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2011

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Articles 10441 - 10470 of 11710

Full-Text Articles in Law

Conservation Easements At The Climate Change Crossroads, Jessica Owley Jan 2011

Conservation Easements At The Climate Change Crossroads, Jessica Owley

Journal Articles

The essence of a conservation easement as a static perpetual restriction is coming to a head with the understanding that the world is a changing place. This demonstration is nowhere more dramatic than in the context of global climate change. In response to this conflict, users of conservation easements face the decision of either (1) changing conservation easement agreements to fit the landscape or (2) changing the landscape to fit the conservation easements. Both of these options present benefits and challenges in implementation. Where conservation easement holders’ ultimate goal is to keep a maximum number of acres under protection from …

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Administrative Change, Randy J. Kozel, Jeffrey A. Pojanowski Jan 2011

Administrative Change, Randy J. Kozel, Jeffrey A. Pojanowski

Journal Articles

Determining the standard of review for administrative actions has commanded judicial and scholarly interest like few other topics. Notwithstanding the extensive debates, far less consideration has been given to the unique features of agencies’ deviations from their own precedents. In this article we examine this puzzle of administrative change. By change, we mean a reversal of the agency’s former views about the best way to implement and interpret its regulatory mandate. We trace the lineage of administrative change at the Supreme Court and analyze features that distinguish agency reversals from other administrative actions. In particular, we contend that because administrative …

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Congressional Authority To Interpret The Thirteenth Amendment: A Response To Professor Tsesis, Jennifer Mason Mcaward Jan 2011

Congressional Authority To Interpret The Thirteenth Amendment: A Response To Professor Tsesis, Jennifer Mason Mcaward

Journal Articles

This essay explores the proper scope of Congress’s power to enforce the Thirteenth Amendment’s prohibition on slavery and involuntary servitude. It reviews the historical context surrounding the drafting of the Thirteenth Amendment enforcement power, and it points to structural constitutional considerations relevant to the understanding of that power. It concludes by suggesting some related topics that deserve further exploration.

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Child Support Guidelines: The Good, The Bad, And The Ugly, Margaret F. Brinig, Douglas W. Allen Jan 2011

Child Support Guidelines: The Good, The Bad, And The Ugly, Margaret F. Brinig, Douglas W. Allen

Journal Articles

Child support guideline systems do more than simply determine the amount of income to be transferred from the noncustodial to the custodial household. They create incentives, one way or another, for spouses to divorce and seek custody and support payments. We examine three cases found in North America, and find that the common method of income shares provides a decent guideline that does not create any perverse incentives for divorce. Percentage-of-obligor-income methods do worse than other systems, and can cause increases in divorce rates for families in which one spouse earns a high income. Finally, the Canadian system, which is …

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Opting For Change Or Continuity - Thinking About Reforming The Judicial Article Of Montana's Constitution, Andrew P. Morriss Jan 2011

Opting For Change Or Continuity - Thinking About Reforming The Judicial Article Of Montana's Constitution, Andrew P. Morriss

Faculty Scholarship

Although Montanans rejected the proposed Constitutional Convention in the November 2010 election, the issues raised by the debate remain. As Montanans consider whether to revisit their state Constitution through initiative, referenda, or legislative action, they have the opportunity to reconsider the structure of their judiciary. This opportunity is important because state judiciaries play an increasingly significant role in American government for multiple reasons. Some state high courts have taken up former United States Supreme Court Justice William Brennan's call for state constitutional jurisprudence to advance civil liberties. As state administrative agencies wrestle with increasingly difficult regulatory issues, state courts have …

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Corporations And Human Rights Law: The Emerging Consensus And Its Effects On Women's Employment Rights, Tiana O'Konek Jan 2011

Corporations And Human Rights Law: The Emerging Consensus And Its Effects On Women's Employment Rights, Tiana O'Konek

Cardozo Journal of Equal Rights & Social Justice

The article argues that the current international human rights framework fails to adequately address corporate human rights abuses, particularly affecting women in the garment industry. This governance gap stems from the statist nature of international law, which overlooks non-state actors like corporations. Women in the garment industry, often confined to informal and precarious work, face systemic discrimination and exclusion from core labor protections, highlighting the need for a more inclusive and enforceable framework.

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Judge Harold Baer's Quixotic Crusade For Class Counsel Diversity, Michael H. Hurwitz Jan 2011

Judge Harold Baer's Quixotic Crusade For Class Counsel Diversity, Michael H. Hurwitz

Cardozo Journal of Equal Rights & Social Justice

The article examines Judge Harold Baer's efforts to promote diversity among class counsel by requiring the inclusion of at least one minority and one female lawyer in class action cases. While Baer's intent to enhance diversity is commendable, the article argues that this requirement is not supported by the legal framework of Rule 23(g) of the Federal Rules of Civil Procedure, which governs the appointment of class counsel. The article contends that Baer's actions exceed his judicial authority and conflate his personal socio-political agenda with the legal requirements for class counsel appointment.

