Note
For over two centuries, the United States has been knowingly plagued with innocent people being wrongfully convicted of crimes. As of December 2022, over 3,000 individuals have been exonerated of their wrongful convictions after having lost a combined total of almost 30,000 years of freedom. Part I of this Note will first address the habitually present causes of wrongful convictions. Part II will then highlight the typical issues present within existing wrongful conviction compensation statutes. Part III then proposes that adjudication processes must be streamlined by utilizing the best aspects of both state claims boards and the court system, eligibility requirements must be less restrictive and more inclusive, and awards must be provided to exonerees through more holistic, individualized arrangements.
by Marissa Cohen
Note
The Metropolitan Museum of Art (Met) reproduced a copyrighted photograph by the professional photographer Lawrence Marano on its website without his permission. The District Court for the Southern District of New York decided Marano v. Metropolitan Museum of Art in July 2020, holding that the reproduction of the photo was fair use rather than copyright infringement. Marano is the first case to consider whether a museum’s reproduction of a work in a publication is fair use. Part I of this Case Note provides a background on fair use, categories of fair use cases, and significant cases decided contemporaneously with Marano. Part II outlines Marano’s facts, procedural history, and holdings. Part III argues that the court disputably found the Met’s use transformative, noncommercial, reasonable, and not harmful to Marano’s market. Part III also asserts that Marano is distinguishable from the other historical context cases and considers the impact of Warhol and Google on factors one and two in future cases like Marano.
by Sarah Landry
Note
With increasing frequency, conservative opponents of antidiscrimination laws that prohibit deliberate misgendering use the First Amendment to challenge these laws, arguing that they encroach on a constitutionally protected right to free speech. In particular, the asserted free speech liberty is the right to deliberately misgender others as an expression of an (offensive) viewpoint. The Court’s current approach to free speech claims not only creates a pathway for these claimants, but also arms them with an effective sword, as invocation of the First Amendment’s free speech protections triggers heightened judicial scrutiny. This Note uses the recent case Taking Offense v. State of California to illustrate what happens when the prevailing approaches to free speech jurisprudence and antidiscrimination laws collide.
by Molly Dower
Article
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.
by Jacob Noti-Victor
Article
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.
by Darien Shanske* & David A. Carrillo*
Article
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.
by G. Alex Sinha
Article
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.
by Michal Buchhandler-Raphael
Article
The majority of carceral sentences in the United States include the possibility of discretionary release on parole. Most such sentences, however, are unconstitutionally vague. Their unconstitutionality has gone unnoticed because contemporary scholarship and litigation about vague laws have focused on the U.S. Constitution in lieu of state constitutions. This Article unearths historic state court decisions holding that sentences that end through the discretionary judgment of a parole board are “void for uncertainty.” Although state void for uncertainty doctrines share some similarity with the federal vagueness doctrine, they are far more demanding as applied to criminal punishment. By urging revival of the void for uncertainty doctrine, this Article outlines a novel path for state constitutional litigation and proposes how state legislatures can reform parole statutes to put them on sound constitutional footing.
by Kristen Bell
