Faculty Notes

Bunyan S. Womble Professor of Law Jerome H. Reichman, a renowned and pathbreaking scholar of intellectual property law, was honored with a two-day conference at Harvard Law School in late September.

Leading academics and policymakers from around the world, many of them his research partners and co-authors and editors, convened in Cambridge on Sept. 26 and 27 for “Innovation, Justice, and Globalization — A Celebration of J. H. Reichman.” The theme for the conference and its programming reflected the innovative and influential nature of Reichman’s scholarship, which has long focused on legal and policy strategies to resolve challenges arising from the grant of exclusive property rights foundational to intellectual property law, such as access to patent-protected essential medicines in developing countries.

Dozens of scholars addressed discrete aspects of Reichman’s work during moderated sessions organized around seven themes: the economics of innovation and development; whether antitrust and competition law trust intellectual property law too much; the puzzles of overlapping and hybrid intellectual property rights; the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the role of intellectual property rights in developing countries; challenges facing the digital commons; non-voluntary licensing of pharmaceutical patents; and property rights versus liability rules — theories and practical implications.

Keynote addresses at the conference were delivered by Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit and Yochai Benkler, the Berkman Professor of Entrepreneurial Legal Studies at Harvard Law.

Reichman’s 10 books include: Governing Digitally Integrated Genetic Resources, Data, and Literature: Global Intellectual Property Strategies for a Redesigned Microbial Research Commons (Cambridge University Press, 2016, with Paul F. Uhlir and Tom Dedeurwaerdere), which examines how scientists share collections of microbes and related data to advance research in such areas as medicine, agriculture, and climate change, and how current systems for facilitating that transnational exchange can — and should — be improved; and International Public Goods and Transfer of Technology Under a Globalized Intellectual Property Regime (Cambridge University Press, 2005, editor with Keith Maskus), which emerged from his work addressing the problems that developing countries face in implementing TRIPS.

The conference, organized as a surprise and dubbed “Jerryfest” by participants, also celebrated Reichman’s kindness and generosity towards students and fellow scholars alike.

Schwarcz

Steven L. Schwarcz, the Stanley A. Star Professor of Law & Business, has been honored by Durham University in Durham, U.K., with a distinguished honorary professorship. Durham University also hosted a daylong symposium on May 28 titled “Financial Inclusion and Access to Credit” to mark Schwarcz’s inauguration as Distinguished Honorary Professor, at which he delivered the keynote address.

Schwarcz’s scholarship includes such diverse areas as insolvency and bankruptcy law, international finance, capital markets, systemic risk, corporate governance, and commercial law. He has written extensively and testified before the U.S. Congress on topics including systemic risk, securitization, credit rating agencies, and financial regulation, and has advised several U.S. and foreign governmental agencies on the financial crisis and shadow banking. Schwarcz, who was the founding director of Duke’s interdisciplinary Global Capital Markets Center (now the Global Financial Markets Center), is also a senior fellow of the Centre for International Governance Innovation (CIGI), among many other professional affiliations and honors.

Durham University confers honorary professorships on individuals who are of equivalent national or international standing in their fields as the institution’s faculty are in theirs. They are additionally based on the recipient’s outstanding professional achievement and recognition as leading experts within their professions and occupations, according to the university’s website. John Linarelli, professor of commercial law at Durham Law School, called Schwarcz “one of the very top global authorities” on financial law and regulation and the author of groundbreaking scholarship that has made a profound impact.

The symposium on financial inclusion, held under the auspices of Durham University’s Institute for Commercial and Corporate Law and supported in part by the transatlantic law firm of Womble Bond Dickinson, highlighted both an important subject in financial regulation and the policy-oriented focus of Schwarcz’s recent scholarship, Linarelli added.

Schwarcz’s keynote address, officially the University of Durham Honorary Professorship Inaugural Lecture, was based on his article titled “Empowering the Poor: Turning De Facto Rights into Collateralized Credit” 95 Notre Dame Law Review 1 (forthcoming 2019). The article expands on an earlier policy brief he authored for CIGI, “Creating Credit from De Facto Collateral Rights,” that was included in G20 Insights in July 2018. Both works, Schwarcz explained, outline how commercial law can be deployed to allow the poor “to use the property they inhabit, but do not legally own, as collateral to borrow, in order to start small businesses and become upwardly mobile.”

