LARC Cardoso Law (Yeshida Univ)
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Anticompetitive Acquiescence in AI Content Licensing
No full textLarge AI firms like OpenAI and Amazon are licensing content to train their models that they might otherwise have been able to access for free under the fair use doctrine. Mark A. Lemley and Jacob Noti-Victor write that this behavior may constitute anticompetitive acquiescence—where large firms agree to license content they don’t have to in order to raise rivals’ costs
Brief of Edward A. and Doris Zelinsky in the Appellate Division, Third Department, New York Supreme Court
No full textTo combat COVID, New York in 2020 forbade an out-of-state employee like the petitioner to commute into his New York office, forcing him to instead work at his home in Connecticut. New York now takes the remarkable position that it can tax the income Governor Cuomo forced this out-of-state employee to earn at his home exclusively outside New York. That position is as wrong as it sounds.
Both as a matter of New York law and of federal constitutional law under the Due Process and dormant Commerce Clauses, New York may not tax the income the petitioner earned exclusively at his Connecticut home during the COVID period when Governor Cuomo made it illegal for out-of-state commuters like the petitioner to work in New York.
The Department’s denial of an income tax refund for the COVID-19 period is wrong for three reasons of state law.
First, New York’s own regulations and case law do not tax a nonresident employee’s salary as New York source income if the nonresident works “wholly without” New York. 20 N.Y.C.R.R. § 132.4(b). See also Hayes v State Tax Commission, 61 AD2d 62 [3d Dept. 1978] (“services rendered wholly without the State are not taxable in New York.”).
Second, New York’s “convenience of the employer” regulation does not tax a nonresident employee’s salary if the nonresident employee works out-of-state for his employer’s necessity rather than for the employee’s personal convenience. 20
N.Y.C.R.R. § 132.18. The petitioner worked at home starting on March 15, 2020 for Cardozo’s necessity, a necessity created by the Governor’s COVID-19 shutdown order.
Third, the case law under the employer convenience rule only taxes a nonresident employee’s salary if the nonresident had or could have had a New York office available to him. Fass v State Tax Commission, 68 AD2d 977 [3d Dept. 1979]. Due to the COVID shutdown for the last nine and one-half months of 2020, the petitioner had no New York office or classroom available to him and could not have had such a New York office or classroom.
Even if New York law taxes the petitioner’s Cardozo salary during the COVID-19 period, the Due Process and dormant Commerce Clauses forbid New York’s taxation of this salary during COVID. Indeed, it is difficult to envision a more unconstitutional tax than an income tax levied by a state whose Governor forbade the nonresident taxpayer from using his New York office and classroom for the period in question.
In deciding otherwise, the Tribunal relied on Zelinsky v. Tax Appeals Tribunal, 1 NY3d 85 [2003], cert. denied, 541 U.S. 1009, 124 S. Ct. 2068 (2004), a
decision involving a challenge by the same petitioners to their nonresident state income taxes for 1994 and 1995. But Zelinsky underscores why the COVID-19 tax is unconstitutional. Zelinsky emphasized the petitioner’s “voluntary choice” in
1994 and 1995 to work at home. But starting on March 15, 2020, Governor Cuomo gave the petitioner no choice but to work at his home.
