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09. Law School Support List
No full textThe proposal for a law school at UCI received support from leaders across the legal and business community in Orange County
State Immunity as Applied to Colonial Racism and the Japanese Military as Purchaser and Joint Tortfeasor: Case of Korean “Comfort Women”
Full text linkThe redress and reparation efforts for the “comfort women” of the Japanese military during the Pacific War have been hampered in their home countries by the state immunity doctrine. In this article, we first evaluate the current state of jurisprudence on state immunity doctrine, especially as expressed in the seminal 2012 ICJ decision in Ferrini. We find there that the concept of “armed forces” has been commandeered to bolster the strict application of state immunity and evaluate such usage of the categories such as “armed conflicts” and “armed forces.” We note that full legal analysis under the state immunity doctrine, namely, that of the putative exception of “territorial torts,” was cut short by the court upon their findings on the elements of “armed conflicts” and “armed forces.” For subject matter relevance, the less well-known 2007 Hwang Geum Joo decision of a US court that applied similar reasoning to the “comfort women” in interpreting the American codification of the state immunity doctrine, is also evaluated against the pre-existing U.S. jurisprudence on “commercial activities.” We find that the Ferrini decision and the current jurisprudence of customary international law as informed by the relevant American precedent carefully circumscribes itself and thereby leaves intact the potential availability of two actus jure gestionis exceptions to state immunity— private civil or commercial act”—for the “comfort women”: “territorial torts” and “commercial activity.”
The Japanese military, as the end-customer of “comfort services,” solicited, procured, and paid for ‘comfort services’ to reduce the cost of the war. These private legal acts incentivized the private contractors into recruiting Korean women, already impoverished under colonial racism, by deceit, and into treating the Korean women thus recruited harshly and inhumanely during the “comfort services.” Throughout the relevant periods, despite the Japanese military’s acts of “armed forces during an armed conflict” or any other sovereign act or governing act with respect to “comfort women,” it is undeniable that it set the specifications of the services to be delivered, exercising its prerogative as the end-customer and primary contractor. It is in this role as a joint tortfeasor in the “territorial tort” of fraudulent human trafficking and as a purchaser in the “commercial activity” of purchasing “comfort services” that the modern Japanese government should be held accountable in a Korean court of law in line with the exceptions to state immunity doctrine
Solving the “King Lear Problem”
Full text linkIn Shakespeare’s play, King Lear, an aging ruler relinquished control to two of his three daughters. The succession failed miserably, destroying his family and destabilizing his kingdom. King Lear shows why few family businesses survive beyond three generations. Understanding Lear’s failure is crucial to avoiding Lear’s fate, whether the family business in question is a monarchy, a media empire, or a hardware store. The conventional wisdom is that Lear gave away his kingdom too soon and left himself vulnerable to predatory heirs. This has been referred to as the “King Lear Problem.”
The conventional wisdom is wrong. Lear’s succession plan failed because he waited too long. Like Lear, those who control family businesses are often reluctant to step aside. For example, until he was well into his nineties, Sumner Redstone declared that his succession plan was to never die. The predictable consequence was litigation that engulfed the companies he controlled, including CBS and Viacom. Yet, despite its importance, the question of family-business succession has been neglected by legal scholars. Using King Lear as a framing device, this Article identifies obstacles to succession and shows how legislative initiatives, judicial intervention, and private ordering can facilitate the timely transfer of ownership and control across generations
An Empirical Study of Copyright’s Substantial Similarity Test
Full text linkThe substantial similarity test is copyright law’s dominant means by which courts determine whether a party has infringed another party’s copyright rights. Despite this, we have very little empirical evidence about what the test is and how courts apply it. To date, only a few empirical studies exist, and these are limited in several important ways, including with regards to scope, time periods covered, and volume of opinions. Mostly, courts, commentators, and scholars rely on anecdotal accounts of the test in both their conceptualizations and critiques of it.
