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October 23, 2016

Documentary on Akayesu case makes debut at UN; reviewers call it "riveting," a "courtroom thriller"

The Uncondemned,” a film about the first prosecution of rape as a war crime, saw its theatrical release over the week-end in New York City, where it will play through October 27, at the Sunshine Cinema, SoHo.  The film, which will play in some 30 major markets through the end of the year, opened to critical acclaim in the New York TimesThe Village Voice, and the New York Daily News. Michele Mitchell and Nick Louvel co-directed the film.

Witnesses JJ, OO & NN, along with Godelieve Mudasarasi of SEVOTA, a Rwandan NGO supporting widows and children of the Rwandan genocide. 

A feature-length documentary, “The Uncondemned” recounts the prosecution by the International Criminal Tribunal for Rwanda (ICTR) of Mayor Jean-Paul Akayesu for crimes against humanity and acts of genocide,  including acts of sexual assault, against residents of Taba commune, which he governed.  The film actually interweaves two stories.  One is that of the Taba rape survivors—until now known only as JJ, NN, and OO—and the social worker and founder of SEVOTA, Godeliève Mukasarasi, who encouraged and empowered them to participate in the prosecution.  The other story is that of the team of young lawyers who worked on the case, including trial counsel Pierre-Richard Prosper (now with Akin Gump) and Sara Darehshori (now with Human Rights Watch, working on issues of sexual assault in the United States).  Also appearing in the film are Patricia Sellers, gender advisor to ICTR and ICTFY at the time the Akayesu case was investigated and tried, Rosette Muzigo-Morrison, a UNinvestigator from Uganda, and Binaifer Nowrojee, who from her position with Human Rights Watch in East Africa wrote Shattered Lives, a report on Sexual Violence during the Rwandan genocide and campaigned for the prosecution of rape as a war crime.  My own work as gender consultant at ICTR—twenty years ago this fall—is also featured in the film.  

The October 21 theatrical release followed a special viewing at the United Nations on October 19.  The Rwandan witnesses, along with Mukasarasi, were special guests at the UN event, hosted by Zainab Hawa Bangura Under-Secretary-General and Special Representative of the UN Secretary-General on Sexual Violence in Conflict.  A Yazidi rape survivor previously held captive by ISIS also appeared at the event, speaking on a panel about sexual assault during war that followed the screening.  The UN promoted the hashtag #EndRapeinWar at the screening.     

“The Uncondemned” was shown at several film festivals in the past year, taking the 2015 Brizzolaro Family Foundation Award for the Best Film on Conflict and Resolution at the Hamptons International Film Festival The documentary also played at the Human Rights Watch Film Festival and the Napa Valley Film Festival.  Reviewers have called the film a “must see” and “riveting,” and characterized it as a “courtroom thriller.” 

Following the week-long run in NYC, “The Uncondemned” will open in Los Angeles on October 28, at the Laemmle Royal, 11523 Santa Monica Blvd.   Beginning on November 4, the film will run for one week in Washington DC at the E Street Theatre, 555 11th Street, NW, and for one week in Atlanta’s Plaza Theatre, 1049 Ponce de Leon Avenue N.  You can find information on all screenings here.     

Cross-Posted to International Law Grrls. 

From left to right at UN Premiere on October 19:  Sara Darehshori, co-director of "The Uncondemned" Michele Mitchell, Pierre Prosper and Lisa R. Pruitt 

October 17, 2016

The Role of Support in Sexual Decision-Making for People with Intellectual and Developmental Disabilities

Professor Jasmine Harris has an article on the Ohio State Law Journal's online publication. It is titled, "The Role of Support in Sexual Decision-Making for People with Intellectual and Developmental Disabilities."

The commentary is in response to Alexander Boni-Saenz's article Sexuality and Incapacity, 76 OHIO ST. L.J. 1201 (2015). Read Professor Harris's commentary at

Professor Harris's research lies at the intersection of civil rights, civil procedure, and social psychology. She is particularly concerned with the ways in which rules and procedures can change social norms, and, currently, explores these questions in the disability context.

October 17, 2016

Time to End Intentional Destruction of Cultural Heritage

In her role as UN Special Rapporteur in the field of cultural rights, Professor Karima Bennoune is taking part in a discussion of the special report she will present to the United Nations General Assembly. 


