Digital Commons Network^™

Splitting The Statute: Severability As A Canon Of Construction Or Constitutional Concern?, Amy L. Moore

Law Faculty Scholarship

This Article examines the Supreme Court’s evolving severability doctrine and interrogates whether severability is best understood as a canon of statutory construction or as a constitutional limitation on judicial power. Tracing the doctrine from Marbury v. Madison through modern cases such as Champlin Refining Co., Carter Coal, INS v. Chadha, Alaska Airlines, Booker, and Seila Law, the Article demonstrates that the Court has oscillated between an interpretive presumption favoring preservation of legislative enactments and a structural concern about judicial lawmaking. It distinguishes between textual severability—excising unconstitutional statutory provisions—and application severability—limiting unconstitutional applications while preserving …

Civil Liability For Invasions Of Privacy: Whither Singapore?, Yu Han Lam

Research Collection Yong Pung How School Of Law

Intrusions upon privacy are becoming increasingly common in Singapore. Singapore has yet to establish a tort addressing this issue, although the SAL Law Reform Committee has proposed a tort of misuse of private information. Australia has also recently introduced a statutory tort of serious invasion of privacy. This article will argue for the need for a Singapore tort of intrusion upon seclusion, on top of the already proposed tort of misuse of private information, to cover more appropriately instances of intrusions upon privacy.

From Humanitarians To Patriots: The Decline Of International Adoption And The Turn To Domestic Prioritization, Karsen Kreidler

The International Law Review Association Student Forum

The world is getting smaller as globalization is leading to more connection and interdependence between countries than ever before. Businesses, ideas, and even people are being exchanged across countries. This can be seen in the development of international adoption, a complex legal issue that involves a balance of child’s rights, state sovereignty, and international law. International adoption has been an important facet of globalization for many decades, and has undergone certain developments and trends over the course of its history. Recently, international adoptions have drastically decreased, as several nations are adjusting their policies, including tightening or even completely banning foreign …

Home By Now? “Habitual Residence” And The Hague Convention On The Civil Aspects Of International Child Abduction, Emily Mcanally

The International Law Review Association Student Forum

The Hague Convention on the Civil Aspects of Child Abduction (“the Convention”) is a multilateral treaty signed in 1980 which aims “to secure the prompt return of children wrongfully removed to or retained in any Contracting State”; and to ensure mutual respect of the “rights of custody and access” between the contracting states. As of 2025, there are 103 signatories of the Convention who have committed to taking “all appropriate measures” and employing “the most expeditious procedures available” to ensure that children wrongfully within their territory can be returned home. Although the Convention has existed for nearly half a century, …

Immigrant Entrepreneurship: A Survey Of "Start-Up" & Investor Visa Programs And Their Effects, Candace Yuan

The International Law Review Association Student Forum

Entrepreneurship has positive economic benefits and allows for innovative progress within countries. Immigrants, specifically, are in a unique position to bring new perspectives, backgrounds, and ideas to their host countries, which makes them especially entrepreneurial. In particular, immigrants play key roles in their host country by starting businesses or making investments that lead to job creation, innovation, and increased national productivity. This broader phenomenon is known as Immigrant Entrepreneurship, where immigrants contribute to the economy of their host country by starting new businesses or investing. Immigrant entrepreneurship is a developing but relevant topic, as literature in this arena suggests that …

Masthead, Volume 47 (2025-2026)

Cardozo Law Review

No abstract provided.

Table Of Contents - Cardozo Law Review, Volume 47, Issue 1

Cardozo Law Review

No abstract provided.

Fairer Public Benefit In Copyright Law, Amanda Levendowski Tepski

Cardozo Law Review

In 1966, a court considered expressly whether a secondary use of copyrighted works served a public benefit. While public benefit has become a subfactor of the fair use doctrine, it remains undefined, uncodified, and undertheorized. Courts often invoked public benefit in pivotal cases involving novel technologies, from home video recorders to digital libraries to algorithms—but they did not need to. After the recent Supreme Court decision in Google v. Oracle, however, public benefit is unavoidable: The Court stated that “we must take into account the public benefits the copying will likely produce.” A qualitative analysis of key public benefit cases …

