Law Commons^™

Inflation Reduction Act’S Reception By Global Trading Partners, Sophia Hilsman

Cardozo International & Comparative Law Review Blog

The Biden Administration touted the Inflation Reduction Act (the “IRA”), signed on August 16, 2022, as “the most aggressive action on tackling the climate crisis in American history.” The world desperately needs climate action. The seven warmest years recorded on Earth were 2015 to 2021. In 2021, global fossil fuel carbon dioxide emissions “returned to the pre-pandemic levels of 2019.”

This post was originally published on the Cardozo International & Comparative Law Review on October 15, 2022. The original post can be accessed via the Archived Link button above.

Weekly Pop-Up Class: Understanding The Lgbtq+ Civil Rights Movement And Why It Matters, Kate Shaw, Benjamin N. Cardozo School Of Law

Event Invitations 2022

Cardozo Professor Kate Shaw is the Co-Director of the Floersheimer Center for Constitutional Democracy. Before joining Cardozo, she worked in the White House Counsel’s Office as a Special Assistant to the President and Associate Counsel to the President. She clerked for Justice John Paul Stevens of the U.S. Supreme Court and Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit.

Will Mediation Return To In-Person Only Or Will The Future Hold For An Option Of Zoom Mediation?, Sydney Grant

Cardozo Journal of Conflict Resolution Blog

March 2020 rapidly changed the way the legal world operated. Before the pandemic, 100% of mediations were conducted in-person. However, due to health concerns, the ADR community had to quickly come up with a solution on how to continue conducting mediations in a safe, efficient, and effective manner. Questions arose about whether virtual mediations would be as effective as in-person ones and if the mediator would be able to establish the same rapport with the parties as they were able to in-person.

This post was originally published on the Cardozo Journal of Conflict Resolution website on October 12, 2022. The …

Where We Stand Today With The Public Charge Rule, Rachell Henriquez

Cardozo Journal of Equal Rights and Social Justice Blog

The Statue of Liberty has become known as the “Mother of Exiles, greeting millions of immigrants and embodying hope and opportunity for those seeking a better life in America [,]” not only to Americans but to all people around the world. Yet, despite being designated as the land of dreams and opportunities, the United States has a long history of denying such dreams and opportunities to marginalized communities. The “public charge” rule refers to inadmissibility and deportability grounds in U.S. immigration law that have constantly barred poor noncitizens and noncitizens of color from obtaining legal status. The public charge rule …

How A Podcast And Docuseries Helped To Release A 14 Year Prisoner, Julia Maxman

Cardozo Journal of Equal Rights and Social Justice Blog

Adnan Syed, was released from prison on September 19, after being behind bars for 23 years. Syed was convicted in 1999 for the murder of his high school girlfriend, Hae Min Lee, despite steadfastly defending his innocence. After a mistrial in 1999, Syed was found guilty of murder in 2000 and sentenced to life in prison. After 14 years of his sentence had passed, Syed’s case gained widespread attention after it was featured on the Serial podcast. On the episode, host Sarah Koenig, questioned the credibility of the evidence used to incriminate Syed and the inconsistencies among the prosecution's witnesses. …

Reconsideration Of Forced Arbitration In Data Privacy Legislation, Andy (Chen Di) Xu

Cardozo Journal of Conflict Resolution Blog

Pre-dispute arbitration principles were established in 1925 by Congress through the Federal Arbitration Act (FAA) and were meant to “create an efficient way for businesses with comparable bargaining power to negotiate and agree upon an alternative means of conflict resolution.” However, the driving legal maxims behind the FAA failed to address cases with a large power imbalance between the parties. Arbitration in such cases usually see a company “likely be[ing] represented in arbitration by lawyers who are well-versed in the process and the issue involved, while the wronged customer must find an attorney willing to represent them for what is …

Germany’S Erneuerbare-Energien-Gesetz And Incentives For Renewable Energy Production, James Stitt

Cardozo International & Comparative Law Review Blog

The Renewable Energy Sources Act (“EEG”) was introduced in Germany over twenty years ago and has since influenced similar legislation in over eighty countries. The EEG “forms the legal basis for the support for renewable energy sources in Germany.” The most groundbreaking feature of the EEG is the feed-in tariff (“FIT”) system incentivizing corporations and even individuals to join in renewable energy production. FITs were first introduced in 1991 with the Electricity Feed-In Act (Stromeinspeisungsgesetz), the legislation that started Germany’s push toward renewable energy source production.

