Globalization and Distrust, Yale Law Journal
There was a time when the critics of international law denounced it for its irrelevance, its masquerade of power. Now in the post-ontological era of international law, the critique has shifted. Today, international law is denounced not for its weakness, but for its vigor, specifically its transfer of authority from local to international tribunals. Critics find a democratic deficit in almost all international institutions - from the World Trade Organization, to the International Criminal Court, to even the World Health Organization. Critics also denounce U.S. courts for serving as vassals of international law through the jurisdictional grant of the Alien Tort Statute. Three decades ago, the Warren Court's constitutional pronouncements overruling the judgments of the American people were similarly decried as judicial usurpation. John Hart Ely's magisterial intervention in his legal process classic, Democracy and Distrust, rescued the judiciary from illegitimacy.
Minorities, Shareholder and Otherwise, Yale Law Journal
Corporate law understands what constitutional law does not. Minority status matters to law. Where today's constitutional jurisprudence of equal protection aspires to colorblindness, corporate law places minority concerns at the heart of its endeavor. The minorities of corporate law are minority shareholders - investors holding small, noncontrolling interests in the corporation. By contrasting corporate and constitutional law, I begin to conceptualize minority status as a legal fact.
I begin by rereading the corporate canon. I show that body's concern not just for wealth maximization, but also its distribution. I reveal corporate law's deep commitment to protecting minority shareholders, operationalized through an elaborate common law and statutory framework…
Diaspora Bonds, NYU Law Review
Diasporas play a central role in the international system, disseminating information, transmitting capital and transforming culture. Defying national borders, they challenge the basic conception of the nation-state system, yet international law has not begun to notice them. They challenge traditional views of citizenship, as well, yet they have escaped the attention of domestic public law scholars. This paper begins to conceptualize diasporas as a topic of legal inquiry. Diasporas undermine both the traditional statist conception of a citizenry with a singular national loyalty and the cosmopolitan alternative that denies the moral salience of states in favor of a world citizenship. The paper proposes a third paradigm of the relationship of citizen to state, a diaspora model that embraces diasporas as emblematic of a globalized world where history matters yet does not constrict…
The Romance of the Public Domain, California Law Review (with Madhavi Sunder)
With the rise of the Information Age, the flashpoint debates about property have moved from land to information. The public domain is now the cause célèbre among progressive intellectual property and cyber-law scholars, who extol the public domain as necessary for sustaining innovation. But scholars obscure the distributional consequences of the commons. They presume a landscape where every person can reap the riches found in the commons. This is the romance of the commons - the belief that because a resource is open to all by force of law, it will indeed be equally exploited by all. But in practice, differing circumstances - including knowledge, wealth, power, access, and ability - render some better able than others to exploit a commons. We examine this romance through the lens of the global intellectual property regime in genetic resources and traditional knowledge.
How Law Made Silicon Valley, Emory Law Journal
Explanations for the success of Silicon Valley focus on the confluence of capital and education. In this article, I put forward a new explanation, one that better elucidates the rise of Silicon Valley as a global trader. Just as nineteenth century American judges altered the common law in order to subsidize industrial development, American judges and legislators altered the law at the turn of the Millennium to promote the development of Internet enterprise. Europe and Asia, by contrast, imposed strict intermediary liability regimes, inflexible intellectual property rules, and strong privacy constraints, impeding local Internet entrepreneurs. The study challenges the conventional wisdom that holds that strong intellectual property rights undergird innovation. While American law favored both commerce and speech enabled by this new medium, European and Asian jurisdictions attended more to the risks to intellectual property rights-holders and, to a lesser extent, ordinary individuals. Innovations that might be celebrated in the United States could lead to jail in Japan. I show how American companies leveraged their liberal home base to become global leaders in cyberspace. Nations seeking to incubate their own Silicon Valley must focus not only on money and education, but also a law that embraces innovation.
Data Nationalism, Emory Law Journal (with Uyen P. Le)
A BRICS Internet, the Euro Cloud, the Iranian “Halal” Internet: Governments across the world eager to increase control over the World Wide Web are tearing it apart. Iran seeks to develop an Internet free of Western influences or domestic dissent. The Australian government places restrictions on health data leaving the country. Russia requires personal information to be stored domestically. Vietnam insists on a local copy of all Vietnamese data. The last century’s nontariff barriers to goods have reappeared as firewalls blocking international services. Legitimate global anxieties over surveillance and security are justifying governmental measures that break apart the World Wide Web, without enhancing either privacy or security.
