bluuebunny/crossref_metadata_2025 huggingface dataset:
Excluding Religion: A Reply
Authors: Tebbe Nelson
Published: July 2018

157 University of Pennsylvania Law Review PennUMBRA 283 (2009)This short piece replies to three prominent scholars who have offered thoughtful responses to my article, Excluding Religion. It first takes up their invitation to explore some of the ramifications of the article for legal and political theory, albeit in a limited way. Second, it revisits the article’s central argument - namely, that governments ought to have greater constitutional leeway to deny aid to religious actors and entities than is commonly thought - and shows how that proposal emerges from the conversation intact. Third, the reply defends certain limits on the practice of excluding religion, particularly the presumptive prohibition on singling out particular sects. In conclusion, the piece describes some aspirations that may legitimately motivate scholarship in this area.
Law Libraries as Publishers: Faculty Bibliographies
Authors: Keele Benjamin John
Published: July 2018

Keele, Benjamin J. (2015). Law Libraries as Publishers: Faculty Bibliographies. ALL-SIS Newsletter, 34(2),14-15.
The Sony Paradox (2005)
Authors: Litman Jessica
Published: July 2018

Senator Orrin Hatch's introduction of the "Induce Act" in the summer of 2004 transformed the ongoing debate over the legality, morality and economics of peer-to-peer file sharing into a debate over Sony v. Universal Studios. Fans of the Sony decision insist that the legal rule announced in the case made the world safe for innovation. Sony's detractors read the decision more narrowly, and insist it has little application to the networked digital environment. The Supreme Court agreed to hear MGM v. Grokster in part to resolve the dispute about the meaning and scope of Sony, and will almost certainly revisit its analysis in the course of deciding Grokster. That has inspired hyperbolic pronouncements from all sides about the importance of the case. If the Supreme Court gets it wrong, we hear, either innovation will be stymied or the copyright law will be eviscerated. This paper examines the historical materials that have become available in the twenty-one years since the Sony decision, and offers an account of what persuaded the Court to resolve the case the way it did. It then assesses the claim that the rule announced in Sony has served as a "Magna Carta for technological innovation." I conclude that Sony has offered only modest protection to innovators, because aggrieved copyright owners have not hesitated to sue new technologies into bankruptcy. Innovators have run out of money before defenses based on Sony could make it into the courtroom. At the same time, the Court has limited options in devising a workable rule to replace Sony. Twenty-one years after the Sony decision, Congress has failed to address the statutory problems that motivated the Court to adopt the staple article of commerce rule, and none of the litigants in Grokster have offered the Court a useful substitute. Ultimately Congress is likely to be asked to rewrite whatever standard the Court articulates in Grokster. Motion picture studios and recording companies will likely insist on a rule imposing liability on any business that profits from infringement. High tech companies will likely insist on limiting any expansion of liability to businesses that profit from unlicensed peer-to-peer file trading. Under pressure from those industries, Congress is unlikely to draw a new line of general application that differs significantly from the one drawn in Sony. Drawing a sensible and robust line of general application would require Congress to revisit copyright remedies at a fundamental level. Industry lobbyists, seeking quick fixes to meet their immediate needs, will have little interest in such a project. Congress, therefore, will probably do what it has done before: enact a narrow rule that purports to fix the problem but proves unhelpful within months of enactment because technology has morphed in unanticipated ways.This paper was published in volume 55 of the Case Western Law Review.
Silent Similarity
Authors: Litman Jessica
Published: July 2018

From 1909 to 1930, U.S. courts grappled with claims by authors of prose works claiming that works in a new art form – silent movies – had infringed their copyrights. These cases laid the groundwork for much of modern copyright law, from their broad expansion of the reproduction right, to their puzzled grappling with the question how to compare works in dissimilar media, to their confusion over what sort of evidence should be relevant to show copyrightability, copying and infringement. Some of those cases – in particular, Nichols v. Universal Pictures – are canonical today. They are not, however, well-understood. In particular, the problem at the heart of most of these cases – how to imagine a work consisting entirely of pictures as infringing a work made entirely of words – has largely vanished from our consciousness. A better understanding of these early cases casts into clearer light copyright doctrines and practices we take for granted today.
Patents vs. Statutory Exclusivities in Biological Pharmaceuticals - Do We Really Need Both?
Authors: Heled Yaniv
Published: July 2018

