Showing papers in "Fordham Law Review in 2014"

The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers in the Delivery of Legal Services

Abstract: Law is an information technology—a code that regulates social life. In our age, the machinery of information technology is growing exponentially in power, not only in hardware, but also in the software capacity of the programs that run on computers. As a result, the legal profession faces a great disruption. Information technology has already had a huge impact on traditional journalism, causing revenues to fall by about a third and employment to decrease by about 17,000 people in the last eight years1 and very substantially decreasing the market value of newspapers. Because law consists of more specialized and personalized information, the disruption is beginning in law after journalism. But, its effects will be as wide ranging. Indeed they may ultimately be greater, because legal information is generally of higher value, being central to the protection of individuals’ lives and property. The disruption has already begun. In discovery, for instance, computationally based services are already replacing the task of document review that lawyers have performed in the past. But computational services are on the cusp of substituting for other legal tasks—from the generation of legal documents to predicting outcomes in litigation. And when machine intelligence becomes as good as lawyers in developing some service or some factor of production that contributes to a service, it does not stop improving. Intelligent machines will become better and better, both in terms of performance and cost. And unlike humans, they can work ceaselessly around the clock, without sleep or caffeine. Such continuous technological acceleration in computational power is the difference between previous technological improvements in legal services and those driven by machine intelligence. This difference makes it the single most important

Federal Enforcement of Police Reform

Abstract: Congress passed 42 U.S.C. § 14141 in an effort to combat police misconduct and incentivize proactive reform in local law enforcement agencies. The statute gives the U.S. Attorney General the power to initiate structural reform litigation against local police departments engaged in a pattern or practice of unconstitutional behavior. While academics initially praised the law’s passage, many have since worried that the Department of Justice (DOJ) has not effectively administered the measure. Little research has analyzed how the DOJ has used its authority to initiate structural police reform. Using a combination of qualitative and quantitative methods, I fill this gap in the available literature by detailing the DOJ’s use of structural police reform over time. I conclude that the DOJ has historically underenforced § 14141, due in part to resource limitations that prevent the agency from aggressively pursuing all reported cases of systemic misconduct. I also show that the DOJ has unevenly enforced § 14141 over time. Changes in leadership and internal policies have influenced the DOJ’s use of structural police reform. These changes affected both the breadth and depth of enforcement. In some cases where systemic police misconduct did appear to exist, a phenomenon I refer to as “political spillover” deterred the DOJ from turning to structural police reform. Based on these findings, I argue that the DOJ must adopt a more transparent internal case selection process that incentivizes proactive reform in local police agencies. And given the resource limitations facing the DOJ in enforcing § 14141, I contend that state and national policymakers should seek alternative routes to increase the number of structural police reform cases. Combined, these changes could ensure that structural police reform lives up to its potential as a transformative tool for combating police wrongdoing.

Protecting the Profession or the Public? Rethinking Unauthorized-Practice Enforcement

Abstract: For one of us, interest in the professional monopoly spans almost four decades. As a Yale law student in the mid-1970s, Rhode became enmeshed in a controversy over unauthorized practice of law (UPL). She was an intern in a New Haven legal aid office that was overwhelmed with routine divorce cases. The office’s strategy was to accept new cases only one day a month, leaving the vast majority of poor people with no lawyer and no decent alternative. For a standard uncontested divorce case, attorneys in private practice charged what would now be $2,000 to $3,000 for completing three forms and attending a hearing that lasted an average of four minutes.1 There were no do-it-yourself kits until the legal aid office prepared one. In response, local bar association officials threatened to file charges of unauthorized practice of law. Under existing precedents, they had a good chance of winning.2 “That ended that,” as far as the legal aid office was concerned. But Rhode was outraged and began work on an empirical study that challenged the bar’s justifications for banning do-ityourself assistance. She has returned to the subject a number of times since, including a 1981 article that surveyed unauthorized-practice enforcement procedures across the fifty states.3 This Article continues that body of work. It provides the first comprehensive overview of enforcement practices since the 1981 article. The following analysis explores a contested doctrine through interviews with chairs of unauthorized-practice committees or other prosecutors and a

The future of big law: Alternative legal service providers to corporate clients

Abstract: The legal profession around the world is undergoing a significant transformation. The turn of the century saw the world’s largest accounting firms offer legal services through different forms of multidisciplinary practice models.1 In 2007, Slater & Gordon became one of the world’s first public law firms.2 In the same year, the United Kingdom enacted the Legal Services Act3 in an effort to modernize the delivery of legal services.4 During this time period, several large national and multinational law firms—so-called Big Law firms (e.g., Brobeck, Heller Erhmann, Dewey & LeBoeuf, Thacher Proffitt, Thelen, Coudert Brothers, and Howrey)— dissolved due to financial and business issues.5 Further, many firms have merged in order to better position themselves for the highly competitive marketplace.6

