Digital Commons Network^™

Art Wants To Be Free, Brian L. Frye

Journal of Intellectual Property Law

What is fair use? In Warhol v. Goldsmith, the Supreme Court held that licensing a painting based on a photograph wasn’t a transformative fair use, because the painting competed with the photograph in the market for images of the same person. This article tells the story of Warhol v. Goldsmith, analyzes the opinion, and explains how it changed copyright doctrine. It also presents a theory of how appropriation artists can use the public domain to insulate themselves from liability for copyright infringement.

Tortious Interference With The Expectancy Of A Legacy: Harmon V. Harmon, Paul F. Driscoll

Maine Law Review

The decision of the Maine Supreme Judicial Court in Harmon v. Harmon established that a plaintiff has a remedy in damages for tortious interference with the expectancy of a legacy which may be sought prior to the testator's death. The purpose of this Note is to examine the Harmon court's reasoning, the utility of the remedy announced in Harmon in light of pre-existing plaintiffs' remedies, and the potential consequences of that decision. The development of these themes will require an examination of the decisional law background of the Harmon decision and an analysis of the legal status of testamentary expectancies.

Securing Solar Access In Maine, Martha Freeman

Maine Law Review

This Comment explores the common law property concepts of nuisance, water law, and easements which arise by operation of law in order to determine the kind and degree of solar access protection they can provide Maine residential users of solar energy. The final section of this Comment proposes an express solar easement by which Maine citizens can create their own enforceable interests in unobstructed sunlight for solar energy use. In highly urbanized areas where space is scarce and already developed, the conflicts between solar energy users and other land and airspace users may be too difficult to resolve. In Maine, …

Maine's Action To Try Title: A Proposal For Statutory Reform, Eve Hlavatý Cimmet

Maine Law Review

Maine law provides three distinct statutory proceedings to try title: the real action, an action at law to quiet title, and an action in equity to quiet title. As the preceding Comment demonstrates, the present statutory scheme preserves outmoded distinctions between law and equity that are functionally obsolete in modern civil practice. Although the statutory law governing actions to try title in most states is, like Maine's, a patchwork product replete with archaic concepts, several other states have consolidated legal and equitable remedies into simple, comprehensive statutory actions. This Comment proposes a similar statute for Maine in the interest of …

Maine's Actions To Try Title: A Historical Perspective, Gregory W. Powell

Maine Law Review

Actions to try title are commonly used by Maine lawyers to adjudicate real estate title conflicts. Though often time consuming, expensive, and complicated, such actions are necessary in any state that seeks to foster a stable, economically efficient real estate market. Actions to try title have been necessary in all states because no protective statutory scheme for land titles has ever succeeded in eliminating all title defects that interfere with quiet possession or salability. Maine is no exception. Until a more effective statutory scheme for securing titles and restoring land's marketability becomes available, actions to try title will remain important …

Coastal Recreation: Legal Methods For Securing Public Rights In The Seashore, Jeffrey D. Curtis

Maine Law Review

The coastal shores of the United States are a peculiar form of property in that both the littoral landowner and the general public have legally protected interests in the use and enjoyment of the land. In most coastal states the title to the land below the high-water mark is vested in the state in trust for the beneficial use of the public, subject to certain limited rights of the littoral owner. Maine and Massachusetts, however, share a unique allocation of public and private interests which vests the title to the foreshore, the land between the high and low water marks, …

Mental Abnormality In The Maine Criminal Code: Section 58 (1-A), Susan E. Peck

Maine Law Review

The law surrounding the insanity defense has always been complex and problematic. Since the promulgation of the M'Naghten test in 1843, courts and legislators have attempted to articulate a clear and easily understood definition of insanity. Legal scholars have created an overwhelming volume of literature on such important aspects of the defense as the role of psychiatrists in a jury trial, the appropriateness of the diminished capacity defense, and the constitutionality of imposing the burden of proving insanity on the defendant. Even the necessity of retaining the defense has been questioned. The Maine Supreme Judicial Court has recently confronted a …

