Law Commons^™

Bound To A Mast: Matelotage And The Queer Contract In Shakespeare's Twelfth Night And The Tempest, Agnese Palumbo

Comparative Literature M.A. Essays

Analyzing the language of a 1699 matelotage contract and locating that same terminology in Shakespeare’s maritime plays, this essay argues that there is a thematic and genealogical link between the contractual forms of homosocial union that existed during the premodern and early modern periods and the bonds shared by male characters in those plays where a “sea change” occurs. First, the essay delineates a history of matelotage and of contractual bonds; then, it establishes this homosocial dynamic as an additional point of inquiry for male relationships in Shakespeare. Critical attention has largely overlooked this queer contract, and prioritized a focus …

The Samuels-Buchanan Correspondence And The Lost Opportunity For A Positive Public Choice Scholarship, Luke Petach

Faculty Scholarship

This article revisits the debate between James Buchanan and Warren Samuels over Miller v. Schoene (1928). The initial court case—concerning the rights of government in the face of conflicting private interests—and subsequent debate between Buchanan and Samuels have important implications for the interrelations between legal and economic processes, the difference between a normative and positive theory of public choice, and the nature of public choice more generally. In published papers and private correspondence, the writings of Samuels reveal an alternative conception of public choice theory as a positive endeavor divorced from the free market normative implications of Buchanan’s work. Application …

Public Engagement, Equity, And Executive Order 14,094., Nina A. Mendelson

Articles

Executive Order 14,094 ("the Order"), signed by President Biden in April, 2023, breaks ground to make regulatory decisionmaking more equitable and inclusive, continuing a theme the Biden Presidency began with Executive Order 13,985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government. Agencies must, of course, hear from those who are regulated, but genuinely equitable decisionmaking also requires agencies to hear and engage the concerns of affected individuals and communities, including underserved communities. This recognizes that many Americans have a distinct and substantial interest in the benefits promised by legislatively created regulatory programs, whether those include safe …

Theorizing Corroboration, Maggie Wittlin

Faculty Scholarship

A child makes an out-of-court statement accusing an adult of abuse. That statement is important proof, but it also presents serious reliability concerns. When deciding whether it is sufficiently reliable to be admitted, should a court consider whether the child’s statement is corroborated—whether, for example, there is medical evidence of abuse? More broadly, should courts consider corroboration when deciding whether evidence is reliable enough to be admitted at trial? Judges, rule-makers, and scholars have taken significantly divergent approaches to this question and come to different conclusions.

This Article argues that there is a key problem with using corroboration to evaluate …

Should Prosecutors Be Expected To Rectify Wrongful Convictions, Bruce A. Green

Faculty Scholarship

In 2008, the American Bar Association amended the Model Rules of Professional Conduct to address prosecutors’ post-conviction conduct. Model Rules 3.8(g) and (h) establish the remedial steps a prosecutor must take after achieving a criminal conviction when confronted with significant new evidence of an injustice. They require prosecutors to disclose the new exculpatory evidence and to take reasonable steps to initiate an investigation, and if clear and convincing evidence then establishes the convicted defendant’s innocence, the prosecutors’ office must take reasonable steps to rectify the injustice. Since then, 24 state judiciaries have adopted versions of one or both rules. Although …

The Indecisions Of 1789: Inconstant Originalism And Strategic Ambiguity, Jed H. Shugerman

Faculty Scholarship

The unitary executive theory relies on the First Congress and an ostensible “Decision of 1789” as an originalist basis for unconditional presidential removal power. In light of new evidence, the First Congress was undecided on any constitutional theory and retreated to ambiguity in order to compromise and move on to other urgent business.

Seila Law’s strict separation-of-powers argument depends on indefeasibility (i.e., Congress may not set limits or conditions on the president’s power of civil removal). In fact, few members of the First Congress defended or even discussed indefeasibility. Only nine of fifty-four participating representatives explicitly endorsed the presidentialist view …

Conflict Resolution-Negotiation: Liv V. Pga Tour, Ross Herman

Cardozo Journal of Conflict Resolution

No abstract provided.

