An article by Deborah Ahrens will be published in the upcoming Winter 2015 issue of the Missouri Law Review. An abstract of her paper is published below:
Incarcerated Childbirth and Broader “Birth Control”: Autonomy, Regulation, and the State
Forthcoming in Volume 80, Issue 1 of the Missouri Law Review
— Abstract —
In recent years, the scholarly literature, the journalistic press, and even pop culture have begun to grapple with the many ways in which prison life works to degrade and dehumanize female prisoners, particularly pregnant women and new mothers. These voices are drawn – quite understandably – to the worst abuses, to practices (such as the shackling of laboring women) that underscore the dichotomy between the brutality of prison life and the allegedly autonomous norms governing pregnancy and parenting in the outside world. This Article supplements – and in crucial places challenges – the narrative implicit in those depictions by, first, placing practices such as shackling in the context of the many less dramatic ways in which prison policies and norms strip autonomy from pregnant and laboring women, and, then, by exploring the substantial overlap between the restrictions placed upon incarcerated pregnant women and those faced by nonincarcerated women.
The Article concludes that the constraints and indignities imposed on pregnant prisoners are an outgrowth not only of patterns of social control of prisoners but also of patterns of social control of pregnant women more generally. Like our criminal sanctions regime, these pregnancy-specific patterns of control reflect and reinforce complicated ideas about race, class, and gender, and offer important insights into our culture’s values and preoccupations. Critically reading the experiences of women who are pregnant or laboring behind bars requires appreciation that their treatment stems from two distinct, though often overlapping, matrices of social control.
An article by BJ Ard will be published in the upcoming Spring 2015 issue of the Missouri Law Review. An abstract of his paper is published below:
Notice and Remedies in Copyright Licensing
Forthcoming in Volume 80, Issue 2 of the Missouri Law Review
— Abstract —
The licensing of digital works offers copyright owners considerable latitude to redefine the protections of copyright law. These licenses often condition the mere use of a digital work on the user’s compliance with the agreement, purporting to translate breach of the most trivial or idiosyncratic term into the basis for a copyright infringement suit. This Article focuses on the notice concerns raised by enforcement of such terms. License conditions are often buried in boilerplate that no reasonable consumer reads, and licensors have few incentives to make them more salient. These circumstances not only threaten unwitting users with copyright liability, but also impede the goals of copyright law by discouraging the public’s engagement with creative works. Copyright law nonetheless offers courts no effective tools to inquire into the adequacy of license disclosures.
Because these agreements arise at a unique intersection of copyright and contract, however, contract law offers a promising alternative framework. Contract law is skeptical of supracompensatory remedies and awards them where understanding and assent are clear. The heightened damages that would follow from enforcing a term in copyright therefore demand a heightened standard of notice. Greater judicial scrutiny regarding the presentation of these terms would check licensors’ overreaching. At the same time, this approach leaves room for parties to innovate unusual but potentially beneficial licensing arrangements like those championed by the free culture and free software movements. This notice-based solution, moreover, brings novel licensing arrangements to light and subjects them to greater public scrutiny through market and political forces.