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Private Law Without Precedent
No full textA common-law system assumes that judges regularly issue new opinions that clarify and update the law over time. At the same time, our federal system assumes that state courts will do the bulk of judicial lawmaking, especially in private law. And, with a few exceptions, our broader legal system assumes that state private law has allocated entitlements and obligations into a coherent system. None of these assumptions has been true for a long time. This Article offers a comprehensive account of when and why these assumptions about the proper functioning of private law fail. It then uses this account to assess the status of private law as a system. This account begins with legal education, tracing the decline in how elite law schools teach and privilege private-law topics. It turns to modern legal research tools, finding that they systemically miss large areas of state law. Next, it recounts the structural and substantive barriers that courts face in updating private-law doctrine, which, among many others, include under-resourced courts, expanded federal jurisdiction, the growth of alternative dispute resolution, and changed attitudes towards judicial lawmaking. While a century of prior scholarship has identified some of these problems, others have gone unrecognized. This Article’s primary contribution is an account of how these pathologies interact and compound each other. Taken together, the account offered here reveals a troubled private law in which neither courts nor legislatures have ownership over maintaining private law as a system. In the absence of a well-functioning private-law system, contract has expanded its role. Here the story is one of co-determinacy: In fields where there is little recent private-law precedent, contract fills the gap. At the same time, the familiarity of contract doctrine encourages courts to view disputes as contractual disputes rather than undertake the difficult work of updating less- familiar doctrines. This phenomenon has systemic effects on the private law, tipping it in favor of those with more power over contracts—typically larger firms—while weakening the substantive guardrails that the rest of the private law had long placed on contract. The result is a private law that is less efficient and less responsive to social change—and one that ultimately undermines the legitimacy of the legal system as a whole
The Sheriff\u27s Constitution
No full textThe county sheriff is unique among our nation\u27s law enforcers, with an ancient pedigree, elected status, and special protections as a state constitu- tional officer. But these factors combine to cause a recurrent problem elected sheriffs often assert for themselves the power to refuse to enforce criminal laws of their choosing. Today\u27s constitutional sheriffs-a group of sheriffs who view themselves as the highest authority in their county, answerable only to their electorate-are the latest manifestation of this ethos, declaring opposition to gun control measures, pandemic restric- tions, environmental protections, and more. Lest one think these nonen- forcement decisions are entirely one-sided, other sheriffs have declared opposition to immigration and abortion restrictions. This challenge to the rule of law has flourished in part because our modern criminal system embraces enforcement discretion, offering only the thinnest of constitutional backstops. In lieu of legal limits, even blan- ket nonenforcement of certain crimes is managed primarily through political checks, such as elections or intervention by other levels of government. But these constraints have serious shortcomings. This Article proposes reviving judicially-enforceable limits on nonen- forcement discretion modeled on a now-forgotten understanding of the sheriff s duties to investigate and enforce. For much of our history, state courts played an important role in supervising nonenforcement discretion
Chancery Court Applies Entire Fairness Standard of Review in Assessing Actions of Conflicted Fiduciaries Engaging in Value-Destructive SPAC Transactions
No full textIn the Gig Cases, Vice Chancellor Will followed the line of analysis she first adopted in MultiPlan by applying traditional fiduciary principles to address conflicts inherent in the standard SPAC structure. First, the Vice Chancellor rejected application of the deferential business judgment rule in favor of the more exacting entire fairness standard, finding both a conflicted controller and a conflicted board. While maybe not outcome determinative, this standard of review places a heavy burden on fiduciary defendants that generally precludes pleading stage dismissal. Second, the Vice Chancellor closely parsed language in disclosures made to stockholders to support, at least at the pleading stage, allegations of misstatements and omissions adequate to survive a motion to dismiss. Clearly, SPAC sponsors and their designees on post-IPO boards of directors are not immune from the careful analysis that the Chancery Court will apply in any conflicted stockholder-related transaction, even when adhering to the typical SPAC playbook
An Old Law with New Tricks? The Prospects and Pitfalls of Using the Antiquities Act of 1906 to Shape Climate Policy on Federal Lands
Full text linkThe Antiquities Act of 1906 empowers the president to declare a national monument on federally owned land, subject to constraints. As physical hazards enhanced by climate change endanger historically or biologically valuable objects and places, the Act can shape climate policy on federal land—extending the designation to new tracts and enhancing protections on existing monuments. This Note contends that climate change qualifies as a threat to federal public lands sufficient to trigger presidential authority to proclaim a national monument. Still, any such proclamation must account for the constitutional and statutory restraints that have some gravity on the president’s power to declare a monument and set the terms of its management, including federalism, nondelegation, and the major questions doctrine. The U.S. Supreme Court’s expansive reading of “objects” within the Act and the president’s power to identify threats to those objects suggest that the executive can effectively employ the Antiquities Act to mitigate climate impacts while adhering to the Act’s original purpose of protecting valuable places and objects.
