Observers commonly think of the Warren and Roberts Courts as polar opposites in their modes of constitutional interpretation. But how different are their approaches really? To be sure, the values that underlie the jurisprudence of the Warren and Roberts Courts are dramatically different, but their methodologies for constitutional adjudication are similar in a crucial respect: both Courts frequently employ a teleological approach. They look, in other words, to ends outside of the law to determine the direction in which constitutional law should be heading.

To prove this point, this Article examines the methods and values Justice William J. Brennan Jr. used in his constitutional interpretation. Widely recognized as an intellectual leader of the Warren Court, Justice Brennan was open and forthright about the ends toward which he believed constitutional law should be evolving. As he put it, the challenge Justices faced in interpreting the Constitution’s meaning was to “foster and protect the freedom, the dignity, and the rights of all persons within our borders, which it is the great design of the Constitution to secure.” His jurisprudence, in short, sought to promote the dignity rights of the individual. This Article traces the personal and historical influences that led Brennan to this jurisprudential commitment and the way in which it played out in many facets of work, including both his opinions and his extrajudicial writings. The Article further investigates the criticisms that Brennan’s approach engendered and evaluates problems with his jurisprudence that have become clear with the benefit of historical hindsight.

Susan D. Carle *

* Professor of Law, American University Washington College of Law (WCL).

Many mechanisms have been tried to protect patients from the effects of undisclosed payments to physicians so that patients can make informed decisions about whether their physician’s recommendations are tainted because of the physician’s conflict of interest. Over the past decade, those efforts have been dominated by the Physician Payments Sunshine Act (“Sunshine Act”). A decade ago, the Sunshine Act took effect with the aim of increasing transparency of financial relationships between health care providers and manufacturers of pharmaceuticals and medical devices. Yet a decade and more than a billion dollars in effort later, the highly touted Act is a failure when it comes to its primary goal: educating patients about when their doctors have a financial conflict of interest. After a decade of the Sunshine Act and new DOJ enforcement actions to promote compliance, few patients access the government database or are even aware of its existence.

This Article examines the Sunshine Act and ties it deficiencies to its failure to focus on the trust inherent to the doctor-patient relationship. This analysis of the Sunshine Act’s impact ten years after its passage reveals its structure is ill-suited to achieve its noble aspirations. Further, while its goals are consistent with scholarship surrounding fiduciary relationships and informed consent, its current structure is not.

Jacob T. Elberg *

* Associate Professor and Faculty Director, Center for Health & Pharmaceutical Law, Seton Hall University School of Law. J.D., Harvard Law School; A.B., Dartmouth College.

A literary or artistic expression created by an individual author fits neatly in the copyright system. Many of the rules were developed with the sole author and a distinct work in mind. Given this start, copyright law struggles to govern expressions generated by teams. But even in such scenarios, joint authorship rules, which were developed relatively recently, have addressed complicated ownership questions. In contrast to solo- and team-authored works, the copyright system fails in a third category, what this Article labels “communal authorship.” This Article describes communal authorship as a subset of mass-authored works having the key features of numerosity, informality, temporality, and intentionality—features that make the applicability of copyright law challenging. The large-scale nature of the collaboration, the absence of a central figure with creative control, the dynamic nature of the work, and the strong norm of sharing makes communal authorship unique. The mismatch between copyright law and communal authorship results in confusion, which in turn discourages creative expression and enables some to appropriate value created by others. Four case studies of communal authorship—hackathons, memes, dance crazes, and traditional cultural expressions—are used to illustrate the mismatch. Through the communal authorship theory, the Article offers a novel analytical framework to examine the governance of mass-authored works which are, and will continue to be, important forms of expression, especially in digital platforms.

Aman K. Gebru *

* Assistant Professor of Law, University of Houston Law Center.