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[quote] It\u27s Past Time for a Rooney Rule in College Football
No full text“When you make a decision in three or four days, you gravitate toward what’s comfortable — what you’re used to — and that tends to cut against coaches of color, unfortunately,” texted Jeremi Duru, the American University law professor who wrote “Advancing the Ball: Race, Reformation, and the Quest for Equal Coaching Opportunity in the NFL” about the development of the Rooney Rule. “The NFL right now presents a stark contrast. It has historically struggled with diversity off the field as well. But in the past several years, club presidents of color have increased many fold and general managers of color have increased many fold. And in this hiring cycle, already four of six head coaching hires are of color.
Kim Scheppele’s Vision for Restoring Democracy - And Why We Must Accept the Challenge
Get PDFDiscussant commentary on the Twenty-Fifth Annual Grotius Lecture
Are Major Housing Regulations Possible in a Post-Chevron World?
No full textIn light of ongoing and dire nationwide housing challenges, tenant advocacy groups have been pushing for greater action by the federal government. Tenants and organizers are calling on federal administrative agencies to impose rent regulations in federally backed properties, curb discriminatory screening practices, limit the grounds for eviction, and affirmatively further fair housing, among other such policies that would significantly regulate the housing market. The newly formed Tenant Union Federation is leading the charge, having recently developed a national tenant policy agenda on the heels of its successful advocacy for the 2023 Whitehouse Blueprint for a Renters Bill of Rights
Committed to Copyright\u27s Constitutional Role
Get PDFWho is Pam Samuelson? She is many things to many people: scholar, teacher, mentor, leader, advocate, and friend, to name a few. One could easily add “force of nature” to the list. This Article suggests adding the term “loyalist” to argue that an important through-line in Pam’s work has been an unwavering commitment to understanding and promoting copyright law’s ability to serve its purpose in our constitutional order
From Rancid to Reasonable: Unfair Methods of Competition Under State Little FTC Acts
Get PDFWhen Congress gave the Federal Trade Commission the power to identify and enjoin unfair methods of competition, it did not create a parallel private right of action as it had for other antitrust laws. Yet approximately two dozen states have since enacted their own “Little FTC Acts,” under which private plaintiffs may sue for damages and other remedies. These poorly understood state laws are actively shaping American competition policy on a national scale. The Ninth Circuit recently affirmed the nationwide injunction that Epic Games obtained against Apple under California’s law despite concluding that Apple violated no federal or state antitrust law. Uber has faced liability under these laws from taxi companies seeking to enforce local regulatory monopolies. And employees have used these laws to challenge their employers’ violations of labor laws.
This Article provides the first scholarly overview of state laws against unfair methods of competition on a national scale. Although these laws generally require some degree of deference to federal precedent, most states have failed to acknowledge the FTC’s evolving guidance on this subject. Nevertheless, application of these state laws broadly tracks the same categories of conduct that the FTC Act covers, including violations of the letter and spirit of antitrust law, statutory and common law, and vaguely defined public policy. These various applications share a common focus in equating unfairness with harm to competition, as understood under either economic theory or legislative policy, and not simply injury to competitors. Appreciation for this core concern can ensure these state laws minimize the risk of overdeterrence without having to eliminate their signature private right of action for damages or narrowing the range of potential plaintiffs to competitors or customers. Increased awareness of these state laws by the FTC itself will allow it to work more closely with state officials to align the objectives of competition policy on a national scale
Confusion Over Trademark Extraterritoriality ... and Beyond
Get PDFThe Supreme Court afforded the Lanham Act extraterritorial reach over seventy years ago in Steele v. Bulova, but its recent extraterritoriality jurisprudence called that decision into question. This Article explains the history of trademark extraterritoriality and the splits that emerged among the circuit courts of appeals. It then canvases all of the Supreme Court’s recent decisions on the presumption against extraterritoriality and their effort to reinvigorate and standardize the law in that regard.
We then provide a detailed exploration of the Supreme Court’s decision in Abitron Austria GmbH v. Hetronic International, Inc. Next, we critique the decision and explore its implications not only for trademark law but also beyond. The Article demonstrates that Steele is effectively overruled, even if the Supreme Court failed to state as such. That means that circuit court case law developed over decades has been sent to the dustbin with nary a consideration of stare decisis. As a result, the previous tests that included considerations of the effects on U.S. commerce and the citizenship of the accused infringer are gone, left with a hopefully ambiguous “use in commerce” test.
