The Intersection of Intellectual Property and Race in the Twenty-First Century: An Examination of the Interpretation of Racial Categories in Patent Law

The political and jurisprudential treatment of racespecific patents, patents on inventions that are aimed at certain racially or ethnically defined groups, in the United States has the potential to legitimize the reification of race and severely impact society\u27s understanding of racial disparities. Accordingly, with the increase in race-specific patents, and race-based technology in general, the way that the courts will construe racial categories in claim terms will determine the pattern and practice of future race relations in the United States. This note examines the role of a judge and an inventor in the potential litigation of a racespecific patent both of whom are in a position to define what we, as a society, understand as race. If judges construe racialized claim terms as a genetic category or as an inherited trait then members of our society will no longer understand racial disparity - such as unemployment rate, educational achievement gap, and the disproportionate representation in the criminal justice system - as a result of a long history of discrimination and injustice. This note, therefore, is not at issue with the commodification of race or the discriminatory implications of the actual granting of exclusive rights to inventors of race-specific patents. Rather, this note finds issue with the impact of the court\u27s construction of racialized claim terms as genetic categories on the future pattern and practice of this society and offers judges a new method of interpretation, intersectionality

Hearsay and Informal Reasoning

The Federal Rules of Evidence define hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. \u27 A statement, in turn, is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. Hearsay is inadmissible unless it falls within an exception to the rule or an exclusion from the definition. Courts and commentators often write as if the distinctions they make between hearsay and nonhearsay are consistent with informal reasoning, the inferential methods based on common experience that human beings employ in litigation as well as everyday life. There is certainly good reason to take account of informal reasoning in conceptualizing hearsay. Interpretation of terms such as assertion and assert to reflect the process people use to make everyday judgments takes maximum advantage of human experience, and is therefore easy for courts and lawyers to learn and apply. But courts, rulemakers, and scholars have failed to develop a workable and accurate model of informal reasoning on which a clear understanding of hearsay could rest. One result of that failure is the debate over the proper ambit of the hearsay rule that has recurred since the Exchequer Chamber decided Wright v. Doe d. Tatham over a century and a half ago. Conventional attempts to distinguish hearsay from nonhearsay produce baffling results. Consider one understanding of the hearsay definition, which might be called the literalist heuristic. Literalist analysis holds that, for hearsay purposes, a communication ordinarily asserts only those propositions that it literally, expressly, or directly articulates

A war room in Canada : politics, journalism, publics and the competition for credibility

The central objective of A War Room in Canada is to develop a richer understanding of the subsumed motivations behind the practices of political war rooms, the organizations that drive political communication at election time. To do so, this dissertation examines the role of the war room of the New Democratic Party during the general election campaign of 2005-06, providing an insider's view with respect to the underlying stakes in play for political actors, journalists, and publics. It considers an arc of theoretical positions from Durkheim's notion of organic solidarity and its conceptual link to contemporary democracy, to neofunctionalism and its concern for legitimation and symbolic action. Theoretical gaps in the neofunctionalist view are employed as a platform to project a line of thought that brings together notions from Pierre Bourdieu's conceptualization of capitals and fields, scholarly debates arising from Jürgen Habermas's theorization of the public sphere, and recent conceptualizations of the relationship between publics and counterpublics. From these articulated theoretical relationships, the notion of credibility is posited as a specific form of symbolic capital, one that acts as a medium of exchange within and between the fields of politics, journalism, and the field of power/publics. A series of war-room communication measures, strategies and tactics mobilized through the competition for credibility, are then considered with respect to their resonance among voters and, ultimately, the exchange of credibility for votes and votes for constitutionally-credited power

Pragmatics and the consequentiality of talk: a study of members' methods at a planning application meeting

This study explores how talk is consequential by examining the sequential and pragmatic phenomena in talk-in-interaction. Reflecting the work of conversation analysis (CA), the approach assumes that the consequentiality of a 'context' must be demonstrated by the informants' sequential practices (cf. Schegloff 1987, Boden and Zimmerman 1991). However, in this study a model of consequentiality is proposed, in which not only sequential phenomena but also pragmatic categories are included within the repertoire of members' methods. In this way, the indexicality of language as explained by pragmatic theory is seen to contribute to the account of talk as consequential. The data represent a meeting between an urban planning department and a national development company in which a planning application is discussed. As such, members' methods are seen to invoke the institutional nature of the encounter, in which the formality of the setting and the work-related membership of the interactants is systematically oriented to. The talk consists of a series of negotiated issues in which the developers and the planners propose different candidate outcomes reflecting each party’s professional aims and the constraints they consider themselves to operate under. In particular, the analysis shows that candidate outcomes are largely managed by sequential preference systems and pragmatically characterized face-address (Brown and Levinson 1978, 1987).The notion of reflexivity is also seen as a significant component in the study of consequentiality. While the concept is a basic assumption in a CA framework (Garfinkel and Sacks 1969) and is also recognized as fundamental in pragmatic inquiry (Lucy 1993), few studies provide a detailed analysis of members' reflexive awareness of the contexts they create. In this study, the interactants' metalinguistic and metapragmatic orientation, invoked by both pragmatic and sequential methods, is shown to be a prevalent members' resource for indicating awareness of consequentiality. Finally, observations of the kind made in this thesis, wherein pragmatic categories both work together and are systematically related to the sequential environment, contribute to a general re-analysis of pragmatic meaning. At the same time, the interaction of pragmatic and sequential features also represents a dynamic starting point for developing new methodological categories for investigating talk-in-interaction

The Transparency Tax

Transparency is critical to good governance, but it also imposes significant governance costs. Beyond a certain point, excess transparency acts as a kind of tax on the legal system. Others have noted the burdens of maximalist transparency policies on both budgets and regulatory efficiency, but they have largely ignored the deeper cost that transparency imposes: it constrains one’s ability to support the law while telling a self-serving story about what that support means. Transparency’s true tax on the law is the loss of expressive ambiguity. In order to understand this tax, this Article develops a taxonomy of transparency types. Typically, transparency means something like openness. But openness about what—the law’s obligations? The reasons for the obligations? The actors behind the law? And open to whom? These are different aspects of what we typically lump together and call “transparency,” and they present different tradeoffs. With these tradeoffs in mind, we can begin to make more informed choices about how to draw the line between maximal and minimal transparency. Of particular note is the finding that we can demand maximal transparency about the law’s obligations without incurring much of the transparency tax. This runs contrary to the soft law literature, which suggests that vagueness about obligation is less costly than the alternative. The Article concludes with a guide for thinking through future transparency tradeoffs