Law Commons^™

Ghost In The Machine: Zubulake Revisited And Other Emerging E-Discovery Issues Under The Amended Federal Rules, William P. Barnette

Richmond Journal of Law & Technology

We live in a digital age. Electronically stored information (“ESI”) “is commonplace in our personal lives and in the operation of businesses, public entities, and private organizations.” By now the numbers no longer shock: “more than 90% of all corporate information is electronic; North American businesses exchange over 2.5 trillion e-mails per year;5 today, less than 1% of all communication will ever appear in paper form; and, on average, a 1000-person corporation will generate nearly 2 million e-mails annually.”

Bringing Nuremberg Home: Justice Jackson's Path Back To Buffalo, October 4, 1946, John Q. Barrett

Faculty Publications

During one permanently consequential decade in the history of the United States and the world, United States Supreme Court Justice Robert H. Jackson delivered three major lectures at the University of Buffalo. The last of these was Jackson's May 9, 1951, James McCormick Mitchell Lecture, "Wartime Security and Liberty under Law," which inaugurated this distinguished lecture series. Justice Jackson's first formal lecture at the University of Buffalo occurred on February 23, 1942, halfway through his first year as a Supreme Court Justice and just twelve weeks after the attack on Pearl Harbor brought the United States into World War II. …

Rehnquist's Missing Letter: A Former Law Clerk's 1955 Thoughts On Justice Jackson And Brown, John Q. Barrett, Brad Snyder

Faculty Publications

"I think that Plessy v. Ferguson was right and should be reaffirmed." That's what Supreme Court law clerk William H. Rehnquist wrote privately in December 1952 to his boss, Justice Robert H. Jackson. When the memorandum was made public in 1971 and Rehnquist's Supreme Court confirmation hung in the balance, he claimed that the memorandum reflected Jackson's views, not Rehnquist's. Rehnquist was confirmed, but his explanation triggered charges that he had lied and smeared the memory of one of the Court's most revered justices. This Essay analyzes a newly discovered document—a letter Rehnquist wrote to Justice Felix Frankfurter in 1955, …

Veblen Brands, Jeremy N. Sheff

Faculty Publications

The subject of this Article is the legal regime that regulates the struggle for control of a luxury brand across various cross-cutting cleavages in American society—global competition over wealth and status. Rights under federal trademark law, whether asserted under statutory provisions relating to simple trademark infringement or the more specialized provisions relating to trademark counterfeiting, are grounded in the doctrine of post-sale confusion.

Post-sale confusion as a doctrine unto itself has received surprisingly little critical attention. What literature does exist either characterizes post-sale confusion as merely one example of broader trends in intellectual property, or else discusses the economic or …

Against Theories Of Punishment: The Thought Of Sir James Fitzjames Stephen, Marc O. Degirolami

Faculty Publications

This paper reflects critically on what is the near-universal contemporary method of conceptualizing the tasks of the scholar of criminal punishment. It does so by the unusual route of considering the thought of Sir James Fitzjames Stephen, a towering figure in English law and political theory, one of its foremost historians of criminal law, and a prominent public intellectual of the late Victorian period. Notwithstanding Stephen's stature, there has as yet been no sustained effort to understand his views of criminal punishment. This article attempts to remedy this deficit. But its aims are not exclusively historical. Indeed, understanding Stephen's ideas …

Accentuate The Normative: A Response To Professor Mckenna, Jeremy N. Sheff

Faculty Publications

In his article, “A Consumer Decision-Making Theory of Trade-mark Law,” 98 Va. L. Rev. 67 (2012), Professor Mark McKenna makes two significant claims. The first is that the dominant Law and Economics theory of trademark law—the search-costs theory of the Chicago School—is in some way connected to recent undesirable expansions of trademark rights. The second is that a preferable theory of trademark law—one that would result in more tightly circumscribed and socially beneficial notions of trademark rights—would take consumer decision making, rather than search costs, as its guiding principle. I find myself sympathetic to these arguments, and yet I believe …

