Law Commons^™

A Satire Of Law Firm Employment Practices, Miriam A. Cherry

Faculty Publications

(Excerpt)

Jeremy Blachman's new book, Anonymous Lawyer, is a black-humorous stab at the hearts and souls of large elite law firms everywhere (if firms had such things as hearts and souls). The novel had its beginnings as a weblog, with someone named "Anonymous Lawyer"—ostensibly a hiring partner at a large elite law firm—posting entries on the internet. Anonymous Lawyer's posts discussed everything from over-the-top summer associate outings complete with fireworks and drunken debauchery to lamenting Daylight Savings Time and the loss of hundreds of billable hours. In December 2004, the author of the blog was revealed to be Jeremy …

The Future Of Labor Through The Prism Of Bankruptcy, G. Ray Warner, David L. Gregory

Faculty Publications

(Excerpt)

On Friday, September 28, 2008, St. John's University School of Law was very honored to host "The Future of Labor Through the Prism of Bankruptcy" Symposium. St. John's Institute of Bankruptcy Policy, the American Bankruptcy Institute Law Review, and the Labor Relations and Employment Society at the School of Law co-sponsored this landmark symposium.

Many of the structural changes in contemporary labor-management relationships emanate from the intersections of labor law and bankruptcy law. Many of the nation's major "legacy" industries—including, but not limited to, the unionized auto makers and many airlines—are compelling case studies. Indeed, only a few …

Federalism And Bankruptcy: Deciphering Katz, G. Ray Warner

Faculty Publications

(Excerpt)

A symposium on bankruptcy and state sovereign immunity was held on February 9, 2007 at St. John's University School of Law. Scholarly symposium papers included in this issue of the American Bankruptcy Institute Law Review were prepared by five participants who are experts on issues arising from the intersection of constitutional and bankruptcy law with state sovereign immunity from suits in federal courts. Three of the participating authors, who explore in their articles the theory and history of the jurisprudence of sovereign immunity and the Eleventh Amendment, are outstanding academics who have previously written extensively on this subject—Professor Ralph …

The "Federalism Five" As Supreme Court Nominees, 1971-1991, John Q. Barrett

Faculty Publications

This article looks back at the Senate confirmation hearing testimonies of five Supreme Court nominees. Following their appointments to the Court, these justices—Chief Justice Rehnquist and Associate Justices O'Connor, Scalia, Kennedy and Thomas—generally voted together in path-breaking federalism cases. They reinvigorated constitutional law limits or decreed new ones on national legislative power, supported the "sovereignty" of state governments, and thus came to be known in some circles as the Rehnquist Court's "Federalism Five." As nominees testifying before the Senate Judiciary Committee, however, these "federalism" justices did not announce, or for the most part even much hint at, what came to …

White Challengers, Black Majorities: Reconciling Competition In Majority-Minority Districts With The Promise Of The Voting Rights Act, Janai S. Nelson

Faculty Publications

Majority-minority districts have been the subject of extensive, and often rancorous, critique and debate. In their prime, these districts nearly single-handedly changed the face of American politics by enabling racial minorities to elect their preferred candidates who reflected both their interests and identity. However, precisely at the point when these districts achieve an optimal balance of majority and minority populations and host multi-candidate competition, they reveal a frailty that not only thwarts their immediate purpose but contradicts both the express and implicit goals of their source: The Voting Rights Act of 1965. Majority-minority districts possess an inherent limitation that contradicts …

Towards A Madisonian, Interest-Group-Based, Approach To Lobbying Regulation, Anita S. Krishnakumar

Faculty Publications

Recent lobbying scandals involving Jack Abramoff and Representative Tom DeLay have created a much-needed impetus for legislative reform of the lobbying process. But the question cries out: Will Congress actually enact any of the multitude of reform proposals currently on the table, and if it does, will any of those reforms make a difference in how the lobbying process operates? History suggests that the answer is "no."

