Mar 3, 2026 David FagundesIntellectual Property Law
Abe Lincoln was fond of relating a story about a lawyer who tried to argue that a calf had five legs by calling its tail a leg. The folksy Lincolnian upshot was that this lawyer not only lost, but also looked foolish in the process, because simply calling a tail a leg does not make it so.
Mark Lemley’s Authoring While Dead spins a copyright version of Abe’s old yarn. Songwriters have recently begun listing as co-authors of their musical works artists who cannot be regarded as “authors” under any remotely plausible reading of the Copyright Act. Lemley’s vivid article explores the origins and rapid ascension of this industry practice. He explains with welcome drollery why this is the copyright equivalent of calling a tail a leg. He further offers a caution why what may seem like mere formalism, in fact, poses serious problems for copyright law. Continue reading "Inspiration versus Authorship"
Mar 2, 2026 Mathilde CohenInternational & Comparative Law
Julie C. Suk, The Shadow Court: Rescuing Democracy from the Supreme Court (2026).
Julie Suk’s forthcoming The Shadow Court: Rescuing Democracy from the Supreme Court is an invigorating intervention in the long-standing question of how to align constitutional lawmaking in the United States with democratic ideals. Suk’s book moves beyond familiar critiques of the Supreme Court’s judicial supremacy to propose a bold, institutionally imaginative solution: the Shadow Court. What makes this proposal particularly compelling is its comparative lens, drawing on constitutional designs across the world to offer concrete inspiration for reform. In an era when the Supreme Court increasingly dominates the constitutional landscape, Suk invites readers to imagine what constitutional law might look like if citizens, legislators, and other institutions could exercise more democratic influence over its creation.
At the heart of Suk’s project is the conviction that “[i]n a healthy and legitimate constitutional democracy, ‘We the People’ should have supremacy and control over constitutional lawmaking.” The book diagnoses a democratic crisis rooted in the Supreme Court’s concentration of power, much of it facilitated by the Court itself. Suk observes that the Court’s eighteenth-century design, as an Article III judiciary primarily intended for dispute resolution, is ill-suited to serve as the principal constitutional-lawmaker for a twenty-first-century, demographically complex nation. Against this backdrop, The Shadow Court pivots toward institutional innovation rather than incremental reform: it sketches out a new body capable of exercising real influence without formal coercive power, borrowing lessons from shadow cabinets in parliamentary democracies and constitutional courts abroad. Continue reading "From Shadow Cabinets to Shadow Justices: Rethinking Constitutional Lawmaking"
