Law Commons^™

Political Decision-Making At The National Labor Relations Board: An Empirical Examination Of The Board's Unfair Labor Practice Disputes Through The Clinton And Bush Ii Years, Amy Semet

Journal Articles

Does partisan ideology influence the voting of members of multi-member adjudicatory bodies at “independent agencies”? In studying the federal circuit courts of appeals, scholars have found that results of cases vary depending upon the partisan composition of the particular panel hearing a case. Few scholars to date, however, have systematically studied whether partisan panel effects occur in administrative adjudication. In this Article, I explore the impact that partisan ideology and panel composition have on the vote choices of an administrative agency rumored to be one of the most partisan: the National Labor Relations Board (“NLRB”). Employing an original dataset of …

Practice-Driven Changes To Constitutional Structures Of Governance, James A. Gardner

Journal Articles

Among the methods of informal constitutional change, perhaps the least studied or understood is change resulting from alterations in the way governance is practiced. Such changes, typically initiated by political actors in the executive and legislative branches, is probably the most common kind of constitutional change, and is almost certainly the most common source of informal change to structural provisions. In the United States, the best known instances of practice-driven changes to constitutional structure come from the federal level – the rise of a formal party system, for example, or the dramatic twentieth-century expansion of presidential power. Yet by far …

Enhancing Conservation Options: An Argument For Statutory Recognition Of Options To Purchase Conservation Easements (Opces), Federico Cheever, Jessica Owley

Journal Articles

The most dynamic component of the conservation movement in the United States for the past three decades has been land conservation transactions. In the United States, land conservation organizations have protected roughly 40 million acres of land through transactions. Most of these acres have been protected using conservation easements. Climate change threatens the vast conservation edifice created by land conservation transactions. The tools of land conservation transactions are, traditionally, stationary. Climate change means that the resources that land conservation transactions were intended to protect may no longer remain on the land protected. Options to purchase conservation easements (OPCEs) have long …

Differentiating Deference, Anya Bernstein

Journal Articles

When an administrative agency’s interpretation of an ambiguous statutory term is challenged in court, the Chevron doctrine instructs judges to evaluate whether it is reasonable. But how does a court know reasonableness when it sees it? Here, I first show that reasonableness review is more complex than it might seem. Contrary to common images, for instance, courts do not determine a range of reasonable interpretations; and that is a good thing, because they are not competent to do so. Moreover, because traditional statutory interpretation approaches presume the existence of one correct meaning for a given word, they are not well …

All In The Family: A Legacy Of Public Service And Engagement - Edward And Thomas Fairchild, R. Nils Olsen Jr.

Journal Articles

No abstract provided.

Law And Economics: Contemporary Approaches, Martha T. Mccluskey, Frank A. Pasquale Iii, Jennifer Taub

Journal Articles

A relatively narrow version of Law and Economics has dominated public policy for several decades. This school of thought has mainly focused on neoclassical microeconomics. It fails to recognize the pluralism of contemporary economics in general, and the relevance of macroeconomics in particular. So-called “market forces” are thoroughly intertwined with law and cannot be understood without some reference to history, sociology, psychology, and other social sciences. It is time for legal scholars to develop a law and economics curriculum that catches up with the advance of economics as a discipline.

The urgent challenges of the 21st Century also call for …

Bills Of Attainder, Matthew J. Steilen

Journal Articles

What are bills of attainder? The traditional view is that bills of attainder are legislation that punishes an individual without judicial process. The Bill of Attainder Clause in Article I, Section 9 prohibits the Congress from passing such bills. But what about the President? The traditional view would seem to rule out application of the Clause to the President (acting without Congress) and to executive agencies, since neither passes bills.

This Article aims to bring historical evidence to bear on the question of the scope of the Bill of Attainder Clause. The argument of the Article is that bills of …

Twiqbal In Context, Christine P. Bartholomew

Journal Articles

No abstract provided.

The Interactive Dynamics Of Transnational Business Governance: A Challenge For Transnational Legal Theory, Stepan Wood, Kenneth W. Abbott, Julia Black, Burkard Eberlein, Errol E. Meidinger

Journal Articles

Conflict, convergence, cooperation, competition and other interactions among governance actors and institutions have long fascinated scholars of transnational law, yet transnational legal theorists’ accounts of such interactions are for the most part tentative, incomplete and unsystematic. Having elsewhere proposed an overarching conceptual framework for the study of transnational business governance interactions (TBGI), in this article we propose criteria for middle-range theory-building. We argue that a portfolio of theoretical perspectives on transnational governance interactions should account for the multiplicity of interacting entities and scales of interaction; the co-evolution of social agency and structure; the multiple components of regulatory governance; the role …

The Changing Landscape Of Trademark Law In Tinseltown: From Debbie Does Dallas To The Hangover, John Tehranian, Mark Bartholomew

Contributions to Books

This Essay, a chapter published in the book Hollywood and the Law (Palgrave Macmillan / British Film Institute, 2015), explores how courts have sought to balance the competing interests at stake when filmmakers make unauthorized uses of trademarks in their work and brand owners threaten liability for infringement. Using the seminal Rogers v. Grimaldi decision as a key pivot point, the Essay traces the remarkable change in approaches that courts have taken to First Amendment defenses in trademark cases in the past few decades. In presenting case studies of two opinions -- Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd. …

Leave No Soldier Behind? The Legality Of The Bowe Bergdahl Prisoner Swap, Steven M. Maffucci

Buffalo Law Review

No abstract provided.