Googling Freedom, California Law Review
While GM and GE are rushing in to China, why are so many Americans cheering the possibility of Google pulling out? The answer to this puzzle lies in Google’s special role as new media. Television once moved the free speech paradigm from the local street corner to the national platform of CBS; the Internet has shifted it further to the global stage offered by Google and its peers. Free speech theory – and Western media corporations – must now grapple with the reach of this media into unfree societies. While a growing chorus has denounced Western new media enterprises for betraying their obligations to the people of China and other authoritarian regimes, no one has yet explained what those obligations are or why these companies might have them. Corporate social responsibility theory has focused largely on the risks of a global supply chain in goods, neglecting the questions raised by the rise of global information services. The notion of corporate obligations to people around the world seems especially perplexing in juxtaposition with the familiar mandate to maximize shareholder wealth at home. Drawing from theories of Foucault and Habermas and the history of the underground press, I argue that information service providers bear a special responsibility to unfree people. What might have been mutually beneficial transactions in a free society can become, in an unfree society, predicate offenses leading to years of hard labor. New media can either help give voice to dissidents or help perfect totalitarianism.
The Racist Algorithm?, Michigan Law Review
Are we on the verge of an apartheid by algorithm? Will the age of big data lead to decisions that unfairly favor one race over others, or men over women? At the dawn of the Information Age, legal scholars are sounding warnings about the ubiquity of automated algorithms that increasingly govern our lives. In his new book, The Black Box Society: The Hidden Algorithms Behind Money and Information, Frank Pasquale forcefully argues that human beings are increasingly relying on computerized algorithms that make decisions about what information we receive, how much we can borrow, where we go for dinner, or even whom we date. Pasquale’s central claim is that these algorithms will mask invidious discrimination, undermining democracy and worsening inequality. In this review, I rebut this prominent claim. I argue that any fair assessment of algorithms must be made against their alternative. Algorithms are certainly obscure and mysterious, but often no more so than the committees or individuals they replace. The ultimate black box is the human mind. Relying on contemporary theories of unconscious discrimination, I show that the consciously racist or sexist algorithm is less likely than the consciously or unconsciously racist or sexist human decision-maker it replaces. The principal problem of algorithmic discrimination lies elsewhere, in a process I label viral discrimination: algorithms trained or operated on a world pervaded by discriminatory effects are likely to reproduce that discrimination.
The New, New Property, Texas Law Review
Already, the world of cyberspace is beginning to replicate the inequalities of real space. The distribution of domain names, a basic building block of e-commerce, shows dramatic disparities between the high and low income parts of the world. Americans own most of the world's domain names, including the names of faraway countries, tribes, and cultural events, such as SouthAfrica.com, Yanomami.com, and KumbhMela.com. No African or South American company has the lucrative charter that would allow it to award global domain names. The principal cause of this inequality is a domain name system that follows a rule of first possession. This Article critiques this property rule as being founded less on moral reasoning than on an assertion of power. Going further still, the Article argues that the current property rights regime in domain names cannot be justified by any of the traditional philosophical or economic theories underlying our private property system.
Free Speech, Iowa Law Review (with Uyen P. Le)
Cyber-law is today’s speech law. When civic engagement is increasingly mediated online, the law regulating cyberspace becomes the law regulating speech. Yet, free speech texts pay little attention to the ways that cyber-law configures what has become the principal mechanism for exercising free speech rights today — communication online. Conversely, while many have long observed that the Internet enables speech, scholars have failed to recognize the role that the First Amendment played in shaping the law of cyberspace. A First Amendment-infused legal culture that prizes speech proved an ideal environment on which to build the speech platforms that make up Web 2.0. Free speech was Silicon Valley’s killer app. Today’s speech law is being made in the major cyber-law disputes of the day. From the Stop Online Piracy Act, criminal copyright enforcement, and a plurilateral free trade treaty, to United Nations control of the Internet, the European Union’s proposed right to be forgotten, and the revelations of pervasive NSA surveillance, cyber-law controversies show that we are still seeking to translate free speech values into the Information Age. How we approach these disputes will determine the extent of government censorship, private third-party censorship and self-censorship. This article offers a framework for resolving cyber-law disputes, duly attendant to their speech implications.
