Jun 11, 2025 Christopher J. BuccafuscoIntellectual Property Law
Benjamin Sobel,
Copyright Accelerationism, 100
Chi.-Kent L. Rev. __ (forthcoming 2025), available at
SSRN (Dec. 8, 2023).
Benjamin Sobel has written a provocative new essay about copyright law’s role in the development of generative artificial intelligence, and I think all IP scholars should read it. His essay, Copyright Accelerationism, is the kind of creative scholarship that our field needs more of. It is being published in the Chicago-Kent Law Review’s “AI Disrupting Law” symposium issue.
As all readers will know, copyright law may stand in the way of further development of generative AI, because AI models are trained on millions (or billions?) of unlicensed copyrighted works. Authors and artists have sued the major AI platforms, and if those lawsuits are successful, they could dramatically hinder AI creation. Continue reading "Copyright Maximalism for the Public Good?"
Jun 10, 2025 Sarah WaldeckTrusts & Estates
In The Curious Case of the James Brown Estate, Lee-ford Tritt explores how certain provisions of the Copyright Act of 1976 can upend an artist’s estate plan. Professor Tritt makes a persuasive case for legal reform and documents a messy disconnect between the fields of copyright law and estates law. This disconnect is particularly unfortunate because the havoc-wreaking provisions of the Copyright Act were enacted to help ensure that artists are fairly compensated for their creations. Congress could not have intended a loss of testamentary freedom—and in some cases, prolonged and expensive estate litigation—to be the price artists pay for this protection.
Professor Tritt writes that many copyright experts are unaware of relevant estate planning techniques, and that many estates experts are unaware of the termination rights provided in the Copyright Act. (P. 778.) Prior to reading Professor Tritt’s article, I fell into the second category. The same may be true of some of the readers of this review, so let’s start with the Copyright Act of 1976. Continue reading "The Conflict Between Copyright Law and Donative Freedom"
Jun 9, 2025 Emma CaveHealth Law
Dr Rageshri Dhairyawan calls on health professionals to improve their capacity to listen to patients. Published on the front page of the Lancet in February 2025, NHS consultant and researcher Dhairyawan’s essay ‘Reflect, Collaborate and Listen’ draws on some of the key ideas set out in her book: Unheard: the Medical Practice of Silencing (2024).
I grew up in a small village in England, which boasts its own surgery thanks to my father and his practice. There was a strong pastoral element to his and his team’s clinical roles. My childhood recollection of the waiting room was of people chatting and laughing, leaving me wondering if there was anything the matter with them at all. Sometimes, patients would come to the house and seek advice in our front room. Once or twice, they even brought poorly animals. Sometimes he’d receive a phone call and rush out to a remote farm because he’d likely arrive before the ambulance. By listening to his patients and building relationships with them and their families over time, he gained trust and respect, and was, in turn, listened to. Continue reading "Listening to Patients"
Jun 6, 2025 Naomi R. CahnFamily Law
Shanta Trivedi,
The Hidden Pain of Family Policing, available at
SSRN. (February 6, 2024).
In one of my first jobs after law school, I worked in a legal services office, representing parents who had been accused of abuse and neglect. Throughout my time, I witnessed their struggle to navigate the complexities of legal proceedings, the inability of the public welfare system to provide the requisite support to the entire family, the pain that my clients experienced in losing their children, and the overall trauma inflicted on parents by a system that claimed to protect their children.
When I read Shanta Trivedi’s The Hidden Pain of Family Policing, I found it to be a powerful intervention in ongoing conversations about, and critiques of, family regulation, justice, and systemic reform precisely because of the article’s focus on parents. Others have argued that, as currently structured, the child welfare system (or what is now frequently labelled the “family policing system”) functions less as a protector of children and more as a carceral technique for surveillance and separation of marginalized families. Trivedi observes that the system relies on an overly simplistic demonization of parents. She calls for a radical rethinking of this system to change attitudes towards parents, emphasizing community-based support, the importance of meeting basic material needs for families, and the adoption of alternative perspectives, including transformative justice and abolition. (P. 51.) Trivedi achieves the article’s goal to “comprehensively examine the wide-ranging effects that family policing intervention can have” by examining “the behavioral, emotional, mental, physical, and social health of parents.” (P. 7.) Continue reading "Harm to Parents"
Jun 5, 2025 Maneesha DeckhaEquality
Although still perched on the periphery, scholarship asking how the law can remedy human harms against animals and other nonhuman life is proliferating. A foundational question is how legal systems can embed equality and justice as values that would apply across species and not simply among humans. A corollary is how to influence more humans to support a legal system that regards animals as beings or entities whose interests matter alongside humans’.
