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Articles 1 - 30 of 416
Full-Text Articles in Law
Endrew F. Clairvoyance, Mark Weber
Endrew F. Clairvoyance, Mark Weber
College of Law Faculty
The Second Circuit Court of Appeals has declared that “Prior decisions of this Court are consistent with the Supreme Court’s decision in Endrew F.,” the 2017 Supreme Court decision interpreting the Individuals with Disabilities Education Act obligation to furnish students with disabilities free, appropriate public education. This Essay considers whether that statement is accurate, and concludes that while some of the past Second Circuit decisions fit comfortably with Endrew F. ex rel. Joseph F. v. Douglas County School District RE-1, others do not. The Essay submits that the court of appeals should confess a lack of clairvoyance in its earlier …
Creating Subject Specific Advanced Legal Research Classes.Pptx, Anne Hudson
Creating Subject Specific Advanced Legal Research Classes.Pptx, Anne Hudson
College of Law Faculty
No abstract provided.
Diversity Attorney Pipeline Program - Legal Research, Anne Hudson, Heather Hummons
Diversity Attorney Pipeline Program - Legal Research, Anne Hudson, Heather Hummons
College of Law Faculty
Living your best (Research) Life: How to Quickly and Efficiently Perform Legal Research. A Bootcamp for scholars from law schools across the country.
The The: The Definit(Iv)E Article On Idea, Mark Weber
The The: The Definit(Iv)E Article On Idea, Mark Weber
College of Law Faculty
A wry look at the use of "the" before the acronym for the Individuals with Disabilities Education Act (IDEA) in the Supreme Court's special education law decisions.
Brief Of Amicus Curiae Professor Mark Moller Supporting Petitioners, S.G.E. Management, L.L.C V. Torres (No. 16-1309), Mark Moller, Aaron Streett
Brief Of Amicus Curiae Professor Mark Moller Supporting Petitioners, S.G.E. Management, L.L.C V. Torres (No. 16-1309), Mark Moller, Aaron Streett
College of Law Faculty
No abstract provided.
Asymmetry Of Crimes By And Against Police Officers, Monu Bedi
Asymmetry Of Crimes By And Against Police Officers, Monu Bedi
College of Law Faculty
No abstract provided.
'Illegal' Migration Is Speech, Daniel Morales
'Illegal' Migration Is Speech, Daniel Morales
College of Law Faculty
Non-citizens must comply with immigration laws just because citizens say so. The citizenry takes for granted its monopoly on immigration control, but the legitimacy of this arrangement has been called into question by cutting-edge political theorists. One prominent theorist argues, for example, that basic democratic principles require that non-citizens living outside the U.S. have a say in the formation of immigration law, since they must obey it. For the first time, this Article provides a legal response to these political theory developments, assimilating them, along with the facts on the ground, into an account of “illegal” migration as First Amendment …
Foreword: The Special Education Cases Of 2017, Mark Weber
Foreword: The Special Education Cases Of 2017, Mark Weber
College of Law Faculty
This paper is the Foreword to a special issue on Fry v. Napoleon Community Schools and Endrew F. v. Douglas County School District RE-1, special education law cases decided by the Supreme Court in the spring of 2017.