The petitioners also deserve to win for the pre-COVID period. They acknowledge that Zelinsky upheld for 1994 and 1995 a similar nonresident income tax. But Zelinsky does not control this case. The facts of this case are distinguishable from the facts of Zelinsky. Moreover, Zelinsky is no longer good law as it has been eroded by the subsequent decisions of the U.S. Supreme Court in Wynne and MeadWestvaco, by criticism of Zelinsky from judges of the Court of Appeals, by criticism from commentators, and by subsequent events
Disabled and Disenfranchised: The Fight for Reproductive Freedom and Democracy Post-\u3ci\u3eDobbs\u3c/i\u3e
Full text linkThe Supreme Court has thrust abortion onto ballots nationwide, transforming fundamental rights into political battlegrounds. In the aftermath of Dobbs v. Jackson Women\u27s Health Organization, people with disabilities face a perfect storm of eroded reproductive freedoms and persistent barriers to democratic participation. This Article exposes the hollow promise of the Court\u27s purported deference to the people\u27s elected representatives, revealing instead a landscape where those most affected by abortion restrictions struggle to have their voices heard. The Court\u27s invocation of democracy is arguably disingenuous, serving more as a rhetorical device than agenuine commitment to democratic principles. Nevertheless, engaging with this framing is crucial, as it now shapes the terrain on which reproductive freedom must be defended and advanced. The Dobbs decision not only dismantles reproductive rights but also lays bare the deep inequities in our democratic processes. For disabled people, this opinion amplifies existing challenges, subjecting them to heightened health risks, diminished healthcare access, increased economic insecurity, and further assaults on their bodily autonomy-all while their ability to influence relevant policies remains constrained.
This Article contributes to the post-Dobbs discourse by proposing a radical reimagining of reproductive justice and disability rights advocacy within the imposed democratic framework. It introduces a dual strategy that combines tactical engagement with existing democratic systems and bold efforts to transform entrenched injustices. This Article outlines concrete pathways for empowering people with disabilities in the reproductive justice movement, including methods to shape public opinion, leverage lobbying, mobilize voting power, and increase disabled representation in political office. This innovative framework aims to achieve true reproductive freedom-grounded in bodily autonomy, self-determination, and dignity for all. Ultimately, it argues that confronting democratic deficits facing the disability community is not just crucial for safeguarding reproductive freedom but essential for exposing and dismantling the Court\u27s flawed reasoning in Dobbs. With abortion rights now subject to the vicissitudes of electoral politics, this Article charts a course toward a more inclusive democracy-one that amplifies marginalized voices and reimagines reproductive justice in the complex post-Dobbs era
The Truth Should Set You Free: The Case for Removing State Knowledge Requirements from False Testimony Standards
Full text linkFalse testimony claims are an increasinglypopular vehicle in a handful ofstates through which petitioners can challenge unconstitutional criminal convictions. Successful false testimony claims grant petitioners access to remedies guaranteed by the Due Process Clause and overturn offending convictions, giving individuals access to new trials or similar relief But like many post-conviction standards, false testimony is evaluated differently from state to state, producing disparate results. While every state\u27s standard requires that the testimony used at trial be proven both false and material to the petitioner\u27s conviction, states diverge as to whether petitioners must show that a state actor-usually prosecutors or police-knew when introducing that testimony that it was false. Most state courts require such evidence, known as a state knowledge element. But not all states demand proof ofknowledge. Some have removed the knowledge prong from their false testimony standards, recognizing that a knowledge element is superfluous to a determination of whether lies were used to convict and incarcerate a defendant. These states understand due process to be violated when petitioners demonstrate that their convictions were based on material lies, not just when petitioners can find evidence proving police or prosecutors knew about those lies. The result of such divergence is that petitioners in some states receive relieffor claims that are barred in others-including claims in which courts openly acknowledge that false, material testimony was used
Why Courts Should Not Discipline Trump\u27s Lawyers
No full textAfter the first Trump administration, there were multiple coordinated efforts to discipline lawyers in highly charged political cases. For example, a California bar court recommended that John Eastman be disbarred. Eastman helped craft the legal argument that then-Vice President Mike Pence had the right to delay or decline to certify the election results, and the disciplinary case concluded that he lied publicly, in his memos to his client and Pence, and to courts. This Article draws on Eastman\u27s case to argue that disciplinary charges in politically charged cases are often unconstitutional and even when they are not, they are unwise and counterproductive because they chill useful advocacy and threaten democratic values
An Unfair Chance for the Formerly Incarcerated: \u3ci\u3eYim v. City of Seattle\u3c/i\u3e and the Commercial Speech Doctrine
Full text linkFormerly incarcerated persons face disproportionately challenging barriers to housing upon reentry; criminal records are used as a basis to deny otherwise suitable prospective tenants. In 2017, the City of Seattle passed the Fair Chance Housing Ordinance, prohibiting landlords from relying on criminal history when evaluating prospective tenants. In 2023, the Ninth Circuit struck this provision down on the grounds that this complete ban violated Seattle landlords\u27 constitutionally protected free speech rights. The circuit court held that the ordinance implicated commercial speech and failed to pass intermediate scrutiny review under the four-part test outlined in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York. The Ordinance was deemed more extensive than necessary, and since other jurisdictions had less restrictive local laws that allowed landlords to consider some modicum of criminal history, Seattle\u27s blanket ban could not stand.
