LARC Cardoso Law (Yeshida Univ)
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An Evening With Steve Madden
Get PDFJoin us for a conversation between iconic designer, Steve Madden and Lisa Keith, General Counsel of Steven Madden, Ltd. There will be a reception in the lobby after the event.https://larc.cardozo.yu.edu/event-invitations-2024/1001/thumbnail.jp
The 2024 Cardozo Colloquium on Global and Constitutional Theory Presents: Linda Greenhouse on the Roberts Court
Get PDFJoin Linda Greenhouse, Senior Research Scholar in Law at Yale Law School, to discuss the exceptional trajectory of the Roberts Court. Greenhouse is also a Pulitzer Prize-winning reporter who has covered the United States Supreme Court for nearly three decades for The New York Times.https://larc.cardozo.yu.edu/event-invitations-2024/1004/thumbnail.jp
The 2024 Cardozo Colloquium on Global and Constitutional Theory
Get PDFThe US Supreme Court is currently experiencing a significant decrease in public approval, as are several courts in many other parts of the world, such as the Israel Supreme Court and top courts in various Eastern European countries. At the same time, in certain other parts of the world, such as Western Europe, constitutional courts persist as well integrated and are widely perceived as trustworthy guarantors of workable checks and balances. The Colloquium will explore what accounts for these differences and whether the various crises concerning judicial review arise from similar or different types of circumstances. To what extent are judicial appointment and length of highest court judges’ terms in office a significant factor in the exacerbation or avoidance of contemporary crises? What role do controversies in judicial interpretation, disputes concerning the nature and scope of fundamental rights protection, increased political polarization, the hardening of divides among proponents of religious lifestyles and those committed to secularism, the finality of judicial decisions, and the levels of difficulty in amending the relevant constitution play in the context of the proliferation and containment of the aforementioned issues? What options may be available to mitigate or resolve these difficulties?https://larc.cardozo.yu.edu/event-invitations-2024/1000/thumbnail.jp
Law Student Virtual Wellbeing Program
Get PDFhttps://larc.cardozo.yu.edu/flyers-2023-2024/1086/thumbnail.jp
Panel 2: Trademark
No full textOur trademark experts will discuss the intersection of SCOTUS\u27 Jack Daniels and Arbitron decisions, the new Rogers test cut off, and parody
Regulating Congressional Insider Trading: The Rotten Egg Approach
Get PDFA 2004 study revealed that the stock portfolios of members of Congress were consistently outperforming those of the investing public. The financial success of federal lawmakers was statistically correlated to the use of nonpublic information obtained while performing legislative responsibilities—reasonably characterizable as insider trading. Cries of dismay over such profiteering by lawmakers have been echoing in the public domain since Samuel Chase, Maryland’s representative in the Continental Congress, directed colleagues to corner the flour market in 1778 after learning that copious quantities of it would be purchased by the government to support the Continental Army. Notwithstanding efforts to apply insider trading law to curb this behavior and the enactment of the Stop Trading on Congressional Knowledge (“STOCK”) Act, fortuitous securities transactions by members of Congress continue to occur in connection with headlining national events; it was recently observed with respect to news of the financial collapse of certain regional banks.
While there is scholarly and political support for laws that would effectively ban such rotten egg behavior, this Article proposes that the conduct be regulated under the statute created with rotten eggs in mind—the Securities Act of 1933. The Securities Act creates speedbumps for persons in a control relationship with issuers who want to sell the issuer’s securities in the secondary market. The speedbumps require both public disclosure and broker inquiry. This Article asserts that senators and representatives are in a control relationship with issuers such that they transcend the status of ordinary investor in the securities law regime. As control persons, federal lawmakers must navigate the obligations established under the Securities Act for such persons before selling their securities in the secondary market. This approach eliminates the legal and evidentiary challenges of insider trading theory, provides a disclosure mechanism that is vastly more effective than that provided by the STOCK Act, and deploys broker-dealers as gatekeepers to ensure that such trades do not undermine the maintenance of fair markets
On Comprehensive Pluralism: Two Pluralistic Deficits
Get PDFA Pluralist Theory of Constitutional Justice offers a powerful normative theory of liberal constitutionalism: comprehensive pluralism. This theory links liberal constitutionalism with distributive justice. Comprehensive pluralism requires that the three dimensions that compose this concept of justice—redistribution, recognition, and representation—drive the attempts to balance ethos and demos in liberal constitutional democracies, as well as the attempts to balance the singular, plural, and universal dimensions that constitute such political communities. The normative proposal offered by Michel Rosenfeld in his book has numerous strengths. Three of them, which cut across the entirety of his proposal, are particularly noteworthy. On the one hand, the dialogue between theory and practice that guides the construction of the normative proposal is tremendously interesting. For Rosenfeld, liberal constitutionalism must respond to the challenges imposed by contemporary political, economic, and cultural reality. The articulation of theory must therefore be empirically informed. Normative proposals should not be constructed solely on the basis of the demands of political and legal theory.
