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"A Mystifying And Distorting Factor": The Electoral College And American Democracy, Katherine A. Shaw

Articles

A Review of Let the People Pick the President: The Case for Abolishing the Electoral College. By Jesse Wegman.

Portraits Of Bankruptcy Filers, Pamela Foohey, Robert M. Lawless, Deborah Thorne

Articles

One in ten adult Americans has turned to the consumer bankruptcy system for help. For almost forty years, the only systematic data collection about the people who file bankruptcy has come from the Consumer Bankruptcy Project (CBP), for which we serve as co-principal investigators. In this Article, we use CBP data from 2013 to 2019 to describe who is using the bankruptcy system, providing the first comprehensive overview of bankruptcy filers in thirty years. We use principal component analysis to leverage these data to identify distinct groups of people who file bankruptcy. This technique allows us to situate the distinctions …

Human Dignity As A Chameleon, Ariel L. Bendor, Michal Tamir

Cardozo International & Comparative Law Review

This article offers an innovative argument, according to which courts do not interpret human dignity according to an abstract theoretical position on the nature of the value only, nor subordinate themselves to the subjective purpose of the drafters of a constitution. Thus, courts-whether in the United States, where human dignity is not explicitly mentioned in the Constitution, or in countries where the right is constitutionally enshrined, such as Germany, South Africa, and Israel-interpret and apply human dignity on the basis of the entirety of the provisions of the particular constitution. Human dignity serves as a constitutional chameleon in the sense …

A Sheep In Wolf's Clothing: Assessing The Dangerous, Hidden, And Increasing Defects Of The Iran Nuclear Agreement Review Act, David S. Jonas, Erielle Davidson

Cardozo International & Comparative Law Review

The article critically examines the Iran Nuclear Agreement Review Act (INARA) of 2015, arguing that while it was intended to enhance congressional oversight of the Joint Comprehensive Plan of Action (JCPOA) and other agreements with Iran, INARA falls short of its goals. The analysis reveals that INARA is poorly drafted, lacks teeth, and fails to provide meaningful transparency or checks on executive power, ultimately undermining Congress's role in national security matters.

Getting To Phi: The Case For Excusatory Derogations From Iccpr Rights, Benjamen F. Gussen

Cardozo International & Comparative Law Review

This Article highlights the need for excusatory derogations from human rights. Currently, there is exclusive reliance on justification when upholding derogations from International Covenant on Civil and Political Rights ("ICCPR ) rights. In contrast, an excusatory derogation accentuates the requisite international policy intervention to assist national and subnational governments toward a proportional response to public emergencies. The right to mobility under the ICCPR, and its renditions in the constitutions of Australia and Canada, are used to illustrate this proposition. Border closures in response to the coronavirus pandemic provide context to elucidate how different types of public emergencies dictate different approaches …

Racist History And The Second Amendment: A Critical Commentary, Patrick J. Charles

Cardozo Law Review

No abstract provided.

Second Amendment Realism, Michael R. Ulrich

Cardozo Law Review

In District of Columbia v. Heller, the Supreme Court declared a constitutionally protected individual right to keep and bear arms. Subsequently, the scope of the right has been hotly debated, resulting in circuit splits and lingering questions about what, exactly, the right entails. Despite these splits, the Court has denied certiorari to the myriad gun cases to land on its doorstep. But the balance of the Court has shifted and, so too, has its willingness to hear these cases. Among the most pressing questions in Second Amendment jurisprudence is the constitutionality of public carry restrictions. With the Court set …

Why Do You Care About My Hair? A Proposal For Remedying Hair Discrimination In The Workplace On A Federal Level, Grayson Moronta

Cardozo Law Review

No abstract provided.

Crime Doesn't Pay But Neither Can Ex-Offenders: A Comparative Analysis Of Criminal Restitution In The United States And Canada, Justin Gendler

Cardozo International & Comparative Law Review

The note argues that the U.S. criminal restitution system is flawed, prioritizing punishment over rehabilitation, leading to significant hardships for indigent offenders, victims, and society. It proposes reforming the system to focus on disgorgement of ill-gotten gains and consider offenders' financial situations, drawing lessons from Canada's more rehabilitative approach.

Advance To The Nearest Dispensary: How Quebec's Marijuana Monopoly Is A Model For Future Legalized States, Jason Levine

Cardozo International & Comparative Law Review

The note argues that a state-run monopoly model for marijuana sales, inspired by Quebec's approach, could more effectively promote public health and reduce black-market competition compared to the current license authorization model used in U.S. states like Colorado and California. By centralizing control over pricing, distribution, and product regulation, a monopolistic structure could address challenges such as high taxes, slow transition phases, and the dominance of illegal markets. The analysis draws parallels to alcohol sales frameworks and highlights how a government-run system could avoid federal tax burdens under Section 280E of the Internal Revenue Code.

