Digital Commons Network^™

Content-Neutral Restrictions Revisited, Abner S. Greene

Faculty Scholarship

Whether a law affecting free speech does so in a content-based or content-neutral way is usually the first step in analyzing the law’s constitutionality.  But the Supreme Court has not had an easy time sorting statutes as content based or content neutral, and it has similarly struggled in sorting and explaining the difference between content-neutral laws that incidentally affect expression (O’Brien laws) and content-neutral laws that regulate the time, place, or manner of expression (TPM laws).  Scholarship on content-neutral restrictions has nibbled around the edges of these difficulties but has yet to comprehensively analyze the doctrine.  This Article provides a …

Per Se Non-Takings, Nestor M. Davidson, Timothy M. Mulvaney

Faculty Scholarship

In the discourse on the Takings Clause, disputes over methodology have long formed a kind of proxy war, with per se rules ordinarily underwriting strong constitutional protection for property rights and ad hoc standards more often vindicating public interests. At a moment when the Supreme Court is increasingly embracing the rules end of this rules–standards spectrum, this Article offers a novel perspective to challenge the conventional link between categorical reasoning and classical liberal conceptions of constitutional property.

To do so, the Article excavates a vast body of law denying takings liability through rule-like reasoning, an approach the Article calls per …

The Shadow Defendants, Mariam A. Hinds

Faculty Scholarship

Although the overrepresentation of men, specifically Black men and men of color, in the criminal legal system is well documented, the people who support these men, especially women, have garnered less attention. Women who are proximate to system-involved men—mothers, grandmothers, sisters, daughters, girlfriends, and wives—are invisible actors in the criminal legal system who perform critical tasks and provide essential support. They appear in court to demonstrate a person’s family and community ties, use their assets as collateral for bail, deposit money in commissary accounts, maintain social ties during imprisonment through letters and visits, and bear the burden of filling the …

Commentary On Capture, Redesign, Release: Market Structure Or Charter Structure In Vice Markets?, Zephyr Teachout

Faculty Scholarship

This essay evaluates Taparia and Buchanan’s proposal to address the social costs of addiction-driven industries through a “capture, redesign, release” framework, under which government would exercise eminent domain to acquire tobacco firms and restructure them as purpose-driven corporations. The commentary argues that, while innovative, the proposal raises serious constitutional and corporate law concerns. First, the reliance on eminent domain is vulnerable under the Takings Clause, particularly given the Roberts Court’s likely skepticism toward expansive readings of Kelo v. City of New London. Second, the plan to prohibit corporate marketing and lobbying as part of a redesigned charter would almost …

Promise And Limits Of Total Governance: A Response To Professors Gramitto Ricci And Greenwood, Atinuke O. Adediran

Faculty Scholarship

In their article, Total Governance, Professors Gramitto Ricci and Greenwood theorize about how to increase the power and influence of ordinary individual shareholders who do not have a lot of wealth. The total governance framework has some promise for increasing the influence of ordinary people in corporate governance. It also raises questions about treating corporate actors as monoliths: managers, boards of directors, shareholders, and stakeholders. This brief response, however, takes the position of a skeptic who recognizes the theoretical potential of the total governance framework while highlighting the shortcomings of the concept for corporate governance.

Federal Open Data As An Artificial Intelligence Resource, Erik Stallman, Aniket Kesari

Faculty Scholarship

In the 2010s, the open government data movement—a confluence of government transparency and open source advocacy—succeeded in making most federal data disclosed by default and free of restriction on downstream use. However, keen-eyed observers noted a “new ambiguity” in open government data policies.

Moore Questions, Some Answers: Fixing The Personal Tax System Despite Constitutional Constraints, David Gamage, John R. Brooks, Edward J. Mccaffery

Faculty Scholarship

Moore v United States was expected to rule on the constitutional necessity of the tax-law realization requirement originating from Eisner v Macomber, a potential impediment to progressive tax reform efforts aimed at shutting down the planning techniques of Buy Borrow Die. The various opinions in Moore, however, provided no definitive answer to this core question, instead leaving many more questions. Amid the lingering uncertainty, we argue that various responses to the problem of wealthy Americans’ not needing to pay any taxes remain possible after Moore. An incremental, “mix-and-match” approach to progressive tax reform may best suit the …

Bailing Out Biometrics, Chinmayi Sharma, Elijah Gordon

Faculty Scholarship

In 2023, hackers breached 23andMe and extracted the biometric and genealogical data of nearly seven million people. By 2025, that data-originally offered up in the spirit of medical discovery and consumer empowerment-was being auctioned off in bankruptcy court as a corporate asset. The breach exposed more than technical lapses or governance failures. It revealed a structural gap in how the law understands, regulates, and protects biometric identity. Biometric data is intimate, immutable, and implicates human dignity and autonomy. And yet, the legal frameworks most often tasked with protecting it-tort, contract, and even modern privacy statutes-have consistently failed to impose meaningful …

Slaughter, Parsons, And The Original Meaning Of A Term Of Years, Jane Manners, Lev Menand

Faculty Scholarship

No abstract provided.

