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Masthead - Cardozo Arts & Entertainment Law Journal, Vol. 31 (2012)

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Table Of Contents - Cardozo Arts & Entertainment Law Journal, Vol. 31, Iss. 1

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Special Access: The Harm Of Premature Deregulation In Telecommunications, Cary E. Adickman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Disparate Impact And Equal Protection After Ricci V. Destefano, Marcia L. Mccormick

All Faculty Scholarship

As Professor Richard Primus noted in his article, Equal Protection and Disparate Impact: Round Three, the constitutional issues surrounding the disparate impact theory of discrimination have evolved significantly over time. First the question was whether the Constitution’s equal protection guarantee embodied disparateimpact. Most people assumed yes, but the Supreme Court said no in 1976 in Washington v. Davis. Second, the source of Congress’ power to prohibit disparate impact discrimination was called into question with the so-called federalism revolution. Only if it was within Congress’ power under Section 5 of the Fourteenth Amendment could disparate impact legislation be applied to the …

Four Conceptualizations Of The Relations Of Law To Economics (Tribulations Of A Positivist Social Science), Pierre Schlag

Publications

This brief essay sketches the ways in which four leading economic thinkers (Knight, Coase, Posner and Sunstein) have dealt with a vexing tension in the relations of economics to law, the state, and the social. The tension arises as microeconomists address (or fail to address) the relations of their theories to “soft factors” such as psychology, politics, social institutions, etc. These soft factors are at once clearly consequential for economic behavior (and thus arguably should be included in the theories). At the same time, these soft factors are not self-evidently subject to determination by any known economic laws (and thus …

Undo Undue Hardship: An Objective Approach To Discharging Federal Students Loans In Bankruptcy, Aaron N. Taylor

All Faculty Scholarship

A debtor seeking to discharge student loans in bankruptcy must prove that paying the debt would cause an undue hardship upon him and his dependents. Undue hardship, however, is an undefined concept, flummoxing debtors, creditors and judges alike. The result of this ambiguity is rampant inconsistency in the manners in which similarly-situated debtors (and creditors) are treated by the courts. This article argues that the undue hardship standard should be replaced by a framework that uses debt service thresholds to determine the propriety of federal student loan bankruptcy discharges. Eligibility for discharge would depend on outstanding loan amounts, debtor income …

Federalism, Individual Rights And Judicial Engagement, Kurt T. Lash

Law Faculty Publications

Contemporary “rights talk” under the American Constitution tends to focus on individual rights or those rights that can be perfected in the case of a single individual. This would include, for example, the rights to free expression, free exercise of religion, sexual autonomy, or the right to equal treatment. Under the broad umbrella of individual-rights talk, theoretical discussions generally involve whether courts ought to recognize a particular individual right or what level of scrutiny (or engagement) ought to apply to judicially identified individual rights.

From the beginning of our history as a nation, however, the concept of legally cognizable rights …

Which Law Governs During Armed Conflict? The Relationship Between International Humanitarian Law And Human Rights Law, Rebecca Crootof, Oona A. Hathaway, Philip Levitz, Haley Nix, William Perdue, Chelsea Purvis, Julia Spiegel

Law Faculty Publications

On May 31, 2010, in the early hours of the morning, Israeli Defense Forces boarded and occupied a flotilla of six vessels seventy-two nautical miles from the coast of Gaza. The flotilla carried food and other supplies to Gaza, which was under a naval blockade. During the incident, nine passengers were killed and several others wounded. In the aftermath, a key question that emerged was what body of law applied to the incident? Was it subject to human rights law, international humanitarian law, or some mix of the two?

This same question has been at the heart of ongoing debates …

Top 10 Law School Home Pages Of 2011, Roger V. Skalbeck

Law Faculty Publications

For the third consecutive year, all ABA-accredited home pages are evaluated based on objective criteria, in attempt to find the best sites.

