Law Commons^™

Expanding Preferential Treatment Under The Record Rental Amendment Beyond The Music Industry, Ryan G. Vacca

Akron Law Faculty Publications

This Article explores the development of copyright law’s first sale doctrine and the Record Rental Amendment (RRA) in light of the Sixth Circuit’s interpretation of the RRA in Brilliance Audio, Inc. v. Haights Cross Communications, Inc. This Article does not take issue with the court’s conclusion, but instead uses the differing conclusions of the majority and dissent to illustrate that the RRA exception is in need of Congressional clarification. This Article also examines whether the Record Rental Amendment should be amended to include audiobooks and other non-musical works, concluding that they should. The author then proposes two alternative amendments to …

Who Knew? The Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Ryan G. Vacca

Akron Law Faculty Publications

Federal Rule of Evidence 407 and equivalent state court rules prohibit the introduction of subsequent remedial measures for the purpose of demonstrating negligence, culpable conduct, or product defect. The rule breaks down, however, in application and purpose, when a defendant undertakes a new safety measure after the plaintiff's injury but before the defendant had knowledge of the loss. Such a situation is not uncommon. Would-be defendants frequently improve their products and product safety, whether in response to injuries incurred by other users, business pressures, or simply advances in the state of the art and scientific knowledge. Toxic exposure cases, where …

Discrimination At Will: Job Security Protections And Equal Employment Opportunity In Conflict, Julie C. Suk

Articles

The conventional wisdom amongst scholars and advocates of employment discrimination law is that the success of Title VII is significantly hampered by the enduring doctrine of employment at will. As long as employers have broad discretion to fire employees for any reason, no reason, or a bad reason, employers can easily get away with terminating or refusing to promote racial minorities and women as long as some credible nondiscriminatory reason, such as personal animosity, can be presented. This account feeds the widely accepted view that employment at will and the goals of Title VII, namely equal employment opportunity, are at …

Is The Market For Ceos Rational?, Charles M. Yablon

Articles

The article challenges the arms-length bargaining model of CEO compensation, arguing that managerial power, social dynamics, and psychological factors significantly influence compensation decisions. It critiques both the managerial power thesis and the arms-length bargaining model, advocating for a more nuanced understanding that incorporates these non-economic influences. CEO compensation is not solely tied to performance but is shaped by boards' overconfidence, cognitive biases, and the cult of the CEO, leading to inefficient pay structures that often fail to align with shareholder interests.

The New Massachusetts Health Law: Preemption And Experimentation, Edward A. Zelinsky

Articles

The Employee Retirement Income Security Act of 1974 (ERISA) preempts major features of the new Massachusetts health law. Although regrettable, this conclusion is mandated by ERISA's statutory terminology and the controlling case law. Other states, in fashioning their health care policies, are looking at elements of the new Massachusetts law. Just as ERISA preempts the individual and business contribution mandates of the Massachusetts statute, ERISA will preempt any similar provisions adopted by other states.

Because state experimentation with health care is particularly desirable today, Congress should, at a minimum, amend ERISA to validate the new Massachusetts health law. More comprehensively, …

What Do We Really Know About The American Choice-Of-Law Revolution?, Hillel Y. Levin

Scholarly Works

This Book Review reviews Symeon Symeonides's recent book, The American Choice-of-Law Revolution: Past, Present and Future. I conclude that the book is required reading in the field and that it pushes the law in the right direction in significant ways. However, I suggest that it falls short in its effort to tell the full story of the Revolution, for two reasons. First, the data set is limited to published opinions. Second, we cannot evaluate the Revolution simply by looking at judicial opinions. I argue that scholarship and practice in Conflicts must reengage with one another, and offer a framework for …

Throwing Down The International Gauntlet: Same-Sex Marriage As A Human Right, Vincent J. Samar

Cardozo Public Law, Policy & Ethics Journal

The article argues that nations have a moral and legal obligation to recognize same-sex marriages performed abroad, grounded in human rights principles and the framework of equality. It contends that the right to marry is a fundamental human right, rooted in dignity and self-fulfillment, and that denying recognition to same-sex marriages violates these principles. The analysis draws on Gewirth's rationalist approach to human rights and U.S. constitutional law, particularly the Fourteenth Amendment's Equal Protection and Due Process Clauses, to advocate for universal recognition of same-sex marriage as a matter of equality and liberty.

