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Evolving Corporate Philanthropy
No full textWith the rise of corporate ESG initiatives and public benefit corporations, corporate philanthropy is evolving from an emphasis on cash contributions (contributional philanthropy) to an emphasis on adjusting operations to advance the public good (operational philanthropy). All forms of corporate philanthropy are controversial, but this article evaluates the impact of this evolution on the relative benefits and concerns of corporate philanthropy, arguing that the shift in emphasis towards operational philanthropy increases the comparative advantage of corporate philanthropy, increases agency costs, both simplifies and complicates shareholder primacy concerns, and increases the difficulty of prescriptively regulating corporate philanthropy through the tax code or otherwise. This article goes on to argue that accurate and transparent disclosure is the key to minimizing the costs and maximizing the benefits of the now ascendant operational philanthropy and concludes by offering a few observations on disclosure-based regulation of operational philanthropy
Federal War-Time Prosecutions Based on Implied Presidential Powers and The Law of Nations - Without Any Federal Statutes, 1790s
No full texthttps://scholarship.law.bu.edu/clark_speakers/1106/thumbnail.jp
Utility, Copyright, and Fair Use after Warhol
Get PDFThis paper is a reaction to AWF v. Goldsmith (Warhol), which finds that Warhol’s adaptation of a photograph of Prince, taken by photographer Lynn Goldsmith, is not protected from copyright liability by the fair use defense. The Warhol dissent accuses the majority of being overly concerned with the commercial character of Warhol’s use, while the dissent emphasizes the artistically transformative quality of Warhol’s adaptation. These different approaches provide strong evidence that the theory of fair use remains unclear to the Court. There is a need for a simple positive theory of the fair use doctrine. That need was largely met by Gordon’s article in 1982. I aim to develop the economic theory of fair use further, especially in light of case law since 1982. A theory of fair use is at the same time a theory of the scope of copyright. I clarify the economic basis for fair use, taking advantage of basic concepts in welfare economics. As a general matter, the optimal scope of copyright minimizes the sum of dynamic (having to do with incentives over time) and static (having to do with allocation at a given time) welfare costs. One proposition advanced is that the concepts of economic complementarity, substitutability, and preference correlation provide crucial analytical tools in resolving fair use disputes. This proposition may seem narrow, but it stands the approach taken in the cases on its head. I explain how the approach urged here works by applying it to several cases, including Warhol and Google v. Oracle
The Fight for Justice Starts with Blocking Judges who are Tough on Crime
No full textDespite intense opposition, Carnes, like Justice Thomas, was ultimately confirmed. He went on to serve nearly three decades before retiring in June 2020. Over those 28 years, he largely voted as one might expect a former prosecutor would in criminal cases. In 2012, Carnes wrote an opinion upholding the death sentence of Robert Holsey, an indigent Black man who killed a sheriff’s deputy. Holsey’s court-appointed lawyer drank a quart of vodka every night during the trial and failed to introduce evidence that Holsey struggled with an intellectual disability and had been abused by his own mother. Over sharp dissent from a colleague—that omitting this “horrific” evidence denied Holsey competent representation—Judge Carnes refused to order a new trial, saying that having a sober lawyer would not have made a difference. Holsey was executed by the state of Georgia in December 2014. Carnes continued to make it easier for people to be put to death, even when confronted with evidence of unequal justice and with the condemnation of his colleagues.
Over the years, federal judges have played a major role in facilitating War on Crime policies. The story of how Carnes became a judge offers crucial lessons for those who hope to unwind the policies of mass incarceration
Validity, Reliability, and Fairness Evidence for the JD-Next Exam
No full textAt a time when institutions of higher education are exploring alternatives to traditional admissions testing, institutions are also seeking to better support students and prepare them for academic success. Under such an engaged model, one may seek to measure not just the accumulated knowledge and skills that students would bring to a new academic program but also their ability to grow and learn through the academic program. To help prepare students for law school before they matriculate, the JD-Next is a fully online, noncredit, 7- to 10-week course to train potential juris doctor students in case reading and analysis skills. This study builds on the work presented for previous JD-Next cohorts by introducing new scoring and reliability estimation methodologies based on a recent redesign of the assessment for the 2021 cohort, and it presents updated validity and fairness findings using first-year grades, rather than merely first-semester grades as in prior cohorts. Results support the claim that the JD-Next exam is reliable and valid for predicting law school success, providing a statistically significant increase in predictive power over baseline models, including entrance exam scores and grade point averages. In terms of fairness across racial and ethnic groups, smaller score disparities are found with JD-Next than with traditional admissions assessments, and the assessment is shown to be equally predictive for students from underrepresented minority groups and for first-generation students. These findings, in conjunction with those from previous research, support the use of the JD-Next exam for both preparing and admitting future law school students
How Do You Like your Books
Get PDFDo you ever wonder how it is that libraries can lend books repeatedly, while copyright owners (e.g., book authors) are granted the exclusive right to distribute their copyrighted works? Or how publishers make money selling books at retail prices when a person can resell books (or buy used books) for much less (hello Amazon Used Books for under a dollar!)? The reason is because of copyright’s “first sale” doctrine, 17 U.S.C. § 109, codifying the common law’s exhaustion principle, which says owners of lawfully made copies are allowed to dispose of those copies without regard to copyright law. In other words: the right to distribute is “exhausted” with the first sale. This means we can resell, lend, or give away our books. What we can’t do is make copies of them.
