Law Commons^™

Ten Questions On National Security, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

This essay was written in response to an invitation by the editors of the William Mitchell Journal of the National Security Forum to answer one or more of ten questions concerning national security law and policy. This essay provides the author's answer to the question: "Would President Obama have the authority to hold a United States citizen without charge in a military brig for six months if that citizen - who lives in Minnesota - is suspected of links to al Qaeda following a one-month trip to Somalia?"

No-Limit Texas Hold 'Em, Or, The Voir Dire In Dallas County, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

Voir dire is Law French for “to speak the truth.” In the United States and a few other common-law countries that still use juries, the term describes the process of selecting jurors who will hear the evidence presented at trial, render a verdict, and sometimes determine punishment. The translation suggests a search for jurors who can render a fair and impartial verdict. Attorneys try to discover and remove jurors who seem unable or unlikely to speak the truth, such as those who nurture irrational prejudices or harbor private grievances.

In most federal courts, the judge is the primary conduit for …

Green Cards For Foreign House Buyers: A Way To Help Stabilize Housing Prices, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

The continuing decline in US housing prices is making it difficult to effectively address our nation’s financial and economic problems. Any measures that would serve to help stabilize housing prices without requiring substantial government expenditures merit serious consideration. Richard Lefrak and Gary Shilling have recently set forth in the Wall Street Journal the broad outlines of a proposed change in immigration law that would confer conditional residency and eventually permanent residency upon foreign purchasers of US houses. In this article I present and discuss a modified version of their proposal that is more comprehensive and that seeks to avoid the …

The Endogeneity Problem In Cost-Benefit Analysis, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

Cost-benefit analysis, an important technique in American public sector decision-making, is used to assess policies through aggregating the estimated willingness to pay of the affected persons to enjoy the benefits or avoid the burdens of those policies. Such analyses are generally based on the implicit simplifying assumptions that both the preferences of existing persons and the genetic identities of the persons who will comprise future generations are exogenous with respect to that policy. If, however, some persons’ preferences are endogenous in that they are altered by a policy, which is often the case, then this exogenous preferences assumption will introduce …

How Recognizing The Endogeneity Of Identity Renders The Discounting Debate Largely Irrelevant, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

Many social policies require the substantial commitment of resources in order to provide benefits for future generations. Conventional policy assessment by the usual willingness to pay valuation criterion raises the issues of whether the future benefits of a policy should first be discounted to a smaller present value before comparison with its current costs in order to assess its merits, and if so then what discount rate should be utilized for these calculations. There is, however, less at stake in this debate than the partisans on either side commonly realize. This is because of the failure of policy analysts to …

The Clean Air Act Is In No Shape To Be Celebrated, David Schoenbrod

Other Publications

No abstract provided.

Innovation Or Renovation In Criminal Procedure: Is The World Moving Toward A New Model Of Adjudication?, Gerald S. Reamey

Faculty Articles

A universal system of criminal procedure offers the allure of efficiency, predictability, and enhanced crime control. For the first time in modern history, universality seems achievable. The criminal procedures employed by the world’s major legal systems are converging. What was once distinctively “civil” or “common law” is now a blend of the two. The adversarial adjudicative approach of most common law countries now can be found in the most unlikely places, and civil law characteristics adorn the processes of some of the world’s most aggressively adversarial systems.

While this movement has not gone unnoticed, the pace of change has accelerated, …

Calls For National Identity Card To Halt Illegal Immigration, Jeffrey F. Addicott

Faculty Articles

Rising concerns for security and integrity have caused the federal government to revisit the issue of who is allowed into the United States. Each year, tens of millions of visas are granted to foreign nationals for reasons varying from education, travel, to even conducting business. Of paramount concern is that about forty percent of the nation’s undocumented immigrants are those who have overstayed their visas. While millions overstay their visas, millions more continue to pour across an open border from Mexico. One proposal made by the Senate to halt or slow illegal immigration is the creation of a national identity …

Further Reflections On Post-Realist Legal Scholarship And Teaching: A Brief Response To Professor Scordato, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

In this article, the author scrutinizes Professor Marin Roger Scordato’s recommendations regarding legal scholarship and teaching in the post-realist era. The author takes issue with some of Scordato’s recommendations on how to resolve the tension between instrumentalism and formalist legal discourse. Rather than devoting the bulk of their instruction to conventional doctrines and formalist analysis, the author suggests that instrumentalist law professors give greater relative emphasis to instrumentalist critiques.

A Critical Legal Rhetoric Approach To In Re African-American Slave Descendants Litigation, Lolita Buckner Inniss

Faculty Journal Articles and Book Chapters

No abstract provided.

A Review Of Negotiating Justice: Progressive Lawyering, Low Income Clients, And The Quest For Social Change, Lolita Buckner Inniss

Faculty Journal Articles and Book Chapters

No abstract provided.

