Jurisprudence Commons^™

Between Cooperation And Conflict In Second Look Sentence Review, Kay L. Levine, Ronald F. Wright

Cardozo Journal of Conflict Resolution

No abstract provided.

Real Mediation Systems To Help Parties And Mediators Achieve Their Goals, John Lande

Cardozo Journal of Conflict Resolution

No abstract provided.

Beyond Problem-Solving Courts, Erin R. Collins

Cardozo Journal of Conflict Resolution

Problem-solving courts were borne out of well-meaning experimentalist spirit, a spirit that is very much in line with the vision of this Symposium on the multi-door criminal courthouse. These courts, which include drug courts, mental health courts, veterans' courts, and many other specialized criminal courts, were created as a way to close one door to the criminal courthouse-the so-called "revolving door" that appeared to bring some people accused of crimes back into court as soon as they exited. Problem-solving court judges sought to open a different door for some of those who entered their courtrooms, a door that they hoped …

Protecting Ravenstail: Cultural Appropriation And The Outer Limits Of Copyright Law, Nosson Sternbach

Cardozo Arts & Entertainment Law Journal

The note examines the challenges minority cultures, particularly indigenous communities, face in protecting their cultural heritage through copyright law, focusing on the Sealaska Heritage Institute Inc. v. Neiman Marcus Group LTD, LLC case. It argues that copyright law's requirements—such as fixation, originality, authorship, and duration—create significant barriers for indigenous cultures seeking to safeguard their intellectual property. The note also critiques the Indian Arts and Crafts Act (IACA) for its inefficacy in preventing cultural appropriation, as it requires plaintiffs to prove specific harms and often fails to address the misuse of cultural motifs without explicit tribal names. The Sealaska case highlights …

Re-Striping: Predatory Trademarks And Common Signs, Lior Zemer, Or Morag, Yochai Rosner

Cardozo Arts & Entertainment Law Journal

Trademark laws were traditionally designed based on the belief that there was an infinite supply of eligible registrable signs. However, current studies show that trademark supply is finite, and that we are close to exhausting it. While trademark protection allows proprietors to distinguish between their goods or services from others, and allowing the public to do the same, the extent of such protection requires constant legal attention and reconsideration which, as contemporary trademark policies show, does not take place in the expected frequency.

One of the immediate consequences from this lack of attention is the rapid growth in strength of …

Carrie Menkel-Meadow: Dispute Resolution In A Feminist Voice, Andrea K. Schneider

Articles

The presence of women in the law has changed the law’s substance, practice, and process. Carrie Menkel-Meadow, whose scholarship centers on this theme, is one such revolutionary woman.

Professor Menkel-Meadow, who I am proud to call my colleague, co-author, and friend (hereinafter referred to as Carrie), began her career in 1977 with a series of simple questions that sparked a breathtaking body of work. Carrie probed the depth of male domination in the realm of law and wondered what changes female representation might engender. In particular, she focused her inquiry on the value orientation each respective gender might bring to …

A Second Look For Children Sentenced To Die In Prison, Kathryn E. Miller

Articles

Scholars have championed “second look” statutes as a decarceral tool. Second look statutes allow certain incarcerated people to seek resentencing after having served a portion of their sentences. This Essay weighs the advantages and disadvantages of these statutes as applied to children sentenced to die in prison and argues that focusing on this small, discrete group may be a digestible entry point for more conservative states who fear widespread resentencing. Moreover, because early data indicates that children convicted of homicide and released as adults have very low recidivism rates, second look beneficiaries are likely to pose little threat to public …

Love In The Time Of Covid, Jeanne L. Schroeder

Articles

A striking aspect of the current American cultural divide is divergent attitudes towards expertise, generally, and masking and vaccination to mitigate the Covid-19 pandemic, specifically. Liberal pundits profess shock that Red State America won’t just ‘trust the science’. On the right, politicians and television personalities reject mandates in the name of ‘freedom’.

Lacanian discourse theory gives insight into this. The rejection of expertise is an example of an ‘hysteric discourse’ challenging a ‘university discourse’: the regime of experts. An hysteric discourse is a critique of rules imposed by experts by the subjects-subjected-to them. Hysteria can lead, in turn, to a …

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.

