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Return of the De Minimis Exception in Digital Music Sampling: The Ninth Circuit’s Recent Holding in VMG Salsoul Improves Upon the Sixth Circuit’s Holding in Bridgeport, but Raises Questions of its Own

A circuit split has developed over the recognition of a de minimis exception for unlicensed sampling of copyrighted digital recordings. In 2005, the Sixth Circuit opted not to recognize a de minimis exception in this field in Bridgeport Music, Inc. v. Dimension Films. Certain efficiency-based policy concerns do support the Sixth Circuit’s bright-line rulemaking approachContinue reading “Return of the De Minimis Exception in Digital Music Sampling: The Ninth Circuit’s Recent Holding in VMG Salsoul Improves Upon the Sixth Circuit’s Holding in Bridgeport, but Raises Questions of its Own”

Case Refusal: A Right for the Public Defender but Not a Remedy for the Defendant

Various arguments have been made to explain why public defenders continue to handle excessive caseloads: a lack of independence, organizational culture, or ethical blindness among them. All of these arguments are based on the idea that a public defender elects to labor under an excessive caseload either because they do not see it as excessiveContinue reading “Case Refusal: A Right for the Public Defender but Not a Remedy for the Defendant”

Drawing the Line on Legislative Privilege: Interpreting State Speech or Debate Clauses in Redistricting Litigation

The United States Constitution and forty-three state constitutions include a Speech or Debate Clause granting legislators a legal privilege for their legislative work. Although there is a well-developed body of federal Speech or Debate Clause law granting an absolute privilege to legislators, case law interpreting many state Speech or Debate Clauses is undeveloped. One contextContinue reading “Drawing the Line on Legislative Privilege: Interpreting State Speech or Debate Clauses in Redistricting Litigation”

Consumer Financial Protection in Health Care

There are inadequate consumer protections from harmful medical billing practices that result in unavoidable, unexpected, and often financially devastating medical bills. The problem stems from the increasing costs shifting to patients in American health care and the inordinate complexity that makes health care transactions nearly impossible for consumers to navigate. A particularly outrageous example isContinue reading “Consumer Financial Protection in Health Care”

Privacy, Poverty, and Big Data: A Matrix of Vulnerabilities for Poor Americans

This Article examines the matrix of vulnerabilities that low-income people face as a result of the collection and aggregation of big data and the application of predictive analytics. On one hand, big data systems could reverse growing economic inequality by expanding access to opportunities for low-income people. On the other hand, big data could widen economicContinue reading “Privacy, Poverty, and Big Data: A Matrix of Vulnerabilities for Poor Americans”

Time is Money: An Empirical Assessment of Non-Economic Damages Arguments

Non-economic damages (pain and suffering) are the most significant and variable components of liability. Our survey of fifty-one U.S. jurisdictions shows wide heterogeneity in whether attorneys may quantify damages as time-units of suffering (per diem) or demand a specific amount (lump sum). Either sort of large number could exploit an irrational anchoring effect. We performedContinue reading “Time is Money: An Empirical Assessment of Non-Economic Damages Arguments”