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The Many Sins of College Admissions
The clearest message to emerge from the court case on Harvard’s consideration of race in admissions is that elite schools are very far from being able to achieve diverse student bodies using only race-neutral methods
The End of the Gay-Panic Legal Defense
Seven state legislatures have passed bills banning defendants from blaming their actions on a sudden emotional response to an unwanted advance.
The Supreme Court Is One Vote Away from Changing How the U.S. Is Governed
With the decision in Gundy v. United States, we are now explicitly on notice that the Court will likely abandon its longstanding tolerance of Congress delegating broadly to federal agencies.
How Fetal Personhood Emerged as the Next Stage of the Abortion Wars
The abortion fight we are gearing up for departs from the realm of uneasy compromise and reengages the clash of absolutes.
What do the Mona Lisa, the light bulb, and a Lego brick have in common? The answer – intellectual property (IP) – may be surprising, because IP laws are all about us, but go mostly unrecognized. They are complicated and arcane, and few people understand why they should care about copyright, patents, and trademarks. In this lustrous collection, Claudy Op den Kamp and Dan Hunter have brought together a group of contributors – drawn from around the globe in fields including law, history, sociology, science and technology, media, and even horticulture – to tell a history of IP in 50 objects. These objects not only demonstrate the significance of the IP system, but also show how IP has developed and how it has influenced history. Each object is at the core of a story that will be appreciated by anyone interested in how great innovations offer a unique window into our past, present, and future.
Testimony of Jeannie Suk Gersen, United States Senate Committee on Health, Education, Labor and Pensions
Hearing on Reauthorizing HEA: Addressing Sexual Assault and Ensuring Student Safety and Rights
Robert Mueller’s and William Barr’s “Baby” and the History of Presidential Obstruction
Obstruction of justice has been a basis for articles of impeachment against two Presidents in the past fifty years. Could Donald Trump become the third?
Donald Trump, the A.C.L.U., and the Ongoing Battle Over the Legitimacy of Free Speech
With liberal and left politics dominant on most campuses, the President can feel confident that his recent executive order serves as a partisan attack.
Unpopular Speech in a Cold Climate
What happens today if one agrees to represent an accused #MeToo villain or speaks out in defense of his due-process rights?
Assessing Betsy DeVos’s Proposed Rules on Title IX and Sexual Assault
There is much to criticize in the Secretary of Education’s suggested regulations, but also much that would help make school’s handling of misconduct fairer to all parties.
At Trial, Harvard’s Asian Problem and a Preference for White Students from “Sparse Country”
It was revealed in court that Asian students in underrepresented parts of the country have to score higher on standardized tests than their white counterparts do in order to receive a recruitment letter from Harvard.
Anti-Asian Bias, Not Affirmative Action, Is on Trial in the Harvard Case
It is important not to conflate two separate concepts: the legal issue of affirmative action and the factual issue of whether Harvard discriminated against one particular racial group.
Brett Kavanaugh’s Damaging, Revealing Partisan Bitterness
The damage to the legitimacy of the Supreme Court and the Senate confirmation process is incalculable, whether he is confirmed or not.
Does Christine Blasey Ford’s Testimony Require Corroboration?
In a court of law, a judge or jury who believes that a witness is telling the truth can convict someone of a crime even without corroborating evidence. This happens all the time.
Deborah Ramirez’s Allegation Against Brett Kavanaugh Raises Classic Questions of Campus Assault Cases
The public is getting a crash course in what universities face when deciding how to evaluate accusations among students, with administrators having to know far more details than they might want to.
What Would a Serious Investigation of Brett Kavanaugh Look Like?
With the spectre of the Clarence Thomas hearings looming, Democrats and Republicans are arguing over how to handle proceedings that would consider Christine Blasey Ford’s sexual-assault allegation.
Understanding the Partisanship of Brett Kavanaugh’s Confirmation Hearings
The nomination, Kavanguh’s opponents recognize, presents the Senate with a political and moral choice that will directly affect the lives of the most vulnerable.
What Michael Cohen’s Guilty Plea Doesn’t Tell Us About Trump
The truth is that Cohen’s confession of a criminal motive does not necessarily establish Trump’s. In fact, a lifetime habit of behaving sleazily may very well help the President.
Bill Cosby’s Crimes and the Impact of #MeToo on the American Legal System
Anticipating the decision in Cosby’s retrial for sexual-assault charges was like girding for a verdict on the #MeToo movement itself.
