Scholarship

The Presumption Against Extraterritoriality in Two Steps

The Presumption Against Extraterritoriality in Two Steps

For the past twenty-five years, the presumption against extraterritoriality has been the U.S. Supreme Court’s principal tool for determining the geographic scope of federal statutes. In 2010, Morrison v. National Australia Bank used the presumption to decide the scope of Section 10(b) of the Securities Exchange Act, which prohibits securities fraud. Morrison approached the question in two steps. First, it looked for a “clear indication of extraterritoriality” to rebut the presumption and found none. Second, it looked to see if application of the statute would be domestic or extraterritorial by examining the “focus” of the provision.

Plaintiffs argued that applying Section 10(b) would be domestic because the alleged fraud occurred in the United States, although they had bought their shares in Australia. The Court disagreed, holding that application of Section 10(b) would be extraterritorial because “the focus of the Exchange Act is not upon the place where the deception originated, but upon purchases and sales of securities in the United States,” and in this case the transaction occurred abroad.

The Supreme Court’s decision in RJR Nabisco, Inc. v. European Community formalizes Morrison’s approach, unanimously adopting “a two-step framework for analyzing extraterritoriality issues.” Because U.S. courts are likely to use this two-step framework going forward, it is essay examines this  new framework and evaluates it was applied to Racketeer Influenced and Corrupt Organizations Act (RICO) in RJR.

By Professor William S. Dodge, published in 110 AJIL Unbound 45 (2016)

Download the paper here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2814344

The Racist Algorithm?

The Racist Algorithm?

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.

 

In this paper, Professor Anupam Chander argues 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.

Published in 115 Michigan Law Review, 2017 (Forthcoming)

Download the paper here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2795203

Egg Freezing, Stratified Reproduction and the Logic of Not

Egg Freezing, Stratified Reproduction and the Logic of Not

This commentary examines social and political implications of social egg freezing in a market that is stratified, globalized, and part of a larger bioeconomy. John Robertson’s article and public discourse prompted by Facebook and Apple’s ‘corporate egg freezing’ benefits provide touchstones for interrogating social and industry practices that embrace making reproductive capacity marketable. Supply of the cells and bodies necessary for assisted reproductive technology use depends on market thinking and structural inequality. What the industry produces are carefully calibrated social-political distances between participants in egg freezing and banking, as well as ‘third party reproduction.’

Lisa Chiyemi Ikemoto | Egg Freezing, Stratified Reproduction and the Logic of Not, Journal of Law & Biosciences, Feb. 8, 2015

Download Link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2567448

Culture and Freedom

Culture and Freedom

Most scholarship on intellectual property considers this law from the standpoint of law and economics. Under this conventional wisdom, intellectual property is simply a tool for promoting innovative products, from iPods to R2D2. In this highly original book Madhavi Sunder calls for a richer understanding of intellectual property law’s effects on social and cultural life. Intellectual property does more than incentivize the production of more goods. This law fundamentally affects the ability of citizens to live a good life. Intellectual property law governs the abilities of human beings to make and share culture, and to profit from this enterprise in a global Knowledge economy. This book turns to social and cultural theory to more fully explore the deep connections between cultural production and human freedom.

Madhavi Sunder | Culture and Freedom, in M. Sunder, From Goods to a Good Life: Intellectual Property and Global Justice (Yale University Press, 2012)

Download Link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2061310

Free Speech

Free Speech

Cyber-law is today’s speech law. When civic engagement is increasingly mediated online, the law regulating cyberspace becomes the law regulating speech. Yet, free speech texts pay little attention to the ways that cyber-law configures what has become the principal mechanism for exercising free speech rights today — communication online. Conversely, while many have long observed that the Internet enables speech, scholars have failed to recognize the role that the First Amendment played in shaping the law of cyberspace. A First Amendment-infused legal culture that prizes speech proved an ideal environment on which to build the speech platforms that make up Web 2.0. Free speech was Silicon Valley’s killer app.

Today’s speech law is being made in the major cyber-law disputes of the day. From the Stop Online Piracy Act, criminal copyright enforcement, and a plurilateral free trade treaty, to United Nations control of the Internet, the European Union’s proposed right to be forgotten, and the revelations of pervasive NSA surveillance, cyber-law controversies show that we are still seeking to translate free speech values into the Information Age. How we approach these disputes will determine the extent of government censorship, private third-party censorship and self-censorship. This article offers a framework for resolving cyber-law disputes, duly attendant to their speech implications.

Anupam Chander & Uyen P. Le | Free Speech, 100 Iowa Law Review 501 (2015)

Download Link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2320124

Breaking the Web: Data Localization vs. the Global Internet

Breaking the Web: Data Localization vs. the Global Internet

A BRICS Internet, the Euro Cloud, the Iranian Internet. Governments across the world eager to increase control over the World Wide Web are tearing it apart. Iran seeks to develop an Internet free of Western influences or domestic dissent. The Australian government places restrictions on health data leaving the country. South Korea requires mapping data to be stored domestically. Vietnam insists on a local copy of all Vietnamese data. The nations of the world are erecting Schengen zones for data, undermining the possibility of global services. The last century’s non-tariff barriers to goods have reappeared as firewalls blocking international data flows.

