bluuebunny/crossref_metadata_2025 huggingface dataset:
Law and Heidegger's Question Concerning Technology: Prolegomenon to Future Law Librarianship
Authors: Callister Paul Douglas
Published: July 2018

Following World War II, the German philosopher Martin Heidegger offered one of the most potent criticisms of technology and modern life. His nightmare is a world whose essence has been reduced to the functional equivalent of “a giant gasoline station, an energy source for modern technology and industry. This relation of man to the world [is] in principle a technical one . . . . [It is] altogether alien to former ages and histories.” For Heidegger, the problem is not technology itself, but the technical mode of thinking that has accompanied it. Such a viewpoint of the world is a useful paradigm to consider humanity’s relationship to law in the current information environment, which is increasingly technical in Heidegger’s sense of the term.Heidegger’s warning that a technical approach to thinking about the world obscures its true essence is directly applicable to the effects of current (as well as former) information technologies that provide access to law. While technology enhances accessibility and utility of law, technology also obscures law’s fundamental grounding in experience and language, thereby eviscerating its transformative power. The paper explains the nature of Heidegger’s criticisms of technology and modern life and examines the appropriateness of their application to the current information environment, especially in light of Heidegger’s early affiliation with Nazism and his subsequent denunciation of technologicism and “technological thinking.” The paper applies Heidegger’s criticisms to the modern legal information environment with particular reference to application of technology to subjugate the law to the status of an “information resource” devoted to various ends. Finally, the paper considers the implications for law librarianship in the current information environment.This article first appeared in 99 Law Library Journal 285-305 (2007) as part of "Symposium: Legal Information and the Development of American Law: Further Thinking about the Thoughts of Robert C. Berring."
Presidential Constitutional Interpretation, Signing Statements, Executive Power and Zivotofsky
Authors: Chambers Henry L.
Published: July 2018

This Article explores whether the President should interpret the Constitution aggressively and, if so, whether the President should act on such aggressive interpretations. Part I examines whether the presidential oath and other constitutional duties obligate the President to interpret the Constitution. Part II considers constitutional signing statements as the manifestation of an aggressive approach to presidential constitutional interpretation. Part III considers whether the Constitution is a legal document or a political document, and how that determination might affect how aggressive the President should be when interpreting the Constitution. Part IV considers how the Supreme Court's and Congress's constitutional interpretations might constrain presidential constitutional interpretation or suggest restrained presidential constitutional interpretation. Part V considers Zivotofsky v. Kerry and whether it provides the President additional arguments to support an aggressive approach to constitutional interpretation, particularly when considering matters related to executive power.
Review of Canadian University Fair Dealing Policies
Authors: Di Valentino Lisa
Published: July 2018

The past three years have seen a number of changes in the area of copyright law, particularly in the area of education. As a result, Canadian universities have had to make policy decisions to account for these changes and the resulting expansion of fair dealing rights. The content and consistency of the resulting policies may have a significant effect on the future interpretation of fair dealing rights. In this paper I analyze the current state of fair dealing policies and supporting information found on university web sites. I conclude that an ideal fair dealing policy is open ended and flexible, and incorporates mention of the significant elements of copyright legislation, court decisions, and other areas of law, in a way that is accessible to its intended audience of faculty and instructors.
Protection of Traditional Knowledge: Trade Barriers and the Public Domain
Authors: Hansen David R.
Published: July 2018

In recent years, developing nations have pushed for international copyright and other intellectual property regimes to expand protection over the cultural heritage and collective knowledge of particular indigenous groups. These “traditional knowledge” protections have been justified by factors like economic protection, equity in intellectual property ownership, cultural protection, and economic development. These motivating factors are a far cry from the underpinnings of traditional Western intellectual property law - and in particular, U.S. copyright law - which focuses on incentivizing the creation of new content for the promotion of “the Progress of Science and useful Arts.” Because of these differing justifications, traditional knowledge protections at the international level have generated some degree of friction between the developed and the developing world. So far, much of the debate focuses on the “political” and “real” costs and benefits of traditional knowledge rights, but there is little discussion of the legal consequences of current protections. Given the underlying ideological conflict, some legal dissension is likely to occur regarding enforcement and protection of traditional knowledge rights. This paper examines “positive” traditional knowledge protections, which provide copyright-like rights over content, including the right exclude, license, and profit from these works. In many cases these protections regulate works that Western eyes would view as in the public domain. Initiatives to provide international protection for traditional knowledge expressions have blithely proceeded without much regard for the potential consequences under existing international law. This paper makes the point that at least some existing traditional knowledge protections not only conflict with IP-policy norms of the United States and the European Community, but also that these protections violate the very terms of TRIPS and GATT. As work toward international protection of traditional knowledge progresses, policy makers should be aware of these legal incompatibilities and how they evidence the deep conflict between expansive traditional knowledge protections and Western IP policy.Cite as David R. Hansen, Protection of Traditional Knowledge: Trade Barriers and the Public Domain, 58 J. Copyright Soc’y U.S.A. 757 (2011)
The Long and the Short: Portfolio Turnover Ratios & Mutual Fund Investment Time Horizons
Authors: Tucker Anne M.
Published: July 2018

