Digital Commons Network^™

Market Effects Bearing On Fair Use, Jeanne C. Fromer

Faculty Articles

Copyright law, which promotes the creation of cultural and artistic works by protecting these works from being copied, excuses infringement that is deemed to be a fair use. Whether an otherwise infringing work is a fair use is determined by courts weighing at least four factors, one of which is the effect of the otherwise infringing work on the market for the copyrighted work. The Supreme Court's decision just over twenty years ago in Campbell v. Acuff-Rose Music, Inc. opened the door to a laudable analytical framework for the bearing of market effects on fair use. First, Campbell supports a …

Contractual Solutions For Employment Law Problems, Richard A. Epstein

Faculty Articles

So the lesson should be clear. Empirical studies only matter if they seek to verify some theoretical proposition that relates to the efficiency of various labor markets. The substitution effects are theoretically of little importance in dealing with an assessment of the ADEA and similar statutes. What matters here is the first principle. The heavy burden falls on those who wish to regulate labor markets. With minimum wage and employment discrimination laws that burden has not been met. What we do have unfortunately is an ugly cycle. First, the government puts one set of restrictions in place, and it discovers …

The End Of Another Era: Reflections On Daimler And Its Implications For Judicial Jurisdiction In The United States, Linda J. Silberman

Faculty Articles

The Supreme Court’s decision in Daimler AG v. Bauman confirmed what the Court hinted at in its earlier decision in Goodyear Dunlop Tires v. Brown—that a corporation must be sued “at home” unless the claims being asserted relate to the corporation’s activity in the forum state. Together, the decisions put an end to an era of general jurisdiction jurisprudence in the United States. This Article highlights the impact of these decisions in both interstate and international cases. It examines related areas of jurisdictional doctrine that are likely to be affected, including new ways of defining and interpreting specific jurisdiction. It …

The Evolution Of Relational Property Rights: A Case Of Chinese Rural Land Reform, Shitong Qiao, Frank K. Upham

Faculty Articles

The most notable, or at least the most noted, form of property evolution has been the transfer of exclusive rights from collectives to individuals and vice versa, such as the farm collectivization in Soviet Union and the establishment of the People’s Communes in Mao’s China and their reversals. Such radical moments, however, constitute only a small part of history. For the most part, property rights evolve quietly and incrementally, which is hard to explain if we take exclusive rights as the core of property, or, to put it more generally, if we are focusing solely on the question of who …

The Australian Alternative: A View From Abroad Of Recent Developments In Securities Class Actions, Samuel Issacharoff, Thad Eagles

Faculty Articles

The United States, which has long been the primary destination for global securities litigation, has begun restricting access to its courts, making their discovery rules, threat of jury trial, and attorney compensation structures that are very favorable to plaintiffs harder to reach for foreign plaintiffs. After the Supreme Court’s decision in Morrison v. National Australia Bank, so-called "f-cubed" cases — involving foreign plaintiffs and foreign issuers of stock that are traded on foreign exchanges — are increasingly unwelcome in the United States. Furthermore, lower courts have responded enthusiastically to Morrison’s holding, further limiting foreign actors’ access to American courts. Effective …

An Unapologetic Defense Of The Classical Liberal Constitution: A Reply To Professor Sherry, Richard A. Epstein

Faculty Articles

In my response, I undertake three interrelated tasks. The first is to make clear my own view on these substantive issues, and the second is to critique the alternative vision that Sherry tries to advance. The third is to call attention to the inability of progressive constitutionalists like Sherry to develop an alternative theory of their own — an inability Sherry herself acknowledges. At the outset, let me flag a point that I shall elaborate on later. As a matter of first principle I do take the position that a unified conceptual framework should apply to what are called economic …

The Banality Of Racial Inequality, Richard R. W. Brooks

Faculty Articles

Book review of Reproducing Racism: How Everyday Choices Lock in White Advantage by Daria Roithmayr.

