Cardozo Public Law, Policy and Ethics Journal
- Benjamin N. Cardozo School of Law
- Publication date:
- The Market-Participant Exception And The Dormant Foreign Commerce Clause
I. The Market-Participant Exception: A Primer II. The Market-Participant Exception Applied To The Foreign Commerce Clause A. History B. Interference with Federal Foreign Relations Powers 1. The Framers` View 2. Congress`s Foreign Affairs Power 3. The President`s Foreign Relations Power C. Failures of the Traditional Market-Participant Justifications 1. Fairness 2. Federalism 3. Participation versus Regulation 4. Textualism 5. The Supremacy Clause and Institutional Concerns III. A Problem Of Consistency? IV. The Future Conclusion
- First Amendment Freedom Of Speech And Expression: Ninth Circuit Holds That California Penal Code Section 148.6 Violates The First Amendment In <I>Chaker V. Crogan</I>
Introduction I. Pre-Chaker: California Penal Code 148.6 II. Analysis: Chaker V. Crogan III. A National Issue: Criminal Penalties For Filing False Complaints Against Police Officers Conclusion
- Forced Medication And The Need To Protect The Rights Of The Mentally Ill Criminal Defendant
Introduction I. An Overview Of The Process II. Relevant Supreme Court Decisions III. Dangerousness And Its Prediction IV. The Constitutional Interests A. First Amendment Interests B. Sixth Amendment Interests C. Fifth and Fourteenth Amendment Interests V. The Need For Change A. The Definition of Danger B. Standards of Review C. Changing Societal Attitudes Conclusion
- Tax And Economic Policy Responses To The Medicaid Long-Term Care Financing Crisis: A Behavioral Economics Approach
Introduction I. Long-Term Care Financial Planning Through A Consumer Choice Lens A. The Traditional Model Of Rational Consumer Choice B. The Behavioral Economics Model Of Consumer Choice C. Long-Term Care Planning Under The Behavioral Economics Model 1. Unique Preferences in Long-Term Care Planning i Preference 1: Diminished Utility at the Mere Thought of Long-Term Care Needs ii. Preference 2: Maximized Utility by Underestimating One`s Future Need for Long-term Care iii. Preference 3: Diminished Utility at the Thought of Institutional Care; Maximized Utility at the Thought of Informal Care from Loved Ones 2. Unique Time Functions in Long-Term Care Planning i. Time Function 1: Long-term Care Planning as an Initial Proxy for Financial Interests, and as an Evolving Proxy for Emotional Interests ii. Time Function 2: The Tendency to Disproportionately Value Current Costs and Benefits Over Future Costs and Benefits iii. Time Function 3: The Problem of the "Future Incapacitated Self" as a "Non-Self" or an "Impossible Self" II. Tax And Economic Policy Responses To The Medicaid Crisis A. Government Initiatives to Discourage Reliance on Public Assistance for Long-Term Care: Medicaid Estate Recovery Programs B. Government Initiatives to Encourage Reliance on Private Payer Sources for Long-Term Care 1. Additional Personal Exemption for Caregivers 2. Long-Term Care Insurance Partnership Programs 3. Federal Income Tax Deductions for the Costs of Long-Term Care Insurance i. The Business Deduction for the Cost of Employer-Sponsored Long- Term Care Insurance Policies ii. The Current Individual Deduction iii. The Proposed Above-the-Line Deduction 4. State-Level Income Tax Incentives for the Purchase of Long-Term Care Insurance III. An Analysis Of Legislative Intent: The Perceived Benefit Of Long-Term Care Insurance IV. A Dynamic Model Of Long-Term Care Planning A. Choice 1: To Plan or Not to Plan B. Choice 2: Develop a Financial Plan, or Rely on Informal Care at Home C. Choice 3: Assuming the Consumer Does Not Prefer Informal, In- Home Care, How Costs and Benefits Should be Weighed When Developing a Financial Plan D. Choice 4: Once Costs and Benefits are Weighed, Assuming the Consumer Wishes to Provide for the Future Incapacitated Self, What to Include in the Long-Term Care Plan E. Choice 5: Whether to Maintain the Initial Plan V. Discussion: Tax And Economic Policy Implications Conclusion
- Reading Is Fundamental: Why The No Child Left Behind Act Necessitates Recognition Of A Fundamental Right To Education
Introduction I. Finding Fundamental Rights In The Constitution A. What Qualifies as a "Fundamental Right"? B. Education is a Fundamental Right C. Standard of Review II. San Antonio V. Rodriguez And Plyler V. Doe: A Critique Of Their Refusal To Find A Fundamental Right To Education A. San Antonio Independent School District v. Rodriguez B. Plyler v. Doe C. Rodriguez and Plyler Compared III. The Fundamental Right To Education In The States A. The States as "Laboratories" B. State Constitution Education Clauses 1. Broad Education Provisions 2. Explicit Education Provisions 3. State Court Education Clause Interpretations C. The "Adequate Education" Context IV. No Child Left Behind: The Federal Government`S New Foray Into Education And Accountability A. The No Child Left Behind Act B. A Fundamental Right to Education Rises from NCLB 1. The "Local Nature" Issue 2. Further Implication of the Fundamental Right Conclusion
- Habeas Corpus, Judicial Review, and Limits on Secrecy in Detentions at Guantánamo
Introduction I. Guantánamo and the modalities of Secrecy II. Habeas Corpus Litigation at Guantánamo A.Habeas Litigation before Rasul B.Overview of Post-Rasul Habeas Litigation III. Habeas as a check on Secret Detentions at Guantánamo A. Access to Counsel B. Challenging the Factual and Legal Basis for Confinement C.Habeas Review of Transfer to Foreign Custody D.The Right to a Remedy for Unlawful Detention Conclusion
- The War on Terrorism in the Courts
This Article was originally delivered July 24, 2004 at the Thomas M. Cooley Law School's Distinguished Brief Award Banquet. 21 T.M. Cooley L. Rev. 159 (2004).
