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The Antitrust-Copyright Interface in the Age of Generative Artificial Intelligence
Full text linkThe U.S. government’s antitrust actions against Big Tech have recently surged in response to the growing dominance of Amazon, Apple, Google, Meta, and Microsoft. In fall 2023, the Federal Trade Commission filed a controversial submission in response to the U.S. Copyright Office’s request for comments on artificial intelligence (AI) and copyright. The agency’s submission hinted at its eagerness to fully deploy its enforcement powers in the AI sector, including targeting AI developers that have used copyrighted works without authorization to train AI models. This Article examines the changing interface of antitrust and copyright law in the age of generative AI. It argues that this interface faces new complications in two directions: technological and ideological. Technologically, the structural elements antitrust law aims to regulate are key to the success of AI developers. Ideologically, antitrust law, in recent years, has been confronted with a policy shift from the once dominating Chicago School to the Neo-Brandeisian School. The Article then highlights copyright’s oft-overlooked competition policy. It identifies several built-in procompetitive safeguards, such as fair use, the idea-expression dichotomy, the first sale doctrine, compulsory licenses, and the copyright misuse doctrine. The second half of this Article makes the case against antitrust intervention at this nascent stage of AI development. It discusses how such intervention could stifle the growth of the AI sector, change longstanding antitrust principles, upset copyright’s internal balance, and generate unintended global consequences. This Article concludes with a five-pronged strategy for reconfiguring the antitrust-copyright interface and reducing the tensions between antitrust and copyright law
Common Article 2 and Non-State Reciprocity in the Law of Armed Conflict
Full text linkThe majority of today’s armed conflicts are waged between States and non-State actors. Because these conflicts are not between States, they do not fall under the coverage of Common Article 2 (CA2) of the 1949 Geneva Conventions which invokes the full corpus of international humanitarian law. However, the third paragraph of CA2, the “Reciprocity Clause”, was written to provide a mechanism for non-Parties to the Geneva Conventions to invoke the provisions of the Conventions in a conflict with a Party. State Parties agreed to be bound by the Conventions, even in conflicts with non-Parties, as long as those non-Parties agreed to abide by the provisions of the Conventions. This paper proposes that the Reciprocity Clause be extended to apply to armed conflicts between States and non-State actors where the non-State actor commits to (and does) abide by the provisions of the Conventions. This innovative but legally justifiable proposal would incentivize groups like al-Qaeda, ISIS, and Hamas to declare and actually conform to IHL in order to receive reciprocal protections, as well as bind countries like China in a potential conflict with Taiwan to apply the complete IHL when it might otherwise argue it is not legally required to do so
Transcending Boundaries in the Age of International Corporate and Financial Law
Full text linkThis article critically examines the dynamic interplay between European corporate law and international corporate law (ICL) against the backdrop of globalization and regulatory competition, offering insights into the former’s multifaceted influences and contributions to the evolving dynamics of the latter.
The paper begins by exploring the role of legal transplants and implants in comparative company law, addressing both their advantages and challenges. The article then turns to key features of ICL, with particular attention to the influence of U.S. law. Notably, the influence of U.S. law on ICL prompts an examination of EU corporate law’s role – whether it passively observes the Americanization of international legal systems or strategically expands its own boundaries in response.
To gauge the extent of the EU legislation’s reach, this study examines its recent regulatory developments shaping corporate law and governance within the EU. Special attention is given to the following issues: market abuse, corporate reporting, corporate sustainability, and privacy. Through a comprehensive analysis, this article seeks to elucidate the impact of these regulations on the international corporate landscape, providing insights into the current status of EU corporate law and its global influence. In tandem, an exploration of the EU’s emerging role as a standard-setter in technology-related domains is undertaken through an analysis of the AI and Crypto-Assets domains. This scrutiny aims to illuminate this tendency (and its far-reaching consequences) on the ICL landscape, providing valuable insights into the current status of EU corporate law and its influence globally.
The argument put forth contends that EU corporate law displays attributes that have been adopted by the United States, as well as attributes borrowed by the EU from there. It also highlights a nuanced and dynamic relationship with principles of ICL. Hence, EU corporate law assumes a distinctive role and makes a unique contribution to ICL, underscored by its theoretical underpinnings, regulatory objectives, and normative trends. A traditional top-down and harmonized approach coexists with instances where the EU emerges as a pivotal authority, akin to leading international organizations within the ICL hierarchy. While not upsetting the status quo, this marks a significant step forward and reminds us of legal transplants. As the EU sails the legal seas, it not only unfurls its influence like a rising tide but also orchestrates a harmonious current, weaving through diverse legal landscapes.