This Article examines the reasons for Congress's persistent failure to enact effective lobbying reform and posits that the primary cause is an underlying disjunct between legislators' and the public's views about the value …

The (Boundedly) Rational Basis Of Trademark Liability, Jeremy N. Sheff

Faculty Publications

This article argues that trademark infringement and dilution are best understood as commercial behavior that manipulates the cognitive biases of consumers, and as such threatens to render their heuristic judgments persistently inaccurate. In this view, trademark liability—whether imposed under the label of infringement or dilution—serves neither to protect property rights of trademark owners, nor to protect them against the unfair trade practices of competitors, but to shape consumer markets in such a way as to conform to the innate cognitive processes of boundedly rational consumers. The trademark regime can thus be understood as a legal apparatus designed (albeit perhaps unconsciously) …

Williston As Conservative-Pragmatist, Mark L. Movsesian

Faculty Publications

In her pathbreaking article, "Restatement and Reform: A New Perspective on the Origins of the American Law Institute, Professor N.E.H. Hull rejects the conventional wisdom about the conservative, even reactionary, character of the First Restatements. The truth, she argues, is more subtle. The Restatements, and the larger ALI project of which they were a part, reflect the "'progressive-pragmatic"' worldview of the law professors most responsible for their creation. These professors were reformers. They rejected the formalism of earlier generations; for them, law was not a conceptual system but a practical tool for promoting beneficial social goals. They tempered their zeal …

The Nuremberg Roles Of Justice Robert H. Jackson, John Q. Barrett

Faculty Publications

This lecture covers the background of Robert H. Jackson and the story of "Nuremberg," which is Jackson's Nuremberg. The program of this Nuremberg conference states that Prof. Barrett will speak about "The Crucial Role of Robert H. Jackson." In fact, there were multiple Jackson roles at Nuremberg—many, many roles and moments were encompassed in the undertaking that has come to be so significant historically that the primary, global meaning of the word "Nuremberg" today is, and probably always will be, the 1945-46 international trial of the principal surviving Nazi criminals. Justice Jackson's Nuremberg was over 15 months of full time …

Imagining Sovereignty, Managing Secession: The Legal Geography Of Eurasia's "Frozen Conflicts", Christopher J. Borgen

Faculty Publications

The interrelated concepts of sovereignty, self-determination, and the territorial integrity of states form a Gordian knot at the core of public international law. These concepts encompass not only how we define the classic actors of the international system—states—but also how seriously international law takes claims of civil and political rights. This Article considers how geographic concepts can be used to try to untangle—or slice through this knot of issues.

The frozen conflicts of Eurasia are a series of ongoing secessionist crises in the post-Soviet states of Moldova, Georgia, and Azerbaijan. I will use the example of the so-called "frozen conflict" …

Judging International Judgments, Mark L. Movsesian

Faculty Publications

What effect should rulings of international courts have in domestic courts? In the U.S., debate has centered on a series of rulings by the International Court of Justice (ICJ) on the application of the Vienna Convention on Consular Relations (VCCR). The VCCR, a multilateral treaty that the United States ratified in 1969, grants foreign nationals the right to seek the assistance of their consulates in the event that local authorities arrest them. An Optional Protocol to the VCCR gives the ICJ jurisdiction over disputes relating to the interpretation and application of the treaty. Since the late 1990s, the ICJ repeatedly …

Trinko: A Kinder, Gentler Approach To Dominant Firms Under The Antitrust Laws?, Edward D. Cavanagh

Faculty Publications

(Excerpt)

Section 2 of the Sherman Act prohibits monopolization, attempted monopolization and conspiracy to monopolize. The § 2 prohibitions are rooted in concerns "that possession of unchallenged economic power deadens initiative, discourages thrift and depresses energy; that immunity from competition is a narcotic, and rivalry is a stimulant, to industrial progress; that the spur of constant stress is necessary to counteract an inevitable disposition to let well enough alone." At the same time, courts have recognized that size alone cannot be the basis of condemnation under § 2, for as Learned Hand observed in Alcoa, "[t]he successful competitor, having …

Sending The Message To Students That Revising Means Seeing Their Work Through New Eyes, Patricia Grande Montana

Faculty Publications

(Excerpt)

In my experience, students have a narrow view of what revision entails. They typically equate it with polishing–changing words, editing grammar, and fixing citation. In their minds, it is the final clean-up stage in the process before the assignment is due. If we want to encourage our students to treat it differently–that is, to treat it as an opportunity to discover new legal arguments, resolve dissonance in their analyses, and question their original decisions–then our comments on their drafts need to show that revision entails seeing their work through new eyes.

