NORTHWESTERN UNIVERSITY LAW REVIEW

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  • Immigration Exceptionalism

    by David S. Rubenstein / Pratheepan Gulasekaram

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  • Voting, Spending, and the Right to Participate

    by Robert Yablon

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  • Going in CERCLAs: The Evolution of Arranger Liability and the Not-So-Useful Useful Product Doctrine

    by Martha Clarke

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  • Nobody’s Stock Compares to Your Own: How Treasury Can Revive Stock Compensation in Cost-Sharing Agreements

    by Tyler Johnson

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  • Stripping Agency from Top to Bottom: The Need for a Sentencing Guideline Safety Valve for Bottoms Prosecuted Under the Federal Sex Trafficking Statutes

    by Sarah Crocker

    READ MORE

Issue 111:3 FULL ISSUE

FEATURED ARTICLE

Immigration Exceptionalism

David S. Rubenstein / Pratheepan Gulasekaram

The Supreme Court’s jurisprudence is littered with special immigration doctrines that depart from mainstream constitutional norms. This Article reconciles these doctrines of “immigration exceptionalism” across constitutional dimensions. Historically, courts and commentators have considered whether immigration warrants exceptional treatment as pertains to rights, federalism, or separation of powers—attempting to silo each doctrinal setting. This Article rejects that approach and demonstrates how the Court’s immigration doctrines dynamically interact with each other, and with politics, in ways that affect the whole system. By simultaneously accounting for all three settings, our model captures a set of normative tradeoffs that context-specific appraisals have dangerously missed. For better and worse, the doctrines of immigration exceptionalism operate very differently in combination than they do in isolation. Our expanded frame offers insights on controversies arising at the intersection of constitutional dimensions, including United States v. Texas, Arizona v. United States, and President Trump’s immigration executive orders.

FEATURED NOTE

Seeing’s Insight: Toward a Visual Substantial Similarity Test for Copyright Infringement of Pictorial, Graphic, and Sculptural Works

Moon Hee Lee

Under copyright’s substantial similarity test, drawing the elusive line between idea and expression has been challenging, especially in the context of pictorial, graphic, and sculptural (PGS) works. Courts have resorted to two pernicious tendencies in applying this test to PGS works, both of which fail to approximate how human vision works. They have used either a “literal descriptive approach,” comparing identifiable objects across visual works, or a “myopic visual approach,” comparing abstract visual components across visual works. Instead of identifying objects first or seeing shapes and colors in isolation, visual experience is initially nonverbal and inherently contextual. A substantial similarity test divorced from visual perception may erroneously draw the line between copyright protection and no protection, deviating from the idea–expression divide. Drawing on the science of visual perception and the nature of artistic training, this Note proposes an alternate framework for substantial similarity analysis of PGS works.

NULR Online

APR 6, 2017

Human Trafficking and Pornography: Using the Trafficking Victims Protection Act to Prosecute Trafficking for the Production of Internet Pornography

Allison J. Luzwick

In this essay, Luzwick considers one way in which the Trafficking Victims Protection Act of 2000 (TVPA) has been underutilized—in prosecuting pornography cases. Pornography enjoys wide latitude under the law, protected by a vast net of First Amendment protections. Luzwick argues that while these protections may preserve freedom of speech, they do nothing to protect adult victims who are trafficked to produce online pornographic media. Luzwick concludes that to provide relief for these victims and better fight all types of domestic trafficking, prosecutors can and should use the sex trafficking provision of the TVPA, 18 U.S.C. § 1591, to prosecute sex trafficking within the pornography industry.

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