Benjamin N. Cardozo School of Law: Faculty Publications

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

Browse

Now showing 1 - 20 of 48

Open Access
The ultimate green playbook for condos and coops.
(2023) Sobelsohn, Richard J.; 0000-0003-2374-8604
When a condominium or cooperative decides to incorporate sustainability modifications into its buildings, it is usually the result of some basic fundamentals. Some of these include a desire to reduce operating expenses, including a reduction in energy and water use. Other factors could be to improve resident health and safety, increase value, or comply with a law that requires that the property become greener. Whatever the reasons, if the entity controlling the property is a cooperative or condominium, it generally has some typical and otherwise condo- or coop-specific protocols that need to be followed so that the buildings reach the sought-after sustainability goal. This article will show how a condominium or cooperative can achieve whatever the desired result with as little liability as possible. Although most of this article focuses on New York properties, they merely exemplify how many other cities and states are affecting the homeowner associations.
Open Access
Time to enumerate the slave trade as a distinct provision in the crimes against humanity treaty
(Just Security, 2023-12-17) Sellers, P. V.,; Kestenbaum, J. G.; Kather, A. L.; 0000-0002-5189-496X
The proposed Draft articles on Prevention and Punishment of Crimes against Humanity under consideration at the United Nations General Assembly’s Sixth Committee (Legal)are bereft of a distinct provision to address the international crime of the slave trade.
Open Access
Unsettling human rights clinical pedagogy and practice in settler colonial contexts
(American University, 2023) Kestenbaum, Jocelyn Getgen; LaPorte, Caroline Bishop; 0000-0002-5189-496X
In settler colonial contexts, law and educational institutions operate as structures of oppression, extraction, erasure, disempowerment, and continuing violence against colonized peoples. Consequently, clinical legal advocacy often can reinforce coloniality--the logic that perpetuates structural violence against individuals and groups resisting colonization and struggling for survival as peoples. Critical legal theory, including Third World Approaches to International Law (“TWAIL”), has long exposed colonial laws and practices that entrench discriminatory, racialized power structures and prevent transformative international human rights advocacy. Understanding and responding to these critiques can assist in decolonizing international human rights clinical law teaching and practice but is insufficient in safeguarding against human rights clinical pedagogy and practice that contributes to settler colonial violence. This Article proposes not only decolonizing human rights clinical advocacy but also incorporating Indigenous values in human rights clinical practice and pedagogy in settler colonial contexts. In particular, the authors offer a method of human rights law teaching and advocacy that moves beyond client-centered or community-based lawyering that acknowledges oppressive power dynamics toward a collaborative model of co-creative strategic legal advocacy. At the same time, incorporating Indigenous values in human rights clinical pedagogy and practice transforms human rights practice to counter Eurocentric epistemologies by decentering human beings themselves toward a practice that rejects anthropocentrism and strives for balance with all living things. This method--rooted in epistemic pluralism and in adopting Indigenous worldview concepts of kinship, relationship, and reciprocity--requires a relinquishment of control over the process and a shift away from the dominant worldviews of knowledge production, power, and coloniality. Incorporating Indigenous values in human rights practice means acknowledging and redressing past and present collective harms, reorienting clinical pedagogy and practice to adopt new methods based on Indigenous epistemologies of familial relationship and reciprocity with one another, and all living relatives, deep listening, authentic trust-building, practicing gratitude and transforming allyship to kinship. With this methodology comes a process of unlearning and relearning (through different modes of learning) and of giving and receiving in a collective, reciprocal struggle in which all are invested and equal co-collaborators toward not only stopping or preventing human rights violations, but also in building community to transform the legal, educational, and other structures at the root of settler colonial violence. “Decolonization offers a different perspective to human and civil rights-based approaches to justice, an unsettling one, rather than a complementary one. Decolonization is not an ‘and.’ It is an elsewhere.”
Open Access
The myth of slavery abolition
(U California, 2023) Kestenbaum, J. G.; 0000-0002-5189-496X
In many countries today, slavery and the slave trade continue with impunity. International human rights law prohibits both abuses, but states are rarely held accountable and people who are enslaved or slave traded rarely receive redress. This Article offers a novel account of why international human rights law advocacy neglects slavery and the slave trade. Specifically, this Article demonstrates that the abolition of the Transatlantic and East African slave trades was achieved through a legal framework that marginalized the human rights of enslaved persons while consolidating empire. In the wake of World War II, prohibitions on slavery and the slave trade were codified in human rights law, but advocates turned to enforcement under international criminal law, which focuses on individual perpetrators and can paradoxically entrench the structures that perpetuate slavery and the slave trade. In recent decades, the United States has doubled down on these imperial interventionist strategies, using global power and influence to rebrand human trafficking as “modern slavery” and focusing enforcement on policing international borders while prosecuting individual perpetrators under domestic and transnational criminal law. This Article therefore argues that human rights advocates should press international legal institutions to go beyond combatting human trafficking crimes and to focus additionally on state accountability for wrongs done to the human beings still exploited, enslaved, and slave traded today. Only then can the prohibitions of slavery and the slave trade begin to unlock their emancipatory potential.
