Topics

Copyright law is under attack. Scholars and activists have long argued that American copyright law is a shambolic mess—vague, unpredictable, and startlingly overbroad. But amidst the swirling chaos, one core principle has remained intact: the idea that copyright attaches only to intangible goods. In theory, copyright resides in an intangible work of authorship, not a physical artifact. It is the intellectual creation, rather than the material copy, that gives rise to copyright protection. Copyright law thus rests on a stark distinction between the intellectual property of authors and the personal property of consumers—in short, between the intangible work and the physical copy.

This Article argues that the conventional wisdom is radically blinkered. It shows that, contrary to popular belief, courts increasingly struggle to separate the intangible work from its physical form. In reality, the supposed divide between the work and the copy is far less rigid, and decidedly more contested, than scholars have recognized. Judges and commentators often confuse the physical object—a biological substance, a written-down recipe, a computer program, a physical building, a living garden, a copy of a work of visual art—for the intangible work itself. The result is a thickly tangled, sometimes messy, and deeply incoherent body of law.

This Article synthesizes history, theory, and current doctrine to critically analyze these trends. It traces the roots of the intangible/physical dichotomy. It explores how twentieth-century courts navigated this distinction and demonstrates that modern courts remain sharply divided over how to define the intangible work. These disagreements reflect confusion about the kinds of objects that could be eligible for copyright protection. In the end, I argue that this confusion raises fundamental questions about the limits of our copyright system. By grappling with these questions, this Article seeks to advance a new analytical paradigm for thinking about the trajectory, coherence, and breadth of copyright law.

Agency delay is a pervasive problem. It occurs in a broad range of policy areas, including environmental protection, healthcare, and financial regulation. The trope of slow and inefficient government agencies has become cliché.

Statutory deadlines are one solution to the problem of agency delay. Attaching a deadline to authorize legislation seems like an obvious way to make agencies act faster. Therefore, scholars and policymakers have urged the use of statutory deadlines to spur agencies to action. They have focused on ways to more vigorously enforce statutory deadlines through negative incentives, such as hammer provisions or mandamus remedies, as well as on the effectiveness and drawbacks of negative approaches.

The current debate neglects positive incentives as another way to encourage agencies to meet deadlines. This Note argues that statutory deadlines can be a superior way of avoiding agency delay when linked to positive incentives (“carrots”) rather than negative incentives (“sticks”). The Note specifically focuses on conditional relaxation of judicial review as a promising mechanism to induce agencies to more appropriately avoid unnecessary delay. Conditional relaxation of judicial review is so promising because it accounts for the costs of litigation and judicial review in a manner that the typical negative incentives do not. This Note will review the relevant current doctrine and debate on enforcement of statutory deadlines, lay out the possible ways to attach positive incentives to statutory deadlines, and in comparing this carrot approach to deadlines to the stick approach, will show the advantages (and limitations) of positive incentives. Ultimately, the carrot approach will be most appropriate where there is a policy need for speed and when an agency faces resource constraints, though such an approach may never be appropriate when there is a strong principal-agent conflict between Congress and the relevant agency.

Longstanding constitutional commitments appear to ensure rights to remedies for “every person.” Nonetheless, courts were once exclusionary institutions contributing to the maintenance of racialized status hierarchies. Twentieth-century civil rights movements pushed courts into recognizing the authority of diverse claimants to pursue their claims. These movements also succeeded in legislatures, which invested in making constitutional obligations real through statutory entitlements, jurisdictional grants, and funding for tens of hundreds of courthouses, judgeships, and staff.

Courts thus became icons of government commitments to legal remedies, as well as battlegrounds about the authority of government to regulate power, both public and private. In this essay, I explore how the federal courts became the source of “our common intellectual heritage,” why it is difficult to bring sustained attention to state courts, and why doing so has become pressing as economic inequalities in state and federal courts undermine adjudication’s legitimacy.

