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The Sources and Consequences of Disputes over Contractual Meaning
No full textWith some frequency, parties agree to the particular words used in a contract they sign, only to later disagree as to the meaning of those words and their legal effect. That is, they each assent to something, but that “something” is something different for each of them. In this Article, I first categorize and trace the sources of recurring points of disagreement as a matter of language and linguistics. Then, I look at the consequences of a dispute that leads a fact finder to conclude that the parties genuinely did not agree to the same thing, which is to say that the meaning of the words they chose is indeterminant in the milieu of their “contract.” Finally, I situate the discussion in the context of dispute resolution and the procedural consequences of a finding that, in words or effect, “there was no agreement.
2024 Commencement Exercises
No full textOrder of Exercises
Processional:
Felix Wu, JD, PhD, Vice Dean, Professor of Law, Herald
Presiding:
Selma Botman, PhD, Provost and Vice President for Academic Affairs, Yeshiva University, Chief Marshal
Rabbi Dr. Ari Berman, President, Yeshiva University
National Anthem:
Cantor Ira W. Heller, JD, Benjamin N. Cardozo School of Law, Class of 2008
Remarks:
Melanie Leslie, JD, Dean, Benjamin N. Cardozo School of Law, Class of 1991
Commencement Address:
Hon. Ronnie Abrams, U.S. District Judge for the Southern District of New York
Student Remarks:
Meriem Sennoussi, LL.M. Class Speaker, Class of 2024
Polina Pittell, J.D. Class Speaker, Class of 2024
Student Bar Association Awards:
Gowri Cheepurupalli, SBA President, Class of 2024
Awards and Honors:
Dean Leslie
Remarks:
President Berman
Conferring of Master of Laws (LL.M.) Degrees:
President Berman
Dean Leslie
Conferring of Doctor of the Science of Law (J.S.D.) Degrees:
President Berman
Dean Leslie
Conferring of Juris Doctor (J.D.) Degrees:
President Berman
Dean Leslie
Alumni Remarks:
Ira S. Dizengoff, JD, Chair, Cardozo Board of Overseers, Benjamin N. Cardozo School of Law, Class of 1992
Hatikvah:
Cantor Heller
Recessionalhttps://larc.cardozo.yu.edu/commencement/1000/thumbnail.jp
Show and Tell
No full text...to break the rules wisely, you have to know the rules well.
–Le Guin, Steering the Craft
I finished my doctorate in June of 2019. Most of my waking hours that late summer and early fall were spent writing and rewriting cover letters, teaching statements, and research agendas (and equity statements, long CVs, short CVs, etc.)—all the variegated materials demanded from applicants to tenure-track positions in North American law faculties. Writing those materials, and integrating the feedback on early drafts that I received from a host of generous peers and colleagues, became an accidental study in the principal subtext of my doctoral research: questions of genre, audience, and what we do through our writing as legal scholars
Examining Patent Eligibility
No full text(Excerpt)
A firestorm of debate has surrounded the Supreme Court of the United States’s 2014 decision Alice Corp. Pty. Ltd. v. CLS Bank International on the doctrine of patentable subject matter eligibility under 35 U.S.C. § 101. As the Court’s leading articulation of doctrine, which generally excludes from patenting abstract ideas, laws of nature, and natural phenomena, Alice has been criticized as unpredictably vague and overly constrictive of patentability, with the effect of “decimating” patents, innovation, technological investment, and even the United States’ competitiveness against other nations. To support these criticisms and calls for reform, scholars and practitioners have frequently turned to empirical analysis of patent examination data showing major changes to patent examination outcomes after Alice, to argue that the decision had dramatic and negative consequences in its immediate wake. These criticisms and empirical analyses are influencing policy: Senator Thom Tillis introduced legislation amending § 101 on June 22, 2023.
Viewing Alice in isolation, its effects seem obvious: increases in rejections under § 101 and decreases in granted patents in fields such as computer software that the decision directly addressed. Yet context matters, and the relevant context here—the development of patent eligibility law before the 2014 decision—has gone largely unstudied. Indeed, at least some commentators assume that the pre-Alice period was a relatively peaceful time for subject matter eligibility with little doctrinal development other than the Supreme Court’s interventions.
In this Article, I challenge the failure to consider this context in understanding the impact of Alice, and consequently challenge the assumption that Alice was a major and unprecedented change at all. Instead, I posit a novel alternate account of § 101’s development, in which the key turning point was a little-noticed 2011 Federal Circuit decision called Ultramercial, LLC v. Hulu, LLC (“Ultramercial I”). That case revived an archaic and controversial doctrine of software patent eligibility that spawned a wave of patents particularly directed to methods of doing business. Alice, three years later, is better understood as a correction of this erroneous appellate decision and a restoration of pre-2011 eligibility law—hardly the revolution that Alice has been made out to be
Rigid Rideshares and the Driver Flexibility Myth
No full text(Excerpt)
In 2018, Uber, Lyft, and similar organizations spent $224 million to ensure that Proposition 22 ( Prop. 22 ) passed in California, reclassifying gig workers as independent contractors, but with some rights not typically guaranteed to independent contractors. Through the most expensive ballot measure in U.S. history at that point, Uber and Lyft argued that to preserve flexibility for drivers, they must remain as independent contractors under the law. However, Prop. 22 did not increase driver benefits nor provide any assurances of flexibility. Many workers in California regret casting their ballots for Prop. 22 and feel deceived by Uber and Lyft. Though the future of Prop. 22 is still in question, the reality for drivers after Prop. 22 continues to be dismal.
