Law Commons^™

Accessing Justice Ii: A Model For Providing Counsel To New York Immigrants In Removal Proceedings, Stacy Caplow, Peter L. Markowitz, Claudia Slovinsky, Jojo Annobil, Peter Cobb, Amy L. Kenepaske, Nancy Morawetz, Lindsay Nash, Raluca Oncioiu, Oren Root, Maribel Hernández Rivera, Jane Stern, Isaac Wheeler, Marianne Yang

Online Publications

The New York Immigrant Representation Study (“NYIR Study”) is a two-year project of the Study Group on Immigrant Representation to analyze and ameliorate the immigrant representation crisis—the acute shortage of qualified attorneys willing and able to represent indigent immigrants facing deportation. The crisis has reached epic proportions in New York and shows no signs of abating.

In its year-one report (issued in the fall of 2011), the NYIR Study analyzed the empirical evidence regarding the nature and scope of the immigrant representation crisis. In that report, we documented how many New Yorkers—27 percent of those not detained and 60 percent …

Killing Them With Kindness: Examining "Consumer-Friendly" Arbitration Clauses After At&T Mobility V. Concepcion, Myriam E. Gilles

Articles

The article focuses on the U.S. Supreme Court case AT&T Mobility LLC v. Concepcion, in which California's "Discover Bank rule" was struck by the Court under the Federal Arbitration Act, which was upheld by the California Supreme Court in the court case Discover Bank v. Superior Court. It provides information that the rule is a judge-made rule which depicts that class action waivers are unforceable in arbitration agreements if such agreements are mentioned in standard form consumer contracts.

Exchanging Information Without Intellectual Property, Michael J. Burstein

Articles

Contracting over information is notoriously difficult. Nearly fifty years ago, Kenneth Arrow articulated a “fundamental paradox” that arises when two parties try to exchange information. To complete such a transaction, the buyer of information must be able to place a value on the information. But once the seller discloses the information, the buyer can take it without paying. The conventional solution to this disclosure paradox is intellectual property. If the information is protected by a patent or a copyright then the seller can disclose the information free in the knowledge that the buyer can be enjoined against making, using, or …

Why The Rise Of Online Digital Media Stores Means Trouble For The Dmca, Sam Castree Iii

AELJ Blog

Online media distribution has become big business in recent years. For example, Apple sold 10 billion songs on its iTunes platform between April 2003 and February 2010, an average of 46 songs per second. So far in 2012, Amazon.com has sold 14% more e-books than traditional paper books. These and other online digital media stores allow individuals and companies big and small to distribute their creative works worldwide. However, the ease of copying electronic files also turns digital media stores into excellent opportunities for the unscrupulous to turn a quick, dirty payday. Numerous creators, typically lone individuals and small start-up …

The American Invents Act And Economic Growth: A Discussion With Bernard Knight, Adam Hirst

AELJ Blog

The Cardozo Intellectual Property Society hosted Mr. Bernard Knight, the current General Counsel of the US Patent and Trademark Office (USPTO), for a discussion of his role as the chief attorney for a large US government agency and recent, significant, changes to patent law, with particular emphasis on the America Invents Act (AIA).

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on November 18, 2012. The original post can be accessed via the Archived Link button above.

Dr. Elena Cooper Presents Her Latest Article At Cardozo Law School: Copyright: A Nineteenth Century Publicity Right?, Elsa Mitsoglou

AELJ Blog

Dr. Elena Cooper has been the Orton Fellow in Intellectual Property Law at Trinity Hall, Cambridge since 2009. She is also a researcher at the Faculty of Law on the “Of Authorship and Originality” project, funded by Humanities in the European Research Area (HERA). Dr. Cooper received a law degree from the London School of Economics and a master’s degree in Intellectual Property Law from King’s College London. She also has a PhD from the University of Cambridge, where her studies focused on the relationship between art and law in the history of photographic copyright. Her PhD thesis was awarded …

