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Intellectual Property in Experience
Get PDFIn today’s economy, consumers demand experiences. From Star Wars to Harry Potter, fans do not just want to watch or read about their favorite characters— they want to be them. They don the robes of Gryffindor, flick their wands, and drink the butterbeer. The owners of fantasy properties understand this, expanding their offerings from light sabers to the Galaxy’s Edge®, the new Disney Star Wars immersive theme park opening in 2019.
Since Star Wars, Congress and the courts have abetted what is now a $262 billion-a-year industry in merchandising, fashioning “merchandising rights” appurtenant to copyrights and trademarks that give fantasy owners exclusive rights to supply our fantasy worlds with everything from goods to a good time. But are there any limits? Do merchandising rights extend to fan activity, from fantasy-themed birthday parties and summer camps to real world Quidditch leagues? This Article challenges the conventional account, arguing that as the economic value of fantasy merchandising increases in the emergent “experience economy,” intellectual property owners may prove less keen on tolerating uncompensated uses of their creations. In fact, from Amazon’s Kindle Worlds granting licenses for fan fiction, to crackdowns on sales of fan art sold on internet sites like Etsy, to algorithms taking down fan videos from YouTube, the holders of intellectual property in popular fantasies are seeking to create a world requiring licenses to make, do, and play. This Article turns to social and cultural theories of art as experience, learning by doing, tacit knowledge, and performance to demonstrate that fan activity, from discussion sites to live-action role-playing fosters learning, creativity, and sociability. Law must be attentive to the profound effects these laws have on human imagination and knowledge creation. I apply the insights of these theories to limit merchandising rights in imaginative play through fair use, the force in the legal galaxy intended to bring balance to intellectual property law
Originalist Theory and Precedent: A Public Meaning Approach
Get PDFMuch ink has already been spilled on the relationship of constitutional originalism to precedent (or, more specifically, the doctrine of stare decisis). The debate includes contributions from Randy Barnett, Steven Calabresi, Kurt Lash, Gary Lawson, John McGinnis with Michael Rappaport, Michael Paulsen, and Lee Strang, not to mention Justice Antonin Scalia—all representing originalism in some form. Living constitutionalism has also been represented both implicitly and explicitly, with important contributions from Phillip Bobbitt, Ronald Dworkin, Michael Gerhardt, Randy Kozel, and David Strauss. Some writers are more difficult to classify; Akhil Amar comes to mind. And there are many other contributions to the debate. Opinions range from the view that precedent should invariably prevail over the original public meaning of the constitutional text to the polar opposite view, that precedent must give way to original meaning in almost every case.
Here is the roadmap. Part I provides a brief introduction to contemporary originalism. Part II describes the problem of precedent for originalism, emphasizing that the nature of the problem depends in part on our understanding of precedent. Part III offers some reflections on the question as to the constitutional status of the doctrine of horizontal stare decisis in the United States Supreme Court
Will Delaware Be Different? An Empirical Study of \u3cem\u3eTC Heartland\u3c/em\u3e and the Shift to Defendant Choice of Venue
Get PDFWhy do some venues evolve into litigation havens while others do not? Venues might compete for litigation for various reasons, like enhancing their judges’ prestige and increasing revenues for the local bar. This competition is framed by the party that chooses the venue. Whether plaintiffs or defendants primarily choose venue is crucial because, we argue, the two scenarios are not symmetrical.
The Supreme Court’s recent decision in TC Heartland LLC v. Kraft Foods LLC illustrates this dynamic. There, the Court effectively shifted venue choice in many patent infringement cases from plaintiffs to corporate defendants. We use TC Heartland to empirically measure the impact of this shift using an event study, which measures how the stock market re- acted to the decision. We find that likely targets of “patent trolls”—entities that own and assert patented inventions but do not otherwise use them—saw their company valuations increase the most due to TC Heartland. This effect is particularly pronounced for Delaware-incorporated firms. Our results match litigation trends since TC Heartland, as new cases have dramatically shifted to the District of Delaware from the Eastern District of Texas, previously the most popular venue for infringement actions.
