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Deportation Arrest Warrants, Lindsay Nash Jan 2021

Deportation Arrest Warrants, Lindsay Nash

Articles

The common conception of a constitutionally sufficient warrant is one reflecting a judicial determination of probable cause, the idea being that the warrant process serves to check law enforcement. But neither the Constitution nor the Supreme Court has fully defined who can issue arrest warrants within the meaning of the Fourth Amendment; the constitutional significance of arrest “warrants” that are not; or when (if ever) warrants of any type are constitutionally required for deportation-related arrests. In that void, the largest federal law enforcement agency—the Department of Homeland Security (DHS)—is on pace to issue over 150,000 administrative “warrants ...


Jack Weinstein: Reimagining The Role Of The District Court Judge, Jessica A. Roth Jan 2021

Jack Weinstein: Reimagining The Role Of The District Court Judge, Jessica A. Roth

Articles

This essay, for a symposium issue of the Federal Sentencing Reporter dedicated to the impact of Judge Jack Weinstein on the occasion of his retirement from the federal bench, highlights how Judge Weinstein has re-imagined the role of the district court judge. Through his judicial opinions, extrajudicial writings and speeches, and his innovative use of the court’s supervisory authority, Judge Weinstein has challenged, and in some cases altered, the status quo in the realm of criminal sentencing. In doing so, he has established a forceful example of how district court judges can use their position to advocate for and ...


Strategies For Emergency Release Of Incarcerated People During Covid-19 Outbreak, Sara Alvarez, Andrew Kopke, Mariel Stein, Meg Tiley Mar 2020

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.


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 Jan 2020

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 ...


How U.S. Family Law Might Deal With Spousal Relationships Of Three (Or More) People, Edward D. Stein Jan 2020

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 ...


Applying The First Amendment To The Internal Revenue Code: Minnesota Voters Alliance And The Tax Law’S Regulation Of Nonprofit Organizations’ Political Speech, Edward A. Zelinsky Jan 2020

Applying The First Amendment To The Internal Revenue Code: Minnesota Voters Alliance And The Tax Law’S Regulation Of Nonprofit Organizations’ Political Speech, Edward A. Zelinsky

Articles

On its face, Minnesota Voters Alliance v. Mansky is about which T-shirts, hats and buttons voters can wear at the polls. However, the U.S. Supreme Court’s First Amendment analysis in Minnesota Voters Alliance extends beyond apparel at polling places. That decision impacts the ongoing debate about the Johnson Amendment, the now controversial provision of the Internal Revenue Code which forbids Section 501(c)(3) organizations from intervening in political campaigns. Minnesota Voters Alliance also affects the proper construction of Section 501(c)(3)’s ban on lobbying by tax-exempt entities as well as other provisions of the tax ...


Coronavirus, Telecommuting, And The ‘Employer Convenience’ Rule, Edward A. Zelinsky Jan 2020

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

Articles

New York's "convenience of the employer" doctrine overtaxes nonresident telecommuters on the days they work at their out-of-state homes. This doctrine was poor tax policy in normal times. It is particularly bad tax policy during the Covid-19 crisis, penalizing individuals who work at home.


Prosecutorial Declination Statements, Jessica A. Roth Jan 2020

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 ...


Congressional Administration Of Foreign Affairs, Rebecca Ingber Jan 2020

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 ...


Povos Indígenas, Genocídio E Pademia No Brasil, Fernanda Frizzo Bragato, Marco Antônio Delfino De Almeida, Jocelyn Getgen Kestenbaum Jan 2020

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 ...


The Consummate Legal Education: Teaching Analysis As Doctrine, Julie Ann Interdonato Jan 2019

The Consummate Legal Education: Teaching Analysis As Doctrine, Julie Ann Interdonato

Articles

This paper addresses the necessity and means of developing analysis and its written expression as an independent topic of study throughout students’ law school tenure. “Doctrine,” as it appears in the above title, is defined as the transcendent analytic concepts that underlie the common law, and the modality of their application in the law’s constant evolution. The purpose of presenting analysis in this context is to enhance analytic instruction presently provided in law school, and thereby take students one step further in their education, into the realm of the practicing attorney. In this manner, educators, building on the case ...


