Digital Commons Network^™

Going "Beyond" Mere Transformation: Warhol And Reconciliation Of The Derivative Work Right And Fair Use, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

The Supreme Court’s recent decision in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith is a watershed moment in the story of copyright jurisprudence. At its broadest, the decision articulates a unified vision — one that had been dormant in the lower court fair use jurisprudence — about the role of copyright and the manner in which to make sense of its effort to balance exclusivity with its myriad limitations. This Essay focuses on how the Court reconciled the working of the statute’s derivative work right with the breadth and reach of the “transformative use” version of the fair …

The National Security Exception At The Wto: Should It Just Be A Matter Of When Members Can Avail Of It? What About How?, Mona Pinchis-Paulsen, Kamal Saggi, Petros C. Mavroidis

Faculty Scholarship

The GATT security exceptions were practically in hibernation until recently. The recent WTO disputes panel activity concerning such exceptions is characterized by a standard of review that places the accent on ‘when’ action should be taken and not so much on ‘what’ action should be taken. We see two problems with this construction. First, the ‘when’ might be a function of privileged information that those possessing it might be unwilling to divulge in a transparent manner. Second, national security is an amorphous concept, and unless we disaggregate it, it is impossible to pronounce the appropriateness of measures adopted to pursue …

Celebrate Constitution And Citizenship Day Every Day, Not Just Sept. 17th, Maryam Ahranjani

Faculty Scholarship

Learning - and teaching - about the Constitution is not easy, but it is important. It was written so long ago by some powerful men that many of us cannot easily relate to. But they conceived of a living, breathing document whose intentions would guide future generations. Today we will begin to explore why it is important to strive to make the Constitution seem real and applicable to our lives. The Constitution provides guidelines for how government should work. And it provides for the basic individual rights and freedoms we enjoy in the United States.

Administrative Arrest Warrants: Armed Encounters Outside The Judicial Process, Meg Penrose

Faculty Scholarship

This Article considers three related questions. First, is a person “seized” under the Fourth Amendment when law enforcement restricts a person’s movements in their home and limits their ability to leave or go about their business? Second, does the answer to this seizure inquiry turn on the person’s citizenship status? And third, how do lawyers ensure that courts discard bad law? This last question is not a qualitative assessment— with good and bad law being tied to one’s legal ideology. Rather, certain legal holdings, dating back over half a century, have been whittled away if not entirely eroded. When this …

From The Bench, Pierre Leval, M. Margaret Mckeown, Jane C. Ginsburg

Faculty Scholarship

Lightly edited transcript of panel comments at the 2023 Symposium, “Rearrange, Transform, or Adapt: The Derivative Works Right After Andy Warhol Foundation v. Goldsmith.”

Is Distance From Innovation A Barrier To The Adoption Of Artificial Intelligence?, Jennifer Hunt, Iain Cockburn, James Bessen

Faculty Scholarship

Using our own data on Artificial Intelligence publications merged with Burning Glass vacancy data for 2007-2019, we investigate whether online vacancies for jobs requiring AI skills grow more slowly in U.S. locations farther from pre-2007 AI innovation hotspots. We find that a commuting zone which is an additional 200km (125 miles) from the closest AI hotspot has 17% lower growth in AI jobs’ share of vacancies. This is driven by distance from AI papers rather than AI patents. Distance reduces growth in AI research jobs as well as in jobs adapting AI to new industries, as evidenced by strong effects …

Endovascular Aneurysm Repair-First Strategy For Ruptured Abdominal Aortic Aneurysm Might Not Be Applicable To All Cases, Omkar Pawar, Anuja Sarode, Benjamin D. Colvard, Jae S. Cho

