Bethany Berger, ‘Property to Race / Race to Property’

In the United States, property and race shape each other. This has been true since colonization and is equally true today.

First, property relationships shaped the distinct forms racism took for different racialized groups. Racism exists to explain and justify power and privilege of one group over another. But the goals of power and privilege vary across different groups, resulting in different stereotypes, legal and social barriers, and modes of control. This Article examines the racialization of African Americans, Indigenous peoples, ethnic Chinese, and racialized ‘off-White’ ethnic groups to reveal the crucial role that a group’s relationship to valued resources plays in its distinct trajectory of racism.

Second, racial relationships shaped property law for everyone in the United States. The power to foreclose for debts, the power of local governments to zone, the public goods attached to residence, the scope of the welfare state’s ‘new property’ – in these areas and many more, efforts to control, exclude, and take from racialized groups changed what property means today. This Article reveals the hidden histories of racially neutral rules and shows how they have undermined the security and equitable distribution of property for all.

Today, property law and rhetoric are often used to undermine measures that would increase the security, affordability, and autonomy that justify property in the first place. Revealing the racial roots of modern property rules, I hope, will create space for reform to achieve the liberatory and egalitarian norms that undergird our commitment to property.

Berger, Bethany, Property to Race / Race to Property (April 12, 2021).

‘The Legal Infrastructure of Childbirth’

“Law endorses the ‘right of every individual to the possession and control of his own person’ including a ‘liberty interest [under the Due Process Clause] in refusing unwanted medical treatment’. However, in childbirth, the state controls the bodily choices of pregnant and birthing people through a patchwork of tort law standards and the regulation of healthcare providers, systematically enforcing compliance with particular, value-driven norms. While courts have found abortion to be a fundamental right, they have declined to recognize a right to give birth free from government intrusion. Regulation of abortion faces scrutiny under the ‘undue burden’ standard, but there is no legal limit on government intrusion on privacy through the regulation of childbirth …”

The Legal Infrastructure Of Childbirth 134 Harvard Law Review 2209 (2021).

Marina Rothberg, ‘The Customer Is Always Right: Trademark Law and Generic Website Names in US Patent and Trademark Office v BV

In 2020, in US Patent and Trademark Office v BV, the Supreme Court clarified that the owner of a website with a descriptive domain name could trademark the name, even if it were styled ‘’, as long as it had acquired secondary meaning to consumers. Justice Breyer, in his dissent, vigorously argued that this ruling would limit competition. He claimed that allowing to trademark its brand name, which contains terms that competitors use to describe similar business activities, would essentially be giving it a monopoly. This Comment supports the majority’s decision, as it conforms with the Lanham Act. Further, this Comment maintains that existing protections mitigate Justice Breyer’s monopolization concerns and argues that the Patent and Trademark Office should instill a strict evidentiary requirement for consumer perception.

Marina F Rothberg, The Customer Is Always Right: Trademark Law and Generic Website Names in US Patent and Trademark Office v BV, 62 Boston College Law Review Electronic Supplement II – 303.

Pauline Bomball, ‘Vicarious Liability, Entrepreneurship and the Concept of Employment at Common Law’

The concept of employment at common law serves as a gateway to a wide range of statutory labour rights in Australia. Despite its significance in labour law and its frequent invocation before the courts, the concept remains the subject of significant contestation. A major point of disagreement concerns the notion of entrepreneurship. In some cases, judges have stated that entrepreneurship should be determinative of the inquiry as to whether a worker is an employee or an independent contractor. In other cases, entrepreneurship has been treated as simply one factor to be weighed against many others in the multifactorial test for employment status. This article explores the issue from a theoretical and a doctrinal perspective. It draws upon theories and case law on the doctrine of vicarious liability for guidance on the test for employment status. It argues that the proper approach is to treat entrepreneurship as the organising principle for the inquiry into whether a worker is an employee or an independent contractor. It contends that the adoption of such an approach would bring a greater degree of conceptual and analytical coherence to the complex task of distinguishing employees from independent contractors.

