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Call For Papers – Transparency And Disclosure In Private And Government Data Collection, Cardozo Arts & Entertainment Law Journal

AELJ Blog

The Cardozo Arts & Entertainment Law Journal (AELJ) is pleased to announce its annual symposium, Transparency and Disclosure in Private and Government Data Collection, being held this spring at the Benjamin N. Cardozo School of Law, New York, New York. In conjunction with this event, AELJ will also publish a symposium edition.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on January 20, 2014. The original post can be accessed via the Archived Link button above.

Aelj Alumni Are Invited To The Inaugural Cardozo Bmi Networking Reception, Cardozo Arts & Entertainment Law Journal

AELJ Blog

Join fellow attorneys, state and federal judges, industry professionals, professors, and students for an evening of food, drinks, and discussion to kickstart the Cardozo BMI Moot Court Competition. This evening presents a unique opportunity to network, strengthen and build relationships between alumni, practicing attorneys, judges, industry professionals, and the faculty and students of the Cardozo School of Law.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on January 13, 2014. The original post can be accessed via the Archived Link button above.

Why Answer?, Anthony J. Sebok

Online Publications

Prof. Nils Jansen’s new article, The Idea of Legal Responsibility, is an ambitious work of tort theory. Jansen engages some of the most basic questions of private law. The article’s rewards are found on two levels. First, the argument it propounds—that responsibility in tort can be usefully (if not exclusively) framed in terms of restitution– is intriguing and offers another take on corrective justice. Second, the framework around which Jansen builds his argument – the evolution of the law of restitution in scholastic and early modern European private law– is one that may be unfamiliar to many common lawyers. …

Happy New Year!, Cardozo Arts & Entertainment Law Journal

AELJ Blog

The Editors and Staff at the Cardozo Arts & Entertainment Law Journal wish you a happy new year. This spring, we are looking forward to providing you two more issues of Volume 32, two symposia with free CLE, and another alumni event. Please continue to check our website for details as they are available.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on January 9, 2014. The original post can be accessed via the Archived Link button above.

Back To Basics: Special Domestic Violence Jurisdiction In The Violence Against Women Reactivation Act Of 2013 And The Expansion Of Inherent Tribal Sovereignty, Laura C. Sayler

Cardozo Law Review de•novo

Part I of this Note outlines the VAWA Reactivation Act of 2013, as well as the case law that it seeks partially to abrogate. Part II.A examines the delegation and inherent sovereignty theories more closely, and argues that inherent tribal sovereignty is the superior mechanism for validating the Act. Parts II.B, II.C, and II.D review the basic textual authority that should form the foundation of the Court’s analysis, and conclude that this authority supports recognition of inherent tribal sovereignty. Part III addresses counter arguments to this approach, and argues that, in upholding sections 904 and 905, the Court need not …

Low-Profit Limited Liability Companies: High-Risk Tax Fad Or Legitimate Social Investment Planning Opportunity?, Jamie Hopkins

Cardozo Law Review de•novo

Any entrepreneur starting a new venture will inevitably have to address issues of entity formation as well as fundamental tax and legal planning. Prior to existence of the Low-Profit Limited Liability Company, commonly referred to as the “L3C,” entrepreneurs with social objectives seeking to formalize their businesses legally were limited in choice between either nonprofit or for-profit private company structures. While each of these organizational structures has their own benefits and drawbacks, social entrepreneurs are often left without a business form designed for their unique business models. In order to address this dilemma, the L3C is designed to combine benefits …

Nlrb V. Noel Canning Presents A Nonjusticiable Political Question, Victor Williams

Cardozo Law Review de•novo

This Article argues that the Noel Canning challenge to the President’s use of his recess appointment authority presents a nonjusticiable political question. The work draws from arguments developed for this author’s Supreme Court amicus briefs in Noel Canning, other amicus briefs lodged during the past year for related actions in the Third, Fourth, Seventh, Ninth, and D.C. Circuits, and a variety of this author’s commentary on federal appointments.

Federally Recognized Rights Of Lgbtq Students To Form Gay-Straight Alliance Organizations (Gsas), Jerry Foxhoven

Cardozo Law Review de•novo

The purpose of this article is to explore the various avenues that have been used in the federal courts to ensure the right to organize Gay Straight Alliances (GSAs), and to detail the use of the federal courts by students who assert the right to express contrary views on sexual orientation issues.

