As digital networks emerge as the dominant means of distributing copyrighted works, the first sale doctrine is increasingly marginalized. To the extent the use and alienation of copies entails their reproduction and adaptation to new platforms, the limitations first sale places on the exclusive right of distribution decrease in their legal and market impact. This fact of the modern copyright...
Fixing Inconsistent Paternalism Under Federal Employment Discrimination Law
At present, our federal employment discrimination laws fail to provide uniform and consistent legal protection when an employer engages in applicant-specific paternalism—the practice of excluding an applicant merely to protect that person from job-related safety and/or health risks uniquely attributable to his or her federally protected characteristic(s). Under Title VII of the Civil Rights Act...
Awakening the Press Clause
The Free Press Clause enjoys less practical significance than almost any other constitutional provision. While recognizing the structural and expressive importance of a free press, the U.S. Supreme Court does not explicitly recognize any right or protection as emanating solely from the Press Clause. Recently in the Court’s Citizens United decision, Justices Stevens and Scalia reignited the thirty...
Still Fair After All These Years? How Claim Preclusion and Issue Preclusion Should Be Modified in Cases of Copyright's Fair Use Doctrine
This Comment explores the puzzle of how adjudications of fair use under the Copyright Act should be treated over time. The discussion weighs the importance of copyright law and the incentives created thereby against the policy concerns driving claim and issue preclusion. Currently, the preclusive effect of litigation that concludes in a finding of fair use may bar a copyright holder from...
Patenting Everything Under the Sun: Invoking the First Amendment to Limit the Use of Gene Patents
This Comment argues that the First Amendment should be used as a lens for determining whether something is a “natural phenomenon” for purposes of patent law. Patent law does not permit patents over natural phenomena; yet the U.S. Patent and Trademark Office (USPTO) has allowed patents over items that appear to be natural phenomena. Gene patents are one example. This Comment argues that genomic...
Volume 58, Issue 4
Commentary on The Need for a Research Culture in the Forensic Sciences
A number of articles written over the past two years have addressed the need to strengthen forensic science, not only in the United States but internationally. Most have focused on the National Research Council of the National Academy of Sciences’ (NAS) February 2009 report entitled Strengthening Forensic Science in the United States: A Path Forward. In looking for solutions to problems we all...
What's Your Position? Amending the Bankruptcy Disclosure Rules to Keep Pace With Financial Innovation
This Comment addresses the threat posed to the bankruptcy process by creditors whose true economic incentives are not aligned with their disclosed claims. Under current bankruptcy law, these so-called “empty creditors” may actively participate in the debtor’s reorganization without ever disclosing their real economic interests. This Comment begins by exploring the extent to which empty creditors...