Law Commons^™

Same-Sex Marriage, Italian Style, Matteo M. Winkler

Cardozo Journal of Equal Rights & Social Justice

The article examines Italy's exceptionalism in same-sex marriage rights through the lens of the Bernaroli case, highlighting the country's divergence from European legal trends. It argues that the Italian Constitutional Court's heteronormative interpretation of Article 29 of the Constitution, which prohibits same-sex marriage, reflects a broader resistance to recognizing same-sex unions despite international human rights standards. The case underscores the tension between domestic law and supranational legal frameworks, such as rulings from the European Court of Human Rights, which have increasingly supported the recognition of same-sex relationships. The article concludes that while Italy has made limited progress with its 2016 …

A Hurdle Too High: The Unconstitutionality Of Mandatory Ultrasounds Under Casey's Undue Burden Standard, Katarzyna Kordas

Cardozo Journal of Equal Rights & Social Justice

The article argues that mandatory ultrasound laws impose an undue burden on women seeking abortions, violating the constitutional standard established in Planned Parenthood v. Casey. These laws, often enacted to dissuade women from proceeding with abortions, are deemed medically unnecessary and unconstitutional as they obstruct women's reproductive rights.

Thou Shall Not Adopt: Sexual Orientation Discrimination In The Adoption Process, Peter Gallucci

Cardozo Journal of Equal Rights & Social Justice

The note addresses the issue of sexual orientation discrimination in the adoption process, highlighting how religious-based adoption agencies often deny services to LGBTQ+ couples, despite the growing need for foster care placements. It critiques current laws that permit such discrimination and proposes an enhanced version of the Every Child Deserves a Family Act to ensure equal adoption rights while mitigating the impact on states and foster children.

Internal Investigations And The Evolving Fate Of Privilege, Lucian E. Dervan

Law Faculty Scholarship

In 1981, the United States Supreme Court delivered a landmark ruling in Upjohn Co. v. United States. The decision made clear that the protections afforded by the attorney-client privilege apply to internal corporate investigations. This piece examines the fundamental tenets of Upjohn, discusses some recent challenges to the applicability of privilege to materials gathered during internal investigations, and considers the manner in which the international nature of modern internal investigations adds complexity and uncertainty to the field.

'White Collar Crime': Still Hazy After All These Years, Lucian E. Dervan, Ellen S. Podgor

Law Faculty Scholarship

With a seventy-five year history of sociological and later legal roots, the term “white collar crime” remains an ambiguous concept that academics, policy makers, law enforcement personnel and defense counsel are unable to adequately define. Yet the use of the term “white collar crime” skews statistical reporting and sentencing for this conduct. This Article provides a historical overview of its linear progression and then a methodology for a new architecture in examining this conduct. It separates statutes into clear-cut white collar offenses and hybrid statutory offenses, and then applies this approach with an empirical study that dissects cases prosecuted under …

Corporate Criminal Liability, Moral Culpability, And The Yates Memo, Lucian E. Dervan

Law Faculty Scholarship

This article examines the Department of Justice's Principles of Federal Prosecution of Business Organizations (contained in the USAM) and considers the concept of "moral culpability" within them. The article goes on to propose revising the Principles of Prosecution to better focus on questions of "corporate moral culpability" as a means of more accurately assessing corporate criminal liability. In doing so, the article proposes not only changes to the Principles of Prosecution, but changes to the common law respondeat superior test for corporate liability. Finally, the article considering the impact of the Yates Memo (2015) on corporate charging decisions and the …

Fair Play Fair Pay: The Need For A Terrestrial Public Performance Right And General Copyright Reform, Loren E. Mulraine

Law Faculty Scholarship

Copyright is a unique species of the law, tethered in a very tangible way to what is largely an intangible: intellectual property. It should be no surprise then that any collection of laws governing property that can be literally created in a moment out of nothing but the mind of the creator, will ultimately have an eternal struggle keeping pace with that very thing it purports to govern. Historically, copyright law has been relegated to being the horse that is second to cross the finish line at the Kentucky Derby. The horse is indeed world class; however, it is simply …

Symposium Panel: Bringing Blurred Lines Into Focus, Loren E. Mulraine

Law Faculty Scholarship

Belmont Law Review Symposium: Bringing Blurred Lines into Focus, October 2015

Fair Play Fair Pay: The Need For A Terrestrial Public Performance Right And General Copyright Reform, Loren E. Mulraine

