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November 13, 2017

Review of "Artistic License: The Philosophical Problems of Copyright and Appropriation"

By Brian Soucek

[Cross-posted from Notre Dame Philosophical Reviews]

 

*Book review by Brian Soucek of Darren Hudson Hick's Artistic License: The Philosophical Problems of Copyright and Appropriation

Darren Hudson Hick is a rarity: a sophisticated philosopher of art who understands and cares about the law. His new book has a lot to teach philosophers about how the law both protects authors' rights and limits them, often to protect others who want to sample, quote, adapt, or appropriate existing works within their own. Philosophers of art who care about artistic practice can learn, not only from Hick's rich and varied examples, but also from his account of one of the great forces shaping that practice. Hick's account of copyright is sometimes descriptive, sometimes revisionary, and thus has something to teach lawyers as well. But deciding exactly what lessons the law, with its own distinctive interests, should take away from an account like Hick's -- focused as it is on philosophical clarity and responsiveness to current artistic practice -- is itself a philosophically interesting question, and one I wish Hick's book went even further in answering.

 

Hick's central question -- Is it wrong for one work to copy another? -- requires him to consider five "interdependent metaphysical and ethical issues" within "the institutional, cultural, and legal framework of intellectual property" (48). They are:

 

(1) the nature of the works in question, (2) the relationship of the author to the work, (3) the rights of the author and how they arise from this relationship, (4) the relationship holding between the original work and the potentially infringing work, and (5) the rights of nonauthors -- if any -- with regard to a given work (48).

 

This, then, is the agenda for Hick's book, or at least most of it. Somewhat disconcertingly, the agenda-setting passage above doesn't appear until page 48. First comes an Introduction devoted to Hick's terrific cover image: commercial artist Mick Haggerty's mash-up of Mondrian and Mickey Mouse -- an example I would have loved Hick to reconsider at the end of the book as a test of his account of what appropriation is appropriate. The next two chapters are similarly introductory. Chapter 1 offers examples ranging from Shia LeBeouf to blues music, hip-hop culture to college plagiarism, to make a point that I doubt will surprise anyone willing to read a book-length study on copyright and appropriation: namely, that while artistic making has long been bound up with artistic taking, "remix culture" seems to have accelerated with modern technology. More interesting to me was Hick's observation that some takings are illegal but not immoral (think of a short sample of a drum break), while others -- like biologists' use of Henrietta Lacks' cells -- are immoral but not illegal. This sets up a broader discussion in Chapter 2 about the relationship among artistic practice, philosophy, and copyright law, which regulates and incentivizes certain artistic practices, and makes certain ontological and ethical conclusions. More on this soon.

 

The book's main line of thought begins in Chapter 3, and it goes, in outline, like this (with my comments in brackets):

 

 (1) an author of a work is one who has and exercises the power of selecting and arranging elements as constitutive of that work [see Chapter 3, which argues against those who find authorship and originality passé, and Chapter 4, Hick's own account of authorship];

 

 (2) this creative activity determines the nature of that work (in general, an authored work is a type instantiable in multiple tokens) [see most of Chapter 5];

 

 (3) this creative activity and the nature of the work give rise to the author's ownership of the authored work -- a natural right to determine the conditions under which that work can be copied [Chapter 6];

 

 (4) copying another author's work (where the properties of the new item are shared with and depend on those of the preexisting work) without permission constitutes prima facie infringement [see the end of Chapter 5]; and

 

 (5) though copyright is a natural right, it is not thus an absolute right, and what qualifies as a nonviolating use (copying) of an author's copyrighted work depends on some interest or right of the user outweighing the natural right of copyright [Chapters 7 and 8] (164-165).

 

I have, of course, just quoted -- which is to say copied -- this summary of Hick's argument from Hick's book itself. And according to the quoted argument, this constitutes a prima facie infringement. Perhaps my lawyers, or NDPR's, should be concerned. But wait! Hick's unexpectedly witty copyright notice at the start of the book gives permission "to reproduce brief quotations from the book for the purposes of critical articles and reviews. Beyond that," he notes, "things quickly become less clear. See chapter 7 . . .". (I would note that things only "become less clear" because Hick invokes standard U.S. copyright protections, rather than the sometimes more permissive ones he argues for in the book. He might, for example, have explicitly granted permission for any use that complies with his theory. This would have the added benefit of allowing Hick to test his theory out in court, should any infringement occur.)

 

Flipping to Chapter 7's discussion of fair use, we find Hick's central argument: the claim that copying an author's expression of an idea without permission is an infringement of his or her natural right to restrict that copying, but (adopting a distinction of Judith Jarvis Thomson's) it is not a wrongful violation of the author's right if the copying is necessary (or reasonably required) to express the ideas of the copyist. This is one of the two situations Hick describes in which copying is not wrongful and should be legally permitted; the other is appropriation art, which Hick would allow whenever the copied material is used to express a different idea from that of the original.

 

So, does my quotation above wrongfully violate Darren Hudson Hick's natural right as an author? Several of my chief comments about Hick's book are related to this question.

 

For starters, I don't quite know the answer. Or, rather, and reassuringly to NPDR's legal staff, I'm fairly confident about the law's answer, but I'm somewhat less sure about Hick's. U.S. law will almost certainly protect me because of the transformative nature of the use and its unlikely effect on Hick's book sales. My confidence here belies Hick's overstated claim that American "fair use doctrine offers effectively no predictive value, and (perhaps worse) sets no reliable precedents" (123). Hick's own test, by contrast, although promising "a principled schema that would offer predictive value to potential copyists" (137), raises questions: was a quotation as long as mine necessary? Was I just lazy? Should I have offered instead my own description of Hick's argument? (Copyright covers only Hick's expression of these ideas, not the ideas themselves.) On Hick's test, my need to copy, and thus its permissibility, seems to hinge on factors like whether I intend to criticize Hick's writing. (In fact, I don't; although the book's style varies from chapter to chapter -- "Can we talk for a minute about Shia LaBeouf?" (9) versus "if some item, W1, has the properties <a1, t1, p1> . . . " (93) -- Hick writes well in both voices.) Quotation would be more necessary if I were trying to give readers a sense of Hick's style, not just the outline of his argument.

 

Perhaps, though, I am framing the question in the wrong way. Maybe we should look not to my (i.e., the user's) intentions, but to the secondary work itself -- here, this review -- in determining what amount of copying is necessary. Hick has surprisingly little to say about the theory of interpretation that copyright law should adopt in deciding whether a work's copied material was needed, or, in appropriation art, whether the secondary work expresses a distinct idea from the original. This is an area where a philosopher of art, like Hick, could really enlighten courts and legal scholars who have sometimes struggled to understand and choose among intentionalism, formalism, or other interpretive approaches.[1]

 

These recurring mentions of appropriation art underscore the fact that Hick's book, from its title onward, is very much a book about art. This is hardly surprising: Hick is a philosopher of art, after all. But notice that the passage quoted at length above is in no way limited to artists and artworks. Its talk of "authors" and "works" applies equally to decidedly non-artistic works like this review, to computer software, to boat hulls, and, as the Supreme Court recently told us, to the chevrons on cheerleaders' uniforms. Hick's attention to this distinction leads to one of my favorite moments in his argument.

