INTELLECTUAL PROPERTY’S NEGATIVE SPACE: BEYOND THE UTILITARIAN
Elizabeth L. Rosenblatt
A growing body of scholarship addresses intellectual property’s “negative spaces”: areas in which creation and innovation thrive without significant formal protection from intellectual property law. A number of negative space scholars have used case studies to examine the relationship between negative spaces and economic incentives for creation and innovation. But for a full understanding of intellectual property law, and particularly its negative spaces, we must go beyond utilitarianism. This means exploring negative spaces not only as they relate to incentive and efficiency considerations, but also as they relate to conceptions of intellectual property based on labor-desert, personality, and distributive justice theories.
DISCLOSING CORPORATE DISCLOSURE POLICIES
Between Steve Jobs’ diagnosis of pancreatic cancer in 2003 and his death in 2011, Apple struggled to respect the privacy of its CEO while disclosing relevant information to its shareholders. The existing rules that govern corporate disclosure were of little help. They offer no mechanism for taking into account privacy considerations; nor do they provide any clear guidance regarding whether, when, and under what circumstances a corporation must disclose personal information about its executives. Existing privacy laws also fail to comprehensively address this problem. This legal void has created widespread uncertainty for executives, corporations, and shareholders. Scholars have also struggled to identify solutions that appropriately account for both privacy and disclosure. Their attempts have been hindered by the difficulty of estimating the respective values of disclosure to investors and of privacy to executives, especially to the extent that the value of privacy varies widely across individuals and depends on the type of personal information.
FOR THE SAKE OF ARGUMENT: A BEHAVIORAL ANALYSIS OF WHETHER AND HOW LEGAL ARGUMENT MATTERS IN DECISIONMAKING
Brian Sheppard, Andrew Moshirnia
The belief that legal argument makes a difference to the resolution of legal disputes is one of the most fundamental tenets of the American legal system. Despite its importance, few have empirically examined whether and how legal argument matters to the adjudication of a dispute. In this article, we discuss our design and implementation of a new behavioral experiment that allows us to observe some of the effects of legal argument in the simulated judicial resolution of a politically divisive case. Our subjects, recent law school graduates and law students, acted as judges in such a case.
DISSENTING FROM WITHIN: WHY AND HOW PUBLIC OFFICIALS RESIST THE LAW
This Article examines why and how public officials consciously resist the laws and policies they are in charge of implementing. The Article argues that this phenomenon is not an anomaly, but rather pervasive and unavoidable. It occurs in all government institutions and is facilitated by the same structures that are designed to promote compliance.
The Article attempts to uncover the causes which render official resistance possible, arguing that resistance can be traced both to the limits inherent in the rule of law and to problems of institutional design. It then explores the strategies officials deploy to effectuate their resistance, ranging from blatant defiance to outsourcing resistance to private actors; from immunizing actions from judicial review to ordinary acts of interpretation and administrative prioritization.
The Article then turns to discuss the normative implications official resistance generates. While official resistance is often portrayed as undermining law, and therefore undesirable, such a position is simplistic and ignores the benefits it entails, in particular those for triggering public discourse, unblocking political channels, and policy change. The Article also considers the ways in which official resistance can contribute to more just outcomes and more efficient regulatory arrangements. This counterintuitive conclusion should lead us to reexamine our notions of the rule of law, compliance, and obedience. Consequently, the Article advances a more nuanced approach and suggests how to take resistance into account in the ex ante design of laws and policies and in the ex post application of enforcement and monitoring measures.
PRE-ACCUSATION DELAY: AN ISSUE RIPE FOR ADJUDICATION BY THE UNITED STATES SUPREME COURT
Imagine you are arrested and formally charged with a crime you did not commit, or a crime for which you had a good defense at the time of the offense and for some time thereafter. The police chose to arrest and charge you the day before the five-year statute of limitations was set to run. You had no idea you were even being investigated up until the time of your arrest. Because of the lapse in time prior to your arrest, your ability to defend yourself from the charges brought against you has been severely hampered. Perhaps you had alibi witnesses or eyewitnesses that you could have called at trial to support your case if the prosecution had formally charged you at an earlier time—witnesses whose testimony would have all but confirmed your innocence. Due to the five years that passed, however, those witnesses are either deceased, cannot be found, or cannot remember anything from that far back. You have no other witnesses that you can call to support your defense and rebut the prosecution’s case.
THE CONSUMER FINANCIAL PROTECTION BUREAU: THE SOLUTION OR THE PROBLEM?
Brenden D. Soucy
In 2010, President Barack Obama signed the Consumer Financial Protection Act into law as a part of the Dodd-Frank Act. This Act created the Bureau of Consumer Financial Protection (hereinafter “CFPB”), which is an “independent bureau” that is “in the Federal Reserve System,” but is to “be considered an Executive agency.” While the CFPB is a part of the Federal Reserve System, it is subject to very little oversight from the Federal Reserve. The CFPB does not report to the Board of Governors of the Federal Reserve, the Board has no power to override decisions of the CFPB, and the Board does not have appropriations authority over the CFPB.