Trump’s Affairs and the Future of the Nondisclosure Agreement
A cottage industry of “Fire and Fury”-style tell-alls hangs in the balance.
Donald Trump’s Brain Is a Catch-22
If he mentally unfit to hold the office of President, then he may be incapable of criminal intent.
The Transformation of Sexual-Harassment Law Will Be Double-Faced
To glimpse the future of Title VII enforcement, we should take a look at the recent history of Title IX.
How Anti-Trump Psychiatrists Are Mobilizing Behind The Twenty-Fifth Amendment
The Duty to Warn movement breaks with long-standing protocol to sound the alarm on an unstable President.
Why Didn't The Manhattan D.A. Cyrus Vance Prosecute The Trumps Or Harvey Weinstein?
Part of the answer might be found in the spectacular failure of the Dominique Strauss-Kahn sexual-assault case, in 2011.
Laura Kipnis's Endless Trial By Title IX
Students and educators now live in a world where expressing an opinion about sexual harassment can be sincerely perceived as sexual harassment.
Betsy Devos, Title IX, And The "Both Sides" Approach To Sexual Assault
If another official in another Administration had made the same statements, they would be seen as reasonable, even banal.
Will Trump Be The Death Of The Goldwater Rule?
It was meant to prevent psychiatrists from politicizing their authority. But now it’s muzzling them in the midst of a vital public debate.
The Uncomfortable Truth About Affirmative Action And Asian-Americans
Since the nineties, the share of Asians in Harvard’s freshman class has remained stable, while the percentage of Asians in the U.S. population has more than doubled.
Trump's Tweeted Transgender Ban Is Not A Law
Trump seems to have taken military leaders by surprise on Wednesday by suddenly announcing a full transgender military ban.
The Trump Administration's Fraught Attempt To Address Campus Sexual Assault
Many people are skeptical of policy changes from a President who himself has been accused of sexual assault.
Doing Hard Time
Coming of Age With Clarence
Wall Street Journal Commentary Piece
Self Defense Is Part of Our Heritage
Professor Jeannie Suk Gersen writes an opinion piece for The New York Times, Room for Debate.
Little Red (Litigious) Shoes
Jeannie Suk Gersen, Jeannie Suk, a professor of law at Harvard who testified last summer at a Congressional hearing on the Innovative Design Protection and Piracy Prevention Act, addresses the question: Can you trademark the color red?
Schumer's Project Runway
Why Racially Offensive Trademarks Are Now Legally Protected
The Court’s unanimous decision assumed that, though words may hurt, the harm to our polity is far greater when the government gets to suppress expression.
The Trouble with Teaching Rape Law
Some students have suggested that rape law should not be taught because of its potential to cause distress.
St. Paul’s School and a New Definition of Rape
The recent trial and sentencing of a prep-school student raises questions about changing attitudes toward what constitutes rape.
A New Family Feeling on Campus
Today’s student protesters are directing anger at faculty and administrators, but this time the parental dynamic is notably different.
Shutting Down Conversations About Rape at Harvard Law
What could possibly be the logic behind the claim that criticism of a documentary could cause students to feel unsafe?
Who's Afraid of Gender-Neutral Bathrooms?
How the multi-stall restroom became the last public vestige of gendered social separation in America.
What's Wrong with the Redskins?
In a country with such a strong commitment to free speech that even hate speech is constitutionally protected, the disparaging-trademarks provision is an anomaly.
The Transgender Bathroom Debate and the Looming Title IX Crisis
The federal government has set in motion a potential Title IX collision course between its directives on sexual violence and on bathrooms.
The Unintended Consequences of the Stanford Rape-Case Recall
Activists are right to protest the lenient sentence Aaron Persky gave Brock Turner, but efforts to recall judges can have complicated effects.
College Students Go to Court Over Sexual Assault
Several recent lawsuits claim that university procedures developed to protect the Title IX rights of sexual-assault victims violate the Title IX rights of the accused.
What "Design Copyright"?
Earlier this month, in an important copyright ruling, the Supreme Court dropped a puzzling clue about copyright for designs that merits examination. In an opinion authored by the Court’s foremost copyright scholar, Justice Breyer, the Court posited a “design copyright” for a “dress” made in China and then sold in the United States. The statement is striking because courts have traditionally denied the copyrightability of fashion designs, including dress designs; a proposed bill to add fashion designs to copyrightable subject matter has not yet been passed by Congress. In this Reaction, we explain the Court’s unexpected comment and why it matters.
