Law Commons^™

The Supreme Court's 2003 Employment Rulings: Surprising Gains For Workers And Women, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The notoriously conservative Supreme Court returned some surprising victories for employees, women, and families during the October, 2003 term. Its most notable employment decision was in Nevada Department of Human Resources v. Hibbs, a case exploring whether the Family and Medical Leave Act, a federal statute mandating unpaid leave for employees who need it because of illness or care giving responsibilities, protects state government employees.

A second important case, Desert Palace, Inc. v. Costa, resolved a long-brewing split among federal appellate courts about the proof requirements in so-called “mixed motive” discrimination cases—those in which an adverse employment action …

Manipulating International Criminal Procedure: The Decision Of The Icty Office Of The Independent Prosecutor Not To Investigate Nato Bombing In The Former Yugoslavia, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

No abstract provided.

Sex, Marriage, Medicine, And Law: 'What Hope Of Harmony?', Thomas Wm. Mayo

Faculty Journal Articles and Book Chapters

This essay offers a critique of the Kansas Supreme Court's decision in In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002), and similar cases that hold that for purposes of the opposite-sex marriage rule, an individual's sex is determined at birth, is genetically fixed, and cannot be changed through surgery or hormone therapy. The result for transgendered individuals is a legal regime that is hostile to medical care that brings external sex characteristics into line with sexual identity. The result for society is a legal rule that is at odds with scientific opinion. Finally, the result for the opposite-sex …

Judicial Supremacy And Its Discontents, Dale Carpenter

Faculty Journal Articles and Book Chapters

This essay examines judicial supremacy and some of its discontents, old and new. Part I surveys the curiously quiet posture of the public and their representatives today on the issue of judicial supremacy. Part II contrasts this quiet with other eras when neither the people nor their representatives willingly accepted judicial supremacy. Part III considers the views of two important contemporary critics of judicial supremacy who write from very different constitutional and political perspectives.

Michael Paulsen argues that the President, as head of the coordinate and equal executive branch of the national government, has the power to interpret the Constitution …

We Do Not Hold The Earth In Trust, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

No abstract provided.

Does The Texas Homosexual Conduct Law Violate The Fourteenth Amendment, Dale Carpenter

Faculty Journal Articles and Book Chapters

No abstract provided.

The Culture Of Compliance: The Final Triumph Of Form Over Substance In Sexual Harassment Law, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

This Article is divided into three Parts. Part I briefly describes the continuing problem of sexual harassment and summarizes case law relating to employer liability for sexual harassment. It then describes the incentives the law creates for employers, victims, and harassers, and explains how each group responds to these incentives. Part II explores whether the preventative measures spurred by the legal regime serve Title VII's goal of deterring harassment and preventing harm. It first identifies individual and organizational factors that cause or correlate with the level of harassment in order to develop theoretical connections between employer preventative measures and the …

The False Promise Of One Person, One Vote, Grant M. Hayden

Faculty Journal Articles and Book Chapters

This article challenges the theoretical foundations of the right to cast an equally weighted vote. That right, most elegantly captured in the phrase one person, one vote, was at the heart of the early reapportionment cases and has since become one of the hallmarks of democracy. One of the principal reasons for the success of the one person, one vote standard is that it appears to be a neutral or objective way of parsing out political power. Drawing on recent work in philosophy and economics on the nature of interpersonal utility comparisons, I demonstrate the normative character of the standard. …

Public Diplomacy And The Transformation Of International Broadcasting, Monroe Price

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Distinguishing The Derivative From The Transformative: Expanding Market-Based Inquiries In Fair Use Adjudications, Tracey Topper Gonzalez

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Table Of Contents - Cardozo Arts & Entertainment Law Journal, Vol. 21, Iss. 2-3

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Copying For Religious Reasons: A Comment On Principles Of Copyright And Religious Freedom, Thomas C. Berg

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Ucita, Copyright, And Capture, Deborah Tussey

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Out Of The "Troubles" And Into Rights: Protection For Gays, Lesbians, And Bisexuals In Northern Ireland Through Equality Legislation In The Belfast Agreement, Mckenzie A. Livingston

Fordham International Law Journal

Part I of this Note explores the history of LGB rights in Northern Ireland, focusing on the development of domestic equality legislation stemming from the recent peace process. Part II examines the statutory framework of this legislation, concentrating on what protections and rights it provides for sexual minorities in Northern Ireland. Part II also looks at a recent European Directive prohibiting discrimination against LGB persons in employment. Part III argues that for truly effective change to occur, LGB individuals need both policy-based and rights-based legislation encompassing the human rights principles of equality and non-discrimination. Part III further argues that the …

Puerto Rico Pandemonium: The Commonwealth Constitution And The Compact-Colony Conundrum, Jason Adolfo Otaño

Fordham International Law Journal

This Note will consider the historical background of the compact-colony conundrum and examine the development of self-determination in international law and democracy in the Americas in order to bring to light a new forum for this question. Part I will discuss the historical background necessary in examining this conflict. Part II analyzes the formation of a constitutional government in Puerto Rico, and the reaction of the international and Inter-American communities. Part III argues that Puerto Rico is still a colony of the United States and thus U.S.-P.R. relations violate international and Inter-American law.

