Patriarchy, Not Hierarchy: Rethinking the Effect of Cultural Attitudes in Acquaintance Rape Cases

Eric R. Carpenter

Volume 68, Issue 2, 225-258

Do certain people view acquaintance rape cases in ways that favor the man? The answer to that question is important. If certain people do, and those people form a disproportionately large percentage of the people in the institutions that process these cases, then those institutions may process these cases in ways that favor the man. In 2010, Dan Kahan published Culture, Cognition, and Consent, a study on how people evaluate a dorm room rape scenario. He found that those who endorsed a stratified, hierarchical social order were more likely to find that the man should not be found guilty of rape.

If Kahan is right, radical change may be necessary. The institutions responsible for handling sexual assault complaintslaw enforcement, the military, and university and college administrationsare stratified and hierarchical, and are likely over-populated by people who are attracted to hierarchical institutions and who hold hierarchical worldviews. These institutions may need to be overhauledor even replaced. However, the study has a serious methodological flaw: It uses the Hierarchy-Egalitarianism Scale to measure those hierarchical worldviews, and as this Article demonstrates, this scale has reliability and validity issues.

This Article then applies a different methodology to the underlying data and shows that patriarchy, not hierarchy, explains the differences in guilt perceptions. This more accurate understanding of Kahan’s data carries important policy implications. Rather than radical change, targeted training that addresses inaccurate rape beliefs may be enough to ensure accurate processing of these cases.

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How the Constitution Became Christian

Jared A. Goldstein

Volume 68, Issue 2, 259-308

Movements dedicated to making the United States a “Christian nation” have been a recurrent feature in American politics for more than 150 years. Over that time, however, the relationship between Christian nationalism and the Constitution has undergone a dramatic change. Nineteenth century Christian nationalists denounced the Constitution as a godless document unworthy of a Christian nation and fought for an amendment to express the nation’s Christian faith. In contrast, the contemporary Christian Right that coalesced in the 1970s lauds the Constitution as the highest expression of the nation’s Christian identity.

This Article asks how the Constitution becamefor many Americans, at leastChristian. The answer lies in America’s constitutional culture, which channels conflicts over national identity into constitutional disputes. The Constitution is conventionally portrayed as the embodiment of what it means to be American, but it is more accurate to describe the Constitution as the battleground over which disputes over national identity are fought.

This Article illustrates the dynamics that transform conflicts over national identity into constitutional conflicts by examining three movements in the longstanding debate over whether the United States should be understood to be a Christian nation: the nineteenth century Christian Amendment movement, mid-twentieth century Judeo-Christian nationalism, and the New Christian Right that began in the 1970s and 1980s. Although these movements differ in significant ways, they follow a similar pattern. In each case, members of the dominant religious group mobilized in response to perceived threats to their statusfrom Catholics, immigrants, communists, and secular humanists. In each episode, members of the mobilized movement believed Christian devotion to be part of America’s essence and therefore considered threats to Christian dominance as attacks on America itself. And in each case, the movement attempted to preserve the nation’s supposed Christian identity by making constitutional demands, either to amend the Constitution to proclaim the nation’s Christian devotion or to interpret the Constitution to be Christian.

Through this recurring patternin which a threat to group status is understood in nationalist terms and motivates a movement that makes constitutional demandsfights about what it means to be American become fights over the meaning of the Constitution. Rather than embodying what it means to be American, the Constitution provides a seemingly neutral and patriotic language for making claims of national inclusion and exclusion, for asserting that some people and some values are authentically American, while others are dangerously foreign and must be rejected.

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Smart Cities, Big Data, and the Resilience of Privacy

Janine S. Hiller and Jordan M. Blanke

Volume 68, Issue 2, 309-56

Smart Cities are designed to ubiquitously collect information about people, places, and activities and to use that data to provide more efficient services and to build resilience against disasters. Projects like the Rockefeller Foundation-funded “100 Resilient Cities” are exploring how big data can be used to design and strengthen resilience in cities around the world. Large technology companies are helping to design and secure components of the Internet of Everything, which is part of a smart city structure. Relationships between governments and citizens, as well as between individuals and businesses, will see substantial changes due to this rapidly expanding collection and use of potentially intimate information. In this dynamic environment, it is difficult to protect privacy under traditional principles that did not anticipate a sensor-connected, surveillance-laden, data-driven world of the smart city. Slow moving court cases and inflexible fair information privacy practices may be insufficient to limit and/or guide smart city implementation that respects individual privacy. Cities need a methodology that will enable a discussion of how law, regulation, and social norms can respond to the dynamic disruption that a smart city poses to the fundamental nature of privacy.

This Article proposes that resilience theory can be a useful lens for this analysis. Resilience theory has multidisciplinary roots in engineering, biology, ecology, and sociology, and is generally understood as a way to understand how systems react to extreme pressureswhether they decline and die, or whether they adapt and thrive. The theory is used to describe multiple aspects of systems and organisms, from the ability of a building to withstand an earthquake to the ability of an organism not only to survive, but to also evolve into a different and possible better state. This Article views privacy as a system and examines it through the resiliency lens, framing the question of how privacy can adapt and survive in a smart city.

