Conflict of Laws Commons^™

A Choice Of Law Dilemma: The Conflict And Reconciliation Of Laws Governing Cross-Border Transfers Of Stolen Art, Monique Lee

Cardozo Public Law, Policy & Ethics Journal

The note explores the complexities of cross-border transfers of stolen art, focusing on the legal dilemmas posed by differing international property laws. It examines how courts decide which jurisdiction's laws to apply, particularly contrasting the traditional lex situs rule with the Second Restatement's "most significant relationship" test. The analysis highlights New York's unique "combined modern" approach, which balances these methods to align with its policy goals, especially its role as a global art market hub. The note concludes that while this approach offers flexibility, it may lead to forum shopping and inconsistencies, complicating recovery efforts for claimants.

Beyond Borders: Disassembling The State-Based Model Of Federal Forum Fairness, Jamelle C. Sharpe

Cardozo Law Review

No abstract provided.

The Flight To New York: An Empirical Study Of Choice Of Law And Choice Of Forum Clauses In Publicly-Held Companies' Contracts, Theodore Eisenberg, Geoffrey P. Miller

Cardozo Law Review

We study choice of law and choice of forum in a data set of 2,882 contracts contained as exhibits in Form 8-K filings by reporting corporations over as six month period in 2002 for twelve types of contracts and a seven month period in 2002 for merger contracts. These material contracts likely are carefully negotiated by sophisticated parties who are well-informed about the contract terms. They therefore provide evidence of efficient ex ante solutions to contracting problems. In prior work examining merger contracts, acquiring firms incorporated in Delaware tended to select Delaware law or a Delaware forum to govern disputes …

Letting "Privates" Be Private: Toward A Right Of Gender Selfdetermination, Samuel E. Bartos

Cardozo Journal of Equal Rights & Social Justice

The note examines the contradictory landscape of transgender jurisprudence, particularly focusing on the legal struggles of transgender individuals to achieve recognition of their gender identity. It highlights the Kansas Supreme Court's decision in In the Matter of the Estate of Marshall G. Gardiner, which denied legal recognition of a transgender individual's marriage, contrasted with more progressive rulings in other jurisdictions. The analysis underscores the need for a consistent and inclusive legal framework to address the rights of transgender individuals, emphasizing the potential for future Supreme Court intervention to establish uniform standards.

Mediation: The Common Sense Solution To Solving The Myriad Choice Of Law Issues In Complex Aviation Accident Cases, Michael J. Holland

Cardozo Journal of Conflict Resolution

Six minutes after Swissair First Officer Stefan Loew advised Canadian air traffic control authorities that Swissair Flight 111 had declared an emergency, that electric power had been lost and that the crew was attempting to prepare the cabin for an emergency landing by using flashlights, Swissair Flight 111, an MD-11 aircraft, plunged into the Atlantic Ocean some nine miles off the coast of Peggy's Cove, Nova Scotia, resulting in the death of 215 passengers and 14 crewmembers abroad the ill-fated flight.

Essay For The In-Print Symposium On The Myth Of Moral Justice, Stuart A. Scheingold

Cardozo Public Law, Policy & Ethics Journal

Stuart Scheingold responds to Thane Rosenbaum's The Myth of Moral Justice, agreeing with the aspiration to infuse law with moral imagination but critiquing Rosenbaum's oversight of existing moral energy within the legal profession, particularly through cause lawyering. Scheingold argues that Rosenbaum's approach is overly simplistic, failing to account for institutional obstacles and the contested nature of moral discourse, which can lead to conflict rather than harmony. He emphasizes that while moral advocacy, as seen in cause lawyering, can drive positive change, it also faces significant challenges and backlash.

Letter To Derrida/America, Anton Schütz

Cardozo Law Review

No abstract provided.

The Globalization Era And The Conflict Of Laws: What Europe Could Learn From The United States And Vice Versa, Milena Sterio

Cardozo Journal of International and Comparative Law

No abstract provided.