Why do investors believe Delaware will do better than Texas in curbing patent-troll litigation? Unlike Texas, Delaware’s economy depends on attracting large businesses that pay high incorporation fees; it is thus less likely to encourage disruptive litigation and jeopardize its privileged position in corporate law. More broadly, we explain why giving defend- ants more control over venue can counterbalance judges’ incentives to increase their influence by encouraging excessive litigation. Drawing on Delaware’s approach to corporate litigation and bankruptcy proceedings, we argue that Delaware will compete for patent litigation through an expert judiciary and well-developed case law that balances both patentee and defendant interests
Disasters and Disclosures
Get PDFMany securities fraud lawsuits follow corporate disasters of some sort or another, claiming that known risks were concealed prior to the crisis. Yet for a host of doctrinal, pragmatic and political reasons, there is no clear-cut duty to disclose these risks. The SEC has imposed a set of requirements that sometimes forces risk disclosure, but does so neither consistently nor adequately. Courts in 10b-5 fraud-on-the-market cases, in turn, have made duty mainly a matter of active rather than passive concealment and thus, literally, wordplay: there is no fraud-based duty to disclose risks unless and until the issuer has said enough to put the particular kind of risk “in play.” But when that is, and why, flummoxes them. This incoherence could be rationalized by a more thoughtful assessment of how words matter to investors and better appreciation of the variable role that managerial credibility plays in the process of disclosure and interpretation, which is the main focus of this article. Disasters are an ideal, if disturbing, setting for thinking through the micro-structure of corporate discourse—the implicit rules of interpretation for how marketplace actors interpret what issuers say and don’t say, whether in formal SEC disclosures, conference calls, press conferences and even executive tweets. But even if there is more thoughtfulness to the endeavor, it is fair to ask why wordplay should make so much of a difference as to duty in the first place, or whether instead our impoverished conception of duty and its links to scienter, reliance and causation deserve a more thorough makeover. The study of disasters and disclosures also offers a distinctive reference point for thinking about contemporary controversies associated with bringing matters of social responsibility (e.g., law abidingness) and sustainability (environmental compliance, cybersecurity, product safety, etc.) into the realm of securities law
Framework Proposal for a US Upstream Greenhouse Gas Tax with WTO-Compliant Border Adjustments
Get PDFDiscussions regarding policies to limit greenhouse gas (GHG) emissions have been ongoing for decades, and GHG policies of various types have been implemented for years in many countries. In practice, countries that adopt GHG policies utilize a portfolio that typically includes a mix of standards, subsidies, mandates and price-based policies, each directed at particular economic sectors. In view of obvious inefficiencies and lack of synergies resulting from the portfolio approach, economists and many others have convincingly argued that setting a price on carbon—and other GHG emissions—using an economy-wide, upstream GHG tax would be the most effective and efficient policy to address GHG emissions. Its effectiveness stems from being able to cover all emissions from production and use of fossil fuels by applying the tax on producers of coal, oil, and gas resources at the mine mouth and wellhead before they are combusted, rather than dealing with actual emissions from millions of individual sources and actors throughout the economy. Its efficiency stems from allowing markets, rather than the political process, to identify and implement the most cost-effective steps to reduce emissions through decisions that affect current operations and purchases, and through decisions now about investment, research and development to invent and deploy more effective solutions to reduce future GHG emissions.
Myriad issues must be addressed to design and approve legislation to implement an upstream, economy-wide GHG tax. This report does not address that galaxy of challenges and opportunities. Rather, assuming that an upstream GHG tax could be implemented, the report addresses the challenge of border adjustments for exports and imports in the context of a domestic upstream GHG tax, as described below.
The domestic GHG tax could cause energy-intensive industries to shift production to countries without comparable pricing, resulting in “leakage” of GHG emissions that the domestic tax aims to prevent. By shifting production from the United States, the tax would also disadvantage domestic manufacturers, their employees, and the communities where they operate. Hence, the call by many to introduce border adjustments: through the imposition of equivalent GHG pricing on imported products from energy-intensive, trade-exposed (EITE) industries, and by providing rebates from the impact of the upstream tax on the cost of products exported by domestic producers. However, doing this has raised concerns about consistency with rules of the World Trade Organization (WTO).