Beyond Democracy: How A Free Press Supports The Rule Of Law, Erin C. Carroll

Cardozo Law Review

Widespread agreement has existed for centuries that a free press is essential to democracy. But legal scholars have spent almost no effort thinking about why else we might need a free press. This article attempts to widen the aperture. It argues that as the free press is essential to democracy, it is just as essential to a separate value: the rule of law. Recognizing and investigating the connections between the free press and the rule of law is essential right now. It can help us discern how the press can create friction against the erosion of both rule of law …

Caremark's Politics, Itai Fiegenbaum

Cardozo Law Review

What propels the evolution of Delaware corporate law? In a series of persuasive articles, Professor Mark Roe explains Delaware corporate law developments as an effort to preempt federal intervention. If public outrage over corporate governance failures reaches Congress, federal lawmakers may impose reforms that undercut Delaware’s prominence and ultimately harm those that benefit from the prestige and lucre that come with it. To avoid this, Delaware courts strategically adjust doctrines to appear vigilant in protecting investors. Delaware’s adjudication of director oversight failures aligns with this account. In re Caremark, the seminal case renowned for its declaration of a proactive board-level …

From Matrimony To Autonomy: Divorce As A Fundamental Right, Karin Carmit Yefet

Cardozo Law Review

Liberal divorce is under assault. Yet this development—one that arguably may shape the everyday life of Americans more profoundly than nearly any other domain of state law—has elicited surprisingly little scholarly inquiry. Because divorce has long fallen within the province of states and hewed to the whim of state legislatures, restrictions on divorce have rarely inspired constitutional analysis. As a result, the constitutional architecture necessary to conceptualize—let alone resolve—the question of how divorce law intersects with fundamental rights remains strikingly wanting. Indeed, one of the enduring puzzles of constitutional scholarship is the diametrically opposed treatment of marriage and divorce. While …

Does The Pto Have The Power To Ask Where You Sleep At Night? Pamela Chestek, The Patent Act, And The Apa Say No, Jessica Manzon

Cardozo Law Review

Imagine this scenario: You apply for a trademark, following the longstanding practice of listing your business’s PO Box on the application. Days later, you receive a notice from the U.S. Patent and Trademark Office (PTO): Your application was rejected for failure to disclose your domicile address—a requirement imposed under the 2019 U.S. Counsel Rule. Having previously suffered harm from making your home address public, you are understandably reluctant to expose it again for something as routine as a trademark application. You stand firm in withholding your domicile address, citing privacy concerns. As a result, your application remains denied, and when …

Do Civil Penalties Punish? The Fbar Penalty And The Case For An Emboldened Excessive Fines Clause, Scott Oatkin

Cardozo Law Review

The Report of Foreign Bank and Financial Accounts (FBAR) regime authorizes the IRS to impose severe penalties—up to the greater of $100,000 or fifty percent of the account balance—for failure to report foreign bank accounts exceeding $10,000. While the Eighth Amendment protects Americans from “excessive fines,” circuit courts are split on whether the FBAR penalty constitutes a fine and is subject to constitutional scrutiny. Some courts have found that the FBAR penalty is wholly remedial and beyond the reach of the Excessive Fines Clause, but this Note argues that such an interpretation is inconsistent with the history and case law …

Disability-Related Misconduct And The Untapped Potential Of The Disparate Impact Theory, Kelly Cahill Timmons

Cardozo Law Review

Disabilities often manifest themselves in behavior that could be characterized as misconduct. Since the early days of the Americans with Disabilities Act (ADA), courts have struggled with how to treat disability-related misconduct in the workplace. In Raytheon Co. v. Hernandez, the Supreme Court indicated that terminating an employee for violating a neutral, generally applicable conduct rule is not disparate treatment because of disability. Instead, the Court suggested that concern about the effect of such a rule on a disabled employee should be addressed under the disparate impact theory of discrimination. In the years that followed, Congress enacted the ADA Amendments …

Extreme Prison Sentences: Legal And Normative Consequences, Melissa Hamilton

Cardozo Law Review

The article examines the phenomenon of extreme sentences—defined as those exceeding 200 years—in the federal criminal justice system, raising critical questions about their rationale, proportionality, and alignment with traditional theories of punishment. Through an empirical study of 55 such cases, the analysis highlights the role of mandatory minimums, cognitive biases, and an exclusionist mindset in driving these sentences. It critiques the normalization of extreme penalties and their implications for mass incarceration, deterrence, and human dignity.