Women As Architects Of Peace: Gender And The Resolution Of Armed Conflict, Margaret E. Mcguiness

Faculty Publications

(Excerpt)

Any attempts to redress the harms women experience as a result of armed conflict must include a role for women in peace processes. The many excellent contributions to this symposium help us understand the complex ways in which gender affects, and is affected by, armed conflict. The end to a conflict may come too late to heal or adequately redress many gender-specific injuries: the psychological fall out and physical damage of sex-related war crimes, the permanent displacement of women and children from their homes, the destruction of families and livelihoods. Moreover, peace processes—the informal and formal mechanisms through which …

Sanchez-Llamas, American Human Rights Exceptionalism And The Vccr Norm Portal, Margaret E. Mcguiness

Faculty Publications

This Essay examines Sanchez-Llamas v. Oregon within the line of cases challenging U.S. non-compliance with the notification requirements of the Vienna Convention on Consular Relations (VCCR). The VCCR litigations arose as a response to American death penalty exceptionalism. Viewed through the lens of transnational efforts to integrate international human rights norms into the United States, Sanchez-Llamas illuminates the ways in which American human rights exceptionalism—in its many forms—is being actively contested and how judges—implicitly and explicitly—respond to arguments for and against exceptionalism.

Hegel And The Becoming Of Essence, David G. Carlson

Articles

No abstract provided.

American Diagnostic Radiology Moves Offshore: Is This Field Riding The "Internet Wave" Into A Regulatory Abyss?, Archie A. Alexander Iii

Journal of Law and Health

Recent trends in the American workplace are suggesting that outsourcing is becoming more commonplace, and currently no job or its work product may be safe from outsourcing. American blue-collar workers are certainly not surprised by these trends because they have experienced outsourcing related job losses since the early 1970s. Even those white-collar jobs traditionally considered immune to outsourcing pressures, such as those held by medical specialists, are now threatened. Most workers know outsourcing as a process whereby a domestic firm transfers some portion of their work product or a job to a different firm that resides either onshore in America …

American Diagnostic Radiology Moves Offshore: Surfing The Internet Wave To Worldwide Access And Quality Perspectives: American Diagnostic Radiology Moves Offshore: Where Is The Internet Wave Taking This Field, Eric M. Nyberg, Charles F. Lanzieri

Journal of Law and Health

International reading of medical imaging studies, or offshore teleradiology, has been a successful, though limited, practice benefiting patients and physicians for over a decade. Domestic and international market forces will continue to expand the demand for teleradiology as an important complement to United States based diagnostic radiology, though a full exodus of diagnostic reading to offshore sites is unlikely and inappropriate. Considerable obstacles remain to taking the teleradiology market to scale; however, barriers related to licensure, liability, quality assurance, and reimbursement will likely yield to market forces to be resolved in recognition of the significant benefits teleradiology offers to consumers …

Federally Mandated Informed Consent: Has Government Gone Too Far, Linda P. Mckenzie

Journal of Law and Health

Laws mandating disclosure of particular information are known as informed consent laws. They exist primarily in the area of reproductive health and most often apply to women seeking abortion. This article discusses the legal and ethical issues that arise when lawmakers decide what patients must be told before they can access certain medical procedures. Part II examines some of the ethical implications of informed consent laws. Physicians have a duty to obtain a patient's informed consent before acting. Part III discusses legal concerns raised by informed consent laws. These include the First Amendment free speech rights of physicians and patients' …

Restricting Access To Unapproved Drugs: A Compelling Government Interest , Peter M. Currie

Journal of Law and Health

The prospective review and approval of drugs is central to the public health mission of the United States Food and Drug Administration (FDA). Requiring pharmaceutical manufacturers to generate information about their products' safety and efficacy enables the agency to evaluate the risks and benefits associated with their use, thereby preventing overly harmful products from reaching the market. The majority of consumers benefit from this intervention by gaining access to an array of drugs that are proven to be safe and effective. Thus, governmental regulation in this area is arguably justified because the aggregate social welfare is substantially improved. However, this …