This Note analyzes the legal utility and vulnerability of the Antiquities Act in addressing climate change on federal public lands. After exploring the historical context, legislative intent, and use by various presidents, the Note delves into the legal challenges and judicial trends surrounding the Act. The Note concludes by proposing litigation strategies and limiting principles, balancing environmental preservation with legal constraints—such as the Act’s “smallest area compatible” requirement—to safeguard the Act’s continued viability in addressing contemporary environmental challenges
Reimagining the Music Industry: In Search of a More Perfect Union
Full text linkThis Article challenges the long-standing accepted business model of the music industry, including recording contract terms, ownership of masters, artist recoupment, and copyright terminations. It explores the negative implications of failing to revise these methods and neglecting to create a more equitable relationship between artists and recording companies. Indeed, the music industry is an outlier from almost every commercial industry in its financing structure. As such, this Article suggests that the future industry model should include equity ownership of master recordings. It then reviews the need to revise contract terms and eliminate the unilateral options and the unduly burdensome clauses such as the controlled composition clause. The industry’s heavy-handed practice of calculating recoupment on the artists’ fraction of the income that is reflected in their royalty rate, as opposed to a more equitable method of using net receipts requires creative adjustments to contracts that provide for artists to gain an ownership interest in their master recordings. Finally, this Article concludes that the current statutory language of the Copyright Act of 1976, as it relates to copyright terminations, is poorly conceived and falls far short of the stated Congressional intent of providing creators with a fair opportunity to recapture their copyrights after a specified period of time. The past two decades have brought technological and informational advances that have allowed artists to thrive without the assistance of deep pocketed recording companies. Major labels must adapt to these changes by making their relationships with artists more equitable. If they do not evolve, they will become a relic of the past
The Purpose of the Preliminary Injunction
Full text linkThis Article explores a reshaping of the preliminary injunction that is occurring in the federal courts. A preliminary injunction is designed to be a “hold in place” order, blocking actions by the parties that would undermine the efficacy of the court’s remedial options. But the preliminary injunction is becoming a device for accelerating the merits decision. Instead of a four-factor test for preliminary relief, increasingly there is one factor: the merits. This Article critiques this transformation, and it argues that the preliminary injunction should be recentered on the protection of the court’s remedial options
Trouble, Trouble, Trouble: Taylor Swift, Ticketmaster, and Arbitration
Full text linkThrough Ticketmaster’s use of arbitration and the controversy surrounding Ticketmaster’s botched sale of tickets for Taylor Swift’s The Eras Tour, this Article explores problems with the broad use of arbitration in the United States. Arbitration, a private contractual method of resolving disputes in a binding manner, is a neutral process that can provide many benefits. However, under the current broad scope of arbitration law, virtually every type of claim can be arbitrated. A more limited arbitration law could provide more robust enforcement of laws, greater accountability and transparency, and stronger development of precedent within our legal system. Stronger parties (like large corporations) sometimes view arbitration as a means to suppress claims and limit liability. Thus, instead of trying to resolve disputes in good faith, stronger parties may try to disadvantage weaker parties (like individual consumers) through the drafting of unfair arbitration clauses with harsh, one-sided terms. Arbitration is supposed to be based on the consent of the parties, but in many consumer and worker transactions, meaningful, voluntary consent is often lacking. The live-ticketing industry’s use of arbitration illustrates these broader concerns with arbitration, and this Article suggests reforms and solutions to alleviate the troubled use of arbitration in the United States
Generative AI\u27s Illusory Case for Fair Use
Full text linkPointing to Authors Guild, Inc. v. Google Inc., Authors Guild, Inc. v. HathiTrust, Sega Enterprises Ltd. v. Accolade, Inc. and other leading technology-driven fair use precedents, artificial intelligence (AI) companies and those who advocate for their interests claim that mass unauthorized reproduction of books, music, photographs, visual art, news articles, and other copyrighted works to train generative AI systems is a fair use of those works. Though acknowledging that works are copied without permission for the training process, the proponents of fair use maintain that an AI machine learns only uncopyrightable information about the works during that process. Once trained, they say, the model does not incorporate or make use of the content of the training works. As such, they contend, copying for the purposes of AI training is a fair use under US law.
