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We Have Invented a New International Legal Concept of \u27Administered Territory\u27 : Making Israel\u27s Legal Space, 1948-1950
No full texthttps://scholarship.law.bu.edu/clark_speakers/1121/thumbnail.jp
Design Problems
Full text linkThis Essay draws on our empirical research into designers and their work to investigate the limits of intellectual property law for achieving its goal of progress in the design context. We focus on two related aspects of our research and also address a pressing doctrinal question in design patent law. The two research questions we discuss are: (1) How do designers conceive of and solve design problems through innovative design practice?; and (2) How do designers incorporate human values of coherence, inclusivity, and sustainability in their process, imbuing their practice with a kind of politics? The related doctrinal question concerns patent law’s obviousness doctrine, which recently has been restored in the design patent context, but in ways we consider incomplete and to which we offer several improvements. Specifically, we emphasize the role of constraints under which designers work, and how those constraints can guide evaluation of the problems designers seek to solve
Dark Patterns as Disloyal Design
Full text linkLawmakers have started to regulate “dark patterns,” understood to be design practices meant to influence technology users’ decisions through manipulative or deceptive means. Most agree that dark patterns are undesirable, but open questions remain as to which design choices should be subjected to scrutiny, much less the best way to regulate them.
In this Article, we propose adapting the concept of dark patterns to better fit legal frameworks. Critics allege that the legal conceptualizations of dark patterns are overbroad, impractical, and counterproductive. We argue that law and policy conceptualizations of dark patterns suffer from three deficiencies: First, dark patterns lack a clear value anchor for cases to build upon. Second, legal definitions of dark patterns overfocus on individuals and atomistic choices, ignoring de minimis aggregate harms and the societal implications of manipulation at scale. Finally, the law has struggled to articulate workable legal thresholds for wrongful dark patterns. To better regulate the designs called dark patterns, lawmakers need a better conceptual framing that bridges the gap between design theory and the law’s need for clarity, flexibility, and compatibility with existing frameworks.
We argue that wrongful self-dealing is at the heart of what most consider to be “dark” about certain design patterns. Taking advantage of design affordances to the detriment of a vulnerable party is disloyal. To that end, we propose disloyal design as a regulatory framing for dark patterns. In drawing from established frameworks that prohibit wrongful self-dealing, we hope to provide more clarity and consistency for regulators, industry, and users. Disloyal design will fit better into legal frameworks and better rally public support for ensuring that the most popular tools in society are built to prioritize human values
Discriminatory Censorship Laws
Full text linkThe summer of 2020 ignited global protests for racial justice. Across the United States, millions marched with a modest plea: that America reckon with its racism. For K-12 schools, this moment pushed local communities and district leaders to create more inclusive classrooms and curricula. Yet before the summer had ended, America\u27s antiracist turn provoked a backlash campaign that has proven far more impactful and enduring.
This campaign has featured the rise and spread of discriminatory censorship laws -a term we apply to government action designed to demean inclusionary values and to deny students access to critical knowledge, inquiry, and thinking. As of January 2024, over 20 states and 145 school districts had enacted at least one discriminatory censorship law regulating K-12 schools. These laws cover over 1.3 million educators and nearly half the nation\u27s 50 million public school students. Many have analyzed the legality of discriminatory censorship laws. Few have systematically assessed their impact. This Article fills that gap by synthesizing otherwise siloed research. Drawing on this scholarship, we identify two overarching threats discriminatory censorship laws pose to students, educators, and public education writ large: (1) hostile learning environments and (2) miseducation. We also surface how discriminatory censorship laws have spread notwithstanding their lack of popular support. Albeit unpopular, this ongoing campaign of discriminatory censorship is unlikely to relent absent an equally committed and coordinated response
Response to Petition for Rehearing En Banc, Felicia M. Sonmez v. WP Company LLC et al
Full text linkFelicia Sonmez alleges that the Washington Post violated the D.C. Human Rights Act by banning her from covering certain stories because she is a woman and a sexual-assault survivor. Op. 2-3. After finding Sonmez’s detailed allegations plausible, a panel of this Court rejected as premature the Post’s First Amendment defense that its decision was driven not by discrimination but by a desire to maintain an appearance of objectivity. Op. 4. Because “what actually motivated the Post editors to impose the bans on Sonmez is a factual question,” the panel held, the Post’s First Amendment defense could not be resolved on a motion to dismiss. Op. 94-97. Now, in seeking rehearing, the Post argues for the first time that, regardless of what motivated its coverage bans, its decisions are categorically protected by the First Amendment. Generally, this Court will not entertain arguments that are first presented in a petition for rehearing. See Nixon v. United States, 736 A.2d 1031, 1032 (D.C. 1999).
No matter. The Post’s theory—that any assignment decision a newspaper makes is protected by the First Amendment regardless of the reason for that decision—is badly misguided. On the Post’s theory, a paper could freely ban Black reporters from covering national politics because the White editors of that section prefer a segregated work environment, or it could cancel the column of a union-associated reporter, not because of any concerns with the column’s content, but to retaliate against the employee. This is not hyperbole. The Post has said so. See Pet. 1-2. And, according to the Post, courts are categorically prohibited from inquiring into these decisions. Pet. 2. But the First Amendment does not give newspapers the freedom to discriminate whenever an assignment decision is made by editors. To exercise First Amendment-protected editorial discretion in reassigning a reporter, a newspaper must, at least, take this action for a communicative purpose. The panel correctly remanded for a factual determination as to whether the Post had that purpose here. Op. 96-97. Time will tell. Meanwhile, this case is not ripe for further review and poses no question of exceptional importance. The petition should be denied
Unequal Ownership
Full text linkMarket concentration and weak competition do not just lead to lower efficiency but also result in corporate profits flowing primarily to wealthy households that own a disproportionate share of public corporations. We demonstrate that this is a growing distributional problem not only due to familiar reasons in the literature, most notably shifts in market power, but also due to changes in the socio-economic makeup of ownership. Over the past twenty years, households in the bottom 90 percent of wealth have seen their share of stock ownership decline by half. That is, the ownership of corporations has become increasingly concentrated among the wealthy at a time when corporations are arguably extracting ever more surplus from consumers and workers.
