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Table Of Contents - Cardozo Law Review, Volume 42, Issue 7

Cardozo Law Review

No abstract provided.

Introductory Essay For The Issue Devoted To The Appointment Of Amy Coney Barrett To The U.S. Supreme Court, David Rudenstine

Cardozo Law Review

No abstract provided.

Court Packing Is A Chimera, Brian L. Frye

Cardozo Law Review

The dream of the 1930s is alive in Washington. Democrats see Republicans hemorrhaging voters as Trump struggles with the economy and the pandemic and are salivating at the prospect of retaking not only the White House, but also the Senate. Of course, you should never sell a bearskin until you’ve caught the bear. But even a blowout victory can’t get Democrats the prize they really want, a Supreme Court majority. So, in back-to-the-future fashion, many progressives are pushing the idea of court packing. After all, in politics, rules are made to be broken.

Retiring Life Tenure: On Term Limits And Regular Appointments At The Supreme Court, Tyler Cooper, Amanda Dworkin, Dylan Hosmer-Quint, Amanda Pescovitz

Cardozo Law Review

No abstract provided.

Court Packing As An Antidote, Rivka Weill

Cardozo Law Review

Court packing is considered the nuclear weapon that may unleash total chaos on the American constitutional system. Even in the face of a highly controversial appointment process to the U.S. Supreme Court during the 2020 presidential election season, scholars caution against the wisdom and utility of resorting to court packing. This Essay makes three bold arguments: First, a President may nominate a candidate to the Supreme Court at any time, including their last year in office; this is true both empirically and normatively. It is the Senate’s responsibility to ensure the people’s will is not frustrated. Second, never since the …

Against Court Packing, Or A Plea To Formally Amend The Constitution, Jill M. Fraley

Cardozo Law Review

No abstract provided.

Contra Publius: The House As Cure For The Complaisance And Venality Of The Senate, Sam Solomon

Cardozo Law Review

No abstract provided.

The Remaking Of The Supreme Court: Implications For Climate Change Litigation & Regulation, Mark P. Nevitt

Cardozo Law Review

No abstract provided.

Ruth Bader Ginsburg: An Appreciation, Jonathan L. Entin

Cardozo Law Review

Ruth Bader Ginsburg was a unique figure in American history: as Chief Justice Roberts put it, she was “a jurist of historic stature.”1 She was that, of course, but she was so much more. If she had never served on the Supreme Court, Ruth Bader Ginsburg would still have been a person of historic stature. She was a leading legal scholar who wrote major works about procedure, jurisdiction, comparative law, and constitutional law. And she was the architect of a litigation campaign that resulted in a series of Supreme Court rulings that fundamentally transformed the law of gender discrimination.

Supreme Court Appointments In Presidential Election Years: The Case Of John Hessin Clark, Jonathan L. Entin

Cardozo Law Review

No abstract provided.

Amplified Speech, Erin L. Miller

Cardozo Law Review

This Article introduces the concept of amplification into First Amendment law. Amplification, or the size of the audience reached by speech, lies at the heart of many contemporary free speech struggles. Yet the concept is surprisingly absent as a category of analysis from constitutional doctrine and virtually undiscussed in legal scholarship. Amplification deserves its own set of legal rules and doctrines, because the right to amplify one’s speech serves the two core types of First Amendment interests—those of audiences and those of speakers—differently than the right to choose the content of one’s speech. The higher the degree of amplification, the …

Racial Recognition, Eldar Haber

Cardozo Law Review

No abstract provided.