The Internet of Things: Building Trust and Maximizing Benefits Through Consumer Control

Abstract: The Internet of Things is just one of the fastest growing facets of a world that is becoming more data-intensive. Connecting cars, appliances, and even clothing to the Internet promises to deliver convenience, safety, and – through analysis of the torrent of additional data generated – potential solutions to some of our most intractable problems. But turning on this data flood also creates privacy and security risks for consumers, challenging us to consider how to apply basic privacy principles to the Internet of Things. Each of us in this diverse audience – technologists, lawyers, industry leaders, and other stakeholders – has a role to play in meeting this challenge. And the time to do it is now.

Foreword: The Profession’s Monopoly and Its Core Values

Abstract: The position of the organized bar regarding regulation—the bar’s nomos, as Susan Koniak terms it1—is stated right up front, in the preamble to the American Bar Association’s (ABA) Model Rules of Professional Conduct. The legal profession aspires to be largely self-regulating, but in the American system, it depends on state courts to adopt and enforce the disciplinary rules it constructs.2 Self-regulation ensures the independence of the legal profession from dominance by the legislative and executive branches of government.3 There is a quid pro quo, however; for the bar to retain its privilege of self-regulation, it must adopt regulations that are “in

The NSA in Global Perspective: Surveillance, Human Rights, and International Counterterrorism

Abstract: Revelations that the U.S. National Security Agency (NSA) conducts substantial surveillance abroad1 have reinvigorated debate about the applicability of human rights law to surveillance performed outside a nation’s territory. Recently, scholars have asserted that human rights law, including the International Covenant on Civil and Political Rights (ICCPR),2 either does or should give foreign nationals abroad rights against U.S. surveillance.3 Since the U.S. Supreme Court has generally extended rights against search and seizure under the Fourth Amendment only to U.S. citizens, legal permanent residents, or those physically present in the United States,4 surveillance of non-U.S. persons abroad is typically not problematic under domestic law. The United States, however, may also have obligations under international law. President Obama’s speech and policy directive on privacy in January 2014 proclaiming that “[a]ll persons should be treated with dignity and respect” and have “legitimate privacy interests in the handling of their personal information”5 has intensified the focus on U.S. international obligations.

The Monopoly Myth and Other Tales About the Superiority of Lawyers

Abstract: The U.S. legal profession’s so-called monopoly on the practice of law is under siege.1 The monopoly depends on barriers to entry such as costly legal education, character and fitness inquiries, and other licensing requirements that are under sustained attack.2 These barriers not only limit entry to the profession, but also are used to justify the profession’s claim of technical and moral superiority over nonlawyer providers of legal services. At the same time, the legal profession’s privileged status is also eroding, as laws that prohibit the unauthorized practice of law by nonlawyers are (slowly) being rewritten to permit nonlawyers to provide legal services to individuals in a variety of contexts.3 Individuals are also increasingly turning to other legal information providers so that they can represent themselves both in and out of court. In some ways, the surprise is not that the monopoly is eroding, but rather, that it has taken so long. Calls in the United States to permit nonlawyers to provide more legal services date back more than thirty-five years.4 In many countries, legal services are not provided by a single group of professionals,

Anonymity, the Production of Goods, and Institutional Design

Abstract: In this Article, I demonstrate that anonymity has been misconceived as an aspect of privacy, and that understanding this mistake reveals a powerful and underutilized set of legal tools for facilitating and controlling the production of information and other social “goods” (ranging from uncorrupted votes and campaign donations to tissue samples and funding for biomedical research). There are three core components to this analysis. First, I offer a taxonomic analysis of existing law, revealing that in areas ranging from contract and copyright to criminal law and constitutional law, the production of information and other goods is being targeted by three types of anonymity rules—rules that make anonymity and non-anonymity into rights, conditions of exercising rights, and most surprisingly, triggers that extinguish rights. Second, I propose a theory that makes sense of our law’s uses of these rules, identifying a cohesive set of functions that they perform across three phases in the production of a good: its creation, evaluation, and allocation. Third, I use my taxonomic and theoretical analysis to develop generally applicable lessons for the design of law and policy. Applying these lessons to a set of difficult and pressing questions concerning the production of specific biomedical and democratic goods, I demonstrate that they reveal innovative solutions that balance a wide variety of important and conflicting interests and concerns.