This post was originally published on the Cardozo International & Comparative Law Review on …

Ed Sheeran Copyright Victory Highlights Issues In The Music Industry, Shayna Grife

Cardozo Arts & Entertainment Law Journal Blog

Ed Sheeran won a copyright infringement lawsuit filed against him for alleged copyright infringement in his popular song “Shape of You” in 2018.The Grammy-winning song, which also holds the title of the most streamed song on Spotify, was accused of being too similar to “Oh Why” by Sami Switch. The lawsuit raised questions for the music industry as to the issues associated with the increase of copyright infringement suits and the damaging effects that they may have on the music industry.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 4, 2022. The …

Labeling “The Last Prisoners:” New Legislation Requires New York Museums To Identify Nazi-Looted Artwork, Stephanny Avshalomov

Cardozo Arts & Entertainment Law Journal Blog

“[S]he walked through the apartment and she turned to the SS men and she said, ‘Ich habe gernes. Alles.’ – ‘I like it. All of it.’ … they took everything out of [ ] our house.” The “greatest art theft in history” was executed alongside the largest mass murder in history. In 1940, Hitler established the Einsatztab Reichsleither Rosenberg (ERR) solely to confiscate and destroy art in German-occupied territories. When discussing the Holocaust, which included the grueling systematic annihilation of European Jews, the importance of artwork seems trivial. It, however, must be recognized: “You can wipe out an entire generation, …

Weekly Pop-Up Class: Understanding The Lgbtq+ Civil Rights Movement And Why It Matters, Rachel B. Tiven, Benjamin N. Cardozo School Of Law

Event Invitations 2022

Rachel Tiven will discuss "A History of U.S. Immigration Exclusion." Tiven is a civil rights leader turned historian. As the head of national non-profits Lambda Legal, Immigration Equality, and Immigrant Justice Corps, Tiven fought for equality for immigrants and LGBTQ/HIV+ people. Tiven has been recognized for her work by the Advocate magazine, New York County Lawyers Association and United We Dream.

Religious Freedom Or Freedom To Discriminate?, Samantha Woods

Cardozo Journal of Equal Rights and Social Justice Blog

In April of 2021, students seeking to create a LGBTQ group on the campus of Yeshiva University (“YU”) filed suit against the institution for its flagrant violations of New York City Human Rights Law (“NYCHRL”) when repeatedly rejecting the formation of an LGBTQ student group on campus. Plaintiffs applied to be school-sponsored clubs through the proper channels and were denied recognition at YU by the highest levels of leadership, including Yeshiva’s President Rabbi Dr. Ari Berman. The university argues it is a religious institution, exempt from the NYCHRL. YU’s religious freedom defense fails when considered in light of its primary …

Backslide: A Comparison Of The United States And Colombia’S Recent Rulings On Abortions, Ethan Libo

Cardozo International & Comparative Law Review Blog

In 2022, the United States Supreme Court and Colombia’s Constitutional Court both handed out 5-4 decisions heading the opposite way on the issue of abortion. Historically, Latin American countries have been very strict on abortion. The Latin American populace is known to be of devout religious faith and to hold culturally conservative values. However, in 2022, Colombia joined a growing trend in Latin America when the country’s Constitutional Court ruled that the criminalization of abortion under twenty-four weeks is unconstitutional. In 2006, the Constitutional Court upheld the criminalization of abortion. However, the Court at that time carved out exceptions when: …