The "Right To Control" Theory Of Fraud: When Deception Without Harm Becomes A Crime, Tai H. Park

Cardozo Law Review

It is supposed to be well established that mere deceit is insufficient to convict someone of fraud and that there must also be proof the defendant intended to cause harm to a victim’s “money or property.” Yet, for many decades, federal prosecutors have persisted in pushing expansive theories of criminality to encompass all forms of deceptive behavior, even where the defendants intended no pecuniary harm. The so-called “right to control” theory of fraud is arguably the most extreme (and successful) of these theories. It holds that one’s “right to control” his or her assets qualifies as “property.” Thus, even if …

The Article Iii Publication Power And The Foreign Intelligence Surveillance Court, John Langford

Cardozo Law Review

The Framers vested “the judicial Power of the United States” in independent courts so that they may protect individual liberty and serve as a check on the legislative and executive branches. The judicial power, however, is narrow and not self-executing. As Chief Justice Marshall put it, it is merely the power “to say what the law is.” Federal courts cannot raise armies or pay money to enforce their decrees. Having neither force nor will, courts must instead rely on cultivating public support to secure the authoritative legitimacy necessary to effectuate their judgments.

But what happens when the executive branch asserts …

A Clarified Standard? A Case Note On Monasky V. Taglieri, Rebecca Jacobson

Cardozo Law Review

No abstract provided.

Assumption Of Risk In Consumer Contracts And The Distraction Of Unconscionability, Zahra Takhshid

Cardozo Law Review

For years, courts have struggled to determine when to enforce exculpatory clauses that would prevent personal injury victims from availing themselves of tort remedies under the doctrine of express assumption of risk. In the past, when courts declined to enforce these clauses, they did so on the ground that enforcing such a waiver for the activities in question was “against public policy.” Recently, however, many courts have addressed the issue through the contract doctrine of “unconscionability.” This change in focus has subtly but importantly altered the enforceability inquiry by emphasizing the conditions under which the plaintiff agreed to the contract, …

Suffering Uncompounded: Civilizing Healthcare Standards For Gender Dysphoric Prisoners, Julian S. Cohen

Cardozo Law Review

No abstract provided.

Your Location Will Determine Your Right To Physician Assisted Suicide, Zoe Neefe

Cardozo International & Comparative Law Review (CICLR) Blog

Do our rights stop at death? Individuals diagnosed with terminal illnesses are forced to think about not just when but how they are going to die. It is no surprise that some terminally ill patients cease to continue taking medication that would otherwise prolong their lives. Yet opinions become very divided when individuals seek assistance in forgoing life altogether. Physician-assisted suicide (PAS) is known by various titles across the world. In general, PAS is when a patient requests assistance in dying, without the doctor being civilly or criminally liable. Countries seeking to legalize PAS must strike a balance between the …

Cardozo Law News Brief: September 17, 2021, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2021

Featured Faculty:

• Kate Shaw
• Samuel Weinstein
• Anthony Sebok
• Pamela Foohey
• Peter L. Markowitz
• Lindsay Nash
• Deborah Pearlstein

Campus News:

• Floersheimer Center Hosts Two Panels with Focus on Afghanistan and 9/11

Events:

• Floersheimer Center Annual Supreme Court Term Preview

Floersheimer Center For Constitutional Democracy Hosts 9/11 Panels, Benjamin N. Cardozo School Of Law

Cardozo News 2021

The Floersheimer Center for Constitutional Democracy held two virtual events just before the 9/11 anniversary last week, focusing on the U.S. response to 9/11 and how it reshaped the law of war and counterterrorism.

Week Of September 13, 2021 - September 17, 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)
• Cardozo Entertainment Law Society
• Cardozo Federalist Society

Week Of September 6, 2021 - September 10, 2021, Benjamin N. Cardozo School Of Law

Today at Cardozo 2021

Events occurring this week have been sponsored by:

• Cardozo Federalist Society
• Floersheimer Center for Constitutional Democracy

Cardozo Law News Brief: September 3, 2021, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2021

Featured Faculty:

• Kate Shaw
• Edward Zelinsky
• Pamela Foohey
• Alexander A. Reinert
• Samuel Weinstein
• Ngozi Okidegbe
• Christopher Buccafusco
• Ekow N. Yankah

Campus News:

• Cardozo's Faculty Ranks 33rd in Updated Leiter Report Rankings

Events:

• Twenty Years Later: The Path of the Law Post-9/11
• Floersheimer Center Annual Supreme Court Term Preview