 

In Chapter Five, Hick develops, in careful, compelling detail, his ontology of authored works. His account allows us to distinguish multiple works from multiple instantiations of one authored work, and new works that infringe from those that do not. To summarize part of a longer argument: one authored work is distinguished from another if "it has different composite elements or . . . its composite elements have distinct causal bases" (99). If it has the same elements and causal bases, it doesn't matter that that they express different ideas. This isn't true of artworks, however; Hick follows Arthur Danto in suggesting that these have their meaning, or "aboutness," essentially. The result: a piece of appropriation art (say, a Sherrie Levine photograph of a Walker Evans photograph) may be a new artwork, even though it is not a new authored work.

 

Hick's interesting ontological conclusion leads to a question for the law: should copyright follow artistic practice and allow for perceptibly indiscernible, causally connected (rather than fortuitously similar) artworks? Hick's proposal, in Chapter 8, is that appropriation artworks like Levine's should be allowed as fair use if they express "some idea distinct from that of the original" (159). But this fair use allowance should not bring with it the right to make other copies, or to license further derivative works (158).

 

Here is a place where Hick's focus on art really matters. His account of appropriation art is revisionary, and end-driven: he seems to assume that appropriation artists like Levine and Richard Prince should be legally permitted to do what they do; copyright law should be revised to make that so. Because appropriation art has become "one of the most fascinating -- and most influential -- movements in contemporary art" (160), Hick wants the law to "seek to find a way of accommodating" it. But why? Surely appropriation art is no more fascinating or influential than fashion design, though the latter goes largely unprotected under U.S. copyright law. Many things we value -- graffiti, civil disobedience -- are not just unprotected, but forbidden by the law. For some of these, their illegality is part of their power. Hick's focus on art, surely a small minority of the copyrighted material in the world, perhaps skews his view on what practices it is especially important for copyright to accommodate.

 

This brings me, finally, to Hick's claim that authors have a natural right in their original works. Hick rejects the theory of intellectual property enshrined in the U.S. Constitution: an instrumental theory which justifies copyright as an incentive for creative activity that expands the marketplace of ideas. Copyright protections are neither necessary nor sufficient for achieving that end, Hick argues: Homer didn't need it, and Shakespeare would have been hindered by it. Copyright's effectiveness as an incentive to creativity is ultimately an empirical question (106) -- though note, here again, that the empirics should take account of not just art, but many other creations as well. And while copyright's exclusion of fashion is often defended because incentives are less needed there -- copied fashions lead to obsolescence, which spurs new design[2] -- Hick's natural rights argument on behalf of authors should apply fully to fashion design and many other kinds of making as well. I wonder how revisionist Hick is ultimately willing for his theory to be.

 

This is the question that kept coming back as I read Hick's book: his admirable attempts to make copyright law more coherent, and more firmly grounded, necessarily create tension with the law as it currently exists. That's to be expected. The law lacks philosophy's focus: its interests are often multiple, and sometimes conflicting. Consider, for example, the practical suggestions that Hick offers in the book's Afterword. Recognizing that his revisionary account of fair use for appropriation art might "open the door to widespread piracy," Hick suggests limiting it to appropriation artworks that sell for twice the price of the original, with a requirement that half the sales price goes to the original's creator. If all we cared about were the natural rights of the (original) author, this might work. But Hick's proposal would have a horribly disparate impact on appropriation artists: it would apply when famous artists like Richard Prince take from no-name creators, but not the other way around. To quote two legal scholars, it offers "fair use for the rich and fabulous."[3]Compared to current copyright law, Hick's theory may be more consistent and, perhaps, more predictable, but that is partly because he sidesteps, in this book at least, the distributional and egalitarian interests that I, for one, want copyright law to serve.

 

Back to my initial question, then: what should the law take from Hick's philosophically rich account of copyright? This depends, I think, on whether and when his conceptual analysis is taking account of the interests of philosophy, or of the artworld, or of the law. Admittedly, these interests will often overlap: as Hick notes (34), philosophers have increasingly aimed at an ontology of art that responds to actual artistic practice -- which is to say, one that incorporates the interests of artists. Similarly, Hick's arguments about why fair use (and, I would add, substantial similarity) cannot hinge solely on artworks' appearance (160) is an example of philosophy bringing conceptual clarity to the law on the law's own terms: the claim is that looking beyond appearances serves the very interests copyright law is meant to advance. (Of course, what those interests should be is always up for dispute.) But, just as the interests of graffiti artists are often in tension with those of property law, those of appropriation artists might not be consonant with those of copyright law. What is needed is an argument for why copyright law, by its own lights, should seek to accommodate the Sherrie Levines and Richard Princes as well as much less known appropriation artists.

 

This is a provocative, generative book. My comments here are less criticisms than invitations for further work, especially further thinking on the relationship between philosophy of art, artistic practice, non-artistic creative practice, and the categories and values that the law adopts in protecting those practices (or not). Reading this book, however, assures me that Darren Hudson Hick is one of the scholars whose further thoughts on these issues I would most like to hear.

 

 

[1] See, e.g., Amy Adler, Fair Use and the Future of Art, 91 N.Y.U. L. Rev. 559 (2016); Robert Kirk Walker and Ben Depoorter, Unavoidable Aesthetic Judgments in Copyright Law: A Community of Practice Standard, 109 Nw. U. L. Rev. 343 (2015); Alfred C. Yen, Copyright Opinions and Aesthetic Theory, 71 S. Cal. L. Rev. 247 (1998). Professor Adler describes how courts employed three different interpretive approaches in one case: Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), which is also one of Hick's primary examples. For my own views on these issues, see Brian Soucek, Aesthetic Judgment in Law, 69 Ala. L. Rev. ___ (forthcoming 2017).

 

[2] See Kal Raustiala and Christopher Sprigman, The Piracy and Paradox: Innovation and Intellectual Property in Fashion Design, 92 Va. L. Rev. 1687 (2006).

 

[3] Andrew Gilden and Timothy Greene, Fair Use for the Rich and Fabulous?, 80 U. Chi. L. Rev. Dialogue 88 (2013).

March 17, 2017

Comic by Late King Hall Professor Keith Aoki Is Completed

Cross-posted from Duke's James Boyle at The Public Domain.

It is done! We are delighted to announce the publication of our new comic book — Theft: A History of Music, a graphic novel laying out a 2000 year long history of music from Plato to rap.

The comic is by James Boyle, Jennifer Jenkins and the late Keith Aoki. It is available for purchase as a remarkably handsome 8.5 x 11” paperback, and for free download under a Creative Commons license. If you buy the book, 50% percent of the royalties will go to support Duke’s Center for the Study of the Public Domain.

