This Article argues that copyright has a particular set of policy concerns related to the dissemination of creative works for the public’s consumption, enjoyment, and personal use. In particular, four interrelated goals are reflected to varying degrees in copyright’s many dissemination-regulating institutions: (1) facilitating exchanges in transaction cost-heavy contexts, (2) enabling more efficient and expansive public access to existing creative works, (3) reducing barriers to entry for innovative forms of distribution in concentrated markets, and (4) furthering distributive justice priorities.
Identifying these four goals and examining how they permeate the copyright system is a necessary first step in remedying many of the problems currently faced by copyright’s law of dissemination, particularly its increasingly outmoded, piecemeal, and inconsistent regulatory design. By diagnosing these challenges and their potential roots, this Article provides grounding for assessing how copyright law can be reimagined to fit a world of almost entirely digital dissemination.

Conflicts over home rule represent a clash of foundational principles: between local autonomy and the general welfare of the community. Courts and scholars reach for proportionality in other similar constitutional traditions concerning a clash of principles. Proportionality requires that one principle give way, but only as necessary to accomplish the important interest that justifies giving priority to one of the principles. In the state–local context, a proportionality analysis would minimize hyperpreemption because state interests are typically too slight in most cases and the state actions too sweeping. Yet targeted preemption of local zoning authority to address the housing crisis probably would pass muster. Using California as an example, we examine recent California cases that suggest California law is trending toward proportionality review and argue that this trend should become the rule in every state.

Commentators have complained about the government-speech doctrine for years. They have been especially critical of the Court’s use of the doctrine, which appears unnecessary at times and inconsistent or even unprincipled at others. And they have offered a range of suggested reforms meant to steady the ship, such as the adoption of certain transparency requirements for government speech. This Article offers the deepest, most sweeping critique yet of the government-speech doctrine: the doctrine cannot be saved. It is intrinsically unconstitutional, and it should be eradicated in its entirety. More specifically, this Article argues that the government-speech doctrine is anchored in a conceptual mistake: it is not that the government can sidestep its burdens under the First Amendment whenever it communicates, but rather that the benefits of the First Amendment do not extend to government communication.

Property law focuses predominantly on spatial conflicts of interest between neighbors but neglects temporal conflicts between generations. This lack of attention to the temporal dimension leads to a troubling mismatch in property law: while property rights last forever, the corresponding duties that require property holders to respect the interests of others are remarkably short lived. The result is that property law currently does not adequately protect the rights of future generations. In this Article, we offer a blueprint for correcting this anomaly. We advocate a change in the current conception of property and propose that property law focus more on intertemporal conflicts of interest. This new conceptualization provides greater consideration to intertemporal externalities and the problems of overconsumption and overuse by current property holders, so that property law can better protect the rights of future generations. This type of protection is needed now more than ever, with the growing recognition that the climate crisis represents a catastrophic failure on our part to respect the interests of those who will come after us. We discuss the implementation of our proposal, demonstrate its benefits, and explain its origins within the existing structure of property law.

Federal and state laws and policies implemented in support of charter school expansion over the three decades of charter school history provide little protection against unchecked expansion of the Hillsdale agenda. This leaves our country in the position of publicly funding a political mission to overturn the public education system. Although charter schools are subject to the same laws governing all public schools, there is little oversight and substantial evidence of violations ranging from discrimination against students in protected classes to outright fraud. Existing recommendations to limit the number of charter schools or to hold charter schools accountable are inadequate or infeasible. Our proposal is to activate private incentives to litigate as a means of holding charter schools accountable to serving the public interest. We identify three areas in which litigation may provide an enforcement incentive for compliance with federal laws: employment discrimination liability under Title VII, liability of boards of directors of charter schools, and liability of third-party affiliates of charter schools.

This Article’s main thesis is that survival homicide should be treated under a mitigated criminal responsibility model instead of existing sentencing mitigation models. Its argument is twofold: First, it posits that domestic abuse survivors’ criminal responsibility should be relative and shared with states’ responsibility for failing to take adequate measures to prevent domestic abuse and support survivors. Second, it argues that survivors’ culpability is lower when they kill abusive family members out of fear and survival motives and therefore their criminal responsibility should be mitigated. To reflect survivors’ comparative responsibility, this Article proposes that state legislatures pass a designated homicide offense, titled “survival homicide,” for prosecuting domestic abuse survivors. Survival homicide would be graded lower than manslaughter, carry a non-carceral penalty, and not trigger any collateral consequences.