Prohibiting Slavery & The Slave Trade, Jocelyn Getgen Kestenbaum

Faculty Articles

Slavery and the slave trade stubbornly persist in our time, but they receive insufficient attention in international human rights law. Even when courts adjudicate slavery violations, they often fail to characterize slave trade conduct that nearly always precedes slavery. Courts also characterize acts that meet the definition of slavery or the slave trade only as other human rights harms, such as forced labor or human trafficking. This failure to accurately characterize violations also as slavery and the slave trade perpetuates impunity and denies victims full expressive justice. This Article argues for reviving international human rights law’s prohibitions of slavery and …

A Second Look For Children Sentenced To Die In Prison, Kathryn E. Miller

Faculty Articles

Scholars have championed “second look” statutes as a decarceral tool. Second look statutes allow certain incarcerated people to seek resentencing after having served a portion of their sentences. This Essay weighs the advantages and disadvantages of these statutes as applied to children sentenced to die in prison and argues that focusing on this small, discrete group may be a digestible entry point for more conservative states who fear widespread resentencing. Moreover, because early data indicates that children convicted of homicide and released as adults have very low recidivism rates, second look beneficiaries are likely to pose little threat to public …

Article 9 Foreclosures: When Is A Sale Not A Sale?, David G. Carlson

Faculty Articles

Article 9 of the Uniform Commercial Code empowers a secured creditor to sell collateral. This power is circumscribed. A secured party may not sell before default. A secured party cannot self-deal in a private sale. A pledgee of securities can sell to itself in a private sale if the securities are of a kind that is customarily sold on a recognized market, but the law is unclear what formalities the pledgee must meet to memorialize the sale. A secured party may not sell in a commercially reasonable manner to a buyer with notice of the commercial unreason. This article explores …

Whose Debt Is It Anyway?, Luís C. Calderón Gómez

Faculty Articles

Every year, companies issue hundreds of billions of dollars of debt with a feature carrying unclear tax consequences. So do individuals, who frequently tie their most significant financial asset to this type of instrument. Yet this instrument is not an exotic or innovative financial derivative, but is simple vanilla debt with two or more borrowers, or “co-obligated debt”. Co-obligated debt poses a conceptual problem for the law because it does not fit neatly into the simple and dyadic legal framework underlying the law’s conception of debt, where one creditor lends money to one borrower in exchange for a direct promise …

Taming Unicorns, Matthew Wansley

Faculty Articles

Until recently, most startups that grew to become valuable businesses chose to become public companies. In the last decade, the number of unicorns—private, venture-backed startups valued over one billion dollars—has increased more than tenfold. Some of these unicorns committed misconduct that they successfully concealed for years. The difficulty of trading private company securities facilitates the concealment of misconduct. The opportunity to profit from trading a company’s securities gives short sellers, analysts, and financial journalists incentives to uncover and reveal information about misconduct the company commits. Securities regulation and standard contract provisions restrict the trading of private company securities, which undermines …

The Amazing Carrie Menkel-Meadow And What Wins When Passions Collide, Lela Love

Faculty Articles

Carrie Menkel-Meadow (sometimes referred to as “Carrie” herein) is famous in the dispute resolution world as one of the field’s founders. Her prolific writing on dispute resolution—negotiation, mediation, arbitration, and the variants of these major processes—evidences an unrivaled passion for the subject. A renaissance thinker, her intellectual explorations also extend to other areas such as women’s rights and restorative justice for victims of egregious wrongs.

Her multiple passions sometimes create dynamic tensions. For example, what happens if mediation norms threaten a woman’s rights? Or if mediators divert the focus of a dispute resolution process to the future, neglecting a horrific …

Carrie Menkel-Meadow: Dispute Resolution In A Feminist Voice, Andrea Kupfer Schneider

Faculty Articles

The presence of women in the law has changed the law’s substance, practice, and process. Carrie Menkel-Meadow, whose scholarship centers on this theme, is one such revolutionary woman.

