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Appendix E: Hunting And Gathering On The Legal Information Savannah, Susan Nevelow Mart, Adam Litzler, David Gunderman

Research Data

This document, "Random Search Order,” is an electronic Appendix C to, and is cited in, the empirical study: Susan Nevelow Mart, Adam Litzler, and David Gunderman, Hunting and Gathering on the Legal Information Savannah, 114 Law Libr. J. 1, 15 n.44 (2022), available at https://scholar.law.colorado.edu/articles/1548/.

Appendix D: Hunting And Gathering On The Legal Information Savannah, Susan Nevelow Mart, Adam Litzler, David Gunderman

Research Data

This document, "Problem Solving & Interface Comments,” is an electronic Appendix D to, and is cited in, the empirical study: Susan Nevelow Mart, Adam Litzler, and David Gunderman, Hunting and Gathering on the Legal Information Savannah, 114 Law Libr. J. 1, 15 n.43 (2022), https://scholar.law.colorado.edu/articles/1548/.

Frustration, The Mac Clause, And Covid-19, Andrew A. Schwartz

Publications

COVID-19's impact on business has been exasperating—but is it Frustrating? The Frustration doctrine of contract law excuses a party from its contractual obligations when an extraordinary event completely undermines the principal purpose of making the deal. This doctrine has long been a marginal player in contract litigation, as parties rarely invoked it—and usually lost when they did.

The COVID-19 pandemic, however, is precisely the type of extraordinary event that Frustration was designed to address, and the courts have been inundated over the past year by a wave of colorable Frustration claims. This timely Article describes the Frustration doctrine and explores …

Authoring Prior Art, Joseph P. Fishman, Kristelia A. García

Publications

Patent law and copyright law are widely understood to diverge in how they approach prior art, the universe of information that already existed before a particular innovation’s development. For patents, prior art is paramount. An invention can’t be patented unless it is both novel and nonobvious when viewed against the backdrop of all the earlier inventions that paved the way. But for copyrights, prior art is supposed to be virtually irrelevant. Black-letter copyright doctrine doesn’t care if a creative work happens to resemble its predecessors, only that it isn’t actually copied from them. In principle, then, outside of the narrow …

Pay-To-Playlist: The Commerce Of Music Streaming, Christopher Buccafusco, Kristelia A. García

Publications

Payola—sometimes referred to as “pay-for-play”—is the undisclosed payment, or acceptance of payment, in cash or in kind, for promotion of a song, album, or artist. Some form of pay-for-play has existed in the music industry since the nineteenth century. Most prominently, the term has been used to refer to the practice of musicians and record labels paying radio DJs to play certain songs in order to boost their popularity and sales. Since the middle of the twentieth century, the FCC has regulated this behavior—ostensibly because of its propensity to harm consumers and competition—by requiring that broadcasters disclose such payments.

As …

Realizing Diversity, Sustainability, And Stakeholder Capitalism, Peter H. Huang

Publications

Stakeholder capitalism conceives of capitalism with companies maximizing their long-term value, while considering in addition to the interests of their shareholders, also the interests of all their other stakeholders. Examples of such additional stakeholders include customers, employees, communities, creditors, competitors, society at large, and our planet. America today does not have stakeholder capitalism. Instead, America presently has shareholder capitalism, in which publicly held corporations only maximize their stock value to shareholders.

This Essay analyzes proposals for the United States Securities Exchange Commission to require that all reporting companies make periodic mandatory Environmental, Social, and Governance (ESG) disclosures of comparable, standardized, …

The Case For Data Privacy Rights (Or 'Please, A Little Optimism'), Margot E. Kaminski

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No abstract provided.

Endangered Claims: How The U.S. Civil Procedure System Mimics The Wild, Suzette M. Malveaux

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No abstract provided.

