Law Commons^™

Front Matter

City University of New York Law Review

No abstract provided.

Restorative Justice In Cases Of Sexual Harm, Alexa Sardina, Alissa R. Ackerman

City University of New York Law Review

Restorative justice for cases of sexual harm offers a trauma-informed and evidence-based approach to healing and prevention that current criminal legal options do not. The literature is clear that current sex crimes policies and practices have been ineffective at reducing rates of sexual violence. Similarly, current criminal legal practices fail to hold people accountable for the sexual harms they’ve caused and do little to support survivors who come forward. Unlike the criminal legal system, restorative justice provides survivors with a safe platform within which to talk about their experience(s) of sexual harm on their terms and voice their individual needs …

Supreme Confusion About Causality At The Supreme Court, Issa Kohler-Hausmann, Robin Dembroff

City University of New York Law Review

Twice in the 2020 term, in Bostock and Comcast, the Supreme Court doubled down on a particular interpretation of how “but-for causation” applies to antidiscrimination statutes. According to the Court’s reasoning, an outcome is discriminatory because of some status—say, sex or race—if the outcome would not have occurred “but-for” the plaintiff’s status. We think this reasoning embeds profound conceptual errors that render the decisions deeply confused. Furthermore, those conceptual errors tend to limit the reach of antidiscrimination law. In this essay, we first unpack the ambiguity of the Court’s interpretation and application of but-for causal reasoning. We then show that …

Who’S Afraid Of Bob Jones? “Fundamental National Public Policy” And Critical Race Theory In A Delicate Democracy, Lynn D. Lu

City University of New York Law Review

Calls to defund critical race theory aim to freeze civil rights progress where it stood decades ago with the formal prohibition of intentional race discrimination in federally funded programs. In the notorious case of Bob Jones University v. United States, 461 U.S. 574 (1983), the U.S. Supreme Court confronted the federal tax exemption for public charities and ruled that the Internal Revenue Service (IRS) properly withheld tax-exempt status from otherwise qualifying private religious schools that denied admission to students based on race. In particular, the Bob Jones Court recognized the “fundamental national public policy” against racial segregation as a compelling …

Challenging Weapons Deals Between The United States And Israel: Limitations And Prospects, Ryan J. Mcnamara

City University of New York Law Review

Weapons deals with Israel violate the plain language and policy considerations of United States’ statutes blocking such aid to serial violators of human rights and nuclear rogue states. This Note seeks to review paths to enforcing these statutes, as well as the political forces hampering such efforts.

Casting Out From The Inside: Abolishing Felony Disenfranchisement In New York, Elizabeth Neuland

City University of New York Law Review

Felony disenfranchisement laws are an archaic practice, meant to silence a population that is often forgotten and overlooked by society. On the principles of rehabilitation and accountability, New York State ought to completely abolish felony disenfranchisement. It does not deter crime. In fact, recidivism rates show a decline when incarcerated individuals have rehabilitative opportunities through New York State Department of Corrections and Community Supervision ("DOCCS")-facilitated programming and family services. As the arguments laid out in this Comment demonstrate, it is imperative that the New York State Legislature takes prompt action to abolish felony disenfranchisement altogether.

Elderly, Detained, And Justice-Involved: The Most Incarcerated Generation, Rachael Bedard, Joshua Vaughn, Angela Silletti Murolo

City University of New York Law Review

The “graying” of the United States prison system is a well-documented phenomenon that describes the aging of the population currently held in U.S. state and federal prisons. This is generally attributed to the large number of individuals who are aging in place in prisons around the country due to long sentences and restrictive parole practices. Less well-known or well-characterized is the fact that the U.S.’s justice-involved population outside of prisons is also “graying”—that the demographics of people who are being arrested, jail detained, transferred to prisons on new criminal convictions, and monitored under community surveillance programs are also changing to …

The Impeachment Trials Of Donald John Trump: How Senate Jurors Strengthened The Case Against Federal Felon-Juror Exclusion, James M. Binnall

City University of New York Law Review

In 2020 and then again in 2021, former President Donald John Trump faced an impeachment trial. Prior to each, a parade of Senators—charged with acting as jurors in the matter—publicly stated their verdict preference, some even discounting the need for evidence. In our federal court system, citizens with a felony criminal history are permanently barred from serving as a juror. In justifying this categorical exclusion, courts and lawmakers primarily allege that those who have been convicted of a felony lack the requisite character to serve, as they have shown a propensity to flout the law. In short, proponents of exclusion …

Front Matter

City University of New York Law Review

No abstract provided.

