Table of Contents
Articles
Getting Help
Kathryne M. Young
This Article investigates help-seeking from the perspective of ordinary people. Its findings can better equip lawyers, justice innovators, and program designers to create novel access to justice solutions from the perspective of everyday people. Leveraging data from a nationally representative survey, this Article analyzes over 47,000 quantitative responses and 100,000 words of open-ended answers, unearthing powerful findings about how Americans think about getting help when they face a complex, early-stage problem with legal implications.
By focusing on help-seeking for early-stage problems, this Article shifts the conversation from the existence of legal needs to laying the empirical groundwork for interventions that center the perspective of ordinary Americans. Doing so will better equip us to forge tools that can stop the corrosive effects of unsolved civil legal problems.
New Brandeis’s New Battleground
Jared M. Stehle
The neo-Brandeisian movement swept through antitrust like wildfire, hurtling its adherents into prominent Biden Administration posts. But it threatens to be a flash in the pan, for the looming election makes all those new policy priorities uncertain: Whoever wins, it will not be Joe Biden, and the neo-Brandeisians’ fate is up in the air. In short, the movement could use some fresh ideas. One place to look might be the last big antitrust revolution, when the Chicago school executed a clean law-and-economics sweep of the field in the 1970s and 1980s.
The Chicagoans understood the importance of antitrust standing—and today’s antitrust reformers should too. This obscure procedural backwater determines who benefits from the antitrust laws, how much antitrust enforcement we get, and who controls antitrust litigation. And the Chicago experience goes to show that it is neither immutable nor apolitical. To the contrary: Small, manageable changes in antitrust standing law had huge implications for the law of competition. Reversing course from the Chicago status quo (and even pushing further) could give neo-Brandeisian antitrust a similar boost.
Policy bona fides aside, antitrust standing is politically and doctrinally poised for its time in the spotlight. A broader view of antitrust standing enjoys bipartisan support, even from populist figures on the right, and would thrive in today’s text-centric legal environment. Best of all, any changes would endure across administrations—no need to stress about the election. Antitrust standing is the path forward.
Algorithmic Judicial Ethics
Keith Swisher
Judges have a brand-new bag—an algorithmic accessory in criminal adjudication. It scores criminal defendants, aiming to inform judges which defendants are likely reoffenders or flight risks and which ones are not. The downsides, however, include that the algorithms score defendants primarily on the basis of other defendants’ (mis)conduct and that certain races effectively score lower than other races. This article explores these algorithmic developments in criminal courts across the country and makes four contributions: (1) a survey and preliminary application of judicial ethics to this development; (2) a preliminary moral argument, informed by related judicial ethics and legal standards, suggesting that judges should use these algorithmic tools only to help, not hurt, individual defendants; (3) an approach to judicial decision-making in the shadow of structural injustice that promises to deal less algorithmic damage to defendants and their family members; and (4) a technical constraint on algorithmic design that ensures equal (indeed, better than equal) protection on the basis of race.
Comments
Recognizing Partial AI Authorship: Toward a More Permissive Copyright Regime
Ryan E. Gooding
Under existing copyright law, photographers own the rights to every image they take instantly when the shutter clicks. That copyright survives if a photographer alters an image using software like Adobe Photoshop. But how might a photographer’s copyright be complicated by the use of generative AI in altering their own source imagery? In March 2023, the U.S. Copyright Office set out to answer this question by issuing its first formal guidance on works containing AI-generated material. In it, the Copyright Office attempted to delineate clear boundaries governing the copyrightability of partially AI-generated works. But it fell woefully short. By relying too heavily on existing doctrines and straining core copyright principles, the Copyright Office’s March 2023 guidance extends insufficient protection to partially AI-generated works and threatens to stifle creative expression just as generative AI prompts a bold reimagining of authorship.
This Comment engages with the robust and ongoing discussion around generative AI and copyright, scrutinizing in particular the U.S. Copyright Office’s current approach to partially AI-generated pictorial, graphic, and sculptural works. By leaning too heavily on existing derivative works and compilation doctrines and utilizing outdated, poorly defined terminology, the U.S. Copyright Office’s March 2023 guidance sows more confusion than clarity and threatens to undermine core copyright principles. In lieu of continued reliance upon its faulty guidance, this Comment suggests that the Copyright Office broaden its longstanding human authorship requirement to embrace hybrid human-AI authorship.
The Stars Are (Re)Aligning: Extending Title IX to NCAA Conference Realignment in the NIL Era
Nathan Loayza
This Comment explores the effects of NCAA conference realignment on student athletes in the NIL era and emphasizes that these effects should be considered when implementing a revenue sharing system like that proposed in the House settlement. This Comment argues that by exacerbating sex-based disparities baked into the current NIL regime and likely to be perpetuated by future policies, universities’ conference realignment decisions constitute disparate impact discrimination under Title IX. These decisions disproportionately impact female athletes by exacerbating NIL earning disparities and neglecting to consider travel-based costs for female athletes. Universities do not engage in conference realignment out of educational necessity, but rather to maximize profits generated from contracts for television broadcast rights. To ameliorate the gendered impacts of conference realignment, this Comment urges the NCAA to address the underlying gender disparities in the NIL regime. In doing so, this Comment analyzes the proposed House settlement and recommends that the House settlement confront looming Title IX problems by creating a revenue sharing system for university-facilitated NIL and athletic revenue based on Title IX’s proportionate equality standard.
Tortious Standard, Torturous Results: Improving the Approach Toward Contributory Conduct Under Wisconsin’s Crime Victim Compensation Statute
Emmerson A. Mirus
This Comment argues that the CVC statute’s “substantially contributed” standard must be changed and offers three improved alternatives. The first proposed approach increases the State’s burden of proof as to the contributory conduct limitation; it would oblige the State to prove that a victim substantially contributed to their injury or death beyond a reasonable doubt. The second proposed approach resembles Wisconsin’s contributory negligence statute. Denying a CVC claim under this approach would require a finding that the victim’s contributory conduct was a greater cause of their injury or death than the perpetrator’s criminal conduct. The third proposed approach adopts an adapted version of the first three public policy factors used to determine the scope of liability in negligence cases.
This Comment ultimately advocates for the third, or “public policy factors,” approach. The “public policy factors” approach is optimal because it entails minimal procedural strain, is legally robust, and recaptures the legislative intent of the CVC statute. In essence, this Comment encourages an approach toward contributory conduct that increases victims’ access to the funds they need and deserve.