  • Ms. Karima Bennoune
  • Mr. Pablode Greiff (Special Rapporteur on the promotion of truth, justice, reparation & guarantees of non‐recurrence)
  • Mr. Omara Khan Massoudi (Former Director of  the National Museum  of Afghanistan, UNESCO Consultant, Kabul)
  • Father Najeeb Michael (Director of the Research Dominican Center, Erbil, Iraq)
  • Ms. Diane Alai (Representative of the Bahai International Community to the United Nations, Geneva, Switzerland)
  • Ms Kristen Carpenter (Oneida Indian Nation Visiting Professor of Law, Harvard Law School)

Moderator: Dr Ousseina Alidou (Professor, Department of African American and African Studies, Rutgers University)

With a performance by Malian artist Yacouba Sissako

Video message from Maestro Placido Domingo, President of Europa Nostra

Date: Thursday, October 27, 2016

Time: 5:30pm - 8pm

Venue: Conference Room 12, UN Headquarters, New York, New York

RSVP by October 24th at

October 5, 2016

Lesley's Story

King Hall's Professor Lesley McAllister is an accomplished teacher and scholar of environmental law, natural resources law, food law, energy law, and property law. Sadly, our beloved colleague is also battling terminal cancer. Last year, she advocated for California's End of Life Option Act, which was signed into law by Governor Jerry Brown in October 2015 and took effect on June 9, 2016.

Professor McAllister recently shared her story with the magazine of her alma mater, Princeton Alumni Weekly (PAW). An excerpt:

"You may be interested in my story," the email read, "and if so, I could be interested in sharing it."

PAW hears from a lot of readers, but this message, received on the first morning of Reunions last May, jumped off the screen. Like hundreds of her classmates, Lesley McAllister '91 was returning to celebrate her 25th. Unlike them, she knew that the visit would likely be her last.

As she explained in her message, the 46-year-old mother of two and law professor at the University of California, Davis, is fighting metastatic cancer, a fight she is certain to lose. Radiation treatments over the summer have robbed her of her hair, which had grown back since her first round of chemotherapy two and a half years ago, shortly before an operation to remove her cancerous right lung. Surgery to remove lesions on her adrenal gland, liver, and pancreas left her with debilitating pancreatitis and a wound that has not fully healed. Once an avid hiker, she now moves slowly and speaks in little more than a whisper until her pain medications kick in.

McAllister's days are numbered, but the uncertainty surrounding that certainty is part of cancer's cruelty. In his posthumously published memoir, When Breath Becomes Air, Stanford University neurosurgical resident Paul Kalanithi wrote, "Before my cancer was diagnosed, I knew that someday I would die, but I didn't know when. After the diagnosis, I knew that someday I would die, but I didn't know when. But now I knew it acutely." That is where McAllister sits now.

To read the full article, simply titled "Lesley's Story," visit

October 4, 2016

Professor Reynoso Discusses "Chicana/o Political Consciousness: Yesterday and Today"

This evening at Sacramento City College, Professor Emeritus Cruz Reynoso appeared on a panel on the Chicana/o rights movement.

Here is the event description: "The Mexican/Chicana/o Movement in Sacramento from the 1960s through the 1980s linked civil and political rights with social, economic, and cultural rights. It was an age of vibrant Mexican/Chicana/o activism and leaders saw themselves as a critical part of the national Chicana/o Movement. The panelists will discuss their personal experiences during the Movimiento."

September 30, 2016

Does JASTA Violate International Law?

Cross-posted from Just Security.

The Justice Against Sponsors of Terrorism Act (JASTA) is now the law of the United States, Congress having overridden President Obama's veto of the bill. Among other things, JASTA amends the Foreign Sovereign Immunities Act (FSIA) by adding a new terrorism exception that is not limited to designated state sponsors of terrorism. The European Union has claimed that JASTA "conflict[s] with fundamental principles of international law and in particular the principle of State sovereign immunity." Because the version of JASTA that is now law differs significantly from the version I considered back in April, it is worth taking a fresh look at whether JASTA violates international law.

The United States has had a terrorism exception in the FSIA since 1996, the current version of which is found at Section 1605A of Title 28 of US code. Section 1605A provides that a foreign state shall not be immune from suits seeking money damages for personal injury or death caused by certain acts like torture and extrajudicial killing-or material support for such acts-by foreign government officials. But this provision is limited to countries designated by the United States as state sponsors of terrorism (currently Iran, Sudan, and Syria).

