Monthly Archives: May 2022
May 31, 2022 Pamela SamuelsonIntellectual Property Law
Clark Asay,
An Empirical Study of Copyright’s Substantial Similarity Test, 13
UC Irvine L. Rev. __ (forthcoming, 2022), available at
SSRN.
Far fewer empirical studies in the intellectual property field have focused on copyrights than on patents. Each new entrant to this small field is, however, welcome. The latest offering by Clark Asay reports on his study of a random sample of 1005 judicial opinions assessing substantial similarity infringement analyses in 974 cases decided between 1978-2020. He coded for subject matters, rights in dispute, procedural postures, subtests, expert evidence, whether courts discussed copyright limitations, sources of authority, and outcomes.
Those of us who teach copyright law have long had the impression that substantial similarity analyses in the opinions we teach are a hot mess. Asay has now provided empirical evidence that this impression is mostly quite accurate. Continue reading "Surprising Results of a New Study of Copyright Substantial Similarity Analyses"
May 30, 2022 Verity WinshipInternational & Comparative Law
Is criminal prosecution a tool of foreign policy? Should it be? The US arrest of Huawei’s CFO and US indictments of Russian hackers, Venezuelan President Maduro, and others make these particularly timely and worthwhile questions. Steven Arrigg Koh’s article, The Criminalization of Foreign Relations, provides a response, ultimately arguing for a constrained role of “extraterritorial law enforcement policy” in foreign relations.
The article’s main move is to consider criminal actions as part of the classic list of foreign policy tools alongside “diplomacy, cooperation and association agreements, trade, economic sanctions, military force, and the use of foreign aid.” (P. 739.) The author then makes the case for a cabined and depoliticized use of the tactic. Criminal actions, he suggests, should be confined to contexts that take advantage of their basic characteristics: They are individualized, retrospective, involve lots of process, and have high stakes, with incarceration as a possible outcome. (Pp. 757–58.) And they are “adjudicated before a neutral branch of government in adherence to a broader rule of law.” (P. 758.) Continue reading "Law Enforcement as Foreign Policy"
May 27, 2022 Jay TidmarshCourts Law
Diego A. Zambrano,
Missing Discovery in Lawyerless Courts,
122 Colum. L. Rev. __ (forthcoming 2022), Jan. 5, 2022 draft available at
SSRN.
Because 98% of civil litigation occurs in state court, we procedure scholars can be criticized for our myopic focus on procedures in federal courts. An emerging body of scholarship is adjusting that perspective by telling us much more about what is occurring in state courts — and it is eye-opening. To pick a few examples, Pamela Bookman and Colleen Shanahan (reviewed here) have shown how, in contrast to “lawyered” federal courts, state courts are often “lawyerless courts” where at least one party is unrepresented. Daniel Wilf–Townsend samples state-court dockets and uncovers, among other nuggets, that ten corporations account for an astounding 24% of the 16 million annual state-court filings. If we are concerned about access to justice, we should heed the advice of Anna Carpenter, Jessica Steinberg, Colleen Shanahan, and Alyx Mark to do more empirical research and more theoretical analysis about the roles of lawyers and judges in the fluid and evolving world of state-court litigation.
Diego Zambrano takes on one piece of this task by exploring how discovery operates in state courts. Zambrano has become a distinctive voice on discovery. He has proposed seeing it as a regulatory tool (in contrast to the usual view that it is meant to aid in the accurate and fair adjudication or settlement of individual cases). His co-authored piece on the myriad ways in which parties can poison the well of technology-assisted review is required reading for anyone who hopes that artificial intelligence will harness and solve the problems of discovery in document-intensive litigation. In Missing Discovery, Zambrano examines how discovery plays out in some of the largest categories of state-court litigation, in which individual litigants are likely unrepresented: small-claims and debt-collection cases, landlord-tenant disputes, family matters, and appeals from agency decisions in areas such as workers’ comp or unemployment insurance. Continue reading "Discovery in State Courts"
May 26, 2022 André den ExterHealth Law
Every field of law has some comparative law studies, including health law. A search in the legal databases gives several hits using the keyword comparative health law; in other words, comparative law is ‘hot’. However, the comparison is often limited to a single topic (medical negligence, euthanasia, patients’ rights, etc.) and a limited number of jurisdictions. The added value of the Oxford Handbook of Comparative Health Law is the comprehensive nature of the study: a wide range of related topics within contemporary health law is addressed (regulating public health, health financing, health services and facilities, pharmaceuticals, the patient-provider relationship, new medical technologies, and end-of-life decision making). The editors opted for a so-called transatlantic approach, specifically comparing the United States and Europe. This choice is justified by the differences and similarities between the legal frameworks of health law in these regions. All in all, this is an ambitious project, partly because the legal rules can differ considerably between states and at the country level.
