LARC Cardoso Law (Yeshida Univ)
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A Model Defense of Due Process Balancing
No full textJudicial balancing has been subjected to a standard list of objections for decades, without anyone\u27s offering a comprehensive and persuasive response. This Article fills that gap. Balancing is not embedded in an invidious instrumentalism, such as utilitarianism, that saps law of its moral salience; it does not depend on the quantification or commensuration of manifestly qualitative legal interests; it is not arbitrary, result-oriented, or mere opinion; it does not invade the province of the legislature; and--most importantly--it does not risk balancing constitutional rights away by treating them as mere interests.
The defense consists of a model. Models do not prove; they explain. A model-based defense is, therefore, a burden-shifting defense. If balancing can be modeled in a way that obviates the standard objections, then the burden is on balancing\u27s critics to show that their criticisms still stand.
The model of judicial balancing presented in this Article is based on an account of causal explanation in the sciences, known as a difference-maker account. A difference-maker account of causation is different from the counterfactual, but-for conception that lawyers use. The difference-maker account explains a phenomenon by eliminating some causal factors from the explanation, leaving only those necessary to represent it. A difference-maker model uses five connectives--inclusion, exclusion, abstraction, cohesive disjunction, and non-cohesive disjunction--to explain how the relevant causal factors are arranged to produce a minimum, maximally abstract explanation. This Article formulates a difference-maker model of Due Process balancing and uses it to provide a model-based, burden-shifting defense of the practice
Cardozo Law News Brief: January 26, 2024
Get PDFFeatured Faculty: Michael Herz Emmanuel H. Arnaud Peter Goodrich Jacob Noti-Victor Edward Zelinsky
Campus News: Cardozo Holds Two-Week January Intensive Courses Teaching Students Courtroom Litigation and Transactional Skills Justice Dianne T. Renwick ’86 Pens Piece for New York Law Journal About Diversity On NY\u27s Court System\u27s Bench
Events: The 2024 Cardozo Colloquium on Global and Constitutional Theory The FAME Center Presents: An Evening with Steve Madden Michael Oher and ‘The Blind Side’ of Conservatorships The 2024 Cardozo Colloquium on Global and Constitutional Theory Presents: Linda Greenhouse on the Roberts Court Cardozo Law Review Symposium on Ethics in the Judiciary and the Legal Profession: Are We in Crisis
Michael Oher and The Blind Side of Conservatorships
Get PDFThe Michael Oher case brought to light another shocking example of the overuse of conservatorship. How did a court take away Michael Oher\u27s basic decision-making rights, including the right to enter contracts, when he thought he was being adopted rather than consenting to a conservatorship? Who benefits from The Blind Side as well as Oher’s sports contracts and how do these arrangements compare to similar situations in which there is no guardian in place? What role do sports and entertainment lawyers have in making sure an athlete shares in the profits when his life story is told?https://larc.cardozo.yu.edu/event-invitations-2024/1002/thumbnail.jp
14th Annual BALLSA Celebration
Get PDFKwanza Jones Class of 1999
Founder and CEO, Kwanza Jones & José E. Feliciano Initiative
Kwanza Jones is a catalyst. Her life’s work lives at the intersection of culture, community, and capital. Whether producing motivational media through her company SUPERCHARGED by Kwanza Jones, or sharing an action-inspiring message from the stage or in the boardroom, Jones uses her art and access to amplify voices and issues that may otherwise not be heard.https://larc.cardozo.yu.edu/event-invitations-2024/1005/thumbnail.jp
How To Save The World In Six (Not So Easy) Steps
Get PDFhttps://larc.cardozo.yu.edu/flyers-2023-2024/1090/thumbnail.jp
Panel 1: Copyright
No full textOur copyright experts will examine transformative use through an antitrust lens, the Warhol decision\u27s muddling of commercial licensing and the fair use defense, and why SCOTUS got it right when it rejected applying patent law\u27s prospect theory to copyright\u27s derivative work right in Warhol
Can the ADA Protect Persons with Disabilities in Their Ability To Get to Work?
Get PDFJames Kimmons worked at a Charter Communications call center. He suffered cataracts in both eyes, which made it difficult to drive in the dark. Kimmons requested a modification to his work schedule, seeking permission to work earlier hours so he could commute home in the daylight. Notably, the work-schedule accommodation Kimmons sought is one that many other Americans may need, as 22.8% of all working age adults are considered accommodation-sensitive and 47% to 58% “of those who would actually benefit from a workplace accommodation do not receive one.” His employer granted his request for a short period of time but ultimately refused to extend the accommodation, arguing that the call center was under no obligation to change his schedule under the Americans with Disabilities Act (ADA). Kimmons filed a complaint with the Equal Opportunity Employment Commission (EEOC), which prompted the Commission to initiate litigation on his behalf. While the district court ruled in favor of Kimmons’ employer, the Court of Appeals for the Seventh Circuit recently held for Kimmons.This post was originally published on the Cardozo Journal of Equal Rights and Social Justice website on February 12, 2024. The original post can be accessed via the Archived Link button above