Digital Commons Network^™

The Concerning Implications Of Texas’S Claim To Standing In United States V. Texas, Noa Gutow-Ellis

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

In a sign of the case’s importance, oral arguments stretched over two hours when the Supreme Court heard United States v. Texas on November 29, 2022. United States v. Texas concerns “the Biden administration’s authority to set immigration policy.” Department of Homeland Security (“DHS”) Secretary Alejandro Mayorkas enacted the policy at issue: prioritizing groups of noncitizens to be detained and deported. This prioritization is rooted in the fact that DHS does not have the resources to detain and deport the “over 11 million noncitizens currently in the United States who could be subject to deportation.” Texas sued the federal government, …

The United States Federal Judiciary: A Perilous Gerontocracy, Zachary Verbit

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

The federal judiciary was first established in 1789, but the more concerning statistic regarding the age of the federal judiciary is this: the median age of sitting federal judges is 68. But even this data point belies the severity of the issue, because federal judges are given lifetime tenure. Federal judges often remain in their seats well past the average U.S. retirement age. For example, Judge Wesley E. Brown served on the bench until he died at the ripe old age of 104. More recently, Judge Jack Weinstein served on the bench until he retired in 2020 at the age …

Qualified Immunity’S Flawed Foundation, Alexander A. Reinert

Articles

Qualified immunity has faced trenchant criticism for decades, but recent events have renewed focus on this powerful defense to liability for constitutional violations. This Article takes aim at the roots of the doctrine—fundamental errors that have never been excavated. First, this Article demonstrates that the Supreme Court’s qualified immunity jurisprudence is premised on a flawed application of a dubious canon of statutory construction—namely, that statutes in “derogation” of the common law should be strictly construed. Applying the Derogation Canon, the Court has held that 42 U.S.C. § 1983’s silence regarding immunity should be taken as an implicit adoption of common …

Just Kidding? The Problem Of Unenforceable Waivers Of Liability, Anthony J. Sebok

Articles

No abstract provided.

Contextualizing Corruption: Foreign Financing Bans And Campaign Finance Law, Lori A. Ringhand

Cardozo Law Review

No abstract provided.

Colorblind Nationalism And The Limits Of Citizenship, Ming Hsu Chen

Cardozo Law Review

Policymakers and lawyers posit formal citizenship as the key to inclusion. Rather than presume that formal citizenship will necessarily promote equality, this Article examines the relationship between citizenship, racial equality, and nationalism. It asks: What role does formal citizenship play in excluding noncitizens and Asian, Latinx, and Muslim citizens racialized as foreigners? What effects does it have on the meaning of being American as a non-White citizen? The Article argues that commitments to colorblind equality and democratic self-governance of the nation stand in contradiction to aspirations to protect all persons within the nation. Consequently, individual rights designed to remedy racial …

Pregnancy Advance Directives, Joan H. Krause

Cardozo Law Review

No abstract provided.

Right For Any Reason, Jeffrey M. Anderson

Cardozo Law Review

The chances of winning an appeal in federal court are slim. One reason for that is an array of rules of appellate review that “stack the deck” in favor of the appellee and the lower court’s judgment. One such rule of review is “right for any reason,” the rule that an appellee may defend a lower court’s judgment on any grounds supported by the record—even grounds that the lower court rejected or ignored. The judgment may be right, even if the reasons are wrong. In 1924, the Supreme Court described the rule as “settled”—and felt no need to cite authority …

Foreseeability Conventions, John Fabian Witt, Morgan Savige

Cardozo Law Review

How has the foreseeability standard survived its critics? Law relies on foreseeability to solve hard legal problems in a vast array of doctrinal fields. But for a century and more, critics have pilloried the standard as hopelessly indeterminate. Decisionmakers, observe the critics, can characterize virtually any consequence as either foreseeable or unforeseeable. It all depends on how one tells the story. This Article explains the conundrum of foreseeability’s puzzling persistence by offering a novel account of how foreseeability has flourished in fields like tort, contract, and crime. Foreseeability has survived and flourished, the Article proposes, not because it carries determinate …

Can Artists Recapture Their Copyrights In Musical Compositions That Have Been Lost To The Public Domain? Skidmore V. Led Zeppelin Applied, Brianna Bell

Cardozo Law Review

No abstract provided.

The Art World Of Digital Assets: How Non-Fungible Tokens Create A Loophole In Anti-Money Laundering Regulations, Sofia Aizenman

Cardozo Law Review

No abstract provided.

Bond Conditions As Fourth Amendment Seizures, Rebecca Laden

Cardozo Law Review

No abstract provided.