It is precisely the scope and quality of the legal comparison conducted that allows this Handbook to make a valuable contribution to the understanding and resolution of contemporary issues within health law. Mistakenly, health law issues are often approached exclusively as unique to the legal system in question, but the difference in manifestation does not make the issue any different in other jurisdictions. The question that needs to be asked first is why a particular legal rule is shaped differently in form and substance in different national jurisdictions. With respect to such explanatory research, as described by Dannemann: “Generally speaking, the (comparative) analysis should seek to explain differences and similarities as they arise from the description of the legal systems under consideration, so that whoever has predominantly found similarity, will predominantly have to explain similarity, whereas those who have predominantly found differences, will predominantly have to explain differences”. Continue reading "Health Law: A Transatlantic Dialogue"
May 25, 2022 Ayelet Blecher-PrigatFamily Law
Sean Hannon Williams,
DNA Dilemmas, __
Yale L. & Pol’y Rev. __ (forthcoming 2022), available at
SSRN.
The expansion of direct-to-consumer DNA tests and databases that retain vast DNA data enables almost unlimited access to genetic information and leads to situations in which people make surprising discoveries about their genetic origins. Sometimes people learn that a person who is identified on their birth certificate as their parent is not their genetic parent. Occasionally, people faced with such findings want the law to take account of this discovery, inter alia by amending their birth certificates. In DNA Dilemmas, Sean Hannon Williams uses such cases as a basis to kick off a provocative intellectual journey into the meaning of legal parentage and the relationship between self-identity and state recognition, and he offers fresh insights on these issues with broad implications for further research.
Williams first offers a new conceptual framework for post-majority parentage. Existing family law doctrines are largely focused on the parent-child relationship when the child is a minor, and in this context, the meaning of legal parentage is one of the most debated topics in legal scholarship today. Williams exhorts the law to recognize parentage beyond a child’s minority as a significant and distinct legal category that is grounded in different normative justifications and thus should be governed by different rules from those that apply during a child’s minority. Williams’s argument in this regard is powerful, since for all that the law focuses on parentage during the child’s minority, the reality is that the parent-child relationship generally lasts much longer after the child reaches adulthood than it does during the child’s minority. Continue reading "Parentage, Identity and DNA"
May 24, 2022 Very Fakeditor
Even before Juliet Stumpf coined the term “Crimmigration” in her 2006 article The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, scholars were developing a steady flow of legal and empirical scholarship focusing on a sharper demarcation and a better understanding of crimmigration – or the merger of crime control and migration control. From its initial strong focus on understanding the legal ramifications of the growing convergence between criminal law and immigration law, over time, the scope of the scholarship widened. Until recently, the main ‘actors’ in crimmigration research were either state-agents such as border guards, immigration officials, the legislature, the police, etc., or migrant communities that were subjected to and affected by crimmigration. Recently, by building on the notion of ‘crimes of solidarity’, NGO’s and activists defending immigrant rights have been introduced as actors subjected to crimmigration.
In their article Solidarity under siege: The crimmigration of activism(s) and protest against border control in Spain, López-Sala and Barbero are describing how, in Spain, repressive tactics are being employed against the state against various activists and immigrant-right initiatives. Their analysis paints a grim picture that unfortunately is illustrative of a European Union-wide development. In response to fears of mass migration to the European continent, many European states have formalized so-called crimes of solidarity, also referred to as ‘intolerable solidarity’. Interestingly enough, whereas this tendency in most European countries was sparked by the so-called 2015 ‘European Refugee Crisis’, the criminalization of activists in Spain predates the ‘crisis’ and is part of an earlier punitive turn that started about 30 years ago. As part of this punitive turn, (im)migration has been generically categorized as a source of ‘criminality’ that must be contained at the border and controlled within the territory. At the same time, rules were put in place to control and sometimes sanction various forms of social protest, as it was framed as a public disturbance. By tracing the legal history, the authors indeed paint a picture of an increasingly intolerant state that is putting various mechanisms in place to control (im)migration and to silence those protesting against the state’s laws and policies. These ‘gag’ laws seem to cover a range of criminal but mostly administrative measures, as the latter category requires far fewer guarantees for defendants, whereas police and the administration have certain privileges and can act with much greater discretion. Continue reading "Criminalizing Soidarity2"
May 24, 2022 Maartje van der WoudeCriminal Law
Even before Juliet Stumpf coined the term “Crimmigration” in her 2006 article The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, scholars were developing a steady flow of legal and empirical scholarship focusing on a sharper demarcation and a better understanding of crimmigration – or the merger of crime control and migration control. From its initial strong focus on understanding the legal ramifications of the growing convergence between criminal law and immigration law, over time, the scope of the scholarship widened. Until recently, the main ‘actors’ in crimmigration research were either state-agents such as border guards, immigration officials, the legislature, the police, etc., or migrant communities that were subjected to and affected by crimmigration. Recently, by building on the notion of ‘crimes of solidarity’, NGO’s and activists defending immigrant rights have been introduced as actors subjected to crimmigration.