Blogging Without Logging Ftc Lawsuits: A Panel Discussion, Marc Pellegrino

AELJ Blog

The line is increasingly blurred between what content is or is not endorsed by a particular entity online. Social marketing outlets like Facebook and Twitter allow bloggers, celebrities and companies to communicate with their audience more intimately and in turn, content is shared and disseminated seamlessly among Internet users. Cardozo School of Law’s Intellectual Property Law and Cyberlaw Societies brought a panel together last month to discuss the ways in which businesses that interact with the vast array of these social networking outlets can effectively comply with Federal Trade Commission (FTC) disclosure regulations in light of the increase in sponsored …

Grammy Foundation, The Entertainment Law Initiative (“Eli”), Breakfast With Eli, October 23, 2012, Al Roundtree

AELJ Blog

“What a prosperous looking bunch of lawyers,” was keynote speaker Scott Borchetta’s opening remark to the assembled group of entertainment lawyers, music industry professionals, and law students at last month’s Breakfast with ELI.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on November 12, 2012. The original post can be accessed via the Archived Link button above.

Traditional Knowledge, Cultural Expression, And The Siren's Call Of Property, Justin Hughes

Articles

Discussions on international legal norms for the protection of TK/TCE have, in their contemporary form, been ongoing since the late 1990s. In that time, our understanding of key issues for a workable system—subject matter, beneficiaries, rights, or protections—have advanced little, if at all. Indeed, as Michael Brown has observed, “vexing questions of origins and boundaries . . . are commonly swept under the rug in public discussions.” Yet even if all those questions were settled, we also need a clear justification or justifications for a new form of intellectual property on the world stage.

Copyright’S Merger Doctrine As A Solution To Conflicts Between Copyright Law And Freedom Of Speech, Russell Hasan

AELJ Blog

Some academics have raised concerns that copyright law might be in conflict with First Amendment free speech law. Some scholars fear that copyright law might restrict the free flow of information in the marketplace of ideas. The typical answer to such concerns, embodied in the Supreme Court cases Harper & Row Publishers Inc. v. Nation Enterprises and Eldred v. Ashcroft, is that copyright law contains internal doctrinal mechanisms, namely the idea-expression dichotomy and fair use, which alleviate free speech concerns. Copyright law protects only expressions, not ideas or facts; so where free speech might encourage an idea or fact to …

Jarecki V. Ohoven: Medimmune As A Sword For Certain Copyright Owners, Paul G. Anderson

AELJ Blog

Copyright, compared to other forms of intellectual property, is acutely and uniquely attuned to the film and television industry. Somewhat distinctive of these industries are the numerous, low–threshold hurdles that can significantly interfere with a copyright owner’s commercial exploitation of their work in connection with a film or television production.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 1, 2012. The original post can be accessed via the Archived Link button above.

The Right To Data Portability: Is This New Privacy Right Contrary To Antitrust Law?, Ryan Brewer

AELJ Blog

The Cardozo IP & Information Law Program kicked off its fall 2012 IP Speaker Series with a presentation by Professor Peter Swire. Professor Swire teaches at the Moritz College of Law at Ohio State University and is a national and global leader on privacy, cybersecurity, and related technology issues. In his third appearance at the Benjamin N. Cardozo School of Law, Professor Swire discussed his upcoming article: The Right to Data Portability: Is This New Privacy Right Contrary to Antitrust Law?

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 1, 2012. The …

2012 Cardozo Life (Fall), Benjamin N. Cardozo School Of Law

Cardozo Life

Table of Contents:

Campus News, page 3

Working for New Jobs, page 16

Faculty Briefs, page 18

Teaching Law Now, page 23

Alumni News & Advancement, Class Notes, page 34

Practicing Law Now, page 37

Studying Law Now, page 48

The White House … The Supreme Court … Guantanamo Bay, page 70

Looking Back, page 72

Putting State Courts In The Constitutional Driver's Seat: State Taxpayer Standing After Cuno And Winn, Edward A. Zelinsky

Articles

This article explores the implications of the U.S. Supreme Court’s decisions in DaimlerChrysler Corp. v. Cuno and Arizona Christian School Tuition Organization v. Winn. In Cuno and Winn, the Court held that state taxpayers lacked standing in the federal courts. Because the states have more liberal taxpayer standing rules than do the federal courts, Cuno and Winn will not terminate taxpayers’ constitutional challenges to state taxes and expenditures, but will instead channel such challenges from the federal courts (where taxpayers do not have standing) to the state courts (where they do). Moreover, municipal taxpayer standing in the federal courts, which …

A Change For The Better: Copyright Law No Longer Immune To Medimmune, Paul G. Anderson

AELJ Blog

An action for declaratory judgment provides a party with the unique opportunity to obtain a preventative, binding ruling on “a case of actual controversy.” Crucially, if a declaratory judgment action does not involve an actual “case or controversy”, the matter will be summarily dismissed for a lack of subject matter jurisdiction.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on September 24, 2012. The original post can be accessed via the Archived Link button above.

