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Table Of Contents - Cardozo Law Review, Volume 46, Issue 5

Cardozo Law Review

No abstract provided.

Bribery Law: Is Anything Left?, Richard W. Painter

Cardozo Law Review

Part I of this Article discusses the traditional understanding of bribery that existed at common law at the time of the Founding and presumably is embodied in the reference to bribery in the Impeachment Clause of the Constitution. Part I additionally discusses the Emoluments Clause of the Constitution, which prohibits holders of federal office from receiving gifts, offices, and emoluments from foreign governments without consent of Congress. Part II discusses recent judicial developments weakening the traditional notion of bribery. Specifically, Section II.A discusses how the Supreme Court has narrowed the definition of bribery in the federal criminal code. Section II.B …

The Supreme Court's Specious Code Of Conduct, James J. Sample

Cardozo Law Review

Congressionally imposed ethics enforcement would enhance the Supreme Court's exercise of constitutional powers by reducing the interference of improper personal motives during its factual and legal determinations. The Court has long recognized the self-evident truth that "no man can be a judge in his own case." The Framers recognized the limits inherent in human nature: humans are not angels. Accordingly, the Constitutional scheme of separated powers, as elucidated by Madison, "[does] not mean that these departments ought to have no partial agency in, or no control over, the acts of each other." Congress rightly has the constitutional means and motive …

From Manuscripts To Monopsonies: Revisiting United States V. Bertelsmann Se & Co. Kgaa, Matthew Petrouskie

Cardozo Law Review

United States v. Bertelsmann SE & Co. KGaA is a unique antitrust case that has reframed decades of precedent. In November 2020, Bertelsmann SE & Co. KGaA ("Bertelsmann"), the parent company of PRH, announced its plan to acquire S&S from its parent company, Paramount Global ("Paramount'). This announcement positioned the merged entity ("S&S + PRH") to control a third of the book market, the largest market share held by a publishing house. The following year, the Department of Justice Antitrust Division ("DOJATR") sued to block the merger. In United States v. Bertelsmann SE & Co. KGaA, the DOJATR's case …

The Chilling Effects Of Dobbs, Jonathon W. Penney, Danielle Keats Citron, Alexis Shore Ingber

Articles & Book Chapters

The Supreme Court’s evisceration of the federal constitutional right to abortion has raised the specter of criminal and civil liability for abortion providers and patients. Police and prosecutors have easy access to commercial reservoirs of intimate data. As individual accounts made clear in the wake of the Dobbs v. Jackson Women’s Health Organization decision, corporate surveillance of intimate life chilled expressive activities, such as searching for information about reproductive health and using period tracking apps. Health professionals did not feel safe to speak out about the impact of new abortion laws. Harassment and threats directed at abortion clinics and at …

Trade Integration, Petros C. Mavroidis

Faculty Scholarship

Accounts concerning the world trading system usually start the debate from the negotiation of the GATT. Trade integration before the First World War, though, had been quite remarkable, and the study of this era enriches our understanding of modern institutions in at least two ways. First, a number of GATT provisions had already been shaped during discussions following the advent of the League of Nations. Second, trade integration before the First World War did not manage to put a brake on belligerent behaviour, putting to rest the old Montesquieuan idea of doux commerce. Recent developments (like the invasion of …

Administrative Law And The Pandemic, Gillian E. Metzger

Faculty Scholarship

American administrative law’s relationship to change is, as they say, compli­cated. On the one hand, continual evolution has been an endemic feature of American administrative law. Doctrines such as Chevron deference to agency statutory interpretations were born, grew, and declined in just the period from the 1980s to today. On the other, the United States (US) Supreme Court regularly rejects such common law development in administrative law as illegitimate and insists that federal judges must adhere to the original terms of the 1946 Administrative Procedure Act (APA) and other statutes, unless the Constitution requires otherwise. And to this day scholars …

Working To Death: Labor Law In The 100 Year Life, Kate Andrias

Faculty Scholarship

Without significant changes in labor law, the 100-year life will almost certainly be defined by deep inequities. Working-class people, and workers of color in particular, are least likely to enjoy extended life spans. And if they do live longer, they are unlikely to enjoy a leisurely retirement in which they decide how they spend their extra years. Instead, they will face more toil and precarity. This chapter imagines a different future. It asks: What would the 100-year life look like if working people had a greater hand in shaping it? What would a legal regime look like that gave working …

