Contracts Commons^™

And A Second Opinion For All... And Anything Else? The Jack Eichel Saga And Issues Of Medical Autonomy, Seth Warshaw

Cardozo Arts & Entertainment Law Journal

The note examines the legal and bioethical implications of the Jack Eichel Saga, focusing on the dispute between Eichel and the Buffalo Sabres regarding medical treatment under the NHL Collective Bargaining Agreement (CBA). It argues that the current CBA's "due consideration" standard for team physicians fails to adequately protect players' medical autonomy and informed consent rights. The analysis concludes that the Sabres would likely prevail in arbitration due to the narrow interpretation of the CBA's provisions, but the dispute highlights the need for reforms to align the CBA with ethical medical standards and enhance player autonomy.

Among Us: Impostor Syndrome And Barriers To Black Success, Deshayla M. Strachan

Cardozo Journal of Equal Rights & Social Justice

Black women are going places-but they're not going into the practice of law. While law schools are becoming more diverse, the legal profession is not. The lack of diversity in the legal profession, coupled with existing implicit bias, causes heightened Impostor Syndrome in women, especially Black women, as well as women from other underrepresented groups. The harder the impostor feelings hit, the more difficult it is to retain women of color in the legal profession. Emotions associated with Impostor Syndrome (e.g., feelings of insufficiency) begin upon entry into the legal profession, as many roadblocks prevent marginalized groups from gaining admission …

The End Of Forced Arbitration Of Sexual Violence And The Uncertain Future, Heidi M. S. Sandomir

Cardozo Journal of Equal Rights & Social Justice

The note argues that forced arbitration clauses in employment contracts systematically deny justice to survivors of workplace sexual violence by shielding employers from accountability and limiting legal recourse. While the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) represents a step forward by invalidating predispute arbitration agreements for sexual assault and harassment claims, it falls short of fully addressing the issue due to gaps in retroactive application, inconsistent court interpretations, and lack of alignment with Title VII. The note calls for broader legislative reforms to eliminate forced arbitration in all discrimination cases and ensure survivors' access to …

Amicus Curiae Brief Of The Hon. Judith Fitzgerald (Bankruptcy Judge, Ret.), And Law Professors Pamela Foohey, George Kuney, Robert Lawless, Jonathan Lipson, Bruce A. Markell, Nancy Rapoport, Richard Squire, Ray Warner And Jack Williams, In Support Of The Petitioner, Pamela Foohey

Amicus Briefs

Your amici have taught courses on bankruptcy and commercial law, conducted research, and have been frequent speakers and lecturers at seminars and conferences throughout the United States. Each is highly regarded in this field, and each has made substantial contributions to bankruptcy scholarship and jurisprudence.

The question presented to this Court is as follows: “Whether Bankruptcy Code Section 363(m) limits the appellate court’s jurisdiction over any sale order or order deemed integral to a sale order. . . .” (emphasis added). Pet. i. The answer is that § 363(m) does not limit appellate review of the transaction involved in this …

Law In, Law Out: Legalistic Filter Bubbles And The Algorithmic Prevention Of Nonconsensual Pornography, Daniel Maggen

Cardozo Law Review

In 2019, Facebook announced that it had begun using machine-learning algorithms to preemptively screen uploads for nonconsensual pornography. Although the use of screening algorithms has become commonplace, this seemingly minor move from reactive to preemptive legal analysis–based prevention—this Article argues—is part of a groundbreaking shift in the meaning and effect of algorithmic screening, with potentially far-reaching implications for legal discourse and development.

To flush out the meaning of this shift, the Article draws on the filter bubble theory. Thus far, the phenomenon of filter bubbles has been synonymous with personalized filtering and the social polarization and radicalization it is prone …

Sex Work Is Real Work: The Implications Of U.S. Strippers Winning The Right To Unionize, An International Comparative Study, Katherine Fustich

Cardozo International & Comparative Law Review

The note examines the landmark NLRB decision in *Nolan Enterprises*, which granted U.S. strippers the right to unionize by classifying them as employees rather than independent contractors. This ruling has significant implications for labor rights in the sex work industry, both domestically and internationally. The analysis compares this development with international perspectives from the UK, Germany, and the Netherlands, highlighting the challenges and opportunities for sex worker unionization and the broader implications for labor movements globally.

