LARC Cardoso Law (Yeshida Univ)
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Livestream of Supreme Court Oral Argument: Trump v. Anderson
Get PDFhttps://larc.cardozo.yu.edu/flyers-2023-2024/1087/thumbnail.jp
Open Source Perfume
Get PDFPerfume is a powerful art and technology, but its secrets are closely held by a privileged few by some counts, there are more astronauts than there are perfumers. As critics have noted increasingly since 2020, those select few perfumers often share similar backgrounds. The Western perfume industry prizes perfumers with elite pedigrees, which often precludes marginalized perfumers. It also perpetuates non-Western cultures, that push some marginalized perfumers into teaching themselves perfumery. But teaching oneself through recreating and remixing existing fragrances presents a different challenge. As interviews with American, British, and French perfumemakers reveal, intellectual property (IP) plays a complicated role in perfumery. Some aspects of scents, like colors and odors, remain unsettled but likely fall into the negative space left by trademark and copyright law. Others, like molecules and formulas, are protected by IP that rarely deters competitors but effectively prevents aspiring perfumemakers from creating and sampling scents. The free culture movement addressed similar problems in other industries by championing creativity with limited or no IP, but the perfume industry has remained largely untouched.
Drawing on work by perfumer and educator Saskia Wilson-Brown, this Article suggests that perfumery is overdue for a transformation. One is emerging: open source perfume. Open source perfumes allow anybody to replicate or reimagine fragrances, which empowers aspiring perfumemakers and the public to practice perfumery. It’s simple. Crafting an open perfume requires releasing public, operationalizable documentation about the scent, including its ingredients and where to purchase them. Existing open source licenses feature terms that enable perfumemakers to reject or limit IP rights in aspects of their perfumes. For those seeking ways to share scents and signal commitment to democratizing perfumery, this Article draws on personal experience to pioneer the use of open source hardware certification which extends the open source ethos into tangible products, broadly calles “hardware,” and provides provides additional infrastructure for forfeiting rights in branding, works, components, and know-how to share scents that are made to be sampled. Together, these interventions can fuel fragrances that are free: free to make, free to sample, and free from gatekeeping. Open perfume ought to be the next free culture frontier, and this Article helps chart a course toward its expansion
Digital Footprints: Technology, Race, and Justice
Get PDFData aggregation is ubiquitous. To widen credit access, lenders now use nonconventional sources of personal technological information to measure borrower creditworthiness. Alternative data credit scoring is touted as a useful solution for borrowers with little or no credit history or “thin credit files.” The supposedly neutral algorithm provides a predictive analysis of the borrower’s ability to repay, thus allowing the borrower to obtain credit within the formal banking network.
Alternative data has the potential to expand access to financial services for underserved populations and make credit markets more competitive. Machine learning, or predictive behavioral analytics, collects and sorts the borrower’s social and business network identity data to assess their risk. The lender’s perception (and assessment) of tangible factors such as, educational level, internet browsing history, social media associations, health status, past and current employment, or even movies, all become relevant in assessing the borrower’s repayment of credit. Proponents argue that this digital footprint of an individual’s personal networks, choices, and habits is fairer, more transparent, or even “color‑blind,” reducing discrimination in the decision-making process.
The algorithmic formulae and machine learning models that produce digital footprint technologies are protected as trade secrets. Regulators routinely evaluate lenders for compliance with fair lending laws. Lenders, however, assert trade secret protections to shield their algorithmic scoring models. By directing, adopting, and using technologies created in-house or purchased from private companies, these lenders may intentionally or unintentionally obscure discriminatory conduct. How, then, do regulators determine if digital footprint algorithms fairly assess creditworthiness? What if the underlying data of the algorithm is incomplete or implicitly biased? What if a lender impermissibly designs the digital footprint algorithm to segment markets in legally prohibited ways, thereby perpetuating credit inequality? This Article questions lenders’ broad ability to keep secret the alternative data relied upon and offers policy recommendations for regulating this new world of digital footprint algorithmic scoring.
This Article makes three contributions to the existing literature. First, it shows how the lender’s choice of alterative data and its interpretation of that data may result in technological redlining in violation of existing fair lending laws. Second, the Article participates in the ongoing critical race theory debate about algorithmic bias and how law and technology must combine to create algorithmic justice. Specifically, it posits that failure to police algorithms for bias prior to their use can contribute to systemic discrimination in lending.