Engendering Sex: Birth Certificates, Biology And The Body In Anglo American Law, Saru Matambanadzo

Cardozo Journal of Equal Rights & Social Justice

The article critically examines the legal determination of sex, particularly for transgender individuals, arguing that current systems relying on rigid biological definitions fail to account for the complexity of gender identity. It advocates for a shift towards recognizing "lived gender," which integrates biology, culture, psychology, and social interactions to create a more inclusive and accurate legal framework. This approach challenges traditional legal and medical constructs that have historically marginalized transgender individuals and calls for legal reform to better reflect individual experiences and promote inclusivity.

Conceptualizing Yahoo! V. L.C.R.A.: Private Law, Constitutional Review, And International Conflict Of Laws, Ayelet Ben-Ezer, Ariel L. Bendor

Cardozo Law Review

No abstract provided.

Indemnity, Liability, Insolvency, David Gray Carlson

Cardozo Law Review

No abstract provided.

Adverse Selection And Moral Hazard In Forum Shopping: Conflicts Law As Spontaneous Order, Nita Ghei, Francesco Parisi

Cardozo Law Review

No abstract provided.

The Treaty Power And The Patent Clause: Are There Limits On The United States' Ability To Harmonize?, Timothy R. Holbrook

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Renvoi In Multinational Cases In New York Courts: Does Its Past Preclude Its Future?, Matthew Chait

Cardozo Journal of International and Comparative Law

The doctrine of renvoi, which requires courts to consider both the internal laws and conflict of laws rules of a foreign jurisdiction, has been a contentious issue in New York courts. While cases like In re Tallmadge rejected renvoi due to concerns of creating an endless cycle, In re Schneider embraced it, emphasizing the need to apply the whole law of the foreign jurisdiction. Modern approaches aim to integrate renvoi into interest analysis, focusing on practical applications to ascertain foreign interests accurately and promote reciprocity, while addressing concerns about sovereignty and forum shopping.

Industry Strategies For Intellectual Property And Trade: The Quest For Trips, And Post-Trips Strategies, Susan K. Sell

Cardozo Journal of International and Comparative Law

The article examines the origins, negotiation, and post-implementation strategies of the TRIPS Agreement, emphasizing the significant role of U.S. corporate interests in shaping this global intellectual property regime. It highlights how industries leveraged political and legal mechanisms to enforce TRIPS, while also addressing emerging challenges and opposition, particularly concerning public health and biotechnology.

When Is A Parent Not A Parent? On Doma, Civil Unions, And Presumptions Of Parenthood, Mark Strasser

Cardozo Law Review

No abstract provided.

The Symbiosis Of Constitutionalism And Technology, John O. Mcginnis

Articles

Technology does not change the essential problems that constitutionalism seeks to address because these problems are rooted in the enduring nature of man. Technological change, however, can transform man's environment. A different environment, in turn, may require substantially modified forms of constitutionalism even if the underlying objectives remain constant. As the great political philosopher Edmund Burke recognized, the key to sound structures of governance in every age and place is to understand the intersection of man's enduring nature with his particular circumstances. Because technology increasingly shapes the circumstances of modem man, technology is becoming progressively more important to constitutionalism.

Cooley Innocence Project Kick-Off, Barry Scheck

Articles

The Innocence Project, through the use of DNA testing, has successfully exonerated numerous wrongfully convicted individuals, exposing systemic flaws in the criminal justice system. This has highlighted the need for legal reforms to address issues such as eyewitness misidentification, false confessions, and fraudulent forensic science, ultimately aiming to prevent future wrongful convictions.

The Muddy Boundaries Between Res Judicata And Full Faith And Credit, Stewart E. Sterk

Articles

The Full Faith and Credit Clause of the U.S. Constitution requires states to respect and recognize the legal decisions of other states, but its application is limited when it comes to judgments that attempt to control future behavior or infringe on a state's sovereignty. The article argues that while the clause ensures finality and uniformity, it does not obligate states to enforce sister-state injunctions or orders that dictate conduct beyond their borders. This distinction is particularly evident in cases involving family law, where states retain flexibility to modify or ignore prior judgments based on evolving circumstances, such as the best …

Finding A Conflicts Issue In International Copyright Litigation: Did The Second Circuit Misinterpret The Berne Convention In Itar-Tass?, David E. Miller

Cardozo Journal of International and Comparative Law

The article critiques the U.S. Court of Appeals for the Second Circuit's decision in Itar-Tass Russian News Agency v. Russian Kurier, Inc., arguing that the court misinterpreted the Berne Convention by creating a conflicts issue where none existed. The court's novel approach of applying Russian law to determine copyright ownership and U.S. law for infringement contradicts the principle of national treatment, which traditionally requires the law of the forum country to govern both issues. This decision, based on weak legal reasoning, ignored historical context, scholarly consensus, and relevant precedents, potentially leading to complications in international copyright litigation.

