2018 was a big year for “bad agents” in the publishing world. In July, children’s literature agent Danielle Smith was exposed for lying to her clients about submissions and publication offers. In December, major literary agency Donadio & Olson, which represented a number of bestselling authors, including Chuck Palahnuik (Fight Club), filed for bankruptcy in the wake of an accounting scandal involving their bookkeeper, Darin Webb. Webb had embezzled over $3 million of client funds. Around the same time, Australian literary agent Selwa Anthony lost a battle in the New South Wales Supreme Court involving royalties she owed to her ex-client, international best-selling author, Kate Morton (The Lake House, The Shifting Fog). These are not the only literary agent scandals that have rocked the publishing world in recent years. However, litigation involving these agents is the exception rather than the rule, possibly because of a lack of knowledge by many authors, even famous authors, of their legal rights, or because the money made (or lost) by a number of authors isn’t worth the costs of litigation. The lack of legal precedent on the literary agent/author relationship can also lead to confusion about what the legal rights between the two parties entail. This article analyzes the existing case law in the area, with a particular emphasis on teasing out the nature of fiduciary, contractual, and tortious duties owed by agents to authors. Recent cases suggest that, although literary agents are unquestionably fiduciaries, this characterization is of little practical importance, and that most of the obligations owed by agents to authors can more easily be explained and addressed as a matter of contract and tort law. To the extent that fiduciary duties have any significant work to do here, it seems to be in the “effective communication” area rather than in the more fundamental aspects of the relationship, like making deals and promoting the financial and reputational interests of the author.
Innovations in legal technology are revolutionizing access to justice for individuals who previously had little or no ability to obtain legal assistance. This Article explores how the lack of culturally competent designs within legal technology negatively impacts diverse communities, thereby hindering the ability to expand access to justice. An examination of the underlying theories of access to justice and cultural competency illustrates why it is necessary for legal professionals and technology designers to incorporate culturally competent designs when developing legal technology. In light of ongoing changes in United States’ demographics, and the heightened need to provide access to justice given the current political climate, this Article uses the example of the Latinx community to illustrate how culture impacts the effectiveness of legal technology. Applying cross- cultural competence theory to legal technology allows for the identification of potential risks and provides a critical point of view from which to generate design principles that will increase access to justice for all.
The practice of placenta encapsulation is rapidly growing. It typically involves post-partum mothers consuming their placentas as pills in the months after childbirth. The perceived benefits include improved mood and energy, reduced bleeding and pain, and greater milk supply. But these effects are unproven, and consumption comes with health risks. The rise of this trend has sparked a vigorous debate in the recent medical literature, but this Article is the first to consider the legal implications of placenta encapsulation. This Article examines whether FDA should regulate encapsulated placenta, and if so, whether it should be regulated as a drug, supplement, or human tissue. Because the product does not fit neatly into any of FDA’s predetermined categories, the Article explores the optimal regulatory categorization from a policy and gender perspective. It concludes that FDA should regulate encapsulated placenta as both a supplement and particular type of low-risk human tissue. The regulations associated with these categories will sufficiently protect women without creating such high entry barriers that the product would effectively (and paternalistically) disappear from the market.
Pressured by directives from the Obama Department of Education (DOE), colleges and universities across the country hastily revamped their processes of adjudicating sexual assault, making it easier to bring, and prove, charges of sexual misconduct on campus. These changes have generated substantial concern on behalf of accused students. The Department of Education (under Secretary Betsy DeVos) has responded by proposing new Title IX regulations that would substantially amend the Obama-era guidance in the name of fairness and due process. What constitutes fair process in this context, and do the new DOE rules meet that standard? It can be difficult to see through the fog of political ideology on this topic. But the central issues are actually quite clear. This Article explains why. It also develops a model for fairness-based procedure in the context of college- and university-based sexual misconduct cases, and assesses DOE’s proposed reforms under that model. I conclude that the reforms, though not perfect, would go a long way toward restoring fairness to the process of adjudicating sexual assault on campus.