Duty To Rescue In The Digital Age: A Comparative Analysis, Cameron Kellett

Cardozo International & Comparative Law Review

The article advocates for the enactment of state legislation establishing a duty-to-rescue doctrine, arguing that the absence of such a legal duty leads to preventable harm and undermines societal solidarity. It critiques the arbitrary nature of the special relationship exception under current law and proposes Minnesota's duty-to-rescue statute as a model for reform. The analysis emphasizes that requiring bystanders to provide reasonable assistance, without endangering themselves, is both feasible and morally justifiable, as it aligns with human tendencies to help others in distress.

Sex Work Is Real Work: The Implications Of U.S. Strippers Winning The Right To Unionize, An International Comparative Study, Katherine Fustich

Cardozo International & Comparative Law Review

The note examines the landmark NLRB decision in *Nolan Enterprises*, which granted U.S. strippers the right to unionize by classifying them as employees rather than independent contractors. This ruling has significant implications for labor rights in the sex work industry, both domestically and internationally. The analysis compares this development with international perspectives from the UK, Germany, and the Netherlands, highlighting the challenges and opportunities for sex worker unionization and the broader implications for labor movements globally.

Student Perspectives

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Leveling The Playing Field In Custody Proceedings In New York City Family Court: Enforcing The Rights Of All Parents To Notice And An Unbiased Opportunity To Enforce Their Fundamental Right To Parent Their Child, Dana Gambardella

Cardozo Journal of Equal Rights & Social Justice

The note argues that the Administration for Children's Services (ACS) in New York City systematically fails to notify non-respondent fathers, particularly Black fathers, of their rights and opportunities to participate in child welfare proceedings. This practice violates their fundamental constitutional right to parent and disproportionately affects low-income Black families, perpetuating racial and economic disparities in the child welfare system. The note advocates for systemic reforms, including increased accountability for ACS and the establishment of a private right of action for aggrieved parents.

How The Farm Bill May Be The Key To Healthier Cities, Fatima Ouedraogo

Cardozo Journal of Equal Rights & Social Justice

The note argues that the Farm Bill, a significant piece of U.S. legislation governing agricultural and food programs, can be a crucial tool in addressing urban health issues by making healthy food more affordable. By expanding subsidies to include specialty crops like fruits and vegetables, the Farm Bill could reduce the cost of these items, thereby encouraging healthier diets and combating rising obesity rates in urban populations.

The Ballad Of The "White" Collar Criminal: An Examination Of The Intersection Of Race And Gender In Federal White-Collar Sentencing And Possible Implications Of The Findings, Taylor Tesher

Cardozo Journal of Equal Rights & Social Justice

The note argues that racial and gender disparities exist in federal white-collar crime sentencing, particularly affecting Black women, who often receive harsher sentences compared to their white counterparts. It highlights cases like Felicity Huffman and Kelley Williams-Bolar to illustrate these disparities and calls for reforms to address the lack of transparency and consistency in sentencing.

Blackouts And Holes: Analyzing Cross-Market Geographic Mergers In The Healthcare Services Market, Hankyul Song

Cardozo Journal of Equal Rights & Social Justice

The note examines the impact of hospital mergers, particularly crossmarket mergers, on healthcare costs and competition. It argues that while such mergers may offer efficiencies, they often lead to increased bargaining power for hospitals, higher prices for healthcare services, and reduced competition. The analysis highlights the challenges antitrust authorities face in assessing the anticompetitive effects of crossmarket mergers, as current legal and economic frameworks do not fully account for these complexities. The note advocates for a more nuanced approach to evaluating mergers and suggests expanding the scope of antitrust analysis to better address these issues.

Shadow Nursing Home Ownership: How A Failure In Government Oversight Of For-Profit Nursing Homes In New York Has Allowed Profits To Balloon And Standards Of Care To Plummet, Marissa Espinoza

Cardozo Journal of Equal Rights & Social Justice

Complex corporate nursing home structures have become commonplace in for-profit nursing home ownership. These structures, designed to shield owners from regulation and liability, allow owners to evade public scrutiny by obscuring the identify of true owners and allow the true owners to direct revenue to other companies they own or benefit from, such as staffing agencies, payroll businesses, and management companies. This has led to a deterioration in the standard of care for nursing home residents, society's most vulnerable population, while providing a boon in profits for the true owners. Money that should be spent on care is instead diverted …

The Roberts Court's Transformative Religious Freedom Cases: The Doctrine And The Politics Of Grievance, Stephen M. Feldman

Cardozo Journal of Equal Rights & Social Justice

The article argues that the Roberts Court has adopted a conservative approach in religious freedom cases, shifting toward a jurisprudence that favors Christianity and undermines the separation of church and state. This approach, rooted in tradition and a de facto Christian America, has led to significant changes in both Establishment Clause and Free Exercise Clause doctrines. The Court's decisions increasingly protect Christian practices and institutions while marginalizing non-Christian religions, reflecting a broader ideological shift toward judicial engagement and away from principles of federalism and judicial restraint.