The Advocate (Fall 2025), Lewis & Clark Law School

The Advocate

No abstract provided.

Richmond Law Magazine: Autumn 2025

Richmond Law Magazine

Danielle Stokes and the energy discussion

Beyond the page

The mentorship web

Redefining Law In China, Zeming Liu, Benjamin L. Liebman

Faculty Scholarship

Although there is a growing body of literature on the role of law under authoritarian regimes, scholars have paid little attention to authoritarian legal ideology or conceptions of legality in contemporary authoritarian states. This Article presents the first in-depth study of the Chinese Communist Party’s recent novel attempt to introduce and implement an official legal ideology under the banner of “Xi Jinping’s Thought on the Rule of Law,” one which aims both to create a definitive theory of law and to offer a guide to China’s legal development. We examine four principal components of this legal ideology: the theoretical definition …

Taxes And Tournaments, Alex Raskolnikov

Faculty Scholarship

What is the best way to reduce economic inequality? Economists, lawyers, political philosophers, and politicians have pondered this question for decades. Yet there is another group of savvy and highly motivated individuals who have been thinking about redistribution for just as long. Commissioners of the National Football League, the National Basketball Association, the National Hockey League, and Major League Baseball, together with team owners and player unions, have been inventing and reinventing ways to redistribute resources, and they continue to do so today. The same is true of the President of National Collegiate Athletic Association, along with the heads of …

De Minimis Copying: An Empirical Study, Jessica Silbey, Samantha Zyontz

Faculty Scholarship

In the internet age, the copyright de minimis defense has increased in relevance as copyright lawsuits (and IP generally) are more mainstream and infringement liability more widespread. This Article is the first empirical analysis of copyright de minimis defense cases, collecting and analyzing all such decisions since the mid-19th century. It traces the doctrine’s development over the past century and its evolution in the digital era, when copying has become even more ubiquitous but its triviality remains widely disputed. The Article’s aim is not only to map the de minimis defense to learn more about it doctrinally—asking when is copying …

Out From The Shadows: Party Documents In Chinese Courts, Benjamin L. Liebman, Eva Gao, Xiaohan Wu, Rachel E. Stern, Margaret Roberts

Faculty Scholarship

The Communist Party’s influence over the Chinese legal system is generally assumed to be behind the scenes, largely invisible to outside observers. Since General Secretary Xi Jinping came to power in 2012, there has been renewed attention within and outside of China to the relationship between the Communist Party and the legal system. Much of this recent writing has emphasized the degree to which Xi’s efforts to affirm Party superiority and break down barriers between the Party and the State reflects a profound shift in governance and a reversal of a decades-long effort to distinguish between Party roles and those …

Will Systematic Stewardship Save The Planet?, Zohar Goshen, Assaf Hamdani

Faculty Scholarship

The largest institutional investors have solidified their status as “universal owners,” holding almost eighty percent of the U.S. stock market. The growing influence of these investors over the companies they invest in has sparked optimism among scholars and activists that asset managers will use their clout to steer firms towards Environmental, Social, and Governance (ESG) objectives. But such optimism may be misplaced. Focusing on carbon emission reduction, we argue that universal owners lack the necessary incentives and competence to pressure corporations to lower emissions.

Universal owners market ESG investments with conflicting promises of “doing well while doing good.” The untenable …

The Trump Administration Reverses U.S. Position On Unrwa Immunities, Lori Fisler Damrosch

Faculty Scholarship

On April 24, 2025, the U.S. Department of Justice submitted a letter in a civil lawsuit that maintains for the first time that the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) is not immune from U.S. civil litigation. The letter reverses the position taken by the previous administration in the same lawsuitFootnote 2 and alters nearly eight decades of U.S. practice concerning the immunities of UN entities that are considered subsidiary organs of UN principal organs and thus part of the United Nations itself. Heretofore, the government stated that such organs are entitled …

Burdens Of Proof In Criminal Procedure, Eve Brensike Primus

Articles

The Supreme Court’s haphazard approach to allocating burdens of proof in criminal procedure has created a system in which constitutional rights can be rendered meaningless simply because defendants are required to prove things they cannot possibly know. Even though allocations of the burden of proof often drive litigation outcomes, the Court has failed to establish clear burden allocation structures for cases arising under the Fourth, Fifth, Sixth, and Fourteenth Amendments, leaving lower courts split about how to allocate the burdens. When the Supreme Court does allocate burdens, it often does so without explanation or consideration of key factors. Recent Supreme …

