Digital Commons Network^™

Week Of October 11, 2021 - October 15, 2021, Benjamin N. Cardozo School Of Law

Today at Cardozo 2021

Events occurring this week have been sponsored by:

• Asian Pacific American Law Students Association (APALSA)
• Black Law Students Association (BLSA)
• Cardozo Art Law Society
• Cardozo Criminal Law Society (CCLS)
• Cardozo Family Law Society
• Cardozo Fashion Law Society
• Cardozo Federalist Society
• Cardozo For Immigrants' Rights and Equality (FIRE)
• Cardozo International & Comparative Law Review
• Cardozo International Law Society
• Cardozo Law Institute in Holocaust and Human Rights (CLIHHR)
• Cardozo National Lawyers Guild (NLG)
• Cardozo Office of Student Life
• Cardozo Office of Student Services & Advising
• Cardozo Public Service Scholars Program
• Cardozo Student Animal Legal Defense Fund (SALDF)
• Cardozo Students for Human Rights …

Mmu: 10/11/21–10/17/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

General Announcements

Stoic Start to the Week

Sport Report by Ashley Topel

1L of the Week: Andrew Badger

2Ls Taking Ls: Rachel Collins

Ask a 3L: Jacqueline Lau

Stepification, Mitchell Chervu Johnston

Northwestern University Law Review

Multistep tests pervade the law to the point that they appear to be a fundamental feature of legal reasoning. Famous doctrines such as Chevron or qualified immunity take this form, as do more obscure doctrinal formulas. But surprisingly, these doctrinal formulations as a class are relatively new. The reality is that the intellectual moment that gave rise to Chevron was one in which multiple older doctrines that relied on multifactor balancing were replaced by new tests formulated as multistep inquiries in which each step was a discrete inquiry.

This Article provides the first historical and normative account of this phenomenon—which …

Redeeming Justice, Terrell Carter, Rachel López, Kempis Songster

Northwestern University Law Review

Approximately three decades ago, two of us, Terrell Carter and Kempis Songster, were sentenced to life in prison without the possibility of parole. The U.S. Supreme Court has said that this sentence, effectively an order to die in prison, represented a legal determination that we were irredeemable. In this Article, with insights from our coauthor and friend, human rights scholar Rachel López, we ask: What does it mean for the law to judge some human beings as incapable of redemption? Isn’t the capacity for change core to the human condition, and shouldn’t that be reflected in the law?

This Article …

Jordan's Public Policy Response To Covid-19 Pandemic: Insight And Policy Analysis, Wa’Ed Alshoubaki, Michael Harris

Public Administration Faculty Research

The aim of this study was to gain an understanding of how the Jordanian government has responded and continues to respond to the COVID-19 pandemic. It utilizes the interpretive policy analysis approach through document analysis. The analysis showed that Jordan created social protection policies to assist people who lost their jobs or whose work was suspended due to the coronavirus. The economic policies build solidarity and facilitate the private sector’s recovery. The health care measures firmly applied included lockdown, wearing masks, and restrictions on gatherings and public events. Jordan uses hard power and imposes sanctions on any violation that threatens …

Negative Commentary—Negative Consequences: Legal Ethics, Social Media, And The Impact Of Explosive Commentary, Jan L. Jacobowitz Ms.

St. Mary's Journal on Legal Malpractice & Ethics

Connecting and sharing on social media has opened communication channels and provided instantaneous information to billions of people worldwide. Commentary on current events, cases, and negative online reviews may be posted in an instant, often without pause or thought about the potential repercussions. This global phenomenon may not only provide news of the day updates, humor, and support for those in need but also is replete with ethical landmines for the unwary lawyer. Lawyers commenting on current events, their cases, or responding to a client’s negative online review, have suffered damage to their careers. In some instances, they have even …

“Yellow Perils,” Revived: Exploring Racialized Asian/American Affect And Materiality Through Hate Discourse Over The Covid-19 Pandemic, Keisuke Kimura