Getting To Phi: The Case For Excusatory Derogations From Iccpr Rights, Benjamen F. Gussen

Cardozo International & Comparative Law Review

This Article highlights the need for excusatory derogations from human rights. Currently, there is exclusive reliance on justification when upholding derogations from International Covenant on Civil and Political Rights ("ICCPR ) rights. In contrast, an excusatory derogation accentuates the requisite international policy intervention to assist national and subnational governments toward a proportional response to public emergencies. The right to mobility under the ICCPR, and its renditions in the constitutions of Australia and Canada, are used to illustrate this proposition. Border closures in response to the coronavirus pandemic provide context to elucidate how different types of public emergencies dictate different approaches …

The Roberts Court's Transformative Religious Freedom Cases: The Doctrine And The Politics Of Grievance, Stephen M. Feldman

Cardozo Journal of Equal Rights & Social Justice

The article argues that the Roberts Court has adopted a conservative approach in religious freedom cases, shifting toward a jurisprudence that favors Christianity and undermines the separation of church and state. This approach, rooted in tradition and a de facto Christian America, has led to significant changes in both Establishment Clause and Free Exercise Clause doctrines. The Court's decisions increasingly protect Christian practices and institutions while marginalizing non-Christian religions, reflecting a broader ideological shift toward judicial engagement and away from principles of federalism and judicial restraint.

Textualism, Dynamism, And The Meaning Of "Sex", Bill Watson

Cardozo Law Review de•novo

A recent Article by Professors William N. Eskridge, Brian G. Slocum, and Stefan Th. Gries critically examines textualism, both in general and as applied in Bostock v. Clayton County. This Essay makes three points in reply. First, the authors criticize strawman versions of textualism that no mainstream legal interpreter claims to hold. Second, the authors’ examples of “societal dynamism” do not put any pressure on textualism properly understood. And third, the authors’ corpus-linguistics analysis of the word “sex” is, from a textualist perspective, irrelevant to the issue in Bostock.

Panel 2: Modern Trends And Internet Speech, Enrique Armijo, Paul M. Barrett, Michael A. Cheah, Zahra Takhshid, Felix Wu

Cardozo Arts & Entertainment Law Journal

The article explores the complexities and future of Section 230, focusing on its role in protecting online platforms from liability for user-generated content. Panelists argue that Section 230 is an immunity, not a subsidy, and discuss its implications for content moderation, new technologies, and regulatory oversight. They propose various reforms, including FTC regulation and clarifying Section 230's scope for emerging harms.

Hospitality At The Center Of Dispute Resolution, Peter Block

Cardozo Journal of Conflict Resolution

My intent here is to amplify and give voice to the transformative importance of the work described in three of the Articles being published in this edition of the Cardozo Journal of Conflict Resolution. The Articles discuss restorative answers to this culture's dominant narrative of retribution. Each of these social innovations represents a form of hospitality, which is akin to the welcoming of strangers. The Articles form a strategy, in alliance with the alternative dispute resolution movement and addressing the violence against the self and others, which forms the headlines of our daily news consumption.

Robert Cover’S Love Of Stories: A Rumination On His Wanting To Discuss The Brothers Karamazov With Me Across Five Conversations During The Last Five Years Of His Life, With An Application To The Chauvin Murder Trial Of 2021, Richard H. Weisberg

Articles

The field of Law and Literature, perhaps more than any other area of legal studies, has been touched deeply by Robert Cover’s life and work. My interactions with Bob over the last half dozen years of his tragically short life provide an insight, recounted in a somewhat personal vein here, into his profound engagement with stories, with the most enduring part of that revitalized inter-discipline. I specify and illustrate five conversations I had with him during conferences, family interactions, or long New Haven walks beginning in 1981 and ending the day before his untimely death in the Summer of …

What War Did To The Academy, What The Academy Did To War: A 20-Year Retrospective On The Effects Of The Post-9/11 Wars, Deborah Pearlstein

Articles

The history of the legal academy’s impact on the way states fight wars is hardly one of unmixed glory. It was a law professor moonlighting for President Lincoln who authored “Instructions for the Government of Armies of the United States in the Field” during the Civil War, a code still recognized worldwide today for having laid critical groundwork for the modern law of war. It was likewise a law professor whose work came to serve as both theoretical and practical justification for the sweeping powers of the Nazi state. So it should perhaps be unsurprising that, two decades of engagement …

The Powerful Problem Of Prayer At Public School Board Meetings, Amanda Harmon Cooley

Cardozo Law Review

No abstract provided.

