Benjamin N. Cardozo School of Law: Faculty Publications

Permanent URI for this collectionhttps://hdl.handle.net/20.500.12202/9313

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Adultery, infidelity, and consensual non-monogamy
(Wake Forest UP, 2020) Stein, Edward; 0000-0002-2323-6185
Thirty-eight states have laws in place that relate to adultery. Though criminal laws against adultery are not frequently enforced, the network of criminal laws, tort laws, and domestic relations laws related to adultery disincentivize extra-marital sex, an effect heightened by the stigma and other social attitudes associated with adultery. This essay argues that the socio-legal state of affairs concerning adultery is bad for marriages (and similar relationships), bad for public health, and is simply bad public policy. This is the case, in no small part, because the law treats infidelity — having sex with someone other than your primary partner without his or her consent or knowledge — and consensual non-monogamy in the same manner. In fact, infidelity and consensual non-monogamy are significantly different ethically, psychologically, and practically, a claim buttressed by social scientific research. In contrast to proposals to abolish laws that disincentivize adultery whole cloth, this essay argues for more nuanced set of reforms that would end the negative treatment of consensual non-monogamy while leaving unchanged laws relating to infidelity.
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Against the spirit of the age: The rationale of relational contracts
(Oxford, 2023) Goodrich, Peter
In his long-awaited treatise on the relational theory of contracting, David Campbell provides a rigorous, systematic and consistently lucid account of mutual recognition as the basis of all volitional obligations. Fiercely negotiated economic transactions find their social expression in legally enforceable agreements that are to be followed scrupulously to the letter both by the parties and by the courts. This is because, in his view, mutual recognition, the co-operative economic enterprise, is memorialised in the legal instrument. Using the example of the emergent doctrine of good faith, this article argues that while such literalism proffers an admirably bright line for enforcement of agreements, it reduces the import and value of the relational theory of contract as an ethical and political accounting of market transactions. Literalism here is problematic not simply because of the inherent historicity and social diversity of language, but because in concepts such as good faith or reasonable interpretation, the purpose of the inscribed transaction has to be evaluated not only in terms of the plurality of the contract’s clauses, but also with a view to the overall shared intent of the exchange. For the relational theory of contract to have the impact that it merits, it needs to strengthen its account of how mutual recognition and the ethical and political dimensions of relationship best gain expression in the good-faith interpretation of the proximities manifest in agreement.
Open Access
All roads lead to Rome: Combating impunity for perpetration of slave trade and slavery crimes
(Cardozo Legal Studies Research Paper No. 734, 2023-11-06) Kestenbaum, J. G.; 0000-0002-5189-496X
Abstract The Republic of Sierra Leone has proposed amendments to the Rome Statute of the International Criminal Court (ICC) to include, inter alia, provisions for the slave trade as a crime against humanity and has recommended that the General Assembly include the slave trade as an enumerated crime in the Draft articles on Prevention and Punishment of Crimes Against Humanity (CAH) (Draft articles). This declaration came nearly five years after Cardozo’s Benjamin B Ferencz Human Rights and Atrocity Prevention Clinic, on behalf of slavery crimes expert Patricia Viseur Sellers, sent commentaries to the United Nations International Law Commission (ILC) to revise in a similar fashion the Draft articles. The Rome Statute creates a wide impunity gap by omitting the slave trade entirely as a war crime and crime against humanity and by including only those conflict-related slavery acts that include causing someone to engage in an act of a sexual nature. Specifically, the Rome Statute does not enumerate the slave trade or slavery under Article 8 as war crimes. It does not define the slave trade within the crime of enslavement under Article 7(g) as a crime against humanity or explicitly enumerate the slave trade within the context of a widespread or systematic attack against a civilian population. War crimes conduct is not captured fully or explicitly under ICC jurisdiction because the Rome Statute sanctions only persons exercising powers attaching to the rights of ownership who also cause that person to engage in an act of a sexual nature. Crimes against humanity conduct also escapes legal sanction when perpetrators transport or otherwise engage in any slave trade acts without exercising powers attaching to the right of ownership over a person. Furthermore, the Rome Statute’s bifurcation of enslavement and sexual slavery lead to non-factual, incomplete, and discriminatory results. Sexual slavery is enslavement; its separate enumeration as a crime against humanity has required some victims to prove additionally that they were caused to engage in an act of a sexual nature in violation of non-discrimination and others’ slavery harms to escape legal characterization altogether. Sierra Leone’s proposals to amend the Rome Statute and CAH Draft articles to enumerate, inter alia, the slave trade as a crime against humanity will go a long way in closing the impunity gaps in international law for slavery and slave trade crimes’ perpetration. Such amendments will bring the Rome Statute and CAH Draft articles in line with customary international law regarding the slave trade, which is currently ‘missing in action’ in international criminal law adjudication and redress.
