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Deliberately Indifferent: Institutional Liability for Further Harassment in Student-on-Student Title IX Cases
Get PDFSexual harassment is an unfortunate problem far too many have experienced. Universities and other educational institutions owe a duty, both legal and moral, to protect students from sexual harassment, and in turn to allow students to receive the full benefits of their education. But a circuit split has limited students\u27 ability to hold educational institutions liable. This circuit split results in the absurd scenario where an individual must experience sexual harassment more than one time to hold their educational institution liable. This Note attempts to fix that by proposing Title IX (the law governing sexual harassment at educational institutions) adopt the hostile work environment analysis from Title VII (an employment law statute) in further harassment claims. This solution balances the interests of students in receiving the full benefits of their education in a safe environment with the interests of educational institutions to not be held liable for issues these universities may not know exist
Honoring the Public Trust: Curbing the Bane of Physician Sexual Misconduct
Get PDFThe Federation of State Medical Boards defines physician sexual misconduct as any behavior that exploits the physician-patient relationship in a sexual way. Although several attempts have been made in recent years to clarify its incidence in the United States, physician sexual misconduct is almost certainly underreported. Physician sexual misconduct represents a severe and irreversible violation of the compact underlying the patient–physician relationship and can have far-reaching consequences on the lives of patients and their families. In addition, the credibility of and trust in physicians, both essential to the provision of medical care, could well erode in the eyes of the public at large if egregious cases of physician sexual misconduct are perceived as having gone unpunished. Although all physician licensees accused of sexual misconduct are entitled to the presumption of innocence and due process, complaints made by patients must be taken seriously and vigorously pursued. In this article, we discuss the ongoing challenge of physician sexual misconduct and provide recommendations to improve its reporting and curb its incidence
Dynamic Corporate Purpose: Decentralizing the Choice over Director Orientation
Get PDFThe debate over corporate purpose has turned into a “gordian knot” where parties with entrenched beliefs about what the corporation should or should not be within society refuse to waver. There are inherent flaws with the governance models proposed by academics, politicians, and practitioners alike, so a novel method for setting and maintaining corporate purpose is required. This Note asks why there must be a one-size-fits-all approach to purpose and proposes a solution: dynamic corporate purpose.
This Note argues that states should not mandate all corporations hold the same corporate purpose but instead should use the logic of the public benefit corporation structure that allows for the firm to select its own purpose. By decentralizing corporate purpose, states like Delaware can leverage the economic advantages of shareholder primacy while also giving corporations flexibility to provide greater public benefits. States can harness the advantages of stakeholder capitalism without sacrificing the accountability and clarity of shareholder primacy. Exposing corporate purpose to market forces uses natural tension points to avoid traditional pitfalls of stakeholder-focused models-—this is the power of dynamic corporate purpose.
To do so, this Note first discusses the historical evolution of the debate between shareholder primacy and stakeholder governance before analyzing the advantages and disadvantages of existing and proposed governance mechanisms. Dynamic corporate purpose fills this gap in an effort to minimize the disadvantages of existing mechanisms to provide the state with a model for economic and societal success
Authoring Prior Art
Get PDFPatent law and copyright law are widely understood to diverge in how they approach prior art, the universe of information that already existed before a particular innovation’s development. For patents, prior art is paramount. An invention can’t be patented unless it is both novel and nonobvious when viewed against the backdrop of all the earlier inventions that paved the way. But for copyrights, prior art is supposed to be virtually irrelevant. Black-letter copyright doctrine doesn’t care if a creative work happens to resemble its predecessors, only that it isn’t actually copied from them. In principle, then, outside of the narrow question of whether someone might have drawn from a preexisting third-party source, copyright infringement disputes would seem to have little doctrinal use for prior art.
But that principle turns out to be missing a big part of what’s actually going on in copyright litigation today. In this Article, we identify a surprising trend: parties in cases involving music are increasingly discussing anticipatory earlier works, and judges are increasingly holding it against them if they don’t. The concept of prior art, once for inventors only, is now for authors, too.
