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COOL Story: Country of Origin Labeling and the First Amendment
Get PDFCountry of origin labeling (COOL) requirements have long been part of government regulation of commerce. While one might ordinarily think of mandatory COOL as part of trade policy--or even as a means of encouraging individual citizens to engage in country-specific buying that would be disallowed as protectionism if carried out by their governments -- the most robust legal challenges to mandatory COOL now come from the First Amendment, not from free trade principles. This reliance on free speech claims offers a stark example of the charismatic force of the First Amendment. Objections having little to do with free speech at their heart are channeled into First Amendment challenges in U.S. law both because of the rhetorical force of free speech claims and because, relatedly, the First Amendment is much more likely to invalidate legislation than many other rights, from privacy to substantive due process (whether the right is abortion or economic freedom).
This short article considers a recent First Amendment challenge to new COOL requirements for meat, which mandate disclosure of the country in which each animal was born, raised, and slaughtered
Property as Institutions for Resources: Lessons from and for IP
Get PDFThe idea of property in land as the paradigm case of property exercises despotic dominion over property thinking. From the perspective of evolving political economy, however, a land-centric model of property makes very little sense. Property institutions coordinate access to resources, and so it is reasonable to expect them to differ in ways that respond to the characteristics of those resources. The debate about whether intellectual property (IP) is property is instructive. IP scholars have pursued the property debate using a conceptual framework derived from common law real property doctrines and organized around the practical and theoretical problems associated with property rights in land, but the resources at the center of debates about the appropriate extent of IP-rightholder control could not be more different from land. Intellectual resources are routinely sliced and diced, aggregated and fractionated, used and reused, in ways that land is not and could not be. This might mean that IP is not property, as some have argued, or it might mean that we have outgrown the monolithic, land-centric model — that in the postindustrial era of wealth production, the cosmology of property can no longer place terra firma at the center.
This Article develops an account of property as a set of resource-dependent legal institutions characterized by overlapping sets of family resemblances and then reconsiders the IP question. Property in intellectual goods resembles property in land in some respects, property in natural resources in other respects, property in corporations in others, and property in intangible financial instruments in still others, but also systematically diverges from each of those other forms of property. Legal institutions for IP must accommodate four important points of divergence: the different incentives of creators and intermediaries; the variety of ways in which intellectual goods are produced; the central importance of intermediation within IP ecologies; and the widespread use of licensing to delineate rights and obligations
In Praise of Ex Ante Regulation
Get PDFTiming is an important consideration in regulatory design. Corrective taxes are usually imposed before or contemporaneously with the harmful activity they are aimed at preventing, while tort awards are assessed ex post, in its aftermath. Patents and research grants both can encourage innovation, but patents pay off only after the invention is marketed. In a world of perfect information, fully rational actors, and complete credit or insurance markets, time would not matter. In the real world, though, the failure of one or more of these assumptions can change dramatically the impact of a regulatory option. For example, prior commentators have largely favored ex post incentives on the ground that government has much better information after the regulated activity is complete
This Article argues that the consensus in favor of ex post regulation overlooks some important considerations. Ex post regulation does provide useful additional information when regulated parties are heterogeneous, but also carries significant and sometimes prohibitive social cost, especially when externalities are produced by limited-liability firms. Further, drawing on results from mathematical simulations, I show that the costs of heterogeneity can be sharply reduced with even modest up-front information. I apply these insights to a series of examples, including the obesity crisis, the regulation of systemic risk in the banking sector, state fiscal failures, and the design of the IP system
The Romantic Author and the Romance Writer: \u3ci\u3eResisting Gendered Concepts of Creativity\u3c/i\u3e
Get PDFDominant narratives of creativity regularly expect female-associated forms of creativity to be provisioned naturally without need for the economic incentives provided by exclusive rights, just like housework and childcare. Even as the concept of Romantic authorship has come under sustained analytic assault, its challengers often look elsewhere–to the kinds of creativity in which men are more likely to participate–to find models of situated, always-influenced authorship. In this chapter, I examine one variant of the problem, in which certain arguments about copyright discount the value of forms that are predominantly produced and enjoyed by women. But creative works in these oft-denigrated genres, such as media fandom, open up new possibilities in sexual and gender relations, and women learn to see themselves as valuable speakers by becoming creators. As a result, increasing the visibility of women’s creative works, including explicitly transformative works based on specific copyrighted predecessors, is an important part of rejecting the fetishization of Romantic authorship and valuing diverse kinds of creativity
High Technology, Consumer Privacy, and U.S. National Security
Get PDFDocuments released over the past year detailing the National Security Agency’s (“NSA”) telephony metadata collection program and interception of international content under the Foreign Intelligence Surveillance Act (FISA) implicated U.S. high technology companies in government surveillance. The result was an immediate, and detrimental, impact on U.S. corporations, the economy, and U.S. national security.
