NADAV BATTAT

This Note explores whether authorship in copyright law constitutes a question of fact, law, or a mixed inquiry. In the wake of rapid developments in generative artificial intelligence and a sharp doctrinal shift in administrative law, this inquiry has become increasingly consequential. The classification determines not only who decides the issue—judge, jury, or agency—but also whether courts must defer to the Copyright Office’s determinations. In the post-Loper Bright v. Raimondo landscape, where Chevron deference has been eliminated, these questions take on new procedural and doctrinal weight.

The Note argues that authorship determinations should be treated as mixed questions of law and fact predominated by law. This framework allows courts to consider factual underpinnings concerning the degree of human contribution while reserving the ultimate question of law for judicial resolution. Such an approach promotes accuracy in adjudication, flexibility in application, and consistency in doctrine—ensuring that authorship, a foundational yet slippery concept, remains subject to coherent judicial oversight as generative technologies continue to reshape creative processes. Drawing on fair use, originality, and analogues from
patent law, this approach situates the authorship issue within a tradition of hybrid typologies in intellectual property.

Allen v. Perlmutter, a pending case involving the denial of copyright protection for an AI-assisted image, may serve as the progenitor of a new interpretive lineage. It forces courts to confront not only the factual complexity of human input and the unsettled legal boundaries of authorship in the age of AI, but also the threshold question of how authorship should be classified—as a question of fact, law, or both.

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SUSAN BISOM-RAPP & URWANA COIQUAUD

Scholarly work on regulatory capture in the platform economy accounts for the political role and power wielded by app-based firms, which aim to reform the existing legal environment to favor their low-cost labor business models. This Article adds to
the literature by shifting the focus to government actors, the role of narrative in communicating with the public, and institutional constraints which may hamper the government’s ability to provide a cogent rationale for opposing or implementing legal
change. The Article’s central contribution is underscoring the government’s role in facilitating or preventing regulatory capture. To that end, it illuminates the state’s capacity for de-standardizing work—making work more precarious and insecure for
workers—or preventing the degradation of workers and working conditions. The Article compares two North American jurisdictions considered pro-worker—California (US) and British Columbia (CA) – and examines government reactions to
the regulatory challenges posed by app-based transportation and delivery firms.

The authors first introduce a typology of government functions and tools that can either stabilize or weaken labor standards. Two theoretical lenses then assist in interrogating government actions and regulatory outcomes: 1) discursive institutionalism, which highlights the role and power of ideas and institutions in public policy creation; and 2) decent work, the human rights concept emphasizing, among other things, the promotion of fair wages, safe and healthy working conditions, and the right to organize and bargain collectively. Despite confronting similar regulatory challenges, the study discerns significant differences in government actions, communication, and regulatory outcomes in California and British Columbia. Regarding app-based workers, the latter is moving towards recognizing decent work while the former drifts away from it. These findings underscore the government’s
pivotal role in protecting or undermining decent work, an important insight as platform firms test the resilience of existing labor standards around the world.

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MICHAEL L. SMITH

Many states’ laws governing bail and pretrial release give the impression that courts think through a myriad of factors when deciding whether to set bail. But things often don’t work out this way in practice. Judicial officers setting bail carry out assembly-line-style, truncated hearings which often result in the imposition of bail in accordance with predetermined offense-based schedules. As a result, many defendants are ordered incarcerated pending further proceedings solely because they are unable to pay. Many of these defendants then plead guilty out of a desire to avoid remaining in jail pending trial.

This Article makes a straightforward proposal: written justifications should be required for all bail and pretrial release rulings that do not order defendants released on their own recognizance. By forcing courts to commit to writing the reasons behind their rulings, this reform pushes them to engage with the relevant laws governing bail and the circumstances of the defendants before them. It also increases the legitimacy of a system that badly needs it by creating a record of explanations for pretrial release determinations and acknowledging the need to spend time on these serious proceedings.

Critics are likely to paint this proposal as hopelessly impractical. Courts address millions of criminal cases each year, and requiring written rulings on pretrial release in many of them is a substantial burden. But this is not a problem with the proposal. Instead, this objection derives its force from a system that prosecutes more people than it possibly can while complying with minimal standards of due process and reasoned justifications. Requiring written bail determinations simply surfaces this defect. But, in doing so, the reform acts to oppose existing incentives that perpetuate overenforcement and oppressive prosecution. Alongside alternate reform measures, requiring written bail justifications is a step toward aligning pretrial release practices with the law on the books, and reducing the harms it causes to defendants, their families, and the rest of society.

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