Mutual fund portfolio turnover ratios (PTR) are at the center of the short-termism debate, which criticizes corporate maneuvers taken to prop up near-term earnings at the expense of long-term, value focused investments and policies. Scholars and policymakers often rely on portfolio turnover ratios to argue that mutual fund short-termism, as measured by the PTR, is increasing and infecting operating company time horizons. This article answers two main questions central to discerning mutual funds’ role in the short-termism debate. The first is, how long, on average do U.S. registered mutual funds hold onto their assets? The second is, how good of a measure is the PTR at approximating mutual fund holding patterns in light of criticisms that the PTR is an indirect measure, does not reflect fund flows, and excludes investment strategy considerations?Using a unique data set of U.S. registered mutual funds from 2005–15, this Article finds that mutual fund investment time horizons, as measured by portfolio turnover ratios, did not decline during 2005–15. This finding holds for all major categories of mutual funds, including index funds and actively managed funds and produced an average holding period in the range of fifteen to seventeen months. Based on this analysis, scholars and policymakers may think of mutual fund investment time horizons as short, but not shortening. These findings are confirmed by three alternative measurements of time horizons: Duration, Churn Rates, and Modified Portfolio Turnover. Consistent across-measure results mitigate PTR criticisms as a rough estimate of time horizons and endorse its continued use in SEC reporting. These observations also validate policymakers’ and scholars’ use of mutual fund PTRs in legal and policy debates, and contribute current, empirical evidence adding nuance to claims of mutual fund short-termism.Citation: Anne M. Tucker, The Long and the Short: Portfolio Turnover Ratios & Mutual Fund Investment Time Horizons, 43 J. Corp. L. 581 (2018).
Sex-Selection in India and the United States: A Contextualist Feminist Approach
Authors: Kalantry Sital
Published: July 2018

Seven states in the United States have passed sex selection abortion bans, bills are pending in several other states, and a bill has been reintroduced in the U.S. Congress. In analyzing state legislative hearings, this article documents how the wide-spread practice of sex selection in other countries, particularly India and China, is being used by anti-abortion groups as a way to restrict women's right to autonomy in the United States. The dominant feminist paradigm in the United States takes a universal position on sex selection bans - these bans contravene women's right to autonomy and should not be permitted in any country. But engaging with the true realities of the situation in India, it is clear that sex selection in favor of boys does raise concerns for women's equality. This article develops a feminist framework to understand sex selection from a global perspective. This approach prioritizes individual women's autonomy, but suggests that the context in which sex selection occurs should be taken into account and the impact of sex selection on women as a group must be considered.Statutes in the United States that ban sex selection abortion are framed as protecting the fetus from sex discrimination. The contextualist feminist approach, on the other hand, focuses the conversation on the equality of women and girls who are already born. The intent of the individual woman who sex selects is no longer the focus, but the impact (if any) that it has on the equality of girls and women as a group should be the relevant criterion for determining whether or not sex selection should be limited.Published: Sital Kalantry, "Sex Selection in the United States and India: A Contextualist Feminist Approach", 18 UCLA Journal of International Law and Foreign Affairs (2013).
Some Optimism About Fair Use and Copyright Law
Authors: Madison Michael J
Published: July 2018

This short paper reflects on the emergence of codes of best practices in fair use, highlighting both the relationship between the best practices approach and an institutional perspective on copyright and the relationship between the best practices approach and social processes of innovation and creativity.
Law and Literature: The Contemporary Image of the Lawyer
Authors: Roberts E.F.
Published: July 2018

6 Villanova Law Review (1960-61)Henry B. Cushing, E. F. Roberts
The New Psychological Contract: Implications of the Changing Workplace for Labor and Employment Law
Authors: Stone Katherine V.W.
Published: July 2018

