Today, there is little question that faculty scholarship is intimately related to the reputation ... more Today, there is little question that faculty scholarship is intimately related to the reputation of a law school, and also relatedly, to the law school rankings game. Central to this reality are some emergent administrative positions — the position of Associate Dean for Research, for example — which carry important possibilities for a law school, both internally and externally, in terms of promoting attention to scholarship. Yet this position, which has only recently emerged in law schools over the last twenty years, is also one that is largely fluid and often determined by the relative institutional capabilities of the rest of the University administration, in addition to the larger landscape of legal education. Because there is no precise one-size-fits-all model for an Associate Dean, the fluidity of the position enables us to consider a range of variables that impact scholarly visibility, both internally within a law school community, and externally within the larger scholarly wo...
Despite the growing recognition of transgender rights in both law and culture, there is one area ... more Despite the growing recognition of transgender rights in both law and culture, there is one area of law that has lagged behind: family law’s treatment of transgender parents. We perform an investigation of the way that transgender parents are treated in case law and discover striking results regarding the outcomes for transgender parents within the family court system. Despite significant gains for transgender plaintiffs in employment and other areas of law, the evidence reveals an array of ways in which the family court system has systematically alienated the rights and interests of transgender parents. In many cases involving custody or visitation, we find that the transgender parent loses their bid, sometimes even losing their right to be recognized as a parent. This absence of equal treatment is striking and deserving of analysis, particularly given the law’s shift toward a standard that is supposed to minimize the risk of bias in LGBT parenting cases. In a striking number of ca...
Today, the government relies on machine learning and AI in predictive policing analysis, family c... more Today, the government relies on machine learning and AI in predictive policing analysis, family court delinquency proceedings, parole decisions, and DNA and forensic science techniques, among other areas, producing a fundamental conflict between civil rights and automated decisionmaking. Ground zero for this conflict, I argue, has become the murky, messy intersection between software, trade secrecy, and public governance. In many cases of automated decisionmaking, algorithms – and the source code that informs them, are hidden from public view, even though they implicate core constitutional protections of due process, individualized justice and equal protection. However, because they are often protected as trade secrets, they can remain entirely free from public scrutiny. This article argues that the constitutionally-inflected conflict that we now face is, in no small part, attributable to a core failure of our system of intellectual property to address, definitively, the boundaries ...
Fordham Intellectual Property, Media & Entertainment Law Journal, 2007
This year our panel will be discussing the fair use issue-its application, limitations, and futur... more This year our panel will be discussing the fair use issue-its application, limitations, and future. We have a wonderful panel here. I would like to thank everyone here, and also everyone who has been supporting us since June in the preparation of this Symposium. I would also like to thank Professor Hansen, who is really the mastermind behind all this. Without him, we could not prepare this Symposium. The moderator of this panel is Sonia Katyal. She is teaching intellectual property law classes here at Fordham Law School, and also civil rights classes and property classes. She has multiple publications on these subjects.
This article responds to an emerging view, in scholarship and popular society, that it is normati... more This article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that protections for cultural property impede the free flow of ideas, speech, and perhaps culture itself. In our view, these critiques arise largely because commentators associate "property" with a narrow model of individual ownership -- emphasizing rights of exclusion and alienation and norms of commensurability and commodification -- that reflects neither the substance of indigenous cultural property claims, nor major theoretical developments in the broader field of property law. Drawing upon the foundational work of Margaret Jane Radin linking "property" to "personhood," this Article situates indigenous cultural property claims (particularly those of American Indians) within the interests of "peoples," and "peoplehood.&quo...
The American University journal of gender, social policy & the law, 2005
Today, it is no secret that the regime of copyright law, once an often-overlooked footnote to our... more Today, it is no secret that the regime of copyright law, once an often-overlooked footnote to our legal system of property, now occupies a central position in modern debates surrounding the relationship between freedom of expression, language, and ownership. Curiously, however, while contemporary scholarship on copyright now embraces a wide range of political and economic approaches, it has often failed to consider how intellectual property law - as it is owned, constituted, created, and enforced - both benefits and disadvantages segments of the population in divergent ways. This absence is both vexing and fascinating. While issues of distributive justice have permeated almost every other area of legal scholarship, scholarship on intellectual property, while perfectly poised to grapple with these aspects, has traditionally reflected a striking lack of attention to these considerations. Indeed, far from being a value-neutral regime, the history of intellectual property law reveals an...
