Law Commons^™

Cardozo Law News Brief: November 17, 2023, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2023

Featured Faculty:

• Samuel Weinstein
• Jessica Roth
• Alexander Reinert
• Jocelyn Getgen Kestenbaum
• Pamela Foohey
• Edward Zelinsky
• Michel Rosenfeld

The Roe Repeal Behind Bars: Prison Pregnancies In A Post-Dobbs World, Hani Fish-Bieler

Cardozo Journal of Equal Rights and Social Justice (ERSJ) Blog

165,000 women are estimated to be incarcerated in the United States. These are disproportionately women of color, as Black women are incarcerated at a rate two times higher than that of white women. Around 58,000 pregnant individuals are processed into jails, prisons, and other detention facilities in the United States every year. Approximately 6 to 10 percent of women are pregnant when they enter prison or jail, and about 1400 newborns are born to women in custody. This population has been and will continue to face the challenging effects of the Supreme Court’s 2022 repeal of Roe v. Wade in …

The Students For Admissions, Inc. V. President And Fellows Of Harvard College: The Case Against Affirmative Action From The Asian American Perspective, Annabelle Mae Sukin

Honors Projects

On June 29, 2023, the United States Supreme Court ruled that using affirmative action in college admissions is unconstitutional in the case, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. This research analyzes arguments presented by both parties to reveal the effects of this policy removal on the future of underrepresented minority students applying to college. I conduct a complex legal analysis of prior Supreme Court cases through the lens of reparation jurisprudence to expose the lucrative, and performative, system of affirmative action in higher education. Additionally, I analyze Harvard’s admission statistics through regression models …

Does Speaker Johnson's Election Forewarn Federal Anti-Lgbt Legislation?, Gerald Dryden

Cardozo Journal of Equal Rights and Social Justice (ERSJ) Blog

On October 25, 2023, fourth-term Representative of Louisiana Mike Johnson was elected Speaker of the House. Within three weeks, he laid the groundwork to avoid the feared projected partial government shut down. So why does Johnson consistently score a zero on the Human Rights Campaign’s Congressional Scorecard? The answer has long caused controversy: Speaker Johnson is ardently anti-LGBTQ+.

This post was originally published on the Cardozo Journal of Equal Rights and Social Justice website on November 17, 2023. The original post can be accessed via the Archived Link button above.

National Legal Models To Regulate Scrubbers Washwater, Shams Al Din Al Hajjaji

Loyola of Los Angeles International and Comparative Law Review

According to the findings of this study, nations should adopt uniform regulations regarding the discharge of washwater from exhaust gas cleaning systems into their ports, territories, and Exclusive Economic Zones. Scrubbers are used by ships to reduce their emissions of greenhouse gases so they can adhere to the International Maritime Organization’s limit on the sulfur content of ship fuel. The global upper limit was 0.5% in January 2020. Scrubber washwater is discharged into the ocean by ships. Toxic substances are present in the washwater for the scrubbers. The level of washwater for the scrubbers is governed by the 2008 and …

Global Trade, Wto, Labor Arbitrage, American Workers And National Security—The Need For A U.S. Industrial Policy, Charles W. Murdock

Loyola of Los Angeles International and Comparative Law Review

The COVID-19 pandemic has exposed some of the problems in the current pattern of global trade, particularly with respect to supply chain disruptions. To understand the current status of global trade, it is helpful to understand the confluence of four seemingly disparate developments: (1) Ricardo’s theory of comparative advantage in the early 1800s; (2) the rebuilding in the late 40s and 50s of our former adversaries—Japan and Germany—into export based economies; (3) the modification of capitalism in the 1980s to focus upon maximizing shareholder value; and (4) the rise of China as an economic and military powerhouse, facilitated initially by …

Annual Educational Shabbat, Cardozo Jewish Law Student Association (Jlsa), Jewish Graduate Student Initiative

2023–2024 Flyers

No abstract provided.

Table Of Contents, Jake Shatzer

Georgia Law Review

No abstract provided.