Over the past summer, Schwarcz also served as the MacCormick Visiting Fellow at the University of Edinburgh School of Law.

Coleman

Professor Doriane Lambelet Coleman testified before the full U.S. House Committee on the Judiciary on April 2 on the matter of H.R. 5, the “Equality Act.” Introduced in the House on March 13 and sponsored by Rep. David Cicilline, D.-R.I., the Equality Act proposes to prohibit discrimination on the basis of sex, gender identity, and sexual orientation, “and for other purposes.” In her testimony, Coleman addressed the bill’s implications for women’s sports, as she also has in numerous media outlets.

Coleman, a former national collegiate track champion who competed internationally, is an expert in anti-doping rules who has practiced, taught, and written about sports law with a focus on the Olympic movement and eligibility issues. Her current work focuses on the differences between biological sex and gender identity and the implications of those differences for institutions ranging from elite sport to education and medicine. She is the author of “Sex in Sport,” 80 Law & Contemporary Problems 63-126 (2017), and has written recently on the topic for The Volokh Conspiracy and The New York Times.

“I support equality including for the LGBTQ community,” Coleman stated in her written testimony. “But I don’t support the current version of H.R. 5 because — and I say this with enormous respect for everyone who cares about and is working on the bill — it elides sex, sexual orientation, and gender identity: It’s all sex discrimination, and, at least impliedly, we’re all the same. In opting for what is in effect a sex blind approach to sex discrimination law, the legislation would serve as cover for disparities on the basis of sex.

“Females have and continue to be treated differently precisely because of our reproductive biology and stereotypes about that biology. Pretending that biological females and women with testes are the same for all purposes will take us backward not forward.” The data are clear, she testified, that if sport were not segregated on the basis of sex, “even at their absolute best,” the fastest women on the planet would routinely lose to thousands of even second-tier males. “And because it only takes three male-bodied athletes to preclude the best females from the medal stand, and eight to exclude them from the track, it doesn’t matter if only a handful turn out to be gender nonconforming.”

de Fontenay

Professor Elisabeth de Fontenay testified on Capitol Hill on Sept. 11 that easing restrictions on the sale of unregistered securities could be harmful to retail investors and the public securities markets.

De Fontenay provided oral and written testimony to a hearing of the U.S. House Committee on Financial Services Subcommittee on Investor Protection, Entrepreneurship, and Capital Markets. She was one of several panelists invited to speak on proposals that would loosen federal securities regulations that restrict private investments to institutional investors and wealthier individuals during the hearing titled “Examining Private Market Exemptions as a Barrier to IPOs and Retail Investment.”

Retail investors can typically invest only in securities traded on public markets, where disclosure requirements are much stronger. However, the number of public companies is in decline, and capital has increasingly flowed into unregistered securities, de Fontenay noted.

“There is considerable room for disagreement over whether public companies and the public markets are subject to too much regulation,” she stated in her written testimony. “The same cannot be said for whether increasing retail-investor presence in the private markets would be good for investors or good for capital allocation.

“If Congress and the SEC are concerned about shrinking investment opportunities for retail investors, the solution lies not in throwing retail investors to the wolves in the private markets, but rather in ensuring a healthy pipeline of companies going and remaining public.”

De Fontenay teaches and writes in the areas of corporate finance, corporate law, and private investment funds. Her scholarship focuses on how market actors behave in the less-regulated spaces of the financial markets, including “The Deregulation of Private Capital and the Decline of the Public Company,” 68 Hastings Law Journal 445-502 (2017).

On Sept. 19, de Fontenay took part in a panel discussion before the Securities and Exchange Commission’s Investor Advisory Committee on the matter of the increased use of leveraged loans and its possible effect on future regulatory efforts.

Femi Cadmus, Archibald C. and Frances Fulk Rufty research professor of law, associate dean of information services and technology, and director of the J. Michael Goodson Law Library, testified before the U.S. House Appropriations Legislative Branch Subcommittee on April 2, in support of funding requests of the U.S. Government Publishing Office (GPO) and Library of Congress.

