Law Commons^™

Widening The Lens: Refocusing The Litigation Cost-And-Delay Narrative, Arthur R. Miller

Cardozo Law Review

No abstract provided.

Separating Fact From Fiction: The First Amendment Case For Addressing “Fake News” On Social Media, Michael K. Park

UC Law Constitutional Quarterly

“Fake news” or disinformation that appropriates the look and feel of real news stories continues to spread across social networks, suppressing informed dialogue and sowing civil discord. After revelations that influential media websites like Facebook and Twitter were used to spread fake news during the 2016 presidential election, these companies vowed to take remedial action, but have failed to contain the spread of fake news. This essay makes the case that First Amendment principles mandate that the government has a duty to preserve democratic deliberation and democratic decision-making institutions, even if that means overriding private interests. It explores some prospective …

Mmu: 10/01/18–10/07/18, Student Bar Association

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This Week @ NDLS

1L OF THE WEEK: Bailey Hans

Loopholes, Licensing, And Legislation: Considering The Needs Of People With Disabilities In The Autonomous Vehicle Revolution, Caroline Glennie-Smith

Loyola of Los Angeles Entertainment Law Review

Self-driving vehicles have the potential to revolutionize transportation for all Americans and will be especially beneficial for the more than fifty-seven million Americans with a disability. This Note offers a primer on a rapidly-developing area of law and policy that will permanently alter how Americans interact with transportation. While public availability of autonomous vehicles is anticipated as early as next year, widespread use of these vehicles is likely at least a decade away. The lag between current-day prototypes and future widespread public availability provides lawmakers, self-driving vehicle manufacturers, and the disability community an important opportunity to work together to shape …

Santopietro V. Howell's Misstep And The Need To Correct The Preventable Adverse Impact Of Vendor Licensing Laws On Street Performers' Expressive Conduct, Stephen Touchton

Loyola of Los Angeles Entertainment Law Review

Street performers and artists who engage in expressive activity in traditional public fora are often adversely impacted by the enforcement of vendor licensing laws. Cited, arrested, or negatively impacted in other ways for selling their goods or services, street performers and artists have brought First Amendment challenges to the enforcement of these laws against them. The Ninth Circuit’s recent opinion in Santopietro v. Howelland the Second Circuit’s opinion in Bery v. City of New York demonstrate how courts’ varied approaches to these challenges have led to inconsistent results.

This Comment first discusses why and how local governments should directly address …

Not So Different After All: The Status Of Interpretive Rules In The Medicare Act, Graham Haviland

University of Chicago Law Review

The Medicare Act is not subject to the informal rulemaking requirements of the Administrative Procedure Act (APA). Instead, it has its own provision that mandates notice and comment for proposed regulations. Courts have come to different conclusions regarding the scope of the Medicare Act’s notice-and-comment requirement. This Comment interprets this Medicare Act provision to determine whether its requirement is equivalent in scope to that of the APA. This Comment presents arguments from text and legislative history to demonstrate that, as in the APA, interpretive rules are exempt from notice and comment. Finally, this Comment explains why this outcome is desirable …

Relational Contracts Of Adhesion, David A. Hoffman

University of Chicago Law Review

Not all digital fine print exculpates liability: some exhorts users to perform before the consumer relationship has soured. We promise to choose strong passwords (and hold them private); to behave civilly on social networks; to refrain from streaming shows and sports; and to avoid reverse-engineering code (or, worse, deploying deadly bots). In short, consumers are apparently regulated by digital fine print, though it’s universally assumed that we don’t read it and, even if we did, that we’ll never be sued for failing to perform.

On reflection, this ordinary phenomenon is perplexing. Why would firms persist in deploying uncommunicative behavioral spurs? …

A New Market-Based Approach To Securities Law, Kevin S. Haeberle, M. Todd Henderson

University of Chicago Law Review

Modern securities regulation has three main areas, each of which is plagued by a core problem. Mandatory disclosure law leaves society with suboptimal disclosure, as the government calls for too little of some information (for example, management analysis of company prospects) and too much of other information (for example, data about trivial executive perks). Securities fraud law (specifically, its central fraud-on-the-market theory of reliance) yields damages at odds with any reasonable theory of compensation and deterrence. And insider trading law fails to achieve its ends because incentives to police illegal trading and tipping by executives are currently weak.