Journal of Hate Studies

The goal of this essay is to explore what kind of hate is produced against Asian bodies in reaction to the COVID-19 pandemic. By centering Asian/American affect and materiality – marginalized voices, narratives, and feelings of Asian/Americans as affective-performative texts, this essay attends to critique the historical continuum of racial discrimination against Asian/Americans (i.e., yellow peril) and advocate for social justice, equality, and inclusion in the U.S. Overall, I argue that Asian/American bodies are both physiologically and ideologically desensitized, dehumanized, and weaponized as the revival of yellow perils over the COVID-19 pandemic. Moreover, this essay highlights the possibility of adding …

Accountability And Private-School Choice, Nicole Stelle Garnett

Books

Table of Contents

• Introduction
• The Parental-Choice Landscape
• Accountability and Parental Choice
• Accountability in Current Choice Programs
• The Challenges of Accountability in the Private-School-Choice Context
• Optimal Accountability for Chosen Schools
• Conclusion: Beyond Academic Accountability
• Endnotes
• About the Author

Model Rule 8.4(G) And The Profession’S Core Values Problem, Michael Ariens

St. Mary's Journal on Legal Malpractice & Ethics

Model Rule 8.4(g) declares it misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” The American Bar Association (ABA) adopted the rule in 2016 in large part to effectuate the third of its four mission goals: Eliminate Bias and Enhance Diversity. The ABA adopted these goals in 2008, and they continue to serve as ABA’s statement of its mission.

A …

Noncompetes In A Downsizing World, Charles A. Sullivan

San Diego Law Review

As the nation confronts multiple federal and state attacks on employee noncompetition agreements (“NCAs”), one issue has remained relatively obscure: may an employer that terminates a worker for reasons not related to performance nevertheless enforce an NCA? A scattering of cases mostly holds no, and the recent Restatement of Employment Law’s agreement with those decisions is likely to be very influential for the great majority of jurisdictions that have not yet addressed the question but may be forced to in light of massive COVID-related layoffs.

This Article supports the Restatement’s proposed rule, while exploring the fascinating doctrinal and policy issues …

Explaining Florida Man, Ira P. Robbins

Florida State University Law Review

"Tlorida Man" is a popular cultural phenomenon in which journalists report on Floridians' unusual (and often criminal) behavior, and readers relish in and share the stories, largely on social media. A meme based on Florida Man news stories emerged in 2013 and continues to capture people's attention nationwide. Florida Man is one of the latest unique trends to come from the Sunshine State and contributes to Florida's reputation as a quirky place. Explanations for Florida Man center on Florida's Public Records Law, which is known as one of the most expansive open records laws in the country. All states and …

Cbd And Gluten-Free: Compliance Challenges And Regulatory Action In New Areas Of Food And Drug Law, Christine Abely

Florida State University Law Review

This Article examines the challenges of regulating new areas of food and drug law and promoting industry compliance by considering two case studies: the U.S. regulation of cannabidiol (CBD) products and that of gluten-free items. Gluten-free claims on packaged foods have been subject to a set of U.S. Food and Drug Administ ration rules since those rules became effective in 2014. This new regulatory standard has improved the ability of consumers who need to rely on gluten-free labeling for health reasons to do so. Some concerns remain, however, about the mislabeling of foods that legally cannot be termed as gluten-free …

Democracy Avoidance In Tax Lawmaking, Clint G. Wallace

Faculty Publications

The Tax Cuts and Jobs Act was the most significant tax law in more than three decades, but the strategy for getting it enacted included a variety of maneuvers to avoid public scrutiny. As a result, many taxpayers did not know how they would be affected until they filed their own tax returns more than a year later. This Article identifies this lack of transparency as part of a persistent pathology of avoiding and constraining democratic inputs and responsiveness in U.S. federal tax lawmaking. Indeed, some scholars and policy makers have sought to channel tax lawmaking away from democratically grounded …

Materializing President Biden’S “Clean Energy Revolution” Through Federal Land Acquisitions, Lisa Blitstein

University of Baltimore Law Review

No abstract provided.

Predict And Suspect: The Emergence Of Artificial Legal Meaning, Daniel Maggen

North Carolina Journal of Law & Technology

No abstract provided.

