Law and Society Commons^™

Competing Free Speech Values In An Age Of Protest, Erica Goldberg

Cardozo Law Review

This Article endeavors to catalog and resolve cases involving competing free speech values, and then applies its solutions to violent and disruptive protests. Almost every First Amendment case can be framed as implicating free speech values on both sides of the First Amendment equation. Government action directly abridges speech, but government inaction may allow private parties too much control over others' speech. First Amendment doctrine, which generally protects speech only from suppression by state actors, can thus compromise the very free speech values that form the rationales for the First Amendment. Scholars and litigants have argued that government regulation of …

Benefit Corporations And The Separation Of Benefit And Control, Emily Winston

Cardozo Law Review

Scholars, activists, and other observers have expressed concern about the social effects of corporate activity in the United States since as early as the nineteenth century. A recurring theme in this debate has been whether corporations' focus on shareholder interests causes them to neglect and harm the interests of other constituencies affected by corporate activity. A recent and prominent effort to address this concern is the social enterprise movement, which is unique because it has resulted in the creation of entirely new business entities designed specifically for for profit businesses devoted to pursuing social missions. One of the most widely …

Disability, Universalism, Social Rights, And Citizenship, Samuel R. Bagenstos

Cardozo Law Review

No abstract provided.

Copyrighting The Quotidian: An Analysis Of Copyright Law For Postmodern Choreographers, Jessica Goudreault

Cardozo Law Review

Part I begins with a primer on the laws of copyright. It provides an overview of the statute's history, as well as some background on particular doctrines developed through case law. Part II introduces the history of postmodern dance and the choreographer Trisha Brown, whose work will function as a case study herein. Part III analyzes Brown's work as it relates to the statutory language of copyright law and the doctrines of originality, functionality, idea/expression dichotomy, and fixation. The analysis uses Brown's work Man Walking Down the Side of a Building as a single example to provide a real sense …

A Principled Strategy For Addressing The Incarceration Crisis: Redefining Excessive Imprisonment As A Human Rights Abuse, Mirko Bagaric, Sandeep Gopalan, Marissa R. Florio

Cardozo Law Review

In July 2015, Barack Obama became the first sitting U.S. President to visit a U.S. prison. The visit was largely symbolic. What is not symbolic is the reason for the visit. Sentencing policy and practice in the United States is fundamentally broken, to the point that it is an intellectual and normative wasteland. This has resulted in the United States becoming the world's most (gratuitously) punitive country. The imprisonment of over two million Americans is perhaps the most pressing domestic moral issue of our time. Further, the prison system is in a state of crisis due to the unsustainable cost …

Technological Opacity, Predictability, And Self-Driving Cars, Harry Surden, Mary-Anne Williams

Cardozo Law Review

Autonomous or "self-driving" cars are vehicles that drive themselves without human supervision or input. Because of safety benefits that they are expected to bring, autonomous vehicles are likely to become more common. Notably, for the first time, people will share a physical environment with computer-controlled machines that can both direct their own activities and that have considerable range of movement. This represents a distinct change from our current context. Today people share physical spaces either with machines that have free range of movement, but are controlled by people (e.g. automobiles) or with machines that are controlled by computers, but highly …

Destructive Collectivism: Dodd-Frank Coordination And Clearinghouses, Yuliya Guseva

Cardozo Law Review

The recent financial crises have generated strenuous academic debates on the fundamental premises of market regulation. The interaction between the state and the market is at the core of this discourse. A plethora of postcrisis reforms threaten to undermine the historical monopoly of centralized regulators through more coordinated, "collectivist" approaches to capital market regulation. The dangers of this new collectivism are not fully explored in the current scholarship.

