Faculty Chapters

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Against the Law

Amy M. Adler

Is MSCHF an art collective, a brand, or a stealth legal project? The answer is yes. I could probably find a MSCHF work as a case study for just about any topic I teach in my Art Law course at the NYU School of Law, where the collective has earned some key spots on my syllabus. They raise copyright violation to an art form, wreak havoc with trademark law, churn out forgeries, and relentlessly defy bedrock legal assumptions about creativity, authorship, and the art market. In fact, I would argue that while the collective is known for making art out of consumer products and consumer products out of art, law is just as much their medium as art and brands are. This essay, my contribution to the collective’s first book, Made by MSCHF, focuses on just one area where MSCHF lands on the wrong side of the law: moral rights law. As I argue, moral rights law was designed to protect art but does so enshrining a vision of art and artists that’s disappearing: the immutable masterpiece that must be preserved, the genius author/father who knows what’s best for the obedient work, the realm of art as transcendent. In MSCHF’s practice, destruction is just another tool of creativity, the author role is up for grabs, and the work is just another drop. As they move seamlessly between art and brand, between shows at the Perrotin gallery and drops of fucked-up sneakers, MSCHF exposes the hopelessly retrograde boundary that moral rights law depends on between art and commerce.
Assumptions Rational and Not: Reflections on Battilana’s and Walsh’s Chapters

Kwame Anthony Appiah

Attempts to understand the behavior of organizations in terms of the interactions of individual agents may not always provide much help in predicting what an organization will actually do. Critiques of the rational actor model include its neglect of cognitive limitations and the complexity of human motives. There are people whose behavior is causally central to the outcomes for organizations, including large ones, and their behavior is worth studying precisely for that reason. The chapter author sees value in theoretical pluralism and more attention to practical considerations in understanding organizational behavior. The chapter urges a balance between individual agency and structural influences.
Conceptual Engineering: Rethinking “Race”

Kwame Anthony Appiah

I begin, in Part I, with four general observations about engineering that have lessons for conceptual engineering. First, thoughtful engineering requires a design specification, a rough account of what the innovations in question are aimed at. Second, once we have the specification, we have to ask what’s necessary to achieve those aims. Third, there are usually many possible solutions, because (a) the aims are only vaguely specified and (b) there are all kinds of desiderata, each of which can be satisfied to a greater or lesser degree, and it’s both (c) unlikely that one solution is best with respect to all the constraints and (d) not clear how to rank them. Fourth, it can be very hard to predict how a proposed innovation might be taken up. This means that very often what’s needed is a trial-and-error process, in which proposals are made and we see what happens as they are and are not taken up. In Part II, I explore three observations we need to bear in mind when it is concepts, in particular, that are being engineered. First, we need to be clear what the aim is: in practice, it is to get people to use some word (old or new) in a particular way. Since what is involved is changing the behavior of large numbers of people in a coordinated way, what is going on is, in effect, a movement for social change. Also, second, because we are working on concepts, we need to be clear about some things about concepts: (a) they are best understood as embedded in theories, so that they come in clusters not one by one, and (b) most interesting concepts have very many conceptions, perhaps, at the finest grain, as many conceptions as users of a certain word. Third, the theories in question are going to be to some degree idealized. This means, I’ll argue, that truth isn’t all that matters. In Part III, I’ll explore some work in reshaping understandings of race in anglophone philosophy for the last half century, with these observations in mind.
Corporate Governance and Leadership: Reflections on Kailas’s and Mendiola’s Chapters

Kwame Anthony Appiah

Properly constructed corporations can exhibit some of the virtues they need, even if their employees often fall short, provided there are proper procedures in place. This might be the point of governance—including auditors, securities and exchange commissions, bank regulators, annual meetings—and of boards themselves. Beyond this formal governance, we likely need to draw on existing standards of professional ethics and to develop organization-specific norms. Kailas in his chapter focuses on developing a shared corporate purpose, emphasizing the role of leadership in decision-making. Mendiola in his chapter examines the moral virtues and skills essential for CEOs, stressing personal integrity and respectfulness. It’s really important that learning norms isn’t just a matter of figuring out what will get and lose you respect. It’s a matter of caring; about being worthy of respect; of knowing not just what will get you respect but what will actually entitle you to it.
Intellectual Property Law and the Dream of Post-scarcity Society

