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2016

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Articles 1051 - 1080 of 15272

Full-Text Articles in Law

The Dynamic Relationship Between Freedom Of Speech And Equality, Timothy Zick Dec 2016

The Dynamic Relationship Between Freedom Of Speech And Equality, Timothy Zick

Faculty Publications

This Article examines the dynamic intersection between freedom of speech and equal protection, with a particular focus on the race and LGBT equality movements. Unlike other works on expression and/or equality, the Article emphasizes the relational and bi-directional connections between freedom of speech and equal protection. Freedom of speech has played a critical role in terms of advancing constitutional equality. However, with regard to both race and LGBT equality, free speech rights also failed in important respects to facilitate equality claims and movements. Advocacy and agitation on behalf of equality rights have also left indelible positive and negative marks on …

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Intrapreneurship, Darian M. Ibrahim Dec 2016

Intrapreneurship, Darian M. Ibrahim

Faculty Publications

This Article on “intrapreneurship” has several goals. First, it points out that while much of the legal literature on innovation is concerned with startups (entrepreneurship), the innovation that takes place inside our largest corporations (intrapreneurship) is substantial, important, and understudied. Second, the Article observes that while large technology corporations that used to be startups may remain intrapreneurial in culture, intrapreneurship is less common in the aggregate than we might expect. Reasons include organizational bureaucracy, laws favoring entrepreneurship, and what Clayton Christensen (Harvard Business School) calls “the innovator’s dilemma.” The innovator’s dilemma is, put simply, that good management causes large corporations …

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The Colors Of Cannabis: Reflections On The Racial Justice Implications Of California's Proposition 64, Steven Bender Dec 2016

The Colors Of Cannabis: Reflections On The Racial Justice Implications Of California's Proposition 64, Steven Bender

Faculty Articles

No abstract provided.

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Newsroom: Horwitz On The Trump Effect 12-1-2016, Amanda Milkovits, Roger Williams University School Of Law Dec 2016

Newsroom: Horwitz On The Trump Effect 12-1-2016, Amanda Milkovits, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

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Newsroom: Law Is 'Just Coaching At Heart' 12-1-2016, Marvin Pave, Roger Williams University School Of Law Dec 2016

Newsroom: Law Is 'Just Coaching At Heart' 12-1-2016, Marvin Pave, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

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Climate Change Impacts On Municipal Negligence Liability In Rhode Island, Manta Dircks Dec 2016

Climate Change Impacts On Municipal Negligence Liability In Rhode Island, Manta Dircks

Sea Grant Law Fellow Publications

No abstract provided.

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Consent Confusion, Aya Gruber Dec 2016

Consent Confusion, Aya Gruber

Cardozo Law Review

The slogans are ubiquitous: "Only 'Yes' Means 'Yes"'" "Got Consent?", "Consent is Hot, Assault is Not!" Clear consent is the rule, but the meaning of sexual consent is far from clear. The current state of confusion is evident in the numerous competing views about what constitutes mental agreement (grudging acceptance or eager desire?) and what comprises performative consent (passive acquiescence or an enthusiastic "yes"?). This paper seeks to clear up the consent confusion. It charts the contours of the sexual consent framework, categorizes different definitions of affirmative consent, and critically describes arguments for and against affirmative consent. Today's widespread uncertainty …

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Protecting Fashion: A Comparative Analysis Of Fashion Design Protection In The United States And Europe, Francesca Montalvo Witzburg Dec 2016

Protecting Fashion: A Comparative Analysis Of Fashion Design Protection In The United States And Europe, Francesca Montalvo Witzburg

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

In the year 2015 alone, the United States fashion industry generated over $343 billion in revenue. Fashion is not just a business—it is also a respected art form in the United States. Despite the economic and artistic significance of fashion, the tailoring and structural aspects of a fashion article are generally not protectable under U.S. copyright law. However, certain patterns exhibited on a fashion article such as an original pattern on a skirt or a screen print of an artist’s painting on a t-shirt may be copyrightable. In contrast, Europe has several legal mechanisms for protecting fashion designs and articles …

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Regulating Off-Label Promotion — A Critical Test, Christopher Robertson, Aaron S. Kesselheim Dec 2016

Regulating Off-Label Promotion — A Critical Test, Christopher Robertson, Aaron S. Kesselheim

Faculty Scholarship

In 2012, the U.S. Court of Appeals for the Second Circuit handed down a landmark decision in the case of pharmaceutical sales representative Alfred Caronia. The Food and Drug Administration (FDA) had approved sodium oxybate (Xyrem) for treating narcolepsy, but Caronia promoted it for a wide range of nonapproved (off-label) indications, including insomnia, Parkinson’s disease, and fibromyalgia. Off-label use is common, especially in specialties such as oncology, in which it may even be considered the standard of care. However, surveys have revealed that supporting evidence is lacking for a majority of off-label uses of medical products.1 The uses Caronia …