Reattribution, The Poison Pill And Inventorship, Dennis D. Crouch

Faculty Publications

Brian Frye's Right of Reattribution proposes a mechanism for loosening the strictures of attribution associated with creative works of authorship and giving the law of attribution a pro-property spin. Authors regularly receive attribution recognizing their authorship role. Frye transforms this norm of attribution into a fully alienable property right. An author would receive original rights of attribution, but those rights could then be sold or transferred to another person seeking accolades. This secondary transfer process is knows as reattribution. Frye recognizes that a right of reattribution would require congressional action since the current scope of attribution rights is limited by …

The Law Of License Plates And Other Inevitabilities Of Free Speech Context Sensitivity, William D. Araiza

Faculty Scholarship

No abstract provided.

Public Health And The Power To Exclude: Immigrant Expulsions At The Border, Sarah R. Sherman-Stokes

Faculty Scholarship

We are presently in the midst of a crisis at the U.S.-Mexico border, as Courts, and indeed the Biden Administration, are struggling to manage thousands of immigrants waiting to seek asylum in the midst of a global pandemic. Beginning in March of 2020, against the advice of public health experts, the U.S. Government closed the southern U.S.-Mexico border, disproportionately impacting would-be asylum seekers from Central America, who are now immediately expelled from the United States should they reach the border under a process known as “Title 42.” Not only do these expulsions lack a legitimate public health rationale, but they …

Civic Education In Circumstances Of Constitutional Rot And Strong Polarization Rot, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

This Essay argues that civic education is crucial to remedying what Jack Balkin, in The Cycles of Constitutional Time, diagnoses as “constitutional rot” in the United States. A twenty-first century civic education must meet challenges of polarization and growing diversity and inequality and equip people for forms of democratic participation necessary to the health of constitutional democracy. Some commentators have called the insurrection on January 6, 2021, a “Sputnik moment for teaching civics”—seeing a link between the whitesupremacist/conspiracy-theory mob’s actions and the failure to instill civic virtue in “We the People.” To be capable of spurring national reconciliation and renewal, …

Servitudes Done "Proper"Ly: Propriety, Not Contract Law, Elizabeth Elia

Faculty Scholarship

The law of servitudes has changed dramatically in the last hundred years. Legal scholars have been successful in documenting these changes in case law, but less successful in articulating a unified set of principles that guide the current law of servitudes. One explanation that received significant attention is the idea that efficient recording systems in the United States have liberated property owners from the constraints of traditional property laws disfavoring servitudes and have allowed these owners the broader freedoms of contract law. However, this explanation, and the sweeping common law reforms that flow from it, have not resonated with courts. …

The Legal Causes Of Labor Market Power In The U.S. Agriculture Sector, Candice Yandam Riviere

University of Chicago Law Review

Recent developments in law and economics have shown that labor market power is a pervasive antitrust issue contributing to earnings inequality and slowed economic growth. In the agriculture sector, workers—especially H-2A temporary agricultural workers—have consistently suffered from low, stagnating wages and poor working conditions. This Comment evaluates the extent of labor market power in the agriculture sector and how antitrust law and immigration-policy norms exacerbate labor monopsony. I show that the pervasiveness of labor monopsony is due, in part, to a conflict between antitrust law and immigration regulation. Specifically, I examine an immigration statute that allows temporary guest workers to …

The Iron Rule, Jacob Bronsther, Guha Krishnamurthi

Cardozo Law Review

No abstract provided.

Taking Exception To Assessments Of American Exceptionalism: Why The United States Isn’T Such An Outlier On Free Speech, Evelyn Mary Aswad

Dickinson Law Review (2017-Present)

One of the most significant challenges to human freedom in the digital age involves the sheer power of private companies over speech and the fact that power is untethered to existing free speech principles. Heated debates are ongoing about what standards social media companies should adopt to regulate speech on their platforms. Some have argued that global social media companies, such as Facebook and Twitter, should align their speech codes with the international human rights law standards of the United Nations (“U.N.”). Others have countered that U.S.-based companies should apply First Amendment standards. Much of this debate is premised on …