Home Sweet Home: How New York Courts Have Dealt With Daimler's "At Home" Requirement For General Jurisdiction, Burton N. Lipshie Jan 2019

Home Sweet Home: How New York Courts Have Dealt With Daimler's "At Home" Requirement For General Jurisdiction, Burton N. Lipshie

Articles

In this Article, we will first place the Daimler decision in its context, both historical and technological, in an attempt to understand the flow of Supreme Court jurisdiction jurisprudence, and how Daimler fits into that jurisprudence. Then, we will explore the issues in New York law that Daimler left open, and which, more than five years after it was decided, remain open, and, indeed, often confused.


Binaries: Remarks On Chaim N. Saiman's "Halakhah", Richard Weisberg Jan 2019

Binaries: Remarks On Chaim N. Saiman's "Halakhah", Richard Weisberg

Articles

Binaries are helpful but deceptive, and this may be particularly true of simplistic theological dichotomies purporting to show that the Talmud is "Nitpicking" and Christian Biblical understandings "Expansive", or that Jews believe in the "letter" and Christians in the "spirit", Jews in strict Justice and Christians in "mercy", etc. This essay, which focuses on the character of Shylock and the legalistic cruelty inflicted upon him by Venice's Christians, dissolves such Binaries, leaving in their wake greater clarity about the contrary need to "re-binarize" the falsely unified hyphenated adjective "Judaeo-Christian".


Taking Data, Michael Pollack Jan 2019

Taking Data, Michael Pollack

Articles

Technological development has created new forms of information, altered expectations of privacy, and given law enforcement more tools to examine that information and intrude on that privacy. One crucial facet of these changes involves internet service providers (ISPs): as people expose more of their lives to their ISPs—all the websites they visit, people they communicate with, emails they send, files they store, and more—law enforcement efforts to access that data become more and more common. But scholars and policymakers alike recognize that the existing statutory frameworks governing those efforts are based on obsolete technology and strike balances that ...


The Search For Third Options In A Two-Bathroom Society, Sharon R. Cruz Jan 2018

The Search For Third Options In A Two-Bathroom Society, Sharon R. Cruz

Articles

This Note presents a narrative on and the history of transgender bathroom rights in this country, beginning with the reasoning for a two-bathroom society and the development of “bathroom laws”. The development of the two-bathroom society is intertwined with and rooted in beliefs that have remained prevalent since the Victorian Era, ideas about core differences between men and women, and how best to protect the virtues of women. In order to weave this narrative, this Note focuses particularly on current cases that are making their way through our Courts: the stories of Gavin Grimm and Coy Mathis, whose battles are ...


The Narrative Of Costs, The Cost Of Narrative, Alexander A. Reinert Jan 2018

The Narrative Of Costs, The Cost Of Narrative, Alexander A. Reinert

Articles

In Judge Victor Marrero’s Article “The Cost of Rules, the Rule of Costs,” he argues that too many lawyers use too many procedural devices to cause too much inefficiency within our civil justice system. His Article helpfully asks us to focus on the role of the lawyer and law firm economics in assessing how to solve waste and abuse in civil litigation. He proposes an array of procedural changes to address these perceived problems. In this response, I argue that Judge Marrero’s assertions about costs are questionable, given relevant empirical evidence. Moreover, although I am confident that there ...


The Institutions Of Innocence Review: A Comparative Sociological Perspective, Jessica A. Roth Jan 2018

The Institutions Of Innocence Review: A Comparative Sociological Perspective, Jessica A. Roth

Articles

The last three decades have seen the rise of an international innocence movement that has forced participants in diverse criminal justice systems to confront their systems’ fallibility, previously thought more theoretical than real. The public acknowledgment of that fallibility has led to the creation of new institutional mechanisms to re-examine old convictions. This short essay prepared for a symposium issue of the Rutgers University Law Review on the theory of criminal law reform compares the error correction institutions created in the United Kingdom, Canada, and the United States, three English-speaking countries with common law roots and an adversarial structure, through ...