Fcc Affirms Decision, Rules In Favor Of Tennis Channel Against Comcast, Melissa Rachel Heller

AELJ Blog

Tennis Channel and Comcast have been engaged in a bitter dispute over the provider’s refusal to carry Tennis Channel since July 2010. Tennis Channel claimed that Comcast discriminated against the channel and gave preferential treatment to other sports networks, such as The Golf Channel and Versus. Tennis Channel argued that this impeded its ability to compete fairly in the video programming marketplace. In December 2011, an administrative judge ruled in favor of Tennis Channel and fined Comcast $375,000. Additionally, the judge ordered Comcast to give equal treatment to the channel. Comcast appealed the decision, which was subsequently affirmed by the …

Procedure In Eclipse: Group-Based Adjudication In A Post-Conception Era, Myriam E. Gilles

Articles

No abstract provided.

Technology As A Driver Within Agencies - The Internet Change Everything, Michael Herz

Articles

No abstract provided.

Revisiting "Special Needs" Theory Via Airport Searches, Alexander A. Reinert

Articles

Controversy has raged since the Transportation Security Administration (TSA) introduced Advanced Imaging Technology, capable of producing detailed images of travelers' bodies, and "enhanced" pat frisks as part of everyday airport travel. In the face of challenges in the courts and in public discourse, the TSA has justified the heightened security measures as a necessary means to prevent terrorist attacks. The purpose of this Essay is to situate the Fourth Amendment implications of the new regime within a broader historical context. Most germane, after the Federal Aviation Administration (FAA) introduced sweeping new screening of air travelers in the 1960s and 1970s …

Thirty-Fourth Annual Commencement Exercises, Benjamin N. Cardozo School Of Law

Pre-2019 Commencement Programs

Order of Exercises

Processional:

Herbert C. Dobrinsky, Vice President for University Affairs, Yeshiva University; Herald

Presiding:

Morton Lowengrub, Provost and Senior Vice President for Academic Affairs, Yeshiva University; Chief Marshal

Richard M. Joel, President, Yeshiva University

National Anthem:

Cantor Ira W. Heller, Class of 2008

Invocation:

Rabbi Ozer Glickman, Adjunct Professor, Benjamin N. Cardozo School of Law

Welcome:

Leslie E. Payson, Chair, Cardozo Board of Overseers, Benjamin N. Cardozo School of Law; Class of 1991

Remarks:

Matthew Diller, Dean, Benjamin N. Cardozo School of Law

Commencement Address:

Jonathan Lippman, Chief Judge of the New York Court of Appeals

Presentation of …

For Love Or Money? Legal Treatment Of Golddiggers, Stewart E. Sterk

Online Publications

Under what circumstances should courts permit a donor to undo what appears to be a completed gift – particularly when the gift is embedded in a real or imagined romantic relationship? After surveying existing law, Ruth Sarah Lee concludes that traditional doctrine does not adequately deter donees from subtly misleading donors into making generous gifts that the donor would never make if the donee had been honest about his or her intentions. Although the article’s focus is on a subspecies of lifetime gifts, its conclusions suggest possible application to testamentary gifts, and to how courts might approach doctrines of undue …

After Class: Aggregate Litigation In The Wake Of At&T Mobility V Concepcion, Myriam E. Gilles, Gary Friedman

Articles

Class actions are on the ropes. Courts in recent years have ramped up the standards governing the certification of damages classes and created new standing requirements for consumer class actions. Most recently, in Wal-Mart v Dukes, the Supreme Court articulated a new and highly restrictive interpretation of the commonality requirement of Rule 23(a). But all of this pales in comparison to the Court's April 2011 decision in AT&T Mobility v Concepcion, broadly validating arbitration provisions containing class action waivers. The precise reach of Concepcion warrants close scrutiny. Our analysis suggests that following Concepcion, some plaintiffs will be able to successfully …

The Photographer's Copyright - Photograph As Art, Photograph As Database, Justin Hughes

Articles

No abstract provided.

