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The Starving Artist: What The US Can Learn from Dutch Artist-Focused Legislation About Equitable Remuneration for Musical Creators
Full text linkThe United States (US) is the “leader in [the] creation, distribution, and worldwide licensing of recorded music.” Despite this, the US fails to afford moral rights protections to musical creators. Unlike economic rights, moral rights are not primarily concerned with the economic exploitation of art and instead protect the personal and reputational value of a work. Legislative justifications for copyright protection in the US include providing adequate rewards and appropriate incentives for artistic creation. To accomplish this, copyright law must protect authors’ personal expression, or moral rights, as much as it protects authors’ financial compensation, or economic rights. By focusing solely on musical creators’ economic rights, US copyright law fails to champion artists’ personal autonomy. Furthermore, record companies offer economic rewards to entice authors to contractually transfer full exclusive rights to their work. Record companies possess all the money, resources, and negotiation leverage to accelerate an artist’s career, which creates a significant power imbalance between labels and budding artists. Some European countries, such as the Netherlands, have introduced a contract adjustment mechanism called the “best-seller” clause whereby authors have a “right to claim additional fair compensation in court… if… the agreed compensation is disproportionate to the proceeds from the exploitation of the work.” Without contract adjustment mechanisms, like the “best-seller” clause, or moral rights protections, musical creators in the US have little recourse to protect their financial and reputational autonomy, putting them at a disadvantage vis-à-vis contracting partners, such as record labels. As the leading exporter of music worldwide, it is time for the US and its legislators to protect authors against the considerable leverage of commercial entities and afford US authors an equitable system for remuneration
Emission Impossible: Challenging the Imposition of New York City’s Local Law 97
Full text linkNew York City’s Local Law 97 was passed by the City Council in 2019 with the goal of reducing citywide carbon emissions. The law imposes civil penalties on property owners whose buildings fail to comply with carbon emissions limits stipulated by the city. While the law admirably aims to minimize New York’s carbon footprint, its present burden is excessive and disproportionate to the offense committed, making the cost of affording lower and middle-class housing units increasingly untenable for many New Yorkers, especially for property owners in co-op and condo communities. Many such as Glen Oaks Village Owners, Inc., the plaintiffs in a civil suit against the city’s law, find themselves stuck between paying millions of dollars for eco-friendly retrofits or incurring millions of dollars in civil penalties under Local Law 97, with no realistic recourse. While the law imposes an undue burden on property owners and is legally excessive, a facial challenge to its constitutionality is unlikely to succeed. However, with an amendment by the City Council that accounts for both environmental and economic realities, Local Law 97 could be recalibrated to continuously decrease carbon emissions while also imposing a more tolerable burden that meets the affordability needs of New Yorkers
Conflicting Canons of Construction: The Aftermath in Veterans’ Law
Full text linkUntil June 28, 2024, when the United States Supreme Court overturned decades of administrative law precedent, veterans\u27 law judges, veterans, and practitioners alike would gather in the administrative law arena to watch an unpredictable battle: Chevron vs. Gardner. The outcome of bouts between these heavyweights was as unexpected as the plot twist in an M. Night Shyamalan film. As a result, our nation’s veterans were defeated. Federal courts tended to apply either Chevron (agency deference) or Gardner (veteran friendliness) and courts rarely mentioned both canons of construction in the same opinion. It was difficult to predict which canon of construction would be used, yet a noticeable pattern emerged. If courts relied on Chevron in a veterans\u27 benefits case, the decision was almost always favorable for VA (the agency). In contrast, if courts relied on Gardner in a veterans\u27 benefits case, the decision was almost always favorable for the veteran. The United States Supreme Court never gave guidance to lower courts on which canon of construction to use, so inconsistency permeated veterans\u27 benefits cases involving interpretation of statutes. Chevron and Gardner fought for different causes; Chevron demanded deference to VA\u27s interpretation of ambiguous statutes and Gardner still instructs courts to apply a pro-veteran interpretation when interpreting veterans’ benefits statutes. In its recent majority opinion in which Chevron was overruled, the Supreme Court made no mention of Gardner. Despite more than sixteen million veterans living in the United States, not a drop of ink has been spilled to explain the groundbreaking