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The Guaranteed Resolution On Effective And Adapted Terms (The Great Process): A New Hybrid Dispute Resolution Process For Guaranteeing A Solution And Resolving Disputes Efficiently, Claude Amar, Véronique Fraser

Cardozo Journal of Conflict Resolution

Over the past twenty years, innovative dispute resolution processes have emerged from practitioners who aimed to tailor them to the parties' process needs. Some of the most widely known processes include med-arb, arb-med, co-mediation with an evaluative and a non-evaluative mediator, baseball arbitration, last offer arbitration, and sealed-arbitration. The list and possible combinations are infinite, when one starts combining processes. However, such spontaneity and adaptivity sometimes result in harmful consequences. In the past, arbitral awards in numerous jurisdictions were refused to be honored on the basis that the process had infringed on fundamental procedural guarantees. For that reason, it is …

Resurrecting Arbitrariness, Kathryn E. Miller

Articles

What allows judges to sentence a child to die in prison? For years, they did so without constitutional restriction. That all changed in 2012’s Miller v. Alabama, which banned mandatory sentences of life without parole for children convicted of homicide crimes. Miller held that this extreme sentence was constitutional only for the worst offenders—the “permanently incorrigible.” By embracing individualized sentencing, Miller and its progeny portended a sea change in the way juveniles would be sentenced for serious crimes. But if Miller opened the door to sentencing reform, the Court’s recent decision in Jones v. Mississippi appeared to slam it …

Judges, Judging And Otherwise: Do We Ask Too Much Of State Court Judges - Or Not Enough?, Michael C. Pollack

Articles

Ask the average person to imagine what a judge does, and the answer will most likely be something right out of a courtroom from Law & Order — or Legally Blonde, Just Mercy, My Cousin Vinny, Kramer vs. Kramer, or any of the myriad law-themed movies and television shows. A judge is faced with a dispute brought by some parties and their lawyers and is charged with resolving it, whether it be a breach of contract, a tort action, a competing claim over property, a disagreement about the meaning of a statute, some accusation that someone …

Anticompetitive Merger Review, Samuel N. Weinstein

Articles

U.S. antitrust law empowers enforcers to review pending mergers that might undermine competition. But there is growing evidence that the merger-review regime is failing to perform its core procompetitive function. Industry concentration and the power of dominant firms are increasing across key sectors of the economy. In response, progressive advocates of more aggressive antitrust interventions have critiqued the substantive merger-review standard, arguing that it is too friendly to merging firms. This Article traces the problem to a different source: the merger-review process itself. The growing length of reviews, the competitive restrictions merger agreements place on acquisition targets during review, and …

The Link Between Voting Rights And The Abortion Ruling, Katherine A. Shaw, Leah Litman, Melissa Murray

Online Publications

The Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization gives states the maximum amount of freedom to restrict abortion. The decision is so sweeping that, under its logic, states could ban abortion even in cases of rape or incest; they may even be able — as the dissent notes — to prohibit abortions in circumstances in which a doctor believes the procedure is necessary to preserve the life or health of the pregnant person.

Sandy’S Joyfully Divided Soul And A Glimpse At A Constitutional Poethics In View Of Roe’S Leaked Demise, Richard Weisberg

Online Publications

In his version of the iconic story, Goethe has his hero say, “There are two Fausts in my soul!” And a century or so later, Camus’ lawyer narrator in The Fall puts his own first-person story under the sign of Janus, the Roman god with two faces looking in opposite directions. There is a bit of this doubleness in my friend Sandy's soul. I’ve thought for a while that his trained intuition follows a literary tune, but that his less Dionysical and more Apollonian mind points him towards history and the social sciences.

Cardozo Launches New Anti-Racist Dei Curricular Resources For Faculty, Benjamin N. Cardozo School Of Law

Cardozo News 2022

Diversity and inclusion are central values at Cardozo Law School. We recognize that diversity, equity and inclusion (DEI) are critical to legal education and the legal profession.

Clihhr Releases Reasonable Person Standard Module For Inclusion In Law Teaching, Benjamin N. Cardozo School Of Law

Cardozo News 2022

The Cardozo Law Institute in Holocaust and Human Rights (CLIHHR) has just released a downloadable Teaching Guide on the Reasonable Person Standard, a flexible, free resource that can be adapted for introductory courses or upper-level seminars, class discussions, exam materials and more. It helps students understand what the “reasonable person” standard is in U.S. criminal law as it relates to the establishment of particular defenses.