Many of the new rights-holders had limited resources. Asymmetries in dispute resolution make aspirations to provide fair and equal treatment difficult. Because courts are public sites, the disparities are patent—bringing to the fore the problems facing litigants and courts. For some, responses lie in augmenting the capacity of courts to make good on their promises as information-forcing, conflict-exposing, and information-disseminating institutions. For others, the goal is to limit access to courts and undercut the legitimacy of their processes and outcomes. Illustrative is “Judicial Hellholes,” which is the name of a yearly publication attacking jurisdictions in which plaintiffs succeed in obtaining remedies.

To clarify the normative stakes of conflicts over “rights to remedies” in “open” courts, I focus here on the infrastructure of state and of federal courts and data on users and needs. Filings in both federal and state courts have, in recent years, declined, while concerns about self-represented litigants and the inaccessibility of courts have risen. I argue that the legal academy needs to take on “class” (as in economic wherewithal) in courts and that Congress needs to provide fiscal support for both federal and state courts, on which enforcement of law depends, and I address the challenges of
doing so.

Recent scholarship persuasively argues that state constitutional law should be grounded in state-centered reasoning, not federal imitation. That approach, compelling at the 10,000-foot level, also requires development through examples closer to the ground. This symposium Article uses legislative vetoes—arrangements in which legislators can override executive action without passing new laws—to explore the practice and adjudication of state structural constitutionalism.

The first surprise about state legislative vetoes is that they exist at all. Legislative vetoes have been a dead letter at the federal level since the Supreme Court’s decision in INS v. Chadha forty years ago. State courts, it turns out, have also overwhelmingly rejected legislative vetoes. But the mechanisms live on in some states due to constitutional amendments, statutes that have not been litigated, and occasional evasion of court rulings. The resulting state legislative vetoes sometimes serve as powerful forces in state governance or entrenchment mechanisms for gerrymandered legislatures. They are also a variegated rather than monolithic category, involving different powers and actors across the country and over time. In all of these ways, legislative vetoes help us see the practice of state constitutional structure as negotiated, evolving, and complex.

Turning from practice to doctrine, the state case law shows the operation—and value— of a state-centered approach, even when state and federal constitutional provisions are superficially similar. State courts could simply lockstep with Chadha on the ground that state and federal constitutions alike make law through bicameralism and presentment and distribute power among three branches. But many state courts have made greater use of context and realism, extending their reasoning beyond formalist (or functionalist) horizontal classifications of power as legislative, executive, or judicial.

Building on that foundation, this Article argues that Chadha’s holding will often be correct at the state level, but for different reasons. Horizontal classifications alone do not capture when and why legislative vetoes are problematic. Review rooted in state constitutions’ commitment to democracy can complete the explanation of why state courts have rejected legislative vetoes, especially vetoes by mere legislative committees. Policymakers, advocates, and proponents of constitutional amendments can all participate in steering legislative oversight away from anti-democratic designs.

Of course, none of this—neither the nuances of practice nor the doctrinal distinctiveness—would be apparent if we think of legislative vetoes only through existing federal frames. Ultimately, the underappreciated story of state legislative vetoes underscores the importance of studying the states on their own terms.

When an employer violates minimum wage and overtime laws, the Fair Labor Standards Act (FLSA) empowers a worker to bring a collective action on behalf of themselves and their affected coworkers. As an early step in such suits, courts authorize notice to the plaintiff’s coworkers so that they can join the litigation. However, employers increasingly require workers, as a condition of employment, to agree to arbitrate such claims and waive the right to sue in court under the FLSA. Courts in several circuits have begun to go along with employers who have pointed to alleged arbitration agreements as a reason the court should not notify a plaintiff’s coworkers of an ongoing suit. This Note explains that courts should reject this reasoning and argues that preventing workers—even those purportedly bound to arbitration—from learning of a collective action is contrary to the goals of the FLSA and the Supreme Court’s original rationale for authorizing lower courts to issue notice. Rather, notifying arbitration-bound plaintiffs of FLSA collective actions will result in more efficient and effective resolutions of lawsuits alleging minimum wage and overtime violations.

