Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 30

Full-Text Articles in Law

Accessing Justice: The Available And Adequacy Of Counsel In Removal Proceedings, Peter Markowitz, Jojo Annobil, Stacy Caplow, Peter V.Z. Cobb, Nancy Morawetz, Oren Root, Claudia Slovinsky, Zhifen Cheng, Lindsay C. Nash Dec 2011

Accessing Justice: The Available And Adequacy Of Counsel In Removal Proceedings, Peter Markowitz, Jojo Annobil, Stacy Caplow, Peter V.Z. Cobb, Nancy Morawetz, Oren Root, Claudia Slovinsky, Zhifen Cheng, Lindsay C. Nash

Faculty Articles

The immigrant representation crisis is a crisis of both quality and quantity. It is the acute shortage of competent attorneys willing and able to competently represent individuals in immigration removal proceedings. Removal proceedings are the primary mechanism by which the federal government can seek to effect the removal, or deportation, of a noncitizen. The individuals who face removal proceedings might be: the long-term lawful permanent resident (green card holder) who entered the country lawfully as a child and has lived in the United States for decades; or the refugee who has come to the United States fleeing persecution; or the …


Collateral Censorship And The Limits Of Intermediary Immunity, Felix T. Wu Nov 2011

Collateral Censorship And The Limits Of Intermediary Immunity, Felix T. Wu

Faculty Articles

The law often limits the liability of an intermediary for the speech it carries. And rightly so, because imposing liability on intermediaries can induce them to filter out questionable content and this “collateral censorship” risks suppressing much lawful, even highly beneficial, speech. The “collateral censorship” rationale has its limits, though, and correspondingly, so should the applicability of intermediary immunity. The worry with collateral censorship is not just that intermediaries censor, but that they censor more than an original speaker would in the face of potential liability. Increased censorship, in turn, is the product of applying liability targeted at original speakers …


Chair's Message, Michael Herz Oct 2011

Chair's Message, Michael Herz

Faculty Articles

No abstract provided.


Does Qualified Immunity Matter?, Alexander A. Reinert Sep 2011

Does Qualified Immunity Matter?, Alexander A. Reinert

Faculty Articles

In litigation brought pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), most commentators agree that qualified immunity plays a substantial role in limiting plaintiffs' ability to recover compensation. Many find this tradeoff acceptable, in part because of concerns of fairness to government official defendants and in part because courts may still play a central role in announcing the law without worrying over the retroactive effect their decision will have on the personal funds of the defendant official.

This paper considers the different role that qualified immunity may play in …


Dean Verkuil, Michael Herz Jul 2011

Dean Verkuil, Michael Herz

Faculty Articles

No abstract provided.


Brief For Evidence And Criminal Law Scholars As Amici Curiae In Support Of Petitioner, Alexander A. Reinert Jun 2011

Brief For Evidence And Criminal Law Scholars As Amici Curiae In Support Of Petitioner, Alexander A. Reinert

Faculty Amicus Briefs

Amici are scholars who teach and write about criminal law, criminal procedure, and evidence. We file this brief to address the relationship between rules of admissibility for psychiatric testimony and Eighth Amendment standards for procedure in capital trials. The decision by the Texas Court of Criminal Appeals paid little attention to this relationship, but in so doing it ignored much of this Court’s important capital punishment jurisprudence. Amici write to emphasize that the Eighth Amendment’s emphasis on reliability and accuracy in capital trials has ramifications for the admissibility of expert testimony.

Our scholarly interest in this issue arises from teaching …


Brief Of Amici Curiae Public Justice, The Prisoners’ Rights Project Of The Legal Aid Society Of The City Of New York, And The Pennsylvania Institutional Law Project In Support Of Plaintiffs-Appellees, Alexander A. Reinert Jun 2011

Brief Of Amici Curiae Public Justice, The Prisoners’ Rights Project Of The Legal Aid Society Of The City Of New York, And The Pennsylvania Institutional Law Project In Support Of Plaintiffs-Appellees, Alexander A. Reinert

Faculty Amicus Briefs

Public Justice is a national public interest law firm dedicated to preserving access to justice, remedying government and corporate wrongdoing, and holding the powerful accountable in courts. As part of its access-to-justice work, Public Justice created an Iqbal Project in 2009 to combat misuse of the Supreme Court’s decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). The Project tracks developments in the case law and provides assistance to counsel facing Iqbal-based motions. Public Justice is concerned that overbroad readings of Iqbal threaten to deny justice to many injured plaintiffs with meritorious claims.

