16178 research outputs found
Sort by
Trade Secrecy\u27s Information Paradox
No full textTrade secret law is meant to encourage socially beneficial behaviors by permitting firms to protect their investments in the creation of valuable information. In theory, the ability to protect valuable information will make firms more likely to create that information in the first instance. But the law can also be used to shield socially harmful behaviors from public oversight. Firms can assert trade secret protection to prevent journalists, watchdogs, and criminal defendants from learning whether they are engaged in dangerous, wrongful, or biased activity. Ideally, trade secret law should sort socially beneficial uses from socially harmful ones, permitting only the former while screening out the latter. However, the problem for trade secret law is that, in a variety of contexts, it is incredibly difficult to know whether the underlying information is beneficial or harmful to society, and thus whether the information should be disclosed, without first disclosing and scrutinizing it. This is trade secrecy’s information paradox: it is hard to know whether a trade secret should be protected without first revealing it. This information paradox implicates numerous social interests, including the environment, public health, criminal law, and the success of the regulatory state. It is at the heart of recent concerns about potentially biased bail and sentencing algorithms, environmentally harmful fracking chemicals, and disparate hiring practices. Yet as is the case with many paradoxes, trade secrecy’s information paradox cannot easily be solved, at least with any politically feasible set of tools. Unlike other areas of intellectual property, traditional tools (i.e., doctrinal and costly screens) will do little to sort socially harmful trade secrets from socially beneficial ones—leaving piecemeal, contextualized limits on trade secrecy the most viable path forward, at least for the foreseeable future
Working Lunch Presentation: The Challenge of China: Lawfare, Technology, and More
No full textMaj. Gen. Charlie Dunlap, USAF (Ret.), LENS Executive Director
Speaker: Mr. Dean Cheng, Senior Advisor to the China program at the U.S. Institute of Peac
Fraudulent Transfer Law and Sovereign Immunity: An Actual Abuse of Federalism?
Full text linkAfter All Resort Group filed for bankruptcy, David Miller, its appointed trustee, sought to claw back tax payments the company had made on behalf of two of its principals to the IRS by arguing the payments constituted fraudulent transfers. Unlike a typical clawback action, however, the trustee brought this proceeding under Section 544(b), rather than the more common fraudulent transfer provision, Section 548, because § 544(b) permits the trustee to rely on state fraudulent transfer law—which has longer statutes of limitations than the federal fraudulent transfer provision. The Government challenged this action, arguing that recovery from the IRS was barred by sovereign immunity. The United States Bankruptcy Court for the District of Utah rejected this view, finding that the plain text of § 106(a)(1) of the Bankruptcy Code, which waives sovereign immunity for fifty-nine sections of the Code, including 544, unequivocally abrogates sovereign immunity as to the underlying Utah state law cause of action. On appeal, the Tenth Circuit affirmed, holding that the language of § 106(a), which abrogates sovereign immunity with respect to Section 544, was intended to be broad enough to encompass applicable state law. The Court should reverse, as an actual creditor who sought to avoid the transfer in question would be prohibited from doing so outside of bankruptcy. To affirm the Appellate Court\u27s holding would allow a trustee in bankruptcy to exploit a favorable state law—here, a longer statute of limitations—thereby circumventing federal law. In doing so, the Court risks undermining the nation\u27s delicate system of structural federalism
Winning at Any Cost: Overcoming Professional Sports Team Rent Seeking Through the Sports Broadcasting Act
Full text linkU.S. professional sports teams are integrally linked with the identity of the cities they play in. Because of this prominence, they are some of the most valuable privately owned assets on earth. Their leagues are monopolies, insulated by entry costs that make competition from smaller competitors almost impossible. Owners rent seek using this leverage by demanding states and cities subsidize teams’ operating costs or risk the franchise departing for more generous taxpayer funding elsewhere, creating a race to the bottom. The most gratuitous of these subsidies, to build and renovate stadiums, will cost state and local taxpayers at least $20 billion between 2020 and 2030. Congress can protect states and cities from this rent seeking by amending the Sports Broadcasting Act (“SBA”), a statute that exempts professional leagues and their joint agreements from antitrust scrutiny. An amended SBA would require teams and leagues fulfill certain conditions and refrain from extorting the states and cities they operate in
Law and Historical Materialism
Full text linkSince the financial crisis of 2008, left-leaning legal thought has experienced a renaissance within the American academy. From law and political economy to critical race theory to feminist legal studies to Marxist legal theory, new perspectives have flourished, and marginalized traditions have been revived and revised. These new perspectives and revisionist projects all share an intellectual debt to the critical legal studies (“CLS”) movement of the late 1970s and 1980s. That movement’s critique was focused on functional accounts of law: accounts that understood legal change as primarily responsive to the demands of extralegal social and economic forces. Some of those accounts, such as that of the law and society school, were associated with the political center. Others, most especially historical materialism, hailed from the political left. For CLS and its successors, the failure of historical materialism to account for the indeterminacy of law, the contingency of legal development, and the autonomous causal power of law and legal actors to shape society was—and remains—disqualifying.
This Article argues that CLS erred, and that its successors continue to err, in sidelining historical materialism as a viable framework for left-leaning legal thought. The historical materialist account of law has the resources to make sense of the apparent indeterminacy, contingency, and autonomy of law and legal actors at least as well as CLS and its successors. It can also make better sense of three additional phenomena with which CLS and its successors have struggled: the tendency of legal development to reproduce existing social and economic hierarchies; the relationship between law and capitalism; and the relationship between law and the natural world
Volume 108, Number 3 (2025)
No full texthttps://scholarship.law.duke.edu/judicature/1031/thumbnail.jp
A Matter of Public Concern: Wright v. Dorsey and the Need For Speech Protections Beyond Anti-SLAPP Law
No full textWright v. Dorsey, a recent defamation case, demonstrates the limitations of anti-SLAPP ( Strategic Litigation Against Public Participation ) law and the need for supplemental speech protections. Joshua Wright, an antitrust law practitioner and former professor, sued Elyse Dorsey and Angela Landry for defamation. Dorsey and Landry had claimed that Wright used his position as their professor (and later employer) to pressure them into non-consensual sexual relationships; Wright acknowledged their relationships but claimed they were fully consensual, and that stating otherwise was defamatory. Anti-SLAPP law failed to protect Dorsey and Landry even though Wright\u27s lawsuit was ultimately a SLAPP. To better protect defendants against lawsuits like Wright, anti-SLAPP law should be supplemented by a but-for causation, test which considers whether the plaintiff would have suffered damages had the defendants not made the allegedly defamatory statements