Cardozo Law News Brief: January 27, 2023, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2023

Featured Faculty:

• Alexander Reinert
• Young Ran (Christine) Kim
• Luis Carlos Calderon Gomez
• Pamela Foohey
• Jacob Noti-Victor
• Leslie Salzman
• Rebekah Diller
• Andrea Kupfer Schneider

Campus News:

• The 22nd International Advocate for Peace Award Will Be Presented to Gloria Steinem

Events:

• The 2023 Cardozo-Columbia Colloquium on Sovereignty, the Rule of Law and Fundamental Rights in an Era of National and International Turmoil
• 50 Years of Title IX: The Pivot to Justice in Women’s Gymnastics
• Professor David Rudenstine Moderates “The Supreme Court in Crisis”
• ‘Call Me Dancer,’ a client film of the Filmmakers Legal Clinic, will be shown at the Dance on Camera …

Automating Bias: Cardozo Law Review 2023 Symposium, Cardozo Law Review, Floersheimer Center For Constitutional Democracy, Heyman Center On Corporate Governance, Jacob Burns Center For Ethics In The Practice Of Law

2023 Event Invitations

This symposium explores the use of artificial intelligence (AI) in consumer credit markets and the legal and policy issues surrounding these practices.

Automating Bias: Cardozo Law Review 2023 Symposium, Cardozo Law Review, Floersheimer Center For Constitutional Democracy, Heyman Center On Corporate Governance, Jacob Burns Center For Ethics In The Practice Of Law

2022–2023 Flyers

This symposium explores the use of artificial intelligence (AI) in consumer credit markets and the legal and policy issues surrounding these practices.

To access the symposium event invitation, schedule, and video recording, simply follow the links provided.

Free Speech: A Right In Crisis As Turkish Parliament Passes New “Disinformation” Bill, Zaira A. Rojas Navarro

Cardozo International & Comparative Law Review (CICLR) Blog

Shards of glass and plastic flew across the floor as legislator Burak Erbay, a member of the Republican People’s Party, hammered and smashed a smartphone Wednesday night while addressing the Turkish parliament in opposition to president Recep Tayyip Erdoğan proposed Disinformation Bill. Erbay argued the Bill’s clampdown on social media would make smartphones obsolete. Turkish authorities reported to the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe that the principal goal of the new legislation is to “prevent the spread of fake, untrue, baseless, and false information designed to …

Cardozo Law News Brief: January 13, 2023, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2023

Featured Faculty:

• Jocelyn Getgen Kestenbaum
• Gaia Bernstein
• Pamela Foohey
• Young Ran (Christine) Kim
• Michel Rosenfeld

Events:

• The 2023 Cardozo-Columbia Colloquium on Sovereignty, the Rule of Law and Fundamental Rights in an Era of National and International Turmoil
• 50 Years of Title IX: The Pivot to Justice in Women’s Gymnastics
• Benin Bronzes: Restitution and Reparation
• Professor David Rudenstine Moderates “The Supreme Court in Crisis”
• “Call Me Dancer,” a client film of the Filmmakers Legal Clinic, will be shown at the Dance on Camera Festival
• Class of 2023 Commencement

Brief Of Legal Scholars As Amici Curiae In Support Of Petitioners, Pamela Foohey

Amicus Briefs

Amici curiae are professors at law schools throughout the United States. Amici’s expertise encompasses student-financial-assistance programs under Title IV of the Higher Education Act of 1965, consumer finance, administrative and constitutional law, modes of statutory interpretation, and the development of the major questions doctrine. Amici have a strong interest in assisting this Court in resolving questions of law that go to the core of their professional expertise and scholarship, namely, the scope of the Department of Education’s authority to provide relief to borrowers and the development of this Court’s statutory interpretation methodology, particularly in the context of its precedent …

Cardozo Law News Brief: January 6, 2023, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2023

Featured Faculty:

• Edward Zelinsky
• Saurabh Vishnubhakat
• Pamela Foohey
• Jocelyn Getgen Kestenbaum

Campus News:

• Derrick Hamilton, Deputy Director of Perlmutter Center for Legal Justice, Appears on ABA Journal Podcast

Events:

• The 2023 Cardozo-Columbia Colloquium on Sovereignty, the Rule of Law and Fundamental Rights in an Era of National and International Turmoil
• Professor David Rudenstine Moderates “The Supreme Court in Crisis”
• Class of 2023 Commencement

On The Lawfulness Of Awards To Class Representatives, Benjamin Gould

Cardozo Law Review de•novo

When class actions are settled or the class prevails on the merits, successful class representatives are often net losers: their individual recovery does not cover the opportunity costs and other losses they have incurred in representing the class. For that reason among others, they frequently receive an award on top of their relief as class members. The federal courts of appeals had unanimously approved these awards until recently, when the Eleventh Circuit relied on two nineteenth-century cases to hold that they are always unlawful. That decision is now the subject of a cert petition. The Eleventh Circuit got it wrong. …

Remotely Relevant: Addressing Employment-Based Immigration Worksite Location Requirements In The Remote Workspace, Rachel Refkin