Open Access
Applying the first amendment to the internal revenue code: Minnesota voters alliance and the tax law’s regulation of nonprofit organizations’ political speech.
(Albany Law School of Union University, 2020-01-17) Zelinsky, Edward
On its face, Minnesota Voters Alliance is about which t-shirts, hats, and buttons voters can wear at the polls. However, the Court’s First Amendment analysis in Minnesota Voters Alliance extends beyond apparel at polling places. That decision impacts the ongoing debate about the Johnson Amendment,12 the now controversial provision of the Internal Revenue Code (“Code”) that forbids organizations listed in section 501(c)(3)13 from intervening in political campaigns. Minnesota Voters Alliance also affects the proper construction of section 501(c)(3)’s ban on lobbying by tax-exempt entities14 as well as other provisions of the tax law taxing and precluding campaign intervention by tax-exempt organizations.15 (from Introduction)
Open Access
Asymmetric review of qualified immunity appeals
(John Wiley & Sons, Inc, 2023) Reinert, Alexander A.; 0000-0002-0258-7656
This article presents results from the most comprehensive study to date of the resolution of qualified immunity in the federal courts of appeals and the US Supreme Court. By analyzing more than 4000 appellate decisions issued between 2004 and 2015, this study provides novel insights into how courts of appeals resolve arguments for qualified immunity. Moreover, by conducting an unprecedented analysis of certiorari practice, this study reveals how the US Supreme Court has exercised its discretionary jurisdiction in the area of qualified immunity. The data presented here have significant implications for civil rights enforcement and the uniformity of federal law. They show that qualified immunity, when deployed, often bars relief for plaintiffs. Moreover, they show that courts of appeals reverse decisions to deny qualified immunity far more often than they reverse decisions to grant qualified immunity, and that this asymmetric review is correlated with traditional indicators of judicial ideology, among other variables. Significantly, the data also suggest that the asymmetric review that characterizes appellate decisions is also present in the Supreme Court’s certiorari practice
Open Access
Autonomous automobiles and the trolley problem
(2019) Bleich, J. David
Autonomous vehicles employ advanced sensor technology to detect surroundings and sophisticated algorithms to predict the trajectory of nearby moving objects. Self-driving cars can also use information technology to communicate with each other, thereby achieving better coordination among various vehicles on the road. However, since automobiles are heavy and move at high speeds they have limited maneuverability and often cannot stop before traversing a significant distance. Therefore, even if automobile-to-automobile communication, sensors and algorithms are all functioning properly, autonomous automobiles will not always have sufficient time before collision with objects that suddenly change direction. It is inevitable that self-driving automobiles will sometimes collide with each other, with human-driven automobiles, and with pedestrians
Open Access
Binaries: Remarks on Chaim N. Sailman’s “Halakhah.”
(Villanova University School of Law, 2019) Weisberg, Richard H.
Binaries are helpful but deceptive, and this may be particularly true of simplistic theological dichotomies purporting to show that the Talmud is "Nitpicking" and Christian Biblical understandings "Expansive", or that Jews believe in the "letter" and Christians in the "spirit", Jews in strict Justice and Christians in "mercy", etc. This essay, which focuses on the character of Shylock and the legalistic cruelty inflicted upon him by Venice's Christians, dissolves such Binaries, leaving in their wake greater clarity about the contrary need to "re-binarize" the falsely unified
Open Access
The commerciality of non-profit hospitals requires them to be taxed: Bringing the debate to a conclusion
(University of Virginia, 2023) Zelinsky, Edward A.
