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Fernanda Giorgia Nicola Dr.
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Michael W. Carroll
My goal in this chapter is to advance the argument that access denied to resources in digital form is a more serious, and more solvable, problem than one might glean from the literature. Digital networks make access possible to a degree that would have been unimaginable in the analog era. What was once a mix of technological and economic constraints on access is now reduced to legal, rather than technological, constraints. The library community should more explicitly commit itself to the goal of ubiquitous access to digital content.
The role of the library in public life should be to minimize or eliminate these legal barriers to access and use through a mixture of creative and fair licensing arrangements, and policy advocacy on behalf of those currently denied access. To begin to solve this problem, libraries should develop a more robust network consciousness, by which I mean they should realign institutional priorities and resources to explicitly position individual libraries and consortia as network nodes through which patrons can access networked resources or as a site of publication of networked resources. This argument recognizes that a network consciousness should not be the sum total of a library’s attentional focus. For the library has also been, and remains, an intensely local institution whose physicality through its architecture, geography, and relation to its analog resources are as important to library patrons as ever. I am convinced that libraries are capable of meeting the challenges of balancing their local and global roles if institutional leaders make this a priority.
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Christine Farley
This chapter provides an overview of the public policy limitations on trademark subject matter under U.S. law. This is an area of law that had been fairly stable until recently. The U.S. Supreme Court’s 2017 decision striking down the prohibition on registering disparaging marks and its 2019 decision striking down the prohibition on registering immoral and scandalous marks may prompt a larger reexamination of the policy justifications for denying trademark registration.
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Andrew G. Ferguson
Predictive policing is changing law enforcement. New place-based predictive analytic technologies allow police to predict where and when a crime might occur. Data-driven insights have been operationalized into concrete decisions about police priorities and resource allocation. In the last few years, place-based predictive policing has spread quickly across the nation, offering police administrators the ability to identify higher crime locations, to restructure patrol routes, and to develop crime suppression strategies based on the new data.
This chapter suggests that the debate about technology is better thought about as a choice of policing theory. In other words, when purchasing a particular predictive technology, police should be doing more than simply choosing the most sophisticated predictive model; instead they must first make a decision about the type of policing response that makes sense in their community. Foundational questions about whether we want police officers to be agents of social control, civic problem-solvers, or community partners lie at the heart of any choice of which predictive technology might work best for any given jurisdiction.
This chapter then examines predictive policing technology as a choice about policing theory and how the purchase of a particular predictive tool becomes – intentionally or unintentionally – a statement about police role. Interestingly, these strategic choices map on to existing policing theories. Three of the traditional policing philosophies – hot spot policing , problem-oriented policing, and community-based policing have loose parallels with new place-based predictive policing technologies like PredPol, Risk Terrain Modeling (RTM), and HunchLab. This chapter discusses these leading predictive policing technologies as illustrative examples of how police can choose between prioritizing additional police presence, targeting environmental vulnerabilities, and/or establishing a community problem-solving approach as a different means of achieving crime reduction. -
Rebecca Hamilton and Molly K. Land
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Jonathan Baker
In 2013, a federal district court found that Apple had orchestrated a cartel agreement involving it and five major book publishers three years earlier, when Apple opened the iBookstore in conjunction with the introduction of its iPad tablet computer. According to the court, Apple organized collective action by the publishers to take away ebook pricing authority from Amazon, an aggressive discounter, and to raise the retail prices of ebooks.
This chapter describes the case from an economic point of view. It examines the competing views of the government and Apple over the competitive impact of various provisions in the iBookstore’s distribution agreements with the publishers, evaluates possible economic reasons why competition may not have been harmed even if Apple’s conduct led to higher ebook prices, and considers what Apple could have done differently to enter without harming competition.
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Jennifer C. Daskal
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Benjamin Leff
Social enterprises are business enterprises that seek to pursue social goals. In order to do that, they need to be able to make binding commitments to a variety of stakeholders that they will indeed pursue such goals. At least since Henry Hansmann wrote his seminal works on nonprofit organizations in the early nineteen eighties, it has been widely understood that a significant value of the nonprofit organizational structure is the ability of the "nondistribution constraint" to serve as just such a commitment mechanism. In the case of for-profit social enterprises, where the nondistribution constraint does not apply, what mechanisms might we expect to be useful or necessary for the organization to make commitments to stakeholders?