Judging Cruelty, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

he wisdom of the death penalty has recently come under attack in a number of states. This raises the question of whether states’ retreat from the death penalty, or other punishments, will pressure other states - either politically or constitutionally - to similarly abandon the punishment. Politically, states may succumb to the trend of discontinuing a punishment. Constitutionally, states may be forced to surrender the punishment if it is considered cruel, and, as a result of a large number of states renouncing it, the punishment also becomes unusual. If a punishment is thus found to be both cruel and unusual, …

Legal Ethics In International Criminal Defense, Jenia I. Turner

Faculty Journal Articles and Book Chapters

This paper examines the new and complex dilemmas facing defense attorneys who represent clients before international criminal courts. It argues that the unique features and goals of international criminal trials demand a distinct approach to resolving some of these ethical dilemmas. In particular, the goals of international trials are broader and often more political than those of ordinary domestic trials, and the applicable procedures are a unique hybrid of the inquisitorial and adversarial traditions. Moreover, some of the justifications for aggressive defense at the domestic level - such as discouraging disengaged advocacy and protesting overly harsh punishments - are less …

Table Of Contents - Cardozo Arts & Entertainment Law Journal, Vol. 27, Iss. 3

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Locke's 1694 Memorandum (And More Incomplete Copyright Historiographies), Justin Hughes

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Tough Reality Of Copyright Piracy: A Case Study Of The Music Industry In China, Jiarui Liu

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Grapes Of Wrathful Heirs: Terminations Of Transfers Of Copyright And "Agreements To The Contrary", Michael J. Bales

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Singer Did Not Approve This Message: Analyzing The Unauthorized Use Of Copyrighted Music In Political Advertisements In Jackson Browne V. John Mccain, David C. Johnston

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Third Time Is Not Always A Charm: The Troublesome Legacy Of A Dutch Art Dealer-The Limitation And Act Of State Defenses In Looted Art Cases, Bert Demarsin

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Much Ado About Evocation: A Cultural Analysis Of "Well-Knownness" And The Right Of Publicity, David Tan

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Right Of Publicity Licensing In A New Age: No Doubt V. Activision Publishing, Inc., Marta Baffy

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Refusals Of Conscience: What Are They And When Should They Be Accommodated?, Kent Greenawalt

Faculty Scholarship

Approaching this subject as a decided nonexpert, I want to explore a number of questions about a right to conscience in respect to efusals to provide health-care services. My hope is that the questions will seem important and relevant, even if some of my tentative answers are controversial or even misguided.

It is helpful to distinguish three levels of analysis: 1) What would be an ideal scope for rights of conscience if we could put aside difficulties of administration and political feasibility? 2) What would be a desirable approach given administrative and political realities? 3) And in what rhetoric should …

The Politics Of Nature: Climate Change, Environmental Law, And Democracy, Jedediah S. Purdy

Faculty Scholarship

Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwise. The major natural resource and environmental statutes, from the acts creating national forests and parks to the Clean Air and Clean Water Acts, have emerged from precisely the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of citizenship, national purpose, and the role and …

A Postscript To Struck By Stereotype, Ruth Bader Ginsburg

Duke Law Journal

No abstract provided.

Of Christmas Trees And Corpus Christi: Ceremonial Deism And Change In Meaning Over Time, B. Jessie Hill

Duke Law Journal

Although the Supreme Court turned away an Establishment Clause challenge to the words "under God" in the Pledge of Allegiance in Elk Grove Unified School District v. Newdow, the issues raised by that case will not go away anytime soon. Legal controversies over facially religious government speech have become one of the most regular and prominent features of Establishment Clause jurisprudence-and indeed, a second-round challenge to the Pledge of Allegiance is currently percolating, which will likely result in resolution by the Supreme Court. That resolution will depend on an understanding of the social meaning of the practice at issue. This …

International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White

Duke Law Journal

Though international criminal justice has flourished over the last two decades, scholars have neglected institutional design and procedure questions. International-criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law's main purpose should be not only to inflict retribution but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, stable career paths, and civil-service expertise. It should also draw on the American experience of federalism to cultivate cooperation with national authorities and select …

Struck By Stereotype: Ruth Bader Ginsburg On Pregnancy Discrimination As Sex Discrimination, Neil S. Siegel, Reva B. Siegel

Duke Law Journal

It was always recognition that one thing that conspicuously distinguishes women from men is that only women become pregnant; and if you subject a woman to disadvantageous treatment on the basis of her pregnant status, which was what was happening to Captain Struck, you would be denying her equal treatment under the law.(1)

Journal Staff

Duke Law Journal

No abstract provided.

Narrowing The Bankruptcy Safe Harbor For Derivatives To Combat Systemic Risk, Bryan G. Faubus

Duke Law Journal

Bankruptcy law establishes proceedings designed to rehabilitate debtors while protecting creditors, but a series of safe harbors effectively exempts from bankruptcy proceedings certain financial contracts known as derivatives. Accordingly, when a party to a derivative contract goes bankrupt, the counterparty may terminate the contract and seize what it is owed from the debtor's assets. Congress enacted these safe harbors to combat the risk of systemic failure by maintaining liquidity in troubled markets; in doing so, however, they allowed counterparties to engage in opportunistic behavior and inefficiently consume a debtor's limited assets. Because these two consequences may harm the debtor and …

"Per Se Illegality For Reverse Payment Settlements?" Review Of "Unsettling Drug Patent Settlements: A Framework For Presumptive Illegality, Daniel A. Crane

Reviews

Congratulations to Mike on a very fine book. I will confine my comments to Mike's chapter on patent settlements (Chapter 15), which I understand will also be coming out as an article in the Michigan Law Review. Patent settlements involving "reverse payments" are a huge topic on which I and many others have spilled much ink already. Representative Bobby Rush (President Obama's erstwhile nemesis from Chicago's South Side) has just introduced legislation that would ban reverse payments.' I will not regurgitate my entire spiel on patent settlements here, but instead just try to highlight my essential disagreement with Mike …