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Infinite Archives, Infinite Possibilities: Learning Research and Databases with Archive of our Own
Full text linkThis article will discuss the importance of acknowledging the information practices of subcultural groups within library instruction and fostering an inclusive learning environment with the implementation of a workshop by comparing research databases with the popular fanfiction website, Archive of Our Own. By incorporating AO3 into library instruction, students’ interests and prior experiences were engaged by utilizing the principles of subcultural capital. The workshop utilized students’ knowledge of information searching from their personal lives and their interests to highlight similarities with academic research using examples such as filters, keywords, and author searching. This allowed students to develop skills to search precisely for materials in a familiar environment. Further, the success of the workshop demonstrates how librarians can incorporate fan’s informational behaviors, and access practices into instructional content about research and database usage, making research less intimidating and more accessible to students
Nonobvious Design
Full text linkTo earn patent protection, a claimed product design must be “nonobvious.” Yet while nonobviousness has been described as “the heart” and “cornerstone” of the utility patent system, in the design patent context, the term has become next to useless. Instead of actually policing nonobviousness in design, modern courts grant patent rights to any work that is not an exact replica of another. The problem, judges maintain, is that comparing one visual design against another demands the use of aesthetic judgment and aesthetic judgment is an instinctual, subjective process incapable of legal definition. Recent neuroscientific studies of aesthetic judgment dispel some of the mystery surrounding perception of industrial design. These studies show, contrary to longstanding judicial assumptions, that design innovation tends to reduce visual enjoyment. We prefer the “aesthetic middle”: the range of designs comprised of not the avant-garde or the tried and true, but something in between. New insight into the functioning of the aesthetic middle shows the need for a reevaluation of the nonobviousness standard and offers guidance for returning the standard to its former place as a meaningful limit on design patent protection
From Scanner to Court: A Neuroscientifically Informed “Reasonable Person” Test of Trademark Infringement
Full text linkMany legal decisions center on the thoughts or perceptions of some idealized group of individuals, referred to variously as the “average person,” “the typical consumer,” or the “reasonable person.” Substantial concerns exist, however, regarding the subjectivity and vulnerability to biases inherent in conventional means of assessing such responses, particularly the use of self-report evidence. Here, we addressed these concerns by complementing self-report evidence with neural data to inform the mental representations in question. Using an example from intellectual property law, we demonstrate that it is possible to construct a parsimonious neural index of visual similarity that can inform the reasonable person test of trademark infringement. Moreover, when aggregated across multiple participants, this index was able to detect experimenter-induced biases in self-report surveys in a sensitive and replicable fashion. Together, these findings potentially broaden the possibilities for neuroscientific data to inform legal decision-making across a range of settings
The Scope of Generic Choice of Law Clauses
Full text linkNon-proceduralists have the perception that questions of jurisdiction or choice of law are just preliminary issues that need to be dealt with before getting to the real dispute, the things that matter. What they do not realize is that these preliminary issues are often, themselves, the real dispute. They are the lever which permits litigation to proceed or which stops a claim dead in its tracks. Thus, these procedural matters — often dismissed as technicalities — have the potential to shape the dispute in significant ways.
Take for instance, a staple of commercial and consumer contracting: the ubiquitous choice of law clause. The choice of law clause in a contract usually does not matter. Until, of course, it does. When claims are viable under the law of one jurisdiction and not viable under the chosen law, the choice of law clause matters a great deal. Litigants now have the opportunity to craft a legal argument based on just a handful of words. How a court interprets these words will determine whether the gateway will be opened for litigants to advance their claims or whether they will, literally or figuratively, be sent home.
The interpretation of choice of law clauses normally proceeds according to customary principles of contractual interpretation. For the most part, courts are on the same page when it comes to interpreting clauses that do not leave much wiggle-room — e.g., clauses that provide that “all disputes arising from or related to the contract will be governed by [x] law.” Where things get dicey is where parties have agreed to a generic choice of law clause. A generic choice of law clause is one that provides that “the contract” will be “governed by” or “subject to” the chosen law. Here, there is a split of authority on how to interpret such language. Some courts hold that a generic choice of law clause should be interpreted narrowly. That is, the parties’ chosen law should be applied to contractual claims and contractual claims only. By contrast, come courts interpret a generic choice of law clause in the polar opposite way. These courts hold that the parties’ chosen law should apply to any and all disputes between the parties, including, for instance, tort and statutory claims.
This Article examines this interpretative debate and sides with those courts that interpret generic choice of law clauses narrowly. It examines in detail the textual arguments in support of such an interpretation and advances arguments in favor of the textual approach that courts have not considered. It also engages with the broad approach on the merits, arguing that the assumptions underpinning such an approach are questionable at best, and flawed at worst.