In less than a calendar year, initial coin offerings or “ICOs” have become the fastest growing capital market in the world. In 2016, an entity called The DAO raised $160 million by selling crypto-tokens to over 15,000 individual purchasers around the globe. This massive fund raise would give rise to an entirely new capital ecosystem. In 2017, initial coin offerings would explode, raising a collective $3.5 billion in just the first three quarters of the year. All of this was done without a single registration being filed with the SEC, and many of these initial coin offerings — including several $100 million raises — were based on little more than a white paper and few lines of sample code. Welcome to the new Digital Wild West. With the seemingly overnight success of this new funding mechanism, there is little if any legal scholarship addressing initial coin offerings and how, or if, such offerings should be regulated. This article provides a non-technical legal audience with a foundational understanding of how the blockchain works, and the role initial coin offerings play in this new economic ecosystem. The overarching thesis of the article is that our current securities law framework, a framework that dates to the days of the great depression, is ill-equipped to handle this new world of decentralized, global, pseudonymous fund raises on public blockchains. Instead, governmental regulators should be working with core development teams to build a regulatory framework that integrates investor protections directly into the computer code governing these systems. By embracing “code as law,” both regulators and core development teams can protect the innovation being funded by initial coin offerings, while at the same time injecting some much needed investor protections into this new ecosystem. This article begins with an introduction to the coming decentralized world, including an overview of both public blockchain technology as well the Ethereum platform, the primary public blockchain upon which initial coin offerings are being deployed. Central to this introduction is an explanation of how the decentralization and disintermediation brought by the blockchain has the potential to dramatically reshape our economic and social systems. Next, the article explores the recent explosion of initial coin offerings, discussing how these offerings are structured, and how this new funding mechanism, if developed properly, has the promise of democratizing opportunities for economic innovation. The article then examines the SEC’s early statements on initial coin offerings to illustrate the potential problems with applying a dated legal framework to this new technology. Finally, the article concludes that the traditional securities law framework is ill suited for the coming decentralized world because the SEC’s enforcement power over global blockchain platforms is limited. Recognizing that external legal frameworks cannot be forced upon public blockchain platforms, the article argues for a collaborative process where governmental regulators work with core development teams to build a regulatory framework into the very fabric of these platforms, thereby providing investors protection, while at the same time embracing the concept of code as law.
Emoji are widely perceived as a whimsical, humorous or affectionate adjunct to online communications. We are discovering, however, that they are much more: they hold a complex socio-cultural history and perform a role in social media analogous to non-verbal behaviour in offline speech. This paper suggests emoji are the seminal workings of a nuanced, rebus-type language, one serving to inject emotion, creativity, ambiguity – in other words ‘humanity’ - into computer mediated communications. That perspective challenges doctrinal and procedural requirements of our legal systems, particularly as they relate to such requisites for establishing guilt or fault as intent, foreseeability, consensus, and liability when things go awry. This paper asks: are we prepared as a society to expand constitutional protections to the casual, unmediated ‘low value’ speech of emoji? It identifies four interpretative challenges posed by emoji for the judiciary or other conflict resolution specialists, characterizing them as technical, contextual, graphic, and personal. Through a qualitative review of a sampling of cases from American and European jurisdictions, we examine emoji in criminal, tort and contract law contexts and find they are progressively recognized, not as joke or ornament, but as the first step in non-verbal digital literacy with potential evidentiary legitimacy to humanize and give contour to interpersonal communications. The paper proposes a separate space in which to shape law reform using low speech theory to identify how we envision their legal status and constitutional protection.
This Article explores the weakened foundations of plenary power as a coherent doctrine in immigration, and asserts that a continued if limited role for the doctrine exists in the national security context. With reference to recent litigation over the Trump travel bans, the Article calls for a two-tiered level of review of challenged immigration action: 1) a searching evidentiary inquiry regarding the central motivation behind the action, and 2) a more deferential inquiry into the action's constitutionality when the action was driven primarily by national security interests.
This Article represents a polemic against the most harmful aspects of the policing status quo. At its core, the work asserts the right of civilians to defend against unlawful deadly police conduct. It argues that existing gun and self-defense laws provide a practical and principled basis for curbing police misconduct. It also examines legislative trends in gun laws to show that much of most recent liberalizing of gun rights is a direct response to self-defense concerns sparked by mass public shootings. The expansion of gun rights and self-defense comes at a time when ongoing police killings of Black civilians menace public opinion of the police and killings that result from ambush-style execution of a warrant. This Article posits that expanded gun rights and self-defense law can lead to greater police accountability such that civilians are empowered in the streets, in their homes, and in courts, with knowledge of their rights against police. The central thrust of the work is that expanded lawful gun possession by educated carriers increases the potential for legal gun possessors and carriers to intervene — not only to prevent mass killings, but also to counter unlawful bodily harm by police. Hence, this Article contemplates how existing law can be used to achieve more just outcomes, underscores that gun rights are at the core a self-defense issue, and maintains that sometimes police are the trigger for the use of self-defense.