This Article seeks to situate the distribution of ownership at the center of policies to address the impact of declining competition. The gist of our proposal is that policies to reverse existing trends by broadening the ownership of public corporations to middle- and low-income households may help mitigate the harmful consequences of market power. The general objective of such policies would be to bring the distribution of ownership closer towards more equal ownership of corporations by the public.
Policies to mitigate unequal ownerships are desirable for two main reasons. First, the simplest effect of expanding ownership would be to enable a broader array of stakeholders to benefit from the excess profits earned by firms in concentrated markets. Second, we demonstrate theoretically that if corporate stakeholders, particularly consumers and workers, own shares in public corporations, managers may offer more competitive prices and wages, to the extent that managers internalize the interests of their owners. Accordingly, policies to promote equal ownership of corporations can serve as a complimentary policy tool to existing policies, such as antitrust and regulation, and offers potentially consequential advantages
Is R&D Rivalry Slowing the Growth of Productive Firms?
No full textThe reallocation of jobs to more productive firms is a substantial component of aggregate productivity growth, yet job reallocation rates have declined substantially in the United States. This paper explores the hypothesis that greater technological rivalry has exacerbated adjustment costs, slowing reallocation. Using microdata at the US Census and estimates of technological rivalry in firm growth regressions, we find that technological rivalry slows firm responses to productivity shocks. Firms do not expand as rapidly in the face of higher obsolescence risk. Estimating counterfactual firm growth from 1997-2018, we find that growing technological rivalry accounts for most of the decline in job reallocation. Counterintuitively, rising technological rivalry may slow reallocation, dampening aggregate productivity growth
THC Meets GNH: Considering Cannabis Policy in Bhutan through a Gross National Happiness Lens
No full textThe legal status of cannabis remains a contentious issue globally, with countries adopting divergent approaches to the drug, ranging from strict prohibition to full legalization. In Bhutan, a nation deeply rooted in the holistic philosophy of Gross National Happiness (GNH), cannabis is currently classified as a controlled substance under domestic drug laws. This paper explores the question of whether Bhutan should change its laws regarding cannabis by analyzing decriminalization’s potential impact on Bhutan’s unique justice system, considering GNH principles and the prevalence of wild cannabis growth in the nation. The research will focus on whether Bhutan’s current approach to cannabis aligns with GNH’s focus on societal well-being. This research aims to inform a balanced approach to cannabis in Bhutan by analyzing the evidence, legal perspectives and GNH principles to guide policymakers in navigating cannabis regulation
Law as a Lamp Post
Full text linkLaw produces all manner of public information: court documents, securities filings, patents, property records, and much more. This information is used in a multitude of ways—it teaches readers about individual cases, transactions, or entities, and is also aggregated to inform policymaking, set priorities, and drive predictive analytics and artificial intelligence.
But choices about the information produced (or hidden) by law are often unintentional. Doctrines and institutions that appear facially unrelated to information production—like subject matter jurisdiction—nonetheless affect the shape and quantity of data produced. And even doctrines focused on information— like property recordation—create data used for purposes never envisioned by the law. We can only count what we can see, so law is inadvertently deciding which transactions, cases, and people are influential and which are invisible. Choices about how law produces information are directly responsible for selection bias— and thus for incorrect decisions—in areas as varied as how we calculate risk of child abuse, classify causes of death, create contract drafting software, and automate adjudicative processes.
After demonstrating the prevalence of law’s accidental information spillovers and their effects—which are unaccounted for by existing theories of law and information—this Article provides an updated framework for incorporating information into the theory and structure of law and highlights new roles for legal doctrines and institutions. The Article concludes with concrete ways that this new understanding of information can affect policy, including how it can be factored into institutional and doctrinal decisions, how to update the cost-benefit analysis of legal information to account for new uses and audiences, and how law might address harmful biases in available legal information
Foreign Judges and Foreign Case Citations: A Study of the Hong Kong Court of Final Appeal
No full textWe study the value of foreign judges and foreign case citations for emerging courts in postcolonial democracies, with a specific focus on the Hong Kong Court of Final Appeals (HKCFA). The HKCFA, Hong Kong’s highest appellate court since the transfer of its sovereignty to China, features foreign judges as full members of the court. Using a novel dataset of all publicly available HKCFA decisions from 1997 to 2020, we show that there is a significantly higher number of foreign case citations in cases where foreign judges have participated. Further analyses show that this correlation is stronger where the Hong Kong government is a disputing party, and more specifically, where the court rules in favor of the Hong Kong government. The findings are consistent with the possibility that foreign judges’ expertise in foreign case law is relevant for upholding the perception of the court’s independence from the executive branch. This explanation is in line with existing theories on the role of foreign judges on domestic courts