Law Commons^™

Afterword: Conferring About The Conference, Jessica Silbey, Aaron Perzanowski, Marketa Trimble

Faculty Scholarship

We heard at the conference five rich papers, all addressing in one way or another the conference's theme: "ReCalibrating Copyright: Continuity, Contemporary Culture, and Change." Professor Craig Joyce, in his capacity as conference convener, asked us as Fellows, at the end of the day of presentations and discussions, how we thought the Presenters' papers spoke to each other and to the conference's focus.

Conclusion. The Migration Of Legal Ideas: Legislative Design And The Lawmaking Process, Robert L. Tsai

Faculty Scholarship

This is the conclusion for an edited volume on legislative usage of foreign and international law, N. Lupo & L. Scaffardi, Legal Transplants and Parliaments: A Possible Dialogue Amongst Legislators? (2014). I assess the general turn in comparative law studies towards the behavior of elected officials, as well as the preference for increased formality in the use of foreign law. The essays in this book analyze the legal experiences of Brazil, Namibia, Australia, South Africa, Spain, the European Union, China, Canada, Portugal, the United Kingdom, the United States, and Italy. Many of these countries (but not all, especially the U.S.) …

The Market In Unmatured Tort Claims: Twenty-Five Years Later, Stephen G. Marks

Faculty Scholarship

In an article in 1989 in the Virginia Law Review, Professor Robert Cooter argued for changes in the law that would facilitate the development of a market in unmatured tort claims. An unmatured tort claim is a potential claim that a potential victim has before any injury has occurred. Cooter proposed that potential victims have the right to sell their unmatured tort claims. That is, Cooter proposed that potential victims be allowed to sell their right to sue even before an accident or injury ever occurs. Even twenty-five years later, the proposal remains both bold and imaginative, and yet it …

Reviving Implied Confidentiality, Woodrow Hartzog

Faculty Scholarship

The law of online relationships has a significant flaw-it regularly fails to account for the possibility of an implied confidence. The established doctrine of implied confidentiality is, without explanation, almost entirely absent from online jurisprudence in environments where it has traditionally been applied offline, such as with sensitive data sets and intimate social interactions.

Courts' abandonment of implied confidentiality in online environments should have been foreseen. The concept has not been developed enough to be consistently applied in environments such as the Internet that lack obvious physical or contextual cues of confidence. This absence is significant because implied confidentiality could …

The Ftc And The New Common Law Of Privacy, Daniel J. Solove, Woodrow Hartzog

Faculty Scholarship

One of the great ironies about information privacy law is that the primary regulation of privacy in the United States has barely been studied in a scholarly way. Since the late 1990s, the Federal Trade Commission (FTC) has been enforcing companies’ privacy policies through its authority to police unfair and deceptive trade practices. Despite over fifteen years of FTC enforcement, there is no meaningful body of judicial decisions to show for it. The cases have nearly all resulted in settlement agreements. Nevertheless, companies look to these agreements to guide their privacy practices. Thus, in practice, FTC privacy jurisprudence has become …

“Exploitation Creep” And Development: A Response To Janie Chuang, Aziza Ahmed

Faculty Scholarship

In her article Exploitation Creep and the Unmaking of Human Trafficking Law, Janie Chuang insightfully describes transformations in the discourse on trafficking as it shifted from sex trafficking to human trafficking, and as human trafficking came to be understood as forced labor, and now modern day slavery. With each of these transformations, the United States government, self-anointed “global sheriff” of anti-trafficking efforts, deepened its emphasis on a prosecution-oriented strategy focused on individual perpetrator accountability. As an alternative trajectory, Chuang identifies and convincingly argues for a labor-rights approach that takes into consideration the structural causes of exploitation in the labor market, …

Hiv, Violence Against Women, And Criminal Law Interventions, Aziza Ahmed

Faculty Scholarship

The growing calls for the “securitization of body and property,”[ii] documented by Jonathan Simon in his book Governing Through Crime, illustrates a deep tension in our understanding of the role of criminal law as a tool for societal transformation.[iii] For some, including communities of color, the criminal legal system is a place where inequality flourishes;[iv] for others, including those feminists who have support criminal law interventions, it has become a tool to realize equality.[v] The Trafficking Victims Protection Act, reauthorized in 2013 as an amendment to the Violence Against Women Act (VAWA),[vi] relies heavily on the criminal law to obtain …

The Ftc And Privacy And Security Duties For The Cloud, Daniel J. Solove, Woodrow Hartzog