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The Roberts Court And The New Textualism, Anton Metlitsky Dec 2016

The Roberts Court And The New Textualism, Anton Metlitsky

Cardozo Law Review

The article explores the Roberts Court's approach to statutory interpretation, focusing on its adherence to the "new textualism," a methodology emphasizing the plain meaning of statutory text. While recent cases like King v. Burwell, Bond v. United States, and Yates v. United States appear to prioritize statutory purpose over textual meaning, the Court's reasoning reinforces its commitment to textualism by framing decisions within textualist methodology, even when outcomes seem to depart from strict textual interpretation.

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Procedural Change In The First Ten Years Of The Roberts Court, Sarah Staszak Dec 2016

Procedural Change In The First Ten Years Of The Roberts Court, Sarah Staszak

Cardozo Law Review

Chief Justice John Roberts has significantly influenced access to justice through his role in shaping the Federal Rules of Civil Procedure. His appointments to the Judicial Conference and its subcommittees have led to rule changes that favor corporate defendants and limit opportunities for individual plaintiffs, particularly through stricter discovery limits and higher pleading standards.

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Where Techs Rush In, Courts Should Fear To Tread: How Courts Should Respond To The Changing Economics Of Today, Melanie Defiore Dec 2016

Where Techs Rush In, Courts Should Fear To Tread: How Courts Should Respond To The Changing Economics Of Today, Melanie Defiore

Cardozo Law Review

No abstract provided.

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The Plain Language Court, David A. Strauss Dec 2016

The Plain Language Court, David A. Strauss

Cardozo Law Review

The Roberts Court, under Chief Justice John Roberts, has demonstrated a strong and consistent commitment to the plain language approach in statutory interpretation. This approach emphasizes interpreting statutes based on their literal text, often without considering legislative history or broader statutory purposes. The Court's decision in Milner v. Department of the Navy exemplifies this trend, where the Court adhered to the plain language of the Freedom of Information Act (FOIA) despite significant policy concerns. This approach has become more unanimous among the justices, reflecting a shift from earlier Courts that were more divided on this method.

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Building A Bench: A Close Look At State Appellate Courts Constructed By The Respective Methods Of Judicial Selection, Diane M. Johnsen Dec 2016

Building A Bench: A Close Look At State Appellate Courts Constructed By The Respective Methods Of Judicial Selection, Diane M. Johnsen

San Diego Law Review

This Article analyzes detailed career-path and other demographic data to determine the extent to which the various judicial selection methods advance diverse candidates to the bench. The results show many similaritiesamong the mix of objective characteristics found on appellate benches across the states, regardless of selection method, but there are some important differences ... Part I discusses the history of judicial selection in the states and reviews the prior empirical and theoretical literature concerning judicial selection methods and the differences among judges produced by those selection methods, mainly with respect to gender, race, and localism. Part II identifies the data …

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A Battlefield Map For Nfl V. Insurance Industry Re: Concussion Liabilities, Christopher C. French Dec 2016

A Battlefield Map For Nfl V. Insurance Industry Re: Concussion Liabilities, Christopher C. French

San Diego Law Review

When the superstar athlete—“Iron Mike” Webster—a nine-time NationalFootball League (NFL) Pro Bowler, four-time Super Bowl Champion, Hall of Fame center for the Pittsburgh Steelers—died at age fifty with severe brain dysfunction after becoming homeless and living in a truck, it was discovered he had a previously nameless disease, Chronic Traumatic Encephalopathy (CTE). The discovery of CTE opened the floodgates on interest in delayed manifestation brain diseases caused by repeated blows to the head. As part of that flood, many retired NFL players brought numerous class actions against the NFL for their alleged brain diseases caused by the repeated blows to …

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V.53-4, 2016 Masthead Dec 2016

V.53-4, 2016 Masthead

San Diego Law Review

No abstract provided.

