environment, as they cause resources to be allocated more efficiently to higher-value uses, and competitive markets prevent harm from falling on workers or consumers. But the same maneuvers can be destructive when the economy is afflicted by unemployment or inflation. Revising corporate governance arrangements so that companies focus less on maximizing short term shareholder profits during crises can thus be a useful tool for managing economic problems and improving outcomes.
This Article begins the theoretical and practical work of adapting corporate governance to periods of economic crisis. After demonstrating that the assumptions that have driven corporate law debates depend on macroeconomic context, the Article shows that correcting those assumptions could make corporate governance a powerful tool for managing crises. These insights offer a useful framework for evaluating measures undertaken by businesses, investors, and the government in response to the COVID-19 crisis, while suggesting new avenues for action
Competition and Congestion in Trademark Law
Get PDFTrademark law exists to promote competition. If consumers know which companies make which products, they can more easily find the products they actually want to purchase. Trademark law has long treated “source significance”—the fact that a particular trademark is identified with a particular producer—as both necessary and sufficient for establishing a valid trademark. That is, trademark law has traditionally viewed source significance as the only necessary precondition for a trademark being pro-competitive. In this paper, we argue that this equation of source significance and pro-competitiveness is misguided. Some marks use words that are so closely connected with the product being branded that giving just one firm a monopoly over those words provides that firm with a meaningful competitive advantage—an artificial advantage granted by the state. This problem becomes worse as the number of firms producing (and branding) a type of product increases.
The more words cordoned off by trademark law, the more trouble a new entrant will have in describing or attracting attention to its product. Trademark law is thus being hijacked by strategic firms for anti-competitive purposes. Traditional doctrinal tools are inadequate to address this problem because the goal should be to limit the number of such trademarks rather than eliminate them completely. However, costly screens could be used to impose a form of congestion pricing on trademarks, eliminating them in all but the most worthwhile cases. In this paper, we develop a theory of the anti-competitive nature of certain trademark rules. We then propose a series of overlapping doctrinal rules and costly screens to address the problem of rampant anticompetitive trademark
