Thursday, October 31, 2013
On November 15, the Oklahoma Law Review will host a half-day symposium on law enforcement access to third party records. This strikes me as a particularly relevant and timely topic; attorneys or other interested persons in the Central Oklahoma area during this time might consider this event to learn more on the subject.
This symposium will explore the theoretical and doctrinal affinities and clashes between tort and anti-discrimination law, while fostering dialogue between tort and anti-discrimination scholars. Symposium participants will explore whether the connections are strong enough to justify robust use of tort principles in anti- discrimination analysis and whether anti-discrimination law should be interpreted through a torts lens. They also will discuss whether tort law should selectively adopt anti-discrimination norms and analysis.
Tuesday, October 29, 2013
The Georgia Law Review will host its Fall 2013, symposium, "The Press and the Constitution 50 Years after New York Times v. Sullivan," on November 6, 2013, at the campus. The keynote speaker is Supreme Court Justice John Paul Stevens. The agenda and registration information is here.
Thursday, October 24, 2013
Writing at The Atlantic, Andrew Cohen of the Brennan Center comments on the recent New Jersey Supreme Court case State v. Miller, A-35-11 (N.J., October 2, 2013). His essay, "How Much Does a Public Defender Need to Know About a Client?" is here.
Wednesday, October 23, 2013
The Minnesota Law Review will host a one day sympsium, "The Future of Organized Labor: Labor Law in the 21st Century" on October 25 in Mondale Hall on the law school campus in Minneapolis. The keynote speakers are Craig Becker, general counsel for the AFL-CIO and G. Roger King of Jones Day in Columbus, Ohio.
According to the law review's website, the symposium is at capacity and registration is closed. Interested persons, however, may want to contact the law review for the symposium issue when it is released.
Tuesday, October 22, 2013
Wisconsin Law Review will host its fall 2013 symposium, "Safety and Sustainability in the Era of Food Systems: Reaching a More Integrated Approach," on October 30-31 at the Madison Concourse Hotel in Madison, Wisconsin.
Monday, October 21, 2013
On October 25, the Case Western Reserve Law Review will host their fall 2013 symposium, "The Supreme Court’s Treatment of Same-Sex Marriage in United States v. Windsor & Hollingsworth v. Perry: Analysis and Implications." Here is the Agenda (pdf).
Sunday, October 20, 2013
As NYPPL noted on August 29, 2013, the Washington Post reported that the Internal Revenue Service announced that it will treat same-sex marriages the same as it does heterosexual ones. The text of the Post's report is on the Internet at:
Friday, October 18, 2013
Cornell Law Review's September 2013, issue inludes a Law, Innovation and Entrepreneurship symposium with articles by Brian Broughman (Indiana) & Jesse M. Fried (Harvard), John F. Duffy (Virginia), Michael Klausner (Stanford) & Stephen Venuto, Oscar Liivak (Cornell) & Eduardo M. Peñalver (Chicago), Kate Litvak (Northwestern), D. Gordon Smith (Brigham Young) & Darian M. Ibrahim (Wisconsin), and Robert B. Thompson (Georgetown) & Donald C. Langevoort (Georgetown). The issue is Volume 98, Number 6, with the articles accessible via this current issue link.
The Summer 2013 DePaul Law Journal includes "A Tale of Two Ginsburgs: Traditional Contours in Eldred and Golan," by Elizabeth Townsend Gard (Tulane); and "Religious Tolerance in Contemporary America," by David E. Campbell (Notre Dame, Politicial Science).
The University of Illinois Law Review, Volume 103, Number 4 includes "Parent Civil Unions: Rethinking the Nature of Family" by Michele Goodwin (Minnesota) & Naomi Duke (Minnesota, Pediatrics); "The New Public Domain," Joseph P. Liu (Boston College); Disentangling Conscience and Religion; by Nathan S. Chapman (Georgia); and Transparent Predictions" by Tal Z. Zarsky (NYU).