Defining Patent Quality

Abstract: Depending on whom you ask, the state of U.S. patent quality is either dismal or decent, in decline or on the upswing, in need of intervention or best left alone. Absent from the ongoing debate about the quality of U.S. patents, however, is much thoughtful discussion about what constitutes a patent’s "quality" in the first place. What features of a patent make it good in quality, what features make it bad in quality, and how are those features related? Surprisingly, scholars and policymakers have shown little interest in these questions. Yet their answers are critical to the direction of the patent agenda because they dictate how to measure patent quality and, consequently, how to evaluate the success or failure of quality reforms. The broad aim of this Article is to draw attention to the definition of patent quality as an important subject of scholarly inquiry. Its more specific aim is to call for a return to first principles and begin the process of developing a meaning of patent quality. It does so by analyzing the concept using a methodology applied in the business literature of quality management. The implications of this work include a fundamentally different approach to patent quality’s meaning that is essentially the inverse of the conventional way of thinking about the concept. That is, instead of defining a good-quality patent as one that at a minimum satisfies the legal standards of patentability, the legal standards of patentability (among other things) should be adjusted and applied to reflect good patent quality. Following this new approach, I propose a formula for assessing patent quality and identify the most important variable in that formula: the quality "dimensions" along which patent quality rises and falls. Identifying these dimensions is the necessary first step in a process that ultimately aims to shift the focus of reform efforts from the limited goal of increasing the number of legally valid patents toward the broader goal of increasing the number of good-quality patents.

Busy doing nothing: An exploration of the disconnect between gender equity issues faced by large law firms in the United Kingdom and the diversity management initiatives devised to address them

Abstract: There is little doubt that the large law firm has undergone huge transformation in the last three decades. This has been as a consequence of widespread change in practice realities, resulting in changing market dynamics, fiercer competition for clients, and alterations in career paths, where individuals have moved from a largely internal labor market structure to a “boundaryless” model. Further changes have come in the form of deregulation in respect of delivery of key lines of service and a trend toward globalization of legal practice. These changes taken together have meant that large law firms now demand more labor and have had to access sections of the labor market they previously did not. Key among these groups is women, and we have seen a massive rise in the number of women both studying and practicing law. However, this increase in diversity within law firms has not resulted in expected increased inclusion at the senior levels of the profession, where male partners continue to outnumber females by approximately four to one. To combat this issue, law firms have resorted to diversity management to signal their cognizance of the problem and that they are taking action. However, it is clear that these diversity policies have made little impact. This Article assesses why. The Article has three parts: the first reviews the data showing women’s increased participation in the legal sector and assesses why increased

In the Service of Others: From Rose Hill to Lincoln Center

Abstract: School of Law will begin classes at a brand new, state-of-the-art building located adjacent to the Lincoln Center for the Performing Arts. This new building will be the eighth location for Fordham Law School in New York City. From its start at Rose Hill in the Bronx, New York, to its various locations in downtown Manhattan, and finally, to its two locations at Lincoln Center, the law school's education and values have remained constant: legal excellence through public service. This Article examines the law school's rich history in public service through the lives and work of its storied deans, demonstrating how each has lived up to the law school's motto In the service of others and concludes with a look into Fordham Law School's future. The arc of the law school's history has proven Robert F. Kennedy's insightful observation of Fordham Law School that an institution is not merely made of its brick and mortar buildings, but the character and hard work of the people behind it. and scores of other alumni, students, and friends for their invaluable assistance and input in the preparation of this Article. Fordham University School of Law's new building, located adjacent to its previous location at Lincoln Center. Classes will begin at the new building in September 2014. All photographs courtesy of Fordham University School of Law.

Sovereign Bankruptcy: Why Now and Why Not in the IMF

Abstract: As the Eurozone sovereign debt crisis that began in 2009 continues to run its course, leaving massive economic dislocation in its wake, and as NML Capital, Ltd. v. Republic of Argentina makes its way to the U.S. Supreme Court, this Note discusses the timely and persistent problem of sovereign debt crises and the many impediments to their orderly resolution. This Note evaluates various proposals for dealing with sovereign debt– crisis resolution and concludes that a multilateral treaty–based sovereign bankruptcy regime, institutionally independent from the International Monetary Fund, offers the best solution. The status quo—messy, inefficient, and unpredictable ad hoc negotiations—has consistently proven inadequate. Ex ante contractual devices and piecemeal statutory fixes in domestic law offer at best incremental solutions that can do little to alter the fundamental problems with the present state of affairs. Just as domestic bankruptcy law complements the law of creditor remedies due to the shortcomings of the latter, so too should a system of international bankruptcy law complement the law of creditor remedies vis-a-vis sovereign debtors. This Note argues that, although this approach may be difficult to achieve, that does not justify abandoning it.