Professor Menkel-Meadow, who I am proud to call my colleague, co-author, and friend (hereinafter referred to as Carrie), began her career in 1977 with a series of simple questions that sparked a breathtaking body of work. Carrie probed the depth of male domination in the realm of law and wondered what changes female representation might engender. In particular, she focused her inquiry on the value orientation each respective gender might bring to …

Generalized Creditors And Particularized Creditors: Against A Unified Theory Of Standing In Bankruptcy, David G. Carlson, Jeanne L. Schroeder

Faculty Articles

Courts have struggled toward a unified theory to explain when the trustee has exclusive jurisdiction to sue a third party for harms done to a bankrupt debtor, and when creditors have exclusive jurisdiction to sue the third party. Courts have proclaimed that when every creditor can sue the third party, then none of them can, and the right belongs solely to the trustee. Creditor rights are “generalized.” If only a proper subset of creditors can sue the third party, then the trustee is not able to subrogate to the subset. Such creditors are “particularized.” This paper proclaims the test a …

Weekly Pop-Up Class: Understanding The Lgbtq+ Civil Rights Movement And Why It Matters, Dmytro Vovk, Benjamin N. Cardozo School Of Law

Event Invitations 2022

Dmytro Vovk, Cardozo Visiting Associate Professor will cover Religious Freedom and LGBTQ+ Rights: The European Court of Human Right's Perspective.

Dmytro Vovk runs the Center for Rule of Law and Religion Studies at Yaroslav the Wise National Law University in Kharkiv, Ukraine. He was an expert on human rights and rule of law for USAID, OSCE/ODIHR, Council of Europe and Constitutional Commission of Ukraine.

Book Ban Opponents Face An Uphill Battle With Current Discretionary Review Standards, Zach Cihlar

Cardozo Arts & Entertainment Law Journal Blog

On October 25th, 2021, Texas State Representative Matt Krause, in his capacity as Chairman of the Committee on General Investigating, circulated a letter addressed to the Texas Education Agency and school-district superintendents. The letter requested that superintendents identify and investigate a list of 800 books possibly held in their districts’ libraries that might contain topics ranging from human sexuality to HIV/AIDS to any material that “might make students feel discomfort, guilt, anguish . . . or psychological distress because of their race or sex . . . .”

This post was originally published on the Cardozo Arts & Entertainment Law …

70 Years Of Dance: Copyrighting Choreography Since 1952, Annie Planker

Cardozo Arts & Entertainment Law Journal Blog

Choreography has long been a subject of controversy in the world of copyright. Despite its significance in the artistic community and the rise of social media in our everyday lives, choreography has not received the same property protections as other artforms, such as music, painting or sculpture. This is partly due to the transient nature of choreography; copyright law requires “fixed expressions” of works. It is also due to a legal hesitation to limit “social” arts. Lawmakers have little desire to prohibit large masses from participating in cultural activities.

This post was originally published on the Cardozo Arts & Entertainment …

Free Yezidi Foundation Public Memo – Lafarge Case, Jocelyn Getgen Kestenbaum, Patricia Viseur Sellers

Faculty Online Publications

This memorandum supports the Free Yezidi Foundation’s (FYF) filing in the Lafarge Case concerning allegations of complicity in crimes against humanity, including genocide. The Lafarge Corporation continuously operated its factory and, moreover, financially contributed to the Islamic State of Iraq and al-Sham (IS, ISIS, Daesh) between 2013 and 2014, inclusive of the period between 3 August 2014 and 19 September 2014. During those weeks, and represented in a timeline annexed to this memorandum, international and French media, international organizations, and governments extensively reported on and condemned IS acts committed against the Yezidi population that could constitute crimes against humanity under …

Weekly Pop-Up Class: Understanding The Lgbtq+ Civil Rights Movement And Why It Matters: Professor Edward Stein, Benjamin N. Cardozo School Of Law

Event Invitations 2022

The first class will cover the evolution of LGBTQ+ family law in the United States and will be presented by LGBTQ+ legal expert and Cardozo Professor and former Vice Dean Edward Stein, author of The Mismeasure of Desire, The Science, Theory, and Ethics of Sexual Orientation and other scholarly works on sexual identity and the law.

