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On Copyright Utilitarianism
Get PDFUtilitarians typically argue that the state should grant copyright to authors only when doing so promotes utility. In recent years, however, this argument has faced three criticisms. As a normative matter, critics argue that a utilitarian copyright system is neither just nor attractive. As an epistemological matter, critics argue that society cannot ever know whether copyright promotes utility. And as an interpretive matter, critics argue that utilitarianism fails to appreciate what copyright is really all about: progress of the sciences and useful arts. And so, an increasing number of scholars conclude that copyright should be awarded, not when doing so aids utility, but when doing so secures natural rights or promotes democratic norms.
This Article refines and defends the utilitarian argument for copyright law. It departs the company of prior utilitarians, however, in its conceptualization of “utility.” Taking inspiration from John Stuart Mill’s defense of utilitarianism, the Article argues that utility in copyright cannot be understood in purely quantitative terms. Of course, the overall amount of creative work that the copyright system generates matters a great deal; but it is not the only thing that matters. The type of creative work incentivized by the system also matters: creative work that feeds the mind, sparks feelings and imagination, and promotes moral sentiments provide copyright’s “higher pleasures.” A truly utilitarian copyright system is, therefore, one that produces more and better creative work. A utilitarian copyright of this kind is normatively attractive, epistemologically realistic, and interpretively consistent with the constitutional structure of American copyright law
Botched Bans: Analyzing Conversion Therapy Bans After a Decade of Legal Challenges
Get PDFDespite empirical evidence documenting its harms and substantial legislative efforts to ban its practice, conversion therapy remains a tragically prevalent practice in the United States. Recently, a circuit split between the Ninth and Eleventh Circuits has developed, raising questions about the future of conversion therapy regulation. This Note takes a retrospective look at the last ten years of conversion therapy bans and related legal challenges, questions the effectiveness of enacted bans, and explores routes for more effective regulation. This Note ultimately argues that conversion therapy bans must shift their focus to the regulation of unlicensed practitioners in order to better protect minors from the empirically demonstrated harms of conversion therapy
A New Criminal Response Framework: Rejecting the Four Horsemen of the Carceral State
Get PDFMany first-year criminal law courses begin with a discussion of the nineteenth-century English case Regina v. Dudley & Stephens. In this case, a ship was caught in a storm, and while stranded at sea, two men decided to kill and eat a younger man in order to survive. The case considers whether these two men should be punished for killing the third man, and if so, how severe should that punishment be. For many law students, this is one of the rare occasions when they are asked whether punishment is justified. Soon, they will instead be asked which of the four justifications for criminal punishment—retribution, deterrence, incapacitation, or rehabilitation—should be applied to each case through the semester.
By relying on these “four horsemen of the carceral state” to presume punishment is justified in a given case, first-year criminal law courses often neglect a growing area of legal scholarship regarding decarceration and prison abolition. Because the four justifications of punishment are outdated and often have little verifiable support, in this Note I propose a new criminal response framework to analyze moral responses to crime as well as proactive and reactive utilitarian tools to decrease criminal activity.
