The Americans with Disabilities Act and its predecessor, Section 504 of the Rehabilitation Act of 1973 (“Section 504”), protect people from discrimination based on disability, but not if that disability happens to be one of three archaic medical conditions associated with transgender people: “transvestism,” “transsexualism,” and “gender identity disorders not resulting from physical impairments.” This Article tells the story of how this transgender exclusion came to be, why a growing number of federal courts say it does not apply to gender dysphoria, a new and distinct medical diagnosis, and the future of disability rights protections for transgender people.
{"title":"The Future of Disability Rights Protections for Transgender People","authors":"K. Barry, J. Levi","doi":"10.31228/osf.io/6x42e","DOIUrl":"https://doi.org/10.31228/osf.io/6x42e","url":null,"abstract":"The Americans with Disabilities Act and its predecessor, Section 504 of the Rehabilitation Act of 1973 (“Section 504”), protect people from discrimination based on disability, but not if that disability happens to be one of three archaic medical conditions associated with transgender people: “transvestism,” “transsexualism,” and “gender identity disorders not resulting from physical impairments.” This Article tells the story of how this transgender exclusion came to be, why a growing number of federal courts say it does not apply to gender dysphoria, a new and distinct medical diagnosis, and the future of disability rights protections for transgender people.","PeriodicalId":83351,"journal":{"name":"Touro law review","volume":"8 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2019-05-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74448197","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Like legal education, media literacy education teaches critical thinking skills. Students with media literacy education are able to evaluate media messages and decide for themselves the truth of media. Media literacy education is critical at all levels, but it should be a required inclusion for every legal education program.
{"title":"Fake News, Alternative Facts, and Disinformation: The Importance of Teaching Media Literacy to Law Students","authors":"M. Dell","doi":"10.2139/SSRN.3002720","DOIUrl":"https://doi.org/10.2139/SSRN.3002720","url":null,"abstract":"Like legal education, media literacy education teaches critical thinking skills. Students with media literacy education are able to evaluate media messages and decide for themselves the truth of media. Media literacy education is critical at all levels, but it should be a required inclusion for every legal education program.","PeriodicalId":83351,"journal":{"name":"Touro law review","volume":"198 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2018-11-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85716915","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Although a member of the Supreme Court at the time, Benjamin Cardozo did not participate in Erie Railroad Co. v. Tompkins. He was dying. It is a mere fortuity that Cardozo’s death coincided with the death of the general common law. Yet it has since proved to be something more—or so this symposium essay argues. It is in part because our highest court took itself out of the business of making law in contract, property, tort, and related areas that Cardozo’s beloved common law has fallen on hard times, and that even state-court judges have increasingly lost their feel for how to reason about it. Today, there is no member of a state judiciary who rivals Cardozo in stature. Mainly this is a testament to his extraordinary gifts. But it also reflects the waning of the common law in the United States, and a concomitant loss of the sense of what it means to be a great common-law judge.
{"title":"Benjamin Cardozo and the Death of the Common Law","authors":"John C. P. Goldberg","doi":"10.2139/SSRN.3186775","DOIUrl":"https://doi.org/10.2139/SSRN.3186775","url":null,"abstract":"Although a member of the Supreme Court at the time, Benjamin Cardozo did not participate in Erie Railroad Co. v. Tompkins. He was dying. It is a mere fortuity that Cardozo’s death coincided with the death of the general common law. Yet it has since proved to be something more—or so this symposium essay argues. It is in part because our highest court took itself out of the business of making law in contract, property, tort, and related areas that Cardozo’s beloved common law has fallen on hard times, and that even state-court judges have increasingly lost their feel for how to reason about it. Today, there is no member of a state judiciary who rivals Cardozo in stature. Mainly this is a testament to his extraordinary gifts. But it also reflects the waning of the common law in the United States, and a concomitant loss of the sense of what it means to be a great common-law judge.","PeriodicalId":83351,"journal":{"name":"Touro law review","volume":"78 1","pages":"11"},"PeriodicalIF":0.0,"publicationDate":"2018-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74041560","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this essay, we suggest that law schools may provide every student with the opportunity to become involved in the process of producing a publishable paper by establishing on-line repositories for student publications. In the paragraphs that follow, we describe what such a program, which we call "student authorship," might look like and further explore several primary benefits that such a program would confer upon students.
