Law Commons^™

Offshore Wind Development In The Great Lakes: Accessing Untapped Energy Potential Through International And Interstate Agreement To Overcome Public Trust Concerns, Jordan Farrell

Northwestern Journal of International Law & Business

Offshore wind energy development in the Great Lakes presents an immense opportunity for distributed generation of renewable energy; however, this potential has thus far remained untapped. One significant barrier to why there has not yet been such wind energy development in the Great Lakes is the public trust doctrine. This doctrine generally stands for the principle that a state cannot convey its submerged lands to a private party. However, there remains much legal uncertainty with regards to the doctrine. Courts and scholars have struggled to determine with any certainty the origins and grounding of the doctrine and the limits it …

Winter Is Here: The Impossibility Of Schrems Ii For U.S.-Based Direct-To-Consumer Companies, Vanessa Zimmer

Northwestern Journal of International Law & Business

In this paper, Vanessa Zimmer exposes the precarious position of Direct-to-Consumer (DTC) companies that are physically located in the United States but still subject to the European General Data Protection Regulation (GDPR) under Article 3(2) because they offer goods or services to European consumers online. Standard Contractual Clauses (SCCs) and supplementary measures have dominated privacy conversions in the year since the European Court of Justice invalidated the EU-U.S. Privacy Shield framework with its Schrems II decision.

However, Zimmer argues that the greater issue for U.S.-based DTC companies is the lack of clarity over what constitutes an international, or restricted, transfer …

Electronic Bracelet In The United Arab Emirates - A Smart Application And An Alternative To Punishment And Pretrial Detention, Dr. Emadeldin Mohamed Kammel Abdulhamed

Faculty Peer-Reviewed Papers | بحوث هيئة التدريس المحكمة

Electronic monitoring with the electronic bracelet system is one of the most prominent forms of employing modern technologies in the service of criminal justice, especially in the field of penal policy, as an alternative system to punishment and pretrial detention, and it achieves the goal of both. The application of remote electronic monitoring through the electronic bracelet system raises many legal, technical and artistic problems. From a legal perspective, the most prominent of these is studying what might result from its application in terms of violating the privacy of the persons subject to it and the persons residing with the …

The Disparate Treatment Of Rights In U.S. Trade, Desirée Leclercq

Fordham Law Review

Rights advocates are increasingly urging U.S. trade negotiators to include new binding and sanctionable provisions that would protect human rights, women’s rights, and gender equality. Their efforts are understandable. Trade agreements have significant advantages as a process for advancing international rights. Even though Congress and the executive incorporate international environmental standards and labor rights into U.S. trade agreements, they have refused to incorporate gender rights and broader human rights. The rationale behind the United States’s disparate treatment of rights in trade has received almost no scholarly attention. That is a mistake. Using labor rights as a case study, this Article …

Disability Without Documentation, Katherine A. Macfarlane

Fordham Law Review

Disability exists regardless of whether a doctor has confirmed its existence. Yet in the American workplace, employees are not disabled, or entitled to reasonable accommodations, until a doctor says so. This Article challenges the assumption that requests for reasonable accommodations must be supported by medical proof of disability. It proposes an accommodation process that accepts individuals’ assessments of their disabilities and defers to their accommodation preferences. A documentation-free model is not alien to employment law. In evaluating religious accommodations, employers—and courts—take a hands-off approach to employees’ representations that their religious beliefs are sincere. Disability deserves the same deference. This Article …

Can Private Sector Unionization Be Saved?: An Analysis Of The Pro Act As A Model For Effective Nlra Reform, Christopher Adinolfi

Fordham Law Review

In February 2020, the U.S. House of Representatives passed the Protecting the Right to Organize Act (“PRO Act”), one of the most prolabor pieces of legislation since the creation of the current labor relations framework in 1935. For almost seventy-five years, the substantive text of the National Labor Relations Act (NLRA) has remained largely unchanged, despite the pervasive increase of anti-labor hostility from companies seeking to avoid the unionization of their workers. Across all stages of unionization, organizers and bargaining agents face coercive management tactics, diminished negotiating positions, the loss of collective action tools, and a National Labor Relations Board …

