Albany Law Review

A student-run journal that publishes critical and analytical articles written by judges, lawyers, and law school professors, as well as notes and comments on legal topics written by Law Review members and other Albany Law School students. Academic and pro

Articles from Vol. 76, No. 1, Fall

An Insider's Perspective: Defense of the Pharmaceutical Industry's Marketing Practices
I. INTRODUCTION A sharply dressed, attractive female walks into the waiting room of an office. All eyes turn and look at this young lady, who looks quite out of place amongst the throngs of elderly, young, and sick patients waiting long periods...
Are Franchisees Well-Informed? Revisiting the Debate over Franchise Relationship Laws
Abstract The most vital debate in the field of franchise contract law over the last few decades has focused on the following issue: Whether the law should protect franchisees against franchisor opportunism. Franchisor advocates suggest that franchisee...
Are There First Amendment "Vacuums?": The Case of the Free Speech Challenge to Tobacco Package Labeling Requirements
I. MUST EVERY APPARENT FREE SPEECH CASE HAVE A MEANINGFUL ANSWER UNDER THE FREE SPEECH CLAUSE? The litigation (1) challenging the recently adopted federal statute (2) and FDA rules (3) seeking to regulate tobacco package labeling focuses on freedom...
Book Review: Business and Commercial Litigation in Federal Courts, Third Edition (Robert L. Haig, Editor-in-Chief)
Federal court practice, particularly commercial and intellectual property litigation, has inauspiciously acquired an aura of mystique causing too many practitioners to tread only if they dare. Over the years, the federal bench and bar have come to...
Categories, Tiers of Review, and the Roiling Sea of Free Speech Doctrine and Principle: A Methodological Critique of United States V. Alvarez
I. INTRODUCTION In United States v. Alvarez, (1) the Supreme Court struck down the Stolen Valor Act of 2005, (2) in a splintered decision with no five-Justice majority. (3) The failure of five Justices to agree on a single rationale, rather than...
Catholic Values, Human Dignity, and the Moral Law in the United States Supreme Court: Justice Anthony Kennedy's Approach to the Constitution
I. INTRODUCTION The jurisprudence of Justice Anthony Kennedy has baffled legal scholars and political scientists from the beginning of his membership on the United States Supreme Court. Originally hailed as "a true conservative" by the President...
Criminal Conspiracy as Free Expression
I. Introduction There are a variety of expressive forms or subjects that have never been thought to implicate the First Amendment's guarantee of free expression. (1) For example, no serious scholar has suggested that speech involved in the creation...
Dean Penelope Andrews: Advocacy, Leadership, Vision
A law school can't provide everything, but it can provide the right tools for its students. Albany Law School has the advantage of independence and flexibility. As the legal profession and legal education confront another wave of change, we can move...
Debate on Citizens United V. Federal Election Commission
MR. RONALD COLLINS: One of the joys of getting older is the experiencing of the gracious words of the young, however exaggerated. That said, Benjamin, I very sincerely appreciate those kind words, and I only wish my mother were here to hear them....
Encouraging Congress to Encourage Speech: Reflections on United States V. Alvarez
Like many Supreme Court decisions, United States v. Alvarez (1) answered many questions. Can the government proscribe false statements solely because they are false? (No.) What must the government establish before regulating or proscribing speech?...
Exceptional Freedom - the Roberts Court, the First Amendment, and the New Absolutism
This chart, incomplete as it is, (223) does tell us something important, namely, that while Justice Kennedy, Chief Justice Roberts, and Justices Scalia and Sotomayor are most likely to lean towards a kind of near-absolutism, Justices Breyer and Alito...
Hate Speech, Fighting Words, and beyond - Why American Law Is Unique
During the waning days of the turbulent presidential campaign of 2012, the issue of free speech was bound to emerge. President Barack Obama chose this moment to declare to the United Nations General Assembly his abiding commitment to the uniquely American...