Women Judges And Wikipedia, Sally Kenney

ConLawNOW

Although many academics may openly discourage their students from consulting it, Wikipedia is the go-to first port-of-call for information for scholarly research, journalists, and even judges. Its info boxes are the source for Google and artificial intelligence in general. Wikipedia is the largest and most widely used encyclopedia in history. Just as feminist scholars have broken into mainstream journals and gained a toehold within university presses, these sources have become increasingly irrelevant and unavailable behind paywalls. Instead, Wikipedia has emerged as the standard research source, but it presents significant barriers to entry for feminist scholars and subjects of women, feminism, …

The Enduring Genocide Against The Yazidis: How Iraq's Law On Religious Identity Violates The Human Rights Of Yazidi Survivors Of Isis Captivity And Their Children Born Of Sexual Violence, Michelle Xiao Liu

Northwestern Journal of Human Rights

2024 marked the ten-year anniversary of the Islamic State of Iraq and Syria (ISIS) genocide against the Yazidis—an ethnoreligious minority community indigenous to northwest Iraq. Beginning in August 2014, ISIS executed between 3,000 and 5,000 Yazidi men and elderly Yazidi women and buried them in mass graves, kidnapped and converted young Yazidi boys to a radical form of Sunni Islam and pressed them into military service, and captured or trafficked over 6,800 Yazidi women and children, subjecting many of them to sexual violence. ISIS carried out its intent to eradicate the Yazidis through systematic murder, forced conversion, and sexual violence …

Standard Search Logic Under Article 9: The Florida Debacle Revisited, Kenneth C. Kettering

University of Miami Law Review

If a financing statement is filed in a filing office that does not have a search system that uses a standard search logic, Article 9 of the Uniform Commercial Code provides that there is no tolerance for any error, however slight, in the debtor’s name shown on that financing statement. Such an erroneous financing statement will not be effective to perfect a security interest. In 2012 the author warned that the search system used by Florida’s central filing office lacks a standard search logic, and in 2022 the Florida Supreme Court so held. This Article (i) details how Florida should …

Duty, Foreseeability, And The Negligent Infliction Of Mental Distress, Mark A. Beede

Maine Law Review

Under early common law if the act of a person gave rise to an action at law, he would be liable for resulting damages regardless of fault. A person acted at his peril. The limitation on liability, if any, lay not with a concept of duty but with a medieval sort of proximate cause. “There is little trace of any notion of. . . an obligation to any one individual, as essential to the tort. The defendant's obligation to behave properly apparently was owed to all the world.” With the merging of the common law actions of trespass and trespass …

The Development And Consequences Of The "Good Faith" Exception To The Exclusionary Rule And The Qualified "Good Faith" Immunity From Liability Under Section 1983, Philip M. Coffin Iii, Paul F. Driscoll

Maine Law Review

The remedies fashioned to redress violations of the fourth amendment to the United States Constitution continue to be the subject of much judicial, legislative, and scholarly inquiry. In striking the balance between the need to protect individual freedom and the need to protect society from criminal activity, the Supreme Court and Congress have developed two principal remedies for fourth amendment violations: the exclusionary rule and civil actions under 42 U.S.C. § 1983 or under theories of constitutional tort. on the development of both of these remedies it is assumed that their effectiveness is the true measure of fourth amendment liberties. …

In Search Of The Best Policies For Translational Geroscience, Tom W. Bell, Kalon Boston

UC Law Science and Technology Journal

Though it once seemed like an inevitable fact of life, geroscience can now credibly promise to slow and even reverse aging. New geroscience treatments offer the prospect of large increases in human welfare and will attract huge demand. How can governments best support research, development, and commercialization of the field? The answer will depend on many factors, including public policies, supply-side resources, and market size. This paper focuses on the first factor, seeking the best public policies for translating geroscience from bench to bedside. It begins with a review of current geroscience policy, identifying the rules and institutions that help …

Fordham Lawyer, No. 24 - Spring 2025, Fordham Law Alumni Association, Fordham Law School

Fordham Lawyer

Fordham Lawyer magazine was first published in 1988 and continued through 2004. It returned in 2011 under Dean Michael M. Martin. The magazine shines a spotlight on faculty research, the Law School community, and the accomplishments of our alumni. No issues were published between 2004 and 2011.