The Relevance of Relevance: Section 215 of the USA PATRIOT Act and the NSA Metadata Collection Program

Abstract: In June 2013, a National Security Agency (NSA) contractor, Edward Snowden, leaked classified documents exposing a number of secret government programs. Among these programs was the “telephony metadata” collection program under which the government collects records from phone companies containing call record data for nearly every American. News of this program created considerable controversy and led to a wave of litigation contesting the validity of the program. The legality of the metadata collection program has been challenged on both constitutional and statutory grounds. The program derives its authority from Section 215 of the USA PATRIOT Act, codified as 50 U.S.C. § 1861. The statute requires that there be reasonable grounds to believe the data collected is “relevant to an authorized investigation.” The government deems all these records “relevant” based on the fact that they are used to find patterns and connections in preventing terrorist activity. Critics of the program, however, assert that billions of records cannot possibly be relevant when a negligible portion of those records are actually linked to terrorist activity. This Note examines the conflicting interpretations of “relevant,” and concludes that while the current state of the law permits bulk data collection, the power of the NSA to collect records on such a large scale must be reined in.

Two Tests Unite to Resolve the Tension Between the First Amendment and the Right of Publicity

Abstract: The right of publicity is an established legal doctrine that grants individuals the exclusive right to control the commercial use of their image. Though it has many important and laudable uses, one unfortunate consequence of the right of publicity is that it restricts artists' abilities to portray real persons in their works. In so doing, the right of publicity directly conflicts with the First Amendment protections of an individual's freedom of expression. While the U.S. Supreme Court addressed this tension in Zacchini v. Scripps-Howard Broadcasting Co., the Court did not create a clear standard for balancing the interests of each right. Without guidance from the Supreme Court, lower courts have developed four tests for balancing the right of publicity against the First Amendment: the relatedness test, the predominant purpose test, the transformative use test, and the ad-hoc balancing test. Although most courts use only a single test to analyze the conflict between the right of publicity and the First Amendment, the Sixth Circuit, in ETW Corp. v. Jireh Publishing Inc., relied on both the transformative use test and the ad-hoc balancing test to form its analysis. This Note proposes a test based on the Sixth Circuit approach, which creates a predictable standard for balancing the First Amendment against the right of publicity. The University of Colorado Boulder. Thank you to Professor Leila Amineddoleh for her guidance, to my family and friends for their constant support and encouragement, and to Austen Ishii for always believing in me.

Inherit the Cloud: The Role of Private Contracts in Distributing or Deleting Digital Assets at Death

Abstract: We live in a world permeated with technology. Through our online accounts we write emails, we store pictures, videos, and documents, we pay bills and conduct financial transactions, we buy digital books and music, and we manage loyalty programs. Digital assets have quickly replaced physical letters, pictures, books, compact discs, and documents stored in filing cabinets and shoeboxes. The emergence of digital assets raises pressing questions regarding the treatment of digital assets at an account holder's death. Unlike digital assets' physical counterparts, an account holder does not control the ultimate fate of digital assets. Instead, digital assets are controlled by a private contract entered into by an account holder and a company that provides services or digital products. This Article explores the growing conflict between traditional succession practices and digital asset succession, which is controlled by digital asset contracts. It begins by tracing the development of private contracts as a method of transferring assets at death and shows that although contracts are regularly used to transfer assets at death, digital asset contracts have taken an unprecedented step of prohibiting or severely limiting the transfer of assets at death. This Article next explores the prevalence of digital assets and explains how service providers address digital asset inheritance in private contracts. It argues that digital asset contracts that deny inheritance may be validly formed but should be void as a matter of public policy because they transfer decision-making power about assets from an individual account holder to corporations. As our control over the ultimate fate of our digital assets diminishes, the nature of our property interests in digital assets also shifts away from our traditional understanding of ownership of personal property. It argues that we should take a conscious approach to reforming succession law based on time-honored principles of American succession law that benefit society as a whole and not allow private contracts controlling digital assets to hijack our system of inheritance. This Article concludes by offering suggestions for reform and action before the ability to transfer and preserve digital assets falls beyond our reach.

