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Table Of Contents

South Carolina Law Review

No abstract provided.

From Awkward Law Student To Articulate Attorney: Teaching The Oral Research Report, Sarah J. Morath

Akron Law Faculty Publications

Busy attorneys want results quickly and in a clear and organized manner. Many prefer associates to report their research results orally in a face-to-face conversation rather than a written memo. In the first year of law school, however, there are not many opportunities for students to practice having conversations about the law in a thoughtful and professional manner. While the Socratic dialogue common in most first year courses challenges students to think on their feet, this method does not teach students how to describe their research path, explain their analysis of a client’s legal issue, or make a recommendation on …

Rethinking A Reinvigorated Right To Assemble , Nicholas S. Brod

Duke Law Journal

Revived after a decades-long slumber, the First Amendment’s Assembly Clause has garnered robust attention of late. Endeavoring to reinvigorate this forgotten clause, legal scholars have outlined a normative vision of the assembly right that would better safeguard the freedom of association. This Note argues that such an approach—no matter its merits or its deficiencies—overlooks the Clause’s central aim. The assembly right is in fact best understood as an assembly right, not as a right about associations. This Note advances that proposition by closely analyzing the text and the history of the Assembly Clause, a project that has not yet been …

Following On The Foreign Corrupt Practices Act: The Dynamic Shareholder Derivative Suit , Gabriela Jara

Duke Law Journal

Corporations that have allegedly violated the Foreign Corrupt Practices Act (FCPA) increasingly face a new threat of liability: cases brought by private plaintiffs in follow-on derivative suits. These derivative suits for breaches of fiduciary duty focus on whether directors provided the necessary oversight through compliance systems designed to detect and prevent FCPA violations. The demand requirement, a procedural hurdle of derivative suits, has stymied plaintiffs that are unable to show that directors cannot disinterestedly assess whether to pursue a claim for violations. This Note proposes a framework that systematizes the factual scenarios under which the demand requirement could be excused. …

Taboo, The Game: Patent Office Edition—The New Preissuance Submissions Under The America Invents Act , Alexander R. Trzeciak

Duke Law Journal

Thorough patent examination ensures that issued patents confer constitutionally granted incentives to innovate but do not create inappropriately broad monopolies. Examiners at the United States Patent and Trademark Office are alone tasked with striking this proper balance, in part by searching the universe of existing published knowledge to determine the originality of the applied-for invention.

In 2011, Congress enacted the Leahy-Smith America Invents Act, which included a provision allowing the public to present examiners with relevant publications that the examiners’ own searches might not otherwise uncover. However, this “preissuance submissions” provision and its related administrative rule are tempered by 35 …

Patent Portfolios As Securities, Michael Risch

Duke Law Journal

Companies of all types are buying, selling, and licensing patents— not just individual patents, but many patents bundled into large portfolios. A primary problem with these transactions is that the market is illiquid: parties cannot identify holders of relevant portfolios, they cannot agree on the value of portfolios, and the specter of litigation taints every negotiation.

This Article presents a new way to improve market formation and integrity by proposing that patent portfolios be treated as securities. If patent-portfolio transactions are treated like stock transactions, sellers steering clear of fraud laws may be forced to disclose information about patent value. …

A Community Of Procedure Scholars: Teaching Procedure And The Legal Academy, Beth Thornburg, Erik S. Knutsen, Carla Crifò, Camille Cameron

Osgoode Hall Law Journal

This article asks whether the way in which procedure is taught has an impact on the extent and accomplishments of a scholarly community of proceduralists. Not surprisingly, we find a strong correlation between the placement of procedure as a required course in an academic context and the resulting body of scholars and scholarship. Those countries in which more civil procedure is taught as part of a university degree—and in which procedure is recognized as a legitimate academic subject—have larger scholarly communities, a larger and broader corpus of works analyzing procedural issues, and a richer web of institutional support systems that …

Masthead, Cardozo Public Law, Policy And Ethics Journal, Vol. 12 (2013-14)

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Constitutional Rights And Political Power Of Corporations After Citizens United: The Decline Of Citizens And The Rise Of Foreign Corporations And Super Pacs, Tim Bakken

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Intellectual Property And The Protection Of Indigenous Culture In The United States And New Zealand: An Effective Solution For Indigenous Communities?, Dinisha L. Fernando

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Moment Of Clarity: A Centrist Approach To Mortgage Lending, Yusuf Yusuf

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Table Of Contents - Cardozo Law Review, Volume 35, Issue 1

Cardozo Law Review

No abstract provided.

