Digital Commons Network^™

Time For A Copyright Remix: Learning From Djs’ Problematic Pandemic Livestreams & Reimagining A More Productive Framework For Music On Social Media, Aaron Thompson

Chicago-Kent Law Review

No abstract provided.

Pack Your Bags…We’Re Moving To The Public Domain: The Expiration Of Copyright Terms And Its Implications On Future Protection, Sophie Ganion

UC Law SF Communications and Entertainment Journal

The following Note addresses the expiration of copyright terms for a multitude of creative works and the various implications of that expiration for their future IP protection. It explores the conflicting perspectives of stakeholders, from the excitement of artists and everyday creatives versus the concerns of industry leaders about the potential erosion of their copyright monopolies. Drawing from landmark cases like Baker v. Selden and Dastar Corporation v. Twentieth Century Fox Film Corp., this Note highlights the complex questions surrounding copyright expiration and the strategic use of trademark protection. The Note emphasizes the necessity for coherent legal frameworks to ensure …

The Right To Inequality: Conservative Politics And Precedent Collide, Jonathan P. Feingold

Connecticut Law Review

The “end of affirmative action” is the beginning of this story. In Students for Fair Admissions v. Harvard (SFFA), the Supreme Court struck a near fatal blow to race-consciousness. Many institutions have since pivoted to “race neutral alternatives.” This is a natural turn. But one that faces immediate headwinds.

The same entities that demanded Harvard pursue racial diversity through colorblind means have sued public high schools for doing just that. These litigants assert a “right to inequality”—a theory that would pit the Equal Protection Clause against equality itself. Even if normatively jarring, a right to inequality might seem a natural …

Removing Methane Via Soil Amendments: The Legal Framework, Korey Silverman-Roati, Romany M. Webb

Sabin Center for Climate Change Law

Rapid and sustained reductions in human-driven methane emissions are critical to limiting warming in line with the 2015 Paris Agreement. Reductions in certain methane emissions, particularly from the fossil fuel sector, can be implemented cheaply and efficiently. Other forms of methane emissions, like those from agricultural sources, are more difficult to control. This fact, coupled with concerns that climate change could unlock significant additional natural emissions from tropical wetlands and melting permafrost, has increased interest in atmospheric methane removal (“AMR”).

AMR refers to human interventions to accelerate the conversion of methane in the atmosphere to a form that causes less …

Truth In Advertising For Environmental Sustainability, Robin M. Rotman, Aidan David-Pennington

Faculty Publications

“Sustainability” is in—but what does that term mean, when applied to products, services or brands? This article explores existing Federal Trade Commission (“FTC”) oversight of “sustainable” claims in marketing, centering on the FTC’s Guidelines for the Use of Environmental Marketing Claims (often referred to as the “Green Guides”). It analyzes thousands of public comments filed in a recent FTC quasi-rulemaking docket to inform proposed revisions to the Green Guides. The article suggests that the FTC include guidance on “sustainable” claims in its next revision to the Green Guides, and further recommends that the FTC formally extend the Green Guides to …

How Detrimental Is Transunion V. Ramirez, Really? Understanding The Impact On Environmental Law, Lauren Young

Washington Law Review

In 2021, the United States Supreme Court issued a controversial opinion with the potential to constrict the standing doctrine. TransUnion v. Ramirez appeared to alter standing’s “concrete harm” requirement, which would significantly restrict plaintiffs’ ability to invoke the jurisdiction of federal district courts. Building off its 2016 case, Spokeo v. Robins, the Court declared that intangible harms are only concrete when “plaintiffs have identified a close historical or common-law analog[] for their asserted injury.” The “common-law analog[]” required a “close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts.” The Court mandated this requirement …

Algorithms, Images, And Authorship: Creating Copyright Criteria In The Age Of Ai-Assisted Imagery, Whitney Ellis

University of the Pacific Law Review

No abstract provided.