When fashioning dramatic reform like this, we may be tempted to focus on the present as we hope for a much less anthropocentric future. But it also helps to look to the past. Jesse Arsenault and Rosemary-Claire Collard’s Crimes Against Reproduction: Domesticating Life in the Animal Trials is instructive in this regard. It helps readers understand how the earliest instances of European human-animal legal regulation centuries ago can shed light today on the need to see the legal treatment of animals and marginalized humans as entwined, and anthropocentrism as an all-species gendered equality problem. Continue reading "Learning from the Animal Trials in the Anthropocene"
Jun 4, 2025 Leonid SirotaConstitutional Law
Preston Jordan Lim
, The Great Depression and Canada’s Major Originalist Decade, __
Osgoode Hall L.J. __ (forthcoming). available at
SSRN. (November 22, 2024).
If, as Adam Dodek once put it, originalism was long a “dirty word” in Canadian constitutional law, one reason for that was its perceived foreignness. Another was politics. As Colin Feasby has observed, for the judges and academics of the formative period after the enactment of the Canadian Charter of Rights and Freedoms in 1982, originalism was “a tool of conservative United States legal thinkers.” Preston Jordan Lim shows that they were quite wrong—and ignorant of their own history. Long before it was a gleam in Paul Brest’s eye, originalism was the method by which Great Depression-era Canadian scholars hoped to take their constitution back from the courts—or, more precisely, from the Judicial Committee of the Privy Council (effectively the British Empire’s supreme court, staffed mostly by the United Kingdom’s most senior judges), then the court of last resort for Canada.
Lim shows that “originalism constituted the primary theory of constitutional interpretation through which legal reformers” argued about the interpretation of what today is known as the Constitution Act, 1867—the text that contains most of the Canadian constitution’s key structural provisions. Admittedly, they did not have an especially clear theory of originalism. But it was their practice just the same. And one hardly needs to have parsed the interpretation-construction distinction or pondered whether there is something that interpretation just is to be an originalist—as the development of originalism in American law itself shows. Continue reading "Originalism, Eh?"
Jun 3, 2025 Allan ErbsenCourts Law
Civil Protection Orders (CPOs) empower targets of domestic violence to enlist the state as an ally. Streamlined procedures enable plaintiffs to avert abuse that public institutions might otherwise be unable to address. In contrast to criminal remedies, civil remedies focus on protecting victims rather than punishing abusers, rely on robed magistrates rather than armed officers, and require proof by a preponderance of the evidence rather than beyond a reasonable doubt. Despite creating only a parchment barrier, CPOs often have sufficient gravitas to deter abusers. When deterrence fails, CPOs facilitate arrest and prosecution.
Inadequate public knowledge about CPOs blunts their utility. Virtually all victims of domestic violence know that they can dial 911. Fewer know that they can apply for a CPO. Reformers seeking to protect victims while reducing dependence on the criminal justice system have therefore considered how to expand awareness of civil remedies.
Lisa Martin’s The Importance of Civil Pathways to Protection Orders provides valuable insight into the underuse of CPOs. The article reports the results of an empirical study reviewing nearly every CPO application filed in South Carolina’s family courts in 2019. Martin analyzed more than 3,400 files from forty-five of the state’s forty-six counties, coding for more than forty variables. Continue reading "Expanding Access to Civil Remedies for Domestic Violence"
Jun 2, 2025 Jodi ShortAdministrative Law
Julie E. Cohen,
Oligarchy, State, and Cryptopia, available at
SSRN. (March 10, 2025).
