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On Getting It Right: Remembering Justice Antonin Scalia
Get PDFIn the summer of 1985, when then-Judge Antonin Scalia’s three law clerks were finishing their term at the D.C. Circuit Court of Appeals, we1 gave him a plaque emblazoned with the phrase, “It’s hard to get it right.” That was a phrase that Judge, and later Justice, Scalia’s law clerks heard often—never in anger, never in rebuke, but always as a reminder (often accompanied by a wry smile) that . . . well, sometimes it’s hard to get it right
How Oracle Erred: Functionality, Useful Articles, and the Future of Computer Copyright
Get PDFIn Oracle v. Google (2015), the Federal Circuit addressed whether the method header components of a dominant computer program were uncopyrightable as merging with the headers\u27 ideas or function. Google had copied the headers to ease the ability of third-party programmers to interact with Google\u27s Android platform. The court rebuffed the copyrightability challenge; it reasoned that because the plaintiff\u27s expression might have been written in alternative forms, there was no merger of idea and expression. But the Oracle court may have been asking the wrong question. In Lotus v. Borland (1995), the owner of a dominant spreadsheet program sought to prevent a new competitor\u27s program from making available a set of command menu headers based on the dominant program\u27s menus. The defendant also wrote its own, original command menus, but provided the copied menus as an option to relieve customers who, migrating from the dominant spreadsheet, would otherwise have had a substantial burden to master new terms and rewrite macros. In assessing the legality of the copying in Lotus , the First Circuit started its inquiry not with a question about how the plaintiff\u27s program might have been written, but rather with how the program actually was written. It then identified the menu commands as methods of operation because they were necessary to make the actual program
Brief of Amici Curiae NAACP Legal Defense & Educational Fund, Inc.; Legal Aid Society — Employment Law Center; Professor D. Wendy Greene; and Professor Angela Onwuachi-Willig in Support of Plaintiff/Appellant\u27s Petition for Rehearing En Banc
Get PDFThe NAACP Legal Defense and Educational Fund, Inc. (“LDF”) is a nonprofit legal organization that has fought to achieve racial justice and ensure that America fulfills its promise of equality for all. Since 1964, LDF has worked to enforce Title VII of the Civil Rights Act (“Title VII”) by representing individual plaintiffs and plaintiff classes in challenges to discriminatory employment practices engaged in by employers in such cases as Griggs v. Duke Power Co., 401 U.S. 424 (1971); Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); and Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971). LDF’s victories in these cases were ultimately codified in the Civil Rights Act of 1991.
The Legal Aid Society – Employment Law Center (“LAS-ELC”) is a nonprofit public interest law firm dedicated to protecting and expanding the employment rights of underrepresented worker communities. LAS-ELC’s litigation has long focused on practices which deny equal employment opportunity to members of racial and national origin minority groups. See, e.g., Emporium Capwell Co. v. W. Addition Cmty. Org., 420 U.S. 50 (1975).
D. Wendy Greene is a Professor at the Cumberland School of Law. Professor Greene has developed an international reputation for her scholarship on grooming codes and Title VII.
Angela Onwuachi-Willig is a Professor at Berkeley Law School. She is a leading scholar of law and inequality and writes in a variety of areas, including employment discrimination
Race and Reform in Twenty-First Century America: Foreword
Get PDFIn November 2015, approximately two hundred activists, academics, and students from across the United States convened at Duke University School of Law for a conference entitled The Present and Future of Civil Rights Movements: Race and Reform in 21st Century America. Planning for the conference had commenced a year earlier, in the fall of 2014. At that time, the nation was reeling from the deaths of Rekia Boyd, Eric Garner, John Crawford III, and Michael Brown, among others. In addition to the killing of these unarmed Black men and women by law enforcement personnel, many people, particularly within the civil rights community, were also alarmed by the use of military force against civilian protestors in Ferguson, Missouri, and with the acquittal of George Zimmerman following the death of Trayvon Martin. Amid grave concerns about the criminal justice system, significant threats to the ideal of democracy were being revived, particularly after the U.S. Supreme Court’s 2013 decision in Shelby County v. Holder, 1 which struck down a key provision of the Voting Rights Act, as well as subsequent legislative action in several states to erode the franchise
Taking Trust Seriously in Privacy Law
Get PDFTrust is beautiful. The willingness to accept vulnerability to the actions of others is the essential ingredient for friendship, commerce, transportation, and virtually every other activity that involves other people. It allows us to build things, and it allows us to grow. Trust is everywhere, but particularly at the core of the information relationships that have come to characterize our modern, digital lives. Relationships between people and their ISPs, social networks, and hired professionals are typically understood in terms of privacy. But the way we have talked about privacy has a pessimism problem – privacy is conceptualized in negative terms, which leads us to mistakenly look for “creepy” new practices, focus excessively on harms from invasions of privacy, and place too much weight on the ability of individuals to opt out of harmful or offensive data practices.
