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Touro Law Review
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This is an Open Access Journal

Open Access journal
ISSN (Print) 8756-7326
Published by Touro College

[1 journal]

Mediating Pluralism: Felix Frankfurter’s Commitment to Majoritarian
Democracy
- Authors: Dalia Tsuk
  Abstract: This Article explores parallels between Frankfurter’s faith in democracy, that is, his trust in the legislative and executive branches as reflected in his jurisprudence of judicial restraint, and Frankfurter’s vision for Jewish (and other) immigrants’ integration into the American polity, namely his conviction that immigrants should shed vestiges of their birth cultures and assimilate into their adopted culture. The Article argues that Frankfurter’s commitment to judicial restraint was his means of mediating the pluralist dilemma, that is, the need to accommodate within the law diverse cultures and values; just as Felix Frankfurter, the first-generation Jewish American, wanted to sidestep ethnic particularism, Justice Frankfurter sought to shield the Court from having to balance the competing values, identities, and viewpoints that characterized modern American society. Evading the difficult task of choosing between competing interests and values, Frankfurter’s decisions often became an apology for the status quo, that is, the social position of the insider and the political position of the majority. As the Article further suggests, in the 1950s and 1960s, Frankfurter’s students and clerks reinvigorated his vision into an ideal of procedural democracy. Frankfurter can thus be described as linking early-twentieth century Progressivism with the postwar ideal of procedural democracy; in different reiterations this model of democracy has come to dominate American legal theory in the second part of the twentieth century. At the same time, Frankfurter’s vision may also be described as giving rise to a particular strand of Jewish legal thought. Historians often emphasize Jewish-American jurists’ celebration of pluralism and their role in the midcentury fight for civil rights and liberties. In these narratives, Frankfurter’s judicial record is deemed an anomaly. But, as this Article concludes, advocates of procedural democracy were often first- and second-generation Jewish Americans who were both committed to the protection of civil rights and liberties and concerned about calling attention to ethnic differences. I hope this Article encourages further explorations of the relationship among the ideal of procedural democracy, Progressivism, and Jewish-American history.
  PubDate: Mon, 06 May 2024 12:35:31 PDT
Courting Citation Consistency: Justice Frankfurter and West Coast Hotel
Co. v. Parrish
- Authors: Helen J. Knowles-Gardner
  Abstract: This Article examines the three U.S. Supreme Court opinions authored by Justice Felix Frankfurter that cited the landmark decision in West Coast Hotel Co. v. Parrish (1937). I describe the three Parrish-citing opinions as: (1) “perfunctory”—Mayo v. Lakeland Highlands Canning Co. (1940) (Frankfurter, J., joined by Black and Douglas, JJ., dissenting); (2) “ugly”—Winters v. New York (1948) (Frankfurter, J., joined by Jackson and Burton, JJ., dissenting); and (3) “good”—American Federation of Labor v. American Sash & Door Co. (1949) (Frankfurter, J., concurring). Whatever one might think about the substance of these opinions, there is absolutely no doubt of the following. First, they are classic statements of the jurisprudential principles for which, thanks in large part to Brad Snyder’s biography, Felix Frankfurter (FF) will be principally remembered. Second, each of the three citations of Parrish is true to that 1937 decision, thereby demonstrating FF’s unwavering commitment (as both a lawyer and a jurist) to the progressive belief in the societal value of minimum wage and maximum hours laws. In other words, with regards to West Coast Hotel Co. v. Parrish, FF was the very model of a citation-consistent Democratic Justice.
  PubDate: Mon, 06 May 2024 12:35:26 PDT
John Marshall and Felix Frankfurter: An Icon and a Disappointment'
- Authors: William E. Nelson
  Abstract: This article shows how Chief Justice John Marshall first developed the doctrine of judicial restraint in Marbury v. Madison to assure the public that the Supreme Court would not engage in politically oriented judicial review as colonial courts had in holding Parliament’s 1765 Stamp Act unconstitutional. Justice Felix Frankfurter, in contrast, adopted judicial restraint differently—by reading the scholarship of James Bradley Thayer. This article also shows that Frankfurter did not abandon his commitment to judicial restraint when during his years on the bench it began to serve conservative purposes rather than the progressive purposes it had once served.
  PubDate: Mon, 06 May 2024 12:35:21 PDT
Lost in the Thicket
- Authors: Brad Snyder
  Abstract: As part of a symposium on his biography of Felix Frankfurter, Democratic Justice, Brad Snyder revisits Baker v. Carr and explores the contrasts between Justice William Brennan’s judicially supremacist majority opinion and Frankfurter’s departmentalist dissent and unheeded warnings about empowering the judiciary. As Frankfurter wrote in his Baker dissent, he placed more faith in the U.S. Congress, as opposed to the judiciary, to protect democracy.
