Monthly Archives: March 2016

Creative Strategies for Beefing Up Copyright Enforcement

Eric Priest, Acupressure: The Emerging Role of Market Ordering in Global Copyright Enforcement, 68 SMU L. Rev. 169 (2015), available at SSRN.

Corporate copyright owners based in the United States have been frustrated by the prevalence of piracy in China and in certain other fast-growing markets, and that frustration has led to three primary responses. The copyright industries have (1) supported proposed legislation that would impose enforcement obligations on U.S. parties, such as the Stop Online Piracy Act; (2) advanced expansive interpretions of the enforcement jurisdiction of the International Trade Commission; and (3) deployed technological protection measures.

In his new article, Acupressure: The Emerging Role of Market Ordering in Global Copyright Enforcement, Professor Priest identifies two additional strategies that seem to have promise. These strategies rely on pressuring certain intermediaries that hold the power to deny infringers access to the markets they seek to serve. Presenting these as case studies, he then abstracts away to model how and when market-based pressure on intermediaries or customers – the “Acupressure” in the title – are likely to be effective. He concludes by revisiting familiar critiques of copyright enforcement through private ordering and integrates these into his analysis of the public policy ramifications of these new developments. Continue reading "Creative Strategies for Beefing Up Copyright Enforcement"

Should We Publish All District Court Opinions?

Elizabeth McCuskey, Submerged Precedent, 16 Nev. L. Rev.  ___ (forthcoming 2016), available at SSRN.

In Submerged Precedent, Professor Elizabeth McCuskey unearths new data on the rate of remand from federal to state courts in suits alleging 28 U.S.C. § 1331 jurisdiction under a Grable & Sons theory. As part of her vigorous data collection project, McCuskey determined that substantial numbers of the district court opinions she studied never found their way into commercial databases or PACER, substantially skewing our understanding of caselaw in this area. From this starting point, she launches into an intriguing normative discussion on the need to bring this body of “submerged precedent” to the surface. She concludes with a call for a strong presumption that all reasoned district court opinions be made publically available. For those of us who study the federal courts, Submerged Precedent’s raises intriguing empirical and doctrinal questions to which we should turn our attention.

McCuskey’s study focuses upon a particular method of taking § 1331 jurisdiction in federal court. The vast majority of cases take § 1331 jurisdiction under the so-called Holmes test (i.e., vesting § 1331 jurisdiction because the plaintiff raises a federal cause of action). There exists, however, a narrow exception to the Holmes test whereby federal question jurisdiction may lie over state-law causes of action that necessarily require construction of an embedded federal issue. McCuskey focuses her work on these cases, seeking to discover the rate at which suits removed to federal court under that theory are remanded from to state court. Continue reading "Should We Publish All District Court Opinions?"

On Rape, Coercion and Consent

Scott Allen Anderson, Conceptualizing Rape as Coerced Sex, Univ. of British Colombia (2015), available at SSRN.

Scott Anderson’s article Conceptualizing Rape as Coerced Sex, in my view, is the best philosophical or legal piece on the subject of rape that has appeared in many years. Its basic insight is powerful, and persuasively argued. Rape, Anderson argues, should be understood neither as “forced nonconsensual sex,” as it is traditionally defined, nor as non-consensual sex, as most reformers today typically urge, but rather as coerced sex. Coercion, in turn, is “best understood as a use of asymmetric power that one sort of agent may hold over another sort based in the former’s ability to inhibit broadly the ability of the latter to act, by means such as killing, injuring, disabling, imprisoning, or drugging…. [thereby placing the former] in a position to threaten another with such harms or constraints in order to induce compliance with demands he might make.” So understood, rape is the criminal act of “either creating or taking advantage of pre-existing differentials in the ability and willingness to use force or violence,” toward the end of obtaining sexual gratification from the victim. The power differentials that render the pressure “coercive” are quintessentially created through direct force, violence, or threats of violence, but might also include taking physical advantage of another who is mentally or physically incapacitated because of intoxicants or cognitive or mental impairment. Most important, though, the power differentials at the core of the “coerciveness” that renders sex rape might be facilitated not by direct threats, but by drawing upon “the link between the threatener and others of a similar kind who have used similar powers in the past.” When sex is “coerced” in any of these ways, such that the victim is not able to “usefully or reasonably ignore, deflect, evade, or work-around the enforcement of the threat,” then the sex that results should be understood as rape.