This Article questions the Dodd-Frank coordination mechanisms by demonstrating that crucial benefits may result from the predictability of a linear market-regulator interaction in a cooperative environment. An example of such a successful …

Privacy Petitions And Institutional Legitimacy, Lauren Henry Scholz

Cardozo Law Review

This Article argues that a petitions process for privacy concerns arising from new technologies would substantially aid in gauging privacy social norms and legitimating regulation of new technologies. An accessible, transparent petitions process would empower individuals who have privacy concerns by making their proposals for change more visible. Moreover, data accumulated from such a petitions process would provide the requisite information to enable institutions to incorporate social norms into privacy policy development. Hearing and responding to privacy petitions would build trust with the public regarding the role of government and large companies in shaping the modern privacy technical infrastructure. This …

Taking Inference Seriously, Peter Tillers

Cardozo Law Review

No abstract provided.

Threshold Liberty, Dawinder S. Sidhu

Cardozo Law Review

The Supreme Court's Thirteenth Amendment precedent is no longer sustainable. For starters, that precedent - which holds that the Amendment prohibits the "badges and incidents" of slavery, and that Congress has the power to "rationally" determine what constitutes a "badge or incident" of slavery - raises serious federalism and separation of powers concerns. To make matters worse, the Court itself has recently restricted the enforcement provisions of the Fourteenth Amendment (in City of Boerne v. Flores) and Fifteenth Amendment (in Shelby County v. Holder), rendering the generous bounds of the Thirteenth Amendment enforcement power an outlier among the …

Constituencies And Contemporaneousness In Reason-Giving: Thoughts And Direction After T-Mobile, Donald J. Kochan

Cardozo Law Review

This Article presents a framework for reason-giving requirements in administrative law that includes a demand on agencies that reasons be produced contemporaneously with an agency's decisions where multiple constituencies (including regulated entities), not just the courts (and judicial review), are served and respected as consumers of the reasons. The Article postulates that the January 2015 U.S. Supreme Court decision in T-Mobile South, LLC v. City of Roswell may prove to be groundbreaking and stir this framework to the forefront of administrative law decision-making. There are some fundamental, yet very understated, lessons in the T-Mobile opinion that prompt further attention and …

Aggregation For Me, But Not For Thee: The Rise Of Common Claims In Non-Class Litigation, Maureen Carroll

Cardozo Law Review

When a plaintiff seeks an injunction or declaration based on a defendant's generally applicable policy or practice, the case has an inherently aggregate dimension, regardless of whether the plaintiff brings it as a class action or as an individual suit. Recent cases involving marriage rights for same-sex couples, affirmative action in higher education, the National Security Agency's metadata program, and the Affordable Care Act's contraceptive mandate - among others - have all taken the non-class form, notwithstanding the underlying claims' amenability to class treatment.

Difficult problems arise when a plaintiff brings a common claim in non-class litigation. The plaintiff might …

Adequacy Of Notice Under Cafra: Resolving Constitutional Due Process Challenges To Administrative Forfeitures, Rebecca Hausner

Cardozo Law Review

No abstract provided.

The Green To Blue Pipeline: Defense Contractors And The Police Industrial Complex, Karena Rahall

Cardozo Law Review

Images of police in tactical gear, pointing automatic weapons at unarmed demonstrators in Ferguson, Missouri, represented a flashpoint in public awareness that American police are rapidly militarizing. Federal grants have been quietly arming police with tanks, drones, and uniforms more suited to waging war than patrolling the streets. As police have acquired more military gear, Special Weapons and Tactics teams and deployments have proliferated. Even small towns receive surplus military materiel to fight the "wars" on drugs and terrorism. In addition, police training uses a military approach that threatens to transform the traditional police mandate of protecting and serving into …

Harmonizing Third-Party Litigation Funding Regulation, Victoria A. Shannon

Cardozo Law Review

Third-party litigation funding is no longer a new phenomenon, but rather is a mainstay in global commerce and dispute resolution. Yet many observers still consider the third-party litigation funding industry as a "wild west" due to a lack of regulation in many countries. Some of the countries that have regulations suffer from a lack of uniformity and an array of conflicting laws at the sub-national level (i.e., the laws of states, provinces, territories, etc.). For example, the United States has a confusing patchwork of state laws on third-party litigation funding. This Article proposes harmonizing the regulatory framework for third-party litigation …

Adoptive Admissions And The Duty To Speak: A Proposal For An Appropriate Test For The Admissibility Of Silence In The Face Of An Accusation, Bret Ruber

Cardozo Law Review

No abstract provided.