International Law, African Courts, And Protection Of The Rights Of Refugee Children, John Mukum Mbaku

Fordham International Law Journal

No abstract provided.

Defining Forced And Free Labor, 1930–1957, Christopher M. Roberts

Fordham International Law Journal

No abstract provided.

Collateral Damage And Individual Rights In Armed Conflict, Charles P. Trumbull Iv

Fordham International Law Journal

No abstract provided.

Reciprocation And Redistribution: The Emergence Of The Trade-Development Fault Line In The Contemporary Wto, Tana Johnson

Fordham International Law Journal

This Article argues that: 1) trade and development reflect different mindsets and policy implications; 2) both are deeply embedded in the legal past of the World Trade Organization (WTO); and 3) tensions between them jeopardize the WTO’s policymaking future. At the argument’s core is the contrast between “reciprocation” and “redistribution.” Trade is associated with reciprocation (bargaining and two-way concessions), while development is associated with redistribution (assistance and one- way concessions). The WTO’s predecessor—the General Agreement on Tariffs and Trade (GATT)—initially insisted on reciprocation but relaxed that insistence over time, eventually merging with redistribution-related elements of the defunct Havana Charter to …

Reframing Reparations: Sovereign Unjust Enrichment Claims As A Private Law Model For Reparatory Justice, Britta Redwood

Fordham International Law Journal

Over the past ten years, states in the Caribbean Community and Common Market (CARICOM) have called on European states to make reparations for transatlantic chattel slavery (TCS). CARICOM states have suggested that if former colonial powers were unwilling to adequately respond to their demands for reparations, they would pursue them through judicial means before international tribunals, such as the International Court of Justice (ICJ). If brought, these claims would face major jurisdictional challenges that would make it unlikely that they would be adjudicated on the merits. This Article proposes a novel approach to reparations claims. It demonstrates how these claims …

International Law Of Cyber Warfare: Analysing States And Ios' Legal Positions, Shiran Shahaf

Fordham International Law Journal

This Article examines the development of Customary International Law (CIL) and soft norms through the positions and interpretations of states and International Organizations (IOs) regarding the application of international law to cyber operations. The study presents a comprehensive dataset comprising the positions of thirty-four states and three prominent IOs: the North Atlantic Treaty Organization (NATO), the International Committee of the Red Cross (ICRC), and the African Union (AU). Through an analysis of this dataset, this Article argues that these positions and interpretations hold significant weight as opinio juris, reflecting the beliefs and intentions of states on the application of international …

The Re-Criminalization Of Sexual Minorities As A Testing Ground For International Human Rights Law In Africa, Matteo M. Winkler & Ilias Bantekas

Fordham International Law Journal

This Article scrutinizes the recently enacted statutes that re- criminalize sexual minorities in Africa from the standpoint of international human rights law (IHRL). These statutes are currently justified under cultural relativism, that is, the idea that African culture abhors homosexuality, which represents a malicious import from the Western world. We argue that the re-criminalization statutes violate IHRL in multiple stances and that in no way are these violations justifiable under cultural relativism. This does not mean that there is no virtue in cultural relativism, but a limit must be fixed to the dehumanization of minorities which is the intended purpose …

Banking On Empire: Citibank, Haiti, And The Fight For Corporate Accountability, Nell W. Fitzgerald

Fordham International Law Journal

For over a century, Citibank has exerted profound influence over Haiti’s financial system, embedding itself in the country’s economy through coercive debt structures and strategic alliances with the US military. This Note examines Citibank’s historical role in Haiti’s financial subjugation, from its facilitation of the 1915 US occupation to its monopolization of Haiti’s banking system and its abrupt departure in 2024. Through a legal analysis of potential avenues for redress—such as the Alien Tort Statute and unjust enrichment—the Note reveals how existing frameworks fail to hold corporations such as Citibank accountable for historical economic exploitation. While international law provides only …

That's One Small Sale For Man: On The Merits Of American Unilateralism In The Evolution Of International Space Law, Sam Grossman

Fordham International Law Journal

In 2020, the United States National Aeronautics and Space Administration (NASA) awarded four contracts to commercial companies to collect lunar resources as part of its Artemis program. This contract was the culmination of a controversial shift in global space policy, as it came shortly after an executive order from President Donald J. Trump. That executive order articulated America’s policy to encourage “public and private recovery and use of resources in outer space,” and to seek international support in doing so. Further, it reaffirmed the 2015 U.S. Commercial Space Launch Competitiveness Act (the “Space Act”), which entitled American individuals and corporations …

Economic Sanctions And The Law, Andrew Kent, Thomas H. Lee And Harlan Cohen

Fordham International Law Journal

No abstract provided.