48 UCLA Law Review 519 (2001)In this article, Professor Stone describes the profound changes that are occurring in the employment relationship in the United States. Firms are dismantling their internal labor markets and abandoning their implicit promises of orderly promotion and long-term job security. No longer is employment centered on a single, primary employer. Instead, employees operate in a boundaryless workplace in which they expect to move frequently between firms, and between divisions within firms, throughout their working lives. At the same time, employers and employees have a new understanding of their mutual obligations, a new psychological contract, in which expectations of job security and promotional opportunities have been replaced by expectations of employability, training, human capital development, and networking opportunities.The changes in the nature of the employment relationship have many implications for labor and employment regulation. The U.S. system of labor and employment law that originated in the New Deal period is built upon the assumption of long-term attachment between employer and employee. The collective bargaining laws as well as the social welfare measures that provide old age assistance, unemployment insurance, health insurance, and disability insurance are employer-centered and depend upon an on-going employment relationship. These legal structures are not well-suited to the boundaryless workplace. Professor Stone discusses the implications of the new workplace for three issues that are problematic in the new workplace: ownership of human capital, employment discrimination, and employee representation. In each area, she makes suggestions to address problems of insecurity, unfairness and injustice that frequently arise. These proposals are part of an effort to begin to imagine, and create, a new labor and employment law, one that can foster equity and justice in the new workplace.
The President's Power to Tax
Authors: Hemel Daniel J.
Published: July 2018

102 Cornell Law Review 633 (2017)Existing statutes give the President and his Treasury Department broad authority to implement important elements of the administration’s tax agenda without further congressional action. And yet only infrequently does the Executive Branch exercise this statutory “power to tax.” Instead, the President often asks Congress to pass revenue-raising measures achieving what the President and his Treasury Department already could accomplish on their own. And even when Congress rebuffs the President’s request, present and past administrations only rarely have responded by exercising the regulatory authority they already possess. Contrast this with the fact that present and past Presidents have stretched the limits of executive authority in a taxpayer-friendly direction—even over Congress’s expressed preferences.This article attempts to explain the peculiar patterns of executive action and inaction observed in the tax policymaking domain. It draws on public choice theory and game theory to build a strategic model of interactions between the Executive and Legislative Branches. The model generates several counterintuitive implications. Among others: a strong anti-tax faction in Congress may increase the probability that revenue-raising regulatory measures are implemented; judicial deference to Treasury regulations may reduce lawmakers’ willingness to pass revenue-raising fixes to existing tax statutes; and statutory rules requiring legislation to be “deficit-neutral” may discourage the administration from taking deficit-closing regulatory actions.
Robots vs. Monkeys: Intellectual Property Rights of Non-Human Creators [Poster Session]
Authors: Li Tiffany , Roslof Charles M.
Published: July 2018

A fundamental tenet of intellectual property law is that it is beneficial to give creators some measure of ownership over their creative or scientific works. New innovations in technology have changed the way works are created, but current IP law still lacks clarity regarding IP rights in works by non-human creators, including robots and animals. Legal scholarship has not reached a consensus on how principles of intellectual property can or should be applied, broadly, to works of non-human creators.In this study, we explore possible directions for the future of IP law, specifically involving works by non-human creators. We look at the (scant) legal precedent in these two realms and provide comparisons of the legal precedent and academic discourse surrounding each topic. Based on findings from this comparative analysis, we offer potential recommendations and future paths of research for the field of IP rights of non-human creators.
The Status of Hong Kong and Macao under the United Nations Convention on Contracts for the International Sale of Goods
Authors: Schroeter Ulrich G.
Published: July 2018

16 Pace International Law Review (2004, 307-332The applicability of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG), the most important international convention unifying matters of international contract law, to an international sales contract according to Article 1(1)(a) CISG depends on both parties having their place of business in different Contracting States. The People's Republic of China was among the first States to ratify the CISG, meaning that all companies residing in the PRC do have - at least at first sight - their place of business in a Contracting State of the CISG. This result, however, causes difficulties when companies from Hong Kong and Macao are concerned, as these two territories were originally colonies of two States that did ratify the CISG (i.e. the United Kingdom and Portugal), and when returning to the PRC in 1997 resp. 1999, Hong Kong and Macao were given the status of Special Administrative Regions with a high degree of autonomy also in legal matters. Against this background, the present paper discusses the question of Hong Kong and Macao are to be treated as parts of a Contracting State under the CISG. It argues that the answer must be in the affirmative as Article 97 CISG expressly provides that a Contracting State comprising different territorial units has to make an express declaration if it selects not to apply the CISG to certain of its territorial units, and the PRC has not done so.
Reconciling Intellectual and Personal Property
Authors: Perzanowski Aaron , Schultz Jason
Published: July 2018

Copyright law sets up an inevitable tension between the intellectual property of creators and the personal property of consumers — in other words, between copyrights and copies. For the better part of the last century, copyright law successfully mediated this tension through the principle of exhaustion — the notion that once a rights holder transfers a copy of a work to a new owner, its rights against that owner are diminished.Rather than an idiosyncratic carveout or exception, exhaustion is an inherent part of copyright law’s balance between the rights of creators and the rights of the public. Nonetheless, many rights holders and some courts see exhaustion as nothing more than a loophole or market inefficiency that allows consumers to make unauthorized uses of intellectual property rightly controlled by the copyright owner. Two developments threaten to curtail exhaustion and consumer interests. First, content owners have endeavored to eliminate the personal property interests of consumers, redefining the notion of ownership by characterizing their transactions with consumers as licenses. Second, the tangible copy is rapidly disappearing as copyright markets shift from the distribution of physical products to exchanges of networked information.In short, the equilibrium between personal and intellectual property that exhaustion enabled depends on doctrinal assumptions about the copyright marketplace that are quickly becoming outdated. By examining the basic functions of copy ownership, this Article will attempt to construct a notion of consumer property rights in digital media that acknowledges the shift away from tangible artifacts while preserving exhaustion’s central role in the intellectual property system.
Commitment to International Human Rights Treaties: The Role of Enforcement Mechanisms
Authors: Dutton Yvonne
Published: July 2018

