Law Commons^™

Campbell At 30: A Retrospective Appreciation, Michael W. Carroll, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

This Article traces the intellectual history of copyright law’s fair use doctrine at the Supreme Court from its first encounter with fair use to its landmark decision slightly more than three decades ago in Campbell v. Acuff-Rose Music, Inc. Campbell provided courts with a coherent, user-centered theory for applying the four statutory fair use factors provided under 17 U.S.C. § 107, a standard the Court recently ratified in Google LLC v. Oracle Am., Inc. and Andy Warhol Foundation for the Visual Arts v. Goldsmith. As one of three related articles, this Article advances two principal claims to contribute to …

From Myers To Slaughter: A Brief Theory Of The Constitutionalization Of Secondary Sources, Dana Neacsu, Paul D. Callister

Faculty Works

For more than two centuries, American constitutional adjudication has relied upon secondary sources. Yet constitutional theory has almost entirely ignored them. Originalism debates constitutional text. Living constitutionalism debates constitutional evolution. Theories of precedent debate judicial authority. None asks a more fundamental question: What role do secondary sources play in constitutional adjudication? This Article argues that the answer has fundamentally changed in the last 100 of years. Chief Justice William Howard Taft's opinion in Myers v. United States (1926) marked a constitutional revolution by transforming secondary authorities from explanatory materials into evidence of constitutional continuity. Exactly one century later, Chief Justice …

We Need More Picketts, Heather Elliott

Wyoming Law Review

We live in polarized times. Many people make assumptions about those that they perceive as being on “the other side” of the political spectrum. But C.J. Box’s heroic character, Joe Pickett, does not. He treats everyone he meets as a whole person and is accepting of differences (at least until someone proves to be a bad guy, in which case “things might get western”). Furthermore, Joe takes reasonable and moderate positions on almost every difficulty he faces. That includes the Endangered Species Act, which lies at the heart of the first Joe Pickett book, Open Season.

In this Article, …

Reclaiming Homeowner Wealth: A Conversation With Barry, Fried, And Hatfield, Prentiss Cox

Articles

Homeowners in the United States pay residential real estate brokers commission rates that are about twice as high as the commission charges by brokers in comparable countries. Given the enormous size of the residential home sale market—both in aggregate terms and as a percentage of wealth owned by the average homeowner—this cost discrepancy results in U.S. homeowners transferring tens of billions of dollars each year to brokers that would be saved in a more competitive and fair market. In Et Tu, Agent? Commission-Based Steering in Residential Real Estate (“Et Tu?”), Jordan M. Barry, Will Fried, and John William Hatfield provide …

International Declaration On Gender Apartheid And Its Destructive Consequences, Georges Abi-Saab, Belquis Ahmadi, Hala Alkarib, Waheeda Amien, Penelope Andrews, Zainah Anwar, Marzia Babakarkhail, Cecilia Bailliet, Manizha Bakhtari, Karima Bennoune, Laurence Boisson De Chazournes, Roya Boroumand, Terry Boullata, Charlotte Bunch, Rebecca J. Cook, Roberta Clarke, Radhika Coomaraswamy, Suraya Dalil, Wesahl Domingo, Shirin Ebadi, Yakin Ertük, Alda Facio, Stephanie Farrior, Hannah Garry, James Thuo Gathii, Richard Goldstone, Pablo De Greiff, Mozn Hassan, Yoko Hayashi, Helena Kennedy, Sisi Khampepe, Fawzia Koofi, Viviana Krsticevic, Joanna Lewis, Marina Mahathir, Haanya Malik, Elham Manea, Gay J. Mcdougall, Juan E. Méndez, Davood Moradian, Denis Mukwege, Nadia Murad, Elizabeth Odio Benito, Thandi Orleyn, Mikiko Otani, Tamana Zaryab Paryani, Pragna Patel, Fausto Pocar, Javaid Rehman, Mary Robinson, Kenneth Roth, Albie Sachs, Mariam Safi, Gita Sahgal, Sima Samar, Habiba Sarabi, Fatou Sou, Leigh Toomey, Melanne Verveer, Zarqa Yaftali, Ganna Yudkivska

Other Publications

The Declaration is the result of an 18-month process of global consultation with leading experts, including a series of virtual consultations with women human rights defenders (WHRDs) from Afghanistan in spring 2025 and an in-person convening of United Nations (UN) experts, Afghan and South African WHRDs, civil society representatives, and international law experts at the University of Michigan Law School in September 2025.

