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\u3ci\u3eAndy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith\u3c/i\u3e, a Narrow Ruling or a Transformational Decision? An Essay
No full textThe 2023 United States Supreme Court decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith is the first copyright decision in decades to visit the concept of fair use and transformative use. In a fiery majority decision with an even fiercer dissent, the court restricts the concept of fair use creating a lasting impact on derivative works, licensing, and appropriation art. Arguably restoring balance to factor one, purpose and character of the use, it questionably conflates the analysis of factor four, market effect, in favor of affirming factor one’s analysis as the justification premise as originally posed by Judge Leval in 1990
Judicial Moral Prophecy
No full textAmerican judges decry past moral lapses as intolerable. They paint their predecessors’ worst mistakes as tragedies that must never be allowed to happen again. When given the chance to avoid new injustices, however, judges increasingly flaunt their moral indifference. They insist that legal fidelity requires them to ignore whether their own rulings will be remembered as monstrous. But this cavalier outlook—for all its devotion to the past—is remarkably ahistorical. Feats of legal craft have never survived cultural repudiation. When precedents become morally shameful, the quality of their reasoning ceases to matter. The opinions’ authors are remembered not for the technical virtues they displayed, but for the evils they enabled.
This Article explains why courts should contemplate—and heed—the moral judgments of coming generations. Doing so is not an arbitrary projection of personal fancy; it is a corollary of the shared practice of retrospective condemnation. Tenets of cultural morality often achieve judicial recognition, and those truisms inevitably shape how courts perceive their interpretive responsibilities. Methodologies that ignore the outlines of future regret thus threaten to saddle the legal system with precedents that time will construe as lawless.
Despite the formalizing pressures of modern legal discourse, a countertrend has begun to emerge: that of judicial moral prophecy. This growing practice should be viewed as an essential adjunct to the rule of law, rather than a sad diversion from it. Factors that will ultimately eclipse logical precision can and should inform conceptions of judicial duty in the present. And past patterns of failure offer insights for transcending current cultural assumptions. In the end, the legal system suffers when judges inflict tragic harms for the sake of analytical purity. We should stop pretending that legal fidelity blinds us to this recurring lesson
The Gender of Gideon
Get PDFThis Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the U.S. Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men. In this Article, we present original data analysis demonstrating that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches. The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests. As this Article shows, the gendered allocation of the right to counsel has individual and systemic consequences that play an underappreciated role in perpetuating racial and gender inequality.
We revisit well-known doctrine, and, in contrast to all prior literature, we place gender at the center of the Court’s jurisprudence on the right to counsel. Liberty principles have been paramount in the Court’s opinions, but the liberty interests of women have been devalued. In Lassiter v. Department of Social Services, the Court refused to recognize the termination of a Black mother’s relationship with her child as deserving the right to counsel. Prior scholars have shown that the Gideon Court aimed to protect Black men from abuses of state power but protecting Black women from such abuse is nowhere in the Court’s jurisprudence.
Since Lassiter, the Court has refused to recognize a constitutional guarantee of representation for civil defendants with fundamental interests at stake, and, we argue, available data suggest that the largest categories of these cases—family law, eviction, and debt collection—disproportionately affect Black women. As we show, the gendered deprivation of a right to counsel relegates women to a secondary legal status and impinges on the functioning of American democracy. Drawing on the example of housing deprivation, a highly visible collateral effect of the pandemic, we illustrate how lawyerless defendants are now the norm in the civil justice system, with women most severely impacted by this crisis. First, in the absence of government-appointed counsel, women’s individual rights are routinely trampled. Powerful governmental and private adversaries of these women have captured the civil courts, with the result that judges regularly fail to enforce even well-established law. Second, without lawyers, appeals are scarce, and the law fails to evolve in areas of particular importance to women’s lives. Third, women’s ability to act in the world, protected by the rule of law, has been disproportionately compromised by lack of access to representation, resulting in women’s entrenched subordination. Finally, without lawyers to serve as watchdogs in the civil courts, constitutional doctrine has rendered women’s most important legal problems invisible. This has undermined opportunities to identify the system’s shortcomings and agitate for reform