Volume 88.8 (December 2021) 1791–2058

Articles

Textual Rules in Criminal Statutes
Joshua Kleinfeld - Professor of Law and (by courtesy) Philosophy, Northwestern University.

Comments

Intellectual Property Norms in American Theater
Kelly Gregg - B.A. 2015, Stanford University; J.D. Candidate 2022, The University of Chicago Law School.

When a musical opens on Broadway, what aspects of the production are covered by copyright’s protection of “dramatic works”? The script clearly is (although policing infringement is nigh impossible), but courts have yet to address whether the work of the director or designers should be afforded copyright protections. Nonetheless, within the close-knit professional New York theater community, rarely do artists significantly copy the work of others. This Comment argues that this is because the community has developed its own welfare-maximizing norms to address intellectual property. However, looking at larger cross-sections of American theater (such as all professional theaters independent of location or theaters of all professional statuses within a geographic area), these norms are less consistently followed.

This Comment defines two intellectual property norms in the professional New York theater community: one protecting the intent of playwrights and another protecting the work of directors and designers. The Comment then argues that, although these norms are less efficient in looser-knit theater communities, they are welfare maximizing within the professional New York theater community.

Can Procedure Take?: The Judicial Takings Doctrine and Court Procedure
Rebecca Hansen - B.A. 2017, Brown University; J.D. Candidate 2022, The University of Chicago Law School.

In considering the value of the judicial takings doctrine, this Comment argues that we should look to a new area of law: procedure. Courts often have the authority to set procedure, and they use this authority for substantive ends. This Comment argues that applying the Takings Clause to procedure demonstrates the value of the judicial takings doctrine. It argues that the Takings Clause, rather than the Due Process Clause, is the appropriate framework for certain forms of procedure. Under the Takings Clause, we can recognize the judiciary’s authority to use procedure for substantive ends while also offering “just compensation” to those unduly affected. In contending with the practical effects of “judicial-procedure takings,” this Comment argues that we can supplement the existing takings framework in two ways. First, we can look to intent: where the government intends to single out a particular set of property owners to bear a public burden, that should weigh in favor of finding a taking. Second, we can refine our analysis by focusing on whether the act has an element of aggregation. Where the court has combined discrete elements to create a result that is greater than the sum of its parts, that too should weigh in favor of a taking. By supplementing the existing test, we can better identify procedures that are functionally equivalent to traditional takings— without swallowing up the courts in the process.

A Place Worth Protecting: Rethinking Cost-Benefit Analysis Under FEMA’s Flood-Mitigation Programs
Kelly McGee - B.A. 2017, Harvard University; J.D. Candidate 2022, The University of Chicago Law School.

As climate change threatens coastal areas with more frequent and intense flooding, the federal government has adopted a greater focus on mitigating the effects of natural disasters. While neighborhoods differ in terms of physical risk exposure, they also differ in social vulnerability—the characteristics that influence a community’s ability to safely weather a storm, withstand disruptions to employment and housing, navigate the rebuilding process, and eventually return to normal. Funding for federal flood-mitigation projects administered by the Federal Emergency Management Agency (FEMA) is currently distributed according to a simple metric—the benefits of a project must outweigh its costs. FEMA’s approach to cost-benefit analysis (CBA), however, primarily measures physical risk to property while neglecting the long-term, intangible social costs incurred by vulnerable communities. This approach has resulted in higher-property-value communities receiving a disproportionate share of mitigation infrastructure, while lower-income communities are either left without protection or relocated. The distribution of mitigation funding therefore plays a role in exacerbating place-based inequality.

This Comment proposes ways in which FEMA could better account for the distributional effects of its projects and promote efficient policies that take into account the full range of social and economic costs associated with natural disasters. It begins by detailing how FEMA neglects to consider distributional outcomes in its mitigation programs, consistent with the single-minded focus on economic efficiency prevalent in federal regulatory decision-making. Next, it surveys empirical research documenting the ways in which FEMA’s use of CBA exacerbates wealth inequality and social vulnerability to flooding. The Comment then considers various legal avenues for redressing the disparate impacts resulting from FEMA’s policies, concluding that none are likely to be successful. Instead, it offers five policy adjustments that FEMA could implement in its cost-benefit methodology to ensure that resources for flood mitigation are more equitably distributed, emphasizing ways in which these better accord with the agency’s own focus on economic efficiency.

In Defense of 5G: National Security and Patent Rights Under the Public Interest Factors
Kenny Mok - B.A. 2016, Northwestern University; J.D. Candidate 2021, The University of Chicago Law School.

Section 337 of the Tariff Act of 1930 authorizes the International Trade Commission (ITC) to stop—or “exclude”—patent-infringing imports. Exclusion orders protect the country against unfair trade practices and help enforce U.S. patent rights. But before issuing an order, the ITC is required by Section 337 to consider the order’s harm to the public health and welfare, its effect on competitive conditions, the availability of substitutes, and the harm to consumers. Because it rarely finds that these “public interest factors” outweigh the benefits of patent enforcement, the ITC has mostly granted exclusion orders despite growing concerns related to the public’s reliance on imported mobile technology.
5G—the next generation of mobile technology—promises to connect our homes, cars, and hospitals to digital networks across the country. With great promise comes great risk. The growing threat of hacking from foreign adversaries like China and Russia, coupled with the concentrated nature of 5G innovation, raises urgent cybersecurity concerns. From 2017 to 2019, two ITC administrative law judges in AppleQualcomm investigations disagreed over whether 5G concerns justified the denial of an exclusion order. This Comment argues that the ITC may lawfully interpret Section 337 to consider 5G–national security risks under the public interest factors and proposes a cybersecurity framework to assess the policy weight of these risks. These analyses will guide businesses and ITC officials through the next generation of patent disputes.

Write Like You’re Running Out of Time: Prepublication Review, Retroactive Classification, and Intermediate Scrutiny
Henry Walter - B.A. 2018, The University of Kansas; J.D. Candidate 2022, The University of Chicago Law School.

The Constitution’s promises of freedom of speech and common defense can, at times, be at odds. One acute example of that tension is the prepublication review process, by which the government reviews written works by certain current and former employees to ensure that they do not contain classified or other sensitive information. While this process surely has its merits in preserving national security, it also presents authors with a bureaucratic thicket that is often difficult to navigate. This process is further complicated by the fact that the government can retroactively classify documents, meaning that information that authors might have thought was fair game is instead withdrawn from the public domain. The Supreme Court has addressed prepublication review only once, in Snepp v. United States. There, the Court validated the constitutionality of prepublication review but failed to articulate its reasoning in terms of established First Amendment doctrine. This Comment clarifies the standard of review applicable to prepublication review as an articulation of intermediate scrutiny.

Once that standard of review is established, this Comment applies it to the prepublication review process. With regard to substance, this Comment argues that, under intermediate scrutiny, the government does not have a sufficient national security justification to censor unclassified information during the prepublication review process. With regard to procedure, this Comment recommends that retroactive classification decisions during the prepublication review process should be subject to document-by-document review, that the burden-shifting framework to determine whether information is sufficiently public should begin by placing the onus on the government, and that authors’ legal claims arising from the process should not be mooted by completion of the review. Taken together, these clarifications and adjustments would subtly alter incentives to ensure that the prepublication review process equitably balances the interests of both the government and authors.