In addition to Public …


2011 Commencement Exercises, Benjamin N. Cardozo School Of Law May 2011

2011 Commencement Exercises, Benjamin N. Cardozo School Of Law

Commencement

Order of Exercises

Processional:

Herbert C. Dobrinsky, Vice President for University Affairs, Yeshiva University; Herald

Presiding:

Morton Lowengrub, Provost and Senior Vice President for Academic Affairs, Yeshiva University; Chief Marshal

Richard M. Joel, President, Yeshiva University

National Anthem:

Cantor Ira W. Heller, Class of 2008

Invocation:

Rabbi Ozer Glickman, Adjunct Professor, Benjamin N. Cardozo School of Law

Welcome:

Leslie E. Payson, Chair, Cardozo Board of Overseers, Benjamin N. Cardozo School of Law; Class of 1991

Remarks:

Matthew Diller, Dean, Benjamin N. Cardozo School of Law

Commencement Address:

Eric Schneiderman, Attorney General of the State of New York

Alumni Greeting:

Mark …


Citizenship And Worldwide Taxation: Citizenship As An Administrable Proxy For Domicile, Edward A. Zelinsky May 2011

Citizenship And Worldwide Taxation: Citizenship As An Administrable Proxy For Domicile, Edward A. Zelinsky

Faculty Articles

The United States' worldwide taxation of its citizens is less different from international, residence-based norms than is widely believed and is sensible as a matter of tax policy. An individual's citizenship is an administrable, if sometimes overly broad, proxy for his domicile, his permanent home. Both citizenship and domicile measure an individual's permanent allegiance rather than his immediate physical presence. Because citizenship and domicile resemble each other, and because other nations often define residence for tax purposes as domicile, the U.S. system of citizenship-based taxation typically reaches the same results as the residence-based systems of these other nations, but reaches …


Legal Positivism As An Idea About Morality, Martin J. Stone Apr 2011

Legal Positivism As An Idea About Morality, Martin J. Stone

Faculty Articles

I ask what a proper critical target for 'legal positivism' might be. I argue that utilitarian moral theory, and more generally fully directive moral theories, are unacknowledged motivations for legal positivism. Contemporary debate about 'the nature of law' is, historically speaking, much more of a footnote to utilitarianism than has been recognized.


Chevron'S Regrets: The Persistent Vitality Of The Nondelegation Doctrine, Michael C. Pollack Apr 2011

Chevron'S Regrets: The Persistent Vitality Of The Nondelegation Doctrine, Michael C. Pollack

Faculty Articles

Since the Chevron decision in 1984, courts have extended to administrative agencies a high level of deference when those agencies reasonably interpret ambiguous statutes, reasoning that agencies have more technical expertise and public accountability than courts. However, when the agency’s interpretation implicates a significant policy choice, courts do not always defer. At times, they rely on principles of nondelegation to rule against the agency interpretation and require that choices be made by Congress instead.

Chevron makes no explicit exception for significant policy choices, but in cases like MCI v. AT&T and FDA v. Brown & Williamson, the Supreme Court …


The Impact Of Ashcroft V. Iqbal On Pleading, Alexander A. Reinert Apr 2011

The Impact Of Ashcroft V. Iqbal On Pleading, Alexander A. Reinert

Faculty Articles

No abstract provided.


After Deference: Formalizing The Judicial Power For Foreign Relations Law, Deborah Pearlstein Feb 2011

After Deference: Formalizing The Judicial Power For Foreign Relations Law, Deborah Pearlstein

Faculty Articles

How much deference should courts afford executive branch interpretations of statutes and treaties? The question that has long engaged foreign relations scholars has found new salience as it has become apparent in recent years that the Supreme Court will neither abstain nor reliably defer to presidential judgment even in cases implicating national security. As the courts grapple with the scope of detention authority granted by Congress’ 2001 Authorization for the Use of Military Force, or the limits on that authority under the Geneva Conventions, a number of scholars have embraced administrative law deference doctrines such as that in Chevron v. …


2011-2012, Benjamin N. Cardozo School Of Law Jan 2011

2011-2012, Benjamin N. Cardozo School Of Law

Student Handbooks

No abstract provided.


