Legal Remedies Commons^™

Increasing Referrals To Small Claims Mediation Programs: Models To Improve Access To Justice, Heather Scheiwe Kulp

Cardozo Journal of Conflict Resolution

The justice system is in crisis. In 2011, 85% of Connecticut's family court cases had at least one self-represented litigant. In Massachusetts, 92% of parties appearing in housing cases are selfrepresented. New York saw self-representation in 97% of child support cases. Although judges and attorneys are learning to adapt to this new reality, the strain is felt strongly by bench and bar alike.

This article explores a service that many courts already offer-small claims mediation-and studies how courts may more effectively refer parties to such services. Specifically, this article identifies six primary models courts use to refer parties to small …

State Courts Or Adr In Nazi-Era Art Disputes: A Choice "More Apparent Than Real"?, Christa Roodt

Cardozo Journal of Conflict Resolution

This article explores the first and arguably most important procedural choice a party can make when instituting a claim in respect to Nazi-era art, namely between alternative dispute resolution ("ADR") and state court litigation. A sound analysis of the meeting points and potential conflicts of processes involving administrative bodies, ADR fora and the judiciary can contribute to more effective law reform.

Ensuring Remedies To Cure Cramming, Amy J. Schmitz

Cardozo Journal of Conflict Resolution

On July 23, 2012, the Federal Trade Commission ("FTC") called wireless telephone bill cramming "a significant consumer problem," and both the FTC and Federal Communications Commission ("FCC") have been delving into the morass of concerns regarding cramming with respect to landline (or wired) telephone billing. "Cramming" occurs when a third party unaffiliated with a customer's telephone company adds charges to the telephone bills that the company sends to the customer. These charges can be for anything from horoscopes to long-distance telephone services.

Critique Of Money Judgment Part Three: Restraining Notices, David G. Carlson

Articles

New York is virtually unique in permitting lawyers to issue court orders restraining debtors and third parties from conveying away any assets that could be used to satisfy a money judgment. In effect, these orders command the recipient to do nothing, whereas a turnover or garnishment orders the recipient to do something — pay the creditor or sheriff or surrender illiquid property to the sheriff. The weakness and strength of this debt collection tool is assessed at length. The Article also analyzes in detail New York’s Exempt Income Protection Act, enacted in 2008 to force banks to protect the exempt …

Salomon V. Yaasin, Esther Hayut, Elyakim Rubinstein, Eliezer Rivlin

Translated Opinions

The Appellant is a corporation operating in the field of sporting goods, clothing and shoes, and holds trademarks in many countries around the world. Three of its trademarks are registered in Israel and they include a logo of three parallel and diagonal stripes that appears on the side of sneakers, comfortable shoes, athletic shoes and shoes for daily wear. The Respondent imports shoes into the Palestinian Authority. In 2005, the Respondent imported sneakers from a factory located in China. As per his order, the shoes were marked with four diagonal stripes and labeled with the name “SYDNEY”, which appeared in …

Guilty Until Proven Innocent: Providing Effective Relief To The Actually Innocent In New York, Steven M. Cytryn

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

A Moot Issue? Rethinking Holocaust Era Restitution Of Jewish Confiscated Personal Property In Poland, Lara Weissman

Cardozo Journal of Conflict Resolution

Part I of this note will recount the historical events in Poland that resulted in the massive and ruthless appropriation of Jewish property, not only by the Nazis and the Communist regime, but also by non-Jewish Poles. The inadequate restitution policies following Poland's independence will then be explored, demonstrating Poland's unwillingness to deal with the theft that occurred within its borders, instead favoring sheer dismissal of the issue in the hopes of concentrating on rebuilding its war-torn country.

Part IIA will explore Poland's continued refusal to create and enforce policies that would assist in the restitution process, marking Poland as …

Chinese Use Of Administrative Proceedings To Enforce Intellectual Property Rights: Evaluating And Improving Adr In China, Simeng Han

Cardozo Journal of Conflict Resolution

Since its entry into the World Trade Organization ("WTO") in 2001, China has significantly reformed its legal system in order to enforce its commitment to protecting Intellectual Property ("IP"). Yet, there remains a lingering suspicion of the actual level of Chinese commitment-as indicated by continuous infringement claims from nations such as the United States. With an increasing number of disputes loading the court dockets and putting pressure on judges, and given China's "deep-rooted historical preference for informal and non-adversarial means of dispute resolution," there is enormous potential for further development of ADR in this field. Indeed, the culturally preferable way …

Public-Private Approaches To Mass Tort Victim Compensation: Some Thoughts On The Gulf Coast Claims Facility, Myriam E. Gilles

Articles

No abstract provided.

