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Colonizing By Contract, Emmanuel H. Arnaud

Articles

Since 1898, Puerto Rico has been a territory of the United States, meaning that Congress wields plenary power over the Island. Although scholars have highlighted the history and some modern manifestations of this power, conversations about how plenary power affects the territories have largely ignored constitutional criminal procedure.

This Article is the first to center the territory’s criminal legal system within the broader debate over the exercise of plenary power. In doing so, it fills significant gaps in the constitutional and criminal law literature on the territories by uncovering how the federal government’s plenary power affects local criminal adjudication. This …

Two Forms Of Formalism In Contract Law, Gregory Klass

Cardozo Law Review

Formalism in contract interpretation has had many defenders and many critics. What lawmakers need, however, is an account of when formalism works and when it does not. This Article addresses that need by providing a general theory of contract exposition and differentiating between two forms of formalism in contract law. Formalities effect legal change by virtue of their form alone, thereby obviating interpretation. Examples include “as is,” the seal, and sometimes contract boilerplate. Evidentiary formalism, in distinction, limits the evidence that goes into interpretation. Plain meaning rules are an example of evidentiary formalism. This Article provides a detailed analysis of …

Carceral Apartheid: Centering State Responsibility For The Racial Order, Ion Meyn

Cardozo Law Review

Racial harms are often attributed to private ordering. But the power of White communities to subordinate communities of color is not a constellation of private acts independent of state violence. When scrutinized, acts of racial exclusion, segregation, and violence persist to the extent they are aligned with the political order and backed by the state’s violent guarantee. The knowledge that any resistance to these acts will be met with state retribution bristles in the background.

There are different ways in which state violence produces and reproduces the racial order: (1) direct violence; (2) a violent guarantee backing communal acts of …

A Distinct System For Presidential Succession On Inauguration Day: Getting The Most Out Of Section 3 Of The Twentieth Amendment, Brian C. Kalt

Cardozo Law Review

The current presidential-succession statute uses the same line of succession for every conceivable situation. But there are many different types of potential succession scenarios. Succession need not—and should not—be governed by a one-size-fits-all approach.

Before the Twentieth Amendment was ratified in 1933, the Constitution authorized Congress to provide only for double vacancies during the term, when there already is a President and Vice President. Recognizing this gap, Section 3 of the Twentieth Amendment empowered Congress to cover inauguration-day double vacancies: at the outset of a term, when nobody is available to become President or Vice President in the first place. …

Human Capital Disclosure & Corporate Governance: The New Evidence, George S. Georgiev

Cardozo Law Review

This Article explores the evolution of human capital disclosure—firm-supplied information about various workforce-related matters—as a factor in contemporary corporate governance. Regulatory and nonregulatory developments from recent years have upended longstanding practices and generated extensive new evidence. Most notably, the Securities and Exchange Commission (SEC) adopted a human capital management (“HCM”) disclosure mandate in 2020, which, though long overdue, was criticized from the outset for its modest scope and lax design. In the meantime, courts have taken a renewed interest in board of directors’ oversight responsibilities in a number of areas, including HCM, while labor’s power has unexpectedly increased in some …

Predetermined Event Wagering And Betting On The Past, Emmaline Friederichs

Cardozo Law Review

The newfound freedom of states to legalize sports betting following the demise of the Professional and Amateur Sports Protection Act in 2018 has led to rapid growth of the sports betting market. In an attempt to further capitalize on the appetite for sports wagering, states and sportsbooks have recently started to expand their offerings by opening betting lines on entertainment award shows. This move, paired with WWE’s recent interest in entering the market, has raised concerns that predetermined events are particularly vulnerable to event manipulation and betting using insider information. This Note argues that the current state regulatory schemes are …

A One-Egg Wonder: Working To Cure Judicial Gender Bias And Increase Access To Pre-Embryos For Infertile Parties, Nicole Marks Kaufman