Third, the Article proposes protections for consumers’ algorithmic network identities and recommends policies that regulators are uniquely positioned to implement. It recommends a specific, transparent lending disclosure when lenders use algorithmic network identity data. Unlike in the European Union, American consumers may be unaware that a lender has used alterative data in its creditworthiness evaluation. Lenders should disclose when alternative data has been used and how it is used. Similar to other areas of law where prophylactic antidiscrimination measures are appropriate, the history of redlining and sub-prime lending in minority communities dictates a similar control in this context. Consequently, a lender will bear the burden of ensuring fairness before the lending process begins instead of providing the individual with an ineffectual post hoc remedy
Modular Bankruptcy: Toward a Consumer Scheme of Arrangement
Get PDFIn the world of cross-border corporate insolvency, those in the know are familiar with the increasingly popular scheme of arrangement, the British quasi-reorganization procedure that allows a company to restructure some, but not all, of its debt. The typical scheme effects a corporate balance sheet reshuffling by supermajoritarian approval (and judicial “sanction”) but often leaves other debt, such as the trade, untouched. A key conceptual component of the scheme mechanism is its intentional modularity, called by some its “selectivity.” It does not require a comprehensive reckoning of all claims against a given debtor, only some. The scheme has proved popular—so popular, in fact, that corporate bankruptcy market share–grabber Singapore introduced scheme-like procedures in its most recent overhaul of its insolvency system. Indeed, some wags have pronounced it the Decline and Fall of Chapter 11.
Yet our European friends have struggled with how to assess the scheme legally. Formally, it originated outside insolvency law. It does not appear in Annex A of the EU Insolvency Regulation (which houses the “insolvency proceedings” entitled to automatic recognition), although it has been adjudicated by some courts to constitute an “insolvency proceeding” for purposes of, for example, the Lugano Convention and the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Cross-Border Insolvency. The reason for this tension arises from the deep-seated understanding in the restructuring world that one foundational pillar of what it means to be a “bankruptcy” law is that the legal intervention should be comprehensive and address all circumstances of general financial default, with its attendant collective action challenges. Talk of a “partial” bankruptcy proceeding may strike many well-socialized insolvency professionals as simply nonsensical. And yet the scheme persists; if anything, its ascendancy reveals its Darwinian staying power from market demand.
Less attention—no attention, really—has been devoted to the potential applicability of the corporate scheme of arrangement to the consumer side of bankruptcy. This Article seeks to fill that gap. Specifically, this Article suggests that the intentional modularity of the scheme procedure may well be transplantable to the world of consumer debt readjustment. Such a transplant would be far from effortless. Consumer bankruptcy raises different policy concerns, implemented through different doctrines, from those raised by corporate reorganization, including such issues as, inter alia, discharge, priority, and abuse-prevention. In addition to these consumer-specific policy concerns, implementation of a consumer scheme would raise questions flowing from the attempt to resolve only part of a consumer’s financial distress. Unpacking a seeming premise of the primary extant consumer provisions of the U.S. Bankruptcy Code (Chapters 7 and 13)—that all the individual debtors’ debts will be settled and their creditors’ rights functionally extinguished—would necessarily require difficult consideration of how to address the differential treatment of secured and unsecured debt in a modular proceeding. For example, in the realm of secured debt, assets in which the debtors had equity would have to be treated differently from assets in which the debtors had no equity (and, indeed, a sizable deficiency), depending on the scope of the “partial” bankruptcy estate. Each of these challenges could be overcome, albeit doubtless with differing degrees of satisfaction, in considering a modular system of consumer bankruptcy inspired by the modern usage of the British scheme.
This Article will proceed as follows. First, it will briefly canvass the major current theories of the consumer bankruptcy system to extract some conceptual foundations necessary to appraise critically the proposal for a consumer scheme. Second, it will describe the UK scheme of arrangement and its unique approach to debt adjustment, as well as examining the empirical and normative case for selective consumer relief. Third, it will outline what a consumer scheme would look like, with a focus on asset-based relief, using a proposed “car scheme” as an explanatory prototype. Fourth, it will consider in some detail the serious normative, constitutional, and doctrinal challenges to how a consumer scheme would address such issues as deficiency claims for undersecured debt and surplus equity for oversecured debt. Finally, this Article will conclude and discuss a current legislative proposal to overhaul the bankruptcy system to gauge compatibility with the scheme proposal. In doing so, this Article will argue that a consumer scheme is not just possible but desirable to accord consumers the same heterogeneity benefits of lower-cost debt relief enjoyed by their corporate insolvency peers
The Bauer Lecture with Judge Asim Rehman
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Reforming Informed Consent to Include Comprehension: A Proposal to Promote Equity in Medical Decision-Making
Get PDFThe ethical goals of the legal doctrine of informed consent are lofty. The law requires that clinicians explain the risks, benefits, and alternatives of proposed treatments to patients, and to respect patient autonomy through voluntary, informed medical decisions aligned with individual values and preferences. Yet in practice, patients often struggle to comprehend the risks and alternatives of a proposed medical intervention. Since investigators began analyzing the sufficiency of informed consent, it has been recognized that the current rules, which focus solely on clinical disclosures, are inadequate in addressing disparities associated with education, race/ethnicity, and age. Despite technically “adequate” disclosures under the legal doctrine of informed consent, patients may consent to major procedures with little substantive grasp of the risks. Shifting the law’s emphasis from disclosures alone to disclosure and comprehension will better align the ethical goals of informed consent with the legal rules that govern it