Foreword: Chevron at 30: Looking Back and Looking Forward

Abstract: This Foreword introduces a Fordham Law Review symposium held in March 2014 to mark the thirtieth anniversary of Chevron U.S.A. v. Natural Resources Defense Council. The most-cited administrative-law decision of all time, Chevron has sparked thirty years of scholarly discussion concerning what Chevron deference means, when (or even if) it should apply, and what impact it has had on the administrative state. Part I of the Foreword discusses the symposium contributions that address Chevron’s scope and application, especially in light of City of Arlington v. FCC. Part II introduces the contributions that explore empirically and theoretically Chevron’s impact outside of the judicial-review context -- i.e., its effect on legislative- and administrative-drafting theory and practice, its influence within the regulatory state more generally, and its adoption (or lack thereof) in state administrative law. Part III turns to the intersection of Chevron and federalism. Part IV concludes by grappling with the contributors’ diverse views on whether Chevron is indeed a big deal and, if so, whether it is a good or bad deal for the modern administrative state.

Sentencing the Why of White Collar Crime

Abstract: “So why did Mr. Gupta do it?” That question was at the heart of Judge Jed Rakoff’s recent sentencing of Rajat Gupta, a former Wall Street titan and the most high-profile insider-trading defendant of the past thirty years. The answer, which the court actively sought by inquiring into Gupta’s psychological motivations, resulted in a two-year sentence, eight years less than the government requested. What was it that Judge Rakoff found in Gupta that warranted such a lenient sentence? While it was ultimately unclear to the court exactly what motivated Gupta to commit such a “terrible breach of trust,” it is exceedingly clear that Judge Rakoff’s search for those motivations impacted the sentence imposed. This search by judges sentencing white collar defendants—the search to understand the “why” motivating defendants’ actions—is what this Article explores. When judges inquire into defendants’ motivations, they necessarily delve into the psychological mechanisms defendants employ to free themselves from the social norms they previously followed, thereby allowing themselves to engage in criminality. These “techniques of neutralization” are precursors to white collar crime, and they impact courts’ sentencing decisions. Yet the role of neutralizations in sentencing has been largely unexamined. This Article rectifies that absence by drawing on established criminological theory and applying it to three recent high-profile white collar cases. Ultimately, this Article concludes that judges’ search for the “why” of white collar crime, which occurs primarily through the exploration of offender neutralizations, is legally and normatively justified. While there are significant potential drawbacks to judges conducting these inquiries, they are outweighed by the benefits of increased individualized sentencing and opportunities to disrupt the mechanisms that make white collar crime possible.

The Lawyer’s Monopoly—What Goes and What Stays

Abstract: We live in a time of unprecedented changes for American lawyers, probably the greatest changes since the Great Depression. That period saw the creation of the lawyer’s monopoly through a series of regulatory modifications. Will we see the same following the Great Recession? Formally, no. This Article predicts that formal lawyer regulation in 2023 will look remarkably similar to lawyer regulation in 2013. This is because lawyer regulators will not want to rock the boat in the profession or in law schools during a time of roil. Informally, yes! We are already seeing a combination of computerization, outsourcing, and nonlawyer practice radically reshape the market for law from one that centers on individualized, hourly work done for clients to a market of much cheaper, commoditized legal products. This trend will accelerate over time. The upshot? Formal lawyer regulation will continue on with little change, but will cover an ever-shrinking proportion of the market for legal services.

The Boston Bombers

Abstract: On April 15, 2013, two bombs were set off during the Boston Marathon. The first suspects were fingered by the public through a new, technologically enabled vigilantism, based upon their appearance as "brown," or "looks Muslim." More than a decade after September 11, that those who appear Middle Eastern, Arab, or Muslim are identified as terrorists and disidentified as citizens, seems sadly uncontroversial. But what to make of the Tsarnaev brothers? I argue that, while both brothers are generally held to have been responsible for the bombings, Dzhokhar is perceived as the citizen and Tamerlan as the terrorist. While this is formally true - Dzhokhar had successfully naturalized as a citizen and Tamerlan had not - it is also the case that only the younger brother is perceived to be a citizen as a matter of identity. There is tremendous sympathy directed towards the younger brother. This is both linked to the belief that he was brainwashed by his older brother, and produced by a line between the "white ethnic" and "Islamic terrorist" the two brothers differently straddle. For many Americans, Dzhokhar is one of "us." Dzhokhar thus appears as the white American victim of his nonwhite - Muslim and alien - brother. In the words of his friends, Dzhokhar was "just a normal American kid," and, as such, he resists being cast as a monster, the monster that we assume to be the terrorist.