Rule 17(c) of the Federal Rules of Criminal Procedure governs the ability of parties in a federal criminal case to discover material from one another and from nonparties prior to or during trial. The language of Rule 17(c) itself is broad and allows for any subpoenas to be issued so long as they are not “unreasonable or oppressive.” Yet, the Supreme Court, in two cases, Bowman Dairy Co. v. United States and United States v. Nixon, substantially narrowed the applicability of the Rule, such that— absent affirmative showings of admissibility, relevance, and specificity for all material sought—parties are not entitled to discovery. While this high bar for discovery does not create major issues for the prosecution, which has already conducted sweeping discovery during the grand jury process, the defense is left at the mercy of the Nixon standard and its requisite, near-insurmountable showings to obtain subpoenas. While some have critiqued the current system of federal criminal discovery, few have focused on the best way to reform that system, without overturning any Supreme Court precedent. And the literature that has proposed reforms to the criminal discovery system has concentrated on altering the text of Rule 17 itself. This Note instead advocates for a court-driven approach to reform and, in doing so, argues that this solution is preferable to Rule reform when one weighs speed and clarity. This Note proposes a novel approach to Rule 17(c) jurisprudence and the defense discovery system by providing historical context for Nixon and elucidating the due process and compulsory process concerns with this legal regime, ultimately recommending that courts use different standards of evaluation depending on the target of the subpoena—be it an opposing party, a nonparty, or the President of the United States.

In a world in which liberals and conservatives disagree about almost everything, there is one important point on which surprising numbers of liberals and conservatives agree: They view the Court’s modern substantive due process decisions as repeating the constitutional wrongs of Lochner. In this Article, we draw on the history of modern substantive due process cases to refute the Lochner objection and to show how these cases demonstrate the democratic potential of judicial review often questioned in contemporary debates over court reform.

In the late 1930s, the Court repudiated Lochner while affirming the importance of judicial review in securing our constitutional democracy. In Carolene Products Footnote Four, the Court famously staked out a continuing role for “more searching judicial inquiry” in cases where “prejudice . . . tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.” Yet our understanding of the Carolene Products framework dates not to the 1938 decision but instead to the 1980s. In Democracy and Distrust, John Hart Ely developed Footnote Four into a liberal theory of representation-reinforcing judicial review that endorsed decisions protecting certain rights— voting, speech, and equal protection, specifically Brown v. Board of Education— and repudiated decisions protecting other rights—specifically substantive due process. Ely published his attack on substantive due process in 1980, just as conservatives elected President Reagan to overturn Roe v. Wade.

With the benefit of the intervening forty years, this Article revisits and reassesses Ely’s now-canonical interpretation of the Carolene Products framework. We answer the “Lochner objection” by showing how modern substantive due process claims were candidates for close judicial scrutiny in the Carolene Products framework; how the claimants’ strategies of “speaking out” and “coming out” were efforts to be heard in democratic politics; and how bottom-up mobilization around courts can be democracy-promoting in ways that Ely did not imagine. In short, we show that Ely had the big idea that judicial review could be democracy-promoting, but he argued his case on faulty premises. Democracy and Distrust bore significant influence of the traditions and the cultural forces Ely argued against. We show what Ely missed, not because we imagine federal courts are now likely to act as they did in the 1970s, but rather because Ely’s framing of these cases has become dominant and shapes the ways Americans continue to debate the role of courts. We examine the arguments of the claimants in the modern substantive due process cases—then unrepresented in positions of legal authority—and reason about their cases in light of scholarship on the ways family structures citizenship, and on the different roles of courts in a democracy, that has evolved in the four decades since Ely wrote.