Barton C. Beebe

Luxury fashion seeks to aestheticize scarcity and transform its possession into a sign of social distinction. Intellectual property law plays a crucial role in this process. This essay considers the social function that intellectual property law may continue to play in a purportedly ‘post-scarcity’ society of the future. It asserts that though intellectual property law has long played a technologically progressive role in modern societies, its social function in such societies has been and will continue to be largely reactionary. Even in an otherwise post-scarcity society, intellectual property law will be used, as it is already being used, to preserve ‘social scarcity’ and regulate signs of social distinction.
Land Use Reform and Property Rights: The Need For Caution

Vicki L. Been

Professor Vicki Been explores how legislators have utilized property rights arguments to justify land use reforms. These laws have been triggered in part by the fears of homeowners who face devaluation of their properties, and by the need to balance the rights of landowners seeking development against the interests of existing homeowners. She looks to states that have been incubators for land use reform when they remove overly restrictive regulations. However, pre-existing homeowners who obtained ownership under restrictive private covenants have challenged the shift in land use reform as they face new developments interfering with their property. The legal arguments available to pre-existing homeowners to protect their constitutional property rights become critical impediments to change. Been speculates about whether one can succeed in fighting land use reform when the reform is grounded in sound public policy.
Economics and Contract Law

Richard R. W. Brooks

This chapter looks to the intersection of economics and contract law, though not from the more common perspective of the ‘economics of contract law,’ - rather by taking a view toward the ‘contract law of economics.’ To develop this alternative perspective the chapter departs with several functional definitions and then presents a taxonomy of modes of economic exchange. Thereafter, the chapter considers the role of contract law in economic thought, presenting a salient early moment in the analysis of economic exchange wherein the law of contracts appears to have had enabling impact on the development of economic thinking. The chapter concludes with a more recent moment when contract doctrine and case law influenced the development of an economic theory of performance and breach. Considered broadly, the chapter is an invitation to scholars to look for animating features of contract law hidden or implicit in economic thought and methods, and the reverse.
Fashion’s Function in Intellectual Property Law

Christopher Buccafusco and Jeanne C. Fromer

Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear understanding of the nature of functionality in fashion design. This chapter proposes a robust account of fashion’s function. It argues that aspects of garment designs are functional not only when they affect the physical or technological performance of a garment but also when they affect the perception of the wearer’s body. Generally, clothes are not designed or chosen simply to look good. They are also characteristically designed or chosen to look good on. This approach clarifies the appropriate treatment of fashion design in intellectual property, and it exposes the conceptual limitations of the U.S. Supreme Court’s copyright decision in Star Athletica, L.L.C. v Varsity Brands, Inc.
Contract Law and Inequality in the Global South: Brazil, Colombia, and South Africa

Kevin E. Davis and Mariana Pargendler

Does contract law have any role to play in tackling economic inequality, one of the most pressing problems of our time? The orthodox answer to this question is no: contract law should promote autonomy, efficiency, and/or justice in exchange, while distributive objectives should be dealt with exclusively through the fiscal system. Critics of this orthodoxy struggle with the prevailing understanding that contract law around the world has converged on doctrines that are insensitive to distributive considerations. This chapter contributes to this debate by showing how courts in South Africa, Brazil and Colombia prominent Global South countries from different legal traditions – have recently diverged from orthodoxy to embrace the task of using contract law to address inequality. The emergence of contract law heterodoxy in Global South countries draws attention to the existing, if more limited, instances of heterodoxy in the contract laws of the United States and Europe and to the stakes of contract law more generally. This analysis highlights how mounting inequality may increase the appeal of contract law heterodoxy and suggests that the present reign of contract law orthodoxy is neither universal nor inevitable.
Legal Heterodoxy in the Global South: Adapting Private Laws to Local Contexts

Kevin E. Davis and Mariana Pargendler

How do private law institutions of developing countries differ from those of developed countries? A common view is that the legal systems of the Global South are often outdated, failed transplants of Global North models, or plagued by enforcement challenges. This book project offers a different perspective by focusing on legal innovation and adaptation in the Global South. We examine how countries in the Global South have embraced legal doctrines and solutions that deviate from approaches that currently hold the status of orthodoxy in richer countries, and pursue distinct and potentially broader public policy objectives or reflect different values, in response to conditions that are commonplace in developing countries. Our analysis points to reasons why the legacy of colonialism, limited fiscal capacity, economic dependence on richer countries, and macro-economic volatility may encourage lawmakers in poor countries to develop heterodox doctrines. We explore different manifestations of legal heterodoxy across various areas of private law in a range of countries in the Global South. Recognizing legal heterodoxies in the Global South enlarges our understanding of legal experiences and possibilities, and contributes to our understanding about the driving forces and direction of legal evolution around the world.
Foreword: A Tribute to Harry First: Friend and Colleague