The new terrorism exception added by JASTA is not limited to state sponsors of terrorism, but it is limited in other ways. The new Section 1605B provides that a foreign state shall not be immune from suits seeking money damages for personal injury or death, or for injury to property, occurring in the United States that is caused by (1) "an act of international terrorism in the United States;" and (2) a tortious act of a foreign state or its officials "regardless where the tortious act or acts of the foreign state occurred." The tortious act of a foreign state may not, however, be an omission or "constitute mere negligence." 

It is clear that customary international law requires states to recognize foreign sovereign immunity in at least some cases. In the Jurisdictional Immunities Case (Germany v. Italy), for example, the International Court of Justice (ICJ) held that international law requires immunity with respect to torts committed by armed forces during an armed conflict (para. 78). Customary international law rules of immunity-like customary international law rules more generally-must be based on a general and consistent practice of states followed out of a sense of legal obligation or opinio juris (para. 55). States may, of course, go further than international law requires and grant foreign states more immunity from suit as a matter of comity. But "the grant of immunity in such a case is not accompanied by the requisite opinio juris" and therefore does not establish rules of customary international law. See id. Looking at the practice of states with respect to foreign sovereign immunity, it is not always easy to tell where international law stops and international comity begins.

Like many other nations, the United States follows a restrictive theory of foreign sovereign immunity, under which the immunity of foreign states does not extend to their private and commercial acts (acta jure gestionis) but generally does extend to their governmental acts (acta jure imperii). But "generally" does not mean "invariably." The FSIA contains a number of exceptions to immunity that may apply to the governmental acts of foreign states, including the expropriation exception (Section 1605(a)(3)) and the territorial tort exception (Section 1605(a)(5)). The ICJ has also been careful not to hold that the line between immunity and no immunity neatly tracks the line between governmental and non-governmental acts. In Jurisdictional Immunities, it noted at paragraph 64 that "none of the national legislation which provides for a 'territorial tort exception' to immunity expressly distinguishes between acta jure gestionis and acta jure imperii."  And at paragraph 65, the ICJ limited its holding in that case to armed forces during armed conflict, leaving open the question whether other governmental acts might not be covered by immunity. So even if acts of terrorism or providing material support for acts of terrorism were properly considered governmental, such a classification would not by itself entitle those acts to immunity under international law.

Focusing on the new terrorism exception more specifically, there appears to be no general and consistent practice of states followed out of a sense of legal obligation establishing that foreign states are entitled to immunity for acts of terrorism or material support of such acts. To be sure, most states that have statutes governing foreign sovereign immunity do not have exceptions for terrorism. But it is not clear that the states extending foreign sovereign immunity to cover terrorist acts do so out of a sense of legal obligation. Again, as the ICJ noted at paragraph 55 in Jurisdictional Immunities, unless state practice is "accompanied by the requisite opinio juris," it does not establish a rule of customary international law. Significantly, there are two states-the United States and Canada-that do have terrorism exceptions in their foreign sovereign immunity laws. A terrorism exception has been part of U.S. law since 1996 and part of Canadian law since 2012, and neither exception, to my knowledge, has provoked the sort of widespread protests from other nations that one might expect in the case of a clear violation of customary international law. Perhaps that will change with JASTA's new terrorism exception, and such protests would provide new evidence relevant to the international law question. But the lack of protests prior to JASTA is more evidence that a terrorism exception does not violate customary international law.

Critics might point out that Canada's terrorism exception and the old U.S. exception were both limited to designated state sponsors of terrorism, while JASTA's new exception is not. Certainly this difference may be relevant to whether the new exception is good policy, as President Obama pointed out in his veto message. And this difference might also provoke new protests from other states, which would provide more evidence of customary international law regarding terrorism exceptions. But it is hard to see how this difference determines whether JASTA violates customary international law or not. Foreign sovereign immunity typically turns on the nature of the act, and international law does not typically dictate the particular processes a state must use to grant or deny such immunity. If customary international law allows the United States and Canada to deny foreign sovereign immunity when they have designated a particular country as a state sponsor of terrorism, it is not because the United States and Canada have satisfied some customary international law requirement with respect to designation. It is rather because customary international law does not require foreign sovereign immunity for terrorist acts in the first place.

