Law Commons^™

Report And Recommendations Concerning Environmental Aspects Of The New York State Constitution, New York State Bar Association Environmental And Energy Law Section, Mary L. Lyndon

Faculty Publications

The purpose of the Report is to inform and enrich understanding of environmental issues which may be considered at a Constitutional Convention (should one occur) or with respect to proposals to amend the Constitution through the legislative process.

Presidential Human Rights Talk, Margaret E. Mcguiness

Faculty Publications

In response to Professor Harold Hongju Koh's March 2017 keynote at Washburn University, "The Trump Administration and International Law," this essay examines the diplomatic and political rhetoric deployed by past presidents in support of human rights to argue that such "presidential human rights talk" represented an important element of U.S. human rights policy and promoted the transnational transmission of human rights norms. President Trump's complete abandonment of presidential human rights talk signals an end to what remains of American "human rights exceptionalism." Combined with Trump's "America First" approach to foreign policy, which rejects the value of the international institutions the …

Are Validation Notices Valid? An Empirical Evaluation Of Consumer Understanding Of Debt Collection Validation Notices, Jeff Sovern, Kate E. Walton

Faculty Publications

A principal protection against the collection of consumer debts that are not actually owed is the Fair Debt Collection Practices Act’s (FDCPA) validation notice, which obliges debt collectors demanding payment to notify consumers of their rights to dispute debts and request verification, among other things. This Article reports on the first public study of whether consumers understand the notices or what they take away from them. For nearly four decades, courts have decided whether validation notices satisfied the FDCPA without ever knowing when or if consumers understand the notices. This Article attempts to remedy that problem.

Collectors who prefer that …

Artistic Control After Death, Eva Subotnik

Faculty Publications

To what extent should authors be able to control what happens to their literary, artistic, and musical creations after they die? Viewed through the lens of a number of succession law trends, the evidence might suggest that strong control is warranted. The decline of the Rule Against Perpetuities and rise of incentive trusts reflect a tightening grip of the dead hand. And yet, an unconstrained ability of the dead to determine future uses of literature, art, and music is a fundamentally troubling notion. This Article evaluates the instructions authors give with respect to their authorial works against the backdrop of …

Supervision And Compliance Of Brokerage Firms, Christine Lazaro

Faculty Publications

Supervision is a cornerstone of broker-dealer regulation. It serves a number of important goals: primarily ensuring that the firms follow the governing rules and regulations so that investors can have confidence in the firms with which they do business. Unfortunately, FINRA supervision rules often do not set out specifically how a firm is to supervise its brokers. This article will set forth the general supervision rules governing brokerage firms, as well as the rules that govern specific behavior and conflicts.

More Than Words, Rachel H. Smith

Faculty Publications

(Excerpt)

What a delight it is to spend time with Justice Ginsburg’s singular voice. She is the best kind of teacher and writer: humane, principled, funny, gracious, openhearted, and direct. I felt deeply glad to have this chance to know her a little better—to study the rhythm of her words, the quirks of her personality, the motifs of her life story. As I read My Own Words, I couldn’t help but think over and over, Thank goodness for this remarkable person.

Contemporary Teaching Strategies: Effectively Engaging Millennials Across The Curriculum, Renee Nicole Allen, Alicia R. Jackson

Faculty Publications

(Excerpt)

"Give a man a fish, and you feed him for a day. Teach a man to fish, and you feed him for a lifetime." - Chinese Proverb

American Bar Association ("ABA") Standard 314, Assessment of Student Learning, requires law schools to "utilize both formative and summative assessment methods in its curriculum to measure and improve student learning and provide meaningful feedback to students." This article will connect multiple formative assessments to Bloom's taxonomy to demonstrate how law teachers can transform and enhance student learning, while promoting key steps in the self-regulated learning cycle. First, it is imperative law teachers …

Mandating Rule 11 Sanctions? Here We Go Again!, Edward D. Cavanagh

Faculty Publications

The House of Representatives has passed H.R. 720, a bill that would amend Rule 11 of the Federal Rules of Civil Procedure by re‑instituting mandatory sanctions for Rule 11 violations and essentially restoring Rule 11 to its contents under the 1983 amendments to the Federal Rules of Civil Procedure. The legislation would mandate imposition of monetary sanctions and eliminate any restrictions on when a Rule 11 motion could be filed. The bill would thus scuttle the 1993 Amendments, which (1) entrusted the sanctions decision to the sound discretion of the trial court; (2) provided a 21‑day safe harbor period that …

Effective Compliance With Antidiscrimination Law: Corporate Personhood, Purpose And Social Responsibility, Cheryl L. Wade

