This Article presents a revisionist account of the 1903 Supreme Court case Bleistein v. Donaldson Lithographic Co. and the altogether decisive and damaging influence it has exerted on the making of modern American copyright law. Courts and commentators have long misunderstood Justice Holmes’s celebrated opinion for the majority in Bleistein...
No. 2
The traditional portrait of the administrative state often features the politically-appointed agency head at its center: the Administrator of the Environmental Protection Agency, for instance, or the Secretary of the Department of Labor. This picture of bureaucratic power, however, is incomplete. For much of that power is, in fact, subdelegated within the agency. The implication is that decision rights are often exercised not by statutory delegates,...
Defendants may be liable under the False Claims Act (FCA) if they acted with “reckless disregard.” But can defendants be reckless if the laws they break are unclear? The Eighth Circuit says no: A defendant cannot be reckless if there is any “inherent ambiguity” in the relevant law. Its reasoning suggests that textual ambiguity alone is enough to foreclose liability completely. This Note argues to the contrary: if all other elements of the...
Professor Murphy taught me first-year torts in the fall of 2007, near the end of his teaching career. I will never forget the first day of class. He limped slowly into the small seminar room in the basement of Warren Hall—probably eighty-five years old at the time—sat down at a table next to the […]
Columbia Law School’s postwar class of 1948, perhaps more than any other, has brought remarkable distinction to both the school and the law. Marvin Frankel, Jack Greenberg, Jack Kernochan, Arthur Murphy, and Jack Weinstein have all both taught here and acted with enormous distinction and success in the outside world of law—a grouping not […]
Students remember Arthur Murphy as a warm, caring teacher with a great sense of humor, a man who helped them learn and grow. Our colleagues admired and respected his scholarship and his commitment to our school. While I shared all of that, to me, most importantly, Arthur was an empathetic friend for more than […]
For a state to lawfully use force in anticipation of a cyber attack, the prospective attack must rise to the level of an “armed attack” under Article 51 of the United Nations Charter, and it must be “imminent.” While there is broad agreement that some cyber attacks will satisfy Article 51’s “armed attack” requirement, the question of how to evaluate whether such an attack is “imminent”—based on an analysis of the technology...
When a court determines that an agency action violates the Administrative Procedure Act, the conventional remedy is to invalidate the action and remand to the agency. Only rarely do the courts entertain the possibility of holding agency errors harmless. The courts’ strict approach to error holds some appeal: Better a hard rule that encourages procedural fastidiousness than a remedial standard that might tempt agencies to cut corners. But the...
Introduction In Fisher v. University of Texas in June 2016, the Supreme Court upheld the use of race-conscious affirmative action in college admissions. While recognizing a university’s interest in the educational beneÂfits that derive from a diverse student body, Justice Kennedy cautioned in the majority opinion: “A university’s goals cannot be elusory or amorÂphous—they must […]
Introduction The Judicial Conference of the United States is charged with “carry[ing] on a continuous study of the operation and effect” of the national rules of court procedure promulgated under the Rules Enabling Act. The cycle of rulemaking regularly produces amendments that superÂsede or abrogate rules. Do the now-dead versions of a rule have any […]