Although new Section 1605B is written as a terrorism exception, it also finds support in the exception-well established under customary international law-for territorial torts. Recall that while Section 1605B does permit a suit for damages to be based on the tortious acts of a foreign state or its officials outside the United States, it also requires both conduct and injury inside the United States-specifically, "an act of terrorism in the United States" and injury or death "occurring in the United States." In Jurisdictional Immunities, the ICJ recounted the extensive state practice establishing an exception to foreign sovereign immunity for torts occurring in the forum state, although the Court also found that this exception did not extend to the activities of armed forces during armed conflicts. (See paragraphs 64-79.) Specifically, the ICJ noted that while the territorial tort exception had "originated in cases concerning road traffic accidents and other 'insurable risks,'" national legislation codifying the exception was written in more general terms (para. 64). Prior to JASTA, U.S. courts had adopted an "entire tort" interpretation of the FSIA's territorial tort exception (§ 1605(a)(5)), requiring that not just the injury but also all of the tortious conduct have occurred in the United States. But it is not clear that such a limitation is required by customary international law. Article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Properties, for example, would apply the territorial tort exception if the act or omission occurred "in whole or in part" in the territory of the state exercising jurisdiction. And it may be that the U.N. Convention is in fact more generous with immunity than customary international law requires.

In a previous post, I noted that there are various approaches to organizing state practice with respect to foreign sovereign immunity. The results may depend heavily on the baselines from which one begins and the levels of generality at which one reads state practice. Fully addressing those questions would require far more space than this post allows, but perhaps one observation may be made. In determining the customary international law of foreign sovereign immunity with respect to armed forces during armed conflict in Jurisdictional Immunities, the ICJ considered that "the most pertinent State practice is to be found in those national judicial decision which concerned the question whether a state was entitled to immunity in proceedings concerning acts allegedly committed by its armed forces in the course of an armed conflict" (para. 73). The Court found an almost unbroken practice of judicial decisions extending such immunity, even when the acts were committed on a state's own territory (paras. 73-77). There is no similarly unbroken practice of forum states extending immunity to foreign states that provide support for terrorist acts causing injury and death within the forum state.

Powerful arguments have been made that JASTA is bad policy, that it will not in fact help the victims of the 9/11 attacks, and that it will hurt our relations with important allies. I am not disputing those points. My only claim here is that JASTA does not clearly violate customary international law.

September 27, 2016

What’s the Right Comity Tool in Vitamin C?

Cross-posted from Opinio Juris.

American law has many doctrines based on international comity-doctrines that help mediate the relationship between the U.S. legal system and those of other nations. The Second Circuit's decision last week in the Vitamin C Antitrust Litigation case correctly identified an international comity issue. But did it choose the right comity tool to address that issue?

Plaintiffs alleged that defendants, two Chinese companies, participated in a cartel to fix the price of vitamin C exported to the United States in violation of U.S. antitrust law. Defendants did not deny the allegations, but argued that Chinese law required them to coordinate export prices. The Chinese Ministry of Commerce backed the defendants in an amicus brief explaining Chinese law. The district court, however, declined to defer to the Ministry's interpretation of Chinese law, awarding the plaintiffs $147 million in damages and permanently enjoining the defendants from further violations of U.S. antitrust laws.

On appeal, defendants argued that the district court should have dismissed on grounds of foreign state compulsion, international comity, act of state, and political question. While the political question doctrine rests on separation of powers, the other three grounds are all doctrines of prescriptive comity. As I have explained in a recent article, American law is full of international comity doctrines, each with its own specific requirements.

To avoid confusion, it is worth noting at the outset that although the Second Circuit repeatedly framed the question as whether the district court should "abstain from exercising jurisdiction," Vitamin C was clearly not an international comity abstention case. International comity abstention is a doctrine of adjudicative comity, or deference to foreign courts. The Second Circuit has held that it is available only if parallel proceedings are pending in a foreign court. See Royal & Sun Alliance Ins. Co. of Canada v. Century Intern. Arms, Inc., 466 F.3d 88, 93-94 (2d Cir. 2006). The same is true in most other circuits that have adopted the doctrine (the cases are collected here at pp. 2112-14). The main exception is the Ninth Circuit, whose decision in Mujica v. Airscan Inc., 771 F.3d 580 (9th Cir. 2014), applied a broad and uncertain comity abstention doctrine that conflicts with its own precedents, those of other circuits, and even the Supreme Court's. Because no parallel antitrust claims against these defendants were pending in Chinese courts, international comity abstention would not have been an appropriate ground on which to dismiss this case.

