Law | Open Access Articles | Digital Commons Network™

Court Of Appeals Of New York, Watson V. State Commission On Judicial Conduct, Denise Shanley

Touro Law Review

No abstract provided.

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Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz

Touro Law Review

No abstract provided.

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A Modular One-Generation Reproduction Study As A Flexible Testing System For Regulatory Safety Assessment, Richard Vogel, Troy Seidle, Horst Spielmann

Troy Seidle, PhD

The European Union’s Registration, Evaluation and Authorisation of Chemicals (REACH) legislation mandates testing and evaluation of approximately 30,000 existing substances within a short period of time, beginning with the most widely used “high production volume” (HPV) chemicals. REACH testing requirements for the roughly 3000 HPV chemicals specify three separate tests for reproductive toxicity: two developmental toxicity studies on different animal species (OECD Test Guideline 414) and a two-generation reproduction toxicity study (OECD TG 416). These studies are highly costly in both economic and animal welfare terms. OECD TG 416 is a fertility study intended to evaluate reproductive performance of animals …

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Congressional Perspective On Multilateral Trade Negotiations, Edgar L. Jenkins

Georgia Journal of International & Comparative Law

No abstract provided.

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Amici Curiae Brief Of New York Law School Professors In People V. Harris: Constitutionality Of The New York Death Penalty Statute Under The State Constitution's Cruel And Unusual Punishments And Antidiscrimination Clauses, Anthony G. Amsterdam, Ursula Bentele, Vivian Berger, John H. Blume, Peggy Davis, Deborah Denno, Markus Dubber, Stephen Ellmann, Deborah Fins, Eric M. Freedman, Stephen P. Garvey, Jack Greenberg, Randy Hertz, Sheri Lynn Johnson, Richard Klein, James Liebman, Peter Neufeld, Barry Scheck, Bryan Stevenson

Sheri Lynn Johnson

Amici are teachers in New York law schools who have studied the operation of the death penalty for the purpose of teaching the subject, writing about it in scholarly journals, or representing persons accused or convicted of capital crimes. Most of us have worked in the field both as academics and as pro bono counsel for condemned inmates. Collectively, we have had first-hand experience in hundreds of death cases, in dozens of jurisdictions, extending over more than a third of a century. Our experience has convinced us that capital punishment cannot be administered with the fairness, reliability, and freedom from …

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Insource The Shareholding Of Outsourced Employees: A Global Stock Ownership Plan, Robert C. Hockett

Robert C. Hockett

With the American economy stalled and another federal election campaign season well underway, the “outsourcing” of American jobs is again on the public agenda. Latest figures indicate not only that claims for joblessness benefits are up, but also that the rate of American job-exportation has more than doubled since the last electoral cycle. This year’s political candidates have been quick to take note. In consequence, more than at any time since the early 1990s, continued American participation in the World Trade Organization, in the North American Free Trade Agreement, and in the processes of global economic integration more generally appear …

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Taking Distribution Seriously, Robert C. Hockett

Robert C. Hockett

It is common for legal theorists and policy analysts to think and communicate mainly in maximizing terms. What is less common is for them to notice that each time we speak explicitly of socially maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. We also, moreover, effectively define ourselves and our fellow citizens by reference to that which we equalize; for it is in virtue of the latter that our social welfare formulations treat us as “counting” for purposes of socially aggregating and maximizing. To attend systematically to the inter-translatability of maximization language on …

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Why Paretians Can’T Prescribe: Preferences, Principles, And Imperatives In Law And Policy, Robert C. Hockett

Robert C. Hockett

Recent years have witnessed two linked revivals in the legal academy. The first is renewed interest in articulating a normative “master principle” by which legal rules might be evaluated. The second is renewed interest in the prospect that a variant of Benthamite “utility” might serve as the requisite touchstone. One influential such variant now in circulation is what the Article calls “Paretian welfarism.” This Article rejects Paretian welfarism and advocates an alternative it calls “fair welfare.” It does so because Paretian welfarism is inconsistent with ethical, social, and legal prescription, while fair welfare is what we have been groping for …

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Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett

Robert C. Hockett

Despite over a century’s disputation and attendant opportunity for clarification, the field of inquiry now loosely labeled “welfare economics” (WE) remains surprisingly prone to foundational confusions. The same holds of work done by many practitioners of WE’s influential offshoot, normative “law and economics” (LE). A conspicuous contemporary case of confusion turns up in recent discussion concerning “fairness versus welfare.” The very naming of this putative dispute signals a crude category error. “Welfare” denotes a proposed object of distribution. “Fairness” describes and appropriate pattern of distribution. Welfare itself is distributed fairly or unfairly. “Fairness versus welfare” is analytically on all fours …

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Amici Curiae Brief Of New York Law School Professors In People V. Harris: Constitutionality Of The New York Death Penalty Statute Under The State Constitution's Cruel And Unusual Punishments And Antidiscrimination Clauses, Anthony G. Amsterdam, Ursula Bentele, Vivian Berger, John H. Blume, Peggy Davis, Deborah Denno, Markus Dubber, Stephen Ellmann, Deborah Fins, Eric M. Freedman, Stephen P. Garvey, Jack Greenberg, Randy Hertz, Sheri Lynn Johnson, Richard Klein, James Liebman, Peter Neufeld, Barry Scheck, Bryan Stevenson

Stephen P. Garvey

Amici are teachers in New York law schools who have studied the operation of the death penalty for the purpose of teaching the subject, writing about it in scholarly journals, or representing persons accused or convicted of capital crimes. Most of us have worked in the field both as academics and as pro bono counsel for condemned inmates. Collectively, we have had first-hand experience in hundreds of death cases, in dozens of jurisdictions, extending over more than a third of a century. Our experience has convinced us that capital punishment cannot be administered with the fairness, reliability, and freedom from …

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Are Housekeepers Like Judges?, Stephen P. Garvey

Stephen P. Garvey

Professor Greenawalt proposes that we look at interpretation "from the bottom up." By taking a close look at informal relationships between an authority and his or her agent, and how the agent "faithfully performs" instructions within such relationships, he hopes to gain insight into the problems surrounding the interpretation of legal directives. The analysis of "faithful performance" in informal contexts which Professor Greenawalt presents in From the Bottom Up is the first step in a larger project. His next step is to see what lessons the interpretation of instructions in informal contexts has for law. This Comment tries to contribute …

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On Misusing “Revolution” And “Reform”: Procedural Due Process And The New Welfare Act, Cynthia R. Farina

Cynthia R. Farina

After a long dry spell, the debate over procedural due process flows again. The Supreme Court has announced the first major doctrinal revision in years; Congress has gutted the regulatory program that underlay Goldberg v. Kelly; and Richard Pierce has published an essay in the Columbia Law Review prophesying a radical de-evolution of due process doctrine that will bring constitutional law into line with the profound political and social revolution evidenced by welfare “reform.” My essay takes Professor Pierce's recent work as a springboard for reengaging the debate about the direction of procedural due process. I begin by recapitulating his …

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Time For Change: Bringing Massachusetts Homestead And Personal Property Exemptions Into The Twenty-First Century, Lee Harrington

University of Massachusetts Law Review

There are presently two pieces of legislation pending on Beacon Hill that are intended to offer amendments to the Homestead Statute and Exemption Statute that would offer meaningful changes and real relief for the citizens of the Commonwealth. This article provides a brief history of the two statutory schemes, provides some comparisons to the schemes in other states, and highlights the changes sought by the proposed amendments.

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The Phenomenology Of Gridlock, Josh Chafetz

Josh Chafetz

Assertions that our legislative process is gridlocked — perhaps even "hopelessly" so — are endemic. So many more of our problems would be fixed, the thinking goes, if only our political institutions were functioning properly. The hunt for the causes of gridlock is therefore afoot. This brief Essay, written for the Notre Dame Law Review's 2012 "The American Congress: Legal Implications of Gridlock" Symposium, argues that this hunt is fundamentally misguided, because gridlock is not a phenomenon. Rather, gridlock is the absence of phenomena; it is the absence, that is, of legislative action. Rather than asking why we experience gridlock, …