Rochelle C. Dreyfuss

This book is a tribute to the many important contributions that Harry First has made to the field of antitrust law. I, however, offer a different perspective. I am not an antitrust scholar. But I know Harry well, as a mentor par excellence, an institutional bedrock, a gifted teacher, and the best colleague and friend one could have.
Setting the Table: A Taxonomy of Intellectual Property's Interactions with Other Legal Regimes and Disciplines

Rochelle C. Dreyfuss

Once a legal backwater, intellectual property and intellectual property (IP) law are now important to discussions about national and international public policy and in the construction of the legal order. Moreover, other legal disciplines have taken on questions related to promoting innovation and ensuring public access to crucial technological and cultural works. These disciplines have much to learn from the experience of the IP community. At the same time, the IP community must now consider the impact of these other regimes. Some of the other regimes have, in turn, been influenced by disciplines outside law, including economics, psychology, political science, and cultural studies. Thus, the IP community must also reckon with the indirect (and sometimes direct) effect of important developments that are entirely outside the legal realm. As this volume demonstrates, the integration of IP law into the legal order creates rich opportunities for cross-pollination. This chapter provides an overview of that analysis.
Laying the Foundation for a Market Economy

Richard A. Epstein

The political separation pursued by the American founding was sharp and violent. But the transition to an independent American legal order was far less so. Note, for instance, the continuity between two systems in Article XXV of the 1777 New York Constitution: And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on [April 19, 1777] shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same. Nor was this the only way in which the new regime derived from the old. The American constitutional system ultimately contained many features that were partial departures from the English model (like having a president and not a king). But much of its federal system was an adaptation that put the federal government in the place of the English government and left most of the governing to the states, deploying only (what seemed at the time) enumerated powers to define the federal government’s role. This relatively smooth doctrinal transition makes it possible to examine the American system in light of the English one. Unsurprisingly, many of the tensions evident in legal debates in Great Britain, which was in the midst of its first industrial revolution, carried over to the United States. This was especially true with what we would now call economic policy.
Once More into the Rent Control Abyss

Richard A. Epstein

Rent control has been a source of controversy and confusion since its constitutionality was first sustained in 1921 by a bare five-to-four vote in Block v. Hirsh. Over the next 100-plus years, various permutations on the basic rent control design have been developed by imaginative governments, only to be vigorously attacked on a range of inventive constitutional theories relating to property, contract, and equal protection. In virtually every case, subject to only one minor exception of theoretical interest, the outcome is clear: these counterattacks have been foiled, so that rent control laws today look to be per se legal, no matter their form, origins, or effects. Yet this uniform triumphant success of rent control statutes should be the source of social anxiety, not jubilation. Today's rent control rules are no longer a minor irritation whose impact will diminish over time. Rent control has grown from its modest origins into a powerful and entrenched system. It is run by multiple state and city administrative agencies, backed by specialized courts, and politically supported by cohesive tenant lobbying groups. Their combined efforts have now demonstrated an increasing capacity to upend housing markets in major cities in both the short and the long term.
The 100-Year Life Meets the Future of Work

Cynthia Estlund

This chapter addresses the implications of the 100-year-life for the future of work and the law of work. To begin with, longer lives will pose severe actuarial challenges to all existing strategies for ensuring retirement income security. At least without a dramatic (and probably unjustified) shift of social welfare expenditures into support of nonworking seniors, most people will probably have to work longer, if they are healthy and able, to generate enough income for retirement. The chapter then turns to how the law of work might have to change to accommodate longer working lives. Leaving aside the law of age discrimination (addressed in another chapter), longer working lives will recast longstanding debates over job security and will highlight the need to make work and work schedules less demanding, especially as workers age. This chapter will explore these challenges and how demographic changes will intersect with changing technology and its impact on the nature and number of jobs.
Employment Arbitration: Towards a Hearing on the Merits for Most Americans