This comic is not just about music.  It is about musical borrowing, and the attempts to forbid or prevent it.  Again and again there have been attempts to police music; to restrict borrowing and cultural cross-fertilization. But music builds on itself.  To those who think that mash-ups and sampling started with YouTube or the DJ’s turntables, it might be shocking to find that musicians have been borrowing – extensively borrowing – from each other since music began. Then why try to stop that process? The reasons varied. Philosophy, religion, politics, race – again and again, race – and law. And because music affects us so deeply, those struggles were passionate ones. They still are.

The history in this book runs from Plato to Blurred Lines and beyond. You will read about the Holy Roman Empire’s attempts to standardize religious music with the first great musical technology (notation) and the inevitable backfire of that attempt. You will read about troubadours and church composers, swapping tunes (and remarkably profane lyrics), changing both religion and music in the process. You will see diatribes against jazz for corrupting musical culture, against rock and roll for breaching the color-line. You will learn about the lawsuits that, surprisingly, shaped rap. You will read the story of some of music’s iconoclasts—from Handel and Beethoven to Robert JohnsonChuck BerryLittle RichardRay Charles, the British Invasion and Public Enemy.

To understand this history fully, one has to roam wider still – into musical technologies from notation to the sample deck, aesthetics, the incentive systems that got musicians paid, and law’s 250 year struggle to assimilate music, without destroying it in the process. Would jazz, soul or rock and roll be legal if they were reinvented today? We are not sure.  Which as you will read, is profoundly worrying because today, more than ever, we need the arts.

All of this makes up our story. It is assuredly not the only history of music.  But it is definitely a part – a fascinating part – of that history. We hope you like it.

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: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2733780.

July 1, 2016

Faculty Scholarship: Legal Studies Research Paper Series, Vol. 18, No. 3

Faculty members at UC Davis School of Law publish truly unique scholarship that advances the legal profession. You can view their scholarly works via the Social Science Research Network (SSRN) Legal Scholarship Network. An archive can be found on this web page.

What follows here is the most recent collection of papers.

"The Racist Algorithm?" 
Michigan Law Review (2017 Forthcoming)
UC Davis Legal Studies Research Paper No. 498

ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu

Are we on the verge of an apartheid by algorithm? Will the age of big data lead to decisions that unfairly favor one race over others, or men over women? At the dawn of the Information Age, legal scholars are sounding warnings about the ubiquity of automated algorithms that increasingly govern our lives. In his new book, The Black Box Society: The Hidden Algorithms Behind Money and Information, Frank Pasquale forcefully argues that human beings are increasingly relying on computerized algorithms that make decisions about what information we receive, how much we can borrow, where we go for dinner, or even whom we date. Pasquale's central claim is that these algorithms will mask invidious discrimination, undermining democracy and worsening inequality. In this review, I rebut this prominent claim. I argue that any fair assessment of algorithms must be made against their alternative. Algorithms are certainly obscure and mysterious, but often no more so than the committees or individuals they replace. The ultimate black box is the human mind. Relying on contemporary theories of unconscious discrimination, I show that the consciously racist or sexist algorithm is less likely than the consciously or unconsciously racist or sexist human decision-maker it replaces. The principal problem of algorithmic discrimination lies elsewhere, in a process I label viral discrimination: algorithms trained or operated on a world pervaded by discriminatory effects are likely to reproduce that discrimination.

I argue that the solution to this problem lies in a kind of algorithmic affirmative action. This would require training algorithms on data that includes diverse communities and continually assessing the results for disparate impacts. Instead of insisting on race or gender neutrality and blindness, this would require decision-makers to approach algorithmic design and assessment in a race and gender conscious manner.

"Marriage Equality and its Relationship to Family Law" 
129 Harv. L. Rev. F. 197 (2016)
UC Davis Legal Studies Research Paper No. 499

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu

This Essay is a Response to Professor Douglas NeJaime's article Marriage Equality and the New Parenthood. NeJaime's piece offers critical new insights into the evolution of legal parenthood and its relationship to marriage. First, NeJaime shows how evolving protections for nonbiological parents served as stepping stones in the march toward marriage equality. Surprisingly, few scholars have acknowledged, much less carefully explored, this connection. Second, NeJaime uses his meticulous parentage case study to complicate our understanding of the extent to which this earlier parentage advocacy directly challenged marriage's privileged role in our society. Finally, NeJaime argues that this history suggests more progressive possibilities with regard to the future legal treatment of nonmarital children post-Obergefell.

After highlighting these three key contributions, this Essay makes two additional points. First, this Essay considers why this important story about parentage law and its relationship to marriage equality has attracted less attention than it deserves. Second, this Essay considers a critical possibility not addressed by NeJaime. NeJaime uses parentage law to show how Obergefell might facilitate, rather than foreclose, additional protections for nonmarital children. This Essay posits an even more radical proposition: it argues that marriage equality might open up progressive possibilities not just for nonmarital children, but also for nonmarital adult relationships.

"Preliminary Injunctive Regulation" 
Arizona Law Review, Vol. 58 (Forthcoming)
UC Davis Legal Studies Research Paper No. 497

ALBERT LIN, University of California, Davis - School of Law
Email: aclin@ucdavis.edu

Rapid technological changes pose serious challenges for the Environmental Protection Agency (EPA) and other regulators charged with protecting human health and the environment. These changes can result not only in significant harms, but also in the entrenchment of new technologies that can be difficult to undo should the need arise. In urgent circumstances, agencies often must act quickly, but they face an increasingly ossified rulemaking process. The Administrative Procedure Act's good cause exception to notice and comment rulemaking offers the most promising option for a swift and effective response. Empirical analysis of EPA's use of that exception demonstrates that, contrary to concerns regarding potential agency abuse, EPA has exercised restraint in invoking the exception. Going forward, EPA should consider more aggressive use of the exception to respond to urgencies resulting from rapid technological developments and environmental changes. In justifying an expedited approach, EPA can make explicit reference to congressional inaction on an issue, the generally protracted nature of contemporary rulemaking, and the particular delays that the agency has encountered in ordinary rulemaking.

"Interstitial Citizenship" 
Fordham Law Review, 2017 Forthcoming
UC Davis Legal Studies Research Paper No. 496

ROSE CUISON VILLAZOR, University of California, Davis
Email: rcvillazor@ucdavis.edu

We think of American citizenship as a binary concept. There is citizenship, which is acquired at birth or through naturalization, and there is non-citizenship accounting for everyone else. I argue that this understanding is woefully incomplete. Conventional framing of citizenship has overlooked a different type of political membership: American national status. American nationals possess some rights of citizenship, such as the right to enter and reside in the United States without a visa. Similar to non-citizens, however, they cannot vote or serve on the jury. Thus, the status of American nationals reveals that there are individuals who are neither citizens nor nor-citizens or "aliens." Instead, they have what I have coined "interstitial citizenship." Disrupting the citizen/alien binary, interstitial citizenship demonstrates that citizenship is far more flexible than previously thought. Indeed, it reveals that citizenship rights may be unbundled and conveyed to non-citizens. In this way, interstitial citizenship offers important legal and policy implications for contemporary debates on comprehensive immigration reform, including the question of whether to provide undocumented immigrants with a path to citizenship.