Speaking Of Moral Rights: A Conversation Between Eva E. Subotnik And Jane C. Ginsburg, Eva E. Subotnik, Jane C. Ginsburg

Faculty Publications

This piece is the transcription of a conversation between two law faculty members speaking about moral rights in the digital age. Prof. Subotnik questions Prof. Ginsburg about some of the legal and technological developments that have occurred since Prof. Ginsburg’s 2001 essay, Have Moral Rights Come of (Digital) Age in the United States?. "If moral rights have come of digital age, should their realization be achieved by conveying more information about the copy, or by controlling the copy itself?" This question is now asked from the vantage point of 2012, ten years since Prof. Ginsburg first posed it.

The Financial Crisis Inquiry Commission And The Politics Of Governmental Investigations, Michael A. Perino

Faculty Publications

In May 2009, Congress passed the Fraud Enforcement and Recovery Act which created the Financial Crisis Inquiry Commission, an independent, bipartisan panel tasked to examine the causes of the current financial and economic crisis in the United States.

Franklin Roosevelt never created an independent commission to investigate Wall Street, but the Pecora hearings, the eponymous investigation of Wall Street wrongdoing run by a former New York prosecutor, captivated the country. For sixteen months in the worst depths of the Great Depression, Ferdinand Pecora paraded a series of elite financiers before the Senate Banking and Currency Committee. In one hearing after …

Introduction: The Will To Survive, Rachel H. Smith

Faculty Publications

No abstract provided.

Fear And Loathing In Trademark Enforcement, Jeremy N. Sheff

Faculty Publications

Much academic commentary these days concludes that trademark enforcement has become overly aggressive. Commentators argue that the increasingly expansive claims of rights by well-funded trademark owners are unreasonable, and thus that lawsuits asserting those rights amount to trademark bullying. But I think many, if not most, trademark practitioners would take the contrary view that enforcement can only barely keep up with the constantly evolving and worsening threats to their clients' brands, particularly internationally and online. The purpose of this Essay is to try and bridge these two positions by critiquing each one from the perspective of the other. The first …

Overcoming Our Global Disability In The Workforce: Mediating The Dream, Elayne E. Greenberg

Faculty Publications

The unparalleled global support for the 2008 United Nations Convention on the Rights of Persons with Disabilities ("CRPD") highlights the global schism between the public extolling of human rights for individuals with disabilities and the private castigating of such individuals in their daily lives and in the workforce. The CRPD explicitly mandates that work is a right accorded to individuals with disabilities, and global employers are now being challenged to implement that right. Yet, in order to ensure meaningful, universal compliance with its directives, the CRPD imposes affirmative duties on Supporting States to develop a customized, workable plan that effectively …

Interpretive Divergence All The Way Down: A Response To Aaron-Andrew P. Bruhl And Ethan J. Leib, Elected Judges And Statutory Interpretation, 79 U Chi L Rev 1215 (2012), Anita S. Krishnakumar

Faculty Publications

This article is a response to the law review article cited in its title. It focuses on a corollary question raised by the article's analysis: if one takes seriously the proposition that it may make sense for elected judges to interpret statutes differently than do appointed judges, should judicial opinions written by elected judges look substantially different from those written by appointed judges? Part I examines the relative roles of judicial opinions written by elected versus appointed judges in a world in which divergence is practiced. Part II explores specific ways in which we might want or expect an elected …

Dealing With Doma: Federal Non-Recognition Complicates State Income Taxation Of Same-Sex Relationships, Carlton M. Smith, Edward D. Stein

Articles

Various states now recognize relationships between people of the same-sex, but due to the Defense of Marriage Act, the federal government does not. In the context of income taxes, this combination of state recognition and federal non-recognition of same-sex relationships produces a significant problem for many same-sex couples and some state taxing authorities. Most states have income tax and, typically, state income tax laws “piggyback” on federal income tax laws. Depending on the state, same-sex couples in legally-recognized relationships must file their state income tax returns as married (either “filing jointly” or “filing separately”), as domestic partners, or as parties …

The Corporate Profit Motive & Questionable Public Relations Practices During The Lead-Up To The Affordable Care Act , John N. Maher

