Category: Articles

This Article explores the intersection of copyright law, aesthetic theory, and neuroscience. The current test for copyright infringement requires a court or jury to assess whether the parties’ works are “substantially similar” from the vantage point of the “ordinary observer.” Embedded within this test are several assumptions about audiences and art. Brain science calls these assumptions into question. The substantial similarity test posits that aesthetic reactions are unmeasurable and uniform. In actuality, they can be quantified and vary depending on audience and artistic medium. Neuroscience has already reconfigured the law in many areas, from tort damages to the death penalty. Now it may offer copyright law a way forward, opening up the black box of aesthetic encounters to reveal what is most salient when making the comparison at the heart of copyright infringement. Three suggested reforms—admitting expert testimony to tailor the substantial similarity test to different kinds of artistic works, using survey evidence to better understand the aesthetic responses of specialized audiences, and reordering the infringement analysis to debias judges and jurors—deploy the insights of neuroaesthetics to improve the law of copyright infringement.

U.S. constitutional law prohibits the use of sex as a proxy for other traits in most instances. For example, the Virginia Military Institute (VMI) may not use sex as a proxy for having the “will and capacity” to be a successful student. At the same time, sex-based classifications are constitutionally permissible when they track so-called “real differences” between men and women. Women and men at VMI may be subject to different training requirements, for example. Yet, it is surprisingly unclear when and why some sex-based classifications are permissible and others not. This question is especially important to examine now as the use of predictive algorithms, some of which rely on sex-based classifications, is growing increasingly common. If sex is predictive of some trait of interest, may the state— consistent with equal protection—rely on an algorithm that uses a sex-based classification?

This Article presents a new normative principle to guide the analysis. I argue that courts ought to ask why sex is a good proxy for the trait of interest. If prior injustice is the likely reason for the observed correlation, then the use of the sex classification should be presumptively prohibited. This Anti-Compounding Injustice principle both explains and justifies current doctrine better than the hodge-podge of existing rules and concepts and provides a useful lens through which to approach new cases.

The financial system is unequal and exclusionary even as it is supported, funded, and subsidized by public institutions. This is not just a flaw in the financial sector; it is a foundational problem for democracy. Across the financial industry, entrepreneurs, regulators, media, and scholars promote the goal of “financial inclusion” or “access to credit.” Facebook’s Libra, Bitcoin, and fintech providers like Square, PayPal, Venmo, and thousands of other new products or startup companies are launched with the stated aim of increasing financial inclusion. These private companies are joined by the Congress, non-profits, and financial regulators with programs and laws promoting financial inclusion. In fact, financial inclusion and access to credit are among the increasingly rare issues that unite the political left and right. Yet, despite consensus and years of effort, many individuals and communities continue to be excluded from the mainstream financial system, which forces them to resort to high cost payday lenders, check cashers, or other fee-based financial transaction products. The financially disenfranchised pay the most for services that the wealthy and the middle class receive at a subsidized rate. This Article proposes a new model of financial inclusion, which situates issues of access and inclusion as central to the legal design of the financial system. This Article argues that these remedies have failed because the current model of financial inclusion is rooted in a mistaken and incomplete theory of the financial market. “Normals” and “mainstream” credit markets are conceived of simply as “markets,” governed by market rules and market dynamics. In contrast, strategies for inclusion or “access to credit” are viewed as ancillary products, gap-filling, or subsidized add-ons for those who are outside of the credit market. This Article argues that the mainstream market and inclusion strategies are both part of the same financial market, which is itself a product of public policy. Instead of financial inclusion, this Article proposes to reframe the problem as a matter of financial redesign. The design of credit markets is an a priori choice embedded in law and policy that determines the contours and scope of the credit markets, including who is included. Reconceptualizing financial inclusion must thus proceed through democratic means because inclusion and access are a byproduct of institutional design rather than private market decision making.

In June 2011 the Supreme Court decided two momentous personal jurisdiction cases: one, Goodyear Dunlop Tires Operations v. Brown, limited general jurisdiction to its rightful narrow role as a way to establish state court jurisdiction, while the other, J. McIntyre Machinery, Ltd. v. Nicastro, barely staved off a second attempt to narrow “stream of commerce” as a vehicle for jurisdiction. Although both cases made those valuable contributions to doctrine, they also denied a United States court to U.S. citizens who sued foreign defendants for torts, effectively leaving the plaintiffs without remedies for the allegedly negligent acts of the defendants. Goodyear Dunlop Tires involved an accident outside the United States, while Nicastro arose from an injury in New Jersey. With globalization bringing increased international business and travel, there is sure to be a significant increase in injuries suffered by U.S. citizens as a result of the negligent activities of foreign businesses and a resultant increase in the type of litigation involved in the two new cases. This Article critiques both cases and then examines whether non-citizens are protected by constitutional personal jurisdiction rights. Outside the context of personal jurisdiction, the Supreme Court has held since the nineteenth century that the scope of constitutional protections varies depending on two factors: whether a party is a citizen of the United States or a foreign national and whether a non-citizen resides in the United States or abroad. Without any real consideration, the Supreme Court in Goodyear Dunlop Tires and Nicastro applied the same personal jurisdiction law to non-citizen, non-resident defendants as it applies to defendants who are U.S. citizens. This Article argues that non-resident, non-citizen defendants are not protected by the constitutional personal jurisdiction law developed in domestic litigation. Freed from constitutional constraints, the Supreme Court has the ability to fashion a new law of personal jurisdiction for foreign defendants better suited for the tort claims of U.S. citizens, taking into account the interests of the U.S. plaintiffs. The Article provides a foundation for developing a new law of personal jurisdiction for foreign defendants.