Here we propose a Framework for a US climate policy with border adjustments that are compatible with US obligations under WTO agreements. It is based on an upstream tax on GHG emissions with rebates for exports and charges on imports for products from EITE industries. A companion Compendium (forthcoming) provides additional details on implementing border adjustments with specific recommendations for 35 EITE industries. Proposed border measures are designed in a non-discriminatory fashion, with the intent and effect of reducing global GHG emissions. Therefore, the border adjustments proposed as part of the Framework will not give rise to any valid claims of WTO violations. Even if such claims should be raised, a strong defense could be made under the exceptions to the WTO rules
Market Definition
Get PDFWe explain the “hypothetical monopolist test” that has become the standard methodology for identifying relevant antitrust markets in merger cases, and discuss two approaches to implementing the test. We then focus on the implementation of the test when firms offer multiple products or services, either inside or outside the candidate market, and discuss the “hypothetical cartel test” introduced in the 2010 U.S. Merger Guidelines
Affording Fundamental Rights
Get PDFMireille Hildebrandt’s Smart Technologies and the End(s) of Law (2015) raises questions for law that are best characterized as meta-institutional. This review essay considers the implications of Hildebrandt’s work for the conceptualization of fundamental rights. One consequence of the shift to a world in which smart digital technologies continually, immanently mediate and preempt our beliefs and choices is that legal discourses about fundamental rights are revealed to be incomplete along a dimension that we have simply failed to recognize. To remain effective in the digital age, rights discourse requires extension into the register of affordances
Presidential Immigration Policies Endangering Health and Well-being?
Get PDFSince assuming office, President Trump has issued a series of executive orders transforming United States immigration policy. From building a border wall to banning entry to the US based on nationality, these executive orders are likely to profoundly impact health and wellbeing. Are these actions legal, ethical, and what are the likely effects on US health care?
The implications of the proposed expansion of the border wall between Mexico and the US, new rules on deportation and detention, and the proposed ban on immigration from certain Muslim-majority countries are discussed. These actions run contrary to available evidence on protecting the US from terrorism, and may violate constitutional protections and US commitments under international law. Likely health effects fostering an environment based on fear in immigrant communities and undermining recruitment of vital foreign health workers to the US. Immigrants may be discouraged from accessing benefits and services for fear of being targeted by officials, which may jeopardize both individual and public health, such as through eroding herd immunity
The Importance of Being Standard
Get PDFContract standardisation in the sovereign debt market saves time and money in preparing documents and endows widely-used terms with a shared public meaning, which in turn saves investors the costs of acquiring information, facilitates secondary market trading and reduces the scope for mistakes in the judicial interpretation of contract terms. Sovereign debt issuers and investors claim to value standardisation and list it as an important contractual objective. Issuers generally insist that their bond contracts are standard and reflect market practice. Variations from past practice and market norm must be explained in disclosure documents and through market outreach. Standardisation is not just part of the fabric of market expectations: international policy initiatives to prevent and manage financial crises rest on the assumption that sovereign debt contracts follow a generally accepted standard. Such initiatives would make no sense in the absence of standardisation.
On closer examination, however, it turns out that sovereign bond contracts are not nearly as standardised as market participants and policy makers seem to suggest. It is common to see a handful of negotiated terms embedded in a mish-mash of different generation industry models, sprinkled with bits of creative expression that no one can explain, usually attributed to some long-forgotten lawyers. At least some of the variation appears to be deliberate. But to the extent that it is inadvertent, variation can be costly. For example, it can make contracts internally inconsistent, vulnerable to opportunistic lawsuits and errors of judicial interpretation. Variation could also make debt instruments less liquid, especially during periods of market stress. In this essay, I argue that the problem of inadvertent variation would diminish substantially if sovereign debt markets were to adopt a more centralised, modular approach to contracting, whereby a subset of widely-used non-financial terms would be produced by an authoritative third party (a public, private, or public-private body) and incorporated by reference in individual transactions
Nonprofit Displacement and the Pursuit of Charity Through Public Benefit Corporations
Get PDFNonprofits dominate the charitable sector. Until recently, this statement was tautological. Charity is increasingly being conducted through for-profit entities, raising concerns about the marketization of the charitable sector. This Article: examines for-profit charity conducted through the public benefit corporation, a new corporate form that allows its owners to blend mission and profit in a single entity. Proponents of public benefit corporations intended it as an alternative to a for-profit corporation and largely ignored its impact on the charitable sector. While public benefit corporations are ripe for conducting charity because they can pursue dual missions, they lack the transparency and accountability mechanisms of charitable organizations.
This Article: chronicles the supply and demand for public benefit corporations that conduct charity (i.e., “charitable public benefit corporations”) and hypothesizes the micro and macro level harms caused by them. At the micro level, the harm is fraud or “greenwashing,” i.e., deceiving unwitting stockholders, customers, or other stakeholders into investing or spending their time and money in the negligent or fraudulent enterprise. At the macro level, the more pernicious harm is that “market-based charity” injects individualistic and autocratic business values and methods into charitable work. Proposals have been made to mitigate these harms, but none are satisfactory, making additional measures necessary