Faculty Scholarship

Third-party data service providers, especially providers of cloud computing services, present unique and difficult privacy and data security challenges. While many companies that directly collect data from consumers are bound by the promises they make to individuals in their privacy policies, cloud service providers are usually not a part of this arrangement. It is not entirely clear what, if any, obligations cloud service providers have to protect the data of individuals with whom they have no contractual relationship. This problem is especially acute because many institutions sharing personal data with cloud service providers fail to include significant privacy and security …

Space Madness: Subsidies And Economic Substance, Steven A. Dean

Faculty Scholarship

Extending the reach of the recently codified economic substance doctrine to embrace transactions spurred by tax subsidies would help both Congress and taxpayers promote worthy objectives such as historic preservation and the production of renewable energy. Congress-or quite possibly the courts-could use losses as the lynchpin of an economic substance doctrine for subsidized transactions.

A Model Litigation Finance Contract, Maya Steinitz, Abigail C. Field

Faculty Scholarship

Litigation financing is nonrecourse funding of litigation by a non-party for a profit. It is a burgeoning and controversial phenomenon that has penetrated the Unites States in recent years. Since "most of the important phenomena of modern litigation are best understood as results of changes in the financing and capitalization of the bar," it is not surprising that litigation financing has been dubbed by RAND as one of the "biggest and most influential trends in civil justice" and by the Chamber of Commerce "a clear and present danger to the impartial and efficient administration of civil justice in the United …

The Creation Of The Department Of Justice: Professionalization Without Civil Rights Or Civil Service, Jed Handelsman Shugerman

Faculty Scholarship

This Article offers a new interpretation of the founding of the Department of Justice (DOJ) in 1870 as an effort to shrink and professionalize the federal government. The traditional view is that Congress created the DOJ to increase the federal government's capacity to litigate a growing docket due to the Civil War. More recent scholarship contends that Congress created the DOJ to enforce Reconstruction and ex-slaves' civil rights. However, it has been overlooked that the DOJ Act eliminated about one-third of federal legal staff. The founding of the DOJ had less to do with Reconstruction, and more to do with …

Legal Instrumentalism And The Lsa: A 'Movie Treatment', Toby S. Goldbach

All Faculty Publications

In the 2nd half century, LSA should entertain the death/rebirth of “law as a tool for social change.” We innovate by examining the artifacts of an instrumental genre of knowledge and by investigating our impulse to invent varieties of normative technologies.

Live And Let Die: Puerto Rico — The Unincorporated Jewel Of The Caribbean, Emmanuel Hiram Arnaud

Faculty Scholarship

Puerto Rico is a commonwealth of the United States. However, the ambiguous meaning of that phrase has allowed for inconsistent treatment of Puerto Rico by the Supreme Court of the United States. This short article briefly tackles the manner in which the federal government most recently applied the federal death penalty to Puerto Rico despite the island's constitutional ban against capital punishment.

Book Review: Fact And Fiction: The Hanging Judge By Michael Ponsor, Tigran W. Eldred

Faculty Scholarship

This essay reviews the debut novel by senior federal judge Michael Ponsor, a tale of the first death penalty case to occur in Massachusetts in more than 50 years.

Betty Boop And The Return Of Aesthetic Functionality: A Bitter Medicine Against 'Mutant Copyrights'?, Irene Calboli

Research Collection Yong Pung How School Of Law

This article offers a brief overview of the history and developments of the doctrine of aesthetic functionality in the United States and examines the recent decisions in Fleischer Studios, Inc v AVELA, Inc. In particular, the article argues that the courts in Fleischer added an important element to the interpretation of the doctrine, namely the fact that the courts seemed willing to resort to aesthetic functionality to counter the consequences resulting from the practice of using trade mark protection as an additional form of protection for copyrighted, or once copyrighted, creative works.

In Territorio Veritas? Bringing Geographical Coherence Into The Ambiguous Definition Of Geographical Indications Of Origin, Irene Calboli

Research Collection Yong Pung How School Of Law

In this article, I criticize what I call “ambiguous geographical origin” in the concept of geographical indications of origin (GIs) and note that the current definition of GIs in Art. 22(1) of TRIPS essentially misuses, or at least misinterprets, of the terms “geographical origin.” More specifically, I expose the partial inconsistency between the legal definition under TRIPs and the dictionary definition of the terms “geographical” and “origin”. In this respect, I point out that, from a strictly linguistic standpoint, the term “geographical”, in its variation as “geographic”, is defined as “of or relating to geography” and as “belonging to or …