Facebookistan, N.C. Law Review
Are we on the verge of an apartheid by algorithm? Will the age of big data lead to decisions that unfairly favor one race over others, or men over women? At the dawn of the Information Age, legal scholars are sounding warnings about the ubiquity of automated algorithms that increasingly govern our lives. In his new book, The Black Box Society: The Hidden Algorithms Behind Money and Information, Frank Pasquale forcefully argues that human beings are increasingly relying on computerized algorithms that make decisions about what information we receive, how much we can borrow, where we go for dinner, or even whom we date. Pasquale’s central claim is that these algorithms will mask invidious discrimination, undermining democracy and worsening inequality. In this review, I rebut this prominent claim. I argue that any fair assessment of algorithms must be made against their alternative. Algorithms are certainly obscure and mysterious, but often no more so than the committees or individuals they replace. The ultimate black box is the human mind. Relying on contemporary theories of unconscious discrimination, I show that the consciously racist or sexist algorithm is less likely than the consciously or unconsciously racist or sexist human decision-maker it replaces. The principal problem of algorithmic discrimination lies elsewhere, in a process I label viral discrimination: algorithms trained or operated on a world pervaded by discriminatory effects are likely to reproduce that discrimination.
Is Nozick Kicking Rawls's Ass? Intellectual Property and Social Justice, UC Davis Law Review
Is the libertarian vision of Nozick in ascendance in intellectual property, overshadowing Rawls's egalitarianism? Yes, and rightly so, some intellectual property scholars suggest. They argue that intellectual property law seeks to solve a fundamental problem of information economics: without intellectual property protections, the ready duplicability of information undermines incentives to create information. Armed with this economic insight and fortified a neo-liberal faith that markets with well-defined property rights in information will best promote liberty, these scholars would keep intellectual property's focus single-minded: to incentivize the production of information. In this introduction to a symposium on "Intellectual Property and Social Justice," we argue that this view is too narrow. A variety of societal goals must inform intellectual property law because (1) understanding intellectual property's impact on a variety of social values helps us restrain maximalist intellectual property demands; (2) relying on the tax and welfare systems to remedy any resulting distributional deficiencies is unrealistic; (3) the raison d'etre of Western intellectual property laws is not necessarily globally scalable because of varying capacities to innovate; (4) we must attend to the kind of innovation that law spurs (for example, does the existing regime adequately incentivize the discovery of treatments for poor people's diseases?); and (5) we can best understand fair use doctrine not just as market failure but as an important component of free speech.
Clearing Credit Default Swaps: A Case Study in Global Legal Convergence, Chicago Journal of International Law (with Randall Costa)
In the wake of the global financial crisis, American and European regulators quickly converged on a reform intended to help stave off similar crises in the future: central counterparty clearinghouses for credit default swaps. On both sides of the Atlantic, regulators identified credit default swaps (CDS) as a central factor in the crisis that seized Bear Stearns, Lehman Brothers, American International Group (AIG), and ultimately global credit markets. Introducing a well-capitalized central counterparty between CDS buyers and sellers would, regulators came to believe, help contain financial failures in the future. How and why did this convergence occur? This Article reviews the American and European responses, concluding that they converged on a similar structure largely because the financial crisis revealed the vulnerabilities of a system in which buyers and sellers entered into CDS directly, through bilateral contracts. These bilateral derivatives contracts created a web of interconnected obligations, such that the failure of one firm could bring down a chain of others. The threat of this domino effect led governments to intervene in the financial markets with massive direct and indirect support. Forced to spend public money to bail out private firms, regulators risked an unsustainable moral hazard - firms that were “Too Interconnected to Fail.” Regulators concluded that the introduction of a central counterparty (CCP) would reduce the risk that the bankruptcy of a principal in a credit default swap would precipitate a domino fall through the credit markets. Where critics argue that CCPs concentrate risk, regulators came to recognize that Bear, Lehman, and AIG had each also concentrated risk, serving as de facto central clearing counterparties, lacking the disciplines of a regulated CCP.
Everyone’s a Superhero: A Cultural Theory of ‘Mary Sue’ Fan Fiction as Fair Use, California Law Review (with Madhavi Sunder)
Lieutenant Mary Sue took the helm of the Starship Enterprise, saving the ship while parrying Kirk's advances. At least she did so in the unofficial short story by Trekkie Paula Smith. Mary Sue has since come to stand for the insertion of an idealized authorial representative in a popular work. Derided as an exercise in narcissism, Mary Sue is in fact a figure of subaltern critique, challenging the stereotypes of the original. The stereotypes of popular culture insinuate themselves deeply into our lives, coloring our views on occupations and roles. From Hermione Granger-led stories, to Harry Potter in Kolkata, to Star Trek same-sex romances, Mary Sues re-imagine our cultural landscape, granting agency to those denied it in the popular mythology. Lacking the global distribution channels of traditional media, Mary Sue authors now find an alternative in the World Wide Web, which brings their work to the world.
