Law Commons^™

Bribery Law: Is Anything Left?, Richard W. Painter

Cardozo Law Review

Part I of this Article discusses the traditional understanding of bribery that existed at common law at the time of the Founding and presumably is embodied in the reference to bribery in the Impeachment Clause of the Constitution. Part I additionally discusses the Emoluments Clause of the Constitution, which prohibits holders of federal office from receiving gifts, offices, and emoluments from foreign governments without consent of Congress. Part II discusses recent judicial developments weakening the traditional notion of bribery. Specifically, Section II.A discusses how the Supreme Court has narrowed the definition of bribery in the federal criminal code. Section II.B …

Why Courts Should Not Discipline Trump's Lawyers, Rebecca Roiphe

Cardozo Law Review

After the first Trump administration, there were multiple coordinated efforts to discipline lawyers in highly charged political cases. For example, a California bar court recommended that John Eastman be disbarred. Eastman helped craft the legal argument that then-Vice President Mike Pence had the right to delay or decline to certify the election results, and the disciplinary case concluded that he lied publicly, in his memos to his client and Pence, and to courts. This Article draws on Eastman's case to argue that disciplinary charges in politically charged cases are often unconstitutional and even when they are not, they are unwise …

The Supreme Court's Specious Code Of Conduct, James J. Sample

Cardozo Law Review

Congressionally imposed ethics enforcement would enhance the Supreme Court's exercise of constitutional powers by reducing the interference of improper personal motives during its factual and legal determinations. The Court has long recognized the self-evident truth that "no man can be a judge in his own case." The Framers recognized the limits inherent in human nature: humans are not angels. Accordingly, the Constitutional scheme of separated powers, as elucidated by Madison, "[does] not mean that these departments ought to have no partial agency in, or no control over, the acts of each other." Congress rightly has the constitutional means and motive …

From Manuscripts To Monopsonies: Revisiting United States V. Bertelsmann Se & Co. Kgaa, Matthew Petrouskie

Cardozo Law Review

United States v. Bertelsmann SE & Co. KGaA is a unique antitrust case that has reframed decades of precedent. In November 2020, Bertelsmann SE & Co. KGaA ("Bertelsmann"), the parent company of PRH, announced its plan to acquire S&S from its parent company, Paramount Global ("Paramount'). This announcement positioned the merged entity ("S&S + PRH") to control a third of the book market, the largest market share held by a publishing house. The following year, the Department of Justice Antitrust Division ("DOJATR") sued to block the merger. In United States v. Bertelsmann SE & Co. KGaA, the DOJATR's case …

“Going Once, Going Twice, Sold!” The Case For Resale Rights For Visual Artists In The United States, Alice Darakhchava

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

Resale rights can be understood to be a form of royalty payments that compensate visual artists for subsequent sales after the initial sale of their artwork. In contrast to the schemes available to music artists in the United States, who receive payment for subsequent use of their works through licenses for public performance, synchronization licenses, or mechanical licenses, visual artists lack the ability to profit from the resale of their creations. This discrepancy separates the United States from the approaches to resale rights in many European countries and other countries that have adopted this system. Countries that recognize resale rights …

The Latin American Principles For Out-Of-Court Workouts, Aurelio Gurrea-Martinez, Adolfo Rouillon

Research Collection Yong Pung How School Of Law

Out-of-court workouts can save significant costs associated with the initiation of a formal insolvency proceeding. Therefore, they can help minimise the loss of value experienced by an insolvent firm, ultimately contributing to the maximisation of the returns to creditors and the reorganisation of viable but financially distressed businesses. Additionally, an out-of-court agreement can provide a level of flexibility and confidentiality that is usually lacking in formal insolvency proceedings. Thus, an out-of-court workout can serve as a valuable mechanism to deal with a situation of financial distress, especially in the context of countries with inefficient insolvency systems and companies with concentrated …

Privacy In The Age Of Platforms: How Digital Advancements Are Outrunning Our Constitution, Haleigh Fagundes

Capstone Projects and Master's Theses

This project analyzes the procedural history of Fourth Amendment doctrine in the Supreme Court. This timeline begins with the 1928 case of Olmstead v. United States and proceeds with recent cases that resolve more modern concerns such as location tracking via cell-cite information, as seen in Carpenter v. United States (2018). Prevalent cases are analyzed through both majority and dissenting opinions to demonstrate the entire Courts’ attitude towards the interpretation. Though more recently the Court has moved towards expanding the expectation of privacy that one can assume from the Fourth Amendment, digital privacy has yet to be incorporated. The research …