{"title":"Fostering Student Authorship","authors":"A. Mashburn, S. Rush","doi":"10.2139/SSRN.2998817","DOIUrl":"https://doi.org/10.2139/SSRN.2998817","url":null,"abstract":"In this essay, we suggest that law schools may provide every student with the opportunity to become involved in the process of producing a publishable paper by establishing on-line repositories for student publications. In the paragraphs that follow, we describe what such a program, which we call \"student authorship,\" might look like and further explore several primary benefits that such a program would confer upon students.","PeriodicalId":83351,"journal":{"name":"Touro law review","volume":"83 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2017-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79335666","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this symposium issue essay, Dean Mulroy argues that the paperless trend in law reviews is inevitable and mostly salutary, given advantages in cost, speed, access, and environmental impact. This will likely not mean the demise of student-run journals, nor should it. Although student-run journals have drawbacks and the rise of peer-reviewed journals is beneficial, the student-run journal has several significant advantages.
{"title":"The Paperless Chase","authors":"Steven J. Mulroy","doi":"10.2139/SSRN.2758853","DOIUrl":"https://doi.org/10.2139/SSRN.2758853","url":null,"abstract":"In this symposium issue essay, Dean Mulroy argues that the paperless trend in law reviews is inevitable and mostly salutary, given advantages in cost, speed, access, and environmental impact. This will likely not mean the demise of student-run journals, nor should it. Although student-run journals have drawbacks and the rise of peer-reviewed journals is beneficial, the student-run journal has several significant advantages.","PeriodicalId":83351,"journal":{"name":"Touro law review","volume":"42 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2016-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88869226","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"People v. Boone","authors":"D. Somberg","doi":"10.1037/e500602018-001","DOIUrl":"https://doi.org/10.1037/e500602018-001","url":null,"abstract":"","PeriodicalId":83351,"journal":{"name":"Touro law review","volume":"62 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86871506","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In his iconic song “Scenes from an Italian Restaurant,” Billy Joel uses a series of vignettes to describe an encounter between two former classmates, meeting again after many years. The song begins as a ballad as they exchange pleasantries, segues into jazz as they reminisce about high school, shifts to rock as they gossip about the decline and fall of the former king and queen of the prom, then returns to a ballad as they part. The genius of the song is that the banality of the vignettes perfectly captures the subjectivity of their lived experience.This essay uses a series of vignettes drawn from Joel’s career to describe his encounters with copyright law. It begins by examining the ownership of the copyright in Joel’s songs. It continues by considering the authorship of Joel’s songs. And it concludes by evaluating certain infringement actions filed against Joel. While Joel’s encounters with copyright law were confusing and frustrating, they are also typical. The banality of his experiences captures the uncertainty and incoherence of copyright doctrine.
{"title":"Scenes from the Copyright Office","authors":"Brian L. Frye","doi":"10.2139/SSRN.2579349","DOIUrl":"https://doi.org/10.2139/SSRN.2579349","url":null,"abstract":"In his iconic song “Scenes from an Italian Restaurant,” Billy Joel uses a series of vignettes to describe an encounter between two former classmates, meeting again after many years. The song begins as a ballad as they exchange pleasantries, segues into jazz as they reminisce about high school, shifts to rock as they gossip about the decline and fall of the former king and queen of the prom, then returns to a ballad as they part. The genius of the song is that the banality of the vignettes perfectly captures the subjectivity of their lived experience.This essay uses a series of vignettes drawn from Joel’s career to describe his encounters with copyright law. It begins by examining the ownership of the copyright in Joel’s songs. It continues by considering the authorship of Joel’s songs. And it concludes by evaluating certain infringement actions filed against Joel. While Joel’s encounters with copyright law were confusing and frustrating, they are also typical. The banality of his experiences captures the uncertainty and incoherence of copyright doctrine.","PeriodicalId":83351,"journal":{"name":"Touro law review","volume":"46 1","pages":"83-109"},"PeriodicalIF":0.0,"publicationDate":"2015-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78830191","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article addresses recent developments in the law of takings arising from the courts’ application of the rule, articulated in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 185 (1985), that a property owner must sue for damages in state court to ripen a Fifth Amendment takings claim. The article reviews the confusion and inequity caused by this “state litigation” ripeness rule, and the Supreme Court’s and lower federal courts’ recent attempts to weaken the rule, so as to allow some takings claimants to litigate in federal court. Williamson County’s state litigation ripeness doctrine requires property owners to litigate for just compensation in state court before they can file a federal takings claim in federal court. But in practice, this rule interacts with other jurisdictional principles, such as federal claim and issue preclusion, in a manner that bars property owners from raising state-court ripened takings claims in federal court. As a result, plaintiffs must file their Fifth Amendment takings claims in state court. Yet, this opens the door for defendants to leverage removal principles and Williamson County to entirely deprive a takings plaintiff of any judicial forum for their case. If a defendant removes a state court takings case to federal court, it prevents the plaintiff from litigating in state court - the only available forum under Williamson County - and brings the removed claim to the federal forum in an unripe state; i.e., prior to full exhaustion of state court litigation. Federal courts often dismiss such removed takings cases, leaving the plaintiff without access to the courts for their Fifth Amendment takings claim. The article explains that these problems arise from a jurisdictional understanding of the state litigation rule and that the Supreme Court has abandoned this view. The Court has transformed the state litigation rule from a strict jurisdictional rule into a discretionary "prudential" ripeness concept. The article highlights how federal courts are using the new, "prudential" conception of Williamson County to decline to require state litigation for takings ripeness and defends this approach. It concludes that the courts' application of Williamson County as a discretionary, prudential ripeness doctrine provides them with a basis to spare takings plaintiffs from the worst injustices of the state litigation rule until the Supreme Court finally puts this rule where it belongs: in the waste pile of failed constitutional doctrines.