Concerns about the interrogation process and the ability of minors to navigate the criminal justice system often intersect. The impact of the age of juveniles can be seen in a variety of judicial decisions, most markedly those dealing with punishment. But judicial concern for juveniles goes well beyond sentencing. The interrogation process raises especially grave fears. Since the Supreme Court issued its landmark ruling in Miranda v. Arizona disallowing compelled inculpatory statements by criminal suspects and defendants, there has been concern as to whether juveniles fully understand and appreciate their rights as articulated in Miranda and based in the Fifth Amendment to the United States Constitution. This Article examines the way a defendant’s age is factored into a court’s review of how the defendant understood his or her rights during the criminal justice process. This Article specifically reviews this question as it concerns a juvenile defendant’s waiver of rights, behavior during interrogation, requests for counsel and other entitlements, custodial status as mandated by Miranda, and his or her general receipt of the Miranda warning. This Article also examines the holding and application of another Supreme Court decision, J.D.B. v. North Carolina, in which the Court articulated the parameters surrounding when age must be considered in making Miranda custody determinations.
This article examines a diverse body of laws and regulations speaking to reproductive rights, healthcare, criminal punishment of drug use, termination of parental rights, and more in order to unearth the rules of maternity: guidance provided both obliquely and explicitly by the law’s coercive power telling women both how and who should mother. Rule 1 begins in pregnancy, with the message that “your body is your child’s vessel.” Every choice that a pregnant woman makes becomes a source of potential harm to her child, and thus of potential punishment through both civil and criminal law. Rule 2 explains one way women should attempt to avoid such liability, by following the maxim that “doctor knows best.” To question medical authority or have preferences other than following doctor’s orders is to needlessly risk the health of a pregnancy or a child, and is evidence of bad mothering. After the child’s birth, the mother remains responsible for the people who enter a child’s life, leading to rule 3, “the buck stops with you.” Rule 4 provides examples of the tightropes that mothers must walk: be nurturing, but not too nurturing. Breastfeed, but not for too long. Be protective, but not overprotective. “Damned if you do, damned if you don’t.” Finally, the rules of maternity create an aspirational maternity, one that excludes women deemed undesirable as mothers, because of class, race, past actions, and so on. Rule 5 specifies that “only some women need apply” for motherhood; women who have already been judged as bad mothers should not be legally permitted to reproduce.
INTRODUCTION..................................................................................... 754 I. BICYCLING IS GOOD FOR SOCIETY......................................... 757 A. Cycling as an Anti-Poverty Initiative............................. 758 B. Cycling as an Antidote for Traffic Congestion .............. 760 C. Public Health ................................................................... 761 D. Youth Empowerment ...................................................... 762 E. Environmental Concerns ................................................ 763 II. HOW DID WE GET TO BE SO AUTOMOBILE ORIENTED IN THE UNITED STATES? .................................................................... 765 III. WHAT WE CAN LEARN FROM MORE BICYCLE-FRIENDLY SOCIETIES .............................................................................. 768 A. Going Dutch: The Netherlands Experience ................... 769 B. Idaho’s Bicycle Laws ...................................................... 773 IV. VICTIM BLAMING AND MORE: THE INEXPLICABLE HOSTILITY TO CYCLISTS AND CYCLING AND THE TRAGIC CONSEQUENCES OF THIS APPROACH ................................................................ 775 A. Hostility to Cyclists and Cycling in State Legislatures 779 B. The Helmet Myth ............................................................ 781 C. Double Standards in Policing ....................................... 786 V. WHAT NEEDS TO CHANGE IN THE LEGAL REALM? ............... 791 A. Liability Rules for Car-on-Cyclist Accidents ................ 792 B. The Rules for When Cyclists Should Have to Comply with Laws and Traffic Control Measures Designed for Cars ................................................................................. 795 C. Other Rules that Burden or Otherwise Impose Costs on Bicycle Transportation ................................................... 797 D. Enforcement of Existing Laws that Protect Cyclists and Better Training for Law Enforcement ........................... 798 E. Driver Training .............................................................. 800