While this is an Article that zooms in to the granular details of the technicalities, it does so based on the reality that these technicalities have profound implications for the litigants and for the broader administration of justice
Decolonizing Legal Influence: China\u27s Role in the Changing Landscape of the Ethiopian Legal Profession, 2000-2018
Full text linkOver the last two decades, the legal profession in Ethiopia has changed fundamentally. The government has increased the number of law schools from one in 1993 to more than three dozen by 2021. It has introduced strict licensure rules to formalize and regulate legal services and, more recently, in 2022, it has proclaimed the creation of law firms and an independent bar association. The market for legal services has expanded, allowing lawyers to reach out to clients in the country’s peripheries and move onward to attract global clients. These changes are inextricably tied to global currents that have diffused Anglo-American influence on law and the legal professions across the world. In this paper, I consider China’s influence in Ethiopia’s fast- changing socio-legal landscape. While there is no doubt that Chinese finance and investment over the last two decades have shaped Ethiopia\u27s infrastructure and manufacturing industries, commentators often say that China has neither the intention nor the capability to influence law and the legal profession. Nonetheless, this paper shows that a combined effect of the Ethiopian officials seeking Chinese capital and Chinese entrepreneurs seeking cheap land and labor through local law and lawyers has profoundly changed the profession. The economic nature of this change raises questions about our understanding of foreign influence in terms of colonial experience, which is characterized by a seemingly unified approach, or theory and intentionality by a Western government, to analyze Chinese influence in African law and legal profession
Appraisal Discrimination: Five Lessons for Litigators
Full text linkAppraisal discrimination not only persists, but its influence has actually increased in some housing markets. New studies document how contemporary appraisal methods operate as systemic racism, such as how appraisers select from a narrower set of comparable properties when appraising homes in predominantly Black neighborhoods. Recent events have renewed public attention to appraisal discrimination, from shocking news stories to a new multiagency federal task force. In tandem, a new wave of litigation has emerged. This Article examines litigation as one element of a multifaceted approach to combatting appraisal discrimination. After examining the weaknesses of the regulatory framework governing appraisals, this Article turns to the role of the litigator, offering a primer on effective appraisal discrimination litigation. Drawing on interviews with fair housing litigators, it explores the landscape of these cases and their empirical outcomes, identifies the greatest impediments to successful litigation, and offers concrete strategies for overcoming those challenges
Hate Speech, Historical Oppressions, and European Human Rights
Full text linkToday, around 5 billion people communicate through the Internet. While the benefits of online communication are undeniable, we also witness the proliferation of online hate speech, often associated with an increase in offline violence. Internet intermediaries and public bodies have developed frameworks to counter online hate speech. However, current frameworks lack a standardized approach to the conceptualization of hate speech. Some conceptualizations are overbroad, and others are underinclusive; overbroad because they lead to the removal of legal content (e.g. removal tools deleting legal content posted by marginalized communities), and underinclusive as the context of posts by linguistic minorities is often disregarded. This Article proposes a new legal conceptualization of hate speech in the European context. It does so by analyzing the European regulatory framework through the lens of the first legal conceptualizations of hate speech deriving from critical (race) theory and (black) feminist intersectionality theory. The European focus is justified by the need to standardize at the regional level the legal requirements in current and future policies to counter online hate speech. The methodology is doctrinal, normative, and meta-legal. There are two main findings. First, this Article suggests that the European regulatory framework needs to explicitly acknowledge the conceptualization of hate speech by critical legal scholars as expressions intended to perpetuate historical or systematic oppression. Second, this Article advocates that the conceptualization of hate speech in the European context can only achieve legal cohesion when all European regulatory instruments expressly account for the intersectionality of systems of oppression
Reflections on Critical Race Theory in a Time of Backlash
Full text linkReviewing my article on critical race theory (CRT), written over fifteen years ago, this Article revisits CRT and its fortunes in this moment of backlash. CRT has become a principal target for erasure in a raging polit- ical campaign that seeks to suppress discussions about racial and gender justice. It does so, in part, by using law to compel the miseducation of the American populace, including its children. The campaign suggests, in the case of race, that efforts to promote racial justice, combat racism, and employ race as an analytical lens—antiracism—is racist. That is, the right- wing argument has shifted from the colorblind assertion that race is irrel- evant, to one in which consideration of race is illegitimate. It is not simply illegitimate because it is irrelevant, but because, incredulously, it is racist and racism no longer exists in America, if it ever did. I argue this miseducation campaign arose to divert attention from the demands for a racial reckoning triggered by the police murder of Mr. George Floyd. This reckoning portended consolidation of a multiracial, multiethnic democratic majority and progress in racial justice, among other changes; changes apparently perceived as threatening to the privi- leged status of whiteness in the United States’ racial hierarchy. As such, I contend, the campaign’s goals are not merely to silence the voices of those seeking justice and therefore change that includes fuller and truer accounts of American history. Rather, it seeks to control, or if necessary, destroy, the educational and other institutions that house justice voices and to re- move the people representing these voices from participation in institutions and other public spaces. I note that the campaign also supports and facilitates efforts to privatize education. In other words, in contextualizing the campaign, I suggest that it is part of a broader, larger, and multifaceted antidemocratic backlash movement that reactionary forces are advancing to limit access to voting, education, healthcare, and processes that might protect the economic interests of people of color, poor people, nonbinary people, and women, among others. In short, this broader movement seeks to undermine democracy and re-impose—dare I say—elite white male minority rule. The conservative majority on the Supreme Court, I suggest, is facilitating this effort
Historical Kinship and Categorical Mischief: The Use and Misuse of Doctrinal Borrowing in Intellectual Property Law
Full text linkAnalogies are ubiquitous in legal reasoning, and, in copyright jurisprudence, courts frequently turn to patent law for guidance. From introducing doctrines meant to regulate online intermediaries to evaluating the constitutionality of resurrecting copyrights to works from the public domain, judges turn to patent law analogies to lend ballast to their decisions. At other times, however, patent analogies with copyright law are quickly discarded and differences between the two regimes highlighted. Why? In examining the transplantation of doctrinal frameworks from one intellectual property field to another, this Article assesses the circumstances in which courts engage in doctrinal borrowing, discerns their rationale for doing so, identifies whether certain patterns of borrowing exist, and scrutinizes the value, propriety, and impact of such borrowing. By tracing the different strains that animate the courts’ analogical jurisprudence in patent and copyright law, the Article builds on broader insights from the scholarship on legal borrowing and offers guidance on how to approach analogies between related legal regimes in a more disciplined fashion. In the end, the Article seeks to provide a better understanding of what juridical techniques courts may deploy to strengthen the efficacy of borrowing—so that importation of legal doctrine can do more good than harm—in intellectual property law and more generally