To help provide a clearer empirical assessment of the test, this study examines a random sample of over 1,000 substantial similarity opinions issued between 1978 and 2020. This study covers opinions from district and appellate courts in every circuit and tracks a number of these opinions’ characteristics. These characteristics include: the subject matter and copyright rights in dispute; procedural posture; opinion date; the subtests, expert evidence, and copyright limitations used in the opinion; the sources of authority that courts rely on in their opinions; and outcomes for each part of the test and the case overall.
This review reveals a number of important findings. First, similar to other types of copyright litigation, courts in the Second Circuit and Ninth Circuit dominate the substantial similarity space, with the Ninth Circuit more recently displacing the Second Circuit as the primary venue for substantial similarity cases. Courts also rely on opinions from these two circuits more than any other source in interpreting and applying the substantial similarity test. Second, courts typically spend little time assessing whether a defendant actually copied from the plaintiff’s work. Courts mostly decide this first prong of the substantial similarity test as a matter of whether defendants had access to the plaintiff’s work, and they mostly favor plaintiffs on this question. Courts rarely rely on expert evidence or assess the two works’ similarities on this first prong, despite courts and commentators frequently opining otherwise. Third, the second part of the test, where courts assess whether the defendant’s copying amounts to improper appropriation, is characterized by significant heterogeneity. No dominant means exists for resolving this question, and, in any given opinion, a court typically uses multiple subtests and copyright limitations to decide this inquiry. Courts also use expert evidence more frequently under this prong of the test than the first part, a result that defies conventional wisdom. Finally, defendants win substantial similarity cases slightly more frequently than plaintiffs. This is further evidence that prong one of the test, where plaintiffs enjoy significantly greater success, appears to be largely inconsequential. The data also suggest that one of the keys to winning, for either defendants or plaintiffs, is the extent to which the court engages with and discusses copyright limitations.
We conclude by considering several implications. First, courts should maintain the two traditional prongs of the substantial similarity test as distinct and reinvigorate their assessments of similarity under the first prong of the substantial similarity test. Second, courts should make discussing and applying any relevant copyright limitations the heart of their prong two analyses to ensure that copyright law serves its constitutional purposes
“Reel-Life” Versus “Real-Life” Survival: Filmic Domestic Violence and the Restorative Approach
Full text linkThis Note presents the first interdisciplinary scholarship analyzing the depiction of domestic violence in commercial feature film as a means of understanding the legal rights and remedies afforded survivors. I trace domestic violence law across various cultural movements and filmmaking stages, demonstrating that “reel-life” domestic violence reflects and informs the legal remedies afforded or withheld from “real-life” domestic violence survivors. Since the 2000s, independent films have depicted more accurate representations of domestic violence, promoting restorative justice policies that hold the most promise for survivors. Ultimately, these reflections call Hollywood to action. After all, film—unlike the American legal system—has transformative power, borne of its unique ability to transport viewers from physical reality, force audiences to question expectations, reshape attitudes, and envision a world different from—and undeniably better than—existing legal precedent affords
Women and M&A
Full text linkCorporations, law firms, and investment banks all state that diversity matters. This Article shows that there is a chasm between discourse and action. For the most important decisions undertaken by companies—large merger and acquisition (M&A) transactions—a gender gap persists. This Article provides a holistic examination of the network of lead actors involved in M&A, revealing that women’s leadership opportunities continue to be vastly unequal. Using hand-collected data from 700 transactions, this Article reveals that thirty years after women began to account for almost half of all law students, gender parity in M&A leadership lags far behind. To illustrate, over a seven-year period, women make up on average 10.5% of lead legal advisors for buyers in large M&A deals. Moreover, this Article documents the lack of transparency on leadership data for other players in M&A. This Article argues that understanding, documenting, and disclosing the gender gap in M&A leadership is critical for increasing accountability and for determining the solutions that may work to reduce such disparities
Neoliberal Civil Procedure
