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Cardozo Law Review, Vol. 35, Issue 5

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CARDOZO LAW REVIEW

VOLUME 35   JUNE 2014   NUMBER 5
Copyright © 2014 by Yeshiva University
All rights reserved

CONTENTS

Essays

The Conflict Between Stare Decisis and Overruling in Constitutional Adjudication 
Steven J. Burton  1687

Lift the Scarlet Letter from Abortion 
Louise Melling  1715

Articles

A Fiduciary Theory of Health Entitlements 
Margaux J. Hall  1729

Dirty Secrets: The First Amendment in Protective-Order Litigation
Dustin B. Benham  1781

From Wolves, Lambs (Part II): The Fourteenth Amendment Case for Gradual Abolition of the Death Penalty 
Kevin Barry  1829

Religion, Women, and the Holy Grail of Legal Pluralism
Shiva Falsafi  1881

A Theory of Local Common Law
Annie Decker  1939

Grid Governance: The Role of a National Network Coordinator
Ashira Pelman Ostrow  1993

Notes 

Unauthorized Practice of Law and Meaningful Access to the Courts: Is Law Too Important to Be Left to Lawyers?
Matthew Longobardi  2043

Disparate Treatment of Disparate Treatment: Harmonizing Title VII Pretext and 
Mixed-Motive Jury Instruction Causation Standards in Light of Staub v. Memorial Hospital
Eric Rosoff  2079

The Social Model’s Case for Inclusion: “Motivating Factor” and “But For” Standards of Proof Under 
the Americans with Disabilities Act and the Impact of the Social Model of Disability on Employees with Disabilities 
Lisa Schlesinger  2115

 

For more information on responding to any of these articles on Cardozo Law Review’s online companion, Cardozo Law Review de•novo, please visit us here.

 

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Cardozo Law Review, Vol. 35, Issue 4

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CARDOZO LAW REVIEW

VOLUME 35  APRIL 2014  NUMBER 4
Copyright © 2014 by Yeshiva University
All rights reserved

CONTENTS

Articles

Testing the Boundaries of Family Privacy: The Special Case of Pediatric Sibling Transplants
Doriane Lambelet Coleman 1289

The Infringement Continuum
Bernard Chao 1359

Presumed Imminence: Judicial Risk Assessment in the Post-9/11 World
Avidan Y. Cover 1415

Remaking Mexico: Law Reform as Foreign Policy
Deborah M. Weissman 1471

Unequal Protection Under the Law: Why FDA Should Use Negotiated Rulemaking to Reform the Regulation of Generic Drugs
Marie Boyd 1525

Notes 

Reasonable Accommodation of Mixed Motives Claims Under the ADA: Consistent, Congruent, and Necessary 
Bryan Joggerst 1587

Protecting the Family Home by Reunderstanding United States v. Bajakajian
Yan Slavinskiy 1619

Limiting Unfettered Challenges to Patent Validity: Upholding No-Challenge Clauses in Pre-Litigation Patent Settlements
Between Preexisting Parties to a License 

Nicholas Roper 1649

 

For more information on responding to any of these articles on Cardozo Law Review’s online companion, Cardozo Law Review de•novo, please visit us here.

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Cardozo Law Review, Vol. 35, Issue 3

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CARDOZO LAW REVIEW

VOLUME 35  FEBRUARY 2014  NUMBER 3
Copyright © 2014 by Yeshiva University
All rights reserved

CONTENTS

Articles

An Empirical Study of the Use of Legal Scholarship in Supreme Court Trademark Jurisprudence
Derek Simpson & Lee Petherbridge 931

Negotiating the Unknown: A Compulsory Licensing Solution to the Orphan Works Problem
Robert Kirk Walker 983

Symposium

In Search of Meaningful Systemic Justice for Adolescents in New York

In Search of Meaningful Systemic Justice for Adolescents in New York 
Jonathan Lippman 1021

Freedom’s Road: Youth, Parole, and the Promise of Miller v. Alabama and Graham v. Florida
Laura Cohen 1031

Contempt, Status, and the Criminalization of Non-Conforming Girls
Cynthia Godsoe 1091

Reimagining the Role of Defense Counsel for Adolescents in the Adult Criminal Court System: 
Bringing the Community and Policymakers into the Process to Achieve the Goals of Gideon
Nancy Ginsburg 1117

