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Articles 1 - 30 of 276
Full-Text Articles in Law
Alexander Hamilton And Administrative Law: How America’S First Great Public Administrator Informs And Challenges Our Understanding Of Contemporary Administrative Law, Rodger D. Citron
Scholarly Works
Alexander Hamilton’s recognition and reputation have soared since the premiere of “Hamilton,” Lin-Manuel Miranda’s musical about him in 2015. For lawyers, Hamilton’s work on the Federalist Papers and service as the nation’s first Treasury Secretary likely stand out more than other aspects of his extraordinary life. Politics and economics were fundamental concerns addressed by the Framers in a number of ways, including what we now refer to as administrative law—the laws and procedures that guide government departments (or, as we say today, agencies). Indeed, “Hamilton” reminds us that questions of administration and administrative law have been with us since the …
The Tort Whisperer: Nine Decades Later–My Perspective, Larry M. Roth
The Tort Whisperer: Nine Decades Later–My Perspective, Larry M. Roth
Touro Law Review
This Article provides a comparative analysis of Judge Benjamin Cardozo’s tort decisions in Palsgraf v. Long Island Railroad Co., one of his most famous tort decisions, contrasted with a lesser-known tort opinion in Hynes v. New York Central Railroad Co. The Author attempts to address Cardozo’s humanistic and intellectual dichotomies which are exemplified by these two real-life tort precedents—one of which, Palsgraf, most practitioners may only have a distant recall. A historical overview of Cardozo’s life is also discussed. These two decisions portray Cardozo as an emotive human being exercising hit-or-miss judging. This theme provides a differ viewpoint from Cardozo’s …
The Supreme Court’S Hands-Off Approach To Religious Questions In The Era Of Covid-19 And Beyond, Samuel J. Levine
The Supreme Court’S Hands-Off Approach To Religious Questions In The Era Of Covid-19 And Beyond, Samuel J. Levine
Scholarly Works
No abstract provided.
“Seeking The Fruits Of Their Labors”: The Story Of Johnson V. Mcadoo, The First Major Reparations Case, John G. Browning
“Seeking The Fruits Of Their Labors”: The Story Of Johnson V. Mcadoo, The First Major Reparations Case, John G. Browning
Journal of Race, Gender, and Ethnicity
No abstract provided.
Requiring What’S Not Required: Circuit Courts Are Disregarding Supreme Court Precedent And Revisiting Officer Inadvertence In Cyberlaw Cases, Michelle Zakarin
Requiring What’S Not Required: Circuit Courts Are Disregarding Supreme Court Precedent And Revisiting Officer Inadvertence In Cyberlaw Cases, Michelle Zakarin
Scholarly Works
As the age of technology has taken this country by surprise and left us with an inability to formally prepare our legal system to incorporate these advances, many courts are forced to adapt by applying pre-technology rules to new technological scenarios. One illustration is the plain view exception to the Fourth Amendment. Recently, the issue of officer inadvertence at the time of the search, a rule that the United States Supreme Court has specifically stated is not required in plain view inquiries, has been revisited in cyber law cases. It could be said that the courts interested in the existence …
Justice Accused At 45: Reflections On Robert Cover’S Masterwork, Sanford Levinson, Mark A. Graber
Justice Accused At 45: Reflections On Robert Cover’S Masterwork, Sanford Levinson, Mark A. Graber
Touro Law Review
We raise some questions about the timeliness and timelessness of certain themes in Robert Cover’s masterwork, Justice Accused, originally published in 1975. Our concern is how the issues Cover raised when exploring the ways antislavery justices decided fugitive slave cases in the antebellum United States, played out in the United States first when Cover was writing nearly fifty years ago, and then play out in the United States today. The moral-formal dilemma faced by the justices that Cover studied when adjudicating cases arising from the Fugitive Slave Acts of 1793 and 1850 was whether judicial decision-makers should interpret the …
Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger
Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger
Touro Law Review
Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.