This chapter applies some insights from Hansmann's "agency theory" to the for-profit social enterprise context. It observes that very different commitment mechanisms are useful depending on which stakeholders the organization wants to commit to. It also distinguishes between negative and positive commitments and why the distinction between the two is so important to the likely success of any commitments mechanism. -
Benjamin Leff
It is conventional to think of not-for-profit organizations as inhabiting a sector distinct from the private business sector on one side and the government sector on the other. One of the traditional goals of law in the nonprofit sector has been to distinguish entities in the nonprofit sector from those in the business sector--to define and police the boundary, both so governmental benefits can be provided to not-for-profit entities and so stakeholders can understand which organizations are bound by the nondistribution constraint. Therefore, when there are legal reforms that complicate or alter the boundary, these reforms should be evaluated not only with respect to whether they adequately protect the government's interest in providing benefits to worthy enterprises, but also whether the new reforms promote or detract from the sector's ability to communicate clearly with stakeholders.
This chapter (i) introduces the two primary ways that the law of nonprofit organizations attempts to regulate the boundary between the nonprofit and business sectors, (ii) roots commercial activity by nonprofits in the long history of fee-for-service nonprofit organizations that operate very much like for-profit businesses, and (iii) introduces and evaluates a number of new legal forms created for for-profit social enterprises. -
Fernanda Giorgia Nicola Dr.
During the twentieth century, the center of production of legal ideas shifted from France to Germany and then to the United States. Here, the dominant legal reasoning framed the law as a phenomenon of social organization that was not confined to a specific legal system. There were both external and internal factors influencing U.S. legal thought which explain this change of wind from continental Europe to the United States. Externally, after World War II the United States garnered influence by positioning itself for political and economic global leadership. Internally, the critique of social purpose functionalism articulated by the legal realists provided new problem-solving approaches integrated in a reconstructive and pragmatic understanding of law called positive-sociology functionalism. Finally, legal diffusion occurred through public law disciplines based on U.S. constitutional law theories of rights, neo-formalism, and balancing conflicting policy analysis.
The diffusion of legal education takes place through law schools, non-governmental organizations (NGOs), international financial institutions (IFIs) and other avenues, and with different political agendas, often in conjunction, for instance, with law and development reforms or more broadly due to the prestige of U.S. legal training and academia. U.S. legal thought reached Latin America, Asia, Europe and Africa through the transplant of legal institutions. The diffusion of U.S. legal styles often changed the process rather than the content of legal education, which resulted in local curriculum reforms that reflected the more pragmatic U.S. education style. Some scholars have harshly criticized the export of U.S. legal thought for its distinct adversarial judicial process that decentralizes power and privatizes disputes while creating advantages for the powerful and wealthy, expanding inequality and social stratification. Others have instead claimed that the diffusion of teaching methods geared to the adoption of U.S.-based clinical legal education aims at informing, adapting, and promoting social justice in a way that addresses the contextual realities of the importing country.
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Fernanda Giorgia Nicola Dr. and Daniela Caruso
The propensity to engage in a sustained critique of EU law marbles several contributions in this Volume and certainly animates this chapter. This generally critical stance takes the present stage of legal Europeanization as a fact and aims to make full use of the possibilities for political and social justice it can currently support, but at the same time it decries its many structural and dynamic drawbacks. In doing so, this critical project borrows liberally from CLS without fear of misreading or misappropriation. Irreverence in this context is a feature, not a bug. The CLS toolkit is clearly useful to European scholars, but there is no pretense here of fidelity to the original CLS conception. Transformations can be productive on EU soil, and there is no reason not to utilize, albeit in a different epistemic environment, the motivational force of lessons drawn from far-away places or times.
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Kenneth Anderson
An international public debate over the law and ethics of autonomous weapon systems (AWS) has been underway since 2012, with those urging legal regulation of AWS under existing principles and requirements of the international law of armed conflict, on the one side, in argument with opponents who favor, instead, a preemptive international treaty ban on all such weapons, on the other. This Chapter provides an introduction to this international debate, offering the main arguments on each side. These include disputes over defining an AWS, the morality and law of automated targeting and target selection by machine, and the interaction of humans and machines in the context of lethal weapons of war. Although the Chapter concludes that a categorical ban on AWS is unjustified morally and legally — favoring the law of armed conflict’s existing case-by-case legal evaluation — it offers an exposition of arguments on each side of the AWS issue.
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