A Portrait Of The Artist’S Heirs In Mediation: Adr Techniques To Prevent And Resolve Disputes Following An Author’S Death, Nicholas Beudert

Cardozo Journal of Conflict Resolution

If an author's work is powerful enough, or popular enough, it's likely that at some point someone will want to write about her. For scholars embarking upon these projects, the author's body of published work can provide insight into her psyche, but correspondence and other unpublished materials can also be valuable. Copyright law covers all of these materials, and when the author dies, she can bequest her copyright as she would the rest of her estate (if she hasn't transferred it during her lifetime). The recipient of these copyrights may now treat the copyrights as her own, as though she …

Victim-Offender Mediation: A Missing Component Of A Multi-Pronged Approach To Reduce New York City Subway Crime, Elizabeth Neuburger

Cardozo Journal of Conflict Resolution

No abstract provided.

Big Screen Or Bust?: How Contractual Negotiations In Hollywood Must Adapt In The Streaming Era, Alexis Narotzky

Cardozo Journal of Conflict Resolution

Scarlett Johansson made her first appearance as her superhero alter-ego, the Black Widow, on May 7, 2010, in the movie Iron Man 2. Over the next intervening eleven years, Johansson appeared in several of Disney's Marvel ("Disney" or "Marvel") movies in supporting roles. On July 9, 2021, Marvel released the Black Widow with Scarlett Johansson as the lead character. Johansson's agreement for her character's eponymous film was built upon the expectation of large bonuses based on profit from outsized box-office receipts, understood as a profit-participation or contingent compensation contract. Johansson's lawyers negotiated for a "wide theatrical release" to protect …

Blockchain, The Superhero That The Healthcare Industry Needs, Victor Wang

Cardozo Arts & Entertainment Law Journal

The note argues that blockchain technology holds significant potential for transforming the healthcare industry by enhancing data security and efficiency. However, its integration faces legal challenges due to conflicts with existing healthcare laws, particularly the Health Insurance Portability and Accountability Act (HIPAA) and the HITECH Act. The note contends that blockchain's decentralized and immutable nature violates key HIPAA requirements, such as data disposal and accountability standards. It advocates for updating these laws to accommodate blockchain technology and ensure compliance, emphasizing the need for legal frameworks to evolve alongside technological advancements.

Strengthening Nagpra, B. Stephen Jones

Cardozo Arts & Entertainment Law Journal

The note examines the limitations of the Native American Grave Protection and Repatriation Act (NAGPRA) in addressing international repatriation of cultural patrimony and proposes complementary legal frameworks to fill these gaps. It highlights the potential of the Safeguard Tribal Objects of Patrimony Act (STOP Act) and the Indigenous McClain Doctrine to enhance protections, while advocating for the recognition of intangible cultural patrimony and the use of moral rights and the right to publicity to safeguard Indigenous cultural sovereignty.

All The Way To Hell: An Artist's Legal Descent Into The Underworld Of Oil And Gas, Madison S. Marlow

Cardozo Arts & Entertainment Law Journal

Eliza Evans’ project, All the Way to Hell, employs a novel legal strategy to challenge Oklahoma’s permissive fracking regulations by fragmenting mineral rights among thousands of co-owners, aiming to disrupt the forced pooling process. While her approach highlights systemic legal and environmental issues, the state’s industry-friendly framework and regulatory capture present significant barriers to meaningful change. The note argues that Evans’ activism underscores the need for legislative reform to balance individual property rights with environmental protection.

Putting Trust In Technology: A Pandemic's Effect On Remote Estate Planning, Amy Weiss

Cardozo Arts & Entertainment Law Journal

The COVID-19 pandemic accelerated the adoption of remote witnessing and notarization in trusts and estates, offering convenience but introducing risks like fraud and privacy concerns. The article advocates for a balanced approach, suggesting uniform national standards to mitigate these risks while maintaining the benefits of remote processes.

The Ftc's "Made In America" Enforcement Policy Is Too Stringent For Small Businesses To Comply With, Jamie Cutler

Cardozo Arts & Entertainment Law Journal

The note argues that the Federal Trade Commission's (FTC) "Made in America" policy is overly stringent and disproportionately burdensome for small businesses. The policy requires products labeled as "Made in America" to contain "all or virtually all" parts and processing from the U.S., a standard that is often ambiguous, economically prohibitive, and misaligned with consumer perceptions. The note contends that this strict enforcement creates a "Hobson's choice" for small businesses, making it infeasible for them to comply without suffering financial harm or reputational damage. It advocates for lowering the threshold to allow more flexibility, which would support small businesses, promote …

Reconsidering A Private Right Of Action Under Vawa: How The Media Portrays Violence Against Women And Its Effect On Commerce Clause Jurisprudence, Lauren Chamberlin

Cardozo Arts & Entertainment Law Journal

The note argues that the Violence Against Women Act's (VAWA) private right of action was a valid exercise of Congress's Commerce Clause powers, contrary to the Supreme Court's ruling in United States v. Morrison. It contends that gender-based violence substantially affects interstate commerce and that the Court's decision was influenced by outdated perceptions of such violence as a private matter. The article advocates for the reenactment of the private right of action, emphasizing the need for Congress, the courts, and the states to address the economic and societal impacts of gender-based violence.