May 6, 2016

Faculty Scholarship: Legal Studies Research Paper Series, Vol. 18, No. 2

Faculty members at UC Davis School of Law publish truly unique scholarship that advances the legal profession. You can view their scholarly works via the Social Science Research Network (SSRN) Legal Scholarship Network. An archive can be found on this web page.

What follows here is the most recent collection of papers:

"Corporate Governance and the Indian Private Equity Model" 
National Law School of India Review, Volume 27, Issue 1
UC Davis Legal Studies Research Paper No. 484

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu

Private Equity (PE) firms have long invested in Western firms using a leveraged buyout (LBO) model, whereby they acquire a company that they can grow with the ultimate goal of either selling it to a strategic buyer or taking it public. Unable to undertake the traditional LBO model in India, PE investors in Indian firms have developed a new model. Under this Indian PE Model, PE firms typically acquire minority interests in controlled companies using a structure that is both hybridized from other Western investment models and customized for India's complex legal environment. As minority shareholders in controlled firms, PE investors in India have developed several strategies to address their governance concerns. In particular, PE investors in India have focused on solutions to address local problems through the use of agreements that govern (i) the structuring of minority investments, (ii) investor control rights, and (iii) exit strategies. Nevertheless, recent governance and regulatory difficulties highlight the continuing uncertainty surrounding the Indian PE model.

"National Data Governance in a Global Economy" 
Columbia School of International and Public Affairs Issues Brief, April 2016
UC Davis Legal Studies Research Paper No. 495

ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu

Global data flows are the lifeblood of the global economy today and of the technologies of the future. Yet, the regulation of how data is to be handled remains largely the province of national laws. How we resolve the dilemmas of global flows within a nation-state structure will impact the digital economy, free expression, privacy, security, consumer protection, and taxation. Just as we once built an architecture for cross-border flow of goods, we need to build an architecture for cross-border flow of information.

"The Charming Betsy and the Paquete Habana" 
UC Davis Legal Studies Research Paper No. 485

WILLIAM S. DODGE, University of California, Davis - School of Law
Email: wsdodge@ucdavis.edu

This chapter for the book "Landmark Cases in Public International Law" discusses two famous U.S. Supreme Court decisions - The Charming Betsy (1804) and The Paquete Habana (1900). Although written nearly one hundred years apart, each decision appears to stand for similar propositions - that international law has an important place in the law of the United States, but that U.S. domestic law should prevail in the event of conflict. What often goes unnoticed is that the Supreme Court decided these cases against the backdrop of very different understandings about international law and its relationship to U.S. domestic law.

In addition to discussing the background and significance of each case, this chapter describes three shifts in U.S. thinking about customary international law during the nineteenth century. First, the theoretical foundations of customary international law shifted away from natural law towards positivism. Second, the consent requirement for making customary international law shifted from the individual consent of each state to the consent of states generally. And third, the U.S. understanding of the relationship between international law and domestic law shifted away from monism towards dualism - away from an understanding that international law was part of U.S. law unless displaced, towards an understanding that international law was not part of U.S. law unless adopted. The Charming Betsy and The Paquete Habana are landmark cases not because they changed the course of international law in the United States but because they reveal changes in the landscape.

"Probate Lending" 
Yale Law Journal, Vol. 126, 2016
UC Davis Legal Studies Research Paper No. 492

DAVID HORTON, University of California, Davis - School of Law
Email: dohorton@ucdavis.edu
ANDREA CANN CHANDRASEKHER, University of California, Davis - School of Law
Email: achandrasekher@ucdavis.edu

One of the most controversial trends in American civil justice is litigation lending: corporations paying plaintiffs a lump sum in return for a stake in a pending lawsuit. Although causes of action were once inalienable, many jurisdictions have abandoned this bright-line prohibition, opening the door for businesses to invest in other parties' claims. Although some courts, lawmakers, and scholars applaud litigation lenders for helping wronged individuals obtain relief, others accuse them of exploiting low-income plaintiffs and increasing court congestion.

This Article reveals that a similar phenomenon has quietly emerged in the probate system. Recently, companies have started to make "probate loans": advancing funds to heirs or beneficiaries to be repaid from their interest in a court-supervised estate. The Article sheds light on this shadowy practice by empirically analyzing 594 probate administrations from a major California county. It finds that probate lending is a lucrative business. Nevertheless, it also concludes that some of the strongest rationales for banning the sale of causes of action - concerns about abusive transactions and the corrosive effect of outsiders on judicial processes - apply to transfers of inheritance rights. The Article thus suggests several ways to regulate this nascent industry.

"The Social Transmission of Racism" 
Tulsa Law Review, Vol. 51, 2016
UC Davis Legal Studies Research Paper No. 489

LISA CHIYEMI IKEMOTO, University of California, Davis - School of Law
Email: lcikemoto@law.ucdavis.edu

This essay reviews two books, Robert Wald Sussman, The Myth of Race: The Troubling Persistence of an Unscientific Idea (Harvard University Press 2014) and Osagie K. Obasogie, Blinded by Sight: Seeing Race Through the Eyes of the Blind (Stanford University Press 2014). Sussman is an anthropologist who brings his expertise to bear in tracing scientific racism through history. Obasogie is a legal scholar and sociologist who uses both qualitative data gathered through interviews with blind and sighted people and Critical Race Theory to explore racialization's dependence on the idea that race is visually obvious. Each book examines an idea that has sustained racism despite social, political and geographic change. The essay assesses each account and links the authors' analyses to judicial and legislative framings of reproductive rights and to postmodernist scholarship on race, gender and the human body.

"Computer Source Code: A Source of the Growing Controversy Over the Reliability of Automated Forensic Techniques" 
DePaul Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 487

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law
Email: EJIMWINKELRIED@ucdavis.edu

The article deals with two legal issues posed by the growing trend in the United States to automate forensic analyses.

Since World War II, we have had alarming insights into the unreliability of both eyewitness testimony and confession evidence. Those insights have prompted the criminal justice system to place greater reliance on forensic evidence. In one Rand study, the researchers found that expert testimony was presented at 86% of the trials examined. This shift to greater use of expert testimony has placed growing demands on crime laboratories. For example, the backlog of unanalyzed DNA samples has become such an acute problem that Congress was impelled to enact the DNA Backlog Elimination Act to provide funding to reduce the backlog of untested rape kits.

In both the public and private sectors, the typical response to the development of a backlog is technological automation. That has certainly held true for forensic analysis. There is now widespread automation in such areas as fingerprint examination, breath testing, and DNA analysis. The argument runs that automation holds the promise of both enhancing efficiency and improving the accuracy of the analyses proffered in court.

That promise turns on the accuracy of the source code controlling the software governing the automated techniques. The source code embeds the instructions determining which tasks the program performs, how the program performs them, and the order in which it performs the tasks. The validity of a program's source code is the most fundamental guarantee of a software program's reliability. Defense counsel have sometimes challenged the software for automated forensic techniques. Early in this century, the defense counsel attacked the software controlling automated infrared breath testing devices. Today they are challenging the software for the TrueAllele program analyzing mixed DNA samples. Those waves of cases have posed two issues: (1) whether the prosecution can lay a sufficient foundation for evidence based on an automated technique without presenting testimony about the computer source code; and (2) whether the defense has any discovery right to access to the code. Almost all the courts have answered the first question in the affirmative and the second question in the negative. In responding to the second question, the courts have reasoned that the existence of validation studies for the technique eliminates any need to scrutinize the source code and that in any event, manufacturers have an evidentiary privilege protecting the code as a trade secret. The purpose of this short article is to critically evaluate the judicial response to both questions.

