Cardozo law review最新文献

{"title":"We the People: These United Divided States","authors":"C. Powell","doi":"10.2139/SSRN.3155282","DOIUrl":"https://doi.org/10.2139/SSRN.3155282","url":null,"abstract":"Examining federalism debates in the context of climate change and sanctuary jurisdictions, this article offers a new theory in arguing that the federal government’s approaches to these inherently transnational concerns represent classic political market failures. Adapting John Hart Ely’s notion of addressing such failures – from Democracy and Distrust – the paper examines a dynamic overlooked by both constitutional law and international law scholars. I explore two political market failures: (1) how minorities (here, immigrants) can be systematically locked out of the political process and, by contrast, (2) how influential minorities (here, the fossil fuel industry) can externalize the costs of their negative conduct through regulatory capture. In such cases, policy making above and below the nation-state is helpful for addressing such failures, as we currently see with state and local policy innovation in the climate and immigration contexts.","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"40 1","pages":"2685"},"PeriodicalIF":0.0,"publicationDate":"2019-01-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48496175","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Uncertain Path of Class Action Law","authors":"Sergio J. Campos","doi":"10.2139/SSRN.3124353","DOIUrl":"https://doi.org/10.2139/SSRN.3124353","url":null,"abstract":"For the past nine terms the Supreme Court has increased its focus on the law of class actions. In doing so, the Court has revised the law to better accord with a view of the class action as an exception to an idealized picture of litigation. This “exceptional” view of the class action has had a profound impact not only on class action law, but procedural and substantive law in general. However, in the October 2015 term the Court decided three class action cases which support an alternative, “functional” view of the class action, one that does not view the class action as exceptional, but as one of many equally permissible tools to serve the objectives of substantive law. This alternative view has the potential to have a similarly significant impact on the law, but it is not certain whether the Court will further develop this alternative, especially given its most recent class action decisions. This article discusses the development of the “exceptional” view of the class action, the awakening of a “functional” alternative view, and the uncertain path ahead.","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"40 1","pages":"2223"},"PeriodicalIF":0.0,"publicationDate":"2018-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43387806","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Do Community Benefits Agreements Benefit Communities","authors":"D. Barbieri, W. Edward","doi":"10.2139/SSRN.3028688","DOIUrl":"https://doi.org/10.2139/SSRN.3028688","url":null,"abstract":"Community Benefits Agreement (CBA) campaigns and public discussions about community benefits are becoming the norm in deciding how large urban projects are built outside of formal public land use approvals. CBAs have revolutionized land use approvals for large, public-private economic development projects: now developers and coalitions representing low-income communities can settle their disputes before formal project approval. As a result, CBAs are now commonplace nationwide.Legal scholarship, however, has failed to keep up with these important developments. This Article aims to do just that by examining how CBAs, when properly negotiated, lower transaction costs, enhance civic participation, and protect taxpayers. It argues that CBAs achieve all these outcomes well, and more efficiently than existing government processes. Indeed, this Article’s central argument is that to the extent that scholars have analyzed CBAs, their analyses have gone astray by either dismissing CBAs as harmful to communities or by focusing on the role of the state in negotiating what really should be a private contract between a coalition of community groups and a developer. It is a mistake to give the state’s role in CBAs primacy over the community coalition because the inclusion of government in the CBA bargaining process creates a host of constitutional protections for developers — namely that the community benefits must be connected to and proportional with the instant government approval.This Article places focus back on CBAs as private contracts enforceable by inclusive and representative community coalitions. It presents a case study of a successful CBA negotiated for the development of the Kingsbridge National Ice Center in the Bronx. This Article proposes a framework for assessing the impact of CBAs in economic development — one that recognizes the nuanced role that states and municipalities play in the formation and enforcement of CBAs. The framework focuses on the extent to which CBAs (1) lower transaction costs by effectively resolving disputes among developers and community groups, (2) increase civic participation in public processes, (3) protect taxpayers, and (4) avoid government intervention and constitutional protections for developers. This Article concludes with recommendations for the appropriate, limited role of government in CBA negotiations.","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"37 1","pages":"1773"},"PeriodicalIF":0.0,"publicationDate":"2016-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68493309","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Technological Opacity, Predictability, and Self-Driving Cars","authors":"Harry Surden, Mary-Anne Williams","doi":"10.2139/SSRN.2747491","DOIUrl":"https://doi.org/10.2139/SSRN.2747491","url":null,"abstract":"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 constrained in their range of movement (e.g. elevators). The movements of today’s machines are thus broadly predictable. The unrestricted, computer-directed movement of autonomous vehicles is an entirely novel phenomenon that may challenge certain unarticulated assumptions in our existing legal structure.Problematically, the movements