On March 23, 2010, President Obama signed into law the Biologics Price Competition and Innovation Act (BPCIA) as part of the Patient Protection and Affordable Care Act (also known as the Healthcare Bill). BPCIA sets up a framework for the approval of generic biologics and provides for up to 12.5 years of market exclusivity for FDA approved bio-pharmaceutical products. The exclusivity is intended to run in parallel and in addition to any patents that may apply to such approved bio-pharmaceutical products, which would also grant the developers of these products monopolies in the underlying technologies on which such bio-pharmaceutical products are based. This seeming “double dipping” raises questions regarding the need and justification, if any, for such parallel, double protection of this particular class of biological products. This article seeks to address these questions. Analyzing the fundamentals and underlying assumptions of the legal regimes of patents and statutory exclusivities, this article examines their applicability to the context of bio-pharmaceuticals. Based on the conclusions reached, this article then further examines the proposition that statutory exclusivity regimes could become a blueprint for “patentless” areas of technology, replacing the traditional patent regime with a new class of incentives to invent and invest in the development of new technology.Published: Yaniv Heled, Patents vs. Statutory Exclusivities in Biological Pharmaceuticals - Do We Really Need Both?, 18 Mich. Telecomm. Tech. L. Rev. 419 (2012).
Environmental Tribalism
Authors: Kysar Douglas A. , Salzman James
Published: July 2018

87 Minnesota Law Review ( 2003)Recent writings by Dan Farber and J.B. Ruhl have put forward a strong case for "eco-pragmatic" and "radical middle" approaches to environmental policymaking. Rather than debate the merits of such an approach, in this Article we examine whether eco-pragmatic policy development is likely in practice and where it might occur, given the tribal nature of public environmental advocacy. We use the remarkably polarized reaction to Bjorn Lomborg's book, "The Skeptical Environmentalist," as a vehicle to explore the seemingly fundamental divide that exists between warring parties within the environmental law and policy communities. By offering a more complete understanding of why parties involved in environmental policymaking exhibit such stark bipolarism, we seek to help proponents of pragmatic, inclusive approaches to environmental law and policy overcome the field's tribal dynamics.
Incomprehensible Discrimination
Authors: Grimmelmann James
Published: July 2018

7 California Law Review Online 164 (2017)Plaintiff Ruminant Defense Lague alleged that the defendant Zootopia Police Department's new algorithmic hiring process unfairly discriminates against herbivores in violation of Title VII. The ZPD responded, and the Court of Appeals agreed, that because its algorithmic model does not explicitly consider species, it does not constitute disparate treatment, and that since the model is preedictive of job performance, any disparate impact on herbivores is justified as a business necessity. This case, in other words, squarely presents the problem of “proxies for proscribed criteria" identified by Solon Barocas and Andrew Selbst in the article, Big Data's Disparate Impact, 104 Calif. L. Rev. 101 (2016).Held: Where the output of an algorithmic model is correlated both with job performance and with membership in a protected class, the employer bears the burden of demonstrating which of these correlations, if either, is causal. Pp. 170–77.(a) It can be a permissible employment practice to use a properly validated predictive algorithmic model in personnel decisions, even if the model disproporionately favors some groups of applicants and employees over others. Pp. 170-71.(b) Where such a model has a disparate impact on a protected group, the employer may rely on a defense of business necessity only if it shows that the factors the model relies on are not just correlated with job performance but causally connected to it. Here, it might be the case that the ZPD's model works not because it identifies the characteristics relevant to successful police work, but only because it identifies the herbivores in an applicant pool where the relevant characteristics are unequally distributed. Pp. 171-72.(c) This allocation of the burden of proof will encourage employers to better understand the algorithmic models they use, and to share that knowledge with the public. Pp. 173-74.(d) Other bodies of law, including the Fair Credit Reporting Act, already require explanations for why models behave the way they do. Pp. 174-76.(e) This modification to the burden-shifting framework of disparate impact borrows from disparate treatment doctrine. Title VII does not permit an employer to do indirectly what it could not do directly. P. 176.Our holding today is simple. Incomprehensible discrimination will not stand.Co-Authored with Daniel Westreich
Beware the "Terror Gap": Closing the Loophole between the U.S. Terrorist Watchlist System and the Right to Bear Arms
Authors: Sullivan Elizabeth Moran
Published: July 2018

103 Cornell L. Rev. 205 (2017)In July 2014, the Federal Bureau of Investigation (FBI) interviewed a man named Omar Mateen about his connection to a Florida native named Moner Mohammad Abusalha. Abusalha had killed himself two months earlier during a suicide attack in Syria, during which he drove a truck full of explosives into a restaurant. The group formerly known as Jabhat al-Nusra claimed responsibility for the suicide attack and credited Abusalha as the first U.S. citizen to carry out a “martyrdom operation” on Syrian soil.The local Islamic community in Abusalha’s hometown of Port St. Lucie, Florida struggled to reconcile how a “jovial and easygoing” young man had become radicalized. Abusalha’s initial radicalization had occurred in the United States prior to his first trip to Syria in 2013, and there was a concern among the community that its youth could be susceptible to the same extremist tendencies—especially given that Abusalha had made an apparent recruiting trip back to the United States after his training in Syria. Mohammed Malik, a Pakistani-American living in Port St. Lucie and a member of the local Islamic community, took it upon himself to speak with the FBI and other concerned community members in an effort to understand the motive behind Abusalha’s radicalization. One such conversation occurred between Malik and Mateen, both of whom had attended mosque at the Islamic Center of Fort Pierce with Abusalha. During this conversation, Mateen told Malik that, like Abusalha, he too had been watching videos depicting the American-born-turned-al-Qaeda digital propagandist, Anwar al-Awlaki. Mateen told Malik that he found the videos “very powerful,” a response that Malik found disturbing enough to again contact the FBI. The FBI, having already looked into Mateen based on a tip received in 2013, investigated him for a second time and once again deemed him not to be a threat.
Fast-Food Workers Fight for a Raise and Create a Movement
Authors: Cornell Angela B.
Published: July 2018

