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. 70, No. 4, Fall

Amending the Copyright Act for Libraries and Society: The Section 108 Study Group
Libraries house copyrighted books and journals in their collections, provide intellectual access to them through catalogs and indexes, and make them available to users. Many researchers and readers are able to use library copies of the works over time,...
Congressional Authority over Intellectual Property Policy after Eldred V. Ashcroft: Deference, Empty Limitations, and Risks to the Public Domain
I. INTRODUCTION The United States Supreme Court upheld the Copyright Term Extension Act of 19981 (CTEA) in Eldred v. Ashcroft. (2) The Court ruled that Congress had not exceeded its authority under the Copyright Clause (3) by extending the copyright...
Dissonant Harmonization: Limitations on "Cash N' Carry" Creativity
"Who is that?" "Nobody. The author." (1) ABSTRACT Even though creativity lies at the heart of present copyright laws, the impulse to create--or more precisely what triggers such creativity--remains largely unexamined. (2) Coinciding with the...
Distributed Generation: A Step Forward in United States Energy Policy
I. INTRODUCTION On August 14, 2003, the East Coast of the United States and parts of Canada experienced one of the largest blackouts in history. (1) The blackout originated in a small area in Ohio, yet ultimately affected over fifty million people...
Intellectual Property Valuation: A Finance Perspective
I. INTRODUCTION: FINANCE, FINANCIAL MODELING, AND THE LAW The close relationship between law and economics has been recognized for more than four decades. Starting with the work of the British economist and 1991 Nobel prize winner Ronald Harry Coase,...
Interdisciplinary Conference on the Impact of Technological Change on the Creation, Dissemination, and Protection of Intellectual Property
OCTOBER 26-28, 2006 CONFERENCE SPEAKERS Jonathan Band, Jonathan Band, PLLC, Washington, DC Panla Baron, Prof., Victoria University, Wellington, New Zealand Ann Barrow, Prof., University of South Carolina School of Law Jon Baumgarten,...
Living without Copyright in a Digital World
The title of this paper, Living without Copyright in a Digital World, could be understood in two ways: first, as a functionally accurate description of our current condition, and, second, as a normative statement about where we ought to be going. I...
Morality-Based Legislation Is Alive and Well: Why the Law Permits Consent to Body Modification but Not Sadomasochistic Sex
I. INTRODUCTION In 1993 the U.K. House of Lords held that consent of the participants was no defense to charges of assault arising from consensual sadomasochistic (SM) sex, even though the participants sustained no serious, permanent injuries and...
One Nation, Indivisible: American "Indian Country" in the Wake of City of Sherrill V. Oneida Indian Nation
I. INTRODUCTION In an age where patriotism and national unity are stressed in this proud "melting pot," it can be difficult to remember that the United States was once entirely subject to the dominion of native tribes. (1) Since the time when manifest...
Reflections on Free Exercise: Revisiting Rourke V. Department of Correctional Services
To offer a critical perspective on federal free exercise law, (1) I would like to focus in this talk on a case that I argued in the early 1990s only a few miles from the Albany Law School. At the time I was a law professor at Cornell, and I was handling...
Religious Free Exercise and Anti-Discrimination Law
I will speak about the conflict between anti-discrimination statutes and religious free exercise. I want to talk about these issues specifically in light of two areas of contemporary religious free exercise litigation and controversy. So much of the...
Religious Liberty as a Positive and Negative Right
I. INTRODUCTION In several articles Professor Fred Gedicks has argued that the rules governing the religious liberty interests vary depending on the application and functionality of that interest. For example, Gedicks writes in his "Two-Track Theory"...
Remembrances of the Honorable Harold R. Tyler, Jr
Judge Harold R. Tyler, Jr. was born in Utica, New York in 1921 and grew up in nearby Waterville. It was on the basketball court playing for Phillips Exeter Academy that Judge Tyler earned the nickname "Ace," which stuck with him for life. After graduating...
RLUIPA and Congressional Intent
Today I want to talk about the Religious Land Use and Institutionalized Persons Protection Act, otherwise known by the acronym RLUIPA. Specifically, I want to talk about the portions of RLUIPA that deal with land use more than the institutionalized...
Scale-Free Law: Network Science and Copyright
I. INTRODUCTION One common feature of literature dealing with new technologies, and particularly those authors dealing with any legal aspect of cyberspace, is to over-emphasize the importance of information and communication technologies to our...
Selections from the 2007 Albany Law School Interdisciplinary Conference on the Impact of Technological Change on the Creation, Dissemination, and Protection of Intellectual Property
In 2000, the National Research Council published THE DIGITAL DILEMMA, (1) a report on the complex challenge to established norms created by the radical growth in information technology. As the report notes, "many of the intellectual property rules...
The Constitutional Requirement of Sensitivity to Religion
I don't know whether the Smith opinion can stand much more whipping today. It's received quite a bit. Unfortunately from my point of view, it's not a dead horse. It lives, breathes, and continues to do harm. So I think it deserves more attention in...
The Fall of Free Exercise: From 'No Law' to Compelling Interests to Any Law Otherwise Valid
The First Amendment explicitly allows "no law ... prohibiting the free exercise" of religion. (1) Currently, however, Supreme Court doctrine permits any law that operates to prohibit the free exercise of religion, unless that law happens to be invalid...
The Moebius Strip: Private Right and Public Use in Copyright Law
INTRODUCTION The balance between the private rights of copyright owners and public use of copyright material is often said to lie at the heart of copyright law. (1) Recently, the nature of this balance was raised in Australia by an issues paper--Fair...
The "Ordered Liberty" of Substantive Due Process and the Future of Constitutional Law as a Rhetorical Art: Variations on a Theme from Justice Cardozo in the United States Supreme Court
I. INTRODUCTION Few judges are as revered in American legal history as Benjamin Nathan Cardozo (1) (1870-1938). And few have had as influential an impact on the growth of American law as Justice Cardozo. (2) Both on the bench and in the lecture...
The Politics of a Second Class Right: Free Exercise in Contemporary America
I want to begin with a few comments on the title of today's symposium. It strikes me that there are at least three reasons why free exercise of religion is a "second class right" in our own particular period of American history. The first, of course,...
The Right of Publicity: A Comparative Perspective
I. INTRODUCTION What do Martha Stewart, the impresario of good living, Tiger Woods, a dominate sports figure of our time, and Paul Newman, the film actor and owner of a line of food products, have in common? The answer is that these celebrities...
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