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Category: International & Comparative Law

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Call for Papers

In April, the Indiana University Robert H. McKinney School of Law will be holding a conference on “Teaching International Law Outside Law Schools.”  The call for papers is here for those who are interested in participating.

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Volume 60, Issue 1 (October 2012)

Volume 60, Issue 1 (October 2012)


Articles

Not This Child: Constitutional Questions in Regulating Noninvasive Prenatal Genetic Diagnosis and Selective Abortion Jaime Staples King 2
A Labor Paradigm for Human Trafficking Hila Shamir 76
Prosecutors Hide, Defendants Seek: The Erosion of Brady Through the Defendant Due Diligence Rule Kate Weisburd 138


Comments

Trade Dress Protection for Cuisine: Monetizing Creativity in a Low-IP Industry Naomi Straus 182
What Happens in the Jury Room Stays in the Jury Room . . . but Should It?: A Conflict Between the Sixth Amendment and Federal Rule of Evidence 606(b) Amanda R. Wolin 262
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Super-Sizing IP Values

In a 2006 Stanford Law Review article, Madhavi Sunder despaired that “there are no ‘giant-sized’ intellectual property theories capable of accommodating the full range of human values implicit in intellectual production.”  But, she argued, there should be. From Goods to a Good Life is her full response to her own challenge, pushing intellectual property scholars to conceive of IP rights not through the narrow lens of incentives to create and distribute, but as tools to promote human flourishing broadly understood.

I am quite sympathetic to Sunder’s goals here, and we share an affinity for the capabilities approach most prominently associated with Amartya Sen and Martha Nussbaum. Indeed, Brett Frischmann and I have also suggested (only in much broader and tentative terms than Sunder) that IP theory needs to open up to a broader range of goals. Yet in spite of the ambition of Sunder’s project, I was struck by how traditional her project ultimately seemed. For notwithstanding her avowedly liberal goals, Sunder embraces property as much as she rejects it, and many of the tools on which she would rely to promote development depend heavily on the very market mechanisms she criticizes for having led to the exploitation and inequality she wants to address.

To be sure, Sunder has different ideas about the scope of IP entitlements – particularly when those entitlements run up against concerns about access to medicines or other cultural products. But fundamentally what she wants is a principle of equal recognition that operates in practice and not just in theory. She wants poor people’s inventive/creative contributions to be recognized, both in the sense of attribution and in the sense that those contributions deserve the status of property that can be traded to improve material conditions. Hers is a freedom-promoting conception of property that, as Jedediah Purdy has written, traces to the “Enlightenment period of the mid-to-late eighteenth century, when it was exemplified in the thought of the Scottish jurist, moral philosopher, and proto-economist Adam Smith.” This notion that the ability to own property can enable individual creators to make a life for themselves is prominent in certain threads of IP literature. But notably, most proponents of that view (Rob Merges comes to mind most significantly here) favor more IP protection than do the cultural critics of IP on whose work Sunder draws when she argues, persuasively in my view, for greater recognition of the need to engage with, and even to subvert, creative works.

This is not to say that Sunder would come to the same conclusions as these scholars about how a freedom-promoting conception of IP should play out in practice – clearly Sunder would balance the competing interests of creators and users differently, at least in some cases – only that I am struck by how resonant her approach is with those understandings of property, and indeed by how much actualizing her views would depend on property as an institution. Thus, I had the feeling reading the book that Sunder is deeply conflicted about the role of the market as the mechanism for promoting human flourishing.

Sunder, for example, suggests many times throughout the book that people in the developing world might rely on geographical indications (or some variant thereof) as means of gaining recognition for their creative accomplishments and as a lever for economic development. But GI’s, as Sunder notes, are brands – they work only to the extent they are valued by consumers because they denote (or reify) some characteristic consumers care about.  And getting consumers to notice and care about a new GI won’t be easy, because they are swimming in GI’s already. There are well over 100 American Viticultural Areas in California alone; the names of thousands of counties in the US are protected appellations of origin; hundreds of wine-related indications are protected just in France; and thousands more GI’s (counting the several varieties) are protected in Europe.