16 ADAPT International Bulletin (2014)Last Tuesday’s midterm election in the United States confirmed the saliency of the “Fight for 15,” the nation-wide struggle to raise the minimum wage propelled by fast-food workers. Even as the nation took a turn to the Right, permitting the Republicans to take over both chambers of Congress, ballot initiatives that passed resoundingly ushered in minimum wage increases in Alaska, South Dakota and Arkansas. Illinois and Wisconsin voters likewise approved increases in their states’ minimum wage in non-binding votes. Initiatives at the municipal level were also successful, the highest of which was San Francisco, requiring $15 an hour by 2018, more than doubling the federal minimum of $7.25. In June, Seattle increased the minimum wage to the $15 level as well.
THE EXPANDING ROLE AND IMPORTANCE OF STANDARDS IN THE INFORMATION AND COMMUNICATIONS TECHNOLOGY INDUSTRY
Authors: Biddle C. Bradford
Published: July 2018

Standards play a particularly critical role in the information and communications technology (ICT) industry: they facilitate important interoperability goals. Standards development processes in the ICT industry are extraordinarily complex, and many aspects of these processes are not well understood. Inspired by discussions at a workshop that included leading practitioners, academics, and policymakers specializing in standards, the authors identify factors that explain both the growing importance and the growing complexity of standards in the ICT industry. The authors provide a framework for understanding how standards development efforts are structured, with a particular focus on the more informal specification development groups known as Consortia. The authors also explore two particular challenges in standard setting: the development of intellectual property policies that adequately balance different stake-holder interests, and the potential for ethical conflict issues.
Three Letters that Move the Markets: Credit Ratings between Market Information and Legal Regulation
Authors: Schroeter Ulrich G.
Published: July 2018

Journal of Applied Research in Accounting and Finance, Vol. 6, No. 1 (2011), pp. 14-30As demonstrated by the market reactions to downgrades of various sovereign credit ratings in 2011, the credit rating agencies occupy an important role in today’s globalized financial markets. This article provides an overview of the central characteristics of credit ratings and discusses risks arising from both their widespread use as market information and from the increasing references to credit ratings contained in laws, legal regulations and private contracts.
Slave to the Algorithm? Why a 'right to an explanation' is probably not the remedy you are looking for
Authors: Edwards Lilian , Veale Michael
Published: July 2018

Cite as Lilian Edwards and Michael Veale, 'Slave to the Algorithm? Why a 'right to an explanation' is probably not the remedy you are looking for' (2017) 16 Duke Law and Technology Review 18–84. (First posted on SSRN 24 May 2017)Algorithms, particularly machine learning (ML) algorithms, are increasingly important to individuals’ lives, but have caused a range of concerns revolving mainly around unfairness, discrimination and opacity. Transparency in the form of a “right to an explanation” has emerged as a compellingly attractive remedy since it intuitively promises to “open the black box” to promote challenge, redress, and hopefully heightened accountability. Amidst the general furore over algorithmic bias we describe, any remedy in a storm has looked attractive.However, we argue that a right to an explanation in the EU General Data Protection Regulation (GDPR) is unlikely to present a complete remedy to algorithmic harms, particularly in some of the core “algorithmic war stories” that have shaped recent attitudes in this domain. Firstly, the law is restrictive, unclear, or even paradoxical concerning when any explanation-related right can be triggered. Secondly, even navigating this, the legal conception of explanations as “meaningful information about the logic of processing” may not be provided by the kind of ML “explanations” computer scientists have developed, partially in response. ML explanations are restricted both by the type of explanation sought, the dimensionality of the domain and the type of user seeking an explanation. However, “subject-centric" explanations (SCEs) focussing on particular regions of a model around a query show promise for interactive exploration, as do explanation systems based on learning a model from outside rather than taking it apart (pedagogical vs decompositional explanations ) in dodging developers' worries of IP or trade secrets disclosure.Based on our analysis, we fear that the search for a “right to an explanation” in the GDPR may be at best distracting, and at worst nurture a new kind of “transparency fallacy.” But all is not lost. We argue that other parts of the GDPR related (i) to the right to erasure ("right to be forgotten") and the right to data portability; and (ii) to privacy by design, Data Protection Impact Assessments and certification and privacy seals, may have the seeds we can use to make algorithms more responsible, explicable, and human-centred.
International Law and the Death Penalty: A Toothless Tiger, or a Meaningful Force for Change
Authors: Babcock Sandra L.
Published: July 2018