Daca's Major Questions Exception, Matthew Calabrese

Hofstra Law Review

The Supreme Court has extracted a new role as the gatekeeper of administrative action under the major questions doctrine. Underlying the doctrine is an understanding that agencies cannot act to address policy issues implicating questions of great political and economic significance unless specifically authorized by Congress. However, DACA presents a different question that should be exempted from the major questions doctrine. This is because DACA relies on two levels of executive authority: statutory—under the Immigration and Nationality Act and the Homeland Security Act—and constitutional—under the Take Care Clause. Because, as this Article explains, the two authorities cannot be disentangled, courts …

All Bark, No Bite: How The Lone Star "Junk-Science Writ" Could Reinvigorate Federal Habeas Review, Robert Harry Saylor Iii

Hofstra Law Review

No abstract provided.

Learning To Read Like An Eighteenth-Century Lawyer: The Historical Critique Of Originalism Revisited, Saul Cornell

William & Mary Bill of Rights Journal

Historians have been among the fiercest critics of originalism. Among the many virtues of Jack Balkin’s book, Memory and Authority, is the deft way he analyzes and dismantles these efforts to insulate originalism from historical critique. In a short essay, it would be impossible to fully acknowledge the sophistication of Balkin’s analysis. Instead, I would like to build on his impressive achievement by pointing out additional problems with the originalist response to historical critique.

This abstract has been taken from the author's opening paragraph.

Reproductive Injustice, Feminist Resistance, And The Uses Of History In Constitutional Interpretation, Serena Mayeri

William & Mary Bill of Rights Journal

Part I examines the erasure of constitutional memory about reproductive injustice and feminist mobilizations and the benefits of recovering these histories. Part II explores how cases involving women’s subordination provide particularly effective illustrations of the anti-democratic, even absurd, results the current supermajority’s approach to history-and-tradition is designed to produce. Part III concludes with a brief discussion of some sites for the expansion of constitutional memory about reproductive control and freedom.

This abstract has been taken from the author's introduction.

Freedom And Families: Reconstruction Republicans And The Question Of Women's Reproductive Autonomy, Kate Masur

William & Mary Bill of Rights Journal

This Essay proceeds in three Parts. In the first, I illuminate how congressional Republicans discussed women, gender, and families in the context of policymaking associated with abolishing slavery. Many Republicans worried that enslaved people’s family relationships had been damaged by the imposition of slavery and sought to impose on freedpeople what they saw as normative family values, including by encouraging heterosexual marriage and by insisting on patriarchal gender roles within families. Second, I show that Republicans were at pains to demonstrate that when they talked about equality, they meant race but not gender. Finally, I reflect on the limits of …

Local Government, Jacob Stalvey O'Neal, Russell A. Britt, Mathis L. Gales, Jennifer Dorminey Herzog, Nicholas A. Kinsley, M.Blake Walker

Mercer Law Review

As usual, the Survey saw multiple published cases involving the doctrine of sovereign immunity. Georgia courts clarified multiple sovereign immunity waivers, including waivers for injunctive and declaratory relief claims, waivers for nuisance claims, and waivers for claims involving negligent uses of government vehicles. This Article attempts to summarize the highlights and noteworthy cases.

The Reconciliation Roots Of Fourth Amendment Privacy, Sophia Z. Lee

University of Chicago Law Review

The Roberts Court has made protecting “the privacies of life” a catchphrase of Fourth Amendment law in the digital era. The time is thus ripe for revisiting the doctrinal and political roots of this newly influential quote from the Court’s 1886 decision Boyd v. United States. Existing scholarship views Boyd and its paean to privacy as an opening salvo in the Supreme Court’s turn-of-the-twentieth-century deregulatory jurisprudence (often associated with the Court’s most famous substantive due process decision, Lochner v. New York). Scholars also assume Boyd’s emphasis on privacy was in keeping with the Founders’ view of the Fourth Amendment.

This …

Contractual Commitments And The Right To Change Religions, Michael A. Helfand

North Carolina Law Review

No abstract provided.