Open Justice Baltimore V. Baltimore City Law Department: Brief For Scholars Of Civil Procedure And First Amendment Organizations As Amici Curiae In Support Of Petitioners, Maureen Carroll

Appellate Briefs

Amici are scholars whose research and teaching focus on civil procedure, including pleading standards; an organization that provides legal assistance at no charge to individuals who have had their rights violated, including First Amendment rights; and a nonprofit, nonpartisan organization dedicated to defending freedom of speech, freedom of the press, and the people’s right to know. Their expertise is relevant to the impacts of the legal issue in this case on civil procedure and the First Amendment. Amici also have a strong professional interest in the proper disposition of cases involving civil procedure and ensuring the efficient disposition of meritorious …

Reassessing The Use Exemption: Constitutional Tensions In The Lanham Act, Caleb Nelson, Abigail Peterson

Brigham Young University Prelaw Review

In today’s global economy, where new products and services are being created and marketed at an unprecedented rate, a fundamental inconsistency exists within U.S. trademark law. While domestic applicants in the United States are required to provide proof of use when applying for trademark registration, foreign applicants are statutorily exempt from providing evidence that they actually use their trademarks. This disparity, which has gone unaddressed for decades, puts small and mid-sized American businesses and individuals at a disadvantage to their foreign counterparts.

Suicide’S Shadow: The Evolution Of A Ghost Crime, Scott W. Howe

Missouri Law Review

Law treats suicide as malfeasance—a display of mental illness and, worse, a ghost crime that has never left us. While states no longer criminally punish suicide, they detain and force mental-health treatment on many who attempt it, or indicate they might attempt it, and threaten criminal sanctions against those who aid or encourage it. For these and other reasons, the suicide label functions not merely as a description of an event but as a censure. A lengthy, legal history, fueled originally by religion but then tempered by pragmatism, led to these circumstances and can largely rationalize relevant legal doctrines and …

Are The Kids Alright? An Analysis Of Sex Education, The Sexual Behaviors Of Minors And Age Of Consent Laws In The United States, Monica L. Johnston

Senior Theses

This paper explores the sexual development of children, the sexual education they receive, as well as the history of sex laws in the United States, to determine whether the laws regarding education and age of consent adequately protect children. A qualitative survey is also conducted with undergraduate students at the University of South Carolina to determine what topics were discussed in their sexual education curriculum, as well as their sexual behaviors as a minor. While the push for comprehensive sexual education models has been growing, millions of dollars are still being allocated to promote Abstinence Only Until Marriage programs, which …

The Art Of Advocacy Revealed Through Law School Curriculum, Ashley Jones Hall

The Journal of Law and Education

No abstract provided.

Disagreement And Historical Argument Or How Not To Think About Removal, Andrea Scoseria Katz, Noah A. Rosenblum, Jane Manners

University of Michigan Journal of Law Reform

Scholars have debated the reach of the President’s power to remove government officers for over one hundred years. This old fight is now suddenly urgent as President Trump asserts far-reaching powers to control the federal bureaucracy and the Supreme Court transforms Unitary Executive Theory into caselaw. Yet the scholarly case for an indefeasible presidential removal power has never been weaker.

This Essay continues an ongoing conversation about how to read some critical early republic evidence about removal. It briefly recapitulates the stakes of the disagreement before offering in-depth analyses of developments in Pennsylvania removal practice, including a reading of the …

The Misuse Of Ratification-Era Sources By Unitary Executive Theorists, Jed Handelsman Shugerman

University of Michigan Journal of Law Reform

This symposium essay suggests that, given an ostensibly originalist Supreme Court, the future depends on getting the past right. The unitary executive theory is approaching its political and doctrinal zenith in 2025, at the very moment it is approaching an evidentiary crisis. This essay details that crisis: a subset of misuses and misrepresentations of sources in the unitary executive scholarship. This subset focuses on serious misrepresentations of the Ratifications debates.