Gender Diversity And Disparity In The Legal Profession: An Empirical Analysis Of The Gender Profile In National Law Firms And Law Schools, Edward S. Adams, Samuel P. Engel

Buffalo Law Review

No abstract provided.

My Coworker, My Enemy: Solidarity, Workplace Control, And The Class Politics Of Title Vii, Ahmed A. White

Buffalo Law Review

No abstract provided.

Victim Compensation Funds And Tort Litigation Following Incidents Of Mass Violence, Paul Heaton, Ivan Waggoner, Jamie Morikawa

Buffalo Law Review

No abstract provided.

Common Law Fundamentals Of The Right To Abortion, Anita Bernstein

Buffalo Law Review

No abstract provided.

When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas

Journal Articles

Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against …

Personal Responsibility For Systemic Inequality, Martha T. Mccluskey

Contributions to Books

Published as Chapter 15 in Research Handbook on Political Economy and Law, Ugo Mattei & John D. Haskell, eds.

Equality has faded as a guiding ideal for legal theory and policy. An updated message of personal responsibility has helped rationalize economic policies fostering increased inequality and insecurity. In this revised message, economic “losers” should take personal responsibility not only for the harmful effects of their individual economic decisions, but also for the harmful effects of systemic failures beyond their individual control or action. In response to the 2008 financial crisis, this re-tooled message of personal responsibility promoted mass austerity in …

The Opinion Volume 48 Issue 1 – November 1, 2015, The Opinion

The Opinion Newspaper (all issues)

The Opinion newspaper issue dated November, 1, 2015

Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey

Journal Articles

For a symposium on Teaching Ferguson, this essay considers how the standard introductory constitutional law course evades the history of legal struggle against institutionalized anti-black violence. The traditional course emphasizes the drama of anti-majoritarian judicial expansion of substantive rights. Looming over the doctrines of equal protection and due process, the ghost of Lochner warns of dangers of judicial leadership in substantive constitutional change. This standard narrative tends to lower expectations for constitutional justice, emphasizing the virtues of judicial modesty and formalism.

By supplementing the ghost of Lochner with the ghost of comparably infamous and influential case, United States v. Cruikshank …

Here Today, Gone Tomorrow? Post-Grant Review And Ptab Interpretation Of § 101 Subject Matter After Myriad, Conor T. Flynn

Buffalo Intellectual Property Law Journal

Post-grant review is a new review procedure for granted patents in the United States. The procedure, instituted as a mechanism to get rid of "bad patents," allows any outside party, within nine months of the patent grant date, to challenge the validity of a granted patent on any ground under the patent law, including patentable subject matter, provided that the petitioner can demonstrate that it is more likely than not that at least one of the claims challenged in the petition is unpatentable, or if there is a showing that "the petition raises a novel or unsettled legal question that …

Very Few Appreciated Just How Bad Aia Inter Partes Reviews (Iprs) Would Be For Patent Owners, Although Ipr Denials Have Been, For Patent Owners, A Glimmer Of Hope, Stacy Lewis, Tom Irving

Buffalo Intellectual Property Law Journal

No abstract provided.

Spotlight On Objective Evidence Of Nonobviousnes In Aia Post-Grant Proceedings, Shing-Yi (Cindy) Cheng, Li Feng, Stacy Lewis, Tom Irving

Buffalo Intellectual Property Law Journal

No abstract provided.

Navigating The Limitations On Discovery In Aia Post-Grant Proceedings, Mary R. Henninger, Jill K. Macalpine, Amelia Feulner Baur, Anthony A. Hartmann, Lara C. Kelley, Rebecca M. Mcneill, P. Andrew Riley, Michael A. Stramiello

Buffalo Intellectual Property Law Journal

No abstract provided.

Spotlight On Claim Construction Before Ptab, James Stein, Jennifer Gupta, Hojung Cho, Stacy Lewis, Tom Irving

Buffalo Intellectual Property Law Journal

No abstract provided.

Stay Awhile: The Evolving Law Of District Court Stays In Light Of Inter Partes Review, Post-Grant Review, And Covered Business Method Post-Grant Review, Jonathan Stroud, Linda Thayer, Jeffrey C. Totten

Buffalo Intellectual Property Law Journal

No abstract provided.

Amending Rather Than Cancelling Claims In Inter Partes Reviews, Stacy Lewis, Tom Irving

Buffalo Intellectual Property Law Journal

No abstract provided.

Medical Malpractice Limitations For New York Infants—Time For A Change Of Time, Eugene T. Maccarrone, Victor D. Lopez

Buffalo Public Interest Law Journal

No abstract provided.

Termination Of Parental Rights Of Mentally Disabled Parents In New York: Suggestions For Fixing An Overbroad, Outdated Statute, Brandon R. White

Buffalo Public Interest Law Journal

No abstract provided.

If You've Got The Money, I'Ve Got The Time: The Benefits Of Incentive Contracts With Private Prisons, Michael G. Anderson

Buffalo Public Interest Law Journal

Governments increasingly rely on private prison companies to manage the daunting demands associated with their ever- increasing prison populations. The private prison industry provides governments at all levels (federal, state, and local) with an alternative to the costly and time-consuming construction of additional public facilities. Governments, however, have all too often adopted a flawed pricing strategy, paying private prison companies fixed per diem rates to house prisoners. This model both incentivized and tolerated poor conditions with greater emphasis placed on the industry's bottom line than benefits to the state, the prison population, or society as a whole.

This article asserts …

Keepin' It "Real": Israel's Segregation Of Transgender Prisoners And The Transgender/Cisgender Binary, Lihi Yona

Buffalo Journal of Gender, Law & Social Policy

No abstract provided.