Disarming Abusers And Triggering The Sixth Amendment: Are Domestic Violence Misdemeanants Guaranteed The Right To A Jury Trial?, Julia Hatheway

Fordham Law Review

Domestic violence is a global issue, but in the United States it is especially lethal. Hundreds of women are shot and killed in the United States by intimate partners every year. Federal and state legislatures have enacted laws that focus on the issue of domestic violence and gun violence. In 1996, Congress passed the Lautenberg Amendment to the Gun Control Act of 1968, which permanently prohibits individuals convicted of domestic violence misdemeanors from possessing firearms. Twenty-nine states and the District of Columbia have also enacted laws that mirror the Lautenberg Amendment. In many jurisdictions, misdemeanor domestic violence convictions carry a …

Lgbtqia+ Public Accomodation Cases: The Battle Between Religious Freedom And Civil Rights, Jamie Reinah

Fordham Law Review

Protections for LGBTQIA+ Americans have greatly expanded since the U.S. Supreme Court recognized marriage equality in Obergefell v. Hodges, but the debate about whether business owners can refuse to serve LGBTQIA+ couples on religious grounds has grown more bitterly divided. The free exercise of religion is a fundamental constitutional right, and it is strongly protected at both the federal and state levels. At the same time, LGBTQIA+ couples are protected from receiving unequal treatment in public places under state antidiscrimination laws. The clash between religion and LGBTQIA+ rights has culminated in a line of cases that present difficult questions …

Table Of Contents - Cardozo Law Review, Volume 42, Issue 6

Cardozo Law Review

No abstract provided.

State Energy Cartels, James W. Coleman

Cardozo Law Review

Fracking has made America the center of global oil production and the engine of the world’s economy. But haste makes waste. America’s new oil wells are releasing natural gas as well, which is prized as a clean and reliable fuel around the world but must be simply burned off or “flared” if there are no pipelines to bring it to the customers that need it. The pace of the oil boom and the challenges of building new pipelines have forced oil companies to flare staggering quantities of natural gas. Texas and North Dakota are now flaring—that is, wasting—more gas than …

Firing Employment At Will And Discharging Termination Claims From Employment Discrimination: A Cooperative Federalism Approach To Improve Employment Law, William R. Corbett

Cardozo Law Review

No abstract provided.

Populism And Constitutionalism: An Essay On Definitions And Their Implications, Mark Tushnet, Bojan Bugarič

Cardozo Law Review

No abstract provided.

Deceive, Profit, Repeat: Public Deception Schemes To Conceal Product Dangers, Wes Henricksen

Cardozo Law Review

Companies in numerous industries have misled the public by hiding the dangers posed by their products. Sugar manufacturers hid the dangers of high fructose corn syrup and misdirected the public’s attention to fat, causing an epidemic of diabetes, obesity, and heart disease. Opioid manufacturers hid the dangers and addictiveness of opioid painkillers, leading to the opioid crisis. Fossil fuel companies misled the public about the causes, certainty, and effects of global warming, resulting in massive unregulated CO2 emissions and causing one of the greatest threats to humankind. This Article identifies all such schemes as belonging to a category of wrongs …

Rluipa’S Hidden Third-Party Harms On Landowners And Local Governments, Menachem Polishuk

Cardozo Law Review

No abstract provided.

When Free Speech And Privacy Collide: Why Strict Scrutiny Is A Poor Fit For Nonconsensual Pornography Laws, Leah S. Murphy

Cardozo Law Review

No abstract provided.

Environmental Rights For The 21st Century: A Comprehensive Analysis Of The Public Trust Doctrine And Rights Of Nature Movement, Erin Ryan, Holly Parker Curry, Hayes Rule

Cardozo Law Review

This Article contrasts two theoretically distinct approaches to pursuing related objectives of environmental protection: the public trust doctrine and the rights of nature movement. It reviews the development of public trust and rights of nature principles in both domestic and international legal contexts, and explores points of theoretical commonality and contrast between the two, giving special attention to the opposing systems of environmental ethics from which the anthropocentric public trust and ecocentric rights of nature principles arise. The marked jurisdictional variation associated with both approaches suggests their evolving and inchoate nature as a guarantor of environmental rights. Moreover, both are …

Table Of Contents - Cardozo Law Review, Volume 42, Issue 7

Cardozo Law Review

No abstract provided.