The Right To Grow Old, Jamal Greene

Faculty Scholarship

This chapter considers the status of a constitutional “right to grow old” under the US Constitution. Understood as a “positive” right – ensuring a certain minimum quality of life to people as they face the challenges of aging – such a right may seem unavailing given the austerity in respect to such rights that many lawyers associate with the US constitutional tradition. This chapter shows this view to be premature, at least. Unlike the kinds of positive rights overtly rejected in prior cases, such as rights to certain forms of social welfare or to racial equality, a right to grow …

The 100-Year Life And The New Family Law, Naomi Cahn, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

This chapter reflects on the future of family law in an era of longer lives. Our analysis leads us to conclude that the 100-year life is indeed likely to have an impact on the nature, scope, and definition of family law, but that families will continue to function as the primary setting for intimacy and for caregiving and caretaking, whatever form those families take. Further, the importance to both individual and social welfare of family support throughout life points to a need for reform of current family law doctrine. The impact of longer life on doctrines regulating the relationship of …

Deepfakes In Domestic And International Perspective, Jane C. Ginsburg, Graeme W. Austin

Faculty Scholarship

Have you always (or ever) yearned to produce your own recording of Elvis Presley singing great baritone arias from Italian opera? Or to make a movie starring Nicole Kidman as Lady Macbeth? Or a videogame featuring the bully who tormented you in high school suffering repeated tortures worthy of the Christian martyrdoms recounted with gusto in The Golden Legend? You can fulfill all these wishes, and more, thanks to the AI technology enabling the creation of “deepfakes” — known in legal documents as “digital replicas” — capable of simulating the visual and vocal appearance of real people, living or …

Political Threads In Legal Tapestry: A Computational Analysis Of Executive Branch Legal Interpretation, 1934–2022, Reilly S. Steel

Faculty Scholarship

How does the push and pull between law and politics shape the work of executive branch lawyers charged with providing “neutral” interpretations of the law? To shed light on this longstanding question, this Article undertakes the first large-scale computational analysis of legal interpretation in the executive branch of the United States federal government. Using a new dataset comprised of the texts of 12,879 pages of opinions issued by the Office of Legal Counsel (OLC) in the Department of Justice (DOJ), I use machine learning methods to explore markers of partisanship and ideology in these high-profile executive branch decisions.

Several important …

Mda At Your Service: Questions About Dental Insurance Participation, Kristin Johnson Dds

The Journal of the Michigan Dental Association

This article by the MDA membership Chair Kristin Johnson and the Michigan Dental Association (MDA) Department on Membership addresses common questions from dental professionals. It highlights the MDA's endorsement of PPO Negotiation Solutions to help members maximize profitability through insurance network participation and fee negotiation.

The MDA also provides guidance on hiring associates and their network participation, emphasizing the importance of understanding patient base and practice goals. Furthermore, the document outlines the MDA's resources for patient inquiries on water fluoridation, including talking points and online materials. Information on MIOSHA regulations and compliance within dental practices is also available through the …

Dentistry And The Law: What Causes A Lara Investigation?, Daniel Schulte Jd

The Journal of the Michigan Dental Association

This "Dentistry and the Law" column by MDA Legal Counsel Dan Schulte addresses the process by which the Michigan Department of Licensing and Regulatory Affairs (LARA) initiates investigations against dental professionals. He explains that most investigations begin with a filed allegation, which can come from various sources, including patients, ex-employees, insurers, and other dentists.

LARA is required to review all allegations and generally needs authorization from the Board of Dentistry to proceed with an investigation, unless immediate jeopardy exists or the licensee has a history of substantiated allegations or significant malpractice settlements. The column highlights that LARA may possess more …

Mda Services: Get Help To Take The Pain Out Of Regulatory Compliance, Reva Darling

The Journal of the Michigan Dental Association

This article from MDA Services highlights the challenges dentists face with regulatory compliance and the MDA's efforts to endorse companies that offer solutions. It emphasizes that MDA-endorsed companies, such as Eagle Associates, provide HIPAA compliance systems, OSHA safety programs, and OIG compliance programs with policy manuals, training, and ongoing support. The article also discusses HIPAA-compliant email solutions offered by iCoreConnect (iCoreExchange) and electronic prescribing software (iCoreRx) that integrates with MAPS, both available to MDA members at discounted rates.

