Articles

03.12.19

The Music Modernization Act: A Songwriter's Guide to What Matters Next

“The Music Modernization Act passed last October with much fanfare and excitement. But now, after the party, we are all looking at what that means, exactly. Here are a few areas to keep in mind as we move forward.”


03.06.19

Invisible Justice

“The ordinary appellate path is well-worn: First comes paper pushing (i.e., filing the notice of appeal, record designations, and otherwise ‘perfecting’ the appeal), followed by paper production (i.e., brief writing), then oral argument, and finally the big payoff, the written ...


02.27.19

The Amazon Deal: Above All No Zeal

“The recriminations over the Amazon pullout have been as bitterly tribal as the debate over the project itself. I think it would be helpful to provide an analysis of the political arithmetic underlying this Amazon debate, in the context of the clash between the political traditions of Gotham ...


02.22.19

An Eighth Amendment Takings Case

“We have a different kind of takings case for you today. This one involves the state of Indiana’s seizure of a $42,000 Land Rover SUV. Why is that a big deal? Two reasons. Fundamentally, it allowed the U.S. Supreme Court to augment its Fourteenth Amendment due process jurisprudence by ...


02.22.19

Berger Writes for Daily Journal About Indiana Takings Case and Fourteenth Amendment Due Process

“We have a different kind of takings case for you today. This one involves the state of Indiana’s seizure of a $42,000 Land Rover SUV. Why is that a big deal? Two reasons. Fundamentally, it allowed the U.S. Supreme Court to augment its Fourteenth Amendment due process jurisprudence by ...


02.12.19

Holy, Holey Rules!

“The primal myth runs thusly: In the beginning, chaos blanketed the universe of California appeals. Papers were filed whenever, in whatever format, and the whims of lawyers and caprices of judges reigned. Then came the revered savior Bernie (that’s Witkin, not Sanders) to impose order ...


02.12.19

Does Brady Extend to Private Lawyers, Foreign Investigators?

“More than 50 years ago, the state of Maryland convicted John Brady of murder without disclosing that Brady’s colleague had already confessed to the same homicide. Today we find such conduct shocking and contrary to a prosecuting office’s duty to ensure ‘not that it shall ...


01.30.19

The Case of the Public Pissoir

“I am going to skip our usual examination of the most recent regulatory takings cases because there is a fascinating land use case that comes to us from San Francisco. The French have added many things to our culture over the years, but this—at least as to its appearance in an appellate ...


01.18.19

Changing Exposures and Risks Posed by the Consumer Privacy Act: What You Need to Know and What Lies ...

“With the cybersecurity landscape constantly evolving and changing, the pressure to protect consumer privacy rights is increasing. A reflection of this concern is the California Consumer Privacy Act (CCPA). While the CCPA is not effective until January 1, 2020, at the earliest, it is ...


01.17.19

New 1332 Guidance Gives States Lots to Think About

While Democratic victories in the U.S. House have fueled national conversations about some variant of Medicare for all, most of the policy change in the near term is likely to continue to be at the state level.