Month: May 2010

Volume 83, Number 4 (May 2010)

Volume 83, Number 4 (May 2010)

“These Scales Tell Us That There Is Something Wrong with You”: How Fat Students Are Systematically Denied Access to Fair and Equal Education and What We Can Do to Stop This – Note by Michelle Stover

From Volume 83, Number 4 (May 2010)
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The Supreme Court’s decision to bar the foreign Fat students are denied access to fair and equal education due to widespread antifat discrimination. Unfortunately, there are currently no statutes that provide adequate recourse for fat students. Thus, this Note advocates the drafting of new legislation specifically aimed at eliminating discrimination against students on the basis of fatness and recommends measures that can be adopted by school districts to combat discrimination against fat students.

 

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Discovery for Foreign Proceedings after Intel v. Advanced Micro Devices A Critical Analysis of 28 U.S.C. 1782 Jurisprudence – Note by Marat A. Massen

From Volume 83, Number 4 (May 2010)
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The Supreme Court’s decision to bar the foreign discoverability requirement in Intel Corp. v. Advanced Micro Devices, Inc. has led district courts after Intel to render troubling and inconsistent decisions on whether to grant requests for discovery for use in foreign tribunals under 28 U.S.C. § 1782(a). Because Intel gave district courts no guidelines for evaluating foreign tribunals’ receptivity to discovery acquired in the United States, § 1782(a)’s goals of fostering international judicial cooperation and providing efficient resolutions offoreign cases have gone unfulfilled.

 

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Technological Fair Use – Article by Edward Lee

From Volume 83, Number 4 (May 2010)
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This Article proposes a framework tailoring the fair use doctrine specifically for technology cases. At the inception of the twenty-first century, information technologies have become increasingly central to the U.S. economy. Not surprisingly, complex copyright cases involving speech technologies, such as DVRs, MP3 devices, Google Book Search, and YouTube, have also increased. Yet existing copyright law, developed long before digital technologies, is ill prepared to handle the complexities that these technology cases pose. The key question often turns not on prima facie infringement, but on the defense of fair use, which courts have too often relegated to extremely fact-specific decisions. The downside to this ad hoc adjudication of fair use is that it leads to an uncertainty over what is permissible that may impede innovation in speech technologies. This Article addresses this ongoing problem by proposing that courts recognize a specific type of fair use—technological fair use—and tailor the four fair use factors accordingly. Technological fair use is supported not only by a synthesis of existing case law and economic theory, but also, more importantly, by the constitutional underpinnings of the First Amendment and the Copyright and Patent Clause.

 

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Collateral Conflict: Employer Claims of RICO Extortion Against Union Comprehensive Campaigns – Article by James J. Brudney

From Volume 83, Number 4 (May 2010)
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Over the past twenty-five years, unions have turned increasingly to strategies outside the traditional framework of the National Labor Relations Act (“NLRA”). Frustrated by an ineffective NLRA legal regime and the demise of the economic strike, organized labor has pursued coordinated approaches in order to generate extended economic pressure on private employers who seek to avoid recognizing unions or to resist bargaining collective agreements. Coordinated campaign tactics include publicity efforts aimed at attracting media attention and consumer interest; regulatory reviews initiated to focus on a company’s possible health, safety, environmental, or zoning violations; and investigations of a company’s financial status through use of pension funds or other shareholder resources. Unions relying on these comprehensive campaign or corporate campaign strategies have enjoyed some success which in turn has contributed to a modest rise in private sector union density, the first such increase for decades. 

Management responses to comprehensive campaigns often involve filing lawsuits against unions and workers. Employer civil actions may invoke state defamation law, federal labor law prohibiting secondary boycotts, or federal antitrust law. But the most high-profile and dramatic form of employer retaliation in court is lawsuits alleging a pattern of unlawfully extortionate activities under the Racketeer Influenced and Corrupt Organizations Act (“RICO”).

 

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Using Numerical Statutory Interpretation to Improve Conflict of Interest Waiver Procedures at the FDA – Note by Saurabh Anand

From Volume 83, Number 4 (May 2010)
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Conflicts of interest frequently arise when industry experts advise federal agencies. Critics claim agencies’ decisions to waive conflicts of interest often lack consistency and clarity, but they have yet to propose a comprehensive system to improve the conflict of interest waiver process.

 

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