This Note proceeds in four parts. Part I provides a background on abolitionist tools and concepts and how current first-year criminal law courses neglect to consider them. Part II discusses the four theories of punishment taught in criminal law courses today, the history of each, and some of the shortcomings of using each theory as a justification for punishment. In Part III, I propose a new criminal response framework that uses some familiar theories from the old justifications of punishment and adds abolitionist concepts that give a more holistic approach to criminal justice. Finally, Part IV considers how using my proposed framework will impact criminal education, legal scholarship, and future lawyers
Unicorn Shareholder Suits
Get PDFHow U.S. companies raise money and grow has fundamentally shifted. Large private companies dominate the corporate landscape, with a ballooning list of private companies valued at more than a billion dollars—the unicorns. This Article examines the implications of this shift for shareholder litigation. Drawing on an original study of shareholder litigation against private companies valued at more than a billion dollars as of 2016, the Article analyzes barriers to unicorn shareholder suits and explains why such suits look quite different than shareholder litigation on the public side. It concludes by identifying remaining routes for litigants and evaluating the extent to which shareholder litigation can police these large private corporations
Blunt Speech Rights
Get PDFThere is a lot to be said about the Supreme Court’s decision in 303 Creative LLC. In the wake of the decision there will be a range of commentaries like those presented in this Issue. I want to draw attention to a particular aspect of the opinion, part of a broader trend in the Court’s First Amendment jurisprudence, towards blunt, sweeping rules. By a blunt rule, I mean a simple, coarse one that lacks nuance or distinctions. Blunt rules, by their nature, tend to be sweeping: nuance, that is, distinguishing cases based on various factors, limits the scope of a decision. Jamal Greene argues that blunt rulings are part and parcel with the general approach to constitutional jurisprudence of treating rights as trumps. But I think there is more to it in this area of law than that. Sometimes a blunt, sweeping rule can be a good thing— simplicity has its virtues. A simple, categorical rule can be easier to understand and apply, clearer, and better engage with the public. At the end of the day, though, 303 Creative LLC does not fully deliver on those virtues
2024 Academy of Law Alumni Fellows Induction Ceremony Program
Get PDFThe Academy of Law Alumni Fellows was established in 1985 to recognize alumni whose careers are defined by exceptional personal achievement and dedication to the highest standards of the profession.
Academy Fellows are part of an elite group that includes US senators, federal judges, successful business leaders, and distinguished practitioners. A committee of anonymous alumni selects each year’s Fellows from among many deserving candidates. To be named an Academy of Law Alumni Fellow is to receive the very highest honor that the Maurer School of Law can bestow.
This year, we are honored to recognize four alumni whose remarkable contributions to the Law School and the profession will last for generations to come: Gary L. Davis, Renee R. McDermott, Ted A. Waggoner, and W. William Weeks.
We offer our sincere congratulations to our honorees
Banned Books & Banned Identities: Maintaining Secularism and the Ability to Read in Public Education for the Well-Being of America\u27s Youth
Get PDFBooks containing LGBTQ+ themes and characters are being removed from public school libraries at a rapid rate across the United States. While a book challenge has made it to the Supreme Court once before, the resulting singular plurality opinion left courts without a clear test to apply, ultimately leaving students’ First Amendment rights in the air. Additionally, the increasingly relaxed view of courts towards religious influence in public schools indicates that if a modern case were to reach the Supreme Court, religious challenges may be accepted, which would leave LGBTQ+ students who seek to see themselves represented in literature without an avenue to do so. In light of this and other legislation harming LGBTQ+ students, in addition to studies indicating mental health concerns for LGBTQ+ youth, the best avenue to resolve this issue is to create a federal regulation separate from the courts. Students having access to literature that represents them or challenges them to learn about people different from themselves is essential to lessening mental challenges and inequalities faced by LGBTQ+ students and, without a standard that includes a formal review process for schools, the risk of detriment to mental health only increases. Others have sought to disregard the current plurality standard of review altogether in favor of a book removal test based on standards outlined in Wisconsin v. Yoder, while some have described that courts are utilizing Hazelwood School District v. Kuhlmeier, but reliance on the courts is difficult to ascertain considering the number of book challenges that go unreported and current religious influence.
This Article suggests that the most efficient way to rectify this issue is for the U.S. Department of Education to implement a funding-based regulation requiring that schools have a process of review, designating who is involved in that process, and requiring schools to provide a report of which books are removed at the end of each school year; if upon review the removals are found to be content- or viewpoint-based, the challenge must be revisited. Even though the Department cannot have direct oversight over school libraries and their book selection, it can establish regulations that make certain federal funding contingent on requisite programs and requirements that the schools can establish themselves. This Article seeks to add to the current debate over book bans and how they should be handled, especially when considering LGBTQ+ students, and provide a legal alternative for a remedy outside of the judicial system