This effort builds on the precedent of other experts’ declarations, signed on to by leading international legal and human rights experts, which were very influential in developing a human rights jurisprudence on a range of issues, and …

Expanding Astrobiology: The Case For A Lunar Biorepository, Mary Hagedorn, Lynne R. Parenti, Robert A. Craddock, Pierre Comizzoli, Paula Mabee, Bonnie Meinke, Susan Wolf, John C. Bischof, Rebecca D. Sandlin, Shannon N. Tessier, Mahmet Toner, Baptiste Journaux, Robert Ambrose, Garret Fitzpatrick

Articles

Earth’s resources are essential to support an expanding presence beyond the planet. Yet global conflicts, environmental change, and natural disasters threaten ecosystems and biodiversity, putting the integrity of Earth’s ecosystems and its resources at risk. These converging challenges underscore the urgency to develop innovative strategies to conserve Earth’s biodiversity. Astrobiology—seeking to understand life’s origins, limits, and potential beyond Earth—plays a central role in this effort, helping to preserve Earth’s species while also providing critical assets to explore and work in space. A Lunar Biorepository was proposed to hold cryopreserved samples from among the most critical species on Earth. Here, we …

Environmental Protection In War: Beyond Humans And Nature, Alexandra Huneeus, Pablo Rueda-Saiz

Articles

War is not just a human tragedy-it is an environmental catastrophe. Across the globe, armed conflicts leave behind oil-slickened rivers, poisoned soils, and forests reduced to barren landscapes. These harms last for generations, but they are not borne equally. The peoples who live most intimately with the land-drawing from it food, water, culture, and identity-suffer the most enduring losses. Their very existence as a people may be put at risk.

This Article asks: How have the laws of war addressed environmental destruction, and, more specifically, what protection do they afford to communities whose very existence is bound to the places …

Throwing The Supreme Court/Free Speech A Bone, Leah Litman

Reviews

Too often, our “free speech culture” gloms together private censorship and state-sponsored censorship. These things are not the same. Only one of them is prohibited by the First Amendment, and failing to differentiate between the two runs the risk of collapsing the distinction between censorship, on one hand, and on the other, private citizens exercising their own First Amendment rights (sometimes by choosing who to associate with or who to support).

Home Rule, Dillon’S Rule, And The Legal Shape Of Local Governance, Bradon J. Rothschild

National Policy Consensus Center Publications

Public policy in common law democracies such as the United States is dictated by many factors, which you might call streams or strands. While on the one hand the vox populi may insist on a certain action, governing coalitions of political leaders may deign another direction, or policy researchers may conclude a third option is better yet. All such options, however, are constrained by the legal parameters of governance as defined by constitutional, statutory, and case (jurisprudence, or stare decisis) law. Where these streams meet, public policy actions which are popularly supported, politically advantageous, technically effective, and (importantly) legal may …

J Mich Dent Assoc January 2026

The Journal of the Michigan Dental Association

Each month, the Journal of the Michigan Dental Association delivers news, information, and features about Michigan dentistry to our state's oral health community and the MDA's 6,200+ members. It remains the main publication reaching Michigan dentists and is available worldwide through ADA Commons. The January 2026 (Volume 108, No. 1) issue of the Journal is published in a print format to provide updates and insights for Michigan's oral health community and MDA members. Print editions occur every other month beginning with January.

This issue includes feature articles on Pediatric Dentistry and 2025 Life Membership recipients.