In their article Solidarity under siege: The crimmigration of activism(s) and protest against border control in Spain, López-Sala and Barbero are describing how, in Spain, repressive tactics are being employed against the state against various activists and immigrant-right initiatives. Their analysis paints a grim picture that unfortunately is illustrative of a European Union-wide development. In response to fears of mass migration to the European continent, many European states have formalized so-called crimes of solidarity, also referred to as ‘intolerable solidarity’. Interestingly enough, whereas this tendency in most European countries was sparked by the so-called 2015 ‘European Refugee Crisis’, the criminalization of activists in Spain predates the ‘crisis’ and is part of an earlier punitive turn that started about 30 years ago. As part of this punitive turn, (im)migration has been generically categorized as a source of ‘criminality’ that must be contained at the border and controlled within the territory. At the same time, rules were put in place to control and sometimes sanction various forms of social protest, as it was framed as a public disturbance. By tracing the legal history, the authors indeed paint a picture of an increasingly intolerant state that is putting various mechanisms in place to control (im)migration and to silence those protesting against the state’s laws and policies. These ‘gag’ laws seem to cover a range of criminal but mostly administrative measures, as the latter category requires far fewer guarantees for defendants, whereas police and the administration have certain privileges and can act with much greater discretion. Continue reading "Criminalizing Solidarity"
May 23, 2022 Omari SimmonsCorporate Law
Stavros Gadinis and Amelia Miazad,
A Test of Stakeholder Capitalism, __
J. Corp. L. __ (forthcoming, 2021), available at
SSRN.
Stavros Gadinis and Amelia Miazad’s thought-provoking paper, A Test of Stakeholder Capitalism, reveals certain shortcomings of the current academic debate on stakeholder governance.
Somewhat buried in a polarized corporate-purpose debate between shareholder primacy and stakeholder-centric perspectives is a novel narrative of evolution within companies. The authors note that the pandemic’s far-reaching and diverse effects on all types of companies and stakeholders offer a unique glimpse into corporate engagement with stakeholders. However, they caution that we cannot attribute the recent emphasis on stakeholders to the pandemic alone.
Instead, they argue, the pandemic has hastened an ongoing evolution: companies adapt to the complex business environment by developing mechanisms to proactively address stakeholder concerns as a risk management tool. Their collection and evaluation of stakeholder information is a process that ultimately enhances director oversight. Gadinis and Miazad capture this trend and illustrate how companies are becoming more sensitive to business risks, particularly those that are hard to predict; for example, various types of social and political risks. Continue reading "The Pandemic’s Testing of Stakeholder Governance"
May 20, 2022 Hila KerenContracts
Each time we browse the web, we are steered into making dubious contracts. A common example is digital platforms’ pressure that users click to ‘ACCEPT ALL COOKIES.’ Web designers not only make the ‘accept’ button the most eye-catching option, they often enhance the effect by having it block what users really want to view. Additionally, the disfavored behavior of rejecting some cookies is intentionally made to frustrate, frequently requiring users to navigate through several screens and choose between deliberately confusing alternatives. When users surrender to this design, they consent to sell their information to innumerable entities without reward—manipulated into donating their private data to sophisticated strangers.
In Shining a Light on Dark Patterns, Jamie Luguri and Lior Strahilevitz do a remarkable job explaining and demonstrating the problem and starting the search for solutions. Their important article contributes to a growing body of literature that discusses the fast-spreading phenomenon of using big data and advanced technologies to prey on human biases and maneuver the decision-making of countless people. As the authors specify, the behavior is based on “altering online choice architecture in ways that are designed to thwart users’ preferences for objectionable ends.” (P. 52.) Their article presents a long list of recognized methods used to manipulate customers, offering examples that would be too familiar to apps and digital platforms users. And, yes, these examples include the method of convincing people to choose the firm-friendy option of accepting all cookies, calling it “interface interference.” Continue reading "Vast Scale Undue Influence"
May 19, 2022 Christopher W. SchmidtLegal History
Sarah A. Seo,
A User’s Guide to History,
in Research Handbook on Modern Legal Realism (Shauhin Talesh, Elizabeth Mertz, & Heinz Klug eds., 2021), available at
SSRN.
In A User’s Guide to History, Sarah A. Seo offers a thoughtful and challenging assessment of the possibilities and pitfalls of using historical scholarship to guide our present. At the heart of her essay is a tension between needs and methods. We need to know the past to understand the present; we need to know what we’ve done before so we can make the right choices about policies today. But, as Seo strikingly puts it, “history’s methods seem unsuited for determining what, exactly, those policies should be.” To demand that history has a “practical use,” that it serves as “a tool for reform,” may be “something like a suicide mission,” putting at risk “the integrity of the discipline.” (P. 465.)
Seo’s essay—a contribution to the Research Handbook on Modern Legal Realism— thus offers historians a warning, a reminder of the limits of their craft. The essay can be read as a critique of historians who, moved by some combination of enthusiasm, desire for attention, and moral commitment, too confidently claim special insight into present-day legal and political choices. Continue reading "Using the Past"