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Trade Secret Precautions, Possession, and Notice

Deepa Varadarajan

Volume 68, Issue 2, 357-96

To obtain trade secret protection, a firm must take reasonable secrecy precautions (“RSP”) to guard the confidentiality of claimed information. The RSP requirement has long puzzled courts and scholars. In other areas of property and intellectual property law, such self-help is not a prerequisite for legal rights. Landowners, for example, do not have to fence their property as a condition of ownership. Requiring claimants to take secrecy precautions also seems to contradict trade secret law’s underlying rationales of promoting innovation and information sharing. Existing scholarship fails to provide a convincing justification for the requirement or explain how it advances the policy concerns animating trade secret law

This Article demonstrates that traditional property law’s “possession” doctrine can provide a useful lens for understanding the RSP requirement. In property law, affirmative acts of possession lead to ownership because they notify a relevant audience about claims to property. Drawing insights from possession doctrine, this Article argues that the primary purpose of the RSP requirement should be to notify a relevant audience (employees and other business partners) about the existence and boundaries of claimed trade secrets and thus reduce information costs for that audience. Requiring trade secret owners to provide clearer ex ante notice promotes follow-on innovation and employee mobility, concerns that are important to trade secret law. Accordingly, this Article suggests areas of reform in courts’ RSP analysis to enhance the requirement’s notice function.

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Correcting Computer Vision: The Case for Real Eyes After Lenz

M. Jake Feaver

Volume 68, Issue 2, 397-418

The internet brought plentiful opportunities for sharing content between individuals. However, along with those opportunities, the potential for abuse and intellectual property infringement increased steadily. When Congress passed the Digital Millennium Copyright Act it attempted to provide protection for the service providers that served as the foundation for the internet’s prosperity and for the content producers who grew its fruits. In accordance with this Act, service providers and copyright enforcers built algorithms to determine when content was infringing and when it was not.

The recent Ninth Circuit decision in Lenz v. Universal Music Corp. established that a copyright holder must “consider fair use” before they can request that content be taken down by a service provider. This Note discusses how an algorithm might “consider fair use” in accordance with Lenz, and argues that in the marginal cases where the likeness is too close to call, human review of potential infringements will nevertheless be necessary to comply with the Digital Millennium Copyright Act.

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Changing Tides for Captive Marine Mammals: What the Future Holds for Captive Care Requirements

Isabella Langone

Volume 68, Issue 2, 419-44

When the marine mammal entertainment industry emerged in the 1960s, companies like SeaWorld captured orcas and dolphins from the wild and put the animals on display to bring joy and entertainment to the masses. In 1972, Congress enacted the Marine Mammal Protection Act, which prohibited the capture of marine mammals from the wild. In response to this legislation, SeaWorld and other parks implemented breeding programs to maintain their mammal collection without having to capture wild animals. Conservationists and animal rights activists have protested this practice for decades, but only recently has the larger public engaged in widespread disapproval of marine mammal captivity. In recent years, massive public protest erupted over the conditions in which captive marine mammals, particularly orcas, live. The public rallied alongside conservationists and animal rights activists with unprecedented and unexpected fervor, calling for change in the marine mammal entertainment industry, or even its end altogether.

SeaWorld responded to public demand, announcing on March 17, 2016, that it would immediately stop its orca breeding program. Conservationists, animal rights activists, and the public celebrated this monumental step, but questions still remain as to what should be done to improve the lives of the remaining captive marine mammals. There is debate over whether SeaWorld should be compelled to release its captive animals into open-sea sanctuaries, or if it should be allowed to keep its animals in captivity for the remainder of their lives. While there are valid arguments on both sides of this debate, it seems that at least for the time being, marine mammal captivity is here to stay. This Note therefore examines the legal mechanisms that govern the captive care of marine mammals and how the law might be applied in novel ways to ensure more stringent captive care requirements for marine mammals.

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Contextual Healing: What to Do About Scandalous Trademarks and Lanham Act 2(a)

Megan M. Carpenter

Volume 68, Issue 1, 1-44

Offensive trademarks have come to the forefront of trademark policy and practice in recent years. While it was once true that more attention had been paid to Lanham Act section 2(a) in the pages of law reviews than in the courts, recent cases have focused attention on the ban on registration of offensive marks and the widespread impact of this ban on trademark owners, including a case before the Supreme Court this term. In this Article, I answer the fundamental question: Given the problems previous research has identified, what should be done about the 2(a) bar for scandalous marks?

This Article argues, as a preliminary matter, that the registration bar for scandalous marks be removed from the Lanham Act because morality is outside the function and purpose of trademark law. Furthermore, removal of the bar would be in line with other forms of intellectual property, which have moved away from regulating morality. Finally, removing the bar would resolve concerns about the constitutionality of section 2(a). However, if the 2(a) bar remains part of the Lanham Act, it should be applied in a way that is fair and effective within the legal framework of trademark law. Specifically, this Article argues that trademark examiners should evaluate offensiveness in the same way other bars to registrationand content in broadcast media are evaluated: by considering the context of the marketplace.

