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Discovering \u3cem\u3eeBay\u27s\u3c/em\u3e Impact on Copyright Injunctions through Empirical Evidence
Get PDFThis Article reports on new empirical evidence discrediting the widely held view that judges have resisted applying the Supreme Court’s teachings in eBay Inc. v. MercExchange, L.L.C. about injunctive relief in copyright cases. That 2006 patent law decision ruled that courts should not automatically issue injunctions upon a finding of infringement; instead, plaintiffs must prove their entitlement to injunctive relief. eBay had a seismic impact on patent litigation and greatly reduced the threat that small infringements could be leveraged into billion-dollar settlements. Yet prior empirical work, at least one major copyright law treatise, and many articles assert that eBay had little or no effect on the neighboring arena of copyright law. They assert that eBay was rarely cited and infrequently applied.
By examining a longer timeline of cases and more carefully distinguishing between default judgments and contested cases, we find substantial evidence that eBay has become profoundly important in copyright injunction cases. The decision’s true impact as well as the language judges have been using to discuss the need to balance hardships to plaintiffs and defendants when considering whether to grant copyright injunctions. We also find evidence suggesting that injunctions have become more difficult to obtain in the aftermath of eBay. Our data suggest that the early impression that eBay had little impact in copyright cases was a product of hysteresis—a time lag between cause and effect—as lower courts initially resisted, but eventually embraced, eBay
Big Banks & Small Consequences in Chapter 13
Get PDFMortgage creditors struggle to properly service mortgages in chapter 13 cases, as evidenced by numerous cases describing violations of Bankruptcy Rule 3002.1. The consumer bankruptcy system, however, is not calibrated to compel systemwide compliance from these large, institutional repeat actors. This Essay argues that the Consumer Financial Protection Bureau (CFPB) is well-suited to support the consumer bankruptcy system by exercising its monitoring and enforcement powers to promote, and even compel, mortgage creditor compliance in chapter 13 cases
Sustainable Development Goals, Between Politics and Soft Law: The Emergence of “Political Normativity” in International Law
Get PDFInternational lawyers tend to draw sharp distinctions between law and politics. Yet, despite the Sustainable Development Goals (SDGs) and its predecessors being a product of politics, the commitments undertaken therefrom suggest a new brand of politics where functionality overrides the search for normative characteristics. The political dimension of the SDGs overshadows its legal dimension because the implementation of the key stakeholders’ political commitments is crucial in achieving the SDGs’ stated aims. As international law and international relations are moving towards universal common interests and away from strict international normativity, the SDGs can best be described as a hybrid between soft law and politics, which we may call “political normativity.
To Prohibit Free Exercise: A Proposal for Judging Substantial Burdens on Religion
Get PDFIn Employment Division v. Smith, the Supreme Court famously held that the First Amendment Free Exercise Clause permits neutral laws of general applicability to incidentally burden religion without offering religious exemptions. Today, many people—including Justice Alito in his concurrence in Fulton v. City of Philadelphia—are calling for Smith to be replaced by a jurisprudence that applies strict scrutiny to neutral, generally applicable laws that place a substantial burden on religion.
Yet, both before and after Smith, what exactly has constituted a “substantial burden” on religion has been far from clear. While some courts indicate that burdens on religion can only exist when the state threatens penal consequences or the withholding of benefits to coercively pressure religious adherents to forgo their faith, other courts indicate that burdens can also exist when the state—without coercion or pressure—directly prevents or hinders persons from exercising their faith. While some courts have suggested that the substantiality of a burden on religion hinges on the weight of the penalties or losses that the state attaches to a claimant’s exercise of religion, other courts have also measured substantiality by examining whether the religious exercise affected is central, obligatory, or mandated.
Not only have existing conceptions of burden conflicted with one another, but some definitions of “substantial burden” also leave room for the state to effectively prevent religious activity without being subject to heightened scrutiny. Other definitions have failed to clarify when burdens cross the threshold of substantiality. Some definitions prompt courts to engage in ill-equipped decision-making that risks violating the Establishment Clause. And still other definitions run afoul of the Free Exercise Clause itself.
In the wake of these problems, this Comment proposes a definition of “substantial burden” by starting from the operative verb of the Free Exercise Clause—to prohibit. This Comment argues that the state imposes a substantial burden on religion when it creates a de jure or de facto ban on any form of religious exercise—i.e., when the state legally forbids or effectively prevents the exercise of one’s religion. Whenever neutral, generally applicable laws create such a burden, they should be subject to strict scrutiny. The definitional framework proposed by this Comment can exist alongside the existing doctrine that laws (including facially neutral ones) that discriminate against religion, and thus fall outside of Smith, should be subject to strict scrutiny.