121st Sibley Lecture: American Democracy In Peril, J. Michael Luttig

Georgia Law Review

No abstract provided.

Confusing Cy Près, Christopher J. Ryan Jr.

Georgia Law Review

American courts have increasingly considered the possibility of prolonging the life of charitable trusts through cy près and the closely related doctrine of equitable deviation. This requires courts to interpret the material purposes of trusts and even the administrative terms on which settlors of charitable trusts condition gifts in trust made for public benefit. Yet, the implicit reasons why courts might invoke cy près to change a charitable trust’s material purpose have not been explored in significant depth heretofore—and neither has a common but vexing trend of courts conflating cy près with deviation, which negatively impacts charitable trust-making.

I analyze …

The Applications Docket, Greg Goelzhauser

Georgia Law Review

The Supreme Court’s applications docket, often misleadingly called the “shadow docket” or “emergency docket,” is controversial, complex, and poorly understood. Using original data spanning nearly two decades, I unravel the docket’s empirical foundations. Applications practice changed fundamentally in recent years. Contrary to conventional wisdom, dispositions declined on average, but this conceals divergent trends: among applications involving stays and injunctions, capital dispositions decreased while noncapital dispositions increased. Moreover, noncapital applications now comprise a larger share of the docket than capital applications. This shift enhances docket salience because, as I show, most capital applications are denied simultaneous to denying plenary review, while …

What Do We Know About Shareholders' Potential To Solve Environmental And Social Problems?, Bryce C. Tingle

Georgia Law Review

Securities regulators around the world are attempting to assist socially conscious shareholders in driving changes in the way corporate America operates. At a time when legislative solutions to some of our most pressing social and environmental problems seem far away, many market actors have come to hope that shareholders can succeed in regulating and reforming corporate practices.

This paper summarizes the empirical evidence regarding the behavior of shareholders with explicit ESG mandates, the difficulties outsiders experience in evaluating ESG performance, and the outcomes generated by the limited tools available to shareholders under corporate law. It concludes there is little evidence …

Billionaire Taxes And The Constitution, Andy Grewal

Georgia Law Review

The United States now has ten times as many billionaires as it had just a few decades ago. This ever-growing class has sparked congressional interest in “billionaire tax” proposals. These proposals would generally require that billionaires recognize income when their asset values increase, even if they have not sold their assets.

Under existing doctrine, billionaire taxes likely violate the realization requirement embedded in the Sixteenth Amendment of the Constitution. However, this Article argues that existing Sixteenth Amendment doctrine suffers from deep infirmities and theoretical inconsistencies. With the conceptually sound interpretive approach advanced in this Article, a billionaire tax could pass …

Title Ix At Fifty: Reimagining Institutional Liability Under Karasek's Pre-Assault Theory, Delaney R. Davis

Georgia Law Review

Unfortunately, sexual misconduct remains a pervasive problem on college campuses throughout the country. While victims of sexual harassment and assault can report these incidents to their university, these institutions often fail to respond adequately. Investigations into the alleged misconduct are often unnecessarily delayed and school officials neglect to inform victims about the status of their cases. Even more troubling, institutions opt to impose informal sanctions on perpetrators without consulting victims. In such instances, students can hold educational institutions accountable for these deficiencies by suing under Title IX. This is easier said than done. Typically, a plaintiff must prove that their …

Silent Sentences: The Procedural Tragedy Of The Bureau Of Prisons' Sentence Computation Policy, Max Abramson

Georgia Law Review

The Bureau of Prisons has systematically lengthened sentences—at times doubling them—for prisoners subject to federal and state sentences for the same conduct. This phenomenon does not stem from any expressed intent on the part of federal or state judges, defense attorneys, the prosecution, or a plea deal. Instead, it arises through silence at a prisoner’s federal sentencing on a key issue: whether the federal sentence is consecutive to or concurrent with a yet-to-beimposed state sentence.