Bomball, Pauline, Vicarious Liability, Entrepreneurship and the Concept of Employment at Common Law (2021) 43(1) Sydney Law Review 83.

Matthias Leistner, ‘Towards an Access Paradigm in Innovation Law?’

The article generally discusses today’s meaning of an access paradigm in innovation law. Starting from concrete examples of access problems, it examines future research perspectives and the respective role of an access paradigm in innovation law. This concerns inter alia the possibility of common principles for public interest exceptions, in particular exceptions in the interest of free competition, throughout the different IP rights, as well as a closer look at the possibility of IP-external, sector-specific access regulation and the principles which should guide such approaches in research and policy.

Matthias Leistner, Towards an Access Paradigm in Innovation Law?, GRUR International, Published: 7 April 2021.

Douglas Richmond, ‘Using Extrinsic Evidence to Excuse a Liability Insurer’s Duty to Defend’

Most Americans and American businesses purchase liability insurance to protect against financial loss should they ever be sued. In furnishing this protection, liability insurers contractually promise policyholders that they will defend them against lawsuits seeking covered damages and indemnify them for such damages up to the policy limits. As important as the insurer’s promise of indemnification is to an insured, the insurer’s agreement to defend the insured in litigation is an equally essential aspect of the liability insurance bargain. An insurer must decide whether it has a duty to defend its insured at the outset of a case. There are two approaches to determining an insurer’s duty to defend. First, there is the eight corners rule, under which the factual allegations in the plaintiff’s complaint or petition are compared with the policy, and the insurer owes a defense only if those allegations potentially implicate the insurer’s duty to indemnify the insured. Second, there is the extrinsic evidence approach. Courts employing an extrinsic evidence approach hold that an insurer must look beyond the pleadings and consider any facts brought to its attention or any facts that it reasonably could discover at the time suit was filed in deciding whether it has a duty to defend. Liability insurance policies typically provide that the insurer will pay the cost of the insured’s defense in addition to the policy’s liability limits. This is a potentially significant expense for the insurer because defense costs may, and often do, exceed any settlement or judgment ultimately paid …

Douglas R Richmond, Using Extrinsic Evidence to Excuse a Liability Insurer’s Duty to Defend, 74 SMU Law Review 119 (2021).

Ned Snow, ‘Barring Immoral Speech in Patent and Copyright’

In the past three years, the Supreme Court has twice ruled that Congress’s moral bars to trademark protection violate the First Amendment. Those rulings raise a simple question in other areas of intellectual property. Does the First Amendment preclude Congress from denying patent or copyright protection based on a moral reason? Congress, for instance, might deny patent protection for inventions directed toward the consumption of marijuana. Inventors would accordingly choose not to disclose knowledge about those inventions to the public, and the denial would chill their speech. Similarly, Congress would chill speech if it denied copyright protection for moral reasons. A copyright bar to statues of the Confederacy, for instance, would deter artists from speaking such content. Hence, through patent and copyright, Congress might seek to influence speech in accord with its moral viewpoint. This Article considers whether that use of intellectual property would violate the First Amendment. The Article concludes that moral denials in patent and copyright may be constitutionally permissible in certain instances. On the patent side, Congress’s choices about which invention to patent may plausibly be construed as government speech, suggesting the absence of any First Amendment violation. Yet even if those choices are not government speech, they represent Congress’s attempt to regulate conduct relating to the embodiments of the inventions – not the knowledge about the inventions. That suggests that the incidental effect on an inventor’s speech is permissible. Copyright law is a different matter. The copyright system appears to comprise a limited public forum, which implies that moral denials of copyright protection must be viewpoint neutral to pass First Amendment muster. In other words, moral denials of copyright protection may be permissible but only if the reason for denial is not related to the expression’s message or effects responsive to that message. This principle severely limits Congress’s power. Thus, for moral denials of patent protection, the First Amendment affords Congress broad discretion whereas for moral denials of copyright protection, it affords Congress very limited discretion.