When Interpretive Communities Clash On Immigration Law: The Courts’ Mediating Role In Noncitizens’ Rights And Remedies, Peter Margulies
When Interpretive Communities Clash On Immigration Law: The Courts’ Mediating Role In Noncitizens’ Rights And Remedies, Peter Margulies
Touro Law Review
Immigration law gains clarity through the lens of Robert Cover's compelling work on law as a "system of meaning." Cover's vision inspires us to consider immigration law as a contest between two interpretive communities: acolytes of the protective approach, which sees law as a haven for noncitizens fleeing harm in their home countries, and followers of the regulatory approach, which stresses sovereignty and strict adherence to legal categories. Immigration law's contest between contending camps need not be a zero-sum game. As Cover and Alex Aleinikoff observed in their classic article on habeas corpus, a legal remedy can also be a …
Once Mentally Ill, Always A Danger? Lifetime Bans On Gun Ownership Under Fire Following Involuntary Commitment, Amanda Pendel
Once Mentally Ill, Always A Danger? Lifetime Bans On Gun Ownership Under Fire Following Involuntary Commitment, Amanda Pendel
Touro Law Review
18 U.S.C. § 922(g)(4) imposes a lifetime ban on those who have been involuntarily committed to a mental institution from purchasing, or possessing a firearm, regardless of an extended passage of time, or a finding that the individual is unlikely to pose a danger to themselves or the public. Three circuits have created a split concerning the constitutionality of this statute. The Third Circuit held in Beers v. Attorney General United States that those involuntarily committed were outside of the scope of the Second Amendment; therefore, the § 922(g)(4)’s categorical ban is constitutional. Next, the Ninth Circuit in Mai v. …
How Covid-19 Put The Spotlight On The Emtala, Ikra Kafayat
How Covid-19 Put The Spotlight On The Emtala, Ikra Kafayat
Touro Law Review
There was a time when those that were unable to afford medical care risked being denied treatment in emergency situations. Before Congress passed Emergency Medical Treatment & Labor Act (EMTALA), patients were being transferred to different hospitals, without being screened, because they did not have insurance and could not afford the treatment. Hospitals are no longer allowed to transport patients without properly screening and stabilizing them. Patients can bring a suit against a hospital if they believe the hospital violated EMTALA, however, in certain circuits the patient will need to prove that hospital had an “improper motive” for failing to …
You Have The Right To Remain Silent, And It Can And Will Be Used Against You: Addressing Post-Arrest Pre-Miranda Silence, Maria P. Hirakis
You Have The Right To Remain Silent, And It Can And Will Be Used Against You: Addressing Post-Arrest Pre-Miranda Silence, Maria P. Hirakis
Touro Law Review
The right to remain silent has long been recognized by the Supreme Court as requiring a high degree of protection. Since Miranda v. Arizona was decided in 1966, procedural safeguards have been put in place to inform individuals of this right upon arrest. Yet, a gray area exists when it comes to the use of an individual's silence post-arrest. It may surprise some that a point in time exists when an individual has not yet been read their Miranda rights post-arrest. Several circuit courts have taken the position that any silence that follows arrest but precedes the reading of Miranda …
Multiple Choice: How Instant Runoff Voting Improves Redistricting Under The Voting Rights Act, Aviel Menter, C.D. Alexander Evans
Multiple Choice: How Instant Runoff Voting Improves Redistricting Under The Voting Rights Act, Aviel Menter, C.D. Alexander Evans
Touro Law Review
As currently interpreted, Section 2 of the Voting Rights Act (“VRA”) can be a double-edged sword for minority representation. Although it gives protected minority groups their own majority/minority districts, this can dilute minority influence in other districts. Recently, however, many jurisdictions have begun to adopt Instant Runoff Voting (“IRV”), a ranked-choice voting system where voters rank multiple candidates in order of preference. By letting voters express support for multiple candidates, IRV provides useful information about the behavior of minority groups that courts can use when enforcing the VRA. Specifically, ranked-choice voting systems can better show when a winning candidate supported …
Baby, We Were Born This Way: The Case For Making Sexual Orientation A Suspect Classification Under The Equal Protection Clause Of The Fourteenth Amendment, Jennifer R. Covais
