Law Commons^™

Agency Pragmatism In Addressing Law’S Failure: The Curious Case Of Federal “Deemed Approvals” Of Tribal-State Gaming Compacts, Kevin K. Washburn

University of Michigan Journal of Law Reform

In the Indian Gaming Regulatory Act of 1988 (IGRA), Congress imposed a decision-forcing mechanism on the Secretary of the Interior related to tribal-state compacts for Indian gaming. Congress authorized the Secretary to review such compacts and approve or disapprove each compact within forty-five days of submission. Under an unusual provision of law, however, if the Secretary fails to act within forty-five days, the compact is “deemed approved” by operation of law but only to the extent that it is lawful. In a curious development, this regime has been used in a different manner than Congress intended. Since the United States …

The User Rights Database: Measuring The Impact Of Opening Copyright Exceptions, Sean Flynn, Michael Palmedo

Joint PIJIP/TLS Research Paper Series

International and domestic copyright law reform around the world is increasingly focused on how copyright exceptions — a.k.a. “user rights” —should be expanded to promote maximum innovation, creativity, and access to knowledge in the digital age. These efforts are guided by a relatively rich theoretical literature. However, few empirical studies explore the social and economic impact of expanding user rights in the digital era. One reason for this gap has been the absence of a tool measuring the key independent variable – changes in copyright user rights over time and between countries. We are developing such a tool, which we …

Automatic Authorization Of Frisks In Terry Stops For Suspicion Of Firearms Possession, Royce De R. Barondes

Faculty Publications

The recognition in Heller of an individual right to bear arms has required courts to grapple with the interaction between exercise of this right in public and Terry stops. Core questions are (i) whether reasonable suspicion a person is armed is by itself sufficient to initiate a Terry stop and (ii), if so, whether such a stop inherently authorizes an accompanying frisk. The former issue is examined in a separate forthcoming article, Royce de R. Barondes, Conditioning Exercise of Firearms Rights on Unlimited Terry Stops, 54 Idaho L. Rev. 297.

This article focuses on the second issue. Most fundamentally, insofar …

Calm Down About Common Ownership, Thom Lambert, Michael E. Sykuta

Faculty Publications

Proponents of additional antitrust intervention to police common ownership simply have not made their case. Their theory as to why current levels of intra-industry diversification would cause consumer harm is implausible and the empirical evidence they say demonstrates such harm is both scant and methodologically suspect. The policy solutions they have proposed for dealing with the purported problem would radically rework an industry that has provided substantial benefits to investors, raising the costs of portfolio diversification and enhancing agency costs at public companies. Courts and antitrust enforcers should reject their calls for additional antitrust intervention to police common ownership.

Eroding Immigration Exceptionalism: Administrative Law In The Supreme Court's Immigration Jurisprudence, Kate Aschenbrenner

Faculty Scholarship

No abstract provided.

Contumacious Responses To Firearms Legislation (Leosa) Balancing Federalism Concerns, Royce De R. Barondes

Faculty Publications

The Law Enforcement Officers Safety Act (LEOSA) is one of the handful of federal statutes that preempt state firearms regulation. It allows covered individuals (certain current and retired qualified law enforcement personnel) to possess firearms notwithstanding assorted state restrictions-to protect themselves and to supplement local law enforcement efforts.

The act reflects a careful legislative balancing of federalism concerns. Although it relies on states and localities to issue the authorizing credentials, it does not mandate states create a licensing regime out of whole cloth. The act ultimately presents issues requiring a nuanced assessment of the doctrine proscribing federal commandeering of the …

Planning For A Post Neoliberal Future, Sonia Lawrence

Articles & Book Chapters

No abstract provided.

