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Articles 331 - 360 of 446
Full-Text Articles in Common Law
Ethics In Legal Education: An Augmentation Of Legal Realism, Gerald R. Ferrera
Ethics In Legal Education: An Augmentation Of Legal Realism, Gerald R. Ferrera
Pepperdine Law Review
No abstract provided.
Separation Of Powers Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making, R. Randall Kelso
Separation Of Powers Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making, R. Randall Kelso
Pepperdine Law Review
No abstract provided.
Joint Bank Accounts In New York: Confusion, Discrimination, And The Need For Change, Carolyn Satenberg
Joint Bank Accounts In New York: Confusion, Discrimination, And The Need For Change, Carolyn Satenberg
Cardozo Public Law, Policy & Ethics Journal
The note argues that New York's legal presumption of joint tenancy in joint bank accounts disproportionately burdens same-sex couples, leading to unfair gift and estate tax implications. It advocates for reforming New York's approach to align with the Uniform Probate Code (UPC), which better reflects depositor intent and reduces discrimination. The current system, compounded by federal policies like the Defense of Marriage Act (DOMA), exacerbates financial and emotional hardships for same-sex couples in tax and probate matters.
Reshaping The Traditional Limits Of Affirmative Duties Under The Third Restatement Of Torts, 44 J. Marshall L. Rev. 319 (2011), Victor E. Schwartz, Christopher E. Appel
Reshaping The Traditional Limits Of Affirmative Duties Under The Third Restatement Of Torts, 44 J. Marshall L. Rev. 319 (2011), Victor E. Schwartz, Christopher E. Appel
UIC Law Review
No abstract provided.
Forgotten Namesake: The Illinois Good Samaritan Act's Inexcusable Failure To Provide Immunity To Non-Medical Rescuers, 43 J. Marshall L. Rev. 1097 (2010), David Weldon
UIC Law Review
No abstract provided.
Proportionality, Rationality And Review, Paul Craig
Proportionality, Rationality And Review, Paul Craig
Articles by Maurer Faculty
There is a debate in certain common law jurisdictions as to whether proportionality should be accepted as a general criterion for judicial review in administrative law. This article responds to Mike Taggart’s bifurcation thesis and his argument that proportionality should be reserved for rights-based cases, with low intensity rationality review being used for other types of case. I argue to the contrary that proportionality should be a general principle of judicial review that can be used both in cases concerned with rights and in non-rights based cases, albeit with varying intensity of review. The article begins by addressing the advantages …
The Bankruptcy Hegemon: Section 524(A) And Its Effect On State And Federal Comity, Benjamin Margulis
The Bankruptcy Hegemon: Section 524(A) And Its Effect On State And Federal Comity, Benjamin Margulis
Cardozo Law Review
No abstract provided.
Reason And Reasonableness In Review Of Agency Decisions, Jeffrey Pojanowski
Reason And Reasonableness In Review Of Agency Decisions, Jeffrey Pojanowski
Journal Articles
A company markets computer software that provides day traders with real-time data and recommendations for buying and selling futures on commodities markets. In a late night infomercial, the firm touts the spectacular "certified" profits that purchasers would have earned had they been using this one-of-a-kind system over the past seven years. What the suntanned host does not tell viewers at home is that these "certified" results are not based on actual trades, but simulations of what the system would have produced based on historical data. A regulator initiates administrative proceedings against the firm, charging that this omission "defrauded" customers under …
Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties, Elaine Craig
Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties, Elaine Craig
Articles, Book Chapters, & Popular Press
The notion that queer theory and feminism are inevitably in tension with one another has been well developed both by queer and feminist theorists. Queer theorists have critiqued feminist theories for being anti-sex, overly moralistic, essentialist, and statist. Feminist theorists have rejected queer theory as being un-critically pro-sex and dangerously protective of the private sphere. Unfortunately these reductionist accounts of what constitutes a plethora of diverse, eclectic and overlapping theoretical approaches to issues of sex, gender, and sexuality, often fail to account for the circumstances where these methodological approaches converge on legal projects aimed at advancing the complex justice interests …
Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties, Elaine Craig
Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties, Elaine Craig
Articles, Book Chapters, & Popular Press
The notion that queer theory and feminism are inevitably in tension with one another has been well developed both by queer and feminist theorists. Queer theorists have critiqued feminist theories for being anti-sex, overly moralistic, essentialist, and statist. Feminist theorists have rejected queer theory as being un-critically pro-sex and dangerously protective of the private sphere. Unfortunately these reductionist accounts of what constitutes a plethora of diverse, eclectic and overlapping theoretical approaches to issues of sex, gender, and sexuality, often fail to account for the circumstances where these methodological approaches converge on legal projects aimed at advancing the complex justice interests …
Echoes Of The Impact Of Webb V. Mcgowin On The Doctrine Of Consideration Under Contract Law: Some Reflections On The Decision On The Approach Of Its 75th Anniversary, Stephen J. Leacock
Echoes Of The Impact Of Webb V. Mcgowin On The Doctrine Of Consideration Under Contract Law: Some Reflections On The Decision On The Approach Of Its 75th Anniversary, Stephen J. Leacock
Faculty Scholarship
No abstract provided.
