Touro College: Digital Commons @ Touro Law Center
Not a member yet
3484 research outputs found
Sort by
A Lesson in Moral Hazard: Why We Should Thank Bernie Madoff
Get PDFBernie Madoff is akin to the canary that miners bring to their jobs for safety. He resembles the Distant Early Warning System that was installed to protect the U.S. from attack. He has not been appreciated as such. It is time, it is past time, that he be credited with this important role he has played
How Increased Legal Representation Can Close the Gap in Special Education Discrepancies
Get PDFThis piece looks at how the existing education regime has led to disparities between white and minority students. The paper finds that the disparity gets even worse when special education is factored in. The reason so many low-income and minority students with disabilities receive such a poor education is that they do not have the proper legal representation to demand the rights that they are guaran- teed under US law. This paper looks at how low-income and minority families have been cheated out of proper legal representation in other areas and how receiving the necessary legal representation can lead to the needed change in education to ensure that low-income and minority students with disabilities receive the education they need and are supposed to be guaranteed under US law
The State of the State Action Doctrine: A Search for Accountability
Get PDFThe state action doctrine is notoriously confusing and contradictory. It is also a weak mechanism for enforcing the constitutional accountability of both State and private actors. Many solutions to the doctrine\u27s varied issues have been posed, but as of yet its problems have not been resolved. In fact, they continue to worsen, as increasing privatization combines with the doctrine\u27s restrictions to narrow constitutional liability to the point of potential nullity. This article examines the doctrine\u27s failures through the specific lens of accountability, demonstrating through analysis of recent caselaw how the doctrine — along with creating confusion and countless circuit splits — allows innumerable constitutional violations to go unremedied, even where the State played a significant role in or had significant influence over the challenged action. It argues that the easiest and most effective solution to the doctrine\u27s flaws lies within the heart of the doctrine itself, as defined by the Supreme Court: matching State responsibility with constitutional liability.
The conception of State responsibility as originally formulated by the Court does not necessitate as narrow a reading as it has thus far received, and a broader interpretation could allow the doctrine to fill in its current accountability gaps. To that end, this article proposes several modifications to the state action doctrine. These changes include interpreting the current state action tests used by courts as non-exclusive, removing the unwarranted requirement that the State be directly responsible for the specific action challenged, and adding factors into the analysis that capture a broader and more accurate vision of accountability
Wearing My Crown to Work: The Crown Act as a Solution to Shortcomings of Title VII for Hair Discrimination in the Workplace
Get PDF
Global Legal Pluralism and Commercial Law
Get PDFMultiple, overlapping, and systemically interactive normative orders regulate commerce, trade, and finance. A diverse set of state and non-state actors produce this plurality of rules governing markets. How these rules operate, what they are, whether some of them deserve recognition as what societies usually conceptualize as law, and their historical lineage, are the subject of significant disagreement and confusion. This chapter offers a taxonomy and classification of the sources of norms and ground clearing on the different kinds of norms at work in the global economy. It surveys the literature on the history of the law merchant, with a focus on whether a medieval law merchant or lex mercatoria existed and if so in what form and content. It explains that while some legal scholars and jurists have offered visions of an “a-national” law merchant going back into at least the Middle Ages, historians are far more careful and skeptical in their findings. It is unlikely that a body of common rules on the substance of commercial law existed in England and across Europe in the Middle Ages, but still the rules of commerce even then displayed substantial pluralism as a mix of rules from different sources on procedure, evidence, dispute resolution, and official rules and privileges applicable to merchants. The chapter also deals with the pluralism of legal orders governing commercial law in the nineteenth century, with the rise of the modern European nation-state. It lays the groundwork for thinking about plurality in present-day commercial law. The chapter explores the contemporary debates about the existence of a contemporary law merchant and a transnational commercial law. It goes on to examine the various schools of thought about pluralism in commercial law. It focuses on advances in law and economics, law and society, positivist accounts attempting to elucidate the conditions in which plural commercial law orders might be understood, and critical accounts questioning whether plural orders in commerce and finance promote power, ideology, and injustice. The chapter covers how soft law dominates the regulation of global finance and banking. The chapter concludes by offering predictions of future domains for plural normative orders governing commerce and finance, in particular with the rise of digital technologies
