Law Commons^™

The Negative Effects Of Arbitration Clauses In Meal Delivery Service Subscriptions, Amanda Pasternak

CJCR Blog

This past June, Daily Harvest, a vegan meal delivery service that sells soups, smoothies, and more recalled one of its products, French Lentil + Leek Crumbles, after hundreds of consumer reports of gastrointestinal illness, potential liver function issues, and other adverse reactions. According to the Food and Drug Administration (FDA), from April 28 to June 17, 2022, around 28,000 units of the recalled product were distributed to consumers throughout the United States via online sales, direct delivery, and retail sales. Samples were also given to a small number of consumers. Daily Harvest received around 470 reports of illness, which the …

Oral Argument In Moore V. Harper And The Perils Of Finding “Compromise” On The Independent State Legislature Theory, Katherine A. Shaw

Online Publications

The Supreme Court’s cert grant last June in Moore v. Harper was an ominous note on which to end an explosive term. The grant seemed to broadcast an openness to embracing what’s known as the “independent state legislature theory,” or ISLT. It is a once-fringe idea that the U.S. Constitution, and in particular Article I’s “elections clause,” grants to state legislatures alone, and withholds from other state entities (think: courts and constitutions), the power to regulate elections for federal office.

Redistricting: Federal Law, State Constitution, And The Courts, Arisha Andha

ERSJ Blog

Gerrymandering through the method of redistricting poses a grave threat to our democracy. Redistricting is the redrawing of voting districts to reflect the census data collected every decade. Redistricting is supposed to be a bipartisan process that is reflective of the population, but laws surrounding the practice allow for partisan manipulation and racial discrimination. The practices of including or excluding specific groups from specific districts, also called gerrymandering, allow for districts to be redrawn so that the district favors one political party over another in elections and is inherently undemocratic Section 2 of the Voting Rights Acts (VRA) prohibits any …

You Do Not Have The Right To Remain Silent: The Lack Of Miranda Within “Child Welfare”, Jane Weiss

ERSJ Blog

Reform within the “child welfare” system is widely discussed due to the systems prejudicial nature. The system is called many names: the family policing system, the family regulation system, and the family destruction system.] Many Black and Brown families, specifically, struggle with systemic racism embedded in the “child welfare” system that causes constant fear that minor flaws will lead to family separation.] While many activists call for the system to be abolished, many supporters of abolition understand that the goal can only be achieved through reforms that hold the perpetrators accountable. However, many activists have had little luck fixing a …

State Digital Services Taxes: A Good And Permissible Idea (Despite What You Might Have Heard), Young Ran (Christine) Kim, Darien Shanske

Articles

Tax systems have been struggling to adapt to the digitalization of the economy. At the center of the struggles is taxing digital platforms, such as Google or Facebook. These immensely profitable firms have a business model that gives away “free” services, such as searching the web. The service is not really free; it is paid for by having the users watch ads and tender data. Traditional tax systems are not designed to tax such barter transactions, leaving a gap in taxation.

One response, pioneered in Europe, has been the creation of a wholly new tax to target digital platforms: the …

South Korean Court’S Landmark Decision Against North Korea, Hyesoo Hahn

CICLR Online

During the Korean War, about 50,000 to 70,000 South Korean soldiers were taken prisoner of war (POW) by North Korea and its allies. While North Korea claimed that most South Korean POWs expressed to remain in North Korea and repatriated only 8,343 POWs, 80 South Korean POWs who escaped from North Korea told a different story. Most testified that they were never asked whether they want to return to South Korea, and some testified that they were forced to say they want to remain in North Korea. Held captive against their will, 50,000 South Korean POWs were sent to North …

Glorification Of Serial Killers: How The Law Fails To Protect Families Of The Victims, Ksenia Khlystova-Gowda

AELJ Blog

Serial killers have always caused controversy. They have been talked about, feared, studied, and after their deaths, they have been remembered and memorialized in various forms of art. In pursuit of success and fame, movie and documentary directors attempt to promote their own narratives while depicting the gruesome and hideous murders and crimes of these killers. However, it appears that few consider the pain and suffering these “art forms” cause the families of serial killer victims. Almost every year, there are new media productions that put serial killers in the spotlight and depict their victims as sacrificial plot elements that …

How Ufc Fighters Are Being Punched In The Mouth Even After Stepping Out Of The Cage, William Schwartz

