Law Commons^™

The Administrative Agon: A Democratic Theory For A Conflictual Regulatory State, Daniel E. Walters

Faculty Scholarship

A perennial challenge for the administrative state is to answer the “democracy question”: how can the bureaucracy be squared with the idea of self-government of, by, and for a sovereign people with few direct means of holding agencies accountable? Scholars have long argued that this challenge can be met by bringing sophisticated thinking about democracy to bear on the operation of the administrative state. These scholars have invoked various theories of democracy—in particular, pluralist, civic republican, deliberative, and minimalist theories—to explain how allowing agencies to make policy decisions is consistent with core ideas about what democracy is.

There is a …

Legal Perspectives On The Streaming Industry: The United States, Irene Calboli

Faculty Scholarship

In the past decade, streaming has become one of the most popular formats of “consuming” entertainment and other content—from music to videos, and concerts, sports, conferences, and other events. In the United States, the majority of consumers subscribe to one or more streaming services today. Popular streaming services include famous platforms such as Spotify, Netflix, Apple Music, or Apple TV, Pandora, YouTube, and more. Beside subscription-based services, several of these platforms offer “freemium,” or ad-paid version of their services, which allow users to access content with advertisements for free. As elaborated in several industry reports and other publications, the rise …

Beyond Bristol-Myers : Personal Jurisdiction Over Class Actions, Adam N. Steinman

Faculty Scholarship

The Supreme Court's 2017 decision in Bristol-Myers Squibb Co. v. Superior Court threatens a sea change in the relationship between personal jurisdiction and aggregate litigation. The most crucial concern has been what the decision means for class actions. Must a court subject the claims of every unnamed class member to separate jurisdictional scrutiny? If so, it could be impossible for a plaintiff who sues in her home state to represent class members outside that state; instead, the Constitution would permit multi-state or nationwide class actions only in states where the defendant is subject to general jurisdiction. For claims against a …

Table Of Contents - Cardozo International & Comparative Law Review, Vol. 6, Iss. 1

Cardozo International & Comparative Law Review

No abstract provided.

The Debate Surrounding The Company Purpose In The Post-Pandemic Age, Leon Anidjar

Cardozo International & Comparative Law Review

The recent COVID-19 pandemic crisis produced many creative responses to confront its adverse results. Many companies worldwide were required to adopt innovative thinking by altering their business activities and revising their entire supply chain by attracting different types of resources delivered by various stakeholders. This Article explores the implications of this fundamental change on central theoretical assumptions of corporate governance. It articulates a new stakeholders-resources theory that explores governance norms as part of the firm's quest for inputs required to generate a competitive advantage. It applies this analytical framework in the debate on corporate purpose. This Article argues that companies …

The Law And Finance Of Infrastructure Investment, Daisuke Asaoka

Cardozo International & Comparative Law Review

Institutional design facilitates the investment of private capital in infrastructure. The Article deals with concessions, which have been a major format for infrastructure privatization in Japan since their legislation in 2011. It argues that the Japanese government, faced with mounting public debt, walks a thin line between attracting private capital and securing public interest in infrastructure under private operation. By comparing concessions with stock sales, the mainstream form of privatization until the legislation, the Article shows that while concessions have advantages in terms of economics and public interest control, they may hinder the strategic growth of private enterprises by limiting …

Natural Resource Governance In Qing China: Lineage Institutions And The Making Of Common Property Regimes, Jason Jia-Xi Wu

Cardozo International & Comparative Law Review

Historically, common property is one of the dominant forms of ownership through which natural resources-e.g., forests, pastures, and fisheries-are managed. However, their decline across societies due to marketization and privatization has prompted intense debates. This Article seeks to answer the following questions: (1) Why did some common property regimes dissipate quickly, while others resisted the forces of privatization for generations? (2) What explains the divergent trajectories that societies took in governing common resources? Building on the classic Coasean and Demsetzian law-andeconomics principles, this Article highlights two additional dimensions-institutional capacity and social embeddedness of propertyto explain how "hidden" social costs impacted …

