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Book Chapters

Book Chapters

 
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  • Toward Pluralism in United States Intellectual Property by Michael J. Burstein

    Toward Pluralism in United States Intellectual Property

    Michael J. Burstein

    This chapter synthesizes from Dreyfuss’s scholarship a pluralistic vision of intellectual property law in the United States. This vision places positive law IP rights alongside non-IP innovation incentives in an institutional structure that allows both to thrive in various technological or creative contexts. Dreyfuss arrives at this vision by situating intellectual work in its larger technological and business, not merely legal, contexts. It is not bound by the distinctions among positive law IP rights and is sensitive to non-IP law that may impact innovation, and it pays close attention to institutional arrangements outside of IP that bear on innovation. This chapter concludes with two lessons from Dreyfuss’s approach. Methodologically, IP scholarship and policy would benefit from greater use of techniques that uncover context-specificity. Substantively, just as IP law itself might productively be thought to be technologically specific, so too might be the non-IP legal institutions that help shape innovation.

  • The International Crimes of Slavery and the Slave Trade: A Feminist Critique by Jocelyn Getgen Kestenbaum and Patricia Viseur Sellers

    The International Crimes of Slavery and the Slave Trade: A Feminist Critique

    Jocelyn Getgen Kestenbaum and Patricia Viseur Sellers

    Existing from ancient times to today, slavery and the slave trade have spared neither females nor males, children nor adults. Sexualized violence through specific practices, such as inter alia concubinage and enslavement of eunuchs in harems, forced breeding of wenches and bucks, and the keeping of ‘fancy girls’ and bardaj boys, were integral to slavery and slave trades across the globe. This chapter offers a critical feminist lens to uncover and examine the sexual practices and sexualized violence inflicted upon the subjects of the 1926 Slavery Convention: the slaves. Examining the historic, gendered, and sexualized institutions of slavery and the slave trade facilitates a more complete understanding of the Convention’s legal definitions. Similar scrutiny of slave traders’ and slave owners’ economic needs and social customs further deduce the definitional scope of these crimes. The authors posit that the 1926 Slavery Convention’s definitions encompassed diverse gendered, sexualized norms that historically have permeated slavery and the slave trade, while observing the misguided use and desuetude of the crimes of slavery and the slave trade in the statutes of contemporary international judicial mechanisms. The authors conclude by advancing the application of distilled legal precepts to redress the sexually saturated and gender-based practices of slavery and the slave trade that persist today.

  • Chapter 33: Lessons by Richard H. Weisberg

    Chapter 33: Lessons

    Richard H. Weisberg

    Building on an earlier 'Three Lessons on Law and Literature', the author explores 'Every Word Counts'; 'But More So if We Permit 'Extrinsic Evidence'; and 'On Moral Fiction'. Each Lesson identifies the titular phrase's significance for both Law and Literature, arguing that the two narrative disciplines are indeed One. The sources encountered range from the Hebrew Bible and the New Testament - arguing that these two texts could not be more opposed both in letter and spirit and that the former has been usurped and manipulated beyond recognition by the latter - to Shakespeare. Ordinary cases from the law of Trusts and Estates, John Gardner's 'On Moral Fiction', and many other twentieth century American literary and legal theorists are criticized from this perspective.

  • How Should Congress Respond to Jarvis? The Case for Letting States Experiment With Private Sector Retirement Savings Plans by Edward A. Zelinsky

    How Should Congress Respond to Jarvis? The Case for Letting States Experiment With Private Sector Retirement Savings Plans

    Edward A. Zelinsky

    The U.S. Supreme Court has ended the saga of Howard Jarvis Taxpayers Association v. California Secure Choice Retirement Savings Program by declining to review the decision of the U.S. Court of Appeals for the Ninth Circuit. By refusing to review this circuit court decision, the Supreme Court left intact that decision and its holding that ERISA does not block the CalSavers IRA program.