Instead, the Second Circuit properly viewed the Vitamin C case as raising questions of prescriptive comity-deference to foreign lawmakers-which U.S. law has developed a number of different doctrines to address (for discussion see here at pp. 2099-2105). The court relied particularly on an interest-balancing, comity doctrine commonly associated with Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (9th Cir. 1976), Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979), and Section 403 of the Restatement (Third) of Foreign Relations Law. In the court's view, this doctrine authorized it to "balance the interests in adjudicating antitrust violations alleged to have harmed those within our jurisdiction with the official acts and interests of a foreign sovereign in respect to economic regulation within its borders" (slip op. at 4). The idea that U.S. courts are institutionally capable of balancing the interests of foreign governments against our own has the subject of significant criticism over the past three decades.

Moreover, it is hard to see how this particular prescriptive comity doctrine survives the Supreme Court's later decisions in Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993), and F. Hoffmann-La Roche Ltd. v. Empagran, S.A., 542 U.S. 155 (2004), both of which declined to apply a multi-factor balancing approach in antitrust cases. The Second Circuit read Hartford "narrowly" (slip op. at 20) not to preclude such an approach, particularly when compliance with both U.S. and foreign law was impossible. But the Second Circuit did not even mention Empagran, which expressly rejected case-by-case balancing as "too complex to prove workable." Empagran recognized that ambiguous statutes should be construed "to avoid unreasonable interference with the sovereign authority of other nations," but it also said in no uncertain terms that "application of our antitrust laws to foreign anticompetitive conduct is nonetheless reasonable, and hence consistent with principles of prescriptive comity, insofar as they reflect a legislative effort to redress domestic antitrust injury that foreign anticompetitive conduct has caused." Plaintiffs unquestionably alleged domestic antitrust injury in Vitamin C, making the application of U.S. law reasonable and consistent with prescriptive comity, at least has the Supreme Court has understood these concepts in the antitrust context.

The act of state doctrine is a separate and distinct manifestation of international comity, requiring that the acts of foreign sovereigns performed within their own territories be deemed valid. But the Supreme Court has made clear that the act of state doctrine applies only when a U.S. court must "declare invalid, and thus ineffective as 'a rule of decision for the courts of this country,' the official act of a foreign sovereign." W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., International, 493 U.S. 400, 405 (1990). To find that the defendants fixed the price of vitamin C, the district court did not have to find any part of Chinese law invalid or even to evaluate the conduct of the Chinese government. It only had to find that Chinese law did not immunize the defendants' own conduct from liability under U.S. law.

The best fitting tool to address the prescriptive comity issue in Vitamin C would seem to be the doctrine of foreign state compulsion (also known as foreign sovereign compulsion), which sometimes allows a U.S. court to excuse violations of U.S. law on the ground that the violations were compelled by foreign law. That is precisely what defendants had argued in this case. Although the exact contours of this doctrine are uncertain, the U.S. government has recognized it as a defense in antitrust cases. See Antitrust Enforcement Guidelines for International Operations ¶ 3.32 (1995). China represented that its law compelled the defendants to coordinate export prices for vitamin C, and the Second Circuit considered itself bound by China's interpretation of its own laws (slip op. at 30), which seems reasonable at least in these circumstances.

Unfortunately for the defendants, there are at least two potential problems with foreign state compulsion in this case. First, it appears that defendants may have asked the Chinese government to mandate their price fixing. See slip op. at 36-37. At least some authority suggests that a defendant wishing to claim foreign state compulsion as a defense must try in good faith to obtain relief from the compulsion from the foreign state. See, e.g., Societe Internationale v. Rogers, 357 U.S. 197, 208-09, 213 (1958). Second, it appears that defendants may have fixed prices at levels higher than those mandated by the Chinese government. See slip op. 38. The Second Circuit found this irrelevant to its "comity" analysis but seemed to acknowledge that such facts would preclude a foreign compulsion defense. See id.

U.S. courts have many tools at their disposal to address international comity issues. But sometimes no tool fits. "International comity" is not a universal wrench offering unlimited judicial discretion to dismiss cases that seem problematic. It is a principle underlying specific doctrines, with specific requirements, developed over many years to keep judicial discretion within bounds.