Can The Big Five Of Publishing Become The Big Four?, Olivia Nacionales

Cardozo Arts & Entertainment Law Journal Blog

On March 4, 2020, ViacomCBS announced its intention to sell its book-publishing subsidiary, Simon & Schuster. This announcement came less than a year after the merger between Viacom and CBS. Since the 2019 merger, ViacomCBS decided to focus on television and video and began selling its smaller companies that do not have a “significant connection for [its] broader business.” Prior to the announcement to buy Simon & Schuster, ViacomCBS had received “unsolicited inbound calls” regarding the sale of the book publishing company.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on September 20, 2022. …

Anticipating The New “Green Guides”: Ftc Promises Review Of Environmental Marketing Guidance, Frances Bandas

Cardozo Arts & Entertainment Law Journal Blog

The Federal Trade Commission (“FTC”) is poised to review its “Green Guides,” a series of guidelines issued to help marketers make nondeceptive environmental claims that comply with federal regulations. Guidance is supplied for claims about a product or its packaging, claims made in connection with a sale or service, and all forms of marketing claims.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on September 20, 2022. The original post can be accessed via the Archived Link button above.

Amicus Curiae Brief Of Professors Anthony J. Sebok And John C. P. Goldberg In Support Of Appellee The Devereux Foundation, Inc., Anthony J. Sebok

Faculty Amicus Briefs

Amici Anthony J. Sebok and John C. P. Goldberg are law professors with a particular focus in the field of tort law and damages. As scholars in this field, Amici recognize that the issues raised in this case are of tremendous importance to the history, theory, and development of tort law in the United States. The distinction between compensatory damages and punitive damages has long been recognized in both U.S. and Georgia law. Amici have a distinct interest in this Court reaching a correct decision with the benefit of complete and accurate historical information regarding the awarding of punitive damages …

Cardozo Aelj’S Statement On Yu’S Appeal To Scotus, Editorial Board

Cardozo Arts & Entertainment Law Journal Blog

The Cardozo Arts & Entertainment Law Journal (“AELJ”) strongly and unequivocally condemns Yeshiva University’s treatment of its LGBTQ+ undergraduate students. New York courts found that Yeshiva University’s refusal to recognize and fund the undergraduate LGBTQ+ group, Pride Alliance, was in violation of NYC Human Rights Law because Yeshiva University is chartered as an educational corporation, receives public funds, and is, therefore, not eligible for the Human Rights Law religious corporation exemption. Yeshiva now petitions the Supreme Court of the United States to stay that judgment so it may continue to discriminate against LGBTQ+ students in the name of religious freedom. …

Amicus Curiae Brief Of The Hon. Judith Fitzgerald (Bankruptcy Judge, Ret.), And Law Professors Pamela Foohey, George Kuney, Robert Lawless, Jonathan Lipson, Bruce A. Markell, Nancy Rapoport, Richard Squire, Ray Warner And Jack Williams, In Support Of The Petitioner, Pamela Foohey

Faculty Amicus Briefs

Your amici have taught courses on bankruptcy and commercial law, conducted research, and have been frequent speakers and lecturers at seminars and conferences throughout the United States. Each is highly regarded in this field, and each has made substantial contributions to bankruptcy scholarship and jurisprudence.

The question presented to this Court is as follows: “Whether Bankruptcy Code Section 363(m) limits the appellate court’s jurisdiction over any sale order or order deemed integral to a sale order. . . .” (emphasis added). Pet. i. The answer is that § 363(m) does not limit appellate review of the transaction involved in this …