What might this reconsideration of the modern substantive due process cases suggest about the ongoing debate over the role of federal courts in a constitutional democracy? This Article does not engage with the particulars of court reform, but it does shed light on certain fundamental premises of that debate. Our analysis rules out one commonly cited justification for reform: that judicial restrictions on legislative sovereignty are by definition antidemocratic and that the modern substantive due process cases are the classic illustration. We show the many ways in which judicial intervention in these cases was democracy-promoting. As one looks at concrete lines of cases and structural features of courts, one can ask about the democracy-promoting and democracy-inhibiting ways that courts perform and pose more discriminating questions about the goals of court reform—whether to adopt reforms that make courts more independent, less polarized, more open, and more democratically responsive, or to limit their role in all or certain areas of a democratic order.

The federal courts of appeals embrace the ideal that judges are committed to rule-of-law norms, collegiality, and judicial independence. Whatever else divides them, these judges generally agree that partisan identity has no place on the bench. Consequently, when a court of appeals sits “en banc,” (i.e., collectively) the party affiliations of the three-judge panel under review should not matter. Starting in the 1980s, however, partisan ideology has grown increasingly important in the selection of federal appellate judges. It thus stands to reason—and several high-profile modern examples illustrate—that today’s en banc review could be used as a weapon by whatever party has appointed the most judges on any particular circuit. A weaponized en banc reflects more than just ideological differences between judges. We define the phrase to capture a “team mentality” on the courts of appeals—an us versus them—where the judges vote in blocs aligned with the party of the President who appointed them and use en banc review to reverse panels composed of members from the other team.

In this Article, we test whether en banc review is now or has ever been weaponized. We make use of an original data set—the most comprehensive one of which we are aware—that tracks en banc decisions over six decades. Our findings are surprising in two very different ways. The bulk of our data indicates that rule-of-law norms are deeply embedded. From the 1960s through 2017, en banc review seems to have developed some sort of immunity from partisan behavior over time, and we unpack potential reasons why. But that important and long-lasting immunity could now be in danger. Our data from 2018–2020 show a dramatic and statistically significant surge in behavior consistent with the weaponizing of en banc review. It is too soon to tell whether this is a temporary change or an inflection point indicating a more permanent shift. We consider both possibilities and, in so doing, highlight the critical role that en banc review plays in ascertaining judicial commitment to rule-of-law norms. The time may soon be upon us to confront the cost of en banc review in a regime where party identity frequently trumps other judicial impulses.

In its 2014 decision in Lexmark International, Inc. v. Static Control Components, Inc., the Supreme Court began the process of “bringing discipline” to the various elements of prudential standing and suggested that the doctrine as a whole is inconsistent with the Court’s place in the federal separation of powers. Last year, the litany of opinions delivered by a divided Court in June Medical Services L.L.C. v. Russo manifested ongoing confusion about the fate of prohibitions on third-party standing and generalized grievances—two of the traditional prongs of prudential standing. This Note documents the heterogeneous approaches to prudential standing taken in the lower federal courts since Lexmark, and argues that this confusion is partly attributable to the Court’s misleading analysis of the role of judge-made gatekeeping doctrines in our federal system. Judge-made gatekeeping rules are ubiquitous in the federal judiciary, and courts have adopted a wide-range of approaches in the wake of Lexmark’s failure to identify a principle that could cabin its disfavor to only prudential standing rules. This Note argues that courts should instead acknowledge that judge-made gatekeeping rules like prudential standing’s third-party standing rule do a better job than alternatives in upholding the separation of powers values that are at the heart of the Supreme Court’s jurisdictional jurisprudence.

The Supreme Court for decades has said that Congress, by statute, may create rights and that the infringement of those rights is a sufficient injury to allow standing to sue in federal court. But in TransUnion LLC v. Ramirez, in June 2021, the Court said that federal laws creating rights may be a basis for standing only if the right protected is one for which there is “a close historical or common-law analogue.” This principle, if followed, would mean that countless federal laws—ranging from the Freedom of Information Act to civil rights statutes to environmental laws to the prohibition of child labor—could not be enforced in federal court because they create statutory rights that did not exist historically or at common law. Such an approach would be a radical, undesirable change in the law, particularly as a matter of separation of powers. Congress always has had the authority, and should have the power, to create enforceable rights by statute.