Samuel Estreicher

This article posits that the arbitral forum might be preferable to court litigation because it is considerably more accessible to workers who cannot afford or do not have claims interesting enough to attract private counsel or in many cases administrative agencies as well This article questions whether the existing justice system truly serves most employee claimants better than a private arbitration system. The author supports these claims with available empirical evidence, which establishes that arbitration is faster than litigation and that employee claimants win more frequently in arbitration, albeit receiving lower awards. The article leverages this information to support the theory that courts offer “Cadillac” justice to high-income employees with claims large enough to attract a private lawyer. The high costs and long delays inherent in the court system leave lower-paid employees with few options—the proverbial rickshaw. This article concludes that, while the result of the existing system works for well-off claimants, it does not provide any form of justice for an average claimant. This article suggests that arbitration’s critics reconsider the arbitration process. Properly designed employment arbitration is cheaper and faster than litigation, like the old Saturn automobile (a mid-priced automobile in the 1990s), and, perhaps more importantly, is more accessible to most workers workers.
Saturns for Rickshaws: The Stakes in the Debate over Predispute Employment Arbitration Agreements

Samuel Estreicher

This article posits that the arbitral forum might be preferable to court litigation because it is considerably more accessible to workers who cannot afford or do not have claims interesting enough to attract private counsel or in many cases administrative agencies as well This article questions whether the existing justice system truly serves most employee claimants better than a private arbitration system. The author supports these claims with available empirical evidence, which establishes that arbitration is faster than litigation and that employee claimants win more frequently in arbitration, albeit receiving lower awards. The article leverages this information to support the theory that courts offer “Cadillac” justice to high-income employees with claims large enough to attract a private lawyer. The high costs and long delays inherent in the court system leave lower-paid employees with few options—the proverbial rickshaw. This article concludes that, while the result of the existing system works for well-off claimants, it does not provide any form of justice for an average claimant. This article suggests that arbitration’s critics reconsider the arbitration process. Properly designed employment arbitration is cheaper and faster than litigation, like the old Saturn automobile (a mid-priced automobile in the 1990s), and, perhaps more importantly, is more accessible to most workers workers.
Amplifying the Voice of Development—UNCTAD and the Future of Abuse of Dominance

Eleanor M. Fox

Under the Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices (Set), UNCTAD is well placed to facilitate consensus on international rules and principles, fit for the modern economy, with a view towards protecting developing countries from global private power and encouraging them towards efficiency, innovation, and participation.
The High Costs of Not Prohibiting Anticompetitive Megamergers

Eleanor M. Fox

Megamergers can have large payoffs—especially to the executives and financial intermediaries. They can also entail large harms to competition and huge inefficiencies. When planned megamergers have significant anticompetitive aspects, they are nearly always approved with spin-offs and other conditions. This chapter argues that anticompetitive megamergers present a seriously overlooked enforcement problem at the point of remedies. Incentives facing enforcers to clear the merger with agreed remedies to protect their country are not aligned with an optimal solution to protect the world from the global anticompetitive effects. Moreover, anticompetitive megamergers tend to impose disparate costs on developing countries, which are often the loci of greatest harms and least power to prevent them. This article demonstrates in detail the misalignment of incentives through the window of the Bayer/Monsanto merger. It proposes solutions that would nudge national authorities to consider global mergers’ harms and benefits holistically and to recognize when a simple prohibition is in the interests of their own jurisdiction as well as the interests of the world.
Science Fiction, Legal Fiction, Political Fiction, and the 100-Year Life

Daniel J. Hemel

Lynda Gratton and Andrew Scott’s prediction that the median lifespan will exceed 100 years for children born today in high-income countries is “science fiction” within the dictionary definition: a “story featuring hypothetical scientific or technological advances.” This chapter argues that for a 100-year life to become the norm within the timeframe that Gratton and Scott envision, we will need to make extraordinary progress over the next several decades in reducing old-age mortality – advances that are qualitatively different from the disease-specific innovations that attract the vast majority of biomedical investment today. To achieve those advances will require not only scientific ingenuity but also legal and political innovation. Patent law – the most familiar tool in the innovation policy toolkit – is ill-fitted for the goal of attaining century-long lives. Instead of relying on private-sector sources, we will likely need governments to commit to moonshot investments in longevity akin to the Apollo project. Yet securing support for those investments will be challenging given the political economy of public funding for biomedical research. Thus the path to a 100-year life will likely require major breakthroughs not only in the laboratory but also in the legislature.
Coordination, Conflict, and the Laws of Time