Copyright Harm And Injunctions, Christina Bohannan

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Extent To Which "Yellowstone Injunctions" Apply In Favor Of Residential Tenants: Who Will See Red, Who Can Earn Green, And Who May Feel Blue?, Mark C. Dillon

Cardozo Public Law, Policy & Ethics Journal

Difficulties in the residential and commercial real estate markets have caused an influx of cases in the New York State courts through which banks seek the foreclosure of delinquent mortgages and landlords seek the eviction of tenants that are in default of rent payment obligations.

New York State has long recognized 'Yellowstone injunctions" in the context of commercial leases, where tenants have been permitted to preemptively obtain court orders enjoining their landlords fom terminating breached leases. The concept is named after its case oforigin, First National Stores, Inc. v. Yellowstone Shopping Center, Inc., which was decided by the state's …

Reparations For Displaced Torture Victims, Kathryn Metcalf

Cardozo Journal of International and Comparative Law

The note argues that universal civil jurisdiction is a necessary and viable legal framework to ensure reparations for displaced torture victims, despite challenges such as state immunity and political concerns. It advocates for states to adopt measures like the proposed UK Torture Damages Bill to provide victims with a consistent and reliable path to justice, emphasizing the moral and legal imperative to uphold international prohibitions on torture.

Getting What They Are Owed: Restitution Fees For Victims Of Child Pornography, Jennifer Rothman

Cardozo Journal of Equal Rights & Social Justice

The note advocates for the expansion of restitution liability to include possessors of child pornography, arguing that their actions cause distinct and ongoing harm to victims. It emphasizes that each possession or download revictimizes the child, invades their privacy, and perpetuates the market for such material, thus necessitating legal accountability and compensation.

A Lesson From The Holocaust Restitution Movement For Armenians: Generate Momentum To Secure Restitution, Vartges Saroyan

Cardozo Journal of Conflict Resolution

This Note proceeds in five parts. Part I provides a historical background of the events prior to and during the Armenian Genocide, and the claims arising out of the Genocide. Part II discusses the status of Genocide restitution and the roadblocks that continue to prevent widespread recovery. Part III explains the timeline of the Holocaust restitution movement and how advocates for restitution were finally able to have some success. Part IV proposes that Genocide-era claims be sought not only by filing lawsuits, but also by creating momentum through negotiation and other principles of ADR. Part V concludes by reiterating the …

After The Ecj's West Tankers: The Clash Of Civilizations On The Issue Of An Anti-Suit Injunction, Grace Gunah Kim

Cardozo Journal of Conflict Resolution

This Note argues that the ECJ's West Tankers decision to ban an anti-suit injunction in Europe, coupled with the recent European Commission's reform proposals to govern arbitration within the jurisdictional framework of the Brussels Regulation No. 44/ 2001 ("Brussels Regulation"), directly clash with the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention") and practically amount to a blanket rule that bars English courts from upholding arbitration agreements.

Receiverships In The Prison Litigation Context: Factors Necessary For An Effective Judicial Remedy Of Last Resort, Liat Weingart

Cardozo Public Law, Policy & Ethics Journal

This note examines the effectiveness of judicial receiverships as a last-resort remedy in institutional reform litigation, particularly in the context of prison systems. It argues that the success of receiverships depends on the court's ability to supervise effectively and ensure the receiver's independence from political influence. The analysis highlights that appointing executive agents as receivers often leads to conflicts of interest, undermining the remedy's effectiveness, and emphasizes the need for robust supervisory structures, such as Special Masters, to ensure accountability and alignment with court objectives.

