Law Commons^™

Salt In The Wounds: Issues And Solutions Surrounding The Tcja Salt Deduction Cap, Carmella R. Campisano

Seton Hall Law Review

No abstract provided.

The Opioid Crisis In The Workplace: What Employers Must Do To Ensure Anti-Discrimination Compliance And To Support Their Employees, Jamie Campisi

Seton Hall Law Review

No abstract provided.

United States V. Grant: A Step In The Right Direction To Providing Non-Incorrigible Juvenile Offenders A Meaningful Opportunity For Release, Samantha Santola

Seton Hall Law Review

No abstract provided.

Board Of Officers - Vol. 50, No. 2 2019

Seton Hall Law Review

No abstract provided.

Table Of Contents - Vol. 50, No. 2 2019

Seton Hall Law Review

No abstract provided.

Corpus Linguistics And The Dream Of Objectivity, Evan C. Zoldan

Seton Hall Law Review

No abstract provided.

Cardozo Law News Brief: October 11, 2019, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2019

Featured Faculty:

• Jessica Roth
• Kate Shaw
• Stewart Sterk
• Gabor Rona
• Jocelyn Getgen Kestenbaum
• Myriam Gilles
• Suzanne Stone
• Lela Love
• Richard Weisberg
• Michel Rosenfeld
• Barry Koch

Campus News:

• Kukin Program Students Win Writing Competitions
• Bet Tzedek Clinic Students Hold Advanced Directives Pop-up Clinic
• Cardozo's LL.M. Program Featured in LL.M. Guide

Events:

• IP Law in Media - Q + A
• An Evening with Steve Madden
• Client Selection and #MeToo: Questions Raised by the Sullivan Controversy
• ISG 2019 Lemkin Award and Lecture
• Cardozo Journal of Conflict Resolution: Jed D. Melnick Annual Symposium
• Hate Speech, Fake News, and Post-Truth in the Age of Trump: …

Timelords & Timelines: Four Web Apps For Storytelling In Libraries, Rachel S. Evans, Sharon Bradley, David Rutland

Presentations

From online embeds to interactive displays, timelines can serve many purposes and tell powerful stories. In this panel librarians discuss collaboration and how to bring history to life through displays, events and online platforms for engaging students and preserving community milestones. Four of our favorite tools for creating digital timelines and gathering content will be shared including Prezi, TikiToki, TimeToast, and Piktochart. Comparisons will be given based on cost, technical limitations, and general ease of use. Specific examples will also be shared and discussed.

What The Japanese, The Swedes, And The Minimalists Can Teach Us About Library Instruction, Sharon Bradley

Presentations

The presenter summarizes the lessons to be learned and applied to instructional efforts from a number of popular organizing schemes. Participants will learn how these various productivity and lifestyle programs can help librarians:

• Declutter and better organize our presentations.
• Develop a syllabus or lesson plans filled with things we love.

And help our patrons or students:

• Develop practices and procedures to get things done.
• Find joy as well as relevant information.

There will be an online guide with tips and suggestions. Anyone doing any kind of instruction will be interested in this program and there is no advance knowledge needed.

When Do Chinese National Ministries Make Law?, Wei Cui

All Faculty Publications

This paper documents some basic empirical facts about the issuance of formal regulations (FRs) and informal policy directives (IPDs) by China’s national ministries and agencies from 2000 to 2014. Prior scholarship (e.g. Cui 2011, Howson 2012) depicts specific instances of Chinese national agencies announcing substantive new policies (many ultra vires by statutory standards) through IPDs. I use FR and IPD quantities as measures of the agencies’ propensity to resort to legal as opposed to non-legal, merely bureaucratic mechanisms for announcing policy. I find significant variations across agencies in the quantities of FRs issued, both in absolute terms and relative to …

