2017, Vol. 111, No. 4
Despite the increasing importance attached to the right of publicity, its doctrinal scope has yet to be clearly articulated. The right of publicity supposedly allows a cause of action for the commercial exploitation of a person’s name, voice, or image. The inconvenient reality, however, is that only a tiny fraction of such instances are truly actionable. This Article tackles the mismatch between the blackletter doctrine and the shape of the case law, and it aims to elucidate, in straightforward terms, what the right of publicity actually is.
This Article explains how, in the absence of a clear enunciation of its scope, courts have come to define the right of publicity negatively, through the application of independent defenses based on free speech guarantees and copyright preemption. This inverted doctrinal structure has created a continuing crisis in the right of publicity, leading to unpredictable outcomes and the obstruction of clear thinking about policy concerns.
The trick to making sense of the right of publicity, it turns out, is to understand that the right of publicity is not really one unitary cause of action. Instead, as this Article shows, the right of publicity is best understood as three discrete rights: an endorsement right, a merchandizing entitlement, and a right against virtual impressment. This restructuring provides predictability and removes the need to resort to constitutional doctrines and preemption analysis to resolve everyday cases. The multiple-distinct-rights view may also provide pathways to firmer theoretical groundings and more probing criticisms.
The school district is a staple of American law. As the local government tasked with controlling our public schools, the school district is so well-entrenched that lawmakers and commentators ignore its uniqueness as a legal institution. The school district is peculiar to American law, and it is a peculiarity within American law. General purpose governments—cities and counties—are the local governments controlling schools outside the United States. In the United States itself, these governments control almost all other major local functions. But they do not control education here. Why? Why does American law rely on a separate local government for the provision of education? This Article tackles this fundamental—yet heretofore largely neglected—historical and normative question. It offers a legal history of the school district, tracing its roots to colonial Massachusetts and chronicling its consolidation and spread through successive centuries. This exploration demonstrates that the school district was adopted as an expedient solution to varied practical problems presented by the unique patterns of early settlement that prevailed in different places and times in American history. Yet the historical investigation additionally shows that at distinct periods lawmakers, commentators, and activists also asserted substantive arguments, of potentially enduring relevance, for the school district’s embrace. These actors ascribed to the school district a capacity to outperform other, general purpose, local governments in promoting certain core values. Those normative values included citizen participation, community building, school improvement through expert management, and stable school funding. Unfortunately, due to modern legal, economic, and social developments, the current school district fails to serve any of these values that were at times attributed to its antecedents; worse, the contemporary school district often undermines them. Accordingly, the Article concludes that state lawmakers should consider abolishing the school district and bestowing control over schools on general governments.
In an important article in the Yale Law Journal, James Pfander and Daniel Birk claim that adverseness is not required by Article III for cases arising under federal law. This Article takes the position that Pfander and Birk have not made the case for reconsidering adversity requirements for Article III cases. Adverseness may be present when there is adversity of legal interests, even when adverse argument is not present. From this perspective, a number of Pfander and Birk’s examples of non-contentious jurisdiction manifested adverseness. In rem-type proceedings such as bankruptcy and prize cases required the determination of adverse interests, in situations where impediments often existed to voluntary extrajudicial resolution. Service or notice in some form was generally provided, which gave opportunities for adverse argument. In addition, the issuance of warrants, while ex parte, involved adverse interests in a context where predeprivation notice would undermine the utility of the proceeding, notice occurred on execution of the warrant, and opportunity for argument was then often available. Pfander and Birk’s examples of pension and naturalization determinations are not as readily characterized as adverse. The Court, however, treated federal judges’ pension determinations as appropriate, if at all, as the work of individual commissioners rather than Article III judges. Naturalization petitions are perhaps Pfander and Birk’s best example of non-contentious jurisdiction, but the Court explicitly approved the practice as appropriate under Article III only after provisions for notice to, and potential appearance by, the United States.
Scholars and jurists have long sought an explanation for why the Framers of Article III distinguished “Cases” from “Controversies.” In a previous article that cataloged the exercise of federal jurisdiction over uncontested matters, such as pension claims, warrant applications, and naturalization proceedings, we tried to provide an answer to this question. We suggested that, at least as to “cases” arising under federal law, the federal courts could exercise what Roman and civil lawyers called non-contentious jurisdiction or, in the words of Chief Justice Marshall, could hear uncontested claims of right in the form prescribed by law. As for “controversies,” by contrast, the federal courts were limited to the adjudication of disputes between parties aligned as Article III specifies. Much that seems strange about the practice of federal jurisdiction becomes clear when viewed in light of our proposed interpretation. Thus, our Article accounts not only for the difference in Article III’s text, but also for the refusal of the federal courts to hear uncontested matters of state law, such as some probate and domestic relations proceedings.