Introductory Essay For The Issue Devoted To The Appointment Of Amy Coney Barrett To The U.S. Supreme Court, David Rudenstine

Cardozo Law Review

No abstract provided.

Court Packing Is A Chimera, Brian L. Frye

Cardozo Law Review

The dream of the 1930s is alive in Washington. Democrats see Republicans hemorrhaging voters as Trump struggles with the economy and the pandemic and are salivating at the prospect of retaking not only the White House, but also the Senate. Of course, you should never sell a bearskin until you’ve caught the bear. But even a blowout victory can’t get Democrats the prize they really want, a Supreme Court majority. So, in back-to-the-future fashion, many progressives are pushing the idea of court packing. After all, in politics, rules are made to be broken.

Retiring Life Tenure: On Term Limits And Regular Appointments At The Supreme Court, Tyler Cooper, Amanda Dworkin, Dylan Hosmer-Quint, Amanda Pescovitz

Cardozo Law Review

No abstract provided.

Court Packing As An Antidote, Rivka Weill

Cardozo Law Review

Court packing is considered the nuclear weapon that may unleash total chaos on the American constitutional system. Even in the face of a highly controversial appointment process to the U.S. Supreme Court during the 2020 presidential election season, scholars caution against the wisdom and utility of resorting to court packing. This Essay makes three bold arguments: First, a President may nominate a candidate to the Supreme Court at any time, including their last year in office; this is true both empirically and normatively. It is the Senate’s responsibility to ensure the people’s will is not frustrated. Second, never since the …

Against Court Packing, Or A Plea To Formally Amend The Constitution, Jill M. Fraley

Cardozo Law Review

No abstract provided.

Contra Publius: The House As Cure For The Complaisance And Venality Of The Senate, Sam Solomon

Cardozo Law Review

No abstract provided.

The Remaking Of The Supreme Court: Implications For Climate Change Litigation & Regulation, Mark P. Nevitt

Cardozo Law Review

No abstract provided.

Ruth Bader Ginsburg: An Appreciation, Jonathan L. Entin

Cardozo Law Review

Ruth Bader Ginsburg was a unique figure in American history: as Chief Justice Roberts put it, she was “a jurist of historic stature.”1 She was that, of course, but she was so much more. If she had never served on the Supreme Court, Ruth Bader Ginsburg would still have been a person of historic stature. She was a leading legal scholar who wrote major works about procedure, jurisdiction, comparative law, and constitutional law. And she was the architect of a litigation campaign that resulted in a series of Supreme Court rulings that fundamentally transformed the law of gender discrimination.

Supreme Court Appointments In Presidential Election Years: The Case Of John Hessin Clark, Jonathan L. Entin

Cardozo Law Review

No abstract provided.

Table Of Contents - Cardozo Law Review, Volume 43, Issue 1

Cardozo Law Review

No abstract provided.

Amplified Speech, Erin L. Miller

Cardozo Law Review

This Article introduces the concept of amplification into First Amendment law. Amplification, or the size of the audience reached by speech, lies at the heart of many contemporary free speech struggles. Yet the concept is surprisingly absent as a category of analysis from constitutional doctrine and virtually undiscussed in legal scholarship. Amplification deserves its own set of legal rules and doctrines, because the right to amplify one’s speech serves the two core types of First Amendment interests—those of audiences and those of speakers—differently than the right to choose the content of one’s speech. The higher the degree of amplification, the …

Racial Recognition, Eldar Haber

Cardozo Law Review

No abstract provided.

The "Right To Control" Theory Of Fraud: When Deception Without Harm Becomes A Crime, Tai H. Park

Cardozo Law Review

It is supposed to be well established that mere deceit is insufficient to convict someone of fraud and that there must also be proof the defendant intended to cause harm to a victim’s “money or property.” Yet, for many decades, federal prosecutors have persisted in pushing expansive theories of criminality to encompass all forms of deceptive behavior, even where the defendants intended no pecuniary harm. The so-called “right to control” theory of fraud is arguably the most extreme (and successful) of these theories. It holds that one’s “right to control” his or her assets qualifies as “property.” Thus, even if …