Fair Use and the Fairer Sex: Gender, Feminism, and Copyright Law

Copyright laws are written and enforced to help certain groups of people assert and retain control over the resources generated by creative productivity. Because those people are predominantly male, the copyright infrastructure plays a role, largely unexamined by legal scholars, in helping to sustain the material and economic inequality between women and men. This essay considers some of the ways in which gender issues and copyright laws intersect, proposes a feminist critique of the copyright legal regime which advocates low levels of copyright protections, and asserts the importance of considering the social and economic disparities between women and men when evaluating the impacts and performance of intellectual property laws

A Reconsideration of Copyright\u27s Term

For well over a century, legislators, courts, lawyers, and scholars have spent significant time and energy debating the optimal duration of copyright protection. While there is general consensus that copyright’s term is of legal and economic significance, arguments both for and against a lengthy term are often impressionistic. Utilizing music industry sales data not previously available for academic analysis, this Article fills an important evidentiary gap in the literature. Using recorded music as a case study, we determine that most copyrighted music earns the majority of its lifetime revenue in the first five to ten years following its initial release (and in many cases, far sooner than that). Our analysis suggests at least two results of interest to legislators, lawyers, and scholars alike. First, it contributes to the normative debate around copyright’s incentive–access paradigm by proposing a more efficient conception of copyright’s term for information goods: namely, one that replaces the conventional “life plus” durational standard with one based on the commercial viability of the average work. Second, it demonstrates that advocates’ and legislators’ tendency to focus on atypical works leads to overprotection of the average work, suggesting that copyright’s term is not nearly as significant for copyright owners as conventional wisdom submits

A Reconsideration of Copyright\u27s Term

For well over a century, legislators, courts, lawyers, and scholars have spent significant time and energy debating the optimal duration of copyright protection. While there is general consensus that copyright’s term is of legal and economic significance, arguments both for and against a lengthy term are often impressionistic. Utilizing music industry sales data not previously available for academic analysis, this Article fills an important evidentiary gap in the literature. Using recorded music as a case study, we determine that most copyrighted music earns the majority of its lifetime revenue in the first five to ten years following its initial release (and in many cases, far sooner than that). Our analysis suggests at least two results of interest to legislators, lawyers, and scholars alike. First, it contributes to the normative debate around copyright’s incentive–access paradigm by proposing a more efficient conception of copyright’s term for information goods: namely, one that replaces the conventional “life plus” durational standard with one based on the commercial viability of the average work. Second, it demonstrates that advocates’ and legislators’ tendency to focus on atypical works leads to overprotection of the average work, suggesting that copyright’s term is not nearly as significant for copyright owners as conventional wisdom submits

Open the Jail Cell Doors, HAL: A Guarded Embrace of Pretrial Risk Assessment Instruments

In recent years, criminal justice reformers have focused their attention on pretrial detention as a uniquely solvable contributor to the horrors of modern mass incarceration. While reform of bail practices can take many forms, one of the most pioneering and controversial techniques is the adoption of actuarial models to inform pretrial decision-making. These models are designed to supplement or replace the unpredictable and discriminatory status quo of judicial discretion at arraignment. This Note argues that policymakers should experiment with risk assessment instruments as a component of their bail reform efforts, but only if appropriate safeguards are in place. Concerns for protecting individual constitutional rights, mitigating racial disparities, and avoiding the drawbacks of machine learning are the key challenges facing reformers and jurisdictions adopting pretrial risk assessment instruments. Absent proper precautions, risk assessment instruments can reinforce, rather than alleviate, modern criminal justice disparities. Drawing from a case study of New Jersey’s recent bail reform program, this Note examines the efficacy, impact, and pitfalls of risk assessment instrument adoption. Finally, this Note offers a broad framework for policymakers seeking to thoughtfully experiment with risk assessment instruments in their own jurisdictions