  PubDate: Mon, 06 May 2024 12:35:15 PDT
The Law Professor as Public Intellectual: Felix Frankfurter and the Public
and Its Government
- Authors: R. B. Bernstein
  Abstract: Professor R.B. Bernstein was a legal historian with a J.D. from Harvard Law School who taught at the Colin Powell School for Civic and Global Leadership at City College of New York and New York Law School. He presented the paper below on Professor Felix Frankfurter’s The Public and Its Government, published in 1930. A little more than two months after the conference, sadly, Professor Bernstein passed. His brother Steven Bernstein provided the Touro Law Review with the draft of the paper that Professor Bernstein was preparing to submit for publication. We have added footnotes and made only minor revisions. It is our honor and privilege to publish Professor Bernstein’s paper.
  PubDate: Mon, 06 May 2024 12:35:11 PDT
Felix Frankfurter, Collector of People
- Authors: John Q. Barrett
  Abstract: Felix Frankfurter engaged, intensely, with people—they were the treasures that he hunted down, evaluated, and collected. This essay, written on the great occasion of Brad Snyder’s Frankfurter biography, considers some of Frankfurter’s most treasured people. One group is people who made Frankfurter, including Frankfurter himself, Henry L. Stimson, and Franklin D. Roosevelt. Another group is Justice Frankfurter’s three great U.S. Supreme Court colleagues: Justices Hugo L. Black, Robert H. Jackson, and William O. Douglas. A third group is biographers who Frankfurter admired and pushed: Harlan Buddington Phillips, Mark DeWolfe Howe, Jr., McGeorge Bundy, Alexander Bickel, Andrew L. Kaufman, and Philip B. Kurland. Brad Snyder has, by himself collecting Frankfurter and portraying him so fully and so well, brought his people-collecting into focus. I hope that Snyder’s biography stimulates others to study. Frankfurter, to recover his stolen papers, to write more about him, to publish more of his writings, and to live people-filled lives like his.
  PubDate: Mon, 06 May 2024 12:35:06 PDT
Felix Frankfurter: Liberal Lawyer, Conservative Justice
- Authors: Jed S. Rakoff
  Abstract: The Hon. Jed S. Rakoff gave the first presentation at the conference, providing an introduction to Justice Felix Frankfurter by describing some of his accomplishments and situating his tenure on the Supreme Court in the context of the Court’s historically conservative orientation.
  PubDate: Mon, 06 May 2024 12:35:00 PDT
Foreword: The Life, Work & Legacy of Felix Frankfurter, the Justice
Known as “FF”
- Authors: Rodger D. Citron
  PubDate: Mon, 06 May 2024 12:34:55 PDT
Imminence Should Not Be a Controlling Factor in the Duress Defense in the
Context of Battered Women
- Authors: Jacqueline Fink
  Abstract: Domestic violence is a silent killer that attacks quickly. This Note specifically discusses the Battered Woman Syndrome and the need to explore the current laws that “protect” this group. Current laws in a majority of states create a barrier that blocks battered women from obtaining the justice that should be given to all citizens. When the abused woman is at an impasse in her relationship, she may be forced to make a life-or-death decision. More likely than not, the result becomes the worst possible outcome. Domestic violence continues to be higher amongst women than men, where women are emotionally, as well as physically, withdrawn due to the abuse. This Note considers the various possibilities that may be taken by the different levels of government. More importantly, each state legislature can ensure safety by removing the cruel measures that battered women face. This would therefore change the assessment of who the true victim is in self-defense scenarios. New York is one of the leading examples of states moving with a sense of urgency while maintaining the other aspects of criminal laws. This Note does not ask for battered women to not pay for the crimes they commit. Rather, this Note brings awareness to the issues that occur in the courtroom and a solution by allowing this vulnerable group to rehabilitate while getting a fair trial. The fair trial begins with a change in our policies to lessen the strict scrutiny that duress or self-defense claims require. Put simply, imminence should no longer be a controlling factor.
