Supreme Court of the United States

This paper explores the resistance in U.S. copyright law to extend copyright protection to scents and tastes, and advances the position that copyright law’s originality and expression requirements limit copyrightable subject matter to expressions that engage both author and audience in a way that requires reflection upon the work—or at least, the capacity for reflection—in a necessarily intersubjective and communicative fashion, what I call a “public dimension.” That the sensations of taste and smell are inescapably immediate and private suggest that they lack the kind of public dimension that visual and audio works exhibit. Indeed, this creates an ineffability characterized by a lack of the sort of originality and expressiveness that underlie copyright protection under both the “moral rights” and “progress of the arts and sciences” rationales, though more so for the second rationale, i.e., the basis for U.S. copyright law. The latter disconnect is particularly suggestive: because taste and scent’s desired, artistic effects are ineluctably connected with private interests of pleasure, works of taste and scent cannot escape the utilitarian function that limits copyright protection in the United States. As I shall argue below, the reason why this utilitarian function does not also subsume the pleasures one gets from visual and audio works of art is because the latter engage and arrest our capacity for reflection in a necessarily communicable way, at least in the sense that they make a public claim for an explanation even if none is forthcoming.

In 2012, the Supreme Court of the United States decided Florence v. Board of Chosen Freeholders of the County of Burlington. The Court held that full strip searches, including cavity searches, are permissible regardless of the existence of basic reasonable suspicion that the arrestee is in possession of contraband. Further, the Court held that law enforcement may conduct full strip searches after arresting an individual for a minor offense and irrespective of the circumstances surrounding the arrest. These holdings upended typical search jurisprudence. Florence sanctions the overreach of state power and extends to law enforcement and corrections officers the unfettered discretion to conduct graphically invasive, suspicion-less strip searches. The Court’s dereliction of duty is enough to concern all citizens. However, the impact of this phenomenal lapse will not be felt equally in the age of what Bonilla-Silva has termed colorblind racism. In 2013, in the case of Floyd v. City of New...

This article uses an original database of confirmation hearing dialogue to examine how the Senate Judiciary Committee's role in Supreme Court confirmations has changed over time, with particular attention paid to the 1939–2010 era. During this period, several notable developments took place, including a rise in the number of hearing comments, increased attention to nominees’ views of judicial decisions, an expansion of the scope of issues addressed, and the equalization of questioning between majority and minority party senators. We demonstrate that these changes were shaped by both endogenous and exogenous factors to promote the legitimization of the Judiciary Committee's role in the confirmation process and to foster the instrumental goals of senators. This research contributes to our understanding of the development of political institutions, interbranch interactions, and how institutional change affects the behavior of legal and political actors.

While almost all questions before the Supreme Court require statutory or constitutional interpretation, state courts of last resort occupy a unique place in the American judicial landscape. As common-law courts, state supreme courts are empowered to develop common-law doctrines in addition to interpreting democratically enacted texts. This Note argues that these two distinct state court functions—interpretation of statutes and constitutions, and common-law judging—call for two distinct approaches to stare decisis, a distinction that is often muddied in practice. Justice Thomas’s concurrence in Gamble v. United States provides the framework for each approach, a framework based on the genesis and development of stare decisis from its English common- law roots. Specifically, this Note argues that even if the Supreme Court does not accept Justice Thomas’s approach, state supreme courts should when deciding state statutory and constitutional questions. The distinct nature of state consti...

This piece discusses how the case Kelly v. United States, which was pending before the Supreme Court when this piece was written, was likely to expand two different developments in the Roberts Court’s jurisprudence: (1) expanding the constitutional protections for lying under the First Amendment and (2) narrowing the definition of corruption. This Piece describes how lower courts ruled in the Kelly case as well as arguments deployed by Kelly’s lawyers at the Supreme Court to try to exonerate their client Bridget Anne Kelly for her role in the Bridgegate scandal. Epilogue: As this piece was being printed, the Supreme Court decided Kelly v. United States, 590 U. S. ____ , No. 18-1059 (U.S. May. 7, 2020). As predicted by the piece, the Supreme Court in Kelly expanded the Skilling case and narrowed what counts as corruption concluding “not every corrupt act by state or local officials is a federal crime.”