AELJ Blog

There is no questioning that the Ultimate Fighting Championship (“UFC”) is the premier mixed martial arts (“MMA”) promotion in the world. The UFC does pay their fighters more than other MMA promotions, but there are still plenty of people rightfully claiming that the UFC substantially underpays their fighters. In 2019, the UFC made over $900,000,000 in revenue and paid their fighters less than $150,000,000. That is sixteen percent of their revenue, which is significantly lower than what the National Football League (“NFL”), National Basketball Association (“NBA”), and Major League Baseball (“MLB”) pay their players. Those aforementioned leagues pay their players …

The Uscis Policy Manual: Exercising Questionable Authority Through Obscure Language, Marcy Pineda

ERSJ Blog

In 2022, the United States Citizenship and Immigration Services (USCIS) began creating a centralized online repository for USCIS's immigration policies called the USCIS Policy Manual ("the Manual"), a tool to assist and further consistency in the decisions rendered by immigration officers. The Manual also establishes procedure around certain nuances of immigration policy. Consequently, USCIS has established new procedures around the Violence Against Women Act (VAWA) self-petition.

This post was originally published on the Cardozo Journal of Equal Rights and Social Justice website on November 28, 2022. The original post can be accessed via the Archived Link button above.

The Legality Of Russian Gray-Market Imports, Ruben Attia

CICLR Online

In its efforts to cope with Western sanctions implemented in response of its invasion of Ukraine, Russia launched the parallel imports scheme, allowing the importation of many goods without the consent of their intellectual property right-holder. Such goods are called grey market goods because they have been formulated or packaged for a particular jurisdiction and are imported into a different jurisdiction in contradiction to the brand owner’s intention. The value of parallel imports in Russia may well attain $16 billion by the end of 2022, as reported by Russian Minister of Industry and Trade Manturov. The Russian scheme also protects …

Landlord Duties To Combat Tenant-On-Tenant Discrimination Under The Fair Housing Act, Nicholas Cinquina

ERSJ Blog

Congress passed the Fair Housing Act (“FHA”) during the Civil Rights movement, seeking to dispel discriminatory practices in the United States housing market. Relevant here, the FHA makes it unlawful to discriminate against protected class members in the “terms, conditions, or privileges of...rental of a dwelling, or in the provision of services or facilities in connection therewith....” Additionally, under the FHA, it is unlawful to “...interfere with any person in the exercise or enjoyment of...any right granted or protected...in this title.” Whether the FHA can be construed to make it unlawful for a property owner to acquiesce in tenant-on-tenant discriminatory …

Dynamic Pricing Algorithms, Consumer Harm, And Regulatory Response, Alexander Mackay, Samuel Weinstein

Articles

Pricing algorithms are rapidly transforming markets, from ride-sharing, to air travel, to online retail. Regulators and scholars have watched this development with a wary eye. Their focus so far has been on the potential for pricing algorithms to facilitate explicit and tacit collusion. This Article argues that the policy challenges pricing algorithms pose are far broader than collusive conduct. It demonstrates that algorithmic pricing can lead to higher prices for consumers in competitive markets and even in the absence of collusion. This consumer harm can be initiated by a single firm employing a superior pricing algorithm. Higher prices arise from …

The Acceptance Of Nfts In The Art World, Alissa Donovan

AELJ Blog

Since the first creation of non-fungible tokens (NFTs) in 2014, some have tried to discredit this new technology as a scam undeserving of legitimate artistic consideration. The test of time has proven otherwise, as the use of NFTs has expanded to impact numerous industries. Although the collapse of NFT trading volumes in September of 2022 allowed critics an “I told you so” moment, NFTs seem to be continuously expanding in both use and legitimacy from their first conception. Significantly, art museums have also made a statement: NFTs are a legitimate art form and a lucrative move for the future of …

Keeping The Economy On Track: The Role Of Mediation, Super Mediation, And The National Mediation Board In Rail Labor Disputes, Chelsea Hill

CJCR Blog

The threat of strike action by America’s railway workers in late summer 2022, in response to an inability to agree to a new contract acceptable to both management and labor, raised fears of a national economic shutdown. Although an agreement is pending ratification by rail union membership, a potential rail strike in an already-fragile economy highlighted an inherent tension in the way collective bargaining in the rail industry is governed under the Rail Labor Act (“RLA”). The RLA established a procedure-heavy process with designated roles for multiple federal government actors and an emphasis on mediation, establishing a new, independent executive …

Brief Of Law Professors As Amici Curiae In Support Of Applicants’ Application To Vacate The Injunction Entered By The United States Court Of Appeals For The Eighth Circuit, Pamela Foohey