College Students’ Online Speech: Searching For The Appropriate Standards Within First Amendment Case Principles, Jeffrey C. Sun, Neal H. Hutchens

Cardozo Law Review de•novo

College student free speech cases, particularly as applied to student online speech challenges, suffer from conflicting legal principles. This paper highlights empirically noted problems in resolving disputes between a college student’s free speech rights and a public college’s authority to maintain order and campus safety. In Part I of this paper, the authors present the established legal principles from two foundational cases addressing issues of student speech in the educational context. In Part II, the authors demonstrate how courts have used PK12 education cases and public employment cases as sources that address legal principles for college student speech cases—particularly to …

Constitutional Implications Of School Punishment For Cyber Bullying, Raul R. Calvoz, Bradley W. Davis, Mark A. Gooden

Cardozo Law Review de•novo

In this article, we address the scope of student free speech rights as it relates to cyber bullying. We provide a review of legal theories under which school administrators can address cyber bullying while still respecting student free speech rights and the First Amendment. Additionally, we address the jurisdiction of administrators to deal with off-campus bullying conduct.

The Limits Of Christian Legal Society, William E. Thro

Cardozo Law Review de•novo

In Christian Legal Society v. Martinez, a sharply divided Supreme Court held that officials at a public institution might require a student religious group to admit all-comers from the student body, including those who disagree with its beliefs, as a condition of being a recognized student organization. Put another way, the Court declared that the government, through university officials, might force religious groups to choose between compromising their values and receiving benefits that other student groups receive as a matter of constitutional right.

While Christian Legal Society remains the controlling constitutional rule until explicitly overruled, there are significant limits …

The Basic Logic Of Post-Tinker Jurisprudence, R. George Wright

Cardozo Law Review de•novo

Tinker v. Des Moines Independent Community School District is rightly regarded as a landmark student speech case. At this point, however, it is fair and important to ask about the likely consequences of radically abandoning Tinker and the succeeding case law. What might it mean, at this historical point, to abandon Tinker along with its qualifying and limiting cases? The discussion briefly pursues this question and endorses a radical abandonment of Tinker and the succeeding cases as binding case law.

A New Approach To Judicial Scrutiny Of Voter Registration Laws, David Feinstein

Cardozo Law Review de•novo

This Note argues that 3PVRO activities implicate First Amendment rights to a degree that merits substantial constitutional protection, and therefore more robust judicial scrutiny of laws regulating them. The applicable constitutional standard requires a court to ask whether the regulated acts constitute political activity within the meaning of the First Amendment. An approach that more accurately reflects the political nature of voter registration will likewise enhance the utility of that standard, and yield more consistent results. This Note further argues that in certain cases restrictions on voter registration activities severely burden core First Amendment rights, and should therefore be subject …

The Aftermath Of Hobby Lobby: Hsas And Hras As The Least Restrictive Means, Edward A. Zelinsky

Articles

In Burwell v. Hobby Lobby Stores, Inc., the United States Supreme Court held that the Religious Freedom Restoration Act of 1993 (RFRA) does not require closely-held corporations’ employer-sponsored medical plans to provide forms of contraception that shareholders of such corporations object to on religious grounds. The question now raised is how the President, Congress, and the departments of Health and Human Services (HHS), Treasury and Labor, ought to respond to the Hobby Lobby decision.

Immutability And Innateness Arguments About Lesbian, Gay, And Bisexual Rights, Edward Stein

Articles

No abstract provided.

The Trials Of Clinical Education, Jonathan H. Oberman, Ekow N. Yankah

Articles

No abstract provided.

Apportioning State Personal Income Taxes To Eliminate The Double Taxation Of Dual Residents: Thoughts Provoked By The Proposed Minnesota Snowbird Tax, Edward A. Zelinsky

Articles

As a matter of both tax policy and constitutional law, it is time to apportion state personal income taxes to eliminate the double taxation of dual residents. Individuals who, for income tax purposes, are residents are two or more states should be taxed along the lines recently proposed by Minnesota Governor Mark Dayton for “snowbirds”: As to income with respect to which a state has source jurisdiction, that state should tax such income. As to income which two or more states tax only on the basis of residence, such states should apportion, based on the dual resident’s relative presence in …

Crowd-Classing Individual Arbitrations In A Post-Class Action Era, Myriam E. Gilles, Anthony J. Sebok

Articles

Class actions are in decline, while arbitration is ascendant. This raises the question: will plaintiffs' lawyers skilled in bringing small value, large-scale litigation-the typical consumer, employment, and antitrust claims that have made up the bulk of class action litigation over the past forty years-hit upon a viable business model which would allow them to arbitrate one-on-one claims efficiently and profitably? The obstacles are tremendous: without some means of recreating the economies of scale and reaping the fees provided by the aggregative device of Rule 23, no rational lawyer would expend the resources to develop and arbitrate individual, small-value claims against …

The Courts And National Security: The Ordeal Of The State Secrets Privilege, David Rudenstine

Articles

No abstract provided.

