Volume 93, Number 3
In this Article, I consider the contemporary law reform project of a radical social movement seeking to transform the state: specifically, that of the Movement for Black Lives as articulated in its policy platform “A Vision for Black Lives: Policy Demands for Black Power, Freedom, and Justice.” The Movement for Black Lives is the leading example of a contemporary racial justice movement with an intersectional politics including feminist and anti-capitalist commitments. The visions of such radical social movements offer an alternative epistemology for understanding and addressing structural inequality. By studying not only the critiques offered by radical social movements, but also their visions for transformative change, the edges of law scholarship can be expanded, a deeper set of critiques and a longer set of histories—of colonialism and settler colonialism, the Atlantic slave trade and mass incarceration—centered, and a bolder project of transformation forwarded. These visions should push legal scholars toward a broader frame for understanding how law, the market, and the state co-produce intersectional structural inequality, and toward agendas that focus not on building the power of law and the police, but on building the power of marginalized communities and transforming the state. This shift would invigorate the social movement’s literature and bring new energy to scholarship on substantive areas of law, from criminal and immigration law to property and contract law.
To illustrate the creative potential of studying radical social movements, this Article contrasts the Vision for Black Lives with the Department of Justice’s (DOJ) Ferguson and Baltimore reports. The Vision and the DOJ reports offer alternate conceptualizations of the problem of policing and the appropriate approach to law reform. Reflective of liberal law reform projects on police, the DOJ reports identify policing as a fundamental tool of law and order that serves the collective interests of society, and locate the problems of police in their failure to adhere to constitutional law. As a corrective, the DOJ reports advocate for investing more resources in police: more trainings, better supervision, community policing. In contrast, the Vision identifies policing as a historical and violent force in Black communities underpinning a system of racial capitalism and limiting the possibilities of Black life. Law is central to the shape and legitimation of this racialized violence and inequality. As such, policing as we now know it cannot be fixed. Thus, the Vision’s reimagination of policing—rooted in Black history and Black intellectual traditions—transforms mainstream approaches to reform. In forwarding a decarceral agenda rooted in an abolitionist imagination, the Vision demands shrinking the large footprint of policing, surveillance, and incarceration and shifting resources into housing, health care, jobs, and schools. The Vision focuses on building power in Black communities and transforming the relationship between state, market, and society. In so doing, the movement offers transformative, affirmative visions for change designed to address the structures of inequality—something legal scholarship has lacked for far too long.
In copyright law, the useful articles doctrine plays a significant role in defining the limits of copyright’s domain and the boundary between copyright and patent. But the implicated notion of “conceptual separability” has proved to be difficult to define, and the Supreme Court’s effort to define it in the recent case Star Athletica, L.L.C. v. Varsity Brands, Inc. is unsatisfying. In an effort to resolve this challenge, the present paper puts forth a novel test for conceptual separability, one that draws inspiration from the philosopher’s idea of conceivability. The test is the following question: “When you conceive of the relevant useful article as lacking the design element in question, is the article you imagine functionally identical to the actual article?” If the answer to this question is yes, then the design element is conceptually separable from the article’s utilitarian aspects; if not, then the element has failed the test, and it is not entitled to copyright protection. The present paper explores why this novel proposal avoids many of the pitfalls of existing tests (including the Court’s own in Star Athletica), why it best achieves the aims of the useful articles doctrine, and what questions remain once the challenge of conceptual separability has been resolved.