Cadmus, who is now immediate past president of the American Association of Law Libraries (AALL), was testifying in her capacity as president. In her testimony she emphasized the importance of the GPO’s Public Information Programs account that supports the Federal Depository Library Program (FDLP) to law libraries. “Approximately 200 law libraries participate in FDLP, including academic, state, court, county, and government law libraries,” according to an AALL statement. “Those libraries rely on GPO for distribution of specific tangible materials, such as core legal titles in print, as well as access to official, authentic material online through GPO’s govinfo.gov website.” Cadmus also addressed AALL members’ reliance on the GPO, the Library of Congress, and the Law Library of Congress “for access to and preservation of official, trustworthy government information,” stating that adequate funding for the agencies ensures access to information that in turn supports access to justice and preserves the rule of law.

Jeff Ward

Associate Clinical Professor Jeff Ward JD/LLM ’09 spent two weeks over May and June teaching in Germany and Poland in a program designed to give lawyers and other professionals insights and tools to combat the erosion of ethical norms. Ward, the associate dean for technology and innovation and director of the Duke Center on Law & Technology, was one of two members of the law faculty in the Fellowships at Auschwitz for the Study of Professional Ethics (FASPE).

FASPE fellowship recipients are students and early career practitioners in law, medicine, business, journalism, and seminary, who study the perpetrators of the Holocaust to understand how the ethical lapses of their professional counterparts allowed the normalization of Nazi policies and enabled Nazi-era crimes. Through historical study, discussion, and exploration of key sites in Berlin and Krakow as well as the Auschwitz concentration camp, fellows apply lessons from those ethical breakdowns to contemporary challenges facing their respective fields.

Ward focuses his scholarship and professional activities on the law, policy, and ethics of emerging technologies, the future of lawyering, and the socio-economic effects of rapid technological change, with a focus on ensuring equitable access to the tools of economic growth and the resources of the law. Some of his current research examines the implications of advanced systems of artificial intelligence that can autonomously generate highly realistic digital artifacts, or deep fakes.

Darrell Miller

A book on gun rights and regulations co-authored by Professors Joseph Blocher and Darrell Miller has been named to an influential annual list of the best legal writing.

The Positive Second Amendment: Rights, Regulation and the Future of Heller (Cambridge University Press, 2018) was picked for The Green Bag’s list of “Exemplary Legal Writing” that appears in its 2019 Almanac & Reader.

Blocher and Miller, who co-direct the Duke Center for Firearms Law, are leading constitutional scholars who have written extensively about the Second Amendment. The Positive Second Amendment offers the first comprehensive account of the history, theory, and law of the right to keep and bear arms in the aftermath of District of Columbia v. Heller, the Supreme Court’s 2008 ruling that the Second Amendment protects a private, personal right to own guns.

Blocher, the Lanty L. Smith ’67 Professor of Law, has published articles in the Harvard Law Review, Yale Law Journal, Stanford Law Review, Duke Law Journal, Yale Journal of International Law, and other leading journals. He is co-author, with Mark Tushnet and Alan Chen, of Free Speech Beyond Words (NYU Press, 2017).

Scholarship by Miller, the Melvin G. Shimm Professor of Law, has been published in the Yale Law Journal, the University of Chicago Law Review, and the Columbia Law Review, and has been cited by the Supreme Court of the United States, the United States Courts of Appeals, the United States District Courts, and in congressional testimony and legal briefs.

The Green Bag is a quarterly journal that features “short, readable, useful, and sometimes entertaining legal scholarship,” and its annual almanac highlights judicial opinions and books recommended as the year’s “Exemplary Legal Writing” by its contributors. The Positive Second Amendment was one of five books recommended by Femi Cadmus, a longtime contributor to The Green Bag who joined the Duke Law faculty last year as Archibald C. and Frances Fulk Rufty Research Professor of Law and director of the J. Michael Goodson Law Library, and Cas Laskowski, technology and research services librarian and lecturing fellow. Cadmus said she had never before selected a book written by authors at her own law school. “I selected The Positive Second Amendment for inclusion as an exemplary work because it very skillfully analyzes a highly polarized issue without getting bogged down in the process,” she said. “In addition, it is written clearly enough to appeal to a broad spectrum of readers.”