The Public Trust Doctrine And The Montana Constitution As Legal Bases For Climate Change Litigation In Montana, Gregory S. Munro

Montana Law Review

The Public Trust Doctrine and the Montana Constitution As Legal Bases for Climate Change Litigation in Montana

State V. Allen: The Connection Between The Right To Be Secure From Unreasonable Searches And Seizures And Montana's Individual Right Of Privacy, Stephanie Holstein

Montana Law Review

State v. Allen: The Connection Between the Right to Be Secure From Unreasonable Searches and Seizures and Montana's Individual Right of Privacy

Capture Nuances In The Contest For Financial Regulation, Lawrence G. Baxter

Faculty Scholarship

Applying capture analysis in the hotly contested arena of financial regulation is difficult. Numerous regulators with widely differing missions and widely diverse stakeholders are involved. Regulators operate under widely differing authorizing legislation. They even function at different levels of government. Agencies are often at odds with each other when it comes to determining optimal public policy. Unlike policy disputes in many other areas of regulation, which can be settled by reference to scientific data, public policy in financial regulation rests profoundly on essentially contested economic ideologies. This makes financial policy doubly difficult: one the one hand, it requires deep expertise—and …

Fixing Section 409a: Legislative And Administrative Options, Gregg D. Polsky

Scholarly Works

This symposium contribution to the Villanova Law Review describes the legislative calamity that is section 409A of the Internal Revenue Code. Section 409A manages, all at once, to (i) fail to better neutralize the tax treatment of deferred compensation with that of current compensation, (ii) impose significant compliance costs on sophisticated taxpayers, and (iii) provide a dangerous trap for unsophisticated taxpayers.

Ideally, Congress should repeal section 409A and replace it with a system that taxes deferred compensation more neutrally vis-a-vis current compensation. Failing that, Congress should either replace section 409A with a broad grant of authority to the Treasury and …

Teaching Elements Of Election Law Beyond The Disciplinary Borders Of "Election Law", Frances R. Hill

Articles

No abstract provided.

Convergence And Divergence In International Dispute Resolution Symposium, Peter B. Rutledge

Scholarly Works

Drawing on the literature, two strands help to frame this paper. The first concerns why parties choose to arbitrate. The second strand is the literature documenting the efforts within the arbitration industry to encourage the use of arbitraments.

My goal in this paper is to bridge a gap between this second strand and the first, more theoretical strand. What is missing from both strands is a concrete, system-wide understanding about why parties opt for arbitration as opposed to other forms of dispute resolution. In other words, I seek both to give concrete understanding to the theoretical model articulated in the …

Environmental Impact Statements - The Ninth Circuit Narrows The No-Growth-Inducing-Impacts Exception, John Carse

Journal of Air Law and Commerce

No abstract provided.

Propelling Aviation To New Heights: Accessibility To In-Flight Entertainment For Deaf And Hard Of Hearing Passengers, Michael A. Schwartz

Journal of Air Law and Commerce

No abstract provided.

Pereira's Attack On Legalizing Euthanasia Or Assisted Suicide: Smoke And Mirrors, Jocelyn Downie, Kenneth Chambaere, Jan L. Bernheim

Articles, Book Chapters, & Popular Press

In a paper published in Current Oncology, University of Ottawa palliative care physician Jose Pereira states that the, “laws and safeguards [in countries in which euthanasia or assisted suicide have been legalized] are regularly ignored and transgressed in all the jurisdictions, and that transgressions are not prosecuted.” He purports to demonstrate that the safeguards and controls put in place in the permissive jurisdictions are an “illusion.”

In the present paper, we expose problems with the evidence base provided and relied upon by Pereira. It should be noted that we provide only examples of each of the categories of mistakes made …

Cross-Border Extended Collective Licensing: A Solution To Online Dissemination Of Europe’S Cultural Heritage, Johan Axhamn, Lucie Guibault

Articles, Book Chapters, & Popular Press

The ever increasing use of the Internet and of digitisation technologies have opened up new possibilities for distributing and accessing creative content online, including for cultural heritage institutions. However, the digitisation and dissemination of a substantial proportion of the collections held by European cultural institutions may be considerably hindered due to high transaction costs related to clearance of copyright and related rights. This holds equally true for the cultural institutions taking part in the Europeana project. This study examines whether the Nordic “extended collective licensing” (ECL) model could provide a viable solution to the problems of digitisation and dissemination of …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Challenges Of "Sameness": Pitfalls And Benefits To Assumed Connections In Lawyering, Carwina Weng, Lynn Barenberg, Alexis Anderson

Articles by Maurer Faculty

Individuals are drawn to connect with other people because of shared experiences and personal characteristics. These connections often help people establish rapport, trust, and engagement. Surely these same benefits would apply in the lawyer-client relationship where a lawyer’s ability to find common links with her client would facilitate the lawyering process.