Faculty Scholarship

Background: We evaluate the relationship between the hospital case volume (HCV) and mortality outcomes after open aortic repair (OAR) and endovascular aortic repair (EVAR) of intact (iEVAR) and ruptured (rEVAR) abdominal aortic aneurysm (AAA) using a contemporary administrative database. Methods: The Healthcare Cost and Utilization Project Database for New York (2016) and New Jersey/Maryland/Florida (2016–2017) were queried using International Classification of Disease-10th edition to identify patients who had undergone OAR and EVAR. The hospitals were categorized into quartiles (Q) per overall (EVAR + OAR) volume, OAR-alone volume and EVAR-alone volume. Cox regression adjusted for confounding factors was used to estimate …

Major Questions, Common Sense?, Kevin Tobia, Daniel E. Walters, Brian Slocum

Faculty Scholarship

The Major Questions Doctrine (“MQD”) is the newest textualist interpretive canon, and it has driven consequential Supreme Court decisions concerning vaccine mandates, environmental regulation, and student loan relief. But the new MQD is a canon in search of legitimization. Critics allege that the MQD displaces the Court’s conventional textual analysis with judicial policymaking. Textualists have now responded that the MQD is a linguistic canon, consistent with textualism. Justice Barrett recently argued in Biden v. Nebraska that the MQD is grounded in ordinary people’s understanding of language and law, and scholarship contends that the MQD reflects ordinary people’s understanding of textual …

Constructing A Liberal/Progressive “Constitution In Exile”: An Appreciation Of Jack Balkin’S Memory And Authority, James E. Fleming

Faculty Scholarship

Balkin’s book makes clear why many liberal/progressive criticisms of conservative originalists—that they get the history wrong or cherry-pick it, that they only selectively insist upon originalism and otherwise ignore it, and the like—deliver at best glancing blows (as far as the conservative originalists are concerned). For one thing, he shows that the construction of memory entails the construction of forgetting (or erasure),7 which is essential to originalist projects that whitewash our historical injustices and repudiate the progressive aspirations embodied in our history. Hence, when conservative originalists erase unjust aspects of our history, and liberals and progressives criticize them for not …

Critical Race Theory As Legal Epistemic Justice, Jasmine Gonzales Rose

Faculty Scholarship

“Critical Thinking: Not Critical Race Theory” and “Teach Truth: Not CRT,” proclaimed the front and back of a T-shirt on a fellow traveler passing in the airport. I was startled by the blatant misconceptions. The core pursuits of critical race theory (“CRT”) are to think critically, discover truth, and diversify knowledge about race and racism. Although I was aware of then-President Trump’s executive order barring federal diversity training and bills modeled after it, nothing had prepared me for the realization that my academic subfield had become so widely criticized that it was now the subject of T-shirt slogans. A few …

What The Warhol Court Got Wrong: Use As An Artist Reference And The Derivative Work Doctrine, Jessica Silbey, Eva Subotnik

Faculty Scholarship

In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Supreme Court conflated “use as an artist reference” with preparing a “derivative work.” It did so on the erroneous assumption that permission to use a copyrighted work as an artist reference is a license to prepare a derivative work. But copyright law does not necessarily deem all uses of references for making new art to be the preparation of a derivative work. In other words, not all adaptations of an original work are infringing. Some may be neither derivative works nor substantially similar copies, and some may …

The Influence Of The Race Of Defendant And The Race Of Victim On Capital Charging And Sentencing In California, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence

Faculty Scholarship

The California Racial Justice Act of 2020 recognized racial and ethnic discrimination as a basis for relief in capital cases, expressly permitting several types of statistical evidence to be introduced. This statewide study of the influence of race and ethnicity on the application of capital punishment contributes to this evidence. We draw on data from over 27,000 murder and manslaughter convictions in California state courts between 1978 and 2002. Using multiple methods, we found significant racial and ethnic disparities in charging and sentencing decisions. Controlling for defendant culpability and specific statutory aggravators, we show that Black and Latinx defendants and …

New York Falling Behind In Implementing Bold Climate Law, Michael B. Gerrard

Faculty Scholarship

In July 2019, shortly after Gov. Andrew Cuomo signed the Climate Leadership and Community Protection Act (CLCPA), I wrote in an op-ed, “The champagne corks are still popping. But the realization is dawning that implementing the new law will be really, really hard. New York is boldly going where no state has gone before … It will take a great deal of sweat and treasure (no one knows just how much), as well as a continuation of the political will that brought us to this point.”