Amicus Briefs

Amici curiae Dean Erwin Chemerinsky and Professors William Araiza, Matthew Bruckner, Pamela Foohey, Jonathan Glater, Luke Herrine, Dalié Jiménez, Jeffrey Lubbers, Chrystin Ondersma, Peter Shane, and Peter Strauss are professors of law at universities throughout the United States, with expertise in student financial assistance programs under Title IV of the Higher Education Act of 1965 and administrative and constitutional law. Amici file this brief in support of Applicants because this case presents important questions within amici’s professional expertise, namely, the scope of the Department of Education’s authority to provide relief to borrowers and the development of this Court’s statutory …

The Supreme Court Revisits Affirmative Action: The Potential For A Major Decline In Diversity, Jessica Waldman

ERSJ Blog

Affirmative action was conceived amidst the civil rights movement of the 1960s as an attempt to create more opportunities for people who have been historically disadvantaged based on their race, religion, or sex. According to the Legal Information Institute, “[a]ffirmative action is defined as a set of procedures designed to; eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future.” In accordance with the policy for government employers, many universities and colleges began to adopt similar policies to combat the historical racial discrimination in higher education, having an effect of more …

The Monkeypox Problem, Sean Dalton

ERSJ Blog

In the spring and summer of 2022, monkeypox spread throughout the world, and had a prominent impact on the United States. The outbreak became so prevalent that the US Department of Health and Human Services declared monkeypox to be a national emergency in August. While transmission seems to have slowed during the last few months (likely due to the distribution of vaccines) there are serious issues for the US moving forward in terms of how the government reacts to outbreaks, particularly ones that predominantly impact marginalized communities.

This post was originally published on the Cardozo Journal of Equal Rights and …

The Power And Failure Of Fifa To Be A Force For Lgbtq And Human Rights, Issac Gamboa

AELJ Blog

The FIFA World Cup began in November, and with it, the attention of an anticipated three billion viewers turned to this year’s host nation Qatar. Qatar is the first Middle Eastern country to host the event and has spent billions of dollars to quickly build the infrastructure necessary to host the tournament. But as Qatar worked to improve its infrastructure for the tournament, concerns over the host nation’s discriminatory laws against the LGBTQ community caused many to wonder how the strictly religious Arab country could accommodate such a diverse fanbase.

This post was originally published on the Cardozo Arts & …

Textualism, Judicial Supremacy, And The Independent State Legislature Theory, Leah M. Litman, Katherine A. Shaw

Articles

This piece offers an extended critique of one aspect of the so-called "independent state legislature" theory. That theory, in brief, holds that the federal Constitution gives state legislatures, and withholds from any other state entity, the power to regulate federal elections. Proponents ground their theory in two provisions of the federal Constitution: Article I's Elections Clause, which provides that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof," and Article H's Presidential Electors Clause, which provides that "[e]ach State shall appoint, in such Manner as the Legislature …

Justice Center Leader's Journey From Prison To Changemaker, Derrick Hamilton

Perlmutter Center News

Derrick Hamilton, deputy director of Cardozo School of Law's Perlmutter Center for Legal Justice, studied law while in prison and won his own exoneration after serving a 21-year sentence. Today, he hopes to make big changes in the justice system to ensure others don't need to do the same.

Can Artificial Intelligence Be Inventors Under Current Patent Law?, Sarah Alexandra Batterman

CICLR Online

As technological developments in artificial intelligence (AI) develop, so have questions as to what AI’s role should be within the larger universe of intellectual property. For instance, in U.S. patent law it is normally the person who conceives of the invention who has the right to be named the inventor of the patent and thus afforded patent protection. “Conception” requires an inventor to have a specific solution to a problem and is considered to be accomplished only when the idea is so clearly defined in the inventor’s mind that “only ordinary skill would be necessary to reduce the invention to …

The “Food Blog” Scroll And Its Impact On Online Legal Research, Olivia R. Smith Schlinck

Library Staff Online Publications

After transitioning from a written to a “live” format for assignments in my Advanced Legal Research class, I noticed a vaguely familiar pattern of students unintentionally scrolling past relevant information on their screens.

Brief Of Amici Curiae On Behalf Of Professors In Support Of Petitioner, Leslie Salzman, Rebekah Diller

Amicus Briefs

Amici curiae are professors who research, write, and teach about disability law, special education, civil rights, and administrative law. They are interested in the proper application of the statutes that protect disabled students’ rights and in the scope of exhaustion doctrine. Amici also have an interest in preserving the ability of parties to voluntarily settle disputes, particularly in the context of the legislative schemes here, which encourage cooperation between parties.