Trade 2.0, Yale Journal of International Law
Where the last century saw the dismantling of barriers to trade in goods, the new century will see the dismantling of barriers to trade in services. Once theorized as nontradable, services now join goods in a global marketplace powered by advances in communications technology. Today, an engineer, accountant, or lawyer can supply her services across the globe without boarding a plane. Less well understood is that cyber-trade encompasses not just the services outsourced to Bangalore, but also the online services supplied by Silicon Valley to the world. Apple, eBay, and Yahoo too are exporters of information services, seeking to become middlemen to the world. Google now earns half of its income overseas. Almost sub rosa, the Internet has become a global trading platform rivaling any history has yet produced. But law developed over millennia for the paradigm of goods is unprepared for trade, version 2.0. The pressure on law is clear: Antigua challenges U.S. rules barring online gambling; Brazil demands that Google identify hate speakers; an Alien Torts Statute suit charges Yahoo with abetting Chinese torture; and the United States challenges Chinese media restrictions on movie, music, and financial information services. Once we recognize the connections between these disputes, we can begin to form a general theory of cyber-trade. Ricardo’s theory of comparative advantage applies to all trade, whether in goods or in information. Economic theory thus counsels, and international treaties compel, the dismantling of barriers to cyber-trade. Yet, because of its remote nature, it is easy to assert consumer protection to bar online competition. I articulate a principle of technological neutrality to smoke out barriers hiding under this veneer. To flourish, cyber-trade will also require digital analogues to the physical infrastructure for services, from handshakes to courts.
Whose Republic?, U. Chicago Law Review
The printing press helped create modern nationalisms, as books and newspapers came to be written in the vernacular, encouraging a conception of a shared community among groups of people who would never actually meet. It thus seems only natural to ask what today's innovation in mass communication, the Internet, will mean for political communities. In his book, REPUBLIC.COM (2001), Cass Sunstein contends that the advent of personalized information sources available in cyberspace threatens republican deliberation. But where Sunstein worries about the Daily Me made possible by electronic intermediaries that deliver news tailored to a reader's tastes, I observe that, for minorities, the traditional media offer the Daily Them - a vision of society focused on its dominant members. I suggest that cyberspace helps counter the elision of minority experiences in the traditional media. Because of technical features such as end-to-end design, the Internet and the World-Wide-Web enhance the ability of marginalized people to have their voices heard, and indeed to find a voice. At the same time, cyberspace may help reinvent community, pulling us out of territorially-imagined spaces in favor of transnational, affective communities. In many ways, cyberspace presents a cosmopolitan ideal, where individuals may be drawn together based on interests and passions, rather than territory or national identity.
Jasmine Revolutions, Cornell Law Review
Will the Internet help topple tyrants, or will it help further cement their control? Prominent skeptics challenge the notion that the Internet will help rid the world of dictators. They suggest that the Internet will simply serve as a new opiate of the masses, or worse, will assist autocrats in manipulating popular opinion. I defend the liberalizing promise of cyberspace. Where others have set out the value of the Internet to dissidents, I answer the main critiques of that position - that Internet activism is futile, that the Internet is simply the new opiate of the masses, and that autocrats will benefit more from the Internet than dissidents. I argue that dictators have revealed their own appraisals of the Internet: when threatened, they shut it down. Tyrants today fear the Internet more than they benefit from it. This summer’s events again confirmed this truth: On the day when the rebels marched into Tripoli, they restored Libya to the Internet.
National Data Governance in a Global Economy, Columbia SIPA White Paper
Global data flows are the lifeblood of the global economy today and of the technologies of the future. Yet, the regulation of how data is to be handled remains largely the province of national laws. How we resolve the dilemmas of global flows within a nation-state structure will impact the digital economy, free expression, privacy, security, consumer protection, and taxation. Just as we once built an architecture for cross-border flow of goods, we need to build an architecture for cross-border flow of information.
The Battle to Define Asia’s Intellectual Property Law: From TPP to RCEP
A battle is under way to decide the intellectual property law for half the world’s population. A trade agreement that hopes to create a free trade area even larger than that forged by Genghis Khan will define intellectual property rules across much of Asia and the Pacific. The sixteen countries negotiating the Regional Comprehensive Economic Partnership (RCEP) include China, India, Japan, and South Korea, and stretch to Australia and New Zealand. A review of a leaked draft reveals a struggle largely between India on one side and South Korea and Japan on the other over the intellectual property rules that will govern much of the world. The result of this struggle will affect not only access to innovation in the Asia-Pacific, but also across Africa and other parts of the world that depend on generic medicines from India, which has been called the “pharmacy to the developing world.” Surprisingly, the agreement that includes China as a pillar may result in stricter intellectual property rights than those mandated by the World Trade Organization’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Perhaps even more surprisingly, such TRIPS-plus rights will be available in the RCEP states to the United States and European companies equally by somewhat recondite provisions in TRIPS. In sum, the RCEP draft erodes access to medicines and education across much of the world.