An Interdisciplinary Approach To The Legal History Of Northern Ireland (1921-1948): Methods And Sources, Molly Lentz-Meyer

Law Faculty Publications

Approaches from legal scholarship include primary sources such as statutes and case law, as well as legislative histories which legal scholars rarely consider ‘history’ in the same way as historians. Rather, legal scholars often look to legislative histories to discern the intent of the legislature in enacting laws for the sole purpose of interpreting a statute’s meaning. This study utilises the research tools employed by legal scholars – statutory law, case law, and legislative histories – to examine the establishment of the legal system in Northern Ireland. The study will focus on the early period of devolution (1921 – 1948) …

(Re)Building The Master's House: Dismantling America's Colonial Politics Of Extraction And Exclusion, Marissa Jackson Sow

Law Faculty Publications

On February 10, 2021, and in the days thereafter, liberal American commentators showered Congresswoman Stacey Plaskett with superlatives and praise due to her masterful takedown of former President Donald Trump during his impeachment trial for incitement of the January 6, 2021 Capitol Riot. Referring to a picture of Plaskett wearing a knee-length blue dress with draped sleeves, the political strategist (and daughter of House Majority Leader Nancy Pelosi) Christine Pelosi took to Twitter to note that “[n]ot all superheroes wear capes. This one does!”

Plaskett is one of many Black Americans who has done the hard work of cleaning up …

Beyond Problem-Solving Courts, Erin Collins

Law Faculty Publications

Problem-solving courts were borne out of a well-meaning experimentalist spirit, one that inspired judges to attempt to close the so-called “revolving door” to the courthouse by providing treatment instead of, or in addition to, incarceration. The problem-solving court movement is now more than thirty years old and the results of this experiment in court reform are underwhelming. Viewed in the most favorable light, studies suggest that problem-solving courts can modestly reduce the likelihood that some court participants will be arrested or convicted again. Meanwhile, the 40% to 60% of people who begin but do not complete problem-solving court programs often …

Illuminating The Land-Energy Nexus, Danielle Stokes

Law Faculty Publications

The complexities of climate change have infiltrated every facet of life. From environmental preservation and food production to employment opportunities and policymaking, climate plays a role. These respective touchpoints have a direct connection to the Farm Bill. This law serves as the crux of agricultural programs and cements the relationship between farmers and the federal government. What began as a safety net following the Great Depression has expanded into a multi-title behemoth that now regulates nutrition assistance, rural economic development initiatives, and everything in between. In recent years, thought leaders such as the Farm Bill Law Enterprise have brought climate-centered …

Making Justice Available For Victims Of Sexual Misconduct Within The Prison System, Emma L. Bruder

Cardozo Journal of Equal Rights & Social Justice

The note advocates for amending the Prison Rape Elimination Act (PREA) to include a private cause of action, enabling survivors of sexual misconduct in confinement to seek judicial remedies. This amendment would enforce their Eighth Amendment rights and address the limitations imposed by the Prison Litigation Reform Act (PLRA), which hinders access to justice for incarcerated individuals.

Physical Scars Are Not The Only Evidence: Crucial Expansion Of New York's Penal Law To Define Coercive Control And Technological Abuse As Domestic Violence, Bailey D. Appel

Cardozo Journal of Equal Rights & Social Justice

The note argues that New York's domestic violence laws are insufficient as they fail to recognize non-physical forms of abuse, specifically coercive control and technological abuse. It emphasizes the need to expand the legal definition of domestic violence to include these forms, particularly in light of the increased prevalence during the COVID-19 pandemic, which trapped victims at home with their abusers.

Fragmented Music Copyright Protection: A Better Arrangement, Matthew B. Goldman

Cardozo Arts & Entertainment Law Journal

The note explores the challenges of music copyright law, particularly in determining the protectability of fragmented elements within musical works. It argues that by applying doctrinal tools such as the idea-expression distinction, merger, scenes a faire, and thin copyright, courts can better balance the protection of original expression with the need to allow future creativity. The analysis focuses on two key cases, Skidmore v. Led Zeppelin and Gray v. Perry, to illustrate how these tools can be effectively used to resolve music copyright disputes.