Note that on Anderson’s account the victim’s consent or non-consent is not part of the definition of the crime (although it may enter as a defense). Rather, the definition focuses squarely on the assailant’s acts and mental states, rather than those of the victim: did the assailant create or take advantage of pre-existing differentials in the ability and willingness to use force or violence” to obtain sex. Nor does it require direct force: rather, the “differentials” in power that facilitate the rape may pre-exist the act itself, and may be as much a function of the similarity between the agent and others similarly situated, as anything the agent himself does in the particular encounter. This coercion-based account, Scott argues, would avoid both the under-inclusiveness of definitions of rape that center on force, and the possible over-inclusiveness of definitions of rape that center on consent. More significantly, it would better capture both what is distinctively harmful about rape, why rape is overwhelmingly (but not universally and certainly not by definition) a crime committed by men upon women, and why rape is a constitutive aspect of gender subordination to women’s detriment. Continue reading "On Rape, Coercion and Consent"

Behind Closed Doors: The Role of Secrecy in International Investor Arbitration

Emilie M. Hafner-Burton, Zachary C. Steinert-Threlkeld, & David G. Victor, Predictability Versus Flexibility: Secrecy in International Investment Arbitration, ILAR Working Paper #18 (2015).

One strategy for increasing overseas investment, especially in developing economies, is to assure investors that they will have recourse if something goes wrong. With this in mind, bilateral investment treaties often allow investors to bypass suspect local courts, going instead to international arbitration. The article Predictability Versus Flexibility: Secrecy in International Investment Arbitration, written by political scientists Emilie M. Hafner-Burton, Zachary C. Steinert-Threlkeld and David G. Victor, identifies the following tension: The willingness of host governments to agree to arbitration in their investment contracts was designed to signal their friendliness to investors. But these arbitrations often happen behind closed doors. And, in fact, this secrecy is part of the institutional design. How does the secrecy interact with the signal? When is the result of arbitration most likely to be concealed? Have efforts to increase transparency worked?

To answer these questions, the authors study records of investor-state arbitration by the World Bank’s Centre for Settlement of Investment Disputes (ICSID). It is not easy to study something secret. But the authors fruitfully exploit two features of ICSID arbitrations to test their educated guesses about what goes on behind closed doors. First, either party in ICSID arbitration can unilaterally request secrecy. The authors report that they do so in about 40% of arbitrations, which allows comparison between confidential outcomes and those that are disclosed. Second, only the outcome is secret. The fact of arbitration and the identity of parties is not. Using this information, the article ultimately provides an account of the functional benefits of confidential arbitration, especially for the state. It portrays arbitration’s confidentiality as built into the initial treaty structure, giving flexibility that preserves the viability of long-term projects. Continue reading "Behind Closed Doors: The Role of Secrecy in International Investor Arbitration"

How to Bolster the “Ir” in Irrevocable

Traditionally, irrevocable trusts have been, well, irrevocable. The terms of the trust are fixed and the life of the trust cannot be cut short. Whether irrevocability emanates from the trust document itself or from circumstances such as the settlor’s death or incapacity, traditional irrevocability tied the hands of those interested in modifying the trust to accommodate changes in circumstances. Irrevocability was the doctrine through which the settlor could maintain control of the trust property throughout the life of the trust. Trust law acknowledges the tension between the original intent of the settlor’s dead-hand control and the current desires of the beneficiaries. As this tension is being resolved by greater accommodation of the current beneficiaries’ desires, has the doctrine of irrevocability lost its relevance?