Over the last ten years, Uber, Lyft, and other Transportation Network Companies ( TNC }—companies that maintain digital applications that match potential riders with drivers in real-time—have consistently lobbied for legislation codifying TNC drivers as independent contractors, allowing for driver exploitation. The main argument TNCs employ is that drivers must be classified as independent contractors to retain work flexibility. This Note will argue that TNC drivers do not have the independence and flexibility that TNCs tout due to algorithmic management and a push toward shift work, and that even if they did, there is nothing under the current law that would prevent employee drivers from having flexible work arrangements. While existing literature discusses the structure of TNCs and the realities for TNC drivers, it overlooks the causal connection between the inaccuracy of the legal presumption underlying TNC claims of flexibility and outcomes for drivers. This Note highlights that the flexibility narrative does not apply to many in the gig economy and the perpetuation of this myth further harms TNC drivers.
Part I of this Note will briefly review the background of the independent contractor exemption to labor and employment laws in the United States. This will include the legislative history and remedial intent of the Fair Labor Standards Act ( FLSA ) and National Labor Relations Act ( NLRA ). Part II of this Note will focus on the ways that TNCs have garnered support and societal reliance on the flexibility narrative. This narrative has strong currency among current and prospective drivers, the general public, legislators, and judges.
Part III of this Note will take a critical lens to the flexibility narrative to show that it has little merit given the realities of work for TNC drivers. TNC drivers have an inherent lack of agency over their schedule, location, and performance of work due to TNC incentives toward algorithmic management and shift work. Then, this section will examine the narrative under current law to show that employee status does not preclude flexibility and that the narrative perpetuates a conclusion that defies logic. Part IV of this Note will then analyze ways that rideshare driver advocates can respond to the flexibility narrative and address its flaws
Ene v. Graham, 140 Nev. Adv. Op. 26 (Apr. 18, 2024)
No full textThe Nevada Supreme Court ruled that (1) only issues expressly or impliedly tried by either party should be discussed at trial; and (2) alter ego liability analyses apply the same to both LLCs and corporations. The Court found that the legislature intended for corporate veil piercing statutes and alter ego exceptions to apply similarly to both corporations and LLCs. Although both courts agreed that Ene influenced and governed International Property Holdings, LLC (IPH), the Court held that (1) Graham failed to establish a causal connection between her injuries and Ene’s personal use of the property, and (2) the lower court’s analysis of the manifest injustice element did not consider precedential factors like the impact on the property’s creditors. The Court reversed and remanded the district court’s finding that Ene was an alter ego of IPH
Morrison v. State of Nevada, 140 Nev. Adv. Op. 24 (Apr. 4, 2024)
No full textKwame De-Markquise Morrison raised five issues after a jury found him guilty of three counts of sexual assault upon a minor under the age of 14 years and one count of use of a minor under the age of 14 to produce pornography. Morrison contended that the district court erred when it instructed the jury that lack of knowledge, or mistake of fact as to the victim’s age, is not a defense to the charge of use of a minor in producing pornography, NRS 200.710(1). Second, Morrison alleged that the district court abused its discretion by denying his motion to dismiss counsel. Third, he alleged that the district court erred by failing to conduct a Faretta canvass. Fourth, he argued that the State committed prosecutorial misconduct. Fifth, Morrison contended the State improperly commented on the evidence during the closing argument. The Nevada Court of Appeals found that the district court provided an inaccurate jury instruction to the jury regarding NRS 200.710(1); nevertheless, the error was harmless beyond a reasonable doubt. The Court rejected Morrison’s other four arguments and found that the district court did not abuse its discretion
When (and Where) is a Crime a Crime? “Double Criminality” as a Principle of Fundamental Justice
No full textThe idea that crime crosses borders is fast becoming ordinary, even old hat, particularly in an age of online crime such as ransomware attacks, cyber-extortion and the like. As we have become more geographically mobile, however, it is increasingly common for people to have engaged in criminal conduct in one state1 but then seek to exercise legal rights, or face legal entanglements, in others. Legal questions can then arise about what effect should be given by one state—in this article, Canada—to an individual’s conduct that was, or is alleged to have been, a crime in a foreign state. The inquiry boils down to this: what should the law do in situations where one’s status as a criminal offender crosses borders, or some party or state agency seeks to have it do so? Put another way, in situations where it matters legally that a person has committed a crime, does it matter that the crime was committed in a foreign state? And if so, how do we determine whether that foreign crime should be given legal effect here in Canada
Noisy Speech Externalities
No full textA central tenet of contemporary First Amendment law is the metaphor of the marketplace of ideas – that the solution to bad speech is more, better, speech.1 This basic idea is well established in both judicial and scholarly writing – but it is not without its critics. My contribution to this volume adds a new criticism of the marketplace-of-ideas metaphor. I argue that there are circumstances where ostensibly “good” speech may be indistinguishable by listeners from bad speech – indeed, that there are cases in which any incremental speech can actually make other good speech indistinguishable from bad speech. In such cases, seemingly “good” speech has the effect of “bad” speech. I call this process by which ostensibly good speech turns the effects of other speech bad “a noisy speech externality.
