Civil Forfeiture: A Higher Form of Commercial Law?

In this Article, Messrs. Schwarcz and Rothman analyze the disquieting impact of civil forfeiture law on creditors\u27 rights. The Article begins by describing the historical origins of civil forfeiture and its development into current day law. The Article then explores the tension between forfeiture law and commercial and bankruptcy law by examining the effect of a forfeiture action on unsecured and undersecured creditors. The Article evaluates a recent model for balancing governmental and commercial law interests, and concludes by suggesting reforms to the present civil forfeiture scheme

Hidden Variables or Positive Probabilities?

Despite claims that Bell's inequalities are based on the Einstein locality condition, or equivalent, all derivations make an identical mathematical assumption: that local hidden-variable theories produce a set of positive-definite probabilities for detecting a particle with a given spin orientation. The standard argument is that because quantum mechanics assumes that particles are emitted in a superposition of states the theory cannot produce such a set of probabilities. We examine a paper by Eberhard, and several similar papers, which claim to show that a generalized Bell inequality, the CHSH inequality, can be derived solely on the basis of the locality condition, without recourse to hidden variables. We point out that these authors nonetheless assumes a set of positive-definite probabilities, which supports the claim that hidden variables or "locality" is not at issue here, positive-definite probabilities are. We demonstrate that quantum mechanics does predict a set of probabilities that violate the CHSH inequality; however these probabilities are not positive-definite. Nevertheless, they are physically meaningful in that they give the usual quantum-mechanical predictions in physical situations. We discuss in what sense our results are related to the Wigner distribution.Comment: 19 pages, 2 ps files This is a second replacement. In this version we include an analysis of yet another version of Bell's theorem which has been brought to our attention. We also discuss in what sense our results are related to the Wigner distributio

Liberating Copyright: Thinking beyond Free Speech

Scholars have often turned to the First Amendment to limit the scope of ever-expanding copyright law. This approach has mostly failed to convince courts that independent review is merited and has offered little to individuals engaged in personal rather than political or cultural expression. In this Article, I consider the value of an alternative paradigm using the lens of substantive due process and liberty to evaluate users’ rights. A liberty-based approach uses this other developed body of constitutional law to demarcate justifiable personal, identity-based uses of copyrighted works. Uses that are essential for mental integrity, intimacy promotion, communication, or religious practice implicate fundamental rights. In such circumstances the application of copyright law deserves heightened scrutiny. The proposed liberty-based approach shores up arguments that some personal uses should be lawful and suggests that such uses should not be limited to those that are private and not for profit

The Right of Publicity’s Intellectual Property Turn

I will first consider the case often wrongly credited with creating the right of publicity―Haelan Laboratories v. Topps Chewing Gum―and then reveal the right of publicity’s true origins, explaining when the actual turn to becoming an independent IP right took place. I will conclude with some challenges posed by this IP turn, as well as some implications that flow from this resurrected story of the right of publicity’s development. Almost twenty-five years ago, in 1995, Columbia Law School organized another Symposium on the right of publicity.9 Many of the concerns raised then and the disagreements voiced at that time remain today. But none of the speakers at the time accurately understood the history of the right of publicity’s development. As a result, the conversation stood on a shaky foundation—one that has long skewed our understanding of the right of publicity, its objectives, and the controversies that surround it. Let us begin today’s Symposium by setting the record straight

The Other Side of Garcia: The Right of Publicity and Copyright Preemption

The subject of my talk is a perfect transition from the two prior talks, and a perfect place to end an entire symposium about Copyright Outside the Box—by literally getting out of the copyright box entirely, and talking about the right of publicity and its intersection with copyright law. I want to begin by thanking Jane Ginsburg for inviting me and encouraging me to participate, despite the fact that I’m stepping way outside the box. I also want to thank everyone here at the Kernochan Center, and the students of the Columbia Journal of Law and the Arts for putting this all together

The Questionable Use of Custom in Intellectual Property

The treatment of customary practices has been widely debated in many areas of the law, but there has been virtually no discussion of how custom is and should be treated in the context of intellectual property (IP). Nevertheless, customs have a profound impact on both de facto and de jure IP law. The unarticulated incorporation of custom threatens to swallow up IP law, and replace it with industry-led IP regimes that give the public and other creators more limited rights to access and use intellectual property than were envisioned by the Constitution and Congress. This article presents a powerful critique of the incorporation of customs in IP law and provides a theoretical framework for future analysis of private ordering regimes in IP. The article also provides additional support to those who have criticized the incorporation of custom in other fields

Dragomans and "Turkish Literature": The Making of a Field of Inquiry

Theories of cultural and linguistic mediation have tended to posit intermediaries as conduits through which one culture/language either enters another unproblematically, or gets “distorted” due to intermediaries’ incompetence or self-interest. Both these perspectives presuppose stable, well-bounded, and coherent cultures/languages as what intermediaries purportedly mediate. Instead, this paper proposes an understanding of cultural and linguistic mediation as a process that constitutes its objects, that is, as an essential dimension of all acts of cultural and linguistic boundary-making. It focuses on dragomans (diplomatic interpreters) who operated at the interface between the Ottoman government and foreign diplomats to the Porte throughout the early modern period. The paper suggests how dragomans’ practices of knowledge production were profoundly collaborative, involving a range of Ottoman and Venetian interlocutors. Such practices thus belie any facile distinction between “local” and “foreign,” but rather challenge us to consider the emergence of “Oriental” studies as a dialogical project that necessitated ongoing recalibrations of prior knowledge through a multiplicity of perspective, where diplomatic institutions and epistemologies played a key role