Over the last several decades, the world has made great strides towards universal abolition of the death penalty. Since the Universal Declaration on Human Rights was adopted in 1948, nearly 100 countries have abolished the death penalty as a matter of law. European and Latin American nations have been on the forefront of abolitionist efforts, but anti-death-penalty sentiment is not limited to those regions; support for the death penalty is waning in Africa and Southeast Asia as well. All but one or two nations claim to no longer execute minors, and many of the world's leading executioners have greatly reduced the number of crimes for which the death penalty can be applied. The General Assembly of the United Nations has now passed four resolutions in favor of a universal moratorium on capital punishment, and each has been supported by a greater number of countries-even those that were previously considered staunch supporters of the death penalty.
Visions of the Future of (Legal) Education
Authors: Madison Michael J
Published: July 2018

One law professor takes a stab at imagining an ideal law school of the future and describing how to get there. The Essay spells out a specific possible vision, taking into account changes to the demand for legal services and changes to the economics and composition of the legal profession. That thought experiment leads to a series of observations about values and vision in legal education in general and about what it might take to move any vision forward.
The Intellectual Property Chapter of the Trans-Pacific Partnership Agreement and Investment in Developing Nations
Authors: Cox Krista L.
Published: July 2018

The United States has some of the highest standards of intellectual property protection in the world, though many copyright and patent laws in the United States are limited through balancing provisions that provide exceptions to the exclusive rights conferred by the intellectual property system. The United States has engaged in efforts to raise intellectual property standards worldwide through creation of new global norms, such as through negotiations of free trade agreements like the currently negotiated Trans-Pacific Partnership Agreement. Higher levels of intellectual property protection may be unnecessary to attract investment in developing countries. In fact, increasing intellectual property standards may actually result in negative impacts on development for low- and middle-income countries. This paper examines the role of intellectual property rules in attracting investment for developing countries. It uses the proposals for the TPP's intellectual property chapter as an example on how higher levels of intellectual property enforcement may harm rather than promote investment.
Irrational Expectations
Authors: Stout Lynn
Published: July 2018

3 Legal Theory 227 (1997)Rational expectations models have become a staple of economic theory and the basis for a Nobel Prize. This article argues that rational expectations analysis suffers from potentially fatal flaws that seriously undermine its value in understanding many market phenomena. Using the example of financial markets, the article illustrates how the rational expectations approach has worked to obscure, rather than to illuminate, our understanding of speculation and speculative markets. This misguidance raises problems for law and policy.
Decoding First Amendment Coverage of Computer Source Code in the Age of YouTube, Facebook and the Arab Spring, 68 N.Y.U. Ann. Surv. Am. L. 319 (2012)
Authors: Roig Jorge R.
Published: July 2018

Computer source code is the lifeblood of the Internet. It is also the brick and mortar of cyberspace. As such, it has been argued that the degree of control that a government can wield over code can be a powerful tool for controlling new technologies. With the advent and proliferation in the Internet of social networking media and platforms for the publication and sharing of user-generated content, the ability of individuals across the world to communicate with each other has reached truly revolutionary dimensions. The influence of Facebook in the popular revolutions of the Arab Spring has been well documented. The use of YouTube in the 2008 US Presidential campaign has also left its indelible mark in the political landscape. New platforms have allowed millions of individuals to unleash their artistic and creative potentials. Tools like Google Earth have expanded the ability of entire populations to learn about their surroundings, the world at large, and their places in it. The combination of smartphones and Twitter has created new tactics for protests and redefined the way in which individuals assemble to petition their government for a redress of grievances.The time has come to reconsider the issue of whether computer source code is “speech” for First Amendment purposes, and how the government can regulate it in a manner consistent with First Amendment values. This article proposes a three-step framework for analyzing questions of First Amendment coverage consistent with Supreme Court doctrine. In applying this framework to computer source code, this article also explores the relation between the different values that have been ascribed to the First Amendment, discusses some insights regarding the speech-conduct distinction, and considers the extent of First Amendment coverage in general.
Ad Hoc or Institutional Arbitration - A Clear-Cut Distinction? A Closer Look at Borderline Cases
Authors: Schroeter Ulrich G.
Published: July 2018