Reckoning with Adjudication\u27s Exceptionalism Norm

Unlike rulemaking and judicial review, administrative adjudication is governed by a norm of exceptionalism. Agencies rarely adjudicate according to the Administrative Procedure Act’s formal adjudication provisions, and the statute has little role in defining informal adjudication or specifying its minimum procedural requirements. Due process has almost nothing to say about the matter.The result is that there are few uniform, cross-cutting procedural requirements in adjudication, and most hearings are conducted using procedures tailored for individual agencies or programs. This Article explores the benefits and costs of adjudication’s exceptionalism norm, an analysis that implicates the familiar tension between uniformity and specialization in the law. It argues that the exceptionalism norm overemphasizes specialization, at great cost.This Article urges a new regime designed to more properly balance the values of specialization and uniformity. The proposal contemplates that as in rulemaking, the project would entail an interbranch effort to protect fundamental rights and promote institutional integrity while preserving space for needed agency discretion

Financial literacy: an overview of practice, research, and policy

Attention to financial literacy has grown in recent years, in large part because technological, market, and legislative changes have resulted in a more complex financial services industry that requires consumers to be more actively involved in managing their finances. Consumer and community interest groups, banking companies, government agencies, and policymakers, among others, have become concerned that many consumers lack a working knowledge of financial concepts and the tools they need to make decisions most advantageous to their economic well-being. As a result, considerable resources have been devoted to financial literacy, with a wide range of organizations providing training, including banks, consumer and community groups, employers, and government agencies. Overall, studies suggest that financial literacy training can lead to better decisionmaking; however, the findings raise numerous questions about the best means of providing that training, the most appropriate setting, and the most opportune timing. Findings from recent research on personal money management styles, combined with awareness of human behavioral traits, offer insights that may be useful in developing successful training programs and strategies.Financial literacy ; Economics - Study and teaching ; Finance, Personal

Reckoning with Adjudication’s Exceptionalism Norm

Unlike rulemaking and judicial review, administrative adjudication is governed by a norm of exceptionalism. Agencies rarely adjudicate according to the Administrative Procedure Act’s formal adjudication provisions, and the statute has little role in defining informal adjudication or specifying its minimum procedural requirements. Due process has almost nothing to say about the matter. The result is that there are few uniform, cross-cutting procedural requirements in adjudication, and most hearings are conducted using procedures tailored for individual agencies or programs. This Article explores the benefits and costs of adjudication’s exceptionalism norm, an analysis that implicates the familiar tension between uniformity and specialization in the law. It argues that the exceptionalism norm overemphasizes specialization, at great cost. This Article urges a new regime designed to more properly balance the values of specialization and uniformity. The proposal contemplates that as in rulemaking, the project would entail an interbranch effort to protect fundamental rights and promote institutional integrity while preserving space for needed agency discretion

Rationing Retaliation Claims

According to the U.S. Supreme Court, the rising number of workplace retaliation claims is a problem, one warranting more stringent requirements for employees to successfully bring claims. The Court’s principal justification for this restrictive approach is a fear of “opening the floodgates” of litigation. This Article critically assesses the Court’s fear of opening the floodgates of retaliation claims, evaluates the Court’s evidence, and argues that such concerns are overstated and misplaced. Rather than a cause for concern, the rise in retaliation claims reflects rising intra-organizational conflict. Social scientists have demonstrated that, as the American workforce becomes more diverse, intra-organizational conflict increases, and the propensity for civil rights violations grows. In other words, claims are on the rise because retaliation is on the rise. Employment discrimination and other related statutes are aimed at mitigating the harms of this expected rise in intra-organizational conflict. The Article further argues that considerations of judicial economy are particularly misplaced in workplace retaliation cases. Retaliation protections are crucial to the private enforcement scheme Congress developed for civil rights laws generally and employment discrimination laws in particular. Attempting to limit judicial caseloads through restrictive interpretations of anti-retaliation laws eviscerates private enforcement, producing under- enforcement of these core civil rights protections. To remedy the Supreme Court’s wrong turn on retaliation, Congress should act. This Article proposes that Congress adopt a rule of construction mandating broad interpretation of all workplace anti-retaliation statutory provisions. This provision would strengthen critical civil rights safeguards for employees by restoring the optimal and essential function of retaliation provisions