Law Commons^™

Does Tort Law Empower?, Anthony J. Sebok

Online Publications

Ori Herstein’s How Tort Law Empowers takes on the question of whether and how tort law empowers victims. Herstein presents himself as a friendly critic of civil recourse theory, and offers an amendment that he claims makes the theory both more plausible and less interesting. Like many friendly amendments, it is an offer that must be carefully examined before it is accepted.

Intersection Of Art And Criminal Law: The Ethics Of True Crime, Melissa Rutman

AELJ Blog

True crime reporting has long captivated audiences. By reporting details of an actual crime in a sensationalized way, the genre is often described as “infotainment” – the blending of information and entertainment. The modern genre was likely inaugurated by Truman Capote’s In Cold Blood, and gripping accounts of murders and serial killers continue to populate bookshelves. True crime also spills over to primetime television in shows like the Nancy Grace show, with reporting on the Casey Anthony and Amanda Knox cases. But in addition to journalistic and sensational impact, true crime reporting also overlaps with legal investigation of crimes in …

Obama Administration’S Position On The Un Torture Convention: New? Yes. Significant? Not So Much, Gabor Rona

Online Publications

Could it be that American international law experts and human rights advocates are suffering from some form of Stockholm Syndrome — so many defeats and dashed hopes at the hands of our government that we sometimes take excessive comfort in small and imaginary crumbs that it drops for us? For an example of this, look no further than the United States’ appearance last week before the UN’s Committee against Torture in Geneva – the body established by the Convention against Torture (CAT) to monitor State compliance with the Convention.

Crowdfunding And Its Impact On Indie Film, Andrew Eisbrouch

AELJ Blog

Crowdfunding has become a popular new way for filmmakers as well as entrepreneurs, small businesses, and philanthropists to raise capital by obtaining small contributions from a large number of individuals over the Internet. Websites such as Kickstarter, IndieGoGo, RocketHub, and WeFunder have provided a portal for films like Wish You Were Here, Veronica Mars, and Sharknado 2 to obtain needed financing. A recent legislation has the potential to change this crowdfunding and indie film landscape. On April 5th, 2012, President Obama signed into law the Jumpstart Our Business Startups Act (“JOBS Act”), which legalizes equity crowdfunding over the Internet.

This …

Apple Pay: More Personal Information, Less Privacy Concerns, Christina Batog

AELJ Blog

Recently, it seems almost every week there is a new data breach at a particularly large retailer. If you’ve ever used a credit card at the store, a slight panic sets in that your information could have been stolen. You enroll in the free credit protection service provided and you continue to shop at the affected stores, paying with your credit and debit cards.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on November 1, 2014. The original post can be accessed via the Archived Link button above.

Protecting Fashion: A Comparative Analysis Of Fashion Design Protection In The U.S. And Europe, Francesca Montalvo Witzburg

AELJ Blog

This paper will compare the intellectual property fashion design protections in the United States, including the recent congressional attempt to protect fashion designs under copyright law, with the fashion intellectual property protections offered in the European Union, France, Italy and the U.K.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on September 19, 2014. The original post can be accessed via the Archived Link button above.

Real Jail For Wow-Crimes?, Sam Castree

AELJ Blog

Recently, a British politician suggested that theft of virtual items in online games should be punished like real theft. Mike Weatherley – by day the chief adviser on intellectual property to the Prime Minister, by night a mighty hero of Azeroth in the MMORPG World of Warcraft – asked the British Minister of State for Justice to propose legislation “to ensure that cyber criminals who steal online items in video games with a real-world monetary value received the same sentences as criminals who steal real-world items of the same monetary value.” So if you steal an in-game magic item worth …

