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Freedom in an Age of Repression: The Role of Black Theology and Black-Produced Media in Forging Freedom
No full textThis paper will explore the role that black theology and black-produced films of 2016 play in creating a narrative that seeks freedom for African Americans in the United States during this age of brutality and mass incarceration. Starting with Alexander's The New Jim Crow and Duvernay's 13th, this paper illustrates how the media and the legal system have worked together to create a culture of criminality still imposed on black youth. Theologians Cone and Brown Douglas rely on the concepts of God's freedom, God's revolutionary love and faithful action to resist such a hostile culture, but two black-produced films of 2016 also rely on the concept of freedom in the face of criminality. Birth of a Nation not only to shows a positive portrayal of black men in the media, but Moonlight illustrates the complexity of growing up in communities that are repressed by this hostile culture
Fair Use and the Judicial Search for Meaning
No full textAre courts capable of deciphering the true meanings of artworks? Is it reasonable for them to try? Recent litigation between the Warhol Foundation and the photographer Lynn Goldsmith brought these questions into sharp focus. Fair use, the limited exception to the otherwise exclusive property rights granted to copyright owners, requires courts to assess the meaning of a secondary work so that they can determine whether the secondary use is sufficiently “transformative” to qualify for the fair use defense. Warhol used Goldsmith’s photo of Prince as the basis for his silkscreen, which he called the Orange Prince. Was it infringing, or was it fair use? What did Warhol’s work mean? Despite the centrality of this doctrinal question in all fair use disputes, neither courts nor scholars have ever devised a methodology for assessing new meaning. The theoretical vacuum has led to unpredictable and inconsistent case law. Warhol provided the Supreme Court with a rare opportunity to sharpen methodology, but the Court declined, leaving a pernicious theoretical gap at the heart of the fair use doctrine.
This Article provides a much-needed judicial basis for assessing new meaning. By weaving together doctrinal analysis—with insights drawn from existing case law—and art theory, the Article provides a framework that courts can utilize to determine whether new meaning exists.
First, the Article proposes a methodology that allows courts to determine whether there is new meaning without forcing judges to try to find—in vain—what a work of art “really” means, a doctrinal and theoretical dead end that, to date, has yielded painfully inconsistent case law. Second, the proposed methodology not only relieves judges from the impossible task of figuring out what a work of art means, but also provides a clearer standard for when new meaning is transformative. Third, the suggested standard for transformativeness provides a useful method for finding a healthy balance between free speech and economic rights, which are inevitably at odds with each other in fair use disputes. By recognizing that creative works have unique interpretive demands and that the judge’s role should be to inquire into meaning rather than to legislate it, the Article provides our courts—as well as fair use practitioners—with a clearer path forward than our current jurisprudence allows
Going “Beyond” Mere Transformation: Warhol and Reconciliation of the Derivative Work Right and Fair Use
Get PDFThe Supreme Court’s recent decision in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith is a watershed moment in the story of copyright jurisprudence. At its broadest, the decision articulates a unified vision—one that had been dormant in the lower court fair use jurisprudence—about the role of copyright and the manner in which to make sense of its effort to balance exclusivity with its myriad limitations. This Essay focuses on how the Court reconciled the working of the statute’s derivative work right with the breadth and reach of the “transformative use” version of the fair use doctrine. The core of the Court’s reconciliation centers around three ideas. The first is the need for an independent justification for a use to even qualify for fair use. Transformation on its own does not provide such a justification, which must be instead identified independently. Related is the second idea, that the secondary use must reveal a distinct purpose. Unlike the justification element, this step is comparative and heavily contextual. And the third element is the balance between transformativeness and commerciality, which the legislative text makes clear and Campbell had gone to extreme lengths to reinforce. 
