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Roads Not Taken on Affirmative Action
Get PDFThe law of affirmative action is a mess. In the short term, legal doctrine is constrained by path dependence, but its long-term future is murkier due to the many unforeseen contingencies. To regain a sense of the possible, this Article looks forward to the future of equality jurisprudence by looking backward. It recovers three roads not taken. First, the Supreme Court could have kept expectations minimal by hewing closely to the methods and rhetoric of fairness rather than ratifying a consumerist model of entitlement by deploying an individualistic vision of equality. Second, the justices might have endorsed a robust right to higher education. Doing so would finally tell us about the nature of this social good as well as the scope of judicially enforced access to it. Third, they could have showed consistent respect for universities and colleges as distinctive communities by embracing their collective right to self-expression. Instead of taking any of these roads, the Supreme Court has used the Equal Protection Clause to protect something of uncertain social worth and deepened suspicion of educational institutions. Ultimately, how long this current quandary will remain-aggressive judicial supervision of university admissions and an impoverished conception of higher education as a social good-will depend on whether judges tire of the status quo and the rest of us perceive the real stakes and demand something better
What the Warhol Court Got Wrong: Use as an Artist Reference and the Derivative Work Doctrine
Get PDFIn Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Supreme Court conflated “use as an artist reference” with preparing a “derivative work.” It did so on the erroneous assumption that permission to use a copyrighted work as an artist reference is a license to prepare a derivative work. But copyright law does not necessarily deem all uses of references for making new art to be the preparation of a derivative work. In other words, not all adaptations of an original work are infringing. Some may be neither derivative works nor substantially similar copies, and some may be subject to the exceptions and limitations in the statute, such as fair use.
Examining longstanding artistic practices, case law, and our recent study of professional photographers, this Article develops a more nuanced view of the relationship between the artist reference and the derivative work. Drawing on this evidence, we argue that courts should explicitly engage with the characteristics and context of the reference and the new work before arriving at a determination of infringement or noninfringement between the two works.
This reasoning applies equally whether the use of an artist reference is initially licensed or unlicensed by a second artist. When expressly authorized, artist references are simply permissions to use—a ticket to entry, permission for access to the work in its tangible and intangible forms. And, importantly, they are just the beginning of an artistic process. What the new author produces based on the artist reference makes all the difference, and legal liability should depend on aesthetic evaluation of both the referenced work and the new work. Avoiding that aesthetic evaluation and misconstruing an agreement to “use as an artist reference” as a license to prepare a derivative work, which the Supreme Court did in its formalistic approach in Warhol, is a shortcut that distorts copyright law and harms creative practice
Trump Hush Money Trial
No full textLaw professor Jed Shugerman explains why he thinks District Attorney Bragg\u27s case against Donald Trump in the criminal hush money trial is a historic mistake
Should Current Laws Be Revised to Address Occupational Hazards Caused by Hand-Tool Size Mismatch Among Surgeons?
No full textWhen surgical tools are poorly fitted for the hands that use them, surgeons experience pain, injuries, and disabilities, a problem that affects anyone with smaller hands and women in particular.1 In one study,2 38% of surgeons reported that their hand size affected their ability to learn a procedure. Female surgical residents reported needing both hands for using certain instruments that require only one for most men, although many surgical procedures require multiple tools simultaneously.1 The hand-tool size mismatch leads to an increase in upper limb musculoskeletal disorders in female surgeons.3 Accordingly, female surgeons may leave their practice early, and this may contribute to shortages of surgeons, especially in gynecology, in which female surgeons constitute a larger portion of the workforce.
This is a form of structural discrimination. Surgical tool manufacturers must build tools—and hospitals must buy tools—with a variety of hand sizes in mind.3 In some cases, manufacturers could use the principles of universal design: making tools that work just as well for larger and smaller hands. Alternatively, tools need to be designed in multiple sizes, just as 5 different sizes of surgical gloves are available. Given the lack of progress to date, this article explores potential legal remedies to address this challenge. However, only a few legal solutions exist, and additional legislation is likely required. It is not uncommon for the law to lag behind technology and societal change
Foreword to Information Privacy Law at the Crossroads
Get PDFInformation privacy has changed quite a bit over the past thirty years. Even if you haven’t been following the news, you’ve probably felt it as part of your daily interaction with information technologies. More of our personal information is converted into data, collected, used, and shared than ever before. The law of information privacy has changed as well. What started with a reckoning around the printing press and handheld cameras became formalized with the advent of the database and has turned into something bigger and more complex than I would have ever imagined.