In his recent article entitled Sherlock Holmes and the Problem of the Dead Hand: The Modification and Termination of “Irrevocable” Trusts, Dean Richard Ausness proposes a compromise. The first generation of trust beneficiaries would remain subject to the traditional rules disfavoring modification and early termination of trusts; subsequent generations of trust beneficiaries, however, would possess a liberating ability to modify a trust without court approval. The language of irrevocability would have renewed life, but only a short life. Continue reading "How to Bolster the “Ir” in Irrevocable"

Physician Aid in Dying and Mental Illness

Scott Y. H. Kim, Raymond G. De Vries, & John R. Peteet, Euthanasia and Assisted Suicide of Patients With Psychiatric Disorders in the Netherlands 2011 to 2014, JAMA Psychiatry (2016).

The right to aid in dying (or physician-assisted suicide) has developed with different standards in the United States than in the Netherlands and Belgium, and a recent study suggests that the United States has gotten it right in a critical respect—on the criteria for eligibility. Patients can more easily qualify for aid in dying in the Netherlands and Belgium and that creates a potential for misuse that is not present in California, Oregon, Vermont, and the other American states that permit the practice. In particular, as a new study by Kim, De Vries, and Peteet indicates, the possibility that people with psychiatric disorders may choose aid in dying when treatment for their disorders might address their despair is a more serious problem in Europe than in the United States.

Concerns about psychiatric motivations give rise to a very important argument against a right to aid in dying. If people can choose aid in dying because of mental illness, people may opt for death when proper therapy would restore their desire to live. And anecdotal reports in both the United States and Europe reinforce this concern. In a Frontline report on underground aid in dying in the United States, filmmakers documented the death of a woman whose mental illness led her to harbor false beliefs about her health. Similarly, an article in The New Yorker described the troubling case of a Belgian woman who underwent euthanasia, which, like aid in dying, is permitted in Belgium, despite physician assessments that her psychiatric depression was not serious enough to make her eligible for assistance in dying. Continue reading "Physician Aid in Dying and Mental Illness"

Alternative Reproduction in the Age of Marriage Equality

Courtney Megan Cahill, The Oedipus Hex: Regulating Family After Marriage Equality, 49 U.C. Davis L. Rev. 183 (2015).

As marriage equality became a nationwide reality, those who opposed same-sex marriage increasingly turned their attention to issues of reproduction and parenting. In 2012, David Blankenhorn, a longtime opponent of same-sex marriage, famously announced his newfound support for marriage equality in the pages of the New York Times. Yet Blankenhorn continued to oppose important aspects of family formation by same-sex couples, arguing that “children born through artificial reproductive technology” should have “the right to know and be known by their biological parents.” Same-sex couples commonly raise children conceived with anonymous sperm or egg donors, and same-sex-couple-headed families are much more likely than their different-sex counterparts to include nonbiological parent-child relationships. As Blankenhorn’s views suggest, opposition to LGBT equality can seamlessly continue in new forms. Indeed, researchers at Blankenhorn’s Institute for American Values are urging “an active public debate over whether it is ethical for the state to support the deliberate conception of children who will never have the chance to be raised by their biological parents.” Elizabeth Marquardt, the director of the Institute’s Center for Marriage and Families, advocates a number of restrictions on family formation through assisted reproductive technologies (ART). Restrictions on the use of ART to form nonbiological parent-child relationships will have a distinct impact on reproduction and parenting by same-sex couples. In marriage equality’s wake, alternative reproduction has clearly emerged as an important new front in the culture wars.

In her engaging and insightful new article, The Oedipus Hex: Regulating Family After Marriage Equality, Courtney Cahill focuses on a specific argument put forward by those seeking to restrict alternative reproduction—what she terms the incest prevention justification. As Cahill explains, scholars and advocates argue for greater regulation of alternative reproduction to minimize the likelihood for accidental incest among donor-conceived children. Continue reading "Alternative Reproduction in the Age of Marriage Equality"

Redefining the American Dream

Andrea J. Boyack, American Dream in Flux: The Endangered Right to Lease a Home, 49 Real Prop. Tr. & Est. L. J. 203 (2014), available at SSRN.