Cardozo's "Law And Literature": A Guide To His Judicial Writing Style, Richard H. Weisberg Jan 2018

Cardozo's "Law And Literature": A Guide To His Judicial Writing Style, Richard H. Weisberg

Articles

Weisberg traces Judge Cardozo's advice about legal writing to the famous 1925 essay LAW AND LITERATURE and applies it to the judicial opinions and other published works of Cardozo and various other judges.


Maintaining Condominiums And Homeowner Associations: How Much Of A Priority?, Stewart E. Sterk Jan 2018

Maintaining Condominiums And Homeowner Associations: How Much Of A Priority?, Stewart E. Sterk

Articles

During the recent real estate crisis, competition for scarce dollars pitted the holders of defaulted mortgages against condominiums and homeowner associations seeking to collect maintenance assessments. Statutes providing mortgagees with lien priority threatened association ability to provide services, and imposed a disproportionate burden on non-defaulting unit owners. Statutes enacted in other states gave associations a “super priority” lien for six months of assessments, but left uncertainty about the meaning of that super priority in an environment in which foreclosure delays became the norm.The last five years have brought a spate of litigation over the relative rights of associations and ...


Dueling Denominators And The Demise Of Lucas, Stewart E. Sterk Jan 2018

Dueling Denominators And The Demise Of Lucas, Stewart E. Sterk

Articles

In Murr v. Wisconsin, the Supreme Court outlined a process for ascertaining the denominator in takings cases – an issue that arises both with respect to Penn Central takings claims and Lucas takings claims. The underpinnings of Penn Central claims and Lucas claims are not identical; Penn Central’s primary concern is assuring fairness to landowners, while the focus of Lucas is on restricting government efforts to bypass the condemnation process. Although this difference in focus might suggest a difference in appropriate denominator, the Court’s multi-factor balancing approach apparently applies to all takings claims. Although the Court’s approach is ...


Love For Sale: Book Review Of Marcia A. Zug, Buying A Bride: An Engaging History Of Mail-Order Matches, Jeanne L. Schroeder Jan 2018

Love For Sale: Book Review Of Marcia A. Zug, Buying A Bride: An Engaging History Of Mail-Order Matches, Jeanne L. Schroeder

Articles

No abstract provided.


The Culture Of Misdemeanor Courts, Jessica A. Roth Jan 2018

The Culture Of Misdemeanor Courts, Jessica A. Roth

Articles

The misdemeanor courts that preside over the majority of criminal cases in the United States represent the “front porch” of our criminal justice system. These courts vary in myriad ways, including size, structure, and method of judicial appointment. Each also has its own culture – i.e., a settled way of doing things that reflects deeper assumptions about the court’s mission and its role in the community – which can assist or impede desired policy reforms. This Article, written for a Symposium issue of the Hofstra Law Review, draws upon the insights of organizational culture theory to explore how leaders can ...


The Necessity Of The Good Person Prosecutor, Jessica A. Roth Jan 2018

The Necessity Of The Good Person Prosecutor, Jessica A. Roth

Articles

In a 2001 essay, Professor Abbe Smith asked the question whether a good person—i.e., a person who is committed to social justice—can be a good prosecutor. Although she acknowledged some hope that the answer to her question could be “yes,” Professor Smith concluded that the answer then was “no”—in part because she saw individual prosecutors generally as having very little discretion to “temper the harsh reality of the criminal justice system.” In this Online Symposium revisiting Professor Smith’s question seventeen years later, my answer to her question is “yes”—a good person can be a ...


Pardoning Immigrants, Peter L. Markowitz, Lindsay Y. Nash Jan 2018

Pardoning Immigrants, Peter L. Markowitz, Lindsay Y. Nash

Articles

In the waning days of the Obama Administration, with Trump’s promised immigration crackdown looming, over one hundred advocacy organizations joined forces to urge President Obama to permanently protect hundreds of thousands of immigrants from deportation by pardoning their breaches of civil immigration law. That pardon never materialized and, as expected, the Trump enforcement regime is sowing terror and devastation in immigrant communities nationwide. While it seems unfathomable that the current president would use his pardon power to mitigate even the most extreme applications of our nation’s immigration laws, there is unfortunately no indication that the harshest aspects of ...


