Much in the field of statutory interpretation is predicated on “interpretive dialogue” between courts and legislatures. Yet, the idea of such dialogue is often advanced as little more than a slogan; the dialogue that courts, legislators, and scholars are imagining too often goes unexamined and underspecified. This Article attempts to organize thinking about the ways participants and theorists conceive, and should conceive, of interbranch dialogue within statutory interpretation.
This Article conducts a comprehensive empirical study of copyright statutory damages. An extensive examination of docket entries and case law reveals a widespread practice of overclaiming of remedies in copyright litigation. Although 80 percent of plaintiffs in all disputes claim that they suffered conduct that constitutes willful infringement, courts find willful infringement in just 2 percent of cases where plaintiffs obtain a favorable verdict.
Suppose you have a domestic economy-class airline ticket that you can no longer use. In the 1980s and early ’90s, there was a secondary market in domestic airline tickets, carried out openly in newspaper classifieds. Though many tickets were nominally nontransferable, back then, the airlines didn’t check every passenger’s name. Problem solved. But now, American, Delta, and United will charge you a $200 fee to change the ticket. And the airlines have the Transportation Security Administration to help them enforce nontransferability.
In this Comment, I argue that the persistence of racial health disparities today is not only a relic of a long history of anti-Black racism in healthcare, but a consequence of the Court’s colorblind approach to affirmative action jurisprudence since U.C. Regents v. Bakke and the restrictions in access to predominantly white institutions that have resulted. In recounting the history of racism in medical experimentation and healthcare policy since the antebellum period, this analysis seeks to locate racism in a particular form and illustrate how notions of racism as amorphous—and therefore outside the scope of a constitutional remedy—elide the state’s role in perpetuating racial disparities that persist to this day.
The U.S. Supreme Court’s 2016 decision in Hurst v. Florida, which struck down Florida’s capital sentencing scheme, altered the Court’s Sixth Amendment sentencing doctrine. That doctrine has undergone several important changes since it was first recognized. At times the doctrine has expanded, invalidating sentencing practices across the country, and at times it has contracted, allowing restrictions on judicial sentencing discretion based on findings that are not submitted to a jury. Hurst represents another expansion of the doctrine. Although the precise scope of the decision is unclear, the most sensible reading of Hurst suggests that any finding required before a judge may impose a higher sentence must first be submitted to a jury and proven beyond a reasonable doubt. This reading invalidates several state capital sentencing systems and several noncapital systems, and it would require dramatic changes to federal sentencing as well.