Racist Animal Agriculture, Courtney G. Lee

City University of New York Law Review

Industrialized animal agriculture—concentrated animal feeding operations (“CAFOs”) and slaughterhouses—is inherently oppressive of both nonhumans and humans. This Article seeks to expose the human side of that exploitation, specifically examining how industrial animal agriculture was built upon and continues to propagate racism. The harms to humans of color perpetuated by this system are myriad and serious, ranging from physical to psychological and from troubling to life-threatening. This Article first examines how the animal agribusiness industry has harmed farmers and ranchers of color since the early 20th century through government-sponsored racist policies and practices. Second, the Article studies harms to workers, from …

The Color Of Local Government: Observations Of A Brown Buffalo On Racial Impact Statements In The Movement For Water Justice, Tom I. Romero Ii

City University of New York Law Review

Industrialized animal agriculture—concentrated animal feeding operations (“CAFOs”) and slaughterhouses—is inherently oppressive of both nonhumans and humans. This Article seeks to expose the human side of that exploitation, specifically examining how industrial animal agriculture was built upon and continues to propagate racism. The harms to humans of color perpetuated by this system are myriad and serious, ranging from physical to psychological and from troubling to life-threatening. This Article first examines how the animal agribusiness industry has harmed farmers and ranchers of color since the early 20th century through government-sponsored racist policies and practices. Second, the Article studies harms to workers, from …

Death By A Thousand Duck Bites In A No-Man’S Land: Navigating Section 230’S Scope And Impact In A Changing Internet And World, Val Rigodon

City University of New York Law Review

Section 230 of Title 47 of the United States Code, colloquially known as Section 230, is hailed by many as the law that created the internet. It was conceived to promote the growth of the internet by protecting internet platforms from liability for third-party speech that was out of their control. However, while the internet has changed and grown more intrusive in everyday life, Section 230 has not grown to reflect that. It has been broadened in a way that allows internet platforms to escape liability. People are not generally able to hold internet platforms accountable for harms that were …

Domestic Violence And Leave Laws: How New York Can Improve Its Leave Policies Based On The Laws Of Washington, D.C. And New Jersey, Nusrat J. Khan

City University of New York Law Review

Although intimate partner violence often starts in the privacy of one’s home, its impact spills over in almost all aspects of the victim’s life. The effects of violence are tangible – physical and emotional harm to the person and their dependents, loss of educational or employment opportunities, financial problems, interactions with the criminal justice system, and ongoing legal issues. To address the loss of employment, federal and state governments have implemented leave laws to offer job protection for victims of intimate partner violence. Leave laws are an essential aspect of employment as the ability to take leave from work provides …

America’S Racial Stain: The Taint Argument And The Limits Of Constitutional Law And Rhetoric, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

How should reformers respond to America’s racial stain? The problem is more complex than many imagine. Political activists usually attempt to promote change by taking advantage of a gap between current reality and a touchstone they use to measure the normative desirability of that reality. But what if the touchstone itself is infected by the reality that activists want to change?

Questions raised by this problem do not lend themselves to definitive answers, and this essay does not offer them. Instead, I suggest a variety of responses that attempt to grapple with the difficulty. I also offer tentative assessments of …

A Tale Of Four Decades: Lessons From Uspto Trademark Prosecution Data, Deborah Gerhardt, Jon J. Lee

Faculty Articles

No abstract provided.

Malicious Prosecution As Undue Process: A Fourteenth Amendment Theory Of Malicious Prosecution, Timothy Tymkovich, Hayley Stillwell

Faculty Articles

Section 1983 is not itself a source of constitutional rights, but is instead merely a vehicle to vindicate constitutional rights that independently exist. But since the Supreme Court advised in dictum that actions pursuant to § 1983 should be read against the background of tort liability, § 1983 actions based on malicious prosecution have sparked disagreement over where, if anywhere, this cause of action fits within the Constitution. Most recently, the Supreme Court determined that malicious prosecution finds its constitutional home in the Fourth Amendment, so § 1983 claims require a showing of both a Fourth Amendment violation and the …

Judges In Lawyerless Courts, Anna Carpenter, Colleen Shanahan, Jessica Steinberg, Alyx Mark

Faculty Articles

The typical American civil trial court is lawyerless. In response, access to justice reformers have embraced a key intervention: changing the judge’s traditional role. The prevailing vision for judicial role reform calls on trial judges to offer accommodation, information, and process simplification to people without legal representation. Until now, scholars have known little about judicial behavior in lawyerless courts, including whether and how judges are implementing role reform recommendations. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear—and the discretionary power they wield—in dispensing justice for millions of unrepresented people each year. While today’s …

The Institutional Mismatch Of State Civil Courts, Colleen Shanahan, Jessica Steinberg, Alyx Mark, Anna Carpenter

Faculty Articles

State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts …

Blame (Or Thank) The Administrative Procedure Act For Florida East Coast Railway, Emily S. Bremer

