Jurisprudence Commons^™

The Institutions Of Innocence Review: A Comparative Sociological Perspective, Jessica A. Roth

Articles

The last three decades have seen the rise of an international innocence movement that has forced participants in diverse criminal justice systems to confront their systems’ fallibility, previously thought more theoretical than real. The public acknowledgment of that fallibility has led to the creation of new institutional mechanisms to re-examine old convictions. This short essay prepared for a symposium issue of the Rutgers University Law Review on the theory of criminal law reform compares the error correction institutions created in the United Kingdom, Canada, and the United States, three English-speaking countries with common law roots and an adversarial structure, through …

How Subterranean Regulation Hinders Innovation In Assisted Reproductive Technology, Myrisha S. Lewis

Cardozo Law Review

Most scholars believe assisted reproductive technology is subject only to minimal regulation, especially by the federal government. This belief I contend, is wrong. In this Article, I examine agency documents, statements by officials, and letters that the U.S. Food and Drug Administration (FDA) has sent to physicians and researchers over the past fifteen years to reveal an overlooked regulatory program. The FDA has been targeting new forms of assisted reproductive technology that involve small genetic modifications (advanced assisted reproductive technologies or AARTs) through regulatory actions that receive little public, media, or scholarly attention. I term this method of regulation "subterranean …

Restoring Parliamentary Democracy, Richard Ekins

Cardozo Law Review

The article argues that the United Kingdom's withdrawal from the European Union (EU) was a rational decision to restore its parliamentary democracy and self-governance, aligning with its constitutional framework. It contends that while EU membership was initially compatible with the UK's constitutional order, over time, the EU's supranational nature and institutional structure increasingly clashed with the principles of parliamentary sovereignty and responsible government.

From Utopia To Apology: The European Union And The Challenge Of Liberal Supranationalism, Daniel Francis

Cardozo Law Review

Amid the wealth of scholarship on European integration and its values, positive political liberty tends to languish in the background while democracy, efficiency, and other goals occupy the limelight. This short contribution aims to correct that neglect by setting out a normative approach to European integration that places positive political liberalism front and center. I offer this approach, which I call liberal supranationalism, as a complement to existing normative accounts of European integration.

I make three claims. First, I claim that liberal supranationalism offers a particularly appealing normative orientation for the European project. Second, I claim that, to the extent …

Democracy, Liberalism, And Brexit, James Allan

Cardozo Law Review

The article argues that the Brexit referendum highlighted a significant tension between democratic principles and liberal institutions. It contends that the majority vote to leave the European Union, despite opposition from political and judicial elites, demonstrates the importance of prioritizing democracy over liberalism. The author asserts that democratic decision-making, even with its flaws, is preferable to the influence of non-accountable liberal institutions, particularly in cases where there is a clear disconnect between the majority will and elite opinion.

Complicated-But Not Too Complicated: The Sunset Of E.U. Law In The U.K. After Brexit, Maimon Schwarzschild

Cardozo Law Review

The article examines the complexities of Brexit, focusing on the integration of EU law into UK law and the challenges of disentangling the two legal systems post-Brexit. It explores key areas such as free movement, environmental law, and the forms of EU law, highlighting the interconnectedness of EU and UK legal frameworks. The author suggests a "sunset clause" approach to manage the transition, allowing EU laws to expire unless explicitly retained, to align with the UK's newfound independence and regulatory autonomy.

Marbury V. Madison In The U.K.: Brexit And The Creation Of Judicial Supremacy, David Campbell

Cardozo Law Review

The article argues that the UK Supreme Court's decision in *Miller* (R (Miller) v. Secretary of State for Exiting the European Union) marks a significant shift in the UK's constitutional framework, establishing judicial supremacy akin to the US Supreme Court's role following *Marbury v. Madison*. This shift occurred through the court's assertion of authority to instruct Parliament, challenging the traditional sovereignty of Parliament and creating a de facto constitutional court without explicit public or political debate.

Brexit And Ip: The Great Unraveling?, Graeme B. Dinwoodie, Rochelle Cooper Dreyfuss

Cardozo Law Review

The article examines the impact of Brexit on intellectual property (IP) law in the United Kingdom, arguing that while Brexit may theoretically restore sovereignty, the practical benefits are limited. The U.K. remains deeply intertwined with international IP regimes, and the costs of divergence from European Union (E.U.) law may outweigh the gains. The authors conclude that the U.K. will likely need to recreate many E.U.-derived IP protections to maintain a robust creative sector and global trade efficiency.