本文论述了由于法院在威廉姆森县地区规划委员会诉汉密尔顿银行案(473 U.S. 185(1985))中所阐述的规则的适用而引起的征收法的最新发展，即财产所有人必须向州法院起诉损害赔偿，以使第五修正案征收索赔得以完善。文章回顾了这一“州诉讼”成熟规则所造成的混乱和不公平，以及最高法院和下级联邦法院最近试图削弱这一规则，以允许一些征收索赔人在联邦法院提起诉讼。威廉姆森县的州诉讼成熟原则要求财产所有者在向联邦法院提出联邦征收索赔之前，先在州法院提起诉讼，要求公正的赔偿。但在实践中，这条规则与其他司法原则相互作用，如联邦索赔和问题排除，以一种禁止财产所有者在联邦法院提出州法院成熟的征收索赔的方式。因此，原告必须向州法院提交第五修正案规定的征用要求。然而，这为被告利用搬迁原则和威廉森县打开了大门，完全剥夺了原告对其案件的任何司法论坛。如果被告将州法院征收财产的案件移送联邦法院，它将阻止原告在州法院提起诉讼——州法院是威廉姆森县管辖下唯一可用的法院——并将被移送的索赔提交到未成熟州的联邦法院;也就是说，在州法院诉讼完全用尽之前。联邦法院经常驳回这类被剥夺财产的案件，使原告无法诉诸法院就其第五修正案的财产要求提起诉讼。文章解释说，这些问题产生于对州诉讼规则的管辖权理解，而最高法院已经放弃了这种观点。法院将国家诉讼规则从严格的管辖权规则转变为自由裁量的“审慎”成熟度概念。这篇文章强调了联邦法院是如何利用威廉姆森县新的“审慎”概念来拒绝对征收成熟度进行州诉讼的，并为这种方法进行了辩护。它的结论是，法院将威廉姆森县作为一种自由裁量、审慎的成熟原则的应用，为他们提供了一个基础，使原告免受州诉讼规则中最严重的不公正待遇，直到最高法院最终将这条规则置于其应有的位置:失败的宪法原则的废物堆中。
{"title":"The Rebirth of Federal Takings Review? The Courts’ “Prudential” Answer to Williamson County’s Flawed State Litigation Ripeness Requirement","authors":"J. Breemer","doi":"10.2139/SSRN.2344499","DOIUrl":"https://doi.org/10.2139/SSRN.2344499","url":null,"abstract":"This article addresses recent developments in the law of takings arising from the courts’ application of the rule, articulated in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 185 (1985), that a property owner must sue for damages in state court to ripen a Fifth Amendment takings claim. The article reviews the confusion and inequity caused by this “state litigation” ripeness rule, and the Supreme Court’s and lower federal courts’ recent attempts to weaken the rule, so as to allow some takings claimants to litigate in federal court. Williamson County’s state litigation ripeness doctrine requires property owners to litigate for just compensation in state court before they can file a federal takings claim in federal court. But in practice, this rule interacts with other jurisdictional principles, such as federal claim and issue preclusion, in a manner that bars property owners from raising state-court ripened takings claims in federal court. As a result, plaintiffs must file their Fifth Amendment takings claims in state court. Yet, this opens the door for defendants to leverage removal principles and Williamson County to entirely deprive a takings plaintiff of any judicial forum for their case. If a defendant removes a state court takings case to federal court, it prevents the plaintiff from litigating in state court - the only available forum under Williamson County - and brings the removed claim to the federal forum in an unripe state; i.e., prior to full exhaustion of state court litigation. Federal courts often dismiss such removed takings cases, leaving the plaintiff without access to the courts for their Fifth Amendment takings claim. The article explains that these problems arise from a jurisdictional understanding of the state litigation rule and that the Supreme Court has abandoned this view. The Court has transformed the state litigation rule from a strict jurisdictional rule into a discretionary \"prudential\" ripeness concept. The article highlights how federal courts are using the new, \"prudential\" conception of Williamson County to decline to require state litigation for takings ripeness and defends this approach. It concludes that the courts' application of Williamson County as a discretionary, prudential ripeness doctrine provides them with a basis to spare takings plaintiffs from the worst injustices of the state litigation rule until the Supreme Court finally puts this rule where it belongs: in the waste pile of failed constitutional doctrines.","PeriodicalId":83351,"journal":{"name":"Touro law review","volume":"32 1","pages":"8"},"PeriodicalIF":0.0,"publicationDate":"2013-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86156646","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A decade has passed since Republican Party of Minnesota v. White, the landmark Supreme Court decision loosening speech restrictions on judicial candidates. White involved the announcements of legal and political views. New York limits speech concerning the