Critical Interviewing, Laila L. Hlass, Lindsay M. Harris

Utah Law Review

Critical lawyering—also at times called rebellious, community, and movement lawyering—attempts to further social justice alongside impacted communities. While much has been written about the contours of this form of lawyering and case examples illustrating core principles, little has been written about the mechanics of teaching critical lawyering skills. This Article seeks to expand critical lawyering theory, and in doing so, provide an example of a pedagogical approach to teaching what we term “critical interviewing.” Critical interviewing means using an intersectional lens to collaborate with clients, communities, interviewing partners, and interpreters in a legal interview. Critical interviewers identify and take into …

Rationing And Disability: The Civil Rights And Wrongs Of State Triage Protocols, Deborah Hellman, Kate M. Nicholson

Washington and Lee Law Review

The COVID-19 pandemic and the unprecedented natural disasters of 2020 remind us of the importance of emergency preparedness. This Article contributes to our legal and ethical readiness by examining state “Crisis Standards of Care,” which are the standards that determine how medical resources are allocated in times of scarcity. The Article identifies a flaw in the policy choice at the heart of the standards: the standards focus on saving as many lives as possible but, in so doing, will predictably disadvantage the ability of people with disabilities and racial minorities to access life-saving care.

To date, scholarly attention has focused …

Alternative Solutions For Government Intervention In Climate Crisis Markets: Price Gouging And The Pandemic Egg Market Case Study, S. Byron Frazelle

William & Mary Environmental Law and Policy Review

The cost of a thing is the amount of what I will call life which is required to be exchanged for it, immediately or in the long run.

The incredible, edible egg.

Fires in California, hurricanes along the Gulf, a worldwide pandemic—it is evident that the year 2020 was defined by great crises, most of which were direct results of or exacerbated by climate change. The effects of these crises on broader American society, in particular that of the COVID-19 pandemic, are just beginning to be realized. Nearly every aspect of American life has been impacted by the pandemic and …

Southern Harm: Analyzing The Criminal Enforcement Of Environmental Law In The Southern United States, 1983-2019, Joshua Ozymy, Melissa L. Jarrell

William & Mary Environmental Law and Policy Review

When violations of environmental laws involve significant harm or culpable conduct, the application of criminal enforcement tools is required. Yet, our understanding of how environmental laws have been criminally enforced historically in the Southern United States remains poor. Our goal is to analyze historical charging and sentencing patterns and show the broader themes that emerge in environmental crime prosecutions over time in the region. Through content analysis of all 2,588 criminal prosecutions resulting from U.S. EPA criminal investigations, 1983–2019, we select all 799 prosecutions occurring in the Southern United States. Results show that 44% of prosecutions focus on water pollution, …

"Very Complex Questions": Zoos, Animals, And The Law, Dana Mirsky

William & Mary Environmental Law and Policy Review

In Sulawesi, Indonesia—forty-five thousand years ago, an artist painted what is now the world’s oldest known cave painting—a life-size image of a wild pig. Forty thousand years later, the elite of Hierakonpolis, Egypt, housed elephants, hippos, and baboons in the world’s oldest known zoo. Today, individuals keep exotic fish, reptiles, and birds as pets while zoos and aquariums display some of the largest and rarest animals on the planet. The human fascination with wild animals is clearly not a new phenomenon, but how and why we keep wild animals have evolved over time. Zoos in particular have changed dramatically just …

Pushing The First Domino: Freeing The Whales In Canada, Luc Paul Bourgeois

LLM Theses

In 2019, the Canadian Parliament adopted Bill S-203, titled the Ending the Captivity of Whales and Dolphins Act [Whales Act], to phase-out the captivity of cetaceans – that is, whales, dolphins, and porpoises – mainly for entertainment purposes. This new law reflected scientific knowledge and signaled a shift in public attitudes relating to cetacean captivity. Undeniably, this piece of legislation raises many legal and normative questions. Drawing on the capabilities approach, espoused by Martha C. Nussbaum, this paper will explore the nature and impact of the Whales Act in the Canadian political and legal landscape, as well as the newly …

Free Speech Still Matters, Joel M. Gora

Faculty Scholarship

No abstract provided.