Regular monthly contributions include:

• Editorial …

Government And Insurance And Access (Cgia) Update, James Budd Mpp

The Journal of the Michigan Dental Association

The MDA Board of Trustees has established its 2026 legislative priorities, focusing on dental loss ratios, assignment of benefits, and virtual credit card payment reform. Key issues include addressing the workforce shortage, student debt, and improving Medicaid anesthesia reimbursement. The update also tracks several House Bills, such as those regarding voluntary license surrender (HB 4929) and foreign-trained dentist licensure (HB 4921), which the MDA opposes to maintain standards. Despite a slow legislative session in 2025, the MDA continues to advocate for transparency in third-party litigation and updates to specialty advertising rules. These efforts aim to protect the profession and ensure …

Is Being A Shareholder ‘In Name Only’ A Problem?, Daniel Schulte Jd

The Journal of the Michigan Dental Association

This column addresses the legal risks for Michigan dentists entering "shareholder in name only" agreements with non-dentist entities. Michigan law requires dental practices to be owned by licensed dentists to ensure professional control over public healthcare. Arrangements where management companies or manufacturers can reclaim stock for a nominal fee effectively strip the dentist of true ownership. This lack of control can lead to ethical conflicts, such as pressure to sell specific appliances regardless of professional judgment. Engaging in such schemes may endanger a dentist's license by thwarting state laws intended to protect clinical independence.

Procedural Apartheid? How Racial Harassment Cases And Their Proponents Are Subject To Separate And Unequal Due Process, Suzette M. Malveaux

Scholarly Articles

This article makes three unique contributions. First, it introduces the theoretical framework and coins the term “procedural apartheid.” Simply put, when race is invoked as the basis for misconduct, procedural protection is meted out inequitably, often to the detriment of people of color. This phenomenon is situated in the law’s larger project to preference colorblindness over race-conscious ameliorative efforts. The article invites the reader to broadly consider where separate and unequal proceduralism exists because of the centrality of race. This article deploys the term “apartheid”—not literally, but strategically—to highlight the systemic legal and racial nature of this hierarchical divide.

Second, …

Against Audiepistemic Injustice: Claiming Deaf Futurity, Pamela R. Conley

Antioch University Dissertations & Theses

This dissertation proposes a new theoretical framework: Audiepistemic Injustice (AEI). Expanding upon existing theories of epistemic injustice (EI), I identify AEI as the systemic marginalization and dismissal of deaf ways of knowing. AEI is a multidimensional phenomenon rooted in the nineteenth century, when auditory and linguistic biases became codified across education, law, and literature. This interdisciplinary study interrogates three nineteenth-century literary narratives as primary case studies to examine AEI: (1) Ivan Turgenev’s “Mumu,” (2) Guy de Maupassant’s “The Deaf Mute,” and (3) Abigail Bradley Hyde’s “The Deaf and Dumb Child: A True Narrative.” I synthesize these literary works with legal …

Adequate Representation In Group Litigation, Elizabeth Chamblee Burch

Scholarly Works

This article examines the inherent tension between the legal system's desire for "global peace" (finality) and the constitutional requirement for adequate representation in collective lawsuits. While Rule 23 class actions provide structural safeguards—such as judicial oversight of counsel and settlement, and opt-out rights—alternative mechanisms like multidistrict litigation (MDL) and parens patriae suits often lack these protections . Using the In re National Prescription Opiate Litigation as a primary case study, the article illustrates how informal, "backroom" leadership selection in MDLs empowers a small circle of elite "repeat players" at the expense of marginalized groups, such as Native American tribes and …

Taxing Ai, Assaf Harpaz

Scholarly Works

Artificial intelligence (AI) is poised to transform the distribution and sources of income, with some experts predicting widespread job displacement. Even under optimistic projections, AI is expected to exacerbate wealth inequality, given that the technology’s ownership and immense value are concentrated within a subset of Big Tech companies and AI startups. These outcomes will have far-reaching impacts on the federal tax system, which heavily relies on taxing individual labor income and payroll, rather than capital or consumption.

This Article argues that AI threatens to disrupt the tax system’s ability to fulfill its fundamental goals of raising revenue, redistributing income, and …

From Privacy To The Data Economy: The Ftc’S Reframing Of Its Regulatory Priorities, Maria P. Angel

Scholarly Works

This Article argues that the Federal Trade Commission’s turn to “commercial surveillance” reflects a strategic shift away from traditional privacy frameworks toward addressing structural power dynamics in the data economy. Drawing on an analysis of 112 FTC documents, it identifies three core commitments: tackling systemic harms, adopting a political economy lens, and constraining corporate power. The Article contends that this reframing is both necessary in the AI age and should influence the future of privacy regulation in the United States, even amid efforts to limit the FTC’s authority.