September 16, 2016

A New Look at Design Law

Design is the currency of modern consumer culture and increasingly the subject of intellectual property claims. Apple, the world's biggest company, owes its value largely to design. Notably, where courts once rebuffed Apple's claim to own a popular graphical user interface, today design-related claims lead to billion dollar judgments in Apple's favor. Global litigation between Apple and Samsung over the design of smartphones and tablets has been a watershed development, bringing to light the enormous importance of "look and feel" as both a driver of market value and a subject of intellectual property protection. Today, design - which includes everything from shape, color, and packaging to user interface, consumer experience, and brand aura - is attracting unprecedented attention. Indeed, the Supreme Court will soon decide two cases concerning the intricacies of design protection, one involving design patent damages and the other copyright in cheerleading uniforms.

But the law of design is confused and confusing. It is splintered among various doctrines in copyright, trademark, and patent law. Indeed, while nearly every area of IP law protects aspects of design, the law has taken a siloed approach, with separate disciplines developing ad hoc rules and exceptions. To make matters worse, different disciplines within IP use similar terms and concepts - functionality, consumer confusion - but apply them in wholly different, even contradictory ways. In the Apple v. Samsung litigation, for example, the Federal Circuit found Apple's trade dress not protectable because it is functional in numerous ways. But then the court found the very same designs protectable under design patent law, which only protects non-functional elements, because design patent doctrine defines functionality differently. This paradoxical result should give pause. Although Congress and the courts may appear to have carefully calibrated protection within each separate doctrinal area, they may not have adequately considered the simultaneous application of other types of protection. Without an overarching understanding of and approach to design protection, the cumulative effect of overlapping exclusive rights is likely to lead to over protection. Scholarship, too, has focused on design protection in distinct areas of law.

In a new paper called "The Law of Look and Feel," forthcoming in volume 90 of the Southern California Law Review in 2017, Professor Peter Lee and I seek to provide the first comprehensive assessment of the regulation of consumers' aesthetic experiences in copyright, trademark, and patent law-what we call "the law of look and feel." We canvas the diverse ways that parties have utilized (and stretched) intellectual property law to protect design in a broad range of products and services, from Pac- Man to Louboutin shoes to the "feel of the '70s" captured in Marvin Gaye's music, from the décor of Mexican restaurants to Apple's technologies of "pinch to zoom," "bounce-back" and "slide to unlock." In so doing, we identify existing doctrines and principles that inform a normatively desirable "law of look and feel" that provides graduated protection for design. In particular, we reveal that most areas of IP law have developed limiting principles that usefully cabin protection of "look and feel" in response to evolving standardization, consumer expectations, and context. This is occurring largely without forethought, cobbled together as parties seek to expand design protection, on the one hand, and articulate limitations and exceptions, on the other. We distinguish this implicit, normatively desirable "law of look and feel" from the manner in which some courts have expressly used the term "look and feel" to justify expansive intellectual property protection of design. Going further, we argue that the new enclosure movement of design, if not comprehensively reformed and grounded in theory, can in fact erode innovation, competition, and culture itself.

We define "look and feel" broadly. To begin, we adopt a definition that accords with how design theorists conceptualize design writ large, which is more capacious than how courts have used the term "look and feel" in judicial opinions. "Look and feel," as we understand it, both harkens back to the longstanding philosophical study of "aesthetics" as well as includes the contemporary conception of design in the emergent liberal art of "design thinking." In his Lectures on Aesthetics, Hegel referred to aesthetics as "the science of sensation, of feeling."8 Today, commerce has come to appreciate the profound importance of aesthetics for market success. "Aesthetics," Virginia Postrel writes, "is why you buy something." As with Apple's iPhone, look and feel blends beauty and utility as well as integrates form and function. At the level of artifact, look and feel includes elements such as shape, color, style, layout, packaging, and overall visual appearance. At a more conceptual level, it encompasses intangible qualities such as modes of interaction, aesthetic experience, brand aura, and zeitgeist.

Adapting familiar principles to a novel context, we argue that exclusive rights in look and feel that are not sufficiently attentive to standardization, consumer expectations, and context may undermine innovation and cultural cohesion. In a variety of ways, intellectual property law is skeptical of strict exclusive rights over standards, whether they are expressive, linguistic, or technological. Copyright does not allow exclusive rights in stock and necessary expressions, trademark does not extend to generic words embodying linguistic conventions, and patent law mitigates exclusive rights on technological platforms engendering significant social reliance. In similar fashion, we develop a conception of look and feel as zeitgeist - an aesthetic or cultural standard that objectively expresses the spirit of an age. Extending principles of intellectual property law, we argue that when particular forms of look and feel become our lexicon and central to our shared meaning and understanding of a certain time and place, they should come to belong to the culture at large. As we show, doctrines from copyright (scènes à faire and merger) and trademark (distinctiveness, genericide, functionality) already recognize this dynamic nature of design as zeitgeist and relax exclusive rights accordingly. Our comprehensive view of the law of look and feel reveals areas of design law, notably design patents, that fail to incorporate this dynamic view of design.

