Truth, Lies, and Copyright

Fake news may be trending right now, but fake news is not the only source of fake facts that we consume. We encounter fake facts every day in the historical or biographical books we read, the movies we watch, the maps we study, the tele-phone directories and dictionaries we reference, and the religious or spiritual guides we consult. While it is well-established that copyright does not protect facts because facts are discovered rather than created, fake facts are created and can often be as original and creative as fiction. This Article is the first to offer a comprehensive analysis of copyright protection of fake facts contained in fake news and other sources. It details the different categories of fake facts we encounter today and courts’ inconsistent protection of fake facts under copyright law. Even though copyright law may technically protect fake facts as original expression fixed in a tangible medium, this Article argues that the public interest in promoting efficiency, fairness, and production of socially valuable works justify treating fake facts as unprotectable facts under copyright law. Specifically, courts should apply copyright law’s factual estoppel doctrine to treat fake facts as unprotectable facts in infringement cases where an author previously held out fake facts as facts, with the intent that the public rely on the fake facts as facts, if the public could believe the fake facts to be true

An Argument for Original Intent: Restoring Rule 801(D)(1)(A) to Protect Domestic Violence Victims in a Post-Crawford World

Prosecution of domestic violence is extremely difficult, largely due to the fact that defendants are successfully pressuring victims to refuse to testify or to recant their testimony at trial. With its decision in Crawford, the Supreme Court eliminated the ability of prosecutors to use hearsay exceptions to place the domestic violence victim\u27s statements before the jury for their substantive consideration. The Supreme Court also closed this avenue to combat defendants\u27 efforts to avoid liability through coercive pressure on victims. Therefore, the Court\u27s change in the Confrontation Clause law limits the prosecution\u27s arsenal for combating witness intimidation and, at the same time, places an unwieldy Rule 801(d)(1)(A) squarely into play. Unfortunately, the current rule is ineffective in assisting domestic violence prosecutions and preventing witness intimidation. When the defendant\u27s pressure results in recantation, rather than refusal to testify, the Court\u27s forfeiture by wrongdoing remedy to witness intimidation is not available. In this situation, the prosecution is left with a faulty witness and no prior statement. The defendant, on the other hand, is the double beneficiary of the Crawford decision: he has an enhanced right to confront the victim and Rule 801(d)(1)(A) prevents redress of his intimidation of the victim. The modified rule, however, is able to properly align the positive benefits of the Crawford decision by ensuring the defendant\u27s full confrontation rights and eliminating the incentive to intimidate witnesses. In this way, allowing substantive use of prior inconsistent statements is vital to society\u27s efforts to hold batterers accountable for the violence they inflict on their victims

“Whimsy Little Contracts” with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements

