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