Full text linkThis Article argues that the current era of U.S. civil procedure is defined by its neoliberalism. The Supreme Court has over the past few decades reinterpreted the Federal Rules of Civil Procedure in ways that have made it more difficult for citizens to bring and maintain civil claims. The major decisions of this new era—in areas as diverse as summary judgment, pleading, class actions, and arbitration—exhibit neoliberal hallmarks. They display neoliberalism’s tendency to naturalize existing market arrangements, its focus on efficiency and obscuring questions of power, its reduction of citizens to consumers, and its attempt to analyze government through the lens of market-modeled concepts. As the Court’s procedural decisions make it increasingly difficult for citizens to bring claims enforcing regulatory law—including antitrust, antidiscrimination, consumer protection, and worker protection laws—the Court’s neoliberal orientation lurks in the background and helps to explain procedure’s modern progression. In order to fully appreciate, critique, and potentially move beyond the current era of U.S. civil procedure, it is important to understand the neoliberal logic that drives it, as well as the logics and values it obscures and sidelines
Pay-to-Playlist: The Commerce of Music Streaming
Full text linkPayola—sometimes referred to as “pay-for-play”—is the undisclosed payment, or acceptance of payment, in cash or in kind, for promotion of a song, album, or artist. Some form of pay-for-play has existed in the music industry since the nineteenth century. Most prominently, the term has been used to refer to the practice of musicians and record labels paying radio DJs to play certain songs in order to boost their popularity and sales. Since the middle of the twentieth century, the FCC has regulated this behavior—ostensibly because of its propensity to harm consumers and competition—by requiring that broadcasters disclose such payments.
As streaming music platforms continue to siphon off listeners from analog radio, a new form of payola has emerged. In this new streaming payola, musicians and labels simply shift their payments from radio to streaming music platforms like Spotify, YouTube, TikTok, and Instagram. Instead of going to DJs, payments (or their equivalents) go to platforms, third-party playlisters, and influencers who can help promote a song by directing audiences toward it. Because online platforms do not fall under the Federal Communications Commission’s (FCC’s) jurisdiction, streaming pay-for-play is not currently regulated at the federal level, although some of it may be subject to state advertising disclosure laws.
In this Article, we describe the history and regulation of traditional forms of pay-for-play and explain how streaming payola practices differ. Our account is based, in substantive part, on a novel series of qualitative interviews with music industry professionals. Our analysis finds the normative case for regulating the most common form of streaming payola lacking: contrary to conventional wisdom, we show that streaming pay-for-play paid to third parties, whether disclosed or not, likely causes little to no harm to consumers and may even help independent artists gain access to a broader audience. The case of “reverse payola,” in which a platform itself offers promotion in exchange for paying out a lower-than-market royalty rate, is potentially more concerning. Given this state of affairs, regulators should proceed with caution to preserve the potential advantages afforded by streaming payola while avoiding further exacerbating extant inequalities and anticompetitive concerns in the music industry
Separating Church and Market: The Duty to Secure Market Citizenship for All
Full text linkThis Article intervenes in the debate concerning the conflict between religious liberties and LGBTQ rights. Strictly focusing on the market, it makes three salient contributions. First, it reveals the appearance of a preemptive legal strategy that has started to generate unprecedented jurisprudence in lower courts. This latest shift is the peak of an ecopolitical practice called “market evangelism,” which the Article defines as the organized project that uses market activities, entities, and tools to evangelize society by excluding LGBTQ parties from the marketplace. Second, the Article adds to the current understanding of the harm that market evangelism inflicts. It depicts the recent concerted efforts to conceal the damage and explains market evangelism as an intentional effort to humiliate LGBTQ people, causing intense and enduring emotional harm that spreads from LGBTQ individuals to their entire community. Third, the Article proposes an original resolution particularly tailored to the market. It argues that business activity that relies on corporations and contracts must include a duty to serve all—an obligation that flows from what the Article conceptualizes and coins as “market citizenship.” Significantly, the proposal goes beyond adding strong arguments for the necessary passing of the Equality Act. It further includes a novel call to utilize private law, namely corporate law and contract law, to bar market evangelism and secure full market citizenship for all