Do Religious Tax Exemptions Entangle In Violation Of The Establishment Clause? The Constitutionality Of The Parsonage Allowance Exclusion And The Religious Exemptions Of The Individual Health Care Mandate And The Fica And Self-Employment Taxes, Edward A. Zelinsky

Articles

In Freedom From Religion Foundation v. Geithner, the Freedom From Religion Foundation (FFRF) argues that Code Section 107 and the income tax exclusion that section grants to “minister[s] of the gospel” for parsonage allowances violate the Establishment Clause of the First Amendment. This case has important implications for a new federal law mandating that individuals maintain “minimum essential” health care coverage for themselves and their dependents. That mandate contains two religious exemptions. One of these exemptions incorporates a pre-existing religious exemption from the federal self-employment tax. These sectarian exemptions raise the same First Amendment issues as does the Code’s exclusion …

Release As Remedy For Excessive Punishment, Alexander A. Reinert

Articles

Although the Eighth Amendment’s prohibition on “cruel and unusual” punishment means different things in different contexts, it plainly forecloses state and federal actors from choosing ex ante to impose a punishment that is either disproportionate or inconsistent with minimum standards of decency. In other words, the Eighth Amendment mandates that no punishment be imposed if the only other choice on the table is an unconstitutional punishment. Although this principle can be gleaned from the disparate strands of Eighth Amendment jurisprudence, its remedial consequence has not been fully implemented. In this Article, I propose that providing a remedy of release from …

Rulemaking As Politics, Thirty Years On, Michael Herz

Articles

No abstract provided.

Collusion, Antitrust, And The Nfl, Simon Bernstein

AELJ Blog

On Monday, March 12th, Commissioner of the National Football League, Roger Goodell, penalized the Washington Redskins and the Dallas Cowboys for “contract practices . . . during the 2010 league year [that] created an unacceptable risk to future competitive balance.” This charge traces back to 2008, when the owners, in a move that eventually led to the 18-week lockout, opted out of the collective bargaining agreement. As a result the 2010–11 NFL season did not feature a salary cap.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on March 21, 2012. The original post …

Saved By The Bell? Why Courts Need To Draw The Line On Trademark Use In Video Games, Joseph Gutmann

AELJ Blog

Electronic Arts (“EA”) has had some legal issues lately. They’ve beaten former NFL running back Jim Brown and former Rutgers quarterback Ryan Hart in lawsuits over the use of the players’ likenesses in EA’s Madden and NCAA Football video games. They also lost a similar case against quarterback Sam Keller in the District Court of California. Appeals for the Hart and Keller cases are currently pending before the Third and Ninth Circuits respectively. Those players all claimed that they had a right to their own likeness and reputation under the Right of Publicity. But the right to one’s own likeness …

Weak Net Neutrality Rules Lead To Nothing Surprising, Eric Null

AELJ Blog

The debate about network neutrality—the idea that packets of information traversing the pipes that connect us to the Internet should be treated equally and on a best-efforts basis—is not going away. It continues to rear its ugly head as the government and the industry engage in an intense battle over whether the Internet should continue in its path to centralization, or whether the government has the power and the wherewithal to stop it.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on March 12, 2012. The original post can be accessed via the Archived …

Politics, Privacy, And Child Pornography: The Battle Over Data Retention And H.R. 1981, Agatha M. Cole

AELJ Blog

In August of 2005, a Florida investigator on the Internet Crimes Against Children (ICAC) taskforce—a national network of federal, state, and local law enforcement agencies dedicated to preventing online child pornography and other Internet crimes against children—received a video depicting the rape of a two-year old child. ICAC investigators traced the video to an IP address in Colorado associated with Comcast, one of the largest Internet service providers in that state. The only information needed to determine the location of the computer used to post this video was the record revealing which Comcast subscriber had been assigned to that particular …