Common Law Commons^™

The Future Of Property, Yael R. Lifshitz, Maytal Gilboa, Yotam Kaplan

Cardozo Law Review

Property law focuses predominantly on spatial conflicts of interest between neighbors but neglects temporal conflicts between generations. This lack of attention to the temporal dimension leads to a troubling mismatch in property law: while property rights last forever, the corresponding duties that require property holders to respect the interests of others are remarkably short lived. The result is that property law currently does not adequately protect the rights of future generations. In this Article, we offer a blueprint for correcting this anomaly. We advocate a change in the current conception of property and propose that property law focus more on …

Reparations For A Public Nuisance? The Effort To Compensate Survivors, Victims, And Descendants Of The Tulsa Race Massacre One Hundred Years Later, Adam Coretz

Cardozo Law Review

No abstract provided.

State Constitutional General Welfare Doctrine, Gerald S. Dickinson

Cardozo Law Review

It is black-letter law that the U.S. Supreme Court's takings doctrine presupposes exercises of eminent domain are in pursuit of valid public uses that require just compensation. But, neither federal doctrine nor the text of the Takings Clause offers any additional constraints. The story of the Supreme Court's takings jurisprudence is, in other words, incomplete and deserves reexamination. However, the usual protagonists, such as the Supreme Court or federal courts, are not central 'to this Article's reexamination. Instead, this Article's narrative is federalism, its characters are state courts, and its script is state constitutions.

In the post-Kelo v. New London …

How Subterranean Regulation Hinders Innovation In Assisted Reproductive Technology, Myrisha S. Lewis

Cardozo Law Review

Most scholars believe assisted reproductive technology is subject only to minimal regulation, especially by the federal government. This belief I contend, is wrong. In this Article, I examine agency documents, statements by officials, and letters that the U.S. Food and Drug Administration (FDA) has sent to physicians and researchers over the past fifteen years to reveal an overlooked regulatory program. The FDA has been targeting new forms of assisted reproductive technology that involve small genetic modifications (advanced assisted reproductive technologies or AARTs) through regulatory actions that receive little public, media, or scholarly attention. I term this method of regulation "subterranean …

The Uniform Trust Code And The Common Law: An Analysis Of Three Sections Of The Code That Deviate From The Common Law And Why The Drafters Changed The Law, Christina Bogdanski

Cardozo Law Review

No abstract provided.

How Wartime Detention Ends, Deborah N. Pearlstein

Cardozo Law Review

No abstract provided.

A Theory Of Local Common Law, Annie Decker

Cardozo Law Review

No abstract provided.

Criminal Forfeiture And The Sixth Amendment: The Role Of The Jury At Common Law, Richard E. Finneran, Steven K. Luther

Cardozo Law Review

Throughout its recent jurisprudence after Apprendi v. New Jersey, the Supreme Court has emphasized that its analysis of the Sixth Amendment jury trial right centers upon the historical role of the jury at common law. Just last year, in Southern Union Co. v. United States, the Court extended the Sixth Amendment jury trial right to criminal fines after concluding that the jury's verdict determined the maximum fine that could be imposed at common law. The Court remained silent, however, with regard to another financial penalty commonly applied in the federal system: criminal forfeitures. Given that the Supreme Court …

Constitutionalism Ancient And Early Modern: The Contributions Of Roman Law, Canon Law, And English Common Law, Janelle Greenberg, Michael J. Sechler

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.

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.

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

Cardozo Law Review

No abstract provided.

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

Cardozo Law Review

No abstract provided.

Surviving Common Law: Silence And The Violence Internal To The Legal Sign, Peter D. Rush

Cardozo Law Review

No abstract provided.

Why Do Plaintiffs Sue Private Parties Under Section 1983?, Jack M. Beermann

Cardozo Law Review

No abstract provided.

Reading The Fossil Record: A New Look At Old Law, Elliot Gardner

Cardozo Law Review

No abstract provided.

State Doctrines Of Substantial Compliance: A Call For Erisa Preemption And Uniform Federal Common Law Doctrine, Meridith H. Bogart

Cardozo Law Review

No abstract provided.

Light, Less-Filling, It's Blue-Ribbon!, Stephen F. Ross

Cardozo Law Review

No abstract provided.

Writs To Rights: "Navigability" And The Transformation Of The Common Law In The Nineteenth Century, Daniel J. Hulsebosch

Cardozo Law Review

This Article argues that nationalist jurists in the early nineteenth century attempted to replace the dominant procedural conception of the common law with a substantive one. Their purpose was to ameliorate the effects of legal federalism. They hoped that the creation of a national body of private law in treatises and judicial reports would encourage legal uniformity among the states. The reorientation of waterway law around the keyword "navigability" offers one example. As this example demonstrates, the project of forging a national jurisprudence was not entirely successful. But it did, indirectly, generate a way for the Supreme Court to extend …

Do Judges Deploy Policy?, Mitchel De S.-O.-L'E. Lasser

Cardozo Law Review

No abstract provided.

Business Partners As Fiduciaries: Reflections On The Limits Of Doctrine, Robert W. Hillman

Cardozo Law Review

No abstract provided.

The Board Of Directors And Internal Control, Melvin A. Eisenberg

Cardozo Law Review

No abstract provided.

Back To The Parent: Holding Company Liability For Subsidiary Banks - A Discussion Of The Net Worth Maintenance Agreement, The Source Of Stength Doctrine, And The Prompt Corrective Action Provision, Cassandra Jones Havard

Cardozo Law Review

The unprecedented number of bank failures in the past several years has spawned a crisis in the industry and fueled an extensive debate about how federal regulators can effectively make banks more responsible for guaranteeing the soundness of their operations. For the federal regulators most involved-the Federal Deposit Insurance Corporation ("FDIC"), Office of Thrift Supervision ("OTS"), and the Federal Reserve Board ("FRB") -Congress is directing the effort to enhance the banks' guarantees of self-policing. Congress's basic response to the crisis has been to heighten the minimum capital levels the banks must maintain to avoid direct corrective intervention by the federal …

Benjamin Nathan Cardozo The Teacher, Joseph W. Bellacosa

Cardozo Law Review

The forty-seventh Cardozo Memorial Lecture, delivered in memory of Benjamin N. Cardozo at the House of the Association on November 9, 1994.

Critiquing The Legal Order In The Name Of “Critical Morality”, Julius Cohen

Cardozo Law Review

The moral criticism of the legal order has been a longtime sport (serious), if not an industry, for law teachers, theorists, judges, and other legal functionaries. In the process, they often reach for criteria beyond those utilized in conventional morality. Sometimes the reach "beyond" is ad hoc; sometimes it is accompanied by an awareness that it is toward a pattern of a higher-level, critical morality. The reach beyond is often triggered by a need to resolve conflicts within conventional morality. Or it is a function of the distrust of some of the sources of conventional morality, such as prejudice, unrefined …

German Constitutional Culture In Transition, Bernhard Schlink

Cardozo Law Review

No abstract provided.

A Philosophical Reconstruction Of Judicial Review, Carlos Santiago Nino

Cardozo Law Review

No abstract provided.

The Court’S Role In Interbranch Disputes Over Oversight Of Agency Rulemaking, John J. Gibbons

Cardozo Law Review

This paper is adapted from the Uri and Caroline Bauer Memorial Lecture delivered at the Benjamin N. Cardozo School of Law, Yeshiva University, on March 10, 1992.