It is generally accepted in both theory and practice of arbitration that there are two basic forms of arbitration, ad hoc and institutional. This long established dichotomy has rarely been questioned, and it has mostly worked well in international arbitration practice.The present contribution investigates the traditional distinction between ad hoc and institutional arbitration in more detail by looking at "borderline cases", i.e. constellations that cannot easily be allocated to one of these two categories. Four groups of borderline cases are discussed: (1) UNCITRAL arbitrations, in particular those administered by arbitral institutions; (2) cases in which the parties have chosen institutional rules, but not the issuing institution (and vice versa), (3) the modification of institutional rules by the parties and the identification of a possible "mandatory" core of institutional rules, and (4) "mix and match" (or "hybrid") arbitrations combining one arbitral institution's rules with the case's administration by a different arbitral institution. By identifying the factors that were decisive for these borderline cases being regarded as institutional or ad hoc, the article is trying to gain insight into the core characteristics underlying each arbitration category. Drawing on these insights, it develops and explains a novel definition of "institutional arbitration".
A Pattern-Oriented Approach to Fair Use
Authors: Madison Michael J
Published: July 2018

More than 150 years into development of the doctrine of "fair use" in American copyright law, there is no end to legislative, judicial, and academic efforts to rationalize the doctrine. Its codification in the 1976 Copyright Act appears to have contributed to its fragmentation, rather than to its coherence. This Article suggests that fair use is neither badly conceived nor badly applied, but that it is too often badly understood. As did much of copyright law, fair use originated as a judicially-unacknowledged effort via the law to validate certain favored social practices and patterns. In the main, it has continued to be applied as such, though too often courts mask their implicit validation of these patterns in the now-conventional "case-by-case" application of the statutory fair use "factors" to the defendant's use of the copyrighted work in question. A more explicit acknowledgement of the role of these patterns in fair use analysis is consistent with fair use and copyright policy and tradition. Importantly, it helps to bridge the often-difficult conceptual gap between fair use claims asserted by individual defendants and the social implications of accepting or rejecting those claims. Finally, a pattern-oriented approach is normatively appropriate, when viewed in light of recent research by cognitive psychologists and other social scientists on patterns and creativity. In immediate terms, the approach should lead to a more consistent and predictable fair use jurisprudence. In the longer term, it should enhance the ability of copyright law to promote creative expression.
Understanding Public Expectations of Healthcare Quality and Safety Regulation in Australia
Authors: Carter David J , Brown James J. , Saunders Carla
Published: July 2018

The regulation of health care services has a range of goals. Improving the safety and quality of healthcare is one of them. However, there is a lack of good quality evidence about what members of the Australian community believe and expect in relation to the regulation of healthcare safety. To elicit the Australian public’s voice on issues related to the governance of health care quality and safety, we developed a survey instrument that reflected core elements of Australian approach to regulating health care safety and quality. This Policy Brief describes the results of the survey, highlighting the important areas of similarity and difference between the views of the community and existing regulatory frameworks. In summary, the general public expect a graduated approach to stakeholder responsibility, monitoring and regulatory responses to failures in the quality and safety of healthcare. However, Reliance on decentralised accreditation-centric quality improvement mechanisms is not sufficient. The community expects more centralised oversight, including strict norm-referenced monitoring and performance testing – including in-person ‘spot inspections’, rather than reliance on self-monitoring and reporting.
The Complexity of Commons
Authors: Madison Michael J , Frischmann Brett M. , Strandburg Katherine J.
Published: July 2018

Constructing Commons in the Cultural Environment, and responses to that article by Professors Thráinn Eggertsson, Wendy Gordon, Gregg Macey, Robert Merges, Elinor Ostrom, and Lawrence Solum. This short Reply comments briefly on each of those responses.
The Right to Science and Culture
Authors: Shaver Lea
Published: July 2018

The Universal Declaration of Human Rights states: “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.” This Article suggests how this text may offer a philosophical and legal basis to constrain the further expansion of protectionism in international IP law. Drawing on accepted methodologies of human rights interpretation and recent research from legal and economic scholars on the value of preserving the knowledge commons, the Article offers a theory of “the right to science and culture” as requiring a public goods approach to knowledge innovation and diffusion. The Article then translates this public goods theory into concrete guidance for policy makers seeking to implement human rights obligations, and for jurists asked to adjudicate rights-based challenges to copyright and patent laws. In conclusion, this Article suggests that reviving attention to this long-marginalized provision of international public law may provide an important rhetorical and legal tool with which to open up new possibilities for sensible IP reform.
The Smart Fourth Amendment
Authors: Ferguson Andrew G.
Published: July 2018

102 Cornell Law Review 547 (2017)“Smart” devices radiate data, exposing a continuous, intimate, and revealing pattern of daily life. Billions of sensors collect data from smartphones, smart homes, smart cars, medical devices, and an evolving assortment of consumer and commercial products. But, what are these data trails to the Fourth Amendment? Does data emanating from devices on or about our bodies, houses, things, and digital devices fall within the Fourth Amendment’s protection of “persons, houses, papers, and effects”? Does interception of this information violate a “reasonable expectation of privacy”? This Article addresses the question of how the Fourth Amendment should protect “smart data.” It exposes the growing danger of sensor surveillance and the weakness of current Fourth Amendment doctrine. The Article then suggests a new theory of “informational curtilage” to protect the data trails emerging from smart devices and reclaims the principle of “informational security” as the organizing framework for a digital Fourth Amendment.
HOW MANY STANDARDS IN A LAPTOP? (AND OTHER EMPIRICAL QUESTIONS)
Authors: Biddle C. Bradford
Published: July 2018