In Oligarchy, State, and Cryptopia, Julie Cohen lays the groundwork for re-theorizing the administrative state in the age of Trump II, DOGE (otherwise known as the Department of Government Efficiency), and their unparalleled assault on the institutions of government. Before now, generations of deregulatory politics and rhetoric have tended paradoxically to produce more rules rather than less, and they have decidedly not produced any radical restructuring of government regulatory institutions. The settled explanation from scholarship in a variety of fields is that while businesses often spout the rhetoric of deregulation, they actually want—perhaps need—regulation for reasons including competition control, market making, and firm survival and stability. The extensive and unprecedented dismantling of government institutions spearheaded by DOGE radically unsettles those understandings, which begs questions about why this time is different.
Cohen’s article begins to address those questions and, more broadly, sets the terms for future theorizing about administrative law and regulation in a cogent, meticulous, and frankly chilling account of the tech oligarchy and its relationship to, and ambitions for, state power. Cohen starts from the premise that existing theories of administrative law and regulation give too little attention to oligarchy as a phenomenon that shapes the use of state power and regulatory authority in ways that go beyond the familiar industry capture story. Based on influential research in political science, she defines oligarchy as “a particular form of concentrated power based on the accumulation of extreme material wealth and the use of such wealth to obtain systemic, inescapable advantage within a political system or community” (P. 6). Cohen argues that the principal difference between tech oligarchs and capitalist oligarchs of yore is that the former are becoming increasingly unwilling to submit to a rule-of-law system to advance and protect their dominance. Instead, tech oligarchs increasingly seek to move towards a system in which they displace the state and exercise coercive power directly—including by individual fiat. Continue reading "Re-theorizing Administrative Law in the Great Unsettling"
May 30, 2025 Jennifer ChaconCriminal Law
How is criminal law distinct from civil law? Standard criminal law textbook answers focus on the unique role of the state in criminal law. Violations of the criminal law are presented as actions that harm the state. The state is said to maintain a monopoly on punitive power and can deploy it in unique ways to redress these harms. In a democracy, the exercise of punitive state power purportedly channels the will of the people. These propositions are offered as justifications for the imposition of punitive sanctions that have no identical counterparts in the world of civil law, including imprisonment and even death.
Many of these fundamental propositions do not entirely hold up under close scrutiny. The state’s monopoly on punitive power has been heavily outsourced to private actors. The flaws of political and representative processes in the U.S. (and within U.S. states) mean that criminal law is an imperfect expression of the will of the people, with the result that criminal law often both mirrors and replicates the discriminatory impulses of political (and racial) majorities. Immigration detention and civil commitment both undercut the truism that incarceration is unique to the criminal context. But what of criminal prosecution? Should we understand it as the unique province of the government? Standard accounts, and decades of case law, tell us that the answer is yes. But in her immensely readable and engaging article The Past and Persistence of Private Prosecution, Emma Kaufman provides a different, and very intriguing, answer to that question. Continue reading "No Monopoly"
May 29, 2025 Hila KerenContracts
Rebecca Stone,
Putting Freedom of Contract in its Place, 16
J. Legal Analysis 94, available at
Oxford Academic (July 30, 2024).
A few years ago, Jody Kraus and Robert Scott argued that vindicating the sovereignty of parties who make contracts under free and fair conditions is “the most morally compelling explanation” for contract law’s allegiance to the parties’ ex ante intentions. They further claimed that judicial interventions on behalf of justice via ex post doctrines are thus erroneous and “cannot be justified.” Rebecca Stone refutes both points in her brilliant piece, Putting Freedom of Contract in its Place. She first contests the claim that morality is secured by the procedure of contracting under free and fair conditions. She then turns to disprove the claim that judicial ex post interventions “cannot be justified” by offering a powerful argument for setting limits on parties’ ability to control their relationship. Stone’s article puts freedom of contract in its place by no less than crafting a novel account of contract law—one called “the democratic conception.”
Stone develops the democratic conception of contract law by seeking a deeper justification for our lasting commitment to robust freedom of contract. To her, the mere vindication of sovereignty cannot suffice. Rather, freedom of contract is essential because when parties enter a contractual relationship, they face an inevitable normative uncertainty regarding what justice between them would require when challenges arise. Parties, therefore, have the freedom to use their agreement for the purpose of settling this normative uncertainty. Contract law, Stone argues, should respect their usage of this freedom “when and only when” it yielded mechanisms that reflect “plausible, good faith attempts to settle that uncertainty.” Continue reading "Contract Law’s Quest for Justice"
