bluuebunny/crossref_metadata_2025 huggingface dataset:
Kompetenz-Kompetenz and Its Negative Effect — A Comparative View
Authors: Barcelo John James
Published: July 2018

The paper deals with the “negative-effect”-of-Kompetenz-Kompetenz doctrine in some of the major arbitration venues, France, Germany, Switzerland, the U.S., England and Canada (Quebec). The negative effect doctrine refers to the circumstances under which a national court, before which a case is pending, will refrain (or not) from a full review of whether an alleged arbitration agreement (requiring arbitration of the parties’ dispute) exists as between the parties, is valid, and covers the dispute — in deference to allowing the arbitrators to decide those issues in the first instance. Although national jurisdictions universally accept the “positive” Kompetenz-Kompetenz doctrine — under which arbitrators are authorized to decide their own jurisdiction, although not with finality — they follow dramatically different approaches to the “negative-effect” issue. After canvassing and analyzing how the major jurisdictions just mentioned approach the negative-effect doctrine, the paper closes with some suggestions for what it proposes as a “best practices” approach to the subject.
Building an Open Source Institutional Repository at a Small Law School Library: Is it Realistic or Unattainable?
Authors: Wang Angela Fang
Published: July 2018

Digital preservation activities among law libraries have largely been limited by a lack of funding, staffing and expertise. Most law school libraries that have already implemented an Institutional Repository (IR) chose proprietary platforms because they are easy to set up, customize, and maintain with the technical and development support they provide. The Texas Tech University School of Law Digital Repository is one of the few law school repositories in the nation that is built on the DSpace open source platform.1 The repository is the law school’s first institutional repository in history. It was designed to collect, preserve, share and promote the law school’s digital materials, including research and scholarship of the law faculty and students, institutional history, and law-related resources. In addition, the repository also serves as a dark archive to house internal records.
LGBT Rights are Human Rights: Conditioning Foreign Direct Investments on Domestic Policy Reform
Authors: Brown Dara P.
Published: July 2018

Cornell International Law Journal: Vol. 50 : No. 3 , Article 6
Lost Classics of Intellectual Property Law
Authors: Madison Michael J
Published: July 2018

Santayana wrote, “Those who cannot remember the past are condemned to repeat it.” American legal scholarship often suffers from a related sin of omission: failing to acknowledge its intellectual debts. This short piece attempts to cure one possible source of the problem, in one discipline: inadequate information about what’s worth reading among older writing. I list “lost classics” of American scholarship in intellectual property law. These are not truly “lost,” and what counts as “classic” is often in the eye of the beholder (or reader). But these works may usefully be found again, and intellectual property law scholarship would be strengthened by better and more consistent acknowledgement of earlier work.
What Is Law and What Counts As Law?
Authors: Marmor Andrei
Published: July 2018

The separation thesis associated with the legal positivist tradition in legal philosophy holds that the legal validity of norms depends only on their sources, not on considerations of merit or value. In this essay I show that the separation thesis comes under pressure from cases in which an answer to the question: Is o an F? partly depends on the values associated with the nature of F. This is certainly the case when we try to determine whether an object is a work of art, for example. In response, proponents of the separation thesis would want to resist the analogy with art, and maintain that the ascription of legal validity to a norm does not involve any evaluative dimensions. I argue that this line of response is not very firm, and a better way to defend the separation thesis is to see it as an answer to the question of what makes it the case that an o counts as an F in the relevant society. I try to show that this latter type of question follows from the theoretical context in which the separation thesis comes up, namely, a reductionist explanation of legal validity. My purpose here is to show how a proper construal of the separation thesis, in the context of legal positivism’s reductionist ambition, goes a long way in supporting its truth.
From the Court to the Classroom: Judges’ Work in International Judicial Education
Authors: Goldbach Toby S.
Published: July 2018