Faculty Publications

I begin the essay with an examination of the overlap between corporate governance and corporate social responsibility. After doing so, I explore the notions of corporate personhood and purpose in order to suggest ways to make compliance programs less cosmetic and defensive and more meaningful and effective. I conclude that the decision making that is inherent in corporate governance is an important factor in the corporate social responsibility equation. There is a gap that separates the fulfillment of fiduciary duties (including the installation and upkeep of a compliance program) and best practices. Companies and their managers can win litigation, or …

Regulatory Updates: Finra And Sec Rule Changes And Guidance Of Interest, Christine Lazaro

Faculty Publications

Over the past year, FINRA has proposed and approved new rules and amendments to its existing rules. FINRA has also issued supplemental guidance on existing rules. This article highlights those rule changes and guidance governing sales practice obligations of brokers, as well as the arbitration process. Additionally, this article will cover certain recently adopted SEC and CFTC rules.

Giving And Creating: The Legacy Of Keith J. Shapiro, G. Ray Warner

Faculty Publications

(Excerpt)

Some take; others give. Tonight’s honoree, Keith J. Shapiro, is a giver.

Many of the giants in our field have received this award during its almost 20-year history, and each of them richly deserved it. But of all the recipients, Keith is the person most deserving of this particular award. This is, after all, the Emory Bankruptcy Developments Journal lifetime achievement award and Keith and the Journal are inextricably linked. Not only did this journal launch Keith’s lifetime of stellar bankruptcy achievement, but one of his achievements was pushing this Journal to the success and preeminence that it now …

Defining "Fiduciary": Differences In Fiduciary Standards Within The Securities Industry, Christine Lazaro

Faculty Publications

Investment professionals are subject to varying standards of conduct when providing advice to clients. The standards range from providing advice which is suitable to acting consistently with a fiduciary standard.

The article provides a brief history of the applicable securities statutes governing investment advice. It discusses the differences in the enactment of the Securities Exchange Act of 1934, the Investment Advisers Act of 1940, and the Employee Retirement Income Security Act of 1974.

Next, the article discusses how each statute has impacted the standards applicable to brokers and investment advisers. Investment advisers are deemed fiduciaries. Brokers are held to the …

Sex Quotas And Burkini Bans, Darren Rosenblum

Faculty Publications

This Essay recounts how feminist theorists and activists managed to write their ideals into the fabric of French law and culture, and how nonfeminists began to appropriate those ideals. Parité, the 2000 law that requires half of all candidates for public office be women, saw French feminists first engineer a change in French universalism to respect sex difference; although not wholly successful, Parité advanced women's political inclusion. Then, like a drop of water in a pond, these feminist ideas disappeared in plain sight: they became intrinsic to French state norms and public values. As they became woven into such norms, …

A (Very Thin) Market For Sovereign Control, W. Mark C. Weidemaier

Faculty Publications

No abstract provided.

Grave Crimes And Weak Evidence: Fact-Finding Evolution In International Criminal Law, Nancy Amoury Combs

Faculty Publications

International criminal courts carry out some of the most important work that a legal system can conduct: prosecuting those who have visited death and destruction on millions. Despite the significance of their work--or perhaps because of it--international courts face tremendous challenges. Chief among them is accurate fact-finding. With alarming regularity, international criminal trials feature inconsistent, vague, and sometimes false testimony that renders judges unable to assess with any measure of certainty who did what to whom in the context of a mass atrocity. This Article provides the first-ever empirical study quantifying fact-finding in an international criminal court. The study shines …

Separating Amicus Wheat From Chaff, Aaron-Andrew P. Bruhl, Adam Feldman

Faculty Publications

No abstract provided.

Public Policy And Workers' Rights: Wrongful Discipline Actions And Good-Faith Beliefs, Ann C. Mcginley, Nicole B. Porter

Faculty Publications

The purpose of this paper is to provide our thoughts on Chapter 5 of the ALI's Restatement of the Law: Employment Law ("Restatement of Employment Law"), concerning "The Tort of Wrongful Discharge in Violation of Public Policy."'

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Instead of a detailed critique of Chapter 5's provisions, we have chosen to focus on two significant issues that we see as problematic and worthy of further discussion. The first involves the elimination in the final draft of the Restatement of protection against wrongful discipline, which left only the protection against wrongful discharge that violates public policy.

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The second …

Biometric Cyberintelligence And The Posse Comitatus Act, Margaret Hu

Faculty Publications

This Article addresses the rapid growth of what the military and the intelligence community refer to as “biometric-enabled intelligence.” This newly emerging intelligence tool is reliant upon biometric databases—for example, digitalized storage of scanned fingerprints and irises, digital photographs for facial recognition technology, and DNA. This Article introduces the term “biometric cyberintelligence” to more accurately describe the manner in which this new tool is dependent upon cybersurveillance and big data’s massintegrative systems.

