Legislation Commons^™

The Territorial Continuum: American Samoa, Criminal Adjudication, And Territorial Administration, Emmanuel Hiram Arnaud

Cardozo Law Review

The standard account of American territorial expansion posits that territorial acquisition moved along a spectrum of sovereignty. The federal government acquired new inhabited land through conquest or purchase, and the Constitution tasked Congress with organizing and administering the new territories until they were ready to become states. That pattern came to an abrupt halt in 1898 when, at the conclusion of the Spanish-American War, the Supreme Court, fearing the extension of citizenship to and the permanent integration of non-White populations into the American polity, suddenly pronounced that the Constitution authorized the holding of colonies. The Court thus sentenced new territories, …

Equity And Clarity: The Impact Of Tyler V. Hennepin County On Property Taxation And Homeowners’ Rights, Analy Feigel

Cardozo Law Review

This Note explores the implications ofthe U.S. Supreme Court's ruling in Tyler v. Hennepin County, which significantly impacts property taxation and foreclosure laws. The Court ruled that property owners are entitled to surplus proceeds following a tax foreclosure, setting a new precedent by deeming it unconstitutional for governments to retain surplus proceeds without just compensation. Tyler clarified property rights under the Fifth Amendment, affirming that owners have a constitutional right to the surplus value of their foreclosed properties, even if local statutes do not explicitly allow it.

Further, this Note also addresses unresolved issues following Tyler's ruling, including how the …

Predetermined Event Wagering And Betting On The Past, Emmaline Friederichs

Cardozo Law Review

The newfound freedom of states to legalize sports betting following the demise of the Professional and Amateur Sports Protection Act in 2018 has led to rapid growth of the sports betting market. In an attempt to further capitalize on the appetite for sports wagering, states and sportsbooks have recently started to expand their offerings by opening betting lines on entertainment award shows. This move, paired with WWE’s recent interest in entering the market, has raised concerns that predetermined events are particularly vulnerable to event manipulation and betting using insider information. This Note argues that the current state regulatory schemes are …

Data Privacy By Contract, Ifeoma Ajunwa, Austin Kamer

Cardozo Law Review

Protecting consumer privacy rights presents a particular challenge given the prevalence of data breaches. This Article notes that current law is woefully inadequate in protecting the privacy rights of consumers. Notably, the law fails in the following four areas: (1) classification of consumer data, (2) lack of a comprehensive approach, (3) after-the-fact focus, and (4) limited accountability for third parties. Although it may be impossible to eliminate all data breaches, more regulations can bolster protection without restricting technological advancements. This Article proposes a contractual approach to privacy protection for consumers. It argues that the creation of mandatory implied contractual terms …

Adjudicating Algorithms: Accountability In Regulation Of Surveillance, Privacy, And Discrimination, Peter Margulies

Cardozo Law Review

The movement for accountable algorithms has attained critical mass. That momentum includes a range of areas where the collection of data plays a key role, including privacy, online disinformation, surveillance, and screening for credit, housing, employment, and government benefits. For example, the White House has released an Artificial Intelligence (AI) Bill of Rights that outlines standards and recourse for a host of AI applications that touch human needs and endeavors. Assessments, disclosure, and procedures for filing complaints about abuse are frequent features in this turn toward accountability. However, at least in the United States, accountability is still a set of …

The Meta Oversight Board's Human Rights Future, Laurence R. Helfer, Molly K. Land

Cardozo Law Review

Responses to the new Oversight Board created by Facebook (now Meta) have run the gamut from enthusiastic to overtly suspicious. Many observers are highly skeptical of the Board's ability to hold Meta accountable or to protect the company's users. Much of this skepticism is based on a misplaced analogy between the Board and domestic courts. We argue, in contrast, that the core challenges and opportunities that the Oversight Board faces are similar to those confronted by international human rights tribunals. Analyzing the Oversight Board as a de facto human rights tribunal sheds light on the strengths and weaknesses of its …

Beyond Offense: Why The First Amendment Does Not Protect Deliberate Misgendering, Molly Dower

Cardozo Law Review

No abstract provided.