The Squint Test
How to protect fashion designers like Jason Wu from Forever 21 knockoffs.
Brief of Professors Jeannie Suk Gersen and C. Scott Hemphill as Amici Curiae In Support of Respondents
What is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act?
The Look in His Eyes': The Story of State v. Rusk and Rape Reform
This chapter for Criminal Law Stories (Robert Weisberg & Donna Coker eds., 2013), tells the story of State v. Rusk through the lens of rape law reform. Beginning in the 1970s, under the influence of feminism, some prevailing attitudes and expectations about sex between men and women started to change. Edward Rusk, like many guys, didn’t think he just had to stop because a girl who seemed interested said she didn’t want to have sex. He was convicted of rape at the cusp of legal transformation, when sexual behavior that had been socially commonplace was rapidly in the midst of being recast as criminal. Drawing on many interviews with lawyers, judges, and other people involved in the case, I tell the story of when and how a set of social norms of sex and dating became unacceptable. This is a story of the legal role and consequences of that social change.
The Fashion Originators’ Guild of America: Self-Help at the Edge of IP and Antitrust
The question of intellectual property for original fashion design has attracted enormous public attention in recent years. As we show in this chapter, the question has a storied past.
In the 1930s, as American fashion was coming into its own as a cultural force, designers worried about knockoffs. Then, as now, they lacked intellectual property protection for original fashion designs, and sought legislative protection. But they also pursued a regulatory solution, as part of New Deal responses to the Great Depression. They ultimately settled on an effective but controversial solution: a set of self-help measures targeting both copyists and retailers willing to merchandise knockoffs.
The resulting boycott, devised by the Fashion Originators’ Guild of America (“Guild”), was a massive private IP scheme. At its height, a staggering 4000 new designs were protected each month. The designers’ organized efforts at self-help to create design protection eventually gave rise to antitrust lawsuits in federal and state courts, culminating in a pair of 1941 Supreme Court cases.
This chapter tells the story of the Depression-era fashion designers, and the solutions they pursued to remedy the lack of intellectual property protection for their work. It describes the Guild’s formation and activities within the social, economic, and legal context of the Depression, and the fatal government scrutiny that eventually led to the Guild’s demise. Finally, it suggests some lessons as to both means and ends drawn from this story about fashion design protection: about self-help as a private solution to a public lack on the one hand, and about intellectual property protection for design on the other.
The College Sex Bureaucracy
To fight assault, the feds have made colleges clumsy monitors of students’ sex lives. Will the Trump administration reverse that trend?
Sex and administrative law are not words that are traditionally uttered in the saine breath. Yet, recently, administrative law scholars and courts have increasingly focused on precisely this relationship. The past decade has seen a transformation of the way sex discrimination, sexual violence, sexual harassment, and just plain sex is legally regulated in the United States. Increasingly, administrative agencies are defining what sex is permissible, requiring educational institutions to adopt particular policies on sex, and specifying how sex that deviates from those norms is investigated and adjudicated. Today, sex is a domain of the federal bureaucracy. The question is what role traditional administrative law principles will play in the administration of sex.
The Trajectory of Trauma: Bodies and Minds of Abortion Discourse
What is the legal import of emotional pain following a traumatic event? The idea of women traumatized by abortion has recently acquired a constitutional foothold. The present Article is about this new frontier of trauma. I argue that the legal discourse of abortion trauma grows out of ideas about psychological trauma that have become pervasively familiar in the law through the rise of feminism. The Supreme Court’s statement in Gonzales v. Carhart, that some women who have abortions feel “regret” resulting in “severe depression and loss of esteem,” has provoked searing criticism because talk of protecting women from psychological harm caused by their own decisions seems to recapitulate paternalistic stereotypes inconsistent with modern egalitarian ideals. I argue that a significant context for the newly prominent discourse of abortion regret is the legal reception of psychological trauma that has continually gained momentum through feminist legal thought and reform since the 1970s. Rather than representing a stark and unmotivated departure, the notion of abortion trauma continues a legal discourse that grew up in precisely that period: a feminist discourse of trauma around women’s bodies and sexuality. This intellectual context gives meaning to the present discourse of women’s psychological pain in our legal system. The ideas informing abortion regret are utterly familiar once contextualized in modern legal understandings of women that have developed in the period since Roe.
