Archive for March, 2014

March 31, 2014

Warner to Serve as Delegate of the International Insolvency Institute to the United Nations Commission on International Trade Law

Professor Ray Warner will serve as a delegate of the International Insolvency Institute to the United Nations Commission on International Trade Law (UNCITRAL) Working Group VI during its meeting at the UN this week.  Working Group VI is preparing a model law of secured transactions as part of UNCITRAL’s work to harmonize and unify the law of international trade.  Among other courses, Professor Warner teaches Secured Transactions and International Business Transactions at the law school.


March 29, 2014

Barrett Publishes TIME Online Essay on Lawrence E. Walsh (1912-2014)

Professor John Q. Barrett has published an essay on TIME online, “Lawrence Walsh, Iran-Contra Counsel, Played It Straight.”  From 1988-1993, Professor Barrett worked for Judge Walsh as an associate counsel on the Iran/Contra investigations and prosecutions.

John Q. Barrett

John Q. Barrett

March 27, 2014

Krishnakumar on Statutory Interpretation Questions from the Hobby Lobby Argument

Professor Anita Krishnakumar responded to Will Baude’s Washington Post piece on whether legislation passed by unanimous vote should be invalidated or narrowly construed in a post on Rick Hasen’s electionlawblog.   The issue arose out of the Hobby Lobby case that was argued before the Supreme Court on Tuesday.  Professor Krisknakumar notes,  “Different legislators vote for (or against) a statute for many different reasons, and their final vote tells us nothing about those reasons.”  See the full post here.




March 26, 2014

Subotnik to Present Papers at Pace Law School and Drake Law School

Professor Eva Subotnik will be presenting two papers this week.  Today, she will be presenting her paper Intent in Fair Use at the Pace Law School Faculty Colloquium.  On Friday, she will be presenting a new work-in-progress, Fiduciary Duties and the Stewardship of Intellectual Property, at the 2014 IP Scholars Roundtable at Drake Law School.  Abstracts for the two articles follow:
Intent in Fair Use
This Article explores the role of intent in the context of fair use.  Specifically, it examines whether a claim of fair use of a copyrighted work should be assessed solely from an “objectively reasonable” vantage point or should, additionally, allow for evidence from the subjective perspective of the user.  Courts and scholars have largely sided with the former view but have failed to explain fully why this should be the case or whether there might be countervailing benefits to considering evidence of subjective intent.  Crucially overlooked is the possibility that taking the user’s perspective into account would promote copyright’s utilitarian values by stimulating socially beneficial uses that would not otherwise occur.  In addition, formal recognition of the role intent plays in fair use would bring needed transparency to judicial practices in this area.  This Article first develops a framework for evaluating the degree to which courts, parties, and scholars have deemed conscious compliance with fair use principles relevant to the fair use analysis.  It then argues for a limited role for evidence of subjective intent, proposing criteria for when such evidence should, and should not, be weighed in the fair use calculus.
Fiduciary Duties and the Stewardship of Intellectual Property
Intellectual property laws are primarily justified on the grounds of spurring authorship and inventorship.  But, particularly in the case of copyright law, with its lengthy term of protection as well as the possibility of termination rights, works of authorship that are in fact produced will be tended to and exploited by others long after the creator’s death but before they enter the public domain.  This Article will explore several threads that are raised by the prospect of downstream stewardship of IP: what is the right legal prism through which to understand the nature of later-in-time decision-making that occurs with respect to the exploitation of a work?  For example, should these stewards in some sense be conceived of as authors themselves by virtue of the control they exert over these works?  Does their status depend on whether they are exercising rights in an individual role (say, as a family member) or in a fiduciary capacity (say, as a trustee)?  This Article will examine the nature of downstream control exerted in the context of copyright law, making applicable comparisons to the laws governing patents and rights of publicity, in an attempt to offer a coherent theory of the nature and legal consequences of downstream control of intellectual property. 
Eva Subotnik

Eva Subotnik

March 20, 2014

Sovern Co-Authors Op-Ed on The Hill and is Quoted in Fox Business News Story

Professor Jeff Sovern co-authored an op-ed, Consumer Contracts Should Not Be Secrets, for The Hill’s Congress Blog of the Capitol Hill newspaper with Theresa Amato, executive director of Citizen Works.  The op-ed describes the authors’ quest to determine credit card terms and calls for more transparency of credit card terms.  Sovern and Amato explain:

[W]hen the Illinois legislature considered a bill in 2012 that would require standard form contract terms to be available to consumers on the web, it ran into stiff opposition and the bill died.  The Illinois Retail Merchants Association argued that posting contracts would enable competitors to see them.  Of course, those same competitors should be able to obtain the contracts the way any consumer would now—by agreeing to them.

