Faculty Bibliography
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What is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act?
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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, adininistrative 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.
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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.
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Intellectual Property at the Edge addresses both newly formed intellectual property rights and those which have lurked on the fringes, unadmitted to the established IP canon.
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Earlier this year, in an important copyright ruling, the Supreme Court dropped a puzzling clue about copyright for designs that merits examination. In an opinion authored by Justice Breyer, the Court's foremost copyright scholar, 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 article, we explain the Court's unexpected comment and why it matters. The decision, Kirtsaeng v. John Wiley & Sons, addresses the "first sale" doctrine, which permits an owner of an authorized copy to "sell or otherwise dispose of" that copy without seeking permission of the copyright holder. This common-sense limitation on the copyright holder's right to distribute his work embodies a principle of exhaustion, promoting the free alienability of goods and reducing transaction costs. The question in Kirtsaeng was whether this doctrine applies not only to copies made in the United States, but also to copies made abroad and imported into the United States. The question was in doubt because a separate provision of the Copyright Act prohibits importation without permission. An earlier case held that the first sale doctrine trumped if the work had done a "round trip"-produced in the United States, exported overseas, and then returned to the United States for resale. Kirtsaeng accorded the same treatment to the closely related situation in which the copy was instead produced overseas and sold in the United States.
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The first Asian Woman tenured at Harvard Law School, Guggenheim Fellow, Herbert Jacob Prize Winner, 'Best Lawyers Under 40' by the NAPABA, Jeannie Suk tells her heartfelt story. By telling her old love for Ballet, Piano and reading, she guides us to her passionate life and work and finally to the world "that she wanted to see". She decided to write this book because she was frequently asked to explain the connection between how she grew up and how she works and lives now. What world do we want to see? What is "education" in its true sense? What is "life" where one paves one's own path? Through this clean and elegant memoir, we learn that one's attitude and passion for life is the most important in life. and she suggests that we should be brave as we have freedom to be imperfect. Also she tells about her disciplines of life and work. One of those is "find what you really love to do."
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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.
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Can you trademark the color red? This week a federal appellate court will hear arguments in a case involving this very question. The issue arises in connection with shoes, specifically, the vivid red soles beneath Christian Louboutin shoes. The high-end designer says four separate styles of Yves Saint Laurent shoes infringe its trademarked sole. All four shoes are red all over -- including the soles.
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The authors discuss the issue of copyright infringement in fashion design and its impact on talented but not yet well-known designers and comment on a bill introduced by New York Senator Charles Schumer that aims to address the problem.
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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.
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How to protect fashion designers like Jason Wu from Forever 21 knockoffs.
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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.
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This chapter presents an authoritative discussion of the criminalization of domestic violence and its implications for criminal law. It describes the legal regime that has grown up around misdemeanor offenses associated with domestic violence, emerging under the aegis of correcting the criminal justice system's past inaction, that seeks to do something meaningfully different from punishing violence. It explains how the home is becoming a space in which criminal law deliberately and coercively reorders and controls property and intimate relationships, focusing on two means by which the criminal law accomplishes this goal: protection-order criminalization and the so-called “state-imposed de facto divorce.” The chapter includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as privacy, neoliberalism and libertarianism, battered women, and domestic violence misdemeanor prosecutions.
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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.
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Jeannie Suk, The True Woman: Scenes from the Law of Self-Defense, 31 Harv. J.L. & Gender 237 (2008).
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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.
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Jeannie Suk, Opinion, Coming of Age With Clarence, Wall St. J., Oct. 12, 2007, at A16.
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The author offers opinion on accusations of sexual harassment against U.S. Justice Clarence Thomas. She mentions that the publication of his memoir "My Grandfather's Son" has sparked debate on the issue of sex and power. She notes the harsh judgment received by Thomas from liberals. She presents a comparison between the harassment charges against Thomas and former President Bill Clinton.
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Jeannie Suk & Noah R. Feldman, Japan's Uncomfortable History, Wall St. J., Mar. 12, 2007, at A23.
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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.
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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.
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"This book is a major study of French Caribbean literature in light of the concept of postcoloniality. Postocolonial theory debates have developed in the anglophone domain, and have not as yet referred prominently to francophone literature. In this book, Jeannie Suk investigates the ways in which the literature of Martinique and Guadeloupe provides a kaleidescopic view of the paradoxes at the heart of postocoloniality. Through subtle and provocative readings of Aime Cesaire, Edouard Glissant, Maryse Conde, Baudelaire, Freud, and others, she illuminates how the development of French Caribbean literature and debates about negritude, antillanite, and creolite contribute to theories of in-betweenness and incompleteness central to postcolonial modes." --Jacket.
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