Law Commons^™

An Argument Against Civil Marriage, J. David Bleich

Articles

No abstract provided.

Courts, Constituencies, And The Enforcement Of Fiduciary Duties In The Nonprofit Sector, Joseph Mead, Michael C. Pollack

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Directors of nonprofit organizations owe fiduciary duties to their organizations, but the content of these duties—and how and when courts should enforce these duties—has long been debated among scholars and courts. This debate emerges in several areas, including the level of deference to be shown by courts to nonprofit directors (the business judgment rule), who should be allowed to sue to enforce duties (standing), and the type of relief available to prevailing plaintiffs (remedies). Existing literature explores these legal rules in isolation and in abstraction, generally failing to consider how the rules interact with each other and ignoring the empirical …

The Enigma Of Wynne, Edward A. Zelinsky

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The five-justice Wynne majority used that case to make a major statement about the dormant Commerce Clause. In many respects, Wynne is an enigma that perpetuates an inherent problem of the Courts dormant Commerce Clause doctrine: the Court declares some ill-defined taxes as unconstitutionally discriminatory because they encourage in-state investment, while other economically equivalent taxes and government programs that similarly encourage intrastate economic activity are apparently acceptable under the dormant Commerce Clause.

Wynne is thus more important than the immediate situation it addresses, and will have consequences beyond the immediate circumstances it addresses. A decision as enigmatic as it is …

Bitcoin And The Uniform Commercial Code, Jeanne L. Schroeder

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Much of the discussion of bitcoin in the popular press has concentrated on its status as a currency. Putting aside a vocal minority of radical libertarians and anarchists, however, many bitcoin enthusiasts are concentrating on how its underlying technology – the blockchain – can be put to use for wide variety of uses. For example, economists at the Fed and other central banks have suggested that they should encourage the evolution of bitcoin’s blockchain protocol which might allow financial transactions to clear much efficiently than under our current systems. As such, it also holds out the possibility of becoming that …

Innovation Prizes In Practice And Theory, Michael J. Burstein, Fiona Murray

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Innovation prizes in reality are significantly different from innovation prizes in theory. The former are familiar from popular accounts of historical prizes like the Longitude Prize: the government offers a set amount for a solution to a known problem, like £20,000 for a method of calculating longitude at sea. The latter are modeled as compensation to inventors in return for donating their inventions to the public domain. Neither the economic literature nor the policy literature that led to the 2010 America COMPETES Reauthorization Act — which made prizes a prominent tool of government innovation policy — provides a satisfying justification …

Can John Coffee Rescue The Private Attorney General? Lessons From The Credit Card Wars, Myriam E. Gilles

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Partisans on one side of the class action debates argue that the class device is a critical enforcement tool that increases much-needed access to justice. Combatants on the other side scoff that class actions are tools for shaking down corporations for settlement payments and attorneys’ fees in unmeritorious cases. In his most recent book, Entrepreneurial Litigation: Its Rise, Fall and Future, John C. Coffee puts both sides in their place, providing an account that, he aptly tells us, “has long been missing in the literature, in large part because academics writing in this area either have been so ideologically committed …

Reconceptualizing The Eighth Amendment: Slaves, Prisoners, And Cruel And Unusual Punishment, Alexander A. Reinert

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The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application. This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination.

In particular, I …

The Second Circuit And Social Justice, Matthew Diller, Alexander A. Reinert

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The Second Circuit is renowned for its landmark rulings in fields such as white collar crime and securities law — bread and butter issues growing out of Wall Street’s preeminence in the financial landscape of the nation. At the same time, the Second Circuit has a long tradition of breaking new ground on issues of social justice. Unlike some circuit courts which have reputations in the area of social justice built around one or two fields, such as the Fifth Circuit’s pioneering role in civil rights litigation or the Ninth Circuit’s focus on immigration, there is no one area of …

The Hopes And Fears Of All The Years: 30 Years Behind And The Road Ahead For The Widespread Use Of Mediation, Lela P. Love, Ellen A. Waldman

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Looking through the windshield in 1985, the dispute resolution community was enthusiastic about mediation's promise: the promise of a radically different paradigm premised on party-driven resolution and collaborative decision-making. Peering ahead, mediation's pioneers anticipated a quiet revolution in conflict management toward more therapeutic and democratic processes. What do events in the last three decades tell us about the high and low points — the successes and failures — in the journey of that endeavor? Looking forward, how might we best align reality with our highest aspirations and avoid the disappointing troughs we encountered in those past decades? This article addresses …

Police Suspects, Kate Levine

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Recent attention to police brutality has brought to the fore how police, when they become the subject of criminal investigations, are given special procedural protections not available to any other criminal suspect. Prosecutors’ special treatment of police suspects, particularly their perceived use of grand juries to exculpate accused officers, has received the lion’s share of scholarly and media attention. But police suspects also benefit from formal affirmative rights that protect them from interrogation by other officers. Police, in most jurisdictions, have a special shield against interrogation known as the Law Enforcement Officers’ Bill of Rights (LEOBORs). These statutes and negotiated …