The first Snowden documents, printed on June 5, 2013, revealed that the government had served orders on Verizon, directing the company to turn over telephony metadata under Section 215 of the USA PATRIOT Act. The following day, The Guardian published classified slides detailing how the NSA had intercepted international content under Section 702 of the FISA Amendments Act. The type of information obtained ranged from E-mail, video and voice chat, videos, photos, and stored data, to Voice over Internet Protocol, file transfers, video conferencing, notifications of target activity, and online social networking. The companies involved read like a who’s who of U.S. Internet giants: Microsoft, Yahoo, Google, Facebook, PalTalk, YouTube, Skype, AOL, and Apple.
More articles highlighting the extent to which the NSA had become embedded in the U.S. high tech industry followed. In September 2013 ProPublica and the New York Times revealed that the NSA had enjoyed considerable success in cracking commonly used cryptography. The following month the Washington Post reported that the NSA, without the consent of the companies involved, had obtained millions of customers’ address book data. In one day alone, some 444,743 email addresses from Yahoo, 105,068 from Hotmail, 82,857 from Facebook, 33,697 from Gmail, and 22,881 from other providers.
The extent of upstream collection stunned the public, as did slides demonstrating how the NSA had bypassed the companies’ encryption, intercepting data as it transferred between the public Internet and the Google cloud. Documents further suggested that the NSA had helped to promote encryption standards for which it already held the key or whose vulnerabilities the agency understood but had not taken steps to address.
Beyond this, press reports indicated that the NSA had at times posed as U.S. companies—without their knowledge—in order to gain access to foreign targets. In November 2013 Der Spiegel reported that the NSA and the United Kingdom’s Government Communications Headquarters (“GCHQ”) had created bogus versions of Slashdot and LinkedIn, so that when employees from the telecommunications firm Belgacom tried to access the sites from corporate computers, their requests were diverted to the replica sites that then injected malware into their machines.
As a result of the growing public awareness of these programs, U.S. companies have lost revenues, even as non-U.S. firms have benefited. In addition, numerous countries, concerned about consumer privacy as well as the penetration of U.S. surveillance efforts in the economic and political spheres, have accelerated data localization initiatives, begun restricting U.S. companies’ access to local markets, and introduced new privacy protections, with implications for the future of Internet governance and U.S. economic growth. These effects raise attendant concerns about U.S. national security.
It could be argued that some of these effects, such as data localization initiatives, are merely opportunistic—i.e., other countries are merely using the NSA revelations to advance national commercial and political interests. Even if true, however, the NSA programs provide other countries with an opportunity. They have weakened the U.S. hand in the international arena.
