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The Search For Third Options In A Two-Bathroom Society, Sharon R. Cruz Jan 2018

The Search For Third Options In A Two-Bathroom Society, Sharon R. Cruz

Articles

This Note presents a narrative on and the history of transgender bathroom rights in this country, beginning with the reasoning for a two-bathroom society and the development of “bathroom laws”. The development of the two-bathroom society is intertwined with and rooted in beliefs that have remained prevalent since the Victorian Era, ideas about core differences between men and women, and how best to protect the virtues of women. In order to weave this narrative, this Note focuses particularly on current cases that are making their way through our Courts: the stories of Gavin Grimm and Coy Mathis, whose battles are ...


The Narrative Of Costs, The Cost Of Narrative, Alexander A. Reinert Jan 2018

The Narrative Of Costs, The Cost Of Narrative, Alexander A. Reinert

Articles

In Judge Victor Marrero’s Article “The Cost of Rules, the Rule of Costs,” he argues that too many lawyers use too many procedural devices to cause too much inefficiency within our civil justice system. His Article helpfully asks us to focus on the role of the lawyer and law firm economics in assessing how to solve waste and abuse in civil litigation. He proposes an array of procedural changes to address these perceived problems. In this response, I argue that Judge Marrero’s assertions about costs are questionable, given relevant empirical evidence. Moreover, although I am confident that there ...


Holocaust-Era Art Restitution Claims: Is The Hear Act A Game Changer?, Rachel Sklar Jan 2017

Holocaust-Era Art Restitution Claims: Is The Hear Act A Game Changer?, Rachel Sklar

Articles

The author of this article presents a legal analysis of the Holocaust Expropriated Art Recovery Act of 2016 (“HEAR Act”), signed into law by President Barack Obama on December 16, 2016, which creates a uniform, federal six-year statute of limitations on civil restitution claims in the United States for the victims of Nazi-era persecution and their heirs to make a legal demand for the return of artwork or other cultural property that was seized, confiscated or wrongfully taken as a result of the policies of the Third Reich.


Erie Step Zero, Alexander A. Reinert Jan 2017

Erie Step Zero, Alexander A. Reinert

Articles

Courts and commentators have assumed that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. Thus, when a federal court asserts jurisdiction over pendent state law claims through the exercise of supplemental jurisdiction in a federal question case, courts regularly apply the Erie doctrine to resolve conflict between federal and state law. This Article shows why this common wisdom is wrong.

To understand why, it is necessary to return to Erie’s goals, elaborated over time by the U.S. Supreme Court. Erie and its progeny are steeped in diversity-driven policy ...


Prosecutorial Discretion Power At Its Zenith: The Power To Protect Liberty, Peter L. Markowitz Jan 2017

Prosecutorial Discretion Power At Its Zenith: The Power To Protect Liberty, Peter L. Markowitz

Articles

On November 20, 2014, President Obama, frustrated by congressional inaction on immigration, announced an ambitious and potentially transformative prosecutorial discretion policy to forego the deportations of millions of low priority undocumented immigrants. That announcement immediately sparked legal challenges, which quickly wound their way to the Supreme Court, and a nationwide debate about the limits of the President’s prosecutorial discretion authority. President Obama’s actions are part of a larger trend whereby modern presidents have increasingly used robust assertions of prosecutorial discretion powers to achieve policy goals that they could not realize through legislation.

There are clear dangers in allowing ...


Byte Marks: Making Sense Of New F.R.C.P. 37e, Charles Yablon Jan 2017

Byte Marks: Making Sense Of New F.R.C.P. 37e, Charles Yablon

Articles

New FRCP 37(e) limits severe, case ending sanctions for lost electronically stored information (ESI) to situations where a party acted with “intent to deprive” other parties of the use of that information. But it makes no change in existing preservation duties and never explains how “intent” is to be determined for the corporation and other entities likely to be parties in such litigation. The question is – does this Rule make any sense? This Essay seeks to make sense of Rule 37(e) in terms of its language, the stated goals of its drafters, and its role in the regulation ...


Policy Considerations & Industry Perspectives On 3d Printing, Greg Boyd, Martin Galese, John Knapp, Natalia Krasnodebska, Michael Weinberg, Aaron Wright Jan 2016

Policy Considerations & Industry Perspectives On 3d Printing, Greg Boyd, Martin Galese, John Knapp, Natalia Krasnodebska, Michael Weinberg, Aaron Wright

Articles

No abstract provided.


The Continuing Battle Over Economically Targeted Investments: An Analysis Of The Department Of Labor's Interpretative Bulletin 2015-01, Edward A. Zelinsky Jan 2016

The Continuing Battle Over Economically Targeted Investments: An Analysis Of The Department Of Labor's Interpretative Bulletin 2015-01, Edward A. Zelinsky

Articles

In Interpretive Bulletin 2015-01 (IB 2015-01), the U.S. Department of Labor (DOL) renewed the now two-decades old battle over “economically targeted investments” (ETIs). As a matter of statutory interpretation, IB 2015-01, like its predecessors, is unpersuasive. The Employee Retirement Income Security Act of 1974 (ERISA) requires plan trustees to invest “solely” to provide participants’ retirement benefits. A trustee who invests in ETIs violates this statutory obligation by pursuing collateral economic benefits for persons other than plan participants. As a matter of policy, the social investing which ETIs exemplify is unsound. At best, such social investing in practice merely shuffles ...