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Who Takes The Heat? Criminal Liability For Heat-Related Deaths In High School Athletics, David Feingold Jan 2011

Who Takes The Heat? Criminal Liability For Heat-Related Deaths In High School Athletics, David Feingold

Cardozo Journal of Equal Rights & Social Justice

The note argues that criminal liability is a necessary and effective measure to address the preventable nature of heat-related deaths in high school sports. It highlights the inadequacy of current civil systems and the protective barriers of qualified immunity, which often shield coaches and schools from accountability. The vulnerability of young athletes, who rely heavily on their coaches for safety, underscores the need for stricter accountability measures to ensure their protection and reduce such tragedies.

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Is Ze An American Or A Foreigner? Male Or Female? Ze's Trapped!, Annette De La Torre Jan 2011

Is Ze An American Or A Foreigner? Male Or Female? Ze's Trapped!, Annette De La Torre

Cardozo Journal of Equal Rights & Social Justice

The note argues that the legal and medical frameworks governing the treatment of transgender and transsexual immigrant detainees in U.S. Immigration and Customs Enforcement (ICE) facilities are inadequate, leading to violations of their Eighth Amendment rights. It contends that the legal system's reliance on narrow medical definitions and outdated gender roles fails to protect these detainees from unsafe and inhumane conditions. The analysis emphasizes the need for comprehensive reforms to address housing, medical care, and staff training to ensure dignity and safety for transgender detainees.

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Protecting The Right To Choose: Regulating Conscience Clauses In The Face Of Moral Obligation, Huseina Sulaimanee Jan 2011

Protecting The Right To Choose: Regulating Conscience Clauses In The Face Of Moral Obligation, Huseina Sulaimanee

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

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Table Of Contents - Cardozo Journal Of Law & Gender, Vol. 17, Iss. 3 Jan 2011

Table Of Contents - Cardozo Journal Of Law & Gender, Vol. 17, Iss. 3

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

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Where Are The Grounds For The Legality Of Abortion? A 13th Amendment Argument, Laura Sjoberg Jan 2011

Where Are The Grounds For The Legality Of Abortion? A 13th Amendment Argument, Laura Sjoberg

Cardozo Journal of Equal Rights & Social Justice

The article critiques the legal framework supporting abortion rights, arguing that privacy-based jurisprudence, as established in *Roe v. Wade*, is inadequate due to its roots in a gendered public/private divide that perpetuates inequality. It proposes a new constitutional basis for abortion rights under the Thirteenth Amendment, framing forced pregnancy as a form of involuntary servitude and emphasizing gender subordination rather than privacy or equality.

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Panel 2: Bringing Our Kids Home: International Parental Child Abduction And Retention, Matthew Antell, Corrin Ferber, David Hearn, Courtney Houk, Jeremy Morley, Edward Stein Jan 2011

Panel 2: Bringing Our Kids Home: International Parental Child Abduction And Retention, Matthew Antell, Corrin Ferber, David Hearn, Courtney Houk, Jeremy Morley, Edward Stein

Cardozo Journal of Equal Rights & Social Justice

Symposium: Crimes Against Children (February 15, 2011)

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The Constitutionality Of And Need For Retroactive Civil Legislation Relating To Child Sexual Abuse, Jenna Miller Jan 2011

The Constitutionality Of And Need For Retroactive Civil Legislation Relating To Child Sexual Abuse, Jenna Miller

Cardozo Journal of Equal Rights & Social Justice

The note advocates for the constitutionality and necessity of retroactive child sexual abuse laws, arguing that they provide victims with a pathway to justice despite statutes of limitations. It supports this stance with Supreme Court rulings and examples of successful implementations in states like California and Delaware, emphasizing the balance between victims' rights and defendants' rights.

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He's So Gay ... Not That There's Anything Wrong With That: Using A Community Standard To Homogenize The Measure Of Reputational Damage In Homosexual Defamation Cases, Abigail A. Rury Jan 2011

He's So Gay ... Not That There's Anything Wrong With That: Using A Community Standard To Homogenize The Measure Of Reputational Damage In Homosexual Defamation Cases, Abigail A. Rury

Cardozo Journal of Equal Rights & Social Justice

The note examines the role of the community standard in determining defamation, particularly in cases involving false claims of homosexuality. It argues that the current application of the community standard often lacks clarity and may reflect judicial biases, leading to inconsistent rulings. The note proposes reforms to enhance the accuracy and transparency of defamation analysis by adopting a contemporary community standard, similar to that used in obscenity law, which considers specific geographic and social contexts.