Cardozo Law Review

The first live birth of a child conceived from in vitro fertilization (“IVF”) happened in 1978. Today, over eight million children have been born through IVF procedures. The first dispute over the resulting pre-embryos was in 1990 when the Tennessee Supreme Court outlined a balancing approach with a presumption favoring non-use of the pre-embryos for courts to follow when resolving these matters. Numerous states have taken differing approaches—some have taken a contractual approach, others an approach requiring contemporaneous mutual consent before there can be a departure from the status quo, and very few state legislatures have directly addressed how to …

“Split My Award With Whom?” A Case For Plaintiff Incentive Awards And Plaintiff-Attorney Fee Splitting In Class Action Lawsuits, Ilana Kruchenetskaya

Cardozo Law Review

Named plaintiffs are the heart of class action lawsuits—without them, there is no class action. To motivate these individuals to be the face of the class and compensate them for their role in the litigation process, courts typically approve named plaintiff incentive awards when such awards are included in settlement offers. Recently, however, the Eleventh Circuit held that these awards are prohibited under purported Supreme Court precedent from the late 1800s. This decision undermines the future of class actions by removing any incentive individuals may have in taking on the extra work and scrutiny of bringing a class action lawsuit. …

Cardozo Law News Brief: November 22, 2024, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2024

Featured Faculty:

• Lela Love
• Stewart Sterk
• Christine (Young Ran) Kim
• Michael Pollack
• Michel Rosenfeld
• Edward Zelinsky

The Role Of Mediation In Resolving First Amendment Disputes, Particularly In Cases Involving Freedom Of Speech Or Religion, Brian Lakhtarnik

Cardozo Journal of Conflict Resolution (CJCR) Blog

The First Amendment of the United States Constitution reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

In other words, all U.S. residents are guaranteed freedom of expression, religious practices, and free assembly. This article explores how Alternative Dispute Resolution could be applied to First Amendment conflicts, particularly in disputes over freedom of speech.

The print edition of the issue has also been …

A Boutique Startup That Balances Creativity With Flexibility, Benjamin N. Cardozo School Of Law

Cardozo News 2024

Founding and serving as a managing partner at her own boutique law firm—ESCA—was not something that Francesca Witzburg ’14 planned during or immediately after her years in law school. She aspired to pursue a career in big law and eventually make partner.

Arrest The President, Hypothetically, Leo Lombardi

Cardozo International & Comparative Law Review (CICLR) Blog

By what authority does one dare direct that famous phrase, “j’accuse!” at the state’s supreme executor of law? Is there a mechanism, through which a citizen can hold a national government to account? Can the citizen's arrest serve as a symbolic insistence that international humanitarian law be enforced? International humanitarian law is coming to be defined by the dereliction of duty. Where a rules-based international order once stood as a lofty ideal, the reality of a nuclear-armed world now looms over the field’s failures.

This post was originally published on the Cardozo International & Comparative Law Review on November 14, …

Central Park Five Defamation Suit And Its Implications For Trump, Sarah Weiner

Cardozo Journal of Equal Rights and Social Justice (ERSJ) Blog

Yusef Salaam, Raymond Santana, Kevin Richardson, Antron Brown, and Korey Wise–collectively known as the “Central Park Five” or the “Exonerated Five”–were between the ages of fourteen and sixteen when they were accused and tried for the rape and assault of Trisha Meili in Central Park in 1989.  While they were convicted and served considerable jail time, they maintained their innocence throughout, foregoing potential early release and parole. The Five were exonerated years later when another man, Matias Reyes, confessed and his DNA matched the profile of the true culprit.  Further, much of the police procedure and ensuing media circus surrounding …

Cardozo Law News Brief: November 1, 2024, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2024

Featured Faculty:

• Matthew Wansley
• Luis C. Calderon Gomez
• Jessica Roth
• Emmanuel H. Arnaud
• Rebekah Diller
• Young Ran (Christine) Kim
• Alexander Reinert
• Gabor Rona
• Michel Rosenfeld
• Anthony Sebok
• Edward Zelinsky

