In May of 2007, the Supreme Court issued its opinion in Bell Atlantic Corp. v. Twombly that literally revolutionized the standard for determining the legal sufficiency of a complaint. In that decision, which Justice Souter wrote for the majority, the Court abandoned the fifty-year-old “no set of facts” standard set out in Conley v. Gibson, and substituted a “plausibility” standard. Some two years later, in May of 2009, the Court handed down Ashcroft v. Iqbal, a case that provided the Court the opportunity of reaffirming and clarifying Twombly and in which the Court extended the Twombly standard to all civil cases filed in the federal district courts. Significantly, this time, in Iqbal, Justice Souter dissented. This article will examine the impact of these two [...]
I can never get this straight: Is it “grow or die” or “grow and die”? In late 2008, the Heller Ehrman and Thelen firms failed. Heller Ehrman, founded in 1890, had 730 lawyers spread across fifteen offices in the U.S. and abroad. Thelen, dating from 1924, had more than 600 lawyers in offices on both the Atlantic and Pacific coasts and in Shanghai. In mid-February 2009, other large law firms terminated 1,100 lawyers and staffers in only two days. A week or two later, Latham and Watkins, which had 2,300 lawyers in twenty-eight offices, terminated 190 lawyers and 250 members of its staff. Over a six-month period in 2008, Cadwalader, Wickersham and Taft, a 206-year-old New York based firm, laid [...]
The First Annual Symposium of the Masterman Institute on the First Amendment and the Fourth Estate It is a privilege for me to give the first Masterman Institute lecture. Edward Masterman has been an inspiring leader of the bar. He and his wife, Sydell, funded the institute to explore the freedom of the press and its limits. I think that is a wise combination of subjects. The press often sounds as though there are no limits on what it can do—as though all its problems can be solved by crying, “First Amendment.” But that is not true and never has been. In my judgment, the press will be strengthened in its great functions if it understands that limits—responsibilities—go along [...]
Judicial Review, Judicial Activism, Queer Rights, and Literature: A Conversation Between the Honorable Michael Kirby and Professor Ruthann Robson
Poets and writers often work unseen, shuttered away in rooms and silences so wide and clear that to speak in this kind of silence one must have the courage to listen to oneself. Visual artists celebrate the light and solitude of their studios, the being alone with one’s self in the world. There may be art on the writing room walls or music playing in the studios, but there is rarely conversation. Unseen and unheard, artists and writers are free alone to devolve everything they are into the work they make. Law more often proceeds in formal spaces filled with art, carpets, and ceremonial gestures where language moves between people, much as it does in conversation. Law, though, imposes a [...]
Citation of Foreign Decisions in Constitutional Adjudication: The Relevance of the Democratic Deficit
DONAHUE LECTURE AND PANEL DISCUSSION A particular feature of the past fifty years has been the introduction of the post-war independence constitutions of many nations. The introduction of such constitutions in India, Pakistan, Ireland, Ceylon, and then many parts of Africa, Asia and the Caribbean, has resulted in the adoption of human rights provisions that sometimes reflect an international template. Quite often, such provisions, in repeated language, can be traced to earlier progenitors, including the English Bill of Rights of 1688, the Bill of Rights of the American Constitution after 1791, and the Universal Declaration of Human Rights of 1948. To many judges in national courts, faced with cases for decision involving the meaning of their own constitutional charters of [...]
DEAN ALFRED C. AMAN: Good afternoon and welcome to part two of our Donahue Lecture Series. We are honored to have a very distinguished panel who will be commenting on Justice Kirby’s talk that you have just heard. I want to introduce all the members of the panel all at once and then they will speak in an order that goes across the table. When they finish I am hoping that Justice Kirby will have some comments, responses, or resonances. At that point, we want to open it up to questions and discussion from the audience. We have with us four commentators today, beginning with Professor Eric Blumenson, who needs no introduction at Suffolk Law School. He came here from [...]
This Note will discuss the uncontrollable growth of the mortgage giants, Fannie Mae and Freddie Mac, and the need to change the policies that created perverse incentives for financial institutions and investors to act in ways adverse to economic stability. The first part of this Note will discuss the history of the federal government’s role in financing mortgages and promoting home ownership. Secondly, the Note will examine the secondary mortgage market and the innovative financial securities that have emerged in the past few years and the concerns that come with these new products. Finally, part three of the Note will present arguments for privatizing Fannie Mae and Freddie Mac. . .
This Note examines current factors affecting copyright rights, critiques the PRO-IP Act as a response to those factors, and explores recent business strategies for monetizing the production of intellectual property notwithstanding those factors. Part II.A examines the history of copyright law as responsive to technological, cultural, economic, and political changes in the intellectual property environment. Part II.B describes United States copyright law prior to the passage of the PRO-IP Act and examines the prior law’s efficacy within the current intellectual property environment. Part II.C explains how the PRO-IP Act amended the copyright statute. Part II.D examines recent effective business strategies to sustain profits. Part III critiques the PRO-IP Act from political, technological, cultural, and economic perspectives. Part III.A argues that, [...]
Five is a Crowd: A Constitutional Analysis of the Boston Zoning Amendment Prohibiting More Than Four College Students From Living Together
On March 12, 2008, the Boston Zoning Commission amended the Boston Zoning Code to restrict more than four undergraduate students from living together in a leased dwelling. The amendment redefined the term “family” in the zoning code by explicitly stating that five or more full-time undergraduate students do not constitute a family. This redefinition made it illegal for five or more undergraduate students to live together, as the City of Boston zones residential districts strictly for “family” habitation. Proponents support the new definition because it strikes directly at the overcrowded, student-occupied dwellings that proponents believe are the main cause of neighborhood disruption. Opponents believe the amendment arbitrarily targets undergraduate students and will result in higher rents. In addition to public policy concerns, [...]
A Step Back From Substantive Competition Policy Convergence: The International Implications of Leegin Creative Leather Products, Inc. v. PSKS, Inc.
In the wake of Leegin, companies engaged in cross-border transactions face a great deal of uncertainty regarding how to take advantage of the increased freedom afforded by this new United States policy. A company either undertakes to manage different pricing policies in each jurisdiction, risks the threat of prosecution in certain jurisdictions, or follows the strictest policy in all jurisdictions–none of which are ideal options. This Note will examine the potential complications of the fact that Leegin now sets the United States at odds with many of its major trading partners in the area of RPM, and the ramifications of that divide. Part II.A reviews the development of United States antitrust law in the area of RPM. Part II.B discusses the [...]