Meaningful Access And Disability Discrimination: The Role Of Social Science And Other Empirical Evidence, Mark Weber
Meaningful Access And Disability Discrimination: The Role Of Social Science And Other Empirical Evidence, Mark Weber
College of Law Faculty
In cases alleging disability discrimination in the provision of state and local government services, courts frequently hold that plaintiffs’ claims depend on the question whether, despite the disadvantage that government actions impose, the plaintiffs nevertheless receive meaningful access to the government services. Whether people with disabilities actually have meaningful access is in reality a factual question, one on which social science and other empirically supported facts should matter. But courts frequently ignore evidence about the nature and level of access that people with disabilities have to government programs when decisions regarding those programs are being challenged. This Article catalogues judicial …
Closing The Hedge Fund Loophole: The Sec As The Primary Regulator Of Systemic Risk, Cary Martin Shelby
Closing The Hedge Fund Loophole: The Sec As The Primary Regulator Of Systemic Risk, Cary Martin Shelby
College of Law Faculty
The 2008 financial crisis sparked a flurry of regulatory activity and enforcement in an attempt to reign in activity by banks, but other institutions have also been identified as potentially threatening to the stability of the financial markets. In particular, several empirical studies have revealed that systemic risk can be created and transmitted by hedge funds. In response to the risk created by hedge funds, Congress granted the Financial Stability Oversight Council (“FSOC”) authority under the Dodd-Frank Act of 2010 to designate hedge funds as Systemically Important Financial Institutions (“SIFIs”). Such a designation would automatically result in stringent capital constraints …
Constitutional Liberty And The Progression Of Punishment, Robert Smith, Zoe Robinson
Constitutional Liberty And The Progression Of Punishment, Robert Smith, Zoe Robinson
College of Law Faculty
No abstract provided.
Immigration And Disability In The United States And Canada, Mark Weber
Immigration And Disability In The United States And Canada, Mark Weber
College of Law Faculty
Disability arises from the dynamic between people’s physical and mental conditions andthe physical and attitudinal barriers in the environment. Applying this idea aboutdisability to United States and Canadian immigration law draws attention to barriers toentry and eventual citizenship for individuals who have disabilities. Historically, NorthAmerican law excluded many classes of immigrants, including those with intellectualdisabilities, mental illness, physical defects, and conditions likely to cause dependency.Though exclusions for individuals likely to draw excessive public resources and thosewith communicable diseases still exist in Canada and the United States, in recent yearsthe United States permitted legalization for severely disabled undocumented immigrantsalready in the …
Is Transparency The Answer? Reconciling The Fiduciary Duties Of Public Pension Plans And Private Funds, Cary Martin Shelby
Is Transparency The Answer? Reconciling The Fiduciary Duties Of Public Pension Plans And Private Funds, Cary Martin Shelby
College of Law Faculty
No abstract provided.
Constitutional Personhood, Zoe Robinson
Constitutional Personhood, Zoe Robinson
College of Law Faculty
Over the past decade, in a variety of high-profile cases, the Supreme Court has grappled with difficult questions as to the constitutional personhood of a variety of claimants. Of most note are the recent corporate constitutional personhood claims that the protections of the First Amendment Speech and Religion Clauses extend to corporate entities. Corporate constitutional personhood, however, is only a small slice of a broader constitutional question about who or what is entitled to claim the protection of any given constitutional right. Beyond corporations, courts are being asked to answer very real questions about a person’s constitutional status: Do aliens …
Extending The Fundamental Right Of Marriage To Same-Sex Couples: The United States Supreme Court Decision In Obergefell V. Hodges, Donald Hermann
Extending The Fundamental Right Of Marriage To Same-Sex Couples: The United States Supreme Court Decision In Obergefell V. Hodges, Donald Hermann
College of Law Faculty
No abstract provided.
Intent In Disability Discrimination Law: Social Science Insights And Comparisons To Race And Sex Discrimination, Mark Weber
College of Law Faculty
This Essay is part of an extensive research project concerning the intent that must be shown in order to obtain judicial relief under the American disability discrimination laws. This Essay focuses on social science research about intent and its relation to the law, comparing disability to race and sex discrimination. It describes research about race and sex and notes that evidence of pervasive but unacknowledged discriminatory thinking is significant. Although the law could bar race and sex discrimination that is not intentional, it has not been interpreted to do so, particularly in contexts other than employment. Social science research indicates …
Thick Marks, Thin Marks, Michael Grynberg
Thick Marks, Thin Marks, Michael Grynberg
College of Law Faculty
Not all trademarks are created equal. Strong marks like APPLE computer receive more protection than lesser known, weaker marks like JOE’S diner. The difference is reflected by the amount of attention judges pay to surrounding context in resolving infringement claims. When a mark receives “thick” protection, facts that might make confusion less likely (e.g., clarifying marketplace realities or perceptible differences between the parties’ marks) matter less than when protection is thin. This conception of thick or thin protection is part of routine trademark disputes, but it has more interesting implications for trademark law. Trademarks do more than identify a product’s …
Undocumented Migrants As New (And Peaceful) American Revolutionaries, Daniel Morales
Undocumented Migrants As New (And Peaceful) American Revolutionaries, Daniel Morales
College of Law Faculty
This essay situates undocumented migrants in the history of the American revolutionary period. The lawbreaking of both groups produced constructive legal and social change. For example, the masses of American revolutionaries and many of their leading men fought to rid the colonies of hereditary aristocracy. Colonists had come to cherish the proto-meritocracy that had bloomed on colonial shores and rankled at local evidence of aristocratic privilege, like the Crown’s grant of landed estates to absentee English aristocrats.Today’s equivalent hereditary aristocracy is the citizenry of wealthy democracies like the United States. Hereditary citizens use immigration restrictions to reserve the wealth and …
Brief Of Civil Procedure Scholars As Amici Curiae In Support Of Neither Party, Tyson Foods, Inc. V. Bouaphakeo (No. 14-1146), Mark Moller
College of Law Faculty
No abstract provided.