49 Cornell International Law Journal 618 (2016).This Article explores international judicial education and training, which are commonly associated with rule of law initiatives and development projects. Judicial education programs address everything from leadership competencies and substantive review of human rights legislation to client service and communication, skills training on docket management software, and alternative dispute resolution. Over the last twenty years, judicial education in support of the rule of law has become big business both in the United States and internationally. The World Bank alone spends approximately U.S. $24 million per year for funded projects primarily attending to improving court performance. And yet, the specifics of judicial education remains unknown in terms of its place in the industry of rule of law initiatives, the number of judges who act as educators, and the mechanisms that secure their participation. This Article focuses on the judges’ experiences; in particular, the judges of the Supreme Court of Israel who were instrumental in establishing the International Organization of Judicial Training.Lawyers, development practitioners, justice experts, and government officials participate in training judges. Less well known is the extent to which judges themselves interact internationally as learners, educators, and directors of training institutes. While much scholarly attention has been paid to finding a global juristocracy in constitutional law, scholars have overlooked the role that judges play in the transnational movement of ideas about court structure, legal procedure, case management, and court administration. Similarly, scholarship examines the way legal norms circulate, the source of institutional change, and the way “transnational legal processes” increase the role of courts within national legal systems. There is little scholarly attention, however, to judges as actors in these transnational processes. This Article situates judicial education and training within the context of judicial functions as an example of judicial involvement in non-caserelated law reform. This Article challenges the instrumental connection between judicial education and the rule of law, arguing that international judicial education became a solution at the same time that the problem— a rule of law deficit— was being identified. This Article also explores whether international judicial education can stand as an instantiation of a global judicial dialogue. Judges have immersed themselves in foreign relations. They are, however, less strategic in pushing their ideological agenda than literature about judges and politics would suggest. This Article argues that judges experience politics as a series of partial connections, which resemble most legal actors’ engagement with the personal and the political.
Public Experience/Private Authority
Authors: Buskirk Martha
Published: July 2018

“A beam on its end is not the same thing as the same beam on its side,” wrote Robert Morris in his 1966 Notes on Sculpture, Part II, succinctly articulating the degree to which, in the context of minimalism, the identity of a work does not reside in a self-contained physical form, and is instead deflected outward to the relationship established between object and surrounding space. It also happens that Morris was not necessarily concerned about whether the simple geometric shapes he created during the mid-1960s as part of his exploration of the viewer’s spatial and temporal experience maintained a continuous physical existence. To the extent that the work could be disassembled and built again as needed (the same configuration, but different plywood and gray paint), this alternate way in which the same work might not be the same links his profoundly physical expression with a form of dematerialization more often associated with conceptual art.
Reply: Conscience and Equality
Authors: Tebbe Nelson
Published: July 2018

The Journal of Civil Rights and Economic Development has solicited six thoughtful reviews of my book, Religious Freedom in an Egalitarian Age. In this Reply, I explore some larger questions that fall outside the book's focus on the tension between religious freedom and civil rights law. Prompted by the reviews, but also independent of them, I examine the implications of my arguments for an egalitarian theory of the First Amendment. Part I begins by addressing critical theorists of religion. I agree with them that the category of religion is essentially contested and can only be defined for particular purposes in particular institutional settings. An implication is that the category of religion can, and often should, include beliefs and practices that usually are considered nonreligious. That raises the related question of whether religion ought to receive special solicitude in constitutional law. I address that issue in Part II, where I argue explicitly that we lack good reasons to exclude certain convictions of conscience from most areas of religious freedom doctrine. On this issue, one of the reviews demonstrates a significant development in the literature, namely growing agreement that conscience may be protected alongside religion without serious conceptual or practical difficulties. Part III concerns a question that follows naturally: In a world where religion is seldom special, how should we conceptualize First Amendment law? Unlike some other egalitarians, I do not propose to eliminate religious exemptions from general laws. Nor do I argue that the Establishment Clause should be weakened or underenforced. Instead, I suggest a framework of full and equal membership. Although this short Reply cannot fully solve all the problems raised by that vision, it can indicate that those problems are solvable in future work. Before concluding, the Reply addresses the argument that equal standing is threatened on both sides, it considers the allure of compromise solutions, and it corrects some misconceptions about the book's methodology.
Ban the Box in College Applications: A Balanced Approach
Authors: Jung Albert H.S.
Published: July 2018

Keri Blakinger, an Ivy League student, once known as the heroin “queenpin” of the campus, changed her ways while in prison and now passionately fights for the rights of ex-offenders, specifically regarding college1 applications for ex-offenders. Currently, many college application forms include a question about the applicant’s criminal record, so colleges can request his or her criminal record when making the admission decision. According to Blakinger, this policy prevents ex-offenders from accessing higher education because having a criminal record causes prejudice during the admission process4 and ultimately lowers the chance of admission without a valid reason. As a result, she argues that colleges should not ask for criminal records of an applicant, so more ex-offenders can access higher education, which would ultimately lower the chance of recidivism.
A Quantum Congress, 90 Chi.-Kent L. Rev. 431 (2015)
Authors: Roig Jorge R.
Published: July 2018

This article tries to address the problem of a corrupt and broken electoral system that has been captured by special interests through big money spending in political campaigns, while at the same time preserving the spirit of the Free Speech Clause of our Constitution. In doing so, this article first reviews and summarizes the different alternatives proposed as potential fixes for the campaign finance problem. It then explains why none of the proposed alternatives can accomplish the dual goals set out above. Finally, the article briefly sketches a proposal for a fundamental reworking of our representative democracy by substituting legislative elections with a system for randomly choosing our legislators from the general population.
Signing Statements and Presidentializing Legislative History
Authors: de Figueiredo John M. , Stiglitz Edward H.
Published: July 2018