Additionally, under Steele, courts formally considered potential conflicts with foreign law when deciding whether to apply the Lanham Act extraterritorially. The role of comity is now uncertain, which is unfortunate in the context of intellectual property law. Consideration of foreign law would be useful in creating soft harmonization with foreign law while also surfacing potential disagreements among countries that could become the source of future negotiations.
The Supreme Court also missed an opportunity to elaborate on the availability of damages for activities outside of the United States in the case of domestic intellectual property infringement. However, the case should nudge courts to adopt a narrow perspective on the availability of those damages.
Finally, the review of the Supreme Court’s decisions on extraterritoriality demonstrates that its effort to formalize the test has been mixed at best. At times, the Court uses the presumption as it had done before its recent engagement: as a soft, secondary statutory canon. Additionally, the justices sharply disagree on step two of its extraterritoriality methodology, leaving lower courts in a state of uncertainty moving forward
More Than Friends: A New Theory For the Third-Party Doctrine
Get PDFWhen a person gives information or something tangible to someone or a business, the Fourth Amendment’s third-party doctrine allows the government to obtain that evidence without a warrant or probable cause. The third-party doctrine is premised on the rationale that we hold no reasonable expectation of privacy when we voluntarily expose information to others, that we assume the risk that the third party would share the information, and that we must deal with the consequences of that misplaced trust. The doctrine originated from a series of cases where law enforcement obtained information revealed by criminals through their mistaken trust of other criminals, snitches, or undercover agents posing as criminals, as seen in On Lee v. United States, Lopez v. United States, Hoffa v. United States, Lewis v. United States, and United States v. White. While the logic behind the impetus for third-party doctrine might appear sound, the doctrine’s applications have been faulty. The third-party doctrine makes sense when applied to criminals and personal relationships, such as friends, family, and neighbors. But the third-party doctrine is incongruous when applied to legitimate commercial relationships, business transactions, or business records, as in United States v. Miller and Smith v. Maryland. We have a reasonable expectation of privacy within legitimate commercial relationships and business transactions because that expectation is protected by contractual duties and rights, industry norms that ensure proper business conduct, assurances given by the business or an independent party to secure our confidence, and legal recourse to vindicate our expectations. Commercial relationships differ significantly from personal relationships because of the differences in trust and privacy expectations between friends and businesses. Legal norms support and reinforce our privacy expectations with businesses and commercial relationships. Our expectation of privacy within business transactions is ensconced in and recognized throughout the legal system—common law, statutes, constitutions, and international law. Based on the commonsense differences between commercial and personal relationships, this Article is the first to propose a new theory for the third-party doctrine by restraining its application only to the context of personal relationships. This theory is the most comprehensive model that has been proposed for refining the third-party doctrine and ensures that our privacy does not shrink as technology expands
Sixth Annual Legal Writing Workshop
No full textProfessor Spratt was the primary speaker (along with Professor Heather Ridenour) at the Sixth Annual Legal Writing Workshop at WCL on April 26, 2024. This workshop is sponsored by Virginia CLE, the Virginia State Bar Section on Education of Lawyers, and the WCL Legal Rhetoric Program. Topics included grammar, writing strategies, organization, persuasive fact characterization, oral and written advocacy, and other best practices in legal writing
N.Y. Times Opinion Captures Post-Roe America
No full textThe New York Times has published a powerful, emotive, and complex picture of abortion access in post-Roe America. The N.Y. Times Opinion column uses multi-media to answer the question, What does it really mean to live in a country where abortion is no longer a constitutional right
Symposium on Military AI and the Law of Armed Conflict: De-anthropomorphizing Artificial Intelligence – Grounding Notions of Accountability in Reality
No full textWhen it comes to the use of artificial intelligence (AI) and autonomous weapons in conflict, States have already crossed the proverbial Rubicon and there is no indication they will look back. By many accounts, AI has played a key role as a decision support tool in the Russia-Ukraine conflict, and as Ukraine’s Minister of Digital Transformation has described, the pull toward deploying AI-enabled, lethal autonomous weapons systems (LAWS) is inexorable and may already be a fait accompli. Israel is also reportedly leveraging AI-driven analytics in its Gaza operations in ways that have been alternately described as, on one side, truly force multiplying, or on the other, corrosive to legally, morally and ethically compliant operations. Whatever one’s views, these developments are occurring against the backdrop of an increasingly heated race between the world’s two leading AI powers, the United States and China, to harness the technology for military advantage. In short, the development, adoption and employment of AI as a military capability is here to stay and moving forward rapidly