Regulating Decentralised Finance? A Singapore Perspective, Rachel Phang

Research Collection Yong Pung How School Of Law

The emergent phenomenon of decentralised finance (“DeFi”) can be understood as the performance of financial functions through applications that are built on distributed ledger technology and operate using cryptoassets and smart contracts, without the need for traditional centralised intermediaries. In what ways does DeFi challenge existing financial regulation, and how should regulation develop in light of the DeFi phenomenon? In addressing this question, this article provides an overview of DeFi, surveys the current regulatory landscape in Singapore, considers key regulatory issues and policy considerations associated with DeFi, and discusses some potential directions for the future development of the regulation of …

A Remarkable Look At Sentencing For A Remarkable Set Of Drug Defendants, Douglas A. Berman, Steven L. Chanenson

Faculty Publications

A new dataset capturing sentencing outcomes for “boat defendants,” a notable group of federal drug offenders who share many characteristics, provides a fresh perspective on many different aspects of federal case-processing and drug-sentencing outcomes. This overview provides a brief look at ground- breaking research based on this dataset, which serves as an anchor article for this issue of the Federal Sentencing Reporter, followed by a history of the creation of this dataset and then commentaries highlighting insights and lessons drawn from this original research.

Reverberations Of Magna Carta: Work Injuries, Inkblots, And Restitution, Michael C. Duff

All Faculty Scholarship

This article argues that workers in the United States have been unconstitutionally undercompensated for their work injuries for at least a century. This provocative fact, coupled with statistics showing that over 120,000 people per year die from workplace injury and occupational disease, suggests a looming post-pandemic struggle for better injury remedies and safer workplaces. Workers’ compensation, the current state-based system by which American workers receive compensation for work-related injury and death, was obtained from legislatures as a “Grand Bargain,” the value of which has significantly deteriorated over time; and the constitutional coherence of which has been impacted by the obvious …

The Imposition Of Constitutional Rights, Alvin Padilla-Babilonia

Faculty Publications

One of the central principles of constitutionalism is that citizenship stands for equal rights under the law. According to this ideal, a U.S. citizen living in Puerto Rico or Guam should have the same constitutional rights as a citizen living on the mainland. However, throughout U.S. history, constitutional rights have been neither uniform nor centralized. While constitutional rights held im- portance, they coexisted with ideals of democratic self-governance and legal pluralism. Today, Supreme Court justices and legal scholars argue that all constitutional rights should apply in the territories. This view upholds citizenship, equal rights, and the rule of law. But …

The Illusion Of Stability In Family Law, Kaiponanea T. Matsumura

Vanderbilt Law Review

Stability is universally accepted as a central value in family law. Within the context of adult relationships, stability determines which relationships the law will recognize and support. Within the context of parent child relationships, stability determines who will be recognized as a parent, whose parental rights will be terminated by the state, and who, among fit parents, will receive custody. This Article challenges stability’s pride of place in family law, identifying three problems with the law’s use of stability.

First, stability is often used in a circular way. Lawmakers treat stability as a requirement—a trait to which the law responds—even …

Congress’S Power Over The Electoral Count, Larry Schwartztol

Vanderbilt Law Review

Does Congress have authority to pass legislation regulating the counting of electoral votes? This is a consequential question for the legal framework governing presidential elections. In 2022, Congress passed the Electoral Count Reform Act (“ECRA”), which overhauled the statutory regime governing the counting of electoral votes. The ECRA’s predecessor statute, which had been in place since 1887, had long been criticized as ambiguous and unnecessarily convoluted. Those deficiencies were widely seen as a contributing cause of the January 6, 2021, attacks on the Capitol, and a rare bipartisan majority in Congress passed the ECRA to address the earlier statute’s shortcomings. …

Defense Wins Championships (And Labor Disputes): How The Minor Leagues Can Field Their Position Against Mlb’S ‘Inside Baseball', Blake Morain

Vanderbilt Law Review

For years, minor league baseball players received salaries far below the federal minimum wage, despite working sixty hours per week. It was not uncommon for these professional athletes to share cramped hotel rooms, sleep on floors, or live out of their cars. Most had to secure loans and pursue odd jobs to make ends meet during the offseason. Such sacrifices were necessary for minor leaguers to achieve their dreams of reaching the major league level, particularly as those abysmal working and living conditions became entrenched by adverse legislation and judicial rulings.