Campus News:

• Associate Dean of Graduate, International & Online Programs Val Myteberi Speaks to LLM Guide About How LL.M. Programs Are Focusing on Experiential Learning

Taxation’S Limits, Luís C. Calderón Gómez

Articles

Countless pages have been devoted to the question of why everyone should pay tax, yet its opposite has gone largely unnoticed: why should some people and organizations not pay tax? Our tax system exempts from ordinary income taxation a wide and diverse array of people and organizations engaged in significant economic activity—from parents providing childcare services for their family to consular activities and charities operating animal shelters—seemingly without a convincing explanation. Perhaps because of the dizzying diversity of tax-exempt activities, scholars and policymakers have avoided comprehensively or coherently justifying our exemption regimes.

This Article develops a novel normative theory that …

Confronting The War On International Law In The United States, Rebecca Ingber

Online Publications

Harold Hongju Koh’s The National Security Constitution in the 21st Century is a code red threat assessment of the state of public law in America today. True to Koh’s nature, he does not leave us without hope; rather he devotes a sizeable portion of the book to calls for reform, from the legal frameworks governing war powers and intelligence to the division of labor in the national security legal bureaucracy plodding away within the deepest (secure) chambers of the executive branch itself.

The Biden Administration’S Negotiations With Pharmaceutical Companies, Isabel Anthony

Cardozo Journal of Conflict Resolution (CJCR) Blog

The Biden administration has conducted the government’s first ever negotiations with pharmaceutical companies on the cost of life saving drugs. They have been able to negotiate prices down by nearly 80%. The drugs at the center of negotiations are ones that people are prescribed for years at a time in order to manage illnesses such as heart disease, Crohn’s disease, and more. In order to conduct these negotiations, the Biden administration used march-in rights built into the Bayh-Dole Act.

The print edition of the issue has also been released. This post was originally published on the Cardozo Journal of Conflict …

Who Decides: Judges Or Experts? Loper Bright, The End Of Chevron, And It's Impact On Corporate Governance, Heyman Center On Corporate Governance, Floersheimer Center For Constitutional Democracy

2024–2025 Flyers

No abstract provided.

Stephen Bright's Demand For Equal Justice: Book Talk With Professors Robert Tsai And Betsy Ginsberg, American Constitution Society (Acs)

2024–2025 Flyers

No abstract provided.

Who Decides: Judges Or Experts? Loper Bright, The End Of Chevron And Its Impact On Corporate Governance, Heyman Center On Corporate Governance

2024 Event Invitations

In Loper Bright Enterprises v. Raimondo, 603 U.S. _____ (2024), the Supreme Court overruled the doctrine of Chevron deference, which had previously required courts to defer to reasonable agency guidance instead of reviewing rules and regulations de novo. Now that Chevron deference is no more, numerous regulations, rules, and opinions produced by federal agencies could be in jeopardy as they are newly subject to judicial review. In the corporate context, this could interfere with the implementation of ESG (environmental, social, and governance) principles, potentially leading to a re-tightening of shareholder primacy.

Cardozo Law News Brief: October 11, 2024, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2024

Featured Faculty:

• Jessica Roth
• Luis Carlos Calderon Gomez
• Rebekah Diller
• Gabor Rona
• Michel Rosenfeld
• Edward Zelinsky

Campus News:

• Evelyn Konrad ’05 Shares Story of Resilience After Surviving Holocaust and Establishing a New Life in America

A Government Of The People: Popular Engagement In U.S. Constitutional Democracy, Floersheimer Center For Constitutional Democracy

2024–2025 Flyers

No abstract provided.