The concept of economic coercion — that a relationship or transaction can be economically exploited for the benefit of some over others — is elaborated at the intersection of economic theory and economic realities, moral and political understandings of freedom, jurisprudence and the lived application of the law to facts. As a category of criminal and civil wrong, it has been directly and indirectly adjudicated in a breathtaking array of contexts of private and public ordering. Theories of economic coercion are decisive in drawing the line between what constitutes labor market competition and forced labor, which federal programs constitutionally encourage state action and which unconstitutionally commandeer it, and whether theft of natural resources violates international criminal law. But what informs legal theories and conceptualizations of economic coercion? How are economic theories and theories of freedom written into the law through assessments of economic coercion? How is economic coercive “force” understood? Despite the central significance of the category of economic coercion in the judicial regulation of society, no single scholarly account provides a comprehensive assessment of the evolution and scope of the concept in law. Nor have contemporary theorists of economic rights adequately dealt with it. Attempting the first broad, theoretical overview of its kind, this Article draws from the strengths and limitations of three competing philosophical and legal accounts of economic coercion in order to elaborate a more robust conceptualization of economic coercion, but also to integrate economic coercion claims within the broader evolution and theorization of economic rights. Part I evaluates philosophical theories of coercion in public and private law to hone a minimal set of requirements for a theory of economic coercion. Part II then evaluates legal accounts of coercion — specifically, the extensive analysis of mutual coercion in the Legal Realist tradition — to supplement those requirements and elaborate a model for incorporating background conditions and distributional concerns. After outlining the strengths and deficiencies of these existing accounts, Part III turns to a third framework for conceptualizing economic coercion within the international economic rights tradition. It highlights its strengths in attending to systemic economic coercion and establishing a framework for protecting economic rights as well as its limitations in enforcing those rights through the progressive realization model. Drawing from each of these accounts, Part IV proposes that rights against economic coercion be viewed as relational and distributional rights critical to the enforcement of economic rights protections. It argues for the benefits of integrating economic coercion claims so understood within an economic rights framework, moving beyond both liberty-focused and progressive realization models of coercion towards a model of benchmarking protections from coercion in horizontal, or private law, adjudication.
Patent law — and in particular the law governing patent eligibility — is in a state of crisis. This crisis is one of profound confusion. Confusion exists because the current approach to determining patent eligibility confuses the relevant policies underlying numerous discrete patent law doctrines, and because the current approach lacks administrability. Ironically, the result of all this confusion is seemingly clear: the result seems to be that, when challenged, patent applications and issued patents probably do not satisfy the requirement of eligibility. At least that is the perception. A resulting concern, therefore, is that the current environment substantially reduces incentives to invest in research and development. Given this confusion, lack of administrability, and risk of under-investment in research and development, the time has come for Congress to amend the patent statute. In this Article, I lay the groundwork for an analysis of potential amendments to the patent statute by examining the root causes of the current confusion in this area of patent law. This groundwork is essential to resolving the present crisis.
The current approach to “reverse payment” settlements of drug patent litigation seeks to preclude only those settlements guaranteed to harm consumers, rather than all that could harm them. Antitrust tolerates the possibility of harm in order to give firms the freedom to make settlements that might benefit consumers, relative to what courts would achieve under patent law. Antitrust’s mission is not, however, to improve upon outcomes under patent law, but rather to prevent harm to consumers. Accordingly, antitrust must minimize the possibility of harm, even if that precludes the chance of gain. I show that a ban on all settlements that fix a date of entry, regardless of the existence of a reverse payment or the number of generic challengers, is the best way to do that.
In 2014, the Department of Education's Office for Civil Rights published data for the first time that tracked preschool suspension and expulsion rates. The data was startling: not only were preschoolers being suspended and expelled, something that surprised many readers on its own, they were being suspended and expelled in racially disproportionate numbers, with African-American boys bearing the brunt of the discipline. Politicians, researchers and advocates quickly spoke out, noting that these numbers confirmed that the school to prison pipeline really starts in preschool, and callingfor reform. In this Article, I explore some of the policies and practices that have led to preschoolexpulsions, includingzero tolerancepolicies and the challenging behavior of preschoolers, and also offer theories on what might have led to their racially disproportionateuse, including unconscious bias on the part of teachers and administrators.I also examine the tragic impact these disciplinaryprocedurescan have on students and their families. I next examine the long odds for success that most legal challenges to racially disproportionate preschool expulsions and suspensions will face, due mostly to judicially imposed requirements that plaintiffs establish racially discriminatory intent, not just disparate outcomes. Finally, I sketch the contours of what a successful policy-based solution might look like, and how best practices from existing research and programs might be utilized to create meaningful change.
