• Archive for March, 2011

    Article by Dan Tarlock

    by  • March 30, 2011 • Scholarship • 0 Comments

    Dan Tarlock's article Land Use Regulation: The Weak Link in Environmental Protection has been posted to SSRN. Here's the abstract:

    Professor William Rodgers is one of the handful of legal academics who have shaped and influenced environmental law since it was created out of whole cloth in the late 1960s. The staggering quantity, quality, breadth, and creativity of his scholarship are perhaps unrivaled among his peers. It is easy to criticize the gap between the environmental problems that society faces and the inadequate legal tools and institutions that we have created to confront them. Professor Rodgers has always been able to see both the deep flaws in environmental law and the possibilities for more responsive legal regimes.

    Read the full article here.



    Legal Link: Genetic Copyright Infringement

    by  • March 28, 2011 • Scholarship • 0 Comments

    By Christopher Buccafusco

    In order to distinguish their synthetic DNA from that naturally present in the bacterium, Venter’s team coded several famous quotes into their DNA, including one from James Joyce’s A Portrait of the Artist of a Young Man: “To live, to err, to fall, to triumph, to recreate life out of life.”

    After announcing their work, Venter explained, his team received a cease and desist letter from Joyce’s estate, saying that he’d used the Irish writer’s work without permission. ”We thought it fell under fair use,” said Venter.

    Read the full article here.

    H/T Lara Kattan

    New Article by Kathy Baker

    by  • March 28, 2011 • Scholarship • 0 Comments

    Kathy Baker's new article, Homogenous Rules for Heterogeneous Families: The Standardization of Family Law When There is No Standard Family, has recently been posted to SSRN. Here's the abstract:

    The article explores the ironies involved in the contemporary enforcement of family obligations. As forms of intimate partnership and parenthood become ever more varied, the law of family obligation – child support, property division and alimony – has become increasingly routine and formulaic. As scholars increasingly call for more attention to the varied ways in which different individuals and communities structure their care networks and their intimate lives, the law of family obligation has become less, not more attentive to context. This piece explains how the law’s rejection of context is an understandable reaction to the growing diversity of family forms. By unpacking contemporary family law rules, one see that the baselines and value judgments informing the law of family obligation are usually contested or arbitrary or both. They are accepted not because they represent consensus on what obligation should be but because they clearly demarcate who is obligated and for how much. Predictability emerges as more important than context for almost everyone. Social acceptance of so many different family forms makes judicial attention to context extraordinarily invasive and expensive. In an area of law where very few of the parties have the resources or desire to debate the normative underpinnings of family obligation and where both the parties and the state have strong interests in minimizing contested issues, there are compelling reasons to establish a very rule and status based law of obligation, even if that system is rooted in a normative vision of family that, for most people, has ceased to exist. The article thus argues that despite the profoundly limited way in which the current law identifies families, some reliance on restricted legal definitions of family will be necessary for any meaningful system of family obligation to operate. In doing so, the article challenges much contemporary family law scholarship and suggests that we may have to accept the law’s privileging of certain family forms if we are to expect an enforceable system of family obligation.

    Read the full article here.

    New Article by Richard Warner and Robert Sloan

    by  • March 24, 2011 • Scholarship • 0 Comments

    Richard Warner has posted a new article to SSRN, Vulnerable Software: Product-Risk Norms and the Problem of Unauthorized Access. Here's the abstract:

    Unauthorized access to online information costs billions of dollars per year. Software vulnerabilities are a key. Software currently contains an unacceptable number of vulnerabilities. The standard solution notes that the typical software business strategy is to keep costs down and be the first to market even if that means the software has significant vulnerabilities. Many endorse the following remedy: make software developers liable for negligent or defective design. This remedy is unworkable. We offer an alternative based on an appeal to product-risk norms. Product-risk norms are social norms that govern the sale of products. A key feature of such norms is that they ensure that the design and manufacture of products impose only acceptable risks on buyers. Unfortunately, mass-market software sales are not governed by appropriate product-risk norms; as result, market conditions exist in which sellers profitably offer vulnerability-ridden software. This analysis entails a solution: ensure that appropriate norms exist. We contend that the best way to do so is a statute based on best practices for software development, and we define the conditions under which the statute would give rise to the desired norm. Why worry about creating the norm? Why not just legally require that software developers conform to best practices. The answer is that enforcement of legal’s requirement can be difficult, costly, and uncertain; once the norm is in place, however, buyers and software developers conform on their own initiative.

    Read the full article here.

    Two New Articles by Sungjoon Cho

    by  • March 21, 2011 • Scholarship • 0 Comments

    Professor Cho has two new articles on SSRN: A Trans-Judicial Dialogue and the Globalizing of Administrative Law, and Amicus Brief: United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China.

    Read the full articles here and here.

    Golan v. Holder: Supreme Court to Review Copyrighting Works in Public Domain

    by  • March 9, 2011 • Faculty Commentary • 0 Comments

    By Edward Lee [via Huffington Post]

    One of the most valuable lessons I learned as a lawyer I learned from, of all people, a musician. Richard Kapp was his name and orchestral conducting, his lifelong profession and passion. A renowned conductor in New York and producer of acclaimed recordings of Shostakovich’s String Quartets, Kapp was the first person who volunteered to challenge an obscure “copyright restoration” law in a case I helped to start while at the Stanford Center for Internet and Society. From day one, Kapp, who held a law degree from New York University, impressed me with his unflagging commitment to standing up for what he believed was right. So committed to the case was Kapp, he later refused to diminish his involvement despite being diagnosed with cancer and undergoing a battery of treatment. Not even cancer could stop Kapp, then 67 years old, from sitting hours for a deposition to preserve his testimony in the case.