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.
Metadata only
On our last leges: Uncommon law
(Duke UP ; Indiana UP, 2023) Goodrich, Peter
Common law is predicated historically upon a sense of the common, of custom and use time out of mind. The legal tradition has its roots in a guild, an elite community whose common opinion and conversations provided the substance and sensibility of the normative. Remediation of law, meaning here the changing media of legal transmission, the imaginal turn in the streamed and viral relays of law and its enforcement, confront a monochrome and linear textual tradition, the regimentations of the page, with the fragmentary and anarchic optics of online platforms and social media bytes and nibbles. Increased online visibility, this essay argues, forces the guild to face up to an expanded commons, the diversity of colors, the heuristics of the eye, and the nuances of viewing.
Metadata only
Judicial uses of images: Vision in decision.
(Oxford UP, 2023) Goodrich, Peter
A judge springs out of his car on the way to court in downtown Chicago and takes photographs of an inflatable rat. A while later he inserts these photographs into a decision involving another insufflated rodent used in a union protest. The increasing use of images in case law and precedent in the common law world provides a novel visual atlas of how lawyers see. Using a corpus of many images drawn from decisions in different common law jurisdictions across the globe, Judicial Uses of Images catalogues, analyzes, and reviews the normative significance and affective force of this new medium of legal expression and judgement. The remediation of law is critically dissected in the terms of the emergent optical criteria and protocols of retinal justice. (from Google Books)
Metadata only
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
Survey of recent halakhic literature above-ground burial (Part II)
(Rabbinical Council of America (RCA), 2023) Bleich, J. David
In addition to the requirement for subterranean burial, above-ground burial presents a number of additional problems some of which arose earlier in connection with mausoleum burial.
Open Access
Survey of recent halakhic literature: Above-ground burial (Part I)
(Rabbinical Council of America (RCA), 2023) Bleich, J. David
Your dead shall live, my corpses shall arise—Awake and sing you that dwell in the dust (Isaiah 26:19). Said Rabbi Eleazar: “How much ink has been spilled, how many quills have been broken, in order to write the children of Heth. Ten times it is written ‘the children of Heth, the children of Heth.’ Ten paralleling the Ten Commandments” (Bereshit Rabbah 58:8).
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.
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
Open Access
Taxing interstate remote workers after New Hampshire v. Massachusetts: The current status of the debate
(University Press of Florida, 2021-10-04) Zelinsky, Edward A.
Under the dormant Commerce Clause, Massachusetts, New York and other states emulating them violate their constitutional duty to apportion when they tax the income nonresident telecommuters earn remotely working at their out-of-state homes. Also for Commerce Clause purposes, nonresident telecommuters lack substantial presence to their employer’s state when such nonresidents work at their out-of-state homes. New Hampshire thus argued correctly in New Hampshire v. Massachusetts that, for Due Process purposes, Massachusetts taxed extraterritorially and unconstitutionally when Massachusetts taxed income earned by nonresident telecommuters from their homes outside Massachusetts’ borders. This issue will now wind its way through the state courts and will hopefully reach the U.S. Supreme Court on the merits.When the Court does confront the constitutional substance of this debate, the Court’s Commerce Clause and Due Process precedents compel protection for nonresident telecommuters who earn income at home. On the days interstate remote workers work at their out-of-state homes, they should not be income taxed by the states in which their employers are located.
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
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
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
Law against justice and solidarity: Rereading Derrida and Agamben at the margins of the one and the many
(Fordham University Press., 2017-09-06) Rosenfeld, Michel; Rosenfeld, Michel; Goodrich, Peter
Law and justice are in crucial ways against nature as well as against solidarity. As David Hume famously proclaimed, justice is an “artificial virtue” in contrast to the social bonds of family and community which are affectively grounded in solidarity and manifestations of mutual sympathy. Law is also artificial much in the same way as justice. Indeed, to the extent that law is conceived as a self-standing normative order propelled by its own inner logic, it tends to remain too abstract to command heartfelt internalization or commitment. Moreover, law often stands against justice as some laws are unjust and law can rarely if ever deliver full justice. The above insights pose difficult questions for proponents of critical jurisprudence and the respective contributions to legal theory by Derrida and Agamben enrich the debate and open fruitful perspectives in relation to the relation between law, justice and solidarity in the context of the nexus between the singular, the universal and the plural. For Derrida, law must pursue justice, but always falls short as there is tragically no way to ever reconcile the universal and the singular. For Agamben, in contrast, while reconciling law, justice and solidarity may be as elusive as it is for Derrida, it becomes masked by a ceremonial spectacle of religiously inspired mysterious harmony leading to consensus acclamation by those subjected to law combined with an unbridgeable gap between law and administration. This chapter places in context and compares Derrida’s deconstruction of law with Agamben’s reconstruction and inquires whether these two theorists complement one another and whether there are any solutions to the problems they confront that may open a way beyond despair or artifice. Suggested Citation:
