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Self-Defense and Political Rage
Full text linkThis Article considers how American political polarization and the substantive issues driving it raise unique challenges for adjudicating self-defense claims in contexts of political protest. We live in an age where roughly a quarter of the population believes it is at least sometimes justifiable to use violence in defense of political positions, making political partisans somewhat more likely to pose a genuine threat of bodily harm to opponents. Furthermore, the psychological literature shows that people are more likely to perceive threats from people with whom they politically disagree and that juries tend to evaluate reasonableness claims according to their own political positions. All three of these phenomena create challenges for the rule of law due to the increased risk that factually similar cases will turn out differently and that the justice system will merely recreate the monomaniacal, us-versus-them polarization of society at large. This Article surveys the relevant political science and psychological literature on partisanship and reasoning and proposes two interrelated solutions: one pragmatic, at the level of individual trials, and the other cultural, at the level of social discourse. It suggests that judges import what we know about the distortive effects of partisanship into the courtroom through the use of court-appointed psychological experts and jury instructions. Both have shown some success—if tailored precisely to the facts of a specific case—in correcting some forms of juror bias and reasoning errors. This Article further argues that incorporating these processes into the adjudication of politicized self-defense claims will have a broader, expressive value for society as a whole. Trials provide a model for truth-finding, which, for better or for worse, impacts how private citizens evaluate culpability in their day-to-day lives. If trials draw even some people’s attention to the ways in which partisan thinking can generate or justify acts of violence, they may be a force for moderation in how people deal with their political disagreements, which will have benefits far beyond the courtroom
Fan Works and the Elusive Border between Derivative and Transformative Uses
Full text linkWhen Professor Schwabach began writing about fanfic and other fan works over a decade ago it was a niche topic, mostly of interest to fellow fans. It has since generated dozens of articles and a small but steadily increasing amount of litigation. In addition to several previous articles on the topic, Professor Schwabach has contributed a book (Fan Fiction and Copyright) and some book chapters to this ongoing discourse.When this subject was new each article had to begin with a lengthy explanation of what fanfic is, why fictional characters are or are not protected by copyright, how parody and fair use are related, and so forth. This article seeks to place a capstone on that early era of fanfic scholarship and move the discourse forward by providing a brief recap of previous work in the field before moving beyond repetition of these points to look at new developments and directions in the field and making some hopeful predictions for the future of fanfic law. The article ultimately suggests that the recognition of a shared common area for creativity between authors and fans can not only benefit fans but also authors, both economically and in non-quantifiable ways
Gender Sidelining in Schools and The Scourge of Single Sex School Leadership
No full textConcerns about unequal gender representation have plagued virtually every workplace in recent decades. In countless professions, even those in which women comprise a majority of the workforce, leadership positions are dominated by men. Often, the inability of women to rise within the professional hierarchy stems not only from overt acts of sex discrimination, but also from more subtle and nuanced bias in the workplace—bias referred to in other research as “gender sidelining.” This sidelining seems particularly paradoxical when it arises in professions in which women already have been funneled due to their gender—including the education sphere. In this way, the K–12 education world represents a microcosm of the bias that female workers encounter more generally—workplaces rife not only with intentional bias, but also with more nuanced barriers, which culminate to create a work environment where women face dead ends, diversions and delays in ways not reached by traditional antidiscrimination laws.
This article examines some of the barriers that have prevented women in the K–12 education world from achieving leadership roles, focusing, in particular, on obstacles that largely sit outside of the law—incidents of gender sidelining that would not on their own form the basis of a viable sex discrimination claim. Drawing on both legal principles and social science research, this article not only identifies the extent to which the careers of many women in education have been derailed by various forms of gender sidelining, but also provides suggestions for how to ameliorate these destructive impacts
Desettling Fixation
Full text linkScholars have long contemplated how the effects of colonialism have permeated even race “neutral” laws. This Article scrutinizes the ways Eurocentric copyright systems have failed to protect, and have even encouraged, the unauthorized uses of indigenous heritage in derivative subject matter, exposing how settler colonialism in copyright law has entrenched an unequal hierarchy among communities seeking copyright protection. Due to its ephemeral nature, intangible cultural heritage constantly faces the threat of exploitation by dominant cultures. The intangible heritage of indigenous groups has been particularly vulnerable to illicit and uncompensated commodification. Intangible heritage, such as oral histories and traditional dances, is often of great social, psychological, and political importance for indigenous communities. The current national and international legal regimes have failed to protect indigenous communities from the misappropriation of their cultural resources.
Building on a comparative analysis of the fixation requirement in other countries, this Article proposes a reformation of the “fixation” requirement in American copyright doctrine, which requires a work to be “sufficiently permanent” for a period of “more than a transitory duration.” By allowing authors to establish copyright in ephemeral works, communities may be able to protect more effectively their intangible cultural heritage from commodification and misappropriation. This Article joins the call for reconsidering how copyright law reinforces structural inequities and proposes a novel solution. This Article is the first in legal literature to apply the process of desettling to a legal problem derived from settler colonialism. Through the desettling of fixation in copyright law, true “progress” can be realized