Ending Pandemics: Us Foreign Policy To Mitigate Today’S Major Killers, Tomorrow’S Outbreaks, And The Health Impacts Of Climate Change, Matthew M. Kavanagh, Harsha Thirumurthy, Rebecca Katz, Kristie L. Ebi, Chris Beyrer, Jamila Headley, Charles B. Holmes, Chris Collins, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Every U.S. President in recent decades has had to respond to at least one pandemic disease. Political leadership has proven decisive. In the coming years, U.S. foreign policy will face at least three inter-related issues: today’s major pandemics of AIDS, TB, and Malaria; future outbreaks with the potential to become pandemics; and rising risk from infectious diseases associated with climate change. A review of epidemiologic data shows global progress on each issue is threatened. A coordinated U.S. effort, across agencies and engaged with national and multilateral partners, could save lives and address significant foreign policy interests. Such an effort could …

Judicial Impartiality In A Partisan Era, Cassandra Burke Robertson

Florida Law Review

Judicial legitimacy rests on the perception of judicial impartiality. As a partisan gulf widens among the American public, however, there is a growing skepticism of the judiciary’s neutrality on politically sensitive topics. Hardening partisan identities mean that there is less middle ground on political issues and less cooperation among those with differing political views. As a result, the public increasingly scrutinizes judges and judicial candidates for signs of political agreement, distrusting those perceived to support the opposing political party.

Judges themselves are not immune to these political forces. In spite of a strong judicial identity that demands impartiality and judicial …

The Skeleton In The Hard Drive: Encryption And The Fifth Amendment, David W. Opderbeck

Florida Law Review

Courts are grappling with the question whether forced decryption of computer files violates the Fifth Amendment privilege against self-incrimination. This Article supplies the background necessary for courts to address this question. It explains how full disk encryption works and discusses the nature of encryption technology from a semantic and information-theory perspective. It also compares how similar questions have been addressed in other areas of the law that have dealt with computer code as speech: the First Amendment and copyright law. This Article argues that disclosure of a password or encryption key is not a testimonial act and therefore is not …

Desirable Inefficiency, Paul Ohm, Jonathan Frankle

Florida Law Review

Computer scientists have recently begun designing systems that appear, at least at first glance, to be surprisingly, wastefully inefficient. A stock exchange forces all electronic trades to travel through a thirty-eight mile length of fiber-optic cable coiled up in a box; the Bitcoin protocol compels participants to solve difficult yet useless math problems with their computers; and the iPhone locks users out for many painful seconds after a mistyped password, a delay that increases with each subsequent mistake. We draw these examples and others together into a common, emerging, and underappreciated approach to digital system design, which we name “desirable …

Speech Narcissism, Terri R. Day, Danielle Weatherby

Florida Law Review

From its embryonic stage during the civil rights era to its modern-day presence on college campuses, the political correctness movement has undergone an extreme metamorphosis. In the university setting, it was originally intended to welcome diverse views by encouraging minority students to feel part of the learning environment and to contribute to the “marketplace of ideas.” Recently, however, as students more frequently demand trigger warnings and safe spaces in response to speech that they deem personally offensive, the use of political correctness measures on college campuses has had the unintended consequence of chilling speech. Contrary to longstanding First Amendment principles, …

Digitizing The Schoolhouse Gate: Protecting Students’ Off-Campus Cyberspeech By Switching The Safety On Tinker’S Trigger, Joshua Rieger

Florida Law Review

Secondary-school students regularly engage in cyberspeech both inside and outside the schoolhouse gate. Internet-era forms of communication allow these students to produce off-campus cyberspeech that can easily be accessed or brought onto campus by other students or faculty. As early as the 1990s, public-school administrations began punishing students for off-campus cyberspeech, accessed or brought onto campus, that the administrations deemed threatening, intimidating, harassing, or generally inappropriate for the school setting. Parents continue to challenge public-school administrations’ punishments of their children by filing civil suits in federal courts claiming these administrations violated their children’s First Amendment right to free speech. Whether …

“Go Sue Yourself!” Imagining Intrapersonal Liability For Negligently Self-Inflicted Harms, Lars Noah

Florida Law Review

Are “self-inflicted” harms actionable? Courts increasingly have allowed victims to identify other (typically unrelated) parties that may share responsibility for such injuries. Moreover, insofar as judges now also permit lawsuits against closely related parties, they arguably have expanded what it means for a harm to qualify as self-inflicted. Taking these various doctrinal developments to an illogical extreme, this Article asks whether we should just let victims bring tort claims against themselves, understanding that the victims’ own liability insurers represent the intended targets. That this idea is not as crazy as it sounds suggests the extent to which tort law has …