Odious Securization, Emory Law Journal
The odious debt doctrine exposes a fundamental dilemma in international finance - the desire not to saddle a population with a debt to which it did not consent and from which it did not benefit, coupled with a practical need to ensure that capital continues to flow. The odious debt doctrine would undermine international debt obligations of a state that are entered into (1) without the consent of the people; (2) not for the benefit of the people; and (3) both of the above with the knowledge of the creditors. This Essay raises questions about the doctrine with respect to each of these criteria: (1) Given the dazzling variety of modern financial products, how should we define the types of debt obligations subject to the doctrine? (2) Should the fact that the proceeds of a loan are used in part for the commonweal defeat the application of the doctrine? (3) Should the broad, deep, and faceless capital markets offer an escape from culpability for the financiers of international delicts because public bondholders are to be presumed unfamiliar with the credit? The Essay offers observations on each of these issues.
Homeward Bound, NYU Law Review
Where once the emigrant was remembered in her homeland through yellowing photographs, eventually perhaps forgotten to history or even cursed as a traitor, the emigrant today is celebrated, reconfigured as heroine. As Kim Barry argues in Home and Away, homeland states now see the emigrant as crucial to their projects of national advancement. Today, states undertake a variety of bonding mechanisms - political, economic, and cultural - seeking to strengthen their ties to their diasporas. I survey such bonding mechanisms, offering a taxonomy that connects governmental policies from Mexico to the Philippines. Governments seeking to cement political ties have offered dual citizenship, voting from abroad, direct representation of expatriates, special visas for the diaspora, and government-issued diaspora membership documents. States have sought to capitalize on the economic strength of their overseas members by soliciting their support for sovereign diaspora bonds, development programs, and direct investment. They have also sought to attract returnees, who will often bring with them significant financial and human capital, and to ease return by negotiating for returnees' pensions to be transferred to them from the nation in which they worked. Finally, nations have sought to reshape their own collective image to include the diaspora, achieving this through explicit state recognition of the diaspora, establishment of agencies to serve the diaspora, legal protections for their overseas citizens, and special outreach to youth and retirees living abroad…
Information Goes Global: Protecting Privacy, Security, and the New Economy in a World of Cross-Border Data Flows, ICTSD/World Economic Forum
This white paper addresses the question of whether it is possible to balance the need for a free flow of information across borders with legitimate government concerns related to public order, consumer privacy, and security. The paper begins by highlighting the risks associated with limitations on free information flows and the policy concerns that lead to these limitations. The paper then provides an analysis of the current international regime on cross-border information flows. The authors argue that specific binding trade language promoting cross-border flows — combined with continued international cooperation — will enhance, rather than undermine, public order, national security, and privacy.
Robots, the Internet of Things, and the Future of Trade, Working Paper
Will robots and the Internet of Things falter at national borders? If the Internet of Things offers eyes and ears and robots add arms and legs, both these revolutionary technologies often depend on brains and memories located far away. This is the nature of the remote sensor/server architecture utilized by both the Internet of Things and cloud robotics. Thus, both the Internet of Things and robots rely on the free flow of information across national borders. But this global free flow of data is increasingly at risk to claims that such flows jeopardize privacy and security. Increasingly, national laws restrict the transfer of information outside the home country. A Dropcam, a Fitbit, a Nest thermometer and even a Google car all depend on the flow of data to the home country of their creators. The Internet of Things and cloud robotics may thus find themselves foiled by national borders, victim to a new privacy-based non-tariff barrier to trade.
Legalized Racism: The Internment of Japanese Americans, Working Paper
The internment of Japanese Americans in the West Coast during World War II grew out of rampant anti-Asian sentiment in the pre-war period. When war broke out between Japan and the United States, this racial hostility led to the rounding up and summary removal to prison camps of some 120,000 Japanese Americans, aliens and citizens alike, purely on the basis of race. Despite its racial foundations, at all times and at every turn, the internment was carried out under color of law, with judicial support against every challenge, most often without dissent. This is all the more remarkable because, on its face, the internment flouted nearly every provision of the Bill of Rights of the U.S. Constitution.