Make America Healthy: Reducing High Pharmaceutical Prices Without Reducing Innovation, Srividhya Ragavan

Faculty Scholarship

Cost of medication in the United States has historically remained one of the highest in the world. The conundrum that the United States has faced in balancing innovation with affordability of life-saving medications is palpable, especially when faced with the reality of patent monopolies conflicting with healthcare obligations. The result is an overflow of issues, which emphasize the need to delineate limits on innovation to balance pharmaceutical novelty with robust public health within the United States. This has increasingly shifted the focus of patent law into the realm of healthcare issues. Naturally, it leads to an inquiry about how best …

New Approaches And Challenges Regarding Trade, Climate Action, And The Wto, Sunayana Sasmal

Columbia Center on Sustainable Investment

This report considers how the WTO, as an institution and its rules, can and should be a game-changer in undertaking climate action and the green energy transition globally. By leveraging its toolkit, the WTO has the potential to drive climate action, from regulating border carbon adjustments to promoting trade in green products, green electricity, and dissemination of climate technologies. However, unlocking this potential requires legal reforms, a proactive institutional role, and strong political will from WTO members.

Navigating Legal Currents: The Constitutional Quandary Of Redefining “Navigable”, Brodi Voight

University of Dayton Law Review

No abstract provided.

Framing Indian Federalism, Madhav Khosla

Faculty Scholarship

This article focuses on a set of historical and contemporary developments in Indian constitutionalism that implicate the question of democracy and the question of federalism. Its goal is to connect the design and application of federal powers with what many regard as an important telos of federalism, namely, the promotion of democracy. Towards this end, it holds up for consideration India’s federal model, which, it is suggested, focuses on the presence of a subnational demos rather than the political identity of subnational units. Such an understanding of federalism de-emphasizes the territorial aspect of federalism and allows federal design to accommodate …

Premises Liability And Third-Party Attacks: A Path Forward, Pamela A. Wilkins

Mercer Law Review

Recently, in Georgia CVS Pharmacy, LLC v. Carmichael, the Supreme Court of Georgia recognized a totality of circumstances approach for determining whether a landowner owes a duty to protect patrons from third-party attacks. So right now, in Georgia, the poor lighting, high-crime surroundings, and absence of functioning panic boxes are relevant considerations for the duty calculus.

Many members of the Georgia General Assembly find this outcome intolerable. Only months after the court’s ruling in Georgia CVS Pharmacy, several state senators, focusing on the supposed “unfriendliness to business” of the current totality of circumstances rule, introduced a bill that …

The New Frontier Of Guidance Reviewability, Tomás Rios

Michigan Law Review

In the administrative context, agency actions must be “final” to trigger judicial review. The Supreme Court’s opinions in Sackett v. Environmental Protection Agency and U.S. Army Corps of Engineers v. Hawkes Co. marked an important shift in finality doctrine by emphasizing that the calculus of whether agency guidance is “final” may turn on its practical effects. For decades, agency guidance rarely warranted judicial review because it is not legally binding and, thus, not final. But the advent of the Sackett-Hawkes pragmatic analysis has changed the landscape, raising particular concerns for agencies relying on promulgating guidance documents to “softly” regulate. This …

Debunking Criminal Restitution, Lula A. Hagos

Michigan Law Review

Criminal restitution—the money paid by a defendant to a victim—is often overlooked amidst growing scholarly consensus about the adverse impact of criminal court fines and fees. Restitution receives less attention because it is perceived as a fair and unobjectionable sanction with legitimate goals, while fines and fees are now widely condemned as primarily serving as a funding source for local and state governments. Consequently, the animated and extensive discourse around financial punishment largely excludes criminal restitution.