Journal of Law and Health

The purpose of this Article is two-fold: first, to highlight two problems which threaten the effectiveness of the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act), and second, to invite civic and governmental dialogue to implement solutions to those problems. The Affordable Care Act is tailored to build upon what is good about the existing health care financing system in the United States. It is also calculated to maximize access to quality and affordable health care across the Nation. There remains, however, work that must be done to neutralize risks to the foundational requirements of consistency and …

Time To Cut The Fat: The Case For Government Anti-Obesity Legislation , Stephen A. Mcguinness

Journal of Law and Health

This Article examines—and ultimately rejects—this anti-paternalism argument against government anti-obesity policies. It argues that government intervention in the food industry for the purpose of stemming the American obesity epidemic is justified and survives paternalistic objections to the contrary. This Article begins by briefly outlining the nature, severity, and causes of the obesity epidemic. It considers what can be done about the problem, finding that only government intervention is capable of effectively combating the crisis. It also outlines several types of potentially successful government anti-obesity strategies. Finally, it considers the primary topic of this Article: whether government anti-obesity policies constitute unjustified …

Beyond Nuremberg: A Critique Of Informed Consent In Third World Human Subject Research , Jacob Schuman

Journal of Law and Health

This Article discusses the history of informed consent, critically analyzes this principle, and suggests an alternative approach to informed consent. Part II explores the concept of informed consent, including its philosophical bases, its implementation through FDA regulations, and current proposals on how to protect the principle in drug testing conducted abroad. Part III performs a critical analysis of the principle of informed consent; first providing an empirical examination of the realities of Third World human subject research, and then questioning both the coherence of an abstract “right” to informed consent, as well as the possibility of truly autonomous “consent” to …

Tax Policy And The Obesity Epidemic, Merav W. Efrat, Rafael Efrat

Journal of Law and Health

This Article begins with a brief summary of the growing obesity epidemic in the U.S. It then explores some of the central contributing factors to the mounting obesity problem among U.S. children and adults. It also examines the adverse impact and costs associated with the obesity problem. Next, this Article discusses the justification for government intervention, as well as the benefits and disadvantages of using the tax system as a way of shaping consumption and physical activity patterns. It then summarizes recent efforts by various levels of government in the U.S. to use the tax system to affect eating and …

A Commentary: Presidents Adams And Jefferson, With A Few Others, Discuss Health Reform With A Disabled Lawyer, Gary C. Norman

Journal of Law and Health

Washington lawyers constitute strategic actors within executive, legislative, and judicial forums. This Article discusses the interaction of Washington lawyers in these branches of government regarding healthcare law and policy. The Article discusses how access to technology inhibits a disabled lawyer from equal involvement in the governmental process. The Article also thematically presents the position Presidents Adam and Jefferson would likely harbor on healthcare reform. Public discourse must be more intellectual like that of the founding generation, and it should be improved in its civility.

Reforming The Safe Haven In Ohio: Protecting The Rights Of Mothers Through Anonymity, Brittany Neal

Journal of Law and Health

This Note discusses the conflict between the statewide safe haven law and the Ohio juvenile rules regarding procedure. It purports that to protect the rights of new mothers and retain the essential element of anonymity, Ohio’s Juvenile Rule 1(C) needs to be amended to maintain the state’s current safe haven law. Therefore, because of the statewide threat Ohio courts place on Ohio’s safe haven law, Juvenile Rule 1(C) needs to explicitly provide for an additional exception in cases of child relinquishment. Section II of this Note discusses the beginning of state safe haven legislation and what the laws are attempting …

Our Backyard Slave Trade: The Result Of Ohio’S Failure To Enact Comprehensive State-Level Human-Sex-Trafficking Legislation, Priscila A. Rocha