Table of contents i. Introduction 402 II. The academic debate about the federal income tax exemption of charitable institutions 407III. Recognizing the commercially of nonprofit hospitals 412 iv. The [...]
Open Access
Comparing Wayfair and Wynne: Lessons for the Future of the Dormant Commerce Clause
(Chapman University, Fowler School of Law, 2019-01-01) Zelinsky, Edward A.
•A comparison of South Dakota v. Wayfair with Comptroller of the Treasury of Maryland v. Wynne indicates that the prospect of the Supreme Court jettisoning the dormant Commerce Clause altogether is unlikely. However, the justices who would abandon the dormant Commerce Clause can exercise decisive influence in particular cases as they did in Wayfair. The current Court’s dormant Commerce Clause skeptics – Justices Thomas and Gorsuch –provided the crucial fourth and fifth votes in Wayfair to overturn Quill. •It will continue to be rare for the Court to reverse its own dormant Commerce Clause decisions. Far from opening the floodgates, Wayfair indicates that the Court is reluctant to overrule its dormant Commerce Clause cases in light of Congress’s ultimate constitutional power to regulate interstate commerce. However, when neither the Court nor Congress has spoken on a particular issue, the Court will consider extending the dormant Commerce Clause as it did in Wynne. •Going forward, an important issue under the dormant Commerce Clause will be the double taxation which results when an individual is deemed to be a resident for tax purposes by two states, each of which taxes all of the dual resident’s income. Wayfair and Wynne suggest that, despite the compelling arguments against the double state taxation of dual residents’ incomes, the Court will be reluctant to set aside its precedents upholding the double state taxation of dual residents. •The Court is more likely to extend dormant Commerce Clause protection when states are overly-aggressive in taxing the incomes of nonresidents. In particular, the Court is more likely to apply the dormant Commerce Clause apportionment principle to curb New York’s “convenience of the employer” doctrine to avoid New York’s double state income taxation of telecommuters on the days they work at their out-of-state homes.
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Congressional administration of foreign affairs
(Virginia Law & Business Review Association, 2020-04) Ingber, Rebecca; 0000-0003-0219-3849
Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President's powers is drawn, it is well established that, as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security. And yet, while scholarship focuses on the accretion of power in the presidency, presidential primacy is not the end of the story. The fact that the President usually "wins" in foreign affairs does not mean that the position the President ultimately chooses to take is preordained. Questions of foreign policy and national security engage diverse components of the executive branch bureaucracy, which have overlapping jurisdictions and often conflicting biases and priorities. And yet they must arrive at one executive branch position. Thus the process of decision making, the weight accorded the position of any given decision maker, and the context in which the decision is made together shape the ultimate position the President takes. __This Article explores and critiques the foreign policy role Congress can—and does—play in structuring and rearranging the relative powers of those internal actors and the processes they take to reach their decisions, in order to influence and even direct the President's ultimate position. Having yielded much of the ground on substance, Congress has an opportunity for a second bite at the apple, and may influence the policy directions of the presidency by manipulating its internal workings. There are risks to deploying "process controls," as I term these measures, in lieu of direct substantive engagement, but I argue that Congress can and should use these tools more instrumentally to influence the course of foreign policy in areas where it is otherwise unlikely to assert itself as a coequal branch and necessary check on presidential power.heir decisions, in order to influence and even direct the President’s ultimate position. Having yielded much of the ground on substance, Congress has an opportunity for a second bite at the apple, and may influence the policy directions of the presidency by manipulating its internal workings. There are risks to deploying “process controls,” as I term these measures, in lieu of direct substantive engagement, but I argue that Congress can and should use these tools more instrumentally to influence the course of foreign policy in areas where it is otherwise unlikely to assert itself as a coequal branch and necessary check on presidential powe
Open Access
Coronavirus queries (3): Priorities in allocation of medical resources
(Rabbinical Council of America (RCA), 2021) Bleich, J. David
Advances in medicine and medical technology leading to preservation of countless human lives are certainly more than welcome. But modern medicine has also brought in its wake heretofore virtually unknown moral quandaries, namely, how to allocate machinery, medicine and medical services when they are not sufficient to save every life that might be saved. The dilemma was dramatized decades ago with the establishment of so-called “God committees” to assign use of the then newly-invented dialysis machine to otherwise end-stage renal patients. Less dramatic, but equally vexing, are regularly made decisions regarding assignment of I.C.U. beds. Other such dilemmas arise as well. (from Introduction)
Open Access
Coronavirus queries (Part 4): Assignment of ventilators.