We still do not know how much sweat and treasure will be required, but …

The Surprising Survival – So Far – Of The Corporate Contribution Ban, Richard Briffault

Faculty Scholarship

In Citizens United v. Federal Election Commission, the Supreme Court invalidated the longstanding ban on the expenditure of corporate funds in federal election campaigns. In so doing, the Court dismissed outright an argument that had long been the foundation for the restriction of corporate money in election campaigns — that, due to the “substantial aggregations of wealth amassed by the special advantages which go with the corporate form[,]” corporate money poses a distinct threat to the integrity of democracy. Instead, viewing corporations as essentially “associations of citizens,” Citizens United determined that “the First Amendment does not permit Congress to …

Prudence, Role Morality, And Restraint: Judge Wilkinson On The Separation Of Powers, Katherine Mims Crocker, Jack Goldsmith

Faculty Scholarship

Caution in reviewing the actions of the legislative and executive branches has been a hallmark of the jurisprudence of Judge J. Harvie Wilkinson III. The Constitution “at most gives judges specific authority to redress violations of specific provisions,” Judge Wilkinson writes in his book Cosmic Constitutional Theory. But even when doing so, “courts must exercise great caution before injecting themselves into the vortex of varied political questions,” for “[i]t is often far preferable to allow the political institutions under our Constitution to struggle among themselves, with each bringing to bear the respective arsenal of powers the Framers accorded them.” …

Diffuse Interface Modeling Of Non-Isothermal Stokes-Darcy Flow With Immersed Transmissibility Conditions, Hyoung Suk Suh

Faculty Scholarship

The coupling between free and porous medium flows has received significant attention since it plays an important role in a wide range of problems from fluid-soil interactions to biofluid dynamics. However, modeling this coupled process remains a difficult task as it often involves a domain decomposition algorithm in conjunction with a special treatment at the interface. The problem can become more challenging under non-isothermal conditions because it requires the iterative procedure at every time step to simultaneously meet the transient mass continuity, force equilibrium, and energy balance for the entire system. This article presents a diffuse interface framework for modeling …

The Complexity Of American Federalism, Christian G. Fritz

Faculty Scholarship

For the Balkinization Symposium on Alison L. LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press, 2024).

Alison LaCroix’s insightful new book, The Interbellum Constitution, builds on an often-overlooked fact: that Americans living before the Civil War did not know they were part of an “antebellum” period. That oversight has contributed to a conventional narrative of constitutional history and doctrine during the first half of the nineteenth-century that tends to read that history and doctrine backwards through the lens of a war that contemporaries did not know would define them. From this …

Giant Asset Managers, The Big Three, And Index Investing, Dorothy S. Lund, Adriana Z. Robertson

Faculty Scholarship

A robust literature describes the incentives and stewardship practices of the “Big Three” asset managers (BlackRock, Vanguard, and State Street Global Advisors), often referring to these asset managers as “passive.” This is so common that the “Big Three,” “index fund,” and “passive manager” are used almost interchangeably by both academics and practitioners. This shorthand emerged in the foundational scholarship in this area, and while it may remain useful in certain contexts, its casual use obscures important features of the market and contributes to misperceptions. In this chapter, we demonstrate that it is a mistake to equate passive investing with index …