  PubDate: Fri, 29 Mar 2024 08:37:48 PDT
“Improve Your Privileges While They Stay”: A Guide to Improve the
Privileges of U.S. Citizenship for Everybody
- Authors: Joshua J. Schroeder
  Abstract: In 1767, the young Phillis Wheatley wrote from her position of slavery in the Wheatley home of Boston to “ye sons of Science” at Harvard College, telling them to “improve your privileges while they stay.” She beheld the startling privileges of learning and discovery bestowed upon an elite group of young, rich white men in Boston and celebrated their privileges. Neither did she scorn those whose luck had placed a bounty of privilege upon their laps, for she likely planned to share in that bounty herself, one day. When she was only 13 or 14, Wheatley sublimely encouraged grown men to improve: “Caress, redeem each moment, which with haste / Bears on its rapid wing Eternal bliss.” Years later, Wheatley showed white Bostonians how to improve their privileges by her own example, when she secured her place as the John Milton of the American Revolution. In order to improve her privileges in this way, she had to print her books in England and import them into America for sale. After Wheatley’s revolutionary successes, the framers of the Patent & Copyright Clause, James Madison and James Wilson, seemed to take preexisting author owned copyrights in America for granted. But without Wheatley’s specific fashion of improving her own privileges internationally, there really was no such thing as preexisting common law (i.e., author owned) copyrights in England. Phillis Wheatley was the first to redeem Milton’s poetry by claiming it for the side of heaven in the United States. The lords and judges of England guessed at the basis for common law in the attestation of an author’s name, but their common law theories were all desolated by the House of Lords in 1774. Also, the printers of Boston likely would not have invited Wheatley to print as the owner of her own works so she sought an international deal. Luckily for all, Wheatley managed to print and export her books from London to America before 1774. Eventually, the privileges of the arts and sciences were opened to women and Black people respectively throughout the United States under the auspices of Wheatley’s original copyright. Many gradually inherited the privileges of the few, and Wheatley intended
  PubDate: Fri, 29 Mar 2024 08:37:43 PDT
The Author-Ity of AI: Navigating the Legal Landscape of Artificial
Intelligence Authorship
- Authors: John R. Sepúlveda
  Abstract: This Article discusses the problems that arise when trying to protect works that involve generative AI. It will detail how authorship currently is interpreted under U.S. law and how the courts and the U.S. Copyright Office interpret the authorship requirement. This Article will also present some practical tips on how to navigate current U.S. law and obtain a copyright registration.
  PubDate: Fri, 29 Mar 2024 08:37:38 PDT
“It’s the End of the World as We Know It” –Redrafting Amendment to
Federal Rule of Criminal Procedure 26 to Allow Remote Testimony
- Authors: Alisson Sandoval
  Abstract: During the COVID-19 pandemic, when society fought an aggressive and deadly virus, our connection to the outside world became predominantly virtual. Videoconference technology became essential in state and federal civil judicial proceedings. In light of the unprecedented challenges presented by the pandemic and its long-lasting impact on the criminal justice system, this Article argues for amending Federal Rule of Criminal Procedure 26 to permit remote witness testimony when a witness is unavailable.
  PubDate: Fri, 29 Mar 2024 08:37:33 PDT
International Arbitration of SEP FRAND Royalties
- Authors: Steven Pepe et al.
  Abstract: Standard-essential patent royalty disputes have typically been litigated in U.S. federal district courts, but patent owners have recently started to file suit in courts across the globe, leading to issues of comity, anti-suit injunctions, and increased litigation costs. International arbitration provides a unique forum for parties to litigate these royalty disputes and avoid, or at least lessen the burden, of these issues. This Article explores the advantages and disadvantages of using international arbitration to resolve standard-essential patent royalty disputes.
  PubDate: Fri, 29 Mar 2024 08:37:28 PDT
Mental Hygiene Law Article 81 Proceedings in New York State and the
Associated Deprivation of One’s Civil Rights and Autonomy: Are We Really
Helping'
- Authors: Giulia R. Marino
  Abstract: New York State Mental Hygiene Law Article 81 affords a population that is vulnerable to abuse and exploitation an opportunity to have their personal and/or property management needs met by the least restrictive means available, often entailing a severe deprivation of their rights.1 But what is meant by the term “least restrictive means available,” how is this determined, and how are these “means” implemented and monitored' Is this deprivation of an individual’s rights the only way they can be helped, or is this unnecessarily harmful' Are there other ways to protect the vulnerable in our society without taking away these rights, and what changes can be made' This article will discuss New York State Mental Hygiene Law Article 81 proceedings and how they impact the civil rights of the vulnerable population they were enacted to serve. This article will first discuss a brief legislative history of New York State Mental Hygiene Law Article 81 and the “least restrictive means” standard, followed by a more detailed description of Article 81 proceedings and its associated procedures in New York State. This article will then address specific civil rights that are comprised in New York State Mental Hygiene Law Article 81 proceedings and the repercussions that are incurred as a result. Finally, this article will discuss ideas for limiting the deprivation of rights, and introduce programs and current legislation that exist with the goal to reform the New York State Mental Hygiene Law Article 81 proceeding to better serve our vulnerable population.