    In the wake of these events, some urge the federal government to move into the space occupied by CalSavers and other state programs encouraging less affluent Americans to save for retirement. I instead propose that, the post-Jarvis world, Congress should eschew any mandate that private employers adopt IRAs or other retirement programs for their employees. The states should continue to experiment in this area rather than the federal government imposing a single national pattern. Different states will pursue different courses, thereby testing alternative possibilities. Experimentation by the states will provide information about diverse approaches.

    To facilitate such experimentation by the states, the federal government should clarify two legal issues concerning state-run retirement programs for the private sector. First, employers covered by state-administered IRA programs should be permitted to make supplemental contributions to their employees’ IRAs without such employer contributions converting the state IRA program into an ERISA-governed arrangement. Second, employers not required by state law to participate in a state retirement plan for private sector employers should be allowed to voluntarily elect participation without such voluntary participation triggering ERISA coverage for the state plan.

  • Media Relations in Criminal Corruption Cases by Jessica A. Roth

    Media Relations in Criminal Corruption Cases

    Jessica A. Roth

    High-profile corruption cases often attract media scrutiny, as they involve matters of significant public interest. Cardozo Law Professor Jessica Roth provides guidance about how to balance the public’s legitimate interest in being informed with other important interests, including a defendant’s right to due process; the privacy and reputational interests of witnesses, subjects, and targets; and the integrity and effectiveness of ongoing investigations. She explores the requirements in the Model Rules of Professional Conduct, recent cases, and standards published by the U.S. Department of Justice, and suggests that offices develop thoughtful policies to guide public statements.

  • ‘Sexualized Slavery’ and Customary International Law by Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum

    ‘Sexualized Slavery’ and Customary International Law

    Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum

    This chapter examines the doctrinal avenues for the recognition and prosecution of ‘sexualized slavery’. The Hissène Habré trial and appellate judgments represent watershed legal decisions rendering long-denied justice to victims of the brutal Chadian regime. Delayed charges of credible sexual violence inflicted upon both males and females challenged the judges of the Extraordinary African Chambers (EAC) in Senegal. Legal characterizations of sexual assaults ultimately attributed to Habré represent significant jurisprudential advancements on rape, sexual slavery, and torture as international crimes. The EAC's observations acknowledge that sexual slavery constitutes part of the actus reus of enslavement as crime against humanity and of slavery as a war crime. While agreeing with the Chambers that sexual slavery is anchored in customary international law, the chapter deepens the inquiry into the international legal prohibition of sexual slavery. It posits that, in fact, the 1926 Convention to Suppress the Slave Trade and Slavery (1926 Slavery Convention) proscribed what is identified as ‘sexual slavery’ because sexualized violence is and always has been part and parcel of both de jure (legal) and de facto (customary) forms of slavery.

  • Open Innovation and Ex Ante Licensing by Michael J. Burstein

    Open Innovation and Ex Ante Licensing

    Michael J. Burstein

    Collaboration and sharing are critical to modern innovation environments, yet the conventional model of intellectual property is premised on the sole inventor. This chapter surveys the various institutional arrangements that challenge that premise—ex ante licensing, open innovation, user innovation, peer production, and knowledge commons. It argues that in innovation environments marked by collaboration, the common economic challenge is not sustaining incentives to innovate, as in the classic model, but overcoming barriers to information exchange. Intellectual property can, in some circumstances, facilitate the diffusion of information. But the role that IP plays in collaborative environments is complex and context-specific, as the existing empirical studies of open innovation and its variants have revealed. This suggests that intellectual property policy ought to be pluralistic, allowing for the development of a variety of institutional solutions to the challenges of collaboration.

  • <i>Aquatopia</i>: Lines of Amity and Laws of the Sea by Peter Goodrich

    Aquatopia: Lines of Amity and Laws of the Sea

    Peter Goodrich

  • Faces and Frames of Government by Peter Goodrich

    Faces and Frames of Government

    Peter Goodrich

  • Reorienting Disclosure Debates in a Post-Citizens United World by Katherine A. Shaw

    Reorienting Disclosure Debates in a Post-Citizens United World

    Katherine A. Shaw

    Disclosure is often an afterthought in debates about money in politics. Reformers have tended to take disclosure for granted, devoting little time to developing and refi ning the affi rmative case for it. They have also tended to assume that the current disclosure regime is an effective one, at least as far as it goes. Reformers have devoted substantial attention to the holes in the current regime in the post- Citizens United era— so- called “dark” and “gray” money 1 — and have considered ways to bring such activity into the light. Yet even if they are successful, such expansion efforts would only bring more dollars under the auspices of a disclosure regime in need of both stronger conceptual architecture and substantial practical improvements. So closing the gaps in the system is only one aspect of the task.

