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DOES A CUSTODIAL RIGHTS UNDERSTANDING OF THE GDPR JUSTIFY FRAUDULENT MISREPRESENTATION BY SPERM DONORS?
Get PDFSomeone Has To Keep the Lights On: Justifitying the Use of Deffered Prosecution Agreements for Public Utility Companies Operating in the Public Interest
Get PDFThe Sweet Escape: Policy Concerns of Approving Nonconsensual Nondebtor Releases in Chapter 11 Bankruptcy Cases
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COVID, Sex Discrimination, and Medical Research
No full textWith the striking difference in mortality rates, understanding women’s biological reactions to COVID-19 might actually provide the best bet for a treatment for COVID-19, but the medical research system has traditionally been biased toward research on men. In the project we undertook and report in this Article, we analyzed the burgeoning medical research literature about COVID-19 and found that the historical failure to take women’s symptoms and needs into account continues to this day. Our project also illustrates what the societal costs are of that failure.
Part I of this Article analyzes the history of sex discrimination in medical research. Part II discusses the regulatory attempts in the 1990s to enroll women in more medical studies to rectify the disproportionate focus on men in medical research and why those efforts fell short. It also analyzes recent policies designed to encourage precursor research on female animals and female cells. Part III addresses the differing effects of COVID-19 on men and women. It demonstrates how, in the course of research on COVID-19, women’s symptoms and needs are again being ignored even though understanding women’s response to COVID-19 might hold the key to a treatment. Part IV argues that more stringent regulations are necessary, not just to benefit women, but to benefit us all. It also points out that the context in which medical research is undertaken must be taken into account if we are to vanquish this global pandemic
Equality and Family Autonomy (forthcoming)
No full textContemporary family law scholarship and a growing body of doctrine often assume that a functional approach to family law – treating those who have acted like family as family – is the best way to secure equal treatment for people who live in relationships that have not been recognized legally as familial. This article argues that these functional claims, made in the name of equality, inevitably disrupt the very protection they are asking for because they undermine principles of family privacy and autonomy. In unpacking the benefits of a robust family autonomy doctrine – benefits that are crucially important to communities of color and LGBTQ communities - this article challenges not only the functional turn in family law, but feminist scholarship that has been critical of family autonomy and privacy doctrine. Building on the consistent defense of privacy that emanates from women scholars of color, this article demonstrates how functional analyses demand interference and judgement that is likely to tear at the fabric of minority communities. Functional approaches vest judges with the power to define who a family is and what it should look like. This article shows how when judges do this in the parental area, they reify dyadic, heteronormative, usually white middle class notions of parenthood. When they do it in the context of cohabitation, they reify gender roles and a morality that assumes the ubiquity of long-term conjugal relationships. Thus, the functional turn, hailed as progressive, actually re-inscribes traditional understandings of family relationships
Does Fair Use Matter? An Empirical Study of Music Cases
No full textCopyright law recognizes fair use as a general limitation. It is assumed that fair use provides breathing room above and beyond the determination of infringement to facilitate the creation of new works of expression. This conventional account presupposes that fair use matters—that is, fair use provides greater leeway to a defendant than the test of infringement. Despite its commonsense appeal, this assumption has not been empirically tested. Except for fair uses involving exact copies (for which infringement would otherwise exist), it has not been proven that fair use makes much, if any, difference in results. Indeed, in one sector, the music industry, defendants have avoided pursuing fair use as a defense in most infringement cases (except parodies) decided under the 1976 Copyright Act. This fair use avoidance is surprising given that musicians now face a spate of lawsuits due to a predicament we call copyright clutter, which occurs when copyrights protect numerous subelements of many works in a field of creation, thereby making it difficult for people to create a new work in that field without facing exposure to copyright liability simply based on a similar subelement. If fair use provides breathing room, why do musicians avoid it?This Article provides the first empirical testing of the significance of fair use as a defense. In an experimental study involving approximately 500 subjects, we found that fair use does make a difference: subjects found no liability more frequently under fair use than the test of infringement when examining the same case. And greater knowledge of music or law resulted in higher findings of no liability under fair use. These findings provide a better conceptual understanding of how fair use operates and practical information for litigants that call into question the predominant strategy of musicians avoiding fair use as a defense. Such a strategy may result in greater findings of liability where fair use would have otherwise been found
#OMG - Omissions As Media Gaffes: Endorsements in Social Media Advertisements and Influencers\u27 Disclosure Obligations
Get PDFCourt decisions in Germany tend to draw little media interest, but an exception to this comes in the form of decisions relating to disclosure obligations on social media, such as the recent case involving Cathy Hummels. Due to enforcement issues and the paucity of damages awarded to individual and companies, there is a significant lack of literature on this field of law. As a consequence, this study, which compares the U.S. and Germany while also proposing how, exactly, the law needs to change, is unique. Hardly any other area of law is home to this much ambiguity that affects such a large number of people, and as a result, the present legal situation cannot be allowed to continue. Neither advertisers, influencers, nor social media platforms know what, and in particular, how, they are supposed to disclose their connections to companies, nor do social media users know what they can expect from posts they see on the internet. After an overview of the entire field, a comparison between the German system and the U.S. system, with its larger market, reveals that American law suffers from similar gaps as German law. The most pressing issues are that, in Germany, it is not clear when disclosure needs to be made, while the extent of a disclosure needs to be clarified in both systems. A proposal to balance the freedom of influencers with the risk of misleading social media users is put forward, in a form that would enable it to be added to existing legislation. In both systems, social media platforms would have to provide a visual tool, like a frame or button, which would have to be used by influencers. This would enable social media users to easily distinguish between sponsored content and content that has no connection to an advertiser while scrolling through posts and without having to look at the content of the post itself. In Germany, a definition would be amended to trigger the disclosure obligation only if the post represents a direct commercial benefit for the influencer, such as a paid relationship or the initiation of a contract