Sanctions, Financial Regulation, And Crypto In Latin America, Camilla Oliva

Cardozo International & Comparative Law Review

The note examines the intersection of corruption, financial regulation, and cryptocurrency in Latin America, arguing that U.S. sanctions and the lack of effective financial regulation have inadvertently enabled corruption in the region. It explores how cryptocurrencies, while offering potential solutions to financial instability, are also exploited by corrupt actors and governments to circumvent sanctions and regulatory frameworks. The analysis highlights the dual role of cryptocurrencies as both a tool for financial inclusion and a means of evading accountability, particularly in countries like Venezuela and El Salvador.

Multicultural Populations And Mixed Legal Systems In The United States: Louisiana And Puerto Rico, Olivier Moréteau, Luis Muniz Arguelles

Journal Articles

No abstract provided.

Eye Safety In Dentistry, Marie T. Fluent Dds, Cdipc

The Journal of the Michigan Dental Association

In this article, Dr. Fluent underscores the importance of eye safety from vision loss that ended her clinical dental career. The article emphasizes the prevalence of ocular injuries in occupational settings, with about 2,000 U.S. workers suffering job-related eye injuries daily. Dental professionals face multiple eye hazards, including flying debris, chemicals, and infectious materials. Protective eyewear is crucial, with the CDC and OSHA recommending its use.

A significant concern is the "bottom gap" in protective eyewear, which exposes dental personnel to risks. The article introduces a new ANSI standard, ANSI/ISEA Z87.62-2021, to standardize eye and face protection against bloodborne pathogens …

Protect Yourself From Occupational Risks, Christopher J. Smiley Dds

The Journal of the Michigan Dental Association

This month’s editorial underscores the importance of safeguarding against occupational risks in dentistry. Dr. Smiley shares personal experiences, highlighting potential hazards to oral health care workers' eyes and hearing, including intense lights, noisy equipment, and exposure to infectious pathogens. He emphasizes the need for protective eyewear, light shields, and equipment calibration to reduce eye-related risks and the use of custom musician earplugs to reduce the risk of job-related hearing damage. The overall message stresses that taking steps to protect oneself from occupational risks can preserve the quality of life and a professional career.

Mda At Your Service: What Is The Recommendation Regarding Prescribing Clindamycin?, Eric Tye Dds, Angela Kanazeh Ms, Cmp

The Journal of the Michigan Dental Association

The MDA at Your Service Column addresses member resources available from the MDA. This month presents guidance in prescribing practices, particularly regarding clindamycin. Clindamycin’s association with an increased risk of antibiotic-associated diarrhea, including Clostridioides difficile (C. diff) infection, has increased. The report highlights how to access an ADA clinical guideline, its preference for azithromycin over clindamycin, and the warning associated with prescribing clindamycin. Further reference is available in the August 2020 MDA Journal article "Antibiotic Guidelines for Dentistry: Who, When, What, Why and How to Prescribe,” by Elaine Bailey, PharmD, and Marie Fluent, DDS. Additional member resources discussed in this …

Consider Freedom Of Speech: Perspectives On How To Hold Difficult Conversations With Respect, Vivian E. Hamilton, Andrew D. Stelljes

Popular Media

No abstract provided.

Prohibiting Slavery & The Slave Trade, Jocelyn Getgen Kestenbaum

Articles

Slavery and the slave trade stubbornly persist in our time, but they receive insufficient attention in international human rights law. Even when courts adjudicate slavery violations, they often fail to characterize slave trade conduct that nearly always precedes slavery. Courts also characterize acts that meet the definition of slavery or the slave trade only as other human rights harms, such as forced labor or human trafficking. This failure to accurately characterize violations also as slavery and the slave trade perpetuates impunity and denies victims full expressive justice. This Article argues for reviving international human rights law’s prohibitions of slavery and …

Generalized Creditors And Particularized Creditors: Against A Unified Theory Of Standing In Bankruptcy, David G. Carlson, Jeanne L. Schroeder

Articles

Courts have struggled toward a unified theory to explain when the trustee has exclusive jurisdiction to sue a third party for harms done to a bankrupt debtor, and when creditors have exclusive jurisdiction to sue the third party. Courts have proclaimed that when every creditor can sue the third party, then none of them can, and the right belongs solely to the trustee. Creditor rights are “generalized.” If only a proper subset of creditors can sue the third party, then the trustee is not able to subrogate to the subset. Such creditors are “particularized.” This paper proclaims the test a …

Appendix To "The Amazing Carrie Menkel-Meadow And What Wins When Passions Collide", Lela P. Love

Articles

No abstract provided.