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Amici Curiae Brief Of New York Law School Professors In People V. Harris: Constitutionality Of The New York Death Penalty Statute Under The State Constitution's Cruel And Unusual Punishments And Antidiscrimination Clauses, Anthony G. Amsterdam, Ursula Bentele, Vivian Berger, John H. Blume, Peggy Davis, Deborah Denno, Markus Dubber, Stephen Ellmann, Deborah Fins, Eric M. Freedman, Stephen P. Garvey, Jack Greenberg, Randy Hertz, Sheri Lynn Johnson, Richard Klein, James Liebman, Peter Neufeld, Barry Scheck, Bryan Stevenson

John H. Blume

Amici are teachers in New York law schools who have studied the operation of the death penalty for the purpose of teaching the subject, writing about it in scholarly journals, or representing persons accused or convicted of capital crimes. Most of us have worked in the field both as academics and as pro bono counsel for condemned inmates. Collectively, we have had first-hand experience in hundreds of death cases, in dozens of jurisdictions, extending over more than a third of a century. Our experience has convinced us that capital punishment cannot be administered with the fairness, reliability, and freedom from …

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Computer Programs Under The United States Intellectual Property System: Sui Generis Legislation Is Needed, Joseph Francis Agnelli, Iii

University of Massachusetts Law Review

Section I of this article explores the different avenues of intellectual property protection presently available for computer software here in the United States. Section II then discusses how the European Community has resolved the computer program crisis under European intellectual property law. Lastly, section III will illustrate why sui generis legislation would be the paramount way for Congress to attack the intricacy that is created by computer programs under American intellectual property law.

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State Sovereign Immunity And Intellectual Property: An Evaluation Of The Trademark Remedy Clarification Act’S Attempt To Subject States To Suit In Federal Courts For Trademark Infringements Under The Lanham Act, Jennifer L. Fessler

University of Massachusetts Law Review

There are two things that can be learned from this paper. First, the analytical framework developed by the Court in City of Boerne is a stringent test that has considerably narrowed Congress’s ability to abrogate state’s Eleventh Amendment immunity through legislation. Second, only half of the battle was won when Congress enacted the Trademark Remedy Clarification Act. Although it met the new requirements the Court placed on legislative efforts in Atascadero, it is not able to meet the requirements that were later set forth in Seminole Tribe. The Rehnquist Court’s holdings indicate the Court’s active pursuit of state’s …

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Toward A Less Adversarial Relationship Between Chevron And Gardner, James D. Ridgway

University of Massachusetts Law Review

Veterans benefits are a creature of statute. As such, nearly every veterans benefits issue presented to the courts for resolution involves the interpretation of a statute, regulation, or sub-regulatory authority. Although veterans law has been subject to judicial review for over twenty-five years, the courts still have yet to develop a coherent doctrine regarding when to resolve ambiguity in favor of the veteran versus when to defer to the interpretations of the Department of Veterans Affairs. This Article explores three possible approaches to developing a coherent vision of how veteran friendliness and agency deference can coexist and provide more predictability …

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The Case For Extending Pretrial Diversion To Include Possession Of Child Pornography, Sarah J. Long

University of Massachusetts Law Review

Pretrial diversion removes offenders with a low-risk of reoffending from the penal system and instead sends them to supervised treatment programs. The result is lower cost to the state and a second chance for those who successfully complete the program. Typically, violent crimes, such as murder and attempted murder, are exempt from pretrial diversion. Notably, sex related crimes are also ineligible in all jurisdictions. By excluding all sex-related crimes from pretrial diversion, possession of child pornography is adjudicated by the courts. As a result, young, first-time offenders who may be candidates for treatment are bundled with physical offenders, members of …

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Dynamic Surveillance: Evolving Procedures In Metadata And Foreign Content Collection After Snowden, Peter Margulies

Law Faculty Scholarship

No abstract provided.

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Enforceability Of Mandatory Arbitration Clauses For Shareholder-Corporation Disputes, Garry D. Hartlieb

Michigan Business & Entrepreneurial Law Review

Investor litigation is an increasingly vexatious field of law. Nearly every time a significant change of control or corporate ownership occurs, plaintiffs’ attorneys file standardized complaints to set in motion class action suits. Ultimately, the settlements shareholders receive fail to achieve the practical effects that parties on both sides desire. Shareholders may receive pennies on the dollar of what they allege was lost by corporate wrongdoing, and, in some cases, shareholders may not receive monetary recovery as the settlement requires only that the corporation to make changes to its governing documents. These suits distract directors and management from the core …

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The Limits Of Enumeration, Richard A. Primus