Congress has the ability to redress the current situation. First, and most importantly, reform of the Foreign Intelligence Surveillance Act would provide for greater restrictions on NSA surveillance. Second, new domestic legislation could extend better protections to consumer privacy. These shifts would allow U.S. industry legitimately to claim a change in circumstance, which would help them to gain competitive ground. Third, the integration of economic concerns at a programmatic level within the national security infrastructure would help to ensure that economic matters remain central to national security determinations in the future
Supreme Court Institute Annual Report, 2014-2015
Get PDFDuring the 2014-2015 academic year-–corresponding to the U.S. Supreme Court’s October Term (OT) 2014-–the Supreme Court Institute (SCI) provided moot courts for advocates in 100% of the cases heard by the Supreme Court, offered a variety of programs related to the Supreme Court, and continued to integrate the moot court program into the education of Georgetown Law students. A list of all SCI moot courts held in OT 2014-–arranged by argument sitting and date of moot and including the name and affiliation of each advocate and the number of observers-–follows the narrative portion of this report
The Dawn of Social Intelligence (SOCINT)
Get PDFMore information about citizens’ lives is recorded than ever before. Because the data is digitized, it can be accessed, analyzed, shared, and combined with other information to generate new knowledge. In a post-9/11 environment, the legal standards impeding access to such data have fallen. Simultaneously, the advent of global communications and cloud computing, along with network convergence, have expanded the scope of information available. The U.S. government has begun to collect and to analyze the associated data.
The result is the emergence of what can be termed “social intelligence” (SOCINT), which this Article defines as the collection of digital data about social relationships. What distinguishes this type of information from more traditional forms of intelligence is that it draws from novel, digitized sources, such as metadata, social media, and geolocational information, to construct a detailed picture of networks—which themselves then serve as starting points for further analysis. The telephony metadata program initiated under Section 215 of the USA PATRIOT Act provides one prominent example. Numerous other initiatives are underway. These collection programs carry significant risks. The construction of ZunZuneo demonstrates how SOCINT can be used not just to understand social dynamics, but to drive political, economic, or social change. As a constitutional matter, the broad collection of social data is at cross-purposes with the Fourth Amendment, with sobering consequences for individual rights. SOCINT thus ought to be treated as a form of collection in its own right, subject to unique restrictions, and not as a concomitant of other collection techniques
Nowhere to Run; Nowhere to Hide: The Reality of Being a Law Library Director in Times of Great Opportunity and Significant Challenges
Get PDFThis is an edited version of remarks presented at \u27Nowhere to Run, Nowhere to Hide\u27: The Reality of Being a Law Library Director in Times of Great Opportunity and Significant Challenges, January 5, 2015, at the Association of American Law Schools Annual Meeting, Washington, D.C
The Social Value of Academic Freedom Defended
Get PDFThis essay argues for the social value of academic freedom in law schools and in the university generally. It takes explicit issue with the arguments of Stanley Fish in Versions of Academic Freedom: From Professionalism to Revolution. The essay maintains that academic freedom is essential to a liberal society and deserving of constitutional protection because scholarship and teaching governed by disciplinary norms represents modernity\u27s best secular effort at separating truth from falsehood
Hobby Lobby, Birth Control and Our ongoing Cultural Wars: Pleasure and Desire in the Crossfires
Get PDFBoth sides of the birth control debate agree that birth control artificially prevents or interrupts conception, allowing women to control their own fertility and allowing heterosexual men and women to enjoy unconstrained sexual liberty. However, the decision in Hobby Lobby omitted all discussion of this central function of birth control, and contained no mention of arguments for or against birth control that assume it.
This piece examines and criticizes the two major arguments opposing and supporting birth control on this understanding of its function and core social meaning: first the neo-natural lawyers’ argument against birth control advanced in a papal encyclical in the 1930’s and in contemporary law review articles by John Finnis, George Bradley, and Robert George, and second, the “sexual-libertarian” argument supporting the use of birth control, culled from Griswold, Eisenstadt, Lawrence and their advocates and supporters in the academy.
The focus of the piece is on the competing conceptions of heterosexual morality that underlie these two arguments. My central claim is that both sides fail to address women’s actual felt desires either for sex or pregnancy. Natural law advocates generally celebrate all non-contracepted marital sex regardless of women’s desires for either the sex or the pregnancy that is its foreseeable consequence. Likewise, sexual libertarians celebrate all consensual sex regardless of women’s desires.
This erasure of the relevance of women’s desire, or lack of desire, to the morality of heterosexual intercourse and pregnancy causes women harm, and is a condition of women’s subordination. The current legal clashes over birth control have marginalized the harms. This piece seeks to re-center them