34 University of Pennsylvania Journal of International Law 1States continue to abuse human rights and commit mass atrocities even though for the past several decades they have overwhelmingly ratified a host of international human rights treaties. This Article seeks to explain this phenomenon and suggests that where treaty enforcement mechanisms are too weak for states to view them as a credible threat to their sovereignty, even states with the worst practices will regularly and readily commit to treaties designed to promote better human rights practices. I empirically test my credible threat theory against the explanatory power of other extant theories about treaty commitment by examining the relationship between treaty enforcement mechanisms and likelihood of ratification across a broad range of treaties. I include in my analysis the treaty creating the International Criminal Court (“ICC”)—a treaty which contains a strong enforcement mechanism in the form of an independent Prosecutor and the Court, which can punish violators.The results of the statistical tests using data from 1966 to 2008 provide support for the credible threat theory. I find that a state’s human rights ratings do not influence ratification of international human rights treaties with the weakest enforcement mechanisms, such as those that only require the state to self-report its compliance. However, states with poorer records are significantly less likely to commit to the ICC treaty. The implication is that where enforcement mechanisms are strong, states may take their commitment more seriously and join only if they intend to comply.If we structure treaties with stronger enforcement mechanisms, perhaps fewer states will ratify, but at least when they do, they may be held to that commitment.
Standing Room Only: Why Fourth Amendment Exclusion and Standing Can No Longer Logically Coexist
Authors: Colb Sherry F.
Published: July 2018

Standing Room Only: Why Fourth Amendment Exclusion and Standing Can No Longer Logically Coexist argues that the Fourth Amendment standing doctrine is fundamentally incompatible with the existing Fourth Amendment exclusionary rule. Fourth Amendment standing provides that only a person who has suffered an invasion of her own normatively reasonable expectations of privacy, given the facts about her situation that police may not even know (including whether she owns the property searched), may suppress evidence that police turned up through a violation of the Fourth Amendment. Meanwhile, the existing exclusionary rule doctrine maintains that the sole objective of Fourth Amendment suppression is to motivate police officers, given facts available to them (such as whether they have probable cause), to conform their conduct to the law prohibiting unreasonable searches and seizures. This Article proposes that by taking into account the actual facts about the defendant’s situation in assessing her standing to bring a suppression motion, it is arbitrary to consider the fact that she did (or did not) have an ownership right in the property where the search occurred, while simultaneously ignoring the fact that she was engaged in criminal activity within that property. This Article accordingly concludes that the ex ante perspective involved in determining whether the police have misbehaved (and thus need to be deterred through exclusion), is logically at odds with the ex post perspective involved in assessing whether the person seeking suppression was in fact entitled to remain free of the search that uncovered evidence against her. The Article takes a close look at the case of Minnesota v. Carter as a perfect illustration of this doctrinal incoherence.
Observations on MacDonald v. Moose
Authors: Walsh Kevin C.
Published: July 2018

In MacDonald v. Moose, a split panel of the U.S. Court of Appeals for the Fourth Circuit granted a petition for a writ of habeas corpus to undo the state criminal conviction of an adult for soliciting oral sex from a minor. Based on Lawrence v. Texas, the court held a longstanding Virginia prohibition of bestiality and sodomy to be partially facially unconstitutional. Its decision left the bestiality prohibition untouched while holding the sodomy prohibition completely unenforceable, even as applied in cases involving minors.The panel majority misapplied the deferential standard of review required by Congress for federal habeas review of state court convictions. And the court's analysis further muddled the already confused doctrine surrounding facial and as-applied challenges. More fundamentally, the panel majority's concern about the supposed need to engage in a "drastic" "judicial reformation" of Virginia's law to render it compatible with Lawrence was simply misplaced. The court could have--and should have--easily applied Virginia's law together with Lawrence, just as the Virginia courts did in the decade between Lawrence and MacDonald.
Internet Censorship in the United Kingdom: National Schemes and European Norms
Authors: McIntyre TJ
Published: July 2018

