Civil Law Commons^™

Response: Diagonal Representation, Alma Magaña

Articles

A lot has been written about the crisis of indigent defense and the plethora of factors that have led to the crisis, like the lack of guidance on how indigent defense providers can most efficiently distribute their insufficient resources. This lack of guidance has left jurisdictions across the country to their own devices, resulting in a national landscape of very different models, each with its own variations of the same problems plaguing indigent defense.

Intuitions In Tort Law And Theory, James A. Macleod

Articles

This Essay highlights the many ways that ordinary conceptual and moral intuitions shape the development of tort law. It further argues that, for a range of doctrinal and institutional reasons, such intuitions deserve a central place in tort theorists’ efforts to explain, predict, justify, and reform the law of torts. Finally, given the stakes for both positive and normative tort theory, the Essay emphasizes the need for more systematic empirical research into the content and operation of people’s tort-relevant intuitions.

Rethinking Party Autonomy In Trust Law, Stewart E. Sterk

Articles

The article critiques the current approach to party autonomy in trust law, particularly the freedom granted by the Second Restatement of Conflict of Laws for settlors to choose the governing law for their trusts. The author argues that this freedom, rooted in historically uniform trust laws, is now outdated due to the diversification of state trust laws, especially regarding issues like perpetual trusts and asset protection. The analysis advocates for a more restrictive approach to party autonomy, prioritizing the settlor's domicile and home state policies to prevent manipulation and ensure fairness, particularly for third parties affected by trust arrangements.

A More Perfect Union For Whom?, Emmanuel Hiram Arnaud

Articles

Amending the federal Constitution has been instrumental in creating and developing the North American constitutional project. The difficult process embedded in Article V has been used by “The People” to expand rights and democracy, fix procedural deficiencies, and even overturn Supreme Court precedent. Yet, it is no secret that the amendment process has fallen to the wayside and that a constitutional amendment in our present age of extreme political polarization feels impossible.

Our nation’s history suggests otherwise. In John F. Kowal and Wilfred U. Codrington III’s exciting and inspirational new book, they explain that interest in constitutional amendments has coincided …

How Do You Know It Was Me? A Case Comment On Cobbler Nevada, Llc V. Gonzales, David T. Frankel

Cardozo Law Review

No abstract provided.

New Kid On The Block: An Introduction To The Hague Rules On Business And Human Rights Arbitration, Bhavya Mahajan

Cardozo Journal of Conflict Resolution

In the medieval European states, Lex Mercatoria, literally "Merchant Law," was a prevalent custom, which developed out of the norms and needs of the market and influenced the transborder trade practices among merchants. For redressal of trade-related disputes, arbitration was the popular method and the merchants elected their own judges in the courts of arbitration that they established. These courts developed a reputation for swift resolution of disputes using high moral standards. Non-compliance with practiced norms, or with the arbitral decisions of the courts, would solidify pariah status for the defaulting merchant in the trading community. Gradually, with the …

Janus-Faced Rulemaking, Brooke Coleman

Cardozo Law Review

No abstract provided.

The Normativity Of Possibilities And Ideals, Tvsi Blanchard

Cardozo Law Review

To begin, Arthur, I want to say to you, that it's privilege for me to be a part of this event that honors you. We've known each other for a long time and I, as all of us here, have always recognized your intellectual capability and deep insight. But I also want to add here that you are at the same time a very kind, caring person. In many ways, you are the embodiment of what I would hold the most important Jewish value of Chesed, loving-kindness. For me it is an inspiration to know you.

The Virtues Of Complexity: Judge Marrero's Systemic Account Of Litigation Abuse, Charles M. Yablon

Cardozo Law Review

No abstract provided.

The Cost Of Rules, The Rules Of Costs, Victor Marrero

Cardozo Law Review

No abstract provided.

Byte Marks: Making Sense Of New F.R.C.P. 37(E), Charles Yablon

Articles

New FRCP 37(e) limits severe, case ending sanctions for lost electronically stored information (ESI) to situations where a party acted with “intent to deprive” other parties of the use of that information. But it makes no change in existing preservation duties and never explains how “intent” is to be determined for the corporation and other entities likely to be parties in such litigation. The question is – does this Rule make any sense? This Essay seeks to make sense of Rule 37(e) in terms of its language, the stated goals of its drafters, and its role in the regulation of …

Court Transparency And The First Amendment, David S. Ardia

Cardozo Law Review

"Publicity is the very soul of justice," legal philosopher Jeremy Bentham once warned.1 Regrettably, lady justice is at risk of losing her soul. In courts across the country, secrecy is increasingly the norm. Indeed, the extent of secrecy in American courts is astonishing, especially given the assumption by many that the First Amendment guarantees a right of public access to the courts. In reality, the United States Supreme Court has explicitly held only that there is a First Amendment right of public access to criminal trials and pre-trial proceedings. The Court has never addressed the question of whether there is …

The Plain Language Court, David A. Strauss

Cardozo Law Review

The Roberts Court, under Chief Justice John Roberts, has demonstrated a strong and consistent commitment to the plain language approach in statutory interpretation. This approach emphasizes interpreting statutes based on their literal text, often without considering legislative history or broader statutory purposes. The Court's decision in Milner v. Department of the Navy exemplifies this trend, where the Court adhered to the plain language of the Freedom of Information Act (FOIA) despite significant policy concerns. This approach has become more unanimous among the justices, reflecting a shift from earlier Courts that were more divided on this method.

The Cost Of Rules, The Rule Of Costs, Victor Marrero

Cardozo Law Review

No abstract provided.