For those facing both a federal sentence and a yet-to-beimposed state sentence for the same conduct, perhaps no other aspect of sentencing has a greater …

Parting The Red Sea: Prescriptions For The Rluipa Equal Terms Provision's Expanding Circuit Split, Braden T. Meadows

Georgia Law Review

Congress unanimously passed the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000. The Act marked the culmination of a decades-long dialogue between Congress and the Supreme Court. RLUIPA’s passage embodied Congress’s resolve to provide religious free exercise protections—particularly as it pertained to religious land use. Since 2000, however, RLUIPA’s Equal Terms Provision has been subject to differing judicial interpretations, resulting in an expanding circuit split. This Note analyzes the circuit split and offers guidance to future interpreters.

First, this Note examines the social, legislative, and judicial history leading to RLUIPA’s enactment. Second, it analyzes the contours of interpretations …

All The Internet's A Stage: Reform Of The Digital Millennium Copyright Act And Broadway's Bootleg Problem, Emma K. Wimberly

Georgia Law Review

Broadway is the cultural epicenter of theatre arts. While Broadway performances are internationally known and hugely profitable, they remain inaccessible to a significant number of fans. The inability to bear the increasing costs of travel, lodging, and tickets leads many fans to turn to bootlegs. Bootlegs are illegal recordings of live performances. They are widely viewed and shared online, and uploaders purposefully work to obscure the illegality of these recordings, allowing them to evade tools designed to combat copyright infringement.

The Digital Millennium Copyright Act (DMCA), enacted in 1998, amended U.S. copyright law to attempt to prevent digital copyright infringement. …

The Procedural Tragedy Of Cook V. State: A Call To The General Assembly To Finish What It Started, Paxton Murphy

Georgia Law Review

On March 15, 2022, the Georgia Supreme Court decided Cook v. State. This case was a bombshell in Georgia’s postconviction law because it discarded decades of judicial precedent overnight. For years, Georgia’s criminal defendants relied on motions for out-of-time appeals when defense counsel failed to appeal before a deadline or to advise a defendant of his or her appellate rights. The out-of-time appeal procedure was a quick, easy, and fair way to return the defendant to the exact same place he was before the appeal deadline was missed.

The ramifications of Cook were severe. Overnight, every outof-time appeal case in …

Navigating The World Of Tiktok Influencers And Using Adr Methods To Negotiate Brand Deals And Contracts, Peri Ayzidor

Cardozo Journal of Conflict Resolution (CJCR) Blog

Anyone using social media in the last three years has been exposed to or heard of TikTok. With over 1.4 billion monthly active users, the social media platform TikTok has taken the world by storm. It allows users to create videos lasting from 15 seconds to three minutes, covering thousands of categories, from makeup tutorials to tutoring explanations. The app has been a particular hit for influencers. An influencer is someone who has the power to impact the purchasing decisions of others because of a certain appeal or relationship with the audience. Many influencers have taken advantage of the app’s …

Environmental Law & Policy Networking Happy Hour, Cardozo Environmental Law Society

2023–2024 Flyers

No abstract provided.

Historical Kinship And Categorical Mischief: The Use And Misuse Of Doctrinal Borrowing In Intellectual Property Law, Mark Bartholomew, John Tehranian

Journal Articles

Analogies are ubiquitous in legal reasoning, and, in copyright jurisprudence, courts frequently turn to patent law for guidance. From introducing doctrines meant to regulate online intermediaries to evaluating the constitutionality of resurrecting copyrights to works from the public domain, judges turn to patent law analogies to lend ballast to their decisions. At other times, however, patent analogies with copyright law are quickly discarded and differences between the two regimes highlighted. Why? In examining the transplantation of doctrinal frameworks from one intellectual property field to another, this Article assesses the circumstances in which courts engage in doctrinal borrowing, discerns their rationale …

Thoughts On The Future: Ll.M.S Staying In The United States, Cardozo Fame Center

2023 Event Invitations

If you are a current international student seeking to establish yourself in the United States, we invite you to join Professor Barbara Kolsun, Director of The FAME Center, as she welcomes back two recent Cardozo graduates to share their journeys of securing employment in the U.S.