2018 Cardozo Life (Fall), Benjamin N. Cardozo School Of Law

Cardozo Life Magazine

Table of Contents:

Top News & Events, page 3

Clinics News, page 11

Faculty Briefs, page 13

Faculty With Impact, page 16

A Courtside Seat: Six Former Clerks Share Their Supreme Court Takeaways, page 30

Bridging the Gap, page 35

Notable Case Brings Three Clinics to One Man's Defense, page 36

Student News, page 38

Cardozo Welcomes Two New Deans, page 41

Movers & Shakers, page 42

Alumni News & Class Notes, page 44

End Note, page 53

Telemarketing, Technology, And The Regulation Of Private Speech: First Amendment Lessons From The Fcc’S Tcpa Rules, Justin (Gus) Hurwitz

Brooklyn Law Review

This article considers the viability of the Telephone Consumer Protection Act (TCPA) in light of recent Supreme Court First Amendment precedent and technological and regulatory developments. Robocalls—phone calls made using autodialers or prerecorded messages without the consent of the call recipient—have become one of the primary consumer protection issues facing regulators. With more than 2.4 billion of these calls placed each month, consumer concern about them dominate complaints received by both the Federal Communications Commission and Federal Trade Commission. Simultaneously, as cellphones have become a ubiquitous means by which individuals engage with one another and have become the public square, …

Prisoner-To-Public Communication, Demetria D. Frank

Brooklyn Law Review

The pervasive problem of over-incarceration in the United States is in part due to lack of correctional facility accountability to the public, and public lack of access to the prisoner experience. In light of the incessant persistence of over-incarceration and “hands off approach” taken by courts in prison administration, this article proposes an unqualified and unfettered prisoner-to-public communication right that would provide prison accountability to the public.

Google, Charlottesville, And The Need To Protect Private Employees’ Political Speech, Chloe M. Gordils

Brooklyn Law Review

At a time when the freedom of speech is increasingly under attack, the question becomes: what protections are available to employees of private companies who wish to engage in political expression while off the clock? Although public employees are in many ways protected by the First Amendment from government intrusion into their political speech, private employees in many states are left largely unprotected. This note examines the current statutory protections offered to protect private employees from being fired or retaliated against based on their political opinions, and argues that the inconsistency and unpredictability of state laws call for a uniform …

A New Voting Rights Act For A New Century: How Liberalizing The Voting Rights Act’S Bailout Provisions Can Help Pass The Voting Rights Advancement Act Of 2017, Mario Q. Fitzgerald

Brooklyn Law Review

The U.S. Supreme Court struck down the coverage formula of the Voting Rights Act (VRA) in Shelby County. v. Holder in 2013. Members of Congress have attempted to renew the VRA with an updated coverage formula through the Voting Rights Advancement Acts of 2015 and of 2017. Unfortunately, Congressional Republicans have not supported either bill. Even if passed in its current form, the Supreme Court is likely to strike down the Voting Rights Advancement Act of 2017 (VRAA) for violating the principle of “equal sovereignty between the States” as set forth by the Court in Shelby County. Therefore, this note …

Essay: Injustice In Black And White: Eliminating Prosecutors’ Peremptory Strikes In Interracial Death Penalty Cases, Daniel Hatoum

Brooklyn Law Review

This essay advocates that prosecutors’ peremptory strikes should be eliminated in interracial capital cases. The application of the death penalty has a race problem, especially for interracial cases. A conviction is far more likely if the defendant is black and the victim is white. This is due to the fact that in interracial cases, prosecutors utilize peremptory strikes to prevent black jurors from serving on cases in which the defendant is black and the victim is white. This essay is the first to argue that such a system stacks the deck against defendants in interracial capital cases in an unconstitutional …

The (Not-So) “Brave New World Of International Criminal Enforcement”: The Intricacies Of Multi-Jurisdictional White-Collar Investigations, Emily T. Carlson

Brooklyn Law Review

We have entered a new age of international white-collar crime and are seeing the growing interdependency of the Department of Justice (DOJ) and parallel foreign agencies to conduct investigations and subsequent prosecutorial proceedings. This coordination to combat these crimes, however, has revealed a troubling question—how can enforcement agencies work effectively together if they have fundamental differences in the legal authority governing testimony-gathering and what evidence is allowed before a grand jury? The Court of Appeals for the Second Circuit, in United States v. Allen, confronted this issue directly as it overturned two indictments arising out of suspected manipulation of a …