Evaluating Accuracy In Legal Research: A Comparative Analysis Of Traditional And Artificial Intelligence-Driven Methods, Lily Collins

Honors Theses

Legal professionals are challenged with performing accurate legal research to meet professional standards. The use of artificial intelligence (AI) presents a potential for enhanced efficiency. However, knowledge and process gaps exist, questioning the accuracy of results generated by AI. The uncertainty of accurate results poses a risk for poor outcomes for all stakeholders. This thesis aimed to quantitatively measure the accuracy of AI legal research in comparison to traditional legal research. Accuracy and relevance were measured by analyzing case precedent results using three legal research platforms, Westlaw, Nexis Uni, and Chat GPT. The three platforms represented traditional and AI-driven research, …

The Effect Of Non-Profit Organizations On The Passage Of Climate Change Legislation In Connecticut, John-Henry Burke

Honors Scholar Theses

Connecticut has a long history of climate action. In this study, I looked into the effect that non-governmental organizations have on the passage of climate change legislation in Connecticut. Eighteen different climate policy stakeholders, including legislatures, non-governmental organization (NGO) staff members, youth activists and state employees were interviewed to gain their perspective on how non-profits forward climate initiatives. I found that non-profit organizations do have a significant impact on the passage of climate change legislation in Connecticut by working as providers of information to legislators and mobilizers of constituents. This impact can be limited by various political factors.

Redistricting And The Origins Of The Good Faith Presumption, Leonard C. Brahin

Barry Law Review

Evidentiary and substantive presumptions are a well-established tool that courts employ when addressing a variety of legal problems. These presumptions streamline litigation, avoid debate over minor disputes, and ensure that the most important issues can be addressed. But these same presumptions just as frequently close the courthouse doors on meritorious claims and preemptively shut down litigation where a disputed issue exists.

One area this occurs is redistricting. In the last fifty years, the Supreme Court of the United States has expanded its substantive presumptions in redistricting matters to permit facially discriminatory redistricting plans. By invoking the presumption of good faith, …

How The Law Makes Smart Cities Unaccountable, And How To Start Making It Better: Lessons From Sidewalk Toronto, Beatriz Botero Arcila

Vanderbilt Journal of Entertainment & Technology Law

Sidewalk Toronto was the flagship project of Sidewalk Labs, the smart-city subsidiary of Google’s parent company, Alphabet. It was the largest smart-city project planned in North America or Europe. It is also the most notable failure of such a project to date.

Smart city projects and the technologies behind them improve the delivery and efficiency of city services, produce data to help local policymakers learn from their policy interventions and bring several economic development benefits. At the same time, they can create important risks to fundamental rights and enhance the capabilities of corporate and public surveillance. When Sidewalk Toronto was …

Investigating Exoneration Patterns Among Juveniles, Kristin Mahan

Electronic Theses and Dissertations

Exoneration from crime has been studied among adults, but exoneration of juveniles (i.e., persons under age 18) has not been analyzed as a separate entity, despite distinct legal systems and developmental considerations. Wrongful conviction, while not always indicative of innocence, devastates lives of convicted individuals and their families, while increasing public mistrust and sometimes failing to convict truly guilty individuals. This devastation, as well as vulnerability to wrongful conviction, is significantly increased for youth who miss out on crucial developmental years, milestones, and opportunities.

In the current study, I examined differing and intersecting contributors (i.e., individual characteristics, crime characteristics, legal …

The Founders’ Common Law And Bruen’S Text, History, And Tradition Test: From History ‘Lite’ To History Right, Saul Cornell

Buffalo Law Review

No abstract provided.

The Meaning Of Lawful Self-Defense: State Criminal Law And The Scope Of The Second Amendment, Shira Feldman, Tess Fardon

Buffalo Law Review

No abstract provided.

In Keeping With Heller, Kevin Schascheck

Buffalo Law Review

Evaluating the constitutionality of modern firearm regulations under the Second Amendment requires recourse to historical evidence under Bruen v. New York State Rifle and Pistol Association. Generally, the government bears the burden to demonstrate that modern firearm regulations are consistent with the nation’s historical traditions. But the Supreme Court’s earlier opinion in District of Columbia v. Heller stated that certain categories of firearm restrictions are longstanding and thus presumptively lawful. And yet, litigants are inviting courts to reject this presumption, arguing that presumptively lawful regulations should be subject to the same historical test as presumptively unlawful regulations.

Courts should reject …

Gun Regulation After Loper Bright: The Statutory Interpretation/Policymaking Continuum, William D. Araiza

Buffalo Law Review

The Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, rejecting “Chevron deference” to administrative agency interpretations of their organic statutes, has caused great uncertainty about the fate of federal regulation. This Essay considers that question in the context of federal gun regulation. Using examples of regulatory actions taken by the Bureau of Alcohol, Tobacco, and Firearms, it illustrates the wide range of functions reflected in agency actions—in particular, how those actions can span the spectrum from pure statutory interpretation to pure policymaking, with hybrid way stations between those two extremes.