Qui Tam Legislation And Article Ii: State Constitutional Precursors To The “Take Care” Clause, Randy Beck

Scholarly Works

Anglo-American legislation since the fourteenth century has often authorized “popular” or “qui tam” enforcement, in which an uninjured “common informer” litigates to collect a forfeiture for violation of a statute. Popular enforcement has become considerably less common than in earlier centuries, but remains important because of the qui tam provisions of the federal False Claims Act (FCA). In Vermont Agency of Natural Resources v. United States ex rel. Stevens, the Supreme Court rejected an Article III standing challenge to qui tam litigation, concluding that the long history of popular enforcement means qui tam suits present cognizable “cases and controversies of …

Abandoning Press Freedom, Ronnell Andersen Jones, Sonja R. West

Scholarly Works

Among elected officials and the broader public, attitudes toward the press are deeply polarized along ideological lines. Polling shows that most liberals favor the press, while conservatives view it more negatively— a partisan divide that has widened significantly over the past decade. Conventional wisdom suggests that the same ideological split is also at work at the Supreme Court, with liberal Justices championing the work of the press while their conservative colleagues express more skepticism. This perception is reinforced by historical examples of liberal Justices advancing press rights alongside broader democracy-engagement and social-justice issues. Recent calls from some conservative Justices to …

Digital Reuse And Online Availability Of Visual Artworks, Paul J. Heald, Matthias Sahli, Alexander Cuntz

Scholarly Works

We study how copyright impacts the distribution and reuse of images in the visual arts sector, exploiting the discontinuity at the 1926 US public domain cutoff together with cross-country variation between US and European museums. We find that public domain status raises artist-level image availability on Useum, a major image aggregator, by approximately 19 percent relative to comparable copyrighted artworks. Onward reuse of Useum images across the web is substantial - an artwork image appears on 76 additional web pages on average - and is higher for public domain artworks, though estimates are statistically significant only in some specifications. Moreover, …

Gienapp's Big Book: Conceptual Rupture, Modernism, And The End Of Originalism, Logan E. Sawyer Iii

Scholarly Works

For decades, we have lived in an age of partisan jurisprudence, in which nearly every Republican has embraced originalism, and nearly every Democrat has rejected it. One can mark the start of that era in multiple places, but one good choice is November 11th, 1977. That day, in the pages of National Review, William F. Buckley previewed Government by Judiciary, Raoul Berger’s originalist critique of the Warren Court’s rights revolution. The review, entitled “Berger’s Big Book,” was highly complimentary. Berger’s rebuke of Warren Court activism was, Buckley thought, “devastating.” And he was not alone. Following the publication of Government by …

State Medical Licenses Without Borders, Meighan Parker

Scholarly Works

Access to health care in the United States is undermined by a maldistribution of physicians, and state medical licensure remains a barrier to correcting this issue, despite legal reforms that attempt to streamline physician licensure pathways. Geographic distribution gaps can have serious consequences in rural areas, such as poor health outcomes, reduced access to care, and further entrenchment of health disparities.

On the bright side, physicians can potentially use telemedicine to help improve geographic distribution gaps through the provision of clinically appropriate, virtual care across state lines. But states have traditionally required physicians, even those who are currently licensed in …

Workers’ Empowerment As U.S. Trade Policy, Desiree Leclercq

Scholarly Works

U.S. trade policy stands at an inflection point. The Biden administration’s “worker-centered” trade policy promised to empower foreign workers to improve employment and living standards globally, but it linked its trade assistance to political allies. The Trump administration’s “America First” trade policy promises to use tariffs and isolationism to protect and empower U.S. workers, but it is fostering antagonism rather than cooperation in trade. Both policies, while sharply diverging at the edges, recognize that U.S. trade policy affects employment opportunities in the United States. Both policies also critically overlook the relationship between the treatment of workers in trade partner countries, …