of autonomous vehicles may be less predictable to the ordinary people who will share their physical environment — such as pedestrians — than the comparable movements of human-driven vehicles. Today, a great deal of physical harm that might otherwise occur is likely avoided through humanity’s collective ability to predict the movements of other people. In anticipating the behavior of others, we employ what psychologists call a “theory of mind.” Theory of mind cognitive mechanisms that allow us to extrapolate from our own internal mental states in order to estimate what others are thinking or likely to do. These cognitive systems allow us to make instantaneous, unconscious judgments about the likely actions of people around us, and therefore, to keep ourselves safe in the driving context. However, the theory-of-mind mechanisms that allow us to accurately model the minds of other people and interpret their communicative signals of attention and intention will be challenged in the context of non-human, autonomous moving entities such as self-driving cars.This article explains in detail how self-driving vehicles work and how their movements may be hard to predict. It then explores the role that law might play in fostering more predictable autonomous moving systems such as self-driving cars, robots, and drones.","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2016-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2747491","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68286479","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constituencies and Contemporaneousness in Reason-Giving: Thoughts and Direction After T-Mobile","authors":"Donald J. Kochan","doi":"10.2139/SSRN.2591234","DOIUrl":"https://doi.org/10.2139/SSRN.2591234","url":null,"abstract":"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 the fuller justification that this Article’s analysis provides. The predominate focus in reason-giving by courts and scholars has been on when the agency must generate or develop reasons, not necessarily on when they must share them with the public. And courts and scholars have focused significantly on how reasons facilitate judicial review, but not necessarily so much on who else can demand the contemporaneous production of reasons associated with an agency’s decision. This Article’s framework seeks to broaden the focus. It calls for rules that mandate contemporaneous generation and contemporaneous revelation of reasons for immediate review by all interested constituencies at the time of decision. The two primary conditions on reason-giving recognized in T-Mobile should receive broad implementation across the field of administrative law. Contemporaneous production of reasons with an eye toward cooperatively informing multiple constituencies who require, demand, or simply benefit from being able to access an agency’s reasons works to better serve the administration of our laws and improve the quality of the rules generated.","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"37 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2015-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68214402","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Law and Financial Transparency in Churches: Reconsidering the Form 990 Exemption","authors":"J. Montague","doi":"10.13130/1971-8543/4352","DOIUrl":"https://doi.org/10.13130/1971-8543/4352","url":null,"abstract":"Most tax-exempt organizations are required to file the IRS Form 990, an information return that is open to the public. The Form 990 is used by watchdogs and donors to learn detailed financial information about charities. However, churches are exempt from filing the Form 990 and need not disclose any financial information to the IRS, the public, or their donors. In December 2012, the Evangelical Council for Financial Accountability recommended to Senator Charles Grassley that Congress should preserve the exemption, despite recent financial scandals at churches.Examining the legislative history, this Article argues that the primary function of the information return has become its utility to donors, and policymakers have recognized the role that public access can play in keeping nonprofits honest and efficient. Unfortunately, because churches do not have to be transparent or accountable, few of them are.Using research and insights from sociology, this Article contends that because of their opacity and the unique nature of religious authority, churches are more likely to foster and shelter malfeasance. Churchgoers are unlikely to challenge leaders because doing so can endanger their position in the religious community, making it imperative that transparency be mandated by outside authorities. Ironically, increased transparency may actually be good for churches because, as studies suggest, it is likely to increase donations and because, by minimizing opportunities for financial improprieties, it may preserve the religious experience of churchgoers. In addition, transparency is consistent with the teaching of many Christian leaders and with the expressed preferences of a large portion of churchgoers.","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"29 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66186787","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Challenging the Death Penalty with Statistics: Furman, McCleskey and a Single County Case Study","authors":"Steven F. Shatz, Teresa Dalton","doi":"10.2139/SSRN.2146253","DOIUrl":"https://doi.org/10.2139/SSRN.2146253","url":null,"abstract":"In the forty year history of the Supreme Court's modern death penalty jurisprudence, two cases — Furman v. Georgia (1972) and McCleskey v. Kemp (1987) — stand out above all others. Both cases turned on the Court's consideration of empirical evidence, but they appear to have reached divergent — even altogether inconsistent — results. In Furman, the Court relied on statistical evidence that the death penalty was infrequently applied to death-eligible defendants to hold that the Georgia death penalty scheme was unconstitutional under the Eighth Amendment. In McCleskey, the Court, despite being presented with statistical evidence that race played a significant role in death-charging and death-sentencing