Waivers Of Immunity And Congress's Power To Regulate Federal Jurisdiction—Federal-Tort Filing Periods As A Testing Case, Helen Hershkoff

Faculty Articles

This article examines an infrequently considered question in the literature about federal jurisdiction: whether Congress is subject to any constitutional constraint when it consents to being sued in federal court. Even assuming that the sovereign’s consent is a necessary condition to suit in federal court, this article argues that the waiver of immunity cannot confer jurisdiction in a manner or through a process that circumvents constitutional requirements. This question, narrow but important, has not received sustained attention in the otherwise voluminous literature on Congress’s power to regulate the jurisdiction of the federal courts. Most discussion engages with the problem of …

The President And Immigration Law Redux, Adam B. Cox, Cristina M. Rodríguez

Faculty Articles

In November 2014, President Obama announced his intention to dramatically reshape immigration law through administrative channels. Together with relief policies announced in 2012, his initiatives would shield nearly half the population of unauthorized immigrants from removal and enable them to work in the United States. These events have drawn renewed attention to the President’s power to shape immigration law. They also have reignited a longstanding controversy about whether constitutional limits exist on a central source of executive authority: the power to enforce the law. In using the Obama relief policies to explore these dynamics, we make two central claims. First, …

A New Birth Of Freedom?: Obergefell V. Hodges, Kenji Yoshino

Faculty Articles

The decision in Obergefell v. Hodges achieved canonical status even as Justice Kennedy read the result from the bench. A bare majority held that the Fourteenth Amendment required every state to perform and to recognize marriages between individuals of the same sex. The majority opinion ended with these ringing words about the plaintiffs: “Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” While Obergefell’s most immediate effect was to legalize same-sex marriage across the …

Griswold's Criminal Law, Melissa Murray

Faculty Articles

This Symposium commemorates the fiftieth anniversary of Griswold v. Connecticut. In the fifty years since it was announced, Griswold’s logic has underwritten a broader commitment to reproductive rights—one that has expanded the right to contraception and secured a woman’s right to choose an abortion. Amidst these developments it is easy to overlook another aspect of Griswold’s history. Griswold also was part of a criminal law reform effort that sought to reimagine the state’s authority in the intimate lives of citizens and limit the use of criminal law as a means of enforcing moral conformity. In this regard, Griswold shares roots …

Giving The Federal Circuit A Run For Its Money: Challenging Patents In The Ptab, Rochelle C. Dreyfuss

Faculty Articles

In 2012, Congress changed the patent landscape in a crucial way. In an attempt to deal with the perception that low-quality patents and suits instituted by nonpracticing entities (“trolls”) were imposing a heavy tax on innovation, the legislature established the Patent Trials and Appeal Board (PTAB) to review the validity of patent claims under three new inter partes procedures. These procedures have proved extremely popular and startlingly effective at weeding out bad patents. But with a cancellation rate of close to 80% of the claims tried, the PTAB has been heavily criticized as a “death squad,” the place where patents …

Gentrification And Urban Public School Reforms: The Interest Divergence Dilemma, Erika K. Wilson

Faculty Articles

Cities across the country cities are experiencing rapid increases in gentrification: the influx of middle-class, usually white, residents into cities with large minority populations. Reversing a decades long trend of white flight out of urban city schools, a significant number of white middle-class gentrifiers are now also enrolling their children in urban city public schools. Local officials in many gentrifying cities value the renewed interest of middle-class white in urban public schools because it represents an opportunity to finally racially integrate urban public schools. Further, it also represents an opportunity to keep middle-class gentrifiers,and their tax dollars, from fleeing to …

Client Choice For Indigent Criminal Defendants: Theory And Implementation, Stephen J. Schulhofer

Faculty Articles

With rare exceptions, existing systems for effectuating the indigent criminal defendant’s right to counsel range from disappointing to scandalously inadequate. Inadequate funding, though always prominently mentioned, is often merely a symptom of a problem that weakens almost all indigent defense systems, whether poorly funded or not -- the fact that the indigent defendant is never permitted to select his own attorney. In previous articles, I argued that arguments against client choice are almost entirely bogus. The concept nonetheless drew little interest, but that situation recently changed when the Texas Indigent Defense Commission put the proposal into effect on a trial …

From Incentive To Commodity To Asset: How International Law Is Reconceptualizing Intellectual Property, Rochelle C. Dreyfuss, Susy Frankel