Journal of Law and Health

This Note examines the shortcomings of Ohio’s current anti-trafficking legislation and argues that additional victim-focused legislation must be enacted at the state level to prevent human trafficking and to protect victims. Part II provides a broad overview of the human-sex-trafficking epidemic, its magnitude at an international level, and the United Nations’ response. Part III discusses the scope of human trafficking within the United States. It also examines federal level anti-trafficking initiatives, including the Trafficking and Violence Protection Act of 2000 (TVPA), its reauthorizations, and its effectiveness in preventing domestic human trafficking and in protecting victims. Part IV addresses the urgent …

The Importance Of The Political In Immigration Federalism, Pratheepan Gulasekaram, S. Karthick Ramakrishnan

Publications

This Article provides a systematic, empirical investigation of the genesis of state and local immigration regulations, discrediting the popular notion that they are caused by uneven demographic pressures across the country. It also proffers a novel theory to explain the proliferation of these policies and queries the implications of this new model for federalism analysis. The story we tell in this paper is both political and legal; understanding immigration politics uncovers vital truths about the recent rise of subnational involvement in a policy arena that courts and commentators have traditionally ascribed to the federal government. Thus, this article connects the …

Using Principles And Policies Of Maritime Arbitration To Guide Responsible Parties In Oil Spill Claims Resolution, Lucy Martucci

Cardozo Journal of Conflict Resolution

This Note will: 1) provide an introduction to maritime arbitration, 2) discuss an example of a challenged arbitration award in the maritime context, 3) provide a background on OPA 90 and the National Pollution Funds Center ("NPFC"), 4) discuss the claims procedure under OPA 90, 5) discuss an example of a challenged NPFC decision, 6) discuss the problems with the GCCF, and 7) propose amendments to OPA 90. This Note will argue that in order to avoid the complex litigation that ultimately dissolved the GCCF, with the goals of cost efficiency, speed and fairness in mind, amendments to OPA 90 …

Revisiting Single Color Trademarks In Fashion After Louboutin, Danielle E. Gorman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

For Richer Or Poorer: The Defense Of Marriage Act's Waning Legitimacy In Bankruptcy Court, Colin M. Bowes

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Shackled And Chained In The Schoolyard: A New Approach To Schools' Section 1983 Liability Under The Special Relationship Test, Ali Davison

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Cyber Crime Control: Will Websites Ever Be Held Accountable For The Legal Activities They Profit From?, Ashley Ingber

Cardozo Journal of Equal Rights & Social Justice

The note examines the evolving legal landscape surrounding the liability of online platforms like Craigslist under Section 230 of the Communications Decency Act (CDA). While Section 230 currently shields Internet Service Providers (ISPs) from civil liability for third-party content, courts are increasingly narrowing its protections, particularly when platforms actively influence or profit from illegal activities. Criminal liability remains a significant exception to Section 230 immunity, and future legal developments may further restrict these protections, balancing free speech with accountability for online platforms.

Can Equitable Estoppel Be Used As An Effective Way For A Legal Parent To Obtain Child Support For The Children Of A Separated Same-Sex Couple?, Josh Smolow

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

"The Life Of The Flesh Is In The Blood": State Storage And Usage Of Baby's Blood Sample, Jaclyn S. D'Arminio

Cardozo Journal of Equal Rights & Social Justice

The note highlights the ethical, legal, and policy challenges surrounding Newborn Screening (NBS) programs, particularly the storage and use of newborn bloodspots. It argues that while these programs provide crucial health benefits, the lack of informed consent regarding the retention and use of bloodspots raises significant privacy concerns. The central argument is that balancing public health benefits with individual privacy rights requires robust informed consent frameworks to maintain trust and ensure scientific progress.

Sex Change: Changing The Face Of Transgender Policy In The United States, Amy Ballard

Cardozo Journal of Equal Rights & Social Justice

The note argues that transgender laws in the United States are inconsistent and unjust, with a lack of a uniform legal definition of transgender. The 2010 passport policy, which allows gender changes without surgery, highlights the need for comprehensive legal reform. The author advocates for a standardized legal definition and procedures to ensure consistent rights and protections for transgender individuals.

It's In The Game: Redefining The Transformative Use Test For The Video Game Arena, Joseph Gutmann

Cardozo Arts & Entertainment Law Journal

No abstract provided.