The Arrest Power Unchained, Susan Bandes
Empathy And Article Iii: Judge Weinstein, Cases And Controversies, Susan Bandes
Empathy And Article Iii: Judge Weinstein, Cases And Controversies, Susan Bandes
College of Law Faculty
The question of whether judges ought to be empathetic has been hotly debated in recent years. This volume celebrating the life and achievements of Judge Jack Weinstein presents an ideal opportunity to productively focus and narrow the empathy debate. Problematically, this debate generally treats judging as a monolithic concept. To debate whether empathy is a desirable attribute of judges as a general matter is to overlook important distinctions between trial, appellate, and Supreme Court jurists, and between federal and state courts. Using Judge Weinstein’s approach to judging as a touchstone, I explore the role of empathy for Article III judges, …
Civil Liberties And The 'Imaginative Sustenance' Of Jewish Culture, Susan Bandes
Civil Liberties And The 'Imaginative Sustenance' Of Jewish Culture, Susan Bandes
College of Law Faculty
This short essay is included in a symposium issue entitled "People of the Book: Judaism's Influence on American Legal Scholarship." It is a meditation on how my background as a Reform Jew growing up in New York City influenced my work as a constitutional lawyer and my scholarship in the fields of criminal procedure and federal jurisdiction. As Irving Howe observed: "The imaginative sustenance that Yiddish culture and the immigrant experience could give to American Jewish writers rarely depended on their awareness or acknowledgement of its presence. Often it took the form of hidden links of attitude and value." In …
Taxing Publicly Traded Entities, Emily Cauble
Taxing Publicly Traded Entities, Emily Cauble
College of Law Faculty
Publicly traded entities are generally treated as corporations for U.S. tax purposes. Under various exceptions, however, publicly traded entities may obtain special treatment if they earn predominately certain specified types of qualifying income. This Article examines potential rationales for granting special tax treatment to certain publicly traded entities. As the analysis in this Article will show, many of the potential rationales are unconvincing. In addition, to the extent that some rationales may be persuasive, the current rules are not designed in a way that best comports with these potential justifications. Therefore, reform is needed.To reform the current system, this Article …
Taxing Publicly Traded Entities, Emily Cauble
Taxing Publicly Traded Entities, Emily Cauble
College of Law Faculty
Publicly traded entities are generally treated as corporations for U.S. tax purposes. Under various exceptions, however, publicly traded entities may obtain special treatment if they earn predominately certain specified types of qualifying income. This Article examines potential rationales for granting special tax treatment to certain publicly traded entities. As the analysis in this Article will show, many of the potential rationales are unconvincing. In addition, to the extent that some rationales may be persuasive, the current rules are not designed in a way that best comports with these potential justifications. Therefore, reform is needed.To reform the current system, this Article …
Living Gardens, Living Art, Living Tradition, Roberta Kwall
Living Gardens, Living Art, Living Tradition, Roberta Kwall
College of Law Faculty
Copyright protection in the United States begins from the moment of a work’s “creation.”1 Although this rule is codified in the statute, the underlying issues of how and when “creation” occurs are rarely, if ever, explored. Under the current law, as soon as an author creates a copyrightable work of authorship and fixes that work in a tangible medium of expression, the work is entitled to protection. This formulation ignores the critical issues of whether fluid works of authorship that are constantly evolving can be subject to copyright protection and, if so, what is the scope of such protection. Not …
Accidentally On Purpose: Intent In Disability Discrimination Law, Mark Weber
Accidentally On Purpose: Intent In Disability Discrimination Law, Mark Weber
College of Law Faculty