American University Law Review's Volume 62, Number 6 includes "Inequitable Conduct in Retrospective: Understanding Unclean Hands in Patent Remedies," by T. Leigh Anennson & Gideon Mark; "Rebalancing Public and Private in the Law of Mortgage Transfer," by John Patrick Hunt, Richard Stanton, & Nancy Wallace; and "It Wasn't an Accident: The Tribal Sovereign Immunity Story," by William Wood.
The Summer 2013, Arizona State Law Review includes "The Future of Clean Elections," by David Gartner (Arizona State); "Foreclosure Mediation in Arizona," by Art Hinshaw (Arizona State) & Timothy Burr; "Arizona's Win-Win Short-Term Credit Solution: Assisting Arizona's Unbanked and Underbanked While Supportin Tribal Self-Determination," by Robert Rosette & Saba Bazzazieh; and "The Short History of Arizona Legal Ethics," by Keith Swisher (Phoenix).
The University of Baltimore Law Review's Winter 2013, issue includes the papers and addresses from Applied Feminism and Democracy: The Fifth Annual Feminist Legal Theory Conference, with a keynote address by Senator Barbara Mikulski and papers by Alizabeth Newman (CUNY), Janel A. George and Rachel A. Van Cleave (Golden Gate).
Thursday, October 17, 2013
Reversing 24-year old precedent, the Alabama Supreme Court held earlier this month that Alabama law does not authorize courts to order parents to pay postminority educational expenses. The case is Ex Parte Christopher, No. 1120386 (Ala. October 4, 2013).
In Ex Parte Bayliss, 550 So.2d 986 (Ala. 1989), the court interpreted an Alabama statute to allow a divorce court to order a noncustodial parent to pay a child's college expenses. The statute reads:
Upon granting a divorce, the court may give the custody and education of the children of the marriage to either father or mother, as may seem right and proper...
Christopher turned on the meaning of "children of the marriage" and the court's obligation to follow stare decisis. The court looked to the common law and dictionary definitions of "children," which is not a defined term in the statute, to conclude the phrase refers to minors. The court noted that interpreting the term "children" to include adults would lead to the "absurd and unjust" result of court "assign[ing] custody of the adult children of a marriage to one of the divorcing parties."
Regarding stare decisis, the court wrote:
By departing from settled precedent on the meaing of the term "children" in [the statute] and expressly overturing eight cases that conformed to that precedent, the Bayliss court indeed "unsettled" the law. The question arises whether we are bound by the principle of stare decisis to follow Bayliss, even though that opinion itself repudiated that principle. We are not so constrained.
The majority determined that the court erred in Bayliss and the court had an obligation to correct the error.
Two justices dissented in separate opinions in a lengthy decision including six opinions and 74 pages. One dissenting justice, citing the acquiescence principle, observed that in the 24 subsequent years, the Alabama legislature had not statitutorily overturned Bayliss. The justice finds this fact to be an instructive interpretive benchmark.
The states are divided on this issue with some providing no discretion for courts to order parents to support or educate nonminority children, e.g., Curtis v. Kline, 666 A.2d 265 (Pa. 1995) (no duty to support postminority children), others providing for the duty to pay educational expenses to age 21, e.g., Utah Code Ann. sec. 15-2-1, and still others giving courts authority to do so without regard to age, e.g., Donarski v. Donarski, 581 N.W.2d 130 (N.D. 1998) (postminority support is limited and based upon case circumstances).
Rebecca Haw (Vanderbilt) has posted, "Delay and its Benefits for Judicial Rulemaking Under Scientific Uncertainty" on SSRN. This is the abstract:
The Supreme Court’s increasing use of science and social science in its decision-making has a rationalizing effect on law that helps ensure that a rule will have its desired effect. But resting doctrine on the shifting sands of scientific and social scientific opinion endangers legal stability. The Court must be be responsive, but not reactive, to new scientific findings and theories, a difficult balance for lay justices to strike. This Article argues that the Court uses delay — defined as refusing to make or change a rule in light of new scientific arguments at time one, and then making or changing the rule because of the same arguments at time two — as a tool to improve decision-making amidst scientific uncertainty.