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, …

Transforming Affirmative Action Jurisprudence: Applying Eidelson's Theory On The Supreme Court Of India, Sawinder Singh

Cardozo International & Comparative Law Review

This paper compares the affirmative action jurisprudence developed by the Indian Supreme Court with United States affirmative action jurisprudence in the context of the philosophy of equality developed by Harvard Law School Professor Benjamin Eidelson. It evaluates the potential of Eidelson's claim that if the U.S. Supreme Court accepts his philosophy, it may incrementally allow the Court to adopt a more favorable attitude towards the affirmative action policies. The question raised here is whether Eidelson's approach can provide a constitutionalfoundation capable of giving us a consistently benevolent interpretation of affirmative action policies, as he hoped. This article concludes that, at …

A Social Contract: The Doctrine Of Unconscionability And Its Relation To Social Progress, Henry Amoroso, Paula Alexander Becker, Evan Weiss

Cardozo Journal of Equal Rights & Social Justice

The current structure of American contract law may limit the availability of adequate remedies for citizens within certain socioeconomic strata who, in the formation of a contract, often experience an asymmetry of information, financial resources, and lack what is broadly termed social capital. This paper further argues that this population might be better served by expanding how the court interprets and applies the doctrine of unconscionability through a reexamination of the foundational principles that led to its codification in the 1950s in the Uniform Commercial Code. Throughout this paper, I will also consider how several foundational principles of Catholic Social …

Corporate Law, Retooled: How Books And Records Revamped Judicial Oversight, Roy Shapira

Cardozo Law Review

In a string of landmark corporate law rulings in the mid-2010s (most notably, Corwin v. KKR Financial Holdings), Delaware’s Supreme Court supposedly relaxed the standards of judicial review across a wide range of business transactions. Commentators predicted that this development would render corporate law irrelevant to the regulation of business behavior, thereby insulating managers from accountability and leading to a deterioration in corporate governance. Yet recent empirical studies have refuted the predictions: directors operating under the revamped decisional law still try as hard and get as good results as they did prior to Corwin. This Article examines why Delaware’s corporate …

The Rise Of Decentralized Autonomous Organizations: Opportunities And Challenges, Aaron J. Wright

Articles

The Author explores the nature of DAOs and highlights several areas where states and regulators can adapt existing legal regimes to potentially accommodate DAOs. Part of the Blockchain & Procedural Law seminars (Max Planck Institute Luxembourg for Procedural Law).

Here Stood My Dreaming Tree: A Proposal To Reform Non-Lpr Cancellation Of Removal To Bring Undocumented Immigrants Out Of The Shadows, Andrea Barrientos

Cardozo Journal of Equal Rights & Social Justice

The note advocates for expanding nonLPR (non-Lawful Permanent Resident) cancellation of removal as a pathway to lawful status for undocumented immigrants. It critiques the current system’s restrictive eligibility criteria, annual caps, and high hardship standards, arguing that these limitations exclude many deserving applicants. The proposed reforms aim to eliminate the 4,000-person cap, convert the relief into an affirmative process, and lower the hardship standard to align immigration policy with U.S. values of fairness and inclusion. By doing so, the reforms would stabilize families, reduce marginalization, and bring undocumented immigrants out of the shadows.

The Pure Theory Of Law Is A Hole In The Ozone Layer, Peter Goodrich

Articles

The article critiques the Pure Theory of Law, arguing that it is inadequate and detached from the dynamic and creative aspects of legal practice. The author advocates for a reimagined legal theory that integrates critical perspectives, embodiment, and a connection to the natural world, emphasizing the need for adaptability and responsiveness over static dogma.

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.

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 …

Entitlement To Punishment, Kyron J. Huigens

Articles

This Article advances the idea of entitlement to punishment as the core of a normative theory of legal punishment's moral justification. It presents an alternative to normative theories of punishment premised on desert or public welfare; that is, to retributivism and consequentialism. The argument relies on H.L.A. Hart's theory of criminal law as a "choosing system," his theory of legal rules, and his theory of rights. It posits the advancement of positive freedom as a morally justifying function of legal punishment.

An entitlement to punishment is a unique, distinctive legal relation. We impose punishment when an offender initiates an ordered …

Police Prosecutions And Punitive Instincts, Kate Levine

Articles

This Article makes two contributions to the fields of policing and criminal legal scholarship. First, it sounds a cautionary note about the use of individual prosecutions to remedy police brutality. It argues that the calls for ways to ease the path to more police prosecutions from legal scholars, reformers, and advocates who, at the same time, advocate for a dramatic reduction of the criminal legal system’s footprint, are deeply problematic. It shows that police prosecutions legitimize the criminal legal system while at the same time displaying the same racism and ineffectiveness that have been shown to pervade our prison-backed criminal …

Is The U.S. Government Violating The Safe Conducts Of Noncitizens? How A Turn To Strict Originalism Could Revitalize The Alien Tort Statute, Gabe Cahn

Cardozo Law Review

No abstract provided.

Oklahoma V. Purdue Pharma: Public Nuisance In Your Medicine Cabinet, Justin Kaufman

Cardozo Law Review

No abstract provided.