On the other hand, comprehensive pluralism is constructed through a critical dialogue with tradition. Rosenfeld both draws on and questions the major contemporary theories of justice and legal philosophy perspectives, including Rawls’s liberal egalitarianism, Derrida’s deconstructionism, Kelsen’s positivism, Critical Legal Studies, and Kantian deontologism. Rosenfeld takes these theories seriously: he examines them rigorously and critiques them sharply but respectfully. Finally, Rosenfeld’s normative proposal offers a robust defense of the cultural, political, and moral diversity that characterizes contemporary liberal democracies. Rosenfeld offers a theory that seeks to protect the plurality that exists among individuals, groups, and the political community. Liberal constitutionalism should protect the diverse types of pluralism that constitute liberal democracies.
Despite these notable strengths, comprehensive pluralism is weakened by the following two pluralistic deficits. These deficits limit the theoretical strength and practical reach of Rosenfeld’s normative proposal. The first deficit is a consequence of the insufficiently pluralistic dialogue between theory and practice through which Rosenfeld constructs his theory. I would like to call this the empirical pluralistic deficit. It is caused by the reproduction of questionable discursive and practical patterns of comparative law and politics. The implementation of these discursive patterns, in turn, generates an epistemic injustice that contradicts the central value of Rosenfeld’s normative proposal: pluralism. The second deficit is a consequence of the monism to which comprehensive pluralism is actually committed. The normative proposal that Rosenfeld offers privileges a strong concept of individual autonomy that radically limits the space for moral and political diversity that exists in contemporary liberal democracies. The second order norms that make up comprehensive pluralism demand the radical transformation of the first order moral norms that shape the moral conceptions with which it coexists. Contrary to its purposes, comprehensive pluralism demands that the moral conceptions that coexist in a liberal democracy conform to this strong concept of individual autonomy. It also requires that conflicts between conceptions of the good be resolved in favor of autonomy. I would like to call this the theoretical pluralistic deficit. In the following two Parts I will present and substantiate these two pluralistic deficits that weaken comprehensive pluralism
“Swifties” or Swift Suppression? How Police Officers Exploit Copyright Law and Practice Online to Evade Public Accountability
Get PDFThe video recording of the tragic killing of George Floyd by Minneapolis police officers had an immediate and profound impact on the public. The video held essential evidentiary value in the prosecution of Floyd’s killers, as it told a very different story than what the police officers had made the situation out to be. It was by no means the first recording of police misconduct that generated significant attention from the public, but it remains among the most notable.
Now, imagine that the world had never seen the extent of this horrific incident. In this alternate universe, the video never transmitted across social media platforms and the extensive conversations around police brutality that followed simply never occurred. And what if the public never saw the video because of something as absurd as Officer Derek Chauvin playing Taylor Swift music from his own cell phone while being filmed?
As foolish as this hypothetical appears, it depicts a growing phenomenon. Police officers, attempting to prevent bystander footage from circulating online, will broadcast copyrighted music so that these recordings are more likely to be taken down from video sharing platforms due to the unauthorized use of that copyrighted music.
Copyrighted music has previously caused the disruption of public speech in other forums and has been utilized in similar ways to this current police practice. What makes this form of copyright weaponization unique (and what makes this issue particularly nuanced) is that the police are not themselves infringing. Instead, by playing music that gets captured in the bystander’s recording, the officers, creatively, are causing the bystander to infringe when the recording is inevitably posted and circulated online. This clever scheme functions, in essence, to prevent the dissemination of police recordings and to dampen police accountability activists’ voices on popular platforms. In this moment of increased calls for police accountability, it presents a chilling reality if officers can so readily evade the public eye.
There are strong policy and practical reasons for protecting the wholesale dissemination of police bystander recordings online. These recordings may very well constitute constitutionally protected speech, and they have tremendous evidentiary value. But the law currently does not prioritize these interests. The Digital Millennium Copyright Act (DMCA) enables corporate policies like YouTube’s content identification system (Content ID) to prioritize rightsholders in removing infringing content from online platforms. And while scholars have evaluated some of the fundamental flaws of these regimes in general terms, none have focused exclusively on these police recordings—whether as critical issues in their own right or as a case study on how the governing statutes and principles of copyright law online are inadequate for safeguarding speech essential to public discourse.
This Note puts forward the following arguments: (1) there are important reasons for categorically protecting bystander police recordings online from widespread claims of copyright infringement; (2) copyright law and practice cannot adequately ensure the dissemination of these recordings online; and (3) there are several potential reforms to both law and industry policy that could further promote civilian access to these recordings online. In reaching these conclusions, Part I introduces statutory copyright regimes, like the DMCA, and private copyright protection regimes, like YouTube’s Content ID program, and shows how they favor protecting the interests of rightsholders over the users of online platforms. Next, this Part offers context as to how police officers intentionally weaponize these regimes by broadcasting music while being filmed. Part I concludes with a demonstration of how these police recordings especially warrant safeguarding because of their potential First Amendment protections, as well as their practical value.
Part II primarily argues that these police recordings make for compelling fair uses under copyright law. However, the existing limitations of the fair use defense—both by its very nature and in the context of DMCA takedowns—prevent the defense from being the end-all-be-all solution to keeping police recordings online.
Finally, Part III argues for several legislative, judicial, and private sector remedies to curtail this police action and promote the dissemination of the recordings online. These recommendations include amending pertinent provisions of both the DMCA and the 1976 Copyright Act, giving greater weight to First Amendment considerations, applying a new standard of secondary liability against police officers, and recommending automation of fair use for private platforms, like YouTube. The analysis set forth in this Part demonstrates that the proposed reforms to private platforms are ultimately the most realistic and practical solutions