Is Bitcoin Prudent? Is Art Diversified? Offering Alternative Investments To 401(K) Participants, Edward A. Zelinsky

Articles

Whether 401(k) plans’ investment menus should feature “alternative” investments is a fact-driven inquiry applying ERISA’s fiduciary standards of prudence, loyalty, and diversification. Central to this fact-driven inquiry is whether the alternative investment class in question is broadly accepted by investors in general and by professional defined benefit trustees in particular. A similarly salient concern when making this inquiry is the financial unsophistication of many, perhaps most, 401(k) participants. Accounting for these considerations, this Article concludes that REITs, private equity funds, and hedge funds can, with limits, today be offered as investment choices to 401(k) participants, but that cryptocurrencies (including Bitcoin), …

The Criminal Legal System Doesn’T Care About Your Mental Illness, Fredrick E. Vars

Cardozo Law Review de•novo

Why would a beloved small-town doctor with no history of violence suddenly strangle his father to death? The Other Dr. Gilmer is a gripping account of the search for an answer to this question. It turns out the doctor has a rare neurological disorder that likely caused the killing. If only the diagnosis had come before trial, the author believes, the doctor would not have been convicted of first-degree murder and sentenced to life without parole. That belief is appealing, but naïve. Jails and prisons are full of people with mental illness. Misdiagnosis is not the reason. A close examination …

Opening Remarks, Christopher J. Buccafusco, Matthew Vernace

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Striking The Balance Between Contractual Rights And Obligations: Restructured Contract Law In The Newly Enacted Chinese Civil Code, Mo Zhang

Cardozo International & Comparative Law Review

Contract legislation in China experienced a significant change as a result of the Civil Code's enactment in 2020. With a focus on civil rights and private interests, contract law and other areas of law are expected to help promote the development of a rights-based society under the Civil Code-a much wanted shift from the traditionally obligation-based society. In this context, the Civil Code is hailed in China as a milestone in the country's legal landscape.

The Civil Code consolidated the 1999 Contract Law with judicial practices and restructured the legal framework governing contracts by modifying or adding provisions aimed at …

Assumption Of Risk In Consumer Contracts And The Distraction Of Unconscionability, Zahra Takhshid

Cardozo Law Review

For years, courts have struggled to determine when to enforce exculpatory clauses that would prevent personal injury victims from availing themselves of tort remedies under the doctrine of express assumption of risk. In the past, when courts declined to enforce these clauses, they did so on the ground that enforcing such a waiver for the activities in question was “against public policy.” Recently, however, many courts have addressed the issue through the contract doctrine of “unconscionability.” This change in focus has subtly but importantly altered the enforceability inquiry by emphasizing the conditions under which the plaintiff agreed to the contract, …

The Mysterious Market For Post-Settlement Litigant Finance, Ronen Avraham, Lynn A. Baker, Anthony J. Sebok

Articles

Litigant finance is a growing and increasingly controversial industry in which financial firms advance a plaintiff money in exchange for ownership rights in the proceeds of the legal claim on a nonrecourse basis: A plaintiff must repay the advance only if compensation is ultimately received for the legal claim. The nonrecourse nature of this funding exempts it from most states’ consumer credit laws, enabling funders to charge higher interest and fees than would otherwise be permitted. When this funding involves ordinary consumers, critics of the industry contend that the uncapped interest rates exploit vulnerable litigants, while its defenders argue that …

Contractual Protections Against The Resource Nationalism Cycle In Zambia, Sangwani Patrick Ng'ambi