Only within the last five years have minor leaguers …

A Crust Of Bread: Religious Resistance And The Fourteenth Amendment, Kurt T. Lash, Stephanie Hall Barclay -- Professor Of Law

Vanderbilt Law Review

In Employment Division v. Smith, the U.S. Supreme Court denied heightened constitutional protection to religiously motivated exercise burdened by neutral and generally applicable laws. The history presented in this Article suggests that the Smith approach conflicts with the original understanding of the Fourteenth Amendment. Out of the crucible of religious abolitionist resistance to the Fugitive Slave Act emerged a substantive theory of constitutional religious freedom: American citizens should have the right to obey the Biblical command to care for the needy and provide the hungry a “crust of bread,” even if doing so was contrary to neutral and generally applicable …

Do Bans On Conversion Therapy Impose A Governmental "Orthodoxy" About Sex And Gender?, Linda C. Mcclain

Faculty Scholarship

In Part I, this Essay evaluates how orthodoxy arguments featured in Mr. Tingley’s challenge to Washington’s ban on conversion therapy. Part II offers a preliminary analysis of Chiles v. Salazar, ⁴² which the Court will hear during its 2025-2026 Term. I illustrate how the arguments made against Washington’s law by Chiles and her amici draw from the anti-orthodoxy and marketplace of ideas rhetoric found not only in Justice Thomas’s Tingley dissent and his NIFLA opinion but also in Justice Gorsuch’s majority opinion in the 303 Creative decision.⁴³ Woven together with these speech arguments are appeals to the Court’s …

Antiracist Expert Evidence, Jasmine Gonzales Rose, Asees Bhasin, Spencer Piston

Faculty Scholarship

Since 2020, when mass protests against racism swept across the United States, scholars, lawyers, and the general public have become increasingly aware that racism permeates society and the criminal legal system, from overt racial animus to the nuanced effects of structural racism. Demonstrating the influence of racism is therefore vital to the practice of criminal defense, yet many attorneys do not know how to prove racism in court. We surveyed over seven hundred criminal-defense attorneys across the United States, and nearly half had never heard of expert witnesses testifying or submitting written reports on racism—what we call “antiracist expert evidence.” …

The Prospects Of The High Seas Treaty Decisively Reducing The Negative Biodiversity Impacts Of Distant Water Fishing Operations, Shirley V. Scott, Nengye Liu

Research Collection Yong Pung How School Of Law

International fisheries law has so far proven inadequate to prevent over-fishing on the high seas, a key cause of biodiversity loss in areas of the ocean beyond national jurisdiction (ABNJ). Negotiation of the High Seas Treaty (Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction or BBNJ Agreement) afforded an opportunity to respond decisively to the worsening problem. The Treaty was concluded in 2023. It is yet to enter into force. Preparations and negotiations for the Treaty spanned some 20 years. By …

Positive Covenants And The Inherent Instability Of Alteration Agreements Within Condominium: The Owners, Strata Plan Nw 2476 V. Jensen, Douglas C. Harris

All Faculty Publications

Positive covenants—contractual obligations to do things that touch and concern land—are not recognized as property interests at law or in equity. A positive covenant, including the requirement to maintain or repair a building, only binds the parties that contract to be bound. The obligation is personal to the contracting parties and does not run with the land; future owners are bound only if they agree to be bound. The Supreme Court of Canada confirmed as much in 2020 in a dispute between owners of air space parcels over an obligation to pay parking fees: “Where positive covenants are concerned, the …

Masthead

UC Law Journal

No abstract provided.

The Essence Of An Antitrust Violation, Thomas A. Lambert

UC Law Journal

Judicial embrace of the consumer welfare standard reduced the indeterminacy and political manipulability of U.S. antitrust law. Continual invocations of antitrust’s consumer welfare focus, however, have created the misimpression that consumer harm is a sufficient, not merely a necessary, condition for condemning antitrust-relevant behaviors like agreements in restraint of trade and exclusion-causing unilateral acts. Such a “consumer harm sufficiency” view underlay the plaintiffs’ claims in Epic Games v. Apple and FTC v. Qualcomm and has inspired scholarly proposals to condemn various antitrust-relevant behaviors simply because they occasion consumer harm.