The United Kingdom has been at the vanguard of online censorship in democracies from the beginning of the modern internet. Since the mid-1990s the government has developed distinctive patterns of regulation – targeting intermediaries, using the bully pulpit to promote ‘voluntary’ self-regulation, and promoting automated censorship tools such as web blocking – which have been influential internationally but raise significant issues of legitimacy, transparency and accountability. This chapter examines this UK experience in light of the European Convention on Human Rights (ECHR) and EU law, arguing that in key regards current censorship practices fail to meet European standards.The chapter builds on the existing literature in two main ways. First, it assesses emerging censorship practices in the area of terrorist material and extreme pornography. Second, it considers how recent EU legislation and ECtHR case law might constrain the freedom of the UK government and force a move towards different models of censorship.The chapter starts by outlining the regulatory context. It then takes three case studies – Child Abuse Material (CAM), terrorist material, and pornography/extreme pornography under the Digital Economy Act 2017 – and traces how censorship has evolved from one context to the next. These systems are then evaluated against the standards set by European law and in particular Articles 6 and 10 ECHR, the Open Internet Regulation, and the Directives on Sexual Abuse of Children and on Combating Terrorism.
The Secret Economy of Charitable Giving
Authors: Tait Allison Anna
Published: July 2018

Charitable giving is big business. In 2009, the Internal Revenue Service reported close to 100,000 private foundations, almost double the number from fifteen years earlier. Some of these charitable trusts, like the Gates Foundation, are multi-billion dollar enterprises. Trust instruments and other governing documents set forth the terms that control these gifts. Because charitable trusts can exist in perpetuity, however, changing circumstances sometimes render the terms difficult to fulfill. Courts can apply cy pres, a doctrine that allows for the modification of gift restrictions, but in the past courts have tended to apply cy pres narrowly and privilege donor intent above all other considerations. Recent reforms, however, have moved courts toward a more flexible application of the doctrine. In this Article, I analyze certain high-profile cases that have driven these reforms-including the presumption of general charitable intent, the recognition of "wasteful" as a criterion, and the deployment of deviation-and explain how these reforms represent positive change. Moreover, I provide a theoretical grounding to account for the correctness of these reforms. I argue that charitable giving should be understood as embedded in a nexus of material and social exchanges-part of the "charitable gift economy. " I describe how charitable giving provides a range of benefits to donors, including both tangible tax benefits and intangible benefits such as status, social identity, and "warm glow. " Based on this understanding of the charitable gift economy, courts and charities alike should embrace current reforms and seek to expand them further.
Coordinating Compliance Incentives
Authors: Root Veronica
Published: July 2018

102 Cornell L. Rev. 1003 (2017)In today’s regulatory environment, a corporation engaged in wrongdoing can be sure of one thing: regulators will point to an ineffective compliance program as a key cause of institutional misconduct. The explosion in the importance of compliance is unsurprising given the emphasis that governmental actors—from the Department of Justice, to the Securities and Exchange Commission, to even the Commerce Department— place on the need for institutions to adopt “effective compliance programs.” The governmental actors that demand effective compliance programs, however, have narrow scopes of authority. DOJ Fraud handles violations of the Foreign Corrupt Practices Act, while the SEC adjudicates claims of misconduct under the securities laws, and the Federal Trade Commission deals with concerns regarding anticompetitive behavior. This segmentation of enforcement authority has created an information and coordination problem amongst regulators, resulting in an enforcement regime where institutional misconduct is adjudicated in a piecemeal fashion. Enforcement actions focus on compliance with a particular set of laws instead of on whether the corporate wrongdoing is a result of a systematic compliance failure that requires a comprehensive, firm-wide, compliance overhaul. As a result, the government’s goal of incentivizing companies to implement “effective ethics and compliance programs” appears at odds with its current enforcement approach. Yet governmental actors currently have the tools necessary to provide strong inducements for corporations to, when needed, engage in restructuring of their compliance programs. This Article argues that efforts to improve corporate compliance would benefit from regulatory mechanisms that (i) recognize when an institution is engaged in recidivist behavior across diverse regulatory areas and (ii) aggressively sanction institutions that are repeat offenders. If governmental actors adopt a new enforcement strategy aimed at “Coordinating Compliance Incentives,” they can more easily detect when an institution is suffering from a systemic compliance failure, which may deter firms from engaging in recidivist behavior. If corporations are held responsible for being repeat offenders across diverse regulatory areas, it may encourage them to implement more robust reforms to their compliance programs and, ultimately, lead to improved ethical conduct and more effective compliance programs within public companies.
A Market Test for Bayh-Dole Patents
Authors: Ayres Ian , Ouellette Lisa Larrimore
Published: July 2018