Ned Snow, Barring Immoral Speech in Patent and Copyright, 74 SMU Law Review 163 (2021).

Peet and Gutierrez, ‘Risks and Liabilities in Sharing Economy Interactions: Does Data Help or Harm?’

Sharing economy platforms utilize technology to facilitate transactions between consumers and providers. They attempt to limit the risk inherent to commercial transactions between unknown peers by harnessing the data collected on each party. However, the novelty of the sharing economy may introduce risks and liability uncertainties to participants. Our research contributes to this nascent literature in two ways. First, we developed a framework to categorize and differentiate sharing economy transactions. Second, we performed expert interviews with stakeholders representing platforms, law, liability, and policy in order to examine the opportunities and pitfalls of data used to allocate risk and liability in this market. We find that while there is potential to use platform data to reduce risk, it may also create concerns about privacy and undesirable discrimination. Finally, we identified the needs for future research to improve our understand regarding the potential for platform data to improve risks and liability decisions-making in the sharing economy.

Peet, Evan and Gutierrez, Carlos Ignacio, Risks and Liabilities in Sharing Economy Interactions: Does Data Help or Harm? (April 9, 2021).

Shyamkrishna Balganesh, ‘Authoring the Law’

Copyright law denies protection to legal texts through a rule known as the ‘government edicts doctrine’. Entirely a creation of nineteenth century courts, the government edicts doctrine treats expression produced by lawmakers in the exercise of their lawmaking function as altogether uncopyrightable. Despite having been in existence for over a century, the doctrine remains shrouded in significant mystery and complexity. Lacking statutory recognition, the doctrine has come to be seen as driven by open-ended considerations of ‘public policy’ that draw on the overarching importance of public access to laws. In its decision in Georgia v Public.Resource.Org, Inc, the Supreme Court reaffirmed the continuing significance of the doctrine but refused to endorse the public policy justification commonly offered for its existence, preferring instead to root it in copyright’s principle of authorship. In so doing however, the Court refrained from explicating the connection between authorship and the government edicts doctrine, contributing to the doctrine’s mystery. This Article develops a theory of the government edicts doctrine that anchors it firmly to the principle of authorship. The authorship rationale for the government edicts doctrine is rooted in a ‘personalization mismatch’: whereas authorship in copyright law is predicated on the need to personalize a work by identifying the human actor that created it, a commitment to the rule of law necessitates that lawmaking and legal directives be impersonal and derive their authority not from an identified individual. It is this basic mismatch which explains the government edicts doctrine and its principled roots in copyright law rather than broader considerations of public policy. The Article traces the competing (and confusing) normative ideas that have influenced the evolution of the doctrine, develops the analytical basis of its connection to authorship, and shows how this connection enables the doctrine to be extended and applied to new forms and modes of law and lawmaking.

Balganesh, Shyamkrishna, Authoring the Law (March 21, 2021). Journal of the Copyright Society of USA, volume 69, forthcoming 2022.

Buiten, de Streel and Peitz, ‘EU Liability Rules for the Age of Artificial Intelligence’

When Artificial Intelligence (AI) systems possess the characteristics of unpredictability and autonomy, they present challenges for the existing liability framework. Two questions about the liability of AI deserve attention from policymakers: 1) Do existing civil liability rules adequately cover risks arising in the context of AI systems? 2) How would modified liability rules for producers, owners, and users of AI play out? This report addresses the two questions for EU non-contractual liability rules. It considers how liability rules affect the incentives of producers, users, and others that may be harmed by AI. The report provides concrete recommendations for updating the EU Product Liability Directive and for the possible legal standard and scope of EU liability rules for owners and users of AI.

Buiten, Miriam and de Streel, Alexandre and Peitz, Martin, EU Liability Rules for the Age of Artificial Intelligence (April 1, 2021).