Legal Remedies Commons^™

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, …

From Museum To The Auction Block: Regulating The Deaccessioning Of Art, Jenny Lyubomudrova

Cardozo Law Review

No abstract provided.

The Inadequacy Of The Impossible: Obtaining Post-Conviction Dna Testing In Alabama, Trena Riley

Cardozo Law Review

No abstract provided.

Going Rogue: The Supreme Court's Newfound Hostility To Policy-Based Bivens Claims, Joanna C. Schwartz, Alexander A. Reinert, James E. Pfander

Articles

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court held that a proposed Bivens remedy was subject to an exacting special factors analysis when the claim arises in a “new context.” In Ziglar itself, the Court found the context of the plaintiffs’ claims to be “new” because, in the Court’s view, they challenged “large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners.” Bivens claims for damages caused by unconstitutional policies, the Court suggested, were inappropriate.

This Essay critically examines the Ziglar Court’s newfound hostility to policy-based Bivens claims. We show that an …

Deeply Fake, Deeply Disturbing, Deeply Constitutional: Why The First Amendment Likely Protects The Creation Of Pornographic Deepfakes, Bradley Waldstreicher

Cardozo Law Review

No abstract provided.

Interior Landmark Designation And Regulation: Should Government Regulate Publicity Inaccessible Interior Landmarks, Victoria Tesone

Cardozo International & Comparative Law Review

The note argues that government regulation of interior landmarks should be contingent upon public access, as such regulation otherwise fails to serve its intended public benefit and unjustly burdens property owners. It proposes that without public access, landmark designation should not impose regulatory obligations on property owners, and suggests that the financial burden of preservation should shift to taxpayers rather than private owners.

The Prison Litigation Reform Act And The Physical Injury Requirement In The Context Of Transgender Inmates, Hunter Kravitz

Cardozo International & Comparative Law Review

The note examines the impact of the Prison Litigation Reform Act (PLRA) on transgender inmates, focusing on its physical injury requirement, which disproportionately bars access to justice for those with mental or emotional injuries. It highlights the ethical and constitutional concerns arising from the PLRA's application, particularly its unequal treatment of transgender inmates, and advocates for reforms to ensure equitable access to justice.

The Recent Federal Withdrawal Of Limitations On Supplemental Environmental Projects And Importance To Environmental Justice Initiatives, Christina Giordanella

Cardozo Journal of Equal Rights & Social Justice

The note discusses the significance of Supplemental Environmental Projects (SEPs) in advancing environmental justice, particularly benefiting low-income and minority communities. It highlights the Biden administration's reversal of Trump-era restrictions on SEPs, which previously limited their use. The article argues that SEPs are legally valid tools supported by Congress through various environmental statutes and court rulings, despite challenges from the Trump administration. It emphasizes the need for explicit Congressional authorization to secure the future of SEPs and expand their use in settlements.

Defending "Universal Vacatur" - Nationwide Injunctions For Administrative Law, Michael E. Herz

Online Publications

The nationwide injunction has seized the imagination of courts and law professors in recent years. Not surprisingly, JOTWELL’s pages screens have given it extensive attention. Recent jots have described important work by Samuel Bray (twice), Amanda Frost (also twice), Russell Weaver, and Alan Trammell that attacks, defends, or theorizes nationwide (or “universal”) injunctions. Jack Beermann, in praising Bray and Frost, did have one complaint: “As an administrative law nut, I wish they both grappled more with the meaning of the APA’s instruction that reviewing courts should ‘hold unlawful and set aside’ unlawful agency action.” Mila Sohoni has now filled that …

Congress And Universal Injunctions, Howard M. Wasserman

Cardozo Law Review de•novo

As the judicial and scholarly debate rages over the power of federal courts to issue universal or non-particularized injunctions, this paper explores the role of Congress in ending this controversy. It considers the details, wisdom, and efficacy of five legislative proposals to eliminate or limit universal/non-particularized injunctions; it concludes that one approach resolves the problem—a flat and unequivocal prohibition on injunctions that protect anyone other than the plaintiffs.