Stunning Trends In Shocking Crimes: A Comprehensive Analysis Of Taser Weapons, Shaun H. Kedir

Journal of Law and Health

In 2001, Westminster, Colorado police officers were dispatched to the home of a suicidal thirteen year-old girl who had barricaded herself in a bathroom. The young girl was mutilating her wrist with two butcher knives. When police officers forced their way into the bathroom, the emotionally disturbed girl charged at them with the two butcher knives while screaming, "Kill me! Kill me!." One of the officers deployed a Taser M26, a hand held conductive energy weapon, which fires two barbed darts up to a distance of thirty-five feet that then deliver an electric shock of 50,000 volts. The officer's Taser …

Is An Accrued Cause Of Action For Copyright Infringement More Like A Kidney Or A Contract?, Bryanne J. Schmitt

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Cope-Ing With The Future: An Examination Of The Potential Copyright Liability Of Non-Neutral Networks For Infringing Internet Content, Alex Pisarevsky

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Forced Medication And The Need To Protect The Rights Of The Mentally Ill Criminal Defendant, Emily C. Lieberman

Cardozo Public Law, Policy & Ethics Journal

The note argues that the current legal framework for forcibly medicating mentally ill criminal defendants, particularly pre-trial detainees, often violates their constitutional rights. It contends that the reliance on "dangerousness" as a criterion for forced medication is too vague and easily abused, leading to inconsistent and unconstitutional applications. The analysis advocates for stricter standards, clearer definitions of dangerousness, and heightened judicial scrutiny to protect the rights of mentally ill defendants.

The Safety Net Revisited? The Continuing Impact Of Welfare Reform In New York City And Nationwide, Laura R. Goldin

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

A Feminist Human Rights Law Approach For Engendering The Millennium Development Goals, Christina T. Holder

Cardozo Journal of Equal Rights & Social Justice

The note critiques the Millennium Development Goals (MDGs) for adopting a technocratic, economic-focused approach to poverty reduction, which neglects the equitable distribution of development benefits and the structural causes of poverty. It advocates for a feminist human rights law approach that integrates Third World Feminism and human rights frameworks to create a more inclusive and rights-based strategy for achieving the MDGs, particularly in empowering women and addressing gender inequalities.

French Headscarves And The U.S. Constitution: Parents, Children, And Free Exercise Of Religion, Christina A. Baker

Cardozo Journal of Equal Rights & Social Justice

The note examines the 2004 French law banning conspicuous religious symbols in public schools, highlighting its roots in France's unique secularist tradition (laïcité) and its implications for religious freedom. It contrasts this approach with the U.S., where the First Amendment would likely prevent such a ban, emphasizing the importance of protecting religious liberty to safeguard broader societal freedoms. The analysis underscores the differing legal and cultural frameworks between France and the U.S. in balancing secularism and religious expression.

Hiv Testing Of Pregnant Women: Why Present Approaches Fail To Reach The Desired Objective & The Unconsidered Option, Michelle Yuen

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Battling Breast Cancer: New York's Laws Are Not Enough, Tara Arschin

Cardozo Journal of Equal Rights & Social Justice

The note argues that New York State should mandate insurance coverage for participation in Phase II and Phase III clinical trials for experimental breast cancer treatments, such as HDCABMT, to address gaps in current law and ensure access to potentially life-saving therapies. While New York has progressive laws on breast cancer awareness and treatment rights, its approach to experimental treatment coverage remains inadequate compared to states like California and Massachusetts. The note advocates for legal reforms to eliminate the need for external appeals and reduce litigation, ensuring consistent and equitable access to clinical trials.

What Does Accidental Mean?: Autoerotic Asphyxiation As An Illustration Of The Problems Affecting Accident Insurance, Gabriel Burnham

Cardozo Journal of Equal Rights & Social Justice

The note argues that the legal system's inconsistent interpretation of what constitutes an "accident" in the context of accidental death insurance leads to confusion and inequitable outcomes, particularly in cases involving autoerotic asphyxiation. It advocates for federal regulation to standardize definitions and reduce discrepancies in court decisions.