The Ratification debates appropriately have become the primary source of evidence for original public meaning, the dominant theory of originalism. The Ratification debates have always been a significant problem for …

“Gruesome Logic”: The Tucson No More Deaths Prosecutions And Religious Liberty, Kristina M. Campbell

North Carolina Civil Rights Law Review

No abstract provided.

From The Mouths Of Babes: Evidentiary Issues, Child Declarants, And Statements Made For Medical Diagnosis Or Treatment, Hugh M. Mundy, Marc D. Ginsberg

University of Baltimore Law Review

No abstract provided.

Fourth Amendment Reasonableness As Technologically-Shifting Inherent Particularity, Gregory Velloze

University of Baltimore Law Review

No abstract provided.

The Soulful Lawyer: Jungian Practices For Legal Professionals, Luis Chiesa

Buffalo Law Review

The legal profession faces a profound crisis of meaning, with lawyers experiencing some of the highest rates of depression, anxiety, and substance abuse of any profession. While techniques like mindfulness meditation have gained traction as tools to address lawyer well-being, they often fall short of fostering the deeper sense of purpose and fulfillment that so many legal professionals seek. This Article explores how Jungian depth psychology and contemplative practices can address the root causes of dissatisfaction, or “dukkha,” within the legal profession. Drawing from Carl Jung’s concepts of persona, shadow, and collective unconscious, it examines how lawyers can unmask their …

Prophetic Prosperity: Unveiling The Next Frontier Of Socially Responsible & Sustainable Investing, Alyssa Carbone

Buffalo Law Review

Islamic finance, poised for a significant rise in prominence, stands uniquely at the intersection of religious adherence and modern financial systems. With Islam projected to overtake Christianity as the dominant world religion by 20501 and Muslims constituting the fastestgrowing religious group, expected to reach a global population of nearly 3 billion adherents in 20602, the demand for financial products aligned with the values of Islam is set to soar. Accordingly, Islamic finance, specifically Islamic capital markets, has strong projections of growth, even amidst economic instability in traditional Western financial markets.3 Yet, despite its promising outlook, Islamic finance remains largely unfamiliar …

Magna Carta And The Origins Of Legislative Power, Matthew Steilen

Buffalo Law Review

No abstract provided.

The Distinction Between Direct And Derivative Shareholder Claims, James An

Suffolk University Law School Faculty Works

One of the primary methods for shareholders to seek redress for corporate misconduct is the shareholder suit, in which shareholders may assert either “direct” or “derivative” claims. Under current legal doctrine, direct claims nominally seek to assert a right of the individual shareholder, while derivative claims seek to assert a right that formally belongs to the corporation and is asserted by the shareholder on the corporation’s behalf. Due to legitimate risks of shareholder and judicial overreach, courts have imposed numerous procedural hurdles upon derivative suits, making them much harder to bring than direct suits.

However, although the distinction between direct …

Privatized Medicaid: An Incentivized System Of Constant Denials, Hannah R. Courtney

West Virginia Law Review

The Medicaid Program was created to fill the gap of what private insurance would not do—provide vulnerable populations with meaningful access to quality health care—but now it has been thrown into the pitfalls of private insurance. Over the last two decades, there has been a significant rise in states contracting with private Managed Care Organizations (“MCOs”) to provide services to a percentage of their Medicaid enrollees. MCOs now make decisions each year to approve or deny millions of requests for Medicaid coverage of health care services using prior authorization. Until now, the criticisms and fears surrounding privatized Medicaid have largely …

Stars, Stripes, And Pills: The Stock Narratives That Blind, Michelle Wilde Anderson

West Virginia Law Review

No abstract provided.