Class Actions In The European Union?: Importing Lessons Learned From The United States' Experience Into European Community Competition Law, Tiffany Chieu

Cardozo Journal of International and Comparative Law

The note argues that the European Union (EU) needs to establish an effective collective redress mechanism to address the challenges faced by victims of anticompetitive practices, who currently struggle to obtain adequate compensation. While the European Commission has proposed opt-in collective redress and representative actions, the note contends that an opt-out mechanism, akin to the U.S. class action system, would better deter wrongdoing and enhance compensation without fostering excessive litigation. The EU can draw lessons from the U.S. experience but must tailor its approach to avoid the pitfalls of a litigious culture.

Fulfilling The Washington Principles: A Proposal For Arbitration Panels To Resolve Holocaust-Era Art Claims, Jessica Mullery

Cardozo Journal of Conflict Resolution

This Note highlights increased efforts to foster the restitution of Nazi-looted art, particularly on the U.S. front, during the 1990s, with emphasis on the Washington Conference in 1998. It is then contended that the Washington Principles have ultimately failed to result in the adoption of ADR mechanisms to deal with continuing Holocaust-era art claims in both the United States and abroad. The lack of both United States and international efforts subsequent to the Washington Conference, especially in failing to establish ADR mechanisms, is stressed in order to demonstrate the inadequacy of the Washington Principles. Ongoing cases and emerging litigation within …

Protecting Cultural Heritage In Armed Conflict: Looking Back, Looking Forward, Patty Gerstenblith

Cardozo Public Law, Policy & Ethics Journal

The article argues that the destruction and looting of cultural property during armed conflicts, as exemplified by the 2003 Gulf War and its aftermath, highlight the urgent need for stronger enforcement of international legal frameworks, particularly the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict. The failure of the United States to ratify this convention undermines global efforts to protect cultural heritage, despite the U.S. military already adhering to some of its principles through other legal frameworks. The article advocates for U.S. ratification of both the 1954 Hague Convention and its protocols to …

What's Fair Is Fair? A Comparative Look At Judicial Discretion In Fairness Review Of Holocaust Era Class Action Settlement In The United States And Canada, Arthur Oder

Cardozo Journal of International and Comparative Law

The note critiques the effectiveness of U.S. class action frameworks, particularly Rule 23, in addressing Holocaust-era claims, arguing that the Canadian Class Proceedings Act (CPA) offers a more flexible and fair approach for resolving such complex human rights cases. It highlights the shortcomings of the Generali Insurance Litigation and contrasts it with the success of the Swiss Banks Settlement, emphasizing the importance of judicial discretion and adequate notice in ensuring fair outcomes. The analysis advocates for adopting the Canadian model to improve the handling of large-scale human rights class actions.

Questioning The Political Question Doctrine: Inconsistent Applications In Reparations And Alien Tort Claims Act Litigation, Shelley Buchanan

Cardozo Journal of International and Comparative Law

The note argues that while transnational public law litigants have successfully used U.S. courts to address human rights violations under the Alien Tort Claims Act (ATCA), African American reparations claims for slavery have been systematically dismissed on procedural grounds, particularly under the political question doctrine. This disparity highlights the inconsistent application of the doctrine, with recent ATCA cases narrowing its scope, while African American slave redress cases continue to face strict dismissal. The note advocates for a more consistent application of the political question doctrine across all human rights litigation, including slave redress, to ensure fairness and maintain the U.S. …

Rwandan Genocide: Taking Notes From The Holocaust Reparations Movement, Yael Weitz

Cardozo Journal of Equal Rights & Social Justice

The note examines the failure to provide adequate reparations to rape victims of the Rwandan genocide, drawing parallels with the Holocaust reparations movement. It argues that while international law has advanced in recognizing rape as a grave crime, the existing mechanisms, such as the International Criminal Tribunal for Rwanda (ICTR), have failed to deliver reparations. The International Criminal Court (ICC) is proposed as a potential solution, despite jurisdictional limitations, through cooperation with the ICTR to address the urgent needs of Rwandan rape victims.