To succeed with a GI in this marketplace, you need a megaphone. That will be even truer for indications that refer to places in the developing world, since as Sunder ably demonstrates, we in the developed world have a skewed sense of the sources of creativity. And of course those who will need the biggest megaphones have the least access to the marketing machinery they will need to compete.

Lea Shaver wrote in her review that “MAD MEN is the perfect antonym for the better world that Professor Sunder’s work envisions. Marketing executives, practically dripping in 1960’s-era white male privilege, strive to endow branded commodities with hegemonic symbolism. The protagonists of this drama view their fellow Americans not as citizens to be democratically engaged or individuals creating their own lives, but as minds to be manipulated. To achieve that goal, they fund the creation of one-way cultural media, which offers its audience no opportunity to challenge the message that the most important way of making meaning in the world is through passive consumption.” The irony of Sunder’s book is that, having shown so well the problems with one-way cultural media, some (many?) of her solutions would rely on the very same mechanisms of one-way cultural media.

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The Parenting Debate

Although I am somewhat hesitant to add another voice to an already loud debate about the work-family conflict that has arisen again in the last month or so, I am finding it difficult to stay quiet.  As the working mother of a 3 ½ year old and a 3 month old, this is the legal and policy issue that affects me most these days.

When Anne-Marie Slaughter wrote her piece in the Atlantic, arguing that women in top government and business positions are leaving because of the difficulty of combining work and family, she predictably drew loud praise and equally loud critique (including an interesting post by Sherilyn Ifill, linked to from Concurring Opinions).  But then, Marissa Mayer, Yahoo’s newly appointed CEO, added her voice to the debate (perhaps unwittingly) when she told Fortune that she was pregnant and that her maternity leave would be “a few weeks long, and I’ll work throughout it.”  That comment brought a new onslaught of responses including criticism that she was doing a disservice to all working women whose employers would now expect them to “work throughout” their maternity leaves.

Whether this is a male/female issue or merely a parenting issue that cuts across gender, what is clear from the numerous opinions out there is that one size does not fit all.  In fact, if I am any example, one approach might not even work throughout one person’s working/parenting life. As a first time mom and associate at a law firm, I took a 6½ month leave, made possible by a hefty pay check and 12 weeks of paid leave.  Now that it’s my second time around and I am transitioning to academia, I chose to work from home through the first few months after my son was born and (mostly) don’t regret it.

The notion of privileging women or parents by building in options for them is not new and is, in fact, the dominant approach in many European countries and in Israel (which I have written about in the past).  But it has not been the American way.  Might we be changing?  In my prior article, I wrote about the emergence of the Israeli approach as a function of the society’s overall collectivist culture and a national interest in promoting reproduction and the parent-child bond.  I am wondering whether there is a chance that Americans could recognize this too.

Of course, that would not be the end of the debate.  What would the privileging of women or parents mean for equality?  If women (by law) gain options that men don’t have, do they come out equal, better, or worse?  For example, if we mandate paid maternity leave as some countries do, will employers stop hiring fertile age women out of fear that they will exercise this option and be less productive than men?  What if the option is non-gendered and open to all parents?  Will men exercise the option or continue to feel pressure to return to work immediately after a child is born?  Will women?  While the answers to these questions remain unclear, one thing is obvious—this is not a problem that parents can solve on their own.  Beyond the debate in the media, it is high time for a serious debate in government about remedies (beyond the Family Medical Leave Act) for working parents who are having trouble being good at both jobs.

 

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There is no new thing under the sun

Photo: Like it’s namesake, the European Data Protection Directive (“DPD”), this Mercedes is old, German-designed, clunky and noisy – yet effective. [Photo: Omer Tene]

 

Old habits die hard. Policymakers on both sides of the Atlantic are engaged in a Herculean effort to reform their respective privacy frameworks. While progress has been and will continue to be made for the next year or so, there is cause for concern that at the end of the day, in the words of the prophet, “there is no new thing under the sun” (Ecclesiastes 1:9).

