Digital Commons Network^™

The Independent State Legislature Doctrine, Federal Elections, And State Constitutions, Michael T. Morley

Georgia Law Review

The U.S. Constitution does not confer authority to regulate
federal elections on states as entities. Rather, it grants that
authority specifically to the “Legislature” of each state. The
“independent state legislature doctrine” teaches that a state
constitution is legally incapable of imposing substantive
restrictions on the authority over federal elections that the U.S.
Constitution confers directly upon a state’s legislature. Over the
past 130 years, the U.S. Supreme Court has repeatedly adopted
conflicting positions on this doctrine without recognizing its
deep historical roots or normative justifications.
The independent state legislature doctrine reflects the
prevailing understanding of states, Congress, and other …

Confronting Memory Loss, Paul F. Rothstein, Ronald J. Coleman

Georgia Law Review

The Confrontation Clause of the Sixth Amendment grants
“the accused” in “all criminal prosecutions” a right “to be
confronted with the witnesses against him.” A particular
problem occurs when there is a gap in time between the
testimony that is offered and the cross-examination of it, as
where—pursuant to a hearsay exception or exemption—
evidence of a current witness’s prior statement is offered and,
for some intervening reason, her current memory is impaired.
Does this fatally affect the opportunity to “confront” the
witness? The U.S. Supreme Court has, to date, left unclear the
extent to which a memory-impaired witness can …

Whistleblowing In The Compliance Era, Jeffrey R. Boles, Leora Eisenstadt, Jennifer M. Pacella

Georgia Law Review

International events over the last year have propelled the
importance of whistleblowers to the forefront. It is increasingly
evident that whistleblowers provide immense value to society.
Yet, for years, whistleblowers have been victims of retaliation,
commonly experiencing threats, discrimination, and
employment termination due to their reporting. Against the
backdrop of a society heavily defined by compliance-focused
initiatives—where organizations and industries construct
robust compliance programs, internal policies, and codes of
conduct—this Article highlights a significant gap in legal
protections for would-be whistleblowers. While compliance
initiatives demonstrate that active self-regulation is
increasingly a staple of organizational governance, this Article
pinpoints the problems …

Coequal Federalism And Federal-State Agencies, Dave Owen, Hannah J. Wiseman

Georgia Law Review

Dividing authority between the federal government and the
states is central to the theory and practice of federalism.
Division is the defining feature of dual federalism, which
dominates the U.S. Supreme Court’s federalism
jurisprudence. Recent academic theories of federalism
emphasize overlap and interaction but still assume that
federal and state actors will work within separate institutions.
Each approach can be problematic, yet assumptions of
separation remain the bedrock of federalism. This Article
discusses a different form of federalism: coequal federalism.
Under coequal federalism, federal- and state-appointed
officials collaborate within a single agency that makes
decisions binding on the federal government …

The Georgia Condominium Act’S Authorization Of Private Takings: Revisiting Kelo And “Bitter With The Sweet”, Tyler Gaines

Georgia Law Review

Homeownership provides owners with certain property
rights and a sense of security. One of the most important
property rights is the Takings Clause of the U.S. Constitution,
which prohibits the government from taking private property
without just compensation. The Clause has been incorporated
against the states and is interpreted as prohibiting any taking
that does not serve a public use. Despite these constitutional
protections, numerous condominium owners face the threat of
private investors taking their units for no public use, without
just compensation, and without the owners’ consent.
Many state condominium laws allow private investors who
obtain a specified percentage …

Puppies, Puppies, Puppies: Why Georgia Should “Adopt” A Progressive Puppy Lemon Law And Engage In Much-Needed Statutory Reform, Jonathan T. Tortorici

Georgia Law Review

The Georgia Animal Protection Act—a set of animal
protection laws that has remained unchanged for nearly two
decades—was passed to promote animal welfare across the
state. Although the Act was progressive at its inception, its
failure to curb the atrocious conditions created by puppy mills
has become increasingly apparent, resulting in serious
consequences for both consumers and dogs. Georgia must
amend its animal protection laws to shift the costs of puppy
mills to where they belong: on pet sellers. Among other
innovative solutions to this problem, many states have enacted
“puppy lemon laws” that generally provide pet purchasers with
the …