2011 Cardozo Life (Issue 1), Benjamin N. Cardozo School Of Law Jan 2011

2011 Cardozo Life (Issue 1), Benjamin N. Cardozo School Of Law

Cardozo Life Magazine

Table of Contents:

Around Campus, page 2

Questions for Prof. Max Minzner, page 16

Faculty Briefs, page 18

An Interview with Stanley Fish, page 22

Same-Sex Marriage in the US, page 28

Standing Up to the Vatican, page 32

A Summer of Public Service, page 36

Intellectual Property: Fast Forward, page 42

Alumni News & Notes, page 49

Cardozo Advancement, page 57

Endnote, page 60


2011 Cardozo Life (Issue 2), Benjamin N. Cardozo School Of Law Jan 2011

2011 Cardozo Life (Issue 2), Benjamin N. Cardozo School Of Law

Cardozo Life Magazine

Table of Contents:

The Innocence Project at 20, page 4

Are You a Gladiator or a Peacemaker?, page 8

Top News & Events, Class Notes, page 12

News from Programs, Centers & Journals, page 16

Faculty Briefs, page 23

And… Action! The Indie Film Clinic’s First Scene, page 26

Immigration Justice: From Both Sides, page 28

Filling the Justice Gap, page 30

Alumni News & Advancement, page 34

Endnote, page 42

Looking Back, page 44


Madison’S Full Faith And Credit Clause: A Historical Analysis, Charles M. Yablon Jan 2011

Madison’S Full Faith And Credit Clause: A Historical Analysis, Charles M. Yablon

Faculty Articles

The Defense of Marriage Act (DOMA) has created a new wave of interest in the Full Faith and Credit Clause and its apparent contradictions. Important recent scholarship has shown that American lawyers in the eighteenth century often viewed the term “full faith and credit” as referring to an evidentiary rule. This interpretation ameliorates, but does not actually resolve, the apparent conflict between the first sentence of the Clause, which seems to create a mandatory rule of sister state deference, and the second sentence of the Clause, which seems to give Congress plenary power to abrogate that rule. Rather than seek …


Expression By Ordinance: Preemption And Proxy In Local Legislation, Lindsay Nash Jan 2011

Expression By Ordinance: Preemption And Proxy In Local Legislation, Lindsay Nash

Faculty Articles

Local laws based on immigration status have prompted heated national debate on federalism and discrimination. A second strain of nuisance-related legislation has emerged in recent years, which often targets these same immigrant communities. This paper examines the hitherto-unstudied correlation between ordinances explicitly related to immigrants and legislation regarding nuisance–as illuminated through primary research into municipal legislation across the nation. Evaluating these laws and the context of their enactment, this research shows when and how nuisance laws target certain populations. Ultimately, this inquiry reveals troubling parallels to previous community responses to disfavored subgroups and the harm resulting from proxy legislation.


The Inauthentic Claim, Anthony J. Sebok Jan 2011

The Inauthentic Claim, Anthony J. Sebok

Faculty Articles

This Article takes a critical look at the persistence of legal doctrines that prohibit or limit property rights in litigation. The Article focuses on prohibitions on assignment and maintenance. Assignment of personal injury tort claims is prohibited throughout the United States, while the assignment of other claims, such as fraud and professional malpractice, is prohibited in a large number of states. Maintenance, in which a stranger provides something of value to a litigant in order to support or promote the litigation, is prohibited in varying degrees in the United States.

These doctrines might seem quite independent of each other at …


Outsourcing Incompetence: An Essay In Honor Of Paul Verkuil, Arthur J. Jacobson Jan 2011

Outsourcing Incompetence: An Essay In Honor Of Paul Verkuil, Arthur J. Jacobson

Faculty Articles

No abstract provided.


Anatomy Of An Aggregate Settlement: The Triumph Of Temptation Over Ethics, Lester Brickman Jan 2011

Anatomy Of An Aggregate Settlement: The Triumph Of Temptation Over Ethics, Lester Brickman

Faculty Articles

In an aggregate settlement, usually of a mass tort claim, a defendant agrees to pay a specific dollar amount to be divided up by the lawyer among her multiple clients which may number in the hundreds and even thousands. Each client, therefore, is in competition with all of the lawyer’s other clients suing the same defendant for a share of the fixed sum. Rule 1.8(g) of the ABA Rules of Professional Conduct requires that each client give their informed consent to their allocation. To facilitate the settlement and the often quite substantial contingency fees to be earned, lawyers may mislead …


The Costs Of Heightened Pleading, Alexander A. Reinert Jan 2011

The Costs Of Heightened Pleading, Alexander A. Reinert

Faculty Articles

In Conley v. Gibson, 355 U. S. 41 (1957), the Supreme Court announced its commitment to a liberal pleading regime in federal civil cases, and for decades thereafter was steadfast in resisting ad hoc heightened pleading rules adopted by lower courts. Thus, from 1957 until a few years ago, most litigants could count on surviving a motion to dismiss a complaint for failure to state a claim so long as their pleading provided some minimal notice to the defendant of the nature of their claim. Enter Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, …


