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The Right to Resistance and the Western Sahara: A Twail Analysis of the International Legal Order and Its Constraints on Decolonization
Get PDFThe Western Sahara is often called the Last Colony in the World, in reference to its anachronistic status as a territory deemed to have self-determination by the United Nations and ICJ, but still under the rule of another country. Scholarship on the Western Sahara tends to concentrate on the protracted stalemate in their war of independence against Morocco, highlighting the roles of several individual actors, such as France, the United States, the United Nations, and the Polisario, and how these actors create a particular structure to the conflict. This Note focuses on the role of the International Legal Order, as created and upheld by actors such as the United Nations and the United States, in developing and maintaining the stalemate. First, this Note examines the way the rules on the prohibition on the use of force have asymmetrically limited the ability of the Sahrawi people and the Polisario to respond to colonial violence and to pursue their right to self-determination. Second, this Note examines how the principles of self-determination as defined by the International Legal Order further the power imbalances which allow the oppression of the Western Sahara to continue. Following in the tradition of Third World Approaches to International Law, this Note highlights the displacement of the local legal order in the Western Sahara, and aims to demonstrate that by stifling the right to resistance in the Western Sahara, the International Legal Order merely perpetuates the power imbalances of colonialism
Safe Storage Laws and Self-Defense from \u3cem\u3eHeller\u3c/em\u3e to \u3cem\u3eBruen\u3c/em\u3e
Get PDFThis short Essay, written for a symposium honoring Walter Dellinger, explores one of the most underappreciated—and indefensible—holdings of District of Columbia v. Heller, the landmark Second Amendment case that Walter ably argued for the District. Most scholars have focused on Heller’s announcement of an “individual” right to keep and bear arms for private purposes and its invalidation of the District’s prohibition on handguns. But along the way, almost in passing, the Court also struck down the District’s requirement that firearms be kept “unloaded and dissembled or bound by a trigger lock or similar device.” It did this not by asking whether such a requirement would make it too hard to use a gun in self-defense, but rather by insisting that the safe storage requirement—unlike most generally applicable rules and also unlike Founding-era laws—did not contain a self-defense exception.
The first part of the Essay unpacks the Justices’ treatment of the safe storage requirement in Heller, first at oral argument and then in the opinions. The second part explains why the refusal to recognize a self-defense exception was so significant and what that refusal illustrates about the Court’s recent approaches to constitutional doctrine more broadly. The Court dodged an important and genuinely hard question—whether safe storage requirements impermissibly burden armed self-defense—by manufacturing an easier one: whether a city can ban “functional firearms.” This move exemplifies both the Court’s failure to grapple with the relationship between the Second Amendment and self-defense, and its broader tendency to defer to what it sees as the wisdom of the past (when safe storage laws all had implied self-defense exceptions) but not of today. The final part shows how New York State Rifle & Pistol Ass’n has transformed that tendency into a constitutional rule, effectively codifying the doctrinal trend that Heller’s worst holding exemplified. If only Walter were still here to lawyer a way out of the mess
Sovereignty and Dependence in the American Empire: Native Nations, Territories, and Overseas Colonies
Get PDFWhat justifies plenary powers over Native nations, U.S. territories, and overseas colonies? One answer is the text of the Constitution: the Indian Commerce Clause or the Territorial Clause. Another answer is sovereignty under international law. In this Article, I argue that these legalistic explanations overlook a third answer: that political and judicial actors justified plenary powers based on the colonial notion that these so-called dependent peoples were incapable of self-government.
Members of Congress, presidents, federal judges, and territorial governors reconciled republicanism and colonialism in the American empire by constituting Native nations, the territories, and the overseas colonies as dependent peoples. This Article unmasks how the legal framework of colonialism rested on their infantilization, the temporal character of colonial rule, and the pretense that it was for their benefit. Federal rule was justified because they were “wards of the nation,” “in a state of infancy,” or in “political childhood,” waiting to learn how to govern themselves. The Article examines the judicial decisions, political speeches, and academic publications that infantilized these dependent peoples and how tribal and territorial sovereignty was contingent upon an expansive concept of dependency.
The Article is a cautionary tale about redemption through constitutionalism, either judicial constitutionalism (ending plenary powers) or legislative constitutionalism (repurposing plenary powers). Overruling any of the individual cases that legitimized these plenary powers—including United States v. Kagama or the Insular Cases—will not undo colonial dependence or American imperialism. Instead, it will only conceal how the Constitution and the Supreme Court have long been complicit in empire. Constitutional redemption for the benefit of Indigenous peoples and colonized peoples ignores how central dependence and colonialism are to U.S. constitutionalism. Rather than ending or repurposing plenary powers, this Article concludes that only through democratic politics, social movements, and anticolonial solidarities can we undo the dependencies left by colonial rule. The emancipation of dependent peoples will only be possible if democratic decolonization takes precedence over constitutional interpretation
Anti-Patents
Get PDFConventional wisdom has long perceived the patent and tort systems as separate legal entities, each tasked with a starkly different mission. Patent law rewards novel ideas; tort law deters harmful conduct. Against this backdrop, this Essay uncovers the opposing effects of patent and tort law on innovation, introducing the injurer-innovator problem. Patent law incentivizes injurers --often uniquely positioned to make technological breakthroughs--by allowing them to profit from licensing their inventions to competitors. Yet tort law, by imposing liability for failures to invest in care, forces injurers to incur the cost of implementing their own innovations. When the cost of self-implementation exceeds the revenues that may be reaped from patenting new technologies, injurers are better off refraining from developing socially desirable inventions. The injurer-innovator problem remarkably persists under both negligence and strict liability regimes, and in the face of different victim types. Multiple real-world examples demonstrate the extent and pervasiveness of this phenomenon.