On the one hand, the article argues that the courts have correctly answered the first question. More specifically, the prosecution may lay an adequate foundation by presenting testimony describing validation studies for the automated technique even if the testimony does not touch on the source code. On the other hand, the article contends that in some cases, the courts ought to accord the defense a pretrial discovery limit. The article explains the limited utility of validation studies and notes that the evidentiary privilege for trade secrets is a qualified one that can be surmounted when the party seeking discovery has a significant need for the information. The article proposes a procedure that judges can employ to resolve the tension between the defendant's need for access to the source code and the manufacturer's legitimate interest in safeguarding its valuable proprietary information.

"Beyond Surveillance: Data Control and Body Cameras" 
__ Surveillance & Society __ (2016) Forthcoming
UC Davis Legal Studies Research Paper No. 494

ELIZABETH E. JOH, University of California, Davis - School of Law
Email: eejoh@ucdavis.edu

Body cameras collect video data - lots of it - and thus many have raised questions about increased government surveillance. But if understood primarily as data collection, surveillance represents only one concern. In our big data age, "seeing, monitoring, and recording the digital footprints is quite different from sharing, releasing, revealing or publicizing the data." Body camera policies must address not only concerns about surveillance, but also data control.

"Some Thoughts on the Future of Legal Education: Why Diversity and Student Wellness Should Matter in a Time of 'Crisis'" 
Buffalo Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 488

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

Some vocal critics have loudly proclaimed that the challenges of law school economic have reached "crisis" proportions. They point to the well-known facts about recent developments in the market for law schools. Law schools have experienced a precipitous drop in applications. The global recession decimated the legal job market. To make matters worse, rising tuition has resulted in increasing debt loads for law graduates.

In light of the changes in the legal marketplace, stabilization of the budgetary picture is currently the first priority of virtually every American law school. Faculty members have been let go. Staffs reduced. Enrollment of students - and the collection of tuition revenues - have critical budgetary consequences.

Linked to the economic "crisis" facing law schools and students was deep concern with each school's relative placement in the much-watched U.S. News and World Report law school rankings. These rankings, among other things, affect admissions and enrollment, and thus budgetary bottom lines for law schools.

Much less publicized concerns with legal education involve non-financial issues. The lack of racial and other diversity of students attending law school, and ultimately entering the legal profession, and faculty, has long been a problem. In addition, today's students demand a more humane legal education and are asking for additional academic support, career and mental health counseling, experiential learning opportunities, and more. The costs of the additional services and programs have further added to budgetary pressures on law schools.

This Essay contends that law schools should strive to address the noneconomic as well as the economic problems with modern legal education. In a time of considerable change, this is a most opportune time to consider and implement deep and enduring improvements that benefit students as well as the entire legal profession.

"Welfare Queens and White Trash" 
25 Southern California Interdisciplinary Law Journal 289 (2016)
UC Davis Legal Studies Research Paper No. 486

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu

The "welfare queen" is widely recognized as a racialized construct deployed by politicians to undermine support for public benefits and the wider social safety net. Less often recognized or discussed is the flip side of the welfare queen's conflation of blackness with dependency and poverty: the conflation of whiteness with self-sufficiency, autonomy, and affluence. The welfare queen trope, along with media and scholarly depictions of socioeconomic disadvantage as a nonwhite phenomenon, deflects attention from white poverty. Yet data indicate that a majority of poor people in the United States self-identify as white.

This essay, written for the "Reframing the Welfare Queen" symposium, (re)surfaces the existence of white poverty and ponders its (in)visibility, meaning, and significance in relation to the welfare queen construct. Among other things, Pruitt suggests that the welfare queen stigmatype is not just bad for blacks, it is bad for poor whites. First, it obscures white poverty, rendering poor whites and their plight invisible. Second, to the extent we are aware of white poverty, the widespread conflation of whiteness with affluence suggests that poor whites have only themselves to blame, given the benefits widely associated with white-skin privilege.

Given the welfare queen's potency as a racialized construct, we might assume that greater awareness of white poverty would enhance public support for safety net programs because middle and upper income whites would (so the story goes) want to ameliorate white poverty, even if racial animus discourages their support for poor blacks. But Pruitt questions the soundness of this line of reasoning, which discounts the existence and potency of intraracial discrimination in assuming that society feels greater empathy with or concern for the fate of poor whites than for poor nonwhites. In fact, we have several reasons - including empirical studies - to believe that such a well of empathy is missing. A further reason for skepticism is found in a second racialized construct explored in this article: white trash.

"Tax Cannibalization and Fiscal Federalism in the United States" 
Northwestern University Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 491
UC Berkeley Public Law Research Paper No. 2750933

DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu

The current structure of U.S. federal tax law incentivizes state governments to adopt tax policies that inflict costs on the federal government, at the expense of national welfare. We label this the "tax cannibalization problem."

This article introduces the tax cannibalization problem to the law and policy literatures for the first time. This article also explains how U.S. federal tax law might be restructured so as to alleviate the tax cannibalization problem - to counteract the perverse incentives currently leading U.S. state governments to design their tax systems so as to, in effect, wastefully devour federal tax revenues.

"Stitches for Snitches: Lawyers as Whistleblowers" 
UC Davis Law Review, Forthcoming (2017)
UC Davis Legal Studies Research Paper No. 493

DENNIS J. VENTRY, University of California, Davis - School of Law
Email: djventry@ucdavis.edu

This Article challenges the prevailing wisdom that ethics rules forbid lawyers from blowing the whistle on a client's illegal conduct. While a lawyer is not free to disclose confidential information in every jurisdiction for every legal violation, the ethics rules in all jurisdictions permit disclosure of confidential information pertaining to a client's illegal activities under certain conditions. Proving the lie of the prevailing wisdom, this Article examines a high profile case in the state of New York that ruled a lawyer whistleblower violated the state's ethics rules by revealing confidential information to stop his employer-client from engaging in a tax fraud of epic proportions. The Article argues that the court undertook a deficient analysis of New York ethics rules pertaining to permissive disclosure of confidential client information. Even if the whistleblower had violated his ethical obligations, the New York False Claims Act (the statute under which he brought his action) expressly protects disclosure of confidential employer information made in furtherance of the statute. In addition to New York's statutory shield, federal courts across the country have developed a public policy exception safeguarding whistleblowers for disclosing confidential information that detects and exposes an employer's illegal conduct.