Presidents often attach statements to the bills they sign into law, purporting to celebrate, construe, or object to provisions in the statute. Though long a feature of U.S. lawmaking, the President has avowedly attempted to use these signing statements as tool of strategic influence over judicial decisionmaking since the 1980s — as a way of creating “presidential legislative history” to supplement and, at times, supplant the traditional congressional legislative history conventionally used by the courts to interpret statutes. In this Article, we examine a novel dataset of judicial opinion citations to presidential signing statements to conduct the most comprehensive empirical examination of how courts have received presidential legislative history to date. Three main findings emerge from this analysis. First, contrary to the pervasive (and legitimate) fears in the literature on signing statements, courts rarely cite signing statements in their decisions. Second, in the aggregate, when courts cite signing statements, they cite them in predictably partisan ways, with judges citing Presidents’ signing statements from their own political parties more often than those of the opposing parties. This effect, however, is driven entirely by the behavior of Republican-appointed appellate jurists. Third, courts predominately employ signing statements to buttress aligned statutory text and conventional sources of legislative history, and seemingly never rely on them to override contrary plain statutory text or even unified traditional legislative history. This suggests that signing statements have low rank among interpretative tools and courts primarily use them to complement rather than substitute for congressional legislative history. In this sense, Presidents have largely failed to establish an alternative corpus of valid interpretive material.
Tribal Water Rights: Exploring Dam Construction in Indian Country
Authors: Hoss Aila
Published: July 2018

Jerilyn Church, Chinyere O. Ekechi, Aila Hoss, & Anika Jade Larson, Tribal Water Rights: Exploring Dam Construction in Indian Country, 43 J. L., Med. & Ethics 60 (2015)This paper examines the legal and policy framework related to Tribal water rights, with a key focus on the environmental public health impacts of dam construction in Indian Country. Three dam projects will be highlighted — the Dalles Dam; the Elwha River Dams and the Pick-Sloan Missouri River Basin Program.
Protecting the Treasure: An Assessment of State Court Rules and Policies for Access to Online Civil Court Records
Authors: Jones D.R.
Published: July 2018

Jones, D.R., Protecting the Treasure: An Assessment of State Court Rules and Policies for Access to Online Civil Court Records, 61 Drake L. Rev. 375 (2013).State courts throughout the United States are implementing e-filing for civil court documents. Public access to these online records furthers the long-standing common law right of citizens to review court records. At the same time, online access exposes a wealth of personal information contained in these records. During the last decade state courts struggled to develop and implement rules and policies for public access as courts anticipated a transition from print to electronic records. Now, as e-fling becomes more prevalent, state courts must consider whether current rules and policies regarding public access to electronic court records are adequate to provide privacy protection. This article discusses the ongoing development of courts rules and policies for public access to electronic court records. It assesses common approaches for providing and limiting access, and determines that these approaches do not adequately address privacy concerns. It recommends that courts adopt the alternative approach of the Florida courts. That approach required changes throughout the filing system to minimize the inclusion of personal information in court documents. Courts must rethink the nature and purpose of court filings and how the content of those filings furthers the resolution of disputes.
The Impropriety of Punitive Damages in Mass Torts
Authors: Henderson James A.
Published: July 2018

Punitive damages have been around for centuries in classic one-on-one tort actions and are here to stay. Mass torts, of more recent origin and not without difficulties, have matured to the point that this article is comfortable referring to most of them as traditional. Notwithstanding the legitimacy of both institutions when employed separately, loud warning signals should sound when, as with drinking and driving, they are combined. Potentially destructive mixes of punitive damages and mass torts have, unfortunately, been prevalent in traditional, fault-based mass tort actions. The difficulties are mostly administrative. Although punitive damages are conceptually compatible with fault-based mass torts, courts administer punitive awards in ways that are so capricious as to generate gross unfairness and inefficiency. And if for that reason the warning signals should be loud in connection with punitive awards in traditional mass torts, they should be downright deafening if and when courts consider awarding punitives in what this article refers to as emerging, nontraditional, enterprise-liability-based forms of mass tort.Given that these serious difficulties cannot be eliminated by marginal reforms, this article argues that punitive damages are manifestly inappropriate in, and must be eliminated from, all forms of mass tort. Of course, a broad proscription would require courts to overrule precedent in connection with traditional mass torts, and this article explains how this could be accomplished. By contrast, such a proscription would come early enough in the development of emerging forms of mass tort to nip punitive awards in the bud without the need to overrule longstanding precedent. Thus, if courts are going to eliminate punitive awards in mass torts, now is the time for them to act.
Associations and the Constitution: Four Questions About Four Freedoms
Authors: Tebbe Nelson
Published: July 2018