Belmont Law Review

Copyright is a unique species of the law, tethered in a very tangible way to what is largely an intangible: intellectual property. It should be no surprise then that any collection of laws governing property that can be literally created in a moment out of nothing but the mind of the creator, will ultimately have an eternal struggle keeping pace with that very thing it purports to govern. Historically, copyright law has been relegated to being the horse that is second to cross the finish line at the Kentucky Derby. The horse is indeed world class; however, it is simply …

Dissecting The Hybrid Rights Exception: Should It Be Expanded Or Rejected?, David L. Hudson Jr., Emily H. Harvey

Law Faculty Scholarship

In the early 1960s, the Supreme Court of the United States adopted a high level of protection for religious liberty claims. The Court applied a version of strict scrutiny when evaluating governmental laws or regulations that burdened an individual's free exercise of religion. In 1990, the Supreme Court reversed decades of precedent and fundamentally changed the meaning and application of the Free Exercise Clause. In Employment Division v. Smith, the Court, in an opinion by Justice Antonin Scalia, determined that the Free Exercise Clause does not protect individuals from laws that donot target specific religious beliefs or practices. However, Justice …

First Amendment Right To Receive Information And Ideas Justifies Citizens' Videotaping Of The Police, David L. Hudson Jr.

Law Faculty Scholarship

Several courts have declared that members of the public have a First Amendment-protected right to film or videotape the police. At least one legal commentator has posited that this right falls within three of the five textually-based freedoms of the First Amendment - the Speech, Press, and Petition Clauses. This right to receive information and ideas is a "corollary" of the right to speak that triggers the First Amendment interests of not only speakers, but also audiences. This right to receive information and ideas applies in the context of citizens recording the police. The public has a right to know …

Voices On Innocence, Lucian E. Dervan, Richard A. Leo, Meghan J. Ryan, Valena Elizabeth Beety, Gregory M. Gilchrist, William W. Berry

Law Faculty Scholarship

In the summer of 2015, experts gathered from around the country to sit together and discuss one of the most pressing and important issues facing the American criminal justice system – innocence. Innocence is an issue that pervades various areas of research and influences numerous topics of discussion. What does innocence mean, particularly in a system that differentiates between innocence and acquittal at sentencing? What is the impact of innocence during plea bargaining? How should we respond to growing numbers of exonerations? What forces lead to the incarceration of innocents? Has an innocent person been put to death and, if …

Intellectual Property And The University: An Introduction, Jacob H. Rooksby

Law Faculty Publications

Higher education today faces many challenges. Adequately opening the doors of social mobility for students from diverse and non-traditional backgrounds. Rising tuition that has resulted in an entire generation of students emerging from college with student loan debt that can seem insurmountable. Declining state support of public institutions. Increased calls for institutions to contribute to local economies through job creation and workforce development. A growing administrative class in higher education that often only adds to bureaucracies and mounting costs instead of alleviating them. An increasing reliance on adjunct professors to teach core subjects and dwindling numbers of tenure-stream faculty. Urgent …

Intercultural Legal Sensibility As Transformation, Raquel Aldana

McGeorge School of Law Scholarly Articles

In recent years the transformation of legal practice through globalization and shifting demographics in the United States have made the inherent cross-cultural nature of lawyering more apparent. As a result, law schools are being more intentional about the teaching of intercultural legal sensibility as part of the law school curriculum. This increased interest by U.S. law schools to train lawyers in intercultural legal sensibility calls for careful engagement by legal educators to define what intercultural legal sensibility should mean, to develop methodologies in response to the desired outcomes, and to measure their effectiveness. This article offers a reflection on what …

Imagining U.S. Labor Relations Without Union Security, Ann C. Hodges

Law Faculty Publications

Attacks on union finances are intensifying. These assaults, which come in various forms, have the potential to jeopardize the current systems of labor relations in the United States in both private and public sectors. This essay analyzes what might happen if the challenges are successful. Unions may shrink further in size or power, or alternatively, respond to new conditions in ways that strengthen them. Removal of union security might prompt legal change such as elimination of the duty of fair representation, elimination of the system of exclusive representation, or permitting the union to charge nonmembers for actual representation. These changes, …

Making Juvenile Justice More Humane And Effective, Julie Ellen Mcconnell

Law Faculty Publications

Long commutes, high costs and too much time away from family are among the most common frustration for workers in Virginia. But while those annoyances may be tolerable when it comes to our daily commutes, they have become an unfortunate feature of Virginia’s youth justice system, which confines hundreds of youth in large institutions far from their homes.