Why The Buffett-Gates Giving Pledge Requires Limitation Of The Estate Tax Charitable Deduction, Edward A. Zelinsky

Articles

The Buffett-Gates Giving Pledge, under which wealthy individuals promise to leave a majority of their assets to charity, is an admirable effort to encourage philanthropy. However, the Pledge requires us to confront the paradox that the federal estate tax charitable deduction is unlimited while the federal income tax charitable deduction is capped. If a Giving Pledger leaves his wealth to charity, the federal fisc loses significant revenue since the Pledger thereby avoids federal estate taxation as charitable bequests are deductible without limit for federal estate tax purposes. Despite its laudable qualities, the Giving Pledge is a systematic (albeit inadvertent) threat …

Constitutional Venue, Peter L. Markowitz, Lindsay C. Nash

Articles

A foundational concept of American jurisprudence is the principle that it is unfair to allow litigants to be haled into far away tribunals when the litigants and the litigation have little or nothing to do with the location of such courts. Historically, both personal jurisdiction and venue each served this purpose in related, but distinct ways. Personal jurisdiction is, at base, a limit on the authority of the sovereign. Venue, in contrast, aims to protect parties from being forced to litigate in a location where they would be unfairly disadvantaged. The constitutional boundaries of these early principles came to be …

Legal And Ethical Concerns About Sexual Orientation Change Efforts, Tia Powell, Edward Stein

Articles

No abstract provided.

How Wartime Detention Ends, Deborah N. Pearlstein

Articles

Despite efforts by two presidents to end U.S. detention operations at Guantanamo Bay, Cuba, closing Guantanamo has proven to be an extraordinary challenge. Some of the reasons why are historically common problems of prisoner repatriation, such as finding host countries for those who cannot be repatriated without facing the risk of persecution. Yet one significant contemporary obstacle to Guantanamo closure is without identifiable precedent: statutory spending conditions sharply restricting the President’s ability to transfer detainees away from the prison. As this essay demonstrates, in none of the major wars of the past century did Congress impose any such restriction. Rather, …

Screening Out Innovation: The Merits Of Meritless Litigation, Alexander A. Reinert

Articles

Courts and legislatures often conflate merit-less and frivolous cases when balancing the desire to keep courthouse doors open to novel or unlikely claims against the concern that entertaining ultimately unsuccessful litigation will prove too costly for courts and defendants. Recently, significant procedural and substantive barriers to civil litigation have been informed by judicial and legislative assumptions about the costs of entertaining merit-less and frivolous litigation. The prevailing wisdom is that eliminating merit-less and frivolous claims as early in a case’s trajectory as possible will focus scarce resources on the truly meritorious cases, thereby ensuring that available remedies are properly distributed …

What Do We Talk About When We Talk About Control, Anthony J. Sebok

Articles

Despite the recent rejection by the ABA of attempts to weaken the limitations on the sharing of fees with non-lawyers, pressure to allow laypersons to invest in lawsuits remains. This article looks at one argument against lay investment in litigation, which is that laypersons should not be able to control how litigation is conducted.

A Proposal To Withhold Divorce Decrees On Grounds Of Equity, J. David Bleich

Articles

Throughout the medieval period, marriage was acknowledged by temporal rulers to be a religious matter governed by the ecclesiastic law of the Church which, to be sure, incorporated many principles of Roman law. Subsequent to the Reformation, the rulers of many European countries became disposed to regard marriage as a civil act, to withdraw marriage from the control of the church and to entrust it entirely to the state. The Napoleonic Code was the first example of a legal system that treated marriage as a purely civil act. The Napoleonic Code did not deny the religious element present in marriage …

Rethinking Online Privacy In Canada: Commentary On Voltage Pictures V. John And Jane Doe, Ngozi Okidegbe

Articles

This article problematizes the use of the bona fide case standard as the legal standard for a court to order a third party Internet Service Provider ("ISP") to disclose subscriber information to a copyright owner in online piracy cases. It argues that ISP account holders have a reasonable expectation of privacy in their subscriber information. It contends that the current bona fide case standard affords a relatively low threshold of protection for Internet users’ subscriber information. The reason for which the article takes this position is that the bona fide case standard can be met solely by IP address evidence, …

Through A Glass, Darkly: The Rhetoric And Reality Of Campaign Finance Disclosure, Jennifer A. Heerwig, Katherine Shaw

Articles

In Citizens United v. FEC, the Supreme Court swept away long-standing limits on corporate spending in federal elections, but it also strongly affirmed the constitutionality of robust disclosure and disclaimer requirements. In the wake of that decision, many proponents of campaign finance regulation have turned their attention to disclosure as the best remaining mechanism by which to regulate money in elections. At the same time, opponents of campaign finance regulation — including the legal team behind Citizens United — have trained their sights on disclosure, filing new challenges to existing disclosure require- ments in a number of state or federal …