3722 research outputs found
Sort by
By the Numbers, 2023-2024
Get PDFA compilation of data and statistics highlighting the activities and services of the Dee J. Kelly Law Library at Texas A&M University School of Law for 2023-2024.https://scholarship.law.tamu.edu/documents/1002/thumbnail.jp
Reshaping Intellectual Property Scholarship from Within
Get PDFWritten for the Symposium collecting papers from the Race + IP 23 Conference, this article explores intellectual property scholarship that has been either overlooked or marginalized. Because scholars of color are often outsiders looking in, the article identifies opportunities to reshape intellectual property scholarship from within. Even though the focus of this article was chosen with readers of this Symposium in mind, its insights will be relevant to all scholars. This article begins by calling on scholars to develop a deeper appreciation of the intrinsic motivations of authors and inventors. It then discusses the oft-overlooked inequalities of creativity and innovation within national borders. The article concludes by exploring the linkage between what some commentators have now called critical race intellectual property as well as other scholarship on international intellectual property law, including postcolonial studies, third world approaches to international law (TWAIL), and comparative legal analyses
Whistle-blowing and the incentive to hire
Get PDFWe consider a previously neglected cost of whistle-blower awards: employers may base their hiring decisions, on the margin, not on the productivity of an employee but rather on the probability that the employee will become a whistle-blower. We develop a three-stage model to examine how productivity losses due to distortions at the hiring stage influence optimal whistle-blower rewards. We characterize optimal rewards for whistle-blowing, and show that when rewards can be chosen according to either the benefits of the employer from offending or the productivity of the worker being hired, productivity-based rewards are superior to benefit-based rewards
Transforming Fair Use
Get PDFIn the United States, the fate of fair use, and by extension, copyright itself, hang in the balance. In recent years, courts have disagreed over fair use’s proper scope. On the one side are appellate decisions that interpret fair use broadly. While these decisions do not go so far as to suggest that every reuse is fair, they typically use the talismanic phrase “transformative use” and give it a generous and flexible interpretation. On the other side are appellate decisions that interpret fair use restrictively. While again they do not go so far as to suggest no reuse is fair, they typically either reject the transformative use rubric outright or give it a miserly construction. In Andy Warhol Foundation v. Goldsmith, the Court largely sided with the courts that favored a narrow and restrictive view of transformative use specifically and fair use more generally. In reaching its conclusion, the Court used a variety of interpretative approaches: realism, textualism, and purposivism. This article critically re-examines each of these interpretative approaches and demonstrates that none support the Court’s reasoning and outcome. While courts are bound by the Court’s Goldsmith decision, it is a judicial decision, not legislation. Courts should treat it as such. Each of the Court’s statements on various issue should not be treated as independently binding, but as a reflection of a unified whole, tied to the specific facts of the Goldsmith case. In particular, courts should confine the decision’s application to other instances where a commercial use that was previously licensed is now claimed as a fair use. Wendy Gordon has previously suggested that where licensing is very likely to fail, fair use should be more readily found. Goldsmith represents the opposite side of the coin: Where licensing of a commercial use is very likely to succeed, and indeed, where the copyright owner has previously licensed the precise use at issue, a court should tend to find infringement to reinforce the licensing market in place
Administrative Law\u27s Unavailing Duties
Get PDFThrough a novel empirical approach, this Article shows that legal doctrine does not determine whether federal courts provide remedies when agencies fail to enforce a statutory duty. Plaintiffs are most likely to succeed against the government when litigating statutory procedures located within agency-specific statutes and which raise major policy questions in immigration, healthcare, Native American rights, public housing, the environment, or labor. Others are more likely to lose against the government: plaintiffs litigating statutory violations involving procedures not specific to an agency, but which apply to officers and agencies throughout the bureaucracy. These cases involve duties governing ethics, transparency, recordkeeping, or whistleblower protections (what I call “government accountability” procedures). The results challenge a 50-year scholarly consensus for theorizing about how Congress controls the administrative state. That consensus, which I call the interest group model, states that rather than conduct aggressive, public hearings to control the bureaucracy, Congress prefers to conduct oversight by creating duties within statutes that grant interested parties the ability to seek judicial redress when agencies drift from congressional preferences. The model has been adopted by legal experts, including now-Justice Elena Kagan, to explain how courts oversee the administrative state. And yet, as I show, courts do not provide remedies for violations of government accountability procedures. I theorize that litigating groups, rather than doctrine, motivate the outcomes of judicial behavior in these cases and I contend that the more an interest group can move an issue from a policy focus to a legal one, the more likely courts will entertain a remedy. At the same time, however, I take seriously the prospect that interest groups can rely on Congress to remedy bureaucratic harm. In articulating a “new oversight,” I map out how interested parties who litigate against the bureaucracy can view the congressional oversight process as a remedial channel to procedural violations by regulators