Bringing the Best of Both Worlds: Recommendations for Criminal Justice Reform for Older Adolescents
Lisa Schreibersdorf 1143

Youth in the Adult Criminal Justice System
Liz Ryan 1167

Notes

Bridging the Cellular Divide: A Search for Consensus Regarding Law Enforcement Access to Historical Cell Data
Zachary Ross 1185

An Uncertain Privilege: Reexamining Garner v. Wolfinbarger and Its Effect on Attorney-Client Privilege
Benjamin Cooper 1217

Everybody Wins! Elimination of the Absolute Priority Rule for Individuals Under BAPCPA: A Middle Ground
Liliya Gritsenko 1255

For more information on responding to any of these articles on Cardozo Law Review’s online companion, Cardozo Law Review de•novo, please visit us here.

 

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Cardozo Law Review, Vol. 35, Issue 2

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CARDOZO LAW REVIEW

VOLUME 35  DECEMBER 2013  NUMBER 2
Copyright © 2013 by Yeshiva University
All rights reserved

CONTENTS

Articles

No Promo Hetero: Children’s Right to Be Queer
Clifford J. Rosky 425

Engaging Men as Fathers: The Courts, the Law, and Father-Absence in Low-Income Families
Laurie S. Kohn 511

High Federalism: Marijuana Legalization and the Limits of Federal Power to Regulate States
David S. Schwartz 567

Contextual Expectations of Privacy 
Andrew D. Selbst 643

Cosmopolitanism in Constitutional Law
Vlad Perju 711

Fixing Copyright in Characters: Literary Perspectives on a Legal Problem
Zahr K. Said 769

Notes 

Beyond Bing: The Arthur Rule Lives on as the Touchstone for the New York State Right to Counsel
Adrienne Levy 831

Art or Signage?: The Regulation of Outdoor Murals and the First Amendment
Christina Chloe Orlando 867

Curbing Overzealous Prosecution of the Espionage Act: Thomas Andrews Drake and the Case for Judicial Intervention at Sentencing
Pamela Takefman 897

For more information on responding to any of these articles on Cardozo Law Review’s online companion, Cardozo Law Review de•novo, please visit us here.

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Cardozo Law Review, Vol. 35, Issue 1

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CARDOZO LAW REVIEW

VOLUME 35   OCTOBER 2013   NUMBER 1
Copyright © 2013 by Yeshiva University
All rights reserved

 

CONTENTS
 
Articles

Criminal Forfeiture and the Sixth Amendment: The Role of the Jury at Common Law
Richard E. Finneran & Steven K. Luther 1

Meaningful Membership: Making War a Bit More Criminal
Rachel E. VanLandingham 79

We Are Never Ever Getting Back Together: Domestic Violence Victims, Defendants, and Due Process
Jessica Miles 141

The Law and Financial Transparency in Churches: Reconsidering the Form 990 Exemption
John Montague 203

Taking Rules Seriously: The Rise of Lawyer Rules as Substantive Law and the Public Policy Exception in Contract Law
Benjamin P. Cooper 267

Regulating Health and Wealth
Alena Allen 309

Notes 

The Disclaimer Dichotomy: A First Amendment Analysis of Compelled Speech in Disclosure Ordinances Governing Crisis Pregnancy Centers and Laws Mandating Biased Physician Counseling
Molly Duane 349

Rethinking ReDigi: How a Characteristics-Based Test Advances the “Digital First Sale” Doctrine Debate
Gregory Capobianco 391

 

For more information on responding to any of these articles on Cardozo Law Review’s online companion, Cardozo Law Review de•novo, please visit us here.

