Jurisdiction Commons^™

Enemy Combatants And The Jurisdictional Fact Doctrine, David L. Franklin

Cardozo Law Review

No abstract provided.

Removing "The Cloak Of A Standing Inquiry": Pollution Regulation, Public Health, And Private Risk In The Injury-In-Fact Analysis, Robin Kundis Craig

Cardozo Law Review

No abstract provided.

More Stories Of Jurisdiction-Stripping And Executive Power: Interpreting The Prison Litigation Reform Act (Plra), Giovanna Shay, Johanna Kalb

Cardozo Law Review

No abstract provided.

The New Massachusetts Health Law: Preemption And Experimentation, Edward A. Zelinsky

Articles

The Employee Retirement Income Security Act of 1974 (ERISA) preempts major features of the new Massachusetts health law. Although regrettable, this conclusion is mandated by ERISA's statutory terminology and the controlling case law. Other states, in fashioning their health care policies, are looking at elements of the new Massachusetts law. Just as ERISA preempts the individual and business contribution mandates of the Massachusetts statute, ERISA will preempt any similar provisions adopted by other states.

Because state experimentation with health care is particularly desirable today, Congress should, at a minimum, amend ERISA to validate the new Massachusetts health law. More comprehensively, …

Legitimating Penal Law, Markus D. Dubber

Cardozo Law Review

No abstract provided.

Creating An Adolescent Criminal Class: Juvenile Court Jurisdiction Over Status Offenders, Soma R. Kedia

Cardozo Public Law, Policy & Ethics Journal

The article argues that status offenders, who commit non-criminal offenses such as truancy or running away, are unfairly treated similarly to juvenile delinquents in the court system. This treatment often leads to detention in the same facilities as delinquents, which can exacerbate behavioral issues and increase the likelihood of future criminal behavior. The author advocates for a distinct approach to handling status offenders, emphasizing the need for social services and alternative programs tailored to their specific needs rather than punitive measures.

Symposium: Fraud And Federalism: Overlapping Jurisdictions, Overlapping Crimes - Introduction

Cardozo Law Review

No abstract provided.

First Amendment Freedom Of Speech And Expression: Ninth Circuit Holds That California Penal Code Section 148.6 Violates The First Amendment In Chaker V. Crogan, Harvey Gee

Cardozo Public Law, Policy & Ethics Journal

The Ninth Circuit Court ruled that California Penal Code section 148.6, which criminalized knowingly filing false allegations of misconduct against peace officers, violated the First Amendment. The court determined that the law impermissibly targeted criticism of police officers, constituting a content-based restriction on speech, and thus was unconstitutional.

Selective Prosecution In Russia - Myth Or Reality?, Yelina Kvurt

Cardozo Journal of International and Comparative Law

The note examines the issue of selective prosecution, focusing on the case of Mikhail Khodorkovsky, and argues that the Russian legal system lacks an explicit defense against such practices, which violate constitutional guarantees of equality before the law. It advocates for the adoption of a legal standard to address selective prosecution, drawing parallels with the U.S. legal framework while acknowledging the need to adapt it to Russia's unique judicial context.

The Market-Participant Exception And The Dormant Foreign Commerce Clause, J. T. Hutchens

Cardozo Public Law, Policy & Ethics Journal

The note argues against extending the Market-Participant Exception to the Dormant Foreign Commerce Clause, asserting that such an extension would undermine the federal government's exclusive authority over foreign affairs and potentially disrupt national foreign policy. While the exception is well-established in interstate commerce, its application to foreign commerce raises unique concerns, including the risk of international retaliation and the erosion of the "one voice" principle in international relations. The author emphasizes that the constitutional separation of powers and the Supremacy Clause further support the necessity of federal primacy in foreign trade matters.

The Limits Of Bankruptcy Code Preemption: Debt Discharge And Voidable Preference Reconsidered In Light Of Sherwood Partners, Alan J. Feld

Cardozo Law Review

No abstract provided.

Maryland's "Wal-Mart" Act: Policy And Preemption, Edward A. Zelinsky

Cardozo Law Review

No abstract provided.

The Economic Value Of Securities Regulation, Frank B. Cross, Robert A. Prentice

Cardozo Law Review

No abstract provided.

The Demise Of Federal Takings Litigation, Stewart E. Sterk

Articles

For more than twenty years the Supreme Court has held that a federal takings claim is not ripe until the claimant seeks compensation in state court. The Court's recent opinion in San Remo Hotel, L.P. v. City & County of San Francisco establishes that the federal full faith and credit statute applies to federal takings claims. The Court itself recognized that its decision limits the availability of a federal forum for takings claims. In fact, however, claim preclusion doctrine-not considered or discussed by the Court-may result in more stringent limits on federal court review of takings claims than the Court's …

Justice & Foreign Affairs: Taking The European Neighbourhood Partner Countries To The European Court Of Justice, Lior Zemer, Sharon Pardo

Cardozo Journal of International and Comparative Law

The article argues that the European Union (EU) should extend the jurisdiction of the European Court of Justice (ECJ) to cover disputes arising from agreements with Neighborhood Partner Countries (NPC) under the European Neighbourhood Policy (ENP). This extension is essential for upholding the EU's constitutional principles, ensuring judicial review, and maintaining the coherence of EU external relations. The authors advocate for the ECJ as the most suitable judicial forum to address these disputes, emphasizing its role in reinforcing the EU's legal identity and capacity building.

