Law Commons^™

The War On Drugs Is Over (If You Want It): State Drug Courts As An Alternative To Criminal Courts For Low-Level Nonviolent Drug Offenders, Blake Courlang

Cardozo Journal of Conflict Resolution

Part I of this Note describes the social, political, and legal reasons behind the rise of mandatory minimum sentencing in the 1980s and their path towards becoming advisory in the 2000s, as held by the Supreme Court in United States v. Booker. Part II provides a description of drug courts and argues for the use of drug courts as an alternative to the criminal sanctions for all nonviolent, low-level drug offenders. As part of this discussion, this Note examines the use of mandatory minimum sentencing post-Booker and the procedural method of divesting federal jurisdiction of nonviolent, low-level drug offenses …

Prisoner Facilitated Mediation: Bringing Peace To Prisons And Communities, Laurel Kaufer, Douglas E. Noll, Jessica Mayer

Cardozo Journal of Conflict Resolution

Prisons are too often places of conflict, violence, and fear. After spending years in such an environment Susan Russo and a group of like-minded inmates decided that they needed to take action. In 2007, Ms. Russo began sending over fifty handwritten letters to mediators throughout California, asking for assistance in setting up a conflict resolution program at the prison where she resided. Eventually, in 2009, one of her letters reached Laurel Kaufer, who, with her colleague Doug Noll, responded to Ms. Russo's request. Through their collaboration Prison of Peace ("POP") was born. POP employs an innovative method of prison conflict …

Flying Into Mecca: When Gender Should Be A Bona Fide Occupational Qualification For Expatriation Assignments In Female-Hostile Host Countries, Richard F. Brueckner

Cardozo Journal of Equal Rights & Social Justice

The note examines the tension between preserving cultural identity and navigating the demands of globalization, particularly in the context of employment discrimination under Title VII of the Civil Rights Act. It focuses on the "bona fide occupational qualification" (BFOQ) exception, which allows employers to discriminate based on certain qualifications essential to the job. The analysis critiques the narrow interpretation of BFOQ by courts and explores its application in religious and gender discrimination cases, proposing a balanced approach to reconcile business needs with anti-discrimination principles.

Bright Lights, Bright-Line: Toward Separation And Reformation Of The Transformative Use Analysis, Jennifer Yeh

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Fear And Failing In Family Court: Special Immigrant Juvenile Status And The State Court Problem, Jessica R. Pulitzer

Cardozo Journal of Equal Rights & Social Justice

The note examines the challenges faced by immigrant children seeking Special Immigrant Juvenile Status (SIJS), highlighting how state family courts' inconsistent application of the law undermines the federal statute's intent to protect vulnerable children. It argues that while SIJS was designed to provide relief to children who have suffered abuse, abandonment, or neglect, procedural and substantive inconsistencies in family court adjudications, particularly in interpreting the "best interests of the child" principle, create barriers for eligible youth. The note advocates for reforms to ensure consistent and fair access to SIJS, emphasizing the need for standardized best interest principles and greater awareness …

Jock Straps Vs. Bra Straps: Is A Battle Of The Sexes Still Necessary? A Surprising Perspective On The Effects Of Title Ix On Male Athletes In The Ncaa, Alana Berrocal

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Chaperoning Love Online: Online Dating Liability And The Wavering Application Of Cda § 230, Lindsey A. Datte

Cardozo Journal of Equal Rights & Social Justice

The note argues that the online dating industry's voluntary adoption of screening initiatives, while well-intentioned, is legally misguided. Such practices may expose platforms to increased liability and undermine the protections afforded by the Communications Decency Act (CDA) 230, which shields interactive computer services from liability for third-party content. The analysis contends that these efforts to self-regulate, though driven by legislative and societal pressure, may inadvertently erode the industry's immunity under CDA 230 and create new legal vulnerabilities.

Shopping For Gender: The Unlawfulness Of An Unregulated Market For Prenatal Gender Selection And Selective Gender Abortion, Eujean Park

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Women, Water & Privatization: A Human Rights-Based Approach To Global Water Governance, Tara Pistilli

Cardozo Journal of Equal Rights & Social Justice

The note argues that recognizing and clearly defining the human right to water is essential for ensuring equitable access, particularly for women and children, who are disproportionately affected by water scarcity and privatization. It emphasizes that a human rights-based approach to water governance is necessary to prevent conflicts and protect vulnerable populations, as demonstrated by the Cochabamba Water War. This approach, supported by international law, provides a legally binding framework to hold states and corporations accountable for fulfilling the right to water.

Trademark Protection In The New Internet Age: Template For Successful Legal Rights Objections In The Gtld Revolution, Kate Dolinska

Cardozo Arts & Entertainment Law Journal

No abstract provided.