This Article challenges the above narrative by examining generative AI training and functionality. Despite wide employment of anthropomorphic terms to describe their behavior, AI machines do not learn or reason as humans do. Instead, they employ an algorithmic process to store the works they are fed during the training process. They do not “know” anything independently of the works on which they are trained, so their output is a function of the copied materials.
More specifically, large language models (LLMs) are trained by breaking textual works down into small segments, or “tokens” (typically individual words or parts of words), and converting the tokens into vectors—numerical representations of the tokens and where they appear in relation to other tokens in the text. The training works do not vanish, as suggested, but instead are encoded, token by token, into the model and relied upon to generate output. AI image generators are trained somewhat differently through a “diffusion” process in which they learn to reconstruct particular training images in conjunction with associated descriptive text. Like an LLM, however, an AI image generator relies on encoded representations of training works to generate its output.
The exploitation of expressive content to produce new expressive content sharply distinguishes AI copying from the copying at issue in the technological fair use cases relied upon by AI’s fair use advocates. In these earlier cases, the determination of fair use turned on the fact that the alleged infringer was not seeking to capitalize on authors’ creative expression. This is exactly the opposite of generative AI.
The fair use argument for generative AI is further hampered by the propensity of models to generate infringing copies and derivatives of training works. In addition, some AI models rely on retrieval-augmented generation (RAG) technology to generate output. RAG searches out and copies materials from online sources to augment and respond to user queries (for example, regarding an event that postdates the training of the LLM). Here again, copyrighted materials are being copied by generative AI without permission in order to exploit their expressive content.
For these and other reasons, each of the four fair use factors of Section 107 of the Copyright Act weighs against AI’s claim of lawful use, especially when considered against the backdrop of a rapidly evolving market for licensed use of training materials
The Music & The Movement: Race, Rhythm, and Social Justice
Full text linkFrom Billie Holiday’s “Strange Fruit” to Public Enemy’s “Fight the Power” to J. Cole’s “Be Free,” music has played a vital role in energizing social justice movements and elevating the legal and social issues facing Black people. An examination into the legal, historical, and social contexts for the music created during ten key movements in Black history reveals the role of lyrics and rhythm. Through the lens of music, ten movements—Freedom, Lynching, the Great Migration, Civil Rights, Black Power, Black Feminism, Police Brutality, Mass Incarceration, Black Love, and Black Lives Matter—demonstrate that Black music is more than entertainment. It is a critique of social ills, a reflection of strength, a source of empowerment, a roadmap for resistance, and a proposal for change.
The Music & The Movement: Race, Rhythm, and Social Justice, a seminar course at St. John’s University School of Law, examines music’s vital role in energizing social justice movements. This Article examines the seminar course and its necessity in the law school White Space. Part I of this Article describes the inspiration for the course and includes a course description. Part II describes the law school White Space and identifies the problems associated with omitting race and social context from law school courses. Part III briefly describes three movements—Lynching, the Great Migration, and Black Lives Matter—and their relation to the music and law of each historical time period. The conclusion demonstrates how the course equips students with the sociohistorical context necessary to advocate for racial and social justice