(Rabbinical Council of America (RCA), 2022) Bleich, J David
Two young physicians consulted R. Moshe Feinstein, Iggerot Mosheh, Hoshen Mishpat, II, no. 73, sec. 2, with regard to triage dilemmas. In particular, they sought advice as to whether they might withhold life-prolonging attention from one patient in order to provide life-saving treatment to another patient. Institutionally, the same problem writ large occurs in situations in which a medical facility confronted by a dearth of ventilators may hold a ventilator in reserve for the benefit of a future patient whose life could be saved rather than making it available immediately to a patient whose life can be prolonged for only a relatively brief period of time. ¶ That dilemma confronted an emergency-room physician in Johannesburg, South Africa. The hospital possessed only a single ventilator and limited its use to patients who were expected to recover. The hospital was either concerned that a patient, once attached to the ventilator, could not lawfully be removed or the hospital was not prepared to do so over the protestations of a patient’s relatives. The doctor questioned whether he should abide by the hospital’s protocol or whether he should make the ventilator available to all patients on a “ first come, first serve” basis. That query was addressed by R. Yitzchak Zilberstein, Shi’urim le-Rofe’im, II, no. 164 and in his Hashukei Hemed, Bava Mez. i’a 62a; R. Shlomoh Zalman Auerbach, Minh. at Shlomoh, II, no. 82, sec. 2; R. Moshe Sternbuch, Teshuvot ve-Hanhagot, I, no. 858; R. Eliezer Waldenberg, Be-Shevilei ha-Refu’ah, no. 7 (Elul 5745), reprinted in Ziz. Eli’ezer, XVII, no. 10; R. Samuel ha-Levi Woszner, Teshuvot Shevet ha-Levi, VI, no. 242; and the late R. Moshe Soloveitchik of Zurich, Ve-ha-Ish Mosheh, II, no. 4. (from Introduction)
Open Access
Coronavirus, telecommuting, and the ‘Employer Convenience’ Rule
(Tax Analysts, 2020-03-20) Zelinsky, Edward A.
In this article, Zelinsky criticizes New York’s income tax penalty for nonresident telecommuters, particularly in the context of the coronavirus emergency
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DNA in Halakhah
(Ktav, 2021) Bleich, J. David
"Judaism and Jewish law are eternal and immutable. But the world changes and presents novel challenges. Modern science and developing technology create facts on the ground that raise relevant contemporary questions of which Halakhah must take cognizance. Fingerprint examination, blood typing and DNA matching were all unknown until recent decades. Jewish law posits strict laws of evidence and generally excludes circumstantial evidence for most purposes. Rabbi Bleich's comprehensive work explores the nature of DNA evidence in establishing paternity, the relief of agunot, mamzerut, inheritance, identity as a Jew and as a kohen, the so-called "Jewish" gene and the kohen gene." -- Publisher's description. Source: Publisher
Open Access
Erie doctrine, state law, and civil rights litigation
(University of Akron School of Law, 2019) Reinert, Alexander; 0000-0002-0258-7656
•How should state law questions and claims be resolved when they arise in federal civil rights litigation? In prior work, I have criticized the given wisdom that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. In that work, I proposed a framework, “Erie Step Zero,” to place Erie questions in their jurisdictional context. As I have argued, the concern with forum shopping and unequal treatment that prompted Erie have less salience in federal question cases. Different concerns emerge when one focuses on the presence of state law issues in federal question cases. In this essay, I discuss these concerns in the specific context of federal civil rights litigation. •In general, when conflicts between state law and federal common law arise in federal question cases, federal law should not be unnecessarily displaced by a reflexive application of Erie in any case in which a state law claim is presented. After all, while forum shopping can be a necessary evil in diversity cases, it can also be a virtue in federal question cases, because litigants are encouraged to resort to the uniformity, experience, and solicitude of federal courts. •Moreover, in civil rights litigation in federal court, there may be even stronger reasons to prefer federal law – federal jurisdiction is made available in civil rights cases not only for the usual reasons. In most civil rights cases, whether founded on federal or state substantive law, state and local entities and their officials are defendants, raising suspicion about the application of state law that interferes with the vindication of federal rights. At the same time, where state law is more open to holding officials accountable for civil rights violations, there may be reasons to apply state law over more restrictive federal law. This essay will therefore consider how to analyze conflicts between state and federal law in civil rights litigation brought in federal court.
