Quo Vadis, Fair Use? The Future of Fair Use After the Warhol Decision

This article critically examines the recent Supreme Court decision in Warhol v. Goldsmith and its impact on fair use within the realm of visual art. The paper traces the historical development of fair use from its inception in Folsom v. Marsh in 1841 to its formal integration into the Copyright Act of 1976 and subsequent evolution through landmark Supreme Court rulings. The article focuses on the Court’s scrutiny of the first factor of the fair use doctrine in Warhol v. Goldsmith, particularly the emphasis on commercial intent in determining fair use. It argues that the Court’s elevation of commercial considerations undermines the original purpose of fair use, which is to encourage critical and transformative uses of copyrighted material. Furthermore, the article critiques the Court’s failure to consider practical aspects of art creation and sale, which are integral to fair use analysis in the context of visual art. It contends that fair use analysis should prioritize the contribution of a work to the overall message or expression of a subsequent work, rather than solely focusing on commercialization. The authors of this paper urge courts to reevaluate fair use in visual art, taking into account the inherent complexities and interpretive nature of the medium. They advocate for a more nuanced approach that balances artistic expression with copyright protection, ensuring that fair use continues to foster creativity and innovation in the visual arts

Constraining the Executive Branch: Delegation, Agency Independence, and Congressional Design of Judicial Review

While scholarship examining the relationship between Congress, federal agencies, and the judiciary reveals variation in the statutory details that affects administrative and judicial decision-making, few studies explore the extent to which congressional delegation decisions balance both the substantive and procedural independence of agencies against the possibility of the federal judiciary’s review of administrative action. This Article enhances scholarly understanding of delegation by providing a qualitative, theoretical, and empirical account of the circumstances under which Congress manipulates federal agency exposure to the federal judiciary. Ironically, combined with statutory provisions dictating agency independence, increasing an agency’s exposure to unelected federal judges can increase administrative responsiveness to elected legislators. Using a motivational case study of federal energy policy from the 93rd to 110th Congresses, this Article highlights how, during the legislative process, Congress’s members’ delegation decisions account for agency independence and administrative exposure to the courts. Based on the findings of this case study, the Article develops a new theoretical account of legislative choices over Executive Branch exposure to the federal judiciary. This Article then presents an empirical examination of significant legislation from the passage of the Administrative Procedure Act through 2016 to assess the factors influencing legislative choices regarding delegation, agency independence, and Executive Branch exposure to the judiciary. In doing so, this Article makes several important contributions. First, by broadening scholarly discussions of agency design, delegation, and administrative responsiveness to elected officials, the Article illustrates how underappreciated factors—including political volatility, technical uncertainty, and administrative structure—influence the parameters under which Congress delegates. Along with agency independence, political coalitions strategically adjust the availability of judicial review to account for the practical realities of governance. Specifically, political coalitions increase administrative exposure to the courts as political volatility and the autonomy of agency leadership increase. Political coalitions decrease agency exposure to the courts as the complexity of the administrative policy arena increases and the availability of political review decreases. Considered in its entirety, this Article suggests that legislative decisions regarding judicial exposure can enhance or diminish the effectiveness of other statutory and constitutional tools of democratic accountability, such as administrative procedures or oversight. Simply put, the level of administrative exposure to the judiciary has profound implications for the American separation of powers system of governance

Peeping Town: Drone Surveillance and the Exclusionary Rule in Long Lake Township v. Maxon

For years, legal commentators have pondered the effect of the Fourth Amendment on drones, but purely as an academic exercise. No court had ever considered drone surveillance under the Fourth Amendment––until now. In Long Lake Township v. Maxon, a northern Michigan township flew a drone over a local resident’s home to gather photographic evidence of an alleged zoning violation. Relying on that evidence, the township sued to enforce its zoning ordinance. The resident moved to suppress the evidence, arguing that the drone’s warrantless surveillance violated the Fourth Amendment. The case made it all the way up to the Michigan Supreme Court, which recently declined to address whether the drone surveillance constituted a search. Instead, it held that the exclusionary rule––a remedial device that bars the use of evidence obtained in violation of the Fourth Amendment from certain proceedings––did not apply. Thus, even if the evidence was collected in violation of the resident’s Fourth Amendment rights, the evidence was deemed admissible in the zoning proceeding. This Comment examines Long Lake Township v. Maxon, arguing that the Michigan Supreme Court erred in both its exclusionary rule analysis and its failure to decide the search issue. It also explores the decision’s nationwide implications

Statutes and Special Interests

Who really decides what statutes say? Most Americans think that special interests play an outsized role in our lawmaking processes. Yet empirical studies have produced little evidence that special interests get everything, or even most of, what they ask for from Congress. This Article takes an innovative new approach to tackling the difficult question of how advocates influence legislation. It presents the first comprehensive empirical study of how advocates influence the law through amendments in the legislative process. The Article analyzes an original dataset of 2,137 witnesses and their testimony at referral hearings on 108 Indian-related bills in the 97th and 106th Congresses. The analysis identifies amendments as an important yet previously undocumented way in which advocates influence legislation. It uncovers a rarely observed relationship between legislative advocates and sitting members of Congress. Comparison of advocates’ testimony on bills to amendments proposed by members of Congress reveals similar and even identical language, providing compelling evidence that advocacy groups persuaded legislators to introduce amendments valued by the group. The analysis also demonstrates how advocate influence at the hearing stage of the legislative process frequently shapes the law by dramatically increasing the likelihood of legislative enactment. These findings reveal an important mechanism advocates can use to change the law. Further, they challenge prevailing narratives about power by demonstrating how underrepresented groups can leverage the legislative process in their law reform efforts

