Law Commons^™

Justice Jackson In The Jehovah's Witnesses' Cases, John Q. Barrett

Faculty Publications

(Excerpt)

I will address Justice Jackson and Jehovah’s Witnesses in four parts. First, I will begin with Robert Jackson himself, introducing the man who became a Supreme Court Justice, and who came to author Barnette and at least one other very notable opinion in a Jehovah’s Witness case. Second, I will turn to the Barnette case in its Supreme Court legal context, which turns out to be two Court terms, 1941–42 and 1942–43, of many Jehovah’s Witnesses cases. These cases produced a run of Court decisions that are a framework surrounding Barnette, and thus understanding them is important to …

Offensive Non-Mutual Issue Preclusion Revisited, Edward D. Cavanagh

Faculty Publications

(Excerpt)

Some forty years ago, in Parklane Hosiery Co. v. Shore, the United States Supreme Court held that the rule of mutuality of estoppel was no longer an absolute bar to the invocation of issue preclusion for the benefit of a plaintiff who had been a stranger to the prior (F-1) litigation against a defendant who had been party to both the F-I and present (F-2) cases. In so ruling, the Supreme Court gave its imprimatur to Judge Traynor's dramatic takedown of the mutuality rule in Bernhard v. Bank of America National Trust and Savings Association nearly four decades …

Hey, Big Spender: Ethical Guidelines For Dispute Resolution Professionals When Parties Are Backed By Third-Party Funders, Elayne E. Greenberg

Faculty Publications

This first-of-its-kind paper introduces ethical guidelines and suggested practices for dispute resolution providers and neutrals when third-party funders provide financial backing for parties in U.S. domestic arbitrations and mediations. Sophisticated third-party funders have realized that litigation and dispute resolution are fast-growing, unregulated investment opportunities. Seizing these opportunities, third-party funders are now making billions of dollars in profits through their strategic investments in domestic and global litigation and dispute resolution with few ethical rules or regulations to curtail their investment behavior.3 Preferring to be secretive about the terms of their funding contracts and invisible in their work, third- party funders are …

The Legal Imagination: Studies In The Nature Of Legal Thought And Expression, Rachel H. Smith

Faculty Publications

(Excerpt)

This book, now available in a 45th-anniversary edition, is a marvel for its breadth and creativity. It remains a must-read for lawyers, law students, and law professors, even those who are not familiar with the Law as Literature movement for which the book was a founding contribution. Those who read it decades ago would be well served by a revisit because the book’s care and attention to legal language remain uniquely powerful.

Scope And Justification Of The Right Of Publicity, Jeremy N. Sheff

Faculty Publications

(Excerpt)

Thank you to Professor June Besek, and thanks to everyone here at Columbia for the invitation. June, to correct one of your introductions here—Mark McKenna is too humble to say so, but in addition to being a widely recognized scholar, he was elected yesterday to the American Law Institute, which is well deserved given his immense contributions to Intellectual Property Law scholarship.

Mark and I have talked about this topic, in part in preparation for today, and so a lot of what I say is going to reflect some of what he has said, and I think that is …

Legal Sets, Jeremy N. Sheff

Faculty Publications

In this Article, I propose that the practices of legal reasoning and analysis are helpfully understood as being primarily concerned not with rules or propositions, but with sets. This Article develops a formal model of the role of sets in the practices of legal actors in a common-law system defined by a recursive relationship between cases and rules. In doing so, it demonstrates how conceiving of legal doctrines as a universe of discourse comprising (sometimes nested or overlapping) sets of cases can clarify the logical structure that governs marginal cases and help organize the available options for resolving such cases …

Business Development Companies – The Basics, Christine Lazaro

Faculty Publications

(Excerpt)

Business Development Companies (“BDCs”) are a type of closed end fund. They were created by Congress in 1980, through amendments to the Investment Company Act of 1940 (the “1940 Act”).

BDCs were first created when a venture capital pool manager lobbied Congress to make it easier to invest in venture capital pools and private equity investments. While there was early interest in BDCs, their popularity waned through the 1990s. Since 2000, they have once again regained their popularity.

BDCs provide funding to small and mid-sized businesses. Following the financial crisis, BDCs were able to provide loans to businesses that …

Facebook V. Sullivan: Public Figures And Newsworthiness In Online Speech, Thomas E. Kadri, Kate Klonick

Faculty Publications

In the United States, there are now two systems to adjudicate disputes about harmful speech. The first is older and more established: the legal system in which judges apply constitutional law to limit tort claims alleging injuries caused by speech. The second is newer and less familiar: the content-moderation system in which platforms like Facebook implement the rules that govern online speech. These platforms are not bound by the First Amendment. But, as it turns out, they rely on many of the tools used by courts to resolve tensions between regulating harmful speech and preserving free expression—particularly the entangled concepts …