And that is where the concept of “digital lending” runs headlong into copyright law. When libraries buy books, they can lend them without restrictions. When libraries lend e-books, those e-books come with contractual provisions limiting their lending in substantial ways because reading an e-book requires making a copy, which is not exhausted by the first sale doctrine. As the Supreme Court has said (in the patent context, which has a similar first sale principle): “exhaustion applies only to the particular item sold, and not to reproductions.”
From CRT to DEI: Tracing the Assault on Multiracial Democracy
No full textSince the summer of 2020, rightwing officials and organizations have orchestrated a coordinated campaign to redefine antiracism as the new racism. Early iterations of this campaign presented a caricature of Critical Race Theory to discredit modest antiracist reforms and to limit classroom conversations about racism, bias, and American history writ large. More recently, against the backdrop of politics around Israel and Palestine, many of the same individuals and entities that spearheaded attacks on CRT have turned their sights on “diversity, equity and inclusion” (DEI) as well as various forms of critical and protest speech. Through a conversational dialogue, the panelists will chart historical, rhetorical, political and legal links that bind recent anti-CRT and anti-DEI campaigns. The panelists will also surface how this moment parallels past academic and political conflicts over race and scholarship
Do Public Accommodations Laws Compel “What Shall Be Orthodox”?: The Role of Barnette in 303 Creative LLC v. Eleni
Get PDFThis article addresses the U.S. Supreme Court\u27s embrace, in 303 Creative LLC v. Elenis, of a First Amendment objection to state public accommodations laws that the Court avoided in Masterpiece Cakeshop v. Colorado Civil Rights Commission: such laws compel governmental orthodoxy. These objections invoke West Virginia Board of Education v. Barnette \u27s celebrated language: If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein. They also cite Barnette\u27s progeny, including Wooley v. Maynard and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston. Business owners, their lawyers, and judges who have invoked these cases argue that state public accommodations laws requiring that businesses not discriminate based on sexual orientation in providing goods and services compel both speech and silence. In 303 Creative, Justice Gorsuch\u27s majority (6- 3) opinion quotes the beginning of Barnette\u27s fixed star passage but adapts it: the fixed star becomes the principle that the government may not interfere with \u27an uninhibited marketplace of ideas. Gorsuch moves from the public school room in which a state law compelled Jehovah\u27s Witness children to salute the flag, despite their religious beliefs to the commercial marketplace, but gives little guidance about how broadly the protection of creative expression in this marketplace of ideas will extend. While Justice Gorsuch situates the Court\u27s protection of website designer Lorie Smith against compelled speech and orthodoxy in the commercial marketplace as the latest in a series of courageous First Amendment decisions by the Court protecting individuals against an encroaching state, Justice Sotomayor\u27s dissent excoriates the majority for departing from the long history of the Court courageously defending citizenship-expanding antidiscrimination laws against backlash and repeated First Amendment challenges. This article argues that 303 Creative\u27s use of Barnette extracts it from its wartime, antitotalitarian context, ignores crucial distinctions drawn in Barnette, and (as Justice Sotomayor\u27s 303 Creative dissent warns) \u27trivializes the freedom protected in Barnette, \u27 while also undermining public accommodations laws. The article also considers the recent invocation of Barnette and its progeny to challenge other forms of governmental regulation, including state regulation of crisis pregnancy centers and state bans on conversion therapy
Regulating Social Media Through Family Law
Get PDFSocial media afflicts minors with depression, anxiety, sleeplessness, addiction, suicidality, and eating disorders. States are legislating at a breakneck pace to protect children. Courts strike down every attempt to intervene on First Amendment grounds. This Article clears a path through this stalemate by leveraging two underappreciated frameworks: the latent regulatory power of parental authority arising out of family law, and a hidden family law within First Amendment jurisprudence. These two projects yield novel insights. First, the recent cases offer a dangerous understanding of the First Amendment, one that should not survive the family law reasoning we provide. First Amendment jurisprudence routinely defers to parental decisions, in contrast to emerging case law. Second, existing legislation fails to leverage family law to bypass First Amendment barriers. Lawmakers should refocus on legislating to empower parents to supervise their children meaningfully on social media, instead of focusing on harmful content itself. In the real world, parents enjoy nearly unlimited authority to decide how much privacy to afford a minor, what ideas may reach them, and who may contact them. The law supports parents in these efforts, and it can do so in the social media context as well. But it is essential for the state to identify this as the interest behind regulation, in order to survive First Amendment challenges. We conclude by proposing a Parental Decision-Making Registry that could reduce the enormous power of social media companies in the lives of minors while resting securely on law of the parent-child relationship