Perhaps that is true, but not necessarily and not without some potential costs. As clinical teachers, we have become increasingly wary that assumptions attributable to sameness can complicate lawyering. Untested assumptions, whatever their source, can impair lawyering judgments. In our collective experience, we have found that assumptions rooted in …

Trends And Challenges In Lawyer Regulation: The Impact Of Globalization And Technology, Laurel S. Terry, Steve Mark, Tahlia Gordon

Fordham Law Review

No abstract provided.

Dedication, John H. Robinson

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Christian Witness, Moral Anthropology, And The Death Penalty, Richard W. Garnett

Notre Dame Journal of Law, Ethics & Public Policy

In this essay, I consider - in the context of our ongoing debates about capital punishment - the question, what role ought religious beliefs play in a pluralistic democratic society that often presumes strict boundaries between matters of private faith and political life? I suggest, first, that we should resist the imposition of such strict boundaries between matters of private faith and political life and, second, that in the context of our public arguments about the death penalty, engaged Christians should not merely to baptize the policy analyses and preferences of abolitionist or other interest groups, but should instead propose …

Palliative Care And Hospice: Opportunities To Improve Care For The Sickest Patients, Kathleen Tschantz Unroe, Diane E. Meier

Notre Dame Journal of Law, Ethics & Public Policy

The article discusses how palliative care and hospice services address the quality and cost concerns in the U.S. health care system. By focusing on symptom management, coordination among providers, and improved transitions of care, the services meet the needs of the sickest persons at lower costs. The author suggests putting in place the right leadership and resources and strengthening the workforce to successfully expand the programs.

Reflections On Cuomo: The Secret Consensus, Theodore M. Hesburgh

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Navigating Eu Law And The Law Of International Arbitration, George A. Bermann

Faculty Scholarship

The European Union and international arbitration are two robust legal regimes that have managed to develop largely in accordance with their own respective “first principles,” and they have accordingly thrived. This article initially explains why that has been the case.

But the era of parallelism between the regimes has ended, and rather suddenly. This article identifies the two principal fronts on which tensions between EU law and international arbitration law have emerged. Interestingly, both commercial and investment arbitration are implicated.

A first front entails a conflict between the European Court of Justice's (ECJ's) expansive notions of EU public policy and …

The Law On What Documents Scientists Must Keep And Disclose, Michael B. Gerrard, Elizabeth Sheargold

Faculty Scholarship

Recently, several climate scientists have received demands to produce their raw data, working notes, e-mails, letters, or other communications. These demands may come in the form of subpoenas, U.S. Freedom of Information Act (FOIA) requests, or requests during litigation. Below are some general guidelines for scientists about complying with their document retention and disclosure obligations, both as a matter of routine practice and in the event of legal action. This article concerns only U.S. laws and is not legal advice, which should be sought from the scientist's lawyers or those of his or her employer.

Integrating Humanities Into Family Law And The Problem With Truths Universally Acknowledged, Carol Sanger

Faculty Scholarship

Family Law differs from the other subjects under discussion today in at least two respects. As a matter of curricular location, it is not always considered a core course. I am therefore grateful for Melissa Murray’s public recognition of the “coreness” of Family Law within a legal education. Second, if one purpose of integrating humanities into the core curriculum is to humanize the law, it is probably safe to say that Family Law is already humanized enough. The subject comes fully loaded with all too human conflict and suffering: cruelty, anger, sex, disappointed expectations, and all of these play out …

Obama Reelection Clears Path For Numerous New Epa Regulations, Michael B. Gerrard

Faculty Scholarship

The reelection of President Barack Obama means that a long list of new regulations will be issued by the Environmental Protection Agency (EPA) in the coming months. Some had been held up because of their political sensitivity, and others were still in process, but many will soon be ready for further action.

The election results also mean that major new environmental legislation is very unlikely for the next two years. The House of Representatives is still firmly controlled by the Republicans, and their leadership has not signaled any major change from the last Congress’ stance of opposition to many EPA …