Digital Commons Network^™

The Need To Speed: The U.S. Interstate And The German Autobahn, Jacob Weinstein

Cardozo International & Comparative Law Review (CICLR) Blog

Were it not for the Interstate Highway System (IHS), driving to, from, and within regions of the continental United States would be a challenging endeavor. The pavement of the IHS was first laid when President Eisenhower signed the Federal Highway Act of 1954. According to the lore, Eisenhower first envisioned the IHS as a strategic military asset during his reign in Europe as the commander of the Allied Forces. However, in reality, it is slightly more complicated.

This post was originally published on the Cardozo International & Comparative Law Review on February 9, 2024. The original post can be accessed …

The 2024 Cardozo Colloquium On Global And Constitutional Theory Presents: Linda Greenhouse On The Roberts Court, Benjamin N. Cardozo School Of Law

2024 Event Invitations

Join Linda Greenhouse, Senior Research Scholar in Law at Yale Law School, to discuss the exceptional trajectory of the Roberts Court. Greenhouse is also a Pulitzer Prize-winning reporter who has covered the United States Supreme Court for nearly three decades for The New York Times.

The 2024 Cardozo Colloquium On Global And Constitutional Theory: How The Supreme Court Lost The American Public, Floersheimer Center For Constitutional Democracy

2023–2024 Flyers

No abstract provided.

Livestream Of Supreme Court Oral Argument: Trump V. Anderson, Floersheimer Center For Constitutional Democracy

2023–2024 Flyers

No abstract provided.

The 2024 Cardozo Colloquium On Global And Constitutional Theory, Benjamin N. Cardozo School Of Law

2024 Event Invitations

The US Supreme Court is currently experiencing a significant decrease in public approval, as are several courts in many other parts of the world, such as the Israel Supreme Court and top courts in various Eastern European countries. At the same time, in certain other parts of the world, such as Western Europe, constitutional courts persist as well integrated and are widely perceived as trustworthy guarantors of workable checks and balances. The Colloquium will explore what accounts for these differences and whether the various crises concerning judicial review arise from similar or different types of circumstances. To what extent are …

Cardozo Law News Brief: February 2, 2024, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2024

Featured Faculty:

• Jacob Noti-Victor
• Pamela Foohey
• Young Ran (Christine) Kim
• Edward Zelinsky

Events:

• The 2024 Cardozo Colloquium on Global and Constitutional Theory
• Michael Oher and ‘The Blind Side’ of Conservatorships
• The 2024 Cardozo Colloquium on Global and Constitutional Theory Presents: Linda Greenhouse on the Roberts Court
• Cardozo Law Review Symposium on Ethics in the Judiciary and the Legal Profession: Are We in Crisis?

Modular Bankruptcy: Toward A Consumer Scheme Of Arrangement, John A.E. Pottow

Cardozo Law Review

In the world of cross-border corporate insolvency, those in the know are familiar with the increasingly popular scheme of arrangement, the British quasi-reorganization procedure that allows a company to restructure some, but not all, of its debt. The typical scheme effects a corporate balance sheet reshuffling by supermajoritarian approval (and judicial “sanction”) but often leaves other debt, such as the trade, untouched. A key conceptual component of the scheme mechanism is its intentional modularity, called by some its “selectivity.” It does not require a comprehensive reckoning of all claims against a given debtor, only some. The scheme has proved popular—so …

“Swifties” Or Swift Suppression? How Police Officers Exploit Copyright Law And Practice Online To Evade Public Accountability, Jeremy Lamstein

Cardozo Law Review

The video recording of the tragic killing of George Floyd by Minneapolis police officers had an immediate and profound impact on the public. The video held essential evidentiary value in the prosecution of Floyd’s killers, as it told a very different story than what the police officers had made the situation out to be. It was by no means the first recording of police misconduct that generated significant attention from the public, but it remains among the most notable.