The idea for this symposium began with my mentor and longtime collaborator Daniel Solove, reflecting upon the start of the modern information privacy law project in the 1990s, and how privacy law and scholarship have developed in the 30-odd years since the widespread adoption of the Internet. When I first started studying privacy, there was only a smattering of information privacy laws scattered here and there. The first privacy texts, many written by contributors to this symposium, were comparatively thin. It was plausible to make yourself aware of most of the privacy scholarship out there because the field was still relatively new and nich
On the Role of Courts in Climate Policy: Comment on Lando
No full textThis is a response to Henrik Lando’s article on courts and climate policies. Lando’s argument can be summarized in two propositions. The first is that EU courts have adopted a suboptimal legal standard for evaluating climate policies. Lando’s second proposition is that courts are not a good forum for the evaluation of climate policies because of the need to focus on the narrow interests of the litigants before the courts. I agree with Lando’s first proposition, but I disagree somewhat with his second proposition. It is pitched too broadly in my view
Is Distance from Innovation a Barrier to the Adoption of Artificial Intelligence?
Get PDFUsing our own data on Artificial Intelligence publications merged with Burning Glass vacancy data for 2007-2019, we investigate whether online vacancies for jobs requiring AI skills grow more slowly in U.S. locations farther from pre-2007 AI innovation hotspots. We find that a commuting zone which is an additional 200km (125 miles) from the closest AI hotspot has 17% lower growth in AI jobs’ share of vacancies. This is driven by distance from AI papers rather than AI patents. Distance reduces growth in AI research jobs as well as in jobs adapting AI to new industries, as evidenced by strong effects for computer and mathematical researchers, developers of software applications, and the finance and insurance industry. 20% of the effect is explained by the presence of state borders between some commuting zones and their closest hotspot. This could reflect state borders impeding migration and thus flows of tacit knowledge. Distance does not capture difficulty of in-person or remote collaboration nor knowledge and personnel flows within multi-establishment firms hiring in computer occupations
VII. Judge Merritt and Sexual (Mis)Conduct in the Workplace
Get PDFJudge Merritt\u27s judicial career coincided with several major cultural and legal workplace shifts that continue to affect millions of Americans to this day. The evolution of legal protections against numerous forms of workplace sexual harassment surely revolutionized our understanding of the centrality of work, particularly the right of women to be free from unwelcome conduct on the job. The legal literature dealing with workplace sexual harassment is vast 172 and cannot be recounted here in detail. Instead, this essay describes Judge Merritt\u27s fidelity to both the letter and spirit of this important body of Title VII173 jurisprudence. It traces the evolution of his contributions to the development of the Sixth Circuit\u27s caselaw and shows how the cases he decided promote and protect the rights of female (and male) employees to function in the workplace free of substantial and unwelcome sexual rhetoric and conduct
The time to address the antibiotic pipeline and access crisis is now
No full textDrug-resistant infections kill 1·14 million people every year,1 surpassing deaths caused by HIV/AIDS and malaria combined and making antimicrobial resistance (AMR) a leading global killer. The September, 2024 UN General Assembly High-Level Meeting (HLM) on AMR2 brings renewed attention to addressing this crisis. There are two key challenges: a paucity of new treatments to replace those lost to AMR and inadequate access to existing and new antibiotics. Despite progress in antibiotic innovation and access since the last UN General Assembly HLM on AMR in 2016, major gaps persist, especially in low-income and middle-income countries (LMICs),3 where most AMR-related deaths occur. The 2024 HLM is a chance to reinforce the need for all countries to recognise that effective solutions address innovation and access together
The Unraveling: What Dobbs May Mean for Contraception, Liberty, and Constitutionalism
No full texthttps://scholarship.law.bu.edu/clark_speakers/1111/thumbnail.jp