The Law of Contingent Control in Venture Capital
Get PDFContingent control (CC) is a key enabler of startup growth and venture capital. To preserve adequate incentives and mitigate risks, venture finance deals distribute startups’ governance rights among investors and founders based on performance measures at different points in time. For example, granting greater decision-making powers to outperforming founders or depriving them of such prerogatives when they underperform. Crucially, these rights are distributed ex ante, through carefully designed contracts and securities, avoiding the costs and potential failure of future negotiations. This paper shows how corporate law determines the structure of CC: higher costs of structuring CC through bespoke securities, such as restricted shares or convertible preferred stock, incentivize the use of shareholders’ agreements and shadow governance structures in VC-backed companies. These findings demonstrate that cross-country differences in security design and capital structures are not only explained by the characteristics of transacting parties and deals or by tax regulation, but also by the regulation of non-listed companies, which has been evolving in the blind spot of legal and financial scholarship. The paper argues that corporate laws in entrepreneurial economies should be recalibrated to facilitate security design and discourage the disproportionate use of shareholders’ agreements
Corporate Technocracy: ESG Governance Beyond Shareholder Democracy or Managerialism
Get PDFThis Article advances a novel paradigm for governing corporate ESG that accounts for the principal-agent challenges undermining prevailing proposals. ESG (Environmental Social Governance) advocates typically advance one of two corporate governance paradigms for delivering on their objectives—shareholder democracy or managerialism. Shareholder democracy seeks to expand shareholder involvement in defining and monitoring corporate ESG agendas. Managerialism claims broader discretion for executives to govern in the interest of a corporation’s stakeholders. Both paradigms fail to account for novel agency challenges generated by prosocial corporate purpose, leaving unresolved core concerns about ESG accountability and efficacy.
This Article offers an alternative to the two prevailing ESG governance paradigms and argues that “corporate technocracy” can account for the novel agency challenges generated by ESG, while addressing the structural and legal shortcomings of both shareholder democracy and managerialism. Technocracy refers to rule by technical experts. It emphasizes institutional accountability, promotes legibility and measurability of corporate purpose, and characterizes shareholders and stakeholders as an information source for defining ESG materiality, particularly for emerging or controversial issues. Technocracy depoliticizes both managers’ and shareholders’ role in defining ESG, relegating managers to the role of administrators rather than statesmen, and shareholders to the role of informational satellites rather than political subjects. Technocracy offers a framework for ESG governance that is consistent with controlling Delaware corporate law doctrine and federal securities law. This Article offers a way beyond the political dogma that plagues contemporary ESG debates and advances a normatively defensible and practically administrable paradigm for ESG governance
In Search of the Caremark Junction: Conceptualizing the Core of Caremark Liability
Get PDFIn recent years, Caremark claims have taken center stage in corporate law discussions. With more Caremark claims proceeding past the motion to dismiss stage, some argue that Caremark liability has evolved into a conduit between corporate governance and public policy. Much ink has been spilled debating whether Caremark claims should play this conduit role. Rather than add to the ink-spillage on this normative question, however, this Note takes a different approach; it employs a descriptive analysis of Caremark liability to establish a new framework for portraying and analyzing Caremark claims. In particular, by conceptualizing Caremark liability through the lens of shareholder versus third-party interests, this Note will peel the layers behind a Caremark claim, scrutinizing it until it reaches its core. And at the core, what this Note finds is quite remarkable and what it neologizes as the “Caremark Junction”: a rare point of overlap between shareholder and third-party interests concerning the scope and intensity of a board of director’s oversight behavior. This Note explores how to reach the Junction, dissecting its necessary conditions and analyzing its broader implications—all with the aim of grasping the true nature of Caremark liability as a distinct, though overlapping, concept from general oversight liability
Closing the Gates on Money Laundering: Big Tech as Gatekeepers in the Metaverse: Jenny Zhang
Get PDFThe rise of the metaverse has created meaningful growth opportunities for the digital economy and the use of digital assets. The conditions that have facilitated the metaverse’s growth, however, have simultaneously given rise to unchecked money laundering risk. This Note reviews the existing Anti-Money Laundering (“AML”) framework in the United States and argues that the metaverse’s inherent design features disable the efficacy of the regulatory regime. In order to improve the reach of the AML framework, this Note proposes a system of gatekeeper liability that utilizes technology corporations to curb illicit activity in the metaverse
Mail-Order Mihrabs: Collaborative Labor in the Design of Tile Revetments in Iran and the Ottoman Empire
No full textWhen studying tile revetments of monuments in Iran from the late twelfth to the mid-fourteenth century and in the fifteenth-century Ottoman Empire, one is faced with two very different narratives as to how the design and production of these revetments came about. The luster tiles installed in Iran and beyond were produced in one city, Kashan, by well-documented families of tile-makers who left a wide range of signed tiles and vessels. Tiles produced in the Ottoman Empire between the 1410s and the 1470s are attributed to the “Masters of Tabriz,” an elusive group construed to be a multi-generational, itinerant workshop based on a single signature on the mihrab of the mosque-zāviye of the Ottoman sultan Mehmed I (r. 1413–21) in Bursa (1419–21). In a comparative study of these two contexts, this article offers insights into ways of producing and logistics of transporting and installing large-scale tile revetments, and argues that in the Ottoman case, too, production may have taken place at a single site