The Forgotten Jurisprudence Of Parole And State Constitutional Doctrines Of Vagueness, Kristen Bell

Cardozo Law Review

The majority of carceral sentences in the United States include the possibility of discretionary release on parole. Most such sentences, however, are unconstitutionally vague. Their unconstitutionality has gone unnoticed because contemporary scholarship and litigation about vague laws have focused on the U.S. Constitution in lieu of state constitutions. This Article unearths historic state court decisions holding that sentences that end through the discretionary judgment of a parole board are “void for uncertainty.” Although state void for uncertainty doctrines share some similarity with the federal vagueness doctrine, they are far more demanding as applied to criminal punishment. By urging revival of …

The Charter School Network (Almost) No One Wants: Mobilizing Regulation And Litigation To Serve The Public Interest, Joni Hersch, Colton Cronin

Cardozo Law Review

Publicly funded, independently operated charter schools entered the public sector three decades ago with the promise of innovating public education to better serve students in underperforming schools. Despite limited evidence of improved educational outcomes, charter schools are now an established part of the education system, with around 7,800 charter schools serving more than seven percent of public, school students.

Although charter schools have long been associated with the controversial school choice movement, a recent entrant into the charter school arena has created new and urgent concerns. Hillsdale College, through its affiliate Barney Charter School Initiative, has been making escalating inroads …

Why A New Deal Must Address The Readability Of U.S. Consumer Contracts, Michael L. Rustad

Cardozo Law Review

United States companies are increasingly drafting consumer contracts that are complex and unreadable, thus making it difficult for many Americans to comprehend terms of use that apply to goods and services. Many U.S. companies are creating terms of use that are, in effect, rights-foreclosure schemes. Many consumer agreements cap damages at a nominal amount, disclaim all warranties, limit remedies, and impose mandatory arbitration clauses and class action waivers. U.S. courts enforce these unfair mass-market contracts with few exceptions. My proposal for a New Deal for Consumer Contracts, as described in this Article, would impose a more exacting readability standard, enforcing …

The Lord Is My Strength And My Shield: The Ecclesiastical Abstention Doctrine In In Re Diocese Of Lubbock, Kerri A. Matulis

Cardozo Law Review

No abstract provided.

Free Speech & Abortion: The First Amendment Case Against Compelled Motherhood, Raymond Shih Ray Ku

Cardozo Law Review

The most important lessons are taught by example. Children learn the fundamental values that guide them throughout their lives from the examples set by their parents, especially their mothers. Before and after they understand language, they learn by observing and imitating the actions of their parents. For almost fifty years, Roe v. Wade guaranteed pregnant women the freedom to determine whether to carry their pregnancy to term. The right to obtain a safe abortion prior to viability is the most significant and controversial aspect of this freedom. The Supreme Court is now poised to overturn what it previously described as …

Child Pornography And Criminal Justice Reform, Dawinder S. Sidhu, Kelsey Robinson

Cardozo Law Review

Drug offenses lie at the heart of the movement for criminal justice reform, and for good reason. Drug policy is defined by severe and disproportionate penalties owing to a retributive, factually flawed, and hurried congressional process. These central characteristics apply to the child pornography context as well. Though drug sentencing is problematic enough, child pornography sentencing is arguably worse. The U.S. Sentencing Commission has disavowed the child pornography sentencing guidelines and invited judges to vary from them. Judges have done just that, varying in sixty-three percent of all cases, more than any other offense type.

In this Article, we identify …

The Coming Causation Revolution In Employment Discrimination Litigation, D’Andra Millsap Shu

Cardozo Law Review

For more than a decade, employment discrimination causation law has been a confusing, often overly restrictive quagmire that has contributed substantially to the paltry success rate of plaintiffs in employment discrimination cases. Most of these cases are dismissed pretrial, all too often based on a failure of causation. A key reason traces back to loose and misleading language—centered on a single word—in a 2009 Supreme Court opinion involving the but-for causation standard that applies in most discrimination cases. The Court said that the discriminatory motive must be “the” but-for cause of the employer’s action when it should have said “a” …

Patent Law’S Externality Asymmetry, Peter Lee

Cardozo Law Review

Technologies such as social media, autonomous vehicles, and “big data” analytics generate enormous benefits for society, but they also create substantial harms. Many of these effects take the form of externalities—external benefits and harms that a decisionmaker (such as an inventor) imposes on third parties without charge or compensation. Considering negative externalities, for example, social media networks spread misinformation throughout the electorate, autonomous vehicles threaten the jobs of millions of professional drivers, and predictive policing based on big data can lead to unreasonable searches and seizures. Externalities can cause inefficient resource allocation, and the classic remedy is to “internalize” externalities …

Racist History And The Second Amendment: A Critical Commentary, Patrick J. Charles

Cardozo Law Review

No abstract provided.