Transmuting The Politico-Legal Lump: Brexit And Britain's Constitutional Order, Richard Mullender

Cardozo Law Review

No abstract provided.

The Roads To Reversing Brexit: Local And Transnational Constitutional Principles, Rob Howse

Cardozo Law Review

No abstract provided.

The Role Of Exit Rights: What The Theory Of The Firm Says About The Conduct Of Brexit Negotiations, Richard A. Epstein

Cardozo Law Review

The United Kingdom's (U.K.) June 2016 decision to exercise its great surprises option to leave the European Union (E.U. or Union) represents one of the in the complex history of supranational organizations. Most of the discussion in the wake of that decision has tended to stress the particulars of the referendum with regard to the short-term advantages and disadvantages of a decision that has clearly divided class and region within the U.K. Older individuals, and those who did not live and work in the Greater London area, tended to vote in favor of exit. Those who were younger and in …

Brexit And The Future Of Liberal Democracy, Larry Alexander

Cardozo Law Review

I write this short Essay as one who is not an expert on the causes of Brexit or of its American near-equivalent, the election of Donald Trump. My piece is purely an exercise in armchair speculation, quite possibly wrong, but also quite possibly correct. And if it is correct, I leave it to others to answer Lenin's famous question: "What is to be done?"

Echoes Of The Past: The 1975 Eec Referendum Forty Years On, Warren Swain

Cardozo Law Review

The article examines the 1975 referendum on Britain's continued membership in the European Economic Community (EEC), highlighting the political, economic, and social dynamics that shaped the campaign and its outcome. It draws parallels with the 2016 Brexit referendum, emphasizing the role of the political establishment, public opinion, and sovereignty concerns. The 1975 referendum resulted in a decisive vote to remain in the EEC, but the article suggests that the underlying issues, such as concerns over sovereignty and economic impact, persisted and ultimately contributed to the 2016 decision to leave the EU.

A Drama Of Development: Gary Olson On Stanley Fish, Richard Mullender

Cardozo Law Review de•novo

Book Review of Gary A. Olson, Stanley Fish, America’s Enfant Terrible: The Authorized Biography

Judicial Mediation: From Debates To Renewal, Jean-François Roberge, Dorcas Quek Anderson

Cardozo Journal of Conflict Resolution

Judicial mediation involving a judge acting as a mediator in a court dispute has been implemented in many jurisdictions worldwide as a way to overcome access to justice challenges. This innovation has raised many debates on the changing role of the judge built on either its congruence with or divergence from judicial adjudication. Over the years, these debates have become increasingly stagnant. The evolving vision on access to justice brings an opportunity to draw from the earlier debates and forge a different way forward. This paper argues that a coequality approach to understanding judicial mediation is a better way to …

Les Demoiselles D'Avignon: Painting Prostitution, Delineating Law, Shulamit Almog

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Critical Race Ip, Anjali Vats, Deidré A. Keller

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Mitochondrial Dna Replacement: Moral And Halakhic Concerns, J. David Bleich

Articles

Mitochondrial DNA (mtDNA), transmitted from mother to child, have their own genetic code that may cause debilitating genetic diseases. To prevent such unfortunate occurrences, researchers have developed a process enabling them to completely replace an ovum’s mitochondria with mitochondria contributed by a donor. Children born by use of this method have genetic material from both the mitochondrial donor and the birth mother; they are “three-parent babies.” Resultant medical, ethical, legal and theological problems are obvious.

Moreover, this technology may pose significant risks to neonates born of such procedures. Certainly no person has the right to cause harm to a fellow …

Cardozo's "Law And Literature": A Guide To His Judicial Writing Style, Richard H. Weisberg

Articles

The article discusses Benjamin N. Cardozo's essay "Law and Literature," which emphasizes the essential unity of style and substance in legal writing. Cardozo argues against the notion that law and literature are separate domains, asserting that effective legal communication requires a harmonious integration of form and function. He advocates for a judicial writing style that prioritizes clarity, precision, and the "magisterial" approach, which eschews ornamentation in favor of substance.

"I'Ve Got My Mind Made Up": How Judicial Teleology In Cases Involving Biologically Based Evidence Violates Therapeutic Jurisprudence, Michael L. Perlin

Cardozo Journal of Equal Rights & Social Justice

The article critiques the teleological reasoning employed by judges in cases involving biologically-based evidence, particularly in mental disability law. It argues that judges often prioritize pre-determined outcomes over evidence, leading to decisions that neglect valid scientific data and violate the principles of therapeutic jurisprudence.