Not Confused? Don't Be Troubled: Meeting The First Amendment Attack On Protection Of "Generic" Foreign Geographical Indications, Scott Danner
Cardozo Law Review
No abstract provided.
Judicial Discretion In Talmudic Times And The Modern Era, A. David Pardo
Judicial Discretion In Talmudic Times And The Modern Era, A. David Pardo
Cardozo Public Law, Policy & Ethics Journal
The article explores the concept of judicial discretion within the Talmud, particularly comparing the approaches of the Palestinian Talmud (Yerushalmi) and the Babylonian Talmud (Bavli). It highlights how the Yerushalmi adheres to a stricter, more unified interpretation of the Halakhah, while the Bavli adopts a more flexible approach, incorporating extralegal considerations and societal context. The analysis demonstrates that these differences reflect broader jurisprudential theories about the role of discretion in legal decision-making.
"Everybody Knows What A Picket Line Means": Picketing Before The British Columbia Court Of Appeal, Judy Fudge, Eric Tucker
"Everybody Knows What A Picket Line Means": Picketing Before The British Columbia Court Of Appeal, Judy Fudge, Eric Tucker
Articles & Book Chapters
The general hostility of courts towards workers’ collective action is well documented, but even against that standard the restrictive approach of the British Columbia Court of Appeal stands out. Although this trend first became apparent in a series of cases before World War II in which the court treated peaceful picketing as unlawful and narrowly interpreted British Columbia’s Trade Union Act (1902), which limited trade unions’ common law liability, this study will focus on the court’s post-War jurisprudence. The legal environment for trade union activity was radically altered during World War II by PC 1003, which provided unions with a …
Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler
Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler
Faculty Scholarship
Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …
Emerging As Heroes After The Devastation Of Natural Disaster: Can Women And Children Utilize Public Nuisance Claims To Catalyze Regulation Of Greenhouse Gas Emissions By U.S. Corporations?, Tressie K. Kamp
Cardozo Journal of Equal Rights & Social Justice
No abstract provided.
U.S. Class Actions And The "Global Class", George A. Bermann
U.S. Class Actions And The "Global Class", George A. Bermann
Faculty Scholarship
Robert Casad's articles on comparative civil procedure were among the first comparative law pieces that caught my eye when, as a freshly-minted associate at a leading New York law firm, I found myself leafing through comparative law journals, rather than amassing billable hours. I had no idea then that comparative law could be as fascinating as I have come to find it, certainly not in a field like civil procedure where the dividends of comparative law work were by no means obvious to me. (Comparative law was not even taught in any guise at Yale Law School in the late …
From Judging Culture To Taxing 'Indians': Tracing The Legal Discourse Of The 'Indian Mode Of Life', Constance Macintosh
From Judging Culture To Taxing 'Indians': Tracing The Legal Discourse Of The 'Indian Mode Of Life', Constance Macintosh
Articles, Book Chapters, & Popular Press
In this article I consider how judicial decision making characterizes Indigenous peoples’ culture outside the context of determinations under section 35(1) of the Constitution Act, 1982. I am concerned with how contemporary jurisprudence sometimes subjects Indigenous people to stereotyped tests of Aboriginality when they seek to exercise legislated rights. These common law tests of Aboriginality tend to turn on troubling oppositional logics, such as whether or not the Indigenous person engages in waged labour or commercial activities. These tests arose in historic legislation and policy that were premised on social evolutionary theory and were directed at determining whether an Indigenous …
A Unified Theory Of 28 U.S.C. Section 1331 Jurisdiction, Lumen N. Mulligan
A Unified Theory Of 28 U.S.C. Section 1331 Jurisdiction, Lumen N. Mulligan
Faculty Works
Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court's section 1331 jurisprudence in terms of the contemporary judicial usage of right (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 …
The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg
The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg
West Virginia Law Review
No abstract provided.
