Each year, the UCLA School of Law hosts the Melville B. Nimmer Memorial Lecture. Since 1986, the lecture series has served as a forum for leading scholars in the fields of copyright and First Amendment law. In recent years, the lecture has been presented by many distinguished scholars. The UCLA Law Review has published these lectures and proudly continues that tradition by publishing an Article by this year’s presenter, Professor Niva Elkin-Koren.
Copyright law has a framing problem. The problem is pervasive, unresolved, and often unnoticed, and it significantly impacts the nature and scope of copyright protection. Copyrighted works are complex: Books consist of chapters, newspapers consist of articles, and so on. Courts often need to decide whether to frame the work as one comprehensive whole, an approach we call “zooming out,” or to frame it as a combination of many small parts, an approach we call “zooming in.” This framing move occurs across many copyright doctrines: fair use, infringement analysis, statutory damages calculations, separability determination, and more.
This Article focuses on decisions heavily affected by a court’s framing choice. The results are troubling. The study of those decisions suggests that in the majority of cases, courts frame the work without noticing their framing move. When courts do explicitly provide reasoning for their framing choices, they use factors that are normatively questionable and increasingly less effective in today’s digital world. Consequently, copyrighted works are framed in an inconsistent way both across copyright law doctrines and within each doctrine. In fact, there is almost no area of copyright law in which courts consistently frame copyrighted works.
These variations in framing choices have costs. While these costs need to be acknowledged and addressed, we reject one intuitively appealing approach to addressing them. Copyright law, we show, should not provide a unified framing test, or unified definition of the “work,” across all its doctrines. Different areas of copyright law face different policy considerations. Sometimes the framing of the work itself may need to change, so that the policy balance behind copyright law can remain constant.
Police force is again under scrutiny in the United States. Several recent killings of black men by police officers have prompted an array of reform proposals, most of which seem to assume that these recent killings were not (or should not be) authorized and legal. Our constitutional doctrine suggests otherwise. From the 1960s to the present, federal courts have persistently endorsed a very expansive police authority to make seizures—to stop persons, to arrest them, and to use force. This Article reveals the full scope of this Fourth Amendment seizure authority. Suspicion plays a critical and familiar role in authorizing seizures, but less attention has been given to the equally important concepts of resistance and compliance. Demands for compliance with officers and condemnations of resistance run throughout constitutional doctrine. Police are authorized to meet resistance with violence. Ostensibly race-neutral, the duty of compliance has in fact been distributed along racial lines, and may be contrasted with a privilege of resistance (also race-specific) protected elsewhere in American law. Tracing resistance and compliance helps reveal the ways in which the law distributes risks of violence, and it may help inspire new proposals to reduce and redistribute those risks. Instead of condemning all resistance, constitutional doctrine could and should protect certain forms of non-violent resistance both in police encounters and in later court proceedings. Embracing resistance could help constrain police authority and mitigate racial disparities in criminal justice, and surprisingly enough, it may yet reduce violence.
In recent years, activist hedge funds have been experimenting with a novel practice in corporate governance: offering their candidates for the board of directors millions of dollars in bonus pay through a device known as a “golden leash.” Such arrangements, which are highly controversial, award directors for accomplishing activist objectives. An emerging body of work views the golden leash through the same polarized lens as activism itself: either the leash locks directors in to a self-serving, “short-termist” agenda, or it creates incentives for them to be better advocates for shareholders. This binary framing obscures some of the golden leash’s most promising qualities.
Though novel and associated with shareholder activists, the golden leash belongs to a larger class of well-established, mainstream legal structures that reduce agency costs and increase expertise at individual firms by, paradoxically, tying directors to multiple firms. These structures include corporate governance innovations in two other areas of the capital markets, the venture capital ecosystem and the practice of corporate directors sharing information with outside entities. Like the golden leash, both of these models create overlapping obligations for directors. Yet these arrangements are welcomed by scholars, courts, and firms on the grounds that they improve enterprise value and corporate governance by quietly blending loyalties, notwithstanding the fact that they also make conflicts of interest more likely.
The golden leash thus follows in a coherent, if unheralded, tradition of structures that forge ultraclose bonds between directors and outside shareholders. This Article argues that the risks posed by this blending of duties should be discounted by the availability of mechanisms to manage any conflicts that result and by advantages conferred in capital formation and governance. Properly designed and disclosed, the golden leash can promote not only superior returns but consensus-building, dialogue, and other values important to sound corporate governance.
This Comment examines a group of asylum cases in which the applicants, women of Muslim heritage, were portrayed or understood as Westernized because of their beliefs in gender equality. This Comment utilizes the work of female scholars of Muslim heritage, whose work on gender, Islam, and Orientalism has provided critical insights which can help us understand how women of Muslim heritage are constructed in U.S. asylum law. These scholars have described an imagined binary between the liberated Western woman and the oppressed Muslim woman which this Comment argues has been replicated and reinforced in asylum law. This Comment explores how intersectionality theory can provide a framework that helps explain how the asylum claims of women of Muslim heritage are often depoliticized along both gender and racialized lines. This Comment argues that rethinking the influence of gendered Orientalism on asylum law can help provide more accurate and fair decisions for female Muslim asylum-seekers.
In the age of civilian vigilance, smartphone technology and social media have enabled individuals to record and share videos of police interactions with citizens at an unprecedented rate, sometimes providing indisputable evidence of police misconduct for the world to see instantly. The probative value and public shock factor of some of these videos have also opened the door to retaliatory arrests. In the 2006 case Hartman v. Moore, the U.S. Supreme Court ruled that a plaintiff must show the absence of probable cause to establish a retaliatory prosecution claim. The Court did not hold whether this heightened pleading standard applied to retaliatory arrests, leaving open a circuit split on the issue. I argue that extending the Hartman standard to retaliatory arrest claims would create a chilling effect on free speech, particularly in the context of speech opposing or challenging police action. Specifically, extending Hartman's heightened pleading standard to retaliatory arrest claims would chill speech in two ways: (1) it would increase the likelihood of arrests of those who speak out, and (2) it would discourage others from speaking out upon seeing those arrests. These are unacceptable consequences because the freedom of individuals to speak out without the fear of arrest is core to the principles of a free nation.