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Consumption Governance: The Role of Production and Consumption in International Economic Law
Full text linkOver the last decade, international economic conflict has increased dramatically. To name only a few examples, the European Union banned the import of products from deforested land and is poised to impose duties on carbon-intensive imports; the United States banned Chinese imports made with forced labor; and countries the world over threatened to impose digital services taxes on U.S. corporations, leading to a new multilateral agreement on apportioning income tax revenue among countries.
This Article argues that these conflicts represent a shift in norms governing the authority to tax and regulate international commerce. Different fields within international economic law describe the limits of state authority to tax and regulate international commerce in diverse ways. But I argue that a trans-substantive set of principles underlies the varied doctrines in international trade, international tax, and international antitrust. Throughout the twentieth century, international law’s jurisdictional limitations rested on the notion that production could be taxed and regulated primarily, and often only, by the producing country (what this Article terms “Production Jurisdiction”). As a result, international law often prohibited consuming nations from imposing taxes or regulations on imported goods and services if the taxes or regulations depended on the circumstances of foreign production. By contrast, nations today increasingly claim jurisdiction to tax and regulate foreign production based on their interest in controlling the kinds of activity that consumption within their borders supports (what this Article terms “Consumption Jurisdiction”).
This Article makes three contributions. First, I describe the ongoing shift from Production Jurisdiction to Consumption Jurisdiction in international antitrust law, international tax, and international trade. Second, I argue that the shift from Production to Consumption Jurisdiction does not mean the end of globalization or the rise of protectionism. Rather, it reflects a change in states’ views on the role that national policy should play in creating a nation’s comparative advantage in the global economy. Third, I discuss the implications of the shift from Production to Consumption Jurisdiction
A Theory of Corporate Fiduciary Duties
Full text linkCorporate law lacks a general theory of a board’s power as fiduciary, and consequently, the law governing corporate fiduciary duties is notably unstable. This Article offers a novel theory that grounds corporate fiduciary duties in stronger microeconomic and legal foundations. The theory, coined the Judicial Monitoring Model (JMM), shows that even imperfect judicial monitoring makes shareholders and boards better off, even when there is no claim of a breach of the duties of loyalty or care as currently understood. The JMM synthesizes the law governing corporate fiduciary duties and other doctrines that protect principals, beneficiaries, and creditors from the risk of agent misconduct due to moral hazard. And it explains why courts evaluate corporate fiduciary conduct in some situations and defer to the board’s business judgment in others.
The JMM also generates surprising empirical predictions. It predicts that, in some cases, courts can and do provide substantive review of corporate transactions even if boards are informed, disinterested, and appear to be acting in good faith. The Article finds evidence of such review in old and recent cases, including a startling number of overlooked cases involving corporate waste
Clark Memorandum: Fall 2024
Full text linkNo Room for Compromise: Religious Polarization in the United States A Banking Lawyer’s Perspective on the Kirtland Safety Society Anti-Banking Company Hope in Dark Times Becoming a Master of Your Thoughtshttps://digitalcommons.law.byu.edu/clarkmemorandum/1075/thumbnail.jp
Corpus Linguistics at the U.S. Patent and Trademark Office
Full text linkThis Article examines the intersection of corpus linguistics and patent law. It introduces the foundations of corpus linguistics and its application to the law and advances the potential for its application to patent examination at the United States Patent and Trademark Office (USPTO). Historically, the disciplines of corpus linguistics and patent law did not intersect until scholars began to consider the application of corpus linguistics to patent litigation for interpretation of terms in patent claims. Interpretation of legal language provided by corpus linguistics and applied to patent examination at the USPTO has yet to be addressed and is a novel application of a unique case study. As proponents and critics of corpus linguistics continue to debate its benefits and challenges, patent examination at the USPTO presents an opportunity to test its application. Scholars have frequently utilized patent data to assess economic, empirical, and statistical hypotheses. Similarly, the historical records pertaining to patents (as well as databases of other prior art) can serve as a basis for a study based on the application of corpus linguistics at the USPTO. Turning to the normative, this Article concludes with proposed reforms to patent examination based on corpus linguistics and research questions for future studies
“Whoever Invents or Discovers”: Artificial Intelligence and the Case for Joint Inventorship
Full text linkArtificial intelligence (AI) is increasingly important in the modern world. Given its fidelity to—and, in some cases, its surpassing of—human performance, people rely upon AI in myriad settings. The AI era is already here, and the technological advancements to come are even more mind-boggling. The United States Patent and Trademark Office (USPTO) has seen a significant increase in patent applications claiming inventions pertaining to AI, but how does the patent system handle when AI invents?
The U.S. Court of Appeals for the Federal Circuit recently held in Thaler v. Vidal that the Patent Act requires inventors listed on patent applications to be natural persons; that is, human beings. The court concluded that the statutory text unambiguously and directly answered the AI inventorship question: “[O]nly a natural person can be an inventor, so AI cannot be.”
Though the court correctly interpreted the statutory text, the current legislative framework is insufficient to handle the rise of AI inventorship. Maintaining the status quo by limiting inventorship to humans creates an ethical dilemma for patentees, deprives the public of innovation, and defeats the purposes and policies of patent law. Though previous scholars have proposed granting AI plenary inventorship, they have failed to address important issues that arise under such an expansive legislative overhaul including patent ownership and the inventor’s declaration requirements.
In this Note, I propose a more limited form of AI inventorship that solves these issues: Congress should broaden the Patent Act, amending it to allow artificial intelligence to be a joint inventor. I analyze how such an amendment allowing joint AI inventorship is constitutional and within Congress’s authority pursuant to Article I, Section 8, Clause 8 of the United States Constitution. I also argue that my unique hybrid approach solves the current ethical dilemma and furthers the purposes of patent law by promoting “the Progress of Science and useful Arts.
Clark Memorandum: Spring 2024
No full textFacing Fear with Faith The Great Law(s) of Peace Grace in the Law Schoolhttps://digitalcommons.law.byu.edu/clarkmemo_gallery/1071/thumbnail.jp
Expectation v. Reality: Practical Problems with the Right of First Refusal as a Defense Against Eminent Domain
Full text linkIn the wake of the U.S. Supreme Court’s decision in Kelo v. New London, many states enacted new laws to protect property owners from eminent domain. One possible defense for property owners is a statutory right of first refusal. In theory, this is a common-sense protection that ensures that if property is not needed for a public use, it is returned to the original owner. Unfortunately, in practice a right of first refusal is not always an effective protection for property owners.
The plaintiff’s experience in the Utah case Cardiff Wales, LLC v. Washington County School District demonstrates Utah’s statutory right of first refusal has at least three major shortcomings. If legislators wish to arm property owners with effective tools against eminent domain, they should learn from Utah’s experience and bolster their own statutory right of first refusal