Upsetting Conventional Wisdom of Copyright Scholarship in the Age of AI

Oren Bracha, The Work of Copyright in the Age of Machine Reproduction, available at SSRN (Sept. 24, 2023).

In our modern communication environment, conventional wisdom very swiftly captures and narrows our channels of thought. This is due in no small part to the unceasing production of commentary, which means that every perspective on any important new issue is made available and explored (to use the digital age’s most lamentable neologism) in “real time.”

That is true already of the copyright debates around AI. In particular, it has already become conventional wisdom, and the starting point for discussion, that the use of datasets containing copyrighted works for purposes of training AI models involves reproduction of unauthorized copies of those works, and so is a prima facie infringement. The lawfulness of AI training, it is then said, can be established only by determining whether that activity constitutes fair use. Continue reading "Upsetting Conventional Wisdom of Copyright Scholarship in the Age of AI"

Is Private International Law Really Private? Gender and Colonialism in the History of Conflict of Laws

The colonial origins of public international law are increasingly front and center of scholarly and political discussions in the field. In her insightful essay, Anne-Charlotte Martineau suggests that the supposed “private” nature of private international law also derives, in part, from extractive European colonialism. More often known as conflict of laws in the common law world, private international law governs the resolution of transnational disputes, focusing on issues such as jurisdiction, choice of law, and enforcement of judgments. Martineau recounts that from the middle of the sixteenth century, scholars of the so-called School of Salamanca—the intellectual movement led by Francisco de Vitoria that developed at the university of Salamanca in Spain—were mobilized to legitimize and facilitate enslavement and other violent practices by reconceptualizing the law of marriage.

Martineau’s piece is published as part of a symposium on the interrelation of the public and the private in international law, inspired by the work of late Canadian international law scholar Karen Knop. Martineau’s contribution constitutes a manifesto in its own right, calling for comparative and international law practitioners and scholars “to redress the invisibility of women in the history of international law” from an intersectional perspective. She builds upon Knop’s claim that “recuperating private international law as a lost side of international law can open up counter-disciplinary research on gender in the history of international law” to revisit a debate that arose in the 1540s. Jesuit missionaries in Brazil asked jurists and theologians associated with the School of Salamanca back in Europe to assess the validity of marriages among colonized peoples such as the Tupi people and among enslaved persons. The motivation was initially religious—if these unions were illegitimate under canon law, for example because they were consanguineous, polygamous, or temporary, spouses could not be baptized and converted to Catholicism. In the 1580s, the impetus became primarily economic and biopolitical—as sugar production prospered, European colonizers demanded an ever-growing workforce to exploit. The issue became whether enslaved people kidnapped from Angola and Indigenous people captured in the hinterland (sertão) to work on plantations could enter into second marriages given that they had been forcibly separated from their consorts back home. Continue reading "Is Private International Law Really Private? Gender and Colonialism in the History of Conflict of Laws"

Can Online Proceedings Bring Better Access to Justice?

Avital Mentovich, J.J. Prescott, & Orna Rabinovich-Einy, Legitimacy and online proceedings: Procedural justice, access to justice, and the role of income, 57 Law & Soc’y Rev. 189-213 (2023).

During the pandemic, courts in the United States, and around the world, experimented with online proceedings in both civil and criminal cases. The increasing use of online processes during this time focused attention on how moving away from in-person proceedings can change and alter our legal system and continues to raise difficult questions. Are online proceedings a good thing for justice? Can using more technology in our courts help to improve how our legal system works? Could more online proceedings make our courts more accessible and actually improve justice? These are key questions for anyone looking at dispute system design and how our criminal and civil court systems work. Mentovich, Prescott, and Rabinovich-Einy offer an intriguing look into the possibility of online processes to improve access to justice and legitimacy by examining parties’ perception of online processes in traffic cases.

Why traffic cases? Most people are un-represented in traffic cases and they are seen as minor.  However, the authors observe that traffic cases can provide an “important insight into the consequences of the shift online for court legitimacy” (P. 191) for three reasons. First, traffic cases are a majority of online proceedings and they use written asynchronous communication, not video or other real-time interactions. Second, traffic cases are a majority of all court cases in the United States. Finally, these cases are cases of individuals directly confronting the government. What happens in traffic court impacts a significant number of people despite the low-stakes.  Therefore, examining how traffic court participants who are using online processes perceive the process can give valuable insights. The authors conducted an empirical study of traffic court participants from online traffic proceedings between December 2019 and August 2020.  The survey asked participants about their experience both with the online court proceeding and the legal system in general. Continue reading "Can Online Proceedings Bring Better Access to Justice?"

Clarifying the Doctrine of Probate Standing

David Horton, Probate Standing, 122 Mich. L. Rev. __ (forthcoming 2024), availible at SSRN (August 7, 2023).