Epilogue: Uc Law Journal – Rice Symposium, Ming H. Chen

Faculty Scholarship

The theme for this symposium, “We the People: Citizenship, Race, and Equality,” grew out of my concern for unequal citizenship for immigrants and non-white marginalized persons in their enduring quest to obtain fuller citizenship and belonging. More specifically, the theme furthers a dialogue sparked by my past writing on the structural limits on equal citizenship. In Pursuing Citizenship, I argued that citizenship entails both substantive and formal citizenship and that people cannot fully belong without formal citizenship. Uncovering the importance of formal citizenship led to some important policy reforms, including a reduction in the naturalization backlog under the Biden …

A Framework For The Foundation Of The Philosophy Of Artificial Intelligence, Emily Barnes, James Hutson

Faculty Scholarship

In recent years, the rapid advancement of artificial intelligence (AI) technology has sparked profound questions about the nature of machine intelligence and the possibility of AI consciousness. As AI systems become increasingly sophisticated, examining their philosophical foundations has become imperative. This article investigates the intricate relationship between AI and existential thought, aiming to establish a comprehensive framework for understanding AI's philosophical underpinnings. The historical development of AI, from symbolic AI to contemporary machine learning paradigms, highlights the increasing complexity and sophistication of AI systems, prompting significant philosophical debates about machine consciousness. Theoretical models such as the Independent Core Observer Model …

Why Do In-State Plaintiffs Invoke Diversity Jurisdiction?, Scott Dodson

Faculty Scholarship

The traditional rationale of federal diversity jurisdiction is to protect out-of-state parties from the risk of an appearance of state-court bias in favor of an in-state adversary. Yet a strikingly high percentage—more than 50 percent—of original domestic-diversity cases are filed by in-state plaintiffs. Why these in-state plaintiffs invoke diversity jurisdiction is a question that has largely been ignored in the literature. Drawing on docket data and an original dataset based on responses to a survey sent to more than twelve thousand attorneys who represented in-state plaintiffs in domestic-diversity cases, I find that these plaintiffs can be grouped into roughly three …

Bridging The Gap: Ai And The Hidden Structure Of Consciousness, Emily Barnes, James Hutson

Faculty Scholarship

The quest to develop Artificial Intelligence (AI) systems that possess human-like consciousness necessitates a deep dive into both theoretical and practical aspects underpinning this ambitious goal. This article builds on initial philosophical explorations of AI consciousness by examining the intricate and often hidden structures that may facilitate conscious experiences in AI. Drawing from concepts in cognitive science and neuroscience, the article elucidates how AI systems can be designed to replicate the structural and functional aspects of human consciousness. The discussion includes the Hierarchy of Spatial Belongings proposed by Forti (2024), frameworks like the Integrated Information Theory (IIT), and models linking …

Labour And Democracy, Kate Andrias

Faculty Scholarship

Democracy has always been a central project of labour law, but it is all the more important today, with authoritarianism on the rise and democracy under threat across the globe. This chapter examines the relationship between labour law and democracy. It explores the central tension between democracy and labour under capitalism; traces how ideas and arguments about workplace democracy have evolved over time; and explores the relationship between workplace democracy and political democracy, including how and when unions serve as a bulwark against authoritarianism. Ultimately, it argues that a critical task for labour law scholarship is to rethink the body …

The Incoherence Of Evidence Law, G. Alexander Nunn

Faculty Scholarship

What is the purpose of evidence law? The answer might seem intuitive. Evidence law exists, of course, to foster verdict accuracy, legitimacy, and efficiency. But these kindred aims often come into conflict. Policy tradeoffs are inescapable in evidence law, meaning that an evidentiary regime must clarify how its normative objectives cohere. Do accuracy, legitimacy, and efficiency work together on equal footing, such that the goal of a code is to maximize each objective to the extent possible? Or does one of evidence law’s aims take precedence over the rest? And if one goal takes priority, what is the role of …

Nocturnal Paroxysmal Dystonia To Sleep-Related Hypermotor Epilepsy: A Critical Review, Neel Fotedar, Hans O. Lüders

