The Seventh Circuit’s 2014 opinion in Kienitz v. Sconnie Nation has played an outsized role in the discourse on fair use, an affirmative defense to copyright infringement.1 The opinion is quite short, spanning just over three pages, and it emerged from a circuit that produces relatively few fair use opinions.2 Yet Kienitz is often cited for its rejection of “transformative use,” a relatively new but influential concept that has reshaped fair use doctrine.3 The court in Kienitz warned that transformative use threatens to replace the four-factor test for fair use found in § 107 of the Copyright Act4 and could erode authors’ exclusive rights to produce “derivative works” based on their original works.5 In place of transformative use, Kienitz proposed that courts should simply “stick with the statutory list” of four factors when analyzing fair use.6 The opinion applied this approach by focusing its analysis on factors three and four: the amount of the copyrighted work used and the effect of that use on the market for the copyrighted work.7

Is Kienitz’s approach a viable model for analyzing a fair use defense without relying on transformative use? The answer is no. This Note concludes that Kienitz’s reasoning is fundamentally flawed and suffers from many of the same infirmities it identified in transformative use.8

There are three problems with Kienitz’s reasoning. First, its approach to factor four defines the scope of derivative works in a way that would severely limit authors’ rights.9 Second, it employs a test, known as the “substitute/complement test,” which tends to underestimate market harm.10 Finally, its analysis of factor three implies there was no copyright infringement, which if true, would have made the fair use defense unnecessary.11 If Kienitz’s amputation of transformative use was an attempt to remedy its harmful symptoms, its cure was worse than the disease.12

Although its analysis was flawed, Kienitz’s diagnosis of the problems with transformative use was accurate.13 Transformative use has been applied in a way that has come to dominate the statutory fair use factors and blurs the line between protected derivative works and fair use.14 This Note proposes two ways to restructure fair use analysis to limit the negative effects of transformative use: (1) rearrange the order in which the factors are analyzed and (2) make a finding of transformative purpose a threshold requirement of transformative use.

Part I explains how the scope of fair use has contracted and expanded throughout United States history and how transformative use has driven the current period of expansion. Part II examines the analysis in Kienitz and concludes, for the reasons described above, that it does not provide a viable alternative to transformative use. Part III demonstrates an alternative fair use analysis of the facts in Kienitz to show how the opinion could have benefited from incorporating transformative use into its analysis and by applying this Note’s two proposals for restructuring fair use. In the process, Part III also reveals, and argues against, common issues in other courts’ analyses of each fair use factor, including the widespread underappreciation of factor two15 and Campbell v. Acuff-Rose Music, Inc.’s unprecedented instruction to emphasize findings from factor one in the analysis of factor three.16

Since 2015, state Anti-Strategic Lawsuits Against Public Participation (“anti-SLAPP”) laws that were enacted to prevent litigious plaintiffs from silencing a defendant’s First Amendment rights have come under attack from state and federal courts.[1] California Civil Procedure § 425.16 (“§425.16”), California’s anti-SLAPP law, is particularly susceptible to this judicial narrowing, as it is widely considered the broadest anti-SLAPP statute in the country.[2] Indeed, the California Supreme Court in the 2019 case FilmOn.com Inc. v. Double Verify Inc. narrowed § 425.16’s applicability by articulating a stricter context-based standard for protected conduct under the statute’s catchall subdivision, § 425.16(e)(4).[3]

This Article argues that this stricter standard is unwarranted in light of § 425.16’s legislative intent, previous California Supreme Court § 425.16 rulings, and the reasonable protections built in to § 425.16 for plaintiffs. Moreover, the court’s underlying frustration with § 425.16 overuse will likely be exacerbated, not ameliorated, by this stricter standard. Additionally, the vulnerable defendants § 425.16 was intended to help, in particular online watchdogs, will likely suffer the most under this stricter standard. This Note concludes that the California Legislature should act to clarify § 425.16(e)(4) or risk continued judicial efforts to narrow its applicability and potentially thwart its legislative purpose.