Beware The Slender Man: Intellectual Property And Internet Folklore, Cathay Y. N. Smith

Florida Law Review

Internet folklore is created collaboratively within Internet communities—through memes, blogs, video games, fake news, found footage, creepypastas, art, podcasts, and other digital mediums. The Slender Man mythos is one of the most striking examples of Internet folklore. Slender Man, the tall and faceless monster who preys on children and teenagers, originated on an Internet forum in mid-2009 and quickly went viral, spreading to other forums and platforms online. His creation and development resulted from the collaborative efforts and cultural open-sourcing of many users and online communities; users reused, modified, and shared each other’s Slender Man creations, contributing to his development …

Dismantling Monuments, Richard H. Seamon

Florida Law Review

The Antiquities Act of 1906 authorizes the President to “declare” certain objects “to be national monuments,” and to “reserve parcels of land” to protect those national monuments. The Act does not expressly authorize the President to reduce or rescind a monument established by a prior President under the Act, and recent actions by President Donald Trump raise the question whether the Act impliedly authorizes such reductions or rescissions. The majority of legal scholars who have studied this question have said no, the Act does not grant such implied authority. This Article takes the contrary position. The President’s authority underthe Antiquities …

The Stealth Revolution In Personal Jurisdiction, Michael H. Hoffheimer

Florida Law Review

Since 2011 the Roberts Court has decided six personal jurisdiction cases that impose significant new constitutional restrictions on the power of courts and limit plaintiffs’ access to justice. But the Court’s opinions explaining those decisions have repeatedly denied that the Court is altering settled law.

This Article argues that the Court is engaged in a stealth revolution, a process of radically changing existing law while claiming to follow controlling precedent. By claiming to rely on precedent, the Court avoids the need to offer a clear rule of decision, fails to explain the policies that motivate its changing approach to personal …

Cash Me Outside–An Alternative To Wasteful Medical Spending In Terminally Ill Patients, Christopher Neal Loy, Jr.

Florida Law Review

The U.S. health care system is an inefficient machine that is burdened by overconsumption and wasteful spending. The system has long defaulted into maximizing the quantity of life over quality—a choice influenced by corporations that stand to profit with every additional procedure. To stymie health care spending and attempt to restore the true cost of treatment to patients, this Note proposes an alternative to how health insurers provide options to terminally ill cancer patients by offering a partial cash rebate to forgo any life-extending measures. The patient would be free to leave his or her legacy, the health insurer would …

Transfer On Death Deeds: It Is Time To Establish The Rules Of The Game, Stephanie Emrick

Florida Law Review

A transfer on death deed is a form of deed that allows real property assets to pass at death outside of the probate process. Through the twentieth century, there has been a movement in the world of property law—dubbed “the nonprobate revolution”—that focuses on using will substitutes to transfer personal property assets at death without the typical probate process. This is important because the probate process can be quite lengthy and expensive. Until recently, the nonprobate option was not readily available where real property assets were a part of the estate. The transfer on death deed essentially evolved from the …

A Structural-Purposive Interpretation Of “Employment” In The Platform Economy, E. Gary Spitko

Florida Law Review

The considerable growth of the platform economy has focused attention on the issue of whether a provider engaged through a transaction platform should be classified as an employee of the platform operator, and therefore within the purview of workplace protective legislation or as an independent contractor, thus outside the scope of such legislation’s protections. This Article focuses specifically on whether the operator’s reservation of the right to impose quality control standards on the provider ought to give rise to employment obligations running in favor of the provider and against the operator. This narrow issue is of great importance to the …

At Your Service: Lawyer Discretion To Assist Clients In Unlawful Conduct, Paul R. Tremblay

Florida Law Review

The common, shared vision of lawyers’ ethics holds that lawyers ought not collaborate with clients in wrongdoing. Ethics scholars caution that lawyers “may not participate in or assist illegal conduct,” or “giv[e] legal services to clients who are going to engage in unlawful behavior with the attorney as their accomplice.” That sentiment resonates comfortably with the profession’s commitment to honor legal obligations and duties, and to remain faithful to the law.