Goodwill Hunting Gone Bad: Tax Law ’S Outmoded Treatment Of Goodwill, Mitchell L. Engler Jan 2018

Goodwill Hunting Gone Bad: Tax Law ’S Outmoded Treatment Of Goodwill, Mitchell L. Engler

Articles

Goodwill reflects the positive consumer association with a business. Goodwill thus overlaps with trademarks and other related assets. This close association impedes the separation of goodwill value from such related assets. Difficulties thus arise when the tax law treats goodwill more (or less) favorably than related intangible assets.For instance, the tax law previously denied any depreciation deductions for goodwill. Business buyers thus often allocated their costs away from goodwill and towards related assets like depreciable customer lists. The IRS responded with the initial “goodwill hunting” wave, challenging taxpayers’ low goodwill valuations. Congress addressed this litigious area in 1993 with ...


Bureaucratic Resistance And The National Security State, Rebecca Ingber Jan 2018

Bureaucratic Resistance And The National Security State, Rebecca Ingber

Articles

Modern accounts of the national security state tend toward one of two opposing views of bureaucratic tensions within it: At one extreme, the executive branch bureaucracy is a shadowy “deep state,” unaccountable to the public or even to the elected President. On this account, bureaucratic obstacles to the President’s agenda are inherently suspect, even dangerous. At the other end, bureaucratic resistance to the President represents a necessary benevolent constraint on an otherwise imperial executive. This account hails the bureaucracy as the modern incarnation of the separation of powers, an alternative to the traditional checks on the President of the ...


Holocaust-Era Art Restitution Claims: Is The Hear Act A Game Changer?, Rachel Sklar Jan 2017

Holocaust-Era Art Restitution Claims: Is The Hear Act A Game Changer?, Rachel Sklar

Articles

The author of this article presents a legal analysis of the Holocaust Expropriated Art Recovery Act of 2016 (“HEAR Act”), signed into law by President Barack Obama on December 16, 2016, which creates a uniform, federal six-year statute of limitations on civil restitution claims in the United States for the victims of Nazi-era persecution and their heirs to make a legal demand for the return of artwork or other cultural property that was seized, confiscated or wrongfully taken as a result of the policies of the Third Reich.


Prosecutorial Discretion Power At Its Zenith: The Power To Protect Liberty, Peter L. Markowitz Jan 2017

Prosecutorial Discretion Power At Its Zenith: The Power To Protect Liberty, Peter L. Markowitz

Articles

On November 20, 2014, President Obama, frustrated by congressional inaction on immigration, announced an ambitious and potentially transformative prosecutorial discretion policy to forego the deportations of millions of low priority undocumented immigrants. That announcement immediately sparked legal challenges, which quickly wound their way to the Supreme Court, and a nationwide debate about the limits of the President’s prosecutorial discretion authority. President Obama’s actions are part of a larger trend whereby modern presidents have increasingly used robust assertions of prosecutorial discretion powers to achieve policy goals that they could not realize through legislation.

There are clear dangers in allowing ...


Erie Step Zero, Alexander A. Reinert Jan 2017

Erie Step Zero, Alexander A. Reinert

Articles

Courts and commentators have assumed that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. Thus, when a federal court asserts jurisdiction over pendent state law claims through the exercise of supplemental jurisdiction in a federal question case, courts regularly apply the Erie doctrine to resolve conflict between federal and state law. This Article shows why this common wisdom is wrong.

To understand why, it is necessary to return to Erie’s goals, elaborated over time by the U.S. Supreme Court. Erie and its progeny are steeped in diversity-driven policy ...


Byte Marks: Making Sense Of New F.R.C.P. 37e, Charles Yablon Jan 2017

Byte Marks: Making Sense Of New F.R.C.P. 37e, Charles Yablon

Articles

New FRCP 37(e) limits severe, case ending sanctions for lost electronically stored information (ESI) to situations where a party acted with “intent to deprive” other parties of the use of that information. But it makes no change in existing preservation duties and never explains how “intent” is to be determined for the corporation and other entities likely to be parties in such litigation. The question is – does this Rule make any sense? This Essay seeks to make sense of Rule 37(e) in terms of its language, the stated goals of its drafters, and its role in the regulation ...