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The Tort Whisperer: Nine Decades Later–My Perspective, Larry M. Roth Jan 2023

The Tort Whisperer: Nine Decades Later–My Perspective, Larry M. Roth

Touro Law Review

This Article provides a comparative analysis of Judge Benjamin Cardozo’s tort decisions in Palsgraf v. Long Island Railroad Co., one of his most famous tort decisions, contrasted with a lesser-known tort opinion in Hynes v. New York Central Railroad Co. The Author attempts to address Cardozo’s humanistic and intellectual dichotomies which are exemplified by these two real-life tort precedents—one of which, Palsgraf, most practitioners may only have a distant recall. A historical overview of Cardozo’s life is also discussed. These two decisions portray Cardozo as an emotive human being exercising hit-or-miss judging. This theme provides a differ viewpoint from Cardozo’s …


Monasky’S Totality Of Circumstances Is Vague – The Child’S Perspective Should Be The Main Test, Sabrina Salvi Jan 2022

Monasky’S Totality Of Circumstances Is Vague – The Child’S Perspective Should Be The Main Test, Sabrina Salvi

Touro Law Review

After decades of confusion, the Supreme Court ruled on child custody in an international setting in Monasky v. Taglieri, by attempting to establish the definition of a child’s “habitual residence.” The Court held that a child’s “residence in a particular country can be deemed ‘habitual, however, only when her residence there is more than transitory.’” Further, the Court stated that, ‘“[h]abitual’ implies customary, usual, of the nature of a habit.”’ However, the Supreme Court’s ruling remains unclear. The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“HCCAICA” or “The Hague Convention”), which is adopted in ninety-eight …


Justice Accused At 45: Reflections On Robert Cover’S Masterwork, Sanford Levinson, Mark A. Graber Jan 2022

Justice Accused At 45: Reflections On Robert Cover’S Masterwork, Sanford Levinson, Mark A. Graber

Touro Law Review

We raise some questions about the timeliness and timelessness of certain themes in Robert Cover’s masterwork, Justice Accused, originally published in 1975. Our concern is how the issues Cover raised when exploring the ways antislavery justices decided fugitive slave cases in the antebellum United States, played out in the United States first when Cover was writing nearly fifty years ago, and then play out in the United States today. The moral-formal dilemma faced by the justices that Cover studied when adjudicating cases arising from the Fugitive Slave Acts of 1793 and 1850 was whether judicial decision-makers should interpret the …


Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger Jan 2022

Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger

Touro Law Review

Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.


When Interpretive Communities Clash On Immigration Law: The Courts’ Mediating Role In Noncitizens’ Rights And Remedies, Peter Margulies Jan 2022

When Interpretive Communities Clash On Immigration Law: The Courts’ Mediating Role In Noncitizens’ Rights And Remedies, Peter Margulies

Touro Law Review

Immigration law gains clarity through the lens of Robert Cover's compelling work on law as a "system of meaning." Cover's vision inspires us to consider immigration law as a contest between two interpretive communities: acolytes of the protective approach, which sees law as a haven for noncitizens fleeing harm in their home countries, and followers of the regulatory approach, which stresses sovereignty and strict adherence to legal categories. Immigration law's contest between contending camps need not be a zero-sum game. As Cover and Alex Aleinikoff observed in their classic article on habeas corpus, a legal remedy can also be a …


This Is Your Captain Speaking, Please Remain Physically Restrained While The Robbery Is In Progress, Conner J. Purcell Jan 2022

This Is Your Captain Speaking, Please Remain Physically Restrained While The Robbery Is In Progress, Conner J. Purcell

Touro Law Review

This note analyzes the current circuit split over the application of the “Physical Restraint” sentence enhancement as applied to the crime of robbery. In the first camp, the circuit courts apply a broad or constructive meaning of physical restraint: allowing words or demands with the use of a firearm to trigger the enhancement. In many cases, the courts focus on the victim’s reaction to the perpetrator rather than the perpetrator’s actual conduct, suggesting psychological restraint rather than physical restraint. In the second camp, the circuit courts apply a plain meaning interpretation of physical restraint. These cases routinely find that the …


Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer Jan 2021

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Touro Law Review

No abstract provided.


Charles Reich, New Dealer, John Q. Barrett Jan 2021

Charles Reich, New Dealer, John Q. Barrett

Touro Law Review

No abstract provided.


The Arms Dealer Who Cries, :“First Amendment”, Gustave Passanante Jan 2020

The Arms Dealer Who Cries, :“First Amendment”, Gustave Passanante

Touro Law Review

No abstract provided.


Herman Melville’S Billy Budd: Why This Classic Law And Literature Novel Endures And Is Still Relevant Today, Rodger Citron Jan 2020

Herman Melville’S Billy Budd: Why This Classic Law And Literature Novel Endures And Is Still Relevant Today, Rodger Citron

Touro Law Review

No abstract provided.


Justice Brandeis And Railroad Accidents: Fairness, Uniformity And Consistency, Larry Zacharias Jan 2017

Justice Brandeis And Railroad Accidents: Fairness, Uniformity And Consistency, Larry Zacharias

Touro Law Review

No abstract provided.


Table Of Contents Jan 2017

Table Of Contents

Touro Law Review

No abstract provided.


Louis Brandeis And Contemporary Antitrust Enforcement, Kenneth G. Elzinga, Micah Webber Jan 2017

Louis Brandeis And Contemporary Antitrust Enforcement, Kenneth G. Elzinga, Micah Webber

Touro Law Review

No abstract provided.


