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
- To Defer Or Not To Defer: Judicial Review Of Zoning Board Decisions In New York
Introduction I. Setting The Stage A. An Overview Of Zoning: Historical Background. B. Zoning Board Decisions And Their Review By The State Courts. II. Flexibility Through Individual Authorizations: Variances and Special Permits. A. The Statutory Scheme Governing Variances, Special Permits, And...
- 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....
- Stick Houses In Peshawbestown
M-22, Leelanau County, 10 A.M.-I. Tattered Indian SkinsWest Grand Traverse Bay, Leelanau County, 11 A.M.-II. GramWest Grand Traverse Bay, Leelanau County, 11:30 A.M.-III. The Park HenryWest Grand Traverse Bay, Leelanau County, Noon.-IV. The MenuWest Grand Traverse Bay, Leelanau County,...
- A Compass For Success: A New Direction for Academic Support Programs
Introduction. I. ASP Development And Evaluation. A. ASP Development. B. ASP Evaluation II. Compass Program. A. Background B. Compass Participants. A. Method of Evaluation. 1. Study Design 2. Data Collection. B. Demographics of the Dataset. 1. Total Sample 2. Class Entering in 1999. 3. Class...
- 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...
- The Slow Erosion of the Adversary System: Article III Courts, Fisa, Cipa and Ethical Dilemmas
Introduction I. Classified Information Procedures Act and Foreign Intelligence Surveillance Act in the Courts A. Fundamentals of the Adversarial System B. Classified Information Procedures Act C. Fundamental Ethical Conflicts for Diligent, Competent, Zealous Defense Counsel D. Foreign Intelligence...
- The Death Penalty: Conceptual And Empirical Issues
Introduction.I.A Sketch of the Philosophical Basis for the Death Penalty.II.Additional Problems Afflicting the Death Penalty.A.Race and the Death Penalty.B.Dubious confessions and inmate testimony.C.Inadequate counsel.D.Future dangerousness.III.State and Federal Responses to the Death Penalty.IV.DNA...
- Reasonableness for Free: Why Buy Employment Practices Liability Insurance when Eeoc.Gov Gives Protection Away?
- Analyzing Post-Market Boom Jurisprudence in the Second and Ninth Circuits: Has the Pendulum Really Swung too Far in Favor of Plaintiffs?
I. Introduction. II. Pre-Reform Act Jurisprudence. A. The Emergence of Federal Securities Laws. B. The Benefits and Limitations of Bringing Claims under § 10(b) and Rule 10b-5 Prior to the Reform Act. C. The Emergence of a Circuit Court Split. 1. The Ninth's Circuit's Pre-PSLRA ...
- Reconciling The Booker Conflict: A Substantive Sixth Amendment in a Real Offense Sentencing System
Introduction I. United States v. Booker. II. Sources of the Booker Conflict. A. Sentencing in the Early Republic. B. The Rehabilitation Era. 1. Williams v. New York and Real Offense Sentencing during the Rehabilitation Era. 2. Separation of Functions Understanding of the Role of the Judge and Jury. ...