Procedural Environmental Justice, Jonathan Skinner-Thompson

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Achieving environmental justice—that is, the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies—requires providing impacted communities not just the formal right, but the substantive ability, to participate as equal partners at every level of environmental decision-making. While established administrative policy purports to provide all people with so-called “meaningful involvement” in the regulatory process, the public participation process often excludes marginalized community members from exerting meaningful influence on decision-making. Especially in the environmental arena, regulatory decisions are often buried …

Fastcase Features: A Quick Guide For Former Casemaker Users, Baylee Suskin

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No abstract provided.

Introduction: Privacy Studies, Surveillance Law, Scott Skinner-Thompson

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This Dialogue section examines perspectives on how privacy law scholarship and surveillance scholarship can be further enriched with more critical reflection and discussion between the disciplines and includes valuable contributions from thought leaders in each field.

Westlaw’S Key Number System, Aamir S. Abdullah

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No abstract provided.

Roundtable Two: Environmental Law Education: New Techniques In The Classroom And Beyond, Lincoln Davies, Karrigan Bork, Sarah Krakoff

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No abstract provided.

May I Pay More? Lessons From Jarrett For Blockchain Tax Policy, Amanda Parsons

Publications

In this article, Parsons examines Jarrett, t in which the taxpayers argue that blockchain reward tokens should be included in income only upon sale or exchange (a position that would raise their tax bills), and she explores why they sought this treatment and what implications it holds for policymakers trying to develop a tax regime for blockchain activities.

Cryptocurrency, Legibility, And Taxation, Amanda Parsons

Publications

In Jarrett v. United States, a taxpayer in Tennessee is arguing that staking cryptocurrency did not result in him earning “income” under federal income tax law. This case illustrates the fundamental challenge that cryptocurrency and blockchain technology present for tax law. Wealth creation in the crypto space is not readily legible to the state. This absence of legibility threatens tax law’s reliance on placing economic activities into categories to determine how they should be taxed. Furthermore, this case highlights the harms Congress and Treasury are risking by not taking action on cryptocurrency taxation. The uncertainty and lack of guidance on …

The Press’S Responsibilities As A First Amendment Institution, Helen Norton

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No abstract provided.

Distrust, Negative First Amendment Theory, And The Regulation Of Lies, Helen Norton

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This symposium essay explores the relationship between “negative” First Amendment theory—rooted in distrust of the government’s potential for regulatory abuse—and the government’s regulation of lies. Negative First Amendment theory explains why many lies are protected from governmental regulation—even when the regulation neither punishes nor chills valuable speech (as was the case, for example, of the statute at issue in United States v. Alvarez). But negative theory, like any theory, also needs limiting principles that explain when the government’s regulation is constitutionally justifiable.

In my view, we engage in the principled application of negative theory when we invoke it in (the …

7 Everyday Useful Westlaw Tips. Plus, Bonus Trick List!, Aamir S. Abdullah

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No abstract provided.

The (Un)Just Use Of Transition Minerals: How Efforts To Achieve A Low-Carbon Economy Continue To Violate Indigenous Rights, Kathleen Finn, Christina A.W. Stanton

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No abstract provided.

Rennard Strickland: Legal Historian And Leader, Charles Wilkinson

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No abstract provided.

Criminal “Justice” As Racial Justice?, Aya Gruber

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No abstract provided.

Disaster Vulnerability, Lisa Grow, Brigham Daniels, Douglas M. Spencer, Chantel Sloan, Natalie Blades, Teresa Gomez

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Vulnerability drives disaster law, yet the literature lacks both an overarching analysis of the different aspects of vulnerability and a nuanced examination of the factors that shape disaster outcomes. Though central to disaster law and policy, vulnerability often lurks in the shadows of a disaster, evident only once the worst is past and the bodies have been counted. The COVID-19 pandemic is a notable exception to this historical pattern: from the beginning of the pandemic, it has been clear that the virus poses different risks to different people, depending on vulnerability variables. This most recent pandemic experience thus provides a …

