Law Commons^™

A Transformative Use Taxonomy: Making Sense Of The Transformative Use Standard, David E. Shipley

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The transformative use standard, which is an important aspect of copyright law’s fair use doctrine, has been confusing and uncertain since 1994 when it was first introduced by the United States Supreme Court in Campbell v. Acuff-Rose Music. To try to make some sense of this standard, this article extends the work of several scholars who have argued that the massive amount of fair use case law generally divides itself into categories, patterns or policy clusters which have their own internal coherence. This article contends that these observations apply as well to transformative use decisions more particularly, which similarly fit …

Favoring The Press, Sonja R. West

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In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court caught the nation’s attention by declaring that corporations have a First Amendment right to independently spend unlimited amounts of money in political campaigns. The Court rested its 5-4 decision in large part on a concept of speaker-based discrimination. In the Court’s words, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.”

To drive home its point that speaker-based distinctions are inherently problematic, the Court focused on one type of speaker distinction — the treatment of news media corporations. …

How Dreamland Colored My Summer Vacation And Thinking About The Opioid Epidemic, Elizabeth Leonard

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Book Review of Dreamland: The True Tale of America’s Opiate Epidemic by Sam Quinones,(2018).

Distributed Ledgers, Traceable Shares, And The Division Of Power In Corporate Law, Christopher M. Bruner

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Review of Traceable Shares and Corporate Law, 113 Nw. U. L. Rev. __ by George S. Geis (forthcoming 2018)

Center-Left Politics And Corporate Governance: What Is The 'Progressive' Agenda?, Christopher Bruner

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For as long as corporations have existed, debates have persisted among scholars, judges, and policymakers regarding how best to describe their form and function as a positive matter, and how best to organize relations among their various stakeholders as a normative matter. This is hardly surprising given the economic and political stakes involved with control over vast and growing "corporate" resources, and it has become commonplace to speak of various approaches to corporate law in decidedly political terms. In particular, on the fundamental normative issue of the aims to which corporate decision-making ought to be directed, shareholder-centric conceptions of the …

Medicalization Of Rural Poverty: Challenges For Access, Elizabeth Weeks

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This article was prepared for a live conference, on “The Medicalization of Poverty,” held at the University of Illinois College of Law, and a symposium to be published in the Journal of Law, Medicine & Ethics. My piece focuses on a constellation of challenges for health care delivery and access to care in rural areas. Discussions regarding health and poverty often seem to focus on the admittedly persistent and multilayered problems of the urban poor: unemployment, substandard and unaffordable housing, violent crime, nutrition and “food desserts,” recreation and safe outdoor spaces, and under-resourced public schools, to name a few. While …

Models Of Law, Christian Turner

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The more we examine what is behind our most difficult legal questions, the more puzzling it can seem that we continue both to disagree strongly and, yet, to cooperate. If law is a reasoned enterprise, how is it that we are neither torn apart nor homogenized by our long social practice of it? I resolve this puzzle, and arrive at a richer understanding of law, using the idea of modeling familiar from the natural sciences and mathematics. I show (a) that theorists can model legal systems as abstract systems of institutions, information flows, and institutional processing or reasoning and (b) …

Athens Access To Justice Initiative: Judicial Leadership + Bar Support + Local Resources = Powerful Synergy, Eleanor Lanier

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No abstract provided.

The Scale Of Misdemeanor Justice, Megan T. Stevenson, Sandra G. Mayson

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This Article seeks to provide the most comprehensive national-level empirical analysis of misdemeanor criminal justice that is currently feasible given the state of data collection in the United States. First, we estimate that there are 13.2 million misdemeanor cases filed in the United States each year. Second, contrary to conventional wisdom, this number is not rising. Both the number of misdemeanor arrests and cases filed have declined markedly in recent years. In fact, national arrest rates for almost every misdemeanor offense category have been declining for at least two decades, and the misdemeanor arrest rate was lower in 2014 than …

Access To Consumer Bankruptcy, Pamela Foohey

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This essay examines the state of access to justice in the context of consumer bankruptcy from two vantage points: (1) how people decide that their money problems are legal problems addressable by filing bankruptcy; and (2) the barriers people face in using the consumer bankruptcy system. To shed new light on how people decide to use bankruptcy to address their financial troubles, I analyze a sample of narratives accompanying consumers' complaints about financial products and services submitted to the Consumer Financial Protection Bureau. I also chronicle the evolution of research regarding consumer bankruptcy’s “local legal culture,” systemic racial bias, and …

Ethical Issues In Robo-Lawyering: The Need For Guidance On Developing And Using Artificial Intelligence In The Practice Of Law, Drew Simshaw

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As in many other industries, artificial intelligence ("AI") is poised to drastically transform the legal services landscape. "Bots, " automated expert systems, and predictive analytics are already changing the way consumers seek, and lawyers provide, legal services. Among other impacts, AI has the potential to increase access to justice in the self-help, individual, and corporate law firm markets by lowering costs and expanding services to untapped markets. A prominent question in early literature on AI in law is whether these services constitute the unauthorized practice of law. Threshold questions of whether and by whom such services should be regulated are …

Joe Williams And Discourse Communities-The Journal Of Legal Writing Institute And Community Service, Terrill Pollman

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Professor Pollman writes a tribute to The Journal of the Legal Writing Institute.