92 North Carolina Law Review 917 (2014)When should a constitutional democracy allow private associations to discriminate? That question has become prominent once again, not only in the United States but abroad as well. John Inazu provides a provocative answer in his impressive Article, The Four Freedoms and the Future of Religious Liberty. According to his proposal, “strong pluralism,” associations should have a constitutional right to limit membership on any ground, including race. Strong pluralism articulates only three limits: It does not apply to the government, to commercial entities, or to monopolistic groups. In this Response, I raise four questions about Four Freedoms. First, I ask why exactly strong pluralism should be preferred to the existing settlement between associational interests and equality values. Second, I draw a parallel between strong pluralism and broader sorting theories, and ask about the choice of a level of generality or social organization on which to promote sorting. Third, I interrogate strong pluralism’s three limits, and finally I ask whether extending the theory beyond regulation to government funding can be defended on a liberty theory such as strong pluralism. I conclude by commending Four Freedoms to everyone interested in these pressing questions.
Religion and Marriage Equality Statutes
Authors: Tebbe Nelson
Published: July 2018

9 Harvard Law & Policy Review 25 (2015)To date, every state statute that has extended marriage equality to gay and lesbian couples has included accommodations for actors who oppose such marriages on religious grounds. Debate over those accommodations has occurred mostly between, on the one hand, people who urge broader religion protections and, on the other hand, those who support the types of accommodations that typically have appeared in existing statutes. This article argues that the debate should be widened to include arguments that the existing accommodations are normatively and constitutionally problematic. Even states that presumptively are most friendly to LGBT citizens, as measured by their demonstrated willingness to enact marriage equality laws, have included provisions that may well retrench on civil rights principles in ways that are significant but underappreciated. Especially at a moment when marriage equality is moving into jurisdictions that are even more concerned with preserving religious freedom, arguments against existing accommodations should be made available.
Why the Law Hates Speculators: Regulation and Private Ordering in the Market for OTC Derivatives
Authors: Stout Lynn
Published: July 2018

48 Duke Law Journal 701 (1999)A wide variety of statutory and common law doctrines in American law evidence hostility towards speculation. Conventional economic theory, however, generally views speculation as an efficient form of trading that shifts risk to those who can bear it most easily and improves the accuracy of market prices. This Article reconciles the apparent conflict between legal tradition and economic theory by explaining why some forms of speculative trading may be inefficient. It presents a heterogeneous expectations model of speculative trading that offers important insights into antispeculation laws in general, and the ongoing debate concerning over-the-counter (OTC) derivatives in particular.Although trading in OTC derivatives is presently largely unregulated, the Commodity Futures Trading Commission recently announced its intention to consider substantively regulating OTC derivatives under the Commodity Exchange Act (CEA). Because the CEA is at heart an antispeculation law, the heterogeneous expectations model of speculation offers policy support for the CFTC’s claim of regulatory jurisdiction. This model also, however, suggests an alternative to the apparently binary choice now available to lawmakers (i.e., either regulate OTC derivatives under the CEA, or exempt them). That alternative would be to regulate OTC derivatives in the same manner that the common law traditionally regulated speculative contracts: as permitted, but legally unenforceable, agreements. By requiring derivatives traders to rely on private ordering to ensure the performance of their agreements, this strategy may offer significant advantages in discouraging welfare-reducing speculation based on heterogeneous expectations while protecting more beneficial forms of derivatives trading.
God, Civic Virtue, and the American Way: Reconstructing Engel
Authors: Lain Corinna Barrett
Published: July 2018

If ever a decision embodied the heroic, counter majoritarian function we romantically ascribe to judicial review, it was the 1962 decision that struck down school prayer-Engel v. Vitale. Engel provoked more outrage, more congres- sionalattemptsto overturnit, andmoreattackson theJusticesthanperhapsany other decision in Supreme Court history. Indeed, Engel's counter majoritarian narrative is so strong that scholars have largely assumed that the historical record supports our romanticized conception of the case.Itdoesnot. Usingprimary source materials, this Article reconstructs the story of Engel, then explores the implicationsof this reconstructednarrative. Engel is not the countermajoritarian case it seems, but recognizing that allows us to see Engel for what it is: a re- markablyrich account of Supreme Court decisionmakingthatfurthers a number ofconversationsin constitutionallaw. Engel adds a new strandto a burgeoning body of scholarship on the power of culture in general,and social movements in particular,to generate constitutional change, It presents a rare glimpse of the Justices explicitly engaging in a dialogue with the American public. And it exposes qualitative differences in the forms that popular constitutionalism might take, with implications for the theory itself In the end, Engel still offers valuable in- sights about Supreme Court decision making and the role of judicial review. They just aren't the insights we tend to think
Pokémon Go and the Law: Privacy, Intellectual Property, and Other Legal Concerns
Authors: Li Tiffany
Published: July 2018

