Volume 98, Number 3

Why buy something for vast sums of money that other people can seemingly have for free? This is one of the puzzles confronting people new to both the art market and the market in Non-Fungible Tokens (“NFTs”). Both soaring markets depend on a stark division between real and fake, original and copy. Yet in a world of increasingly cheap and limitless copying, why do people still pay so much for authentic originals when you can download or 3D-print identical copies? What is the mysterious mechanism that creates value in a world of unfettered mechanical and digital reproduction?

For years, the mechanism was copyright law, which was created to solve the problem of how to monetize works that could be copied. But the art market, presaging the NFT market, long ago cast aside copyright as the mechanism to create value in a world of copies. Both markets instead depend on a non-legal market mechanism—what I call the “norm of authenticity.”

Yet, in this Article I show, through a deep exploration of the art market, that the norm of authenticity, the bedrock of that market, is artificial: protean, often arbitrary, and ultimately a mutually agreed upon fiction. And the importance of understanding artificial authenticity is urgent because it now has migrated from art to govern the market for NFTs.

The legal profession is and has always been white. Whiteness shaped the profession’s values, culture, and practice norms. These norms helped define the profession’s understanding of reasonable conduct and competency. In turn, they made their way into constitutional jurisprudence. This Article interrogates the role whiteness plays in determining whether a defendant received effective representation and provides a clarifying structural framework for understanding ineffective assistance of counsel jurisprudence.

The Sixth Amendment ineffective assistance of counsel standard relies on presumptions of reasonableness and competency to determine whether defense counsel’s conduct met constitutional requirements. To prove ineffective assistance of counsel, defendants must show counsel’s conduct fell below an objective standard of reasonableness and that—but for counsel’s unprofessional errors—there is a reasonable probability that the proceeding’s outcome would have been different. This Article focuses on the racialized presumption of reasonableness and competency that the law applies to defense counsel when determining ineffective assistance of counsel claims.

The law enables courts to rely on a default white normative perspective to shield criminal adjudications from critical analysis. This Article applies a critical lens to examine the historical and racialized construction of the criminal legal system and the legal profession. It excavates a Jim Crow-era case, Michel v. Louisiana, which laid the foundation for the presumption of counsel’s reasonableness and competency. It reveals how the Court relied on Michel to solidify these racialized presumptions in Strickland v. Washington’s ineffective assistance of counsel standard. This historical context helps explain why all defendants encounter difficulty when seeking relief from defense counsel’s poor performance.

Torres v. Madrid is a seminal Supreme Court decision that was decided during the 2021 Supreme Court term. Torres centered on whether a woman who was shot in the back by the police but managed to escape was seized under the Fourth Amendment. This was a decision that garnered widespread attention because it was decided during a national reckoning with police violence following the George Floyd protests. The Court ultimately held that Ms. Torres was seized the instant the bullet punctured her body. This was a win for the civil rights groups as it allowed Ms. Torres to pursue a remedy, but the decision did not go far enough. This Note focuses on a special class of seizures called attempted and “touchless” seizures, and argues that recognizing both attempted and touchless seizures under the Fourth Amendment will open the door to redressing a broader range of police misconduct.

Within the literature on legal scholarship, academics have studied citation practices. For example, scholars have examined which authors, journals, and articles are most cited. But no one has examined which parts of articles scholars cite. Understanding which parts of articles scholars cite is not only intrinsically interesting, but also could inform how authors structure articles. This Note presents the results of a unique, hand-coded dataset of thousands of pinpoint citations. In brief: Authors are more likely to cite the beginning of articles but split their remaining citations roughly evenly. This pattern holds across flagship journals of variously ranked law schools and articles of varying length, but it is less pronounced for self-citation. While cynical explanations—that cite-worthy content is concentrated at the beginning, or authors tend not to thoroughly read the articles they cite—of the data is possible, a better explanation serves as a modest rebuttal to certain criticisms of legal scholarship.