Arbitration In The Age Of Covid: Examining Arbitration's Move Online, Amy J. Schmitz

Cardozo Journal of Conflict Resolution

Arbitration has been moving online over time with the growth of the Internet and Online Dispute Resolution ("ODR"), which includes use of technology to assist online negotiation, mediation, arbitration, and variations thereof Online Arbitration ("OArb ") is nonetheless a unique subset of ODR because it usually culminates in a final and binding award by a neutral third party that is enforceable under the Federal Arbitration Act ("FAA"). Indeed, I have written about OArb on prior occasions, due to its unique status under the FAA and other arbitration laws. However, OArb was relatively limited until the COVID-19 pandemic sparked the acceleration …

Client-Centered Communication: How Effective Lawyering Requires Emotional Intelligence, Active Listening, And Client Choice, Heather Heavin, Michaela Keet

Cardozo Journal of Conflict Resolution

For the lawyer-client relationship to work effectively, lawyers need to provide clients with competent, understandable, and relevant legal advice. This proposition is so central to the lawyer's role that it is difficult to challenge. Yet, we suggest, this proposition belies the complexity of the responsibility, given the decision-making process that clients are going through (or should be going through) when deciding to litigate or to settle through negotiation or mediation. The educational literature contains much advice for lawyers on the benefits of dispute resolution processes, how to select and navigate through them, but much less on how lawyers should guide …

From The Frying Pan To The Fire: Scotus’ Fsia Inaction As Further Permitting Executive Branch Intervention In “Takings Exception” Cases And Its Consequences In Forcing Holocaust Plaintiffs To Return To Europe, Richard H. Weisberg

Articles

The Supreme Court of the United States (“SCOTUS”) very recently punted and left wide a circuit split on a key question under the Foreign Sovereign Immunities Act (“FSIA”): Do plaintiff Holocaust victims need to return to the country that wronged them in order to proceed in a United States federal court that otherwise had jurisdiction over their claims? While sending down unresolved a conflict between the D.C. and Seventh Circuits, in a companion case also involving Holocaust victims, SCOTUS essentially ended an action against Germany by taking the strong suggestion of the Executive Branch through its Solicitor General that a …

Extraterritorial Damages In Patent Law, Thomas F. Cotter

Cardozo Arts & Entertainment Law Journal

In 2018, the Supreme Court in WesternGeco LLC v. ION Geophysical Corp. held that the owner of a U.S. patent could recover its lost profit on sales it would have made outside the United States, but for the defendant's violation of 35 U.S.C. § 271()(2) a rarely used provision of the Patent Act that prohibits, subject to certain conditions, the export of patented components for combination abroad. The Court left open the question of whether owners also can recover extraterritorial damages resulting from the (much more common) setting in which the defendant is accused of an initial act of making, …

New Federalism And Civil Rights Enforcement, Alexander A. Reinert, Joanna C. Schwartz, James E. Pfander

Articles

Calls for change to the infrastructure of civil rights enforcement have grown more insistent in the past several years, attracting support from a wide range of advocates, scholars, and federal, state, and local officials. Much of the attention has focused on federal-level reforms, including proposals to overrule Supreme Court doctrines that stop many civil rights lawsuits in their tracks. But state and local officials share responsibility for the enforcement of civil rights and have underappreciated powers to adopt reforms of their own. This Article evaluates a range of state and local interventions, including the adoption of state law causes of …

Fraudulent Transfers: Void And Voidable, David G. Carlson

Articles

This Article explores the civil procedure attendant to private fraudulent transfer litigation (primarily outside the context of bankruptcy). In such litigation, courts ponder whether fraudulent transfers are void or voidable. In fact, they are both simultaneously! According to the theory "at law," a fraudulent transfer is "void." That is, a creditor with a judgment could simply levy the property from a fraudulent grantee as if the grantee had no property rights. This Article questions the constitutional viability of this ancient attitude. Meanwhile, "equity" viewed the transfer as voidable. The grantee gets title, but the title might be set aside. The …