The “American Dream” referred to by Andrea Boyack, an Associate Professor of Law at Washburn University School of Law, is homeownership. As first year Property students are taught, the dream of homeownership has its hallowed roots in Thomas Jefferson’s conviction that widespread ownership of real property was a predicate for a functioning democracy. “The small landowners,” Jefferson wrote, those with “a little portion of land” are “the most precious part of a state.”1 The idea that the government should encourage more people to own “a little portion of land”—first farms and now single family homes—has inspired public policy since the Revolution.

Boyack does not argue that the American Dream is dead, or that promoting homeownership is an illegitimate policy goal. Instead, she convincingly argues that by myopically focusing on increasing homeownership and owner occupancy, a combination of public land use controls, private land use controls, and federal policies are undermining “important public concerns.” (P. 299.) Continue reading "Redefining the American Dream"

“Ye Shall Inherit My Magic Sword!” Post-Mortem Ownership in Virtual Worlds

Edina Harbinja, Virtual Worlds – a Legal Post-Mortem Account, 11 SCRIPTed 273 (3d ed. 2014).

Have you ever thought of who will have access to your email when you die? If you have social media, have you prepared a digital will that will allow your loved ones to dispose of your online presence? Have you ever wondered what happens to people’s digital accounts when they pass away? These and many other questions are part of a growing number of legal issues arising from our increasingly networked life, and it is the main subject of Virtual Worlds – a Legal Post-Mortem Account, which looks at the issue of post-mortem digital arrangements for virtual world accounts, where the author discusses several possible ways of looking at virtual goods to allow them to be transferred when the owner of the account dies. The article is a great addition to the growing scholarship in the area, but it is also an invaluable shot-in-the-arm to the subject of virtual worlds.

The legal discussion of virtual worlds has gone through a rollercoaster ride, if you pardon the use of the tired cliché. In 1993 author Julian Dibbell published a remarkable article entitled A Rape in Cyberspace. In it he recounts the happenings of a virtual world called LambdaMOO, a text-based environment with roughly one hundred subscribers where the users adopted assumed personalities (or avatars) and engaged in various role-playing scenarios. Dibbell describes how the community dealt with perceived sexual offences committed by a member upon other avatars. The story of LambdaMOO has become a classic in Internet regulation literature, and has been pondered and retold in seminal works such as Lessig’s Code and Goldsmith and Wu’s Who Controls the Internet. Dibbell’s powerful story of the virtual misconduct of an avatar during the early days of Cyberspace still resonates with legal audiences because it brings us back to crucial questions that have been the subject of literature, philosophy and jurisprudence for centuries. How does a community organise itself? Is external action needed, or does self-regulation work? What constitutes regulatory dialogue? How does regulatory consensus arise? And most importantly, who enforces norms? Continue reading "“Ye Shall Inherit My Magic Sword!” Post-Mortem Ownership in Virtual Worlds"

Crimmigration Law Comes of Age

César Cuauhtémoc García Hernández, Crimmigration Law (2015).

For criminal justice enthusiasts, Padilla v. Kentucky (2010) represented a victory for criminal defendants in an area where there are few. Whereas previously, defense attorneys were under no compulsion to inform clients about the downstream consequences of a conviction, Padilla said that deportation was different. The severity of this outcome mandated that clients be made aware of this possibility before making a guilty plea—it simultaneously served as a mandate for the defense bar. As a result of the ruling, defense attorneys were involuntarily thrust into the world of crimmigration law, with the beneficiaries being those accused of a crime. Now, at a minimum, defense counsel would need the competence to be able to advise clients who face the risk of deportation.

In Crimmigration Law, César Cuauhtémoc García Hernández has created an immense resource to help ensure this occurs. The work provides a comprehensive overview of a complex phenomenon in American law, namely, how criminal and immigration law converge into a distinct body of law that necessarily involves both. Continue reading "Crimmigration Law Comes of Age"