Passive Avoidance, Anita S. Krishnakumar

Faculty Publications

In its nascent years, the Roberts Court quickly developed a reputation—and drew sharp criticism—for using the canon of constitutional avoidance to rewrite statutes in controversial, high-profile cases. In recent years, however, the Court seems to have taken a new turn, quietly creating exceptions or reading in statutory conditions in order to evade potentially serious constitutional problems without expressly discussing the constitutional issue or invoking the avoidance canon. In fact, the avoidance canon seems largely, and conspicuously, missing from many cases decided during the Court’s most recent Terms, playing a significant role in justifying the Court’s construction in only one majority …

An Overview Of The Regulation Best Interest Rule Package, Christine Lazaro

Faculty Publications

(Excerpt)

On June 5, 2019, the SEC adopted the Regulation Best Interest Rule Package. The package consists of Regulation Best Interest: The Broker-Dealer Standard of Conduct; Form CRS Relationship Summary and Amendments to Form ADV; Commission Interpretation Regarding Standard of Conduct for Investment Advisers; and Commission Interpretation Regarding the Solely Incidental Prong of the Broker-Dealer Exclusion from the Definition of Investment Adviser. This article will summarize each of the releases.

The Lost History Of Insider Trading, Michael A. Perino

Faculty Publications

Common conceptions about the history of insider trading norms in the United States are inaccurate and incomplete. In his landmark 1966 book Insider Trading and the Stock Market, Dean Henry Manne depicted a world in which insider trading was both widespread and universally accepted. It was SEC enforcement efforts in the early 1960s, he contended, that swayed public opinion to condemn what had previously been considered a natural and unobjectionable market feature. For five decades, the legal academy has largely accepted Manne’s historical description, and the vigorous debates over whether the federal government should prosecute insider trading have assumed, …

Fintech Lending: A Study Of Expectations Versus Market Outcomes, Vincent Dilorenzo

Faculty Publications

This article explores expectations and outcomes. It documents the expectations for the fintech lending industry, which has emerged in this decade, and compares such expectations to market outcomes. It presents an evidence-based analysis for policy making decisions. Part one of the article documents expectations—possible benefits and risks of fintech lending—through large-scale surveys and interviews of industry, consumer and government stakeholders. Part two of the article examines market outcomes—benefits and risks that have been realized or failed to materialize as documented by studies of substantial data sets of various types of fintech loans. The benefits and risks explored include increased access …

Finding Balance: Using Employment Law Problems To Achieve Multiple Learning Goals In Persuasive Legal Writing, Rosa Castello

Faculty Publications

(Excerpt)

Legal Writing professors, like myself, face the same challenge each new semester: how can I effectively and efficiently help students learn one of the most important skills for a practicing lawyer? And one large hurdle in this quest to make our students good legal writers is creating a trial motion or appellate brief problem that helps them develop the particular skills required for persuasive legal writing. The act of creating the problem is sometimes like tightrope walking̶ finding just the right balance of facts and law to challenge students and help develop and enhance vital research, analytical, organizational, writing, …

Vaccination Law 101: A Guide For Children’S Lawyers, Christal Cammock, Jennifer Baum

Faculty Publications

(Excerpt)

Today, U.S. children are typically vaccinated against 11 deadly, and formerly common, diseases: diphtheria, Hib disease, hepatitis B, measles, mumps, pertussis (whooping cough), polio, rubella, pneumococcal disease, tetanus, and varicella (chicken pox). But it wasn’t always so. Vaccines are a relatively recent development in medical history. The world’s first vaccine, for smallpox, was discovered in the late 1700s. A hundred years later, Louis Pasteur discovered the second vaccine, for rabies. By the mid-1900s, technological and medical advances drove more rapid vaccine development, and in 1963, the first measles vaccine was approved.

Before the measles vaccine became available, up to …

Board Diversity By Term Limits?, Darren Rosenblum, Yaron Nili

Faculty Publications

Four-fifths of the corporate board seats in the United States are held by men and a shocking number of companies lack any female representation on their boards. While institutional investors have pushed these companies for change, California took a more aggressive step and followed several European countries by mandating a quota for board representation. Heated argument has ensued over what diversity we should prioritize and what mechanisms should be used to promote diversity. Yet could these challenges be avoided altogether through the use of term limits?

This Article is the first academic inquiry exploring the connection between term limits and …

California Dreaming?, Darren Rosenblum

Faculty Publications

Over the past few years, California became the setting for shocking tales of sex inequality and abuse in Hollywood and Silicon Valley. Decades after women achieved educational parity, men still run the corporate world. In response to these stories exposed by the #MeToo movement, California joined the transnational corporate board quota movement by converting its voluntary quota into a hard one. Will California’s first mover status overcome constitutional objections and inspire other jurisdictions to act. Or is just utopian dreaming, California-style? This Essay argues that despite its many flaws, the quota may succeed in curbing male over-representation on corporate boards. …

How Far Does The Rabbit Hole Go: The Interaction Between Set-Off Rights And The Voidable Preference Hypothetical In Chapter 7 Liquidation, Josh Rutstein

Cardozo Law Review de•novo

This Note highlights the tension between Section 547 and Section 553 of the Bankruptcy Code, with specific attention paid to the interaction between set-off rights and the hypothetical liquidation invoked by a court in a voidable preference action, and proposes adopting the Ninth Circuit’s reasoning as a bankruptcy court standard when confronted with a similar conflict between the formalized tests in Sections 547 and 553, in an attempt to achieve a more equitable outcome.