International Trade and Internet Freedom, ASIL Proceedings
Can trade liberalization serve the cause of political liberalization in authoritarian states? In this short essay, I suggest that trade law might bolster political freedoms by liberalizing Internet trade. Trade law puts pressure on state repression of information through two principal mechanisms. First, GATS transparency obligations require what is often absent in authoritarian states – a set of public rules that governs both citizens and governmental authorities. WTO member states must publish regulations governing services and establish inquiry points where foreign service providers can obtain information about such regulations. A publication requirement written for the benefit of foreigners may prove even more useful for local citizens, who will be given the opportunity to understand the rules that bind them – and the opportunity therefore to challenge those rules or their interpretation.
Law and the Geography of Cyberspace, WIPO Journal
The Internet was supposed to end geography. Anyone, anywhere could now run a newspaper, a search engine, a game service, and the world could access it. After millennia of geography dictating destiny, the world was now flat, and opportunity evenly distributed everywhere. Yet, a quick glance at the world’s leading internet companies, from Facebook to Zillow, leads one remarkably often to the United States. In this article, I argue that law played a crucial role in creating the geography of cyberspace — specifically, that flexible intellectual property rules which permitted internet entrepreneurship in the United States proved a key ingredient in American commercial success on the Internet.
Unshackling Foreign Corporations: Kiobel’s Unexpected Legacy, American Journal of International Law
Kiobel v. Royal Dutch Petroleum disfavors American corporations. While largely unshackling foreign corporations from the risk of being haled before an American court to answer for human rights abuses abroad, the decision keeps American corporations constrained by human rights law. This is because application of the Alien Tort Statute, as announced in Kiobel, turns on whether a corporation’s actions “touch and concern” the United States. American corporations are simply far more likely to satisfy that standard than foreign corporations. The argument proceeds as follows. First, this paper shows that American corporations are, for practical purposes, still bound by human rights law, enforceable in U.S. courts. Second, it demonstrates that foreign corporations, however, are largely freed by Kiobel from similar obligations enforceable in U.S. courts. After describing this differential treatment and why it matters, the paper concludes by delineating possible ways to resolve Kiobel’s asymmetrical effects. Perhaps most promisingly, Congress could level the playing field by declaring the Alien Tort Statute to have extraterritorial effect, against foreign and domestic concern alike.
Fred Korematsu: All American Hero, Carolina Academic Press
Can the life of a Japanese American interned in World War II be relevant to a young girl today? This graphic novel tells the story of Fred Korematu, a young man who was imprisoned by the United States along with a hundred and twenty thousand other Japanese Americans, young and old, in the wake of the attack on Pearl Harbor. The text of the graphic novel is drawn from the historical records and reports on the debates both in the Japanese American community and in the courts. The novel carries the story from the 1940s internment and court challenges to the 1980s, when Fred, now in his sixties, reopened his case based on evidence that the government had withheld crucial information from the courts when Fred had been convicted of violating the internment orders. The story shows a young girl struggling with her identity as an American learning a key lesson from Fred’s life: If you have the feeling that something is wrong, don’t be afraid to speak up.
Copyright's Cultural Turn, Texas Law Review (with Madhavi Sunder)
How ironic that the scholarship on the area of law most directly regulating the culture industries has long resisted learning from scholarship on culture! Rather than turning to cultural studies, anthropology, geography, literary theory, science and technology studies, and media studies, over the last few decades, copyright scholars have relied largely on economics for methodology. In this review essay, we argue that Julie Cohen’s new book, Configuring the Networked Self: Law, Code, and the Play of Everyday Practice, is part of a cultural turn in intellectual property scholarship. Cohen’s book marks an important expansion of the tools available to analyze intellectual property. In this paper, we contextualize her book through comparison with the reigning law and economics approach. We go further to highlight some aspects of a cultural analysis of copyright. We identify two central insights of the cultural turn in copyright: the relationship between cultural products and the self, and the relationship between culture and human development, which we characterize as the relationship between goods and a good life. Under Martha Nussbaum’s and Amartya Sen’s capabilities approach, which Cohen embraces, intellectual property policy would be evaluated under a new metric, not simply increased products (in the form of patents, copyrighted works, or trademarked goods), or its contribution to the gross domestic product, but rather its role in enhancing human capabilities. A cultural approach to copyright would measure law’s success by its ability to better the lives of real people.