“Where Does A Wise Man Hide A Leaf?” : Modernising The Laws Of Disclosure In The Information Age, Denise Huiwen Wong

Research Collection Yong Pung How School Of Law

Litigation practice has been significantly altered by the advent of electronically stored information in daily corporate life. It is argued that the laws of disclosure should be updated to recognise that technology-assisted document review via keyword searching is crucial in ensuring that the costs of litigation are well managed. In order to facilitate keyword searching, a new legal concept of accuracy in the selection of keywords should be introduced into the laws of disclosure. At the same time, despite the adversarial nature of litigation, it is imperative that parties approach electronic disclosure with a spirit of collaboration in order to …

Best Interests Of The Child Principle In The Context Of Parent Separation Or Divorce : As Conceptualised By The Community, Nadia Dias

Theses: Doctorates and Masters

Best interests of the child (BIC) is a construct that is central to legal decisions in several areas including parenting matters in the Family Courts, guardianship, child-protection, and adoption. Despite the centrality of the construct, BIC has not been operationalised (Thomson & Molloy, 2001) and there is little agreement about what is considered best for children within social service and legal communities (Banach, 1998). Given that one of the aims of law is to reflect public sentiment (Green, 1996), the current study explored the general public’s conceptualisation of BIC. More specifically, I sought to determine what community members think the …

Review Of Putting Intellectual Property In Its Place: Rights Discourses, Creative Labor And The Everyday By Laura J. Murray, S. Tina Piper & Kirsty Robertson, Jessica Silbey

Faculty Scholarship

This book is an interdisciplinary marvel. Its focus on creative communities and their practices avoids the frequent pitfalls of intellectual property (IP) scholarship: a myopic focus on the utilitarian and economic theories of IP. The authors acknowledge these dominant themes in much of IP scholarship, but they deliberately take a different tract. As such, this book cannot help but be generous and broad-minded in both its subject matter and range of detail. The authors, a trio of academics - two in the humanities and one in law - set out to explore how creative communities work, theorizing (and they turned …

Foreword: Conference On Religious Legal Theory: Rlt Iv: Expanding The Conversation, Samuel J. Levine

Scholarly Works

In this article, the author introduces the articles published in the Symposium Issue of the Touro Law Review, which is a compilation of selected excerpts from the fourth annual Conference on Religious Legal Theory (“RLT”) held April 10-12, 2013. By introducing each article, the author shows a sampling of the variety of topics and disciplines explored and the range of perspectives represented at the Conference, which revolved around the theme RLT IV: Expanding the Conversation. The author provides the background of the panelists to give context to each article, and then briefly discusses the relevance and main ideas.

On The Waterfront: New York City's Climate Change Adaptation And Mitigation Challenge (Part 1 Of 2), Sarah J. Adams-Schoen

Scholarly Works

New York City is a city on the waterfront. With 520 miles of coastline, New York City’s coastline is longer than the coastlines of Miami, Boston, Los Angeles and San Francisco combined. Nearly nine million New Yorkers live in areas vulnerable to flooding, storm surges and other natural disaster-related risks that are increasing as a result of climate change.

New York City didn’t wait for a devastating storm to begin comprehensively addressing the effects of climate change. The City’s extensive climate change mitigation and resiliency efforts and communications strategy have put the City in a league of its own. But, …

Climate Change Adaptation And Mitigation: A Local Solution To A Global Problem, Sarah J. Adams-Schoen

Scholarly Works

Local land use laws offer powerful tools for climate change adaptation and mitigation. However, notwithstanding New York municipalities’ many impressive efforts, local laws are not yet being utilized sufficiently to create disaster-resilient or disaster-adaptive communities. New York City has done substantially more than many other cities, including, critically, setting specific CO2 emissions reduction targets and amending zoning and building codes. But, in light of the evidence of climate change and its impacts, local decision makers, resource managers, and planners throughout the state must ask whether we are doing enough. Failure to do so will continue to be costly in terms …

From Kiobel Back To Structural Reform: The Hidden Legacy Of Holocaust Restitution Litigation, Leora Bilsky, Rodger D. Citron, Natalie R. Davidson

Scholarly Works

This paper offers a new approach to the issue of transnational corporate liability for human rights violations and more generally an inquiry into the place of domestic legal experiences in theorizing about transnational law. Grounded in a study of the Holocaust restitution litigation of the 1990s, we explain corporate liability as a type of bureaucratic liability and explore in depth the relationship between the Holocaust litigation and the theory of structural reform litigation developed in the U.S. to address the bureaucratic structure of rights violations. We read the restitution litigation in light of pluralist reformulations of structural reform, in which …