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Annotated Legal Bibliography On Gender Jan 2011

Annotated Legal Bibliography On Gender

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

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Table Of Contents - Cardozo Journal Of Law & Gender, Vol. 18, Iss. 1 Jan 2011

Table Of Contents - Cardozo Journal Of Law & Gender, Vol. 18, Iss. 1

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

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Using Gender Equality Analysis To Improve The Wellbeing Of Prostitutes, Barbara Havelkova Jan 2011

Using Gender Equality Analysis To Improve The Wellbeing Of Prostitutes, Barbara Havelkova

Cardozo Journal of Equal Rights & Social Justice

The article presents a framework for analyzing prostitution through the lens of gender equality, aiming to improve the wellbeing of prostitutes by offering regulators and judges a tool for evaluation. It challenges the asymmetric legal treatment of prostitutes and clients, arguing that such treatment violates gender equality principles. The framework proposes symmetric treatment or measures benefiting prostitutes to address structural inequalities rooted in gender, class, race, and socioeconomic status. The analysis draws on European and common law jurisdictions, emphasizing the need for gender-conscious policies to ensure fairness and proportionality.

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Sending The Principal To The Warden's Office: Holding School Officials Criminally Liable For Failing To Report Cyberbullying, Scott Farbish Jan 2011

Sending The Principal To The Warden's Office: Holding School Officials Criminally Liable For Failing To Report Cyberbullying, Scott Farbish

Cardozo Journal of Equal Rights & Social Justice

The note argues that current state anti-cyberbullying statutes are insufficient to protect students and that holding school officials criminally liable for failing to address cyberbullying incidents would be a more effective deterrent. It contends that while legislatures have made progress in addressing cyberbullying, the lack of clear definitions and comprehensive measures leaves victims without adequate remedies. The note proposes that criminal liability for school officials would incentivize proactive measures to prevent cyberbullying, particularly in cases where off-campus incidents disrupt the school environment.

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Guarding Their Sanctuary On The Offense: Criminal Contempt Actions By Domestic Violence Victims In Private Capacity, Mili Patel Jan 2011

Guarding Their Sanctuary On The Offense: Criminal Contempt Actions By Domestic Violence Victims In Private Capacity, Mili Patel

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

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Gender-Classified Imports: Equal Protection Violations In The Harmonized Tariff Schedule Of The United States, Jason Lewis Jan 2011

Gender-Classified Imports: Equal Protection Violations In The Harmonized Tariff Schedule Of The United States, Jason Lewis

Cardozo Journal of Equal Rights & Social Justice

The note argues that gender-based classifications in the Harmonized Tariff Schedule of the United States (HTSUS) likely violate the Equal Protection Clause of the Fourteenth Amendment. It critiques the Federal Circuit's application of a lower level of scrutiny in Totes-Isotoner Corp. v. United States and advocates for courts to apply intermediate scrutiny, as established by Craig v. Boren, to such classifications. The analysis also examines the role of the Office of the U.S. Trade Representative (USTR) in trade negotiations and asserts that international agreements cannot override constitutional protections.

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The Use Of The Intent Doctrine To Expand The Rights Of Intended Homosexual Male Parents In Surrogacy Custody Disputes, Perri Koll Jan 2011

The Use Of The Intent Doctrine To Expand The Rights Of Intended Homosexual Male Parents In Surrogacy Custody Disputes, Perri Koll

Cardozo Journal of Equal Rights & Social Justice

The note advocates for the expansion of parental rights for homosexual male couples through surrogacy by promoting the intent doctrine and amending existing laws. It highlights the inconsistency in legal approaches across states and suggests that recognizing intended parenthood, regardless of sexual orientation, is essential for equality. The proposed solutions include adopting the intent doctrine nationwide and revising the Uniform Parentage Act to include same-sex couples.

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New Crimes And Punishments: A Case Study Regarding The Impact Of Over-Criminalization On White Collar Criminal Cases, Lucian E. Dervan Jan 2011

New Crimes And Punishments: A Case Study Regarding The Impact Of Over-Criminalization On White Collar Criminal Cases, Lucian E. Dervan

Law Faculty Scholarship

Over-criminalization takes many forms and impacts the American criminal justice system in varying ways. This article focuses on a select portion of the over-criminalization phenomenon by examining two types of over-criminalization prevalent in white collar criminal law. The first type of over-criminalization discussed in this article is Congress’s propensity for increasing the maximum criminal penalties for white collar offenses in an effort to punish financial criminals more harshly. The second type of over-criminalization addressed in this article is Congress’s tendency to create vague and overlapping criminal provisions in areas already criminalized in an effort to expand the tools available to …

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Re-Evaluating Corporate Criminal Liability: The Doj’S Internal Moral Culpability Standard For Corporate Criminal Liability, Lucian E. Dervan Jan 2011

Re-Evaluating Corporate Criminal Liability: The Doj’S Internal Moral Culpability Standard For Corporate Criminal Liability, Lucian E. Dervan