Ultimately, striking the right balance between comprehensive regulation and a leaner approach is crucial in navigating the complexities of modern markets and legal landscapes
The Nightmare Loophole: Circumventing Section 365(n) and Erasing a Non-Debtor Licensee’s Intellectual Property Rights
Full text linkIn today’s knowledge-driven economy, the significance of intellectual property licenses cannot be overstated. Nevertheless, a loophole within the Bankruptcy Code allows a non-debtor’s license agreement to be erased, stripping them of their right to utilize the intellectual property without any avenue for recourse. Selling intellectual property “free and clear” of encumbrances before the debtor rejects the license agreement could deprive the non-debtor licensee of the opportunity to continue using the intellectual property. This loophole not only undermines the policy goals of both intellectual property and bankruptcy, but also subverts the clear intentions of Congress and the Supreme Court to protect non-debtor licensees from the ripple effects of their licensor’s chapter 11 bankruptcy. Furthermore, extinguishing an intellectual property license through the loophole could inadvertently drive more businesses into bankruptcy, contrary to the stated rationales of the Intellectual Property Bankruptcy Protection Act and the recent expansion of similar protections to trademark licenses in Mission Prod. Holdings v. Tempnology. As a result, changes to the Bankruptcy Code and how judicial discretion is applied to intellectual property licenses are necessary to protect non-debtor licensees from the involuntary erasure of their rights.
This Comment describes (1) how the loophole can be exploited; (2) the implications for a non-debtor licensee of intellectual property; (3) why this outcome is unacceptable under the policy aims of intellectual property and bankruptcy law; and (4) a simple way to close the loophole permanently
Delay, Deny, Tax
Full text linkHealth insurance companies are having a moment in the United States. Their moment involves widespread public objections to their seemingly random and increasing willingness to deny coverage and reimbursement to insureds. These denials are in large part not part of a program to improve health coverage but, rather, to reduce insurance companies’ expenses and, in turn, increase their profits.
There is broad consensus that something has to change. The public demands it. Bipartisan groups of senators and representatives have investigated it. Even the health care industry acknowledges that something needs to change. To actually make the health care system better requires more than easy or simplistic solutions. A long-term solution requires completely rethinking the way the United States provides health care. But while policymakers struggle to craft such a fundamental revision of the health care industry, denials by health insurance companies continue to hurt individuals.
Although this Article does not provide a comprehensive rethinking of the health care industry, it does propose a relatively simple interim policy that will ameliorate the problem of health insurance companies unnecessarily denying health coverage: an excess profits tax imposed on health insurance companies. While the putative purpose of insurance companies is to protect policyholders from unexpected and ruinous financial losses, internally, insurance companies function to earn a profit for their shareholders. To the extent an insurance company denies a claim—or even delays payment on that claim—it has increased its profits. The company, thus, has two competing incentives: On the one hand, its business involves paying for health care, but on the other, it is designed to provide a return to its shareholders. While it cannot ignore paying for policyholders’ health care, a health insurance company will likely face steep pressure to prioritize profits. Even though there is debate over whether shareholder primacy constitutes a legal obligation for corporations or just a generally accepted norm, shareholder primacy continues to “dominate” thoughts about corporate governance. Thus, whether or not corporations have a legal obligation to maximize shareholder profits, many corporations focus on maximizing shareholder profits.