Gay rights litigation and advocacy traditionally have focused on the unequal treatment of gay and lesbian individuals and couples; less attention has been dedicated explicitly to the legal rights of the children of gay and lesbian parents. This Article asserts that a child of same-sex parents denied a government benefit has a cognizable equal protection challenge—a legal claim that is separate and distinct from that of the child’s gay or lesbian parents. It is well-settled equal protection law that the government may not treat nonmarital children differently than marital children because of moral disdain for their parents’ relationship, and laws classifying children based on their parents’ marital status are subject to intermediate scrutiny. Today, a majority of states exclude children of same-sex parents from the economic benefits that could be derived from their non-biological same-sex parent, including health insurance, workers’ compensation benefits, child support, and social security benefits. When medical events, divorces, lay-offs or death occur in the lives of children of same-sex parents in these “no-protection” states, they are denied important economic safety nets—safety nets that children of married and unmarried opposite-sex parents enjoy. As a subset of nonmarital children, children of same-sex parents exercise no control over their parents’ conduct, but suffer concrete economic injuries because of the state’s imputation of immorality to them. This government-sponsored discrimination cannot be fairly justified on the basis of preserving traditional family values or on the basis of ensuring administrative efficiency. “No-protection” states must dismantle the insurmountable barrier that blocks children of same-sex parents from establishing a legal relationship with their non-biological same-sex parent, and place them on equal footing with their opposite-sex parented peers.

In Minneci v. Pollard, decided in January 2012, the Supreme Court refused to recognize a Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics suit against employees of a privately run federal prison because state tort law provided an alternative remedy, thereby adding a federalism twist to what had been strictly a separation-of-powers debate. In this Article, we show why this new state-law focus is misguided. We first trace the Court’s prior alternative-remedies-to-Bivens holdings, illustrating that this history is one narrowly focused on separation of powers at the federal level. Minneci’s break with this tradition raises several concerns. On a doctrinal level, the opinion destroys Bivens’s long- established parallelism with 42 U.S.C. § 1983 actions, where suits against privately employed individuals are allowed. Additionally, it creates asymmetries between the constitutional liability faced by privately and federally employed prison employees. More significantly, it conflicts with congressional intent as expressed in the Westfall Act, which codified the Bivens remedy in 1988, by conflating two distinct questions: whether a suit requires the courts to extend Bivens jurisprudence to a new context and whether, assuming an extension is necessary, such an extension is warranted. This piece offers the only full discussion to date of the importance of this “first question” to the Bivens canon. We end this Article by offering several strategies for limiting Minneci’s impact and for returning Bivens jurisprudence to its separation-of-powers roots.

Contemporary software patents are problematic because they are often overbroad. This Article offers a novel explanation of the root cause of this overbreadth. Patent law suffers from a functionality malfunction: the conventional scope-curtailing doctrines of patent law break down and lose their ability to rein in overbroad claims whenever they are brought to bear on technologies, like software, in which inventions are purely functional entities.

In addition to identifying the functionality malfunction in the software arts, this Article evaluates the merits of the most promising way of fixing it. Courts can identify algorithms as the metaphorical structure of software inventions and limit claim scope to particular algorithms for achieving a claimed function. However, framing algorithms as the metaphorical structure of software inventions cannot put the scope of software patents on par with the scope of patents in other arts. Most importantly, the recursive nature of algorithms and Gottschalk v. Benson create to-date unappreciated problems.

This is one of the first law review article to analyze both the role of ―blackness‖ in shaping the first juvenile court and the black community’s response to the court’s jurisprudence. This Article breaks new ground on two fronts. First, it considers the first juvenile court’s treatment of black youth within the context of the heightened racial oppression immediately following the Supreme Court’s landmark decision in Plessy v. Ferguson. Second, this Article recovers the lost story of the black women’s club movement’s response to race issues within the juvenile court movement. In doing so, this Article reconsiders the history of the national black women’s club movement within a new framework—that of black women as advocates for juvenile and criminal justice reform. Furthermore, a major issue that these child savers faced remains one that scholars of the juvenile court’s early history have not fully explored: race.

Thus, this Article makes two main arguments. First, from its inception, the juvenile court perpetuated existing racial stereotypes about blackness and delinquency and enforced societal notions of race, gender and class stratification. Second, the National Association of Colored Women (―NACW‖) responded by placing criminal and juvenile justice issues as a major component of its civil rights agenda. From 1899 to 1930, the NACW’s efforts to challenge stereotypes about black delinquency impacted the development of the juvenile court system and its jurisprudence. NACW’s particular interest in juvenile justice sheds new light on how black female activists shaped the national discourse on race and crime and formulated their own strategies for juvenile justice reform.