Baby, We Were Born This Way: The Case For Making Sexual Orientation A Suspect Classification Under The Equal Protection Clause Of The Fourteenth Amendment, Jennifer R. Covais
Touro Law Review
Currently, the Equal Protection clause of the Fourteenth Amendment of the U.S. Constitution provides minimal constitutional safeguards against discrimination based on sexual orientation. Laws that treat queer Americans differently than their straight counterparts are presumptively constitutional if those laws bear a rational relationship to any legitimate government interest. Consequently, states may limit same-goods and services of certain businesses, and qualify for government programs. The Supreme Court established enhanced equal protection guarantees for classifications based on race, ethnicity, and national origin which are deemed suspect classifications. These classifications will only survive judicial review if the government proves the law is necessary …
This Is Your Captain Speaking, Please Remain Physically Restrained While The Robbery Is In Progress, Conner J. Purcell
This Is Your Captain Speaking, Please Remain Physically Restrained While The Robbery Is In Progress, Conner J. Purcell
Touro Law Review
This note analyzes the current circuit split over the application of the “Physical Restraint” sentence enhancement as applied to the crime of robbery. In the first camp, the circuit courts apply a broad or constructive meaning of physical restraint: allowing words or demands with the use of a firearm to trigger the enhancement. In many cases, the courts focus on the victim’s reaction to the perpetrator rather than the perpetrator’s actual conduct, suggesting psychological restraint rather than physical restraint. In the second camp, the circuit courts apply a plain meaning interpretation of physical restraint. These cases routinely find that the …
The Americans With Disabilities Act Amendments Act: What About Reasonable Accommodation? Where Are We Now?, Teressa Elliott, Kathleen A. Carnes
The Americans With Disabilities Act Amendments Act: What About Reasonable Accommodation? Where Are We Now?, Teressa Elliott, Kathleen A. Carnes
Touro Law Review
The Americans with Disabilities Act Amendments Act (“ADAAA”) was passed in 2008 and became effective on January 1, 2009. There are issues regarding reasonable accommodation that have arisen in connection with this Act. This article first explains what changes were made to the ADA’s employment-related provisions with the ADAAA and also explains the relevant U.S. Supreme Court cases that led to passage of the ADAAA. Reasonable accommodation under the Act and reasonable accommodation cases are then discussed as well as the U.S. Airways v. Barnett case. We then end with ways to interpret these cases for guidance and the conclusion …
Banning Abortions Based On A Prenatal Diagnosis Of Down Syndrome: The Future Of Abortion Regulation, Alexandra Russo
Banning Abortions Based On A Prenatal Diagnosis Of Down Syndrome: The Future Of Abortion Regulation, Alexandra Russo
Touro Law Review
Since the infamous Supreme Court decision, Roe v. Wade, the United States has remained divided, each side unyielding to the other regarding the legal and moral issues surrounding abortion. The issues surrounding abortion have become progressively more politicized, thus threatening a woman’s right to a safe and healthy termination of her pregnancy. Restrictions on a woman’s ability to terminate a child with a genetic disorder, such as Down syndrome, highlight this concern. State restrictions on abortion that prohibit abortions based on a diagnosis of Down syndrome seek to prevent the stigmatization of the Down syndrome community. Regulations, such as …
Monasky’S Totality Of Circumstances Is Vague – The Child’S Perspective Should Be The Main Test, Sabrina Salvi
Monasky’S Totality Of Circumstances Is Vague – The Child’S Perspective Should Be The Main Test, Sabrina Salvi
Touro Law Review
After decades of confusion, the Supreme Court ruled on child custody in an international setting in Monasky v. Taglieri, by attempting to establish the definition of a child’s “habitual residence.” The Court held that a child’s “residence in a particular country can be deemed ‘habitual, however, only when her residence there is more than transitory.’” Further, the Court stated that, ‘“[h]abitual’ implies customary, usual, of the nature of a habit.”’ However, the Supreme Court’s ruling remains unclear. The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“HCCAICA” or “The Hague Convention”), which is adopted in ninety-eight …
Nine Ways Of Looking At Oklahoma City: An Essay On Sam Anderson’S Boom Town, Rodger D. Citron
Nine Ways Of Looking At Oklahoma City: An Essay On Sam Anderson’S Boom Town, Rodger D. Citron
Scholarly Works
No abstract provided.