Press Freedom's History And Tradition, Ronnell Andersen Jones, Sonja R. West

Scholarly Works

Backward-looking, history-and-tradition analysis is gaining greater prominence at the U.S. Supreme Court. While the Court has not yet explicitly applied its history-and-tradition framework to press freedom questions, the methodology’s dominance across other areas, coupled with some urgent concerns about the scope of newsgatherer protections and some Justices’ interest in reconsidering long-established precedent, suggest that this application could be imminent. In anticipation of that moment, we set out to empirically map the Court’s engagement with the history and tradition of press freedom in its rhetoric over time. Our goals were to explore, both quantitatively and qualitatively, how the Court’s Justices have …

An Analysis Of Pediatric Retinoblastoma Medical Malpractice Litigation, Victoria Miller, Alyssa D. Reese, Katherine Foote, Alejandro Navarro, Andrew Galfano, Christian Hietanen

Department Surgery Faculty Publications

BACKGROUND: Retinoblastoma is a cancer of the retina that is most commonly diagnosed in the pediatric population. Unfortunately, this cancer can spread, leading to poor outcomes such as enucleation. The purpose of this study was to determine the characteristics of medical malpractice litigation associated with a diagnosis of retinoblastoma in the pediatric population.

METHODS: A search for all available cases associated with "retinoblastoma" in the Westlaw Campus Research Legal Database was conducted. This spanned from database inception to August 2023. Cases were included if there was a complaint of medical malpractice related to retinoblastoma present in a pediatric patient. Demographic …

A More Perfect Union? (Reviewing Erwin Chemerinsky, No Democracy Lasts Forever: How The Constitution Threatens The United States (2024)), Neil Fulton

South Dakota Law Review

It is a bold claim that the United States Constitution is a threat to democracy in the United States. It is certainly a claim that most would reject outright or be highly skeptical of at least. It is, however, exactly the claim that Erwin Chemerinsky makes in his book No Democracy Lasts Forever.

Erwin Chemerinsky is a prolific scholar, particularly of constitutional law. It is not surprising that he would produce a timely, topical, and thought-provoking book on the subject. What is surprising is his fundamental premise that the Constitution itself threatens democracy in the United States today. This provocative …

The Trial Of Socrates, Jonathan K. Van Patten

South Dakota Law Review

In many important ways, the trial of Socrates was not just the trial of the century, nor even the trial of the millennium. It predated the trial of Jesus, which is important for many other reasons, but Socrates’ contribution to how we think about justice and the rule of law is without equal. This Article explores the ways that this fifth-century B.C. trial, located geographically on the margin of what came to be known as the West, is at the center of what makes us a civilization. It is not simply about the drama, nor the politics of free inquiry, …

Oversight Of Conservatorships And Guardianships In South Dakota: A Call For Legislative Reform, Peyton Forney-Rassat

South Dakota Law Review

Courts have the legal and ethical duty to monitor guardianship and conservatorship cases in order to protect the rights and livelihoods of persons subject to such arrangements. With increased aging populations and people with disabilities in America, this has become an area of concern for both federal and local governments. Lack of data regarding the number of guardianships and conservatorships present in America, as well as the number of individuals subject to abuse in such arrangements, has become difficult to address. However, recent highly publicized cases have brought this issue to the forefront of many American minds. The number of …

Common Law Creep And Judicial Optionality: A Measured Critique Of Restrictive Covenant Law In South Dakota, Alex M. Hagen

South Dakota Law Review

South Dakota law governing restrictive covenants establishes a statutory framework with a simple structure: a general prohibition against restraints on trade, subject to four narrow exceptions. In theory, courts need only determine whether a challenged covenant falls within a statutory exception. In practice, however, courts exercise far broader discretion, applying elaborate analyses that extend well beyond statutory boundaries. In this Article, I critique the current doctrine of restrictive covenant law in South Dakota and contend that the judiciary has provided itself with too many options in deciding how these types of contractual agreements will be assessed and played too active …

Protecting Democracy Through Servant Leadership Actions On The Jury Trial System, Laura Anne Rose

South Dakota Law Review

In the face of the declining use of the right to trial by jury, this article argues for more action by members of the legal profession, and specifically action grounded in the principles of servant leadership. The article covers the historic roots of the right to trial by jury before turning to its importance in the areas of civic education, continuing legal education, legislative efforts, and innovative interdisciplinary courses in legal education. The article posits that members of the legal profession in all stages of their careers must defend the right to trial by jury through servant-leader based action in …