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Articles 1 - 23 of 23
Full-Text Articles in Law
Supervised Release, Sex-Offender Treatment Programs, And Substantive Due Process, Max B. Bernstein
Supervised Release, Sex-Offender Treatment Programs, And Substantive Due Process, Max B. Bernstein
Fordham Law Review
This Note argues that mandated PPG testing should be eliminated as a condition of federal supervised release. The test infringes on a constitutionally protected liberty interest against unwanted bodily intrusions and, as only the Second Circuit has held, any condition of supervised release that infringes on a constitutionally protected right may be mandated only where it is narrowly tailored to serve a compelling government interest. Because there are a number of viable, less intrusive alternatives, PPG testing as it stands today is not narrowly tailored enough to serve a compelling government interest.
Free Speech And Civil Liberties In The Second Circuit, Floyd Abrams
Free Speech And Civil Liberties In The Second Circuit, Floyd Abrams
Fordham Law Review
Much of the development of First Amendment law in the United States has occurred as a result of American courts rejecting well-established principles of English law. The U.S. Supreme Court has frequently rejected English law, permitting far more public criticism of the judiciary than would be countenanced in England, rejecting English libel law as being insufficiently protective of freedom of expression and holding that even hateful speech directed at minorities receives the highest level of constitutional protection. The Second Circuit has played a major role in the movement away from the strictures of the law as it existed in the …
To Call Or Not To Call: Compelling Witnesses To Appear Before Congress, Daniel Curbelo Zeidman
To Call Or Not To Call: Compelling Witnesses To Appear Before Congress, Daniel Curbelo Zeidman
Fordham Urban Law Journal
No abstract provided.
Communication And Competence For Self-Representation, E. Lea Johnston
Communication And Competence For Self-Representation, E. Lea Johnston
Fordham Law Review
In Indiana v. Edwards, the U.S. Supreme Court held that states may impose a higher competency standard for self-representation than to stand trial in criminal cases. While the Court articulated a number of interests relevant to representational competence, it left to states the difficult task of formulating an actual competence standard. This Article offers the first examination and assessment of the constitutionality of state standards post-Edwards. It reveals that seven states have endorsed a representational competence standard with a communication component. Additionally, twenty states have embraced vague, capacious standards that could consider communication skills. In applying these standards, states …
Are Campus Sexual Assault Tribunals Fair?: The Need For Judicial Review And Additional Due Process Protections In Light Of New Case Law, Emily D. Safko
Are Campus Sexual Assault Tribunals Fair?: The Need For Judicial Review And Additional Due Process Protections In Light Of New Case Law, Emily D. Safko
Fordham Law Review
The pervasiveness of sexual assault on college and university campuses and the schools’ failures to take sexual assault seriously have resulted in recent reforms to college campus disciplinary proceedings. The federal government has largely prompted this wave of reform through Title IX, requiring schools to employ particular policies and procedures for investigating and adjudicating sexual assault as a condition of receiving federal funds. Although the federal government’s mandates may be properly motivated, these reforms are criticized because they encourage schools to enact procedures that are heavily stacked against those accused of sexual assault. Consequently, students alleging that they have been …
The Brooding Omnipresence Of Regulatory Takings: Urban Origins And Effects, Michael Allan Wolf
The Brooding Omnipresence Of Regulatory Takings: Urban Origins And Effects, Michael Allan Wolf
Fordham Urban Law Journal
No abstract provided.
The Commercial Sexual Exploiutation Of Minors, The First Amendment, And Freedom: Why Backpage.Com Should Be Prevented From Selling America's Children For Sex, Anna Makatche
Fordham Urban Law Journal
No abstract provided.