The variety of functions agencies perform suggests …

The Affordable Care Act: Analyzing Rates Of Healthcare Claim Denial, Lauren Sitter

Political Science Theses and Capstones

The United States healthcare industry is an integral aspect of every American’s life. The Affordable Care Act (ACA) in 2010 reformed the healthcare system by expanding coverage to millions of Americans and eliminating claim denials due to pre-existing conditions. It requires participating states to submit transparency data. Despite these reforms, coverage denials continue and vary by plan category, metal level, and among different states. I analyze data from The Kaiser Family Foundation (2023) and The CommonWealth Fund to test the correlation between claim denial and a variety of variables, including state political culture, plan type, metal level, and out-of-pocket costs. …

Breaking The Black Box: The Impact Of The 2023 Changes To The Japanese Penal Code On Rape, Lee Smith

Washington International Law Journal

In 2017, the Japanese penal code was amended to broaden protections for victims of sexual assault. However, pressure mounted for further protections after several decisions on cases involving rape shocked the nation in 2019. In 2023, the penal code was amended again including to raise the age of consent to 16 and broaden the definition of rape to include nonconsensual sexual acts. This comment examines the history of rape law in Japan, introduces challenges that victims of sexual assault face when trying to seek justice, and analyzes the first cases determined under the amended code. Finally, it looks to the …

Koxinga: The Catalyst Of Taiwan's Current Geopolitical Conflict, Lauren Masterson

Honors College Theses

Taiwan, strategically located in the South China Sea, has long faced challenges in asserting its sovereignty. While much of the existing scholarship focuses on the 20th-century conflict between the Chinese Nationalist Party (Kuomintang) and the Chinese Communist Party, this study turns to the mid-17^th century to trace the roots of the island’s contested status. It centers on Zheng Chenggong (1624–1662), also known as Koxinga, who established the Ming loyalist Kingdom of Tungning in Taiwan (1661–1683) following the fall of the Ming dynasty. By examining Koxinga’s actions and the legacy he left behind, this research draws parallels between his retreat …

Hunting For Employees, Employers, Independent Contractors, Dependent Contractors And Other Figments Of The Legal Imagination, Brian Langille, Ben Mayer-Goodman

Dalhousie Law Journal

This paper exposes the falsity of a fundamental assumption of labour law—namely that there is such a thing as an “employee” or “employer” or “independent contractor” and that such legal entities can be “found” through an examination of the facts. As we shall demonstrate, once we have discarded the flawed assumption that “employees” or “employers” (or “independent” or “dependent contractors,” or “worker,” or any other legal creature) exist in the real world, we see that labour law’s purpose as it is currently widely understood is also fundamentally flawed. It is from this standpoint that a new conceptual framework for—and normative …

Nourishing The Living Tree: Vincent Macdonald And His Constitutional Thought, Preston Lim

Dalhousie Law Journal

Since the enactment of the Canadian Charter of Rights and Freedoms, Canadian judges have increasingly approached the Constitution through a living constitutionalist lens, adapting the Constitution to contemporary realities and treating the text as but one interpretive modality alongside purpose and context. The Supreme Court has rooted this living constitutionalism in the Judicial Committee of the Privy Council’s judgment, Edwards v Attorney General of Canada, wherein Lord Sankey introduced the metaphor of the “living tree.” Justice Robert Sharpe and Professor Patricia McMahon have suggested that the “living tree metaphor remained a forgotten footnote until 1982.” Indeed, more formalist approaches towards …

Legal Issues And Outcomes Of A Medical-Legal Partnership For Cancer Patients, Allison B. Dowling, Abigail Sweeney, Megan E. Gordon, Lisa Kessler, Deborah Perry, Vicki W. Girard, Shreya Kalra

Georgetown Law Faculty Publications and Other Works

The medical-legal partnership (MLP) model is a multidisciplinary intervention with demonstrated success in addressing health-harming legal needs. We analyzed initial data from the Georgetown University Health Justice Alliance’s Cancer Legal Assistance and Well-being Project (Cancer LAW), an MLP between Georgetown University and MedStar Health serving cancer patients receiving care at an urban, safety-net hospital in Washington, D.C. The sample included 81 patients, who had an average of two legal issues, most commonly in the areas of Social Security, estate planning, housing, and health insurance. Data collected during legal representation captured both financial and non-financial benefits to patients. Patients who responded …