Bankruptcy As Social Safety Net, Pamela Foohey

Online Publications

One in ten Americans have filed bankruptcy at some point during their adult lives. Contrary to the pronouncements of some politicians, these filings do not reflect a series of personal failures and should not be understood as failures of character. Indeed, most of the people who file bankruptcy struggle for years to pay their debts before turning to bankruptcy law and courts for help. And most of the people who file say that they felt shame upon filing. Instead, the bankruptcy filings of millions and millions of people reflect systematic policy choices over the past forty years that have left …

The Other Cause Of January 6, Katherine A. Shaw

Online Publications

John Eastman. Rudy Giuliani. Donald Trump himself.

These people all bear some responsibility for the events of January 6, 2021. But there is another contributing factor—an institution, not a person—whose role is regularly overlooked, and that deserves a focus in the ongoing January 6 committee hearings: the Electoral College. The Electoral College isn’t responsible for President Trump’s efforts to remain in office despite his clear loss. But it was integral to Trump’s strategy, and it has everything to do with how close he came to success.

Brief Of Amici Curiae Maureen Carroll, Christine Bartholomew, Andrew Bradt, Brooke Coleman, Robin Effron, Myriam Gilles, Robert Klonoff, Suzette Malveaux, David Marcus, Elizabeth Porter, D. Theodore Rave, Elizabeth Schneider, And Adam Zimmerman In Support Of Defendants-Appellees/Cross Appellants, Myriam E. Gilles

Amicus Briefs

Amici are law professors with expertise in the requirements for class certification under Rule 23 of the Federal Rules of Civil Procedure. Amici have written extensively about class action litigation, including the use of class actions in civil rights cases seeking declaratory or injunctive relief. Together, we share an interest in ensuring that the Federal Rules of Civil Procedure continue to be construed so as to ensure the “just, speedy and inexpensive determination of every action and proceeding.” FED. R. CIV. P. 1.

The Prison Litigation Reform Act Exhaustion Requirement: How A Legislative Decision From 1996 Is Controlling Covid-19 Conditions Inside Correctional Facilities, And What Can Be Done To Fix It, Hannah E. Mirzoeff

Cardozo Law Review

No abstract provided.

The Coming Causation Revolution In Employment Discrimination Litigation, D’Andra Millsap Shu

Cardozo Law Review

For more than a decade, employment discrimination causation law has been a confusing, often overly restrictive quagmire that has contributed substantially to the paltry success rate of plaintiffs in employment discrimination cases. Most of these cases are dismissed pretrial, all too often based on a failure of causation. A key reason traces back to loose and misleading language—centered on a single word—in a 2009 Supreme Court opinion involving the but-for causation standard that applies in most discrimination cases. The Court said that the discriminatory motive must be “the” but-for cause of the employer’s action when it should have said “a” …

Civil Rights Catch-22s, Jonathan P. Feingold

Cardozo Law Review

Civil rights advocates have long viewed litigation as a vital path to social change. In many ways, it is. But in key respects that remain underexplored in legal scholarship, even successful litigation can hinder remedial projects. This perverse effect stems from civil rights doctrines that incentivize litigants (or their attorneys) to foreground community plight—such as academic underachievement or overincarceration. Rational plaintiffs, responding in kind, deploy legal narratives that tend to track racial stereotypes and regressive theories of inequality. When this occurs, even successful lawsuits can harden the structural and behavioral forces that produce and perpetuate racial inequality.

I refer to …

Patent Law’S Externality Asymmetry, Peter Lee

Cardozo Law Review

Technologies such as social media, autonomous vehicles, and “big data” analytics generate enormous benefits for society, but they also create substantial harms. Many of these effects take the form of externalities—external benefits and harms that a decisionmaker (such as an inventor) imposes on third parties without charge or compensation. Considering negative externalities, for example, social media networks spread misinformation throughout the electorate, autonomous vehicles threaten the jobs of millions of professional drivers, and predictive policing based on big data can lead to unreasonable searches and seizures. Externalities can cause inefficient resource allocation, and the classic remedy is to “internalize” externalities …

Driving The National Labor Relations Act Forward: Analyzing Abusive Conduct That Occurs In The Course Of Protected Activity After General Motors Llc, Kurt Stumpo

Cardozo Law Review

No abstract provided.