Health Reform and the Supreme Court: The ACA Survives the Battle of the Broccoli and Fortifies Itself against Future Fatal Attack
The single most important legal development in health law in 2012 was the Supreme Court's June 28 decision upholding the Patient Protection and Affordable Care Act ("ACA") against a surprisingly strong constitutional challenge. (1) The decision in...
High Volume Hydraulic Fracturing and Home Rule: The Struggle for Control
I. INTRODUCTION At the core of American jurisprudence is its system of checks and balances. Each of the three branches of government--executive, legislative, and judicial--is specifically designed to provide oversight and review of each other; the...
Media Diversity and Online Advertising
I. INTRODUCTION II. BACKGROUND A. Freedom of Press, Media Diversity, and Advertising B. Privacy in Many Forms III. ENTER THE INTERNET A. The Internet Disrupts Press, Increases Diversity B. The Internet Transforms Privacy IV. MEDIA...
Missing the Target: Where the Geneva Conventions Fall Short in the Context of Targeted Killing
I. Introduction The Geneva Conventions are the core body of international law that regulates armed conflict. (1) Since 1864, when the First Geneva Convention was codified, the Conventions have been updated several times. (2) War is waged much differently...
New York State's 2007 Workers' Compensation Reform: Success or Failure?
I. Introduction In comparison to other forms of liability, the notion that an employer is responsible for compensating an employee for an injury occurring in the course and scope of his or her employment is a relatively recent development. (1) Germany...
Panel Discussion on Recent U.S. Supreme Court Free Speech Decisions & the Implications of These Cases for American Society
MR. BENJAMIN POMERANCE: Good afternoon, everyone. Welcome back to those of you who are returning from the morning session, returning from lunch. And welcome for the first time to those of you who are joining us for the first time today. We are very...
Power of Appointment Legislation in New York: It's Time for Modernization
VI. EXERCISE A. Requisites for Exercise of a Power of Appointment 1. Current New York Law New York has several provisions regarding the exercise of the power of appointment. They include: 10-6.1 Exercise of a power of appointment; manifestation...
Punting in the First Amendment's Red Zone: The Supreme Court's "Indecision" on the FCC's Indecency Regulations Leaves Broadcasters Still Searching for Answers
I. INTRODUCTION Just one week before rendering its controversial landmark decision on the Patient Protection and Affordable Care Act (1)--arguably the most anticipated ruling of the October 2011 Term--the U.S. Supreme Court sidestepped the longstanding...
The Butt Stops Here: The Tobacco Control Act's Anti-Smoking Regulations Run Afoul of the First Amendment
I. INTRODUCTION II. A CHRONICLE OF TOBACCO LEGISLATION: THE SLIPPERY SLOPE OF LEGISLATION REQUIRING HEALTH DISCLAIMERS ON CIGARETTE PACKAGING III. THE TOBACCO CONTROL ACT'S GRAPHIC IMAGES MANDATE AND THE FIRST AMENDMENT DIVIDE A. Discount Tobacco...
The Democratic Mission of the University
The university is a self-governing institution dedicated to the discovery and dissemination of knowledge. (1) As a historical matter, universities were not borne of the democratic impulse and many of their grandest achievements are wholly unrelated...
The Opinions by the Attorney General and the Office of Legal Counsel: How and Why They Are Significant
Abstract Although much research has been done on the opinions issued by the Office of Legal Counsel (OLC) regarding the power of President Bush to order enhanced interrogations of captured enemy combatants, and the power of the President, as commander...
The Supreme Court and Political Speech in the 21st Century: The Implications of Holder V. Humanitarian Law Project
I. Introduction The repression of American political dissent in the 1950s derived much of its force from the concept of guilt by association. (1) Even the Supreme Court of that era, which until the late 1950s did virtually nothing to rein in the...
What Are We Saying? Violence, Vulgarity, Lies ... and the Importance of 21st Century Free Speech
ALBANY LAW SCHOOL Dean Alexander Moot Courtroom Thursday, September 27, 2012, 11:00am WELCOME & OPENING REMARKS Good morning. Welcome to the Albany Law Review's annual fall symposium. I am Benjamin Pomerance, the Law Review's Executive Editor...