Articles

According to a well-known principle of constitutional interpretation here identified as the “internal-limits canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article argues that the internallimits canon is unsound. Whether the powers of Congress would in practice authorize any legislation that a police power would authorize is a matter of contingency: it depends on the relationship between the powers and the social world at a given time. There is no reason why, at a given time, the powers cannot turn out to authorize any legislation that a police …

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The Fragmented Regulation Of Investment Advice: A Call For Harmonization, Christine Lazaro, Benjamin P. Edwards

Michigan Business & Entrepreneurial Law Review

Decades of short-term thinking and regulatory fixes created the bewilderingly complex statutory and regulatory structures governing the giving of personalized investment advice to retail customers. Although deeply flawed, the current systems remain entrenched because of the difficulties inherent in making radical alterations. Importantly, the current patchwork systems do not seem to serve retail customers particularly well. Retail customers tend to make predictable and costly mistakes in allocating their assets. Some of this occurs because many investors lack basic financial literacy. A recent study released by the staff of the Securities and Exchange Commission (the “Commission”) on financial literacy among investors …

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The Risk Of Money Laundering Through Crowdfunding: A Funding Portal's Guide To Compliance And Crime Fighting, Zachary Robock

Michigan Business & Entrepreneurial Law Review

With the recent passage of the Jumpstart Our Business Startups Act (“JOBS Act”) and proposed regulations, equity crowdfunding is poised to play an important role in fundraising for many types of emerging growth companies. A fundamental purpose of crowdfunding is to reduce economic barriers to capital markets for emerging growth companies, in part by relaxing rigorous information disclosure requirements currently mandated by the Securities and Exchange Commission (“SEC”). Relaxed regulation should help reduce the cost of fundraising, but it will also present certain risks. Investor fraud is a common concern, which is addressed at length in the JOBS Act and …

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The Volcker Rule, Banking Entities, And Covered Funds Activities, Jeffrey Koh, Kyle Gaughan

Michigan Business & Entrepreneurial Law Review

With the passage of the 2010 Dodd-Frank Act, Congress instituted a host of new laws attempting to protect consumers from the types of risky trading that led to the 2008 economic crisis. However, many of the new rules and regulations, including the Volcker Rule, are yet to fully take effect. Among other restrictions, the Volcker Rule attempts to curtail risky trading by limiting banking entity investments in private equity and venture capital funds. As the Volcker Rule nears its implementation deadline, banking entities are concerned that they will face substantial losses in having to comply with the Volcker Rule by …

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Sex Offender Law And The Geography Of Victimization, Amanda Y. Agan, J. J. Prescott

Articles

Sex offender laws that target recidivism (e.g., community notification and residency restriction regimes) are premised—at least in part—on the idea that sex offender proximity and victimization risk are positively correlated. We examine this relationship by combining past and current address information of registered sex offenders (RSOs) with crime data from Baltimore County, Maryland, to study how crime rates vary across neighborhoods with different concentrations of resident RSOs. Contrary to the assumptions of policymakers and the public, we find that, all else equal, reported sex offense victimization risk is generally (although not uniformly) lower in neighborhoods where more RSOs live. To …

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Interest Groups In The Teaching Of Legal History, Herbert J. Hovenkamp

All Faculty Scholarship

One reason legal history is more interesting than it was several decades ago is the increased role of interest groups in our accounts of legal change. Diverse movements including law and society, critical legal theory, comparative law, and public choice theory have promoted this development, even among writers who are not predominantly historians. Nonetheless, in my own survey course in American legal history I often push back. Taken too far, interest group theorizing becomes an easy shortcut for assessing legal movements and developments without fully understanding the ideas behind them.

Intellectual history in the United States went into decline because …

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Will It Really Save You? Analyzing The Campus Sexual Violence Elimination Act, Rachel Marshall

Legislation and Policy Brief

No abstract provided.

