Digital Commons Network^™

The Superfluous Fifteenth Amendment?, Travis Crum

Northwestern University Law Review

This Article starts a conversation about reorienting voting rights doctrine toward the Fifteenth Amendment. In advancing this claim, I explore an unappreciated debate—the “Article V debate”—in the Fortieth Congress about whether nationwide black suffrage could and should be achieved through a statute, a constitutional amendment, or both. As the first significant post-ratification discussion of the Fourteenth Amendment, the Article V debate provides valuable insights about the original public understandings of the Fourteenth and Fifteenth Amendments and the distinction between civil and political rights.

The Article V debate reveals that the Radical Republicans’ initial proposal for nationwide black suffrage included both …

A Fresh Look At Tests For Nonliteral Copyright Infringement, Pamela Samuelson

Northwestern University Law Review

Determining whether a copyright has been infringed is often straightforward in cases involving verbatim copying or slavish imitation. But when there are no literal similarities between the works at issue, ruling on infringement claims becomes more difficult. The Second and Ninth Circuits have developed five similar yet distinct tests for judging nonliteral copyright infringement. This Essay argues that each of these tests is flawed and that courts have generally failed to provide clear guidance about which test to apply in which kinds of cases.

This Essay offers seven specific strategies to improve the analysis of nonliteral infringements. Courts should do …

Ties That Bind? The Questionable Consent Justification For Hosanna-Tabor, Jessie Hill

Northwestern University Law Review

Arguments in favor of religious sovereignty often emphasize the benefits of autonomy for religious institutions while ignoring the civil rights of individuals who belong to or work for those institutions. To justify intrusions on individual civil rights, proponents of strong religious autonomy generally rely on the concept of implied consent. According to this rationale, individuals willingly give up the protection of civil rights laws when they voluntarily join religious organizations. This Essay responds to one scholar’s account of the consent rationale as undergirding the Supreme Court’s recognition of the ministerial exception: Christopher Lund’s excellent article, Free Exercise Reconceived: The Logic …