Law Faculty Scholarship

This article examines the common law respondeat superior test for corporate criminal liability and proposes that it be expanded beyond the current two prong test to encompass a third prong regarding moral culpability. Further, this article supports this proposal by noting that the Department of Justice has already incorporated a moral culpability element into its analysis of corporate criminal liability through application of the Department’s Principles of Federal Prosecution of Business Organizations. While some might argue that one should be satisfied that the Department of Justice has seen fit to implement a new corporate criminal liability standard on its own …

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Pearson V. Callahan And Qualified Immunity: Impact On First Amendment Law, David L. Hudson Jr. Jan 2011

Pearson V. Callahan And Qualified Immunity: Impact On First Amendment Law, David L. Hudson Jr.

Law Faculty Scholarship

An essay on Pearson v. Callahan and its impact on First Amendment Law.

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The Surprising Lessons From Plea Bargaining In The Shadow Of Terror, Lucian E. Dervan Jan 2011

The Surprising Lessons From Plea Bargaining In The Shadow Of Terror, Lucian E. Dervan

Law Faculty Scholarship

Since September 11, 2001, several hundred individuals have been convicted of terrorism related charges. Of these convictions, over 80% resulted from a plea of guilty. It is surprising and counterintuitive that such a large percentage of these cases are resolved in this manner, yet, even when prosecuting suspected terrorists caught attempting suicide attacks, the power of the plea bargaining machine exerts a striking influence. As a result, a close examination of these extraordinary cases offers important insights into the forces that drive the plea bargaining system. Utilizing these insights, this article critiques two divergent and dominant theories of plea bargaining …

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American Prison Culture In An International Context: An Examination Of Prisons In America, The Netherlands, And Israel, Lucian E. Dervan Jan 2011

American Prison Culture In An International Context: An Examination Of Prisons In America, The Netherlands, And Israel, Lucian E. Dervan

Law Faculty Scholarship

In 2004, British authorities arrested Abu Hamza al-Masri, an Egyptian born cleric sought by the United States for his involvement in instigating terrorist attacks. As authorities prepared to extradite him in July 2010, the European Court of Human Rights issued a stay. According to the court, al-Masri’s claims that maximum-security prisons in the United States violate European human rights laws prohibiting torture and degrading treatment warranted further examination. Regardless of the eventual resolution of the al-Masri case, the European Court of Human Rights’ inability to summarily dismiss these assertions demonstrates something quite troubling. At a minimum, the court’s actions indicate …

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Information Warfare And Civilian Populations: How The Law Of War Addresses A Fear Of The Unknown, Lucian E. Dervan Jan 2011

Information Warfare And Civilian Populations: How The Law Of War Addresses A Fear Of The Unknown, Lucian E. Dervan

Law Faculty Scholarship

Imagine a civilian communications system is being temporarily relied upon by an opposing military force for vital operations. If one launches a computer network attack against the communications system, the operation may disable the opposing force’s ability to function adequately and, as a result, prompt their surrender. The alternative course of action is to launch a traditional kinetic weapons attack in the hopes of inflicting enough casualties on the troops to induce surrender. Given these options, the law of war would encourage the utilization of the computer network attack because it would result in less unnecessary suffering. But is the …

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Overcriminalization 2.0: The Symbiotic Relationship Between Plea Bargaining And Overcriminalization, Lucian E. Dervan Jan 2011

Overcriminalization 2.0: The Symbiotic Relationship Between Plea Bargaining And Overcriminalization, Lucian E. Dervan

Law Faculty Scholarship

In discussing imperfections in the adversarial system, Professor Ribstein notes in his article entitled Agents Prosecuting Agents, that “prosecutors can avoid the need to test their theories at trial by using significant leverage to virtually force even innocent, or at least questionably guilty, defendants to plead guilty.” If this is true, then there is an enormous problem with plea bargaining, particularly given that over 95% of defendants in the federal criminal justice system succumb to the power of bargained justice. As such, this piece provides a detailed analysis of modern-day plea bargaining and its role in spurring the rise of …

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Avoiding Legal Seduction: Reinvigorating The Labor Movement To Balance Corporate Power, Ann C. Hodges Jan 2011

Avoiding Legal Seduction: Reinvigorating The Labor Movement To Balance Corporate Power, Ann C. Hodges

Law Faculty Publications

This Article begins by briefly describing how legal and political action has come to be a central strategy for labor unions. Next, it analyzes the ways in which the law has failed the labor movement, reviewing various laws that have been enacted to protect employees, often at the behest of unions, and how those laws have been perversely twisted to the detriment of workers. The Article, then, looks at unions and employee movements that have succeeded in the face of unfavorable laws and analyzes the determinants of those union successes. Finally, based on these strategies, the Article provides suggestions about …

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