Volume 2018, No. 4

PDF link Table of Contents


PDF link I Am the Captain Now: Resisting Piracy and Contortion in the Copyright Marketplace

by Maria A. Pallante

It is a true honor to pay homage to a congressman who shaped the copyright law that I have studied and practiced all of my professional life. Mr. Kastenmeier was the most important lawmaker of the twentieth century in matters of copyright law; he was both a hands-on expert and genuine supporter. He saw the United States as “the world’s leader in creativity,”1 and he described the output of intellectual property as “one of our most cherished commodities.”2 As Chairman of the House Judiciary Committee, he presided over the careful negotiation and statutory overhaul that became the 1976 Copyright Act.3 Remarkably, this signature legislation remains largely in effect today more than forty  years later.

PDF link The Intersection Between Young Adult Sentencing and Mass Incarceration

by Josh Gupta-Kagan

This Article connects two growing categories of academic literature and policy reform: arguments for treating young adults in the criminal justice system less severely than older adults because of evidence showing brain development and maturation continue until the mid-twenties; and arguments calling for reducing mass incarceration and identifying various mechanisms to do so. These categories overlap, but research has not previously built in-depth connections between the two.

PDF link Aging in the 21st Century: Using Neuroscience to Assess Competency in Guardianships

by Betsy J. Grey

Whether to remove a person’s decision-making authority in a guardianship proceeding is one of society’s most weighty determinations. As much as we value individual autonomy, we will strip that autonomy when a person is deemed legally “incompetent.” This competency determination has traditionally relied, almost exclusively, on clinical assessments of cognitive and functional abilities, based mainly on observed behavior. But developments in neuroscience—and particularly the advent of physiological biomarkers of Alzheimer’s disease—require us to think about a broader approach to competency determinations. Coupled with behavioral data, information from diagnostic biomarkers can add significant value to the competency determination. This Article discusses the potential benefits and risks of use of this evidence in the competency determination, concluding that we need to anticipate its introduction into the equation, but with care to avoid overvaluing the evidence.

PDF link The Merger Incipiency Doctrine and the Importance of “Redundant” Competitors

by Peter C. Carstensen & Robert H. Lande

The enforcers and the courts have not implemented the merger incipiency doctrine in the vigorous manner Congress intended. We believe one important reason for this failure is that, until now, the logic underlying this doctrine has never been explained. The purpose of this Article is to demonstrate that markets’ need for “resilient redundancy” explains the incipiency policy. We are writing this Article in the hope that this will cause the enforcers and courts to implement significantly more stringent merger enforcement.