Legal Remedies Commons^™

Reinventing Structural Reform Litigation: Deputizing Private Citizens In The Enforcement Of Civil Rights, Myriam E. Gilles

Articles

The aim of this Article is to explore the possibility of constructing a model that harnesses the power of private citizens to reform unconstitutional practices, particularly in the critical area of police-related rights violations. I seek here to reintegrate private citizens into the enforcement of public laws; to tap the private experiential and financial resources that were a necessary condition of the great structural reform efforts of the civil rights movement of the 1950s and 1960s.

The vehicle by which I propose to accomplish these ends is a simple, yet novel, amendment to 42 U.S.C. § 14141, the statute which …

Freedom Of Conscience And The Court-Ordered Apology For Defamatory Remarks, Dai-Kwon Choi

Cardozo Journal of International and Comparative Law

The article critiques the Korean Constitutional Court's decision that court-ordered apologies for defamation violate the freedom of conscience under the Korean Constitution. The author argues that this ruling is misplaced, as it should have focused on the chilling effect on freedom of the press rather than freedom of conscience. The analysis emphasizes the cultural significance of apologies in Korean society and questions the court's approach to constitutional review.

Breaking The Code Of Silence: Rediscovering "Custom" In Section 1983 Municipal Liability, Myriam E. Gilles

Articles

No abstract provided.

Early Patent Publication: A Boon Or Bane? A Discussion On The Legal And Economic Effects Of Publishing Patent Applications After 18 Months Of Filing, John F. Duffy, Hayden Gregory, Robert Rines, Herbert Wamsley, Douglas Wyatt

Cardozo Arts & Entertainment Law Journal

No abstract provided.

King Instruments Corp. V. Perego: Should Lost Profits Be Awarded On Unpatented Products Where Patentee Sits On Its Patents?, Arun Chandra

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Liability For Uncertainty: Making Evidential Damage Actionable, Ariel Porat, Alex Stein

Cardozo Law Review

Because factual uncertainty distorts the allocation of civil liability, this Article argues that the law should impose liability for uncertainty. Justified on both corrective justice and economic efficiency grounds, this liability should be imposed upon any person who negligently aggravates the uncertainty of a civil case by making its evidential base deficient. Because "evidence" belongs to the world of inferences rather than things, evidential damage may be inflicted in a variety of ways, far beyond destruction of documents and other physical tampering with evidence. Through adoption and refinement of this insight, the Article diagnoses the presence of evidential damage …

When Is A Mortgage Guarantee Not Worth The Price Of A Notary? - The Incongruent Judicial Application Of New York’S Deficiency Judgment Statute, Benjamin Gruberg

Cardozo Law Review

Collateral for a mortgage is usually real property which, in the event that the mortgagor (borrower) defaults, is often sold by the mortgagee (lender) in a foreclosure sale. When the collateral consists of multiple parcels of real property and sale of the first parcel fails to realize the full amount of the outstanding debt, a deficiency results. The mortgagee next expects to sell the remaining properties in an attempt to secure full payment of this deficiency.

Game Theory And Nonrefundable Retainers: A Response To Professors Croson And Mnookin, Lester Brickman, Lawrence A. Cunningham

Articles

In the inaugural issue of the Harvard Negotiation Law Review, Professors David Croson and Robert Mnookin attempt a game-theoretic defense of the nonrefundable retainer. A nonrefundable retainer is an attorney fee arrangement that requires a client to pay her lawyer a specified dollar amount in advance and entitles the lawyer to keep the fee even if he does no work. For nearly a decade, we have argued that nonrefundable retainers are unethical as a matter of professional responsibility and unenforceable as a matter of law. In the last few years, numerous courts have evaluated the enforceability of these agreements, choosing …

Gender In The Law Of Slavery In The Antebellum United States, Andrew T. Fede

Cardozo Law Review

In her thought-provoking paper Finding Sojourner's Truth: Race, Gender, and the Institution of Property, Cheryl I. Harris explores the connections between slavery, race, and gender in the law of the antebellum United States. Harris acknowledges that slaves alone were defined as property at law, and, therefore,*the legal status of slaves differed from free white women and free black women. She also acknowledges that "white women" were allowed property rights on "male-defined terms" but asserts, nevertheless, that free women could be considered as a form of property.