Post-Conviction Dna Testing In Death Row: A Constitutional Argument Under The Due Process Framework, Chi-Hsin Esther Engehart

Cardozo Journal of Equal Rights & Social Justice

The note argues that post-conviction DNA testing in death row cases should be recognized as a constitutional right under the procedural due process framework of the Fourteenth Amendment. It contends that the current reliance on the Eighth Amendment, which focuses on the morality and arbitrariness of the death penalty, fails to adequately address the critical issue of conviction accuracy. By applying the Mathews v. Eldridge balancing test, the note proposes that death row inmates should have a procedural due process right to DNA testing to ensure the accuracy of their convictions before execution.

Running Up Against The Civil Rights Act: Does Joe Biden's Promise Of A Female Running Mate Violate Title Vii?, Michael Conklin

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Prosecutorial Declination Statements, Jessica A. Roth

Articles

This Article examines how prosecutors convey to various audiences their decisions not to charge in discrete cases. Although prosecutors regularly issue public statements about their declinations—and anecdotal evidence suggests that declination statements are on the rise—there is an absence of literature discussing the interests that such statements serve, the risks that they pose, and how such statements are consistent with the prosecutorial function. Prosecutors also operate in this space without clear ground rules set by law, policies, or professional standards. This Article attempts to fill that void. First, it theorizes the interests potentially advanced by such statements—characterized as signaling, accountability, …

The History Of A Mystery: The Evolution Of The Law Of Unjust Enrichment In Germany, England And China, Steve Gallagher, Lin Siyi, Lutz-Christian Wolff

Cardozo International & Comparative Law Review

The law of unjust enrichment, despite being recognized in all modern jurisdictions, remains controversial due to its complexities. This article examines the historical development of unjust enrichment in Germany, England, and China, arguing that the concept's simplicity and academic influence are root causes of ongoing doctrinal and practical challenges. The analysis critiques the single principle approach—whereby any unjustified enrichment must be returned—highlighting its failure to address diverse scenarios effectively. The article concludes that this flawed foundational concept, compounded by academic ambitions, has led to persistent issues across all three jurisdictions.

Are We In Good Hands? A Comparative Analysis Of Compensation Schemes Concerning Catastrophes And Their Administrative Structure, Yi Ming Zeng

Cardozo International & Comparative Law Review

The note critiques the administrative structure of the September 11th Victim Compensation Fund (VCF), highlighting its limitations in providing equitable and transparent compensation. It proposes integrating elements from Germany's and Japan's administrative systems to address these shortcomings and improve future disaster compensation schemes in the U.S.

Who Owns African Art? Envisioning A Legal Framework For The Restitution Of African Cultural Heritage, Charity Gates

Cardozo International & Comparative Law Review

The note advocates for the establishment of a legal framework to address the restitution of African cultural heritage, emphasizing the need to return looted art and artifacts from Western museums to their countries of origin. It highlights the historical injustices of colonial looting and the current legal barriers that hinder restitution, proposing solutions that balance cultural preservation with international cooperation.

Healers Or Dealers: The Effect Of Doctors Committing Health Care Fraud On The Opioid Epidemic, Peri Novick

Cardozo International & Comparative Law Review

The note argues that doctors who commit healthcare fraud by improperly prescribing opioids for personal gain should be held criminally liable for patient deaths resulting from their actions. It emphasizes that these physicians, often operating as "pill mills," violate ethical and legal standards, contributing significantly to the opioid epidemic. The analysis advocates for stronger legal enforcement and accountability to address this issue effectively.