Justice Scalia, Originalism And Textualism, Thomas A. Schweitzer Jan 2017

Justice Scalia, Originalism And Textualism, Thomas A. Schweitzer

Touro Law Review

No abstract provided.


Foreword To The Conference: Louis D. Brandeis: An Interdisciplinary Retrospective, Samuel J. Levine Jan 2017

Foreword To The Conference: Louis D. Brandeis: An Interdisciplinary Retrospective, Samuel J. Levine

Touro Law Review

On March 31-April 1, 2016, Touro Law Center and the Jewish Law Institute hosted a national conference: Louis D. Brandeis: An Interdisciplinary Retrospective. More than thirty judges, lawyers, and scholars, across a broad range of disciplines and hailing from across the United States, explored a variety of themes that included, among others: Brandeis’s groundbreaking work as a lawyer and a scholar; his commitment to his Jewish heritage; his historic appointment to the United States Supreme Court; and his jurisprudence on the Court. In addition to the timeless quality of these themes, the timing of the conference was significant, taking place …


The Judicial Legacy Of Louis Brandeis And The Nature Of American Constitutionalism, Edward A. Purcell Jr. Jan 2017

The Judicial Legacy Of Louis Brandeis And The Nature Of American Constitutionalism, Edward A. Purcell Jr.

Touro Law Review

No abstract provided.


Solving A Mystery: Justice Brandeis’ Approach To Judicial Decision-Making, Judge Kermit V. Lipez Jan 2017

Solving A Mystery: Justice Brandeis’ Approach To Judicial Decision-Making, Judge Kermit V. Lipez

Touro Law Review

No abstract provided.


Justice Brandeis And Civic Duty In A Pluralistic Society, Joel K. Goldstein Jan 2017

Justice Brandeis And Civic Duty In A Pluralistic Society, Joel K. Goldstein

Touro Law Review

No abstract provided.


The Continuing Vitality Of Louis D. Brandeis’S Free Expression Jurisprudence, Frederick M. Lawrence Jan 2017

The Continuing Vitality Of Louis D. Brandeis’S Free Expression Jurisprudence, Frederick M. Lawrence

Touro Law Review

No abstract provided.


Sunlight And Shadows: Louis D. Brandeis On Privacy, Publicity, And Free Expression In American Democracy, Erin Coyle Jan 2017

Sunlight And Shadows: Louis D. Brandeis On Privacy, Publicity, And Free Expression In American Democracy, Erin Coyle

Touro Law Review

No abstract provided.


Moving From A Brandeis Brief To A Brandeis Law Firm: Challenges And Opportunities For Holistic Legal Services In The United States, Judith A. Mcmorrow Jan 2017

Moving From A Brandeis Brief To A Brandeis Law Firm: Challenges And Opportunities For Holistic Legal Services In The United States, Judith A. Mcmorrow

Touro Law Review

No abstract provided.


Louis Brandeis’S Vision Of Light And Justice As Articulated On The Side Of A Coffee Mug, Randy Lee Jan 2017

Louis Brandeis’S Vision Of Light And Justice As Articulated On The Side Of A Coffee Mug, Randy Lee

Touro Law Review

No abstract provided.


A Challenge To Bleached Out Professional Identity: How Jewish Was Justice Louis D. Brandeis?, Russell G. Pearce, Adam B. Winer, Emily Jenab Jan 2017

A Challenge To Bleached Out Professional Identity: How Jewish Was Justice Louis D. Brandeis?, Russell G. Pearce, Adam B. Winer, Emily Jenab

Touro Law Review

No abstract provided.


Collaborative Divorce: What Louis Brandeis Might Say About The Promise And Problems?, Susan Saab Fortney Jan 2017

Collaborative Divorce: What Louis Brandeis Might Say About The Promise And Problems?, Susan Saab Fortney

Touro Law Review

No abstract provided.


Privacy And Conformity: Rethinking “The Right Most Valued By Civilized Men”, Susan E. Gallagher Jan 2017

Privacy And Conformity: Rethinking “The Right Most Valued By Civilized Men”, Susan E. Gallagher

Touro Law Review

No abstract provided.


Louis Brandeis’S Arc Of Moral Justice, Katherine A. Helm Jan 2017

Louis Brandeis’S Arc Of Moral Justice, Katherine A. Helm

Touro Law Review

No abstract provided.


A Progressive Mind: Louis D. Brandeis And The Origins Of Free Speech, Elizabeth Todd Byron Jan 2017

A Progressive Mind: Louis D. Brandeis And The Origins Of Free Speech, Elizabeth Todd Byron

Touro Law Review

No abstract provided.


The Contributions Of Louis Brandeis To The Law Of Lawyering, John S. Dzienkowski Dec 2016

The Contributions Of Louis Brandeis To The Law Of Lawyering, John S. Dzienkowski

Touro Law Review

No abstract provided.


When Scalia Wasn't Such An Originalist, Michael Lewyn Jan 2016

When Scalia Wasn't Such An Originalist, Michael Lewyn

Touro Law Review

No abstract provided.


The Founding Fathers Said I Am Not Subject To Term Limits, Elias Arroyo Jan 2016

The Founding Fathers Said I Am Not Subject To Term Limits, Elias Arroyo

Touro Law Review

No abstract provided.