Spotify V. Apple—Why These Two Tech Giants Don’T See Eye-To-Eye, Dylan Blanchard

AELJ Blog

On October 25, 2022, the audio streaming platform Spotify posted an article on their blog titled It’s Past Time to Play Fair: Apple’s Anti-Competitive Behavior Hurts Everyone—Including Audiobook Listeners, Publishers, and Authors. The article links to a self-published website devoted to explaining all the ways in which Apple participates in the market unfairly; most recently culminating in Apple’s continuous compliance roadblocks on Spotify’s latest app feature is audiobooks.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on November 15, 2022. The original post can be accessed via the Archived Link button above.

Tequila, Or Not Tequila? Appellation Of Origin, And The Saga Of Temequila, Max Kleiner

CICLR Online

When you think of tequila, the first thing that probably comes to mind is the spirit. Perhaps you are thinking of the song, or the town in the Mexican state, Jalisco. But chances are you are thinking about shots and lime wedges, an expensive glass bottle with an ornamental plug at the top, or a cold green cocktail served in a coupe glass with a salted rim. And I would never fault you for thinking of any of those things. But have you ever asked yourself what makes tequila tequila?

This post was originally published on the Cardozo International & …

Netflix Copyright Lawsuit Results In Final Curtain For “Unofficial Bridgerton Musical.” Could Other Fanworks Be Next?, Madeleine Higgs

AELJ Blog

Shortly after the first season of the Netflix television show Bridgerton debuted, another project began. Struggling musician Abigail Barlow found inspiration in the show, which she felt had an inherent quality that lent itself perfectly to a Broadway-style musical. After a clip of herself singing a Bridgerton-inspired song went viral on TikTok, Barlow teamed up with fellow musician Emily Bear, and the work to create a full album based on the show began in earnest. Hype continued to build throughout the songwriting process, as Barlow and Bear’s songs amassed roughly thirty-six million likes on TikTok, and before long, the album …

Race Discrimination In Temporary Protected Status: Why Honduras Still Lacks Sufficient Protection, Maleah Bradley

ERSJ Blog

In November 2020, Hurricane Eta, a category 4 hurricane, slammed the coast of Honduras and caused widespread flooding and destruction across the whole of Central America. Just two weeks later, Hurricane Iota, a category 5 hurricane, hit an already-reeling Honduras, causing water levels to reach rooftops, completely washing away bridges, and causing billions of dollars in damage across the country. In the area of the Ulua River near San Pedro Sula, water levels rose almost a meter higher than the highest-recorded levels during the infamous Hurricane Mitch in 1998. These hurricanes affected more than 4.5 million people in Honduras alone, …

The Pga Tour V. Liv Golf: The Antitrust Case, Alexandria Ciadrullo

AELJ Blog

There has been controversy in the world of professional golf over recent months with the emergence of LIV Golf. Funded by Saudi Arabia’s Sovereign Wealth Fund, LIV has undergone criticism for being a tool used to “sportswash” Saudi Arabia’s terrible human rights record and improve the image of the Kingdom. Despite these critiques, LIV has managed to entice ten of the world’s top-fifty golfers by offering hundreds of millions of dollars in guaranteed money.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on November 9, 2022. The original post can be accessed via the …

Abu Zubaydah And Publicly Available State Secrets, Hunter Rebetti

CICLR Online

In 2002, the Pakistani government arrested Abu Zubaydah, a suspected lieutenant of the terrorist group Al Qaeda, before passing him off to the Central Intelligence Agency (CIA). Early on in Zubaydah’s imprisonment he was moved between various CIA detention cites. Zubaydah claims the CIA held him in a detention site (aka “black-site”) in Poland during 2002 and 2003. Neither the CIA, nor any other branch of government, have confirmed that there is a detention site located in Poland.

This post was originally published on the Cardozo International & Comparative Law Review on November 9, 2022. The original post can be …

Europe’S War On Loot Boxes, David Azrak

CICLR Online

Among the more pernicious forms of video game monetization, the much-reviled loot box, a digital capsule of collectible goods, faces ever ratcheting calls for regulation within the European Union. This past June, a group of twenty consumer rights organizations from eighteen European nations formally called on EU authorities to regulate the industry practice viewed as deceptive and predatory. Accounting for $15 billion in revenue in 2020 alone, including $1.6 billion in sales from publisher Electronic Arts’ (“EA”) various sports titles, loot boxes comprise a sizable chunk of industry revenue streams. They are here to stay it seems, at least for …