Now, imagine that the world had never seen the extent of this horrific incident. In this alternate universe, the video never …

Faculty Handbook As Contract, Karen Halverson Cross

Cardozo Law Review

Colleges and universities, like other employers, typically have in place policies that govern the employment relationship with their faculty. Many such policies—policies against employee misconduct or policies on accommodations for persons with disabilities—are comparable to what employees might encounter outside of academia. Most higher education institutions also have in place policies that are more unique to academia, such as policies establishing shared governance bodies, affirming academic freedom as a core value, or outlining procedures on the granting and revocation of faculty tenure. These faculty policies may be aggregated in a faculty handbook, published separately on the institution’s web site, or, …

Condensing The Alphabet Soup: Missed Administrative Rulemaking Concerns In U.S. Securities & Exchange Commission V. Alpine Securities Corporation, David Davani

Cardozo Law Review

For decades, the political landscape in the United States, characterized by deadlock in Congress and increasingly polarized relations among the country’s major political parties, has put the responsibility of keeping the government functioning in the hands of the administrative state. An absence of regular, substantive legislation (and a President willing to sign the bills given to her by Congress into law) leaves the advancement of meaningful policy to the rulemaking functions of federal executive agencies. Agency rules, developed pursuant to Congressional commands, aim to ensure that private industries will keep air and water clean, make sure drugs are safe, and, …

Backdating #Metoo, Jessica K. Fink

Cardozo Law Review

The #MeToo movement radically altered the way that people think about workplace sexual harassment. For decades, women were expected to tolerate a broad range of sexualized conduct at work. However, the revelation of Harvey Weinstein’s misdeeds in late 2017, followed by the exposure of countless other bad actors, dramatically shifted the social narrative regarding appropriate workplace behavior. Conduct that employees once ignored or overlooked suddenly became the basis for vociferous objection; the perfunctory responses to harassment that many employers once adopted suddenly stood out as glaringly deficient.

While society has undergone great shifts in its understanding of and response to …

Whither Affirmatively Furthering Fair Housing In New York? The Affh Mandate In An Era Of Land Use Reform, Timothy Gentles

Cardozo Law Review

New York is experiencing a severe housing affordability crisis. This crisis is driven by a housing supply shortfall decades in the making. The state’s housing shortage exacerbates economic, racial, and regional inequalities, and harms the economy by limiting growth. New York’s struggles with housing affordability reflect a national surge in housing costs since the pandemic that has disproportionally impacted communities of color. Yet, in many respects, the crisis in New York is worse than that in other states with comparably robust housing demand. The extent of New York’s housing affordability crisis has led to growing momentum behind legislative action in …

Cardozo Law News Brief: January 26, 2024, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2024

Featured Faculty:

• Michael Herz
• Emmanuel H. Arnaud
• Peter Goodrich
• Jacob Noti-Victor
• Edward Zelinsky

Campus News:

• Cardozo Holds Two-Week January Intensive Courses Teaching Students Courtroom Litigation and Transactional Skills
• Justice Dianne T. Renwick ’86 Pens Piece for New York Law Journal About Diversity On NY's Court System's Bench

Events:

• The 2024 Cardozo Colloquium on Global and Constitutional Theory
• The FAME Center Presents: An Evening with Steve Madden
• Michael Oher and ‘The Blind Side’ of Conservatorships
• The 2024 Cardozo Colloquium on Global and Constitutional Theory Presents: Linda Greenhouse on the Roberts Court
• Cardozo Law Review Symposium on Ethics in the Judiciary and …

Cardozo Law News Brief: January 19, 2024, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2024

Featured Faculty:

• Jessica Roth
• Pamela Foohey
• Burton Lipshie
• Michael Pollack
• Gabor Rona
• Richard Weisberg

Events:

• The 2024 Cardozo Colloquium on Global and Constitutional Theory
• The FAME Center Presents: An Evening with Steve Madden
• Cardozo Law Review Symposium on Ethics in the Judiciary and the Legal Profession: Are We in Crisis?

Prepared Testimony To The Committee On Homeland Security United States House Of Representatives, Deborah Pearlstein

Testimony

Sham Impeachment “Hearing” #2

Issue: Border Security & Immigration

The Failure Of Australia's Voice Referendum: A Lost Opportunity For Progress?, Jennifer Grubman

Cardozo International & Comparative Law Review (CICLR) Blog

On October 14, 2023, Australia held its first constitutional referendum of the twenty-first century. Had the referendum succeeded, a section would have been added to the Australian Constitution not only recognizing First Nations as the “First Peoples of Australia,” but also establishing a body known as the Aboriginal and Torres Strait Islander Voice, or the Voice. This was not Australia’s first constitutional referendum concerning First Nations. In 1967, Australians voted in favor of an amendment to the Australian Constitution that granted “state and National parliaments … concurrent power” to legislate for the First Nations. However, unlike the 1967 referendum, the …

Constitutional Constraint: The United States Should Follow In New Zealand’S Gun Reform Footsteps, Jillian Fantuzzi