Faculty Articles

In this paper, we examine the effects of the shift from quantitative to a qualitative solidification of the IP landscape. In the first two sections, we choose examples from these rather extensive agreements to demonstrate how the evolution of international lawmaking, which may well have started as a purposive response by post-industrial economies, is all too rapidly eclipsing incentive rationales for intellectual property protection. Using recent controversies over the working requirement and tobacco packaging, we next look at how commodification and assetization alter the debate over protecting creative output and to the loss of flexibility and diminished public access. While …

Don't Ask, Must Tell—And Other Combinations, Adam M. Samaha, Lior Jacob Strahilevitz

Faculty Articles

The military’s defunct Don’t Ask, Don’t Tell policy has been studied and debated for decades. Surprisingly, the question of why a legal regime would combine these particular rules for information flow has received little attention. More surprisingly still, legal scholars have provided no systemic account of why law might prohibit or mandate asking and telling. While there is a large literature on disclosure and a fragmented literature on questioning, considering either part of the information dissemination puzzle in isolation has caused scholars to overlook key considerations. This Article tackles foundational issues of information policy and legal design, focusing on instances …

The Bp Oil Spill Settlements, Classwide Punitive Damages, And Societal Deterrence, Catherine M. Sharkey

Faculty Articles

The BP oil spill litigation and subsequent settlements provide an opportunity to explore a novel societal economic deterrence rationale for classwide supra-compensatory damages. Judge Jack Weinstein was a pioneer in the field of punitive damages class certification. In In re Simon II, he certified a nationwide punitive-damages-only class in a multijurisdiction, multidefendant tobacco lawsuit. Using Judge Weinstein’s innovations in In re Simon II as an analytical lens, the Article evaluates the future prospects for classwide punitive damages claims. Specifically, the Article considers how private litigants might adopt a societal damages approach in negotiating and achieving class action settlements. Class action …

Learning To Teach English Learners: Instructional Coaching And Developing Novice High School Teacher Capacity, Felice Atesoglu Russell

Faculty Articles

The number of English learners (ELs) in our schools continues to increase, and at the same time, the academic achievement of ELs consistently lags behind the achievement of native-English-speaking peers (Goldenberg & Coleman, 2010). These second language learners bring with them a set of special needs for teaching and learning, especially for mainstream content area teachers, who often have little or no specialized training for meeting these needs (Bunch, 2010). Although there is not yet extensive empirical work focused on how mainstream content teachers at the secondary level typically teach ELs or how they learn to more effectively teach these …

Judicial Participation In Plea Bargaining: A Dispute Resolution Perspective, Rishi Batra

Faculty Articles

There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely. By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates …

Prior Sexual Misconduct Evidence In State Courts: Constitutional And Common Law Challenges, Michael L. Smith

Faculty Articles

Prosecuting sex crimes is a sensitive, challenging process, and many who commit these crimes end up going unpunished. While a defendant may have a history of prior sexual misconduct, the rules of evidence in most states and at the federal level generally prohibit the introduction of prior misconduct to show a defendant's propensity to commit a present crime. In response, the federal government and numerous state legislatures have adopted rules of evidence that permit the introduction of prior sexual misconduct in cases where a defendant is charged with a sexual crime.

While commentators have written in great detail about federal …

Regulating Law Enforcement's Use Of Drones: The Need For State Legislation, Michael L. Smith

Faculty Articles

The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on drones tends to focus on how courts, rather than legislative bodies, can restrict the government's use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state …

A Case For The Electoral College And For Its Faithless Elector, Stephen M. Sheppard

Faculty Articles

Every four years, the cry goes up to destroy the Electoral College. That cry is especially loud in years when a candidate is elected president who receives a minority of the votes. The election of a "minority president" happened with the election of 2000, but it had happened before. The Electoral College has elected three presidents whom a majority of the voters voted against: Rutherford B. Hayes in 1876, Benjamin Harrison in 1888, and George W. Bush in 2000. (A fourth president was also elected with a minority of the popular vote—John Quincy Adams in 1824—through that election was by …

Judicial Education And Regulatory Capture: Does The Current System Of Educating Judges Promote A Well-Functioning Judiciary And Adequately Serve The Public Interest?, S. I. Strong

Faculty Articles

This phenomenon suggests a pressing need for further scrutiny into matters relating to the education of judges in this country. This Essay therefore considers of a number of fundamental issues relating to judicial education in the United States so as to consider, at least as a preliminary matter, whether regulatory capture exists. Given the scope of this Essay, some issues are necessarily excluded. Nevertheless, this Essay hopes to trigger a deeper debate about judicial education in this country.