"Sense Of Access To Justice" As A Framework For Civil Procedure Justice Reform: An Empirical Assessment Of Judicial Settlement Conferences In Quebec (Canada), Jean-François Roberge

Cardozo Journal of Conflict Resolution

An emerging worldwide civil procedure justice reform trend takes the user's point of view into account in order to promote access-tojustice and support for the rule of law. In the Canadian context, the Quebec civil law province has taken the lead to renew its legal culture towards a participatory justice, rooted in fair-minded processes that encourage the persons involved to play an active role. In an effort to monitor such ambitions, carried by the civil procedure code reforms of 2003 and 2014, our paper offers an empirical evaluation through the lens of litigant's "Sense of Access to Justice" ("SA"). We …

The Supreme Court's Civil Assault On Civil Procedure, Alexander A. Reinert

Articles

No abstract provided.

Informed Consent In Mediation: Promoting Pro Se Parties' Informed Settlement Choice While Honoring The Mediator's Ethical Duties, Michael T. Colatrella Jr.

Cardozo Journal of Conflict Resolution

In explaining the proper role of informed consent in mediation, this Article will proceed as follows: Part II will examine mediation's core ethical values of self-determination, impartiality and promoting a quality process. Part III will explore the meaning and origins of the informed consent doctrine; and, in Part IV, analyze the application of informed consent policies and principles to mediation in the light of mediation's core ethical values. Part V will explore ways that mediators can promote informed outcome consent within the existing ethical framework and recommend legislative reform that will help clarify the mediator's proper role of promoting fair …

The Law Of Agency In Comparison: A Look At The Civil Law Jurisdictions Of The State Of Louisiana And The Federal Republic Of Germany, Benedikt M.J. Luthge

Cardozo Journal of International and Comparative Law

The essay presents a comparative analysis of agency law in Louisiana and Germany, highlighting their distinct approaches shaped by their respective legal systems. It argues that while both jurisdictions address similar issues, such as the risks of abuse and third-party rights, German law offers a more coherent framework. The analysis proposes adopting certain German legal principles, such as exceptions to the risk of abuse, to enhance the clarity and effectiveness of Louisiana's agency law.

Predictive Coding: Emerging Questions And Concerns, Charles M. Yablon, Nick Landsman-Roos

Articles

Technology-assisted review-also referred to as "predictive coding," "computer-aided review," and "content-based advanced analytics"-is the most important development in e-discovery to have occurred in some time. While technical characterizations of the process vary largely because of differences across software platforms, basically predictive coding is a process whereby computers are programmed to search large quantities of documents using complex algorithms to mimic the document selection process of a knowledgeable, human document review. It is said to do such a review faster and without many of the dangers of human error. Because of its speed and accuracy, it has been described as a …

Where Corporations Are: Why Casual Visits To New York Are Bad For Business, Jeanne L. Schroeder, David G. Carlson

Articles

In this article, we examine the recent case of Hotel 71 Mezz Lender LLC v. Falor (2010), from the New York Court of Appeals. In this case, New York’s highest court held that LLCs are “present” in New York for jurisdictional purposes when the president of the LLC has submitted to New York jurisdiction in an unrelated law suit against him personally, and where the president came to New York for a deposition in that action. This, we claim, was unconstitutional. In addition, the New York Court of Appeals pronounced itself obliged by the United States Constitution to change the …

Autoptic Film, Alex Murray

Cardozo Law Review

No abstract provided.

The Bankruptcy Hegemon: Section 524(A) And Its Effect On State And Federal Comity, Benjamin Margulis

Cardozo Law Review

No abstract provided.

No More Power To Imply: Gonzaga V. Doe And The Evisceration Of § 253(C) Of The Telecommunications Act, Josh Gajer

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Special Masters And E-Discovery: The Intersection Of Two Recent Revisions To The Federal Rules Of Civil Procedure, Shira A. Scheindlin, Jonathan M. Redgrave

Cardozo Law Review

No abstract provided.

Let My People Go: Human Capital Investment And Community Capacity Building Via Meta/Regulation In A Deliberative Democracy-A Modest Contribution For Criminal Law And Restorative Justice, Bruce P. Archibald

Cardozo Journal of International and Comparative Law

The article explores the integration of restorative justice within Canada's criminal justice system, emphasizing its potential to enhance human capital development and community capacity through deliberative democratic processes. It argues that restorative justice offers a more effective and responsive approach compared to traditional punitive measures, which often fail to address the root causes of crime and may even exacerbate recidivism. By examining the Nova Scotia Restorative Justice Program as a model, the analysis highlights the benefits of combining restorative practices with formal criminal justice systems, advocating for a shift towards more inclusive and rehabilitative approaches to crime.

Tripartite Structures Of Criminal Law In Germany And Other Civil Law Jurisdictions, Russell L. Christopher

Cardozo Law Review

No abstract provided.

Holistic Culpability, Kimberly Kessler Ferzan

Cardozo Law Review

No abstract provided.

Reforming Federal Personal Injury Litigation By Incorporation Of The Procedural Innovations Of Scotland And Ireland: An Analysis And Proposal, Daniel H. Erskine

Cardozo Journal of International and Comparative Law

Federal procedure has embraced the referral of civil cases outside the court system to alternative dispute resolution. This article argues that by utilizing courts to settle cases through civil procedure, courts realize their central role in ensuring the quality of settlements produced through the judicial administration of justice. The purpose of this article is to provide litigants with an optional procedure to expeditiously resolve federal personal injury cases. The system proposed in this article incorporates Scottish and Irish civil procedural reforms into a coherent method for judicial officers to declare the settlement value of a personal injury action without referring …

Dukes V. Wal-Mart: Can 1.5 Million Women Save Employment Discrimination Class Actions?, Robert Fisher

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

A Modest Proposal To Streamline Fair Use Determinations, David Nimmer

Cardozo Arts & Entertainment Law Journal

No abstract provided.