Law Commons^™

Fraudulent Malattributed Comments In Agency Rulemaking, Michael Herz

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A specter is haunting notice-and-comment rulemaking—the specter of fraudulent comments. The stand-out example—the apotheosis—was the Federal Communications Commission’s (FCC) net neutrality rulemaking in 2017. Well over twenty million comments were submitted, but millions of those were highly suspect. It turns out only about 800,000 of those comments were unique—that is, not written by a computer and not a pre-written form letter or variation thereof. And of the rest, perhaps half were submitted by computers (bots) using fictitious names or the names of real people, living and dead, who had no connection to the comment.

Unwaivable: Public Enforcement Claims And Mandatory Arbitration, Myriam E. Gilles, Gary Friedman

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This essay, written for a conference on the “pathways and hurdles” that lie ahead in consumer litigation, is the first to examine the implications of California’s recent jurisprudence holding public enforcement claims unwaivable in standard-form contracts of adhesion, and the inevitable clash with the U.S. Supreme Court’s decisional law interpreting the Federal Arbitration Act. With its rich history of rebuffing efforts to deprive citizens of public rights through private contract, California provides an ideal laboratory for exploring this escalating conflict.

The Executive Branch Anticanon, Deborah Pearlstein

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Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past …

Survey Of Recent Halakhic Literature: Coronavirus Queries (Part 1): Communal Prayer, Porch Minyan, A Missed Bar Mitzva, J. David Bleich

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No abstract provided.

Symposium: The California Consumer Privacy Act, Margot Kaminski, Jacob Snow, Felix T. Wu, Justin Hughes

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This symposium discussion of the Loyola of Los Angeles Law Review focuses on the newly enacted California Consumer Privacy Act (CPPA), a statute signed into state law by then-Governor Jerry Brown on June 28, 2018 and effective as of January 1, 2020. The panel was held on February 20, 2020.

The panelists discuss how businesses are responding to the new law and obstacles for consumers to make effective use of the law’s protections and rights. Most importantly, the panelists grapple with questions courts are likely to have to address, including the definition of personal information under the CCPA, the application …

The Supreme Court, Dischargeability And Actual Fraud, David G. Carlson

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No abstract provided.

The Eighth Amendment Power To Discriminate, Kathryn E. Miller

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For the last half-century, Supreme Court doctrine has required that capital jurors consider facts and characteristics particular to individual defendants when determining their sentences. While liberal justices have long touted this individualized sentencing requirement as a safeguard against unfair death sentences, in practice the results have been disappointing. The expansive discretion that the requirement confers on overwhelmingly White juries has resulted in outcomes that are just as arbitrary and racially discriminatory as those that existed in the years before the temporary abolition of the death penalty in Furman v. Georgia.' After decades of attempting to eliminate the requirement, conservative justices …

Examining The Case For Socialized Law, Myriam E. Gilles, Gary Friedman

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Most people would agree with Frederick Wilmot-Smith that the rich have no greater claim to justice than the poor. And yet, as Wilmot-Smith points out in his provocative book, Equal Justice: Fair Legal Systems in an Unfair World, our laissez-faire legal-services markets ensure sharply unequal justice for rich and poor. The prescription at the heart of Equal Justice is the deprivatization of markets for legal services. To realize the ideal of equal justice, Wilmot-Smith would equalize the legal talent available to all and replace the market system with a centralized regime loosely analogous to socialized medicine.

Wilmot-Smith’s bold ideas …

Coronavirus, Telecommuting, And The ‘Employer Convenience’ Rule, Edward A. Zelinsky

Articles

In this article, Zelinsky criticizes New York’s income tax penalty for nonresident telecommuters, particularly in the context of the coronavirus emergency.