While the Violence Against Women Act (VAWA) has long been venerated as a major legislative victory for those subjected to sexual and gender-based violence (S/GBV), VAWA is less often understood as the funding boon that it is for police, prosecutors, and prisons. A growing literature on the harms of carceral feminism has shown that VAWA has never ensured the safety of Black and Brown women; queer, trans, and gender-nonconforming people; sex workers; drug users; poor, working class, homeless, and housing insecure people; migrants; and others who do not fit the “everywoman” archetype; nor has it recognized their right to protect themselves from violence.

I contribute to this literature in three ways: First, drawing from the rich narrative traditions of critical race theory and critical legal studies, I tell untold and undertold stories of state violence against victims of S/GBV. Second, I weave together knowledge produced by scholars across disciplines, as well as by transformative justice organizers and practitioners, to situate my illustrations in a landscape of carceral violence. Third, I build on the written work of those scholars, organizers, and practitioners to propose transformative justice approaches to S/GBV. Specifically, I propose that we use VAWA to meet the demand that all criminalized survivors be freed by incentivizing the expanded use of state executives’ clemency powers, as well as by expanding the use of clemency at the federal level. I also argue that an anti-carceral VAWA must include financial reparations for criminalized survivors, as compensation for the harms that the state has inflicted on them through unjust prosecutions and imprisonment, as well as for the violence they have been forced to endure in prisons, jails, and the custody of police officers.

Courts cannot predict the future, but their decisions are binding precedent on future generations. Technological changes—that courts could have never predicted—break down this system of stare decisis. What made sense yesterday no longer makes sense today. Leveraging an understanding of technology, the rule of law, and stare decisis, this Note proposes a new approach to copyright fair use decisionmaking that involves utility-expanding technologies, or tools that radically change the use of and access to copyrighted works. When applying past precedent, courts should carefully contextualize prior decisions’ analyses of the first and fourth fair use factors within the precedent’s time and perform a similar analysis for the current case in the current era. The more that the factual circumstances diverge between the two cases, the less weight the court should give to the past precedent. Moreover, when generating precedent on utility-expanding transformative fair uses, courts should narrow their fair use decisions to the dispute before the court and only rule on the specific technology in question—helping ensure that the balance between advancing technological interests and protecting the rights of content creators does not become rooted in shortsighted thinking from a materially different past.

Public law, specifically constitutional due process law and administrative law, operates against a background presumption of no liability for omissions. To state the inverse, the majority rule is that liability applies only in the case of affirmative government actions. While this was not always the case, following DeShaney v. Winnebago County Department of Social Services and Heckler v. Chaney in the 1980s, the Court has generally closed off plaintiffs from litigating government failures-to-act. Scholars have pointed at the philosophical absurdity of delineating government acts and omissions, given that in a state as regulated as ours, everything is, at bottom, an affirmative choice. But the federal judiciary has remained fairly unmoved. Against this overriding presumption of no omissions liability, however, the courts have eked out several exceptions in which they are willing to find liability for inaction. While scholars have pointed to reasons why the judiciary has been reluctant to find liability for omissions, this Note looks at why the judiciary has been willing to find liability in certain cases. It identifies the overarching reason to be administrability, motivated by two characteristics that the court either creates or constructs. First, when the court identifies or constructs an affirmative component of an omission, it is more willing to find liability. Second, when there is an ex ante regulation or statute limiting government discretion, the court is similarly persuadable. This Note identifies seven categories across public law that fall into these two areas and in which omissions liability (at least in some way) exists: state-created danger doctrine, special relationships, Monell liability, a blurred line between procedural and substantive due process, abdication of agency statutory duties, failure to perform ministerial duties, and a refusal to initiate rulemaking. As its final contribution, this Note argues that scholars, litigants, and courts should seek to broaden public omissions liability, given that society is plagued with protracted crises resulting from government inaction. Relying on the proxies for administrability that the courts are already comfortable with, the final Part marries administrability with accountability and creates broader categories for each exception to tackle contemporary ills.