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Reevaluating Regional Law Reform Strategies After Dobbs
Get PDFThis article studies the triad of 2016 social media campaigns known as “#AskDr.Kasich,” “#askbevinaboutmyvag,” and “#PeriodsforPence.” While these campaigns, each located in the regional mid-South, were motivated by restrictive state abortion bills, they uniquely positioned menstruation and women’s bodies at the center of their activism—not abortion alone. They leveraged, as a political fault line, the contradiction of these states’ governors’ perceived disgust relating to basic women’s reproductive health, relative to their patriarchal assuredness in regulating and controlling women’s bodies.
In so doing, they tapped into meaningful disruptions in the geographies, religiosities, and masculinities of abortion politics. These campaigns achieved regional collective solidarity and a frame transformation in the rhetoric of abortion access. They catalyzed the lens of “disgust,” used manipulatively in anti-abortion rhetoric, into a source of poignant activism. Masculine discomfort with menstruation and women’s health paradoxically became a tool to protect abortion access. The insights garnered from these social media campaigns inform the vital work of regional law reform in a post-Dobbs America
Korea’s 2011 Copyright Act Amendments and Innovation by Online Service Providers
Get PDFIn 2011, Korea amended its Copyright Act to comply with the U.S.-Korea Free Trade Agreement’s intellectual property chapter, which included an obligation to enact a safe harbor for secondary copyright infringement in the online environment. Safe harbors protect internet firms from legal liability when their users post infringing content online, on the condition that the firms maintain a system to efficiently remove infringing content when notified of the infringement by rightholders.
This paper tests whether the newly established safe harbors had an impact on innovation by Korean internet firms. I hypothesize that the amendments alleviated litigation risks faced by internet firms, incentivizing the development of new products and services. I test this by estimating difference-in-differences regressions on a panel of Korean internet and software producers between 2008 and 2015. Using R&D spending as a share of sales and patent metrics as measures of innovation inputs and outputs, respectively, I find that internet firms increased both R&D/sales and patent applications relative to the control group of software firms after the introduction of safe harbors. I find small changes in the direction of innovation as well: both internet and software firms expanded the set of technologies in which they applied for patents, though this was greater for the internet firms
Ukraine\u27s Push to Prosecute Aggression: Implications for Immunity Ratione Personae and the Crime of Aggression
Get PDFRussia’s aggression against Ukraine dates back to its 2014 annexation of Ukraine’s southern peninsula, Crimea. It was Russia’s brazen full-scale invasion of Ukraine on February 24, 2022, however, that captured global attention and put the crime of aggression – the resort to war in violation of the UN Charter3 – in the spotlight
Repair As Research: How Copyright Impedes Learning About Devices
Get PDFWidespread computerization and ubiquitous smart devices have enabled software-based copyright governance to reach into new domains. Beyond their instrumental utility, these devices are also containers of vast amounts of information in the form of software and technical know-how. Through copyright and anti-circumvention rules, however, this information can be cordoned off and confined to exclusive distribution channels. This can have a significant impact on research. While copyright law traditionally conceives research as the use of expressive works within institutional settings, this paper proposes a broader conceptualization that includes device research, including informal inquiries and DIY activities. Whether for the purposes of modification, repair, user innovation, or testing, device research involves the analytical engagement with physical devices. With a particular focus on repair-related activities as a modality of device research, this paper refers to product teardowns, reverse engineering, security research, and testing analyses. It then looks to case studies that exemplify the ways in which copyright can impede this type of research. In highlighting the conceptual overlap between the Right to Repair and Right to Research movements, the authors propose that a broader concept of research in copyright that includes device research could normatively reinforce and bolster support for a Right to Research in international copyright law
Abolishing Police Consent Searches Through Legislation: Lessons From Scotland
Get PDFWhy have U.S. civil rights organizations omitted the abolition of consent searches from the panoply of recommended police reforms? As over 90% of all searches of cars and pedestrians in the United States are based on consent, this begs the question. The Supreme Court created the consent loophole so that police who lacked probable cause could nevertheless search pockets and cars. In the American context, consent searches bolster racial profiling and enable police harassment.
Americans do not have to wait for the Court to change the law. States and cities have the power to close off this loophole through legislative action. In this regard, the Scottish Parliament provides an illuminating example. Scotland faced a problem with excessive stop-and-search, a practice resembling stop-and-frisk in the United States. Responding to the abusive over-policing, Scotland applied a legislative fix in 2016 that eliminated police consent searches. Harassment immediately decreased, with stops and searches falling from 600,000 stops per year to 40,000 in the first year after the law was enacted. Voluntary consent is an oxymoron in the United States, as it was in Scotland.
