Law Commons^™

Content, Purpose, Or Both?, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Most debates about the proper meaning of “transformativeness” in fair use are really about a larger shift towards more robust fair use. Part I of this short Article explores the copyright-restrictionist turn towards defending fair use, whereas in the past critics of copyright’s broad scope were more likely to argue that fair use was too fragile to protect free speech and creativity in the digital age. Part II looks at some of the major cases supporting that rhetorical and political shift. Although it hasn’t broken decisively with the past, current case law makes more salient the freedoms many types of …

Changes In Chapter 11 Success Levels Since 1980, Lynn M. Lopucki

UF Law Faculty Publications

This Article revisits the nine measures of success that Bill Whitford and I reported on in Patterns in the Bankruptcy Reorganization of Large, Publicly Held Companies, with twenty-six additional years of experience and data on 964 additional cases. My principal objective has been to determine whether Chapter 11 has become more or less successful by those measures. I conclude that Chapter 11 has become less successful by three of the seven LoPucki-Whitford criteria for which data are available. The courts confirm plans in a significantly smaller proportion of cases, a significantly smaller proportion of companies survive, and a significantly smaller …

Government Analysis Of Shed Dna Is A Search Under The Fourth Amendment, Tracey Maclin

UF Law Faculty Publications

This article addresses whether the Fourth Amendment is implicated when police surreptitiously collect and analyze a person’s involuntarily shed DNA. Law enforcement officers will often obtain shed or abandoned DNA samples from persons who they suspect have committed crimes, but lack sufficient evidence to arrest or detain such persons. When utilizing abandoned or shed DNA for criminal investigative purposes, there are two state actions which arguably trigger Fourth Amendment protection. First, the collection of the biological material which contains a person’s DNA might be considered a search under the amendment. Courts, however, have uniformly rejected this argument. For example, when …

Good-Bye Significant Contacts: General Personal Jurisdiction After Daimler Ag V. Bauman, Judy Cornett

Scholarly Works

This article shows that the Supreme Court's opinion in Daimler AG v. Bauman (2014) marks a significant departure from settled practice. It argues that the decision's restriction of general jurisdiction will prevent reasonable access to courts in some cases, eroding the power of state courts for the sake of achieving policy goals that are more appropriate for the political branches.

The Third-Shift Problem In China: The First Step Is Admitting You Have A Problem, Aisha Farraj

Student Works

No abstract provided.

A Physician’S Ethical Dilemma When Patients Use Preimplantation Genetic Diagnosis To Select For Genetically Defective Embryos, Nina Schuman

Student Works

No abstract provided.

The Disability-Employability Divide: Bottlenecks To Equal Opportunity, Brad Areheart

College of Law Faculty Scholarship

Joseph Fishkin’s new book, Bottlenecks, reinvigorates the concept of equal opportunity by simultaneously engaging with its complications and attempting to simplify its ambitions. Fishkin describes bottlenecks as narrow spaces in the opportunity structure through which people must pass if they hope to reach a range of opportunities on the other side. A significant component of the American opportunity structure that Bottlenecks leaves largely unexplored, however, relates to people with disabilities. This Review applies Fishkin’s theory to explore how disability law creates and perpetuates bottlenecks that keep people with disabilities from achieving a greater degree of human flourishing. In particular, disability …

The Us - Israel Enhanced Security Cooperation Act: Legitimate Legislation Or Puffed Up Policy Statement?, Alexa V. Darakjy

Student Works

No abstract provided.

A Disastrous Rejection: The Case For Including Community Associations Under Thestafford Act’S Individuals And Households Program, Jacob J. Franchino

Student Works

No abstract provided.

The Romani In Europe And The False Promise Fundamental Rights, Ariel Risinger

Student Works

No abstract provided.

Still Evolving: Balancing Individual Rights And The Functionality Of The Legal System: Justice Elena Kagan's Jurisprudential Stance, Erin Connolly

Student Works

No abstract provided.

What The Highlands Can Learn From The Pinelands: An Assessment Of Two Transfer Of Development Rights Programs In New Jersey, Mich C. Bachmann

Student Works

No abstract provided.

The Pbgc Wins A Case Whenever The Debtor Keeps Its Pension Plan, Israel Goldowitz, Garth Wilson, Erin Kim, Kirsten Bender

Marquette Benefits and Social Welfare Law Review

The Pension Benefit Guaranty Corporation, the federal agency charged with insuring private-sector defined benefit pension plans, has long had a prominent role in corporate bankruptcies. PBGC focuses its effort on the continuation of pension plans, in true reorganizations and in sales of businesses. To this end, ERISA has made it more difficult for a sponsor to terminate a plan in its own economic interest. For example, a sponsor’s latitude to terminate an underfunded plan was limited to circumstances involving the sponsor’s financial distress. Likewise, the termination premium, which was added to ERISA in recent years, is an obligation that survives …

Towards The Development Of Governance Principles For The Administration Of Social Protection Benefits: Comparative Lessons From Dutch And American Experiences, Frans Pennings, Paul M. Secunda

Marquette Benefits and Social Welfare Law Review

The purpose of this article is to introduce a new approach to social protection benefit provision through an analysis and comparison of two of the advanced benefit systems in the world. Both the Dutch and American examples teach us that meaningful social benefit protection is possible, consistent, and necessary within market-based societies.