Resilience And Native Girls: A Critique, Addie C. Rolnick

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The term resilience is often used with reference to Indigenous women and Indigenous youth. Native girls are included in each of these categories but are rarely the main focus of a campaign. Their triple vulnerability (gender, indigeneity, and age), however, means that the focus on resilience is often greatest when applied to them. This Article centers them. It traces the development of resilience in the (non-Native) ecological and psychological literature. Although resilience is used across many different disciplines, it is especially prominent in ecological literature about resilient institutions, such as communities and cities, and in psychological literature about resilient individuals. …

Bringing Counsel In From The Cold: Reconciling Ethical Rules With The Quagmire Of Insurance Defense Practice, Joseph Regalia, V. Andrew Cass

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Our case study is an ethical dilemma faced by insurance defense attorneys daily. An attorney is hired by Insurance Company A to defend an insured who is in a lawsuit over a car accident. Insurance Company A is one of the attorney's best clients, from whom he receives a steady stream of cases. Our attorney's investigation reveals good news-another driver not yet a party to the lawsuit may have contributed to the accident. This revelation has the potential to shift the blame, and all or part of the financial responsibility, onto the shoulders of the new potential party and his …

Families Across Borders: When Immigration And Family Law Collide-Minors Crossing Borders, Stewart Chang

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No abstract provided.

New York Right Of Publicity Law: Panel Discussion, Mary Lafrance

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No abstract provided.

Is Pena-Rodriguez V. Colorado Just A Drop In The Bucket Or A Catalyst For Improving A Jury System Still Plagued By Racial Bias, And Still Badly In Need Of Repairs, Robert I. Correales

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Historically, race-based jury bias has maintained the most prominent place in the hierarchy of social ills that have plagued the American Criminal Justice System. Relying on Due Process and Equal Protection principles, the United States Supreme Court and lower federal courts have chipped away at the problem with mixed results. State Courts have also served as laboratories, providing important lessons on the successes and failures of different approaches, often leading the way with their innovations. A formidable obstacle commonly referred to as a "black box," better known as the no-impeachment rule, has made progress difficult. The no-impeachment rule was designed …

Doing Right By Nevada: Adopting The Uniform Bar Exam, Daniel W. Hamilton

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No abstract provided.

The Grid And The Grouse: Cooperative Federal-State Conservation Planning In The Ages Of Obama And Trump, Bret C. Birdsong

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This essay reviews two habitat conservation and planning initiatives undertaken by the Obama administration that relied on and envisioned extraordinary cooperation between the federal and state governments in order to overcome, or at least lessen, the disruptive impacts of jurisdictional lines on effective and comprehensive habitat conservation. These initiatives are the Desert Renewable Energy Conservation Plan (DRECP) in California and the sage grouse conservation planning effort across eleven western states. Both initiatives embraced the common sense goal of coordinating development and conservation management across jurisdictional boundaries. In both initiatives, however, cooperation was motivated and sustained by specific legal and policy …

Social Security Retirement Benefits Timing: A Model For Working Families, Francine J. Lipman, James E. Williamson

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With more than 61 million individuals receiving Social Security benefits, one out of every four families in America receives monthly cash payments from the Social Security Administration (SSA). These monthly payments directly benefit 48.5 million retired workers, their current and former spouses, 10 million disabled adults, and include more than 3 million children. Several million more children and adults in the increasing number of multi-generational households in America benefit indirectly from Social Security retirement payments.

In addition to the broad reach of monthly Social Security retirement benefits these payments have ensured the financial well-being of millions of American families for …

Platform Law And The Brand Enterprise, Sonia K. Katyal, Leah Chan Grinvald

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The emergence of platforms has transformed the digital economy, reshaping and recasting online transactions within the service industry. This transformation, as many have argued, has created new and unimagined challenges for policymakers and regulators, as well as for traditional, offline companies. Most scholarship examining platforms discuss their impact on employment law or consumer protection. Yet trademark law, which is central to the success of the platform enterprise, has been mostly overlooked within these discussions. To address this gap, this article discusses the emergence of two central forms of platform entrepreneurship-the platform, or "macrobrand" and the platform service provider, or the …