“Doubly Condemned”: Adjustments To The Crime And Punishment Regime In The Late Slavery Period In The British Caribbean Colonies, Anthony De V. Phillips

Cardozo Law Review

Several good reasons must have led Michael Craton to choose the title for his very useful work, Searching for the Invisible Man: Slaves and Plantation Life in Jamaica. In the area of slavery and criminal sanctions, however, there is great difficulty with the idea of the "invisibility" of black people. Blacks were, in fact, "evervisible." Indeed, in view of their numbers and ubiquity, the slaves were at the forefront of the minds and concerns of all white people. This was especially true for the dominant political elite who made the laws and controlled the system of the administration of …

Nahmani V. Nahmani, Tzevi Eliyahu Tal, Dalia Dorner, Eliezer Goldberg, Yaakov Kedmi, Jacob Turkel, Gavriel Bach, Eliahu Mazza, Tova Strasberg-Cohen, Theodor Or, Itzchak Zamir, Aharon Barak

Translated Opinions

Facts: Ruth and Daniel Nahmani, a married couple, were unable to have a child because of an operation that Ruth underwent. They therefore decided to try in-vitro fertilization of Ruth’s ova with Daniel‟s sperm, with a view to implanting the fertilized ova in a surrogate mother. Under Israeli law, surrogacy was not permitted and in-vitro fertilization was only permitted for implantation in the woman from whom the ova were taken. Because of the great expense of the in-vitro fertilization procedure in the United States, the couple petitioned the Supreme Court, sitting as the High Court of Justice, to allow …

What’S The Use Of Calling Emerson A Pragmatist?, Stanley Cavell

Cardozo Law Review

I applaud the revival of interest in John Dewey and William James, on various intellectual and political grounds, and seek to learn what is at stake for others in their revival. But I also wish to suspend applause-doubtless more a transcendentalist than a pragmatist gesture on my part-for ideas that seem to be gaining prominence within this movement, expressed by writers and thinkers whom I admire, according to which Emerson is to be understood as a proto-pragmatist and Wittgenstein as, let's say, a neo-pragmatist. Perhaps I will be taken as struggling merely over labels; but sometimes labels should be struggled …

From Slaves To Citizens: African-Americans, Rights Consciousness, And Reconstruction, Donald G. Nieman

Cardozo Law Review

Addressing a racially mixed jury selected to try Ku Klux Klansmen in federal circuit court in Columbia, South Carolina in 1871, United States Attorney Daniel T. Corbin highlighted the dramatic changes that the previous decade had witnessed. "Gentlemen," he remarked, "we have lived over a century in the last ten years." Corbin did not exaggerate. The Civil War and Reconstruction years witnessed changes as revolutionary as any the nation has ever experienced. And nowhere were the changes as sweeping as in the realm of constitutional law.

The Manville Personal Injury Settlement Trust: Lessons For The Future, Frank J. Macchiarola

Cardozo Law Review

I will outline the story of the Manville Personal Injury Settlement Trust. While reading this tale, I urge the reader to ask the following questions: Was the Trust procedure effective? Could other procedures have better resolved the difficulties faced by asbestos victims? Could these other procedures fit into the legal framework, or does equity demand that a workable solution fall outside the legal structure? Could the system developed for the Trust be adapted for future mass torts, or did it simply result from compromises that would not have occurred save for the fact that there was no "bottomless pit" of …

Structures Of Environmental Criminal Enforcement, Michael E. Herz

Articles

No abstract provided.

The Myth Of Testamentary Freedom, Melanie B. Leslie

Articles

No abstract provided.

Compensating Caregiving Relatives: Abandoning The Family Member Rule In Contracts, Jonathan S. Henes

Cardozo Law Review

The law presumes that a person who performs a valuable service for another will be compensated. However, a limited exception to this principle exists when the services are performed between family members. This exception, also known as the family member rule, is a nineteenth century creation that arose from the courts' understanding of the dynamics of the nineteenth century household. However, the household of the nineteenth century has all but disappeared from contemporary society. With the disappearance of this household, the issue that arises is whether the family member rule is still necessary. This Note argues that it is not …

Nonrefundable Retainers: A Response To Critics Of The Absolute Ban, Lester Brickman, Lawrence A. Cunningham

Articles

In the short span of time since the New York Court of Appeals banned nonrefundable retainers, numerous other courts have joined in prohibiting this widespread practice of lawyers charging a fee for services in advance and keeping the fee even if the services are not performed. The alacrity with which the New York rule is being embraced may reflect increased judicial recognition of the effect of egregious fee practices on the image of the bar and the role such practices play in the declining esteem in which the legal profession is held. Not only has there been a sharp decline …

Nahmani V. Nahmani, Tova Strasberg-Cohen, Aharon Barak, Dov Levin, Itzchak Zamir, Tzevi Eliyahu Tal

