The familiar ideal is that the remedy should “fit the wrong”. This article reveals that in copyright law, the remedies actually create the wrong. Conducting a novel study of infringement claims and case law involving statutory damages, the author explains how plaintiffs routinely employ enhanced damage claims to threaten and subdue alleged infringers into making settlement concessions. The article concludes that copyright’s statutory damage framework is a remedy in dire need of reform and provides a number of substantive and procedural policy suggestions.
The article argues that courts unjustifiably limit public school liability under both Title IX and the Fourteenth Amendment to students who suffer sexual, physical, and verbal abuse and harassment. As a remedy, the article proposes changes to the assessment of Fourteenth Amendment and Title IX claims that abandon misconceptions, increase schools’ potential for liability, and promote the development in schools of processes for preventing, discovering, and addressing students’ harms.
Much in the field of statutory interpretation is predicated upon “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 essay attempts to organize thinking about the ways participants and theorists conceive, and should conceive, of interbranch dialogue within statutory interpretation.
This article explores the impending conflict between the protection of civil rights and trade secrecy in an age of big data, as exemplified by a number of recent cases involving algorithmic bias and discrimination. In a world where the activities of private corporations are raising concerns about privacy, due process, and discrimination, we must focus on the role of corporations in addressing the issue. This paper presents two potential models to ensure greater transparency, drawn from self-regulation and whistleblower protections.
The Supreme Court’s 2016 decision in Hurst v. Florida, which struck down Florida’s capital sentencing scheme, expanded the Court’s Sixth Amendment sentencing 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 be submitted to a jury and proven beyond a reasonable doubt. This reading means dramatic changes for several state sentencing systems and federal sentencing as well.
Inventive machines are increasingly being used in research, and once the use of such machines becomes standard, the standard of the “person skilled in the art” used to judge “obviousness” for patentability should be a person using an inventive machine, or just an inventive machine. As inventive machines continue to improve, this will increasingly raise the bar to patentability, eventually rendering innovative activities obvious. This means the end of patents, at least as they are now.
This Article argues that we should take a deeper look at the applicability of federal common law defenses in immigration cases. In the rare cases where noncitizens attempt to raise common law defenses, such arguments tend to be dismissed by immigration judges because removal proceedings are civil, not criminal. Yet many common-law defenses may be raised in civil cases. This Article proposes three categories of removal cases where federal common law defenses are viable and examines some of the legal and practical challenges to prevailing with these defenses.