Critical Legal Studies And The Police, Nirej Sekhon

Cardozo Law Review

Constitutional police regulation is a complex tangle of substantive rights, remedies, and procedural rules. Together, they appear to scaffold a cohesive system of police restraint. Legal scholars tend to focus criticism on specific rules, impelled by faith that the system can be made to serve its core purpose: protecting civilians against police overreach and abuse. Drawing on critical legal studies, this Article contends that constitutional police regulation is incapable of realizing its putative purpose. Constitutional police regulation frames policing as a series of isolated, individual police-civilian encounters. This is compounded by the unpredictable interpretive interplay between substantive, remedial, and procedural …

War & The Constitution: Chemical Agents And The Rights Of Protestors, Yomidalys GüIchardo Morel

Cardozo Law Review

No abstract provided.

Introduction, Kate Levine

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.

Freedom From Thirst: A Right To Basic Household Water, Martha F. Davis

Cardozo Law Review

No abstract provided.

One Or Many? Critiquing New York’S "Unfortunate Event" Test For Determining Occurrences In Light Of The Passage Of The New York Child Victims Act, Kharis Lund

Cardozo Law Review

No abstract provided.

What Is The Difference Between A Conclusion And A Fact?, Howard M. Erichson

Cardozo Law Review

In Ashcroft v. Iqbal, building on Bell Atlantic Corp. v. Twombly, the Supreme Court instructed district courts to treat a complaint's conclusions differently from allegations of fact. Facts, but not conclusions, are assumed true for purposes of a motion to dismiss. The Court did little to help judges or lawyers understand this elusive distinction, and, indeed, obscured the distinction with its language. The Court said it was distinguishing "legal conclusions" from factual allegations. The application in Twombly and Iqbal, however, shows that the relevant distinction is not between law and fact, but rather between different types of …

Notice Pleading In Exile, Adam N. Steinman

Cardozo Law Review

According to the conventional wisdom, the Supreme Court's 2009 decision in Ashcroft v. Iqbal discarded notice pleading in favor of plausibility pleading. This Article-part of a symposium commemorating the Iqbal decision's tenth anniversary-highlights decisions during those ten years that have continued to endorse notice pleading despite Iqbal. It also argues that those decisions reflect the best way to read the Iqbal decision. Although Iqbal is a troubling decision in many respects, it can be implemented consistently with the notice-pleading framework that the original drafters of the Federal Rules of Civil Procedure had in mind.

A Second Step Act For The States (And Counties, And Cities), John F. Pfaff

Cardozo Law Review

No abstract provided.

Federal Criminal Risk Assessment, Brandon L. Garrett

Cardozo Law Review

No abstract provided.

The First Step Is Actually The ‘Next Step’ After Fifteen Years Of Successful Reforms To The Federal Criminal Justice System, Jesselyn Mccurdy

Cardozo Law Review

No abstract provided.

Preface By The Special Editor: A Benediction, An Exhortation, Michael Pantazakos

Cardozo Law Review

In honor of Arthur Jacobson, may we study the works offered herein with both diligence and delight as a living benediction.

The Claims And Limits Of Justice Scalia's Textualism: Lessons From His Statutory Standing Decisions, Michael P. Healy

Cardozo Law Review

Two decisions written by Justice Scalia near the end of his life, Lexmark International Inc. v. Static Control Components, Inc., 572 U.S. 479 (2014), and Thompson v. North American Stainless, LP, 562 U.S. 170 (2011), reshaped the law of statutory standing and provide important insights into the claims and limits of textualism. These decisions have reshaped the law of statutory standing in three ways. They have changed the legal terminology; expanded the range of cases to which the zone-of-interests test applies; and changed the application of the zone-of-interests test when it applies to determine statutory standing. This Article discusses these …

Legal Sets, Jeremy N. Sheff

Cardozo Law Review

In this Article, I propose that the practices of legal reasoning and analysis are helpfully understood as being primarily concerned not with rules or propositions, but with sets. This Article develops a formal model of the role of sets in the practices of legal actors in a common-law system defined by a recursive relationship between cases and rules. In doing so, it demonstrates how conceiving of legal doctrines as a universe of discourse comprising (sometimes nested or overlapping) sets of cases can clarify the logical structure that governs marginal cases and help organize the available options for resolving such cases …