In this …

When Law Calls, Does Science Answer? A Survey Of Distinguished Scientists & Engineers, Shari Seidman Diamond, Richard O. Lempert

Articles

Sound legal decision-making frequently requires the assistance of scientists and engineers. The survey we conducted with the cooperation of the American Academy examines the views of the legal system held by some of the nation’s most distinguished scientists and engineers, what motivates them to participate or to refuse to assist in lawsuits when asked, and their assessment of their experiences when they do participate. The survey reveals that a majority of the responding scientists and engineers will agree to participate when asked, and when they turn down requests, the most common reasons are lack of time and absence of relevant …

Statutory Interpretation And The Rest Of The Iceberg: Divergences Between The Lower Federal Courts And The Supreme Court, Aaron-Andrew P. Bruhl

Faculty Publications

This Article examines the methods of statutory interpretation used by the lower federal courts, especially the federal district courts, and compares those methods to the practices of the U.S. Supreme Court. This novel research reveals both similarities across courts and some striking differences. The research shows that some interpretive tools are highly overrepresented in the Supreme Court’s decisions, while other tools are much more prevalent in the lower courts. Differences in prevalence persist even after accounting for the selection effect that stems from the Supreme Court’s discretionary docket. Another finding—based on a study of 40 years of cases from all …

Columbia Law School Lecturer Noah Smith-Drelich And Professor Bernard E. Harcourt Challenge Standing Rock Civil Rights Violations, Columbia Center For Contemporary Critical Thought

Columbia Center for Contemporary Critical Thought

New York, October 26, 2018—Cissy Thunderhawk, Wašté Win Young, and the Reverend John Floberg filed a class action lawsuit on Oct. 18 in the U.S. District Court for the District of North Dakota challenging a number of civil rights violations that arose during the Standing Rock movement to oppose the construction of the Dakota Access Pipeline (DAPL). They are represented by Columbia Law School Lecturer in Law Noah Smith-Drelich and Professor Bernard E. Harcourt, founding director of the Columbia Center for Contemporary Critical Thought.

How International Oil Companies Could Assist The Republic Of Cyprus To Achieve The Sustainable Development Goals: A Conversation Starter, Andreas Tornaritis, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

This policy paper is addressed to International Oil Companies (IOCs), public officials and Non-Governmental Organizations (NGOs) involved in the natural gas industry in Cyprus. There is currently no conversation happening in Cyprus on how the oil and gas industry could help Cyprus achieve their Sustainable Development Goals. Therefore, this paper hopes to initiate a debate and conversation around this topic. It provides an overview of the ways in which IOCs operating in Cyprus could contribute towards the sustainable development of the natural gas industry and assist the Republic of Cyprus to achieve a number of their 2030 Sustainable Development Goals …

Treaties And Human Rights: The Role Of Long-Term Trends, Adam S. Chilton, Eric A. Posner

Law and Contemporary Problems

No abstract provided.

Through Rebel Eyes: Rebel Groups, Human Rights, And Humanitarian Law, Hyeran Jo, John Niehaus

Law and Contemporary Problems

No abstract provided.

The Beat And Treaty Overrides: A Brief Response To Rosenbloom And Shaheen, Reuven S. Avi-Yonah, Bret Wells

Articles

In a recent article in Tax Notes International, H. David Rosenbloom and Fadi Shaheen argue that the base erosion and antiabuse tax (IRC section 59A, as enacted in 2017) is a potential violation of articles 23 and 24 of U.S. tax treaties. They say the BEAT does not override those treaties, so those agreements can be relied on to overcome the effects of the BEAT. In our opinion, that conclusion is wrong for two reasons: The BEAT is not a treaty violation, and even if were, it is a treaty override.