Criminalizing Battered Mothers, Courtney Cross

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How a domestic violence survivor responds to the abuse she is experiencing depends on many factors. Some critical considerations include her access to resources, desire to stay in her relationship, and assessment of her own safety. Criminal and civil court systems place enormous pressure on survivors to separate from their abusive partners. Not only are survivors with children pressured to leave, they are punished when they stay. That punishment can come in any combination of diminished custody rights, limited parental rights, and incarceration. Yet a survivor who flees with her children is not immune to these same consequences: if she …

Universities As “Sanctuaries”, Maryam Ahranjani

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When Donald Trump, a businessman and reality television personality with antiimmigrant views, was elected President of the United States in November 2016, thousands of students, faculty and staff at many colleges and universities around the country implored their institutions to affirmatively declare themselves sanctuaries for undocumented students. Enjoying support both from the estimated 200,000 undocumented university students and other stakeholders, the movement gained quite a bit of momentum, but many contentious battles also have occurred. According to the author's empirical analysis, only twenty of the more than 5,000 institutions of higher education in the United States have adopted the sanctuary …

Invisible Adjudication In The U.S. Courts Of Appeals, Michael Kagan, Rebecca Gill, Fatma Marouf

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Non-precedent decisions are the norm in federal appellate courts, and are seen by judges as a practical necessity given the size of their dockets. Yet the system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that courts may be acting arbitrarily. But what if this appearance is an illusion? This Article reports empirical data drawn …

Game Of Drones: Rolling The Dice With Unmanned Aerial Vehicles And Privacy, Rebecca L. Scharf

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This Article offers a practical three-part test for courts and law enforcement to utilize when faced with drone and privacy issues. Specifically addressing the question: how should courts analyze the Fourth Amendment’s protection against ‘unreasonable searches’ in the context of drones?

The Supreme Court’s Fourth Amendment jurisprudence produced an intricate framework to address issues arising out of the intersection of technology and privacy interests. In prominent decisions, including United States v. Katz, California v. Ciraolo, Kyllo v. United States, and most notably, United States v. Jones, the Court focused on whether the use of a single …

Territorialization Of The Internet Domain Name System, Marketa Trimble

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A territorialization of the internet – the linking of the internet to physical geography – is a growing trend. Internet users have become accustomed to the conveniences of localized advertising, have enjoyed location-based services, and have witnessed an increasing use of geolocation and geoblocking tools by service and content providers who – for various reasons – either allow or block access to internet content based on users’ physical locations. This article analyzes whether, and if so how, the territorialization trend has affected the internet Domain Name System (“DNS”). As a hallmark of cyberspace governance that aimed to be detached from …

Gender Justice: The Role Of Stories And Images, Linda L. Berger, Kathryn M. Stanchi

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In this book chapter, Professor Berger argues for thoughtful metaphor-making and storytelling in legal writing. Exploring legal rhetoric with an eye for gender justice, she argues metaphor and narrative shape perspective and ask the reader to join the writer in the imaginative work of seeing one thing as another. The same shift in perspective that leads to re-conception—a shift that takes advantage of metaphor and narrative’s ability to say what only they can say—is what writers aim to achieve when they use metaphor and narrative for feminist and social justice advocacy.

Realizing Restorative Justice: Legal Rules And Standards For School Discipline Reform, Lydia Nussbaum

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Zero-tolerance school disciplinary policies stunt the future of school children across the United States. These policies, enshrined in state law, prescribe automatic and mandatory suspension, expulsion, and arrest for infractions ranging from minor to serious. Researchers find that zero-tolerance policies disproportionately affect low-income, minority children and correlate with poor academic achievement, high drop-out rates, disaffection and alienation, and greater contact with the criminal justice system, a phenomenon christened the "School-to-Prison Pipeline."

A promising replacement for this punitive disciplinary regime derives from restorative justice theory and, using a variety of different legal interventions, reform advocates and lawmakers have tried to institute …

Temporary Restraining Orders To Enforce Intellectual Property Rights At Trade Shows: An Empirical Study, Marketa Trimble

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Infringements of intellectual property (IP) rights by exhibitors at trade shows (also called trade fairs or exhibitions), such as infringements committed through exhibitions of or offers to sell infringing products, can be extremely damaging to IP right owners because of the wide exposure that trade shows provide for infringing IP; the promotion of the infringing IP and the contacts made by infringers at trade shows can facilitate further infringements after a trade show that can be very difficult for IP right owners to prevent. IP right owners therefore seek to obtain emergency injunctive relief to stop trade show infringements immediately—if …

The Public Defender's Pin: Untangling Free Speech Regulation In The Courtroom, Michael Kagan

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Recent disputes in Ohio and Nevada about whether lawyers should be allowed to wear “Black Lives Matter” pins in open court expose a fault line in First Amendment law. Lower courts have generally been unsympathetic to lawyers who display political symbols in court. But it would go too far suggest that free speech has no relevance in courtrooms. This Essay argues for a way to strike a balance.