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The Define and Punish Clause and the Political Question Doctrine

Lyle D. Kossis

Volume 68, Issue 1, 45-96

The Constitution gives Congress the power to “define and punish . . . Offences against the Law of Nations.” Congress has used this power to enact various criminal statutes that proscribe certain violations of international law. In some cases, criminal defendants argue that these statutes are unconstitutional because Congress has incorrectly defined the law of nations. Federal courts routinely entertain this argument. But the political question doctrine prevents federal courts from resolving a question when the Constitution entrusts the political branches with providing an answer. The Define and Punish Clause gives Congress, not the courts, the power to define the law of nations. Accordingly, federal courts should be barred from determining whether Congress has properly defined international law. No court or scholar to date has pursued this argument in detail. This Article takes the first step.

The Article begins by describing the historical underpinnings of the Define and Punish Clause and the contemporary version of the political question doctrine. The Article then explains why the proper definition of international law under the Define and Punish Clause is a political question. It reviews the Clause’s text, structure, and history, applicable Supreme Court precedent, and a variety of practical arguments to illustrate why federal courts have no authority to second-guess Congress’s definition of the law of nations. Finally, the Article concludes by situating its central thesis within the current framework of both constitutional and non-constitutional law. It explains that the Supreme Court has never used international norms to limit Congress’s power under the Define and Punish Clause. It also argues that although Congress has the sole power to define the law of nations, legislative power will remain meaningfully limited, and courts will remain free to interpret other sources of international law.

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The “New Insiders”: Rethinking Independent Directors’ Tenure

Yaron Nili

Volume 68, Issue 1, 97-158

Director independence is a cornerstone of modern corporate governance. Regulators, scholars, companies, and shareholders have all placed a strong emphasis on director independence as a means to ensure that investors’ interests in their companies are well served. But what makes a director independent? While regulators and stock exchanges have tackled this elusive standard in different ways, the end goal is always the sameensuring that the director is able to exercise truly independent judgment and further the best interests of shareholders. Surprisingly, these regulatory bodies have failed to consider the impact board tenure might have on director independence. This Article seeks to fill this void, highlighting the potential effect director tenure has on director independence. Providing novel empirical data that reveals a significant rise in director tenure over the last decade, the Article then strives to place this trend in the larger context of transformations in board structure.

Specifically, this Article suggests that the trend of increased director tenure reflects a market attempt to push back against the regulatory emphasis on board independence that has forced companies to remove many high ranked executives from the boardroom. This reaction is manifest in the increased prevalence of the “new insider,” a hybrid board member who complies with current independence requirements but at the same time, through longer tenure and other attributes, possesses many of the traits that corporate insiders previously brought to the board table. Coupling this market movement with its potential impact on board independence, this Article then explores the benefits and risks of this new insider model and proposes a potential regulatory solution that would address director tenure without sacrificing the benefits that tenure can provide.

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Far from the Madding Crowd: A Statutory Solution to Crowd Crush

Tracy Hresko Pearl

Volume 68, Issue 1, 159-202

Crowd-related injuries and deaths occur with surprising frequency in the United States. In recent years, crowd members in the United States have sustained significant injuries and even fatalities at concerts, sporting events, “doorbuster” sales, nightclubs, and large festivals. While some of these incidents have prompted victims to file negligence suits against event organizers and venue owners, common law has proven to be ineffective at addressing “crowd crush.” Indeed, courts have repeatedly held for defendants in these cases, making a series of scientific and legal errors in their analysis and providing little incentive for organizers and owners to improve their crowd management practices. Additionally, ad hoc crowd management efforts on the part of a few concerned promoters and venues have done little to reduce the risk of crowd-related injuries in cities and states as a whole.

This Article argues that state and local adoption of crowd management statutes is the only remaining solution that can effectively reduce the number of crowd crush injuries and fatalities in the United States each year. Because there are currently no such laws in this country, this Article proposes a model statute that draws upon fundamental principles of crowd science in requiring event organizers and venue owners to take a series of simple steps before and during large gatherings that will drastically reduce the likelihood of crowd crush.

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A Bridge over the Patent Trolls: Using Antitrust Laws to Rein in Patent Aggregators

Eric Young

Volume 68, Issue 1, 203-24

Patents, by their very nature, are a type of monopoly, and are so important to our country’s intellectual and technological advancement that the Founding Fathers granted Congress the power “to promote the progress of science and useful arts, by securing for limited times to . . . inventors the exclusive right to their respective . . . discoveries.” But in recent decades, that imperative has lost its footing. Mass patent aggregators, companies that compile, hoard, and assert patent rights without contributing products to the world have contorted that vision. “Patent Trolls” assemble portfolios of weak patents to corner and dominate technological spaces, crowding out innovators and demanding extortionate licensing fees from unsuspecting targets. Federal antitrust laws forbid improper accumulation and assertion of monopoly power, which is precisely how trolls’ business model operates. And yet, courts traditionally have not found a patent portfolio to constitute a “relevant market” under the Sherman Act. This Note explains why they should, and in doing so examines two cases between identical litigants, the latter of which may provide a roadmap for pursuing antitrust counterclaims against serial patent assertion entities.

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