Operation Arbitration: Privatizing Medical Malpractice Claims, Myriam E. Gilles

Articles

Binding arbitration is generally less available in tort suits than in contract suits because most tort plaintiffs do not have a pre-dispute contract with the defendant, and are unlikely to consent to arbitration after the occurrence of an unforeseen injury. But the Federal Arbitration Act applies to all "contract[s] evincing a transaction involving commerce, " including contracts for healthcare and medical services. Given the broad trend towards arbitration in nearly every other business-to-consumer industry, coupled with some rollbacks in tort reform measures that have traditionally favored medical professionals in the judicial system, it is very possible that we may witness …

“Copyright Is For Losers©™”: Street Art Flourishes In Intellectual Property’S Negative Space, Cathay Y. N. Smith

AELJ Blog

To exist in intellectual property’s “negative space” is characterized as existing in “the territory where IP law might regulate, but (perhaps for accidental or nonessential reasons) does not.” ((Kal Raustiala and Christopher Sprigman, Response, The Piracy Paradox Revisited, 61 Stan. L. Rev. 1201 (2009) )) There are many well-known examples of successful creative industries that exist in intellectual property’s negative space, such as fashion, stand-up comedy, food/cuisine, and American football. This post suggests that “street art” is successfully existing, operating and flourishing in intellectual property’s negative space.

This post was originally published on the Cardozo Arts & Entertainment Law Journal …

Legalizing Mma: Mixed-Martial Arts, New York State, And Strategic Litigation, Sara Ross

AELJ Blog

The sport of mixed-martial arts (“MMA”) continues to grow wildly in popularity. It boasts an avid and involved fan base and is widely available and watched on television. Yet, professional MMA events are banned in New York State. New York State is one of the last remaining bastions in MMA’s quest for legitimacy, regulation, and inclusion in mainstream culture. In each of the last several years, the New York State Senate has passed a bill that would legalize MMA in New York, but each time, the bill is blocked from reaching the floor of the State Assembly. The reasons for …

Fraud And Abuse In Mesothelioma Litigation, Lester Brickman

Articles

No abstract provided.

The Burdens Of Pleading, Alexander A. Reinert

Articles

To preview my argument briefly, plausibility pleading formally asks judges—for the first time since the advent of the Federal Rules—to engage in a merits-based analysis at the pleading stage based on their “judicial experience and common sense.” Judges are expected to engage in this inquiry with only the factual allegations in the complaint at their disposal. Putting aside the difficulty of conducting this analysis under the best of circumstances, our federal judges have extremely limited judicial experience to apply to merits-based decisions. The number of trials, the ultimate arbiter of merit, has fallen precipitously in the past fifty years. Trials …

Aelj Acquisitions Editor Wins Ip Writing Contest, Cardozo Arts & Entertainment Law Journal

AELJ Blog

Kristen Niven, Acquisitions Editor of Cardozo Arts & Entertainment Law Journal, Volume 33, won first place in the 2014 Honorable William Conner Intellectual Property Law Writing Competition, awarded by the New York Intellectual Property Law Association. Her note, Towards a New Model for Social Media Newsgathering: AFP v. Morel and Digital Rights in the Age of Citizen Journalism, will be published in a forthcoming AELJ Volume 33.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on May 23, 2014. The original post can be accessed via the Archived Link button above.

European Legal Development: The Case Of Tort: Comparative Studies In The Development Of The Law Of Tort In Europe, Vol 9, Anthony Sebok

Articles

This review addresses volumes 7-9 of the series Comparative Studies in the Development of the Law of Torts in Europe, edited by John Bell and David Ibbetson and published by Cambridge University Press.

Panel: Resolving The Conflict Between The Convention On Cultural Property Implementation Act (Ccpia) And U.S. Criminal Law, Cardozo Arts & Entertainment Law Journal

AELJ Blog

In today’s panel concerning the reform of U.S. cultural property policy, panelists discussed whether there is a conflict between the Convention on Cultural Property Implementation Act (“CPIA”) and the National Stolen Property Act (“NSPA”) and whether it creates a problem. The general consensus of the panel was that while there exists tension between the two acts, there is no actual conflict between the CPIA and U.S. criminal laws, which can actually coexist. The panelists pointed to the fact that criminal cases do exist in the context of cultural property, but in most of the forfeiture cases there is another U.S. …

Sarkeesian And Copyright: Testing The Boundaries Of ‘Transformative’ Fair Use In Online Critique, Joe Newman

AELJ Blog

A recent controversy within online gaming community involves the video blogger Anita Sarkeesian and her video series “Tropes vs. Women in Video Games.” Sarkeesian’s video critiques the portrayal of women in video games and related media. However, this controversy is particularly interesting because it involves a claim of copyright infringement.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on April 8, 2014. The original post can be accessed via the Archived Link button above.