Probate cases often arise from a complicated web of relationships between the decedent and family members, friends, caretakers, fiduciaries, and other parties. When the facts of a given case are especially complex, it is sometimes helpful to draw a visual diagram of the various relationships to better understand the dispute’s major fault lines: Whose interests are aligned? Whose interests are adverse? Which parties, if any, represent the interests of non-parties? Which parties are relevant to the dispute but did not enter an appearance? And finally, did any party enter an appearance but lack a legally sufficient connection to the dispute? In Probate Standing, Professor David Horton takes a deep dive into the latter question by expertly examining the important, though often overlooked, gatekeeping doctrine of probate standing. This Article breaks new ground, first, by identifying incoherent branches of the standing doctrine that undermine probate law’s bedrock policy of honoring testamentary intent and, second, by proposing sensible, minimally invasive reforms to clarify the standing rules in probate litigation.

The Article begins with a historical survey of Anglo-American common law from which Horton distills two alternative theories of probate standing: The “property theory” confers standing on anyone who can demonstrate a pecuniary stake in the probate matter. The “status theory,” in contrast, confers probate standing on intestate heirs to contest a decedent’s will. Horton explains that both theories are flawed. Under the property theory, for instance, an undue influencer can unfairly deprive a testator’s intestate heirs of standing to contest the will’s validity by procuring a series of unduly influenced wills because the contestant would have to (but might be unable to) contest every serial will to acquire a pecuniary interest as an intestate heir. Conversely, the status theory grants any intestate heir standing to contest a will’s validity even if the testator devised more than an intestate share to the heir, thus creating a judicial forum for estate litigation potentially motivated by emotion or revenge rather than by rational economic self-interest. Continue reading "Clarifying the Doctrine of Probate Standing"

Don’t Dismiss the War On Drugs Too Fast

Katherine Becket, Monica Bell, and Forrest Stuart, Beyond Harm Reduction Policing, in Drug Law Enforcement, Policing and Harm Reduction, (Mathew Bacon & Jack Spicer eds., 2022).

This short book chapter by three of America’s leading scholars of law, policing, and social inequality, Katherine Beckett, Monica Bell, and Forrest Stuart, may be easy to miss because of its publication in a specialized edited volume on drug policy, policing, and harm reduction, rather than the prominent law or sociology journals in which these authors frequently publish. That would be a shame however (thus this jot), because it packs some crucial insights about our current conjuncture in criminal justice reform in the United States, with major implications for how we consider the future.

First, it is a helpful corrective to the recent revisionist accounts of the war on drugs. These revisionist accounts have challenged what they take to be an exaggerated estimation of the significance of the war on drugs in producing mass incarceration by some of the most influential narratives on the latter. (I’m thinking here in particularly of John Pfaff’s very important book Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (2017) and its critique of Michelle Alexander’s a The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012).) Pfaff corrects the shorthand logic that equates mass incarceration with the war on drugs by demonstrating that most drug sentences are short compared to those for violent or serious property crimes, and that sentences for drug crimes, especially possession, only accounts for a fraction of the growth in incarceration we experienced during the era of “mass incarceration” (the end of which we are still awaiting).

Beyond Harm Reduction Policing however is an important corrective to that corrective. It reminds us that regardless of its contribution to the overall incarceration rate, a punitive response to drug crimes beginning in the 1980s was one of the defining features of the punitive turn of the late 20th century, and one that had a particularly major impact on communities of color. Drug arrests, for example, grew more than fourfold between 1980 and 2006 (when they peaked). Such arrests did not mean that someone would end up in a cage. The growth in supervisory sentences was far greater, touching more than a million people a year at its peak compared with 400,000 with a sentence of incarceration in jail or prison. Nevertheless, each one of these sentences represented an exposure to physical control (and existential threat) by police officers, and at least a short exposure to jail in most cases. Continue reading "Don’t Dismiss the War On Drugs Too Fast"

In Defense of Archimedes

Argentina has a long tradition of excellent legal philosophers, including Carlos S. Nino, Carlos Alchourrón, and Eugenio Bulygin. Pablo Rapetti is part of a younger generation of Argentine legal philosophers that is continuing this rich tradition. This is one of his first scholarly works available in English.

In this paper, Rapetti confronts Ronald Dworkin’s Anti-Archimedeanism and its application to general jurisprudence. As Rapetti explains, Dworkin’s Anti-Archimedeanism is a rejection of the distinction between first-order normative language and second-order, neutral meta-languages we could use to explore the first-order language theoretically. In simple terms, it’s impossible to go “meta:” any debate about ethics, is a first-order moral debate. All metaethical theories occupy the same space as first-order moral theories. Continue reading "In Defense of Archimedes"

Taking the Lid Off Canada’s MAID Law and Practice

Canada’s euthanasia law and practice—which the federal parliament termed “medical assistance in dying,” resulting in the awkward acronym MAiD—continues to be a dominant theme in Canadian and international health law and bioethics scholarship. If MAiD had remained the “exceptional practice” the Canadian Supreme Court originally envisaged, the attention it receives would be perplexing. But ongoing legal expansion—mental health was scheduled to become a basis for MAiD in March 2024 but Parliament suspended this introduction at the last minute until at least 2027—and the staggering increase in the number of people who have died with a health care providers’ lethal injection, explain this attention. In less than 7 years, about 45,000 Canadians—13,241 in 2022 alone—have died by MAiD, more than 4% of all deaths. Quebec, the second largest province, has become the jurisdiction with the highest euthanasia practice in the world, with around 7% of people dying by MAID.