While challenging the previously unchallenged criticism of lawyer whistleblowers, this Article acknowledges the intrinsic appeal of that position. The idea of a lawyer revealing a client's transgressions - particularly for monetary awards paid under various federal and state whistleblower programs - seems unsavory and a threat to the attorney-client relationship. Nonetheless, lawyers have always had the discretion to disclose confidential information to prevent a client from committing a crime or fraud. And although the addition of financial incentives complicates the analysis, modern ethics rules extend to lawyers considerable discretion in revealing confidential client information, even if disclosure makes a lawyer eligible for financial awards.

March 29, 2016

Scholarship by Sunder and Lee among Most-Cited IP Law Articles

Scholarly works by Associate Dean and Professor Madhavi Sunder and Professor Peter Lee are among the most-cited Intellectual Property law articles, according to a new entry on the blog Written Description.


Professor Peter Lee and Associate Dean and Professor Madhavi Sunder

Sunder's article “IP3,” published in the Stanford Law Review in 2006, is listed as one of the top 25 most cited IP articles of the last decade, and the #1 top most cited International IP Article. 

Lee’s “Patent Law and the Two Cultures” published in the Yale Law Journal in 2010 is listed as one of the top 20 most cited IP articles published in the last 5 years and #8 most cited Patent Law Article of the past 5 years.

Congratulations, Professors Sunder and Lee!

February 23, 2016

Faculty Scholarship: Legal Studies Research Paper Series, Vol. 18, No. 1

Faculty members at UC Davis School of Law publish truly unique scholarship that advances the legal profession. You can view their scholarly works via the Social Science Research Network (SSRN) Legal Scholarship Network. An archive can be found on this web page.

What follows here is the most recent collection of papers:

"The One Woman Director Mandate: History and Trajectory" 
CORPORATE GOVERNANCE IN INDIA: CHANGE AND CONTINUITY (ed. Indian Institute of Corporate Affairs) (Oxford University Press, Forthcoming)
UC Davis Legal Studies Research Paper No. 472

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu

In 2013, India passed historic legislation mandating that boards of publicly listed and certain other large companies must include one woman director. The mandate, which came into effect on April 1, 2015, has the potential to vastly change the profile of Indian boards and board members. This chapter examines the history and trajectory of India's board diversity requirement. It seeks to understand the genesis and goals of this requirement, and explores some of the challenges that India has already faced and may continue to face with respect to the possible effectiveness of this requirement. The chapter then considers for the Indian context the implications of business and social science literature on gender diversity on corporate boards.

"In Defense of Content Regulation" 
UC Davis Legal Studies Research Paper No. 483

ASHUTOSH AVINASH BHAGWAT, University of California, Davis - School of Law
Email: aabhagwat@ucdavis.edu

Since at least 1972, the central tenet of free speech doctrine has been that if a law regulates speech based on its content, and the speech is not unprotected or "low value," then the law is subject to strict scrutiny and presumptively unconstitutional. Few commentators have seriously questioned this rule, on the assumption that any deviation from it threatens to unleash censorship, and is in any event unnecessary. This article questions that consensus, and identifies specific circumstances in which, it argues, the government should be permitted to discriminate based on content.

The article begins by identifying a variety of situations in which courts have regularly evaded the general presumption against content regulation, even though the speech at issue was in principle fully protected. The core insight of this article is that these evasions make sense. The corollary of the rule against content discrimination is a presumption that all (fully protected) speech should be treated as equally valuable. But this presumption itself conflicts with the Supreme Court's repeated assertions that the First Amendment values certain speech - speech relevant to democratic self-governance - above all other forms of speech. So, all speech is not equal. Moreover, there are specific circumstances in which it is profoundly irrational to treat all speech as equally valuable. The core example is physical scarcity of speech opportunities. Here, some speech must be allowed, at the expense of other speech. Why not, then, favor more over less valuable speech? Yet current doctrine forbids this choice. The article goes on to identify other specific, objectively definable situations where the presumption against content regulation should be reconsidered. It concludes by exploring, and rejecting counterarguments.

"Information Goes Global: Protecting Privacy, Security, and the New Economy in a World of Cross-Border Data Flows" 
E15Initiative. Geneva: International Centre for Trade and Sustainable Development (ICTSD) and World Economic Forum, 2015.
UC Davis Legal Studies Research Paper No. 480

USMAN AHMED, eBay Inc.
Email: uahmed2@gmail.com
ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu

This paper addresses the question of whether it is possible to balance the need for a free flow of information across borders with legitimate government concerns related to public order, consumer privacy, and security. The paper begins by highlighting the risks associated with limitations on free information flows and the policy concerns that lead to these limitations. The paper then provides an analysis of the current international regime on cross-border information flows. The authors argue that specific binding trade language promoting cross-border flows - combined with continued international cooperation - will enhance, rather than undermine, public order, national security, and privacy.

"Should Rape Shield Laws Bar Proof that the Alleged Victim Has Made Similar, Untruthful Rape Accusations in the Past?: Fair Symmetry with the Rape Sword Laws" 
Pacific Law Journal, Forthcoming
UC Davis Legal Studies Research Paper No. 478

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law
Email: EJIMWINKELRIED@ucdavis.edu

Traditionally, the common law enforced a general ban on character evidence. More specifically, the common law prohibited a proponent from introducing evidence of a person's other conduct as proof of the person's character trait and then using the trait as proof that on a particular relevant occasion, the person acted consistently with the trait. The prohibition applied to both sides in criminal as well as civil cases. Federal Rules 404-05 extend the prohibition to evidence on the historical merits, and to an extent Rules 608-09 apply the ban to evidence offered on a credibility theory. Rule 608(b) deviates from the ban by permitting cross-examination about a witness's other untruthful acts but bars extrinsic evidence of the acts.

In 1995 Congress enacted the "rape sword" statutes, Rules 413-14. The statutes carve out an exception to the traditional prohibition and allow the prosecution to introduce evidence of an accused's other sexual assaults or child molestations on a character theory to prove the accused's commission of the charged offense. The available psychological research does not warrant drawing a character inference when there is only one or a few other instances of similar conduct. However, the proponents of the statutes contend that the statutes are defensible because these prosecutions often devolve into swearing contests and the prosecution has a legitimate need for evidence to break the credibility tie by corroborating the victim's testimony that the offense occurred.

Especially since 1995, in these prosecutions the defense has attempted to introduce evidence, including extrinsic testimony, of similar, untruthful accusations by the complainant. However, the prosecution has objected that such evidence runs afoul of the prohibitions in Rules 404-05, 608, and 412, the rape shield statute. A few jurisdictions have construed these statutes as banning the defense evidence. However, many jurisdictions allow defense cross-examination about similar, untruthful accusations. Even in these jurisdictions, though, the courts ordinarily exclude extrinsic proof.

The first thesis of this article is that the courts should permit cross-examination when the defense has sufficient proof that the prior accusation was untruthful. Like prosecution evidence proffered under Rules 413-14, this evidence is logically relevant on a character reasoning theory.

Moreover, if the proponents of the rape sword statutes are correct, like the government the defense has an acute need for evidence to prevail in the swearing contest. Just as evidence of other offenses by the accused corroborates the complainant's testimony that the accused attacked him or her, evidence of the complainant's prior, untruthful accusations corroborates the accused's testimony that the complainant has fabricated the charge against the accused.