Daniel J. Hemel and Matthew Hamilton

The laws of time—the rules and conventions that determine how we organize our calendars and set our clocks—play a central but often underappreciated role in structuring our daily rhythms and social interactions. This chapter explores the evolution of the laws of time across countries and centuries. Drawing from the game-theoretic literature on coordination, we present three models—a pure coordination game, an assurance game, and a “Battle of the Sexes” or “Bach/Stravinsky game”—that capture different aspects of time-related lawmaking. We then apply these models to five case studies: the transition from the Julian to the Gregorian calendar in early modern Europe, the emergence of standard railway time in the nineteenth-century United States, the global adoption of Greenwich Mean Time, the century-long struggle over daylight saving time, and the ongoing controversy over “leap seconds.” These case studies elaborate and complicate the game-theoretic models, demonstrating the value and limits of game theory for understanding complex social phenomena. We go on to appraise time's lessons for law and social sciences. We show, for example, how the seemingly neutral laws of time produce non-neutral distributional consequences that reflect, reinforce, and also sometimes subvert political, economic, and military power dynamics. We conclude by comparing the laws of time to more stable regimes governing length, mass, and temperature. While time tells us much about other measures—and other spheres of social relations—we also identify features of time that make it a distinct target for reformers and revolutionaries.
Putting Railroad Justice Back on Track

Samuel Issacharoff and Beverly B. Martin

Sam Issacharoff (NYU Law), a leading law professor and litigator, and Hon. Beverly Martin (NYU Law), formerly of the US Court of Appeals for the Eleventh Circuit, after sketching a bracing account of the origins of the current access-to-justice crisis, ask why changing legal services regulation won’t suffice to solve it. Focusing on debt collection lawsuits – currently the modal case in the entire American civil legal system – they show how much of the current crisis stems from adversarial asymmetries resulting from new species of institutional litigants that leverage scale economies and potent new technologies to assembly-line cases through the legal system. They outline a number of potential solutions to better way to contend with the stunning scale of the current access challenges.
Protection of Vulnerable Consumers and the Efficacy of Rules

Florencia Marotta-Wurgler

European contract law has deep-rooted traditions dating back to Roman times, but in essence, it is regulatory in nature. In an era where the Diesel scandal has once again highlighted the importance of the relationship between private law and public good regulation, and where the prominent themes of digitalisation and sustainability develop with overwhelming force, it is high time to look at the foundations and the challenges inherent to all these evolutions. Key areas of focus include consumers and market building, especially in digital markets (as the EU foundational task), private law and public good regulation, human rights and constitutional values (the ethical and political dimension of EU contract law), the question of sources (ius commune and/or ius communitatis) and sustainability. European contract law deploys dynamics in all these dimensions which are remarkable. Our exploration of this theme begins with an examination of the historical and theoretical foundations, progressing from the ‘constitution’ to delve into specific key topics before addressing the current landscape and future trajectory, particularly in terms of social and environmental sustainability. The book caters to an audience engaged in cutting-edge scientific research, including advanced young researchers, professionals in European private law, as well as practitioners involved in legislation and premium parts of adjudication, and legal counselling.
Cultural Appropriation and the Global Fashion Industry

Kal Raustiala and Christopher J. Sprigman

The global fashion industry is increasingly subject to accusations of cultural appropriation. We analyse why the fashion industry’s practices – in particular, its mashup-magpie mode of creativity and its rapid innovation cycle – make it a frequent target of these claims. We explain the challenges to legal protection for cultural designs; explore and critique the normative case for property claims in traditional cultural designs; and offer a qualified defence of the industry’s practice of re-interpreting those designs. Throughout, we suggest that many designs seen as originating in a particular culture have roots that extend outward to other cultures; this network of cultural interchange often undermines any particular ownership claim. And while appropriation can signal disrespect for source cultures and be objectionable for that reason, appropriation is not disrespectful per se. Indeed, there are strong normative arguments supporting many instances of appropriation.
Geneva Protocol and Geneva Convention

Friedrich Rosenfeld and Franco Ferrari

This is an entry on Geneva Protocol and Geneva Convention in the Elgar Concise Encyclopedia of International Commercial Arbitration. This Encyclopedia provides a concise overview of key topics in the field of international arbitration. The Encyclopedia covers the New York Convention, the UNCITRAL Model Law on International Commercial Arbitration, and the IBA Guidelines on conflicts of interest, party representation, and the taking of evidence. Entries also discuss alternative methods of dispute resolution, such as mediation, all stages of arbitration proceedings, including the various post-award stages, among many other fundamental matters of commercial arbitration. Examining relevant case law from major arbitration hubs, this Encyclopedia is a valuable resource for students and scholars in arbitration and dispute resolution, commercial law, comparative law, and public international law. It is also an important reference for legal practitioners and professionals, including arbitrators, attorneys, judges, and tribunal secretaries.