International parliamentary committees, policy makers, and commentators are increasingly paying attention. A new interdisciplinary volume in Springer’s International Library of Bioethics Series, Medical Assistance in Dying (MAiD) in Canada: Key Multidisciplinary Perspectives, edited by Jaro Kotalik and David W. Shannon, should help inform any jurisdiction contemplating some form of legalization. With 31 chapters by experts in law, medicine, social science, philosophy, and bioethics, as well as practitioners and community advocates, the book provides unique, explicitly critical perspectives on various aspects of Canadian MAiD law, policy, and practice. Continue reading "Taking the Lid Off Canada’s MAID Law and Practice"

The Mismatched Goals of Bankruptcy and Mass Tort Litigation

Abbe R. Gluck, Elizabeth Chamblee Burch, & Adam S. Zimmerman, Against Bankruptcy: Public Litigation Values Versus the Endless Quest for Global Peace in Mass Litigation, 133 Yale L.J. F. 525 (2024).

By the end of this Term, SCOTUS must decide what to do about the mammoth Purdue Pharma bankruptcy settlement. If allowed to go forward, the $10 billion deal will not only resolve claims against the company, it will shield the Sackler family—the company’s former owners—from any further liability for their role in the opioid crisis. The deal has generated a great deal of discussion, much of it focused on the legality and wisdom of that third-party release. The authors of Against Bankruptcy take a broader view, asking a set of critical questions about the proper role of bankruptcy in the resolution of mass torts. “What’s to be gained and what’s to be lost by the turn to bankruptcy?”

The turn to bankruptcy represents a new attempt to solve a decades-old problem. Mass-tort defendants have long sought “global peace,” an end to the flood of litigation arising from their allegedly harm-producing conduct. Absent a procedural mechanism capable of reducing the flood to a trickle, a defendant might reasonably fear that settling one set of cases will merely encourage the filing of others, especially if it appears that many potential claimants have not yet come forward. That fear, in turn, can stand in the way of settlements that would put meaningful relief in claimants’ hands. Continue reading "The Mismatched Goals of Bankruptcy and Mass Tort Litigation"

Climate-Conscious Investors and Climate Pledges

John Armour, Luca Enriques & Thom Wetzer, Green Pills: Making Corporate Climate Commitments Credible, 6 Ariz. L. Rev. 285 (2023).

Many of us find it hard to imagine that firms seeking to maximize profits would credibly commit to reducing their greenhouse gas (GHG) emissions. But in Green Pills: Making Corporate Climate Commitments Credible, Oxford professors John Armour, Luca Enriques, and Thom Wetzer argue there is reason to believe that such firms, even in the absence of regulation, might credibly commit to “net-zero” targets. The article lays out a case for such optimism and proposes a mechanism through which corporate managers can enhance the credibility of commitments.

Green Pills initially describes a world in which profit-maximizing companies might eventually credibly commit to reducing GHGs even without regulatory intervention, because a green transition not only imposes physical and transition risks but also creates profitable commercial opportunities. Even as investors are largely climate-indifferent—meaning that they are unwilling to pay more for companies that make significant headway in mitigating their impact on climate change—Armour, Enriques, and Wetzer believe “it is likely that at some point firms will reach a tipping point and conclude their future profits will be maximized by aligning their business model with net zero.” (P. 291.) (Net zero refers to the goal of cutting a firm’s net GHG emissions to as close to zero as possible within a stated time frame). But change of this sort may be a long time in coming. Any gains from transition are likely to be long-term and unexpected, while costs will be certain and immediate. In the minds of corporate managers—whose expected job tenures and therefore time horizons are short—the costs of reducing GHG emissions will weigh more heavily than the benefits, making managers “likely to be highly conservative in their transition policy.” (P. 300.) Continue reading "Climate-Conscious Investors and Climate Pledges"

Debunking the Myths of Law and Economics

In his book, The Analytical Failures of Law and Economics, Shawn Bayern tackles what, for a time, was arguably contract law’s leading school of thought, and argues that the emperor has no clothes. Bayern is not the movement’s sole critic; however, his critical approach is different because he adopts “analytical techniques, often of a type similar to those that have driven the legal-economics movement forward, in order to show that many leading legal-economic arguments would not reach their goals on their own terms.” (P. 3.) Thus, Bayern challenges law and economics theory with law and economics reasoning. (Maybe sometimes the Master’s tools can be used to dismantle the Master’s house).1 The book covers property, tort and contracts, but this review focuses on contracts.

Bayern starts with two important clarifications. First, he is not arguing that efficiency is not important. However, the “orthodox American law-and-economics movement” is a “poor way…to achieve efficiency” (P. 5) and “efficiency “is not the law’s only goal, does not have a singular definition, and is not always easy to recognize.” (P. 5.) The second clarification is that the law and economics movement has not been “worthless”; however, when it comes to “specific, determinative conclusions about legal policy” the movement “fails.” (Pp. 5-6.) Continue reading "Debunking the Myths of Law and Economics"

WP2Social Auto Publish Powered By : XYZScripts.com