The second thesis of this article is that as a matter of policy, extrinsic evidence of the prior similar accusations should be admissible. Admittedly, Rule 608(b) purports to enunciate an absolute ban on extrinsic evidence of prior untruthful acts. However, Rule 608(b) is the only impeachment technique subject to a rigid, absolute prohibition of extrinsic evidence; and the wisdom of singling out 608(b) impeachment is questionable. Furthermore, the accused has an extraordinary need for extrinsic evidence in 413-14 cases. Women and children who are the alleged victims of these offenses are exceptionally sympathetic figures on the witness stand; and if the defense cannot disprove the alleged victim's denial on cross-examination, the cross-examination is likely to be counterproductive - the jurors may conclude that the cross-examination was a second, cruel victimization of the complainant. At least in this context, if the law is going to permit inquiry about prior, untruthful accusations, the defense ought to have the right to resort to extrinsic evidence.

The rape sword statutes impact the balance of the criminal justice system in Rule 413-14 prosecutions. To maintain the essential balance of the adversary system in these cases, Evidence law should permit the defense to introduce extrinsic evidence of the complainant's prior, similar, untruthful accusations.

"Back to the Future? Returning Discretion to Crime-Based Removal Decisions" 
New York University Law Review Online, Vol. 90, 2016, Forthcoming
UC Davis Legal Studies Research Paper No. 479

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

Jason A. Cade has powerfully advocated for returning greater discretion to the courts and agencies in making and reviewing Executive Branch decisions to remove noncitizens from the United States. His latest article, Return of the JRAD, 90 NYU L. REV. ONLINE 36 (2015), calls for a revival of a now-discarded procedural device of allowing courts sentencing noncitizen criminal defendants to make a "Judicial Recommendation Against Deportation" (JRAD) that would bar the Executive Branch from removing a noncitizen from the United States.

Congress eliminated the JRAD from the immigration laws in 1990. In calling for its comeback, Cade points to a ruling by respected federal district court judge Jack Weinstein. In United States v. Aguilar, the judge issued a sentencing order that, despite the fact that Congress abolished the JRAD a quarter century ago, resembled the old recommendations against deportation. The court thus went beyond the law on the books to advocate against the removal from the United States of a one-time, non-violent criminal offender with U.S. citizen children.

One might dismiss Judge Weinstein's recommendation as mere dicta. However, Jason Cade views the order as a much-needed sign of judicial resistance to the harsh criminal removal provisions of the immigration laws. He seeks to return discretionary authority to the courts to ensure greater proportionality and reasonableness to contemporary removal decisions.

Part I expresses full agreement with Jason Cade's conclusion in Return of the JRAD that the modern criminal removal system fails to protect against unfair removals of immigrants.

Part II adds a powerful justification to the call for the reform of the modern criminal removal system - namely, the serious concerns with the overwhelming modern racial disparities in removals, which directly flow directly from racial disparities in the operation of the modern criminal justice system in the United States. The contemporary criminal removal regime has disparate impacts on Latina/o immigrants, who today comprise the overwhelming majority of the persons deported from the United States. In fact, the modern removal system might accurately be characterized as a Latina/o removal system. The racial impacts of contemporary criminal removals alone warrant a wholesale reconsideration of criminal removals under current American immigration law.

Part III considers separation of powers concerns in the administration of the immigration laws. Jason Cade indirectly raises a critically important question concerning the branch of the federal government that is best equipped - constitutionally and politically - to curb the excesses of the modern criminal removal system. Fundamental separation of powers principles suggest that Congress should be the focus of reforms.

The challenging political question posed to reformers is how to convince Congress to dismantle the mandatory criminal removal regime that it built. As politicians frequently employ anti-immigrant themes for political gain, noncitizens with criminal convictions continue to be among the most reviled of all immigrants in American politics. Only through a political change of heart can Congress begin to restore discretion to removal decisions and better ensure that respect is afforded to the weighty human interests of immigrants, their families, and communities.

"The Law of Look and Feel" 
UC Davis Legal Studies Research Paper No. 482

PETER LEE, University of California, Davis - School of Law
Email: ptrlee@ucdavis.edu
MADHAVI SUNDER, University of California, Davis - School of Law
Email: msunder@ucdavis.edu

Design is the currency of corporations, and increasingly, under the Demsetzian logic, the subject of property claims by them. The world's biggest company owes its value largely to design. Where once Apple's claim to own its popular graphical user interface was rebuffed readily by courts, today, design-related claims lead to billion dollar judgments in Apple's favor. Today design - which includes everything from shape, color, and packaging to user interface, consumer experience, and organizational structure - plays a central role in the modern economy and is increasingly the subject of intellectual property law's attention.

But the law of design is confused and confusing. It is splintered among various doctrines in copyright, trademark and trade dress, and patent law. Indeed, while nearly every area of modern IP law has been marshalled in the service of design protection, the law has taken a siloed approach, with separate disciplines developing ad hoc rules and exceptions to design protection. 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.

This Article provides the first comprehensive assessment of the regulation of consumers' aesthetic experiences in copyright, trade dress, 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 iPhone, from the "feel of the '70s" captured in Marvin Gaye's music, the scantily clad employees of Abercrombie & Fitch, and the décor of Mexican restaurants, to Apple's technologies of "pinch to zoom," "bounce-back" and "rubberbanding." In so doing, we identify an emergent "law of look and feel" that finds unity among the diversity of IP laws protecting aesthetic experience. 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 cultural cohesion itself.

"Justice in the Hinterlands: Arkansas as a Case Study of the Rural Lawyer Shortage and Evidence-Based Solutions to Alleviate It" 
University of Arkansas at Little Rock Law Review, Vol. 37, 2015
UC Davis Legal Studies Research Paper No. 481

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu
J. CLIFF MCKINNEY, Quattlebaum, Grooms & Tull PLLC
Email: cmckinney@QGTlaw.com
BART CALHOUN, McDaniel, Richardson & Calhoun
Email: Calhoun.bart@gmail.com

In recent years, state high courts, legislatures, bar associations, and other justice system stakeholders have become aware that a shortage of lawyers afflicts many rural communities across the nation and that this dearth of lawyers has implications for access to justice. A lack of systematically collected data about precisely where lawyers are - and are not - in any given state is an obstacle to solving the problem. Another impediment is a lack of information about why lawyers are choosing not to practice in rural locales and about the sorts of incentives that might entice them to do so.

A principal aim of this article and the empirical work that informs it is to begin to develop evidence that will inform solutions to the rural lawyer shortage. In that regard, the article, written for the UALR Bowen "Access to Justice" symposium, makes two significant contributions. The first is to literally map where Arkansas lawyers are and then to look for trends and patterns regarding the least-served communities. The second is to survey law students and attorneys to determine their attitudes toward rural practice and rural living more generally, while also assessing openness to specific opportunities and incentives aimed at attracting lawyers to underserved communities.