Our recommendation is that advanced-market societies start a discussion on social protection benefits based on the dual principles of federalism/subsidiarity and fiduciary duty. Federalism provides that the national/federal government should provide the principles and minimal framework for benefit provision, while regional authorities, employers, and insurance companies should be …

The Silliness Of Erisa: The Plan Is Not The Only Proper Party Defendant In An Erisa Benefits Claim, Donald T. Bogan

Marquette Benefits and Social Welfare Law Review

ERISA recites in § 502(d)(1) that a plan can sue and be sued as an entity. Does such a legislative pronouncement, in and of itself, establish the plan as a juristic person? Further, does Congress’s declaration that a plan can be sued suggest that no other person or entity can be held liable in an ERISA § 502(a)(1)(B) benefits claim? Relying upon ERISA § 502(d)(1), long-standing authority in the Ninth Circuit Court of Appeals, and in other circuits, holds that the plan, and only the plan, is a proper party defendant in an ERISA § 502(a)(1)(B) benefits claim. That is …

Finding The Middle Ground On A Slippery Slope: Balancing Autonomy And Protection In Mandatory Reporting Of Elder Abuse, Benjamin Pomerance

Marquette Benefits and Social Welfare Law Review

Millions of older Americans suffer from physical, mental, emotional, or financial abuse. Frequently, their abusers are family members, close friends, or other individuals who occupy positions of trust in their elderly victims’ lives. Unfortunately, due to a variety of factors, elder abuse is a tragically underreported crime. Experts estimate that for every case of elder abuse revealed to law enforcement authorities, five more cases go unreported, allowing the abuse to continue unchecked.

To combat this secrecy surrounding elder abuse, federal and state lawmakers enacted statutes requiring certain people— or, in some jurisdictions, all people—to report instances of suspected elder abuse …

Creating A "Building A Disability Rights Information Center For Asia And The Pacific Clinic": Pedagogy And Social Justice, Michael L. Perlin, Catherine Barreda, Katherine Davies, Mehgan Gallagher, Nicole Israel, Stephanie Mendelsohn

Marquette Benefits and Social Welfare Law Review

This article describes the work done by the lead author and his students in the creation of the Disability Rights Information Center for Asia and the Pacific (DRICAP), as part of the work the lead author has been doing with colleagues (especially Yoshikazu Ikehara, Esq., director of the Tokyo Advocacy Law Office) for several years to create a Disability Rights Tribunal for Asia and the Pacific (DRTAP). DRICAP’s centerpiece is the creation of a website collecting statutes, regulations, scholarly articles, advocacy news, and case law from selected Asian and Pacific nations. This work was done through a clinic created by …

Essay: A Positive Perspective On Regulation Of The Workplace Relationship, Dana M. Muir

Marquette Benefits and Social Welfare Law Review

Positive Organizational Scholarship studies how business organizations and their employees excel and thrive. It takes the opposite perspective from the traditional organizational research that examines negative deviance and how that deviance inhibits organizational performance. Like traditional organizational scholars, legal scholars (as well as lawyers, legislators, judges, and regulators) typically focus on problems. Examples abound in the field of employment law. For example, to what extent does employment discrimination still exist and how can it be eliminated? And, what constraints prevent Americans from achieving retirement security and how can those constraints be eliminated? This Essay proposes that we examine the Positive …

Table Of Contents

Marquette Benefits and Social Welfare Law Review

No abstract provided.

Characteristics Of Attorneys Representing Children In Child Welfare Cases, Britany Orlebeke, Andrew Zinn, Xiaomeng Zhou, Donald N. Duquette

Articles

Every day in state and local courts throughout the United States, judges are called upon to decide who should have the responsibility for the immediate and long-term care of neglected and abused children. Federal recognition of the right to independent advocacy for children subject to these proceedings originates with the 1974 Federal Child Abuse Prevention and Treatment Act (CAPTA). As a condition of receiving federal funds for child abuse prevention services through CAPTA, states must provide for the appointment of an appropriately trained guardian ad litem (GAL) for every child whose case results in a judicial proceeding. A guardian ad …