To realign the incentives provided by the patent and tort systems, this Essay proposes a new legal construct: anti-patents. While a standard patent grants an inventor the exclusive right to use its invention, an anti-patent creates the converse exclusivity regime: the inventor, and only the inventor, is not required to use the invention. Importantly, anti-patents retain the existing patent protection, allowing injurer-innovators to charge monopolistic prices from competitors but simultaneously eliminating the obstacle created by tort law. An injurer-innovator who owns an anti-patent will enjoy immunity from the heightened standard of care to which the rest of the industry would now be subject. The Essay further shows that the anti-patent mechanism not only succeeds at harmonizing patent and tort law toward the advancement of technological progress but also outperforms alternative schemes employed to stimulate innovation (i.e., prizes, grants, and tax benefits). Finally, it ties the logic that underlies anti-patents to existing doctrines designated to elicit the disclosure of private information
Business and American National Security: A Conversation with Commissioner Crenshaw
No full textDiscussant: Prof. Bobby Bishop, Associate Professor of Law, Duke Law
Speaker: Hon. Caroline Crenshaw, U.S. Securities and Exchange Commissio
Competition and Congestion in Trademark Law
Get PDFTrademark law exists to promote competition. If consumers know which companies make which products, they can more easily find the products they actually want to purchase. Trademark law has long treated “source significance”—the fact that a particular trademark is identified with a particular producer—as both necessary and sufficient for establishing a valid trademark. That is, trademark law has traditionally viewed source significance as the only necessary precondition for a trademark being pro-competitive. In this Article, we argue that this equation of source significance and pro-competitiveness is misguided. Some marks use words that are so closely connected with the product being branded that giving just one firm a monopoly over those words provides that firm with a meaningful competitive advantage—an artificial advantage granted by the state. This problem becomes worse as the number of firms producing (and branding) a type of product increases.
The more words cordoned off by trademark law, the more trouble a new entrant will have in describing or attracting attention to its product. Trademark law is thus being hijacked by strategic firms for anticompetitive purposes. Traditional doctrinal tools are inadequate to address this problem because the goal should be to limit the number of such trademarks rather than eliminate them completely. However, costly screens could be used to impose a form of congestion pricing on trademarks, eliminating them in all but the most worthwhile cases. In this Article, we develop a theory of the anticompetitive nature of certain trademark rules. We then propose a series of overlapping doctrinal rules and costly screens to address the problem of rampant anticompetitive trademarks
Uncreative Designs
Get PDFIt is often said that the standards for patent protection are higher than the standards for copyright protection. Specifically, commentators assert that the copyright requirement of originality is easier to satisfy than the patent requirements of novelty and nonobviousness. And yet, the USPTO regularly grants patents for designs that fall below the low standard of copyright originality set by the Supreme Court in Feist v. Rural. Some may suggest that the existence of these “sub-Feist” design patents is a result of the USPTO abandoning its duty to scrutinize design patent applications. Or they may suggest that it is a result of the Federal Circuit making it more difficult to invalidate designs as anticipated or obvious. This Article argues that sub-Feist designs exist because the standard for “originality” (at least, in the sense of “minimal creativity”) is not really “lower” than novelty or nonobviousness—it’s just different. This has implications for how we think about the law and theory of copyright and patents as well as specific implications for design patent law and practice. Importantly, this suggests that we should take the word “original”—which is also an explicit statutory requirement for design patents—seriously. We should not assume that a design that qualifies, under the Patent Act, as “novel” and “nonobvious” is also “original” under the Feist standard. And if, as the Supreme Court has held, the Feist originality standard is a requirement of the Progress Clause, we should not let applicants use design patents to evade that requirement
The Past as a Colonialist Resource
Get PDFOriginalism’s critics have failed to block its rise. For many jurists and legal scholars, the question is no longer whether to espouse originalism but how to espouse it. This Article argues that critics have ceded too much ground by focusing on discrediting originalism as either bad history or shoddy linguistics. To disrupt the cycle of endless “methodological” refinements and effectively address originalism’s continued popularity, critics must do two things: identify a better disciplinary analogue for originalist interpretation and advance an argument that moves beyond methods.
Anthropology can assist with both tasks. Both anthropological analysis and originalist interpretation are premised on the goal of cultural translation—that is, on rendering holistic worldviews from another time-place intelligible to the translator’s own context. Likewise, both anthropology and originalism often rely on a particular interpretive device—the Reasonable Man (or Reader)—to achieve their translational goals. This Article is the first to recognize the true goal of originalism as applied cultural translation.
But analogizing to anthropology also reveals that originalism’s greatest weakness is political and ethical rather than methodological. Pressing cultural translation into the service of state power is an inextricably colonialist endeavor: it does violence to those against whom translational insights are applied by taming and supplanting their worldviews based on racialized and gendered disparities of power. Nineteenth- and twentieth-century colonizing powers often literally used anthropological research to buttress their authority over colonized peoples. Today, originalist jurisprudence intentionally reinforces the political oppression of historically marginalized groups within the United States by magnifying the views of their historical oppressors. But whereas anthropology can exist independent of its use by political powers, originalism is inseparable from statecraft. By drawing on lessons learned in anthropology, this Article demonstrates that originalist analysis—however methodologically sound—is problematic because it uses the past as a colonialist resource