Stay Tuned: Whether Cloud-Based Service Providers Can Have Their Copyrighted Cake and Eat It Too

Abstract: Copyright owners have the exclusive right to perform their works publicly and the ability to license their work to others who want to share that right. Subsections 106(4) and (5) of the Copyright Act govern this exclusive public performance right, but neither subsection elaborates on what constitutes a performance made \" to the public \" versus one that remains private. This lack of clarity has made it difficult for courts to apply the Copyright Act consistently, especially in the face of changing technology. Companies like Aereo, Inc. and AereoKiller, Inc. developed novel ways to transmit content over the internet to be viewed instantly by their subscribers and declined to procure the licenses that would have been required if these transmissions were being made \" to the public. \" However, while these companies claimed that their activities were outside of the purview of § 106(4) and (5), their rivals, copyright owners, and the U.S. Supreme Court disagreed. Likening Aereo to a cable company for purposes of § 106(4) and (5), the Supreme Court determined that the company would need to pay for the material it streamed. Perhaps more problematic for Aereo (and other similar companies) is the fact that the Court declined to categorize Aereo as an actual cable company, such that it would qualify to pay compulsory licensing fees—the more affordable option given to cable companies under § 111—to copyright holders. This Comment shows that, while the Court correctly ruled that companies like Aereo and AereoKiller should pay for the content transmitted, its failure to address whether Aereo is a cable company could frustrate innovation to the detriment of the public. It suggests, therefore, that these companies should be required to pay for the content that they University. I would like to thank Professor Ron Lazebnik for his guidance and insight throughout all of the stages of the writing and research process. I also thank my family and friends for their unyielding love, support, and patience. 1108 FORDHAM LAW REVIEW [Vol. 83 transmit in the same way that cable companies do until Congress develops another system.

Unlimited Data?: Placing Limits on Searching Cell Phone Data Incident to a Lawful Arrest

Abstract: The “search incident to arrest exception” is one of several exceptions to the general requirement that police must obtain a warrant supported by probable cause before conducting a search. Under the exception, an officer may lawfully search an arrestee’s person and the area within the arrestee’s immediate control without a warrant or probable cause, so long as the search is conducted contemporaneously with the lawful arrest. The U.S. Supreme Court has justified the exception based on the need for officers to discover and remove any weapons or destructible evidence that may be within the arrestee’s reach. Additionally, the Court has held that, under the exception, police may search any containers found on the arrestee’s person without examining the likelihood of uncovering weapons or evidence related to the arrestee’s offense. In light of these principles, should the exception permit officers to search the data of a cell phone found on an arrestee’s person? In January 2014, the Supreme Court granted certiorari to review two appellate rulings and resolve a split among the circuits and state courts on this question. This Note examines three approaches courts have taken to resolve the issue: a broad approach, a middle approach, and a narrow approach. This Note argues that the Supreme Court should adopt the narrow approach and prohibit warrantless searches of cell phone data under the exception.

Function over Form: Bringing the Fixation Requirement into the Modern Era

Abstract: This Article examines the ways that contemporary creativity challenges copyright’s fixation requirement. In this Article, we identify concrete problems with the fixation requirement, both practically and in light of the fundamental purpose and policy behind copyright law, and argue for a change that would amend the fixation requirement to better function in the modern era.Specifically, we conclude that a fair appraisal of the justifications for the fixation requirement provides little, if any, rationale for fixation except to the extent that fixation helps to separate idea from expression in determining the “metes and bounds” of creative expression. Recent case law analyzing the transitory works exclusion in particular demonstrates that this component of the fixation requirement has become an ineffective demarcation of what it means to fix a work in the modern era and provides little guidance for statutory interpretation. We reason that dropping the transitory duration exclusion for copyrightability would enable fixation to serve its essential purpose while not discriminating against important strains of contemporary creativity. Furthermore, removing the transitory works exclusion would better equip copyright law to reflect the purposes of the Intellectual Property Clause in the U.S. Constitution. Despite these considerations, if dropping the exclusion for transitory works is not practically feasible, we argue that it is nevertheless desirable to allow a flexible interpretation of statutory language in light of the purposes of copyright and allow transitory works to come into a safe harbor from the general fixation requirement for copyrightability under the aegis of the Visual Artists Rights Act.