Masthead - Cardozo Public Law, Policy And Ethics Journal, Vol. 6 (2007-08)

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Table Of Contents - Cardozo Public Law, Policy And Ethics Journal, Vol. 6, Iss. 1

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

The Practicability Of Amnesty As A Non-Prosecutory Alternative In Post-Conflict Uganda, Kathleen Ellen Macmillan

Cardozo Public Law, Policy & Ethics Journal

The note argues that amnesty can be a necessary and effective tool for achieving peace in conflict-ridden regions, even when the International Criminal Court (ICC) is involved. It focuses on Uganda's situation, where the government's amnesty offer to the Lords Resistance Army (LRA) was crucial for a ceasefire. The analysis suggests that the ICC should consider deferring to national processes, such as Uganda's Amnesty Act of 2000, to support transitional justice and reconciliation, rather than prioritizing prosecution. The note concludes that amnesty, integrated with traditional justice mechanisms, can be both legally permissible and morally justifiable in certain contexts.

Separating Civil Unions And Religious Marriage-A New Paradigm For Recognizing Same-Sex Relationships, Dov Berger

Cardozo Public Law, Policy & Ethics Journal

The note argues that civil marriage laws defining marriage as between a man and a woman violate the Establishment Clause by favoring one religious perspective over another. It proposes a solution to this constitutional issue by advocating for the separation of civil unions from religious marriage, drawing on New York's kashrut and get laws as a model. The analysis focuses on two key cases, Hernandez v. Robles and Lewis v. Harris, to highlight the legal and religious tensions surrounding same-sex marriage. The author suggests that replacing marriage with a civil union system would respect both legal and religious traditions …

Masthead, Volume 29 (2007-2008)

Cardozo Law Review

No abstract provided.

Elevating Form Over Substance: Viar V. North Carolina Department Of Transportation And Its Progeny, Trey Collier

Campbell Law Review

This Comment explores the history of Rule 2 of the North Carolina Rules of Appellate Procedure, the controversial ruling of Viar, and how subsequent cases have interpreted the North Carolina Supreme Court's ruling in Viar.

Settlement Agreements Are Favored Under North Carolina Law... Or So We Thought: Problems With The Court Of Appeals' New Approach Allowing County Governments To Invalidate An Otherwise Binding Settlement Agreement Using North Carolina General Statute Section 159-28, Ryan C. Aul

Campbell Law Review

This comment first examines the established law of settlement agreements in North Carolina, specifically relating to how such agreements are favored under the law, general enforcement of these agreements, and special rules concerning counties and municipalities. Second, it focuses on the requirements for a pre-audit certification under North Carolina General Statute section 159-28(a), the perplexing judicial interpretation of this statute by the North Carolina Court of Appeals, and the resulting inequitable status of the law that treats settlement agreements with county and municipal governments on a different playing field than those with a private entity. Finally, a proposal is offered …

Reforming The Supreme Court, Roger C. Cramton

Cornell Law Faculty Publications

Life tenure for Supreme Court Justices has had harmful consequences that could not have been foreseen by the Founders. The seriousness of these harms makes it necessary and proper to use the hindsight we enjoy today to correct them. This Article begins with a brief summary of the constitutional provisions relevant to judicial tenure and examines how the system of life tenure functions today. The harmful consequences of life tenure are then examined, leading to the conclusion that a statutory solution is required. The article then proposes such a solution and examines its constitutionality, concluding that language, history and purpose …

Cleaning House: Congressional Commissioners For Standards, Josh Chafetz

Cornell Law Faculty Publications

Given the profusion of congressional ethics scandals over the past two years, it is unsurprising that the new Democratic majority in the 110th Congress has made ethics reform a priority. But although both the House and the Senate have tightened their substantive rules, the way the rules are enforced has received almost no attention at all.

