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FSU Law Focus - 05/12/2023
Get PDFFrom the Dean: Celebrating class of 2023; PILC Honors Outstanding Students; Alum Profile: Khari A. James (\u2717); Profile: May 2023 Grad Brian Makihttps://ir.law.fsu.edu/fsu-law-focus/1269/thumbnail.jp
Bracing Scarcity: Can NFTs Save Digital Art?
Get PDFRebecca creates an artwork. David mints an NFT that links to Rebecca’s work. Is David making a copyright infringement? This question — probably the most fundamental one at the intersection between copyright and the technology of non-fungible tokens (NFT) — is the focus of this Article. As surprising as this may sound, the answer is not at all obvious under the extant copyright law. This Article argues that from a policy standpoint, the answer must be positive. Expounding this issue is imperative in order for the NFT technology to fulfill its potential for creative works markets. In this Article, we analyze the markets for digital artworks and show that NFTs could potentially address the most pressing and long-lasting dilemma of art and the digital world: how to maintain the incentive to create digital art without overshadowing the big promise of the internet — to maximize access to content. This incentive-access friction was so far perceived as a necessary trade-off in copyright theory, and the internet presented a powerful manifestation of it. It has become a truism: the more enhanced the access to works has become online, the less likely artists were to benefit from their works. Everyone had to pick a side or draw the line somewhere on this incentive-access continuum. NFTs may open a way to move past the incentive-access paradigm. NFT transactions occur on the blockchain — a separate, parallel platform — and they do not affect the availability of the work outside of the platform. Thus, NFTs can revive scarcity and authenticity in the digital sphere, while at the same time not harming a bit the access to the works. While this could feature a dramatic improvement, this potential can only be realized if copyright law awards exclusive rights over minting to rightsholders. If all can mint NFTs, scarcity is lost again, and artists cannot benefit from art sales. This Article offers at least three novel contributions to the literature. First, it establishes the case for exclusive minting-rights to authors based on an analysis of art markets and the attributes of the NFT technology. It also shows that exclusive minting-rights to authors can promote other crucial objectives such as distributive justice and cultural diversity in art markets. Second, it analyzes the legal mechanisms that can effectuate the desired result of exclusive minting rights. Third, this Article’s analysis of NFTs illustrates more generally different approaches to the design of copyright law amid emerging technologies, which is a contentious and hotly debated issue
FSU Law Focus - 07/07/2023
Get PDFFrom the Dean: Frederick Abbott appointed chair of Technology Advisory Group to the World Health Organization Local Production and Technology Program; Faculty Profile: Erika Nyborg-Burch; Alum Profile: Susan J. Latham (\u2703); Profile: Celebrating 2023 Grad Angelique Howardhttps://ir.law.fsu.edu/fsu-law-focus/1180/thumbnail.jp
FSU Law Focus - 01/20/2023
Get PDFFrom the Dean: Florida Supreme Court Fellows; FSU Law Ranked Nation’s #8 Best Value Law School; Alum Profile: Erin G. Jackson (’00); Student Profile: 3L Anna Luskhttps://ir.law.fsu.edu/fsu-law-focus/1291/thumbnail.jp
Climate Change and the Challenge to Liberalism
Get PDFIn this editorial, we consider the ways in which liberal constitutionalism is challenged by and presents challenges to the climate crisis facing the world. Over recent decades, efforts to mitigate the climate crisis have generated a new set of norms for states and non-state actors, including regulatory norms (emission standards, carbon regulations), organising principles (common but differentiated responsibility) and fundamental norms (climate justice, intergenerational rights, human rights). However, like all norms, these remain contested. Particularly in light of their global reach, their specific behavioural implications and interpretations and the related obligations to act remain debatable and the overwhelming institutionalization of the neoliberal market economy makes clear and effective responses to climate change virtually impossible within liberal societies
Rethinking the Federal Emergency Powers Regime
Get PDFEmergency has assumed central importance in the United States legal system. In 2019, President Trump declared an emergency at the southern border after Congress declined to fund his wall; critics responded with legal challenges and proposed reforms to the statute he invoked, the National Emergencies Act (NEA). Emergency powers have also played a key role during the COVID-19 pandemic. This Article conducts a comprehensive survey of emergency powers in the United States. It shows that the NEA is only one among many grants of authority presidents can call upon in a crisis, alongside other emergency schemes, specially delegated statutory power, nonemergency statutes, and inherent executive authority. It argues that the United States\u27 fragmented emergency powers scheme raises not only well-known risks of overreach presidents abusing emergency authority to gain power or erode democracy, but also less appreciated risks of underreach where presidents are unwilling or unable to deal adequately with a crisis. These risks are not distributed evenly across types of crises, and events like the pandemic, where several of President Biden\u27s major initiatives have been struck down by the Supreme Court, highlight the kind of emergency for which the risk of underreach is most acute. Finally, the Article draws on emergency clauses found around the world to lay out a reform agenda more ambitious than those currently circulating in Congress, which would tackle both overreach and underreach. It would combine broader, more coherent grants of power with productive forms of congressional and judicial control