Faculty Scholarship

Sleep-related paroxysmal motor episodes (SPMEs) have been described by various names, including nocturnal paroxysmal dystonia, nocturnal frontal lobe epilepsy (NFLE), and sleep-related hypermotor epilepsy. The underlying pathophysiology has been debated over the years, with these episodes assumed to be a form of paroxysmal dystonia or parasomnia versus a form of epilepsy. In most studies published on SPMEs and their variants (paroxysmal arousals, nocturnal paroxysmal dystonia, and episodic nocturnal wanderings) in the early 1990s, the authors speculated on the pathophysiology but did not commit to one idea. It was not until the mid-1990s that epilepsy became the leading prospect. We performed …

Satellite Group Infall Into The Milky Way: Exploring The Crater-Leo Case With New Hst Proper Motions, Stacy S. Mcgaugh

Faculty Scholarship

Context. Within Λ cold dark matter (ΛCDM) simulations, Milky Way-like galaxies accrete some of their satellite galaxies in groups of 3–5 members rather than individually, and this has been suggested as a possible mechanism driving the formation of satellite planes. Objects accreted in groups are expected to share similar specific total energy and angular momentum, and to also have identical orbital planes and directions. Aims. Looking at observatio ns of Milky Way satellites, the dwarf galaxies Leo II, IV, V, and Crater II, and the star cluster Crater 1 were proposed to be a vestige of group infall. The suggested …

Kinetics Of Selenate Reduction Mediated By Underpotentially Deposited Cu On Polycrystalline Au Electrodes In Aqueous Perchloric Acid, Jonathan Strobl, Saurabh Pathak, Daniel Scherson

Faculty Scholarship

The reduction of selenate, SeO²₄⁻(aq),in 0.1 M HClO₄ solutions, induced by underpotential deposition, UPD, of Cu on polycrystalline Au electrodes was investigated using the rotating ring-disk electrode, RRDE, technique. Design and implementation of electrode potential-rotation rate protocols made it possible to determine the rates of SeO²₄⁻(aq)reduction as a function of Cu coverage, θCu, as determined by the Bruckenstein method (Swathirajan et al. J. Phys. Chem. 1982, 86, 2480–2485). In agreement with the results reported recently for Au(111) film electrodes (Strobl et al. Electrochimica Acta 2024, 493, 144,298), the reaction was found to proceed only for θCu above a critical value, …

False Start On Nil: Public And Private Law Should Treat College Athletes Like Any Other Student, Jodi Balsam

Faculty Scholarship

No abstract provided.

Do Private Actors Have Rights Under The Wto? The Motivation For And (Inadequate) Implementation Of Gatt Article X, Adeet Dobhal, Petros C. Mavroidis, Lucas Moreira Jiminez, Sunayana Sasmal, Robert Wolfe

Faculty Scholarship

General Agreement on Tariffs and Trade (GATT) Article X has been consistently overlooked in literature even though it is a unique provision in the GATT-regime: it acknowledges standing for private actors who can challenge trade-related administrative action by World Trade Organization (WTO) members. This provision is an unusual instantiation of the need to provide transparency for private actors about state policy. It is equally eccentric in seeming to provide a right for private actors to challenge governments, albeit only before domestic fora. How did the GATT end up with this provision? And are these apparent private rights meaningful in practice? …

Understanding 303 Creative Llc In A Polycentric Constitutional World, Meg Penrose

Faculty Scholarship

The evolution of rights following Obergefell is not over. Creative 303 LLC marked a new phase in the ongoing legal challenges over the rights and ceremonies attending same-sex marriage. This Essay addresses the anticipated limits of 303 Creative LLC.

The Essay proceeds in three parts. First, how does 303 Creative LLC impact government employees? What rights, if any, should government employees be able to raise in light of 303 Creative LLC? Second, what does 303 Creative LLC mean for private marketplace vendors engaging in expressive commerce? Vendors, particularly wedding vendors, often create unique items for weddings. Will the law focus …