This Article looks at the current law reform efforts on consent searches in the United States, argues that state legislatures should follow Scotland’s example, and offers model legislation. Except where legal counsel provides advice on the waiver of rights, legislation should prevent the searches of bodies, cars, and homes based merely on a subject’s cooperation with the police
Decentralized Collaboration Through Private Ordering
Get PDFThis Article sets forth the theory of decentralized collaboration to explain how NFT projects coordinate business and creative collaborations in a decentralized manner through NFTs. Conducting an empirical study of the Top 25 NFT projects, this Article shows that a majority of the Top 25 NFT projects have employed a new, more innovative approach to creative production. Decentralized collaboration refers to the creative activities among unrelated actors who are involved in creating a shared content production project through a decentralized, asynchronous process open to the public. Utilizing a combination of smart contracts that create non-fungible tokens (NFTs) recorded on blockchain and intellectual property (IP) licenses setting forth rights for the NFT owners to use the associated content, such as visual characters, a substantial majority of the NFT projects have adopted a far more permissive approach to IP licensing granting the NFT owners the right to commercialize the artworks, including by making derivative works. The NFT owners who commercialize the artwork get to keep all their profits. Simultaneously, most of the Top 25 NFT projects still impose some restrictions, such as a prohibition against using the project’s trademarks to prevent the potential abandonment of trademark rights. This innovative approach to creative production—in which startups enlist their customers to become cocreators, who receive commercial rights to monetize the artwork identified by NFTs—is a dramatic change from the traditional All Rights Reserved approach of the major media industries. Proponents of this more permissive approach believe it has greater potential for empowering creators and maximizing the Internet for creativity
Implications of the Supreme Court’s Affirmative Action Decision for Law School Admissions
No full textThe ABA Division for Public Education is hosting a free online Supreme Court preview panel in partnership with the American University Washington College of Law
Response to Conophillips\u27 Opposition to UN Rapporteurs Amicus Brief
Get PDFDefendant-Intervenor ConocoPhillips made a number of incorrect and misleading statements in their opposition to the UN Special Rapporteurs proposed amicus brief. This response explains the relationship of the UN Special Rapporteurs to American University’s Washington College of Law, as well as the employment status of the two attorneys who authored the UN Rapporteurs’ amicus brief
The Foundation of the Theory of Law and Business
Get PDFThe theory of law and business needs a jurisprudential foundation ensuring and enhancing fact sensitivity, analytical scrutiny, and methodological order in making lawful and examining unlawful decisions, plans and practices, recognizing unethical and other normative breaches of lawful decisions, and assessing the impact of law on business and its organizations and disciplines. This Article consists of eight parts explaining the explanatory, analytical, and methodological nature of the jurisprudential foundation and its ability to enable and support the theory of law and business in ascertaining and understanding legality, illegality, normative values, and the impact of law on business. Part II extends the introduction to explain the long-held response on, substance of earlier research on, and broad nature of the theory of law and business needing to rest on an active and stable jurisprudential foundation. Part III discusses the nature of the theory of law and business by explaining a taxonomy categorizing the impact of law on business of the integration of law and business combining legal and business knowledge, analytics, or methodologies. Part IV explains the need for a legal foundation consisting of jurisprudential or jural elements enabling integration of law and business by relying on common knowledge- , analytical-, and methodological-based properties to combine legal and business knowledge, analytics, or methodologies. Part V explains how the nature and role of jurisprudential elements of the foundation ensure and increase fact sensitivity, analytical scrutiny, and methodological order in ascertaining legality of business decision-making, planning, and operations.
The latter parts of the Article focus on the ability of the jurisprudential elements to enhance business knowledge, analytics, and methodology and support the use of a managerial analysis with law to ascertain and understand legality and illegality of business decision-making, planning, and operations. Part VI focuses on the effects of the legal foundation on business knowledge, analytics, and methodology. It explains that the jurisprudential elements complement and enhance uses of business knowledge, analytics, and methodology in making lawful and effective decisions, strategies, and practices to justify planned and unplanned business needs and advance legitimate and forward-looking business goals and objectives. Part VII focuses on the ability of the foundation to enable the integration of law and business by combining legal and business knowledge, legal and business analytics, and legal and business methodologies. It explains that the jurisprudential elements support a managerial analysis with law to form and create specific legal-managerial tools, methods and information in making the most effective and lawful end result at each stage of business decision- making and planning and each matter of business operations. Lastly, Part VIII concludes that the legal foundation consists of jural elements enabling the integration of law and business by combining amenable legal and business knowledge, analysis, and methods, examining the normative value of business decision-making, planning, and operations and lastly, assessing the impact of a legal rule or statutory provision on business and its disciplines and organizations
Raising the Threshold for Trademark Infringement to Protect Free Expression
Get PDFThe First Amendment right to free speech limits the scope of rights in trademark law. Congress and the courts have devised various defenses and common law doctrines to ensure that protected speech is exempted from trademark infringement liability. These defensive trademark doctrines, however, are narrow and often vary by jurisdiction. One current example is the speechprotective test first articulated by the Second Circuit in Rogers v. Grimaldi, expanded by the Ninth Circuit, and recently restricted by the Supreme Court in Jack Daniel’s Properties v. VIP Products to uses of another’s mark within an expressive work that do not designate the source of the accused infringer’s products. The Rogers test prevents a finding of infringement if this use is artistically relevant to the underlying work and does not explicitly mislead consumers as to the source or content of the work. This categorical rule has definite advantages over the multi-factor likelihood of confusion test in trademark disputes involving expressive works, but—like other speech-protective doctrines—this test has limitations and shortcomings.
This Article therefore proposes an alternative test for protecting First Amendment interests in trademark law that better balances the public interest in avoiding consumer confusion against the public interest in free expression. This proposed broad trademark fair use test would apply to any informational or expressive use of words, names, or symbols claimed by another as a mark in connection with any goods or services. If this threshold requirement is satisfied, this use is not infringing unless the accused infringer’s expression is (1) a false statement about its products (including false claims of sponsorship, endorsement, or approval) or (2) is likely to mislead a reasonable person about the source of the goods, services, or message. This more holistic approach to protecting speech interests in the trademark enforcement context should increase clarity and predictability in trademark law and will enable courts to dispose of speech-harmful claims as a matter of law early in a lawsuit