Judicial Reform or Abusive Constitutionalism in Israel
Get PDFHow should the constitutional reform in Israel be assessed in comparative terms? Comparative constitutional understandings point to the centrality of three key sets of norms as part of the ‘democratic minimum core’: (i) commitments to free and fair, regular multi-party elections; (ii) political rights and freedoms; and (iii) a system of institutional checks and balances necessary to maintain (i) and (ii). Any change in judicial power and independence must be assessed against the benchmark of the democratic minimum core, and by reference to its cumulative practical effect on a system of institutional checks and balances.
We claim that recent changes in Israel may already threaten these institutional checks, and have the potential to do more damage in the future, if given broad effect and if combined with further changes in the power and independence of the Supreme Court. On this basis, we suggest, the relevant changes should be viewed as either ‘abusive’ or ‘proto-abusive’ in nature. By threatening to undermine both the power and independence of the Supreme Court of Israel, they directly threaten the health of the constitutional checks and balances system and, hence, the ‘democratic minimum core’ in Israel
Two Models of Protecting Democracy: Federalism and the U.S. Deviation
Get PDFThis Article contrasts two different models for protecting democracy. The first model, which is common globally, relies on insulated, apex-level independent institutions to protect sensitive democratic functions like administering elections and prosecuting wrongdoing by high level governmental officials. The United States largely eschews this approach and instead relies much more heavily on a second approach, which decentralizes sensitive functions among a large number of state and local officials, who are often not very insulated from politics. This Article describes the benefits and costs of each model in light of recent attacks on electoral administration in the United States. Moreover, it suggests two possible syntheses of interest in the United States: one which seeks to create apex-level institutions such as a strong, national electoral commission alongside decentralized institutions, and the other which seeks to provide better insulation of local institutions so that they are harder to capture
When Originalism Failed: Lessons from Tort Law
Get PDFTwo recent Supreme Court decisions upended American life. Opinions released on consecutive days in June 2022 overturned the right of reproductive choice nationwide and invalidated a statute regulating the carrying of concealed weapons in New York. The opinions were united by a common methodology. Pursuant to what one scholar terms “thick” originalism, history, as told by the majority, dictated the resolution of constitutional disputes. This Article explores the use of thick originalism in several celebrated torts cases that raised constitutional issues. These cases illustrate two significant kinds of problems associated with a rigid historical approach to constitutional interpretation. The first is practical: the historical meaning and intended application of constitutional provisions often are elusive. In some instances, courts simply commit outright errors in constructing the historical narratives on which the decisions rest. In other cases, the use of thick originalism requires judges to exercise wide discretion to determine where to begin a historical inquiry and which sources to consult. This wide discretion, and the related problem of judicial bias associated with highly discretionary interpretive practices, are the very problems originalism is said to solve. The use of thick originalism may create the appearance of objectivity, but in fact considerable subjectivity of judgment is simply buried in the construction of the histories governing the out-come in these cases. The second problem associated with the use of thick originalism is normative. The use of a rigid form of originalism to define the contours of constitutional rights interrupts the ordinary operation of the common law and imposes on today’s society the values of the dominant white, male, and propertied power structure existing at the time of the adoptions of the Constitution and the Fourteenth Amendment. Society today is different than in the largely agrarian communities that composed the United States at the Founding. Solutions to Founding-era problems do not necessarily translate to the modern United States