We Clerked For Justices Scalia And Stevens. America Is Getting Heller Wrong., Katherine A. Shaw, John Bash

Online Publications

In the summer of 2008, the Supreme Court decided District of Columbia v. Heller, in which the court held for the first time that the Second Amendment protected an individual right to gun ownership. We were law clerks to Justice Antonin Scalia, who wrote the majority opinion, and Justice John Paul Stevens, who wrote the lead dissent.

2022 Commencement Exercises, Benjamin N. Cardozo School Of Law

Commencement

Order of Exercises

Processional:

Michael J. Burstein, Vice Dean, Professor of Law, Herald

Presiding:

Selma Botman, Provost and Vice President for Academic Affairs, Yeshiva University, Chief Marshal

Rabbi Dr. Ari Berman, President, Yeshiva University

National Anthem:

Cantor Ira W. Heller, Class of 2008

Welcome Remarks:

Melanie Leslie, Dean, Benjamin N. Cardozo School of Law; Class of 1991

Commencement Address:

Judge Eunice C. Lee, United States Court of Appeals for the Second Circuit

Student Remarks:

Elisabeth Bauriedl, LL.M. Class Speaker; Class of 2022

Madison Chajson, J.D. Class Speaker; Class of 2022

Student Bar Association Awards:

Nigel A. Pura-Bryant, Class of 2022 …

Cardozo Law News Brief: May 27, 2022, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2022

Featured Faculty:

• Gabor Rona
• Edward Zelinsky
• Barbara Kolsun
• Lindsay Nash
• Pamela Foohey

Campus News:

• 30th Annual Inspire! Awards Recognize Public Service Achievements
• Cardozo Welcomes the May-Entry Class
• Dean Val Myteberi, in LL.M. Guide, Comments on Diversification of Career Paths

Events:

• Class of 2022 Awards Ceremony
• Class of 2022 Commencement

Sdny Reaffirms Strong Deference Owed To Arbitrators, Ryan Katz

Cardozo Journal of Conflict Resolution (CJCR) Blog

On November 16, 2021, the United States District Court for the Southern District of New York affirmed an arbitration tribunal’s decision that International Engineering and Construction (“IEC”) pay over $8 million plus interest to GE Oil and Gas, as a result of their dispute with Baker Hughes (formerly GE Oil and Gas) over construction delays while building a gas plant in Nigeria. Notably, the court stated that IEC’s arguments “might have traction” if the court were the first to hear the dispute, but given the strong deference owed to arbitrators, IEC’s arguments were insufficient to overturn the order.

This post …

Professor Michael Pollack Appointed Associate Dean For Faculty Development, Benjamin N. Cardozo School Of Law

Cardozo News 2022

Dean Melanie Leslie has appointed Professor Michael Pollack Associate Dean for Faculty Development. Professor Pollack will replace Professor Christopher Buccafusco, who held the post for the past four years.

The Parthenon Marbles Case And The Universal Museum Myth: Policies And Politics, Cardozo Arts & Entertainment Law Journal, Benjamin B. Ferencz Human Rights And Atrocity Prevention Clinic, Cardozo Fame Center

2021–2022 Flyers

This symposium will bring together scholars and advocates to discuss the history of cultural property, its rightful owners, and whether the property should be returned to its original creating country. Professor David Rudenstine will present his decades-long historical research challenging the British Museum’s claim in the cultural property dispute between Greece and Great Britain over the Parthenon Sculptures taken to London in the early 1800s by the British ambassador, Lord Elgin.

Lc Indigenous Law Classification: Origins And Applications, Richard Amelung, Jolande E. Goldberg, Kurt Meyer

How It Started/How It’s Going

A panel featuring:

"LLMC's Indigenous Law Portal: Behind the Screen" with Richard Amelung, Professor Emeritus of Legal Research, Saint Louis University Immel Law Library

"Access to Indigenous law – or: Decolonizing LC Classification: Retrospect into the Future" with Jolande E. Goldberg, Senior Cataloging Policy Specialist/Law Classification Specialist, Library of Congress

"LLMC's Indigenous Resources: A Brief Overview" with Kurt Meyer, Assistant Director, Global Content Development & Preservation, LLMC.com

Civil Rights Clinic And Nyclu File Lawsuit Challenging Censorship In New York Prisons, Benjamin N. Cardozo School Of Law

Cardozo News 2022

On March 31, Cardozo’s Civil Rights Clinic and the New York Civil Liberties Union filed a federal lawsuit challenging the New York State Department of Corrections and Community Supervision’s censorship of Blood in the Water: The Attica Prison Uprising and Its Legacy, a Pulitzer-prize winning book by Dr. Heather Ann Thompson.