Why The Vppa And Coppa Are Outdated: How Netflix, Youtube, And Disney+ Can Monitor Your Family At No Real Cost, Anna O’Donnell

Georgia Law Review

Video-streaming services like Netflix, YouTube, and Disney+
dominate the current media landscape. This Note explains why
current laws likely cannot effectively prevent these streaming
services from collecting and sharing users’ private information.
The Video Privacy Protection Act (the VPPA) contains language
that has baffled courts when applying its text to streaming
services, resulting in multiple circuit splits. The Children’s
Online Privacy Protection Act (COPPA) has a clearer
application to streaming services, yet its enforcement has
resulted in small settlements with companies that have been
charged with collecting children’s private information. Both the
VPPA and COPPA need to be updated to …

Cultural Institutions' Digital Responses To Covid-19 Temporary Closures, Brittany N. Ryder

Honors Undergraduate Theses

The purpose of the study was to explore what types of digital content cultural institutions implemented during COVID-19 temporary closures and their effects on social media engagement. Existing research identified the role of digital content and social media in cultural institutions, but only in times of normal operations. The study adds to the existing literature by exploring types of digital content implemented, impacts on social media engagement, measures of social media engagement, and future implications in regard to COVID-19 temporary closures.

The study recruited 16 cultural institutions from across the United States to take part in in-depth semi-structured phone interviews …

Deal Insurance: Representation & Warranty Insurance In Mergers & Acquisitions, Sean J. Griffith

Faculty Scholarship

Efficient contracting depends upon imposing risk on the party with superior access to information. Yet the parties in mergers and acquisitions transactions now commonly use Representation and Warranty Insurance (“RWI”) to shift this risk to a third-party insurer. Because liability and trust go together, RWI would seem to give rise to a credible commitment problem between the transacting parties, and it raises adverse selection and moral hazard problems for the insurer.

This paper examines the emergence of RWI, focusing on three interrelated questions. First, how does RWI affect transactions?Second, why do transacting parties use RWI? And third, why do insurers …

The Belt-And-Suspenders Canon, Ethan J. Leib, James J. Brudney

Faculty Scholarship

This Essay christens a new canon into the doctrines of statutory interpretation, one that can counter the too-powerful canon that has courts imposing norms against redundancy in their readings of statutes. Judges engaging in statutory interpretation must do a better job of recognizing how and why legislatures choose not to draft with perfect parsimony. Our Essay highlights the multifarious ways legislatures in federal and state governments self-consciously and thoughtfully – rather than regrettably and lazily – think about employing “belt-and-suspenders” efforts in their drafting practices. We then analyze in depth courts’ disparate efforts to integrate a belt-and-suspenders canon into their …

Lying And Cheating, Or Self-Help And Civil-Disobedience?, Aditi Bagchi

Faculty Scholarship

May poor sellers lie to rich buyers? This article argues that, under limited circumstances, sellers may indeed have a license to lie about their goods. Where sellers are losers under unjust background institutions and they reasonably believe that buyers have more than they would under just institutions, lies that result in de minimum transfers can be regarded as a kind of self-help. More generally, what we owe each other in our interpersonal interactions depends on the institutional backdrop. Consumer contract law, including its enforcement regimes, should recognize the social and political contingency of sellers’ obligations to buyers. In other contexts, …

Interpreting Contracts In A Regulatory State, Aditi Bagchi

Faculty Scholarship

Some scholars would limit courts to the text of written agreements when interpreting contracts on the theory that parties meant what they said, and said what they meant. Other scholars would have courts take into account the factual context surrounding contract formation. Both sides of this debate assume that contract interpretation is largely limited to reconstructing contracting parties’ intentions.