Post-Realist Blues: Formalism, Instrumentalism, And The Hybrid Nature Of Common Law Jurisprudence, Marin Roger Scordato
Post-Realist Blues: Formalism, Instrumentalism, And The Hybrid Nature Of Common Law Jurisprudence, Marin Roger Scordato
Nevada Law Journal
No abstract provided.
A Constitutional Significance For Precedent: Originalism, Stare Decisis, And Property Rights, Polly J. Price
A Constitutional Significance For Precedent: Originalism, Stare Decisis, And Property Rights, Polly J. Price
Faculty Articles
The discussions in this Article proceed as follows. Part I briefly introduces several areas of contemporary debate for which this inquiry is relevant. In Part II, I examine previous scholarly evaluations of the doctrine of precedent in the formative period. I provide an alternative explanation for the adoption by American courts of rhetoric favoring stare decisis, one that links the rhetoric used by these courts with the predominant property discourse of the Founding period and with the Marshall Court’s subsequent emphasis on vested rights and the Contracts Clause. I suggest that the stare decisis property rule gained widespread acceptance as …
Aesthetic Judgment And Legal Justification, Guyora Binder
Aesthetic Judgment And Legal Justification, Guyora Binder
Journal Articles
Although criticized as illegitimate, literary elements are necessary features of legal argument. In a modern liberal state, law motivates compliance by justifying controversial prescriptions as products of an appropriate process for representing the will of society. Yet because law constructs the will of individual and collective actors in representing them, its representations are necessarily figurative rather than mimetic. In evaluating law's representation of society, citizens of the liberal state are also shaping their own ends. Such self-expressive choices, subjective but non-instrumental, entail aesthetic judgment. Thus the literary elements of rhetorical figuration and aesthetic appeal are fundamental, rather than merely ornamental, …
Rediscovering The Public Interest: An Analysis Of The Common Law Governing Post-Employment Non-Compete Contracts For Media Employees, Cathy Packer, Johanna Cleary
Rediscovering The Public Interest: An Analysis Of The Common Law Governing Post-Employment Non-Compete Contracts For Media Employees, Cathy Packer, Johanna Cleary
Cardozo Arts & Entertainment Law Journal
No abstract provided.
The Second Canonization Of The Talmud, Hanina Ben-Menahem
The Second Canonization Of The Talmud, Hanina Ben-Menahem
Cardozo Law Review
No abstract provided.
Article Five Of The Utc And The Future Of Creditors' Rights In Trusts, Robert T. Danforth
Article Five Of The Utc And The Future Of Creditors' Rights In Trusts, Robert T. Danforth
Cardozo Law Review
No abstract provided.
Perpetual Trusts, Conservation Servitudes, And The Problem Of The Future, Susan F. French
Perpetual Trusts, Conservation Servitudes, And The Problem Of The Future, Susan F. French
Cardozo Law Review
No abstract provided.
Common Law, Common Sense: Fiduciary Standards And Trustee Identity, Melanie B. Leslie
Common Law, Common Sense: Fiduciary Standards And Trustee Identity, Melanie B. Leslie
Cardozo Law Review
No abstract provided.
Negligent Infliction Of Emotional Distress: Recovery Is Foreseeable, 39 J. Marshall L. Rev. 1019 (2006), Jeffrey Hoskins
Negligent Infliction Of Emotional Distress: Recovery Is Foreseeable, 39 J. Marshall L. Rev. 1019 (2006), Jeffrey Hoskins
UIC Law Review
No abstract provided.
Surviving Common Law: Silence And The Violence Internal To The Legal Sign, Peter D. Rush
Surviving Common Law: Silence And The Violence Internal To The Legal Sign, Peter D. Rush
Cardozo Law Review
No abstract provided.