Hostile Shores: Racial Exclusion Laws And The West Coast, Brendan Williams

Cardozo Journal of Equal Rights & Social Justice

The article examines the historical and ongoing racial exclusion laws on the West Coast, focusing on California, Oregon, and Washington. It argues that despite their progressive reputation, these states have a legacy of discriminatory laws targeting Chinese, Black, and Japanese populations, which has led to enduring racial inequities that persist today.

Annotated Legal Bibliography

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

The Firearm Preemption Phenomenon, Rachel Simon

Cardozo Law Review

Forty-five states have adopted express preemption statutes curtailing or entirely prohibiting local gun regulation, and several jurisdictions now threaten localities with penalties for violating such restrictions. These measures have been remarkably effective in reducing the breadth and variety of gun laws nationwide, but their consequences have only just begun to attract attention. Public debates over guns tend to center on the Second Amendment while overlooking state-level obstacles to local lawmaking, and the scholarship on state-local preemption lacks an analysis devoted exclusively to the gun-policy space.

To fill these gaps, this Article provides a comprehensive account of the firearm preemption phenomenon. …

Deterring Illegal Firearms In The Community: Special Needs, Special Problems, And Special Limitations, Geoffrey S. Corn

Cardozo Law Review

Gun violence is no longer just a crime-control problem in the United States; it is a public health crisis. This crisis is most acute in densely populated and economically challenged communities. The threat of becoming the intended or innocent victim of gun violence in these communities has become so pervasive that it only seems to make the headlines when the numbers are truly shocking to the general public. Sadly, these numbers have become the norm for the residents of these communities. Government bears a responsibility to leverage every lawful measure to mitigate this safety hazard, no differently than it does …

Reparations For A Public Nuisance? The Effort To Compensate Survivors, Victims, And Descendants Of The Tulsa Race Massacre One Hundred Years Later, Adam Coretz

Cardozo Law Review

No abstract provided.

In Defense Of Felon-In-Possession Laws, Dru Stevenson

Cardozo Law Review

No abstract provided.

Bans With No Bite: Why Racial Profiling Bans Are Unable To Create Racial Justice In Policing, Rebecca Yin

Cardozo Law Review

No abstract provided.

Examining Civil Rights Litigation Reform, Part I: Qualified Immunity, Alexander A. Reinert

Testimony

The U.S. House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties issued the following testimony by Alexander A. Reinert, professor of litigation and advocacy at Benjamin N. Cardozo School of Law, involving a hearing on March 31, 2022, entitled "Examining Civil Rights Litigation Reform, Part 1: Qualified Immunity."

Cardozo's Civil Rights Clinic And The Nyclu File Lawsuit Challenging Unconstitutional Censorship In Ny Prisons, Benjamin N. Cardozo School Of Law

Cardozo News 2022

The New York Civil Liberties Union and the Civil Rights Clinic at the Benjamin N. Cardozo School of Law filed a federal lawsuit on March 31, challenging the New York State Department of Corrections and Community Supervision’s (DOCCS’) blanket censorship of Blood in the Water: The Attica Prison Uprising and Its Legacy, the Pulitzer-prize winning book by acclaimed professor and historian Dr. Heather Ann Thompson.

Advanced Directives And Pregnancy: A Comparison Between The Us And Ireland, Simone Shuman

Cardozo International & Comparative Law Review (CICLR) Blog

Advance directives enable patients to specify which medical treatment they do and do not want to receive ahead of time if they cannot make such a determination, including the refusal or ending of life support when the time to act on such a decision arises. There are two types of advance directives: (1) living wills where a patient lists their treatment preferences and (2) creating a health care power of attorney which vests the decision-making authority in a proxy. Since the creation of advance directives in 1976, all fifty states have adopted their own laws on advance directives.

This post …

Cardozo Law News Brief: March 25, 2022, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2022

Featured Faculty:

• Kathryn Miller
• Ekow N. Yankah
• Kate Shaw
• Pamela Foohey
• Jocelyn Getgen Kestenbaum
• Deborah Pearlstein
• Alexander A. Reinert
• Gabor Rona

Events:

• An Emergent Industry: Cannabis
• 25 Years of Section 230: Retain, Reform or Repeal?
• Big Law, Big Discovery, Big Trouble: Arnold & Porter and the Opioid Discovery Controversy
• Symposium: Women in the Judiciary
• 17th Annual E. Nathaniel Gates Award
• The Parthenon Marbles Case and the Universal Museum Myth: Policies and Politics