Using the Court’s antitrust jurisprudence as an example, this Article shows that delay can have a salutary effect on rule-making because it allows the Court to use academic consensus (that either develops or matures between times one and two) as a signal of scientific reliability. As a conservatizing device, delay operates in the common law tradition, but it also avoids some of the failures associated with traditional common law features like stare decisis and incrementalism. The Article concludes by contrasting Supreme Court decision-making with an area of law where delay is impractical or undesirable. In toxic tort litigation, where the goals of deterrence and compensation preclude the use of delay in the face of new scientific arguments, the law pays the price in uncertainty and error.
This article is forthcoming in the Boston College Law Review.
Participants will examine how social media has affected (and effected) legal norms about identity, group formation, governmental regulation, intimacy, secrecy, and zones of privacy. Contributions will arc in multiple directions, but the symposium’s nexus will be a focus on regulatory responses to privacy challenges posed by the Internet’s increasing centrality to our everyday lives.
Tuesday, October 15, 2013
CPLR Article 78 expresses a preference that state courts, rather than federal courts, decide a federal litigant’s “state-law statutory-construction” claim
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein
From the University of Illinois School of Law website:
In honor or Larry Ribstein’s innumerable contributions to legal scholarship and the academy, the University of Illinois College of Law will host the Larry Ribstein Memorial Symposium on October 17-18, 2013. The Symposium is organized by Professors Amitai Aviram, Ralph Brubaker, Nuno Garoupa, Heidi Hurd, Christine Hurt, and David Hyman; and will consist of a series of roundtable sessions, including paper presentations and discussion. Articles will be published in the University of Illinois Law Review in 2014.
For more information, click here.
Hat Tip: Legal Scholarship Blog.
Monday, October 14, 2013
On November 1, the Elon Law Review, located in Greensboro, North Carolina, will host its fall 2013 symposium on the implications of United States v. Windsor and Hollingsworth v. Perry, the United State Supreme Court's two major marriage equality decisions from the Fall 2012 Term. The symposium is co-sponsored by the Marriage and Family Law Research Project of BYU Law School, located in Provo, Utah.
Sunday, October 13, 2013
As readers of this blog all know, adjuncts are abused by many, if not most universities. They make up the majority of the faculty, but are the lowest paid, have no job security or benefits. It now appears that some adjuncts are fighting back by organizing.
Adjuncts generally have no say in the goverance of the university and therefore, they do not have a "Yeshiva problem." Recall, that in 1980 the Supreme Court in a case called Yeshiva Univ v. NLRB held that faculty who ran the university were managers and therefore, not protected under the National Labor Relations Act.
An interesting post on Workplace Prof Blog explores some of these issues and is available here.
Mitchell H. Rubinstein
Friday, October 11, 2013
The October 2013 California Law Review includes "Appellate Review of Social Facts in Constitutional Rights Cases," by Caitlin E. Borgmann (CUNY); "Sticky Slopes," by David Schraub; and "Intellectual Property Doctrine and Mid-Level Principles," by David H. Blankfein-Tabachnick (Penn State, visiting), with a reply by Robert P. Merges (Cal-Berkeley).
The August 2013 Hastings Law Journal includes Symposium: From Bench to Society: Law and Ethics at the Frontier of Genomic Technology. From the introductory essay by Jamie S. King (Hastings), the symposium's purpose was to, "examin[e] the vast potential implications (both good and bad) of the next wave of major advances in genetic andgenomic testing for patients, providers, their families, the practice of medicine, and society as a whole."