Cardozo International & Comparative Law Review

Foreign direct investment (FDI) in resource rich nations is typically fostered through concession or development agreements, which enable investors to explore and exploit the host State's natural resources. Under these agreements various incentives are offered to the investor by the host State, so as to attract their capital. However, once the investment is sunk, the investor becomes susceptible to the resource nationalism cycle. Investors are particularly vulnerable when the natural resource experiences a sustained upward trend. In such instances, the host State seeks to maximize the benefits accruingfrom the natural resource. This can either be accomplished through reversing the tax …

The Mdl Revolution And Consumer Legal Funding, Ronen Avraham, Lynn A. Baker, Anthony J. Sebok

Articles

Third-party consumer legal funding, where financial companies advance money on a nonrecourse basis to assist individual plaintiffs with living expenses, is an increasingly popular and controversial part of American litigation. And consumers with mass tort claims pending in Multi-District Litigations (MDLs) constitute the fastest growing sector of those seeking assistance from this billion-dollar funding industry. Policy makers, mass tort plaintiffs' lawyers, and scholars have increasingly raised concerns about exorbitant interest rates and have called for regulations to protect vulnerable consumers from “predatory lending.” To date, however, the policy debate has largely relied on anecdotes and speculation because flinders have not …

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 …

W(H)Ither Judgment, Elias Leake Quinn

Cardozo Law Review de•novo

Textualists complain that loose rules of statutory interpretation inject uncertainty and inconsistency into judicial resolutions of statutory ambiguity. But by employing an incomplete theory of meaning, pure textualists fail to shore up their decisions. And by disparaging the judgement necessary to navigate complex questions of meaning, they erode trust in the judicial process—the very foundation of the rule of law.

Applying Mediation To The Complexities Of Surrogacy Agreements, Aude-Mazarine Lestienne

Cardozo Journal of Conflict Resolution

In the late part of the twentieth century, assisted reproductive technologies ("ART") offered new hope to individuals who were infertile, could not carry a pregnancy, or whose attempts to form non-biological families were rejected. At the same time, advances in ART transformed and strained the traditional notions of family, as well as the legal concepts surrounding it. If utilized for the negotiation of the terms of surrogacy agreements, mediation could provide a creative alternative to time-worn legalistic approaches to solving the problems raised by these complex new family dynamics.

Opening Remarks, Anna Antonova, Michael Burstein

Cardozo Arts & Entertainment Law Journal

The article celebrates the 75th anniversary of the Lanham Act, reflecting on its enduring influence on trademark law while addressing its evolution in response to new legal and technological challenges. It highlights the symposium's exploration of the Act's history, its adaptation to modern issues such as internet-related disputes and First Amendment concerns, and its continued relevance in shaping intellectual property law. The piece also underscores the role of the Cardozo Arts & Entertainment Law Journal as a leading platform for scholarly discourse in intellectual property and related fields.

Fulfilling The Right To Follow: Using Blockchain To Enforce The Artist's Resale Right, Zhao Zhao

Cardozo Arts & Entertainment Law Journal

Visual artists in countries that do not recognize the artist's resale right are at an economic disadvantage, while some countries that recognize the right experience practical difficulties in identifying and tracking resales that are subject to royalty payments for artists. As blockchain technology becomes increasingly applied to the creative industries, the full extent of its potential in enforcing droit de suite by improving the traceability of physical artwork has yet to be realized. Blockchain can be an effective mechanism for enforcing the artist's resale right as an alternative to collective management organizations. Through an analysis of the ability of blockchain …

As Long As You Love Me: The Effects Of Enforcing Prenuptial Agreements On Intimate Partner Violence, Annie L. Zagha

Cardozo Journal of Conflict Resolution

Marriage is a sacrament. Marriage is the life-long commitment of one person to another. Marriage is a safely guarded right, a constitutional protection that has been continually reaffirmed to protect the inviolability of unions. But what happens when a marriage fails to live up to its idealized and fantastical notion and begins to develop into a primary source of mental, physical, and emotional pain for an individual? What takes place when marriage is being used as a shield for coercive-and potentially lethal behavior?