Lorrie Cranor: Privacy Notice And Choice In Practice, Cardozo Arts & Entertainment Law Journal

AELJ Blog

Privacy policies are everywhere. Nearly every website you visit has one, detailing what information the site will collect from you and how it is allowed to use that data. The idea is that the privacy policy will serve as notice to the user as to what using the website means for the user’s privacy. But have you ever read a privacy policy? Would you ever do it again? The fact is, most people ignore privacy policies altogether, clicking “I agree” to continue on using the site.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website …

Big Data And The Transparency Debate, Cardozo Arts & Entertainment Law Journal

AELJ Blog

As its name suggests, “big data” is huge. The meme refers to the collection and analysis of vast data sets collected everywhere in the digital domain from web searches to social network communications, to Internet advertising, to even the numerous digital sensors integrated into our daily lives. Paired with increasingly sophisticated computing intelligence, the predictive power of big data has caused data to become an indispensible asset for businesses and the government. Generally, businesses use big data to target potential customers while the government uses data to monitor and enforce governmental and national security policies. Omnipresent data-mining algorithms as well …

Panel: Disclosure And Notice Practices In Private Data Collection, Cardozo Arts & Entertainment Law Journal

AELJ Blog

When you click “I agree” on a website’s privacy policy, are you really consenting to all the terms? Is that thick block of small-font text that makes up most companies’ privacy policies sufficient to give you notice of just what you’re consenting to? And is it even possible to inform users of all the potential uses of their data without going into too much detail?

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on April 4, 2014. The original post can be accessed via the Archived Link button above.

National Security Versus The Democratic Process, Cardozo Arts & Entertainment Law Journal

AELJ Blog

In June of last year, Edward Snowden revealed to the public the lengths the NSA will go in the name of national security. But what interest does our nation value the most? Should we put the need to ensure national security above all else? Or should even the means of creating security be held accountable under the democratic process and the three branches of the government?

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on April 4, 2014. The original post can be accessed via the Archived Link button above.

Ryan Harkins: Big Data Means A Change In How We Consider Notice And Consent, Cardozo Arts & Entertainment Law Journal

AELJ Blog

In addition to making visiting more websites possible, advances in technology have made collecting data from visiting all those websites possible. Further, advances in technology have meant the ability to analyze that data in ways beyond the imagination of researchers, with computers catching on to trends in data that people may have never noticed.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on April 4, 2014. The original post can be accessed via the Archived Link button above.

Helen Nissenbaum – “Notice And Consent Is A Sham”, Cardozo Arts & Entertainment Law Journal

AELJ Blog

Notice and consent might be a solution to some problems, but Helen Nissenbaum doesn’t think it is the solution to the privacy problem.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on April 4, 2014. The original post can be accessed via the Archived Link button above.

2l Staffers Selected For Publication, Cardozo Arts & Entertainment Law Journal

AELJ Blog

The Editorial Board is proud to congratulate Michael Beck, Peter Busch, Nathalie De Choudens, Stephanie Diehl, Kate Dolinska, Kara Goldman, Jennifer Lee, Marla Merchut, Elise Michael, Brandon Miller, Shanice Naidu, Jennifer Yeh, and Michael Zimmerman on the selection of their Notes for publication!

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on March 29, 2014. The original post can be accessed via the Archived Link button above.