decision\u27s impact on veterans and the practice of veterans\u27 law. How will courts approach statutory interpretation in veterans\u27 benefits cases now that Chevron has been overruled? The Supreme Court suggested in its recent Loper Bright opinion that courts should use Skidmore and the best reading doctrine to interpret statutes. How does the pro-veteran canon found in Gardner fit into this new framework? Although the Supreme Court did not mention Gardner in its Loper Bright decision, courts should apply Gardner in the post-Chevron era. Gardner is a battle-tested canon of construction. It should be used as courts determine whether a veterans\u27 benefits statute is truly ambiguous, and it should be considered before courts settle on the best reading of a veterans’ benefits statute. This is true even in cases wherein VA offers its own interpretation and courts use Skidmore. There is no need for Skidmore to displace Gardner. Gardner helps ensure a non-adversarial system for veterans, as Congress intended, and as reflected in the Veterans’ Judicial Review Act. VA\u27s power to persuade should be considered per Skidmore, of course, but it should be considered considering Gardner (the pro-veteran canon). This approach honors the separation of powers because Congress’s intent for a veteran-friendly adjudicatory process is clear. This proposal also promotes stare decisis because the pro-veteran canon of construction is a well-rooted tool of statutory construction that has been applied since 1994. If there is a battle between Skidmore and Gardner, it is veterans who should wear the championship belt
Bred for Profit, Euthanized for Space: The Houndmaid’s Tale
Full text linkThe Animal Welfare Act (AWA) was passed by Congress in 1966 with the intent to ensure humane treatment of animals used in interstate and foreign commerce. A dog breeder must obtain a license under the AWA so long as the dog breeder has five or more female dogs capable of breeding and whose offspring are sold as pets, and the breeder does not meet the “retail pet store” exemption. However, due to government neglect, as well as a lack of government oversight and regulation, both at the federal and state levels, thousands of dogs suffer every day in breeding operations. Moreover, because there are few limitations on breeding, millions of puppies are bred each year, further burdening overrun animal shelters and rescue organizations. Since breeders continue to produce more dogs, animal shelters currently have no choice but to euthanize hundreds of thousands of dogs each year. This Note argues that to effectively address dog overpopulation and inhumane breeding practices, the federal government needs to eliminate puppy mills and significantly reduce the number of dogs bred each year by amending the AWA in three ways. First, the AWA needs to significantly limit the number of intact female dogs breeders are allowed to have at one time and the number of times a female dog may be bred. Second, the AWA must require the licensing and regulation of all breeders. Lastly, the AWA should hold breeders accountable for the dogs they bring into this world by requiring registration and microchipping of each dog and written financial and health disclosures to each buyer. Dogs do not have the ability to advocate for themselves; the government must address the exploitation and mistreatment of dogs in breeding operations
PRAGMATICS AND TEXTUALISM
Full text linkIn theoretical linguistics the word “pragmatics” refers to the roles of context and communicative intentions in the production of meaning. Those roles include contextual disambiguation and the communication of implicit content via what is called “pragmatic enrichment.” Textualism is sometimes characterized as the view that the meaning of statutory texts should not take context into account, but that characterization is incorrect. Not only do self-identified textualists explicitly maintain that context should be considered when interpreting statutes—all good textualists must do so. Absent consideration of context, the meaning of statutory texts would be pervasively ambiguous, sparse, and incomplete. Good textualism requires pragmatics. “Pragmatics and Textualism” investigates the role of context in statutory interpretation and construction via the articulation of Plain Meaning Textualism, a normative and conceptual theory that maintains that statutory actors should be bound by the plain meaning of a statutory text. The phrase “plain meaning” is used to name the content communicated by a statutory text to its primary intended readership by enactment and official promulgation. Plain meaning textualism is developed by exploring fundamental ideas in the philosophy of language and theoretical linguistics and then building a model of the complex, multistage process of statutory communication
A STRONGER FUTURE FOR FAMILY LAW ARBITRATION: ENHANCING THE UNIFORM FAMILY LAW ARBITRATION ACT TO SHIELD THE VULNERABLE