While many consumers may have little interest in reading contract terms, consumers who do want to know what they are agreeing to – and in many cases the rights they are giving away to their potential detriment — should have the ability to find out before accepting the terms.  Consumer contracts should not be secrets.  Nor should it take hours, much less lawyers, to find them. It should require a mouse click, not a quest.

Professor Sovern was also quoted in a Fox Business News article, Medical Card Pays for Endorsements.  The article notes that the CareCredit medical card, which pays for most endorsements of  its credit card and has been fined by regulators for deceptive marketing, is supported by over 100 professional health care groups, including the American Dental Association.  Professor Sovern commented that “[the paid endorsements are] troubling because medical professionals tend to build up trust.  Patients might trust their provider to steer them into the best deal, without knowing that a paid endorsement influenced the provider’s choice.”

jeff sovern

March 17, 2014

Salomone at the Council for European Studies’ International Conference of Europeanists

On Friday, March 14th, Rosemary Salomone, the Kenneth Wang Professor of Law, served as discussant on two panels at the Council for European Studies’ International Conference of Europeanists in Washington, D.C.  The first was a panel of paper presentations on the subject of “Educating Migrants: Money, Institutions, and Impact.”  The second was a discussion on “immigrants and emigrants” from Sabina Donati’s book, “A Political History of National Citizenship and Identity in Italy: 1861-1950” (Stanford University Press, 2013).

Rosemary Salomone

Rosemary Salomone

March 15, 2014

Wade on Public Distrust of Big Business

Dean Harold F. McNiece Professor of Law Cheryl L. Wade posted ‘Today’s Headlines: The Public Does Not Trust Big Business” on the Corporate Justice Blog on March 14th, 2014.  Professor Wade has been a regular contributor to the blog since 2010. In this most recent piece, she writes

More than ten years after the massive fraud that brought down companies like Enron, WorldCom, Adelphia, and Tyco, badly governed and socially irresponsible companies continue to harm workers, consumers and communities.  This is true even after the passage of the Sarbanes-Oxley Act of 2002, and the 2010 Dodd-Frank Act.  In Enron’s aftermath, there was a great deal of discussion about whether the company was an outlier.  Observers tossed around the famously overused bad-apples metaphor.  Enron, WorldCom, Adelphia, Tyco, etc., were just a few bad apples, the argument went.  Yet, in 2014, we continue to grapple with what seems to be inadequate governance and deplorable social irresponsibility that too frequently occurs.


March 11, 2014

Baynes Presents on Teaching Justice and Note-Writing Skills to Law Students

Professor Leonard M. Baynes, Director of The Ronald H. Brown Center for Civil Rights and Economic Development, will present at a faculty colloquium at Touro Law School tomorrow.  The title of his talk is “Critical Pedagogy: Teaching Justice to Students on Law Journals While Teaching How to Write a Note.”

Leonard Baynes

Leonard Baynes

March 11, 2014

Lazaro Panelist on Panel Selection and Discovery Issues at Securities Arbitration and Mediation Program

Christine Lazaro, Director of the Law School’s Securities Arbitration Clinic, presented at a NYS Bar CLE program today, entitled, Securities Arbitration and Mediation 2014: Telling Your Story, on the panel entitled “Panel Selection and Discovery Issues”.  She also submitted written materials for the program–two articles that she co-wrote with Paul Radvany and updated from the last program, “The Arbitrator Selection Process” & “Keys to Successful Motions to Compel”, and another article she co-wrote with Brent Burns for this year, “Special Considerations in Simplified Arbitration Cases”.


March 10, 2014

Kirgis Posts Article on Dispute Resolution in Ghana

Professor Paul Kirgis has a new article on SSRN, entitled, Status and Contract in an Emerging Democracy: The Evolution of Dispute Resolution in Ghana.  The article has been accepted for publication in the Cardozo Journal of Conflict Resolution.  Here’s the abstract:

Ghana is one of the developing world’s success stories. The first sub-Saharan colony to gain independence, it is a stable democracy experiencing sustained economic growth. Yet as Ghana reaches for the material gains of participation in modern commercial life, its dual legal systems—the system of customary adjudication by traditional authorities and the formal court system—have come under increasing pressure. New legal developments have truncated the authority of traditional decision-makers, while an overburdened court system lacks the resources to fill the resulting adjudicative gaps. To solve the problem, Ghana is now experimenting with a system of quasi-public dispute resolution, including contractual arbitration and court-connected mediation. If successful, this experiment could provide a model for other emerging democracies seeking to promote greater access to justice while integrating traditional and national adjudicative structures.

Paul Kirgis

Paul Kirgis

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