The Obstacles To Regulating The Hawala: A Cultural Norm Or A Terrorist Hotbed? , Rachana Pathak

Fordham International Law Journal

This Note examines the complex mechanics of hawala networks. Part I provides information regarding their origins, scope and reasons for continued existence. Part II contrasts the U.S. approach to regulating hawala networks through the USA PATRIOT Act and Operation Green Quest, with the U.A.E.'s approach, which is resistant to some of the American-led efforts. Part II also reviews three separate Green Quest actions: 1) Al Barakaat, an expansive Somalia-based organization through which Somalia's diaspora sent cash to families abroad; 2) Hussein Alshafei, an Iraqi American, who operated a money service business to Iraq; and 3) Mohammed Albanna, a Yemeni-American, based …

Vengeance And Empire: The Leftist Case For War In Iraq – William Shawcross, Allies: The U.S., Britain, Europe, And The War In Iraq , Hal Blanchard

Fordham International Law Journal

Shawcross is superbly equipped to assess the impact of rogue States and terrorist organizations on global security. He is also well placed to comment on the risks of preemptive invasion for existing alliances and the future prospects for the international rule of law. An analysis of the ways in which the international community has “confronted evil,” Shawcross' brief polemic argues that U.S. President George Bush and British Prime Minister Tony Blair were right to go to war without UN clearance, and that the hypocrisy of Jacques Chirac was largely responsible for the collapse of international consensus over the war. His …

Jury Sentencing As Democratic Practice, Jenia I. Turner

Faculty Journal Articles and Book Chapters

After a century of reform and experimentation, sentencing remains a highly contested area of the criminal justice system. Scholars as well as the public at large disagree about the proper purposes and functions of punishment, and dissatisfaction with the sentencing status quo is high. Most recent critiques of the sentencing process have focused on the amount of discretion tolerated by the system. This Article goes further in arguing that the source of sentencing discretion is also very important to the legitimacy and integrity of the sentencing process. In the absence of wide consensus on sentencing goals, it is best to …

Redefining The Fiduciary Duties Of Corporate Directors In Accordance With The Team Production Model Of Corporate Governance, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

This article considers the "team production model" (TPM) of corporate governance set forth and elaborated upon by Margaret Blair and Lynn Stout. The author initially addresses how the locus of fiduciary duties should be respecified to be consistent with the TPM framework of corporate governance, should that paradigm be determined to be a descriptively more accurate model of public corporations than is the conventional agency mode, and then reviews the relatively complex calculations that would have to be carried out to determine how the performance of a TPM-style corporate board of directors measures up against these respecified fiduciary duties. Finally, …

When The Endowment Tanks: Some Lessons For Nonprofits, Jeffrey J. Haas

Other Publications

No abstract provided.

Book Review: Bachrach And Turner, Sugar’S Life In The Hood: A Story Of A Former Welfare Mother, Frank W. Munger

Other Publications

No abstract provided.

Texas Annual Survey: Securities Regulation, George Lee Flint Jr

Faculty Articles

The Texas Legislature passed Sunset Legislation that distinguished between securities dealers and investment advisors that allowed the Texas Securities Act (“TSA”) to comply with national trends in securities regulation. The court struggled with definitions of “control person” and “evidence of indebtedness.” However, the Sunset Legislation allowed the expanded Board to submit emergency cease and desist orders and to conduct surprise inspections of registered dealers and sellers of securities. Violation of a cease and desist order became a criminal offense.