The United States: Self Regulation

The United States legal framework has traditionally been a quiltwork of legislative patches covering specific sectors, such as health, financial, and children’s data. Significantly, information about individuals’ shopping habits and, more importantly, online and mobile browsing, location and social activities, has remained largely unregulated (see overview in my article with Jules Polonetsky, To Track or “Do Not Track”: Advancing Transparency and Individual Control in Online Behavioral Advertising). While increasingly crafty and proactive in its role as a privacy enforcer, the FTC has had to rely on the slimmest of legislative mandates, Section 5 of the FTC Act, which prohibits ‘‘unfair or deceptive acts or practices”.

 

To be sure, the FTC has had impressive achievements; reaching consent decrees with Google and Facebook, both of which include 20-year privacy audits; launching a serious discussion of a “do-not-track” mechanism; establishing a global network of enforcement agencies; and more. However, there is a limit as to the mileage that the FTC can squeeze out of its opaque legislative mandate. Protecting consumers against “deceptive acts or practices” does not amount to protecting privacy: companies remain at liberty to explicitly state they will do anything and everything with individuals’ data (and thus do not “deceive” anyone when they act on their promise). And prohibiting ‘‘unfair acts or practices” is as vague a legal standard as can be; in fact, in some legal systems it might be considered anathema to fundamental principles of jurisprudence (nullum crimen sine lege). While some have heralded an emerging “common law of FTC consent decrees”, such “common law” leaves much to be desired as it is based on non-transparent negotiations behind closed doors, resulting in short, terse orders.

 

This is why legislating the fundamental privacy principles, better known as the FIPPs (fair information practice principles), remains crucial. Without them, the FTC cannot do much more than enforce promises made in corporate privacy policies, which are largely acknowledged to be vacuous. Indeed, in its March 2012 “blueprint” for privacy protection, the White House called for legislation codifying the FIPPs (referred to by the White House as a “consumer privacy bill of rights”). Yet Washington insiders warn that the prospects of the FIPPs becoming law are slim, not only in an election year, but also after the elections, without major personnel changes in Congress.

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Illinois Law Review, Issue 2012:2 (March 2012)

University of Illinois Law Review Logo

University of Illinois Law Review, Issue 2012:2

Please see our website for past issues

Articles

Homogeneous Rules for Heterogeneous Families: The Standardization of Family Law When There is no Standard Family – Katharine K. Baker (PDF)

Legal Sources of Residential Lock-Ins: Why French Households Move Half as Often as U.S. Household – Robert C. Ellickson (PDF)

Sealand, HavenCo, and the Rule of Law – James Grimmelmann (PDF)

David C. Baum Memorial Lecture on Civil Rights and Civil Liberties

Citizens United and Conservative Judicial Activism – Geoffrey R. Stone (PDF)

Notes

Bargaining for Salvation: How Alternative Auditor Liability Regimes Can Save the Capital Markets – Hassen T. Al-Shawaf (PDF)

Analysis Paralysis: Rethinking the Courts’ Role in Evaluating EIS Reasonable Alternatives – J. Matthew Haws (PDF)

The Real Social Network: How Jurors’ Use of Social Media and Smart Phones Affects a Defendant’s Sixth Amendment Rights – Marcy Zora (PDF)

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Sidestepping corporate liability, Supreme Court shifts focus of Kiobel case to extraterritoriality

(Marco Simons is Legal Director of EarthRights International.  He is a graduate of Yale Law School, where he received the Robert L. Bernstein Fellowship in International Human Rights.)

Last week I blogged about the Kiobel v. Royal Dutch Petroleum case, in which the Supreme Court was considering whether corporations could be sued for complicity in serious human rights abuses under the Alien Tort Statute (ATS). I noted that some scholars and amici were urging the Supreme Court to decide the case on other grounds; namely, that the ATS was limited to suits against U.S. citizens.