An empirical study which identifies 251 technical interoperability standards implemented in a modern laptop computer, and estimates that the total number of standards relevant to such a device is much higher. Of the identified standards, the authors find that 44% were developed by consortia, 36% by formal standards development organizations, and 20% by single companies. The intellectual property rights policies associated with 197 of the standards are assessed: 75% were developed under “RAND” terms, 22% under “royalty free” terms, and 3% utilize a patent pool. The authors make certain observations based on their findings, and identify promising areas for future research.
A Rejoinder
Authors: Palmer Larry I.
Published: July 2018

35 Jurimetrics Journal 51 (1994)Article is a response to Daniel S. Strouse, "Egg Donation, Motherhood and State Law Reform: A Commentary on Professor Palmer's Proposals," 35 Jurimetrics Journal 31 (1994).
Authority and Authors and Codes
Authors: Madison Michael J
Published: July 2018

Contests over the meaning and application of the federal Computer Fraud and Abuse Act (“CFAA”) expose long-standing, complex questions about the sources and impacts of the concept of authority in law and culture. Accessing a computer network “without authorization” and by “exceeding authorized access” is forbidden by the CFAA. Courts are divided in their interpretation of this language in the statute. This Article first proposes to address the issue with an insight from social science research. Neither criminal nor civil liability under the CFAA should attach unless the alleged violator has transgressed some border or boundary that is rendered visible or “imageable” in the language of the research on which the argument draws. That claim leads to a second, broader point — emphasizing the potential “imageability” of computer networks, including the Internet, has implications that go beyond one statute because of what that emphasis may teach those who create and implement those networks and who shape the authority that relevant computer code exercises. “Authority” and “authorization” are social practices, continuing negotiations between those who produce them and those who acknowledge and recognize them. “Imageability” is a way of translating that observation into a normative claim in a specific statutory context. Recognizing the social dimensions of “authority” implicates both what kind of Internet society wants and what kind of Internet society will get.
RJR Nabisco and the Runaway Canon
Authors: Gardner Maggie
Published: July 2018

102 Virginia Law Review Online 134 (2016)In last Term’s RJR Nabisco, Inc. v. European Community, the Court finished transforming the presumption against extraterritoriality from a tool meant to effectuate congressional intent into a tool for keeping Congress in check. In the hands of the RJR Nabisco majority, the presumption has become less a method for interpreting statutes than a pronouncement on the proper scope of access to U.S. courts, a pronouncement that Congress must labor to displace. Besides the worrisome implications for separation of powers, the majority’s opinion was also disappointing on practical grounds. By applying the presumption too aggressively, the Court missed an opportunity to provide much-needed guidance to judges on how to interpret statutes that rebut it. This Essay thus concludes with suggestions for judges about how to interpret statutes that do indicate Congress’s extraterritorial intent.
For Goodness' Sake: A Two-Part Proposal for Remedying the United States Charity/Justice Imbalance
Authors: Quigley Fran
Published: July 2018

Fran Quigley, For Goodness' Sake: A Two-Part Proposal for Remedying the United States Charity/Justice Imbalance, 23 Vir. J. Soc. Pol'y I L. 39 (2016)The approach to addressing economic and social needs in the United States strongly favors individual and corporate charity over the establishment and enforcement of economic and social rights. This charity/justice imbalance has a severely negative impact on the nation’s poor, who struggle with inadequate access to healthcare, housing, and nutrition, despite high overall U.S. wealth. This article suggests a two-part approach for remedying the charity/justice imbalance in the United States. First, the U.S. should eliminate the charitable tax deduction, apolicy that does not effectively address economic and social needs, forces an inequitable poverty relief and tax burden on the middle class, and lulls the nation into a false sense of complacency about its poverty crisis. Second, the U.S. should replace the deduction with ratification of the International Covenant on Economic, Social and Cultural Rights. This twopart process would reverse the U.S. legacy of avoiding enforceable commitments to economic and social rights. Charity would take a step back and justice a step forward.
Rape in War: Prosecuting the Islamic State of Iraq and the Levant and Boko Haram for Sexual Violence Against Women
Authors: Sverdlov David
Published: July 2018