On The Waterfront: New York City's Climate Change Adaptation And Mitigation Challenge (Part 2 Of 2), Sarah J. Adams-Schoen

Scholarly Works

New York City, like other major cities around the world, has acknowledged the problem of climate change and begun to implement proactive policies to decrease the city’s contribution to the problem (i.e., mitigation) and to make the city less vulnerable to the effects of climate change (i.e., adaptation). The City’s initiatives have been comprehensive and progressive, especially its climate change-related data analysis and communication initiatives including NPCC, and its comprehensive reform of building and other related codes. The City’s commitment to reduce greenhouse gas emissions by 30% by 2030 and its progress toward that goal are also laudable, but the …

Nuance, Technology, And The Fourth Amendment: A Response To Predictive Policing And Reasonable Suspicion, Fabio Arcila Jr.

Scholarly Works

In an engaging critique, Professor Arcila finds that Professor Ferguson is correct in that predictive policing will likely be incorporated into Fourth Amendment law and that it will alter reasonable suspicion determinations. But Professor Arcila also argues that the potential incorporation of predictive policing reflects a larger deficiency in our Fourth Amendment jurisprudence and that it should not be adopted because it fails to adequately consider and respect a broader range of protected interests.

Land Use Law Update: The Court Of Appeals Issues A Victory For Home Rule In Wallach V. Town Of Dryden And Cooperstown Holstein Corp. V. Town Of Middlefield, Sarah Adams-Schoen

Scholarly Works

In the midst of the often heated controversy swirling around the issue of hydraulic fracturing (commonly referred to as “hydrofracking” and “fracking”), New York’s Court of Appeals recently issued a straightforward ruling, which focused on long-established precedent concerning the right of municipalities to regulate mining land uses, rather than focusing on the contentious economic or environmental issues surrounding the fracking debate. This article discusses that ruling.

The Executive And The Environment: A Look At The Last Five Governors In New York, Patricia E. Salkin

Scholarly Works

Gubernatorial leadership is the single most important indicator of how sustainable New York will be when it comes to issues of environmental protection and conservation. In preparing for the Kerlin Lecture, one of the things that struck (the author) is that New York governors for at least the last thirty years have consistently identified the critical economic, social, and environmental challenges facing this state. Is it simply political rhetoric to decry that the state is in terrible fiscal shape, that programs need to be funded to help those is need, and that we must pay attention to stewarding the environment …

It's A 'Criming Shame': Moving From Land Use Ethics To Criminalization Of Behavior Leading To Permits And Other Zoning Related Acts, Patricia E. Salkin, Bailey Ince

Scholarly Works

In the past, land use ethics inquiries predominately involved conflicts of interest or an official holding public office while engaging in a previously held business or law practice. Now, prosecutors are looking at the underlying criminality of the unethical acts carried out in the context of land use decisions. With a wide array of criminal statutes in the hands of federal prosecutors, almost all forms of unethical conduct could in some way also violate a federal criminal statute.

Part II of this article reviews the federal statutes most often used by federal prosecutors and provides some examples of recent reported …

Testing, Diversity, And Merit: A Reply To Dan Subotnik And Others, Andrea A. Curcio, Carol L. Chomsky, Eileen Kaufman

Scholarly Works

The false dichotomy between achieving diversity and rewarding merit frequently surfaces in discussions about decisions on university and law school admissions, scholarships, law licenses, jobs, and promotions. “Merit” judgments are often based on the results of standardized tests meant to predict who has the best chance to succeed if given the opportunity to do so. This Article criticizes over-reliance on standardized tests and responds to suggestions that challenging the use of such tests reflects a race-comes-first approach that chooses diversity over merit. Discussing the firefighter exam that led to the Supreme Court decision in Ricci v. DiStefano, as well as …

Exporting The Legal Incubator: A Conversation With Fred Rooney, Fred Rooney, Justin Steele

Scholarly Works

This article is an edited transcript of an interview with Fred Rooney, currently the Director of the International Justice Center for Post-Graduate Development at Touro Law Center. As the inaugural director of the City University of New York (CUNY) School of Law’s Community Legal Resource Network (CLRN), Mr. Rooney pioneered the first law-school based legal incubator. In this interview he discusses the creation of the CLRN, the evolution and growth of legal incubators, and his experience launching the Community Legal Services Center (Centro Comunitario de Servicios Legales or CECSEL) at the Autonomous University of Santo Domingo (UASD) in the Dominican …