Mortgaging the American Dream: The Misplaced Role of Accreditation in the Federal Student Loan System

Abstract: In 2013, outstanding student loan balances in the United States exceeded $994 billion. This growing volume of student debt has had far-reaching consequences for both individual borrowers and society as a whole. In many ways, the federal student loan program, available to students under the Higher Education Act (HEA), has achieved its goal of making higher education more accessible. Undergraduate college enrollment increased from 10.5 million students in 1980 to 17.6 million students in 2009. Despite the benefit of increased enrollment, however, the federal loan program has been criticized for increasing student loan debt and contributing to the “student loan crisis.” This student loan crisis threatens to undermine the purpose of the HEA by making higher education less accessible to Americans. Higher education institutions must be accredited to be eligible for Title IV federal funding under the HEA. The federal government relies on accreditation to assess the academic quality of the institutions and programs to which it provides federal funding. This federal fundingaccreditation relationship, riddled with conflicts of interest, has been ineffective in regulating student loans, contributing to the mounting student loan debt. This Note examines the relationship between the federal student loan system and accrediting bodies through economic theory, ultimately arguing that the HEA be amended to decouple accreditation and federal student loans.

Globalization and the monopoly of ABA-approved law schools: Missed opportunities or dodged bullets?

Abstract: As the market for lawyers and for law itself has responded to global forces, legal education also is becoming accustomed to working within a global context. U.S. law schools routinely look beyond the country’s borders to attract new students and opportunities. As with law firms and business generally, it no longer is sufficient to be domestic only; in order to gain prestige and to effectively compete in the U.S. market, schools must have a credible claim to being globally connected, if not global themselves. But despite the reorientation of law schools toward globalization, the regulatory regime in which U.S. law schools operate has not made a parallel shift toward embracing a global framework. Rather, it continues to maintain a distinctly U.S.-centric approach. The article offers a case study of globalization’s role in the fragmentation of power, and explores the resulting tensions.

Legal Information, the Consumer Law Market, and the First Amendment

Abstract: If “law is basically information,”3 does it follow that legal information is “speech within the meaning of the First Amendment”?4 If so, to what extent may government constitutionally regulate the creation and dissemination of legal information, particularly by lawyers? The answers to these questions hold significant implications for lawyer regulation, the consumer law market, and First Amendment jurisprudence. The consumer law market—i.e., those individuals who do not qualify for legal aid and are unwilling or unable to pay for an attorney who charges three figures per hour for multiple hours—has long been denied affordable, accessible, widely adopted legal services. According to some estimates, this is as much as 80 percent or more of the American population.5 Every

Cracks in the Profession’s Monopoly Armor

Abstract: * Professor of Law and Faculty Director of the Miller-Becker Center for Professional Responsibility at the University of Akron School of Law The author would like to thank Art Garwin, Director of the American Bar Association Center for Professional Responsibility, Professors Stefan Padfield and Joann Sahl of the University of Akron School of Law, Frank E Quirk, Director of the Miller-Becker Center, and Steve Crossland, Chair of the Washington State Bar Association's Limited License Legal Technician (LLLT) Board, for their helpful comments I am especially indebted to Joseph Manno for his excellent research and assistance My thanks to Professor Bruce A Green, Director of the Louis Stein Center for Law and Ethics, for inviting me to participate in this Colloquium, The Legal Profession's Monopoly on the Practice ofLaw, 82 FORDHAM L REv 2563 (2014) 1 See CHARLES W WOLFRAM, MODERN LEGAL ETHICS 824-27 (1986) (highlighting how the lawyer monopoly over much of the legal process today results from the combination of courts and lawyers controlling bar admission and state courts enforcing "common-law and statutory prohibitions against the unauthorized practice [of law]" (UPL), and noting that a "vigorous and expansive doctrine" of UPL did not occur in America until "sometime after the First World War"); Deborah L Rhode, Policing the Professional Monopoly: A Constitutional and Empirical Analysis of Unauthorized Practice Prohibitions, 34 STAN L REV 1, 4 (1981) ("[T]he profession has engaged in disturbingly little introspection concerning the proper scope of its monopoly") 2 WOLFRAM, supra note 1, at 24; see, eg, NISHA, LLC v TriBuilt Constr Grp, LLC, 388 SW3d 444, 447 (Ark 2012) (reversing a court ruling that a hearing's arbitrator could decide who would represent the parties and holding that the state supreme court has "exclusive authority" to regulate the practice of law); id at 451 ("[A] nonlawyer's representation of a corporation in arbitration proceedings constitutes [UPL]"); Cleveland Metro Bar Ass'n v Davie, 977 NE2d 606, 616 (Ohio 2012) (holding that the state supreme court "has exclusive power to regulate, control, and define the practice of law in Ohio" and "if a statute or administrative rule purports to permit laypersons to practice law before a board or an administrative agency, this court retains the ultimate authority to determine what activities a layperson" may undertake before committing UPL); see also MODEL RULES OF PROF'L CONDUCT pmbl para 10 (2013) ("The legal profession is largely self-governing [U]ltimate authority over the legal profession is vested largely in the courts"); WOLFRAM, supra note 1, at 79 ("The history of the regulation of the legal profession in the United States and England is primarily that of supervision by courts"); cf Brown v Gerstein, 460 NE2d 1043, 1052 (Mass App Ct 1984) (holding that the practice of law is a practice or trade and thus subject to consumer protection statutes); In re Burson, 909 SW2d 768, 777 (Tenn 1995) (deciding that the state legislature may authorize nonlawyer tax agents)