Cornell International Law Journal: Vol. 50 : No. 2 , Article 6."Women's lives and their bodies have been the unacknowledged casualties of war for far too long." In just the last three decades, militants-on almost every continent-have raped hundreds of thousands of women. Nevertheless, international legal bodies have brought few rapists to justice. Since 2000, international tribunals have convicted only five men and women in Rwanda, twenty-three men in the former Yugoslavia, and one person from the Congo for using rape as a weapon of war. As such, rape remains the least-condemned war crime; thousands of unpunished rapists continue to walk free, and in some cases, on the same streets as their victims.The Islamic State of Iraq and the Levant (ISIL) and the smaller affiliates such as Boko Haram are the most recent and unpunished perpetrators who use rape as a weapon of war. Since invading northern parts of Iraq in 2014, ISIL forced at least six thousand Yazidi women into sexual slavery, three thousand of whom remain enslaved. Likewise, Boko Haram has abducted about five hundred women in Nigeria and forced at least some of them into marriages and slave-like domestic servitude. But no ISIL or Boko Haram militants have been prosecuted for using rape to commit genocide, a crime against humanity, or a war crime.It is important not to leave justice wanting and these women unrecognized. To that end, international organizations must ensure legal prosecution of both ISIL and Boko Haram under either the Genocide Convention or the non-genocidal crimes of the Rome Statute. This Note will explore legal precedent on prosecuting rape as a weapon of war and recommend whether it is feasible to prosecute ISIL or Boko Haram under Articles VI and VII of the Rome Statute. To do so, this Note will rely on the precedents established during the prosecutions of Rwandan and Yugoslavian war criminals. Part II will provide a brief overview of ISIL, the Yazidis, and Boko Haram's histories. Part III will provide facts on the Rwandan Hutu treatment of female Tutsis and the Bosnian Serb treatment of Bosnian Muslim women during their respective genocides and the legal precedent from the tribunals that dealt with both events. Part IV will evaluate the known facts regarding ISIL and Boko Haram under legal precedent and conclude that ISIL leaders can be prosecuted for genocidal rape, but Boko Haram leaders must be prosecuted under different crimes in the Rome Statute. Part V provides suggestions for which militants to charge. Part VI is the conclusion.
New Thinking on "Shareholder Primacy"
Authors: Stout Lynn
Published: July 2018

2 Accounting, Economics, and Law (2012)By the beginning of the twenty-first century, many observers had come to believe that U.S. corporate law should, and does, embrace a "shareholder primacy" rule that requires corporate directors to maximize shareholder wealth as measured by share price. This Essay argues that such a view is mistaken.As a positive matter, U.S. corporate law and practice does not require directors to maximize "shareholder value" but instead grants them a wide range of discretion, constrained only at the margin by market forces, to sacrifice shareholder wealth in order to benefit other constituencies and the firm itself. Although recent "reforms" designed to promote greater shareholder power have begun to limit this discretion, U.S. corporate governance remains director-centric.As a normative matter, several lines of theory have emerged in modem corporate scholarship that independently explain why director governance of public firms is desirable from shareholders' own perspective. These theories suggest that if we want to protect the interests of shareholders as a class over time-rather than the interest of a single shareholder in today's stock price-conventional shareholder primacy thinking is counterproductive. The Essay reviews five of these lines of theory and explores why each gives us reason to believe that shareholder primacy rules in public companies in fact disadvantage shareholders. It concludes that shareholder primacy thinking in its conventional form is on the brink of intellectual collapse, and will be replaced by more sophisticated and nuanced theories of corporate structure and purpose.
Excluding Religion
Authors: Tebbe Nelson
Published: July 2018

156 University of Pennsylvania Law Review 1263 (2008)This Article considers whether government may single out religious actors and entities for exclusion from its support programs. The problem of selective exclusion has recently sparked interest in lower courts and in informal discussions among scholars, but the literature has not kept pace. Excluding Religion argues that government generally ought to be able to select religious actors and entities for omission from support without offending the Constitution. At the same time, the Article carefully circumscribes that power by delineating several limits. It concludes by drawing out some implications for the question of whether and how a constitutional democracy ought to be able to influence private choices concerning matters of conscience.
Copyright and Inequality
Authors: Shaver Lea
Published: July 2018

The standard theory of copyright law imagines a marketplace efficiently serving up new works to an undifferentiated world of consumers. Yet the reality is that all consumers are not equal. Class and culture combine to explain who wins, and who loses, from copyright protection. Along the dimension of class, the inequality insight reminds us just because new works are created does not mean that most people can afford them, and calls for new attention to problems of affordability. Copyright protection inflates the price of books, with implications for distributive justice, democratic culture, and economic efficiency. Along the dimension of culture, the inequality insight points out that it is not enough for copyright theory to speak generally of new works; it matters crucially what languages those works are being created in. Copyright protection is likely to be an ineffective incentive system for the production of works in “neglected languages” spoken predominantly by poor people. This Article highlights and explores these relationships between copyright and social inequality, offering a new perspective on what is at stake in debates overcopyright reform.
Innovators, Esq.: Training the Next Generation of Lawyer Social Entrepreneurs
Authors: Dangel Stephanie A. , Madison Michael J
Published: July 2018