A Fixed Game: The Frustrations Of Ticket Scalping And The Realities Of Its Solutions, Dylan C. Porcello

Brooklyn Law Review

Due to the rapid growth of the secondary resale market, purchasing tickets at their face-value price is becoming a fleeting expectation. While ticket scalping has existed quite possibly as long as tickets themselves have, innovations in invasive purchasing practices are leading to unprecedented profit margins for ticket scalpers and a greater distance between consumers and the original ticket sale. With ticket scalpers employing advanced ticket purchasing software, referred to as bots, consumers are left with no option but to surrender to steep resale prices, which often have no ceiling. Though ticket scalping regulation has developed, these legislative efforts have been …

The Equal Protection Doctrine In The Age Of Trump: The Example Of Unaccompanied Immigrant Children, Rebecca A. Delfino

Brooklyn Law Review

The Equal Protection Doctrine—the right of equals to equality—has taken on renewed relevance since the 2016 federal election cycle. The values of equality and due process, expressed in the Fifth and Fourteenth Amendments of the United States Constitution, are currently under siege. Laws and institutions central to the core functions of the federal government have been dismantled, repealed, or ignored. In this climate, legislative and executive regulatory solutions are not viable, and the traditional means to remedy inequities and discrimination may no longer work. The only way to protect the long-held democratic value of equality is to challenge the actions …

Jurisdiction In The Trump Era, Scott Dodson

Fordham Law Review

The election of Donald Trump as President of the United States induced immediate speculation about how his tenure would affect various areas of the law. In civil-procedure circles, the intuition is that his status as a probusiness, antiregulation Republican seems likely to push procedural doctrine generally in pro-defendant directions. That intuition seems sound in the specific procedural subtopic of jurisdictional doctrine relating to forum selection. In this Essay, I document recent pre-Trump, pro-defendant trends in personal jurisdiction and diversity jurisdiction, and I detail how those trends impose significant burdens on plaintiffs. I then explain why the remainder of Trump’s presidency …

Asbestos Trust Transparency, Mark A. Behrens

Fordham Law Review

Originally and for many years, the primary defendants in asbestos cases were companies that mined asbestos or manufactured amphibole-containing thermal insulation. Hundreds of thousands of claims were filed against the major asbestos producers, such as Johns-Manville Corp., Owens Corning Corp., and W.R. Grace & Co. By the late 1990s, asbestos litigation had reached such proportions that the U.S. Supreme Court noted the “elephantine mass” of cases and referred to the litigation as a “crisis.” Mass filings pressured “most of the lead defendants and scores of other companies” into bankruptcy, including virtually all manufacturers of asbestos-containing thermal insulation. Following a 2000–2002 …

Criminal Doctrines Of Faith, David Jaros

All Faculty Scholarship

Decisions like Miranda v. Arizona helped popularize a conception of the courts as a protector of criminal defendants and a bulwark against overly aggressive law enforcement. But from arrest through trial, the Court has fashioned criminal constitutional procedure with a deep and abiding faith in the motivations of criminal justice system actors. Even decisions that vindicate individual constitutional rights at the expense of police and prosecutorial power are shaped by the Court’s fundamental trust in those same actors. They establish, in essence, “Criminal Doctrines of Faith.”

Criminal Doctrines of Faith pervade each stage of the criminal process — from cases …

An Econometric Analysis Of North Carolina's Legislative Right To Counsel, Adam Ross Nelson, Christopher J. Ryan Jr.

The Journal of Law and Education

No abstract provided.

A Therapeutic Jurisprudence Analysis Of Government's Directives On Student To Student Campus Rape, Carol L. Zeiner

The Journal of Law and Education

No abstract provided.

Endrew F.: An Appropriate Perspective Of Reality, Perry A. Zirkel

The Journal of Law and Education

No abstract provided.

Recent Decisions

The Journal of Law and Education

No abstract provided.