The Never Ending Tale: Racism And Inequality In The Era Of Broken Windows, Jonathan Oberman, Kendra Johnson Jan 2016

The Never Ending Tale: Racism And Inequality In The Era Of Broken Windows, Jonathan Oberman, Kendra Johnson

Articles

No abstract provided.


Class Warfare: The Disappearance Of Low-Income Litigants From The Civil Docket, Myriam Gilles Jan 2016

Class Warfare: The Disappearance Of Low-Income Litigants From The Civil Docket, Myriam Gilles

Articles

No abstract provided.


Innovation Heuristics: Experiments On Sequential Creativity In Intellectual Property, Stefan Bechtold, Christopher Buccafusco, Christopher Jon Sprigman Jan 2016

Innovation Heuristics: Experiments On Sequential Creativity In Intellectual Property, Stefan Bechtold, Christopher Buccafusco, Christopher Jon Sprigman

Articles

All creativity and innovation build on existing ideas. Authors and inventors copy, adapt, improve, interpret, and refine the ideas that have come before them. The central task of intellectual property (IP) law is regulating this sequential innovation to ensure that initial creators and subsequent creators receive the appropriate sets of incentives. Although many scholars have applied the tools of economic analysis to consider whether IP law is successful in encouraging cumulative innovation, that work has rested on a set of untested assumptions about creators’ behavior. This Article reports four novel creativity experiments that begin to test those assumptions. In particular ...


The Second Circuit And Social Justice, Matthew Diller, Alexander A. Reinert Jan 2016

The Second Circuit And Social Justice, Matthew Diller, Alexander A. Reinert

Articles

The Second Circuit is renowned for its landmark rulings in fields such as white collar crime and securities law — bread and butter issues growing out of Wall Street’s preeminence in the financial landscape of the nation. At the same time, the Second Circuit has a long tradition of breaking new ground on issues of social justice. Unlike some circuit courts which have reputations in the area of social justice built around one or two fields, such as the Fifth Circuit’s pioneering role in civil rights litigation or the Ninth Circuit’s focus on immigration, there is no one ...


Liability Issues And 3d Printing, Mark Bartholomew, Gianni P. Servodidio, Katherine Strandburg, Felix Wu Jan 2016

Liability Issues And 3d Printing, Mark Bartholomew, Gianni P. Servodidio, Katherine Strandburg, Felix Wu

Articles

No abstract provided.


Abortion, Informed Consent, And Regulatory Spillover, Katherine Shaw, Alex Stein Jan 2016

Abortion, Informed Consent, And Regulatory Spillover, Katherine Shaw, Alex Stein

Articles

No abstract provided.


Broken Windows: Restoring Social Order Or Damaging And Depleting New York’S Poor Communities Of Color?, Jonathan Oberman, Kendra Johnson Jan 2016

Broken Windows: Restoring Social Order Or Damaging And Depleting New York’S Poor Communities Of Color?, Jonathan Oberman, Kendra Johnson

Articles

No abstract provided.


The Scrivener's Dilemma In Divorce Mediation: Promulgating Progressive Professional Parameters, Robert Kirkman Collins Jan 2016

The Scrivener's Dilemma In Divorce Mediation: Promulgating Progressive Professional Parameters, Robert Kirkman Collins

Articles

No abstract provided.


Revisiting The Revolution: Reintegrating The Wealth Transmission System, Melanie B. Leslie, Stewart E. Sterk Jan 2015

Revisiting The Revolution: Reintegrating The Wealth Transmission System, Melanie B. Leslie, Stewart E. Sterk

Articles

No abstract provided.


Dealing With Doma: Federal Non-Recognition Complicates State Income Taxation Of Same-Sex Relationships, Carlton M. Smith, Edward Stein Jan 2015

Dealing With Doma: Federal Non-Recognition Complicates State Income Taxation Of Same-Sex Relationships, Carlton M. Smith, Edward Stein

Articles

Various states now recognize relationships between people of the same-sex, but due to the Defense of Marriage Act, the federal government does not. In the context of income taxes, this combination of state recognition and federal non-recognition of same-sex relationships produces a significant problem for many same-sex couples and some state taxing authorities. Most states have income tax and, typically, state income tax laws “piggyback” on federal income tax laws. Depending on the state, same-sex couples in legally-recognized relationships must file their state income tax returns as married (either “filing jointly” or “filing separately”), as domestic partners, or as parties ...