After looking at the history of excess profits taxation in the United States, including a renewed interest in it during the COVID pandemic, this Article proposes a targeted excess profits tax imposed on the health insurance industry. Such a tax would avoid the impediments of a broad-based excise profits tax and would function as an effective tool to ensure that insurance companies do not delay and deny insurance claims to boost shareholder profits. In addition to enacting a tax on health insurance companies’ excess profits, Congress should earmark its revenues to help fund health care access for people who cannot afford it. Then, such a tax would simultaneously provide regulatory pressure for insurance companies to pay for health care and help those who cannot access insurance to receive the health care they need
The Enduring Crisis in Teaching Constitutional Law
Full text linkConstitutional law is in crisis. The 6-3 conservative majority of the Supreme Court has generally produced the desired results of the current Republican Party. This has led to calls of illegitimacy, activism, and partisanship from left-liberal and progressive scholars and politicians. In 2024, Jesse Wegman published an opinion essay in the New York Times documenting these criticisms from progressive law professors. In this essay, I argue that there is nothing unique about the current crisis. Rather, the political nature of cases is a result of “juristocracy,” which knows no party. In light of this, I provide important context and argue for more principled views on the current Supreme Court on the part of liberals and progressives. Finally, I propose several suggestions for progressives who teach constitutional law while strongly disagreeing with the results
Defending Second-Party Releases in Mass Tort Bankruptcies
Full text linkThe Bankruptcy Code enables corporate debtors to restructure their debts, including liability for tort damages. Recovery from an insolvent debtor poses daunting collective action problems for tort victims. By creating and funding a trust in bankruptcy, the liable company can streamline settlement and distribute available assets to give all claimants—including individuals who have been harmed by the company’s past activity but are not yet aware of the harm—an aliquot portion of available funds.
Frequently, tort damages levied against a bankrupt company implicate not only the debtor but other related parties, like the company’s insurers, directors and officers, corporate affiliates, and co-tortfeasors. The bankruptcy estate contains only the debtor’s assets and the discharge granted in bankruptcy is given only to the debtor. Nevertheless, courts have often allowed third parties limited involvement as trust contributors. In exchange for money payments made into the trust, these third parties may also be released from future liability.
In Harrington v. Purdue Pharma, the Supreme Court ruled that the Bankruptcy Code does not allow for third-party releases over the objection of creditors. As recognized by the dissent, this ruling will complicate efforts to recover assets for mass tort victims in bankruptcy. This Article argues that some releases may be better termed “estate preservation releases” or even “second-party releases,” and should be upheld even after the Supreme Court’s ruling. Insurance proceeds frequently fall into this category. We argue that second-party releases remain lawful under a narrow reading of Purdue Pharma. If not, Congress should pass legislation that permits their continued use
Access or Sovereignty
Full text linkDespite centuries of genocidal assimilation and forced removal, Indigenous communities in the United States have persevered and even thrived. A key driver of economic success for many tribes is gambling. While states objected, perhaps out of greed, the Supreme Court held that, as sovereign governments, gaming operations on tribal land were largely beyond the reach of state governments and law enforcement. The Supreme Court’s Cabazon decision furthered a congressional push to develop a negotiated solution to recognize Indigenous communities’ rights as sovereigns while balancing states’ desire to limit the volume of gambling taking place within their borders. The Indian Gaming Regulatory Act was the congressionally agreed upon balance. While the statute undoubtedly stripped tribal sovereignty, few statutes have developed an economic framework so powerful for lifting up hundreds of communities. The legacy of the Indian Gaming Regulatory Act is an industry that has $40 billion in annual revenue and has developed an expertise that is sought around the world.
Now, the tribal gaming industry faces extinction. While commercial operators have spent the last two decades preparing for the move from brick-and-mortar to online gaming, tribal gaming is hamstrung by the Indian Gaming Regulatory Act’s requirement that all gaming take place on “Indian lands.” Federally recognized gaming tribes now face a choice between access and sovereignty. Some tribes around the country have chosen access, often giving up some sovereignty protected by the Indian Gaming Regulatory Act. Other tribes have placed sovereignty above market access and chosen to sit out online gambling while commercial operators move into the market. The choice now facing many tribes is one that they never should have been forced to make.
This Article argues that, while Congress’s inaction and failure to modernize the Indian Gaming Regulatory Act has put Native American communities around the country at significant risk, it is not too late to implement changes to modernize the Act. This Article posits that, with a stroke of the pen, Congress could permit communities on Indian land to compact for online gaming under the Act and ease the process by which tribes acquire land that can be used for gaming operations. Congress also has the power to amend the statute to incentivize state cooperation with tribal nations to negotiate gaming compacts, a key tool within the statute that was struck down in 1996. Congressional inaction raises the prospect of a bleak future for the economic security of many tribes, but unlike some of the looming crises facing the United States, there is still time to rectify the situation before dire consequences spread