Open Access
Judicial politics versus ordinary politics: Is the constitutional judge caught in the middle?
(Cambridge University Press, 2019) Rosenfeld, Michel; Landfried, C.
Democratic politics are built upon the majority principle, but no contemporary constitutional democracy can live on that principle alone. To sustain key anti-majoritarian pillars of democracy, such as fundamental rights, it is often necessary to override majority politics through deployment of an anti-majoritarian institution—typically, the Constitutional or Supreme Court. In certain countries, like the US, all major divisive political issues, such as abortion and same-sex marriage, typically end up before the courts. Reactions to judicial decisions on these issues being usually highly political, courts figure prominently in politics thus triggering a shift from majoritarian to anti-majoritarian politics. Courts cannot avoid being in politics, but are judicial politics similar to ordinary politics? Is the nature of the politics involved the same and only its locus different? Or are judicial politics altogether different from ordinary politics, hence safeguarding salutary checks and balances against potential excesses stemming from the latter? I defend the thesis that judges have a politics of their own that is distinguishable from ordinary politics, but that often blends and overlaps with the latter. Judicial politics concern the ideals, ideology, practices and procedures of adjudication. Reasonable judges may disagree as to which of various positions within this ambit is preferable. For example, in the US there is a controversy between originalists and adaptionists, but neither of these positions necessarily aligns with any particular position within ordinary politics. In some exceptional cases, such as Bush v. Gore, judges stray from their judicial politics and lapse into ordinary politics. Far from undermining the thesis I defend, such latter cases reinforce it by highlighting the bounds between what ought to be judicially permissible and what would cross the line of legitimate judicial politics.
Open Access
Pluralist justice and liberal constitutionalism: A reply to critics
(Benjamin N. Cardozo School of Law, Yeshiva University, 2024-02-28) Rosenfeld, Michel
In my book, A Pluralist Theory of Constitutional Justice: Assessing Liberal Democracy in Times of Rising Populism and Illiberalism (OUP 2022) I advance the thesis that liberal constitutionalism must satisfy a minimum of distributive justice in its three dimensions of material welfare, identitarian recognition, and democratic representation. I label this minimum the “justice essentials” drawing on Rawls’s concept of “constitutional essentials”, and defend it within the ambit of my theory of comprehensive pluralism. In this writing, I reply to the comments and criticisms of five scholars and further clarify and elaborate my theory. Specifically, I clarify how my theory impacts on the dichotomy between constituent and constituted powero and on that between political and constitutional theology. I defend the justice essentials as not amounting to one competing conception of justice against others. I stress that the dialectical dimension of comprehensive pluralism clearly distinguishes my theory from that of Rawls’s in his Political Liberalism. I respond to the claim that my theory does not properly account for constitutionalism in the Global South. And finally, I grapple with the way my theory is suited to handle the inherently inclusionary and exclusionary dimensions of all universals
Open Access
Measuring selection bias in publicly available judicial opinions
(The University of Texas School of Law, 2019-01-01) Reinert, Alexander; 0000-0002-0258-7656
To have an informed discussion about judicial performance and efficiency, we will sometimes want to explore what judges actually do on an everyday level. But in many ways, courts have not always been paragons of transparency. Often the parties are the only people who are aware of what action a court has taken in a case. This paper explores that dynamic, in the context of decisions made by federal trial courts at one particular procedural stage--decisions made on motions to dismiss for failure to state a claim--Rule 12(b)(6) motions. There is growing interest in the work of federal trial courts, and to date, most legal researchers have turned to the same resource: commercially available databases. But they have done so conscious of the risk that many district court decisions will never find their way onto Westlaw or LEXIS. If the universe of opinions available on commercially available services is not representative of the entire universe of district court decisions, it is harder to draw conclusions about the work of federal trial courts and therefore more difficult to draw conclusions about judicial performance. This paper shows that the fear is justifiable: certain kinds of decisions, issued by judges sitting in certain judicial districts hearing particular kinds of cases, are overrepresented in services like Westlaw and LEXIS. This has the potential to affect the kinds of conclusions one might draw from observations gleaned by reviewing decisions available only on commercial databases. More broadly, it has the potential to affect how lawyers and judges argue and adjudicate cases, and therefore to affect the corpus of law itself

Browse

Recent Submissions