The emergence of platforms has transformed the digital economy, reshaping and recasting online tr... more The emergence of platforms has transformed the digital economy, reshaping and recasting online transactions within the service industry. This transformation, as many have argued, has created new and unimagined challenges for policymakers and regulators, as well as for traditional, offline companies. Most scholarship examining platforms discuss their impact on employment law or consumer protection. Yet trademark law, which is central to the success of the platform enterprise, has been mostly overlooked within these discussions. To address this gap, this article discusses the emergence of two central forms of platform entrepreneurship — the platform, or “macrobrand” and the platform service provider, or the “microbrand.” As we argue, the macrobrand and microbrand interact with trademark law — and one another — in ways that challenge conventional models of trademark application and expose their existing limitations. In exposing how platform architecture causes an unsustainable tension ...
Most people do not hold those who intentionally flout property laws in particularly high regard. ... more Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a "wrongdoer" comports with the status of property rights within our characteristically individualist, capitalist, political culture. This reflexively dim view of property lawbreakers is also shared, to a large degree, by property theorists, many of whom regard property rights as a relatively fixed constellation of entitlements that collectively produce stability and efficiency through an orderly system of ownership. In this Article, Professors Peihalver and Katyal seek partially to rehabilitate the reviled character of the intentional property lawbreaker, and to show how property outlaws have played an important role in the evolution and transfer of property entitlements. The authors develop a typology of the property outlaw by distinguishing between "acquisitive" and "expressive" outlaws. They sh...
Even though most scholars and judges treat intellectual property law as a predominantly content-n... more Even though most scholars and judges treat intellectual property law as a predominantly content-neutral phenomenon, trademark law contains a statutory provision, section 2(a), that provides for the cancellation of marks that are “disparaging,” “immoral,” or “scandalous.” This provision has raised intrinsically powerful constitutional concerns, which invariably affect two central metaphors that are at war within trademark law: the marketplace of goods, which premises itself on the fixedness of intellectual properties, and the marketplace of ideas, which is premised on the very fluidity of language itself. Since the architecture of trademark law focuses only on how marks communicate information about a certain product or corporation within the marketplace of goods, it largely underestimates the more complex role that trademarks play within the marketplace of ideas. Conversely, by only taking into account a brand’s expressive implications, the provisions governing scandalous, disparagi...
for excellent research assistance. Thanks also to the participants in the Trademarks, Branding an... more for excellent research assistance. Thanks also to the participants in the Trademarks, Branding and Freedom of Expression course for such stimulating discussions of these issues.
Professor Edward Felten has observed, "[i]n technology policy debates, lawyers put too much ... more Professor Edward Felten has observed, "[i]n technology policy debates, lawyers put too much faith in technical solutions, while technologists put too much faith in legal solutions." In their Article, The Best Available Technology Standard, Lital Helman and Professor Gideon Parchomovsky demonstrate the power and potential consequences of "Felten's Law" as they consider whether the current "safe harbor" architecture of the Digital Millennium Copyright Act ("DMCA") strikes the appropriate public policy balance concerning online copyright infringement and the open Internet, ultimately concluding that it cannot without the help of "the best filtering technology available" to guide and architect the contours of legally permissible behaviors online.The authors' proposal would profoundly alter the legal and technical schemata of the Internet: offering immunity only for webhosts that employ the best available method for filtering cont...
This Article responds to an emerging view, in scholarship and popular society, that it is normati... more This Article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that propertizing culture impedes the free flow of ideas, speech, and perhaps culture itself. In our view, these critiques arise largely because commentators associate "property" with a narrow model of individual ownership that reflects neither the substance of indigenous cultural property claims nor major theoretical developments in the broader field of property law. Thus, departing from the individual rights paradigm, our Article situates indigenous cultural property claims, particularly those of American Indians, in the interests of "peoples" rather than "persons," arguing that such cultural properties are integral to indigenous group identity or peoplehood, and deserve particular legal protection. Further, we observe that whereas individual rights are overwhelmingly advanced by property law's dominant ownership model, which consolidates control in the title-holder, indigenous peoples often seek to fulfill an ongoing duty of care toward cultural resources in the absence of title. To capture this distinction, we offer a stewardship model of property to explain and justify indigenous peoples' cultural property claims in terms of nonowners' fiduciary obligations toward cultural resources. We posit that re-envisioning cultural property law in terms ofpeoplehood and stewardship more fully illuminates both the particular nature of indigenous claims and the potential for property law itself to embrace a broader and more flexible set of interests.