A Fair Trial: When The Constitution Requires Attorneys To Investigate Their Clients' Brains, Ellen G. Koenig
A Fair Trial: When The Constitution Requires Attorneys To Investigate Their Clients' Brains, Ellen G. Koenig
Fordham Urban Law Journal
The U.S. Constitution guarantees every criminal defendant the right to a fair trial. This fundamental right includes the right to a defense counsel who provides effective assistance. To be effective, attorneys must sometimes develop specific types of evidence in crafting the best defense. In recent years, the U.S. Supreme Court has found that defense attorneys did not provide effective assistance when they failed to consider neuroscience. But when must defense attorneys develop neuroscience in order to provide effective assistance? This question is difficult because the standard for determining effective assistance is still evolving. There are two leading approaches. First, in …
A Right Not To Marry, Kaiponanea T. Matsumura
A Right Not To Marry, Kaiponanea T. Matsumura
Fordham Law Review
In Obergefell v. Hodges, the United States Supreme Court recognized a constitutional right for same-sex couples to marry. Although the decision is an important milestone in the struggle for equality, it also threatens to destabilize the relationships of those who previously entered into civil unions or domestic partnerships and may, for a variety of reasons, prefer not to trade their existing status for marriage. That is because states have routinely responded to the legalization of same-sex marriage by eliminating their nonmarital statuses. Some states have terminated such statuses and have required couples to opt into marriage to continue receiving …
Using Johnson V. United States To Reframe Retroactivity For Second Or Successive Collateral Challenges, Thomas H. Gabay
Using Johnson V. United States To Reframe Retroactivity For Second Or Successive Collateral Challenges, Thomas H. Gabay
Fordham Law Review
The Armed Career Criminal Act (ACCA) provides a fifteen-year mandatory minimum sentence in federal prison for persons with at least three prior “violent felony” convictions who are subsequently convicted of being in possession of a firearm. In Johnson v. United States, the U.S. Supreme Court struck down one portion of this statute on the ground that it was unconstitutionally vague. In addition to an enumerated list of “violent felonies” that can result in a conviction, this portion included a catchall category that defined a violent felony as a crime that “otherwise involves conduct that presents a serious potential risk …
The New Tate Letter: Foreign Official Immunity And The Case For A Statutory Fix, Luke Ryan
The New Tate Letter: Foreign Official Immunity And The Case For A Statutory Fix, Luke Ryan
Fordham Law Review
Plaintiffs sometimes bring civil lawsuits in U.S. federal courts against officials or ex-officials of foreign governments accused of committing atrocities abroad. In these types of cases, the foreign individuals will almost certainly invoke the affirmative defense of foreign official immunity. In the 2010 decision, Samantar v. Yousuf, the Supreme Court unanimously held that the Foreign Sovereign Immunities Act (FSIA)—a 1976 statute governing the immunity of foreign states—did not control judicial determination of a foreign individual’s request for immunity. Instead, the Court said that foreign officials may be entitled to immunity as a matter of federal common law. Because of …
Democratic Dissolution: Radical Experimentation In State Takeovers Of Local Governments, Michelle Wilde-Anderson
Democratic Dissolution: Radical Experimentation In State Takeovers Of Local Governments, Michelle Wilde-Anderson
Fordham Urban Law Journal
While state interventions to stabilize the finances of struggling municipalities date back to the Great Depression, the current fiscal crisis has brought a startling escalation in the powers granted to state intervention authorities. Aptly observed by Abby Goodnough in The New York Times, cities and states have tried “myriad ways of righting their fiscal ships as the recession plods on,” but until very recently, “locking the mayor out of City Hall [was] generally not one of them.” In 2010 and 2011, Michigan and Rhode Island, which have been watched closely by other states, dramatically reformed their laws governing state receiverships …
Padilla V. Kentucky: Sound And Fury, Or Transformative Impact, Steven Zeidman
Padilla V. Kentucky: Sound And Fury, Or Transformative Impact, Steven Zeidman
Fordham Urban Law Journal
No abstract provided.
Realizing Padilla’S Promise: Ensuring Noncitizen Defendants Are Advised Of The Immigration Consequences Of A Criminal Conviction, Yolanda Vàzquez
Realizing Padilla’S Promise: Ensuring Noncitizen Defendants Are Advised Of The Immigration Consequences Of A Criminal Conviction, Yolanda Vàzquez
Fordham Urban Law Journal
No abstract provided.
The Effect Of Rluipa’S Land Use Provisions On Local Governments, Alan C. Weinstein
The Effect Of Rluipa’S Land Use Provisions On Local Governments, Alan C. Weinstein
Fordham Urban Law Journal
No abstract provided.