Translated Opinions

Facts: Ruth and Daniel Nahmani, a married couple, were unable to have a child because of an operation that Ruth underwent. They therefore decided to try in-vitro fertilization of Ruth’s ova with Daniel’s sperm and implanting the fertilized ova in a surrogate mother. Under Israeli law, surrogacy was not permitted and in-vitro fertilization was only permitted for implantation in the mother. Because of the great expense of the in-vitro fertilization procedure in the United States, the couple petitioned the Supreme Court, sitting as the High Court of Justice, to allow the in-vitro fertilization procedure to be conducted in Israel, for …

Stories Out Of School: Teaching The Case Of Brown V. Voss, Elizabeth J. Samuels

Cardozo Law Review

In a deft parody of conventional education-inspired by a vote to put a school system on a year-round schedule-the parodist purports to have unearthed a letter from Huck Finn to Tom Sawyer's aunt, Mrs. Phelps. In the letter, Huck reports on a productive summer spent in school, studying long hours and earning high grades.

The Role Of The Copyright Office: An Introduction, Howard B. Abrams

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Nonrefundable Retainers Revisited, Lester Brickman, Lawrence A. Cunningham

Articles

Amidst widespread public attention to fee abuses, a court recently held for the first time that nonrefundable retainers violate professional ethics. The court in In re Cooperman essentially adopted the argument of Professors Brickman and Cunningham that nonrefundable retainers are against public policy because they impair a client's right to discharge his attorney at any time without penalty. Because declaring such agreements unethical is tantamount, in the eyes of the practicing bar, to declaring them void, In re Cooperman has sparked a national outcry from those who profit from enforcing nonrefundable retainers. In this Article, Professors Brickman and Cunningham analyze …

Levy V. Mabat Building Ltd, Meir Shamgar, Dov Levin, Theodor Or

Translated Opinions

Facts: The appellants bought an apartment from the respondent. The apartment suffered from water penetration and the respondent failed to make effective repairs. After several years the appellants sued the respondent in the District Court for rescission of the contract, restitution of the purchase price and damages. The District Court found that the appellants were entitled to rescind the contract.

The main issue in the appeal was the ruling of the District Court that the appellants must pay the respondent a sum of $16,000 for use of the apartment during the years that they lived in it. The appellants argued …

Seqra’S Too Valuable To Trash: A Reply To Stewart Sterk, Philip Weinberg

Cardozo Law Review

No abstract provided.

The Bar Against Challenges To Employment Discrimination Consent Decrees: A Public Choice Perspective, John O. Mcginnis

Articles

No abstract provided.

The Use Of Advance Fee Attorney Retainer Agreements In Bankruptcy: Another Special Law For Lawyers?, Lester Brickman, Jonathan Klein

Articles

From the time that the first lawyers set foot in what is now the United States, society has engaged in efforts to regulate lawyers' fees, including fees received from clients in bankruptcy proceedings. Lawyers, in turn, have been engaged in continuing efforts to: secure their self-interests, aggrandize their role in society, be free of societally imposed constraints on their fees and activities, and carve out an ever larger area of exclusive domain. Although lawyers have not fared as well in their recent efforts to extend the scope of their monopoly by the use of statutes that prohibit the unauthorized practice …

Distribution Of Damages In Car Accidents Through The Use Of Neural Networks, Lothar Philipps

Cardozo Law Review

After a traffic accident the damage has to be fairly divided among the parties involved, and a ratio has to be determined. There are many precedents for this, and judges have developed catalogues suggesting ratios for common types of accidents.

The problem that "every case is different," however, remains. Many cases have familiar aspects, but also unfamiliar ones. Even if a case is composed of several familiar aspects with established ratios, the question remains as to how these are to be figured into one ratio. The first thought would be to invent a mathematical formula, but such formulae are rigid …

Comment On Nesson, Joseph Gastwirth

Cardozo Law Review

No abstract provided.

The Right Of Publicity: Star Vehicle Or Shooting Star?, Barbara Singer

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The New/Old Law Of Securities Transfer: Calling A “Spade” A “Heart, Diamond, Club Or The Like”, Martin J. Aronstein

Cardozo Law Review

Recent changes in the law of securities transfer might be characterized as trying to put an expanding multi-faceted peg in a round hole. The proverbial round hole, of course, is the traditional negotiable instrument concept that a security is transferred by delivery. The peg is the rapidly developing system of securities issuance and holding practices in which an owner's interest in a security is evidenced by an entry on his account with a broker, bank, clearing corporation, or other intermediary, and the security itself is represented by a piece of paper in the possession of that or another third party, …