The United States patent system has long been considered the gold standard of global patent systems, in part because of the consistency and strength of the protections that it has granted to inventors.1 The rapid growth of the United States economy during the nation’s early years is often attributed in part to the patent system adopted by the country,2 and the strength of the United States patent system allows the United States to remain among the world’s most innovative countries despite falling behind other countries in areas relevant to innovation such as higher education and researcher concentration.3 A hallmark of a strong patent system is predictability.4 “In a strong patent system, patent rights are granted to particular inventions in a predictable manner, and patent infringement similarly is enforced in a predictable manner.”5 This predictability reinforces the strength of the patent system by allowing inventors to protect their inventions and efficiently allocate resources for future innovation.6

Until relatively recently, the rules regarding patent eligible subject matter were clear and predictable—courts and the United States Patent and Trademark Office, or USPTO, should interpret subject matter eligibility requirements broadly.7 This expansive subject matter eligibility interpretation was widely criticized as resulting in patents that were both too broad and too vague, 8 which resulted in the judiciary revisiting the issue of patent subject matter eligibility in a series of cases culminating in Alice Corp. Proprietary Ltd. v. CLS Bank International.9 In Alice, the Supreme Court reified a two-step analytical framework for patent subject matter eligibility.10 This framework, which was established in part to clarify patent-eligible subject matter, has been heavily criticized as being “chaotic,” a “real mess,” and even putting patent subject matter eligibility into a “state of crisis.”11 The application of this framework has proven to be “unpredictable and impossible to administer in a coherent consistent way.”12

In the years since Alice, there has been much legal scholarship and research regarding how to resolve the ambiguity surrounding patent subject matter eligibility, but nothing has successfully resolved the issue in practice. In January 2019, the USPTO promulgated guidance on the issue of patent subject matter eligibility.13

This Note will begin by providing a brief discussion of patent subject matter eligibility. Next, the Note will discuss the January 2019 Guidance promulgated by the USPTO and how the Guidance aims to alter the two-step analytical framework from Alice, before assessing whether this Guidance has appeared to have any substantial effect on the federal judiciary in the first year since the Guidance was promulgated.

The market for cryptoassets is burgeoning as distributed ledger technology transforms financial markets. With the extraordinary growth in the crypto-markets comes the need for regulation to promote efficiency, capital formation, and innovation while protecting investors. With the need for regulation comes enforcement. The blockchain revolution in capital and financial markets has already attracted the attention of enforcement agencies in many jurisdictions. In this Article, we elaborate on crypto-related enforcement and report on the results of the Enforcement Survey conducted by the Rutgers Center for Corporate Law and Governance Fintech and Blockchain Research Program.

We find that the United States Securities and Exchange Commission (“SEC” or “Commission”) brings more enforcement actions against digital-asset issuers, broker-dealers, exchanges, and other crypto-market participants than any other major crypto-jurisdiction. By the same token, its enforcement entails more serious penalties. In addition to reviewing the international data, we provide detailed comparisons of the crypto-enforcement actions of the United States Commodity Futures Trading Commission (“CFTC”) and the crypto-enforcement program of the SEC. Whereas SEC enforcement has been relatively stable, CFTC cases have been trending up. By contrast, enforcement in foreign jurisdictions seems to be subsiding. Our data raise theoretical questions on regulation via enforcement, its effect on financial innovation, and regulatory competition.

In Part I, we start with discussing the pros and cons of regulation by enforcement, as well as its consequences for innovation and a possible outflow of capital. Part II describes the methodology of the research. Part III presents the main findings. Parts IV and V discuss SEC and CFTC enforcement data, respectively, while Part VI compares the enforcement actions of the two regulators.