Thirty-Day Restrictions On Attorney Direct-Mail Solicitation: The United States Supreme Court Went For It, Steven M. Field

Cardozo Law Review

No abstract provided.

Delegation And Democracy: A Reply To My Critics, David Schoenbrod

Cardozo Law Review

No abstract provided.

Copyright Without Borders? Choice Of Forum And Choice Of Law For Copyright Infringement In Cyberspace, Jane C. Ginsburg

Cardozo Arts & Entertainment Law Journal

No abstract provided.

National Laws And International Markets: Strategies Of Cooperation And Harmonization In The Enforcement Of Competition Law, Spencer Weber Waller

Cardozo Law Review

This Article contrasts how two leading competition law systems, the United States and the European Union ("EU"), have reacted to the growing internationalization of markets and the relative decline of the ability of any single jurisdiction to regulate transnational business behavior. For reasons unique to their respective histories, cultures, and politics, these two jurisdictions have adopted very different strategies for dealing with this problem.

Comment On Hans Baade’S The Gens De Couleur Of Louisiana: Comparative Slave Law In Microcosm, Morris S. Arnold

Cardozo Law Review

Hans Baade invented colonial Louisiana legal history. Before he started doing research in the eighteenth-century records in New Orleans and elsewhere, virtually no serious historical work involving the judicial and notarial archives of colonial Louisiana had ever been done. Professor Baade also undertook years ago to trace the various French and Spanish statutory enactments that bore on Louisiana legal history, and this proved to be a virtually impenetrable mare's nest. Before Professor Baade began his work, most of what had been written about Louisiana's colonial legal past was both amateurish and antiquated. It should therefore come as no surprise that …

¿Y Qué Paso? ("And Then What Happened?"): The Plight Of Cuban Detainees At Guantanamo Bay, David Gavilan

Cardozo Journal of International and Comparative Law

The note argues that Cuban detainees at Guantanamo Bay possess cognizable statutory and constitutional rights under U.S. law, particularly under the First and Fifth Amendments, and that legal organizations have a First Amendment right to access and consult with these detainees. It challenges the government's position that these rights do not apply extraterritorially, asserting that Guantanamo's unique legal status under U.S. jurisdiction necessitates the protection of these rights.

The Trips Agreement: Imperialistic, Outdated, And Overprotective, Marci A. Hamilton

Articles

According to Professor Hamilton, the TRIPS Agreement constructs international copyright law in the image of Western, Protestant-based capitalist copyright law. She suggests that the Agreement Imposes presuppositions about human value, effort, and reward that contain political, sociological, and legal ramifications. In fact, the Agreement, with its focus upon valuing individual human creative achievement, could spur further developments in Westernbased human rights in the rest of the world. By transplanting Western ideas to the rest of the world, TRIPS may actually encourage anti-authoritarian revolution.

She further suggests that the TRIPS Agreement seeks to establish a free market of intellectual property goods. …

Will The Copyright Office Be Obsolete In The Twenty-First Century?, Pamela Samuelson

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Role Of The Copyright Office In The Age Of Information, Eric Schwartz

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Marginal Relevance Of Choice Of Law Theory, Stewart E. Sterk

Articles

The article critiques the current state of choice of law theory, arguing that existing methodologies, such as interest analysis and territorial approaches, fail to provide a coherent framework for judicial decision-making. It contends that these theories are overly rigid and do not account for the practical, fact-driven nature of how judges make choices. The author proposes a new test based on expressive similarity to address the complexities of modern copyright disputes, aiming to distinguish between protected expression and unprotected ideas. This approach seeks to balance the protection of creative works with the need to prevent overprotection, which could streamline litigation …