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Challenging the Challengers: How Partisan Citizen Observers Contribute to Disenfranchisement and Undermine Election Integrity
Get PDFAlmost every state allows political parties to sponsor and train private citizens to serve as election observers and sometimes even to challenge the eligibility of other private citizens to vote. These partisan citizen observers, referred to in this Note as “PCOs,” have far too often perpetuated the racism, disenfranchisement, and discrimination that already plague our democratic processes. While election observers can play a valuable role in preserving and maintaining the integrity of our elections at all levels, existing regulations do not effectively guard against discriminatory or intimidating PCO behavior. This Note analyzes the social and legal harms that may result from improper and illegal PCO activity and offers solutions to the PCO regime that maintain the benefits of citizen oversight of elections while minimizing the potential for intimidation, discrimination, and voter suppression
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\u27s development. For patents, prior art is paramount. An invention can\u27t 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\u27t care if a creative work happens to resemble its predecessors, only that it isn\u27t 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\u27s 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\u27t. 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\u27professional 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\u27t just for patents anymore
Duty and Diversity
Get PDFIn the wake of the brutal deaths of George Floyd and Breonna Taylor, lawmakers and corporate boards from Wall Street to the West Coast have introduced a slew of reforms aimed at increasing Diversity, Equity, and Inclusion (“DEI”) in corporations. Yet the reforms face difficulties ranging from possible constitutional challenges to critical limitations in their scale, scope, and degree of legal obligation and practical effects.
In this Article, we provide an old answer to the new questions facing DEI policy and offer the first close examination of how corporate law duties impel and facilitate corporate attention to diversity. Specifically, we show that corporate fiduciaries are bound by their duties of loyalty to take affirmative steps to make sure that corporations comply with important civil rights and antidiscrimination laws and norms designed to ensure fair access to economic opportunity. We also show how corporate law principles like the business judgment rule do not just authorize, but indeed encourage American corporations to take effective action to reduce racial and gender inequality and increase inclusion, tolerance, and diversity given the rational basis that exists connecting good DEI practices, corporate reputation, and sustainable firm value. By both incorporating requirements to comply with key antidiscrimination laws and enabling corporate DEI policies that go well beyond the legal minimum, corporate law offers critical tools with which corporations may address DEI goals that other reforms do not-—and that can embed a commitment to diversity, equity, and inclusion in all aspects of corporate interactions with employees, customers, communities, and society generally. The question, therefore, is not whether corporate leaders can take effective action to help reduce racial and gender inequality—-but will they
Unauthorized and Unwise: The Lawful Use Requirement in Trademark Law
Get PDFFor decades, the United States Patent and Trademark Office (“PTO”) has required trademark owners to comply with sundry nontrademark laws governing the sale of their trademarked goods and services. Pursuant to this “lawful use requirement,” the Agency has refused or even cancelled registration of thousands of marks used on everything from Schedule I controlled substances to mislabeled soap. This Article subjects the Agency’s lawful use requirement to long-overdue scrutiny. It suggests that in requiring compliance with other laws for registration, the PTO has lost sight of the one statute it is supposed to administer. In the process, the Agency has overstepped the limits of its statutory authority and undermined federal trademark policy. Whether a mark owner has used its mark to sell improperly labeled soap or an illicit drug, the PTO has no mandate, and no convincing policy reason, to deny the owner the substantial benefits of registration. Simply put, the Agency’s lawful use requirement has no place in trademark law
Preliminary Damages
Get PDFHistorically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well-off. In this Essay, we propose a new remedy that can dramatically improve the fortunes of poor plaintiffs and thereby change the errant path of the law: preliminary damages. The unavailability of preliminary damages has dire implications for poor plaintiffs, especially those wronged by affluent individuals and corporations. Resource-constrained plaintiffs cannot afford prolonged litigation on account of their limited financial means. Consequently, they are forced to either forego suing altogether or accept unfavorable and unjust settlements to alleviate their financial plight. Aware of this reality, corporate defendants have an inherent incentive to break the law and then strategically drag on trials in order to force victims who lack the financial wherewithal into unfair settlements. As we show, preliminary damage awards will rectify these distortions. By providing poor victims the financial oxygen they badly need and by eliminating the incentive of rich wrongdoers to drag litigation on unnecessarily, preliminary damage awards will not only level the litigation playfield but will also free up considerable judicial resources
And a Public Defender for All
No full textThe Senate confirmation of Ketanji Brown Jackson to the Supreme Court last week means that she is soon to be the first Supreme Court justice with prior experience as a federal public defender. This is historic in its own right, though it is not quite as surprising on closer inspection, since the institution of the federal public defender — in its currently prevailing organizational particulars, anyway — dates back only to the 1970s. Still, given that several of the justices previously worked as federal prosecutors, Jackson’s confirmation injects a welcome measure of professional balance to the lineup. Moreover, Jackson can rightfully claim the mantle of being the first justice since Thurgood Marshall with meaningful criminal defense experience.