Though criminal restitution may appear to have legitimate penological purposes, it serves to perpetually punish defendants who are poor—the vast majority of those in …

Marriage, Courts, And Substantive Equality: A Transformative Interpretation, Kushagr Bakshi

Michigan Law Review

Courts in various jurisdictions have relied on either the right to privacy or the right to equality to offer protections to the LGBTQ+ community. The use of different rights to achieve similar ends may seem like an empty distinction. But the differences in the nature and function of each right evince the differences in the construction of rights across jurisdictions. In the traditional liberal method of conceptualizing rights, privacy is typically a negative right, restricting the state from interfering in intimate relationships between individuals. Courts operating within a transformative framework of rights interpretation, however, rely on the positive right to …

Carceral Apartheid: Centering State Responsibility For The Racial Order, Ion Meyn

Cardozo Law Review

Racial harms are often attributed to private ordering. But the power of White communities to subordinate communities of color is not a constellation of private acts independent of state violence. When scrutinized, acts of racial exclusion, segregation, and violence persist to the extent they are aligned with the political order and backed by the state’s violent guarantee. The knowledge that any resistance to these acts will be met with state retribution bristles in the background.

There are different ways in which state violence produces and reproduces the racial order: (1) direct violence; (2) a violent guarantee backing communal acts of …

The Nextgen Bar Exam Meets The Next Generation Law Student: A Revised Approach To Legal Analysis, Scott Caron

University of Dayton Law Review

No abstract provided.

Examining Hispanic Beginning Farmers And Ranchers In The Rio Grande Valley Through A Community Capitals Framework, Perla Kimberly Schrock

Theses and Dissertations

While existing literature addresses the experiences of beginning farmers and ranchers (BFR), there is a notable gap in research focused on Hispanic beginning farmers and ranchers (HBFR). This study aimed at exploring the unique experiences of HBFR in a predominantly Hispanic region, the Rio Grande Valley (RGV), employed the Community Capitals Framework (Flora et al., 2016). I conducted 16 semi-structured interviews with HBFR and local nonprofit organizations and federal employees, complemented by participant observations. Through thematic and content analysis of the interview transcripts, findings revealed valuable insights into the livelihoods of HBFR. Despite HBFR facing significant challenges, this study demonstrated …

French Foreign Policy And Its Tendencies While Approaching International Relations Through Multilateralism, Dipin Subedi

Master's Theses

This paper studies the pattern of French foreign policy with respect to one objective: whether through the means available – namely economic, diplomatic, and military – it adheres to the principle of achieving multilateral goals or not. The multilateral institutions that are used in this study as a ground for comparison are NATO, the E.U., and the U.N. all of whom hold France as their member. Nine different categories with distinct characteristics are created that contain one primary case study. Certain expectations on how France could deal with the nation in a particular case study is gathered through hints contained …

The Constitutional Limits To The Taxing Power, Ari Glogower

Fordham Law Review

The modern U.S. Supreme Court has elevated the apportionment requirement for direct taxes into the most important constitutional limitation to Congress’s taxing power. The U.S. Constitution requires that any “direct tax” must be apportioned among the states by population, which is impracticable or impossible for a tax today. The modern interpretative approach focuses on the formal categorization of the tax base, as either a “direct tax” or not. This approach could bar Congress from enacting certain taxes—such as a federal wealth tax or possibly even capital income tax reforms—simply through their formal labeling as direct taxes.

This interpretation inflates apportionment’s …

Follow The Bloody Brick Road: Bleeding Kansas And The Emancipation Proclamation, Margaret Hu

William & Mary Bill of Rights Journal

To help illuminate Balkin’s project of Memory and Authority, this brief Essay considers a slice of American memory from Kansas’ historical archives and other primary sources, and examines its unique role in the Civil War. Specifically, it excavates the influence of Kansas’ leaders as advisors to President Abraham Lincoln. Prior to and during the Civil War, Lincoln relied upon the guidance of senior leaders from Kansas on matters ranging from guarding the White House, war strategies, the recruitment of former enslaved persons to the war effort, and the issuance of the Emancipation Proclamation as a part of an effective …

Roger Williams University 2024 President's Report: A Message From President Miaoulis, Roger Williams University

Life of the Law School (1993- )

No abstract provided.