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“Blurred Lines” to “Stairway to Heaven”: Applicability of Selection and Arrangement Infringement Actions in Musical Compositions

In 2015, the “Blurred Lines” verdict catapulted the issue of music copyright infringement into the news. The Ninth Circuit upheld the jury verdict in favor of the Marvin Gaye estate in 2018, shocking the legal and music communities who worry that songwriters can now copyright a vibe. Typically, copyright infringement occurs if someone copies a “substantial” amount of original and protected...

“You Write in Cursive, I Write in Graffiti”: How #BlackLivesMatter Reorients Social Movement Legal Theory

This Comment compares and contrasts: (1) analyses and recommendations posited by longstanding Constitutional scholars discussing social movements, with (2) the efforts and achievements by the Black Lives Matter movement. Using the scholarship of Jack Balkin and Reva Siegel as examples, this Comment argues that their prescriptions for social movements that seek to affect changes in constitutional...

How Not to Lie About Affirmative Action

This Article empirically examines the six primary deficiencies impacting extant research on affirmative action in law schools and highlights how inattention to—and sometimes outright disregard for—these issues continues to muddy the debate over affirmative action.

The Law & Politics of Cyberattack Attribution

Attribution of cyberattacks requires identifying those responsible for bad acts, prominently including states. To guard against baseless or false attributions, this Article argues that states should establish an international law requirement that public attributions of state-sponsored cyberattacks must include sufficient evidence to enable cross-checking or corroboration of the accusations.

The Hollowed Out Common Law

We measure the evolution of the common law using a comprehensive data set of cases regarding the enforceability of online consumer contracts. We find a steady decline in the number of cases adjudicated in state courts relative to federal courts, and a parallel rise in class actions migrating to federal courts. Erie notwithstanding, the common law is driven by federal court decisions, building...

Codification and the Hidden Work of Congress

This Article provides the first in-depth scholarly examination of the process by which enacted laws are organized and presented for public consumption, known as codification, a process that has mostly escaped the notice of judges and scholars of legislation, and even fails to make it into textbooks meant to introduce lawyers to the creation and interpretation of law. It argues that the failure to...

"Sociological Gobbledygook”: Gill v. Whitford, Wal-Mart v. Dukes, and the Court’s Selective Distrust of “Soft Science"

Abstract In the last decade, the Supreme Court has heard a number of high-profile cases holding potential for major progressive reform which hinge crucially on the Justices accepting, or at least not rejecting, the findings of social science experts. Time and again, however, the Court has found ways to ignore, minimize, or misconstrue the work of highly-qualified social scientists, with Chief...

Racist Stereotype Threat in Civil Rights Law

Abstract Racist stereotype threat (RST) describes a concern experienced by many people in interactions which are racially fraught: It arises when a person anticipates being evaluated, or sees an ingroup member being evaluated, in light of a stereotype that their group is racist. Because white people are more likely to anticipate being stereotyped as racist, RST is particularly common for white...

Antitrust as Allocator of Coordination Rights

Abstract The reigning antitrust paradigm has turned the notion of competition into a talisman, even as antitrust law in reality has functioned as a sorting mechanism to elevate one species of economic coordination and undermine others. Thus, the ideal state idea of competition and its companion, allocative efficiency, have been deployed to attack disfavored forms of economic coordination, both...

Class Actions as a Check on LAPD: What Has Worked and What Has Not

Abstract This Comment analyzes class actions brought against the Los Angeles Police Department to examine how effective class actions are as a tool for reforming police practices, and how they can be improved. To determine the effectiveness of class actions, I compare the remedies obtained in class actions to the claims brought in later cases with similar facts; specifically, I focus on whether...

Voter Identification and the Forgotten Civil Rights Amendment: Why the Court Should Revive the Twenty-Fourth Amendment

Abstract Since Reconstruction, states have passed laws to limit the power of those traditionally not permitted to vote (i.e. not white men). These barriers on the right to vote include, inter alia, the payment of poll taxes, which were often required months in advance of an election. In 1964, prior to the Civil Rights Act of 1964 and the Voting Rights Act of 1965, three-quarters of the States...

Abortion Regulation as Compelled Speech

This Article outlines a novel First Amendment compelled speech claim against a growing body of abortion restrictions, including fetal demise and burial laws, premised on a state interest in “expressing respect for potential life.” It weaves Fourteenth Amendment limitations together with developments set out last year in NIFLA v. Becerra to demonstrate that the Court’s expanding First Amendment...

Decarbonization in Democracy

Abstract Conventional wisdom holds that democracy is structurally ill equipped to confront climate change. As the story goes, because each of us tends to dismiss consequences that befall people in other places and in future times, the people cannot be trusted to craft adequate decarbonization policies designed to reduce present-day, domestic carbon emissions. Accordingly, U.S. climate change...

Derivable Works

From sequels and spin-offs to physical merchandise, copyright and trademark law together give a creative work’s owner exclusive control over a range of derivative products. This Article argues that, under the right conditions, that control can tilt artistic investment away from standalone works and toward the ones that are most likely to generate future derivatives. It explores this phenomenon...