    Kapp did not live to see his case decided, but, this week, his case took a major step forward. The Supreme Court agreed to hear the constitutional challenge he — along with Lawrence Golan, a professor and conductor at University of Denver, and others — raised.

    So what does the challenge concern? At bottom, it concerns freedom of expression and the right of the American people to use materials in the public domain — without fear the government will remove or restrict them from public use.

    In 1994, Congress enacted the “copyright restoration” provision as a part of legislation, the Uruguay Round Agreements Act, putatively intended by the Clinton Administration and Congress to carry out trade obligations of the U.S. after the formation of the World Trade Organization. The provision grants new copyrights to many old foreign works — at least 50,000 in number, although probably many more — that had been in the public domain in the United States, potentially dating back for decades. By granting these old works (some created in the 1920s) “restored copyrights” in 1994, Congress effectively traded away the American public’s rights of free expression to these public domain materials, in exchange for the private interests of copyright holders and the heirs of foreign authors to reclaim copyrights. (more…)

    New Article by Felice Batlan

    by  • March 8, 2011 • Scholarship • 0 Comments

    Felice Batlan's new article, The Gendered Lives of Legal Aid: Lay Lawyers, Social Workers, and the Bar, 1863-1960, has been posted to SSRN. Here's the abstract:

    The Gendered Life of Legal Aid, 1863-1960 (manuscript in process) will be the first monograph on the history of civil legal aid in the United States. By closely examining the history of legal aid in New York, Chicago, and Boston, it presents a number of arguments with wide-ranging implications and it is animated by a host of conflicts. These include the relationship between legal aid and citizenship, the changing status of domestic relations law, the interactions between lawyers and social workers and their different understandings of the role and nature of law, what services legal aid should provide, and even how the history of legal aid should be told. More specifically the work questions what it historically meant to "practice law" or "to be a lawyer" and argues that women practiced law before they were admitted to law school in large numbers or could be admitted to state bars. Thus it puts in historical context and collapses the categorical dichotomy of lawyer versus non-lawyer and argues that our understanding of women practicing law in the nineteenth century needs to account for women lay lawyers. It also demonstrates that the practice of law from the nineteenth century through the first decades of the twentieth century was more democratic, heterogeneous, and less elite than we currently appreciate.

    Read the full article here.

    Supreme Court to hear Golan case involving constitutionality of copyright removal of thousands of works from public domain

    by  • March 7, 2011 • Scholarship • 0 Comments

    By Edward Lee

    The Supreme Court granted cert today in Golan v. Holder.  The case involves a peculiar “copyright restoration” provision enacted by Congress in 1994 as a part of the Uruguay Round Agreements Acts (URAA), which was intended to implement the U.S. obligations under the WTO Agreements.  The copyright restoration provision–codified at 104A and 109(a) of the Copyright Act–grants new copyrights to many old foreign works–at least 50,000 in number–that had been in the public domain in the United States, potentially dating back for decades.  Many of the works recopyrighted in 1994 were important works of music, film, and art, including works of Stravinsky, Shostakovich, Prokofiev, Hitchcock, and Picasso.  The effect of the law is that many artists, educators, and businesses–like lead plaintiff Lawrence Golan, a professor and conductor at Denver University–have had to stop using the formerly public domain works because use of the works under copyright is now cost-prohibitive.  And, in the process, students and members of the public have lost the opportunity to learn and enjoy many works of great cultural importance.  By recopyrighting Prokofiev’s Peter and the Wolf, for example, generations of our children no longer hear its performance because copyright has put the music out of reach to most orchestras.

    The two questions the Court will consider:

    (1) Does the Progress Clause of the United States Constitution, Article I, § 8, cl. 8, prohibit Congress from taking works out of the public domain?

    (2) Does Section 514 of the Uruguay Round Agreements Act violate the First Amendment of the United States Constitution?

    I started this case 10 years ago when I was working with Larry Lessig at the Stanford Center for Internet & Society, although I have long since turned over the supervising role to other able attorneys (now Tony Falzone of Stanford CIS).  The case raises important questions–indeed, fundamental ones–about whether Congress can restrict the public’s and businesses’ access to use materials long held in the public domain.

    To see the briefs filed thus far, click here at Patently O’Blog or here at SCOTUSblog.

    Article by Felice Batlan

    by  • March 2, 2011 • Scholarship • 0 Comments

    Felice Batlan's article, The Ladies' Health Protective Association: Law Lawyers and Urban Cause Lawyering, has been posted to SSRN. Here's the abstract:

    The Ladies Health Protective Association (LHPA) was a late-nineteenth century voluntary organization composed of a group of middle-class women. The women of the LHPA interacting with their environment, neighbors, the courts, private businesses and city and state officials had a significant impact in shaping a multitude of New York City laws and law had a profound affect in creating and molding the work and identity of the organization.

    In fact, late nineteenth century middle-class women’s organization’s use of law and legal process may have been a particularly potent strategy. Although institutional legal spaces such as courtrooms and legislatures were male spaces, middle-class white women and law shared a number of characteristics. A separate spheres ideology viewed the home as women’s natural and appropriate sphere and the home and women became associated with virtue and purity. This was contrasted with a male sphere of the market and politics which was understood as being infused with self-interest and potential corruption. Thus the idealized white woman was like an idealized understanding of law — virtuous, moral, and unsullied by self-interest. As the article explores, the LHPA astutely drew upon such tropes.

    Read the full article here.