Today, there is little question that faculty scholarship is intimately related to the reputation ... more Today, there is little question that faculty scholarship is intimately related to the reputation of a law school, and also relatedly, to the law school rankings game. Central to this reality are some emergent administrative positions — the position of Associate Dean for Research, for example — which carry important possibilities for a law school, both internally and externally, in terms of promoting attention to scholarship. Yet this position, which has only recently emerged in law schools over the last twenty years, is also one that is largely fluid and often determined by the relative institutional capabilities of the rest of the University administration, in addition to the larger landscape of legal education. Because there is no precise one-size-fits-all model for an Associate Dean, the fluidity of the position enables us to consider a range of variables that impact scholarly visibility, both internally within a law school community, and externally within the larger scholarly wo...
Despite the growing recognition of transgender rights in both law and culture, there is one area ... more Despite the growing recognition of transgender rights in both law and culture, there is one area of law that has lagged behind: family law’s treatment of transgender parents. We perform an investigation of the way that transgender parents are treated in case law and discover striking results regarding the outcomes for transgender parents within the family court system. Despite significant gains for transgender plaintiffs in employment and other areas of law, the evidence reveals an array of ways in which the family court system has systematically alienated the rights and interests of transgender parents. In many cases involving custody or visitation, we find that the transgender parent loses their bid, sometimes even losing their right to be recognized as a parent. This absence of equal treatment is striking and deserving of analysis, particularly given the law’s shift toward a standard that is supposed to minimize the risk of bias in LGBT parenting cases. In a striking number of ca...
Today, the government relies on machine learning and AI in predictive policing analysis, family c... more Today, the government relies on machine learning and AI in predictive policing analysis, family court delinquency proceedings, parole decisions, and DNA and forensic science techniques, among other areas, producing a fundamental conflict between civil rights and automated decisionmaking. Ground zero for this conflict, I argue, has become the murky, messy intersection between software, trade secrecy, and public governance. In many cases of automated decisionmaking, algorithms – and the source code that informs them, are hidden from public view, even though they implicate core constitutional protections of due process, individualized justice and equal protection. However, because they are often protected as trade secrets, they can remain entirely free from public scrutiny. This article argues that the constitutionally-inflected conflict that we now face is, in no small part, attributable to a core failure of our system of intellectual property to address, definitively, the boundaries ...
Fordham Intellectual Property, Media & Entertainment Law Journal, 2007
This year our panel will be discussing the fair use issue-its application, limitations, and futur... more This year our panel will be discussing the fair use issue-its application, limitations, and future. We have a wonderful panel here. I would like to thank everyone here, and also everyone who has been supporting us since June in the preparation of this Symposium. I would also like to thank Professor Hansen, who is really the mastermind behind all this. Without him, we could not prepare this Symposium. The moderator of this panel is Sonia Katyal. She is teaching intellectual property law classes here at Fordham Law School, and also civil rights classes and property classes. She has multiple publications on these subjects.
This article responds to an emerging view, in scholarship and popular society, that it is normati... more This article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that protections for cultural property impede the free flow of ideas, speech, and perhaps culture itself. In our view, these critiques arise largely because commentators associate "property" with a narrow model of individual ownership -- emphasizing rights of exclusion and alienation and norms of commensurability and commodification -- that reflects neither the substance of indigenous cultural property claims, nor major theoretical developments in the broader field of property law. Drawing upon the foundational work of Margaret Jane Radin linking "property" to "personhood," this Article situates indigenous cultural property claims (particularly those of American Indians) within the interests of "peoples," and "peoplehood.&quo...
The American University journal of gender, social policy & the law, 2005
Today, it is no secret that the regime of copyright law, once an often-overlooked footnote to our... more Today, it is no secret that the regime of copyright law, once an often-overlooked footnote to our legal system of property, now occupies a central position in modern debates surrounding the relationship between freedom of expression, language, and ownership. Curiously, however, while contemporary scholarship on copyright now embraces a wide range of political and economic approaches, it has often failed to consider how intellectual property law - as it is owned, constituted, created, and enforced - both benefits and disadvantages segments of the population in divergent ways. This absence is both vexing and fascinating. While issues of distributive justice have permeated almost every other area of legal scholarship, scholarship on intellectual property, while perfectly poised to grapple with these aspects, has traditionally reflected a striking lack of attention to these considerations. Indeed, far from being a value-neutral regime, the history of intellectual property law reveals an...