  • Well-Being and Public Policy by John Bronsteen, Christopher Buccafusco, and Jonathan S. Masur

    Well-Being and Public Policy

    John Bronsteen, Christopher Buccafusco, and Jonathan S. Masur

  • Pictures as Precedents: The Visual Turn and the Status of Figures in Judgments by Peter Goodrich

    Pictures as Precedents: The Visual Turn and the Status of Figures in Judgments

    Peter Goodrich

    Contemporary expansion of the use of images, photographs, film, animation and other visual media in legal argument has given rise to a practice and subdiscipline of visual advocacy. Less studied and commented on, this scopic dimension to legal practice has also resulted in an increasing use of images in judicial decisions. Recent case law provides examples of an image of an ostrich with its head buried purportedly remonstrating against failure to cite binding precedent, a smiling emoji in a decision relating to child custody, numerous splash pages and online order icons in cases relating to consumer purchases over the net, and many further instances of pictures coming to play the law. This chapter directly addresses the role of the eye and the impact of the visual upon the reasoning of judgments, as also on the status and import of precedents that include pictures.

  • Rhetoric and Law by Peter Goodrich

    Rhetoric and Law

    Peter Goodrich

  • There’s No Such Thing as Interpreting a Text by Martin J. Stone

    There’s No Such Thing as Interpreting a Text

    Martin J. Stone

    Positively, this chapter sets out various structural differences between literary and legal interpretation. Negatively, it criticizes views of legal and literary interpretation that attempt to derive their features from an account of interpretation-in-general. The thesis that a successful interpretation always recovers an author’s intention is specifically rejected. A “naïve” view of interpretation is defended—the one that appears when we are sunk in practical activity—as opposed to theories of interpretation (e.g., “postmodern” ones) that tend to picture it as ubiquitous and endless.

  • The International Signs Law by Peter Goodrich

    The International Signs Law

    Peter Goodrich

  • The Exampleless Example : of the Infinite Particulars of Early Modern Common Law by Peter Goodrich

    The Exampleless Example : of the Infinite Particulars of Early Modern Common Law

    Peter Goodrich

  • Judicial Review of Statutory Issues Outside of Chevron by Michael Herz

    Judicial Review of Statutory Issues Outside of Chevron

    Michael Herz

  • Alternative Dispute Resolution by Robert K. Collins

    Alternative Dispute Resolution

    Robert K. Collins

  • The Demise of Deterrence : Mandatory Arbitration and the “Litigation Reform” Movement by Myriam Gilles

    The Demise of Deterrence : Mandatory Arbitration and the “Litigation Reform” Movement

    Myriam Gilles

  • Prosopography by Peter Goodrich

    Prosopography

    Peter Goodrich

  • Tax Reform Paul McDaniel Style : the Repeal of the Grantor Trust Rules by Laura E. Cunningham and Noël B. Cunningham

    Tax Reform Paul McDaniel Style : the Repeal of the Grantor Trust Rules

    Laura E. Cunningham and Noël B. Cunningham

  • Interstitium and Non-Law by Peter Goodrich

    Interstitium and Non-Law

    Peter Goodrich

  • The Poetry of Black Letters : Deleuze and Lex Amicitia by Peter Goodrich

    The Poetry of Black Letters : Deleuze and Lex Amicitia

    Peter Goodrich

  • Hate Speech and Self-Restraint by Arthur Jacobson

    Hate Speech and Self-Restraint

    Arthur Jacobson

  • Orbiting Hate : Satellite Transponders and Free Expression by Monroe Price

    Orbiting Hate : Satellite Transponders and Free Expression

    Monroe Price

 
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