Before the first lawsuits arrive, this article provides a brief analysis of some of the legal issues involved with the new hit mobile game, including: personal injury liability; privacy; intellectual property; trespass; augmented reality; and virtual currency.This is not an exhaustive list of every legal possibility inherent in the Pokémon Go world. These are just some of the legal issues at play when users, well, play. While this may seem like a long list of potential legal problems, the reality is that any mobile game will have a host of legal issues involved. The issues here can also be applied to video games and augmented reality in general.A version of this article appeared in "Freedom to Tinker."
Dignity Takings, Dignity Restoration: A Tort Law Perspective
Authors: Hans Valerie P.
Published: July 2018

92 Chicago-Kent Law Review 715 (2017)Money damages can operate to restore the dignity of a person who has been injured in tort or deprived of property. A financial award or settlement conveys an acknowledgment of the wrong and signals the reestablishment of equity between defendant and plaintiff. Whether the award is seen as adequate to fully restore dignity is influenced by context, especially comparison cases. And financial compensation directly provided by the defendant holds greater promise for dignity restoration.
Empowering Individual Plaintiffs
Authors: Parchomovsky Gideon , Stein Alex
Published: July 2018

102 Cornell L. Rev. 1319 (2017)The individual plaintiff plays a critical—yet underappreciated— role in our legal system. Only lawsuits that are brought by individual plaintiffs allow the law to achieve the twin goals of efficiency and fairness. The ability of individual plaintiffs to seek justice against those who wronged them deters wrongdoing, ex ante, and in those cases in which a wrong has been committed nevertheless, it guarantees the payment of compensation, ex post. No other form of litigation, including class actions and criminal prosecutions, or even compensation funds, can accomplish the same result. Yet, as we show in this Essay, in many key sectors of our economy, suits by individual plaintiffs have become a rare phenomenon, if not a virtual impossibility. The architecture of liability, by making causes of action more complex and difficult to prove, while equipping defendants with multiple defenses, coupled with the fact that large corporate defendants enjoy a vast cost advantage over individual plaintiffs on account of superior legal expertise and economies of scale and scope, make it nearly impossible for individual plaintiffs to prevail in court, or even get there. This problem pervades many industries, but, for the reasons we detail, it is particularly acute in the insurance, healthcare, medical, and consumer finance sectors. To address this growing problem, we propose a fullfledged legal reform that encompasses substantive, procedural, evidentiary, and remedial measures. Substantively, we explain how civil liability should be redesigned to give a fairer chance to individual plaintiffs. Specifically, we call for the simplification of causes of action and the elimination of cumbersome elements that doom many individual lawsuits. Procedurally, we propose a fast-track litigation course that would enable courts to resolve disputes expeditiously. As we show, the introduction of this new procedure would deprive corporate defendants of one of their most critical advantages: the ability to extend litigation over long periods of time and make it more costly than it should. Evidentially, we recommend that lawmakers shift the burden of proof of certain disputed elements from plaintiffs to defendants and explain how this could be done. Finally, as far as remedies are concerned, we make a case for a new preliminary remedy—a partial payment order—define the conditions under which it should be awarded, and argue for a more extensive use of statutory damages and damage multipliers. Implementing our proposed reform will go a long way toward restoring the pride of place individual plaintiffs traditionally held in our legal system.
Space, Time, and Historical Injustice: A Feminist Conflict-of-Laws Approach to the Comfort Women Agreement
Authors: Knop Karen , Riles Annelise
Published: July 2018