This Comment argues that ethics enforcement should remain within the houses of Congress themselves. Taking enforcement power away from the houses is constitutionally questionable (under the Speech or Debate Clause), structurally unwise (given general concerns about separation of powers), and institutionally problematic (as it …

International Law And Prosecutorial Discretion, Jens David Ohlin

Cornell Law Faculty Publications

Religious Exemptions And The Common Good: A Reply To Professor Carmella, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Looking Forward While Looking Back: Using Debtors' Post-Petition Financial Changes To Find Bankruptcy Abuse After Bapcpa, Justin H. Rucki

William & Mary Law Review

No abstract provided.

Sentencing Acquitted Conduct To The Post-Booker Dustbin, James J. Bilsborrow

William & Mary Law Review

No abstract provided.

The Mythic 43 Million Americans With Disabilities, Ruth Colker

William & Mary Law Review

Although Congress stated in its first statutory finding that it intended the Americans with DisabilitiesA ct (ADA) to protect at least 43 million Americans from disability discrimination, the Supreme Court has interpreted this statute so that it covers no more than 13.5 million Americans. More importantly, this Article demonstrates through the use of Census Bureau data that the ADA's employment discrimination provisions have been eviscerated to the point that the ADA protects virtually no Americans who are both disabled and able to work. This Article places that problem in the larger context of the Court undermining Congress's efforts to protect …

Unfulfilled Expectations: An Empirical Analysis Of Why Sarbanes-Oxley Whistleblowers Rarely Win, Richard E. Moberly

William & Mary Law Review

Scholars praise the whistleblower protections of the Sarbanes- Oxley Act of 2002 as one of the most protective anti-retaliation provisions in the world. Yet, during its first three years, only 3.6% of Sarbanes-Oxley whistleblowers won relief through the initial administrative process that adjudicates such claims, and only 6.5% of whistleblowers won appeals through the process. This Article reports the results of an empirical study of all Department of Labor Sarbanes-Oxley determinations during this time, consisting of over 700 separate decisions from administrative investigations and hearings. The results of this detailed analysis demonstrate that administrative decision makers strictly construed, and in …

Extending Owbpa Notice And Consent Protections To Arbitration Agreements Involving Employees And Consumers, Christopher J. Kippley, Richard A. Bales

Nevada Law Journal

The Federal Arbitration Act (“FAA”) was created in 1925 to permit judicial enforcement of arbitration agreements covering commercial contract disputes between parties with roughly equal bargaining power. Today, however, the FAA is the legal authority for judicial enforcement of arbitration agreements covering not only contractual claims but also statutory claims, and not only of disputes between commercial entities but also disputes involving parties with grossly disparate bargaining power such as companies and employees/consumers. Moreover, the Supreme Court has interpreted the FAA as strongly favoring arbitration, and the Court has used preemption analysis to restrict the ability of states to regulate …

Dangers Of Deference To Form Arbitration Provisions, Amy J. Schmitz

Nevada Law Journal

This Article is part of my larger project exploring what I call “contracting culture,” which borrows from legal realism and relational contract theory by considering contextual factors such as negotiators’ relations, understandings, and values. As part of this project, I am pursuing various threads, including empirical studies of how contracting realities impact arbitration. In this Article, however, I focus on how these realities in business to consumer contracts combine with the Federal Arbitration Act and formulaic contract law to foster dangerous deference to form arbitration provisions. The Article then invites procedural reforms and offers suggestions for regulations aimed to temper …

Measures To Encourage And Reward Post-Dispute Agreements To Arbitrate Employment Discrimination Claims, Michael Z. Green

Nevada Law Journal

No abstract provided.

In Defense Of Mandatory Binding Arbitration (If Imposed On The Company), Jean R. Sternlight

Nevada Law Journal

No abstract provided.

Arbitration Law's Separability Doctrine After Buckeye Check Cashing, Inc. V. Cardegna, Stephen J. Ware

Nevada Law Journal

No abstract provided.

Determining An Arbitrator's Jurisdiction: Timing And Finality In American Law, William W. Park

Nevada Law Journal

No abstract provided.

Federal Common Law And Arbitral Power, Alan Scott Rau

Nevada Law Journal

No abstract provided.

Revising The Faa To Permit Expanded Judicial Review Of Arbitration Awards, Sarah Rudolph Cole

Nevada Law Journal

No abstract provided.