Constitutional Versus Administrative Ordering In An Era Of Globalization And Privatization: Reflections On Sources Of Legitimation In The Post-Westphalian Polity, Michel Rosenfeld Jan 2011

Constitutional Versus Administrative Ordering In An Era Of Globalization And Privatization: Reflections On Sources Of Legitimation In The Post-Westphalian Polity, Michel Rosenfeld

Faculty Articles

The current trend towards globalization and privatization has resulted in the proliferation of a plurality of legal regimes that lack the unity and hierarchy guaranteed by a working constitution in the typical nation-state. One important question raised by these developments is whether a suitable constitutional ordering and constitutional legitimation can succeed at the transnational level. In the alternative, it has been suggested that administrative ordering and legitimation may suffice, provided constitutional anchoring remains firm within the confines of the nation-state. With this in mind, this article explores the conceptual underpinnings of the contrast between a constitutional regime and an administrative …


Structural Obstacles To Settlement Of Land Use Disputes, Stewart E. Sterk Jan 2011

Structural Obstacles To Settlement Of Land Use Disputes, Stewart E. Sterk

Faculty Articles

In many states, legal doctrine discourages settlement of land use litigation by requiring that any settlement undergo the same review process as the decision that led to the litigation in the first place. The problem is exacerbated by broad standing rules that allow a variety of parties to challenge the settlement. As a result, municipalities and developers often have an incentive to litigate to judgment, even though both parties would prefer a negotiated or mediated solution.

On the other hand, permitting developers and municipalities to settle litigation behind closed doors could impair both the quality and the legitimacy of the …


Is Integration A Discriminatory Purpose?, Michelle Adams Jan 2011

Is Integration A Discriminatory Purpose?, Michelle Adams

Faculty Articles

Is integration a form of discrimination? Remarkably, recent Supreme Court doctrine suggests that the answer to this question may well be yes. In Ricci v. DeStefano, the Court characterizes - for the very first time - government action taken to avoid disparate-impact liability and to integrate the workplace as "race-based," and then invalidates that action under a heightened level of judicial review. Consequently, Ricci suggests that the Court is open to the "equivalence doctrine," which posits that laws intended to racially integrate are morally and constitutionally equivalent to laws intended to racially separate. Under the equivalence doctrine, integration is simply …


Justice Stevens And The Expert Executive, Deborah Pearlstein Jan 2011

Justice Stevens And The Expert Executive, Deborah Pearlstein

Faculty Articles

No abstract provided.


Alternative Elements, Jessica A. Roth Jan 2011

Alternative Elements, Jessica A. Roth

Faculty Articles

The U.S. Constitution provides a criminal defendant with a right to trial by jury, and most states and the federal government require criminal juries to agree unanimously before a defendant may be convicted. But what exactly must a jury agree upon unanimously? Well-established doctrine, pursuant to In re Winship, provides that the jury must agree that the prosecution has proven every element of the offense beyond a reasonable doubt. Yet what the elements of any given offense are is not as clear as one might expect. Frequently, criminal statutes—especially federal statutes—describe an array of prohibited conduct, leaving ambiguous whether …


What Is Wrong About Wrongdoing, Anthony J. Sebok Jan 2011

What Is Wrong About Wrongdoing, Anthony J. Sebok

Faculty Articles

This short article, which was prepared for a conference on civil recourse theory at Florida State University School of Law, asks whether Blackstone’s rejection of maintenance is inconsistent with the theoretical commitments of modern civil recourse theory. Blackstone strongly believed that third parties should not help victims of wrongdoing discover that they have been wronged, this article asks whether modern civil recourse theory is committed to the position (now in retreat throughout common law nations) that third parties who help strangers’ lawsuits are acting against the public interest (or, as Blackstone put it, are “pests of society . . . …


Winn And The Inadvisability Of Constitutionalizing Tax Expenditure Analysis, Edward A. Zelinsky Jan 2011

Winn And The Inadvisability Of Constitutionalizing Tax Expenditure Analysis, Edward A. Zelinsky

Faculty Articles

No abstract provided.


Zoning Finality: Reconceptualizing Res Judicata Doctrine In Land Use Cases, Stewart E. Sterk, Kimberly J. Brunelle Jan 2011

Zoning Finality: Reconceptualizing Res Judicata Doctrine In Land Use Cases, Stewart E. Sterk, Kimberly J. Brunelle

Faculty Articles

No abstract provided.