Judges Commons^™

The Due Process Owed To Noncitizens: Standardizing The Burden In Sec. 1226(A) Bond Hearings With The Help Of Hernandez-Lara And Velasco Lopez, Sharon Shaji

Cardozo Law Review

No abstract provided.

The Unchosen: Procedural Fairness In Criminal Specialty Court Selection, Shanda K. Sibley

Cardozo Law Review

Specialized criminal courts were created in an effort to offer nonpunitive responses to the commission of crime. The promise of these courts was that they would remove select populations from the traditional legal system and offer them something different, and perhaps better, than mere punishment and incapacitation.

However, the current selection processes for specialized courts—in which judges and prosecutors have almost completely unfettered discretion to decide both the criteria by which potential participants will be allowed to participate and whether any individual defendant meets such criteria—perverts the notion of providing specialized services to specific populations. Instead of selecting defendants based …

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 …

Inherent Judicial Authority: A Study In Creative Ambiguity, Charles M. Yablon

Cardozo Law Review

No abstract provided.

The Iron Rule, Jacob Bronsther, Guha Krishnamurthi

Cardozo Law Review

No abstract provided.

A Bolt Of Lightning: Measuring The Impact Of Modern Transitions On The Supreme Court, Daniel Kiel

Cardozo Law Review

Lightning struck on September 18, 2020. In a year in which so many unimaginable events had unfolded and were unfolding, the death of Justice Ruth Bader Ginsburg sent shock waves not only through the nation’s legal community, but throughout the country. Ginsburg, a champion of women’s rights as both lawyer and Justice, the multi-time survivor of cancer, the Court’s tiny, surprising, and notorious rock star, passed away at a precarious moment. Aside from the existential challenge presented by the COVID-19 pandemic, the nation was 46 days from a presidential election. Given that the responsibility of nominating Supreme Court Justices fell …

Contra Publius: The House As Cure For The Complaisance And Venality Of The Senate, Sam Solomon

Cardozo Law Review

No abstract provided.

Supreme Court Appointments In Presidential Election Years: The Case Of John Hessin Clark, Jonathan L. Entin

Cardozo Law Review

No abstract provided.

Ruth Bader Ginsburg: An Appreciation, Jonathan L. Entin

Cardozo Law Review

Ruth Bader Ginsburg was a unique figure in American history: as Chief Justice Roberts put it, she was “a jurist of historic stature.”1 She was that, of course, but she was so much more. If she had never served on the Supreme Court, Ruth Bader Ginsburg would still have been a person of historic stature. She was a leading legal scholar who wrote major works about procedure, jurisdiction, comparative law, and constitutional law. And she was the architect of a litigation campaign that resulted in a series of Supreme Court rulings that fundamentally transformed the law of gender discrimination.

A Judge's Attempt At Sentencing Consistency After Booker: Judge Jack B. Weinstein's Guidelines For Sentencing, Carolin E. Guentert, Ryan H. Gerber

Cardozo Law Review

No abstract provided.

A Judge’S Attempt At Sentencing Inconsistency After Booker: Judge (Ret.) Mark W. Bennett’S Guidelines For Sentencing, Mark W. Bennett

Cardozo Law Review

No abstract provided.

Federal Criminal Risk Assessment, Brandon L. Garrett

Cardozo Law Review

No abstract provided.

Festschrift Introduction, Melanie B. Leslie

Cardozo Law Review

It is my pleasure and honor to introduce this published tribute to my esteemed and wonderful colleague, Arthur Jacobson. Arthur has been a member of the Cardozo faculty since 1977, and has had a great deal to do with establishing the Cardozo Law School faculty's reputation for producing serious and deeply intellectual scholarship. He has attracted great thinkers to our school and to our faculty, many of whom have contributed to this volume.

The Futility Of Futility: An Analysis Of The Charlie Gard Case Within The Framework Of U.S. Law, Elana Bengualid

Cardozo Law Review

No abstract provided.

The Local Rules Revolution In Criminal Discovery, Daniel S. Mcconkie

Cardozo Law Review

Over the last few decades, federal district court judges throughout the country have used local rules to greatly expand pretrial criminal disclosure obligations, especially for prosecutors. These local criminal discovery rules both incentivize prosecutors to act as ministers of justice and empower judges to manage prosecutorial disclosures. This quiet revolution is now well underway, and the time has come to amend the Federal Rules of Criminal Procedure to bring these innovations to all the districts.