Public Law At The Cathedral: Enjoining The Government, Michael T. Morley

Cardozo Law Review

Conventional wisdom provides that injunctive relief in public law cases is generally unnecessary, because a declaratory judgment and the threat of damages are enough to induce the government to comply with a court's ruling (except, perhaps, in the institutional reform context). Consistent with this prevailing understanding, most scholars to apply Calabresi and Melamed's Cathedral framework to public law have concluded that nearly all constitutional rights are protected by property rules, regardless of whether a rightholder actually is protected by an injunction, or instead merely has a substantial likelihood of obtaining one if she goes to court.

This Article challenges this …

Striking A Pose: Protecting The Welfare Of Child Models, Kelli Ortega

Cardozo Law Review

No abstract provided.

Remaking Mexico: Law Reform As Foreign Policy, Deborah M. Weissman

Cardozo Law Review

No abstract provided.

In Search Of Meaningful Systemic Justice For Adolescents In New York, Jonathan Lippman

Cardozo Law Review

No abstract provided.

An Empirical Study Of The Use Of Legal Scholarship In Supreme Court Trademark Jurisprudence, Derek Simpson, Lee Petherbridge

Cardozo Law Review

Although the usefulness of law review and law journal articles to the decisional lawmaking process is a topic that has captured the imagination of jurists, reporters, and legal academics like few others, very little is actually known about how and why courts use such legal scholarship. This Article addresses that lack of knowledge. It reports an empirical study of the Supreme Court's use of legal scholarship in its trademark jurisprudence that spans the years 1949-2011. Among its contributions are: (1) the identification of Supreme Court trademark cases using and not using legal scholarship, including the identification of the pieces of …

Reimagining The Role Of Defense Counsel For Adolescents In The Adult Criminal Court System: Bringing The Community And Policymakers Into The Process To Achieve The Goals Of Gideon, Nancy Ginsburg

Cardozo Law Review

No abstract provided.

Bringing The Best Of Both Worlds: Recommendations For Criminal Justice Reform For Older Adolescents, Lisa Schreibersdorf

Cardozo Law Review

No abstract provided.

Stories Mediators Tell: The Editors' Reflections, Eric R. Galton, Lela P. Love

Cardozo Law Review

No abstract provided.

Stories Mediators Tell: A Review, Wayne Brazil

Cardozo Law Review

No abstract provided.

Precautionary Constitutionalism In Ancient Athens, Adriaan Lanni, Adrian Vermeule

Cardozo Law Review

No abstract provided.

Points Of Stasis And Exchange: A Return To The Economic Model Of The Mind, Jamieson Webster

Cardozo Law Review

No abstract provided.

Welfare Economics For Capitalists: The Economic Consequences Of Judge Posner, David Campbell

Cardozo Law Review

No abstract provided.

In Defense Of Flexiphobia: How Training In Intractability Can Help Lawyers In Moments Of Perceived Emergency, Richard H. Weisberg

Cardozo Law Review

No abstract provided.

The Hollow Promise Of Freedom Of Conscience, Nadia N. Sawicki

Cardozo Law Review

Two hundred years ago, Thomas Jefferson asserted that no law "ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority." Since then, freedom of conscience has continued to be heralded as a fundamental principle of American society. Indeed, many current policy debates - most notably in the medical and military contexts - are predicated on the theory that claims of conscience are worthy of legal respect. This Article, which offers a comprehensive account of the contemporary treatment of conscience, challenges established assumptions and seeks to reframe the debate about …