This Article explores courts’ ability to restrict occupational licensing regulations at the state and local level. In recent years, governments have extended licensing requirements well beyond their traditional boundaries. The literature criticizes these requirements as protectionist measures that stifle new entry, entrench inequality, and threaten the emerging sharing economy. The harder question, however, is whether these new requirements are illegal. This Article argues that they are, but that challengers should be using different doctrines to confront them. Current legal challenges depend on constitutional and antitrust law doctrines, both of which have doctrinal and normative limitations. Constitutional doctrines require a revival of Lochner to be effective, while antitrust law is doctrinally limited and expensive to enforce. Accordingly, I make the novel claim that courts should apply administrative law doctrines to scrutinize and strike down irrational licensing regulations. Administrative law principles are more likely to succeed and are more easily reconciled with both current doctrine and legislative supremacy. The Article therefore provides courts with a viable doctrinal toolkit to scrutinize licensing regimes without resorting to a local Lochner approach that is less practically effective and that raises concerns about courts’ democratic legitimacy. Because administrative law doctrines provide more credible legal threats, they are also more likely to generate political pressure for reform.
The limited capacity of juveniles to make good decisions on their own—based on centuries of common sense and empirically supported in recent decades by abundant scientific research—informs almost every field of legal doctrine. Recent criminal justice reforms have grounded enhanced protections for youth at punishment and as criminal suspects on their limited cognitive abilities and heightened vulnerability. One area of criminal procedure doctrine lags behind this legal, scientific, and social consensus. Despite historical recognition of the need for special protections for interrogated youth, current law regarding the waiver of the rights to silence and to counsel at interrogation predominantly treats juvenile suspects like adults. As a result, courts regularly admit statements by juveniles that empirical research consistently concludes are not the result of knowing, intelligent, and voluntary waivers of constitutional rights. This not only under enforces their rights, but also raises the risk of wrongful convictions.
This Article considers whether interrogation law should correct course by incorporating a rule akin to contract law’s centuries-old infancy doctrine, which permits juveniles to void a contract and be relieved of agreements that they may not have fully understood or that were ill-advised. Permitting individuals to retract uncounseled Miranda waivers elicited by law enforcement while they were juveniles would, like the infancy doctrine, protect juveniles from both crafty adults as well as their own immaturity and vulnerability. This is especially important for decisions made under stressful conditions, such as custodial interrogation by law enforcement, that exacerbate juveniles’ cognitive impairments and vulnerabilities. The rule would bring interrogation law into alignment with the longstanding recognition of juveniles’ limited decisionmaking capacities, as well as modern developmental science and Supreme Court criminal justice jurisprudence premised on the idea that juveniles require enhanced protections. While retractable Miranda waivers would come with law enforcement costs, they would ensure greater respect for juvenile suspects’ dignity while maintaining their autonomy to make informed decisions about their rights.
Because of a commitment to the concept of individual culpability, holding someone responsible for the wrongdoing of another is a relatively rare occurrence in American jurisprudence. However, this Article reveals a significant, yet largely unacknowledged, source of such liability: conjugal liability. Conjugal liability occurs when one spouse or intimate partner is held legally responsible, either directly or indirectly, for their partner’s wrongful acts. Conjugal liability penalizes one intimate partner for the actions of the other in a vast array of legal fields and domains, ranging from tort, criminal law, property and employment law, to creditor’s remedies, bankruptcy, and tax law.
Within these domains, conjugal liability is deployed for a variety of laudable purposes, such as the prevention of harm to third parties, the deterrence of drug or other criminal activity, and the expansion of creditor’s remedies. However, conjugal liability is a deeply problematic way of achieving these goals. First, in operation, it is profoundly gendered, most often holding wives and girlfriends responsible for the wrongdoing of their male intimate partners. Second, in many instances, conjugal liability is unmoored from traditional notions of culpability, and is arguably a form of guilt by association. Third, conjugal liability flies in the face of the constitutional right to freedom of intimate association. Because of these troubling features, conjugal liability should be recalibrated so as to ensure an actual connection between an intimate partner and an underlying wrong, as opposed to merely a connection between an intimate partner and a wrongdoer.
Within the past decade, the Internet has played an increasingly central role in social dialogue and popular culture. Through the promulgation of “like” and “heart” features on online platforms such as Facebook and Instagram, individuals are encouraged to affirmatively engage with content posted by other users to share and debate their opinions in a public forum. Consequently, many consumers assume that content posted on the Internet is inherently free for the taking. This perceived free culture, however, materially conflicts with content creators’ interests in maintaining control over the reproduction and distribution of their works. Not surprisingly, a direct result of the increased popularity and relevance of social media websites has been an uptick in copyright infringement lawsuits brought by professional content creators against the downstream users of their copyrighted content. In response to such copyright infringement suits, several downstream users have asserted the fair use affirmative defense under § 107 of the Copyright Act.
In the face of this changing social media landscape, this Comment proposes that when analyzing the first factor of a fair use affirmative defense in a copyright infringement action, courts should broaden the conceptualization of transformative purpose in the digital environment. Specifically, courts should recognize social commentary as a presumptively transformative purpose. Additionally, this Comment proposes that courts should consider attribution when assessing market harm to the copyright owner, the fourth factor considered by courts in a fair use analysis. By including attribution as a factor weighing in favor of fair use, secondary users will be incentivized to follow best practices on the Internet. Furthermore, copyright holders will be better able to mitigate the financial exploitation of their works on social media, while simultaneously allowing the general public (who most often share content for noncommercial purposes) to engage in social dialogue on the web.