Technological 'Disruption' Of The Law's Imagined Scene: Some Lessons From Lex Informatica, Margot Kaminski

Publications

Joel Reidenberg in his 1998 Article Lex Informatica observed that technology can be a distinct regulatory force in its own right and claimed that law would arise in response to human needs. Today, law and technology scholarship continues to ask: does technology ever disrupt the law? This Article articulates one particular kind of “legal disruption”: how technology (or really, the social use of technology) can alter the imagined setting around which policy conversations take place—what Jack Balkin and Reva Siegal call the “imagined regulatory scene.” Sociotechnical change can alter the imagined regulatory scene’s architecture, upsetting a policy balance and undermining …

A Framework For Thinking About The Government’S Speech And The Constitution, Helen Norton

Publications

This Essay sketches a framework for mapping and navigating the constitutional implications of the government’s speech—and then illustrates this framework’s application to some contemporary constitutional disputes. My hope is that this framework will help us sort through the constitutional puzzles triggered by the government’s expressive choices—puzzles that confront courts and policymakers with increasing frequency. What I call “first-stage government speech questions” require us to determine when the government is speaking itself and when it is instead (or also) regulating others’ speech. This determination matters because the rules that apply to the government as speaker are very different from those that …

The Truman Show: The Fraudulent Origins Of The Former Presidents Act, Paul F. Campos

Publications

When President Donald Trump was impeached for a second time, many commenters pointed out that, if Trump were to be convicted by the Senate, he would likely lose millions of dollars in future taxpayer-funded benefits. These benefits are provided to ex-presidents by the Former Presidents Act, a 1958 statute of considerable political significance and ongoing controversy, that nevertheless has to this point been ignored completely by the legal academic literature.

This Article represents the first sustained discussion of the FPA in that literature. It concludes that the statute should be revoked — and it centers its critique on the law’s …

Criminal Law Exceptionalism, Benjamin Levin

Publications

For over half a century, U.S. prison populations have ballooned and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy. Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions. Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned. Instead of …

Against Domestic Violence: Public And Private Prosecution Of Batterers, Carolyn B. Ramsey

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No abstract provided.

Tax's Digital Labor Dilemma, Amanda Parsons

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Digitalization has reshaped the relationship between companies and their customers and users. Customers and users increasingly serve a dual role. They are not only consumers but also producers, creating data and content. They are a value-creating workforce, functioning as “digital laborers.”

Digital laborers’ value creation highlights that there are two parts to the question of whether multinational companies are paying their “fair share” of taxes—one of amount and one of location. First, are companies’ total tax bills paid across all countries in line with their global income? Second, is taxing authority over multinational companies’ income being divided amongst countries in …

Is It Time For A New Civil Rights Act? Pursuing Procedural Justice In The Federal Civil Court System, Suzette M. Malveaux

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The United States has recently been engaged in some of the largest civil rights movements since the 1960s—from Black Lives Matter to #MeToo—and calls for justice for marginalized communities are stronger than ever. Many decry the longstanding violence and systemic discrimination such communities experience, and advocate for stronger substantive civil rights. What has received less attention, however, is the violence done to those rights by the U.S. Supreme Court's obstructionist civil procedural jurisprudence. Over the last half century, the Court has systemically eroded Americans' capacity to enforce such substantive rights in the civil court system. This erosion arcs away from …

Victims’ Rights Revisited, Benjamin Levin

Publications

This Essay responds to Bennett Capers's article, "Against Prosecutors." I offer four critiques of Capers’s proposal to bring back private prosecutions: (A) that shifting power to victims still involves shifting power to the carceral state and away from defendants; (B) that defining the class of victims will pose numerous problems; C) that privatizing prosecution reinforces a troubling impulse to treat social problems at the individual level; and (D) broadly, that these critiques suggest that Capers has traded the pathologies of “public” law for the pathologies of “private” law. Further, I argue that the article reflects a new, left-leaning vision of …