  PubDate: Fri, 29 Mar 2024 08:37:23 PDT
A License to Discriminate' 303 Creative v. Elenis and Where the
Supreme Court May Go
- Authors: Christopher J. Manettas
  PubDate: Fri, 29 Mar 2024 08:37:18 PDT
Sign Your Name on the Dotted Line . . . Is Netflix’s Squid Game
Something More than Mere Child’s Play'
- Authors: Samantha Karpman
  Abstract: Prior to watching Netflix’s hit show, Squid Game, I was proud to say that I was someone who was a true connoisseur of reality television. Like millions of Americans who tune in to their favorite “trash TV” show, I would always look forward to turning on my TV at the end of a long day, sitting back in my pajamas, and binge-watching my favorite reality television shows. And, unlike many viewers, I was not ashamed to say this was one of my favorite hobbies. However, after watching Squid Game, my passion for reality television also grew into a concern for the potential welfare of the various participants. Although the show is highly dramatized in its portrayal of the harm done to participants in a competition-based reality program, Squid Game provides a useful springboard for discussion to see what could possibly happen if we continue to allow executives and networks to do as they like (without regard for the welfare of their participants) . . . all for the sake of drawing in ratings and maintaining the attention of viewers. This article examines the multitude of potential legal issues involved in reality television show participation through an exploration of the various abuses done to both Squid Game and “real life” reality TV participants. Then, after evaluating the near unconscionability of real-life reality television arrangements, this Article will provide two solutions that could even out the playing field between networks/producers/executives and participants: (1) adoption of the Ofcom duty of care standard in reality television contracts that the UK implemented in December 2020 and (2) permitted unionization of reality television participants in order to ensure more effective bargaining.
  PubDate: Fri, 29 Mar 2024 08:37:13 PDT
Medical Taking of Human Biological Material v. Traditional “Art
Looting”: Henrietta Lacks and the Complex Ethical and Legal Liability
Questions Raised by Her Unfortunate Case
- Authors: Alyaa Chace
  Abstract: During a poignant saga of American history, Henrietta Lacks stands as an emblem of both scientific triumph and ethical controversy. In 1951, Mrs. Lacks, a tobacco farmer and mother of five, visited Johns Hopkins Hospital for treatment of what was later discovered to be advanced stage cervical cancer. Her doctors treated her with radium, which was standard practice at the time. However, Mrs. Lacks’s cancer rapidly metastasized and she ultimately passed away just months later on October 4, 1951, at the age of 31. During the course of her treatment, Mrs. Lacks’s cells were non-consensually removed for purposes of scientific research. The cell line, coined “HeLa cells,” have in many ways immortalized Mrs. Lacks, playing an instrumental role in numerous medical breakthroughs, including the development of Covid vaccines. Despite the immense contributions her cell line made to scientific research, Mrs. Lacks and her family never received acknowledgement or compensation for the non-consensual taking and continued usage of HeLa cells. Decades later, her family filed a lawsuit against Thermo Fisher Scientific, seeking damages in profits gained from the commercialization of her cell line. This article explores the legal precedent governing the ownership of human biological materials and compares them to cases involving entrusted goods and stolen art. It scrutinizes the hurdles encountered by the Lacks family in their quest for accountability and compensation. Ultimately, the Lacks family settled with the biotech giant, sparking discussions about the ethical implications of using human biological materials in research and the need for greater protections of patient rights.
  PubDate: Fri, 29 Mar 2024 08:37:08 PDT
In a New York State of Mind: The Corporate Trustee’s Toolkit for
Effectuating Non-Judicial Trust Modifications in the Empire State
- Authors: Michael J. Borger
  Abstract: When the need to effectuate a non-judicial trust modification of a New York trust arises, the law in its current form provides corporate trustees with a tremendous amount of power and flexibility to amend, revoke, and establish new trusts with more favorable provisions. Depending upon the facts and circumstances of a particular situation (i.e., whether the settlor is alive, whether minor beneficiaries hold an interest in the trust, and whether there is dissension and discord among the beneficiaries, etc.) there are various statutes that will help a corporate trustee implement a sound strategy to modify a trust to attain favorable results for all interested parties. This article seeks to provide corporate trustees, trust officers, and other Trusts and Estates practitioners with an overview of several statutory mechanisms that can be implemented by a trustee to help mitigate the risk of litigation or judicial intervention. These statutes include EPTL § 7-1.13, which is commonly referred to as the “trustsplitting” statute, EPTL § 7-1.9, which allows for non-judicial trust modifications under circumstances where the settlor is still alive and where consent to reform the trust can be obtained from all interested parties under the instrument, and EPTL § 10-6.6, the so-called trust “decanting” statute, which permits the trustee of a trust to exercise a “special power of appointment” to invade the corpus of an existing trust and appoint the assets into new trusts with modified terms and provisions. This article will also provide a brief overview of general protections afforded to New York trustees under common law.
  PubDate: Fri, 29 Mar 2024 08:37:03 PDT

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