Arbitration clauses have become ubiquitous in consumer contracts. These arbitration clauses require consumers to waive the constitutional right to a civil jury, access to court, and, increasingly, the procedural remedy of class representation. Because those rights cannot be divested without consent, the validity of arbitration agreements rests on the premise of consent. Consumers who do not want to arbitrate or waive their class rights can simply decline to purchase the products or services covered by an arbitration agreement. But the premise of consent is undermined if consumers do not understand the effect on their procedural rights of clicking a box or accepting a product. This Article reports on an empirical study exploring the extent to which consumers are aware of and understand the effect of arbitration clauses in consumer contracts. We conducted an online survey of 668 consumers, approximately reflecting the population of adult Americans with respect to race/ethnicity, level of education, amount of family income, and age. Respondents were shown a typical credit card contract with an arbitration clause containing a class action waiver printed in bold and with portions in italics and ALLCAPS. Respondents were then asked questions about the sample contract as well as about a hypothetical contract containing what was described as a “properly-worded” arbitration clause. Finally, respondents were asked about their own experiences with actual consumer contracts. The survey results suggest a profound lack of understanding about the existence and effect of arbitration agreements among consumers. While 43% of the respondents recognized that the sample contract included an arbitration clause, 61% of those believed that consumers would, nevertheless, have a right to have a court decide a dispute too large for a small claims court. Less than 9% realized that the contract had both an arbitration clause and that it would prevent consumers from proceeding in court. With respect to the class waiver, four times as many respondents thought the contract did not block them from participating in a class action as realized that it did, even though the class action waiver was printed twice, in bold, in the sample contract, including one time in italics and ALLCAPS. Overall, of the more than 5000 answers we recorded to questions offering right and wrong answers, only a quarter were correct. Turning to respondents’ own lives, the survey asked if they had ever entered into contracts with arbitration clauses. Three hundred and three respondents claimed never to have done so. In fact, 264, or 87%, had at least one account subject to an arbitration clause. These and other findings reported in this Article should cause concern among judges and policymakers considering mandatory pre-dispute consumer arbitration agreements. Our results suggest that many citizens assume that they have a right to judicial process that they cannot lose as a result of their acquiescence in a form consumer contract. They believe that this right to judicial process will outweigh what one respondent referred to as a “whimsy little contract.” Our results suggest further that citizens are giving up these rights unknowingly, either because they do not realize they have entered into an arbitration agreement or because they do not understand the legal consequences of doing so. Given the degree of misunderstanding the results demonstrate, we question whether meaningful consent is possible in the consumer arbitration context

The Right to a Jury Decision on Questions of Fact Under the Seventh Amendment

In a series of decisions over the last decade, the Supreme Court has reconsidered an aspect of the Seventh Amendment that has been long overlooked: the allocation of particular questions to the judge or the jury in a case where the right to a jury trial applies. Breaking with historical practice, the Court has emphasized considerations other than the fact-law distinction as a basis for identifying the questions that must go to the jury. Most prominently, in Markman v. Westview Instruments, Inc., the Court focused on \u27functional considerations in assigning a question of patent claim construction to the judge. In this Article, the author critiques the Court\u27s recent Seventh Amendment jurisprudence, arguing that the Seventh Amendment compels courts to assign questions of fact to the jury. The author then proposes a test for identifying questions of fact based on the types of inferences required to answer a particular question. Under this test, questions requiring inductive inferences about the transactions or occurrences in dispute are \u27fact questions, which must be decided by the jury in appropriate cases. All other questions may permissibly be answered by the judge. The author applies this test to the Court\u27s recent decisions to show how an inferential understanding of the fact-law distinction can help resolve the most difficult issues of decisional responsibility

Consent, Coercion, and "Reasonableness" in Private Law: The Special Case of the Property Owners Association

This article examines property owner association decision making and the current standards of judicial review that prevail in reported cases. Part II outlines the factual and legal background of property owner associations. Part III provides an overview of the consent/coercion debate. Part IV addresses regulation without consent. Part V analyzes measuring utility under the efficiency principle. Part VI examines measuring harm under the unanimity and compensation principles. Part VII explores protection of personhood interests

Constitución del grupo de modelización de sistemas agrícolas españoles de REMEDIA (ReMSAE)

3 Pags.- Fots.- Figs.A principios de este mes de Diciembre tuvo lugar en el Basque Centre for Climate Change (BC3, Bilbao) el primer taller de modelización de emisiones de gases de efecto invernadero (GEI) en agrosistemas españoles. Enmarcada dentro de la red REMEDIA, esta actividad contó con la participación de un grupo de modelizadores de distintos centros de investigación y universidades españoles (BC3, UPM, CSIC, UdL y CIFA) que presentaron su trabajo en este ámbito y elaboraron un plan de trabajo a seguir en el futuro inmediato.Peer reviewe

Mediation and the Neocolonial Legal Order: Access to Justice and Self-Determination in the Philippines

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965)

Colliflower v. Garlan

Book Reviews

Book Review

Introduction to the Judge James R. Browning Symposium Series

Introduction to the Judge James R. Browning Symposium Serie