The Sarbanes-Oxley Act increased the existing statute of limitations under the federal securities laws for private causes of action involving claims …

Comparative Study Of The Formation Of Electronic Contracts In American Law With References To International And Mexican Law, Roberto Rosas

Faculty Articles

A comparative analysis of electronic contract formation law in the United States, Mexico, and the international arena is necessary to understand the evolution and future of electronic contracting. Using new communication technologies, such as developmental instruments of electronic commerce, has clear benefits, but also brings risks and uncertainties to electronic contracting. Although modern laws tend toward uniformity in modern transactions, certain aspects may still cause controversy. In purely electronic transactions, the most important legal determination concerns the establishment of an offer and an acceptance, memorialized through electronic messages absent written documentation and the human intervention of an automatic exchange. Consequently, …

Introduction, Mohammad H. Fadel

Fordham International Law Journal

Fordham International Law Journal's special issue on Islamic law includes articles that present a broad variety of themes, from the historical to the contemporary, from the philosophical to the empirical, and from the theoretical to the practical. In light of the generally poor understanding of Islamic law among American lawyers, one can only hope that a publication such as this succeeds in generating greater intellectual curiosity about Islamic law among readers of American law journals. The authors hope that this collection of Articles will lead to renewed interest in Islamic law and theology as intellectually gratifying topics of inquiry in …

Shari'ah, Democracy, And The Modern Nation-State: Some Reflections On Islam, Popular Rule, And Pluralism, Sherman A. Jackson

Fordham International Law Journal

In this article, the author examines two considerations that are critical to a full and meaningful assessment of the degree to which Islam, and Islamic law in particular, can find authentic expressions of themselves under what may reasonably be considered a democratic form of government. The first of these has to do with the scope of Islamic law, or more properly, the scope of the interpretive authority of Muslim jurists, and whether a State that is governed by Shari‘ah must necessarily give priority to the views of religious scholars over those of all others in every aspect of life. Does …

"Interest" And The Paradox Of Contemporary Islamic Law And Finance, Mahmoud A. El-Gamal

Fordham International Law Journal

In Sections 1 and 2, the article shall provide a brief introduction to various notions of Islamic law as they exist today, as well as the common-law nature of Islamic jurisprudence to establish the possibility of finding a compromise that renders minor modifications of the existing juristic positions coherent. In Sections 3 and 4, the article will provide translations of the entire Azhar Islamic Research Institute (IRI) fatwa, and large excerpts from the Council of the Islamic Jurisprudence Academy's (IJA) rebuttal together with discussions of the juristic backgrounds of each opinion. In Section 5, the author will discuss the ideological …

Contractual Forms In Islamic Finance Law And Islamic Inv. Co. Of The Gulf (Bahamas) Ltd. V. Symphony Gems N.V. & Ors.: A First Impression Of Islamic Finance, Umar F. Moghul Esq., Arshad A. Ahmed Esq.

Fordham International Law Journal

This Article focuses on the case of Islamic Investment Company of the Gulf (Bahamas) Ltd. v. Symphony Gems N.V. & Others (“Symphony Gems”). Symphony Gems is the first instance where a Western court of law ruled on an Islamic financial transaction. Symphony Gems illuminates the challenges and tensions within the industrial complex of Islamic finance as it seeks to exist and thrive in a commercial reality where the regulatory framework and its associated assumptions (both theoretical as well as those of commercial practice) differ markedly from those of Islamic law and the contemporary Islamic financial industry. The resulting transactions often …

An Islamic Perspective On Domestic Violence, Azizah Y. Al-Hibri

Fordham International Law Journal

In this Article, the author addresses the traditional Islamic view of domestic violence. To understand the Islamic perspective on domestic violence, the author will explore the Islamic view of gender relations, especially within the family. This view is rooted in the Qur'an, which is examined in this Article.

Women In Shari'ah Courts: A Historical And Methodological Discussion, Amira Sonbol

Fordham International Law Journal

This Article focuses on qadis and courts before modern legal reforms with particular emphasis on the life of women and their interaction with the courts. A number of issues will be discussed and points made pertaining to the laws and madhahib [Islamic legal schools] applied in courts, the hierarchies and roles of qadis, and the accessibility of the legal system and knowledge of court procedures to the general public. Court culture, personnel, and record-keeping will also be discussed, as will the philosophy behind the law. The author hopes to illustrate that a viable court system existed before modernization. Although precedent …

Martyrdom, Suicide, And The Islamic Law Of War: A Short Legal History, Bernard K. Freamon

Fordham International Law Journal

This Article is concerned with one key aspect of the law of the military jihad: the Islamic concept of martyrdom [shahada or istishhad]. This Article will demonstrate that the current Islamist financing and systematic organization and direction of self-annihilatory acts of violence is only weakly supported, if at all, by the classical sources on martyrdom in Islamic law and jurisprudence. The Article will show that current justifications for self-annihilatory violence are instead the result of a major reinterpretation of the theology and religious law on martyrdom and the military jihad advanced by Shi'ite theologians and jurists in Iraq and Iran …