When a student misbehaves, race plays a role in how harshly the student is disciplined. Given the long history of racial discrimination in the United States, as well as prevalent implicit biases, Black and Latino students are disciplined at higher rates with stiffer punishments than their white peers. This higher level of discipline leads to a downward spiral of poor school performance and attendance, involvement in illegal activity, and arrest and imprisonment. Ultimately, Black and Latino students fall victim to a school-to-prison pipeline that many white students are not pushed into despite similar misbehavior. In order to protect students from the pipeline, equalize educational opportunities, and create a safe and welcoming school environment, it is necessary for the federal government to invalidate disciplinary policies that cause an unjustified, disparate impact.
Under President Obama, a first-ever policy guidance on student discipline was issued, which stated that not only are intentionally discriminatory policies unlawful per Title VI of the Civil Rights Act of 1964, but so too are facially neutral policies that cause an unjustified disparate impact. The Trump Administration rolled back the policy guidance, citing that a disparate impact policy is not a Title VI violation per current precedent and that invalidating disparate impact disciplinary policies makes schools less safe and more prone to shootings. This Note will examine those arguments and will conclude that the disparate impact standard is supported by current precedent, does not increase the rate of school shootings, and ultimately should be reinstated. The disparate impact standard is a necessary safeguard against negative, implicit attitudes and is an important step in eradicating the school-to-prison pipeline.

Trade dress, as a subset of trademark law, can offer potentially perpetual protection to a product’s design or packaging features if they aid consumers in identifying a product’s source. Yet these protected design features might be valued by consumers not only because of their source identifying function, but also because consumers find the design or package features beautiful, independent of the goodwill generated by the producer. Thus, under the doctrine of aesthetic functionality, manufacturers who produce red-soled shoes or whiskey with a melted wax seal might gain what courts have called a “non-reputation-related” competitive advantage, ultimately warranting the expropriation of the protected product feature into the public domain.

This Article argues that courts, in assessing questions of aesthetic functionality, should give particular weight to surveys asking consumers whether they would be better off if competitors were allowed to use a protected trade dress feature in their own products. Just as, under the doctrine of genericide, consumers are able to expropriate word marks if consumers find it more beneficial to associate the language feature of the trademark with competitors’ products, consumers should also be able to expropriate trade dress rights of a particular manufacturer if they find it more beneficial to have these design and packaging features available to the manufacturer’s competitors. Creating a genericide analog for cancelation of trade dress can further trademark’s central goal of protecting consumer welfare.

This Article reports “proof of concept” results of our proposed consumer surveys with regard to seven different forms of existing trade dress—including not only Louboutin’s red-soled shoes and Maker’s Mark’s red-drip wax seal, but also Gucci’s famous “diamond motif” and Emeco’s Navy chair. We implement our surveys as a between-subject randomized experiment that allows us to causally estimate the intensity of consumer preferences as well as the impact of “guiding” subjects on the likely consequences of forgoing trade dress protection. Our results, while at best suggestive, found that judicial assessments of functionality were often not predictive of consumer protection preferences. For example, a statistically significant majority indicated they would be better off if other manufacturers were allowed to produce Emeco’s Navy chair design, notwithstanding a contrary judicial holding. We also found that large consumer majorities chose to protect two iconic Veblen goods: the Louboutin shoe and the Gucci Diamond Motif, even when informed that such protection would likely lead to higher prices—indicating a desire to preserve trade dress’ power to sustain social distinction.

Does the mass media affect judicial decisionmaking? This first of its kind empirical study delves into this long-lasting question, and investigates the relationship between media coverage of crime and criminal sentencing. To do so, I construct a novel data set of media reports on crime, which I link to administrative state court sentencing records. The data span five years and more than forty-three thousand sentencing decisions across three jurisdictions that differ in their judicial selection models: Pennsylvania, Maryland, and Virginia. I find that crime coverage increases sentencing harshness. I also find evidence to suggest that this effect is mitigated through a state’s method of judicial selection. The findings go beyond traditional, case-study scholarship on the nexus between the media and the judiciary, offering evidence that the media can affect judicial decisionmaking in broader contexts. These findings hold significant implications for policy and judicial politics and raise questions at the core of the criminal justice system. Particularly, they call for renewed attention to the media as an important factor in the criminal process and a potential obstacle towards achieving the constitutional ideal of fair trials. The Article concludes by suggesting methods for countering such media effects.