Freedom Of Speech, Defamation, And Injunctions, David S. Ardia

William & Mary Law Review

It has long been a fixture of Anglo-American law that defamation plaintiffs are not entitled to injunctive relief; their remedies are solely monetary. Indeed, it has been repeated as a truism: “equity will not enjoin a libel.” This precept rests on one of the strongest presumptions in First Amendment jurisprudence: that injunctions against libel and other kinds of speech are unconstitutional prior restraints. But it may not be true, at least not anymore.

Over the past decade, the Internet has brought increased attention to the adequacy of the remedies available in defamation cases. Prior to the widespread availability of digital …

The Non-Redelegation Doctrine, F. Andrew Hesisck, Carissa Byrne Hessick

William & Mary Law Review

In United States v. Booker, the Court remedied a constitutional defect in the federal sentencing scheme by rendering advisory the then-binding sentencing guidelines promulgated by the U.S. Sentencing Commission. One important but overlooked consequence of this decision is that it redelegated the power to set sentencing policy from the Sentencing Commission to federal judges. District courts now may sentence based on their own policy views instead of being bound by the policy determinations rendered by the Commission.

This Article argues that, when faced with a decision that implicates an unambiguous delegation, the courts should not redelegate unless authorized by Congress …

Statutory Interpretation As Constestatory Democracy, Glen Staszewski

William & Mary Law Review

This Article provides a novel solution to the countermajoritarian difficulty in statutory interpretation by applying recent insights from civic republican theory to the adjudication of statutory disputes in the modern regulatory state. From a republican perspective, freedom consists of the absence of the potential for arbitrary domination, and democracy should therefore include both electoral and contestatory dimensions. The Article argues that statutory interpretation in the modern regulatory state is best understood as a mechanism of contestatory democracy. It develops this conception of statutory interpretation by considering the distinct roles of legislatures, administrative agencies, and courts in making and implementing the …

Trademark Morality, Mark Batholomew

William & Mary Law Review

This Article challenges the modern rationale for trademark rights. According to both judges and legal scholars, what matters in adjudicating trademark cases are the economic consequences, particularly for consumers, of a defendant’s use of a mark, not the use’s morality. Nevertheless, under this utilitarian facade, judicial assessments of highly charged questions of right and wrong are also at work. Recent findings in the field of moral psychology demonstrate the influence of particular moral triggers in all areas of human decision making, often without conscious awareness. These triggers influence judges deciding trademark disputes. A desire to punish bad actors, particularly those …

The Federal Medical Loss Ratio: A Permissible Federal Regulation Or An Encroachment On State Power?, Meghan S. Stubblebine

William & Mary Law Review

No abstract provided.

Reverse Payments, Perverse Incentives, Murat C. Mungan

Faculty Scholarship

Issuing and enforcing prescription drug patents requires courts and legislatures to strike a delicate balance. A patent gives drug manufacturers a legal, if temporary, monopoly on sales of a drug; this encourages manufacturers to engage in costly research and development of new medicines. But not all patents issued by the Patent Office are ultimately deemed valid – generic drug manufacturers can infringe the patent, and, when sued, attack its validity in court on a variety of grounds, including obviousness. In recent years, patent holders have begun to settle these suits (which they initiated) by paying the alleged infringer. Not surprisingly, …

Something To [Lex Loci] Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Meg Penrose

Faculty Scholarship

The critical issue the Defense of Marriage Act ("DOMA") resolves is: who decides? Who decides whether, when, and to what extent same-sex marriages created in one American state will be recognized by other state governments, and by the federal government? That structural issue is the most important issue at stake in the controversy about interstate recognition of same-sex marriage in the United States. It is a question legal proceduralists and legal structuralists--such as conflict of laws --scholars can, should, and largely do understand and appreciate. The structural matters of respect for the constitutional allocation of government, and adherence to legitimate …

Systematically Thinking About Law Firm Ethics: Conference On The Ethical Infrastructure And Culture Of Law Firms, Susan Saab Fortney

Faculty Scholarship

To advance the discourse related to law firm ethics and the impact of formal controls and informal influences on lawyer conduct, we convened on April 5, 2013 the Conference on the Ethical Infrastructure and Culture of Law Firms ("Conference" or "Symposium"). The Conference, conducted under the auspices of the Hofstra Law Review and the Maurice A. Deane School of Law at Hofstra University's Institute for the Study of Legal Ethics, was funded in part by the Abraham J. Gross '78 Conference and Lecture Fund at the Maurice A. Deane School of Law at Hofstra University. Experts who have studied issues …

The Latest Red River Rivalry: The Supreme Court's Recent Decision Regarding The Red River Compact, Luke W. Davis, Gabriel Eckstein

Faculty Scholarship

On June 13, 2013, the United States Supreme Court issued a unanimous decision in a “Red River Rivalry” with much greater implications than the annual football game. In Tarrant Regional Water District v. Herrmann, the court sided entirely with Oklahoma in that state’s dispute with Texas over the allocation of Red River water. This decision will have considerable impact on Texas’ ability to meet its ever-growing water needs. Moreover, the decision could be consequential for other interstate water compacts and the states relying on the rivers and tributaries governed by those agreements.