On Monday the Supreme Court issued a rare reargument order in Kiobel, directing the parties to re-brief and argue next Term the question of “[w]hether and under what circumstances” the ATS allows suits for abuses “occurring within the territory of a sovereign other than the United States.”
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Wrongful Auction of Stolen Chinese Cannon

The cannon pictured was stolen from the Chinese by Webb Hayes, son of president Rutherford B. Hayes, after the notorious Boxer Rebellion of 1899-1901 fomented by foreign armies. Other Chinese property Hayes stole is displayed at the Hayes presidential museum in Cleveland and at West Point’s museum. The cannon will soon go on sale at auction in New York, says the New York Times, at the Cowan Auction house.

All those involved in sustaining the original theft should be ashamed, including the current “owner” and the auction house.  The property should be returned to China. The current “owner” of the cannon paid $150,000 for it last year, fixed it up, and now proposes to fetch three to four times that. 

It seems offensive, yet also common, for Westerners to deny that they hold stolen goods that rightfully should be returned to China.  On the rare occasions when Westerners have returned such property, Chinese respond with an outpouring of gratitude.

The first such example appears to have occurred about two decades ago, thanks to senior executives of American International Group (AIG).  In 1991, a senior executive of AIG’s Asian life insurance business heard that a Paris gallery came into possession of ten imposing bronze window panels. Initial research suggested these exquisite objects—each towering ten feet and emblazoned with iconic serpents and dragons—may have been part of the Baoyun Pavilion at the Summer Palace in Beijing, looted by foreign armies during the Boxer Rebellion.

The executive reported this to AIG’s chief executive, Hank Greenberg, who was also chairman of the Starr Foundation, created by his predecessor, the legendary insurance pioneer, Corneilus Vander Starr, who had opened American insurance operations in China in 1919.  Greenberg, who had been running AIG’s insurance operations in China since 1975, and had many friends in the country,  instantly appreciated the significance of this discovery. He knew that the Pavilion had been closed ever since, as the loss of those windows amounted to a loss of face for the Chinese people.

Experts confirmed that the window panels were indeed those missing from the Pavilion. The treasured national assets had been stolen by a French army officer amid the period’s pillaging. The Starr Foundation bought the iconic window frames from the French gallery for $510,000 and arranged for repatriation into China.

A national rededication service followed in December 1993, broadcast throughout the country on television. Millions of grateful Chinese watched tearfully during the ceremony. It was the first time that any foreign organization had returned missing national Chinese artifacts to the homeland. It was the right thing to do.

It would be the right thing to do with this cannon as well, along with the items in the Hayes presidential museum that the president’s son stole, the items at West Point, and anything else Westerners stole from the Chinese during the Boxer Rebellion.

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Physical Punishment and Parental Rights

A recent study published online in the Canadian Medical Association Journal brings up the unresolved debate about parental rights and physical punishment of children.  This study lends support to an argument I made some years ago in an article called “Suing for Lost Childhood” about the use of the delayed discovery rule in child sexual abuse cases.  In my article, I argued that physical abuse of children and neglect can have impacts on children’s development that are as destructive as sexual abuse, but for a variety of reasons we are as a culture more attuned to issues related to children and sexuality.  (I later called the analysis used in that article “narrative genealogy” as it traces the cultural origins and migrations of stories that ultimately had shaping effects on legal decisions.)

The CMAJ study reviews 20 years of published research on physical punishment of children and concludes that no evidence exists of positive outcomes.  Physical punishment is correlated with aggression and antisocial behavior, cognitive impairment and developmental problems, as well as depression, spousal abuse, and substance abuse.  Co-author Joan Durrant says, “”There are no studies that show any long term positive outcomes from physical punishment.”   Summaries of the study say that the study refutes the frequent argument that aggression comes before corporal punishment and not vice versa.  (I’ll get to the viral video of the dad shooting his daughter’s computer with a .45).

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