Should We Worry That The President Called Putin A “War Criminal” Out Loud?, Deborah Pearlstein

Online Publications

Commenting on the increasingly horrific images that have emerged from Bucha this week revealing the staggering brutality of Russian violence against civilians in Ukraine, President Joe Biden minced no words in his assessment of Vladmir Putin: “He is a war criminal,” the president said on Monday. The statement generated a significant new round of media attention, notwithstanding the reality that it was not exactly news. The U.S. State Department had issued a formal statement in March conveying its assessment “that members of Russia’s forces have committed war crimes in Ukraine,” and the president himself had called Putin a “war criminal” …

Getting Blunt About Civil Commitment: How Nj’S Institutionalized Cannabis-Users Are Systematically Denied Civil Liberties, Peri Feldstein

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

Some of New Jersey’s state-institutionalized psychiatric patients, held by the state in civil confinement at state psychiatric hospitals, use cannabis in violation of hospital rules. When they do so, they are punished in an unconstitutional manner: the judge responsible for their commitment will seek retribution by wrongfully continuing their commitment out of paternalistic fears.

This post was originally published on the Cardozo Journal of Equal Rights and Social Justice website on April 5, 2022. The original post can be accessed via the Archived Link button above.

Cardozo Law News Brief: April 1, 2022, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2022

Featured Faculty:

• Alexander A. Reinert
• Kate Shaw
• Peter Goodrich
• Deborah Pearlstein
• Michel Rosenfeld

Campus News:

• Cardozo Welcomes Six New Faculty Members
• Civil Rights Clinic Partners with NYCLU, Files Federal Lawsuit Against Censorship in NY Prisons
• Cardozo Ranked No. 52 in 2023 U.S. News & World Report Law School Rankings
• Nine Cardozo Alumni Make Billboard Magazine’s 2022 Top Music Lawyers List
• Cardozo Celebrates 'Serving Up Scholarships' Event for Donors and Student Achievements

Events:

• Annual Uri and Caroline Bauer Memorial Lecture
• Big Law, Big Discovery, Big Trouble: Arnold & Porter and the Opioid Discovery Controversy
• Podcasts Killed the Radio Star: The Podcasting …

The False Allure Of The Anti-Accumulation Principle, Michael E. Herz, Kevin M. Stack

Articles

Today the executive branch is generally seen as the most dangerous branch. Many worry that the executive branch now defies or subsumes the separation of powers. In response, several Supreme Court Justices and prominent scholars assert that the very separation-of-powers principles that determine the structure of the federal government as a whole apply with full force within the executive branch. In particular, they argue that constitutional law prohibits the accumulation of more than one type of power—legislative, executive, and judicial—in the same executive official or government entity. We refer to this as the anti-accumulation principle. The consequences of this principle, …

Lawyering The Presidency, Deborah Pearlstein

Articles

Among its many profound effects on American life, the Trump presidency has triggered a surge of interest in the project of law reform to better check the exercise of presidential power. Yet these reform efforts arise against a wholly unsettled debate about the function and effectiveness of existing checks, perhaps none more so than the role of executive branch legal counsel. With courts often deferential, and Congress hamstrung by partisan polarization, scholars have drawn on the experiences of executive branch lawyers to assess whether counsel functions as part of an “internal separation of powers” form of constraint. Yet while these …

The Deep Architecture Of American Covid-19 Tort Reform 2020-21, Anthony J. Sebok

Articles

The rapid emergence of the COVID-19 pandemic produced massive state actions to protect in public health through the exercise of the police powers by local, state and national governments. In the United States there were calls early in the crisis to exercise the state’s power over tort law: As early as April 2020, the American Tort Reform Association published a White Paper, Responding to the Coming Lawsuit Surge that called for “reasonable constraints on . . . lawsuits that pose an obstacle to the coronavirus response effort, place businesses in jeopardy, and further damage the economy.”

This article, prepared for …