Collaboration With Doctrinal Faculty To Introduce Creac, Beth Hirschfelder Wilensky

Articles

When legal writing professors introduce CREAC (or IRAC, TREAT, etc.), our examples necessarily use some area of substantive law to demonstrate how the pieces of legal analysis fit together. And when we ask students to try drafting a CREAC analysis, they also have to learn the relevant substantive law first. Students might be asked to analyze whether a worker is an employee or independent contractor or whether the elements of a tort claim are satisfied. But that means that students need to learn the relevant substantive doctrine while they are also grappling with the basics of CREAC. In the language …

Divine Justice And The Library Of Babel: Or, Was Al Capone Really Punished For Tax Evasion?, Gabriel Mendlow

Articles

A criminal defendant enjoys an array of legal rights. These include the right not to be punished for an offense unless charged, tried, and proved guilty beyond a reasonable doubt; the right not to be punished disproportionately; and the right not to be punished for the same offense more than once. I contend that the design of our criminal legal system imperils these rights in ways few observers appreciate. Because criminal codes describe misconduct imprecisely and prohibit more misconduct than any legislature actually aspires to punish, prosecutors decide which violations of the code merit punishment, and judges decide how much …

Cardozo On The Supreme Court: Meeting High Expectations, Richard D. Friedman

Articles

President Trump announced his nomination of Neil Gorsuch — the sixth most senior judge on a federal appellate court in the hinterland—for a seat on the Supreme Court in a formal, nationally televised ceremony. Judge Gorsuch squeezed the shoulder of his wife, a gesture that signaled not only his thrill at the nomination but his joy at being able to share it with her. There followed a bitterly partisan process, featuring hearings at which the nominee testified and deflected questions about his substantive views. A change in the Senate rules, ending the possibility of a filibuster, was necessary to bring …

Economic Rationality And Ethical Values In Design-Defect Analysis: The Trolley Problem And Autonomous Vehicles, W. Bradley Wendel

Cornell Law Faculty Publications

The trolley problem is a well-known thought experiment in moral philosophy, used to explore issues such as rights, deontological reasons, and intention and the doctrine of double effect. Recently it has featured prominently in popular discussions of decision making by autonomous vehicle systems. For example, a Mercedes-Benz executive stated that, if faced with the choice between running over a child that had unexpectedly darted into the road and steering suddenly, causing a rollover accident that would kill the driver, an automated Mercedes would opt to kill the child. This paper considers not the ethical issues raised by such dilemmas, but …

Professor David Reiss On The Future Of Home Ownership, David J. Reiss

Cornell Law Faculty Publications

No abstract provided.

A Structural Approach To Case Synthesis, Fact Application, And Persuasive Framing Of The Law, Lara Gelbwasser Freed, Joel Atlas

Cornell Law Faculty Publications

Lawyering-skills courses, although typically writing-focused, address a wide array of topics. Indeed, to prepare an effective legal document, students must not only write well but analyze well. And, although teaching the pure-writing aspects of the course is certainly a challenge, teaching the analysis-related skills is often the most difficult.

Among the thorniest of these skills are synthesizing cases, applying facts, and persuasively framing the law. Professors struggle to teach these skills, and students consistently struggle to understand and implement them. To lighten the burden for both professors and students, we have approached these skills structurally and, in doing so, have …

Monuments Of Folly: How Local Governments Can Challenge Confederate "Statue Statutes", Zachary A. Bray

Law Faculty Scholarly Articles

Monuments to the Confederacy and former Confederate figures have been prominently displayed in parks, courthouse squares, and other public spaces of many American towns and cities for many years. Their history is inextricably linked with patterns of institutionalized racism, including but not limited to the rise of Jim Crow and resistance to the integration of public schools. In recent years, the continued display of these monuments has given rise to intense controversy and outbreaks of violence. In response, some local governments have sought to remove or modify Confederate monuments in public spaces, but in several states, local governments face statutory …

Are Beach Boundaries Enforceable? Real-Time Locational Uncertainty And The Right To Exclude, Josh Eagle