Yet Another Elected Power: A Case for Randomly Selected Forepersons

Most United States courts require the jury to elect their own foreperson, a role that has amplified influence on the jury’s verdict. In practice, the election process is done quickly and without discussion. As a result, the foreperson is demographically biased toward older men of high socioeconomic status. This paper uses psychological literature to argue that the current selection system produces suboptimal forepersons. Instead, it proposes a system of random selection, including an opt-out procedure for those who do not feel capable of holding the position

The \u27Realness\u27 Key to Compelled Passcode Production

This Article explains how the Foregone Conclusion exception to the Fifth Amendment’s privilege against self-incrimination applies to compelled passcode production. The Supreme Court fashioned the Foregone Conclusion exception in connection with the compelled production of documentary evidence. It facilitates government access to real evidence despite the implicit factual communications inherent in a target’s act of producing it (i.e., that the real evidence exists, is accessible, and is what the state demanded). Engaging with the ‘real evidence’ limitation for compelled acts of production, the Article shows that focusing on unlocked devices and/or stored passcodes as the real evidence to be produced in compelled passcode entry cases can resolve splits among courts and commentators while protecting targets from compelled revelation of mere information. This Article goes beyond the technological nuances of encryption to consider realness based on the average user’s experience of a passcode as something that exists outside the mind. Applying Act of Production first principles to the real evidence of unlocked devices and stored passcodes clarifies that the government need not demonstrate pre-production knowledge of the contents of a locked device to satisfy the Foregone Conclusion exception. It further confirms that the reasonable particularity standard often associated with the exception and the Foregone Conclusion exception’s authentication requirement play only limited roles in passcode cases. The Article concludes with a brief explanation of how the first- principles approach to compelled passcode production can also demystify compelled use of biometrics to unlock digital devices

A Supreme Sidestep: The Justices’ Artful Dodge on Platform Immunity

The foiled ISIS plot to attack Taylor Swift concerts, coordinated by teens on social media platforms with a significant US presence, illustrates the dangerous consequences of unchecked online content. This incident, coupled with other tragic cases—such as the sexual exploitation of a minor lured through Facebook and Tyler Clementi’s suicide following a privacy violation on Twitter—highlights the urgent need to reassess 47 U.S.C. § 230 of the Communications Decency Act. Enacted in 1996, this law provides broad immunity to interactive computer services, including social media platforms, shielding them from liability for user-generated content. While initially celebrated as a catalyst for online innovation and free speech, § 230 now faces criticism for enabling the spread of misinformation, hate speech, and illegal content while hindering victims’ ability to seek redress. Despite numerous legal challenges, the Supreme Court consistently avoids substantive rulings on § 230’s interpretation, instead deciding cases on procedural grounds. This article explores the Court’s failure to provide substantive guidance and argues that the harms of § 230’s safe harbor provision now outweigh the justification for judicial deference, particularly in an era of congressional gridlock. Without meaningful intervention, the negative impacts of § 230 will likely persist, posing ongoing risks to individuals and society. As these risks escalate, the Supreme Court’s continued sidestep of the substantive issues surrounding § 230 becomes increasingly problematic, leaving a critical gap in digital-age jurisprudence that urgently needs to be addressed

Sex Crimes and Progressive Prosecution: Reimagining Sex Offenses and SORN Laws as an Opportunity for Criminal Justice Reform

As progressive efforts to reform the U.S. criminal legal system continue to take form, one category of crime has been consistently overlooked: sex offenses. While the carceral system is often condemned for its excessive punitiveness, severe punishments for sex offenders remain largely unchallenged and even popular. A primary example of these punishments is sex offender registration and notification (SORN) laws, which significantly constrain the lives of sex offenders after they have served their time in prison. Though subject to decades of empirical criticism from scholars, much of which has found that SORN laws have no significant impact on sex offender recidivism, these laws have remained a fixture of the American legal system since their nationwide introduction in the 1990s. This note seeks to understand the persistence of the SORN framework and ultimately argues that progressive prosecutors, through a rich normative model of prosecution, should target the SORN framework as an area ripe for reform

Promising the First Amendment: (De)Regulating Speech in Higher Education

The war between Hamas and Israel has caused havoc in higher education. Amid student unrest, alumni pressure, congressional hearings, civil rights investigations, and student lawsuits, universities stand at a crossroads. The current situation, in which most private universities unevenly regulate student speech under ambiguous student codes, is not sustainable politically or legally. A tsunami of litigation and regulatory actions has already begun. One increasingly favored response is for private universities to more vigorously enforce existing codes or expand their scope. An alternative is for private universities to deregulate student expression and commit by contract to the First Amendment. This Article argues for the latter approach largely on pragmatic grounds. In essence, our argument is based upon the realities of university organizational behavior, which make it difficult for universities to enforce speech codes in a manner that complies with their statutory and contractual obligations. Ambiguous codes, informal process, and political homogeneity among decision-makers inevitably result in inconsistent regulation of speech. These problems can be mitigated by committing to the First Amendment, which would both clarify and constrain university speech regulations by incorporating a large body of caselaw, some of which bears directly on higher education. Such clarity would limit the scope of university discipline, provide a basis for legally required consistency, and be more readily amenable to external review by courts and federal regulators. Experience with the First Amendment in public universities suggests that such a commitment will not have deleterious consequences for campus life