The Bayh–Dole Act, which allows patenting of federally funded research, has been praised for driving growth but also criticized for creating unnecessary deadweight loss and contributing to a patent “anticommons.” Much of the controversy stems from Bayh–Dole’s differing effects on different inventions. The dominant justification for Bayh–Dole patents is commercialization theory: the idea that exclusive rights are necessary to bring inventions to market. This theory is convincing for inventions like pharmaceuticals with high regulatory barriers and low imitation costs, but not when exclusivity is unnecessary for commercialization, such as for Stanford’s widely licensed patents on early recombinant DNA technology. The problem is that for many government-funded inventions it is difficult to determine whether exclusive patent grants are necessary to incentivize commercialization.To solve this difficulty, we propose a “market test” for federally funded inventions at universities and other nonprofits. Before charging significant licensing fees for these inventions, these federal grant recipients would first be required to find out whether firms would be willing to commercialize the invention in exchange for a nonexclusive license with a nominal fee. If a company is willing to commit to developing the invention under a nonexclusive license, then an exclusive license—or a nonexclusive license with high fees—would be contrary to the public interest. More generally, using a formal economic model, we show that deadweight loss can be reduced through an auction that forces bidders to reveal the least amount of exclusivity needed to induce commercialization, that revenue cap bidding is more efficient than duration bidding, and that defensive bidding by firms that consume as well as produce the invention will not increase deadweight loss. We discuss how the market test requirement could be structured and how due diligence milestones and other provisions could be used to discourage gaming.
Growing Political Will from the Grassroots: How Social Movement Principles Can Reverse the Dismal Legacy of Rule of Law Interventions
Authors: Quigley Fran
Published: July 2018

Fran Quigley, Growing Political Will from the Grassroots: How Social Movement Principles Can Reverse the Dismal Legacy of Rule of Law Interventions, 41 Colum. H.R. L. Rev. 13 (2009)The international community’s efforts to promote the rule of law and human rights in developing countries have been largely unsuccessful. This record of disappointment is typically attributed to a lack of political will for reform in the host societies. As a result, an estimated four billion people worldwide are without access to human rights, and suffer without recourse from discrimination, theft, and other forms of physical and emotional harm.In order to more effectively bring about reform, it is time for rule of law promoters to draw upon the lessons of social science, and particularly the study of social movements. This Article represents the first effort to view the challenge of instilling political will for law reform through the prism of social movement theory and its analysis of events like the U.S. civil rights movement, the South African antiapartheid movement, and the Eastern European democracy movement. This social movement analysis reveals substantial reason for optimism about achieving significant law reform in developing countries. Rule of law promoters must re-orient their approach and begin supporting the existing and evolving grassroots law reform organizations that mirror in key respects the organizations that have proven to be the catalysts for change in social movements. Properly supported, these organizations can grow and nurture the political will for access to justice that is so desperately needed by billions of people in the developing world.
Laws Intentionally Favoring Mainstream Religions: An Unhelpful Comparison to Race
Authors: Simson Gary J.
Published: July 2018

79 Cornell Law Review 514 (1994)
Glimpses of Marshall in the Military
Authors: Walsh Kevin C.
Published: July 2018

Before President John Adams appointed him as Chief Justice of the United States in 1801, John Marshall was a soldier, a state legislator, a federal legislator, an envoy to France, and the Secretary of State. He also maintained a thriving practice in Virginia and federal courts, occasionally teaming up with political rival and personal friend Patrick Henry. Forty-five years old at the time of his appointment to the Supreme Court, Marshall has been serving his state and his country for a quarter century before he took judicial office. Marshall is an exemplar of professional excellence for all lawyers and judges. But one looking for life lessons in the law from the life of John Marshall should not neglect his time as a soldier, before he became a lawyer.
Digital Copyright
Authors: Litman Jessica
Published: July 2018

The general public is used to thinking of copyright (if it thinks of it at all) as marginal and arcane. But copyright is central to our society’s information policy and affects what we can read, view, hear, use, or learn. In 1998 Congress enacted new laws greatly expanding copy owners’ control over individuals’ private uses of their works. The efforts to enforce these new rights laws have resulted in highly publicized legal battles between established media, including major record labels and motion picture studios, and upstart internet companies such as MP3.com and Napster.In this book, I question whether copyright laws crafted by lawyers and their lobbyists really make sense for the vast majority of us. Should every interaction between ordinary consumers and copyright-protected works be restricted by law? Is it practical to enforce such laws, or expect consumers to obey them? What are the effects of such laws on the exchange of information in a free society? My critique exposes the 1998 copyright law as an incoherent patchwork. I argues for reforms that reflect the way people actually behave in their daily digital interactions.The Maize Books edition includes both an afterword written in 2006 exploring the rise of peer-to-peer file sharing and a new Postscript reflecting on the consequences of the Digital Millennium Copyright Act as it nears its twentieth birthday.
Should Compensated Surrogacy Be Permitted or Prohibited?
Authors: Kalantry Sital
Published: July 2018