A Government Of The People: Popular Engagement In U.S. Constitutional Democracy, Floersheimer Center For Constitutional Democracy, Wilfred U. Codrington Iii

2024 Event Invitations

Please join us for a fascinating discussion about the place and power of the people in constitutional practice and government design, including critical areas that feature prominently in today’s public conversation in light of recent Supreme Court terms and the upcoming election.

This event will feature three panelists—Alicia Bannon (Brennan Center for Justice at NYU School of Law), Corey Brettschneider (Brown University and Fordham Law School) and Joshua Douglas (University of Kentucky J. David Rosenberg College of Law), the latter two of whom have recently published books that center the people in core matters of political decision making—in conversation with …

Kukin Program Newsletter – Fall 2024, Kukin Program For Conflict Resolution

Kukin Program Newsletters

The Kukin Program Newsletter – Fall 2024 captures recent achievements, events, and updates from the Kukin Program for Conflict Resolution at Cardozo School of Law. This issue highlights the prestigious Peace Gala honoring founding director Professor Lela P. Love, insights from prominent alumni in the dispute resolution field, student leadership accomplishments, and recent awards and fellowships. Readers can explore feature articles on impactful projects and innovations in conflict resolution, including new initiatives by the CPR Institute and the International Advocate for Peace Award. This newsletter offers a comprehensive view of the Kukin Program’s dedication to advancing negotiation, mediation, and advocacy …

2024 Cardozo Life (Fall), Benjamin N. Cardozo School Of Law

Cardozo Life Magazine

Table of Contents:

Cardozo’s International Advocate for Peace Award Given to Richard Haass, page 3

Justice for All, page 14

Faculty in the Media, page 20

Faculty Scholarship, page 24

Find Your FAME, page 28

Meet Miriam Lacroix, Cardozo’s New Director of Diversity and Inclusion, page 50

Student Briefs, page 52

Commencement ’24, page 56

Alumni Events, page 58

Alumni Spotlight, page 60

Class Notes, page 74

In Memoriam, page 78

Table Of Contents - Cardozo Journal Of Equal Rights & Social Justice, Vol. 31, Iss. 1

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Masthead, Cardozo Journal Of Equal Rights & Social Justice, Vol. 31 (2024–25)

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

White Monsters: Understanding Whiteness As Social And Legal Monstrosity, Steven Sacco

Cardozo Journal of Equal Rights & Social Justice

The article argues that whiteness operates as a socially and legally constructed monstrosity, perpetuating systemic inequality and destructive power through both intentional and nonintentional mechanisms. By employing monster theory, the analysis reveals how whiteness adapts and evolves to maintain its dominance, often through legal frameworks that obscure its harmful effects. The Supreme Court's decision in Plyler v. Doe, while advancing justice in some aspects, also exemplifies how the law can perpetuate inequality by overlooking historical and social contexts.

Greater Of Two Evils: Trial Penalty Or Plea Penalty?, Breanne Potter

Cardozo Journal of Equal Rights & Social Justice

The article critiques the prevalence of plea bargaining in the U.S. criminal justice system, arguing that while it is often seen as a necessary evil for efficiency, it undermines constitutional rights and perpetuates injustice. The author introduces the concept of the "plea penalty," which refers to the significant and often overlooked consequences of accepting a guilty plea, such as the loss of rights and long-term collateral consequences. The article challenges the notion that the trial penalty—harsher sentences for those who go to trial—is the only concern, emphasizing that the plea penalty can be equally detrimental. It advocates for systemic reforms …

Standing For Change: Associational Standing As An Aggregational Mechanism In Tenants' Rights, Hope Peraria

Cardozo Journal of Equal Rights & Social Justice

The note argues that tenant associations can serve as an effective vehicle for aggregate lawsuits to vindicate tenants' rights, addressing the persistent enforcement gap in housing rights. By leveraging associational standing, these associations can advocate for shared interests, facilitate community organizing, and complement legal reforms. This approach not only strengthens tenants' collective power but also offers practical solutions to systemic barriers that prevent individuals from asserting their rights.