The Asian Century?, UC Davis Law Review
How might an Asian Century to come differ from the American Century just past? Will an Asian Century, should it come to pass, mark a retreat for human rights, including women’s rights and gay rights? In this introduction to a UC Davis Law Review symposium, I contrast Henry Luce’s vision for an American Century with the internationalism of his near contemporary, the Indian Poet Laureate Rabindranath Tagore. As the United States entered World War II, Luce, publisher of Time, Life, and Fortune, asked, “What are we fighting for?” Luce’s manifesto declaring an “American Century” answered that it was the internationalization of American ideas - promulgated from Hollywood to Washington. Luce’s vision presaged American support for human rights after the war and its forceful, if inconsistent, critique of despots during the latter half of the Twentieth Century. In the Post-War era, China and India embraced the sovereign nation-state, often proving reluctant to support intervention in the affairs of other countries, even when human rights were at stake. Tagore offered an alternative vision. Hailing from a land that long suffered at the hands of British traders and imperialists, Tagore proposed an internationalism led by neither the merchant nor the soldier. Instead, Tagore offered a world order founded on a kind of critical friendship, unflinchingly focused on human dignity for all.
Exporting DMCA Lockouts
In her lead paper for a symposium in her honor, Margaret Jane Radin warns that our intellectual property laws are being rewritten in ways that neglect values embedded in neighboring legal subdisciplines, such as contract, competition, and free speech law. The effect has been to aggrandize the rights of intellectual property holders, at the expense of others in society. In my comment, I apply her elegant insight to an oft-neglected realm: our spirited efforts to export our ever-strengthening intellectual property law through bilateral trade agreements. Radin critiques the Digital Millennium Copyright Act's anti-circumvention provisions, which some companies have cleverly sought to deploy to bar competition in the after-market. Companies are seeking to exploit DMCA anti-circumvention to obtain monopolies, with varying success, in unexpected areas such as garage door openers, printer cartridges, and online multiplayer games. I show how, through bilateral and regional free trade agreements, the United States is exporting the DMCA's controversial and strict anti-circumvention provisions. All of the free trade agreements negotiated by the United States post-DMCA mandate the adoption of anti-circumvention provisions by our partners. A review of each of these agreements demonstrates that they carry the DMCA's cramped vision of permissible circumvention. They thus ignore what Radin describes as the legal milieu of intellectual property, in particular, competition law, foisting upon our trading partners rules that corporations may exploit to gain monopolies in the after-market for their products. This leads to the irony that measures to free trade might lead to a legal framework that facilitates monopolies in the after-market.
Brand New World: Distinguishing Oneself in the Global Flow
Ancient physicians engaged in property disputes over the seals they impressed on the containers of their medications, making brand marks the oldest branch of intellectual property. The antiquity of brand marks, however, has not helped their proper understanding by the law. While the conceptual and historical foundations of copyrights and patents continue to be part and parcel of contemporary legal debates, the full history and theorizing on business marks is largely external to trademark doctrine. Furthermore, with only a few and by now outdated exceptions, whatever scholarship exists on these topics has been performed mostly not by legal scholars but by archaeologists, art historians, anthropologists, sociologists, and historians of material culture. Such a striking imbalance suggests that the law is more eager to assume and state what trademarks should be rather than understand how they actually work today. Nor does the law often acknowledge the many different ways in which marks have always been deployed to distinguish both goods and their makers. This is not just a scholarly problem: given the extraordinary importance of brands in the global economy, the growing disjuncture between the way brands function in different contexts and cultures and trademark law’s simplified conceptualization of that function has become a problem with increasingly substantial policy implications.
Corporate Law's Distributive Design
I respond to Steve Bainbridge's critique of my 2005 Yale Law Journal essay, Minorities, Shareholder and Otherwise. My essay made two novel claims: that corporate law places protection of minority shareholders at the heart of its endeavor; and that this minority-mindfulness should have even greater purchase in constitutional contexts. In his new paper, Bainbridge challenges my account of corporate law's solicitude for minority shareholders, suggesting that corporate law does not practice affirmative action for minority shareholders. I rebut Bainbridge's case analysis, demonstrating that the cases show clear judicial succor for minority (by which I mean non-controlling) shareholders. The overarching explanation for judicial action in corporate law matters can generally be found in the simple goal of protecting minority shareholders. Unlike current constitutional jurisprudence, then, corporate law does not embrace minority-blindness. Because of, or despite, a legal framework attentive to the most vulnerable among those contributing capital, corporations have proven to be remarkably successful forms of enterprise. Ultimately, I hope to spur the thought that human organizational forms stand to learn much from each other.
Future-Proofing Law
It was only fifty years ago that Texas Instruments introduced a pocket calculator, and that a South African doctor performed a heart transplant. The iPhone is merely a decade old. In the blink of an eye, everyday objects are gaining intelligence, robots are taking to the streets, and drones are taking to the air. The quickening pace of technological change challenges regulators across the world. This essay introduces the articles in the UC Davis symposium on “Future-Proofing Law: From rDNA to Robots,” published in two issues of the UC Davis Law Review. It distills some of the lessons that regulators might keep in mind as they approach rapidly advancing technologies.
