Legal Commentary: Marci A. Hamilton Archive

SHOULD U.S. INTELLECTUAL PROPERTY RIGHTS CHANGE TO FIT WORLD NORMS?
FindLaw columnist and Cardozo law professor Marci Hamilton critiques the growing trend by the United States to follow international copyright norms, even to the detriment of its own constitution's values and rights. Hamilton argues that issues from copyright duration, to "freeware," to database protection should be examined according to constitutional values, not global standards.
Thursday, May. 24, 2001

GENERAL LAND USE LAWS AND RELIGIOUS BUILDINGS: THE CONTROVERSY HEATS UP
FindLaw columnist and Cardozo law professor Marci Hamilton analyzes a coming trend of major litigation over the application of land use laws to religious buildings. The constitutionality of a federal statute that requires a compelling interest whenever land use laws are applied to religious buildings will likely be litigated in the Supreme Court. State and local laws and regulations, too, are likely to be challenged.
Thursday, May. 10, 2001

OPENING UP THE LAW SCHOOLS: WHY THE FEDERALIST SOCIETY IS INVALUABLE TO ROBUST DEBATE
The role of the conservative Federalist Society in law schools and the legal profession has been much in the news lately -- as the Society's connections to the Bush Administration have been noted -- but few outside the profession know much about the Society. FindLaw columnist and Cardozo law professor Marci Hamilton clues us in on the Society's role, purpose, and influence on law schools.
Wednesday, Apr. 25, 2001

THE RECOUNT OF THE RECOUNT: THREE LESSONS WE CAN LEARN
FindLaw columnist and NYU law professor Marci Hamilton reflects on the lessons we can learn from recent reports (by USA Today and others) that each Presidential candidate's favored recount standard would actually, if adopted, have caused the other candidate to win. Not only are these reports ironic, Hamilton notes, they are also revealing. They show how important it is to defend and honor the fundamental right to vote, and they also show the need for a neutral recount standard that does not favor incumbents or their parties. Moreover, the parties' and candidates' lack of knowledge about voting standards -- so great that their chosen recount standards would have hurt their causes -- shows that the Supreme Court, in Bush v. Gore, was wise to avoid setting a standard, and ordering a recount, itself.
Thursday, Apr. 12, 2001

BRINGING THE PEOPLE INTO THE COPYRIGHT ARENA
FindLaw columnist and NYU professor Marci Hamilton discusses possible repercussions of the increased public awareness of copyright issues that has resulted from the Napster, MP3.com, and Microsoft legal battles. In the past, Hamilton explains, the combination of industry influence and public neglect of copyright issues have led to repeated extensions of the copyright term at industry's behest. Thus, according to Hamilton, the current copyright term -- equal to the author's lifespan plus 70 years -- is far too long. While a constitutional challenge to this lengthy, extended term has been mounted by Stanford Law Professor Professor Lawrence Lessig, among others, in the case of Eldred v. Reno, so far that challenge has been unsuccessful. Therefore, the best remedy, Hamilton suggests, is for the public to use its new awareness of copyright issues to fight for legislation to shorten the term to a more reasonable length.
Thursday, Mar. 29, 2001

RELIGION, PUBLIC FUNDS AND ACCOUNTABILITY
FindLaw columnist and NYU law professor Marci Hamilton explores issues that may arise from the operations of President Bush's new White House Office of Faith-Based and Community Initiatives, through which government funding will go to religious organizations that help their communities. Although the Office has contributed to Bush's high approval ratings, Hamilton tells a cautionary tale -- dating from the administration of Ulysses S. Grant, in which government money also was given to religious groups -- of pitfalls the Office must strive to avoid. In addition, Hamilton stresses the tension between the Bush Administration's admitted need to oversee faith-based programs for the needy to ensure results are good, and religious organizations' recent claims of autonomy, which have sometimes succeeded in insulating the organizations from legal process.
Thursday, Mar. 15, 2001

THE SUPREME COURT'S DECISION IN GARRETT, THE AMERICANS WITH DISABILITIES ACT, AND BUSH V. GORE
FindLaw columnist and NYU law professor Marci Hamilton analyzes the Supreme Court's recent decision in the Garrett case, in which the Court held that states cannot be sued by private individuals for damages under the Americans with Disabilities Act. Hamilton contends that the decision was right for two independent legal reasons; that it will, in any case, have little practical impact; and that -- contrary to other commentators' urging -- it has little, if anything, to do with the Supreme Court's decision in Bush v. Gore.
Thursday, Mar. 01, 2001

THE NINTH CIRCUIT'S NAPSTER DECISION
On Monday, the Ninth Circuit Court of Appeals issued its decision in the controversial Napster case. FindLaw columnist and NYU law professor Marci Hamilton describes the arguments that persuaded the Ninth Circuit to rule against Napster, contends that the rulings were entirely correct, and suggests that Napster's best route now is to take its case to Congress, not to seek rehearing of its case before a larger panel of judges.
Thursday, Feb. 15, 2001

THE HACKER UTOPIA VERSUS THE COPYRIGHT LAW
FindLaw columnist and NYU law professor Marci Hamilton considers the current legal clash between industries that want to protect copyrights (including the publishing, recording, and film industries) and hackers who believe that "Information wants to be free." Hamilton argues that both the Constitution and the copyright law set up a system in which information can be both secret and proprietary and that, as a result, the hackers' "free information" society could only be effected by Constitutional amendment and repeal of the copyright law.
Thursday, Feb. 01, 2001

THE ASHCROFT NOMINATION: SEPARATING THE MAN FROM THE OFFICE
FindLaw columnist and NYU law professor Marci Hamilton, after attending the Ashcroft hearings, comments on what should, and should not be, relevant to the Senate's exercise of its confirmation process power. Hamilton contends that the fact that Ashcroft appears well-liked by Senators of both parties is irrelevant -- as is the fact that his beliefs may diverge from those of some Democratic Senators. What matters to Ashcroft's confirmation for the Attorney General position, Hamilton argues, is Ashcroft's demonstrated commitment to the rule of law.
Thursday, Jan. 18, 2001