Volume 2024, No. 3

PDF link Table of Contents


PDF link Hamilton’s Copyright and The Election of 1800

Tejas N. Narechania

Copyright is, perhaps surprisingly, a regular fixture of electoral campaigns. Candidates deploy copyright to obscure prior policy statements. Local governments assert copyright over recordings of public meetings to protect incumbents. And campaign committees have used copyright to prevent counter-advertisements, which respond to (by embedding) their adversaries’ ads. Are these examples of illegal copyright infringement or protected political speech?

The Supreme Court has balanced copyright and First Amendment interests by looking both to copyright law’s internal doctrinal limits (e.g., fair use) and to the “historical record.” But, in political contexts, the doctrine is sparing: candidates for public office, weighing the pressures of campaigning against the costs of copyright litigation, tend to prefer self-censorship— undermining protections for political speech.

The historical record may help. This Article highlights an episode— overlooked until now—that sheds new light on the speech-copyright equilibrium. Drawing on a mix of primary and secondary sources outside the legal literature, it tells the story of Alexander Hamilton’s secret, copyrighted pamphlet aimed at unseating John Adams from the top of the Federalist Party—secret, that is, until it leaked to Hamilton’s political opposition. Viewed in its entirety, this episode may reflect a shared—shared by both Hamilton and his adversaries—if contested understanding that favors a full and fair discussion of such matters of public importance, even if copyright’s rules might otherwise restrain such speech. This political precedent may thus have implications for the contemporary controversies in which candidates deploy copyright (and related speech restraints) to squelch public scrutiny over their prior statements regarding, say, abortion rights. And so this Article concludes by describing how the public governance interests in such political speech should trump copyright’s restraints.

PDF link The Submerged Admnistrative State

Gabriel Scheffler & Daniel E. Walters

The United States government is experiencing a reputation crisis: after decades of declining public trust, many Americans have lost confidence in the government’s capacity to perform its basic functions. While various explanations have been offered for this worrying trend, these existing accounts overlook a key factor: people are unfamiliar with the institutions that actually do most of the governing—administrative agencies—and they devalue what they cannot easily observe. The “submerged” nature of the administrative state is, we argue, a central reason for declining trust in government.

This Article shows that the administrative state is systematically submerged in two ways. First, administrative agencies are constrained in their communications with the public: it is difficult for them to publicize their own accomplishments and successes due to a range of legal, political, and resource constraints. Second, agency actions are frequently opaque: it is difficult for the American public to perceive, comprehend, or trace policy outputs back to government action. Together, these factors have the effect of making Americans less aware of the work that the administrative state does, thereby undermining the public’s trust in government.

The Article then argues that it is time to unsubmerge the administrative state. Doing so has the potential to rebuild trust in government by bringing administrators and their expertise to light, revealing the extent of benefits provided by agencies, and bolstering public participation in agency processes. This approach comes with potential perils, including the dangers of propaganda, skewed agency priorities, and backlash, yet these dangers are outweighed by the necessity of bringing the administrative state to light.

PDF link Killing Stays

Madalyn K. Wasilczuk

For decades, the Supreme Court has been suspicious of litigation under warrant in capital cases. The Court has described last-minute litigation as manipulative and dilatory, a result of gamesmanship by people on death row and their lawyers. With the confirmation of Justice Brett Kavanaugh in 2018, the Court began to extinguish the opportunity to assert death row detainees’ rights against unlawful death sentences and executions, reaching a crescendo of stay vacaturs and denials during the Trump executions. Despite this sea change in capital stay jurisprudence and practice, few scholars have focused on the capital stay as a vital component of capital jurisprudence or recognized the effects of upending the regular practice of litigation under warrant.

This Article clarifies the importance of the capital stay to the adjudication of death row detainees’ rights and argues that the Court’s hostility to the capital stay has four principal effects: First, the Court’s evisceration of the capital stay moots the substantive rights of those facing execution. Second, it undermines the role of the federal courts to protect the rights of Black, disabled, and other disfavored litigants. Third, it warps the usual jurisprudential development of death penalty law by eliminating merits rulings and breaking new ground on the shadow docket. Finally, it instantiates the Court’s refusal to be bound by law or facts, thereby subverting the rule of the law. The capital stay requires additional theoretical development. This Article lays the foundation for that work.