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Saving The Farm Or Giving Away The Farm: A Critical Analysis Of The Capital Gains Tax Preferences, Phyllis C. Taite Dec 2016

Saving The Farm Or Giving Away The Farm: A Critical Analysis Of The Capital Gains Tax Preferences, Phyllis C. Taite

San Diego Law Review

This Article addresses some of the inequities and offers a multi-faceted proposal to raise revenue and incentivize preferences for a more balanced approached to tax policy. First, I advance a proposal that offers solutions to shift certain aspects of the capital gains tax preferences toward the middle and lower class. To balance the costs, I then propose an option to phase out or eliminate other preferences that primarily benefit the wealthiest taxpayers. This balanced approach will allow the government to raise revenue and change the capital gains tax preferences from a rewards to an incentive-based system. Part II of this …

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Catholic Social Teaching, The Right To Immigrate, And The Right To Regulate Borders: A Proposed Solution For Comprehensive Immigration Reform Based Upon Catholic Social Principles, Chad G. Marzen, William Woodyard Ii Dec 2016

Catholic Social Teaching, The Right To Immigrate, And The Right To Regulate Borders: A Proposed Solution For Comprehensive Immigration Reform Based Upon Catholic Social Principles, Chad G. Marzen, William Woodyard Ii

San Diego Law Review

A number of scholars have commented on the significance of religious traditions to the debate concerning immigration policy in the United States.[1] In this Article, we contend that the Catholic legal tradition is relevant to the contemporary debate among policymakers, as it balances policy considerationsof the right to immigrate as well as the right of a nation to regulate its borders advocated on both ends of the policy debate. Section I of this Article discusses the current policy debate concerning comprehensive immigration reform and recent major legislative proposals for comprehensive immigration reform, including the plan of the “Gang of Eight” …

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California’S Curse: Perpetual Drought And Persistent Land Development, Gabrielle Kavounas Dec 2016

California’S Curse: Perpetual Drought And Persistent Land Development, Gabrielle Kavounas

San Diego Law Review

This Comment argues that the California state legislature should take direct control of private water use rights through legislation that amends California’sConstitution Article X, Section 2, providing the state with the police powerto take back private water rights and centralize control over water management and distribution.[1] It also recommends imposing higher requirements for land development and water agency cooperation in standard form, state-controlled“general plans” to create efficiency in distributing water throughout the stateand in planning new land developments. The public trust doctrine, eminentdomain doctrine, and regulatory takings doctrine are possible justifications the state could use to effectuate the new legislation. …

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Guest Lecture By Professor Michael Jacobs, “The Durability Of The Chicago School In Antitrust: What Accounts For It?”, Anna Tworkowska-Baraniuk Dec 2016

Guest Lecture By Professor Michael Jacobs, “The Durability Of The Chicago School In Antitrust: What Accounts For It?”, Anna Tworkowska-Baraniuk

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Guest seminar

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From The Editor (Maciej Bernatt), Maciej Bernatt Dec 2016

From The Editor (Maciej Bernatt), Maciej Bernatt

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

From the Editor

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Policing Postsecondary Education: University Police Legitimacy And Fear Of Crime On Campus, Christina N. Barker Dec 2016

Policing Postsecondary Education: University Police Legitimacy And Fear Of Crime On Campus, Christina N. Barker

Electronic Theses and Dissertations

Assessing the perceptions that students have of the university police officers charged with ensuring student safety is important to maintaining the overall safety of the campus. The current study sought to assess the relationship between student perceptions of university police and the fear of crime felt by students while on campus. Data collection was conducted through a survey methodology using a convenient sample of students in which a self-report survey was sent to the university email addresses of all students enrolled in a southeastern university (n=260). Through the employment of a scale developed to assess the perceptions of university police …

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Unauthorised Fiduciary Gains And The Constructive Trust, Alvin W. L. See Dec 2016

Unauthorised Fiduciary Gains And The Constructive Trust, Alvin W. L. See

Research Collection Yong Pung How School Of Law

This article challenges the traditional assumption that all cases of unauthorised fiduciary gain warrant the same legal treatment, in particular the imposition of a constructive trust as a disgorgement remedy. It proposes a method of categorising the cases and ranking them based on the strength of the principal’s interest. It is suggested that in cases where the principal’s interest is not particularly strong, there is room for taking into account the interests of innocent third parties and affording them the necessary protection. For this purpose, the remedial constructive trust supplies the needed flexibility.