What's Law Got To Do With It?: The Bosnia V. Serbia Decision's Impact On Reconciliation, Sheri P. Rosenberg

Articles

During the twentieth century a particular ideology inspired specific efforts to utilize the power of the law to redress episodes of mass atrocity-in particular genocide. The idea has been that accountability and reparations are necessary for moving beyond a past marred with crimes of genocide and crimes against humanity. Trials are often claimed to aid this process on the grounds that they create an irrefutable historic record, punish the perpetrators for the sake of justice and deterrence, and promote peace and reconciliation. This Article interrogates the stated goals of accountability, in particular the goal of reconciliation, against the impact, within …

Critique Of Money Judgment Part One: Liens On New York Real Property, David G. Carlson

Articles

The article critically examines the enforcement of money judgments in New York, particularly focusing on liens on real property. It argues that the current system is outdated, arbitrary, and often unfair to creditors, highlighting the need for legislative reforms to create a more equitable and efficient framework. The analysis underscores the complexity and challenges faced by creditors and legal practitioners within the existing structure.

Saving Culture, But Passing The Buck: How The 1970 Unesco Convention Undermines Its Goals By Unduly Targeting Market Nations, Janene Marie Podesta

Cardozo Journal of International and Comparative Law

The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, while well-intentioned, undermines its goals by adopting a nationalistic approach that disproportionately burdens market nations. This bias leads to ineffective enforcement and incentivizes black-market activities, failing to curb the illicit trade of cultural property. The Convention's emphasis on source nations' ownership claims often results in penalizing market nations, discouraging cooperation and perpetuating the problem.

Failed Lawyers And The Sources Of Satire, Charles M. Yablon

Articles

Most of those reading this Essay have ample reason to appreciate the benefits of a good legal education. There is pride in becoming a member of an ancient and learned profession, intellectual challenge in wrestling with complex questions of equity, power and social justice, and satisfaction in the sense of superiority you feel towards your loser friends who did not get into a decent law school.

After Philip Morris V. Williams: What Is Left Of The "Single-Digit" Ratio?, Anthony J. Sebok

Articles

This short essay was written for a symposium on The Future of Punitive Damages held at the Charleston School of Law in 2007. I argue that the ratio rule (that punitive damages that exceed a single digit ratio presumptively violate the Due Process Clause), introduced by the Supreme Court in Campbell, is unlikely to survive. I argue this for three reasons. First, many lower courts have found ways to conceal punitive damages awards that impose, in reality, ratios in the double-digits. Second, the refusal of the Court to reverse the plaintiffs punitive damages award in Williams under the ratio rule …

Employment Discrimination Remedies: The Shape Of Lawsuits, The Shape Of The Law: Proceedings Of The 2008 Annual Meeting Association Of American Law Schools Section On Employment Discrimination Law And Section On Remedies, Michael P. Allen, Paul M. Secunda, Julie C. Suk, Tristin K. Green, Brad Seligman, Elaine W. Shoben

Articles

The article examines the effectiveness of legal frameworks and corporate practices in addressing employment discrimination, contrasting the French criminal approach with the U.S. reliance on civil remedies and diversity initiatives. It argues that while criminal investigations in France have successfully uncovered and punished discriminatory hiring practices, U.S. corporations often evade meaningful change through ineffective diversity training and lack robust accountability mechanisms. The analysis underscores the need for structural reforms in the U.S., emphasizing the importance of accountability and flexibility in consent decrees to drive lasting progress in diversity and inclusion.

Procedural Path Dependence: Discrimination And The Civil-Criminal Divide, Julie C. Suk

Articles

Procedural path dependence occurs when the particular features of the procedural system that is charged with enforcing a given legal norm determine the substantive path of that norm. This Article shows how the limits of employment discrimination law in two different national contexts can be explained by procedural dynamics. In France, as in several European countries, employment discrimination law is enforced predominantly in criminal proceedings. French criminal procedure enables the discovery of information necessary to prove the facts of discrimination, whereas the limits of French civil procedure make it impossible for such information to be revealed. As a result, the …

Restorative Justice And The Sexual Abuse Scandal In The Catholic Church, Janine Geske

Cardozo Journal of Conflict Resolution

Thank you for the opportunity to speak to you today. I want to begin by telling you how I got into the restorative justice field. I served as a judge for almost twenty years, and nine of those years were in criminal court. My last assignment before going to the Wisconsin Supreme Court was to preside full-time over sexual assault and homicide cases. During the time I spent as a trial court judge, I regularly taught classes at prisons in Wisconsin. About ten years ago, I became involved in a restorative justice program in the Green Bay Correctional Institution, a …