November 18, 2013
Professor Jeremy Sheff‘s Stanford Law Review article, Marks, Morals, and Markets, has been identified by Professor Laura Heymann as one of the best works of recent scholarship relating to Intellectual Property, in a review published today in Jotwell: The Journal of Things We Like (Lots). Describing Professor Sheff’s article as “thoughtful and sophisticated”, the review concludes,
Sheff does not purport to set forth an all-encompassing theory, but his proposal is highly compatible with the way we now talk about brands. We are ever more in a world in which consumers engage with many brands as personas. Brands are trusted confidants and comforting companions. They find allegiances with different social groups at different times in their development; they uplift us and betray us. These brands are not simply a way of finding goods in the marketplace; they are also a way of announcing or defining one’s identity, creating relationships with others, signaling wealth, or engaging in any one of a number of expressive functions. Companies respond in kind, by creating advertising or affinity groups that foster this type of engagement, and by aggressively using trademark law as a kind of corporate defamation law, pushing back at uses that offend their view of their brands. If these are our relationships with brands today, then perhaps we should be characterizing their relationships with us as ones of promise, representations, and trust. The difficulty will then be in determining which promises we truly expect brands to keep.
November 13, 2013
Tinnelly Professor of Law Lawrence Joseph‘s poem “In a Post-Bubble Credit-Collapse Environment” appears in the November 18, 2013 issue of The New Yorker. The audio version of the poem is also on The New Yorker‘s Digital Edition.
On Saturday, November 10, Professor Joseph was a featured reader and participant in the day long Festival Within: Best of the Best of American Poetry, at the Walt Whitman Birthplace in Huntington, Long Island. On Friday November 1, he was a featured speaker at A Centennial Conference: Robert Hayden at the University of Michigan, which celebrated the one-hundredth anniversary of the birth of the Robert Hayden, a major American poet and the first African-American Poet Laureate of the United States.
November 11, 2013
Professor Jeff Sovern was quoted in an article on Law360, CFPB Aims To Fill Gaps With Coming Debt Collection Rules [link at http://www.law360.com/articles/486713/cfpb-aims-to-fill-gaps-with-coming-debt-collection-rules]. After noting that the existing federal statute, the Fair Debt Collection Practices Act, antedated the creation of text messages, email and social media, the article notes:
The statute does not take any of these modes of communication into account, and that has led to confusion about how it applies to them — as well as confusion’s sometime byproduct, litigation, said St. John’s University School of Law professor Jeff Sovern.
October 18, 2013
Professor Vincent C. Alexander has just published an article in the N.Y.U. Journal of Legislation and Public Policy entitled, The CPLR at Fifty: A View from Academia. The article is based on remarks Professor Alexander delivered at NYU’s Dwight D. Opperman Institute of Judicial Administration on March 12, 2013, as part of a symposium on the fiftieth anniversary of the adoption of New York’s Civil Practice Law and Rules (“CPLR”).
The CPLR has its roots in New York’s groundbreaking Field Code of 1848, but it has evolved into a multifaceted code that carries forward a few too many eccentric and arguably outmoded rules of procedure. The symposium participants, whose remarks are included in the publication, include U.S. Senior District Judge Jack B. Weinstein, who was one of the principal authors of the CPLR, former New York Court of Appeals Chief Judge Judith S. Kaye, NYU Law Professors Oscar G. Chase and William E. Nelson, and practitioner/author David L. Ferstendig.
The symposium reflects upon the creation of the CPLR, its strengths and weaknesses, and its place in the history of procedural reform. Professor Alexander provides an academic perspective, focusing on the teaching, scholarship and law reform opportunities that the CPLR provides. He argues that the New York courts, acting through the Chief Administrative Judge, Judicial Conference and CPLR Advisory Committee, rather than the Legislature alone, should be given the authority to amend the CPLR. Nevertheless, his article concludes:
[T]he CPLR has served the bench and bar of New York quite effectively for the past fifty years. It carries forward New York traditions that apparently are near and dear to the hearts of New York judges and attorneys, and there is value in that. It is a testament to the CPLR’s durability that, unlike the pre-1963 era of New York history, there have been no widespread calls for the overhaul of the New York procedure code. The CPLR may have some quirks, but on the whole, it is a coherent code of procedure . . . . The CPLR gives New York litigants a fair and reasonable means of having their disputes resolved on the merits. Such is the purpose of procedure.