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The Use Of Scenarios In Legal Education To Develop Futures Thinking And Sustainability Competencies, Michelle Mei Ling Lim, Andrew Allan Dec 2016

The Use Of Scenarios In Legal Education To Develop Futures Thinking And Sustainability Competencies, Michelle Mei Ling Lim, Andrew Allan

Research Collection Yong Pung How School Of Law

Achieving sustainability requires a populace equipped to deal with complex, interacting and ever-changing realities as well as uncertain futures. There is however a significant lack of focus on developing sustainability competencies within legal and governance education. Legal education plays a key role in shaping sustainable futures. Long-term sustainability relies on lawyers, judges and policy-makers being able to make optimal decisions in the present when faced with significant uncertainty about the future. This paper discusses how the combination of problem-based learning (PBL) and scenario-based pedagogical approaches can provide an authentic contextualised learning environment to empower law students to deal with the …

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Time, Death, And Retribution, Chad Flanders Dec 2016

Time, Death, And Retribution, Chad Flanders

All Faculty Scholarship

The heart of a Lackey claim is that when a death row inmate is kept waiting too long for his execution, this delay can amount to cruel and unusual punishment — either because they delay is itself cruel and unusual, or because the execution on top of the delay is. All Lackey claims brought by death row inmates have failed, but not for want of trying. The usual complaint against Lackey claims is that those who, by their own appeals, delay their execution date cannot turn around and use that delay as an argument against their death sentences. I agree …

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Legislative Exactions And Progressive Property, Timothy M. Mulvaney Dec 2016

Legislative Exactions And Progressive Property, Timothy M. Mulvaney

Faculty Scholarship

Exactions — a term used to describe certain conditions that are attached to land-use permits issued at the government’s discretion — ostensibly oblige property owners to internalize the costs of the expected infrastructural, environmental, and social harms resulting from development. This Article explores how proponents of progressive conceptions of property might respond to the open question of whether legislative exactions should be subject to the same level of judicial scrutiny to which administrative exactions are subject in constitutional takings cases. It identifies several first-order reasons to support the idea of immunizing legislative exactions from heightened takings scrutiny. However, it suggests …

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Inefficient Efficiency: Crying Over Spilled Water, Vanessa Casado-Pérez Dec 2016

Inefficient Efficiency: Crying Over Spilled Water, Vanessa Casado-Pérez

Faculty Scholarship

As the drought in Western states worsens, the agricultural sector is being criticized for failing to adopt technical responses, such as shifting to less water-demanding crops and state-of-the-art irrigation systems, in a timely manner. However, these responses can have the reverse effect: they can increase water consumption. Technological responses alone are insufficient to reduce water consumption if unaccompanied by changes in how the law defines and allocates water rights. This paper proposes a redefinition of water rights to ensure that changes in crops or irrigation techniques are socially efficient.

In the West, which uses the doctrine of prior appropriation to …

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Minding Ps And Qs: The Political And Policy Questions Framing Health Care Spending, William M. Sage Dec 2016

Minding Ps And Qs: The Political And Policy Questions Framing Health Care Spending, William M. Sage

Faculty Scholarship

Tracing the evolution of political conversations about health care spending and their relationship to the formation of policy is a valuable exercise. Health care spending is about science and ethics, markets and government, freedom and community. By the late 1980s the unique upward trajectory of post-Medicare U.S. health care spending had been established, recessions and tax cuts were eroding federal and state budgets, and efforts to harness market forces to serve policy goals were accelerating. From the initial writings on “managed competition,” through the failed Clinton health reform effort in the early 1990s, to the passage of the Affordable Care …

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Tax Benefits Of Government-Owned Marijuana Stores, Benjamin Leff Dec 2016

Tax Benefits Of Government-Owned Marijuana Stores, Benjamin Leff

Scholarly Articles in Law Reviews & Journals

This Article is the first to address whether independent governmental affiliates that sell marijuana are exempt from federal income tax under section 115 of the Internal Revenue Code. It argues that such entities should easily pass the IRS's current interpretation of the three requirements for tax-exemption under section 115: (i) that exempt income be derived from "the exercise of any essential governmental function"; (ii) that such income "accru[e] to a State or any political subdivision thereof"; and (iii) that the income "not serve private interests[.]" In addition, this Article argues that though selling marijuana is illegal under federal law, that …

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Persona Non Grata: The Marginalization Of Legal Scholarship In Criminology And Criminal Justice Journals, Brenda I. Rowe, Wesley S. Mccann, Craig Hemmens Dec 2016

Persona Non Grata: The Marginalization Of Legal Scholarship In Criminology And Criminal Justice Journals, Brenda I. Rowe, Wesley S. Mccann, Craig Hemmens

Criminology and Criminal Justice Faculty Publications (Archived)

Recently, concern has been voiced within the academy regarding the marginalization of legal scholarship within the criminology and criminal justice (CCJ) discipline. Although conventional wisdom and anecdotal evidence indicate that it is difficult to get legal scholarship published in CCJ journals, there is a dearth of empirical evidence on the representation of legal scholarship in CCJ journals. The present study assesses the representation of legal scholarship in 20 CCJ journals from 2005 through 2015, examining both trends over time and variation across journals. Findings indicate legal scholarship comprises a very small portion of articles published, there has been a steep …

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