While offering prescriptions for several branches of IP and applications to the design cases pending before the Supreme Court, we argue in particular for bold changes to design patent law, from its subject matter to its standard for infringement and method for assessing remedies. We seek to bring balance to this jejune area of law by incorporating and tailoring limitations from other more mature fields of intellectual property.

September 15, 2016

Senior Associate Dean Sunder and Professor Peter Lee participate in roundtable on “The Psychology and Sociology of Creativity and Intellectual Property” at Stanford Law School

On September 9 and 10, Professor Peter Lee and I participated in an invitation-only roundtable on "The Psychology and Sociology of Creativity and Intellectual Property" at the Stanford Law School.

I took this photo during the roundtable event. Professor Lee is second from left.

Professor Lee spoke to the question of "Why Do Companies Patent?" Professor Lee said smaller companies and larger companies may have different reasons for patenting, and similarly, that companies and their employees have different motivations for patenting. In addition, he noted the sociological evolution regarding patents at universities, from anti-commercial to seeing patents as part of the university's institutional mission.

I was invited to speak on "The Psychology and Sociology of Brands and Trademarks." I discussed how brand value is as much a function of the consumer as the producer. Brands tell us not just about the product but the buyer - about the buyer's identity and social status. While cognitive psychology understands branding as a science (where MRI readings can assist our understanding of how consumers react to brands), literary theory understands branding as an art, involving storytelling and archetypes. There are excellent chapters on the psychology and sociology of branding in a recent book I co-edited with NYU Professor of Law Barton Beebe and Hong Kong University Professor of Law, Haochen Sun, called "The Luxury Economy and Intellectual Property," published by Oxford University Press. 

I also spoke of the increasing role of design patents as a tool for protecting brand image, and of a new paper in which Professor Lee and I propose reforms to design patent law. The paper, "The Law of Look and Feel," is forthcoming in the Southern California Law Review. You can read a draft of the article here:

September 9, 2016

Interview with Professor Emeritus Edward J. Imwinkelried

An interview with Professor Emeritus Edward J Imwinkelried appears in the Summer 2016 issue of the ABA's Litigation Journal. Author Martin J. Siegel is with The Law Offices of Martin J. Siegel, Houston, and is editor in chief of Litigation.

Here is an excerpt:

MJS: One of the areas you're closely identified with now is scientific evidence. What drew you to that?

EJI: Every week, the Criminal Law Division at the JAG School had a meeting. At one of the first meetings I attended, someone remarked that scientific evidence was popping up in a growing number of cases. Colonel Overholt decided that "someone" should go to the library and learn enough about the subject to teach a block of instruction. Of course, that "someone" was the newest addition to the division-namely, me. Then, a few months later, Paul Giannelli arrived and became my officemate. Paul was fresh from earning his LLM in forensic science at George Washington. Paul's arrival solidified my interest in the subject. Paul and I have been collaborators and, more importantly, great friends for over 40 years.

MJS: Daubert v. Merrell Dow Pharmaceuticals is probably the evidence-related decision best known to civil litigators. Every law student learns it, and every litigator eventually argues it. The Court cited not just one of your writings in Daubert, but two- one being your well-known treatise, Scientific Evidence. Were you involved in the case in any way, or just cited by the Court?

EJI: I worked as a consultant to the plaintiffs in Daubert. One of the primary authors of the brief was Ken Chesebro. Ken had read some of the articles I had written about Rule 402 and the 402-based contention that the Federal Rules of Evidence superseded Frye. Ken asked me to help him write the first part of the brief in which we developed that contention. Working on the brief was a learning experience. The day before we were sending the brief to the printer, in the hour between 4:00 and 5:00 p.m., I received several faxes from Cambridge and sent several to Cambridge. As the clock was ticking to five and I had to be out the door to pick up my son from practice, I was dictating to the secretary in Cambridge as the last fax was coming off the machine. When I went home, I told my wife Cindy, "Now I remember why I don't want to be a real, practicing attorney."

Read the full interview at (password required).