Ethics For Media Lawyers: The Lessons Of Ferguson, Leonard M. Niehoff

Articles

Ferguson, Missouri, has a population of roughly 21,000 people. Thirty cities in Missouri have larger populations. The Edward Jones Dome, where the St. Louis Rams play football, seats three times as many people. Most of us had never heard of Ferguson prior to August 9, 2014, when a police oficer named Darren Wilson shot and killed an unarmed black teenager named Michael Brown. But, to paraphrase the grim observation of Ambrose Bierce, war is how Americans learn geography. So, as violence and vandalism erupted on its streets, the nation turned its attention toward Ferguson and labored to understand the place, …

College Sports And The Antitrust Analysis Of Mystique, Sherman J. Clark

Articles

In this response to Marc Edelman’s Article, The District Court Decision in O’Bannon v. National Collegiate Athletic Association: A Small Step Forward for College-Athlete Rights, and a Gateway for Far Grander Change, 71 WASH. & LEE L. REV. 2319 (2014), I highlight a set of conceptual issues that must be confronted if courts are to craft a coherent and stable body of law governing the NCAA’s treatment of student-athletes. First, the value of the product at issue here—college sports—is intimately connected with the nature of the labor used to create it. Second, the nature of that value is amorphous, contingent, …

But What Can We Do? How Juvenile Defenders Can Disrupt The Schoolto-Prison Pipeline, Jonathon Arellano-Jackson

Seattle Journal for Social Justice

No abstract provided.

Listening From The Bench Fosters Civility And Promotes Justice, Paula Lustbader

Seattle Journal for Social Justice

No abstract provided.

Social Purpose Corporations: The Next Targets For Greenwashing Practices And Crowdfunding Scams, Tina H. Ho

Seattle Journal for Social Justice

No abstract provided.

It's The Autonomy, Stupid!' A Modest Defense Of Opinion 2/13 On Eu Accession To The Echr, And The Way Forward, Daniel H. Bicket

Articles

The Court of Justice of the European Union has arrived! Gone are the days of hagiography, when in the eyes of the academy and informed observers the Court could do no wrong. The pendulum has finally swung the other way. The judicial darling, if there is one today, is Strasbourg, not Luxembourg. Not hours had passed before the Court's 258-paragraph long Opinion 2/13 on the Draft Agreement on EU Accession to the European Convention on Human Rights was condemned as “exceptionally poor.” Critical voices have mounted steadily ever since, leading to nothing short of widespread “outrage.”

Judicial Education And Regulatory Capture: Does The Current System Of Educating Judges Promote A Well-Functioning Judiciary And Adequately Serve The Public Interest?, S. I. Strong

Journal of Dispute Resolution

First, the Essay considers certain obstacles to research concerning judicial education as a means of determining why more scholars have not sounded an alarm regarding practices in this field (Section II). The Essay then addresses a number of issues relating to the current approach to judicial education to determine whether and to what extent judicial control over this issue can be considered problematic (Section III). That analysis leads logically into a discussion of various ways that the possibility of regulatory capture of judicial education could be diminished (Section IV). Finally, the Essay concludes by drawing together various strands of analysis …

What Judges Want And Need: User-Friendly Foundations For Effective Judicial Education, Duane Benton, Jennifer A.L. Sheldon-Sherman

Journal of Dispute Resolution

This article evaluates the connection between judicial education and judges’ needs and preferences. In Part I, we begin by discussing the history, purpose, and form of judicial education, charting its evolution over time. In Part II, we examine current judicial education programs and scholarship, highlighting differences and similarities between federal and state programming. In Part III, we analyze the limitations of existing scholarship and programming, arguing judicial education programs are insufficiently tied to evidence of judicial demands. We conclude in Parts IV and V by suggesting two proposals to align programming with needs: (1) an annual needs-based assessment of judicial …

Towards A New Paradigm Of Judicial Education, Mary R. Russell

Journal of Dispute Resolution

When talking about judicial education, a central question emerges: What is the goal of judicial education for judges? A simple answer springs to mind: To make us better judges, of course. This of course is a deceptively simple question with a deceptively simple answer, until there is an attempt to specifically identify how to accomplish this worthy judicial education goal, and that is where simplicity disappears

Writing Reasoned Decisions And Opinions: A Guide For Novice, Experienced, And Foreign Judges, S. I. Strong

Journal of Dispute Resolution

Producing well-written reasoned judgments (a term that is used herein to denote both trial court decisions and appellate opinions) is the goal of all members of the bench. Badly written rulings can have significant legal consequences for both the parties, who may incur costs as a result of a need to appeal a poorly worded decision or opinion, and society as a whole, since a poorly drafted precedent may drive the law in an unanticipated and unfortunate direction or lead to increased litigation as individuals attempt to define the parameters of an ambiguous new ruling. As a result, helping judges …