Cardozo Law Review de•novo

The worksite location requirements for the PERM process for immigrant visas and LCAs for specialty occupation nonimmigrant visas have lost their relevance during the revolution of the white-collar remote workspace within the United States under current DOL guidelines. Although on its face foreign nationals working outside the office appears to be a novel legal issue, remote work within the United States has been an insurmountable hurdle in the immigration space since telework gained popularity in the late twentieth century. It is possible to apply for both kinds of visas for telework, but adherence to the Farmer Memo appears to be …

Zoned In: How Residence Restrictions Lead To The Indefinite And Unconstitutional Detention Of New Yorkers Convicted Of Sex Crimes, Rebecca Tunis

Cardozo Law Review de•novo

Despite the New York Court of Appeals majority holding in People ex rel. Johnson, New York’s policy of detaining individuals beyond their maximum sentence because they are unable to procure SARA-compliant housing is plainly unconstitutional. The policy violates sex offenders’ fundamental right to be released from prison after serving their sentence. Further, the policy fails to meet even the most relaxed form of judicial review because the state has not shown that it benefits public safety. Indeed, there is virtually no evidence proving that this policy serves to protect the public at all, and a growing body of research shows …

A Means To An End: A Way To Curb Bias-Based Policing In New York City, Garanique N. Williams

Cardozo Law Review de•novo

Conversations about destructive policing, violence, and questionable law enforcement practices have been a focus in social media in recent years. However, housing status is often a neglected, yet important, protected category that should be considered in conversations about the impact race, class, socioeconomic status, and other factors have on policing. This Note argues that since the NYPD has found alternate, less invasive means of accomplishing their objectives, NYPD officers who operate in Police Service Areas located on NYCHA property, are in violation of New York City Administrative Code Section 14-151 for targeting NYCHA residents, based on housing status, and therefore …

Revisiting The Disability Integration Presumption, Chris Yarrell

Cardozo Law Review de•novo

The Individuals with Disabilities Education Act’s (IDEA) predecessor established a legal presumption in favor of educating all students with disabilities in an integrated, “least restrictive environment” (LRE) to the “maximum extent appropriate.” Yet, the precise meaning of this statutory presumption remains unsettled, which has led to mounting special education disputes in federal court. This Article addresses a less developed area of IDEA litigation: namely, how federal courts should interpret this statutory presumption in light of the disproportionate placement of students with the most significant cognitive disabilities in separate settings.

Whether students with the most significant cognitive disabilities sacrifice their right …

Digital Purgatory And The Rights Of The Dead: Protecting Against Digital Disinterment In The Age Of Artificial Intelligence, Greyson Cohen

Cardozo Law Review de•novo

This Note will attempt to show that the existing patchwork of rights of publicity statutes and case law are inadequate to protect citizens from online harms in the age of synthetic media. Particularly, this Note will focus on postmortem right of publicity interests and protections because a robust market for the likenesses of deceased personalities exists and will likely grow in the age of synthetic media.

Part I will explain how synthetic media may contribute to an increase in the harms associated with rights of publicity violations, particularly after death. Part II will begin by outlining the legal landscape of …

Success Stories In Community Courts: Listening To Participants' Voices, Hadar Dancig-Rosenberg, Tali Gal

Cardozo Journal of Conflict Resolution

No abstract provided.

Between Cooperation And Conflict In Second Look Sentence Review, Kay L. Levine, Ronald F. Wright

Cardozo Journal of Conflict Resolution

No abstract provided.

Beyond The Toolbox: Values-Based Models Of Mediation Practice, Robert A. Baruch Bush

Cardozo Journal of Conflict Resolution

No abstract provided.

Know Thyself - Embracing The Ambiguity Of War By Other Means, Anne Leslie

Cardozo Journal of Conflict Resolution

On paper, nothing predestined me for a career in cybersecurity. Much in the same way as nothing on paper predestined me for being involved in a multinational effort like Project Seshat to study and respond to the rising threats of 'hybrid warfare' and 'gray zone conflict', or to give a keynote address at the Cardozo Journal of Conflict Resolution Melnick Symposium themed "Negotiation Strategies for War by Other Means."

A Portrait Of The Artist’S Heirs In Mediation: Adr Techniques To Prevent And Resolve Disputes Following An Author’S Death, Nicholas Beudert

Cardozo Journal of Conflict Resolution

If an author's work is powerful enough, or popular enough, it's likely that at some point someone will want to write about her. For scholars embarking upon these projects, the author's body of published work can provide insight into her psyche, but correspondence and other unpublished materials can also be valuable. Copyright law covers all of these materials, and when the author dies, she can bequest her copyright as she would the rest of her estate (if she hasn't transferred it during her lifetime). The recipient of these copyrights may now treat the copyrights as her own, as though she …