Cardozo International & Comparative Law Review (CICLR) Blog

The Second Amendment to the United States Constitution protects “the right of the people to keep and bear arms.” The United States is one of three countries worldwide that provide a constitutional right to bear arms, but the only country where this right is not accompanied by a restrictive condition. Despite the apparent gun crisis that increasingly characterizes the United States, legislators struggle to implement regulation due to the Supreme Court’s classification of the Second Amendment as a right to self-defense. However, where the initial purpose of the Second Amendment was to equip civilians as members of the militia to …

Indigenous Peoples, Land Grabs In Brazil, And The Fight For Official Recognition, Christian Zavardino

Cardozo International & Comparative Law Review (CICLR) Blog

In recent years, the Indigenous peoples of Brazil have fought a host of legal obstacles to maintain sovereignty over their traditional ancestral lands, in large part owing to the policy imperatives of successive presidential administrations and Congresses that have favored agribusiness interests and commercial development of Brazil’s interior regions at the expense of the Indigenous peoples who live in these areas. The Brazilian Constitution of 1988 guarantees Brazil’s Indigenous peoples legal recognition of their ancestral lands via the “land demarcation” or “official land recognition” process, providing that the federal government shall recognize “their original rights to the lands they traditionally …

Against Gap-Filling, Noah C. Chauvin

Cardozo Law Review de•novo

Legal scholars delight in gap-filling. They frequently claim that their works have identified a gap in the literature and to have filled (or begun filling) that gap. However, all too often, these same papers fail to explain why the gap needed to be filled at all. Indeed, despite a robust tradition of meta-scholarship, the legal literature is largely devoid of a theory of academic gap-filling. This essay fills that gap, arguing that gap-filling for the sake of gap-filling is an error for three interconnected reasons. First, gaps might exist for a good reason. Second, concern with gap-filling is often a …

Meaningful Or Meaningless? The Temporal Scope Of The Constitutional Right Of Access To Courts For Incarcerated Litigants, Alison Aimers

Cardozo Law Review de•novo

This Note will advocate for the position taken by the Third and Seventh Circuits that incarcerated individuals’ right to affirmative assistance in accessing legal materials extends past the pleading stage to all stages of civil rights claims and post-conviction criminal appeals. U.S. Supreme Court precedent supports this position, and judicial clarity on this issue is required to best protect the constitutional right of access in light of significant existing barriers to incarcerated litigants’ access to courts.

Harnessing Hypocrisy: A Crack In The Supreme Court’S Colorblindness Mask, Zamir Ben-Dan

Cardozo Law Review de•novo

This Essay contends that the Supreme Court’s denial of certiorari in Harness v. Watson stands as a testament to its hypocrisy. The day after the Court professed an allegiance to promoting racial equality in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, it refused to even consider invalidating a clear barrier to racial equality. The day after the Court struck down a remedy designed to address a long, sad, and painful history of racism, the Court left undisturbed an obvious symbol of this long, sad, and painful history of racism. When juxtaposed against both the denial …

Professional Norms At A Crossroads: Farhane And Its Implications For Legal Counsel, Hayley Sandoval

Cardozo Law Review de•novo

This Note examines the right to effective assistance of counsel during guilty pleas through the lens of the pending Second Circuit case Farhane v. United States. This case will have significant implications for the right to effective legal representation, particularly in terms of defense attorneys’ duty to warn clients of the potential risk of denaturalization as a consequence of pleading guilty. In May 2024, the court reheard Farhane en banc and will issue a decision later this year. If this opinion aligns with the court’s initial decision, it will severely limit the rights of all defendants in criminal proceedings in …

Expanding Homicide Liability For A Parent’S Omission, Monu Bedi

Cardozo Law Review de•novo

Earlier this year, Jennifer and James Crumbley were convicted of manslaughter and sentenced to 10-15 years for not stopping their teenage son, Ethan, from killing four students at his high school. This is the first known occurrence of an American prosecutor obtaining a homicide conviction relying on a parental omission—or failure to act—where the victim was not the parent’s own child. Parental omissions historically have only triggered homicide charges if the parent fails to protect their child, not others, from harm. Unlike the general population, parents owe a special duty to their child because they are the ones tasked to …

Justice Over Finality: Compassionate Release As A Mechanism To Correct Sentencing Errors, Eliza Stup