The New Global Division of Labor
Where the industrial age led to a global division of labor in manufacturing, the information age expands that global division into services. Once theorized as nontradable, services now join goods in the global marketplace, allowing workers in developing countries to participate in lucrative Western markets despite immigration barriers and Western enterprises to reach a global audience, often free of tariffs and even absent a local distribution network. This marks a major shift in the organization of production, as technology shifts the calculus that determines the boundaries of the firm and in turn spurs firms to buy services cross-border.
This first chapter of The Electronic Silk Road suggests that this shift will result in increasing cross-border contracting between unaffiliated parties as firms move internal processes to third-party vendors and will eventually lead to contractual disputes, requiring a legal infrastructure of dispute resolution. This chapter also describes the close and mutually beneficial connection between outsourcing and open source production methods.
Introduction to The Electronic Silk Road
The ancient Silk Road linked the ancient world’s civilizations wound through deserts and mountain passes, traversed by caravans laden with the world’s treasures. The modern Silk Road winds its way through undersea fiber-optic cables and satellite links, ferrying electrons brimming with information. This electronic Silk Road makes possible trade in services heretofore impossible in human history. Radiologists, accountants, engineers, lawyers, musicians, filmmakers, and reporters now offer their services to the world without passing a customs checkpoint or boarding a plane. Like the ancient Silk Road, which transformed the lands that it connected, this new trade route promises to remake the world.
Today the people of the world are engaged in international trade with a greater intensity than ever before in human history. The subjects of international trade, too, are far more personal than ever before. They implicate our habits and hobbies, our travels, our communication, our friends, our politics, our health, and our finances. As our lives increasingly are reflected online, the range of activities subject to international trade grows. Services now join goods in the global marketplace, with workers in developing countries able to participate in lucrative Western markets despite immigration barriers and Western enterprises able to reach a global audience, often free of tariffs or local bureaucracies.
Book Review of Transnational Litigation in United States Courts
In Transnational Litigation in United States Courts, Harold Koh surveys the doctrines that frame the transnational legal process in U.S. courts. The compass is broad, from international business transactions to human rights law, though the emphasis is on the former. The manuscript grows out of Koh’s experience as a private and governmental lawyer, teacher, and scholar – and more proximately, out of his series of lectures at the Hague Academy of International Law. Much of the book represents a doctrinal survey, but Koh goes further to identify five interrelated themes that animate the doctrines: party autonomy, national sovereignty, comity, uniformity, and the separation of powers. So stated, the principles seem elementary and obvious. Yet, like Arrow’s conditions for rational social choice, it turns out that these principles are often at odds with each other. The identification and juxtaposition of these rationales will put pressure on courts to assess the fundamental goals of the legal doctrines at stake and to rationalize the contours of doctrines. At the same time, both students and practitioners will find the book of much practical value.
Critical Corporate Law, Colorblind Constitutional Law
Should minority status be a relevant datum for judicial decision? That is the question motivating my paper, Minorities, Shareholder and Otherwise, published a handful of years ago in the Yale Law Journal. This short essay published in the Yale Law Journal Online introduces an online symposium revisiting that work, with responses from Stephen Bainbridge, Richard Delgado, and Kevin Johnson, and a final rejoinder from me. In Minorities, Shareholder and Otherwise, I demonstrate that corporate law recognizes the relevance of minority status, even while constitutional law more and more insists on minority-blindness. I argue that this is precisely backwards – that the constitutional domain should require greater judicial vigilance with respect to minority status than the corporate domain. The difficulty of exit from a polity and the inability to negotiate (or at least select among) terms of entry into a polity, not to mention a history of grave injustice, call for special attention to minorities in the constitutional context.
Golan v. Holder
In Golan v. Holder, the U.S. Supreme Court held that section 514 of the Uruguay Round Agreements Act (Uruguay Round Act), which had been enacted to implement the Berne Convention for the Protection of Literary and Artistic Works (Convention), neither exceeds Congress’s authority under the Copyright Clause nor violates the First Amendment’s free speech guarantees. Golan v. Holder holds two noteworthy implications for American copyright law. First, it affirms the internationalization of this law after two centuries of either full (the first century) or partial (the second century) rejection of the rights of foreign creators. Second, it rejects a narrow, utilitarian understanding of incentives to create as the sole explanation for this law in favor of a broader account.