An Empirical Study Of Implicit Takings, James E. Krier, Stewart E. Sterk

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Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law “on the ground” – in the state and lower federal courts, who together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2,000 reported decisions over the period 1979 through June 2012, attempts to fill that void.The study establishes that the Supreme Court’s categorical rules govern almost no cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action other …

Legal Capacity For All: Including Older Persons In The Shift From Adult Guardianship To Supported Decision-Making, Rebekah Diller

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For the last several decades, guardianship has been the subject of continual calls for reform, often spurred by revelations of guardian malfeasance and other abuses in the system. Recent developments in international human rights law pose a more fundamental challenge to the institution. Under Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), governments may not deprive individuals of their “legal capacity”—or right to make decisions and have those decisions recognized as legally binding—on the grounds of disability. In the wake of the CRPD, the concept of supported decision-making has gained growing acceptance as …

A Theory Of Copyright Authorship, Christopher Buccafusco

Articles

The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright may attach to the original, fixed, and minimally creative form or manner …

Interpretation Catalysts In Cyberspace, Rebecca Ingber

Articles

The cybersphere offers a rich space from which to explore the development of international law in a compressed time frame. Rapidly advancing capabilities and novel events distill and sharpen longstanding debates in international law: questions involving how the law adapts to new technologies; disagreement over the extent to which secret action can move custom; disputes over the need for heightened transparency; and power wrangling between states and soft law endeavors in driving the development of the law. In particular, the continuously evolving need to determine how existing laws apply to shifting capabilities provides fertile ground for innovative legal positioning and …

The Never Ending Tale: Racism And Inequality In The Era Of Broken Windows, Jonathan Oberman, Kendra Johnson

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No abstract provided.

Abortion, Informed Consent, And Regulatory Spillover, Katherine Shaw, Alex Stein

Articles

The constitutional law of abortion stands on the untenable assumption that any state’s abortion regulations impact citizens of that state alone. On this understand-ing, the state’s boundaries demarcate the terrain on which women’s right to abortion clashes with state power to regulate that right.

This Article uncovers a previously unnoticed horizontal dimension of abortion regulation: the medical-malpractice penalties imposed upon doctors for failing to inform patients about abortion risks; the states’ power to define those risks, along with doctors’ informed-consent obligations and penalties; and, critically, the possi-bility that such standards might cross state lines. Planned Parenthood v. Casey and other …

Broken Windows: Restoring Social Order Or Damaging And Depleting New York’S Poor Communities Of Color?, Jonathan Oberman, Kendra Johnson

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No abstract provided.

Policy Considerations & Industry Perspectives On 3d Printing, Greg Boyd, Martin Galese, John Knapp, Natalia Krasnodebska, Michael Weinberg, Aaron Wright

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The Cardozo Arts and Entertainment Law Journal hosted its Spring Symposium on Monday, February 2nd, 2015. The heavy precipitation and frigid temperatures did not stop practitioners, scholars and students alike from coming together in impressive numbers to engage in a discussion about the intellectual property issues surrounding 3D printing.

Liability Issues And 3d Printing, Mark Bartholomew, Gianni P. Servodidio, Katherine Strandburg, Felix Wu

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No abstract provided.

The Continuing Battle Over Economically Targeted Investments: An Analysis Of The Department Of Labor's Interpretative Bulletin 2015-01, Edward A. Zelinsky

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In Interpretive Bulletin 2015-01 (IB 2015-01), the U.S. Department of Labor (DOL) renewed the now two-decades old battle over “economically targeted investments” (ETIs). As a matter of statutory interpretation, IB 2015-01, like its predecessors, is unpersuasive. The Employee Retirement Income Security Act of 1974 (ERISA) requires plan trustees to invest “solely” to provide participants’ retirement benefits. A trustee who invests in ETIs violates this statutory obligation by pursuing collateral economic benefits for persons other than plan participants. As a matter of policy, the social investing which ETIs exemplify is unsound. At best, such social investing in practice merely shuffles investment …

Innovation Heuristics: Experiments On Sequential Creativity In Intellectual Property, Stefan Bechtold, Christopher Buccafusco, Christopher Jon Sprigman

Articles

All creativity and innovation build on existing ideas. Authors and inventors copy, adapt, improve, interpret, and refine the ideas that have come before them. The central task of intellectual property (IP) law is regulating this sequential innovation to ensure that initial creators and subsequent creators receive the appropriate sets of incentives. Although many scholars have applied the tools of economic analysis to consider whether IP law is successful in encouraging cumulative innovation, that work has rested on a set of untested assumptions about creators’ behavior. This Article reports four novel creativity experiments that begin to test those assumptions. In particular, …

Retirement In The Land Of Lincoln: The Illinois Secure Choice Savings Program Act, Edward A. Zelinsky