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Passing The Torch But Sailing Too Close To The Wind: Congress’S Role In Authorizing Administrative Branches To Promulgate Regulations That Contemplate Criminal Sanctions, Reem Sadik

Legislation and Policy Brief

The Supreme Court has stated that Congress must simply “lay down by legislative act an intelligible principle” to which the agency must conform. If this is done, a court will find the delegation of broad authority to the agency to be constitutional. There is, however, an open issue regarding whether the “intelligible principle” standard applies to delegations of authority that allow for the promulgation of both civil and criminal penalties. In Touby v. United States, the Supreme Court was asked whether “something more than an ‘intelligible principle’ is required” when Congress authorizes an agency to issue regulations that contemplate …

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Suppuration Of Powers: Abscam, Entrapment And The Politics Of Expulsion, Henry Biggs

Legislation and Policy Brief

No abstract provided.

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Full-Text Articles in Law

Court Of Appeals Of New York, Watson V. State Commission On Judicial Conduct, Denise Shanley

Touro Law Review

Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz

Touro Law Review

A Modular One-Generation Reproduction Study As A Flexible Testing System For Regulatory Safety Assessment, Richard Vogel, Troy Seidle, Horst Spielmann

Troy Seidle, PhD

Congressional Perspective On Multilateral Trade Negotiations, Edgar L. Jenkins

Georgia Journal of International & Comparative Law

Sheri Lynn Johnson

Insource The Shareholding Of Outsourced Employees: A Global Stock Ownership Plan, Robert C. Hockett

Robert C. Hockett

Taking Distribution Seriously, Robert C. Hockett

Robert C. Hockett

Why Paretians Can’T Prescribe: Preferences, Principles, And Imperatives In Law And Policy, Robert C. Hockett

Robert C. Hockett

Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett

Robert C. Hockett

Stephen P. Garvey

Are Housekeepers Like Judges?, Stephen P. Garvey

Stephen P. Garvey

On Misusing “Revolution” And “Reform”: Procedural Due Process And The New Welfare Act, Cynthia R. Farina

Cynthia R. Farina

Time For Change: Bringing Massachusetts Homestead And Personal Property Exemptions Into The Twenty-First Century, Lee Harrington

University of Massachusetts Law Review

The Phenomenology Of Gridlock, Josh Chafetz

Josh Chafetz

John H. Blume

Computer Programs Under The United States Intellectual Property System: Sui Generis Legislation Is Needed, Joseph Francis Agnelli, Iii

University of Massachusetts Law Review

State Sovereign Immunity And Intellectual Property: An Evaluation Of The Trademark Remedy Clarification Act’S Attempt To Subject States To Suit In Federal Courts For Trademark Infringements Under The Lanham Act, Jennifer L. Fessler

University of Massachusetts Law Review

Toward A Less Adversarial Relationship Between Chevron And Gardner, James D. Ridgway

University of Massachusetts Law Review

The Case For Extending Pretrial Diversion To Include Possession Of Child Pornography, Sarah J. Long

University of Massachusetts Law Review

Dynamic Surveillance: Evolving Procedures In Metadata And Foreign Content Collection After Snowden, Peter Margulies

Law Faculty Scholarship

Enforceability Of Mandatory Arbitration Clauses For Shareholder-Corporation Disputes, Garry D. Hartlieb

Michigan Business & Entrepreneurial Law Review

The Limits Of Enumeration, Richard A. Primus

Articles

The Fragmented Regulation Of Investment Advice: A Call For Harmonization, Christine Lazaro, Benjamin P. Edwards

Michigan Business & Entrepreneurial Law Review

The Risk Of Money Laundering Through Crowdfunding: A Funding Portal's Guide To Compliance And Crime Fighting, Zachary Robock

Michigan Business & Entrepreneurial Law Review

The Volcker Rule, Banking Entities, And Covered Funds Activities, Jeffrey Koh, Kyle Gaughan

Michigan Business & Entrepreneurial Law Review

Sex Offender Law And The Geography Of Victimization, Amanda Y. Agan, J. J. Prescott

Articles

Interest Groups In The Teaching Of Legal History, Herbert J. Hovenkamp

All Faculty Scholarship

Will It Really Save You? Analyzing The Campus Sexual Violence Elimination Act, Rachel Marshall

Legislation and Policy Brief

Passing The Torch But Sailing Too Close To The Wind: Congress’S Role In Authorizing Administrative Branches To Promulgate Regulations That Contemplate Criminal Sanctions, Reem Sadik

Legislation and Policy Brief

Suppuration Of Powers: Abscam, Entrapment And The Politics Of Expulsion, Henry Biggs

Legislation and Policy Brief