Faculty Publications

Over the past few decades, landowners have tried to use the First, Fourth, and Fifth Amendments to fully privatize the upper, dry-sand part of the beach. If these efforts were to succeed, there would be a host of negative consequences, and not just for surfers. In most of the states in which beaches are economically important, including California, Florida, New Jersey and Texas, privatized dry sand would mean little to no public access at times when the public, wet-sand part of the beach is submerged, that is, in the hours immediately before and after high tides. Decreased beach use would …

When Courts Should Ignore Statutory Text, Jesse M. Cross

Faculty Publications

Statutory interpreters often rely upon a fundamental assumption: namely, that every word of a statute is meant to be read — and given legal force — by the courts. This assumption unites both textualists and intentionalists, and it has been invoked by Justices as diverse as Chief Justice Marshall, Justice Stevens, and Justice Scalia — the last of whom called it a “cardinal rule of statutory interpretation.” It underpins at least nine separate canons of statutory interpretation, and it even shapes how courts interpret legislative documents beyond statutes. It is difficult to imagine a more central assumption in statutory interpretation. …

The New Gospel Of Wealth: On Social Impact Bonds And The Privatization Of Public Good, Etienne C. Toussaint

Faculty Publications

Since Andrew Carnegie penned his famous Gospel of Wealth in 1889, corporate philanthropists have championed considerable public good around the world, investing in a wide range of social programs addressing a diversity of public issues, from poverty to healthcare to criminal justice. Nevertheless, the problem of “the Rich and the Poor,” as termed by Andrew Carnegie in his famous essay, remains unsolved. Socially conscious investors have recently called for America to reimagine a new “gospel of wealth”, one that not only grapples with the what of social injustice, but also explores the how and the why of systemic social and …

Table Of Contents

The Journal of Law and Education

No abstract provided.

Waterstone's Endrew F.: Symbolism And Reality From The School's Perspective, Miriam Kurtzig Freedman

The Journal of Law and Education

No abstract provided.

Week Of October 1, 2018 - October 5, 2018, Benjamin N. Cardozo School Of Law

Today at Cardozo 2018

Events occurring this week have been sponsored by:

• Cardozo Arts & Entertainment Law Journal (AELJ)
• Cardozo Cross-Border Practice Society
• Cardozo Family Law Society
• Cardozo Office of Student Services & Advising
• Cardozo Public Service Scholars Program
• Cardozo South Asian Law Students Association (SALSA)
• Cardozo Student Animal Legal Defense Fund (SALDF)
• Cardozo Students for Human Rights
• Center for Rights and Justice (CRJ)
• Floersheimer Center for Constitutional Democracy
• Louis D. Brandeis Center for Human Rights Under Law (LDB)
• Real Estate Law Association (RELA)
• Suspension Representation Project

Filter Wars: The Fight To Determine Filtering Rights Under The Family Movie Act And The Digital Millennium Copyright Act, Amanda Garcia

Loyola of Los Angeles Entertainment Law Review

The development of filtering and streaming technology over the last twenty years has put in to question the purpose and intent of legislation meant to encompass those technologies. This Comment considers the exclusive rights of copyright owners in their protected works, and the circumvention of the encryptions placed on DVD and Blu-Ray discs to prevent the unauthorized decryption, filtering, and streaming of those works. This Comment will weigh the rights of creators of expressive works, such as films and television shows, against the rights of the purchasers to filter the works. A new defense to circumvention liability will be raised …

The Impact Of The Honour Of The Crown On The Ethical Obligations Of Government Lawyers: A Duty Of Honourable Dealing, Andrew Flavelle Martin, Candice Telfer

Dalhousie Law Journal

The honour of the Crown is recognized as a Canadian constitutional principle that is essential to reconciliation between Indigenous and non-Indigenous Canadians. As part of the process of reconciliation, this article argues that the honour of the Crown imposes a special ethical obligation on government lawyers in specific circumstances, which we call the duty of honourable dealing. We situate this duty in the divided literature and case law about whether government lawyers have special ethical obligations and in the two dimensions in which the honour of the Crown applies: the Crown as an institution and the Crown as a collection …