Measuring And Mitigating Drip Pricing Overcharge: Evidence From An Online Marketplace Experiment With A Digital Shopping Assistant, Benjamin Lu, Daniel Markovits, Andrew Miller, Rory Van Loo

Faculty Scholarship

We study how much drip pricing (hidden mandatory fees revealed after consumers have begun the buying process) raises prices paid for identical goods and whether an automated shopping assistant mitigates the effect. In a randomized online marketplace experiment (n = 1608) with real purchases of gift cards funded by a $15 endowment, we vary the initial and final presentation of the gift cards’ prices across 33 levels and randomly assign participants to an automated assistant that flags a lower-price identical option and links to it. Relative to transparent pricing, drip pricing increases the average price paid by up to a …

Localizing Public Order, Brenner M. Fissell

Faculty Publications

Public order offenses—public intoxication, sleeping outside, etc.—seem trivial, but they have enormous consequences for marginalized populations. These are the offenses that justify coercive police interactions, as well as entry into the procedural morass of the criminal legal system. Accordingly, these offenses have received extensive scholarly attention, with decades of research addressing their vagueness and their impact on urban communities of color. But no work has been done to survey how much of this conduct is criminalized and at what jurisdictional level—city or state.

This Article picks up that task, undertaking a comprehensive analysis of the criminal codes of the fifty …

Bridging The Fair Share Gap For Antibacterial Innovation: An Observational Analysis Of Antibacterial Revenues In The G7 And Eu27, Maple Goh, Matt Mcenany, Rachel Freeman, Max Newton, Aaron S. Kesselheim, Kevin Outterson

Faculty Scholarship

Background

Antimicrobial resistance (AMR) poses an important global health challenge, including insufficient investment in research and development. This study quantifies the required “fair share” contributions from the G7+EU27 countries for an effective set of pull incentives for antibacterial research and development.

Methods

Fair share targets within the G7+EU27 were calculated from GDP data and revenue targets from the literature, adjusted for inflation. Cefiderocol and ceftazidime-avibactam were selected as representative of key antibacterials. Revenues and volumes from IQVIA MIDAS data on these drugs were used to assess alignment with fair share targets. The study period was January 2015–December 2024.

Findings

The …

Performance Leads Governance: A Comment On Professor Tallarita’S Dual-Class Analysis, David J. Berger, Pierluigi Matera

Faculty Scholarship

The rise of dual-class stock structures in corporate governance has sparked intense academic, legal, and regulatory debate. In his recent contribution, Dual-Class Contracting, Professor Tallarita persuasively challenges some contemporary interpretations of contractarian theories by showing that dual-class structures do not reflect bespoke bargaining or firm-specific negotiation, but rather result from lawyer-driven standardization, social norms, and path dependency.

Drawing on Tallarita’s empirical findings, we argue that the reality of dual-class structures extends beyond governance formality. Specifically, we contend that investor behavior is driven not by structural governance ideals, but by corporate performance and mission alignment. Companies increasingly design governance structures based …

Reasoning From Injustice, Robert L. Tsai

Faculty Scholarship

In a series of lectures at Yale Law School, the Harvard political theorist Judith Shklar critiqued leading models of justice as overly abstract and lacking a realistic account of the social dynamics that perpetuate injustice. In this essay, Professor Tsai builds on Shklar’s account of injustice as a social phenomenon by offering a structural reading of key literary texts that explore the nature of legal injustice—from the Book of Job to Harriett Beecher Stowe’s Uncle Tom’s Cabin and Frederick Douglass’s The Heroic Slave. A close reading of these texts permits us to flesh out Shklar’s observations and “give injustice …

The Sports Parent's Predicament, Katharine B. Silbaugh

Faculty Scholarship

Youth sport enjoys a favored status in American culture, encouraged by policymakers and local communities, pursued by parents, and remembered through rose-colored lenses by adults. Most lawyers are familiar with Justice Harry Blackmun’s ode to the magical qualities of baseball in Flood v. Kuhn, in which he took the liberty of running through his own memories of scores of baseball legends.¹ Congress and presidents want children to continue in sport.² Many in the health field argue that sport is important because exercise is important, and sport is treated as the natural manifestation of exercise.³ An enormous number—perhaps …