Table Of Contents - Cardozo Law Review, Volume 44, Issue 1

Cardozo Law Review

No abstract provided.

Takings Property And Appropriative Water Rights, Luis Inaraja Vera

Cardozo Law Review

The Takings Clause of the Fifth Amendment to the United States Constitution provides that “private property [shall not] be taken for public use, without just compensation.”1 While courts and academics have put considerable amounts of effort into discussing the meaning of “taken” or “public use,” they have given far less attention to the phrase “private property.” Notable scholars have provided a set of definitions and frameworks to determine when a particular right qualifies as takings property. However, courts and commentators have yet to define the types of rights that are entitled to constitutional protection with sufficient precision to avoid an …

A Comparative Look At The Response To Organized Crime In The Ports Of New York-New Jersey And Vancouver, Julia Pjevach

Cardozo International & Comparative Law Review

The note examines the influence of organized crime in ports, focusing on the Port of New York/New Jersey and the Port of Vancouver. It highlights the effectiveness of the Waterfront Commission of New York Harbor in reducing crime through centralized regulation and contrasts it with Vancouver's decentralized approach, which lacks a unified policing mechanism. The analysis underscores the need for stronger regulatory measures and adaptive strategies to combat evolving criminal activities in both ports.

Solitary Confinement: What The United States Can Learn From England And Norway, Markus Wieshofer

Cardozo International & Comparative Law Review

The note argues that the United States should reform its solitary confinement system by adopting key aspects from England and Norway, such as robust oversight mechanisms and a rehabilitative focus, to address the harsh conditions and negative effects of solitary confinement on inmates.

Expanding The Idea To Mitigate Disproportionality Of English Language Learners In Special Education, Hannah R. Kramer

Cardozo Journal of Equal Rights & Social Justice

The note addresses the disproportionate representation of English Language Learners (ELLs) in special education, arguing that the Individuals with Disabilities Education Act (IDEA) is insufficient in addressing their unique linguistic and cultural needs. It advocates for reforms to the IDEA, including enhanced pre-evaluation screening, culturally sensitive assessments, and an expanded definition of the Least Restrictive Environment (LRE) to ensure ELLs receive appropriate educational support without misclassification.

The End Of Forced Arbitration Of Sexual Violence And The Uncertain Future, Heidi M. S. Sandomir

Cardozo Journal of Equal Rights & Social Justice

The note argues that forced arbitration clauses in employment contracts systematically deny justice to survivors of workplace sexual violence by shielding employers from accountability and limiting legal recourse. While the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) represents a step forward by invalidating predispute arbitration agreements for sexual assault and harassment claims, it falls short of fully addressing the issue due to gaps in retroactive application, inconsistent court interpretations, and lack of alignment with Title VII. The note calls for broader legislative reforms to eliminate forced arbitration in all discrimination cases and ensure survivors' access to …

Police Vehicle Searches And Racial Profiling: An Empirical Study, Griffin Edwards, Stephen Rushin

Fordham Law Review

In 1981, the U.S. Supreme Court held in New York v. Belton that police officers could lawfully search virtually anywhere in a vehicle without a warrant after the arrest of any occupant in the vehicle. Then, in 2009, the Court reversed course in Arizona v. Gant, holding that police could only engage in vehicle searches after such arrests in a smaller number of extenuating circumstances. This series of cases became a flash point for the broader debate about the regulation of policing. Law enforcement groups argued that administratively complex rules, like those established in Gant, risk officer safety. …