Affirmative Action, Religious Liberty, and The Freedom to Discriminate
No full textDebates over affirmative action in higher education have raged for years. Supporters of the programs argue that they promote inclusion, while opponents believe that they are nothing more than reverse discrimination. A recent decision by the U.S. Supreme Court has banned the use of racial preferences in admissions and made clear that the prohibition applies to both public and private colleges and universities. At the same time, the Court has been strengthening the autonomy of sectarian institutions to act on sincerely held religious beliefs. These two lines of precedent raise the possibility that religiously affiliated colleges and universities might be empowered to continue to use race in admissions if diversity advances a faith-based mission. Unfortunately, that interpretation could open the door to other forms of discrimination, for instance, against members of the LGBTQ community, even as federal funds flow to the schools. The prospect of such state-sponsored discrimination should give pause to anyone who values public norms of equality
The Role of Data Sharing in Transboundary Waterways: The Case of the Helmand River Basin
Get PDFWhile data and information exchanges theoretically play an effective role in the decision-making process of a shared watercourse, in practice, there are several challenges that prevent riparians from sharing data in an effective and cooperative manner. This chapter seeks to assess why the riparian nations of the Helmand River have failed to adopt an effective data exchange mechanism although both nations signed an internationally recognized bilateral water treaty in 1973. Applying a mixed study approach, the study draws on the theory of planned behavior (TPB) to interpret the main obstacles of data sharing between Afghanistan, the upstream state, and Iran, the downstream state, of the Helmand River Basin. Using both secondary literature data and stakeholder interviews, this research found a number of specific factors that impede the ability of the riparian nations of the Helmand River to share data and information, such as national security, political instability, lack of capacity, negative emotions, pride, and historical factors. Our research suggests that these underlying elements have been under-estimated in the TPB models of data sharing at the transboundary level. Thus, borrowing from Wehn’s model (2003b), we have developed a modified version of TPB to unpack the challenges of data sharing between the riparian states of the Helmand River Basin
Persistent Identifiers and the Next Generation of Legal Scholarship
Get PDFThis article discusses the importance of the most common persistent identifiers in scholarly communications—the digital object identifier and the ORCID identifier—to legal scholarship. Persistent identifiers help preserve and disseminate academic content and data-driven services that leverage this information standard are now integrated into the publication process. Because legal publishers have not widely adopted persistent identifiers, the legal discipline cannot enjoy the benefits offered by this system. This article looks at barriers to implementing persistent identifiers among legal publishers and provides an anecdotal example of creating a sustainable workflow between the law library and student-run law journals
(The Act of) God’s Not Dead: Reforming the Act of God Defense in the Face of Anthropogenic Climate Change
Get PDFNatural phenomena like floods, droughts, and blizzards have a long history of causing damage. But these natural phenomena are now more frequent, intense, and therefore, foreseeable because of anthropogenic, or human-caused, climate change. Owing in part to the greater foreseeability of natural phenomena like weather, scholars believe the act of God defense—which excepts actors from liability when an unforeseeable and irresistible natural phenomenon is the proximate cause of damage—may be dead. Other scholars go further and argue the act of God defense should be dead, as corporate defendants can use it to evade liability even when their acts causally contribute to climate change. Despite the strength of these scholars’ arguments, those highlighting and even advocating for the demise of the act of God defense overlook the possibility that eliminating the defense will unfairly expose everyday people to liability. This Comment thus addresses scholars’ valid concerns with the act of God defense in light of climate change, examines arguments for why the defense should be excised from the law, and then argues that keeping but modifying the defense is the best way to address criticisms without unjustly harming everyday people
Beyond the Binary: AI, Ethics, and Liability in the Legal Landscape
Get PDFAs the legal landscape evolves with the integration of artificial intelligence (AI), attorneys will face ever more complex ethical challenges and practical dilemmas. This article delves into the intricacies of AI utilization in legal practice, emphasizing the need for proactive strategies to uphold ethical standards while harnessing the benefits of AI tools. Through real-world examples and hypothetical scenarios, it examines the importance of AI training and education for attorneys, highlighting the necessity of understanding AI tool functions, limitations, and potential pitfalls. Moreover, the article advocates for the implementation of rigorous AI oversight and review processes within law firms to ensure competent representation and safeguard client interests. By striking a balance between AI utilization and human expertise, attorneys can navigate the evolving legal landscape while upholding ethical standards and providing clients with competent representation