Lumping, Fairness, And Single People, Michael C. Pollack

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This essay explores the distributional impact that three forms of lumping have on single people without children: seat-assignment and seat-bargaining on public transportation, work-hour allocation, and single-family zoning. The first two involve lumps pursued by individuals outside of any legal regime; the last involves lumping by law. In all three, I submit, we tend to choose to devalue—or perhaps do not even perceive—the costs faced by the single person, and to assign relatively juiced-up value to the costs faced by those with families. The result in these arenas is that both society and law routinely externalize (hidden) costs onto single …

Strategies For Emergency Release Of Incarcerated People During Covid-19 Outbreak, Sara Alvarez, Andrew Kopke, Mariel Stein, Meg Tiley

Articles

Students in Cardozo's Criminal Defense Clinic partnered with the Office of the Appellate Defender to outline legal strategies to advocate for the release of incarcerated people who are vulnerable to harm from COVID-19.

A Knock On Knick's Revival Of Federal Takings Litigation, Stewart Sterk, Michael C. Pollack

Articles

In Knick v. Township of Scott, the United States Supreme Court held that a landowner who claimed to have suffered a taking at the hands of state or local officials could seek redress in federal court without the need to first seek compensation through state proceedings. This holding raises serious theoretical and practical concerns. On the theoretical side, Knick rests on the implicit assumption that states separate powers among branches of government in the same way the federal government does. It also relies on a second assumption: that relegating taking claims to state court makes them unique. Neither is …

The Myth Of Personal Liability: Who Pays When Bivens Claims Succeed, James E. Pfander, Alexander A. Reinert, Joanna C. Schwartz

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In Bivens v. Six Unknown Named Agents, the Supreme Court held that federal law creates a right to sue federal officials for Fourth Amendment violations. For the last three decades, however, the Court has cited the threat of individual liability and the burden of government indemnification on agency budgets as twin bases for narrowing the right of victims to secure redress under Bivens. In its most recent decisions, Ziglar v. Abbasi and Hernandez v. Mesa, the Court said much to confirm that it now views personal liability less as a feature of the Bivens liability rule than …

The New Qui Tam: A Model For The Enforcement Of Group Rights In A Hostile Era, Myriam E. Gilles, Gary Friedman

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The present Administration has made clear it has no interest in enforcing statutes designed to protect workers, consumers, voters, and others. And, as we have chronicled in prior work, the ability of private litigants to enforce these laws has been undercut by developments in the case law concerning class actions—particularly class-banning arbitration clauses. As these critical enforcement methods recede, will alternative methods of prosecuting claims arise? How might they work? Are they politically and fiscally sustainable? We focus here on a promising approach just now coming into view: qui tam legislation authorizing private citizens to bring representative claims on behalf …

Critical Developments In Housing Policy, Kat Meyers, Cheryl Gonzales, Edward Josephson, Andrew Scherer, Michael C. Pollack

Articles

The 2019 Cardozo Journal of Equal Rights and Social Justice Symposium, Critical Developments in NY Housing Policy, brought leaders in NYC housing law to campus for a discussion on recent changes to tenants’ rights in the 2019 New York Housing Stability and Tenant Protection Act.

The event began with a keynote introduction by Kat Meyers, Staff Attorney in the Law Reform Unit of the Legal Aid Society, explaining the context of the new laws.

After a short break, Cardozo's Professor Pollack moderated a panel with participants Honorable Cheryl Gonzales, Supervising Judge in Kings County, Edward Josephson, Director of Litigation …

From The Frontlines Of The Modern Movement To End Forced Arbitration And Restore Jury Rights, F. Paul Bland, Myriam E. Gilles, Tanuja Gupta

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No abstract provided.