The structure of the analysis is as follows. First, the Essay considers certain obstacles to research concerning judicial education as a means …

Writing Reasoned Decisions And Opinions: A Guide For Novice, Experienced, And Foreign Judges, S. I. Strong

Faculty Articles

The primary focus of this Article is on providing practical advice on how to write a reasoned decision or opinion (Section IV). However, experts in education theory have found that adult learners do best when they understand why certain information is being presented, so the discussion of how to write reasoned judgments will be preceded by a brief section on why such judgments are necessary or useful (Section III). This Article also considers what a reasoned decision or opinion actually is as a preliminary matter (Section II), since it is impossible to write such a document without a true appreciation …

Mandatory Process, Matthew B. Lawrence

Faculty Articles

This Article suggests that people tend to undervalue their procedural rights—their proverbial “day in court”—until they are actually involved in a dispute. The Article argues that the inherent, outcome-independent value of participating in a dispute resolution process comes largely from its power to soothe a person’s grievance— their perception of unfairness and accompanying negative emotional reaction—win or lose. But a tendency to assume unchanging emotional states, known in behavioral economics as projection bias, can prevent people from anticipating that they might become aggrieved and from appreciating the grievance-soothing power of process. When this happens, people will waive their procedural rights …

Procedural Triage, Matthew B. Lawrence

Faculty Articles

Prior scholarship has assumed that the inherent value of a “day in court” is the same for all claimants, so that when procedural resources (like a jury trial or a hearing) are scarce, they should be rationed the same way for all claimants. That is incorrect. This Article shows that the inherent value of a “day in court” can be far greater for some claimants, such as first-time filers, than for others, such as corporate entities and that it can be both desirable and feasible to take this variation into account in doling out scarce procedural protections. In other words, …

A Functional Theory Of Congressional Standing, Jonathan R. Nash

Faculty Articles

The Supreme Court has offered scarce and inconsistent guidance on congressional standing—that is, when houses of Congress or members of Congress have Article III standing. The Court’s most recent foray into congressional standing has prompted lower courts to infuse analysis with separation-of-powers concerns in order to erect a high standard for congressional standing. It has also invited the Department of Justice to argue that Congress lacks standing to enforce subpoenas against executive branch actors.

Injury to congressional litigants should be defined by reference to Congress’s constitutional functions. Those functions include gathering relevant information, casting votes, and (even when no vote …

Promoting Innovation, Matthew Sag, Spencer Weber Waller

Faculty Articles

This Essay proceeds as follows. We briefly introduce the concept of creative destruction and its place in Schumpeter’s work in Part II. In Part III we explain why a truly Schumpeterian competition policy demands more than a laissez faire approach. We explain why the law must preserve opportunities and incentives for creative destruction at all stages of innovation and we review four key policy areas of antitrust law from this innovation-focused perspective: unilateral conduct cases (Part III.A), cases at the intersection of IP and antitrust (Part III.B), Sherman Act section 1 cases (Part III.C), and merger policy (Part III.D). In …

Copyright Trolling, An Empirical Study, Matthew Sag

Faculty Articles

This Article proceeds as follows: Part II locates MDJD suits within the broader context of the IP troll debate. It explains why attempts to define copyright trolls in terms of status—i.e., in terms of the plaintiff’s relationship to the underlying IP—are ultimately flawed and suggests a conduct-focused approach based on identifying systematic opportunism. Part II explains why MDJD lawsuits have all of the hallmarks of copyright trolling, and it explores the basic economics of MDJD litigation. It then presents empirical data documenting the astonishing rise of MDJD lawsuits over the past decade. Part III explores the role of statutory damages …

The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt

Faculty Articles

This Article first outlines the myriad national security threats posed by a changing climate, addressing the President’s and Congress’s powers to plan, study, and invest in climate-resilient infrastructure at military installations that are vulnerable to a rise in sea levels. Second, this Article asserts that climate change will stress and test persistent separation of powers concerns at home and abroad. Specifically, the President has less authority to protect military infrastructure domestically in the face of congressional intransigence, but has comparably greater authority as Commander in Chief to respond to climate-induced events abroad. Third, this Article argues that the threat of …