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In 2015, Illinois became the first state to enact a state-mandated and state-operated retirement system for private sector employers: The Illinois Secure Choice Savings Program Act. The Illinois program resembles a system approved by the California legislature—a system that has not yet been enacted since it is conditioned on an additional vote by the legislature. Illinois’ program and the one proposed in California have notable differences in that (1) the Illinois retirement accounts will qualify as individual retirement accounts (“IRAs”) under the Internal Revenue Code (“Code”); (2) the Illinois IRAs will be Roth IRAs; (3) the California program requires participation …

The Day Doctrine Died: Private Arbitration And The End Of Law, Myriam E. Gilles

Articles

This story begins in 1980, when a budding anti-lawsuit movement found an energetic champion in a new conservative President. Over time, the movement became a dominant feature of political life, as its narrative of activist judges, jackpot justice, and a thriving lawsuit industry stirred partisan passions. And yet, some thirty years on, it is clear that the primary legacy of the anti-lawsuit movement is the movement itself--not legislative achievements, which have been few and far between, but committed adherents, including future Supreme Court Justices, lower court judges, and business leaders.

Meanwhile, and also in the early 1980s, federal courts began …

Who Shouldn’T Prosecute The Police, Kate Levine

Articles

The job of prosecuting police officers who commit crimes falls on local prosecutors, as it has in the wakes of the recent killings of Michael Brown and Eric Garner. Although prosecutors officially represent “the people,” there is no group more closely linked to prosecutors than the officers they work with daily. This article focuses on the undertheorized but critically important role that conflict of interest law plays in supporting the now-popular conclusion that local prosecutors should not handle cases against police suspects. Surprisingly, scholars have paid little attention to the policies and practices of local district attorneys who are tasked …

Technology, Gender And Fashion, Jeanne L. Schroeder

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No abstract provided.

The Entrepreneurial Commons: Reframing The Relationship Between Intellectual Property And Entrepreneurship, Michael J. Burstein

Articles

Reconceptualizing entrepreneurial activity as a knowledge commons leads us to ask a different set of questions than previous studies have, and to utilize a different set of methodological tools. As Part II described, existing approaches to understanding the relationship between IP and entrepreneurship focus on the firm and its reactions to various IP laws. By contrast, to the extent that the exemplar entrepreneurial activities described in Part III can be described as instances of commons governance, the analysis must necessarily be broader. The knowledge commons framework forces us to acknowledge that much of information production and dissemination depends on relationships …

Hillenmeyer, "Convenience Of The Employer," And The Taxation Of Nonresidents' Incomes, Edward A. Zelinsky

Articles

In Hillenmeyer v. Cleveland Board of Review, Ohio’s Supreme Court unanimously declared that Cleveland’s municipal income tax violated the Due Process Clause of the U.S. Constitution by taxing a nonresident athlete under the “games-played” method rather than the “duty-days” method. According to the Ohio court, the games-played approach overtaxed Mr. Hillenmeyer by allocating to Cleveland Mr. Hillenmeyer’s compensation from the Chicago Bears using the percentage of the Bears’ games played in Cleveland. By this approach, Cleveland taxed Mr. Hillenmeyer extraterritorially, reaching income he earned from services he performed for the Bears outside of Cleveland’s borders. Due Process, the Ohio …

Regulation Of Emerging Risk, Matthew T. Wansley

Articles

Why has the EPA not regulated fracking? Why has the FDA not regulated e-cigarettes? Why has NHTSA not regulated autonomous vehicles? This Article argues that administrative agencies predictably fail to regulate emerging risks when the political environment for regulation is favorable. The cause is a combination of administrative law and interest group politics. Agencies must satisfy high, initial informational thresholds to regulate, so they postpone rulemaking in the face of uncertainty about the effects of new technologies. But while regulators passively acquire more information, fledgling industries consolidate and become politically entrenched. By the time agencies can justify regulation, the newly …

The Moral Psychology Of Copyright Infringement, Christopher Buccafusco, Dave Fagundes

Articles

Numerous recent cases illustrate that copyright owners sue for infringement even when an unauthorized use of their work causes them no economic harm. This presents a puzzle from the perspective of copyright theory as well as a serious social problem, since infringement suits designed to remedy non-economic harms tend to stifle rather than encourage creative production. While much scholarship has critiqued copyright’s economic theory from the perspective of authors’ incentives to create, ours is the first to explore this issue from the perspective of owners’ motivations to sue for infringement. We turn to moral psychology, and in particular to moral …

Innovation, The State And Private Enterprise: A Corporate Lawyer's Perspective, Charles M. Yablon

Articles

This is a review essay based on an important recent book, The Entrepreneurial State: Debunking Public vs. Private Sector Myths, by Mariana Mazzucato, a Professor of the Economics of Innovation. In that book, Professor Mazzucato explains how the U.S. Government, acting as an “entrepreneurial state” has made the critical investments in technologies that have given rise to multi-billion dollar new industries. Mazzucato argues that only the State currently has the funds and incentives necessary to finance the earliest and most important phases of the innovation process, investments the private sector cannot and will not make. Mazzucato’s defense of the centrality …