We focused our analysis on Arkansas's 25 least populous counties, which we refer to as the "Rural Counties." All except one of these counties has a population of less than 15,000. Collectively, the Rural Counties are home to some 255,000 residents but fewer than 200 total lawyers, less than half of whom accept clients for representation, as signified by having an IOLTA Account. Representing a third of the state's 75 counties, the Rural Counties lie in clusters in each of the state's four quadrants, and most are relatively distant from state and regional population centers. Among these counties, we found no clear correlation between high poverty and low ratios of attorneys to population. As a general rule, the Rural Counties that are farthest from a metropolitan area have the most acute attorney shortages, although several counties in the Mississippi Delta stood out as exceptions. Not surprisingly, the attorney population in Arkansas's Rural Counties is an aging one. We also found that many other nonmetropolitan counties - those with populations somewhat larger than the Rural Counties - have poor attorney-to-population ratios, suggesting that attorney shortages are on the horizon there, too.

Meanwhile, Arkansas's attorneys tend to be highly concentrated in the state's population centers, with particular overrepresentation in Pulaski County (the state's most populous county and home to state capital Little Rock) and two contiguous central Arkansas counties: 48% of the state's attorneys are a mismatch for just 21% of the state's population in those three counties. The state's second and third most populous counties, Benton and Washington, in the state's booming northwest corridor, have attorney populations more commensurate with their populations.

Our survey of students at the state's two law schools revealed few student respondents who grew up in or had spent much time in Arkansas's Rural Counties or in similarly low-population counties in other states. Further, only a handful of students indicate that they plan to practice in the state's nonmetropolitan areas, let alone the Rural Counties specifically. Nevertheless, many students - particularly among those who grew up in the Rural Counties - expressed openness to working in these counties if given specific opportunities and incentives to do so. When asked about what deterred them from pursuing rural practice, the most dominant theme was concern about economic viability; a lack of cultural and other amenities associated with urban living was a close second. Some students also expressed concern about the greater challenge of finding a life partner in rural places. A number of students expressed very negative attitudes toward rural people, places and practice. Recurring themes included an expectation of rural bias toward racial and sexual minorities and women; concerns about lack of anonymity in the community and lack of professionalism in the justice system; and a shortage of clients able to afford an attorney's services. Still, a critical mass - certainly enough to meet the need in Arkansas's rural communities - indicated willingness to practice in a rural locale if provided fiscal and professional supports, e.g., student loan repayment assistance, mentoring, training in law practice management. When the few students who indicated their intent to practice in a rural area were asked about what they found appealing about such a prospect, the most common theme was autonomy - the ability to have one's own practice and to develop and maintain local clientele.

Respondents to the lawyer survey were generally less negative about rural practice than their law student counterparts. On the whole, most attorneys expressed contentment with their practice location, whether rural or urban. One surprise among the lawyer survey results was that employment opportunities for spouses were less important than we anticipated, perhaps because urban lawyers - the vast majority of survey respondents - take these for granted.

We close with suggested reforms for Arkansas's institutional stakeholders. Among other actions, we suggest that Arkansas follow the lead of South Dakota and offer loan repayment assistance to attorneys who are willing to make a multi-year commitment to practice in an underserved rural area. This incentive has proved popular in South Dakota, which has doubled the size of its program in just two years in response to a high degree of attorney interest. Our survey results give us every reason to believe that such a program, as well as other interventions to bolster the rural lawyer population in Arkansas, could be just as successful. In any event, we anticipate that our efforts to document in detail the rural attorney shortage in Arkansas will provide an incentive - and, we hope, a model - for other states wishing to better understand and alleviate their rural access-to-justice deficits.

"How Litigants Evaluate the Characteristics of Legal Procedures: A Multi-Court Empirical Study" 
UC Davis Law Review, Vol. 49, 2016
UC Davis Legal Studies Research Paper No. 477

DONNA SHESTOWSKY, University of California, Davis - School of Law
Email: dshest@ucdavis.edu

This Article presents findings from the first multi-court field study examining how civil litigants evaluate the characteristics of legal procedures shortly after their cases are filed in state court. Analyses revealed that litigants evaluated the characteristics in terms of control - i.e., whether the characteristics granted relative control to the litigants themselves or to third parties (e.g., mediators, judges). Although the litigants indicated a desire to be present for the resolution process, they preferred third-party control to litigant control. They also wanted third parties to control the process more than the outcome. Gender, age group, and case-type significantly predicted attraction to third-party control, whereas attraction to litigant control was predicted by whether litigants had a pre-existing relationship with each other, how much they valued a future relationship with the opposing party, party type, the type of opposing party, and court location. Implications for legal policy and lawyering are discussed.

December 3, 2015

A "Harry Potter" Copyright Review Session

Copyright law both incentivizes creative works, such as the bestselling J.K. Rowling "Harry Potter" series, and also governs what fans can do with the works that they grow to love and know so well. Are the handmade Harry Potter-inspired jewelry, t-shirts, and Hogwarts robes for sale on the popular website ETSY.com illegal? What about a Girls Scouts Harry Potter-themed summer camp? What is ETSY's liability for the copyright infringement of the do-it-yourself fan-artists who share and sell their wares on the site?

My copyright course ended today with a final lecture on "fair use" and a Harry Potter-themed review session. I served "butterbeer" to the students (no alcohol, just lots of sugar!). Now the students are ready to confront issues of copyright in a digital age and the rights of users to command the tools of Web 2.0 to share their own views on the cultural works that help form our identities and communities. As I argue in my Yale University Press book, From Goods to a Good Life: Intellectual Property and Global Justice (2012), "It is precisely because culture is so influential in shaping our world and our selves that individual rights to debate it and participate in its remaking are imperative."


Raj as "Mad Eye" Moody, and me as Harry Potter

It was great to see the students dressed up as their favorite characters -- including Raj Pai, chair of the King Hall Intellectual Property Law Association (KHIPLA), as Professor "Mad Eye" Moody!

 

November 9, 2015

Business Law Journal Symposium on Corporate Data Breaches

At UC Davis School of Law, students and faculty work together to organize some amazing events. 

Last Friday, I had the pleasurable opportunity to provide a welcome to this year's UC Davis's Business Law Journal symposium on "Corporate Data Breaches: What Companies Can Learn from Recent High Profile Attacks."  The symposium examined the new challenges in the increasing numbers of major corporate data breaches.  The Journal brought together a group of the nation's leading professors and lawyers, with diverse expertise, all of whom are well-versed on corporate data breaches.    

We are proud of our business law faculty curriculum at UC Davis School of Law and have had a tradition of excellence in the field.  Professors Anupam Chander and John Hunt participated in the event.  I would be remiss if I did not give a special thanks to Professor John Hunt and law students Lauren Woods, Michel Wigney, and James Swearingen for their hard work in planning this symposium. 

The keynote speaker was Justin Cain, the California Cybersecurity Coordinator for the California Governor's Office of Emergency Services.   Justin is part of the California Cybersecurity Task Force, a statewide partnership comprised of key stakeholders, subject matter experts, and cybersecurity professionals from the public sector, private industry, academia, and law enforcement who are all working to advance and strengthen California's cybersecurity.