102 Cornell L. Rev. 853 (2017)After more than twenty years of worldwide feminist activism, transnational litigation, and diplomatic stalemate, on December 28, 2015, Japan and South Korea announced a historic agreement intended to provide closure to the so-called “Comfort Women issue”—the issue of what Japan must do to atone for the sexual enslavement of up to 200,000 women from throughout Asia in service to the Japanese troops before and during World War II. Reactions to this landmark agreement continue to be mixed, and the question for many is whether it will hold. One challenge is how to respect the scale and systematicity of the crimes without imposing a single narrative, or without projecting an overdetermined understanding of the gendered past onto the future. We offer an analysis of this question in a wider lens: how to address grave historical injustices when legal claims and advocacy goals spread and metamorphose not only over time, but also across jurisdictions.Focusing on one high profile and particularly contentious provision of the agreement, concerning a privately erected statue honoring the Comfort Women outside the Japanese embassy in Seoul, we first show that the usual questions about settlements for historical injustices—whether they will achieve closure and what kind—can productively be traded for attention to where and when closure and reopening occur. Borrowing our analytical lens from conflict of laws, we refine the problem as a manifestation of a pervasive issue for feminist justice in a globalized world that we call “spatio-temporal diffusion.” We argue that a novel response to this diffusion of historical injustices can be grounded in conflict-of laws techniques. Using the hypothetical of a case brought by Korean Comfort Women in California, we redescribe the field’s techniques for dealing with time across space as a matter of what we term the “sequencing” of different spatio-temporal horizons. This approach resonates with, but also goes a step beyond, the arguments of certain feminist social theorists that feminist politics must be polytemporal. In the mode of an interdisciplinary experiment, we deploy the conflicts technique of sequencing spatio-temporal horizons as a more specified and hopeful approach to a feminist future.
Tattoos and IP Norms
Authors: Perzanowski Aaron
Published: July 2018

The U.S. tattoo industry generates billions of dollars in annual revenue. Like the music, film, and publishing industries, it derives value from the creation of new, original works of authorship. But unlike rights holders in those more traditional creative industries, tattoo artists rarely assert formal legal rights in disputes over copying or ownership of the works they create. Instead, tattooing is governed by a set of nuanced, overlapping, and occasionally contradictory social norms enforced through informal sanctions. And in contrast to other creative communities that rely on social norms because of the unavailability of formal intellectual property protection, the tattoo industry opts for self-governance despite the comfortable fit of its creative output within the protections of the Copyright Act.This Article relies on qualitative interview data drawn from more than a dozen face-to-face conversations with professionals in the tattoo industry. Based on those interviews, it offers a descriptive account of the social norms that have effectively displaced formal law within the tattoo community, provides a set of complementary cultural and economic explanations for the development of those norms, and outlines the broader implications of this research for intellectual property law and policy.
Changing the Paradigm of Stock Ownership from Concentrated Towards Dispersed Ownership? Evidence from Brazil and Consequences for Emerging Countries
Authors: Gorga Érica
Published: July 2018

29 Northwestern Journal of International Law & Business, (2009)This paper analyzes micro-level dynamics of changes in ownership structures. It investigates a unique event: changes in ownership patterns currently taking place in Brazil. It builds upon empirical evidence to advance the theoretical understanding of how and why concentrated ownership structures can change towards dispersed ownership.Commentators argue that the Brazilian capital markets are finally taking off.The number of listed companies and Initial Public Offerings (IPOs) in the São Paulo Stock Exchange (Bovespa) has greatly increased. Firms are migrating to Bovespa's special listing segments, which require higher standards of corporate governance. Companies have sold control in the market, and the stock market has recently seen an attempted hostile takeover. This paper discusses these current developments and analyzes ownership structures of companies listed on Bovespa's listing segments based on data from 2006 and 2007. It provides the first evidence of the decline of ownership concentration in Brazilian corporations.There is, however, an important caveat: dispersed ownership is mainly found in Novo Mercado, the listing segment that requires the one-share-one-vote rule. This paper, then, investigates firms' migration patterns, and finds that eighty-five percent of Novo Mercado's firms are "new entrant" firms. Traditional firms have mostly migrated to Level 1, the least stringent corporate governance segment. Thus, there are two corporate worlds in Brazilian capital markets: new corporations that adopt proactive corporate governance patterns, and established corporations that retain their main patterns of corporate governance or ownership structure.This paper additionally explores the consequences of increased dispersion of ownership through private contracting, such as shareholders' agreements and bylaws. The evidence suggests an increasing reliance on shareholders' agreements to coordinate joint control and to bind directors' votes. Research also shows a growing adoption of anti-takeover devices in bylaws.Finally, this paper sheds light on the incentives that may alter preferences of controlling shareholders. This discussion also explains why controlling shareholders opt to create greater diversity of ownership structures. This analysis advances our knowledge of corporate structures in other emerging countries.
The ICRMW and the US: Substantive Overlap, Political Gap
Authors: Lyon Beth
Published: July 2018