Major index fund operators have been criticized as ineffective stewards of the firms in which they are now the largest shareholders. While scholars debate whether this passivity is a serious problem, index funds’ generally docile approach to ownership is broadly acknowledged. However, this Article argues that the notion that index funds are passive owners overlooks an important dimension in which index funds have demonstrated outspoken, confrontational, and effective stewardship. Specifically, we document that index funds have taken a leading role in challenging management and voting against directors in order to advance board diversity and corporate sustainability. We show that index funds have engaged in a pattern of competitive escalation in their policies on environmental, social, and governance (“ESG”) issues. Index funds’ confrontational and competitive activism on ESG issues is hard to square with their passive approach to more conventional corporate governance questions. To explain this dichotomy in approaches, we argue that index funds are locked in a fierce contest to win the soon-to-accumulate assets of the millennial generation, who place a significant premium on social issues in their economic lives. With fee competition exhausted and returns irrelevant for index investors, signaling a commitment to social issues is one of the few dimensions on which index funds can differentiate themselves and avoid commoditization. For index funds, the threat of millennial migration to another fund is more significant than the threat of management retaliation. Furthermore, managers themselves, we argue, face intense pressure from their millennial employees and customers to respond to their social preferences. This three-dimensional millennial effect—as investors, customers, and employees—we argue, is an important development with the potential to provide a counterweight to the wealth-maximization paradigm of corporate governance. We marshal evidence for this new dynamic, situate it within the existing literature, and consider the implications for the debate over index funds as shareholders and corporate law generally.

The American common law of contracts appears to direct courts to decide contract disputes by considering two opposing points of view: the ex ante perspective of the parties’ intent at the time of formation, and the ex post perspective of justice and fairness to the parties at the time of adjudication. Despite the black letter authority for both perspectives, the ex post perspective cannot withstand scrutiny. Contract doctrines taking the ex post perspective—such as the penalty, just compensation, and forfeiture doctrines—were created by equity in the early common law to police against abuses of the then prevalent penal bond. However, when the industrial revolution pushed courts to accommodate fully executory agreements, and parties abandoned the use of penal bonds, the exclusively ex ante focus of the new contract law that emerged rendered the ex post doctrines obsolete. While initially intended to do justice between the parties, if used today these doctrines perversely and unjustly deny parties contractual rights that were bargained for in a free and fair agreement. Yet judges continue to recognize the ex post doctrines, even as they struggle to reconcile them with respect for the parties’ intent. Although infrequently applied, the ex post doctrines are far from dead letter. The penumbra of uncertainty they cast over contract adjudication continues to undermine contracting parties’ personal sovereignty. The only case for continuing to recognize these equitable interventions, therefore, must turn on whether they serve a new valid purpose. We consider and reject the possible purposes of paternalism and anti-opportunism suggested by contemporary pluralist scholars. In our view, the criteria governing theories of legal interpretation support the interpretation of contract law as exclusively serving personal sovereignty rather than any pluralist interpretation. Under its best interpretation, contract law has no place for the ex post perspective.

This Article will demonstrate that the originalist argument in Carroll is based on an incorrect historical interpretation of the history of the Fourth Amendment. As discussed in greater detail below, the Carroll argument hinges on the allowance of warrantless ship searches by the First Congress (the same Congress that proposed the Fourth Amendment), coupled with a further analytic step of analogizing ship searches to land vehicle searches. This Article will show that warrantless ship searches were considered permissible under the Fourth Amendment because they were confined to federal admiralty jurisdiction at the time of the Founding. In contrast, land searches were treated differently by the First Congress. Thus, as this Article will demonstrate, the originalist argument in Carroll fails.

Finally, this Article will refute the pragmatic policy arguments offered by the Supreme Court to justify the vehicle exception. While policy arguments are not necessarily meritless, they are the weakest justifications in this instance, because the vehicle exception goes against both the text and the original intent of the Fourth Amendment. There are two main arguments in favor of a warrantless search exception: (1) the mobility of vehicles and (2) the substantial government regulation of vehicles. This Article will demonstrate that both rest on faulty premises that do not justify the abrogation of the Fourth Amendment warrant requirement.

Even upon its creation in 1925, the vehicle exception to the Fourth Amendment has always rested on a shaky ground. The time has come for the Supreme Court to overturn this exception and instead apply the text and history of the Fourth Amendment to require warrants for the search of vehicles.