Enforcement of Forum-Selection Clauses in Federal Court After Atlantic Marine

Abstract: Forum-selection clauses are important agreements that limit exposure to risk of litigation in an undesired locale. The enforcement of forumselection clauses in the U.S. federal court system was not always certain, but today, such agreements are broadly considered enforceable. Courts, however, are split as to whether such clauses are governed by state or federal law and as to the proper procedural mechanism for enforcement. Recently, in Atlantic Marine Construction Co. v. U.S. District Court, the U.S. Supreme Court made strides toward resolving these disagreements among lower courts. This Note explores the history of enforcement of forum-selection clauses in federal court and articulates the legal complexities that remain in the wake of Atlantic Marine. It argues that Atlantic Marine implicitly resolved the choice-of-law split in favor of applying state substantive law to determine a forum clause’s validity and federal procedural law to determine its enforceability. To effectuate this implicit resolution, this Note proposes that courts engage in a two-step analysis in evaluating motions to enforce forum-selection clauses and that litigants bring such motions under Federal Rules of Civil Procedure 12(b)(6), 12(c), or 56.

Putting the Legal Profession’s Monopoly on the Practice of Law in a Global Context

Abstract: When considering the proper scope of the U.S. legal profession’s monopoly, regulators and commentators may find it useful to compare the scope of the U.S. monopoly with the legal profession monopolies found in other countries. This Article surveys what we know—and do not know— about the scope of the monopoly in countries other than the United States. The Article finds that the state of knowledge on this topic is relatively undeveloped, that the scope of the U.S. legal profession’s monopoly appears to be larger than the scope of the monopoly found in some other countries, but that the “conventional wisdom” may be incorrect with respect to the scope of the legal profession’s monopoly outside of the United States. It discusses some relatively new developments that may contribute to our knowledge in this area, including reports from the World Trade Organization, the European Union, and the International Bar Association. It also suggests that relatively new organizations, such as the International Conference of Legal Regulators and the International Association of Legal Ethics, might contribute to our knowledge about legal regulation around the world.

Step Zero After City of Arlington

Abstract: The thirty-year history of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.1 is a story of triumph in the courts and frustration on the part of administrative law scholars.2 Chevron‘s appeal for the courts rests in significant part on its ease of application as a decisional device. Questions about the validity of an agency‘s interpretation of a statute are reduced to two inquiries: whether the statute itself provides a clear answer and, if not, whether the agency‘s answer is a reasonable one. The framework can be applied to virtually any statutory interpretation question resolved by an agency, and its component elements—―clarity‖ and ―reasonableness‖—are sufficiently flexible to permit virtually any outcome in any particular case. Chevron also serves as the U.S. Supreme Court‘s most important admonition to lower courts not to substitute their judgment for agencies‘ on matters of policy, at least those matters that have not been resolved by Congress itself. Thus, Chevron can be invoked, when the circumstances warrant, as a symbol of judicial restraint. The frustration of many administrative law scholars rests on Chevron‘s awkwardness in discharging important functions of judicial review of agency action. Judicial review performs a variety of functions, including protecting individuals from arbitrary bureaucratic action and promoting accountability by requiring agencies to explain the reasons for their decisions. I will focus here on another important function of judicial review, which I will call boundary maintenance. Boundary maintenance includes, importantly, the principle of legislative supremacy—that agencies must respect the will of Congress. Congress is the institution best situated to allocate governmental authority among different institutions in a federal system, and when Congress has settled on a division of powers, it is critical