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Cardozo Law Review, Vol. 34, Issue 6

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CARDOZO LAW REVIEW

VOLUME 34   AUGUST 2013   NUMBER 6
Copyright © 2013 by Yeshiva University
All rights reserved

CONTENTS

 
Essay

Mock Trials and Real Justices and Judges
Richard A. Posner 2111

 
Articles

Saving Disparate Impact
Lawrence Rosenthal 2157

Contract Theory and the Failures of Public-Private Contracting
Wendy Netter Epstein 2211

Banished for Life: Deportation of Juvenile Offenders as Cruel and Unusual Punishment
Beth Caldwell 2261

Restorative Criminal Justice
Hadar Dancig-Rosenberg & Tali Gal 2313

Physician Speech and Mandatory Ultrasound Laws: The First Amendment’s Limit on Compelled Ideological Speech
Jennifer M. Keighley 2347

Symposium

Stories Mediators Tell: The Editors’ Reflections
Eric R. Galton & Lela P. Love 2409

Stories Mediators Tell: A Review
Wayne Brazil 2415

Lessons from Mediators’ Stories
John Lande 2423

Lawyers and Mediation: Lessons from Mediator Stories
Sharon Press 2433

Story as Sermon and Seduction
Ellen Waldman 2443

Using Mediation Stories to Improve the Teaching of Conflict Resolution
Forrest S. Mosten 2455

 

For more information on responding to any of these articles on Cardozo Law Review’s online companion, Cardozo Law Review de•novo, please visit us here.

 

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Cardozo Law Review, Vol. 34, Issue 5

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CARDOZO LAW REVIEW

VOLUME 34   JUNE 2013  NUMBER 5
Copyright © 2013 by Yeshiva University
All rights reserved

CONTENTS

 

Articles

Deconstructing and Reconstructing Hot News: Toward a Functional Approach
Jeffrey L. Harrison & Robyn Shelton 1649

Institutional Free Exercise and Religious Land Use
John Infranca 1693

The Plea-Bargain Crisis for Noncitizens in Misdemeanor Court
Jason A. Cade 1751

Uncertainty as Enforcement Mechanism: The New Expansion of Secondary Copyright Liability to Internet Platforms 
John Blevins 1821

ADR’s Place in Foreclosure: Remedying the Flaws of a Securitized Housing Market
Lydia Nussbaum 1889

Distorted and Diminished Tort Claims for Women
Jamie R. Abrams 1955

Notes 

But It Wasn’t My Fault! The Scope of the Zoning Estoppel Doctrine
Simon J. Elkharrat 1999

Protecting Juveniles’ Right to Remain Silent: Dangers of the <em “mso-bidi-font-style:=”” normal”=””>Thompkins Rule and Recommendations for Reform
Lauren Gottesman 2031

Health Exchange Federalism: Striking the Balance Between State Flexibility and Consumer Protection in ACA Implementation
Sam Solomon 2073

 

For more information on responding to any of these articles on Cardozo Law Review’s online companion, Cardozo Law Review de•novo, please visit us here.

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Cardozo Law Review, China Re-Rising

Symposium on China’s Transition from Manufacturing to Innovation Economy Hosted by Cardozo Law Review’s Online Journal

NEW YORK, NY, April 29, 2013 — All eyes are on China in the twenty-first century, as it emerges as one of the fastest growing economies in the world. At the same time, losses in various industries are attributed to piracy—a substantial amount of which is alleged to occur within China’s borders—and the Chinese government is routinely criticized for its weak enforcement measures against counterfeiting activities and intellectual property infringement on its soil.Cardozo Law Review de•novo’s online symposium, “China Re-Rising?: Innovation and Collaboration for a Successful Twenty-First Century” focuses  on China’s overall transition from a manufacturing to an innovation economy and how this transition affects IP policies and industries around the world.

The online symposium – located at http://cardozolawreview.com/de-novo-2013.html - features articles from practitioners, industry corporate counsel, professors, and Chinese IP law specialists. Esteemed participants include Chen Wang, the Deputy Chief IP Counsel of E.I. du Pont de Nemours Company; Jonathan Sallet, a Partner at O’Melveny & Myers LLP; and Professor Peter Yu, the Kern Family Chair in Intellectual Property Law and Director of the Intellectual Property Law Center at Drake University Law School.

About the Articles:

Professor Yu discusses the slowly-begun change in discourse around China’s intellectual property system, particularly in the field of patents. He presents the reader with five key questions on the state of Chinese intellectual property law and policy. His answers suggest that the future of China’s intellectual property system is dualistic and dynamic—while massive piracy and counterfeiting does continue, this ongoing issue is balanced by China’s rise as a patent power.