When young people have regular visits with their family and other members of the community, they have a much higher chance of being rehabilitated and successfully returning to those communities. Currently, many incarcerated youth in Virginia are held far from their families, …

Speech-Facilitating Conduct, Jud Campbell

Law Faculty Publications

Free speech doctrine generally protects only expression, leaving regulations of nonexpressive conduct beyond the First Amendment’s scope. Yet the Supreme Court has recognized that abridgments of the freedom of speech “may operate at different points in the speech process.” This notion of protection for nonexpressive conduct that facilitates speech touches on many of the most contentious issues in First Amendment law— restrictions on photography and audiovisual recording, limits on campaign contributions, putative newsgathering privileges for journalists, compelled subsidization of speech, and associational rights, to name just a few. Scholars, however, have generally approached these topics in isolation, typically focusing on …

Three Supreme Court “Failures” And A Story Of Supreme Court Success, Corinna Barrett Lain

Law Faculty Publications

Plessy v. Ferguson. Buck v. Bell. Korematsu v. United States. Together, these three decisions legitimated ‘separate but equal,’ sanctioned the forced sterilization of thousands, and ratified the removal of Japanese Americans from their homes during World War II. By Erwin Chemerinsky’s measure in The Case Against the Supreme Court, all three are Supreme Court failures—cases in which the Court should have protected vulnerable minorities, but failed to do so. Considered in historical context, however, a dramatically different impression of these cases, and the Supreme Court that decided them, emerges. In two of the cases—Plessy and Buck—the Court’s ruling reflected the …

Commentary For Price Waterhouse V. Hopkins, Dale Margolin Cecka

Law Faculty Publications

Price Waterhouse is primarily known for its addressing of sex stereotyping. The word “stereotype” appears ten times in the various opinions of Price Waterhouse , but the Court did not clarify what kind of stereotype-influenced behavior and workplace environment is illegal. The Court had in the record extensive expert testimony from Dr. Susan Fiske about stereotyping, but it dismissed that testimony as mere “icing on the cake” and it was not integral to the holding. The Court concluded summarily that partners reacted “negatively to [Hopkins’s] personality because she is a woman.” It alluded to the “possible ways of proving that …

Confirm Myra Selby For The Seventh Circuit, Carl W. Tobias

Law Faculty Publications

President Barack Obama recently nominated Myra Selby for a vacancy on the U.S. Court of Appeals for the Seventh Circuit. The nominee is a highly accomplished lawyer who has compiled a distinguished record in both the public and private sectors. For example, Selby was the first African American to earn partnership in a substantial Indianapolis law firm, and both the first African American and the first female Justice to serve on the Indiana Supreme Court. Therefore, concerted White House attempts to confirm her were unsurprising. Nonetheless, with 2016 being a presidential election year, delays have inevitably infused appointments, which have …

Confirming Circuit Judges In A Presidential Election Year, Carl W. Tobias

Law Faculty Publications

Over 2016, President Barack Obama tapped accomplished, mainstream candidates for seven of twelve federal appeals court vacancies. Nevertheless, the Senate Judiciary Committee has furnished a public hearing and vote for merely three nominees and did not conduct a hearing for any other prospect this year. 2016 concomitantly is a presidential election year in which appointments can be delayed and stopped—a conundrum that Justice Antonin Scalia’s Supreme Court vacancy exacerbates. Because appellate courts comprise tribunals of last resort for practically all cases and critically need each of their members to deliver justice, the appointments process merits scrutiny. The Essay first evaluates …

The President As Spiritual Leader: Pardons, Punishment, Forgiveness, Mercy, And Justice, Henry L. Chambers Jr.

Law Faculty Publications

The Constitution of the United States empowers the president of the United States to curtail or eliminate punishment for actual or possible federal criminal wrongdoing by issuing pardons. As the quotes that begin this chapter suggest, the nature of a presidential pardon is subject to dispute. A pardon can be thought to be an act of grace or an extension of the president's executive power to administer the criminal justice system, or something in between. This chapter does not resolve the issue, but considers the nature of the pardon power while considering whether or how the president can or should …

Preserving The Llsdc Legislative Source Book With Perma.Cc, Roger V. Skalbeck

Law Faculty Publications

With LLSDC’s Legislative Source Book, Rick McKinney was constantly concerned about the collection’s stability, functionality, and availability. With any major revision to the LLSDC.org website, Rick worked to ensure that content was accessible and that he and members of the Legislative Research SIS could keep it updated. In an effort to preserve the Legislative Source Book, the collection’s core elements were captured using the Perma.cc service. These links reference archived versions of each source, presented in parallel to its current form. There is more depth and detail than presented here, which shows the collection’s complex and comprehensive coverage.

