Issue Three

A ‘Slippery Business’: The Fact-Law Distinction in Authorship & the Echo of Loper Bright

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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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How to Manage the Wolf in the Fold: A Government-Focused Approach to Regulatory Capture in the Platform Economy Comparing California with British Columbia

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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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Requiring Written Bail Determinations

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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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Probabilistic Tort Law: Extending the Loss-of-Chance Doctrine’s Partial-Damages Framework to All Tort Cases (and Beyond)

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MICHAEL PRESSMAN

Tort law’s loss-of-chance doctrine (“LOCD”) is employed in many jurisdictions to resolve a problem arising in certain medical malpractice cases. In the paradigmatic case, the patient presents with a greater-than-50% chance of dying from a condition, the doctor’s negligence increases that chance, and the patient dies. Traditionally, the plaintiff would never recover because he cannot show by a preponderance that he would have survived absent the negligence. The LOCD, however, allows for partial damages reflecting the portion of the risk attributable to the negligence. As most commentators agree, the LOCD furthers both fairness and efficiency, and all jurisdictions should employ it.

But this Article argues that we should go much further. The rationales underlying the LOCD apply not only in the typical LOCD context, but in all tort cases. Accordingly, this Article advocates for two reforms: first, employing the LOCD not only in medical malpractice cases that call for its use, but also in cases raising relevantly similar issues in any other area of tort (most notably, in toxic torts and products liability); and second, employing LOCD-like partial damages to take into account underlying risk even in cases in which the underlying risk is not large enough to create the insurmountable hurdle. The first reform increases recoveries (awarding partial damages instead of no damages); the second decreases recoveries (awarding partial damages instead of full damages).

These proposals are important for three reasons: First: Both further both fairness and efficiency, and their practical effects are significant for parties affected by them. Second: Although the general rationale for the LOCD is clear, and despite commentators agreeing that it should be limited to typical LOCD cases, there is no plausible account of (or consensus on) why it should be limited to these cases—which is why many courts have rejected the LOCD. This Article solves this problem: Not only do we not need to limit the LOCD, but we should not. Accordingly, this Article provides a broad foundational account of the LOCD that, unlike past accounts, is plausible—thus also providing reasons for courts to employ it even in typical LOCD cases. Third: While the Article’s reforms constitute a crucial step for tort doctrine in taking chance seriously, they will also serve as a blueprint for analogous reforms in other areas of the law.

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Stress and Prosecutorial Discretion

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JANE MITCHELL

Prosecutors wield enormous influence—and yet the factors guiding their choices remain largely unknown. Scholars have long considered the inner workings of prosecutorial discretion a “black box.”

This study seeks to remedy that gap by applying a discovery-based qualitative methodology to study prosecutorial discretion. Relying on fourteen in-depth interviews with prosecutors,* this study identifies an influence on prosecutorial discretion
previously unaccounted for in the literature: stress. Prosecutors’ stress responses directly impact their decision-making and performance, for better or for worse.

Prosecutors’ stress responses align with the principles of cognitive appraisal theory. According to this psychological theory, people “appraise” stressful situations as either “challenges” or “threats.” Each mental state triggers a distinctive set of
cognitive, emotional, and physical responses. Challenge states improve performance and thinking. Threat states impair performance and decision-making.

The interview data demonstrates that prosecutors face a relentless stream of stressors at work. The way prosecutors respond to those stressors carries profound implications for criminal justice. Prosecutors operating in challenge states benefit
from sharper decision-making and improved performance. Prosecutors in threat states, on the other hand, are more prone to negative bias, mistakes, abrasive behavior, and burnout. This has particular relevance for trial work, which prosecutors report being the most stressful part of their job: threat states predispose prosecutors to plead cases instead of going to trial.

While stress responses occur at an individual level, much can be done at an organizational level to promote challenge instead of threat. The Article concludes with structural recommendations for facilitating challenge states.

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What Does the Declaration of Independence Declare?

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STEVEN WILF

What does the Declaration of Independence declare? The simplest answer is that it constituted the United States as an independent sovereign nation. This brief Essay will take a different approach, focusing less on establishing sovereignty and
more on its fashioning the bonds of association that stand independent of legal governance.

One goal of this Essay, on the eve of its 250th anniversary, is to reinvigorate the meaning of the Declaration of Independence. If the Declaration was less significant as a legal instrument declaring sovereignty, then we must be even more
determined in understanding its meaning. How does one read a document in a fresh fashion when it has been scrutinized for so many years? Over time, documents become dusty, overly familiar, and, perhaps worst of all, sacrosanct. No doubt this
is true of the Declaration of Independence—which is often paired with the Federalist Papers as canonized handmaids to the Constitution. This ever-so-brief Essay aims to constitute ourselves as a new, unexpected audience for the text.

This Essay sees the Declaration as an untidy pastiche, a bricolage that is directed to any number of contemporary listeners; with its multiple audiences, shifting rhetorical styles, and different genres, the Declaration of Independence must be seen as a multivocal text. It also argues that the Declaration’s crescendo lies at the end, not the famous lines at the beginning, of the document. All the seemingly unrelated grievances are wrapped around a fundamental shift where it is not a new state that is founded, but rather it is an assumption of mutual duties among Americans that leads to a new social order—if not a new regime—and that this has binding force, as does any legal promise.

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