Surrogacy provides a way for infertile people, as well as same-sex couples and single individuals, to become parents. Surrogacy is permitted in most states in the United States. In New York, however, surrogacy contracts are void and unenforceable according to a 1992 law. The Child-Parent Security Act of 2017 (the CPSA) would repeal this prohibition, make surrogacy agreements enforceable, and permit surrogates to be compensated for the gestational care they provide. In this report, we review the landscape of state laws in the United States, laws around the world, moral concerns that led to the adoption of the current New York law, and international human rights considerations that are relevant to evaluating the CPSA. Based on this review, we support the CPSA and suggest some possible additional protections based on practices in other jurisdictions.
Managing Digital Rights in Open Access Works
Authors: Keele Benjamin John , Odell Jere
Published: July 2018

Benjamin J. Keele and Jere D. Odell, Managing Digital Rights in Open Access Works, in Digital Rights Management: The Librarian's Guide (Catherine A. Lemmer and Carla P. Wale, eds.) (2016).
Columbia University and Incarcerated Worker Labor Unions Under the National Labor Relations Act
Authors: Goad Kara
Published: July 2018

Cornell Law Library Prize for Exemplary Student Research PapersKara Goad’s research examines the forms and terms of labor that incarcerated workers perform in American prisons, seeking to demonstrate that labor law could provide potential remedies for work-related grievances.Goad’s research includes traditional statutory and case law analysis along with examinations of prison statistics, National Labor Relations Board (NLRB) decisions and other administrative law materials relating to prisons and labor law. She uses her findings lay out a path for incarcerated workers to potentially unionize under the National Labor Relations Act (NLRA).
Privatizing and Publicizing Speech
Authors: Tebbe Nelson
Published: July 2018

104 Northwestern University Law Review Colloquy 70 (2009)When and how should governments be permitted to use private-law mechanisms to manage their public-law obligations? This short piece poses that question in the context of Summum, which the Supreme Court decided earlier this year, and Buono, which it will hear in the fall. In both cases, the government manipulated formal property rules in order to fend off constitutional challenges. In Summum, the government took ownership of a religious symbol in the face of a free speech challenge, while in Buono it shed ownership of land containing another sectarian symbol in an effort to moot an Establishment Clause problem. Although obvious differences separate the cases, they both raise the deeper question of whether and how governments ought to be able to structure private-law transactions with constitutional rules in mind. That issue, which cuts across a variety of legal fields, deserves more systematic attention.
NASKAH AKADEMIK PERLINDUNGAN LAHAN PERTANIAN PANGAN BERKELANJUTAN
Authors: Umanailo Muhamad Chairul Basrun , Bahasoan Husen , ASSAGAF SAID ABDURAHMAN , Hentihu Idrus , Nawawi Mansyur , Hamid Iskandar , Ningkeula Edy Said , Bula M. , Umanailo Rosita , Jumu La
Published: July 2018

Lahan pertanian pangan merupakan bagian dari lahan fungsi budidaya. Keberadaanya sangat penting dalam menyokong kedaulatan pangan baik untuk memenuhi kebutuhan wilayahnya maupun untuk di jual ke luar wilayahnya. Seiring pertumbuhan penduduk yang dinamis pada saat ini keberadaan lahan pertanian terancam untuk kebutuhan lain seperti perumahan, industri dan sebagainya. Alih fungsi lahan pertanian ke non pertanian menjadi fenomena yang terjadi hampir di semua wilayah. Satu hal yang mungkin tidak menjadi bahan pertimbangan dalam melakukan alih fungsi lahan adalah dampak yang ditimbulkan dari alih fungsi lahan tersebut. Bagi sektor pertanian, lahan merupakan faktor produksi utama dan tak tergantikan. Berbeda dengan penurunan produksi yang disebabkan oleh serangan hama penyakit, kekeringan, banjir dan faktor lainnya lebih bersifat sementara, maka penurunan produksi yang diakibatkan oleh alih fungsi lahan lebih bersifat permanen dan sulit untuk diperbaiki, Sehingga berkurangnya luasan lahan yang digunakan untuk kegiatan pertanian secara signifikan dapat mengganggu stabilitas kemandirian, ketahanan dan kedaulatan pangan baik lokal maupun nasional.
Is the Constitution Special?
Authors: Serkin Christopher , Tebbe Nelson
Published: July 2018