But there is another way to think about privacy and shape our laws. Instead of trying to protect us against bad things, privacy rules can also be used to create good things, like trust. In this paper, we argue that privacy can and should be thought of as enabling trust in our essential information relationships. This vision of privacy creates value for all parties to an information transaction and enables the kind of sustainable information relationships on which our digital economy must depend.
Drawing by analogy on the law of fiduciary duties, we argue that privacy laws and practices centered on trust would enrich our understanding of the existing privacy principles of confidentiality, transparency, and data protection. Re-considering these principles in terms of trust would move them from procedural means of compliance for data extraction towards substantive principles to build trusted, sustainable information relationships. Thinking about privacy in terms of trust also reveals a principle that we argue should become a new bedrock tenet of privacy law: the Loyalty that data holders must give to data subjects. Rejuvenating privacy law by getting past Privacy Pessimism is essential if we are to build the kind of digital society that is sustainable and ultimately beneficial to all – users, governments, and companies. There is a better way forward for privacy. Trust us
Judging Third-Party Funding
Get PDFThird-party funding is an arrangement whereby an outside entity finances the legal representation of a party involved in litigation or arbitration. The outside entity—called a “third-party funder”—could be a bank, hedge fund, insurance company, or some other entity or individual that finances the party’s legal representation in return for a profit. Third-party funding is a controversial, dynamic, and evolving phenomenon. The practice has attracted national headlines and the attention of the Advisory Committee on the Federal Rules of Civil Procedure (Advisory Committee). The Advisory Committee stated in a recent report that “judges currently have the power to obtain information about third-party funding when it is relevant in a particular case,” but the Committee did not provide any additional guidance on how to determine the relevance of thirdparty funding. What information should be obtained, and from whom? This Article offers that needed guidance by setting forth revisions and reinterpretations of procedural rules to provide judges and arbitrators with disclosure requirements and a framework for handling known issues as they arise. By revising and interpreting the procedural rules as suggested in this Article, judges and arbitrators will be able to gain a better sense of the prevalence, structures, and impact of third-party funding and its effects (if any) on dispute resolution procedures. Over time, these observations will reveal the true systemic impact of third-party funding and contribute to developing more robust third-party funding procedural regulations
What’s Up with Wage Growth?
No full textWhile most labor market indicators point to an economy near full employment, a notable exception is the sluggish rise of wages. However, this slow wage growth likely reflects recent cyclical and secular shifts in the composition rather than a weak labor market. In particular, while higher-wage baby boomers have been retiring, lower-wage workers sidelined during the recession have been taking new full-time jobs. Together these two changes have held down measures of wage growth
Race and Racial Identity Are Social Constructs
No full textRace is not biological. It is a social construct. There is no gene or cluster of genes common to all blacks or all whites. Were race “real” in the genetic sense, racial classifications for individuals would remain constant across boundaries. Yet, a person who could be categorized as black in the United States might be considered white in Brazil or colored in South Africa
Google Books Project Continues to Test the Boundaries of Fair Use Law
No full textThe Google Books project, as we have come to learn, is a publicly available database consisting of over 25 million books that allows public users to search for “snippets of text,” typically 1/8th of a page or less. Several major libraries have helped Google assemble this database. On October 16, 2015, the Second Circuit Court of Appeals held that, under the fair use doctrine, Google may scan entire books and allow the public to search them without permission from the copyright holder
The Regulation of Money Managers: Mutual Funds and Advisors, 3rd ed.
No full textWidely regarded as the most comprehensive and penetrating analysis of the regulation surrounding investment advisers and companies, The Regulation of Money Managers, Third Edition provides unsurpassed guidance for legal counsel in the field.
Newly revised in a four-volume looseleaf format, The Regulation of Money Managers, Third Edition keeps you up-to-date with all significant new and proposed SEC rules, no-action letters, and interpretive releases, as well as important cases and relevant regulation from other agencies. The Third Edition adds three new chapters on compliance, exchange-traded funds, and the extraterritorial regulation of investment advisers and investment companies.https://scholarship.law.bu.edu/books/1014/thumbnail.jp