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Banana Republic: Copyright Law and the Extractive Logic of Generative AI
No full textThis article uses Maurizio Cattelan’s Comedian, a banana duct-taped to a gallery wall, as a metaphor to examine the extractive dynamics of generative artificial intelligence (AI). It argues that the AI-driven creative economy replicates colonial patterns of appropriation, transforming human expression into commodified outputs while marginalizing the creators whose work makes these systems possible. Through the figures of the fruit seller, the buyer and the artist, the article interrogates who is valued, who is erased and who reaps the rewards in this evolving landscape. The analysis turns next to the banana itself as an object of constructed value, exploring how copyright’s doctrines of authorship, originality and fair use struggle to accommodate the layered and distributed nature of AI-mediated creation. These doctrinal limitations, the article contends, leave creators vulnerable while enabling dominant platforms to entrench extractive practices under the guise of innovation. Finally, the article examines the ‘wall’, the metaphorical and institutional surfaces against which generative AI is made legible and legitimate. It begins by situating current AI governance within broader global trends of legal fragmentation and jurisdictional arbitrage, highlighting how regulatory divergence reflects deeper normative commitments—some prioritizing innovation, others dignity and distributive justice. It then critiques reactive proposals that rely on private licensing regimes or piecemeal litigation, arguing that such approaches risk entrenching opacity and extractive control. In their place, the article advocates for structural reforms grounded in transparency, attribution and participatory design, legal scaffolding that can recognize distributed authorship and protect against enclosure. Without these interventions, the generative AI economy may replicate the very conditions that Comedian satirizes: spectacle without substance, progress without equity
Rethinking Appeals in Arbitration
No full textThe question of whether arbitration awards should be appealable, or at least subject to enhanced judicial review, is heavily contested in the scholarly literature. This Article explains that arguments favoring or rejecting appellate review have focused on stylized conceptions of arbitration either as a species of contract or as a substitute for adjudication. This Article argues that these two dominant approaches—termed here the “contractarian” and “arbitration-as-adjudication” models—fail to adequately describe modern arbitration practice. Thus, any argument for or against appellate review that rests heavily on either of the two conceptions is unconvincing. Instead, this Article argues that the question of whether arbitration awards should be appealable follows not from an inquiry into the nature of arbitration, but from an inquiry into the legal substance of the particular dispute to be arbitrated. From this, this Article contends that for the arbitrations which tend to be private matters concerning only contractually created rights, appellate review is inappropriate, as it undermines the fundamental social solidarism of contract-making. In other words, reserving the right to appeal is anti-social. However, this Article also argues for a “public policy exception” to this general presumption against appellate review; for disputes that implicate publicly created rights, parties should have an opportunity to seek meaningful and substantive review
Redefining the Relevant Market: Abandonment or Return to Brown Shoe
No full textDefining a relevant market is arguably the most important requirement in antitrust litigation. Between the 1890s and the 1940s, defining a relevant market was a simple and generalized process, typically undertaken by courts as a cursory matter. However, in the 1960s, defining relevant markets became a centerpiece of antitrust litigation. The modern method originates from the Supreme Court’s landmark 1962 decision in Brown Shoe v. United States. The method commonly known as the Brown Shoe test requires judges to construct relevant markets by carefully analyzing accessible and understandable qualitative data, such as internal corporate documents and consumer surveys. Since the Brown Shoe decision, the Supreme Court has continuously refined this process.
After 1982, however, defining a relevant market consists of the parties applying the Brown Shoe test and complex econometric tests. Concerning the use of econometrics, the process is almost entirely based on abstract, confusing, highly subjective, and unnecessary economic theory. The high cost and complexity of econometric tests deter and inhibit antitrust litigation because judges often dismiss plaintiffs’ claims that fail to construct relevant markets that comply with the tests’ stringent requirements.
This Article recommends two alternative approaches to remedy the problems created by the econometric process. The first option is to abandon defining relevant markets altogether. Instead, clear, bright-line rules should determine the illegality of most antitrust conduct—particularly for mergers, exclusive deals, and tying arrangements. The bright-line rules should be fixed to easily calculate financial metrics such as revenue, profit, total assets, or transaction size. This proposal can be implemented through the Supreme Court overturning its Brown Shoe precedent, amendments to the antitrust laws from Congress, or from federal administrative agencies (such as the Federal Trade Commission) employing their broad rulemaking power to regulate unfair methods of competition. Alternatively, when bright-line rules cannot be used, or it would not be prudent to do so, enforcers and judges should exclusively use the Brown Shoe test.
This Article illustrates how both proposals offer significant benefits to antitrust enforcers and the public. Many criticisms of these proposals are unfounded, misguided, and overblown; what is critiqued may, in fact, be desirable