101 Cornell Law Review 701 (2016)“[W]e must never forget, that it is a constitution we are expounding.” If there was such a danger when Chief Justice John Marshall wrote those words, there is none today. Americans regularly assume that the Constitution is special, and legal professionals treat it differently from other sources of law. But what if that is wrongheaded? In this Article, we identify and question the professional practice of constitutional exceptionalism. First, we show that standard arguments from text, structure, and history work differently in constitutional law. Second, we examine the possible justifications for such distinctive interpretation among lawyers, and we find them mostly unconvincing. Neither entrenchment, nor supremacy, nor democratic legitimacy sets the Constitution apart from other sources of law in a way that supports interpretive exceptionalism. In fact, the best argument for the practice is simply that the Constitution is regarded as unique — that it occupies a privileged place in American culture and political mythology. But even if that status can justify applying some specialized methods to the document, it cannot explain every markedly divergent practice that we see among contemporary legal professionals. In the conclusion, we reveal one normative motivation for the project. All too often, constitutional argument is deployed in ordinary politics as a kind of trump, with the purpose and effect of shutting down policy debate. Legal professionals contribute to this tactic when they craft rarified interpretive methods without justification. Demythologizing constitutional law undercuts its use as a political blunderbuss.
The Right to Explanation, Explained
Authors: Kaminski Margot
Published: July 2018

Many have called for algorithmic accountability: laws governing decision-making by complex algorithms, or AI. The EU’s General Data Protection Regulation (GDPR) now establishes exactly this. The recent debate over the right to explanation (a right to information about individual decisions made by algorithms) has obscured the significant algorithmic accountability regime established by the GDPR. The GDPR’s provisions on algorithmic accountability, which include a right to explanation, have the potential to be broader, stronger, and deeper than the preceding requirements of the Data Protection Directive. This Essay clarifies, largely for a U.S. audience, what the GDPR actually requires, incorporating recently released authoritative guidelines.
Friedrichs v. California Teachers Association: The American Labor Relations System in Jeopardy
Authors: Hodges Ann C.
Published: July 2018

The petitioners in Friedrichs v. California Teachers Association seek to overturn longstanding law relating to union security in the public sector. A decision in favor of the petitioners will invalidate provisions in thousands of collective bargaining agreements covering millions of workers. Additionally, it has the potential to upend the labor relations system in the United States. To understand how this might be the case, this Issue Brief will review the history of union security and the Supreme Court decisions that upheld union security agreements in the public sector. The Issue Brief will then look at the Friedrichs case itself, engaging in an analysis of the case which concludes that the Court should reach the same result as in prior cases.
Recovering Socialism for Feminist Legal Theory in the 21 st Century
Authors: Bowman Cynthia Grant
Published: July 2018

49 Connecticut Law Review (2016)This Article argues that a significant strand of feminist theory in the1970s and 1980s — socialist feminism — has largely been ignored by feminist jurisprudence in the United States and explores potential contributions to legal theory of recapturing the insights of socialist feminism. It describes both the context out of which that theory grew, in the civil rights, anti-war, and anti-imperialist struggles of the 1960s, and the contents of the theory as developed in the writings of certain authors such as Heidi Hartmann, Zillah Eisenstein, and Iris Young, as well as their predecessors in the U.K., and in the practice of socialist feminist groups in the United States during the same period. Although many American feminist legal theorists themselves participated in or were influenced by the progressive movements of the 1960s and 1970s, socialist feminism is virtually absent from their writings, except for those of Catharine MacKinnon, who, despite sympathy with the approach, disagreed with it and went on to develop her own version of feminist equality theory. The author argues that the time is now ripe to recapture this strand of feminism and explore what it would add to the study and pursuit of women’s equality.
De Facto Parent and Nonparent Child Support Orders
Authors: Timko Matt
Published: July 2018

While state childcare law opportunities have evolved significantly as family structures, genetic testing, and assisted reproduction techniques have changed, the laws on parental and nonparental child support have not changed much. This Article explores actual and potential child support laws arising from the new childcare laws for both parents and nonparents.
Striking the Right Chord: A Theoretical Approach to Balancing Artists' Intellectual Property Rights on Remix Audio-Sharing Platforms
Authors: Greenstein Nicole
Published: July 2018

102 Cornell Law Review 211 (2016)If you search for the popular electronic dance music track “Turn Down for What” on SoundCloud, the online audio-sharing platform, over 500 tracks will surface on your computer screen. Most of these tracks are unofficial remixes from a variety of music genres, everything ranging from rap to reggae, blues to bhangra. Even though many of these unofficial remixes are available as free downloads, they were never authorized by the original artists, their publishers, or their record labels. Instead, these tracks are homegrown creations, born out of the basements of aspiring, yet amateur, remixers. SoundCloud, the Swedish brainchild of two entrepreneurs who launched the site from a nightclub dance floor in 2008, prides itself on allowing anyone to create, upload, share, and download music. The platform’s self-proclaimed mantra celebrates the fact that “anyone can create sounds and share them everywhere.” Their mission resonated with the masses; SoundCloud boasts approximately 175 million monthly listeners—a base which more than doubles the size of Pandora’s active monthly users and roughly doubles the size of Spotify’s free user base.
Is There Life for Erie after the Death of Diversity?
Authors: Westen Peter , Lehman Jeffrey S.
Published: July 2018

78 Michigan Law Review (1979-80)