A Solution To The Silencing And Denial: How Adr Can Harmonize Catholic Law With The International Communities Demand To End The Sexual Victimization Of Children In The Catholic Church, Danielle Shayne Shapero

Cardozo Journal of Conflict Resolution

The causal connection between clericalism and sexual abuse is evident, "namely the tendency of the hierarchy to protect priests, the tendency to cover reports in deep secrecy and the massive denial about the seriousness of the problem.'' In order to truly combat the global crisis of child abuse permeating the religious order, alternative dispute resolution strategies between the Holy See and the global community should be considered as a means of promulgating new ecclesiastical laws for the successful management of institutionalized sexual misconduct. In Part II, this Note will discuss the history of exposure leading to the public's knowledge and …

Beeware Of The Consequences: The Importance Of Urban Apiaries And Environmental Adr, Chelsea Gallay

Cardozo Journal of Conflict Resolution

Part I of this note will discuss urban agriculture and the rise of urban beekeeping; Part II will outline the role urban apiaries are playing in today's society; Part III will explore the disputes that arise between urban community members and beekeepers; and lastly, Part IV will discuss how to use environmental dispute resolution techniques, such. as mediation and negotiation, to solve environmental conflicts between urban apiarists and local community members.

Using Restorative Dialogue As An Assimilation Technique For Unaccompanied Children Escaping Gang Violence, Naomi Jawahar

Cardozo Journal of Conflict Resolution

This Note will first give background on the Northern Triangle area and background on the asylum process in Part I. Part II of the Note will discuss the negative government response in Section A. Section B will delve into the influence of gangs, Section C will discuss the relation between juvenile stigmatization and crime, and Section D will discuss the current resettlement process for UACs that is in place. Finally, Section E, of Part II, will discuss how ADR will help with the resettlement process. Part IH will offer a solution, with Section A showing how restorative dialogue specifically can …

When The Rich Regret: The Case Of Non-Payment In Art Auction Sales, Allison Trupp

Cardozo Journal of Conflict Resolution

Part I is a brief introduction to this Note. Part II of the Note will examine the history of auction and the shift that has occurred in the market that has led to the non-payment problem that has become rampant. It also looks at the issue abroad and differences in buying culture in countries such as China. This Note will then delve into many of the recent cases that have arisen due to nonpayment problems. Part III will discuss the problem in more detail and look at the status of the art auction processes, what is already in place, and …

The Illicit Antiquities Trade As A Funding Source For Terrorism: Is Blockchain The Solution?, Taylor Moskowitz

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Role Of Transformative Mediation In Family Business Disputes, Jacob Lebovics

Cardozo Journal of Conflict Resolution

In Part II, this note will attempt to lay out the benefits and detriments of approaching family business disputes through litigation, alternative dispute resolution, and various methods of mediation, with a goal of explaining how transformative mediation relates to other approaches of resolving conflict. Part IHl will discuss the unique issues that apply to family business conflicts and how concepts from other disciplines of study can be utilized to help best achieve the goals of a family business. Part IV will propose how transformative mediation is well suited to address these conflicts and what form of transformative mediation would reach …

Blockchain Technology: The Blueprint For Rebuilding The Music Industry?, Jaclyn Wishnia

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Thicke, Don't Kill My Vibe: The Copyrightability Of A "Groove" And Related Implications For Contemporary Rap Music, Tyler W. Morris

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Bad Actors And The Communications Decency Act Of 1996: Lessons Learned From Our Nation's Battle With Online Human Trafficking, Peter Polack

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Cyberbullying: Are You Protected? An Analysis And Guide To Effective And Constitutional Cyberbullying Protections, Mendel Forta

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Deaccessioning: Legal Parameters, Stephen K. Urice

Books and Book Chapters

The longstanding debate about “deaccessioning” concerns not so much whether a museum may deaccession works of art in its collection as under what circumstances it may do so.

Linden Haveymeyer Wise and Beverly M. Wolff, Deaccessioning, Disposition, and the Pledge of Museum Collections: The Legal Parameters (1991).

The Conjecture From The Universality Of Objectivity In Jurisprudential Thought: The Universal Presence Of A ‘Reasonable Man’, Johnny Sakr

Theses

This thesis proposes that all legal systems use objective standards as an integral part of their conceptual foundation. To demonstrate this point, this thesis will show that Jewish law, ancient Athenian law, Roman law and canon law use an objective standard like English common law’s ‘reasonable person’ to judge human behaviour. It argues that the universal use of objective standards dictates that human reason, a capability possessed by all mentally complete human beings, holds that objective standards are an important tool in judicial reasoning.

To establish a just system of law, this thesis contends that objective standards should be used …

Arbitration As The Ideal Method Of Labor Law Dispute Resolution: A Case Study Using 14 Penn Plaza Llc, Et Al. V. Steven Pyett, Et Al., Douglas Shribman

Cardozo Journal of Conflict Resolution

No abstract provided.