One-Off & Off-Hand: Developing An Appropriate Course Of Liability In Threatening Online Mass Communication Events, Michael Barrett Zimmerman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Head Of The Class: Oxford Health Plans And The Uncertain Future Of Class Arbitrability Determinations, Kevin Sack

Journal of Dispute Resolution

Arbitration clauses allow contracting parties to resolve their contractual disputes without being subjected to lengthy and expensive judicial processes. Arbitrators are authorized to interpret contractual arbitration agreements to determine which issues the parties agreed to arbitrate. However, contract arbitration provisions are often silent as to the availability of class action procedures. Oxford Health Plans LLC v. Sutter held that, when parties expressly agree to allow an arbitrator to interpret whether their agreement allows class action arbitration, the arbitrator does not exceed his authority in doing so, regardless of interpretive error.' This note first discusses how the United States Supreme Court …

The Cost Of Judicial Error: Stare Decisis And The Role Of Normative Theory, Kurt T. Lash

Law Faculty Publications

The Supreme Court of the United States has long embraced the doctrine of stare decisis as an appropriate consideration any time the Court considers overruling past precedent. However, because the Court's actual application of the doctrine has been both sporadic and seemingly inconsistent, some scholars (and Justices) have accused the Court of methodological hypocrisy and bad faith. Much of this criticism assumes that, if members of the Supreme Court find certain rule of law values dispositive in one case, they should find those same considerations dispositive in all cases. Failure to do so suggests either incompetence or insincerity. This Article …

Life And Legal Fiction: Reflections On Margaret Montoya's Máscaras, Trenzas, Y Greñas, Natsu Taylor Saito

Faculty Publications By Year

This essay is based on a presentation made as part of “Un/Masking Power: The Past, Present, and Future of Marginal Identities in Legal Academia,” a symposium sponsored by the UCLA Chicana/o-Latina/o Law Review, April 5, 2013.

Future Of Mandatory Employee Arbitration Agreements, The, Marcy Greenwade

Journal of Dispute Resolution

First, this note examines the historical interpretations of arbitration agreements under the FAA and the NLRA. Next, it explores the reasoning behind the discrepancies that exist between the judicial and administrative arbitration decisions. Additionally, this note assesses the lack of a uniform standard and its effect on decision makers, employers, and employees. Lastly, this note evaluates the potential implications of a liberal policy favoring arbitration in the context of mandatory employee arbitration agreements.

Transformation, Copyright Infringement, And Fair Use, James Gibson

Law Faculty Publications

A small copyright decision out of the U.S. Court of Appeals for the Seventh Circuit last month has gotten a big reaction from copyright experts. The case is Kienitz v. Sconnie Nation, and it involves an entertaining set of facts.

In the 1960s, there was a young University of Wisconsin student named Paul Soglin, who had an anti-authoritarian streak. He led a number of demonstrations on issues ranging from civil rights to the Vietnam War. Indeed, one particular Vietnam protest, in May 1969, led to his arrest for failure to obey a police officer. That same protest became an annual …

The Supreme Court Chipping Away At Title Vii: Strengthening It Or Killing It?, Henry L. Chambers, Jr.

Law Faculty Publications

Whether the Court's chipping away at Title VII is an attempt to make Title VII into a 21st century diamond, or an attempt to make it a 21st century pile of diamond dust, or merely an attempt to interpret Title VII consistent with its text is a matter of opinion. This Article explores how the Court is interpreting and reinterpreting Title VII and necessarily considers whether the Court's reinterpretation will likely reinvigorate or damage Title VII' s broad goal of workplace equality. This Article tentatively considers what may be next for Title VII. Part I briefly discusses Title VII's scope. …

Virginia Law Reports, William Hamilton Bryson

Law Faculty Publications

Erwin Surrency, a professional law librarian, during a long career as such, was a pioneer in the field of American legal bibliography. His work is the foundation upon which later work has been and will be based. The present essay is an acknowledgment of this beacon for further bibliographical research into law books, and it is hoped that many others will follow in Erwin's footsteps and further elucidate this fascinating field of scholarship.

The Problem Of Deterring Extraterritorial White-Collar Crime, Andrew B. Spalding

Law Faculty Publications

Recent reports of egregious labor practices in China and Bangladesh have called public attention to the potential harms of foreign direct investment (FDI) in developing countries. The best, or at least most obvious, tool for reducing destructive overseas business practices would seem to be the extraterritorial application of white-collar criminal law. The "holy grail" of contemporary criminal law is deterrence, and the deterrence literature is largely shaped by the paradigm of law and economics. Prominent within that literature is Polinsky and Shavell's "enforcement authority," which seeks to maximize social utility through the efficient deterrence of crime.a Guided by the principles …

Mandatory Ultrasound Statutes And The First Amendment, Shifting The Constitutional Perspective, Cheri D. Smith