A major cause for this change, we argue, is the influence of a small cadre of expert witnesses. We interviewed several of the most active experts in music copyright disputes, and we analyzed dozens of reports that they have filed over the last two decades. Our data revealed a group that has been focused on authorial prior art since well before the courts were. These experts’ professional self-understanding, moreover, diverges sharply from the traditionally limited role that experts are supposed to play in evaluating copyright infringement. They view prior art research as a major part of their job. And for many of them, that research is important not just because it can sift between copying and independent creation, but also because it informs their normative view of what expression deserves legal exclusivity in the first place. Because of this expert community, prior art isn’t just for patents anymore
Co-Authorship Between Photographers and Portrait Subjects
Get PDFCopyright law provides that when two or more authors create a single work with the intent of merging their contributions into inseparable or interdependent parts of a unitary whole, the authors are considered joint authors. For photographic works, judicial precedent establishes that the creative contributions necessary to support a copyright claim include the author’s choices concerning elements such as lighting, pose, garments, background, facial expression, and angle. In many visual works, however, those creative elements are determined not solely by a photographer, but also by the subject, who can sulk or smile, stand with good posture or stoop, and be situated in full light or obfuscated by shadow, among many other options. A subject’s rights in photographs have not been fully explored. The Supreme Court avoided deciding the issue more than a century ago. Today, paparazzi and celebrities make high-stakes legal assertions about copyright infringement and fair use through litigation.
Certain portrait photographs of an individual person may be works of joint authorship, the co-authors being the photographer and the subject. While it is established across the globe that photographs merit copyright protection, and that the rights in a photograph generally vest in the photographer, it is a mistake to allow the authorial inquiry into every photograph to end there. Copyright law is accustomed to doing the hard work of specific factual analysis; its fair use doctrine requires such scrutiny, and an apportionment of joint authorship should be no different. The construction of joint authorship is legally flexible, at least in the manner that it is codified. This Article proposes making better use of a framework that already exists in US copyright law. No legislative change is necessary, but courts’ current interpretation of joint authorship requires recalibration to permit more flexibility. Such a stance will more accurately reflect how creative people work together and will bestow rights more fairly and on creative parties, which will sometimes include photographic subjects
A Compulsory Solution to the Machine Problem
Get PDFArtificial Intelligence (AI) is already disrupting and will likely continue to disrupt many industries. Despite the role AI already plays, AI systems are becoming increasingly powerful. Ultimately, these systems may become a powerful tool that can lead to the discovery of important inventions or significantly reduce the time required to discover these inventions. Even now, AI systems are independently inventing. However, the resulting AI-generated inventions are unable to receive patent protection under current US patent law. This unpatentability may lead to inefficient results and ineffectively serves the goals of patent law.