American disability discrimination laws contain few intent requirements. Yet courts frequently demand showings of intent in disability discrimination lawsuits. Intent requirements arose almost by accident: through a false statutory analogy; by repetition of obsolete judicial language; and by doctrine developed to avoid a nonexistent conflict with another law. Demanding that section 504 and Americans with Disabilities Act (“ADA”) claimants show intent imposes a burden not found in those statutes or their interpretive regulations. This Article provides reasons not to impose intent requirements for liability or monetary relief in section 504 and ADA cases concerning reasonable accommodations. It demonstrates that no …
Numerical Goals For Employment Of People With Disabilities By Federal Agencies And Contractors, Mark Weber
Numerical Goals For Employment Of People With Disabilities By Federal Agencies And Contractors, Mark Weber
College of Law Faculty
This essay discusses recent developments concerning numerical goals for employing workers with disabilities by federal agencies and federal contractors. On May 15, 2014, the Equal Employment Opportunity Commission issued an Advance Notice of Proposed Rulemaking asking for comments about, among other things, placing on federal agencies numerical employment goals for individuals with disabilities. On September 24, 2013, the Office of Federal Contract Compliance Programs adopted a Final Rule that imposed on federal contractors a numerical utilization goal for employees with disabilities, a regulation that the Circuit Court of Appeals for the District of Columbia upheld against challenge in 2014. A …
Privileged Access To Financial Innovation, Cary Martin Shelby
Privileged Access To Financial Innovation, Cary Martin Shelby
College of Law Faculty
Access to private funds is limited to an elite class of investors -- wealthy individuals and large institutions. Individuals of more modest means -- “retail investors” -- face more limited investment choices; generally they can only invest in mutual funds. In spite of this inequitable division, the current regulatory climate will lead to an even further expansion of the private fund industry. This article argues that this loosening regulatory climate could lead to a talent drain amongst registered funds, could narrow the investment choices available to retail investors, and could deepen the already troubling income gap between wealthy and average …
Lobbying In The Shadows: Religious Interest Groups In The Legislative Process, Zoe Robinson
Lobbying In The Shadows: Religious Interest Groups In The Legislative Process, Zoe Robinson
College of Law Faculty
The advent of the new religious institutionalism has brought the relationship between religion and the state to the fore once again. Yet, for all the talk of the appropriateness of religion-state interactions, scholars have yet to examine how it functions. This Article analyzes the critical, yet usually invisible, role of “religious interest groups” — lobby groups representing religious institutions or individuals — in shaping federal legislation. In recent years, religious interest groups have come to dominate political discourse. Groups such as Priests for Life, Friends Committee on National Legislation, Women’s Christian Temperance Union, and American Jewish Congress have entered the …
The Incoherent Role Of Bargaining Power In Contract Law, Max Helveston, Michael Jacobs
The Incoherent Role Of Bargaining Power In Contract Law, Max Helveston, Michael Jacobs
College of Law Faculty
Contracts that result from the abuse of unequal bargaining power have long been a concern of contract law. Courts have proscribed efforts by the "powerful" to take unfair advantage of the "weak" through contracts of adhesion and standard form contracts. Certain kinds of clauses — liability waivers, and covenants not to compete, among others — regularly attract judicial suspicion because their appearance is deemed indicative of such advantage-taking. In books, symposia, and journal articles, generations of legal scholars have debated the role of bargaining power considerations in the analysis of contracts and contractual terms. The "bargaining power" construct has become …