The Myth Of Personal Liability: Who Pays When Bivens Claims Succeed, James E. Pfander, Alexander A. Reinert, Joanna C. Schwartz

Articles

In Bivens v. Six Unknown Named Agents, the Supreme Court held that federal law creates a right to sue federal officials for Fourth Amendment violations. For the last three decades, however, the Court has cited the threat of individual liability and the burden of government indemnification on agency budgets as twin bases for narrowing the right of victims to secure redress under Bivens. In its most recent decisions, Ziglar v. Abbasi and Hernandez v. Mesa, the Court said much to confirm that it now views personal liability less as a feature of the Bivens liability rule than …

Art As A Weapon, Sahar Akhavan

Cardozo Arts & Entertainment Law Journal

No abstract provided.

E-Regulation, Sharon Yadin

Cardozo Arts & Entertainment Law Journal

The new face of the regulatory state is digital. In this era of e-regulation, administrative agencies use social media, web platforms, and mobile applications for regulatory purposes. New forms of online communication now allow regulators to harness public opinion as an enforcement mechanism in such diverse areas as product safety, environmental protection, workplace injury prevention, customer satisfaction in financial services, child safety, restaurant sanitation, and healthcare quality. The use of internet-based naming-and-shaming and data-sharing practices-through tweets, online posts, rankings, scores, star ratings, and other methods-serves to enforce compliance and promote corporate social responsibility. E-regulation constitutes a paradigm shift in government …

Giving Back A Fraudulent Transfer: A Defense To Liability?, David G. Carlson

Articles

In Whitlock v. Lowe (In re Deberry) (5th Cir. 2019), the Fifth Circuit court of appeals found it obvious that if a transferee gives back fraudulently transferred funds (which the debtor then dissipates), the transferee has a complete defense to liability to the transferor’s bankruptcy trustee. This puts the Fifth Circuit at odds with the Sixth and Seventh Circuits, where the prepetition give-back counted as no defense. This article concludes that a more nuanced position should mediate between these extremes, based on an “innocent donee” defense retrieved from Nineteenth Century precedent. The article emphasizes that if bad faith transferees for …

The Politics Of Access: Examining Concerted State/Private Enforcement Solutions To Class Action Bans, Myriam E. Gilles

Articles

Procedural and substantive constraints on the ability of ordinary people to access the civil justice system have become all too commonplace. The “justice gap” owes much to cuts in funding for legal aid and court administration, heightened pleading standards, ever-rising costs of discovery, increasingly restrictive views on standing to sue, and the co-opting of small claims court by businesses seeking to collect debts, among other obstacles in the path to the courthouse. But the most consequential impediment, surely, is the enforcement of mandatory arbitration clauses with class action bans, which bar consumers and employees from bringing or being represented in …

Biased Damages Awards: Gender And Race Discrimination In Tort Trials, Goran Dominioni

Cardozo International & Comparative Law Review

Current U.S. tort law incentivizes potential tortfeasors to target members of underprivileged social groups by using gender and race-based statistical tables life expectancy; work-life expectancy and average wage) to award damages. Legal scholars have long criticized this practice from the point of view of distributive justice but supported it on welfarist grounds. Recent research in law and economics has however cast doubts on the efficiency of this practice. On this basis, some propose abandoning it in favor of gender and race neutral tables. In this article, I contribute to this debate by analyzing from a behavioral law and economics perspective …

Is Disgorgement A Penalty In The Antitrust-Enforcement Realm?: Exploring Mediation As The Ftc's Response To Kokesh In The Context Of Reverse Payment Settlements, Jennifer Kim

Cardozo Journal of Conflict Resolution

This Note seeks to answer the following question: How can the FTC respond to the potential influence of Kokesh by utilizing mediation to settle with and recover monetary relief from brand drug companies? Part II of this Note discusses the FTC's role in competition cases historically, as well as the Commission's proactive pursuit of monetary remedies, primarily disgorgement relief. It also provides a general overview of the Hatch-Waxman Act and its influence on the rise of patent infringement litigation, which, in effect, resulted in the rise of "pay-for-delay" settlements between brand and generic drug companies. Part III dissects the Supreme …