Journal Articles

The Supreme Court’s 1973 decision in United States v. Florida East Coast Railway is widely regarded as obviously wrong—a flaw readily overlooked because the case eliminated formal rulemaking, a category of agency action that is almost universally maligned. This essay argues that administrative law has misunderstood Florida East Coast Railway. The decision vindicates an array of forgotten but foundational principles upon which the Administrative Procedure Act (APA) was based. The Supreme Court could have delivered a less opaque, confusing opinion. But it reached the right result. Understanding why it reached the right result can help to explain a key case …

Optional Price Discrimination, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

Price discrimination gets a bad rap. It is associated with the exploitation of monopoly power and with opportunistically extracting surplus from consumers. As merchants develop ever-more-powerful mechanisms for gathering and compiling information about consumers, the specter of fully personalized pricing seems to loom as an ominous threat. Despite past economic defenses of price discrimination as an efficient and even consumer friendly move in some contexts, ¹ recent writing highlights the perceived unfairness of tailoring prices to willingness to pay, especially when this is accomplished through “big data.”²

Yet a parallel phenomenon quietly coexists with all this distress over personalized …

Personalized Law, Political Power, And The Dangerous Few, Adam Davidson

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

The Bankruptcy Tribunal, Anthony Casey, Joshua Macey

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Reverse Vesting Orders – Developing Principles And Guardrails To Inform Judicial Decisions, Janis P. Sarra

All Faculty Publications

Reverse vesting orders (RVO) are a new tool being used by insolvency practitioners in Canada’s Companies’ Creditors Arrangement Act (CCAA) and other insolvency proceedings, where the debtor is not required to propose a restructuring plan and creditors are not permitted a vote on the going-forward strategy. The article starts from the premise that the court has authority to approve an RVO pursuant to sections 11 and 36 of the CCAA and the court’s general authority under the statute. However, it suggests that there must be exceptional circumstances for the court to be persuaded to bypass provisions of insolvency legislation aimed …

Local Power, Alexandra B. Klass, Rebecca Wilton

Vanderbilt Law Review

This Article is about “local power.” We use that term in two distinct but complementary ways. First, local power describes the authority of local governments to enact regulatory policies in the interests of their citizens. Second, local power describes the authority of local governments to exercise proprietary control over the sources and delivery of electric power to their citizens. This dual meaning of local power is particularly important today, as an increasing number of local governments are seriously considering “municipalizing”--taking control of local electric power systems-—at the same time that, outside the electric power sector, many states are constraining local …

Preliminary Damages, Gideon Parchomovsky, Alex Stein

Vanderbilt Law Review

Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well-off. In this Essay, we propose a new remedy that can dramatically improve the fortunes of poor plaintiffs and thereby change the errant path of the law: preliminary damages. The unavailability of preliminary damages has dire implications for poor plaintiffs, especially those wronged by affluent individuals and corporations. Resource-constrained plaintiffs cannot afford prolonged litigation on account of their limited financial means. Consequently, they are forced to either forego suing …

Dynamic Corporate Purpose: Decentralizing The Choice Over Director Orientation, Fields Pierce

Vanderbilt Law Review

The debate over corporate purpose has turned into a “gordian knot” where parties with entrenched beliefs about what the corporation should or should not be within society refuse to waver. There are inherent flaws with the governance models proposed by academics, politicians, and practitioners alike, so a novel method for setting and maintaining corporate purpose is required. This Note asks why there must be a one-size-fits-all approach to purpose and proposes a solution: dynamic corporate purpose.

This Note argues that states should not mandate all corporations hold the same corporate purpose but instead should use the logic of the public …

The Language Of Power: An Investigation Of How The Macropolitics Of Education Policy Affects The Micropolitics Of Schooling English Learners, Catherine E. Vannatter

Theses and Dissertations--Education Sciences

The population of English Learners (ELs) continues to increase across the United States, and these students persistently perform below their native English-speaking peers in measures of academic achievement. Federal government leaders passed the Every Student Succeeds Act (ESSA) in 2015, which modified how state and local educational agencies identify, instruct, assess, and reclassify ELs and revised what funding EL programming could receive. In this multiphase study, I investigated how the macropolitics of federal and state policy became enacted in the micropolitics of a mid-sized school district in Kentucky. Through an initial phase of document review followed by a mixed methods …

The Federal Response To Covid-19: Lessons From The Pandemic, Nancy J. Knauer

UC Law Journal

When the first suspected human-to-human transmission of the novel coronavirus was reported in January 2020, the United States had in place an elaborate set of pandemic disaster and response plans that spanned hundreds of pages. The George W. Bush administration spearheaded national pandemic planning in 2005 as part of the post-September 11 efforts to modernize the country’s disaster response capabilities. Subsequent administrations revisited and revised the various pandemic plans, including the Trump administration as recently as 2017 and 2018.

Despite these detailed plans, the Trump administration was slow to respond to the emerging public health crisis or implement any of …

Faculty List

Journal of Dispute Resolution

No abstract provided.

Masthead

Journal of Dispute Resolution

No abstract provided.