Cardozo Law Review de•novo

The passage of the First Step Act of 2018 provoked a wave of scholarship analyzing the impact of the Act on compassionate release. However, little attention has been paid to the newfound potential for sentencing errors to fit within the compassionate release framework. This Note addresses a federal circuit split over the legality of sentencing errors as a ground for compassionate release. Drawing on statutory text, legislative history, and recently promulgated U.S. Sentencing Commission guidelines, this Note seeks to provide a robust defense for judicial discretion to consider sentencing errors as a basis for compassionate release. Sentencing errors represent a …

Book Review: Hawai‘I Legal Research By Victoria Szymczak, Cory Lenz, And Roberta Woods, Joshua Levine

Library Staff Online Writings

As a former independent kingdom that became a state in the United States, Hawai‘i has a unique legal history and culture. Research into Hawaiian law requires an awareness of the legal research issues that are common to every U.S. state, as well as issues specific to Hawai‘i. This first edition of Hawai‘i Legal Research meets the needs of researchers who are new to Hawaiian law, whether they are law students researching for the first time or more experienced practitioners. In addition to covering Hawai‘i state legal research, the authors discuss more general strategies that are useful for any researcher, including …

Movement For Quality Government V. Knesset, Esther Hayut, Yael Willner, Alex Stein, Gila Canfy-Steinitz, Yechiel Meir Kasher, Noam Sohlberg, David Mintz, Yosef Elron, Isaac Amit, Ruth Ronnen, Uzi Vogelman, Khaled Kabub, Anat Baron, Ofer Grosskopf, Daphne Barak-Erez

Translated Opinions

Movement for Quality Government v. Knesset concerned challenges to Amendment No. 3 to Basic Law: The Judiciary (the “reasonableness amendment”). In view of the controversy surrounding the amendment and the fundamental constitutional question it raised in regard to the Supreme Court’s jurisdiction to review Basic Laws, the Court took the unprecedented step of sitting en banc. A translation of the official abstract issued by the Court appears here.

On January 1, 2024, a majority of the Court (12 of 15 justices) held that the Court held the authority to conduct judicial review of Basic Laws and to intervene in …

Movement For Quality Government In Israel V. The Knesset, Esther Hayut, Yael Willner, Alex Stein, Gila Canfy-Steinitz, Yechiel Meir Kasher, Noam Sohlberg, David Mintz, Yosef Elron, Isaac Amit, Ruth Ronnen, Uzi Vogelman, Khaled Kabub, Anat Baron, Ofer Grosskopf, Daphne Barak-Erez

Translated Opinions

Movement for Quality Government v. Knesset concerns challenges to Amendment No. 3 to Basic Law: The Judiciary (the “reasonableness amendment”). In view of the controversy surrounding the amendment and the fundamental constitutional question it raised in regard to the Supreme Court’s jurisdiction to review Basic Laws, the Court took the unprecedented step of sitting en banc. We translate here Chief Justice Hayut's majority opinion.

On January 1, 2024, a majority of the Court (12 of 15 justices) held that the Court held the authority to conduct judicial review of Basic Laws and to intervene in exceptional, extreme cases in …

An Information Flow Model Of Online Mediation: Jeopardizing Privacy And Autonomy In The Shadow Of Innovation, Rachel Ringort, Ayelet Sela

Cardozo Journal of Conflict Resolution

Online mediation has developed significantly over the past decade, and increasingly so following the COVID-19 pandemic. Online mediation platforms are now integrated into both private and public settings, enabling mediation through diverse means-from videoconferencing software to dedicated platforms that use various procedural and technological tools, including artificial intelligencepowered applications. The digital transformation of the mediation process introduces challenges and opportunities for mediators, parties, and mediation platforms, many of which stem from new digital datahandling practices. This article explores how such digital transformation of mediation impacts the parties' rights to self-determination and privacy. Recognizing that these rights derive from the parties' …

Arbitral Reliance On "Precedent", Ariana R. Levinson

Cardozo Journal of Conflict Resolution

We conclude that "precedent" may not be the most appropriate term for arbitrators' reliance on other awards. While the term "precedent" might be used loosely in the sense that any past event is a precedent for any future event, the doctrines of stare decisis, collateral estoppel, and res judicata do not apply in labor arbitration. Only if a contract explicitly states or is interpreted by arbitrators to require past awards between the same parties to bind them into the future until a change is negotiated to the contract will these doctrines be utilized by arbitrators. Much more often, including in …

Reducing The American National Debt By Negotiating New Tax Practices On Internal Revenue Code Sec. 501(C) Organizations, Armando D. Gonzalez

Cardozo Journal of Conflict Resolution

No abstract provided.