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 Jack Beermann
When the sun sets in New York City, it rises in Tokyo. Okay, maybe not exactly, but you get the idea: setting somewhere, rising somewhere else. Now substitute Chevron for N.Y.C. and the Major Questions Doctrine for Tokyo. For the past forty years, administrative law scholars have been arguing over Chevron, and now that the sun has set on that doctrine, it’s time to turn our attention to the new rising sun, the Major Questions Doctrine (“MQD”). The sudden emergence and prominence of the MQD in administrative law has led scholars to ask just what kind of legal doctrine the MQD is. If the voluminous scholarship on Chevron is any indication, there will be much, much more to come.
Sometimes, to figure out what something is, you first have to figure out what it isn’t. That is what Professor Anita Krishnakumar has helped us do with her excellent article What the New Major Questions Doctrine is Not. In this article, Professor Krishnakumar persuasively argues that neither scholars nor jurists have provided convincing characterizations of the doctrine. After illustrating how all attempts thus far to categorize the MQD have failed, she offers her own tentative characterization, recognizing that a definitive answer is impossible because it’s relatively early in the life of the current MQD and because the Court’s opinions invoking the MQD are somewhat inconsistent and unclear, making a definitive characterization impossible. Remind anyone of Chevron scholarship? Continue reading "What the Hell is the Major Questions Doctrine?"
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 Test User
THIS IS A TEST CITATION.
THIS IS A TEST POST.
The post BLUESKY TEST POST. appeared first on Jotwell: Zeta-Section. Continue reading "BLUESKY TEST POST."
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"