Antitrust economics and dynamic efficiency considerations call for rejecting the consumer …

Beyond Human Oversight: Corporate Law And The Case For Ai Directors, Imahn Milani Daeenabi

UC Law Journal

Corporate laws in the United States require corporations to be governed by a board of directors consisting of humans—otherwise known as the natural person requirement. Mandating governance by individual persons stands in contrast to typical American business ideals and the freedom of contract. There are various reasons for corporate law’s imposition of the natural person requirement—many of them historical. But the justification for the natural person requirement has not been sufficiently critiqued, particularly in the context of AI. This Note argues this corporate law requirement should be amended to give corporations the option to permit AI directors in addition to …

The Fda’S Role In Regulating Access To Gender-Affirming Care Medications, Ryan P. Knox

UC Law Journal

Over the last decade, many states have passed laws seeking to restrict or ban certain medications approved by the United States Food and Drug Administration (FDA). One of the most recent examples: gender-affirming care medications for transgender youth and young adults. As of January 2025, twenty-six states have passed laws banning or restricting the provision of genderaffirming care to minors. Proponents of these laws challenge the procedures and prescription drugs as “experimental,” while critics of these laws characterize both as best-practice medical care. In either case, these laws demonstrate a second-guessing of the FDA’s long-established authority in determining the safety …

Goodbye, Zoning?, Michael Allan Wolf

Vanderbilt Law Review

American zoning is under attack on multiple fronts. The concerns of zoning’s many critics range from social and racial justice, to private property rights, to the extreme shortage of affordable housing, to climate-change resilience and sustainability. A growing number of voices have called for, at a minimum, the elimination of single-family zones; some even champion the abolition of this ubiquitous method of American land use regulation. This Article is the first detailed look at what would happen if zoning’s critics got their way. The most efficient means for erasing zoning from American law would be for the U.S. Supreme Court …

Trade Integration, Petros C. Mavroidis

Faculty Scholarship

Accounts concerning the world trading system usually start the debate from the negotiation of the GATT. Trade integration before the First World War, though, had been quite remarkable, and the study of this era enriches our understanding of modern institutions in at least two ways. First, a number of GATT provisions had already been shaped during discussions following the advent of the League of Nations. Second, trade integration before the First World War did not manage to put a brake on belligerent behaviour, putting to rest the old Montesquieuan idea of doux commerce. Recent developments (like the invasion of …

Administrative Law And The Pandemic, Gillian E. Metzger

Faculty Scholarship

American administrative law’s relationship to change is, as they say, compli­cated. On the one hand, continual evolution has been an endemic feature of American administrative law. Doctrines such as Chevron deference to agency statutory interpretations were born, grew, and declined in just the period from the 1980s to today. On the other, the United States (US) Supreme Court regularly rejects such common law development in administrative law as illegitimate and insists that federal judges must adhere to the original terms of the 1946 Administrative Procedure Act (APA) and other statutes, unless the Constitution requires otherwise. And to this day scholars …

Working To Death: Labor Law In The 100 Year Life, Kate Andrias

Faculty Scholarship

Without significant changes in labor law, the 100-year life will almost certainly be defined by deep inequities. Working-class people, and workers of color in particular, are least likely to enjoy extended life spans. And if they do live longer, they are unlikely to enjoy a leisurely retirement in which they decide how they spend their extra years. Instead, they will face more toil and precarity. This chapter imagines a different future. It asks: What would the 100-year life look like if working people had a greater hand in shaping it? What would a legal regime look like that gave working …

The Right To Grow Old, Jamal Greene

Faculty Scholarship

This chapter considers the status of a constitutional “right to grow old” under the US Constitution. Understood as a “positive” right – ensuring a certain minimum quality of life to people as they face the challenges of aging – such a right may seem unavailing given the austerity in respect to such rights that many lawyers associate with the US constitutional tradition. This chapter shows this view to be premature, at least. Unlike the kinds of positive rights overtly rejected in prior cases, such as rights to certain forms of social welfare or to racial equality, a right to grow …

The 100-Year Life And The New Family Law, Naomi Cahn, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

This chapter reflects on the future of family law in an era of longer lives. Our analysis leads us to conclude that the 100-year life is indeed likely to have an impact on the nature, scope, and definition of family law, but that families will continue to function as the primary setting for intimacy and for caregiving and caretaking, whatever form those families take. Further, the importance to both individual and social welfare of family support throughout life points to a need for reform of current family law doctrine. The impact of longer life on doctrines regulating the relationship of …

Trump Attacks On Climate Science May Violate Numerous Federal Laws, Michael B. Gerrard

Faculty Scholarship

Starting on its first day on January 20, 2025, the second Trump administration has launched an unprecedented rollback of efforts to fight climate change. The Sabin Center for Climate Change Law’s Climate Backtracker already has 117 items.

Much of this is aimed at scientific research on climate change, or has the effect of inhibiting the conduct and dissemination of this research. Many of these actions may also violate federal laws.

This article discusses these actions, some of their legal implications, and the litigation challenges that have already been brought. It begins with actions that are specifically aimed at climate research, …