Challenges To Economic Sanctions In The U.S. Courts, Christine Abely

Fordham International Law Journal

The start of the new Trump term has made more salient calls to amend the International Emergency Economic Powers Act (IEEPA)1 to place limitations on the use of economic sanctions by the executive branch. Though the first Trump administration and the Biden administration both used sanctions in large numbers, they did so in very different manners. This Essay explores the use of sanctions by President Biden and President Trump. It also details the grounds upon which sanctions may be subject to challenges in US courts, and the limits of the US judiciary to impose meaningful restraints on the executive’s use …

Honing The Economic Weapon: Application Of The Prosecutor's "Toolkit" In Sanctions Enforcement, Andrew Adams

Fordham International Law Journal

No abstract provided.

Our Humanity At Stake: The Human Costs Of Economic Sanctions For The Sanctioner, Alexandra Hofer

Fordham International Law Journal

No abstract provided.

How Ai Reinforces Caste: Creating And Amplifying Systematic Inequality, Catherine Powell

Faculty Scholarship

In arguing that artificial intelligence (“AI”) creates, reinscribes, and amplifies caste, this Article asserts that algorithmic discrimination is not just a bug, it is an essential feature of the system that powers the digital economy. Because this economy traffics in our information and is monetized through targeted advertising, it depends on knowing our race, gender, and other protected characteristics (i.e., our caste). Given that the digital economy is inherently an information economy, it is driven by population-wide demographics and predictions, which algorithms can process and commodify at scale. As such, digital surveillance can lead not only to individual harm, but …

Race, The Academy, And The Constitution Of The War On Drugs, I. Bennett Capers, Jeffrey Bellin

Faculty Scholarship

The war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only increased since the war was declared in 1971. David Pozen’s new book, The Constitution of the War on Drugs, reveals a constitutional failure as well. Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a “right” to use drugs with surprising, if fleeting, success. Pozen asks what might have been, exploring why the courts backtracked and effectively removed the Constitution as a meaningful obstacle to drug prohibitions. 

This Review …

Now?, I. Bennett Capers

Faculty Scholarship

This essay brings Afrofuturism, and its notion of the plasticity of time, to imagine how we will think of the past in the future and, more specifically, to consider what will "enrapture, haunt, and/or plague thinkers in the future." Although many answers come to mind, including this country's original sin-slavery-ultimately this essay turns to our current technologies, especially policing technologies. And this essay turns the question around to ask, "How should we in the present think about the future? And what can we do now to change it?"

Under Political Pressure: How Courts And Congress Can Help Prosecutors Do Justice, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

Some subordinate federal prosecutors faced a challenging professional dilemma in the early days of the second Trump Administration. It arose from the tension between their role as public officials and lawyers who owe fiduciary duties to the public and their role as Department of Justice (DOJ) employees who take direction from higher-ups. The DOJ leadership directed these subordinate prosecutors to use their considerable power in ways evidently designed to advance partisan political objectives. This was contrary to the clear understanding previously expressed by courts, the legal profession, and the DOJ itself that prosecutors have a duty to seek justice, which …

Super-Dicta, Courtney M. Cox

Faculty Scholarship

A weird thing happens when a conscientious, rational judge lacks certainty and has the humility to know it: she will often decide cases for reasons that differ from the reasons in her opinions. To illustrate, suppose she thinks it’s 50/50 whether Defendant’s copying infringed or was fair use. She could rationally flip a coin. But if she does, and she finds for Defendant, it will not be because of fair use. Rather, it will be because she thought it was 50/50 whether the copying was fair use—and the coin landed tails.

Coin-flip cases are rare, but uncertainty is not. There …

Subordinate Prosecutors’ Independence, Bruce A. Green, Jessica A. Roth

Faculty Scholarship

This essay is about subordinate prosecutors’ independence to do what they think constitutes “seeking justice” when they perceive that their boss, or their boss’s boss, wants them to do something that is unjust—not illegal, but unjust. Of course, if subordinate prosecutors want to do either what they are told to do or what they infer that a higher-up wants them to do, they can do so, as long as the conduct is legal. Subordinate prosecutors might choose to disregard their own professional judgment of what justice requires because they share their boss’s objectives, because they see conforming as a route …

Heat Camps: Juvenile Curfews, Extreme Heat & The Eighth Amendment, Norrinda Brown

Faculty Scholarship

For decades, in the summertime, America has confined certain of its youth in what are essentially open-air heat camps. In city after city, camp-form is established through the enactment of warm-weather juvenile curfews which keep the youth at home or in state-sponsored centers during summer nights and, increasingly, during days as well. Local governments justify these curfews with general notions of “public safety,” including to protect the youth they confine. But the laws are not benevolent. Reducing youth mobility by curfew results in exclusion, oversurveillance, and potentially lethal heat punishment of the youth, possibly in violation of the Eighth Amendment. …

100 Years Of The Federal Arbitration Act, Paul Bland, John H. Chun, Linda A. Klein, Pamela K. Bookman

Faculty Scholarship

No abstract provided.