The emergence of platforms has transformed the digital economy, reshaping and recasting online tr... more The emergence of platforms has transformed the digital economy, reshaping and recasting online transactions within the service industry. This transformation, as many have argued, has created new and unimagined challenges for policymakers and regulators, as well as for traditional, offline companies. Most scholarship examining platforms discuss their impact on employment law or consumer protection. Yet trademark law, which is central to the success of the platform enterprise, has been mostly overlooked within these discussions. To address this gap, this article discusses the emergence of two central forms of platform entrepreneurship — the platform, or “macrobrand” and the platform service provider, or the “microbrand.” As we argue, the macrobrand and microbrand interact with trademark law — and one another — in ways that challenge conventional models of trademark application and expose their existing limitations. In exposing how platform architecture causes an unsustainable tension ...
Most people do not hold those who intentionally flout property laws in particularly high regard. ... more Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a "wrongdoer" comports with the status of property rights within our characteristically individualist, capitalist, political culture. This reflexively dim view of property lawbreakers is also shared, to a large degree, by property theorists, many of whom regard property rights as a relatively fixed constellation of entitlements that collectively produce stability and efficiency through an orderly system of ownership. In this Article, Professors Peihalver and Katyal seek partially to rehabilitate the reviled character of the intentional property lawbreaker, and to show how property outlaws have played an important role in the evolution and transfer of property entitlements. The authors develop a typology of the property outlaw by distinguishing between "acquisitive" and "expressive" outlaws. They sh...
Even though most scholars and judges treat intellectual property law as a predominantly content-n... more Even though most scholars and judges treat intellectual property law as a predominantly content-neutral phenomenon, trademark law contains a statutory provision, section 2(a), that provides for the cancellation of marks that are “disparaging,” “immoral,” or “scandalous.” This provision has raised intrinsically powerful constitutional concerns, which invariably affect two central metaphors that are at war within trademark law: the marketplace of goods, which premises itself on the fixedness of intellectual properties, and the marketplace of ideas, which is premised on the very fluidity of language itself. Since the architecture of trademark law focuses only on how marks communicate information about a certain product or corporation within the marketplace of goods, it largely underestimates the more complex role that trademarks play within the marketplace of ideas. Conversely, by only taking into account a brand’s expressive implications, the provisions governing scandalous, disparagi...
for excellent research assistance. Thanks also to the participants in the Trademarks, Branding an... more for excellent research assistance. Thanks also to the participants in the Trademarks, Branding and Freedom of Expression course for such stimulating discussions of these issues.
Professor Edward Felten has observed, "[i]n technology policy debates, lawyers put too much ... more Professor Edward Felten has observed, "[i]n technology policy debates, lawyers put too much faith in technical solutions, while technologists put too much faith in legal solutions." In their Article, The Best Available Technology Standard, Lital Helman and Professor Gideon Parchomovsky demonstrate the power and potential consequences of "Felten's Law" as they consider whether the current "safe harbor" architecture of the Digital Millennium Copyright Act ("DMCA") strikes the appropriate public policy balance concerning online copyright infringement and the open Internet, ultimately concluding that it cannot without the help of "the best filtering technology available" to guide and architect the contours of legally permissible behaviors online.The authors' proposal would profoundly alter the legal and technical schemata of the Internet: offering immunity only for webhosts that employ the best available method for filtering cont...
This Article responds to an emerging view, in scholarship and popular society, that it is normati... more This Article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that propertizing culture impedes the free flow of ideas, speech, and perhaps culture itself. In our view, these critiques arise largely because commentators associate "property" with a narrow model of individual ownership that reflects neither the substance of indigenous cultural property claims nor major theoretical developments in the broader field of property law. Thus, departing from the individual rights paradigm, our Article situates indigenous cultural property claims, particularly those of American Indians, in the interests of "peoples" rather than "persons," arguing that such cultural properties are integral to indigenous group identity or peoplehood, and deserve particular legal protection. Further, we observe that whereas individual rights are overwhelmingly advanced by property law's dominant ownership model, which consolidates control in the title-holder, indigenous peoples often seek to fulfill an ongoing duty of care toward cultural resources in the absence of title. To capture this distinction, we offer a stewardship model of property to explain and justify indigenous peoples' cultural property claims in terms of nonowners' fiduciary obligations toward cultural resources. We posit that re-envisioning cultural property law in terms ofpeoplehood and stewardship more fully illuminates both the particular nature of indigenous claims and the potential for property law itself to embrace a broader and more flexible set of interests.
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Papers by Sonia Katyal