Earth’S First Line Of Defense: Establishing Celestial Body-Based Planetary Defense Systems, Yang Liu

International Law Studies

This article discusses legal issues related to the establishment and use of celestial body-based planetary defense systems (CBPDS). It first finds that the application of current international space law to analyze the lawfulness of CBPDS can lead to many ambiguities. Accordingly, this article proposes a new construction of Article IV of the Outer Space Treaty to balance the need to develop celestial body-based planetary defense capacities and the risk of militarization of outer space. According to this article’s approach, neither the “exclusively for peaceful purposes” clause nor the clause prohibiting “military bases, installations and fortifications” on the moon and other …

Applicants Beware: Chinese Trademark Fraud Is Rampant, And It Is Affecting U.S. Trademarks, Lily Barash

Cardozo International & Comparative Law Review (CICLR) Blog

If you are looking to file a trademark application with the United States Patent and Trademark Office (USPTO), you should raise your vigilance. When the COVID-19 pandemic sent people in the United States into emergency lockdown, brick and mortar businesses closed their doors and people started opening their minds. People found new, and more, ways to be creative and e-commerce began to boom. With budding ideas, creators and companies recognized the imperativeness of protecting their intellectual property. The USPTO announced that as of June 17, 2021, it had experienced an increase of roughly 63% in trademark applications filed over the …

Advocate Training Session 2 Of 2, Cardozo Courtroom Advocates Project (Cap)

2023–2024 Flyers

No abstract provided.

Pizza & Chill, Cardozo Minority Law Student Alliance (Mlsa)

2023–2024 Flyers

No abstract provided.

The Crime Of Depositing Or Transferring Funds With The Intention Of Using Or Personally Using Narcotic Drugs And Psychotropic Substances In Uae Law, Maryam M. Habib

Thesis/ Dissertation Defenses

Criminal elements seek to take advantage of the benefits of using the Internet and communication programs, especially with its confidential nature and the difficulty of tracking its users, which allows its users to achieve direct criminal activities without being caught or being held legally accountable. The misuse of technology has posed a threat to our societies and has been accompanied by the emergence of many negatives and positivity; in addition to a lot of legal problems, not to mention the development of criminal activities. The federal legislator has been aware of the danger of drugs and the development of means …

It Is A Constitution We Are Expounding: John Marshall, Spencer Roane, And The Fundamental Conflicts Surrounding Mcculloch V. Maryland (1819), Catherine T. Meisenheimer

Compass: An Undergraduate Journal of American Political Ideas

Using a blend of primary and secondary sources, this research paper examines the lesser-known newspaper debate between Chief Justice John Marshall and Judge Spencer Roane of the Virginia Court of Appeals. The purpose of this research is to answer one question: What were the fundamental issues that divided early Americans as demonstrated by the landmark case of McCulloch v. Maryland (1819)? To contribute to the ongoing discussion of McCulloch and its significance, my paper attempts to understand the issues surrounding McCulloch within its broader, historical context. Instead of confining its importance to the Second Bank of the United States, I …

A Comparative Analysis Of Criminal Justice Systems In The United States And Scandinavia, Tyler Truelock

Ohio Northern University International Law Journal

No abstract provided.

Amicus Curiae Brief Of The International Council Of Thirteen Indigenous Grandmothers And Carol Logan In Support Of Appellants, Stephanie Hall Barclay, John A. Meiser

Court Briefs

No. 23-50746
Perez v. City of San Antonio

Appeal from the United States District Court for the Western District of Texas Honorable Fred Biery (5:23-cv-00977-FB)

From the Summary of the Argument

For centuries, generations of the Lipan-Apache people have gathered for prayer, mediation, and worship along a bend in the Yanaguana—known as the San Antonio River in English—which mirrors the constellation Eridanus in the skies above. It is a place where the lower, middle, and upper worlds come together; a place that reflects the Yanaguana creation story, which teaches that life began in the area when droplets of water fell …