Open Access
Good governance paper No. 17: How to use the bureaucracy to govern well.
(Reiss Center on Law and Security at New York University School of Law., 2020-10-31) Ingber, Rebecca; 0000-0003-0219-3849
[Editors’ note: This essay is one in a series—the Good Governance Papers —organized by Just Security . In these essays, leading experts explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information, you can read the Introduction by the series’ editors.]
Open Access
Habermas at 90: A personal and professional tribute.
(Oxford UP, 2019-10) Rosenfeld, Michel
As I reflect on Habermas’s contributions to the fields in which I have labored, I am certain that his theories will endure well beyond our own times. In this respect, the analogy between Habermas and Kant strikes me as particularly apt. Kant’s categorical imperative is exemplary though impossible. In a world in which none of us are self-sufficient, we cannot but rely on others as means. And precisely because of that, we should be mindful of the moral ideal according to which every one of us is an end in him/herself. Similarly, in the case of Habermas, pure procedural justification, consensus, and universalization will always remain beyond our horizon, but we should incessantly strive toward them in order to coexist fairly and peacefully in our increasingly pluralistic settings. Finally, constitutional patriotism may never stand alone, but its essence should always remain within our compass. (from Conclusion)
Open Access
How to stop a war
(Atlantic Monthly Group, 2020-01-09) Ingber, Rebecca; 0000-0003-0219-3849
This story was updated on January 9, 2020 at 8:30am. Following the U.S. drone strike that killed Qassem Soleimani last week, and the Iranian strikes on an Iraqi base housing U.S. troops earlier this week, the conflict between the United States and Iran appears to be teetering on a knife's edge. The president did not request or receive authorization from Congress before taking the strike, and many are now calling on Congress to step up and do something to prevent the country from sliding into full-blown war. With the immediate crisis possibly defused-for the moment-now is the time for Congress to engage, and it has a number of tools at its disposal to do so. (from Introduction)
Open Access
How U.S. family law might deal with spousal relationships of three (or more) people.
(Arizona State University, 2020) 0000-0002-2323-6185
For much of this nation’s history, the vast majority of people have believed that being married to more than one person at the same time is deeply problematic. Further, polygamous marriage has never been legal in the United States. Despite this, some people have been in plural or group relationships and some of these people have wished to gain legal recognition for these relationships. The arguments for recognizing such relationships are persuasive, but the prospects for legalization of polygamous marriage seem slim in the near future. This Article offers a suggestion of how the law of domestic relations might deal with such relationships, focusing on same-sex “triads.” The proposal is that domestic partnership or civil union laws, which remain on the books in some jurisdictions, but are now rarely used, could be repurposed and adapted to recognize and protect triads and perhaps other group and plural relationships.
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If there was no 'imminent' attack from Iran, killing Soleimani was illegal.
(The Washington Post, 2020., 2020-01-15) Ingber, Rebecca; 0000-0003-0219-3849
Ultimately, however, Congress and others outside the executive branch can do only so much to rein in a president who is determined to stretch the bounds of his or her power. The president has immediate control over the military. And while military officers and others in the chain of command may question or push back on his proposals, they will follow his orders (short of clear war crimes and other patently illegal acts). The most significant check on a president who has little inherent interest in law or norms is a political one. Elections matter. Law can constrain the president, but only if we care, sufficiently and in sufficient numbers, when he violates it. (from Conclusion)

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