The United States has never seriously considered signing the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW, Migrant Workers Convention, the Convention). Despite the country’s close involvement with negotiating the Convention, the United States has shown no interest in the treaty since its promulgation in 1990. The major countries of migrant employment that initially participated in negotiating the Convention set it aside, and the treaty now has only 38 signatories and 51 state parties. The European Parliament, the European Economic and Social Committee, and the Organization of American States have all favorably reported on the ICRMW and called on the countries in those regions to ratify it. However, there are obstacles to immediate ratification by countries of employment, including prominently the “fear to be among the first” and domestic anti-immigrant sentiment. Even as the Convention slowly accrues country-of-origin ratifications, advocates and officials in many countries of employment are undertaking pre-ratification studies of the treaty. The United States, however, has not yet assessed the Migrant Workers Convention in a substantive way. The United States’ delay in engaging the Convention fits the country’s past human rights treaty ratification processes. When it does consider the ICRMW, the United States is likely to heavily restrict ratification of the Convention, just as it has in ratifying previous human rights treaties. This chapter describes the United States’ substantive objections during the treaty negotiations, and points out that most of the passages that were objectionable at the time were or have since become part of U.S. law.
The Merchants of MOOCs
Authors: Grimmelmann James
Published: July 2018

44 Seton Hall Law Review 1035 (2014)A loose network of educators, entrepreneurs, and investors are promoting Massive Open Online Courses as an innovation that will radicaly disrupt higher education. These Merchants of MOOCs see MOOCs' novel features -- star professors, flipped classrooms, economies of scale, unbundling, and openness -- as the key to dramatically improving higher education while reducing its cost.But MOOCs are far from unprecedented. There is very little in them that has not been tried before, from 19th-century correspondence courses to Fathom, Columbia's $25 million dot-com boondoggle. Claims of disruption look rather different when this missing context is restored. This essay examines some common arguments about what gives MOOCs their value, and finds them wanting. There is a sharp division between the features that make MOOCs exciting for education and the features that make them financially appealing to the Merchants of MOOCs.
Forces of Federalism, Safety Nets, and Waivers
Authors: Stiglitz Edward H.
Published: July 2018

18 Theoretical Inquiries in Law (2017)Inequality is the defining feature of our times. Many argue it calls for a policy response, yet the most obvious policy responses require legislative action. And if inequality is the defining feature of our times, partisan acrimony and gridlock are the defining features of the legislature. So being, it is worth considering what role administrative agencies, and administrative law, might play in ameliorating or exacerbating economic inequality. Here, I focus on American safety net programs, many of which are joint operations between federal administrative agencies and state governments. In this context, a central mode of bureaucratic policy innovation comes in the form of administrative waivers, whereby a federal administrative agency waives some statutory requirement that otherwise binds on state administrators. For example, the CMS recently granted waivers to allow several states to impose various “personal responsibility” requirements on Medicaid beneficiaries.Faced with a choice between legislative inactivity and policy innovation through waivers, many scholars and policymakers of both parties have tended to favor waivers. The appeal of waivers as a path around legislative gridlock is compelling. However, I argue that this view has neglected the federal structure of American safety net programs, and does not account for the state politics of implementation. Moreover, scholars have not focused on the severe information problems that federal agencies face when issuing waivers; a permissive waiver regime exacerbates these problems. Focusing on Medicaid implementation, I highlight the risks of waivers for American safety net programs. Before concluding, I discuss possible reforms to administrative procedures, and offer a case study of litigation surrounding one recent waiver application. The case study illustrates many of the theoretical arguments, and further demonstrates the failure of judicial review; it indicates how review might be adjusted to promote more effective use of waivers and diminish their perils.
The Right to Attention
Authors: Tran Jasper L.
Published: July 2018

Indiana Law Journal, Vol. 91, p. 1023, 2016
Campbell at 21/Sony at 31
Authors: Litman Jessica
Published: July 2018

When copyright lawyers gather to discuss fair use, the most common refrain is its alarming expansion. Their distress about fair use’s enlarged footprint seems completely untethered from any appreciation of the remarkable increase in exclusive copyright rights. In the nearly 40 years since Congress enacted the 1976 copyright act, the rights of copyright owners have expanded markedly. Copyright owners’ demands for further expansion continue unabated. Meanwhile, they raise strident objections to proposals to add new privileges and exceptions to the statute to shelter non-infringing uses that might be implicated by their expanded rights. Copyright owners have used the resulting uncertainty over the scope of liability for new uses to litigate some new businesses into bankruptcy before their legality could be determined. These developments push fair use to shelter new uses and users. When lawyers for copyright owners complain that fair use has stretched beyond their expectations, they fail to acknowledge their own responsibility for its growth.This essay, written for the 2015 Washington Law Review Symposium on Campbell at 20, takes up these questions with particular attention to the 31 year old decision in Sony v. Universal Studios, and Congress’s assumptions about individual and contributory liability for personal copying before and after the Sony case.
Billowing White Goo
Authors: Litman Jessica
Published: July 2018