Commentators have long recognized that neither Supreme Court precedent nor the Federal Rules effectively require prosecutors to provide the defense with enough discovery to properly …

The Core Case For Weak-Form Judicial Review, Rosalind Dixon

Cardozo Law Review

This Article contributes to debates over the democratic desirability of judicial review, by stating a quasi-general case for the desirability of judicial review that is "weak"-or broad but non-final-rather than "strong"-form in nature. Judicial review of this kind, the article argues, can help counter blockages in the legislative process-such as legislative "blind spots" and "burdens of inertia"-that can otherwise impair the enjoyment of individual rights even of a kind recognized by democratic majorities. This, the Article suggests, provides an important, if contingent, outcome-based case in favor of courts exercising powers of weak-form review. The case for weak judicial review of …

Shifting The Landscape On Access To Justice, Jonathan Lippman

Cardozo Law Review

The essay emphasizes the critical need to address the justice gap faced by the poor and vulnerable, advocating for proactive measures by the judiciary, legal profession, and academia. It highlights initiatives in New York, such as increased public funding, expanded pro bono efforts, and innovative programs, to ensure equal access to justice, potentially leading to a right to counsel in civil cases.

The Constitutionality Of Sec Administrative Proceedings: The Sec Should Cure Its Alj Appointment Scheme, Kaela Dahan

Cardozo Law Review

The note examines the constitutional challenges surrounding the Securities and Exchange Commission's (SEC) use of administrative law judges (ALJs), particularly under Section 929P of the Dodd-Frank Act. It argues that the SEC's ALJ appointment process violates the Appointments Clause, as current ALJs have not been properly appointed by SEC Commissioners. The note also highlights due process and Seventh Amendment concerns, as defendants in SEC administrative proceedings lack rights such as trial by jury and immediate appellate review. To maintain the integrity of its administrative processes, the SEC must adopt measures to ensure its ALJ appointments comply with constitutional requirements.

Maximinimalism, Jamal Greene

Cardozo Law Review

The article explores Chief Justice John Roberts' judicial approach, characterizing it as "maximinimalism"—a blend of narrow decision-making with deep, impactful reasoning. While Roberts is often seen as a minimalist for his emphasis on deciding cases narrowly, his rulings in significant cases like Citizens United v. FEC, Shelby County v. Holder, and NFIB v. Sebelius reveal a deeper, more substantive approach that challenges the law, thus embodying maximalist tendencies. This duality allows the Court to influence the law profoundly while maintaining judicial restraint.

A Tribute To Eva Hanks, Matthew Diller

Cardozo Law Review

No abstract provided.

The Way The Court Gauges Consensus (And How To Do It Better), Robert J. Smith, Bidish J. Sarma, Sophie Cull

Cardozo Law Review

The Supreme Court gauges whether a national consensus against a punishment exists by reference to a number of objective indicators. Despite its reliance on these external indicators, scholars have characterized the Court's consensus analysis as little more than a crude charade performed by outcome-oriented Justices. The consensus analysis does lack both transparency and a stable infrastructure, but as this Article demonstrates, commentators are too quick to overlook the possibility that a stable and tightly theorized framework could equip the Court to gauge societal consensus and reduce the perception that the analysis is outcome-driven.

When it comes to consensus analysis, the …

The Conflict Between Stare Decisis And Overruling In Constitutional Adjudication, Steven J. Burton

Cardozo Law Review

No abstract provided.

Presumed Imminence: Judicial Risk Assessment In The Post-9/11 World, Avidan Y. Cover

Cardozo Law Review

Court opinions in the terrorism context are often distinguished by fact-finding that relates to risk assessment. These risk assessments - inherently policy decisions - are influenced by cultural cognition and by cognitive errors common to probability determinations, particularly those made regarding highly dangerous and emotional events. In a post-9/11 world, in which prevention and intelligence are prioritized over prosecution, courts are more likely to overstate the potential harm, neglect the probability, and presume the imminence of terrorist attacks. As a result, courts are apt to defer to the government and require less evidence in support of measures that curtail civil …

Mock Trials And Real Justices And Judges, Richard A. Posner

Cardozo Law Review

No abstract provided.

On Michel Rosenfeld's The Identity Of The Constitutional Subject, Seyla Benhabib

Cardozo Law Review

No abstract provided.

The Judge And Extrajudicial Conduct: Challenges, Lessons Learned, And A Proposed Framework For Assessing The Propriety Of Pursuing Activities Beyond The Bench, Jonathan Lippman

Cardozo Law Review

No abstract provided.

Paul Verkuil As Institution Builder: The Cardozo Story, Matthew Diller

Cardozo Law Review

No abstract provided.

On The Difficulties Of Generalization - Pcaob In The Footsteps Of Myers, Humphrey's Executor, Morrison, And Freytag, Peter L. Strauss

Cardozo Law Review

No abstract provided.

Agency Independence After Pcaob, Kevin M. Stack

Cardozo Law Review

No abstract provided.

Smith In Theory And Practice, Nelson Tebbe

Cardozo Law Review

Employment Division v. Smith controversially held that general laws that were neutral toward religion would no longer be presumptively invalid, regardless of how much they incidentally burdened religious practices. That decision sparked a debate that continues today, twenty years later. This symposium Essay explores the argument that subsequent courts have in fact been less constrained by the principal rule of Smith than advocates on both sides of the controversy usually assume. Lower courts administering real world disputes often find they have all the room they need to grant relief from general laws, given exceptions written into the decision itself and …