extent to which judicial candidates may pledge, promise, or commit to legal or political positions. As these categories partially overlap in their applicability to a given campaign statement, New York judicial candidates must carefully navigate what they can and cannot say to avoid disciplinary censure. This Article sets out to determine the precise delineation of what can and cannot be said in New York and whether the legal speech that remains is a constitutionality valid limit. Ultimately, the restrictions are problematic because of the limited state interest in restricting judicial candidate speech and the false idea that speech that does not favor one set of legal interests or class of litigants over another can be sufficiently meaningful to the electorate to satisfy the relevant First Amendment interests.
{"title":"Pledge, Promise, or Commit: New York's Tenuous Limitations on Judicial Campaign Speech","authors":"Noah Hertz-Bunzl","doi":"10.2139/SSRN.2311805","DOIUrl":"https://doi.org/10.2139/SSRN.2311805","url":null,"abstract":"A decade has passed since Republican Party of Minnesota v. White, the landmark Supreme Court decision loosening speech restrictions on judicial candidates. White involved the announcements of legal and political views. New York limits speech concerning the extent to which judicial candidates may pledge, promise, or commit to legal or political positions. As these categories partially overlap in their applicability to a given campaign statement, New York judicial candidates must carefully navigate what they can and cannot say to avoid disciplinary censure. This Article sets out to determine the precise delineation of what can and cannot be said in New York and whether the legal speech that remains is a constitutionality valid limit. Ultimately, the restrictions are problematic because of the limited state interest in restricting judicial candidate speech and the false idea that speech that does not favor one set of legal interests or class of litigants over another can be sufficiently meaningful to the electorate to satisfy the relevant First Amendment interests.","PeriodicalId":83351,"journal":{"name":"Touro law review","volume":"1 1","pages":"6"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83417162","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article addresses the repercussions of Stern v. Delphi Internet Services Corporation and argues that the decision in Stern opens the door to a broader interpretation of “newsworthiness” and “public interest” that will enable advertisers broader First Amendment protections when using “unauthorized” likenesses. This article posits that artful advertisers could very well use the theory of Stern as a basis for virtually ensuring that every “unauthorized likeness” will enjoy First Amendment protection and not be considered as violative of the right of publicity.
{"title":"Commercial Exploitation or Protected Use? Stern v. Delphi Internet Services Corporation and the Erosion of the Right of Publicity","authors":"Karin M. Mika, A. Reber","doi":"10.2139/SSRN.1649608","DOIUrl":"https://doi.org/10.2139/SSRN.1649608","url":null,"abstract":"This article addresses the repercussions of Stern v. Delphi Internet Services Corporation and argues that the decision in Stern opens the door to a broader interpretation of “newsworthiness” and “public interest” that will enable advertisers broader First Amendment protections when using “unauthorized” likenesses. This article posits that artful advertisers could very well use the theory of Stern as a basis for virtually ensuring that every “unauthorized likeness” will enjoy First Amendment protection and not be considered as violative of the right of publicity.","PeriodicalId":83351,"journal":{"name":"Touro law review","volume":"86 1","pages":"207"},"PeriodicalIF":0.0,"publicationDate":"2010-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72522229","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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