The commercial speech doctrine is a confusing area of constitutional law. This Note explores the inconsistencies of the Supreme Court\u27s rulings on commercial speech. Commercial speech is subject to intermediate scrutiny review, but the Supreme Court has never completely articulated how lower courts should apply that standard of review. If a stricter interpretation is correct, then the Yim v. City of Seattle majority was right. If a more lenient standard is correct, then the Yim dissent was right. This Note argues that Yim exemplifies the collateral consequences of this ambiguous doctrine: Formerly incarcerated persons continue to be punished long after serving their sentences
Notice Pleading’s Quiet Return
No full textFifteen years ago, the Supreme Court announced two significant civil procedure decisions – Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Together, Iqbal and Twombly marked a new approach to pleading in federal courts. No longer would courts apply the forgiving notice pleading standard, in force since the 1938 adoption of the Federal Rules of Civil Procedure. In its place, the Court introduced plausibility pleading, inviting district courts to apply their “judicial experience and common sense” to decide whether a claim was “plausible.”
Commentators expressed alarm, predicting that the new standard would lead to premature termination of claims in federal court, with plaintiffs unable to obtain the discovery necessary to show the viability of their claims at the threshold pleading stage. And to some degree empirical data suggest that those concerns were merited. But as this Article demonstrates, matters have been different in the Supreme Court, where the Justices have shown little appetite for their own new pleading standard. Indeed, as demonstrated by a close review of the opinions, briefing, and oral argument in cases implicating pleading since the Court decided Iqbal, notice pleading principles still govern the Court’s resolution of pleading disputes. As elaborated in further detail in this Article, lower courts, the advocates who appear before them, and the rulemakers who must consider future changes to transsubstantive doctrine should take note, rather than reflexively apply a heightened pleading standard thought to have been created by the Court in Iqbal and Twombly
Cardozo Law News Brief: August 22, 2025
No full textThis Cardozo Law News Brief highlights the launch of the National Immigration Habeas Institute as part of Cardozo’s new Center for Immigration Innovation, along with the introduction of a new online Master’s in Labor and Employment Law for non-lawyers. Faculty in the media include Professor Jessica Roth on CNN’s AC360 discussing the Jeffrey Epstein case, Professor Lindsay Nash in Bloomberg Law on the growing demand for immigration courses, Professor Wilfred Codrington III in the National Law Journal on challenges to the Voting Rights Act, Professor Saurabh Vishnubhakat in Bloomberg Law on a major copyright lawsuit, Professor Edward Zelinsky in Bloomberg Law on Reconstruction-era distilling bans, Dean Carey Bertolet Grand in Law.com on accelerated student recruiting, and Professor Matthew Wansley in Crain’s New York Business on Tesla’s robotaxi ambitions. Additional scholarship and news include Professor Tyson-Lord Gray’s selection for induction into Morehouse College’s MLK Jr. Collegium of Scholars, new book chapters by Ramya Kudekallu, Professor Jamie Macleod, and University Professor Michel Rosenfeld, as well as Professor Zelinsky’s continued work on New York’s remote tax rule
The Return of Private Law
No full textRecent events offer a grim picture of the future of public law. In particular, President Trump’s assault on the administrative state seems destined to hamper the ability of agencies to protect the public in familiar areas such as drug safety, auto safety, environmental protection, and consumer protection
Class of 2026 Halfway to Graduation Party
Full text linkhttps://larc.cardozo.yu.edu/flyers-2024-2025/1052/thumbnail.jp