Today’s law school graduates need to be entrepreneurial to succeed, but traditional legal education tends to produce lawyers who are “strange bedfellows” with entrepreneurs. This article begins by examining the innovative programs at many law schools that ameliorate this tension, including the programs offered by our Innovation Practice Institute (IPI) at the University of Pittsburgh School of Law. Although these programs train law students to represent entrepreneurs and to be entrepreneurial in law-related careers, few (if any) law schools train law students to be “business” entrepreneurs. Drawing on our own experiences and the writings of Bill Drayton, the lawyer who pioneered the field of social entrepreneurship, we discuss how some lawyers have applied their legal education to be successful “social” entrepreneurs. Finally, we outline the IPI’s three-year law school program explicitly designed to train law students to be social entrepreneurs.
Sharp Wars are Brief
Authors: Ohlin Jens David
Published: July 2018

"Sharp wars are brief," Francis Lieber wrote in his code, encapsulating in four short words an entire ethical worldview that would ground his work on the law of war. Lieber believed that the over-regulation of war was dangerous because it risked prolonging the conflict, which in the long run was damaging to human affairs. For Lieber, as for Kant, the goal of war was to return to a state of peace, and anything that made the "return to peace more difficult" should be discouraged or outlawed. On the other hand, though, "sharp wars are brief" is a horrible argument and subject to abuse. It can be used to defeat almost any regulation of war, whether sensible or not.In this paper I wish to make three key claims. First, Lieber's conception of necessity stems directly from his philosophical claim that sharp wars are brief. Second, the Lieberian conception of necessity is not a relic of the historical past. Rather, it represents the basic structure of today's law of war. If one wants to know why today's law of war does so little to value the lives of combatants — while protecting civilians — one need look no further than the Lieber Code and its argument that sharp wars are brief. Finally, the third section of this chapter will critically evaluate Lieber's assertion and ask why the laws of war assign so little value to the lives of combatants. The paper will conclude with a very limited normative defense of this state of affairs, but the existing law will not emerge unscathed. I will suggest that even if Lieber is correct that sharp wars are brief, this insight still leaves open the question of their optimal level of sharpness, which we arguably have not yet reached. Reform is still permitted and indeed required.
Hichilema and Another v Lungu and Another (2016/CC/0031) [2016] ZMCC 4 (5 September 2016), Minority Judgement
Authors: Zongwe Dunia P.
Published: July 2018

SAIPAR Case Review: Vol. 1 : Iss. 1 , Article 7. On September 5th 2016, there was tension in the packed Constitutional Court. Three out of five Constitutional Court judges (i.e., Anne Mwewa-Sitali, Mugeni Mulenga and Palan Mulonda) dismissed the election petition of Presidential candidate Hakainde Hichilema and his running mate Geoffrey Mwamba, on the grounds that the time for hearing the petition had lapsed. The President of the Court Justice Hildah Chibomba, and Justice Margaret Munalula dissented.Dividing the Court was the interpretation and effect of Articles 101(5) and 103(2) of the Constitution of Zambia. Articles 101 (5) and 103 (2) provide that the Constitutional Court must hear a Presidential election petition within 14 days of the filing of the petition. The Constitution is silent as to what happens when the hearing of a petition exceeds the 14-day period. While the majority of the Court dismissed the petition on the grounds that the 14-day period had elapsed, the minority dissented, and held that maintaining the time frame was unworkable, and that the petitioners had a right to be, and therefore should have been, heard.This comment discusses the dissenting opinion of the judgment. It focuses primarily on Justice Munalula’s dissent since Justice Chibomba’s judgement largely echoed Justice Munalaula’s dissenting opinion.
The Combatant’s Privilege in Asymmetric and Covert Conflicts
Authors: Ohlin Jens David
Published: July 2018

[First introductory paragraph] As the United States has engaged in an unprecedented campaign of targeted killings against members of al-Qaeda and associated forces, various agencies within the government have engaged in increasingly pitched squab-bling regarding their respective control over drone strikes in multiple foreign theaters. Authority and responsibility has vacillated between the Central Intelligence Agency (CIA) and the Defense Department’s Joint Special Operations Command (JSOC), the former being an intelligence agency tasked with both intelligence and covert operations directives, and the latter a military organization under the direction of the Secretary of Defense. In addition to the inherent policy questions in this turf battle, there are urgent elements of domestic and international law simmering beneath the surface. Some critics have suggested that CIA officers should not be involved in drone operations because CIA officers are non-uniformed individuals that do not meet the international law standards for privileged belligerency. According to this argument, the calculus regarding the appropriate agency for drone operations ought to take into ac-count that international law does not confer the combatant’s privilege on non-uniformed CIA employees.Published: 40 Yale J. Int'l L. 337-93 (2015)