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 …

Erisa Preemption After Gobeille V. Liberty Mutual: Completing The Retrenchment Of Shaw, Edward A. Zelinsky

Articles

Gobeille v. Liberty Mutual Insurance Co. is the U.S. Supreme Court’s most recent preemption decision under the Employee Retirement Income Security Act of 1974 (ERISA). In Gobeille, the Court completed the process of reconciling the restrained approach to ERISA preemption announced in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co. with the Court’s literal and expansive approach adopted earlier in Shaw v. Delta Air Lines, Inc. Gobeille consummated this reconciliation by confirming the sub silentio retrenchment of Shaw and its “plain language” approach in favor of Traveler’s broader construction of ERISA preemption. …

Erie Step Zero, Alexander A. Reinert

Articles

Courts and commentators have assumed that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. Thus, when a federal court asserts jurisdiction over pendent state law claims through the exercise of supplemental jurisdiction in a federal question case, courts regularly apply the Erie doctrine to resolve conflict between federal and state law. This Article shows why this common wisdom is wrong.

To understand why, it is necessary to return to Erie’s goals, elaborated over time by the U.S. Supreme Court. Erie and its progeny are steeped in diversity-driven policy concerns: concerns …

Court Transparency And The First Amendment, David S. Ardia

Cardozo Law Review

"Publicity is the very soul of justice," legal philosopher Jeremy Bentham once warned.1 Regrettably, lady justice is at risk of losing her soul. In courts across the country, secrecy is increasingly the norm. Indeed, the extent of secrecy in American courts is astonishing, especially given the assumption by many that the First Amendment guarantees a right of public access to the courts. In reality, the United States Supreme Court has explicitly held only that there is a First Amendment right of public access to criminal trials and pre-trial proceedings. The Court has never addressed the question of whether there is …

Panel 1: Perspectives On Transactions In Comic Books, David Gallaher, Larry Hama, Lillian Laserson, Matthew Tynan, Thomas Crowell

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The History And Legacy Of The Pound Conferences, Lara Traum, Brian Farkas

Cardozo Journal of Conflict Resolution

In light of the GPC, it is useful to take a brief step back to consider the legacy of self-reflection that brings the field to this exciting moment. As we reflect, we find ourselves facing new challenges and raising new questions about the direction of alternative dispute resolution ("ADR") in the 21st century. In this Article, Sections II and III will introduce the "Framers" of the ADR industry's "Constitution," and Section IV will evaluate their 100-year legacy and consider the extent to which it now needs further amendments.

Can Mediation Deliver Justice?, Sherif Elnegahy

Cardozo Journal of Conflict Resolution

Can mediation deliver justice? This article seeks to answer this controversial question by exploring the idea of justice through a number of perspectives, including the historical, philosophical, and religious perspectives. After reaching an understanding on the idea of justice, the article discusses two main means of delivering justice: formal justice-including an analysis of its strength and limitations-and creative justice. The article proceeds to demonstrate the relationship between mediation and justice and mediation's ability to deliver several justice outcomes, which include procedural justice, distributive justice, and restorative justice. The article concludes by highlighting the possible challenges that can accrue when attempting …

Rwanda And The Kigali International Arbitration Centre: The Future Faces Of East African Arbitration And Growth, Jeremy Cantor

Cardozo Journal of Conflict Resolution

Part I is a brief introduction to the Note. Part II is a brief background of Rwandan history and the country's push for economic growth. Furthermore, Part II elaborates on the history, the current status of Rwanda's judicial system, and on the KIAC. Part III explains why arbitration is fitting for Africa as a whole and why it is more fitting for East Africa specifically. In particular, the Note explains why Kigali is the proper choice of seat6 and KIAC the proper institution, and analyzes certain problems preventing the growth of African arbitration. Lastly, Part IV proposes how to effectuate …

Panel 2: Comic Book Jurisprudence With Q&A, Karen Berger, Lillian Laserson, Paul Levitz, Robert Sikoryak, Brett Frischmann

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Freedom Of Artistic Expression In The Jurisprudence Of The United States Supreme Court And Federal Constitutional Court Of Germany: A Comparative Analysis, Raman Maroz

Cardozo Arts & Entertainment Law Journal

No abstract provided.