October 9, 2013
Professor Francis J. Facciolo published an article, New Wave of Cases Involving Investment Adviser Fees, in the New York Law Journal. In the article, Professor Facciolo explained:
Shareholders challenging fees paid to the advisers of their mutual funds in civil lawsuits under §36(b) of the Investment Company Act face steep substantive and procedural challenges, but a recent decision from the federal district of New Jersey holds promise for private plaintiffs in this area. The central allegation in Kasilag v. Hartford Investment Financial Services1 was that the defendant investment adviser retained sub-advisers to perform substantially all of the investment management services for the defendant’s client mutual funds, and then charged its fund clients much higher investment management fees than what those services actually cost defendant. Based on these allegations, the federal district court denied the investment manager’s Rule 12(b)(6) motion to dismiss and allowed the shareholders’ lawsuits to proceed.
September 26, 2013
This month, Ashgate releases Volume III of Religion in the Public Space, part of its Library of Essays on Law and Religion series. The volume is edited by Silvio Ferrari (Milan) and Rinaldo Cristofori (Milan), and contains Professor Mark L. Movsesian’s essay, Crosses and Culture, on religious displays in the US and Europe. Professor Movsesian is in good company; the book also includes essays by, among others, Jürgen Habermas, Charles Taylor, and Mary Ann Glendon.
September 13, 2013
Recently we reported that Professor Rosemary Salmone’s essay, Should the ‘Veil’ Be Banned in Higher Education?, appeared in the University World News Global Edition. Now the Chronicle of Higher Education has reprinted the piece under the title Should France Ban Islamic Veils in Public Universities?.
August 16, 2013
Professor Elayne E. Greenberg has published Confidentiality: The Illusion and the Reality—Affirmative Steps for Lawyers and Mediators to Help Safeguard Their Mediation Communications, NYSBA, New York Dispute Resolution Lawyer, Spring 2013, Vol. 6, No. 1. Here is an excerpt:
Experience teaches us that mediation communications have a greater likelihood of remaining confidential if the ensuing mediation satisfies the mediation and confidentiality expectations of all the participants. A strengthened mediation structure that promotes party self-determination and a well-thought-out confidentiality agreement are essential steps that contribute to safeguarding those expectations and withstanding future legal challenges to mediation.
August 9, 2013
Professor Patricia Grande Montana has written Peer Review Across the Curriculum, 91 Or. L. Rev. 783 (2013). Here’s the abstract:
This paper examines the Carnegie and Best Practices Reports’ recommendation that law schools devote more attention to helping students develop the professional skills they will need in practice and proposes peer review as an attractive option.
Peer review, the process in which law students critique each other’s written work, is a powerful tool to teach students the knowledge, skills, and values essential to becoming a competent and professional lawyer. Through peer review, students improve their legal writing and analysis, enhance their editing skills, learn to cooperate with others, manage and evaluate constructive criticism, and develop a deeper appreciation of audience, among other things. For professors, it is an opportunity to assess their students’ performance and provide additional, useful feedback on their understanding of the legal doctrine and competence in legal analysis and writing.
As writing and professional skills instruction throughout the law school curriculum, not just in writing and skills courses, becomes more prevalent, law professors will need to find new and innovative ways to help their students achieve practical proficiency in the skills needed for legal practice. This paper explores peer review as one effective way.
August 2, 2013
Professor Vincent DiLorenzo has written Barriers to Market Discipline: A Comparative Study of Regulatory Reforms,” 29 Arizona
Journal of International and Comparative Law 517-556. Here’s the abstract:
This article explores mortgage market reforms in the U.S. and U.K. in response to the recent mortgage market crisis. First, the article explores the extent to which regulatory bodies have recognized behavioral barriers to market discipline on the part of both consumers and industry actors. Second the article examines the varied response in the U.S. and U.K. to both market limitations and behavioral limitations to industry self-discipline that led to unsafe lending practices in the period 2003 through 2007. The greater emphasis on rules-based regulation in the U.S. after 2008 is compared with the continued reliance primarily on principles-based regulation in the U.K. This difference, however, is not what will determine industry commitment to legal compliance. Rather, the main finding is that future compliance with safety and soundness requirements will depend on a regulatory policy and enforcement record that will alter the industry’s past conclusion that evasion, or even noncompliance, with legal requirements is a reasonable business decision based on cost-benefit evaluations.