Print Issues

Volume 68, Issue 4


Against Data Exceptionalism

by  Andrew Keane Woods

One of the great regulatory challenges of the Internet era—indeed, one of today’s most pressing privacy questions—is how to define the limits of government access to personal data stored in the cloud. This is particularly true today because the cloud has gone global, raising a number of questions about the proper reach of one state’s…


The Questionable Origins of the Copyright Infringement Analysis

by  Shyamkrishna Balganesh

Central to modern copyright law is the test for determining infringement, famously developed by Judge Jerome Frank in the landmark case of Arnstein v. Porter. The “Arnstein test,” which courts continue to apply, demands that the analysis be divided into two components: actual copying—the question whether the defendant did in fact copy—and improper appropriation—the question whether…


Mentally Awake, Morally Straight, and Unfit to Sit?

Judicial Ethics, the First Amendment, and the Boy Scouts of America
by  Johnathan A. Mondel

The California Supreme Court’s recent revisions to California’s Code of Judicial Ethics represent one of the latest strikes against the First Amendment freedom of association. These revisions put California in the company of dozens of other states that prohibit judges from membership in the Boy Scouts of America because it is an organization that has…


Close Calls

Defining Courtroom Closures Under the Sixth Amendment
by  Kristin Saetveit

The Sixth Amendment right to a public trial enjoys a rich historical heritage and occupies a special place in the hierarchy of constitutional protections, as the Supreme Court continues to recognize it as one of a “very limited class” of rights subject to structural error treatment. Nonetheless, lower courts regularly undermine the public trial right…