Combating False Election Information In A Section 230 Protected World: To Moderate Or Not To Moderate, Caitlin Muraca

Cardozo Arts & Entertainment Law Journal

The note examines the challenges of combating false election information on social media platforms, focusing on the role of Section 230 of the Communications Decency Act. It argues that while Section 230 is crucial for protecting online speech, its current form is inadequate in addressing the spread of misinformation in the modern digital landscape. The note evaluates various proposals for reform, including the repeal or modification of Section 230, and suggests a balanced approach that maintains its protections while incentivizing improved content moderation to combat false election information.

Accelerating Toward The Inevitable: How Covid-19 Helped Alter Traditional Models Of Talent Compensation In The Film Industry, Raven Berzal

Cardozo Arts & Entertainment Law Journal

The COVID-19 pandemic accelerated a significant shift in the film industry’s talent compensation models, driven by the rise of streaming platforms and the decline of traditional theatrical releases. This transformation has moved compensation structures from backend profit-sharing to upfront payments, raising legal and contractual challenges. The Johansson v. Disney case exemplifies these disputes, highlighting the need for clearer definitions of success and compensation in the streaming era. The industry is likely to adopt hybrid models, blending upfront fees with alternative compensation methods, as streaming continues to reshape how talent is paid.

Randomness, Ai Art, And Copyright, Richard H. Chused

Cardozo Arts & Entertainment Law Journal

The article argues that art created with the assistance of AI tools should generally be eligible for copyright protection. It posits that human agency is present in the creation of AI-generated art, as traditional artistic works also incorporate randomness and unpredictability. By examining works by artists like Alexander Calder, Robert Rauschenberg, and John Cage, the analysis demonstrates that randomness and unpredictability have long been protected under copyright law, suggesting that AI-generated art should receive similar treatment.

Trademarks And Censorship In The Time Of Covid-19, Xuan-Thao Nguyen

Cardozo Arts & Entertainment Law Journal

During the devastating year of 2020, China quickly conquered the novel coronavirus and roared back economically while the United States faced staggering deaths and economic losses. But underneath the divergent experience of the two countries is an untold story of trademark and censorship in the time of COVID-19. This Article observes that while the United States Supreme Court has lifted the ban on trademark registrations for unconstitutional viewpoint discrimination, opening the door for offensive COVID-19 trademark applications, China has transformed trademark law into the law for censorship as Chinese authorities press forward to achieve twin victories over the coronavirus and …

Protecting Ravenstail: Cultural Appropriation And The Outer Limits Of Copyright Law, Nosson Sternbach

Cardozo Arts & Entertainment Law Journal

The note examines the challenges minority cultures, particularly indigenous communities, face in protecting their cultural heritage through copyright law, focusing on the Sealaska Heritage Institute Inc. v. Neiman Marcus Group LTD, LLC case. It argues that copyright law's requirements—such as fixation, originality, authorship, and duration—create significant barriers for indigenous cultures seeking to safeguard their intellectual property. The note also critiques the Indian Arts and Crafts Act (IACA) for its inefficacy in preventing cultural appropriation, as it requires plaintiffs to prove specific harms and often fails to address the misuse of cultural motifs without explicit tribal names. The Sealaska case highlights …

Dickens V. Lee (1844): A Christmas Tale Of Two Experts Testifying, Mark Rose

Cardozo Arts & Entertainment Law Journal

The article examines the 1844 case of Dickens v. Lee, highlighting its significance as an early example of the use of expert witnesses in copyright disputes. Dickens successfully sued over the unauthorized adaptation of A Christmas Carol, but the case underscores the challenges of balancing literary and commercial considerations in copyright law. The defense's use of expert testimony to argue market differentiation contrasts with the court's focus on literary similarity, foreshadowing modern debates on substantial similarity in copyright infringement.

How Patents Became Politics, Steven Wilf

Cardozo Arts & Entertainment Law Journal

Political mobilization in the digital age often coalesces around opposition to the far-reaching protection of intellectual property. Both copyright and patent have materialized as the centerpiece of major political and legal debates that take a variety of forms, including the European pirate parties, NGOs such as the Electronic Frontier Foundation in the United States, and the call for open source software. The commonplace narrative is that self-interested stakeholders over the past century successfully fashioned an ever-expanding intellectual property system, and that resistance to such legal control of knowledge only emerged in our times. By contrast, this article recovers a littleknown …