Prosecutorial Declination Statements, Jessica A. Roth

Articles

This Article examines how prosecutors convey to various audiences their decisions not to charge in discrete cases. Although prosecutors regularly issue public statements about their declinations—and anecdotal evidence suggests that declination statements are on the rise—there is an absence of literature discussing the interests that such statements serve, the risks that they pose, and how such statements are consistent with the prosecutorial function. Prosecutors also operate in this space without clear ground rules set by law, policies, or professional standards. This Article attempts to fill that void. First, it theorizes the interests potentially advanced by such statements—characterized as signaling, accountability, …

Tuition As A Fraudulent Transfer, David G. Carlson

Articles

Bankruptcy trustees are suing universities because the insolvent parent of an adult student has written a tuition check while insolvent. The theory is that the university is the initial transferee of a fraudulent transfer that has provided benefit to the student but not to the parent debtor. This article claims that the university is never the initial transferee of tuition dollars. Rather, the student is. Where the university has no knowledge of parent insolvency, the university can count educating the student as a good faith transfer for value, thus immunizing the university from liability. The unpleasant side effect is that …

Giving Back A Fraudulent Transfer: A Defense To Liability?, David G. Carlson

Articles

In Whitlock v. Lowe (In re Deberry) (5th Cir. 2019), the Fifth Circuit court of appeals found it obvious that if a transferee gives back fraudulently transferred funds (which the debtor then dissipates), the transferee has a complete defense to liability to the transferor’s bankruptcy trustee. This puts the Fifth Circuit at odds with the Sixth and Seventh Circuits, where the prepetition give-back counted as no defense. This article concludes that a more nuanced position should mediate between these extremes, based on an “innocent donee” defense retrieved from Nineteenth Century precedent. The article emphasizes that if bad faith transferees for …

Povos Indígenas, Genocídio E Pademia No Brasil, Fernanda Frizzo Bragato, Marco Antônio Delfino De Almeida, Jocelyn Getgen Kestenbaum

Articles

Indigenous Peoples, Genocide and Pandemics in Brazil

COVID-19 pandemics spreads among Brazilian indigenous communities while they endure the dismantling of protective policies, the current government's hostility, as well as the disproportionate effects in terms of contamination and mortality. This situation has been concerning indigenous organizations and public authorities in Brazil and worldwide. Indigenous peoples are potential victims of genocide, an act characterized both as a criminally punishable conduct and as a State policy capable to generate international State liability. This study intends to investigate whether and how the conditions of susceptibility to the physical destruction met by several Brazilian indigenous …

How U.S. Family Law Might Deal With Spousal Relationships Of Three (Or More) People, Edward D. Stein

Articles

For much of this nation's history, the vast majority of people have believed that being married to more than one person at the same time is deeply problematic. Further, polygamous marriage has never been legal in the United States. Despite this, some people have been in plural or group relationships and some of these people have wished to gain legal recognition for these relationships. The arguments for recognizing such relationships are persuasive, but the prospects for legalization of polygamous marriage seem slim in the near future. This Article offers a suggestion of how the law of domestic relations might deal …

Paradigm Perplexities: Does International Humanitarian Law Or International Human Rights Law Govern The Gaza Border Protests Of 2018-2019, & What Are The Consequences? A Response To The Supreme Court’S Opinion In Yesh Din V. Idf Chief Of Staff (Hcj 3003/18), Anthony Carl

Articles

In March 2018, thousands of Gazan citizens mobilized for a mass protest movement at the border with the State of Israel that endured for more than a year and a half, ending in late 2019. By February 2019, the IDF’s response to these protestors resulted in 189 deaths and 23,313 injuries to Gazan Palestinian protestors. Upon hearing challenges to the IDF’s rules of engagement brought by a number of human rights groups, the Israeli Supreme Court ruled in HCJ 3003/18 Yesh Din v. IDF Chief of Staff that the IDF’s response was proper under the law enforcement paradigm of international …

Congressional Administration Of Foreign Affairs, Rebecca Ingber

Articles

Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President’s powers is drawn, it is well established that, as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security.

And yet, while scholarship focuses on the accretion of power in the presidency, presidential primacy is not the end of the story. The fact that the President usually “wins” in foreign affairs does not …