Full text linkThe rising popularity of alternative dispute resolution (“ADR”) methods, particularly arbitration, has transformed family law practices, offering more accessible and efficient means of resolving disputes. This Note explores the critical role of the Uniform Family Law Arbitration Act (“UFLAA”) in safeguarding vulnerable populations, specifically children and domestic violence survivors, within the arbitration process. While the UFLAA offers important protections, these measures should serve as a starting point rather than a benchmark for ensuring these safeguards. This Note advocates for the integration of more robust protections within the UFLAA to better protect these individuals throughout arbitration. It examines the history of arbitration in family law, highlights its growing use, and assesses the UFLAA’s current provisions, considering their effectiveness in addressing the unique vulnerabilities of these groups. Ultimately, this Note recommends amendments such as mandatory mental health evaluations for the parties, required legal representation, enhanced training standards for arbitrators, and the establishment of a specialized family law arbitration court. These amendments aim to enhance the protections provided by the UFLAA and urges states to adopt an updated version of the Act to better shield their vulnerable populations
The Opioid Litigation’s Challenge for Tort Theory
Full text linkTort litigation related to the opioid crisis has spanned several decades and led to tens of billions of dollars in liability. While several important opioid cases remain pending in various stages of litigation, it is now possible to sketch a basic outline of the results: individual plaintiffs sued opioid manufacturers on a variety of theories, seeking redress for the harms resulting from their addictions. They all lost. Following a pattern established by the tobacco litigation thirty years earlier, public plaintiffs, including city, county, and tribal governments, then filed their own suits, principally on public nuisance theories. These cases were much more successful (though not universally so), leading to billions of dollars in settlements and judgments. This Article offers an early assessment of what insights these cases might offer for our theoretical understanding of tort law. Tort theory remains divided between utilitarians and deontologists, and the peculiar results of the opioid litigation—individuals losing and governments winning—offer challenges for both camps. From a utilitarian perspective, the success of the public nuisance cases seems welfare-maximizing. By holding the opioid industry liable for the negative externalities of its otherwise socially beneficial products, public nuisance liability might help curb harmful overconsumption of opioid painkillers. The failure of individual cases, on the other hand, is harder for the utilitarian to justify. From a deontological perspective, the doctrines that determined the outcome of the individual cases are much easier to account for, turning as they do on moral concepts like autonomy, fault, and responsibility. The success of the public nuisance cases, on the other hand, is harder to justify in deontological terms, as public nuisance liability seems to break the connection between wrongdoers and victims that has played a central role in deontological theories of tort. Theorists of both camps, then, will struggle to account for the diverse results of the various phases of litigation related to opioids, presenting a challenge for the elusive goal of a unified descriptive theory of tort law
Blueprints for the Gilded Age of Borrowing: Theorizing Mutually Beneficial Policies for the Golden Age of Private Credit
Full text linkThrough financial ingenuity, lending practices often generate an indirect yet significant impact on the average person’s finances. Relatedly, the 2007–2008 Financial Crisis revealed the profound and far-reaching consequences attributable to risky lending. Congress sought to curb lenders’ risk appetite by passing the Dodd-Frank Act, legislation which commissioned new, industry-specific oversight bodies. However, this legislative antidote had a side effect: it engendered a new class of borrowers—those precluded, based on a variety of risk diagnostics, from obtaining capital from the most popular lenders. But when the conventional borrowing doors closed, private lending markets opened in earnest. Since the Covid-19 pandemic, growth in private credit markets has been insatiable; this protracted phase is commonly dubbed “the Golden Age of Private Credit.” The problem is that private credit investors are, at this juncture, overwhelmingly comprised of pension and insurance funds: the same individual who disproportionately suffered in the wake of the Financial Crisis now faces a familiar threat in new form. Therefore, policymakers face a dilemma. On the one hand, private credit markets create tangible procompetitive benefits that are worthy of preservation. On the other hand, the law would usually deem the loans underlying these investment vehicles too risky to permit consumer engagement. This Note harmonizes policy with market realities, demonstrating that regulation can both facilitate growth in private credit markets while simultaneously augmenting consumer protection. In particular, these guidelines delineate the features of private credit that should be left uninhibited and identifies the gaps where policymakers can implement non-disruptive protective measures in the consumer’s interest