As this Comment argues, defining substantial burdens (in the context of neutral laws of general applicability) to include de jure and de facto bans on any religious exercise not only better comports with the text of the Free Exercise Clause itself, but also mitigates many of the problems raised by definitions of “substantial burden” used by courts in the past few decades. While this Comment’s de jure and de facto framework does not purport to solve all of these problems, it provides a structured way for judges and legislators alike to think more rigorously about constitutionally faithful standards that might replace Smith should it be overturned
Are Threats to Impose Financial Sanctions an Effective Approach for the United States to Protect LGBTQ Rights in Africa?
Get PDFShareholder Inspection Rights: From Credible Basis to Rational Belief
Get PDFJurisdictions are split on the standard of proof for shareholder inspection lawsuits when inspections are for the purpose of investigating managerial misconduct. Delaware and its followers apply a credible basis standard that calls for extrinsic evidence, beyond mere suspicion, curiosity, or disagreement with management, to permit an inference of misconduct. A minority of jurisdictions require shareholders to show merely a rational belief that mismanagement likely happened. Rational belief can be satisfied by sound logic without referencing extrinsic evidence. The Delaware Supreme Court rejected rational belief for fear that a permissive standard would lead to a cascade of frivolous inspections, although numerous factors suggest otherwise. This paper offers the first empirical verification of the court’s assumption. The Delaware Supreme Court also dismissed shareholders’ argument that credible basis was an insurmountable obstacle to their exercise of statutory inspection rights, reasoning that the standard had only barred inspections in a couple of cases out of a “myriad” of inspection lawsuits. This paper is the first to offer empirical evidence that the court grossly underestimated the deterrence effect of credible basis. The paper shows that both the evil of frivolous lawsuits under rational belief and the evil of over-deterrence under credible basis exist, but the latter overshadows the former in magnitude. The paper suggests that the court adopts rational belief for inspection lawsuits against private companies where credible basis poses the biggest problem, and simultaneously implements cost-shifting for inspection items that impose an onerous burden on the target corporation
Thinly Rooted: \u3cem\u3eDobbs\u3c/em\u3e, Tradition, and Reproductive Justice
Get PDFIn Dobbs v. Jackson Women’s Health Organization, the Supreme Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. These two cases held that the Due Process Clause of the Fourteenth Amendment encompassed a right of women to terminate a pregnancy. Roe reflected over 60 years of substantive due process precedent finding and reaffirming a constitutional right of privacy with several animating themes, including bodily integrity, equality, and dignity. The Court’s substantive due process doctrine had established that the analysis in such cases would involve multiple points of inquiry, such as tradition, contemporary practices, and the closeness of the newly asserted interest to previously recognized fundamental rights. Dobbs does not follow this precedent but instead applies a narrow and exclusively backward-looking tradition analysis that, if applied consistently, would imperil many other important rights, including contraception, sexual intimacy, and same-sex marriage. After analyzing these concerns, this Article examines the influence of precedent, politics, and ideology on the content of constitutional law and argues that pro-choice advocates must utilize the political process to restore abortion as a fundamental right. The political process can lead to legislation, executive action, and court doctrines that expand privacy rights. As an alternative to the analysis in Dobbs, this Article recommends a more democratic approach to substantive due process that incorporates perspectives of historically marginalized voices. A new democratic approach could justify expanding rights to protect the most vulnerable members of society and move beyond the narrow conception of reproductive freedom as a negative liberty interest
The Urdu-Speaking Community of Bangladesh: Forgotten Denizens or Putative Citizens?
Get PDFThe Urdu-speaking community in Bangladesh, commonly known as the “Biharis” or “Stranded Pakistanis,” has been living in distressing circumstances. Despite the Supreme Court of Bangladesh declaring Urdu-speakers citizens of the country in 2008, there continues to be challenges related to their integration prospects. The community still faces widespread discrimination, primarily because of the Bangladeshi bureaucracy’s systemic neglect and the community’s former refugee and stateless status. This study examines to what extent Urdu-speakers are now able to enjoy full citizenship rights. It also assesses the government of Bangladesh’s existing policies and the relationship between citizenship and the law, comprising of both domestic and the international legal frameworks linked to the protection of the Urdu-speaking community’s rights. The findings of this study demonstrate that citizenship operates differently for the Urdu-speaking minority since most of the population has a distinct social identity and continue to live in former refugee settlements. Thus, a broader notion of citizenship than the convectional legally-framed definition that currently applies to the Urdu-speaking community should be used since the traditional definition has critically compromised Urdu-speakers’ ability to exercise their lawful rights and compromised their effective integration into Bangladesh society