Vol. 51, No. 3 Table Of Contents

Cornell International Law Journal

No abstract provided.

Lying About God (And Love?) To Get Laid: The Case Study Of Criminalizing Sex Under Religious False Pretense In Hong Kong, Jianlin Chen

Cornell International Law Journal

Section 120 of the Hong Kong Crimes Ordinances— which traces its origin to the U.K. and which is replicated in several other English common law jurisdictions— criminalizes procurement of sexual acts through false representation. Recently, prosecutors used this provision to indict individuals who procured sexual acts on the pretext of performing luck-improving religious rituals. Beyond presenting the first-ever systematic examination of these intriguing fraudulent sex court cases, this Article makes two arguments. First, this Article explains how the strong skepticism, and at times, instinctive rejection by the judges of the purported religious proclamations not only confirm the scholarly concerns over …

Sustainable Finance & China’S Green Credit Reforms: A Test Case For Bank Monitoring Of Environmental Risk, Virginia Harper Ho

Cornell International Law Journal

In the past few years, the focus of international organizations on sustainable finance— the integration of environmental, social, and governance (“ESG”) considerations into global financial systems— has intensified because of its potential to promote financial stability, better risk assessment, and more efficient allocation of capital. The success of these efforts depends in part on whether banks and other financial institutions can manage, price, and monitor environmental risk.

This Article offers new answers to this question from China— one of the most important global test sites for sustainable finance. Corporate governance theory suggests that creditor monitoring can promote managerial accountability and …

A Christian Oasis: The Role Of Christianity And Custom In The Laws Of Ethiopia, Cyril A. Heron

Cornell International Law Journal

Part I of this Note will analyze the history of Ethiopia’s legal system.

Part II of this Note focuses on modern Ethiopia and seeks to scrutinize Ethiopia’s Civil Code, Constitution, and other legislation. Written into the new constitution of Ethiopia is a declaration of secularism, similar to the United States and South Africa. Yet, in a nation that has existed as a Christian state for at least a millennium, it is nigh on impossible for Ethiopia to fully divest itself of its cultural mores with mere constitutional edict. The question is, therefore, what is to be made of traditional beliefs …

Nebraska Transcript (University Of Nebraska College Of Law), Volume 51, Number 2, Fall 2018

Nebraska Transcript

1 Dean's Message

2 Faculty Notes

6 Professor Jessica Shoemaker awarded Fulbright

7 Bill Fisher joins faculty as visiting professor

7 Anna Shavers named associate dean for diversity and inclusion

8 Colleen Medill receives University Faculty Excellence Award

10 Gatlauk Ramdiet -- From Sudan to the United Nations via Nebraska Law

12 University of Chicago’s Martha Nussbaum, Saul Levmore deliver Pound Lecture

14 Nebraska Law wins 17th regional Client Counseling Competition

15 Treasures Lost, Treasures Found: indexing the first 20 volumes of Nebraska Transcript, by Sandra B. Placzek,

19 Jeffrey Funke Delivers Spring Commencement Address

22 College alumni boards transition …

Front Matter, Michigan Business & Entrepreneurial Law Review

Michigan Business & Entrepreneurial Law Review

Front matter for Volume 8, Issue 1 of the Michigan Business & Entrepreneurial Law Review.

The Elephant In The Room: Helping Delaware Courts Develop Law To End Systemic Short-Term Bias In Corporate Decision-Making, Kenneth Mcneil, Keith Johnson

Michigan Business & Entrepreneurial Law Review

Short-termism in corporate decision-making is as problematic for long-term investors as relying on a three-mile radar on a supertanker. It is totally inadequate for handling the long-term risks and opportunities faced by the modern corporation. Yet recent empirical research shows that up to 85% of the S&P 1500 have no long-term planning. This is costing pension funds and other long-term investors dearly. For instance, the small minority of companies that do long-term planning and risk management had a long-term profitability that was 81% higher than their peers during the 2001–2014 period—with less stock volatility that costs investors dearly as well. …