Data localization requirements threaten the major new advances in information technology — not only cloud computing, but also the promise of big data and the Internet of Things. Equally important, data localization requirements undermine social, economic and civil rights by eroding the ability of consumers and businesses to benefit from access to both knowledge and international markets and by giving governments greater control over local information. Legitimate global anxieties over surveillance and security are justifying governmental measures that break apart the World Wide Web, without enhancing either privacy or security.

Authors: Anupam Chander, Uyen P. Le | Emory Law Journal (2015)

Download link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2407858

Brand New World: Distinguishing Oneself in the Global Flow

Brand New World: Distinguishing Oneself in the Global Flow

Ancient physicians engaged in property disputes over the seals they impressed on the containers of their medications, making brand marks the oldest branch of intellectual property. The antiquity of brand marks, however, has not helped their proper understanding by the law. While the conceptual and historical foundations of copyrights and patents continue to be part and parcel of contemporary legal debates, the full history and theorizing on business marks is largely external to trademark doctrine. Furthermore, with only a few and by now outdated exceptions, whatever scholarship exists on these topics has been performed mostly not by legal scholars but by archaeologists, art historians, anthropologists, sociologists, and historians of material culture. Such a striking imbalance suggests that the law is more eager to assume and state what trademarks should be rather than understand how they actually work today. Nor does the law often acknowledge the many different ways in which marks have always been deployed to distinguish both goods and their makers. This is not just a scholarly problem: given the extraordinary importance of brands in the global economy, the growing disjuncture between the way brands function in different contexts and cultures and trademark law’s simplified conceptualization of that function has become a problem with increasingly substantial policy implications.

Mario Biagioli, Anupam Chander, Madhavi Sunder | 27 UC Davis Law Review (2013)

Download Link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2427975

Social Innovation

Social Innovation

This Article provides the first legal examination of the immensely valuable but underappreciated phenomenon of social innovation. Innovations such as cognitive behavioral therapy, microfinance, and strategies to reduce hospital-based infections greatly enhance social welfare yet operate completely outside of the patent system, the primary legal mechanism for promoting innovation. This Article draws on empirical studies to elucidate this significant kind of innovation and explore its divergence from the classic model of technological innovation championed by the patent system. In so doing, it illustrates how patent law exhibits a rather crabbed, particularistic conception of innovation. Among other characteristics, innovation in the patent context is individualistic, arises from a discrete origin and history, and prioritizes novelty. Much social innovation, however, arises from communities rather than individual inventors, evolves from multiple histories, and entails expanding that which already exists from one context to another. These attributes, moreover, apply in large part to technological innovation as well, thus revealing how patent law relies upon and reinforces a rather distorted view of the innovative processes it seeks to promote. Moving from the descriptive to the prescriptive, this Article cautions against extending exclusive rights to social innovations and suggests several nonpatent mechanisms for accelerating this valuable activity. Finally, it examines the theoretical implications of social innovation for patent law, thus helping to contribute to a more holistic framework for innovation law and policy.

Peter Lee | Washington University Law Review, Vol. 92, No. 1, 2014

Download Link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2534606

Can Human Embryonic Stem Cell Research Escape its Troubled History?

Can Human Embryonic Stem Cell Research Escape its Troubled History?

In 2013 and 2014, three U.S.-based research teams each reported success at creating cell lines after somatic cell nuclear transfer with human eggs. This essay assesses the disclosures about how oocytes were obtained from women for each of the three projects. The three reports described the methods used to obtain eggs with varying degrees of specificity. One description, in particular, provided too little information to assess whether or not the research complied with law or other ethical norms. This essay then considers methodological transparency as an ethical principle. Situating the research within the ethical and moral controversies that surround it and the high-profile fraudulent claims that preceded it, the essay concludes that transparency about methodology, including the means of obtaining human cells and tissues, should be understood as an ethical minimum.

Lisa Chiyemi Ikemoto  | Can Human Embryonic Stem Cell Research Escape its Troubled History?, 44 Hastings Center Report 7 (Nov.-Dec. 2014)

Download Link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2536444

Corporate Social Responsibility in India

Corporate Social Responsibility in India

In an era of financial crises, widening income disparities, and environmental and other calamities linked to some corporations, calls around the world for greater corporate social responsibility (CSR) are increasing rapidly. Unlike the United States and other major players in the global arena, which have largely emphasized voluntary approaches to the adoption and spread of CSR, India has chosen to pursue a mandatory CSR approach. This report discusses India’s emerging CSR regime and its potential strengths and weaknesses.

Afra Afsharipour  & Shruti Rana | Corporate Social Responsibility in India, The Conference Board Director Notes No. DN-V6N14 (August 2014)

Download Link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2517601