Minor Federal Government Regulatory Agencies, Kathleen Klepfer

Law Faculty Publications

Rick McKinney’s “Federal Administrative Law: A Brief Overview” is a succinct and helpful place to find information about rulemaking, common administrative law statutes, and the major administrative agencies. But what about those unsung heroes, the minor regulatory agencies whose necessity—and sometimes purpose—are lost to history? We propose this addendum to Rick’s article to give a couple of these minor agencies their due.

Leveraging Narratives: Communicating Value With Qualitative Content, Roger V. Skalbeck

Law Faculty Publications

The contemporary law library is embodied by its information resources, physical space, technology infrastructure, and the people who make it all happen. Each of these elements can change dramatically with new information tools, shifting organizational demands and emerging service models.

Commentary To The U.S. Copyright Office Regarding The Section 512 Study: Higher Education And The Dmca Safe Harbors, Christopher A. Cotropia, James Gibson

Law Faculty Publications

The nearly twenty-year history of the Digital Millennium Copyright Act’s safe harbor provisions has been marked by criticism from content owners, online service providers, and end users. Content owners complain about the cost of monitoring online content and sending take-down notices. Online service providers complain about the cost of receiving and processing the notices. And end users complain about their legitimate use of copyrighted works being subject to DMCA take-down. Colleges and universities have been at the forefront of this controversy; as providers of online services to their students, they have been a focus of both Congress and copyright owners. …

Understanding Your Domestic Relations Rights In Virginia, 2016-2017, Julie Ellen Mcconnell

Law Faculty Publications

The Metropolitan Richmond Women’s Bar Association has published this booklet to help you understand the general legal circumstances that you may face in resolving domestic relations problems under Virginia law. Each person faces unique circumstances that may not be specifically addressed in a broad overview. This booklet is not intended to provide specific advice to you or to address your specific situation. You should use this document only as an introduction to understanding your legal rights.

This booklet is based on laws in effect in Virginia on July 1, 2016. Because laws are always subject to change, you should consult …

Between Legitimacy And Control: Challenges And Recusals Of Arbitrators And Judges In International Courts And Tribunals, Chiara Giorgetti

Law Faculty Publications

Challenges of judges and arbitrators in international courts and tribunals is a vastly understudied subject. To correct this imbalance, this Article makes three novel contributions. First, and for the first time, it details and compares challenge procedures across a variety of international courts and tribunals, including both permanent and ad hoc institutions. Second, it provides unique data on challenges and provides a detailed analysis of their outcomes. Third, it makes two concrete recommendations that should be adopted as baseline requirements to improve and harmonize existing challenge procedures: (1) it proposes that an external or semi-external institution take decisions on challenges, …

Derivative Racial Discrimination, Kevin Woodson

Law Faculty Publications

This Article introduces the concept of derivative racial discrimination, a process of institutional discrimination in which certain social and cultural dynamics impede the careers of minority workers in predominantly white firms even in the absence of racial biases and stereotypes. Derivative racial discrimination is a manifestation of cultural homophily, the universal tendency of people to gravitate toward others with similar cultural interests and backgrounds. Although not intrinsically racial, cultural homophily disadvantages minority workers in predominantly white work settings due to various race-related social and cultural differences. Seemingly inconsequential in isolation, these differences produce racial disparities in the accrual of valuable …

Human Capital Discrimination, Law Firm Inequality, And The Limits Of Title Vii, Kevin Woodson

Law Faculty Publications

This Article advances the legal scholarship on workplace inequality through use of evidence derived from interviews of a sample of black attorneys who have worked in large, predominantly white law firms. It does so by calling attention to the manner in which these firms operate as sites of human capital discrimination — patterns of mistreatment that deprive many black associates of access to the substantive work opportunities crucial to their professional development and career advancement. This Article identifies the specific arrangements and practices within these firms that facilitate human capital discrimination and describes the varied, often subtle harms and burdens …