Reply: Remix and Cultural Production
The Law, Culture, and Economics of Fashion
Fashion is one of the world’s most important creative industries. As the most immediate visible marker of self-presentation, fashion creates vocabularies for self-expression that relate individuals to society. Despite being the core of fashion and legally protected in Europe, fashion design lacks protection against copying under U.S. intellectual property law. This Article frames the debate over whether to provide protection to fashion design within a reflection on the cultural dynamics of innovation as a social practice. The desire to be in fashion – most visibly manifested in the practice of dress – captures a significant aspect of social life, characterized by both the pull of continuity with others and the push of innovation toward the new. We explain what is at stake economically and culturally in providing legal protection for original designs, and why a protection against close copies only is the proper way to proceed. We offer a model of fashion consumption and production that emphasizes the complementary roles of individual differentiation and shared participation in trends. Our analysis reveals that the current legal regime, which protects trademarks but not fashion designs from copying, distorts innovation in fashion away from this expressive aspect and toward status and luxury aspects. The dynamics of fashion lend insight into dynamics of innovation more broadly, in areas where consumption is also expressive. We emphasize that the line between close copying and remixing represents an often underappreciated but promising direction for intellectual property today.
Is Privacy a Woman?
This essay is about the representation of privacy. Focusing on several of the Supreme Court’s Fourth Amendment cases regarding the police and the home, I explore judicial articulations of the meaning of private space. Several striking figures of women appear in the Justices’ opinions in Kyllo v. United States, and Georgia v. Randolph, for example, and represent different conceptions of privacy that are in dialogue and conflict. To theorize privacy in the home is to imagine a woman, and the way she is imagined is bound up with the idea of the home and stakes of privacy articulated. From the lady of the house in the bath, to the lady at home receiving callers, to the battered woman, distinctive figures of women reveal peculiar fault lines in the modern meaning of privacy in an era of judicial commitment to gender equality. Even long after the gradual demise of the particular marital privacy associated with the common law of coverture, the idea of protecting women from men remains central and appears today in new and different guises that evince both change and continuity in the legal meaning of the home.
At Home in the Law: How the Domestic Violence Revolution Is Transforming Privacy
Taking the Home
This essay juxtaposes two Supreme Court cases, Kelo v. City of New London, and Town of Castle Rock v. Gonzales. Both reflect on the meanings of home as simultaneously the source of security against the focal point of anxieties about crossing between the categories of the private and the public. This essay traces the specter of doubleness that haunts the home in the law: the uncanny ways in which the home emerges as the exemplary private institution and the exemplary public concern in our society.
The True Woman: Scenes from the Law of Self-Defense
Self-defense is undergoing an epochal transformation. In the last few years, dozens of states have passed or proposed new Castle Doctrine legislation intended to expand the right to use deadly force in self-defense. These bills derive their informal name from the traditional common law castle doctrine, which grants a person attacked in his own home the right to use deadly force without trying to retreat to safety. But the new Castle Doctrine statutes, conceived and advocated by the National Rifle Association, extend beyond the home to self-defense more broadly. This Article sets out to explicate, contextualize, and theorize this remarkable development in self-defense law. To do so, the Article investigates the ideas that shape these new Castle Doctrine laws. It offers an interpretive genealogy focused on three crucial turning points in the development of self-defense, and argues that each has left a defining ideological trace on the new laws. The central claim is that in each phase, self-defense law drew importantly but differently on the idea of the home; and, in each, the operative idea of the home was constituted specifically by gender roles therein. The Article shows that modern self-defense law exemplified by the new Castle Doctrine powerfully embeds these distinctive meanings of gender, home, and crime.
Japan's Uncomfortable History
The article comments on the move of Japanese Prime Minister Shinzo Abe to reopen past problems in Asia with his defense of Japan’s participation in sex slavery during World War II.