To embrace the development and power of AI, Congress should grant patents, subject to a compulsory license, to AI-created inventions. Though the AI systems themselves do not need the same incentive that a human or corporation does to engage in the inventorship process, the prospect of patent protection can encourage the use of AI in the first place. AI is already a valuable tool in the innovative process, and its power may only grow with increased sophistication. Because US patent law seeks to incentivize innovation, its goals are best served by embracing AI inventorship
Data Transfers after Schrems II: The EU-US Disagreements over Data Privacy and National Security
Get PDFIn the long-awaited Schrems II decision, the Court of Justice of the European Union (CJEU) took a radical, although not an unexpected, step in invalidating the Privacy Shield Agreement, which facilitated data transfers between the European Union and the United States. Schrems II illuminates long-lasting international disagreements between the EU and the United States over data protection, national security, and the fundamental differences between the public and private approaches to the protection of human rights in the data-driven economy and modern state. This Article approaches the decision via an interdisciplinary lens of international law and international relations and situates it in a broader historical context. In particular, I rely on the historical institutionalist approach, which emphasizes the importance of time and timing (also called sequencing) as well as institutional preferences of different actors to demonstrate that the Schrems II decision further solidifies and cements CJEU\u27s principled approach to data protection, rejecting data securitization and surveillance in the post-Snowden era. Schrems II aims to rebalance the terms of international cooperation in data sharing across the Atlantic and beyond. It is the outcome that US tech companies and the government feared. Yet, they are not the only actors displeased with the decision. An institutionalist emphasis illuminates that the EU is not a monolithic block, and that the Schrems II outcome is also contrary to the strategy and preferences of the EU Commission. The invalidation of the Privacy Shield will now (again) require either a reorientation of EU policy and priorities or an accommodation of the institutional preferences of its powerful political ally-the United States. The CJEU decision runs counter to the European Data Strategy and places a $7.1 trillion transatlantic economic relationship at risk. Historical institutional analysis suggests that structural changes in the US legal system to address the inadequacies in the Schrems II judgment are unlikely. Therefore, the EU Commission will act quickly to create a solution-another quick, contractual fix -to accommodate US exceptionalism and gloss over the decades of disagreement between the EU and United States over data protection, national security, and privacy. When two powerful actors are unwilling to change their institutional preferences, contracting out the protection of human rights in international law is the most convenient option
A Regulatory Scheme for the Dawn of Space Tourism
Get PDFToday, companies like Blue Origin and Virgin Galactic have successfully launched paying customers into space, forging the future of the space tourism industry. While a growing space tourism industry promotes scientific advancement and opens an activity once reserved for trained astronauts to the public, the industry generates new issues and reveals the vulnerabilities of international space law. This Note explores the history of commercial spaceflight and the international agreements that comprise the current legal regime. It argues that space tourism presents a need for a new international agreement to address three vulnerabilities in the current international regime: environmental protections, protections for space tourists, and regulations for commercial spaceflight companies. This Note draws on the examples of the Antarctic Treaty System, the Treaty for Amazonian Cooperation, and the United Nations Convention on the Law of the Sea to show how this new international agreement can successfully balance promoting the growth of commercial spaceflight while ensuring the environment and passengers are adequately protected
Trump v. TikTok
Get PDFHow did a Chinese big tech company beat the president of the United States? When then-President Donald Trump sought to ban TikTok, ostensibly because of its Chinese roots, US courts came to TikTok\u27s rescue. Rather than deferring to the president\u27s claims of a national security emergency justifying the ban, courts held that the president lacked statutory authority to ban TikTok. This Article chronicles the Trump administration\u27s attempt to either ban TikTok or to compel its sale to a very American company, preferably one led by a political ally. The TikTok affair thus demonstrates what Harold Koh calls the National Security Constitution at work-with courts and Congress checking and balancing the president even with respect to foreign relations and national security
Cross-Examination of Witnesses in Chinese Criminal Courts: Theoretical Debates, Practical Barriers, and Potential Solutions
Get PDFQuestioning witnesses is essential for both fact-finding and ensuring the defendant\u27s right to confrontation in criminal trials. Part I introduces the recently released judicial interpretation on the Application of Criminal Procedure Law by China\u27s Supreme Court as a background for discussion of this Article. In Part II, the author sets the stage by arguing that resolution of questions concerning examination and cross-examination of witnesses is essential to the effective achievement of China\u27s trial-centered criminal procedure law reform. In Part III, a historical review is given of the academic debate on the questioning of witnesses in Chinese criminal courts. Part IV examines and evaluates China\u27s current legislation on cross-examination of witnesses. By comparing the Chinese legal provisions with the Anglo-American cross-examination rules, the author argues that China has not formally established cross-examination rules, but that there are some existing provisions that nevertheless regulate or guide cross- examination. In Part V, the author discusses her empirical findings about the questioning of witnesses in Chinese criminal courts. Features will be summarized, and problems identified. In Part VI, some proposals are put forward to create a set of cross- examination rules suited to the Chinese situation. Part VII concludes this Article by reiterating the author\u27s key arguments