Rabbi Lamm, The Fifth Amendment, And Comparative Jewish Law, Samuel J. Levine
Rabbi Lamm, The Fifth Amendment, And Comparative Jewish Law, Samuel J. Levine
Scholarly Works
Rabbi Norman Lamm’s 1956 article, “The Fifth Amendment and Its Equivalent in the Halakha,” provides important lessons for scholarship in both Jewish and American law. Sixty-five years after it was published, the article remains, in many ways, a model for interdisciplinary and comparative study of Jewish law, drawing upon sources in the Jewish legal tradition, American legal history, and modern psychology. In so doing, the article proves faithful to each discipline on its own terms, producing insights that illuminate all three disciplines while respecting the internal logic within each one. In addition to many other distinctions, since its initial publication, …
Amen Over All Men: The Supreme Court’S Preservation Of Religious Rights And What That Means For Fulton V. City Of Philadelphia, Christopher Manettas
Amen Over All Men: The Supreme Court’S Preservation Of Religious Rights And What That Means For Fulton V. City Of Philadelphia, Christopher Manettas
Journal of Race, Gender, and Ethnicity
No abstract provided.
The Long Shortlist: Women Considered For The Supreme Court, Michael Conklin
The Long Shortlist: Women Considered For The Supreme Court, Michael Conklin
Journal of Race, Gender, and Ethnicity
No abstract provided.
Seeking Economic Justice In The Face Of Enduring Racism, Deseriee A. Kennedy
Seeking Economic Justice In The Face Of Enduring Racism, Deseriee A. Kennedy
Scholarly Works
No abstract provided.
Rbg And Gender Discrimination, Eileen Kaufman
Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer
Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer
Scholarly Works
No abstract provided.
Trump V. Mazars Usa, Llp: The Case Of The Chief Justice And The Congressional Subpoenas, Rodger D. Citron
Trump V. Mazars Usa, Llp: The Case Of The Chief Justice And The Congressional Subpoenas, Rodger D. Citron
Scholarly Works
No abstract provided.
Justice Ginsburg, Civil Procedure Professor And Champion Of Judicial Federalism, Rodger D. Citron
Justice Ginsburg, Civil Procedure Professor And Champion Of Judicial Federalism, Rodger D. Citron
Scholarly Works
No abstract provided.
Rights And Obligations: Commemorating The 30th Anniversary Of The Americans With Disabilities Act Of 1990, Sharon Shapiro-Lacks
Rights And Obligations: Commemorating The 30th Anniversary Of The Americans With Disabilities Act Of 1990, Sharon Shapiro-Lacks
Touro Law Review
No abstract provided.
Justice Ginsburg, Civil Procedure Professor And Champion Of Judicial Federalism, Rodger D. Citron
Justice Ginsburg, Civil Procedure Professor And Champion Of Judicial Federalism, Rodger D. Citron
Touro Law Review
No abstract provided.
Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer
Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer
Touro Law Review
No abstract provided.
Does Due Process Have An Age Limit? Why The Law Concerning The Parental Right To Freedom Of Intimate Association In The Relationship With An Adult Child Is A Mischaracterization Of A Circuit Split, Bryan Schenkman
Touro Law Review
No abstract provided.