Volume V, Number 1, Elon Law Review has the symposium, "A Radical Notion of Democracy: Law, Race, and Albion Tourgee, 1865-1905." Contributions include an introduction by Sally Green, "Reflections on Albion Tourgee's 1896 View of the Supreme Court: A "Consistent Enemy of Personal Liberty and Equal Rights," by Michael Kent Curtis (Wake Forest); "The Past as Prologue: Albion Tourgee and the North Carolina Constitution," by Judge Robert N. Hunter, Jr.; "The National Citizen's Rights Association: Precursor of the NAACP," by Carolyn L. Karcher (Temple, Liberal Arts); "The Legitimacy of Law in Literature: The Case of Albion W. Tourgee," by Brook Thomas; and "Adaline and the Judge: An Ex-Slave Girl's Journey With Albion W. Tourgee," by Naurice Frank Woods, Jr (UNC-Greensboro, African-American Studies). Touree was a Greensboro former, lawyer, judge, and novelist best known perhaps for representing Homer Plessey before the United States Supreme Court in Plessey v. Ferguson, 163 U.S. 537 (1896). See also here and here.
Volume 101, Number 4, Kentucky Law Review includes, "Stepping Into the Gap: Violent Crime Victims and the Right to Closure; and a Discursive Shift Away From the Zero Sum Resolutions," by Blanche Bong Cook; "White Collar Overcriminalization: Deterrence, Plea Bargaining, and the Loss of Innocence," by Lucian E. Dervan (Southern Illinois); "He Said, She Said, Let's Hear What the Data Say: Sexual Harassment in the Media, Courts, EEOC and Social Science," by Joni Hersch and Beverly Moran; and "Justice Holmes's Bad Man and the Depleted Purposes of Punitive Damages," by Jill Wieber Lens.
The Spring 2013 New England Law Review has its Symposium: Crisis in the Judiciary. There are links to the articles at the link. This symposium's primary focus is upon the challenges the judiciary faces by restrained budgets at the federal and state levels.
The August 2013 UCLA Law Revew has Symposium: Twenty-First Century Litigation: Pathologies and Possibilities.
Volume XVIII, Number 3, Fordham Journal of Corporate and Financal Law, includes articles by Dr. Markus Roth, Hilary J. Allen (Loyola NO), Benjamin D. Landry, Paul Rose (Ohio State) and Justin Schwartz.
Thursday, October 10, 2013
Is folk music even possible anymore?
By “folk music,” I refer not to the diluted meaning of the term, where anyone with an acoustic guitar or a fiddle can be considered a folk musician. I’m talking about true folk music, songs that are created by and for a small, self-contained community, where musicians are performing for friends and neighbors in a style they all grew up with. These folk musicians don’t have to bring out the universal—or generic—elements in their songs because they’re not traveling to play for strangers.
A singer/songwriter who travels the continent with her banjo and Martin guitar is not a folk musician in this sense; she’s a pop musician with different instrumentation.
Himes' article is a good read on how mass media and the consumer culture impacts indiginous and organic art forms. He also warns that the "diminishing possibility of folk music" impoverishes popular culture. Himes thus defends popular artists that "play old styles the same way previous generations did," arguing that if those artists did not, "what [wells of musical tradition] would we drink from?" Himes writes, "When the teenagers in every Appalachian gas station and every Mississippi convenience store are wearing ear buds, can there be a region isolated enough to evolve its own mutated music?" Can there, indeed.
The Fifth Circuit Court of Appeals held last week an injured seaman may recover punitive damages for the employer's willful and wanton breach of the maritime duty to provide a seaworthy vessel. The case is McBride v. Estis Well Service, L.L.C., No. 12-30714 (5th Cir., October 2, 2013).
The court's central legal principal, citing Atl. Sounding Co. v. Townsend, 557 U.S. 404 (2009), is "if a general maritime law cause of action and remedy were established before the passage of the Jones Act, and if the Jones Act did not address that cause of action or remedy, then that remedy remains available under the cause of action unless and until Congress intercedes." In McBride, the court found, and Estis did not dispute that both the cause of action (unseaworthiness) and the remedy (punitive damages) were established before the Jones Act became law. The court determined that the Jones Act does not address unseaworthiness or limits the remedies for that claim. The court concluded that punitive damages are available to seamen asserting and unseaworthiness claim where willful and wanton conduct is proven.