Criminal Law Comes Home
Though traditionally criminal law did not reach into the home to punish domestic violence, today such intervention in the home is well accepted and steadily growing. Because we all welcome that remedial development, we have taken little notice of the legal innovations in misdemeanor domestic violence enforcement that are transforming the role of criminal law in the home beyond the criminal punishment of violence. An important legal tool in this transformation is the protection order, which bans a person from the home on pain of arrest and enables treatment of presence at home as a proxy for violence. Through prosecutors’ routine deployment of protection orders in the criminal process at arraignment, plea bargaining, and sentencing, the home is becoming a space in which criminal law deliberately reorders and controls private rights and relationships in property and marriage–not as an incident of prosecution but as its goal. The growing criminal law use of protection orders to prohibit the cohabitation and contact of intimate partners (often when substantial jail time is not imposed) is a form of state-imposed de facto divorce that subjects the practical and substantive continuation of intimate relationships to criminal sanction. This displacement of the choice to live like intimate partners exemplifies the changing legal meaning of the home, wherein the archetype of private space becomes a site of intense public investment suitable for criminal law control.
This essay juxtaposes three contexts in which lawyers grapple with originality: copyright law, precedent-based legal reasoning, and law review publishing. I compare the dynamics of originality in each of these contexts. I focus on the literary genre of rewriting and its encounter with copyright law. I examine the interaction of rewriting and originality in one particular instance of judicial precedent-following. Finally, I reflect on the relation between preemption and citation in legal scholarship. In each of these contexts, originality and unoriginality form two sides of a double-edged sword: a paradox that derives from the application of lawyerly habits of mind to the unstable concept of originality.
Postcolonial Paradoxes in French Caribbean Writing: Césaire, Glissant, Condé
The Case Against Fox News
As Fox News confronts sexual-harassment claims, the former chairman Roger Ailes may not be the last executive to fall.
The Public Trial of Nate Parker
Nate Parker’s new film, “The Birth of a Nation,” is raising issues about social justice—but not the ones Parker intended.
The Legal Meaning of the Cosby Mistrial
Testimony of Jeannie Suk, House Committee on the Judiciary, Subcommittee on Intellectual Property, Competition, and the Internet
Hearing on H.R. 2511, the Innovative Design Protection and Piracy Prevention Act at the House Committee on the Judiciary Subcommittee on Intellectual Property, Competition, and the Internet.
What "Divorce" Understands About Marriage
The new HBO series shows that how people divorce can reveal more about a marriage than anything one could see before its unravelling.
The Sexual-Assault Election
Our ideas about sexual assault have shifted since the Clintons were last in power—as indicated by voters’ reactions to Trump’s “Access Hollywood” tape.
Gavin Grimm's Transgender-Rights Case and the Problem with Informal Executive Action
President Obama sidestepped the usual legal process in an attempt to secure transgender rights under Title IX. Now that strategy may backfire.
A Moment of Uncertainty for Transgender Rights
The potential to protect transgender students at the state and local level is real, but may be cold comfort.
A New Phase of Chaos On Transgender Rights
Questions about what constitutes sex discrimination against transgender people will be alive long after we have answers on bathroom access.
How Trump Has Stoked The Campus Debate On Speech and Violence
How do universities teach the reasoned discussion that is crucial to the health of democracy when students see dialogue as “violence”?
Timing of Consent
The Sex Bureaucracy
We are living in a new sex bureaucracy. Saliently decriminalized in the past decades, sex has at the same time become accountable to bureaucracy. In this Article, we focus on higher education to tell the story of the sex bureaucracy. The story is about the steady expansion of regulatory concepts of sex discrimination and sexual violence to the point that the regulated area comes to encompass ordinary sex. The mark of bureaucracy is procedure and organizational form. Over time, federal prohibitions against sex discrimination and sexual violence have been interpreted to require educational institutions to adopt particular procedures to respond, prevent, research, survey, inform, investigate, adjudicate, and train. The federal bureaucracy essentially required nongovernmental institutions to create mini-bureaucracies, and to develop policies and procedures that are subject to federal oversight. That oversight is not merely, as currently assumed, of sexual harassment and sexual violence, but also of sex itself. We call this “bureaucratic sex creep” — the enlargement of bureaucratic regulation of sexual conduct that is voluntary, non-harassing, nonviolent, and does not harm others. At a moment when it is politically difficult to criticize any undertaking against sexual assault, we are writing about the bureaucratic leveraging of sexual violence and harassment policy to regulate ordinary sex. An object of our critique is the bureaucratic tendency to merge sexual violence and sexual harassment with ordinary sex, and thus to trivialize a very serious problem. We worry that the sex bureaucracy is counterproductive to the goal of actually addressing the harms of rape, sexual assault, and sexual harassment. Our purpose is to guide the reader through the landscape of the sex bureaucracy so that its development and workings can be known and debated.