European Court Of Human Rights' Dance With Death, Alexander Cogbill

Connecticut Journal of International Law

There has not been a state sponsored execution by any Council of Europe member state in more than fifteen years.' This milestone represents a relative success for opponents of capital punishment and is only possible because of a carefully constructed legal evolution. The de facto abolition of the death penalty remains under threat by both member and non-member states. This article will explore the current state of death penalty jurisprudence in the Council of Europe, focusing particularly on attempts to export abolitionist values to retentionist countries. It argues that this awkward assertion of diplomatic power is necessary to advance the …

Transformation Of The Modern State: State Sovereignty And Human Rights In The Internet Age, Rob Dickinson

Connecticut Journal of International Law

Self-immolation is the final challenge of the desperate: to local society, to the wider state, to society nationally, and to the international arena. Examples abound: for instance, on January 16, 1969, Jan Palach, a Czech student, committed suicide in Wenceslas Square, Prague, in protest against the Soviet occupation of Czechoslovakia following the invasion in August 1968 - now garnering fresh publicity through a recent television mini-series.' In addition, over the years, Tibetans have used self-immolation as a tactic to protest against Chinese rule in numbers that continue to mount: "Since March 2011, some forty Tibetans have set themselves on fire …

Duty-Free Quota-Free Market Access For Ldcs: Falling Within Or Outside The Gsp Downsides, Sharmin J. Tania

Connecticut Journal of International Law

On April 24, 2013, the world witnessed the deadliest industrial disaster in the textile sector when a building collapse in Bangladesh killed 1129 ready-made garment workers. In the aftermath, both the United States (U.S.) and the European Union (E.U.) threatened to suspend Bangladesh from their Generalized System of Preference (GSP)' facility, clearly to pressure the Bangladeshi government to improve labor conditions. Ultimately, though the E.U. backtracked from the threat, the U.S. suspended its GSP treatment to Bangladesh as a "symbolic move to punish the country for poor labor practices" that particularly attracted the world's attention after the Savar building collapse. …

To Join Or Not To Join The International Criminal Court: Arguments For And Against American Ratification Of The Rome Statute, Caitlin Peruccio

Connecticut Journal of International Law

Throughout the 20th century, the international community sought to create a permanent international court to handle crimes against humanity, war crimes and genocide. Following the atrocities of World War II, the Nuremberg and Tokyo Trials - in turn - addressed the crimes committed during World War II' Through the Geneva Conventions and the Universal Declaration of Human Rights, there was an increasing validity of "individual human rights as a legitimate subject of international law."2 In the drafting stages of the Geneva Conventions, the United States lobbied for the inclusion of a provision that would establish an international criminal court;3 however, …

Creeping Adversarialism In Counterterrorist States, Erin Creegan, Clare J. Hatfield

Connecticut Journal of International Law

The most popular criminal justice system the world over is not the one found in the United States. The United States uses the "adversarial" or "accusatorial" system, in which defense and prosecution are pitted against each other under the supervision of a neutral judge, the fate of the case decided by a lay jury. This is the simple picture anyway. In the inquisitorial system, the judge (or judges, or a mixed panel of lay and professional judges) rule supreme over a neutral presentation of evidence by a detached prosecutor, with rebuttals from the defense. From this simple description, the differences …

Public Debt In The United States And Germany: A Constitutional Perspective, Markus Heintzen, Stephen Utz

Connecticut Journal of International Law

This article compares how German and American constitutional frameworks shape alternative approaches for legislative self-discipline regarding public debt. The purpose of the comparison is to identify structural features of the respective constitutional regimes that further or hinder long-term budgetary discipline on the part of a national legislature. The authors believe the devilish details of this globally pressing legislative goal demand a discussion that is sensitive to both constitutional and fiscal challenges.

The Role Of China’S Banking Sector In Providing Green Finance, Yuwen Bai, Michael Faure, Jing Liu

Duke Environmental Law & Policy Forum

No abstract provided.

The Role Of Civil Society In Environmental Governance In The United States And China, Robert V. Percival, Zhao Huiyu

Duke Environmental Law & Policy Forum

No abstract provided.

The Wal-Mart Effect On Organics: A Defense Of Large-Scale Organic Production, Julia Johnson

Duke Environmental Law & Policy Forum

No abstract provided.