PDF link “With Intent to Destroy, in Whole or in Part”: Genocide, Ethnic Cleansing, and a Lost History

Alexander K.A. Greenawalt

Even though international law no longer attaches much formal importance to the question of whether or not a particular mass atrocity amounts to the crime of genocide, disputes about genocide continue to command outsized importance as a question of historical memory and as a source of political conflict. While the law itself is not entirely to blame, international courts have exacerbated the problem by providing unclear and even arbitrary guidance on the interpretation and application of the crime of genocide, unwittingly playing into the hands of atrocity deniers who are happy to focus the conversation on contested legal nuances rather than irrefutable facts.

In particular, a perennial source of conflict—from Turkey, to Bosnia, to Sudan, and Myanmar, among other places—has focused on the question of so-called ethnic cleansing. Do such acts reflect the requisite genocidal “intent to destroy, in whole or in part, a national, ethnical racial, or religious group, as such” when the overarching intent appears to be the displacement rather than the physical annihilation of a targeted group? The jurisprudence of the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia have provided especially mixed signals on this question. The cases have made determinations of genocide only with respect to the 1995 Srebrenica massacre, but not with respect to other mass killings which collectively claimed even more lives in pursuit of the plan to carve an ethnically Serb state out of Bosnian territory.

Drawing upon original research into the travaux préparatoires of the 1948 Genocide Convention, this Article advances several claims that complicate the standard account according to which genocide must entail a purpose to physically destroy at least a substantial part of a protected group. The core of the Article closely explores the words “intent,” “destroy,” and “in part,” showing how international authorities have settled on a received and largely uninterrogated wisdom regarding the meaning of these terms, one which is supported neither by the drafting history of the Genocide Convention, nor even by the actual results of the judicial decisions that purport to apply these requirements. In addition, this Article defends an alternate interpretation according to which the genocide label extends to acts of mass killing whose ultimate goal is displacement rather than comprehensive extermination.

PDF link Hot Apps: Recalibrating IP to Address Online Software

David Stein

Intellectual property (IP) and consumer software have fallen out of sync. Software IP rules developed during an era of installable software, which has high upfront costs and is easy to copy. IP rights helped companies recoup their upfront costs by granting them the exclusive right to make and sell copies. Limits on IP protection for software were designed to foster competition by letting market entrants copy the interfaces of incumbent products. Online, the economics of the software industry are inverted. Online software has low upfront costs and is not susceptible to copying, rendering existing IP protections unnecessary. Meanwhile, limitations designed to promote competition now allow incumbents to raise barriers to entry by copying from newcomers. In sum, today’s IP regime exacerbates concentration and depresses innovation in markets for online consumer services.

Given the growing role online services play in data collection, commerce, and communication, these broken incentives have far-reaching effects. Fixing these incentives is urgent. Policymakers and commentators blame online concentration on structural market failures and turn to antitrust remedies for solutions. But this pervasive narrative focuses on a symptom, not the cause. This Article argues that tech concentration is an artifact of IP law’s failure to keep up with technology.

This Article proposes a program for IP reform: replace the trade-motivated aspects of software IP law with expanded trade regulation. Drawing on common law misappropriation as a model, it sketches one politically pragmatic implementation approach.

Beyond this Article’s focus on software innovation, it serves as a case study describing the mechanics behind a law falling out of sync with technology. As such, it may help policymakers avoid similar legislative and regulatory pitfalls as they regulate emerging and fast-changing technologies.

PDF link Off-Label Preemption

David A. Simon

A significant body of scholarship examines when federal law regulating drugs and devices preempts state law claims against manufacturers for defective products based on uses approved by the Food and Drug Administration (FDA)—what are called on-label uses. Yet scholars have paid little attention to how preemption applies to claims against manufacturers that promote uses FDA has not approved—what are called off-label uses. The omission is significant. Off-label use is widespread (comprising a significant portion of all uses) and risky (frequently unsupported by scientific evidence). In private lawsuits against manufacturers that promote off-label uses, preemption is often the linchpin issue. Courts analyzing whether federal law preempts state law claims based on off-label promotion have reached wildly inconsistent results. Despite the issue’s importance, few scholars have systematically evaluated the off-label preemption landscape or provided a coherent rationale for how courts should apply preemption doctrine to state law claims based on off-label promotion.

This Article does both by developing an approval theory of off-label preemption that anchors doctrinal analysis to FDA’s central function: ex ante risk evaluation of approved uses of drugs and devices. Emphasizing FDA ex ante review of use-based risks delivers three significant payoffs. First, it provides an organizing principle that explains the Supreme Court’s seemingly fractured preemption jurisprudence. Second, the theory unifies conflicting approaches to preemption of state law claims based on off-label promotion. Finally, it offers a normative reason for why preemption should not apply to most state law claims based on off-label promotion of any drug or device.