Occupy The Parks: Restoring The Right To Overnight Protest In Public Parks, Udi Ofer
Occupy The Parks: Restoring The Right To Overnight Protest In Public Parks, Udi Ofer
Fordham Urban Law Journal
No abstract provided.
Rluipa: Necessary, Modest, And Under-Enforced, Douglas Laycock, Luke W. Goodrich
Rluipa: Necessary, Modest, And Under-Enforced, Douglas Laycock, Luke W. Goodrich
Fordham Urban Law Journal
No abstract provided.
Rluipa Is A Bridge Too Far: Inconvenience Is Not Discrimination, Marci A. Hamilton
Rluipa Is A Bridge Too Far: Inconvenience Is Not Discrimination, Marci A. Hamilton
Fordham Urban Law Journal
No abstract provided.
The Firing Squad As "A Known And Available Alternative Method Of Execution" Post-Glossip, Deborah W. Denno
The Firing Squad As "A Known And Available Alternative Method Of Execution" Post-Glossip, Deborah W. Denno
Faculty Scholarship
This Article does not address the medical debate surrounding the role of midazolam in executions; the problems associated with using the drug have been persuasively argued elsewhere. Nor does it question the soundness of the Glossip Court’s “alternative method of execution” requirement. Rather, this Article’s proposed reform is a constitutionally acceptable alternative that meets the Glossip Court’s standard, rendering moot—at least for the purposes of the following discussion—very real concerns regarding the validity of that dictate. Part I of this Article pinpoints several areas where the Glossip Court goes wrong in glaringly inaccurate or misleading ways, given the vast history …
Bureaucratic Administration: Experimentation And Immigration Law, Joseph Landau
Bureaucratic Administration: Experimentation And Immigration Law, Joseph Landau
Faculty Scholarship
In debates about executive branch authority and policy innovation, scholars have focused on two overarching relationships—horizontal tension between the president and Congress and the vertical interplay of federal and state authority. However, these debates have overlooked the role of frontline bureaucratic officials in advancing the laws they administer. This Article looks to immigration law—in which lower-level federal officers exercise discretion delegated down throughout federal agencies—to identify how bottom-up agency influences can inform categorical, across-the-board executive branch policy. In this Article, I argue that decisions by frontline officers can and should be better harnessed to pair local laboratories of executive experimentation …
Inherent National Sovereignty Constitutionalism: An Original Understanding Of The U.S. Constitution, Robert J. Kaczorowski
Inherent National Sovereignty Constitutionalism: An Original Understanding Of The U.S. Constitution, Robert J. Kaczorowski
Faculty Scholarship
No abstract provided.
Reasonable Doubt And Moral Elements, Youngjae Lee
Reasonable Doubt And Moral Elements, Youngjae Lee
Faculty Scholarship
The law is axiomatic. In order to convict a person of a crime, every element of the crime with which he is charged must be proven beyond a reasonable doubt. This Article argues that this fundamental proposition of American criminal law is wrong. Two types of elements are typically found in crime definitions: factual elements and moral elements. Proving factual elements involves answering questions about historical facts—that is, questions about what happened. By contrast, proving moral elements—such as “reckless,” “unjustifiable,” “without consent,” or “cruel”—involves answering questions not only about what happened but also about the evaluative significance of what happened. …
The Concept Of The Speech Platform: Walker V. Texas Division, Abner S. Greene
The Concept Of The Speech Platform: Walker V. Texas Division, Abner S. Greene
Faculty Scholarship
In Walker, the Court deemed Texas’ specialty license plate program government speech, and thus applied no First Amendment review to the state’s refusal to allow a Confederate battle flag specialty plate, even though the reason for the refusal was that the plate was offensive. The dissent considered this unconstitutional viewpoint discrimination in a limited public forum. This article argues that the Walker result was correct, but for the wrong reason. Government should have the power to forbid hateful or vulgar speech from limited public forums such as specialty or vanity license plates, transit ads, and after-school extracurricular activities, even though …