- Righting Wrongful Discharge: A Recommendation for the New York Judiciary to Adopt a Public Policy Exception to the Employment- At-Will Doctrine
Introduction I. History of the Employment-At-Will Doctrine II. Evolution of the Public Policy Exception to the Employee-At-Will Doctrine A. Texas B. Utah C. Ohio D. New Jersey III. New York State Courts' Lack of Progress Adopting a Public Policy Exception to the Employee-At-Will Doctrine IV. A Review of the Specific Tests Used by other Jurisdictions in an Effort to Create a Recommendation for New York Conclusion
- Beyond Article III Courts: Military Tribunals, Status Neview Tribunals, and Immigration Courts
Introduction I.Framing the Issues II. The Debate A.David Cole's Remarks B.Brian Boyle's Remarks C. Gitanjali Gutierrez's Remarks D. Bradford Berenson's Remarks III.The Discussion Conclusion
- Secret Evidence and the Courts in the Age of National Security
- Habeas Corpus, Judicial Review, and Limits on Secrecy in Detentions at Guantánamo
Introduction I. Guantánamo and the modalities of Secrecy II. Habeas Corpus Litigation at Guantánamo A.Habeas Litigation before Rasul B.Overview of Post-Rasul Habeas Litigation III. Habeas as a check on Secret Detentions at Guantánamo A. Access to Counsel B. Challenging the Factual and Legal Basis...
- Bad Faith: Race, Religion and the Reformation of Welfare Law
I. Beyond Relief: Robert Bellah, George Gilder, and the Racialization of Welfare Since the 1980s II. Topsy-Turvy World: Antebellum Contexts for Contemporary Welfare Rhetoric. III. The Gift of Life, the Life of Gifts: Welfare Reforms, Reproductive Rights, and Race....
- In the Absence of Democracy: The Designation and Material Support Provisions of the Anti-Terrorism Laws
I.Introduction. II.The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA): Criminalizing Terrorism . III.The USA PATRIOT Act (USAPA): Amendments to AEDPA and the Interplay of Terrorism Definitions. IV. The Al-Arian Case: The Anti-Terrorism Laws in Action. V.The Trouble with Conspiracy.. ...
- Censure the Tree for Its Rotten Apple: Attributing Liability to Parents for the Copyright Infringement of Their Minor Children
Introduction. I. Copyright Infringement on the Internet. A. Digital Millennium Copyright Act. B. Internet Backbone Providers. C. Web Sites and Peer-to-Peer Services. D. Individual Civil Liability. E. Individual Criminal Liability. II. The Liability of Parents for Tortious Acts ...
- Whose Life Is It Anyway?
Introduction I. Methodology II. Context of Debate A. A Review of Basic Concepts and Fundamental Arguments B. Why is Euthanasia Controversial? III. The "Right to Die" Debate A. The Facts B. The Meaning of Life C. The Problem with Professional Judgment D. Absolute Rule v. Variegated...
- Grandparental Visitation: Its Evolution In New York State
- American Slavery: The Complete Story
I. Emerging from the Cave of Ignorance.II.Slavery and Race. III. What Was Slavery and Why Has It Been Such a Divisive Issue Since 1865?...
- Conference Report: The New York City Housing Court in the 21st Century: Can It Better Address the Problems Before It?
I. Introduction. A. Conference Purpose and Format. B. Description of the Working Groups 1. Working Group I: Pre-Adjudication Steps in the Housing Court. 2. Working Group II: The Adjudicative Process and the Role of the Court. 3. Working Group III: Right to Counsel. 4. ...
- Reasonableness for Free: Why Buy Employment Practices Liability Insurance when Eeoc.Gov Gives Protection Away?
- Disability-Based Peremptory Challenge: Need for Elimination
Introduction I. Past Versus Present A. Juror Qualification Requirements B. Challenge for Cause C. Jurors' Rights v. Parties' Rights II. The Peremptory Challenge and Its Application A. Batson and Its Extension to People with Disabilities III. Should the Court Extend the Batson-J.E.B. Model to People ...