The critical literature on copyright law’s fair use rule is enormous, with much of the recent spilling of ink bemoaning the overuse of transformativeness as a decisive factor in the case law. Many courts now consider whether a secondary user has added value to a work by including new insights or new aesthetics to be critical in resolving fair use disputes, even if the amount taken from the original is extensive. An unfortunate impact of that judicial trend has been to overshadow the importance of other factors that should be taken into account, but often are not. One of the ignored issues is the negative impact that users’ actions may have on third parties who are not directly involved in an intellectual property disagreement. This brief Article tackles this oversight, first by providing a short overview of a segment of fair use law and second by reviewing a judicial example that vividly displays the problem and strongly suggests a need for the reconfiguration of fair use doctrine.
Evaluating a Proposed Presidential Reform: Tolling Statutes of Limitations
This article evaluates such an idea insofar as it could potentially constitute a bill of attainder, be applied retroactively, or violate a president’s constitutional rights. Ultimately, the article concludes that the bill would pass judicial scrutiny, whether it could be used in the way Nadler envisioned—namely going after the Oval Office’s current occupant—is a matter of timing, not constitutional law.
Keeping Speech Cheap: The Progressive Case for a Free Internet: In Response to Can Speech Be Progressive? by Louis Michael Seidman
Abstract In “Can Free Speech Be Progressive?,” Louis Michael Seidman claims that cheap speech, like that found on Twitter, is not really cheap, and is not helpful to progressives—because it relies too heavily on capital. In the era of #metoo and #blacklivesmatter, it seems that Seidman is wrong about cheap speech. Cheap speech exists, and Read More
Due Process, State Taxation of Trusts and the Myth of the Powerless Beneficiary: A Response to Bridget Crawford and Michelle Simon
This piece takes issue with Bridget Crawford and Michelle Simon’s argument in their article about the recent Supreme Court case North Carolina Department of Revenue v. Kaestner Family Trust (argued May 16, 2019) (The Supreme Court, Due Process and State Income Taxation of Trusts (67 UCLA L. Rev. Disc. 2 (2019)).
Trump's Dangerous Judicial Legacy
Combining the statistical data on the rapidly shifting demography of the federal judiciary under President Trump with insights from the scholarly literature on theories of procedural justice and representative bureaucracy, which posit that the diversity of judges matters to citizens’ perceptions of justice as well as to judicial accountability to minority citizens’ interests, this paper suggests that President Trump’s “whitewashing” of the federal judiciary will have grave consequences for the legitimacy and effective functioning of our courts on behalf of an increasingly diverse citizenry.
The Supreme Court, Due Process and State Income Taxation of Trusts
What are the constitutional limits on a state’s power to tax a trust with no connection to the state, other than the accident that a potential beneficiary lives there? The Supreme Court of the United States will take up this question this term in the context of North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust. The case involves North Carolina’s income taxation of a trust with a contingent beneficiary, meaning someone who is eligible, but not certain, to receive a distribution or benefit from the trust, who resides in that state.
W(h)ither Environmental Justice?
This article considers Gitanjali Nain Gill’s recent book Environmental Justice in India, the first comprehensive look at India’s National Green Tribunal. In addition to assessing issues concerning the best ways to integrate science into judicial decisionmaking and highlighting India’s failure to maintain good environmental data, it argues that the Tribunal’s record reveals several crucial challenges for India’s environmental future.
An Incomplete Masterpiece
The recent wave of commentary on Masterpiece Cakeshop sounded a common theme: disappointment, even frustration. This article contends that Masterpiece is a flawed decision because of its fundamental incompleteness. Despite being held out as an opinion on religious liberty, Kennedy’s decision omits any discussion of whether the state interest might outweigh the baker’s religious freedom.
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