This Article argues that the Posse Comitatus Act of 1878, designed to limit the deployment of federal military resources in the service of domestic policies, will be difficult …

Split Definitive: How Party Polarization Turned The Supreme Court Into A Partisan Court, Neal Devins, Lawrence Baum

Faculty Publications

No abstract provided.

From Rome To The Military Justice Acts Of 2016 And Beyond: Continuing Civilianization Of The Military Criminal Legal System, Fredric I. Lederer

Faculty Publications

No abstract provided.

Barriers Confronting Parents Reunifying With Children In Foster Care, Amy D'Andrade

Faculty Publications

No abstract provided.

Economic Coercion And The Limits Of Sovereignty: Cuba’S Embargo Claims Against The United States, Jose Gabilondo

Faculty Publications

While scholars and journalists have written exhaustively about the property claims against Cuba certified by the U.S. Foreign Claims Settlement Commission, little attention has been paid to Cuba’s public international law claim against the United States for embargo losses caused by its unilateral sanctions. As a result of the normalization process between the two countries that began in 2014, resolving both the property claims and the embargo claim has become a diplomatic priority. While conceding the doctrinal limitations under existing authorities, this paper critically evaluates Cuba’s claim and presents strong legal support for it.

Public international law provides no exact …

Prioritising Human Development In African Intellectual Property Law, J. Janewa Oseitutu

Faculty Publications

The global intellectual property structure has been criticised for requiring developing nations to adopt intellectual property standards that are appropriate for industrialised countries. Some commentators have observed that industrialised nations, such as the United States, developed their economies by borrowing from others, but that through the use of globalised intellectual property standards, they have effectively limited other nations from doing the same. This article does not aim to revisit the question of the suitability of the existing intellectual property standards for developing countries. Nor does it seek to analyse whether, as a general proposition, intellectual property rights should be expanded …

Police Misconduct, Video Recording, And Procedural Barriers To Rights Enforcement, Howard M. Wasserman

Faculty Publications

The story of police reform and of "policing the police" has become the story of video and video evidence, and "record everything to know the truth" has become the singular mantra. Video, both police-created and citizen-created, has become the singular tool for ensuring police accountability, reforming law enforcement, and enforcing the rights of victims of police misconduct. This Article explores procedural problems surrounding the use of video recording and video evidence to counter police misconduct, hold individual officers and governments accountable, and reform departmental policies, regulations, and practices. It considers four issues: 1) the mistaken belief that video can "speak …

In The Shadow Of Gaslight: Reflections On Identity, Diversity, And The Distribution Of Power In The Academy, Cyra Akila Choudhury

Faculty Publications

This essay explores identity and diversity in the Academy through the work of feminist philosopher, Sara Ahmed. It makes two interventions. First, it sketches the use of identity politics from the 1980s and 1990s as a tool of resistance against assimilation and erasure to its current uses sometimes as a tool of discipline within minority groups. Second, it raises the problem of the cooptation of identity by institutions to maintain the status quo. In the hands of institutions and as a metric for progress, diversity can mask ongoing subordination and create doubt in the minds of minorities about whether what …

Who Belongs: Citizenship And Statelessness In The Dominican Republic, Ediberto Román, Ernesto Sagás

Faculty Publications

No abstract provided.

99 Problems And The Bitchin' Is One: A Pragmatist's Guide To Student-Edited Law Reviews, Joelle A. Moreno

Faculty Publications

No abstract provided.

Water Governance In Haiti: An Assessment Of Laws And Institutional Capacities, Ryan Stoa

Faculty Publications

The Republic of Haiti struggles to sustainably manage its water resources. Public health is compromised by low levels of water supply, sanitation, and hygiene, and water resources are often contaminated and unsustainably allocated. While poor governance is often blamed for these shortcomings, the laws and institutions regulating water resources in Haiti are poorly understood, especially by the international community. This study brings together and analyzes Haitian water laws, assesses institutional capacities, and provides a case study of water management in northern Haiti in order to provide a more complete picture of the sector. Funded by the Inter-American Development Bank as …

Patriarchy, Not Hierarchy: Rethinking The Effect Of Cultural Attitudes In Acquaintance Rape Cases, Eric R. Carpenter

Faculty Publications

Do certain people view acquaintance rape cases in ways that favor the man? The answer to that question is important. If certain people do, and those people form a disproportionately large percentage of the people in the institutions that process these cases, then those institutions may process these cases in ways that favor the man. In 2010, Dan Kahan published Culture, Cognition, and Consent, a study on how people evaluate a dorm room rape scenario. He found that those who endorsed a stratified, hierarchical social order were more likely to find that the man should not be found guilty of …

Tribute To Professor Jonathan L. Entin: Before There Was Google, There Was Jonathan Entin, William P. Marshall

Faculty Publications

No abstract provided.