For all of these reasons and many more, Jackson’s ascension is worth celebrating and comports well with the Biden administration’s broader campaign to promote “professional diversity” in the federal judiciary. As she noted during her Senate hearings, this diversity matters to the Supreme Court because “it lends and bolsters public confidence in our system.
AI Derivatives: The Application to the Derivative Work Right to Literary and Artistic Productions of AI Machines
Get PDFThis Article predicts that there will be attempts to use courts to try to broaden the derivative work right in litigation either to prevent the use of, or claim protection for, literary and artistic productions made by Artificial Intelligence (AI) machines. This Article considers the normative valence of, and the (significant) doctrinal pitfalls associated with, such attempts. It also considers a possible legislative alternative, namely attempts to introduce a new sui generis right in AI productions. Finally, this Article explains how, whether such attempts succeed or not, the debate on rights (if any) in productions made by AI machines is distinct from the debate on text and data mining exceptions
A Deep Dive into Private Governance of Deep-Sea Mining
Get PDFModern, information-driven economies need rare-earth metals for everything from laptop computers to cellular phones. Society will require more of these metals for the solar panels, wind turbines, and storage batteries necessary to convert electricity systems to renewable energy. The deep sea contains large amounts of high-quality, rare-earth metals that companies and nations are increasingly interested in mining. The International Seabed Authority (ISA) is authorized under the United Nations Convention on the Law of the Sea (UNCLOS) to permit and regulate deep-sea mining of the sea floor outside of national jurisdiction (the “Area”), and the ISA is currently developing regulations to issue the first contract allowing deep-sea mining. Deep-sea ecosystems are, however, understudied, and their functioning, diversity, sensitivity, and value are poorly understood. As a result, the initial ISA regulations—intended to protect deep-sea ecosystems-—may not effectively address all environmental harms associated with mining in these environments. This Note proposes that private environmental governance mechanisms, like supply chain contracts and credit agreements, can fill regulatory gaps as they emerge or extend regulations into national waters if deep-sea mining commences. Private environmental governance only requires agreement between contracting parties as opposed to the approval of a large, potentially contentious, regulatory body like the ISA. Thus, private contractual requirements can quickly fill gaps in or extend the ISA regulatory regime as new information on the environmental impacts of deep-sea mining emerges. If corporations in the retail, technology, or automobile industry recognize the importance of sustainable rare-earth metal production and consumption, they can contract to either find alternative, recycled sources for their technology or minimize the impact of their operations on the deep sea
Artificial Waterways in International Water Law: An American Perspective
Get PDFFreshwater is a fleeting natural resource that can never be fully harnessed or appropriated by humans. Nonetheless, under both domestic and international law, freshwater is a regulated resource and legal principles have developed to govern its allocation and use. But what of freshwater that, rather than flowing naturally, has been made to so flow by human intervention? Should artificial waterways be subject to the same legal principles that govern the ownership and use of waterways that are naturally occurring?
This Article takes a first step toward clarifying when and how international water law principles applicable to natural transboundary waterways should be applied to artificial transboundary waterways. While the Article focuses on artificial waterways in the international context, it approaches these questions from a domestic water law lens. The Article suggests that general insights may be drawn from the experience of domestic courts in solving water-related problems that exist also at the international level but that international law does not currently address. Specifically, the Article examines the treatment of artificial waterways in American water law as a case study.
The Article first discusses artificial waterways in the international context, examining international court decisions, treaties, and other cross-border regimes relevant to the regulation of transboundary artificial waterways. It concludes that there is no uniform approach in international water law to the treatment of transboundary artificial waterways. The Article then turns to American water law, examines the legal definition of artificial waterways, and identifies two basic principles that have guided American courts in determining the legal status of such waterways: the physical attributes of the artificial waterway and whether it has legally become a natural watercourse. The Article suggests that these two principles could also inform the regulation of transboundary artificial waterways and the resolution of disputes arising from their use, and applies them to the Silala case currently before the International Court of Justice (ICJ)
Money Finds a Way: Increasing AML Regulation Garners Diminishing Returns and Increases Demand for Dark Financing
Get PDFThe cost of anti-money laundering regulations has grown to many billions of dollars, and countries worldwide are increasingly complying with international standards for financial regulation. Yet, the interception rate for criminal proceeds remains under 1 percent. Banks in the United States, United Kingdom, and France continue to engage in unsafe practices, undeterred by legal penalties. Recent US legislation will narrow, but not eliminate, regulatory gaps. The cost of regulation has become so great that banks accept litigation as a cost of doing business or reduce legal exposure by ending relationships in areas of perceived high risk for money laundering; this excludes developing economies from the global financial system, reducing stability. Anti-money laundering should focus on transparency instead of punishment- particularly for clients that need more, not less, access to the financial system-and redirect funds to investment to stop predicate crimes rather than focus inefficiently on laundering