Cardozo Journal of Equal Rights & Social Justice

The jurisprudence of abortion law is replete with instances in which the concerns of the woman seeking the procedure have taken a back seat. The newest battleground in abortion regulation involves mandatory ultrasound statutes touted as informed consent regulations. The analysis of courts confronting these statutes has turned on whether the mandatory disclosures violate the physician's First Amendment right to be free from compelled speech. The particular breed of statute at issue in this paper requires a physician not only to perform an ultrasound, but also to make the images visible to the woman, to make audible the heartbeat, and …

(I Can't Get No) Satisfaction: Using Restorative Justice To Satisfy Victims' Rights, Jessica M. Marshall

Cardozo Journal of Conflict Resolution

The responsibility of sentencing defendants is the most difficult task within the criminal justice system. As the Honorable Jed S. Rakoff noted above, a sentencing judge is faced with the role of taking a guilty defendant and determining what punishment her crime warrants. Incarceration? Probation? Time served? Each judge evaluates the specific offense's characteristics, such as the number of victims, amount of loss, and violence of the offense, against the specific offender's characteristics, such as family history, age, and military service. As part of this evaluation, the defendant, the Government, the Probation Office in the form of a Presentence Report, …

Kill Switches, Forum Doctrine, And The First Amendment's Digital Future, Enrique Armijo

Cardozo Arts & Entertainment Law Journal

Governments play a growing role in providing access to digital speech spaces. This development has important consequences for free expression. Communication's migration from physical public spaces to virtual ones has increased the State's capacity for ex ante interference with speech, from targeted blocking of users, websites, and applications on its communications networks to shutting off access to those networks altogether. Contrary to the conclusions of most Speech Clause scholars, the First Amendment's public forum doctrine is ill equipped to solve these problems, in part because the doctrine under-protects speech that is not expressed in shared physical space. Accordingly, this Article …

Transnational Forfeiture Of The Getty Bronze, Derek Fincham

Cardozo Arts & Entertainment Law Journal

Italy has been engaged in an ongoing fifty-year struggle to recover an ancient Greek bronze. The "Bronze Statue of a Victorious Youth" has a remarkable story. It was lost at sea in the Adriatic in antiquity; found by chance in international waters; smuggled into the Italian seaside village of Fano; hidden first in a bathtub, then a cabbage field; smuggled and hidden in Brazil; later conserved in Germany and London; and ultimately purchased by the Getty Museum only months after the death of the Trust's namesake, J. Paul Getty. Getty refused to allow his museum to purchase the statue during …

"What Exactly Are You Implying?": The Elusive Nature Of The Implied Copyright License, Christopher M. Newman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Rebalancing Pay-For-Delay: Why No-Authorized Generic Agreements Should Be Subject To Higher Antitrust Scrutiny, David C. Kurlander

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Introductions, Francesca Montalvo

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Arbitration And The Contract Exchange, Andrew A. Schwartz

Publications

A contract exchange, defined as an organized marketplace for the creation or trading of specific contracts, provides benefits to its members as well as the public at large. But legal disputes can arise on contract exchanges, just as they do anywhere else, and those disputes can be litigated, mediated, arbitrated, or resolved in some other way. This Essay claims that arbitration, rather than litigation, is a particularly useful and appropriate means for resolving exchange-related disputes, and that this is true not only for traditional contract exchanges, like the Chicago Board of Trade, but also for online "consumer contract exchanges," such …

The Sum Of All Delegated Power: A Response To Richard Primus, The Limits Of Enumeration, Kurt T. Lash

Law Faculty Publications

In his provocative article, The Limits of Enumeration, Richard Primus rejects what he calls the “internal-limits canon” and challenges the assumption that the powers of Congress do not add up to a general police power, such that “there are things Congress cannot do, even without reference to affirmative prohibitions like those in the Bill of Rights.” Primus does not claim that federal power actually does amount to a general police power, only that it might. His principal claim is that nothing in the theoretical nature of enumerated power requires an a priori limit on the aggregate scope of delegated authority. …

Obligations And Potential Liabilities Of Attorneys In Public And Private Offerings, William O. Fisher

Law Faculty Publications

This chapter examines issues that attorneys face when performing services for developing companies, with particular focus on private offerings and the initial public offering ("IPO"). In private and public offerings, both the securities laws and the issuer's interests mandate that the offering document present full and fair disclosure of the issuer's business and financial condition. In assisting an issuer, attorneys share this goal; and can face liability if they err when providing services in such a transaction.

Cultural Determinants Of Workplace Arbitration In The U.S. And Italy, Ann C. Hodges

Law Faculty Publications

Although Italy and the United States are both advanced industrial economies, the law and practice of workplace arbitration differs significantly in the two countries. This Article explores those variations and analyzes the reasons lbr the divergent evolution of arbitration. The Article concludes that histon'cal and cultural differences in legal systems and labor and employment relations are explanatory forces. While the United States could provide a more balanced system of arbitration by learning from the Italian systems greater protection of workers, given the current reality neither system seems likely to undergo significant change in the near fiiture.