Courts Without Court, Andrew G. Ferguson

Vanderbilt Law Review

What role does the physical courthouse play in the administration of criminal justice? This Article uses recent experiments with virtual courts to reimagine a future without criminal courthouses at the center. The key insight of this Article is to reveal how integral physical courts are to carceral control and how the rise of virtual courts helps to decenter power away from judges. This Article examines the effects of online courts on defendants, lawyers, judges, witnesses, victims, and courthouse officials and offers a framework for a better and less court-centered future. By studying post-COVID-19 disruptions around traditional conceptions of place, time, …

Disordered Law: Obama To Trump Executive Branch Orders Mandating Non-Enforcement Of International Treaties, Steven Ferrey

Suffolk University Law School Faculty Works

The Trump Administration asserted an obscure legal doctrine to refuse to follow the direct order of a federal court enjoining its unilateral executive actions not to enforce

• One of the oldest international environmental treaties
• affecting the most capital-intensive industry in the U.S.
• providing the essential resource undergirding the modern world economy,
• as well as the primary renewable energy technology utilized in the U.S.
• at a time with lasting warming of our climate exceeding what the United Nations identifies now as “tipping points that are irreversible within the time span of our current civilization.”

This article …

Russia, Ukraine, And The Future World Order, Ingrid W. Brunk, Monica Hakimi

Vanderbilt Law School Faculty Publications

Russia's invasion of Ukraine, initiated on February 24, 2022, is among the most—if not the most—significant shocks to the global order since World War II. This piece assesses the stakes of the invasion for the core principles that lie at the heart of contemporary international law and the world order that it has helped to create. We argue, relying in part on the other contributions to the October 2022 agora on Ukraine in the American Journal of International Law, that however this war ends, it will reshape, in ways large and small, the world we all inhabit.

Co-Authorship Between Photographers And Portrait Subjects, Molly T. Stech

Vanderbilt Law School Faculty Publications

Copyright law provides that when two or more authors create a single work with the intent of merging their contributions into inseparable or interdependent parts of a unitary whole, the authors are considered joint authors. For photographic works, judicial precedent establishes that the creative contributions necessary to support a copyright claim include the author’s choices concerning elements such as lighting, pose, garments, background, facial expression, and angle. In many visual works, however, those creative elements are determined not solely by a photographer, but also by the subject, who can sulk or smile, stand with good posture or stoop, and be …

Time To Repay Or Time To Delay? The Effect Of Having More Time Before A Payday Loan Is Due, Paige Marta Skiba, Susan Payne Carter, Kuan Liu, Justin Sydnor

Vanderbilt Law School Faculty Publications

We examine the effect of state laws on minimum payday loan durations that give some borrowers an additional pay cycle to repay their initial loan with no other changes to contract terms. Neoclassical models predict this “grace period” would reduce borrowers’ need for costly loan rollovers. However, in reality, borrowers’ repayment behavior with grace periods is very similar to borrowers with shorter loans, merely pushed out a few weeks. Potential explanations include heuristic repayment decisions and naïve present focus. A calibrated model suggests that present-focused borrowers get less than one-half of the benefit from a grace period that time-consistent borrowers …

The Emerging Authority Of Magistrate Judges Within U.S. District Courts, Tracey E. George, Christina L. Boyd, Albert H. Yoon

Vanderbilt Law School Faculty Publications

The federal judicial system is a hierarchy with district courts at the bottom, courts of appeals in the middle, and the Supreme Court at the top. A second, less visible, judicial hierarchy exists within district courts, with magistrate judges situated below district judges. Existing scholarship largely ignores magistrate judges, assuming they are agents tasked with procedural matters with little independent effect on federal courts adjudication. Using a combination of national administrative data (2000–2016) and original case-level data from nine district courts (1997–2014), we find that district courts not only grant meaningful responsibility and discretion to magistrate judges but do so …

Recent Developments: Murphy V. Liberty Mut. Ins. Co., Alexandra Mitchell

University of Baltimore Law Forum

No abstract provided.