The Ordinary Authors Of The Bureau Of New Plays: Copyright And Reallocating Authority In The American Theatre (1936-1949), Brent Salter

Cardozo Arts & Entertainment Law Journal

This Article examines the brief history of the Bureau of New Plays, a nonprofit enterprise funded in 1936 by seven major Hollywood film studios and administered by the Theatre Guild's Theresa Helburn, to identify and develop talented young American playwrights. A study of the Bureau of New Plays provides a window into the authority that playwrights, and particularly younger writers, exercised over the work they created. In one respect, the establishment of the Bureau of New Plays complemented American copyright's general trajectory toward the expansion of the rights of the individual author, and in the context of the theatre the …

An Estate Plan For Kanye West, Thomas E. Simmons

Cardozo Arts & Entertainment Law Journal

One inventory item in megastar Kanye West's vast portfolio of assets merits a unique sort of care and safeguarding his right ofpublicity. The right ofpublicity is a property interest which represents the commercial value of a celebrity's name, image, and likeness. In some states, including California, the right survives the celebrity's death and is freely alienable and devisable. A protective arrangement, such as a trust, is often pursued to impose postmortem use and transferability restrictions on property that has particular importance to the testator. This Article proposes a noncharitable purpose trust as a means by which Kanye West's right of …

The Secrets Behind Reality Television Shows And Their Unconscionable Contracts, Stephanie Rimberg

Cardozo Arts & Entertainment Law Journal

The note argues that reality television show contracts are often unconscionable due to the significant imbalance of power between producers and participants. These contracts frequently classify participants as independent contractors, despite their integral role in the show, and include provisions that are procedurally and substantively unfair, such as disclaimers of liability and arbitration clauses. The author contends that these contracts violate California contract law and public policy, advocating for participants to be reclassified as employees and for contracts to be amended to protect their rights.

Accommodating Legal Ignorance, Stewart E. Sterk

Cardozo Law Review

No abstract provided.

Unwaivable: Public Enforcement Claims And Mandatory Arbitration, Myriam E. Gilles, Gary Friedman

Articles

This essay, written for a conference on the “pathways and hurdles” that lie ahead in consumer litigation, is the first to examine the implications of California’s recent jurisprudence holding public enforcement claims unwaivable in standard-form contracts of adhesion, and the inevitable clash with the U.S. Supreme Court’s decisional law interpreting the Federal Arbitration Act. With its rich history of rebuffing efforts to deprive citizens of public rights through private contract, California provides an ideal laboratory for exploring this escalating conflict.

Claim Preclusion And The Problem Of Fictional Consent, Lindsey D. Simon

Cardozo Law Review

No abstract provided.

Contracting Away Your Career: An Interstate Comparison Of Noncompete Law And A Proposal For Optimal Legislation In New York, Matthew Rametta

Cardozo Law Review

No abstract provided.

The Efficacy Of Choice-Of-Law And Forum Selection Provisions In Third-Party Litigation Funding Contracts, Robert Glenn

Cardozo Law Review

No abstract provided.

When A Picture Is Not Worth A Thousand Words: Why Emojis Should Not Satisfy The Statute Of Frauds' Writing Requirement, Moshe Berliner

Cardozo Law Review

No abstract provided.

The History Of A Mystery: The Evolution Of The Law Of Unjust Enrichment In Germany, England And China, Steve Gallagher, Lin Siyi, Lutz-Christian Wolff

Cardozo International & Comparative Law Review

The law of unjust enrichment, despite being recognized in all modern jurisdictions, remains controversial due to its complexities. This article examines the historical development of unjust enrichment in Germany, England, and China, arguing that the concept's simplicity and academic influence are root causes of ongoing doctrinal and practical challenges. The analysis critiques the single principle approach—whereby any unjustified enrichment must be returned—highlighting its failure to address diverse scenarios effectively. The article concludes that this flawed foundational concept, compounded by academic ambitions, has led to persistent issues across all three jurisdictions.