in Georgia, upheld the revised Georgia scheme and McCleskey's death sentence against Equal Protection and Eighth Amendment challenges. The McCleskey decision called into question the use of statistical evidence to challenge the death penalty.In the present article, we report on a unique empirical study of the administration of the death penalty in Alameda County, California — the largest single-county death penalty study and the only study to examine intra-county geographic disparities in death-charging and death-sentencing. The data set, drawn from 473 first degree murder convictions for murders occurring over a 23-year period, compares death-charging and death-sentencing in the two halves of the county. During the study period, the two halves differed significantly in racial makeup — the population of North County was over 30% African-American, and of South County less than 5% African-American; and the two halves differed in the race of homicide victims — in North County, African-Americans were homicide victims roughly 4.5 times as often as Whites, while, in South County, Whites were homicide victims more than three times as often as African-Americans. The study reveals that there were statistically significant disparities in death-charging and death-sentencing according to the location of the murder: the Alameda County District Attorney was substantially more likely to seek death, and capital juries, drawn from a county-wide jury pool, were substantially more likely to impose death, for murders that occurred in South County. We argue that, McCleskey notwithstanding, statistical evidence such as the \"race of neighborhood\" disparities found in the present study should support constitutional challenges to the death penalty under both the Equal Protection Clause and the Eighth Amendment.","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"34 1","pages":"1227-1282"},"PeriodicalIF":0.0,"publicationDate":"2012-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2146253","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67950040","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"State Attorneys General Use of Concurrent Public Enforcement Authority In Federal Consumer Protection Laws","authors":"Amy Widman, Prentiss Cox","doi":"10.2139/SSRN.1850744","DOIUrl":"https://doi.org/10.2139/SSRN.1850744","url":null,"abstract":"Recent scholarly and legislative interest in state enforcement of federal law has led to the need for an empirical understanding of how and when these enforcement powers are used. This article reports on an examination of the use by state attorneys general of sixteen federal consumer protection laws that expressly allow for state enforcement. The data are sorted and analyzed by both single state actions and multistate actions over time, and by the involvement of federal agencies in the state cases. The data reveal a measured use of such powers by state attorneys general and robust state and federal cooperation in the enforcement of the statutes. This study should be useful for future legislative and scholarly examinations of federalism, enforcement powers, and consumer protection.","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"56 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2011-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67759479","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Freedom and faith - foundations of freedom of religion","authors":"Matthias Mahlmann","doi":"10.5167/UZH-20577","DOIUrl":"https://doi.org/10.5167/UZH-20577","url":null,"abstract":"","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"30 1","pages":"2473-2493"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70645903","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Right to Marry","authors":"C. Sunstein","doi":"10.2139/SSRN.612471","DOIUrl":"https://doi.org/10.2139/SSRN.612471","url":null,"abstract":"The Supreme Court has said that there is a constitutional \"right to marry\"; but what can this possibly mean? People do not have a right to marry their dog, their aunt, June 29, a rose petal, their neighbors, or a sunny day. This essay attempts to make some progress in understanding both the content and the scope of the right to marry. With respect to content, it concludes that people have no more and no less than this: a right of access to whatever expressive and material benefits the state now provides for the institution of marriage. It follows that the right to marry falls within the \"fundamental\" rights branch of equal protection doctrine, and is not properly understood in terms of substantive due process; it also follows that the state could abolish the official institution of marriage tomorrow. With respect to scope, the essay identifies a minimal understanding, to the effect that the right to marry is enjoyed by any couple consisting of one adult man and one adult woman. The minimal understanding can claim a plausible defense in a tradition-based understanding of fundamental rights; and on institutional grounds, a tradition-based understanding has a great deal of appeal. Its problem is that it has a degree of arbitrariness. This is a formidable problem, but for reasons of prudence, federal courts should not adopt a broader understanding that would, for example, require same-sex marriages to be recognized. The essay concludes with some remarks on the possible abolition of the official institution of marriage. It explains that there are plausible grounds for objecting to that institution and that there is a real question whether the current system would be chosen if a society were starting from scratch. It emphasizes that marriage is emphatically an government-run licensing system, embodying a set of governmental mandates and conditions. An understanding of this point should inform constitutional discussion, which ought not to proceed by identifying religious and official marriage, or by pretending that the official institution is in some sense natural and foreordained.","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"26 1","pages":"2081"},"PeriodicalIF":0.0,"publicationDate":"2004-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67775440","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}