Showing papers in "Buffalo Law Review in 2011"

Constitutional reforms and constitutionalism in Africa : reflections on some current challenges and future prospects.

Abstract: From antiquity down to the modern era, philosophers, political scientists, and jurists have always recognized the imperatives of constitutionalism and the difficulties of attaining it. For Africa, after more than four decades of mostly authoritarian, corrupt, and incompetent rule, the 1990s began with a slow and painful move towards what many optimistically hoped would usher in a new era of democratic governance and constitutionalism. One of the main features of this process has been reforms designed to introduce constitutions that promote constitutionalism and good governance. Many of the apparently radical changes that were introduced by these reforms have been widely

Trademark Infringement, Trademark Dilution, and the Decline in Sharing of Famous Brand Names: An Introduction and Empirical Study

Abstract: † Professor of Law, The George Washington University Law School. For research assistance in preparation for the empirical study, I would like to thank Brian Abramson and Nithyambika Gurukumar. For research assistance on the empirical study itself, I would like to thank Bereket Banbore, Xin Jiang, Vivek Ramachandran, Anirudh Rao, and Lu Xie. For assistance at the Library of Congress, I would like to thank Marilyn K. Parr and Ellen B. Terrell. For comments on previous drafts of this Article, I would like to thank Michael Abramowicz, David Welkowitz, and the participants in the 2009 Intellectual Property Scholars Conference at Cardozo Law School. And for generous research support, I would like to thank Dean Frederick M. Lawrence of The George Washington University Law School.

Prosecution without Representation

Abstract: Nearly 50 years after the Supreme Court's landmark ruling in Gideon v. Wainwright established indigent defendants' constitutional right to counsel, poor people throughout the country still remain without a lawyer when first appearing before a judicial officer who determines pretrial liberty or bail. Absent counsel, low-income defendants unable to afford bail remain in jail for periods ranging from 3-70 days until assigned counsel appears in-court. Examining Walter Rothgery's wrongful prosecution, the article includes a national survey that informs readers about the limited right to counsel at the initial appearance and the extent of delay in each of the 50 states. The article also analyzes the Justices' response to the wrongfully accused and unrepresented Walter Rothgery, and provides insight into how the Court will likely decide the constitutional claim to counsel when it next faces the issue. It suggests that the amicus community's participation will likely assume an important role in the Supreme Court's ultimate ruling.

Implementing American Health Care Reform: The Fiduciary Imperative

Abstract: The success of health reform under the Patient Protection and Affordable Care Act of 2010 will depend upon the sustainability of a brand new and infrastructure of entities, relationships, and procedures. So far, neither jurists, legislators, policy-makers, providers, payers, nor patients have identified an organizing paradigm to implement or regulate this vast new infrastructure. Legal scholars have been curiously absent from this policy discussion, offering little if any insight into the role law plays beyond the familiar political debates about health reform. This article draws a legal chair to the table and takes a refined look at the legal basis for implementing the health reform. Building upon fiduciary law that already governs numerous aspects of medical relationships, in this article I present a new paradigm called the “fiduciary medicine model” to advance the proposition that fiduciary law – particularly agency theory – provides the best conceptual model for understanding and organizing this nation’s emerging health care system. I argue here that fiduciary law should replace contract and tort rules to better address the inevitable challenges that reformers will face. Although courts and scholars currently apply fiduciary law in a haphazard manner to regulate some interactions between providers, payers, and individual patients, I argue to correct this limited view. First, I clarify that one size fiduciary law does not fit all medical relationships. This correction alone will have far-reaching impact as it will help to rectify the Supreme Court’s error in the landmark case, Pegram v. Herdrich. Next I show that within America’s medical industrial complex, patients no longer act individually as principals in medical agency relationships, but instead function in aggregate, contractual groups. The agents with whom these patient groups contract are networks of providers, insurers, health plans, and employers who also act as agents, sub-agents, and principals among themselves. To make sense of this tangle, I introduce lessons learned from economic agency theory. Next, building on popular sovereignty literature, I offer a completely new analogy to show that in health care, the state operates through government officials, much like a corporate agent of the people. In fact, the principal-agent relationship lies at the heart of our democratic form of government. Thus agency law may be read to impose a fiduciary duty upon government to manage competing interests in health care in accordance with the social norms of our democracy – justice, equality, and liberty – and to implement expressed societal goals. The article concludes by offering a model enabling statute, patterned after the Uniform Prudent Investor Act, designed to address some of the most likely objections to the fiduciary medicine model.

Unilateral Alteration of Public Sector Collective Bargaining Agreements and the Contract Clause

Abstract: As public sector budgets have waxed and waned in response to changes in the economic cycle over the past 30 years, public sector employers increasingly have sought to control personnel costs by resorting to measures such as wage freezes and furloughs. Not infrequently, those measures have pitted the viability of collective bargaining agreements against the ability of government to protect its coffers. This article examines those court decisions that have considered the reach of the contract clause in this setting over the past thirty years. Most of these courts properly have applied the principles established by the Supreme Court in the United States Trust Co. decision so as to restrict the permissible scope of self-serving legislative modifications. A significant minority of decisions, however, have afforded substantial deference to such modifications even though they occur in a context in which the legislative body is hardly a disinterested observer. While the legislative impairment of governmental contract rights is a necessary safety valve in some circumstances, an underlying theme of many of the minority decisions is that public sector collective bargaining agreements are not as worthy of protection as other types of governmental contracts. This article takes issue with that theme as an undesirable vestige of the discredited notion that public employees owe a duty of “extra loyalty” to the state. The article proposes an analytical framework that treats public sector collective bargaining agreements the same as other governmental contracts, rather than as a second-class type of contract. It urges that a governmental body should be sustained in impairing its contract obligations to its employees on the same basis as other self-serving impairments; that is, only when such impairment is reasonable and necessary to serve an important governmental purpose.

Pleading and Proving Foreign Law in the Age of Plausibility Pleading

Abstract: Economic and social globalization has increased the volume of globalized litigation, with courts in the United States increasingly called upon to determine questions of foreign law. At best, pleading and proving foreign law in U.S. courts is confusing and cumbersome. At worst, it is incoherent and unpredictable. This is not accidental. The U.S. model draws on two distinct traditions in its approach to questions of foreign law: an adversarial tradition and a court-centered tradition. They do not complement one another. Instead, they mandate different and inconsistent roles for the parties and the court. Under the adversarial model, parties bear the principal responsibilities of pleading and proving foreign law. This model stresses the importance of party autonomy to judicial proceedings. Under the court-centered model, the court supplants the agency of the parties in the interest of arriving at the

Arbitration and antitrust: Navigating the contours of mandatory law

Abstract: 1. See Case of the S.S. “Lotus” (The Lotus Case) (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 18 (Sept. 7) (“International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will . . . . Restrictions upon the independence of States cannot therefore be presumed.”); ANTONIO CASSESE, INTERNATIONAL LAW 24-25 (2d ed. 2005) (explaining that, in 1648, the Peace of Westphalia marked “the birth of an international system based on a plurality of independent States, recognizing no superior authority over them”).