Reallocating Redevelopment Risk, Michael C. Pollack

Articles

Scores of cities across the country face devastating financial crises, and the COVID-19 pandemic has brought even more to the brink. But economically distressed municipalities have few places to turn for help. Saddled by rising unemployment, weak tax bases, and state law limitations on deficit spending and debt assumption, they generally cannot spend their way out. And as conditions deteriorate, mobile capital and labor move to greener pastures, further hollowing out the cities they leave behind. With state and federal lifelines tenuous at best, offers by large developers to redevelop an area of the city can thus appear to be …

Rethinking Immigration Enforcement, Peter L. Markowitz

Articles

As the nation turns the page away from the dark chapter of President Trump's relentless assault on immigrants, it is time to take stock of the nation's unprecedented immigration enforcement regime. During its relatively short existence, the Immigration and Customs Enforcement agency (ICE) has deported more than twice as many people as were deported in the entire previous history of the United States. The human and fiscal costs of ICE's mass deportation agenda are astronomical, and there is almost universal agreement across the political spectrum that the United States' immigration enforcement apparatus is badly broken. That, however, is where the …

Zoning And The Cost Of Housing: Evidence From Silicon Valley, Greater New Haven, And Greater Austin, Robert C. Ellickson

Cardozo Law Review

Municipal zoning, shockingly, may be the most consequential regulatory program in the United States. This Article develops metrics for measuring the extent to which a locality’s zoning practices are exclusionary, that is, limit construction of least-cost housing. It applies the metrics to actual zoning ordinances and zoning maps, materials that legal scholars have seldom closely appraised. The municipalities chosen for study lie in three metropolitan areas, the ones listed in the Article’s title. Of the three, zoning in Greater Austin, one of the fastest growing metropolitan areas in the United States, is—to no one’s surprise—the most conducive to housing development. …

Legalizing Undocumented Work, Jennifer J. Lee

Cardozo Law Review

No abstract provided.

Winning, Defined? Text-Mining Arbitration Decisions, Charlotte S. Alexander, Nicole G. Iannarone

Cardozo Law Review

Who wins in consumer arbitration? Historically, this question has been nearly impossible to answer, as most arbitration proceedings are a private black box, and arbitral forums release only limited summary statistics. One exception is the Financial Industry Regulatory Authority (FINRA), which arbitrates virtually all disputes between investors and stockbroker-dealers, and makes all of its nearly 60,000 written arbitration decisions publicly available in an online database. This Article is the first to use computational text analysis tools to study these decisions, and to construct a measure of the claimants’ win, loss, and settlement rates. It is the first installment in an …

Rethinking Prosecutorial Discretion In Immigration Enforcement, Nicole Hallett

Cardozo Law Review

Prosecutorial discretion in immigration enforcement stands at a crossroads. It was the centerpiece of Obama’s immigration policy after efforts to pass comprehensive immigration reform failed. Under the Trump administration, it was declared all but dead, replaced by an ethos of maximum enforcement. Biden has promised a return to the status quo ante, but the record of using prosecutorial discretion to accomplish humanitarian goals in immigration enforcement under Obama was, at best, mixed. Moreover, it is unclear whether Biden can depend on the availability of programs such as Deferred Action for Childhood Arrivals (DACA), Obama’s signature prosecutorial discretion program. Although the …

Fighting Chance: Conflicts Over Risk In Social Change Litigation, Gwendolyn Leachman

Cardozo Law Review

Drawing on a case study of marriage equality litigation, this Article examines how practice setting affects the construction of risk and the emergence of conflict in social change litigation. Although private law firms often work collaboratively with social movement organizations to pursue common goals, conflicts also emerge when movement groups oppose “risky” private litigation which could imperil the movement’s ongoing impact litigation strategies. How do attorneys in private firms and social movement organizations vary in their framing of risk in social change litigation? Under what conditions does that variation lead to conflict? The findings show that movement-based LGBT rights attorneys …