Facing Terror Together: Public Agents And Civic Worth, Ekow N. Yankah Jan 2015

Facing Terror Together: Public Agents And Civic Worth, Ekow N. Yankah

Articles

No abstract provided.


Why Instrumentalism Matters, Kyron Huigens Jan 2015

Why Instrumentalism Matters, Kyron Huigens

Articles

No abstract provided.


Rethinking Standing In Patent Challenges, Michael J. Burnstein Jan 2015

Rethinking Standing In Patent Challenges, Michael J. Burnstein

Articles

No abstract provided.


Pay For Play: The Compensated Leisure Flaw Of Contract Damages, Mitchell L. Engler Jan 2015

Pay For Play: The Compensated Leisure Flaw Of Contract Damages, Mitchell L. Engler

Articles

Contract damages aim to leave the injured party in as good a position as if the contract had been fulfilled. But discharged laborers often obtain a much better result due to the lack of a reduction for their excused work effort on breach. After first exposing the problematic ramifications of this unjustified deviation, this Article then provides two workable corrections.


Acus--And Administrative Law--Then And Now, Michael Herz Jan 2015

Acus--And Administrative Law--Then And Now, Michael Herz

Articles

The Administrative Conference of the United States (ACUS) both shapes and reflects the intellectual, policy, and practical concerns of the field of administrative law. Its recommendations are therefore a useful lens through which to view that field. Also, because of an unfortunate hiatus, ACUS has gotten underway not once but twice. Those two beginnings provide a kind of natural experiment, and they make a revealing contrast. This article traces the transformations of American administrative law, as well as the field’s perpetual concerns, by comparing the initial recommendations of ACUS 1.0 (1968 to 1970) with the initial recommendations of ...


Chinese Companies And U.S. Class Actions: Securities Litigation And Product Liability, Geoffrey Sant, Charles M. Yablon, Stephen A. Radin, Kayvan Sadeghi, Christopher Seeger, Richard H. Silberberg Jan 2015

Chinese Companies And U.S. Class Actions: Securities Litigation And Product Liability, Geoffrey Sant, Charles M. Yablon, Stephen A. Radin, Kayvan Sadeghi, Christopher Seeger, Richard H. Silberberg

Articles

No abstract provided.


How Wartime Detention Ends, Deborah N. Pearlstein Jan 2014

How Wartime Detention Ends, Deborah N. Pearlstein

Articles

Despite efforts by two presidents to end U.S. detention operations at Guantanamo Bay, Cuba, closing Guantanamo has proven to be an extraordinary challenge. Some of the reasons why are historically common problems of prisoner repatriation, such as finding host countries for those who cannot be repatriated without facing the risk of persecution. Yet one significant contemporary obstacle to Guantanamo closure is without identifiable precedent: statutory spending conditions sharply restricting the President’s ability to transfer detainees away from the prison. As this essay demonstrates, in none of the major wars of the past century did Congress impose any such ...


Immutability And Innateness Arguments About Lesbian, Gay, And Bisexual Rights, Edward Stein Jan 2014

Immutability And Innateness Arguments About Lesbian, Gay, And Bisexual Rights, Edward Stein

Articles

No abstract provided.


The Trials Of Clinical Education, Jonathan H. Oberman, Ekow N. Yankah Jan 2014

The Trials Of Clinical Education, Jonathan H. Oberman, Ekow N. Yankah

Articles

No abstract provided.


John Bell/David Ibbetson, European Legal Development: The Case Of Tort (Cambridge University Press, 2012). Comparative Studies In The Development Of The Law Oftort In Europe, Vol 9, Xii+ 213 Pp. Isbn 978-1-107-02177-8 (Hardback)., Anthony Sebok Jan 2014

John Bell/David Ibbetson, European Legal Development: The Case Of Tort (Cambridge University Press, 2012). Comparative Studies In The Development Of The Law Oftort In Europe, Vol 9, Xii+ 213 Pp. Isbn 978-1-107-02177-8 (Hardback)., Anthony Sebok

Articles

No abstract provided.


Legal And Ethical Concerns About Sexual Orientation Change Efforts, Tia Powell, Edward Stein Jan 2014

Legal And Ethical Concerns About Sexual Orientation Change Efforts, Tia Powell, Edward Stein

Articles

No abstract provided.


Screening Out Innovation:The Merits Of Meritless Litigation, Alexander A. Reinert Jan 2014

Screening Out Innovation:The Merits Of Meritless Litigation, Alexander A. Reinert

Articles

Courts and legislatures often conflate merit-less and frivolous cases when balancing the desire to keep courthouse doors open to novel or unlikely claims against the concern that entertaining ultimately unsuccessful litigation will prove too costly for courts and defendants. Recently, significant procedural and substantive barriers to civil litigation have been informed by judicial and legislative assumptions about the costs of entertaining merit-less and frivolous litigation. The prevailing wisdom is that eliminating merit-less and frivolous claims as early in a case’s trajectory as possible will focus scarce resources on the truly meritorious cases, thereby ensuring that available remedies are properly ...