United States' Moral Authority Undermined: The Foreign Affairs Costs Of Abusive Detentions, Jeffrey K. Cassin

Cardozo Public Law, Policy & Ethics Journal

The note argues that the United States' engagement in abusive detentions, notably at Guantanamo Bay and in cases like *Hamdi v. Rumsfeld* and Padilla, has severely eroded its moral authority on the global stage. These practices, including indefinite detentions and the denial of due process, contradict U.S. rhetoric on human rights, undermining its credibility and strategic influence. The Supreme Court's rulings in Rasul v. Bush and Hamdi v. Rumsfeld emphasize the necessity of judicial review, yet the U.S. continues to face criticism for hypocrisy, diminishing its ability to promote democracy and human rights internationally.

Perpetuities Or Taxes? Explaining The Rise Of The Perpetual Trust, Max M. Schanzenbach, Robert H. Sitkoff

Cardozo Law Review

By abolishing the Rule Against Perpetuities, twenty-one states have validated perpetual trusts. The prevailing view among scholars is that enactment of the generation skipping transfer (GST) tax in 1986 prompted the movement to abolish the Rule by conferring a salient tax advantage on long-term trusts. However, an alternate view holds that demand for perpetual trusts stems from donors' preference for control independent of tax considerations. Proponents of both views have adduced supporting anecdotal evidence. Using state-level panel data on trust assets prior to the adoption of the GST tax, we examine whether a state's abolition of the Rule gave the …

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.

Remarks, Henry T. King Jr.

Cardozo Law Review

No abstract provided.

"Never Again" Promise Broken Again. Again. And Again., Kelly Dawn Askin

Cardozo Law Review

No abstract provided.

History Turned "Sideways": Granholm V. Heald And The Twenty-First Amendment, Harris Danow

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Impact Of Feminine Leadership On State Courts: A Panel Of Women Chief Justices, Alan Florendo

Cardozo Journal of Equal Rights & Social Justice

The symposium report examines the impact of women in leadership roles on state courts, focusing on a panel discussion with four prominent female chief justices. It explores how their presence has influenced judicial decision-making and the potential for state courts to become champions of civil rights. While the panelists acknowledge the transformative potential of women on the judiciary, they also highlight challenges such as politicization and the need for greater emphasis on state constitutional law.

What Is Rehnquist Federalism?, Marci A. Hamilton

Articles

No abstract provided.

After El-Shifa: The Extraterritorial Availability Of The Takings Clause, Nathaniel Segal

Cardozo Journal of International and Comparative Law

The note examines the extraterritorial application of the Fifth Amendment's Takings Clause to foreign nationals, focusing on the case of El-Shifa Pharmaceutical Industries Co. v. U.S.. It argues that the Takings Clause should apply to alien-owned property abroad, emphasizing natural rights theory and the influence of John Locke on U.S. constitutional law. The analysis critiques the U.S. Court of Federal Claims' dismissal of Salah Idris's claim, which denied compensation for the destruction of his pharmaceutical plant in Sudan during a U.S. military strike. The author advocates for extending the clause's protections to foreign property owners, aligning U.S. law with …

Federalism's Fallacy: The Early Tradition Of Federal Family Law And The Invention Of States' Rights, Kristin A. Collins

Cardozo Law Review

No abstract provided.

Judicial Selection And Democratic Theory: Demand, Supply, And Life Tenure, Judith Resnik

Cardozo Law Review

How ought a democracy select its judges? Critics in Canada, England, and Wales invoke the democratic values of accountability and transparency to call for a diminution in prime ministerial control over judicial appointments. In the United States, Article III of the Constitution's text directs that the President nominate - with the advice and consent of the Senate - life-tenured federal judges. Bitter conflicts about particular nominees have produced many proposals for changes of that system. And in those states that rely on various forms of judicial election, concerns focus on funding and campaigning. In short, both globally and locally, democracies …

Alvarez-Machain Ii: The Supreme Court's Reliance On The Non-Self-Executing Declaration In The Senate Resolution Giving Advice And Consent To The International Covenant On Civil And Political Rights, Malvina Halberstam

Articles

No abstract provided.

Past And Present Proposed Amendments To The United States Constitution Regarding Marriage, Edward D. Stein

Articles

Proposals to amend the Constitution to prohibit same-sex marriage were recently actively discussed and voted on in the U.S. Congress. This Article situates arguments for these proposals within the history of attempts to amend the Constitution related to marriage by providing the first detailed, synthetic analysis of such previously proposed amendments. This examination reveals 133 previously proposed amendments to the Constitution relating to marriage, consisting primarily of proposals to prohibit interracial marriage, proposals to prohibit polygamy, and proposals to empower Congress to make uniform laws concerning marriage and divorce. By tracing the arguments made in support of these amendments, this …

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.

It's A Small World After All: Making The Case For The Extraterritorial Application Of The National Environmental Policy Act, Browne C. Lewis

Cardozo Law Review

No abstract provided.