Our account also calls into question the claim that Article III embeds inflexible “injury” and “adverse-party” requirements in the definition of judicial power. It was those claims that triggered the response from Professor Ann Woolhandler, to which this Article briefly replies. Woolhandler argues that Article III requires not adverse parties, so much, as adverse interests. In the course of doing so, she embraces a late nineteenth-century revisionism that twisted the meaning of Article III. In the end, however, she fails to offer a coherent theory of the text of Article III or to explain why her newfangled adverse-interest construct better explains the history of judicial practice than the eighteenth-century construct of non-contentious jurisdiction with which the Framers were familiar.
Notes & Comments
As class action settlement funds become more and more prevalent, cy pres awards have become a more common means of providing relief to absent class members. The primary purpose of cy pres awards is to provide a second-best form of relief when it is deemed impossible to directly compensate individual plaintiffs. Most often, these cy pres awards are given to some kind of charitable organization. Under federal law, class action settlements and cy pres awards are governed by Federal Rule of Civil Procedure 23(e). Rule 23(e)(2) requires all class action settlements to be “fair, reasonable, and adequate,” but provides no further guidance. Thus, federal courts look to judge-made standards to determine the validity of a cy pres award. Numerous states have codified cy pres laws with specific requirements into their statutory schemes. Every state has an unclaimed property law. Both the state cy pres statutes and unclaimed property laws may conflict with federal law. This Note will examine how a federal court sitting in diversity jurisdiction would and should respond where state and federal law conflict. In so doing, it will discuss the interplay of cy pres doctrine, the Erie doctrine, the Rules of Decision Act, and the Rules Enabling Act. This Note concludes by examining the proposal by the Rule 23 Subcommittee on Civil Rules to codify cy pres in Rule 23(e) and the Subcommittee’s subsequent withdrawal of the amendment. This conduct bolsters the conclusions that that a Rules Enabling Act analysis is more appropriate for these cy pres questions, and that federal cy pres awards may indeed violate the Rules Enabling Act.
Federal criminal sentencing doctrine is growing increasingly favorable to the prosecution. This Note identifies two factors that contribute to this “doctrinal drift.” First, district courts rarely issue written opinions in the sentencing context. Second, prosecutors, unlike defense attorneys, can strategically forego appeal in an individual case to avoid the risk that the lower court’s pro-defense reasoning will be affirmed and become binding precedent. In fact, 99% of all appeals of sentencing decisions are defense appeals. When defendants appeal pro-prosecution lower court decisions, the appellate court usually affirms, in part due to deference. The result is a one-sided body of case law, composed primarily of circuit court opinions affirming pro-prosecution decisions. Consequently, when defense attorneys draft sentencing memoranda, they face a dearth of precedent to support their position. Prosecutors, by contrast, can choose from an abundance of favorable decisions. Consequently, prosecution memoranda are more likely to persuade the court, and with each round of appeals the doctrine drifts further in the pro-prosecution direction.
This Essay considers the use by Dallas police officers of a robot armed with plastic explosives to kill a suspected gunman on a shooting rampage in 2016. In the wake of Dallas, many legal experts in the news maintained that the police action was constitutional. The commentators' consensus was that as long as the police had the right to use lethal force, then the means of that force is irrelevant. This Essay argues the contrary. Under the current state of the constitutional law on the police use of force on a suspected felon, excessive lethal force is a valid consideration. The type and magnitude of lethal force may, under certain circumstances, be unconstitutional despite the suspect posing a high degree of risk to others.
One of Justice Clarence Thomas’s most remarked upon characteristics is his reluctance to ask questions during oral argument. Observers have criticized him for his silence, with some suggesting that it reflects disrespect for his colleagues and the advocates appearing before the Supreme Court. Others defend his silence, noting, for instance, that historically oral argument played a much less significant role and that Justice Thomas’s written opinions speak for themselves. What has been overlooked in this debate, however, is the fact that Justice Thomas is very talented at asking questions. Indeed, in many ways, he is a model questioner. Drawing on the most comprehensive collection of Justice Thomas’s oral argument questions ever compiled, we urge the Justice to ask more questions for a new reason: he is good at it.