Professors Murphy and Orcutt discuss China’s patent subsidy program—an aspect of China’s national innovation strategy that aims to increase domestic patents and innovation through government subsidies to pay for domestic inventors’ legal costs associated with obtaining patents. Noting that the program has been criticized for failing to fund truly valuable or innovative patents, the Authors propose a unique two-stage, three-dimensional relative value technique for the Chinese government to implement in evaluating whether to fund a given patent application through the subsidy program.

Ms. Wang and Mr. Sallet in turn criticize the Chinese government’s metric-based approach to innovation. They posit that China’s emphasis on numerical goals to domestic patenting actually hampers Chinese innovation by directing resources away from research and the development of truly valuable inventions. The Authors further discuss how China’s metric-based approach frustrates the ability of multi-national corporations to collaborate effectively with Chinese companies. They conclude by identifying steps the Chinese government can take to increase local innovation through effective international collaboration.

Professor Shao calls for a holistic perspective of the Chinese innovation economy, law, and policies. His Article offers a historical and cultural perspective that aims to make a holistic approach possible for Western scholars and practitioners, who lack the knowledge of Chinese history and culture necessary to understand the context of China’s current policies. He concludes by proposing that innovation still can, and should, be the bridge to China’s successful economic transition.

Professors Murphree and Breznitz discuss China’s innovation strategy through the lens of its failed attempts to develop globally successful technology standards. The Authors attribute these failures to fragmented production and structured uncertainty implicit in the Chinese domestic market. Despite these failures, the Authors acknowledge that Chinese companies’ participation in even failed attempts does produce tangible benefits, like receiving lower royalty rates on goods they produced.

View the online symposium at http://cardozolawreview.com/de-novo-2013.html

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Cardozo Law Review, Vol. 34, Issue 4


Articles

Charter Schools, the Establishment Clause, and the Neoliberal Turn in Public Education 
Aaron Saiger 1163

Challenging the Death Penalty with Statistics: Furman, McCleskey, and a Single County Case Study
Steven F. Shatz & Terry Dalton 1227

The Irony of a Faustian Bargain: A Reconsideration of the Supreme Court’s 1953 United States v. Reynolds Decision
David Rudenstine 1283

Undercover Policing, Overstated Culpability 
Eda Katharine Tinto 1401

Municipal Securities: The Crisis of State and Local Government Indebtedness, Systemic Costs of Low Default Rates, and Opportunities for Reform
Christine Sgarlata Chung 1455

Notes 

“That’s the Guy!”: Federal Rule of Evidence 801(d)(1)(C) and Out-of-Court Statements of Identification 
Gilbert M. Rein 1539

“Every Move That She Makes”: Copyright Protection for Stage Directions and the Fictional Character Standard
Deana S. Stein 1571

Quasi-Judicial Prosecutors and Post-Conviction Claims of Innocence: Granting Recusals to  Make Impartiality a Reality
Rachel Pecker 1609

 

For more information on responding to any of these articles on Cardozo Law Review’s online companion, Cardozo Law Review de•novo, please visit us here.

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The Blue Book and its Times

Yale Robinson, a student in my Corporations class, today told me about his law review note topic, which happened to be in the same field as my Note, published back in 1987. After class, Yale went and found my Note and emailed me a report about it.  In the email, Yale added:

As an aside, it is amusing to see that the Table of Contents in the Cardozo Law Review of that time does not list the author of a Note, only the title, and the first page of the Note also does not give the author’s name. You have to go to the last page to see the author’s name. I don’t know why this was done, but it appears that this omission was rectified beginning with the April 1991 issue.

I replied as follows:

The curious style you mention was the standard practice at all law reviews at all schools for [decades, since 1926,] up through 1991 when the Blue Book announced the change. Before 1991, notes were “unsigned” and citation was merely to Note, . . .  rather than Cunningham, Note . . . .

Another practice changed around the same time: in the old days, only an author’s last name was used (Cunningham or Robinson etc); thereafter the first name and initial are included.

I think these changes reflect things about the times, such as elitism that wore away in the case of naming Note authors and a sense of full identity . . . in the case of the full name.

The keepers of the Blue Book keep citation practice up with the times.  Looking back at the styles of earlier eras can be amusing.  I wonder what other amusing anachronisms are to be found in the old style books.

 


You can see the covers of a dozen different editions of the Blue Book, from which the two in this post are taken, here