“Look What They’Ve Done To My Song, Ma” – “Baby Got Back,” Glee, And Moral Rights, Joe Newman

AELJ Blog

The story of Jonathan Coulton and song copying on Glee was one of the biggest copyrightrelated stories of 2012, with plenty of media coverage (and even a fictionalized TV adaptation). For the uninitiated: In 1992, Anthony Ray, a.k.a. Sir Mix-A-Lot, released the song “Baby Got Back.” The song, a “chart-topping multi-platinum Grammy-winning hip-hop celebration of female pulchritude,” is widely considered a modern classic. In October 2005, an artist named Jonathan Coulton released a humorous “cover” arrangement of “Baby Got Back” that retained Sir Mix-A-Lot’s lyrics, but also added new melodic and rhythmic material set against a smooth, folk-style acoustic guitar-led …

Wired And Laced—The Future Of Fashion And Technology, Gwendolen Akard

AELJ Blog

The future of fashion patents is always changing and evolving. On February 7th, some of the industry’s key players discussed hot topics in fashion and technology, a fascinating intersection of two worlds that seamlessly combine art and scientific innovation. The panel, hosted by Fordham University, featured several interesting speakers, a well-heeled crowd, and a wide range of information to interest the lay-person as well as the practitioner.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on March 3, 2014. The original post can be accessed via the Archived Link button above.

Publication Announcement, Cardozo Arts & Entertainment Law Journal

AELJ Blog

The Editorial Board is proud to congratulate Michael Beck, Peter Busch, Kate Dolinska, Elise Michael, Jennifer Yeh, and Michael Zimmerman on the selection of their Notes for publication!

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on February 18, 2014. The original post can be accessed via the Archived Link button above.

Creative Destruction In Cariou V. Prince, Anthony R. Enriquez

AELJ Blog

When portrait photographer Patrick Cariou saw that his original photos of Jamaican Rastafarians had been used by renowned appropriation artist Richard Prince in a collage series called “Canal Zone”—sales of which grossed Prince close to $11 million—Cariou sued for copyright infringement in the Southern District of New York. The decision was held in Cariou’s favor and was blasted by commentators as “frightening,” “[k]afkaesque,” and “untenable.” Much of that criticism wasn’t aimed at the court’s rejection of appropriation as fair use, but rather at its authorized remedy: to “deliver up for impounding, destruction, or other disposition, as Plaintiff determines,” all unsold …

The Economic Puzzle That Is The Art Market, Gregory Day

AELJ Blog

The manner in which buyers, sellers, and dealers conduct art transactions appears, at least initially, to contradict established economic principles. This blog post seeks to identify and illustrate this phenomenon using examples from the art attribution process. Indeed, the possibility that a purchased work was once forged or wrongly attributed threatens the value of many art transactions—and even more troubling is that the current legal framework seldom is able to provide relief and has, in many situations, even created market failure. As will be demonstrated, the result has been a type of market inefficiency that runs contrary to marketplace principals. …

Call For Papers – Transparency And Disclosure In Private And Government Data Collection, Cardozo Arts & Entertainment Law Journal

AELJ Blog

The Cardozo Arts & Entertainment Law Journal (AELJ) is pleased to announce its annual symposium, Transparency and Disclosure in Private and Government Data Collection, being held this spring at the Benjamin N. Cardozo School of Law, New York, New York. In conjunction with this event, AELJ will also publish a symposium edition.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on January 20, 2014. The original post can be accessed via the Archived Link button above.

Aelj Alumni Are Invited To The Inaugural Cardozo Bmi Networking Reception, Cardozo Arts & Entertainment Law Journal

AELJ Blog

Join fellow attorneys, state and federal judges, industry professionals, professors, and students for an evening of food, drinks, and discussion to kickstart the Cardozo BMI Moot Court Competition. This evening presents a unique opportunity to network, strengthen and build relationships between alumni, practicing attorneys, judges, industry professionals, and the faculty and students of the Cardozo School of Law.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on January 13, 2014. The original post can be accessed via the Archived Link button above.