Law journals represent one of the pinnacle achievements for law students. They help students obtain jobs, clerkships, and teaching positions. Law journals, however, have remained predominantly white and male throughout most of their existence. In the past two decades, law journals have turned to face their homogenous history, and some have developed policies to promote a diverse editorial staff. This prompted two recent lawsuits against New York University’s and Harvard’s law reviews for allegedly unconstitutionally considering applicants’ race and gender in selecting members—arguably at the expense of white and male students. Although both complaints were dismissed for lack of standing, these lawsuits demand attention from all journals as they consider implementing their own diversity policies and reaping the benefits that flow from a diverse editorial staff.
In 1870, Congress made its single largest addition of categories of copyrightable subject matter, expanding copyright protection to cover “painting[s], drawing[s], chromo[s], statue[s], statuary, and . . . models or designs intended to be perfected as works of the fine arts.” For the first time, it included works not designed or intended to be created and distributed in multiple copies, and it aligned copyright with the “fine arts” as opposed to the “mechanical arts,” a revision of the earlier understanding that copyright would cover “Science” as opposed to the “Useful Arts.” Why did Congress so act? A thorough examination of the legislative history of the 1870 Act, and associated historical documents, leads to the following conclusions. First, artists sought protection for paintings and drawings in part to ensure enforceable exclusive rights for prints as the industrial organization of print production changed. Second, the drive for protection of paintings and drawings was also motivated by advances in reprographic technology, particularly color lithography. Third, expansion of an existing scheme of protection is politically easier than creating a new scheme of protection and negotiating all of the dimensions from scratch. Fourth, artists became better organized in associations like the National Academy of Design, and art publishers became substantial industrial ventures that employed dozens of workers in large factories, which increased their political visibility and power. Fifth, the proponents of expansion faced no organized opposition. Sixth, the 1870 Act’s expansion had few ties or references to earlier English expansion, reflecting the increasing independence of US legal culture from English legal culture after the Civil War.
This paper proposes a new framework for inducing cities with severely supply-constrained housing markets to allow a lot more high-density housing. Local governments that rezone for larger buildings would (with the approval of a state agency) be permitted to auction, and thus profit from, the newly created buildable space. Winning bidders would acquire tradeable development allowances, which developers would have to acquire and redeem as a condition of project approval. We argue that this framework would expand the supply and density of urban housing through three channels. First, it would enable municipal governments to capture much more of the economic value created by upzoning and regulatory streamlining than they do today, which in turn would create new and better opportunities for local political entrepreneurs to assemble pro-development coalitions. Second, our framework would make local upzoning and regulatory streamlining deals more durable than they are today. This is so because local factions whose policy goals align with the state housing agency’s would be able to use auction contracts and state law to entrench their policies, and because the after-auction allowance market would act as a shock absorber, reducing allowance prices as necessary to offset regulatory and other shocks to the cost of development. Third, our framework would help to rectify informational asymmetries that presently hinder state oversight of local land-use plans. (For a shorter white paper outlining the auction idea, see: https://ssrn.com/abstract=3296622.)
Racist prosecutorial rhetoric is an oft-overlooked component of structural racism within the criminal justice system. Social psychology and neuroscience research explain how racist rhetoric affects decision-making, as well as how to avoid biased decision-making. But current law tolerates and even encourages prosecutors to use racist rhetoric to ensure convictions. This article educates judges, prosecutors, and other scholars about how to recognize racist prosecutorial rhetoric, how to prevent it in most cases, and how to effectively deal with it when it occurs.\r\n\r\nSpecifically, it focuses on trial courts for solutions, providing them with a checklist of how to draw lines between proper and improper argument. It recommends prohibiting many common rhetorical choices prosecutors use, such as animal imagery and us/them arguments. It also recommends requiring prosecutors to file a motion in limine to justify proposed references to race in individual cases; courts should only allow these references when their probative value significantly outweighs the potential prejudicial effect. The article also contains strategies for effectively preventing biased decision-making when prosecutors use racist rhetoric and a method for tracking repeat violators for more systemic solutions. These solutions would help ensure fair trials and contribute to the racial reckoning in the criminal justice system.