The problem with that sentiment, this Article shows, is that it is not an accurate statement of the prevailing substantive law. The American Bar Association’s (ABA) model standards governing …

Unusual Deference, William W. Berry Iii

Florida Law Review

Three Eighth Amendment decisions—Harmelin v. Michigan, Pulley v. Harris, and McCleskey v. Kemp—have had enduring, and ultimately, cruel and unusual consequences on the administration of criminal justice in the United States. What links these cases is the same fundamental analytical misstep—the decision to ignore core constitutional principles and instead defer to state punishment practices. The confusion arises from the text of the Eighth Amendment where the Supreme Court has read the “cruel and unusual” punishment proscription to rest in part on majoritarian practices. This is a classical analytical mistake—while the Amendment might prohibit rare punishments, it …

Convictions Based On Character: An Empirical Test Of Other-Acts Evidence, Michael D. Cicchini, Lawrence T. White

Florida Law Review

Despite the time-honored judicial principle that “we try cases, rather than persons,” courts routinely allow prosecutors to use defendants’ prior, unrelated bad acts at trial. Courts acknowledge that jurors could improperly use this other acts evidence as proof of the defendant’s bad character. However, courts theorize that if the other acts are also relevant for a permissible purpose—such as proving the defendant’s identity as the perpetrator of the charged crime—then a cautionary instruction will cure the problem, and any prejudice is “presumed erased from the jury’s mind.”

We put this judicial assumption to an empirical test. We recruited 249 participants …

Teva And The Process Of Claim Construction, Lee Petherbridge, R. Polk Wagner

Florida Law Review

In Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., the Supreme Court addressed an oft-discussed jurisprudential disconnect between itself and the U.S. Court of Appeals for the Federal Circuit: whether patent claim construction was “legal” or “factual” in nature, and how much deference is due to district court decision-making in this area. This Article closely examines the Teva opinion and situates it within modern claim construction jurisprudence. The thesis is that the Teva holding is likely to have only very modest effects on the incidence of deference to district court claim construction, but that for unexpected reasons the case is …

Should They Stay Or Should They Go: Rethinking The Use Of Crimes Involving Moral Turpitude In Immigration Law, Sara Salem

Florida Law Review

Although absent from modern English conversation, the words moral turpitude continue to carry devastating consequences for undocumented aliens living in the United States. Under federal immigration law, an alien convicted of a crime involving moral turpitude may be deported or denied entry into the United States. Perhaps most significantly, nearly all immigration relief is conditioned on an alien having never been convicted of a crime involving moral turpitude. So the question becomes, what is a crime involving moral turpitude? There is currently no clear answer. No one standard exists for determining whether a conviction qualifies as a crime involving moral …

The Declining Fortunes Of American Workers: Six Dimensions And An Agenda For Reform, Stephen F. Befort

Florida Law Review

At the turn of the century, I undertook an assessment of the then-current state of workplace rights and obligations. I concluded that the balance of power between employers and workers was “badly skewed” in favor of employers. This Article revisits that topic for the purpose of assessing twenty-first-century trends through the lens of six workplace dimensions. They are: workforce attachment, union–management relations, employment security, income inequality, balancing work and family, and retirement security. An examination of these dimensions reveals that the status of U.S. workers has significantly declined during the first sixteen years of the twenty-first century. This Article then …

The Global Trade Of Cloned Meat, Andrew Jensen Kerr

Florida Law Review

Until now commercial animal cloning has been generally limited to breeding stock. But Xu Xiaochun of the Chinese company Boyalife Genetics plans to mass produce animal clones for direct meat consumption. The research partnership between Boyalife and South Korean firm Sooam Biotech suggests the possibility of an international market for cloned food animals.

Can cloned food imports be rejected by national governments? This Article outlines the relevant considerations, and argues that a revised understanding of the “precautionary principle” can help to reconcile disparate, and perhaps ineffable, goals like producing high-quality meat and maintaining the integrity of the human experience.