In this paper, written for a symposium on Fair Use: Incredibly Expanding or Extraordinarily Shrinking?, I argue that the size of the fair use footprint has remained about the same over the past three decades, while the size and scope of copyright's exclusive rights have expanded markedly. In order to protect a broader range of worthy uses under the fair use umbrella, courts have adopted new tests tailored to privilege particular sorts of uses, but in doing so they haven't expanded fair use so much as they have moved it around. In part I of the paper, I briefly summarize the recent history of fair use from the Copyright Office's initial recommendations that Congress codify it through the tests the courts have articulated for applying it. I then turn to the expansion in exclusive rights under section 106. Some of that expansion derives from the architecture of the 1976 Act. Although Congress sought, with particular exceptions, to draft the statute to incorporate the substance of extant law, it drafted the bounded exclusive copyright rights in broad terms and the exceptions to those rights in specific terms. Over 30 years, the specifically worded exceptions have grown obsolete much more quickly than the broadly worded exclusive rights, leaving those rights subject to fewer and narrower exceptions than when the law was enacted. This may be a poor design for copyright laws in policy terms, but it was a choice Congress made. In contrast, the massive recent expansion in the scope of individual section 106 exclusive rights is occurring outside of the legislative process. Advocates have persuaded courts to construe each of the once-bounded exclusive rights more broadly. Once discrete exclusive rights are morphing into an all-purpose general use right. Our understanding of copyright is evolving into the notion that all uses of copyrighted work must be authorized, either by the statute or by the copyright owner. Unauthorized uses, it would follow, must be piracy. I argue that that construction of the copyright statute is completely untenable, especially as it applies to personal uses. Moreover, I suggest, expansion of that sort is as a practical matter inconsistent with a resolve to keep fair use cabined within traditional boundaries as a special privilege for exceptional cases.
Thomas's Supreme Unfitness--A Letter to the Senate on Advise and Consent
Authors: Simson Gary J.
Published: July 2018

78 Cornell Law Review 619 (1993)
Consenting to Computer Use
Authors: Grimmelmann James
Published: July 2018

The federal Computer Fraud and Abuse Act (“CFAA”) makes it a crime to “access[] a computer without authorization or exceed[] authorized access.” Courts and commentators have struggled to explain what types of conduct by a computer user are “without authorization.” But this approach is backwards; authorization is not so much a question of what a computer user does, as it is a question of what a computer owner allows.In other words, authorization under the CFAA is an issue of consent, not conduct; to understand authorization, we need to understand consent. Building on Peter Westen’s taxonomy of consent, I argue that we should distinguish between the factual question of what uses a computer owner manifests her consent to and the legal question of what uses courts will deem her to have consented to. Doing so allows us to distinguish the different kinds of questions presented by different kinds of CFAA cases, and to give clearer and more precise answers to all of them. Some cases require careful fact-finding about what reasonable computer users in the defendant’s position would have known about the owner’s expressed intentions; other cases require frank pol-icy judgments about which kinds of unwanted uses should be considered serious enough to trigger the CFAA.Published: 84 George Washington Law Review 1500 (2016)
Unintended Consequences: The Impact of the Court's Recent Cases on Structural Ineffective Assistance of Counsel Claims
Authors: Lucas Lauren Sudeall
Published: July 2018

The Supreme Court's recent Sixth Amendment cases have garnered much attention for their potential impact on ineffective assistance of counsel claims asserted in the context of a criminal case. This short article explores the unintended consequences of these decisions on structural ineffective assistance of counsel claims made in the civil context alleging that systematic deficiencies are likely to lead to right to counsel violations. The article concludes that the Court's departure from a trial-centered conception of the right to counsel, its willingness to articulate specific pre-trial duties of counsel and its more pragmatic approach towards enforcing the Sixth Amendment will help those seeking indigent defense reform to establish the likelihood of future injury, a necessary element of successful structural challenges.Published: Lauren Sudeall Lucas, Unintended Consequences: The Impact of the Court's Recent Cases on Structural Ineffective Assistance of Counsel Claims, 25 Fed. Sent'g Rep. 106 (2012).
Writing Engaging, Realistic, and Balanced Appellate Advocacy Problems
Authors: Dimitri James D.
Published: July 2018

16 Perspectives: Teaching Legal Research & Writing 93 (2008)Any professor who has been responsible for creating an appellate advocacy problem will agree that it can be very time consuming and perhaps even daunting. The topic for the problem needs to be selected, followed by thorough research to gather relevant authority. But even more importantly, the problem must hold pedagogical value for the students. Specifically, the problem should be engaging and challenging for the students, yet it must also be manageable for them so they don't become frustrated. Moreover, the problem should give the students a realistic portrayal of the appellate process so the students are not surprised when they enter law practice and run into aspects of the appellate process for which their appellate advocacy experience did not prepare them.This article contains a discussion of methods that are effective for writing an appellate advocacy problem that achieves the pedagogical objectives mentioned above.