This assumption is mistaken. Since the overturning of Lochner v New York, contracting parties no longer have exclusive authority over contracts. State authority to regulate contract came at the expense of unbridled private authority. A more limited conception of contracting …

What's The Difference Between A Conclusion And A Fact?, Howard M. Erichson

Faculty Scholarship

In Ashcroft v. Iqbal, building on Bell Atlantic Corp. v. Twombly, the Supreme Court instructed district courts to treat a complaint’s conclusions differently from allegations of fact. Facts, but not conclusions, are assumed true for purposes of a motion to dismiss. The Court did little to help judges or lawyers understand this elusive distinction, and, indeed, obscured the distinction with its language. The Court said it was distinguishing “legal conclusions” from factual allegations. The application in Twombly and Iqbal, however, shows that the relevant distinction is not between law and fact, but rather between different types of factual assertions. This …

In Defense Of International Comity, Thomas H. Lee, Samuel Estreicher

Faculty Scholarship

A chorus of critics, led by the late Justice Scalia, have condemned the practice of federal courts’ refraining from hearing cases over which they have subject-matter jurisdiction on the basis of international comity—respect for the governmental interests of other nations. They assail the practice as unprincipled abandonment of judicial duty and unnecessary given statutes and settled judicial doctrines that amply protect foreign governmental interests and guide the lower courts. But existing statutes and doctrines do not give adequate answers to the myriad cases in which such interests are implicated given the scope of present-day globalization and features of the U.S. …

May Class Counsel Also Represent Lead Plaintiffs?, Bruce A. Green, Andrew Kent

Faculty Scholarship

For decades, courts and commentators have been aware that the potential for conflicting interests among the class representatives, class counsel, and absent class members is inherent in the class action device. Notwithstanding this realization and a substantial amount of scholarly and judicial commentary on class conflicts, one kind of conflict has not received due attention: the conflict that inevitably arises when class counsel also represents class members as individuals. We demonstrate that this conflict— so common to be almost invisible—arises from the very beginning of a putative class representation, and may create a fraught situation for a lawyer concurrently representing …

Afrodescendants, Law, And Race In Latin America, Tanya K. Hernandez

Faculty Scholarship

Law and Society research in and about Latin America has been particularly beneficial in elucidating the gap between the ideals of racial equality laws in the region and the actual subordinated status of its racialized subjects. Some of the recurrent themes in the race-related literature have been: the limits of the Latin American emphasis on criminal law to redress discriminatory actions; the limits of multicultural constitutional reform for full political participation; the insufficiency of land reform and recognition of ethnic communal property titles; and the challenges to implementing race conscious public policies such as affirmative action. Especially illuminating have been …

What Should Presidential Candidates Tell Us About Themselves? Proposals For Improving Transparency In Presidential Campaigns, Megha Dharia, Rikki Lavine, Ryan Partelow, James Auchincloss, Krysia Lenzo

Faculty Scholarship

Elections are at the foundation of our democracy, but voters sometimes cast their ballots without critical information about presidential candidates. This report calls for requirements that candidates release more personal financial information, including five years of tax returns, and undergo criminal and intelligence background checks. The report also advocates for a system allowing candidates to submit to voluntary medical exams with some results released to the public.

This report was researched and written during the 2018-2019 academic year by students in Fordham Law School’s Democracy and the Constitution Clinic, which is focused on developing non-partisan recommendations to strengthen the nation’s …

Toward An Independent Administration Of Justice: Proposals To Insulate The Department Of Justice From Improper Political Interference, Rebecca Cho, Louis Cholden-Brown, Marcello Figueroa

Faculty Scholarship

The rule of law is undermined when political and personal interests motivate criminal prosecutions. This report advances proposals for ensuring that the federal criminal justice system is administered uniformly based on the facts and the law. It recommends a law preventing the president from interfering in specific prosecutions, another law establishing responsibilities for prosecutors who receive improper orders, and new conflict of interest regulations for Department of Justice officials.

This report was researched and written during the 2018-2019 academic year by students in Fordham Law School’s Democracy and the Constitution Clinic, which is focused on developing non-partisan recommendations to strengthen …

Presidents Must Be Elected Popularly: Examining Proposals And Identifying The Natural Endpoint Of Electoral College Reform, Gianni Mascioli, Caroline Kane, Meira Nagel, Michael Mcgarry, Ezra Medina, Jenny Brejt, Siobhan D'Angelo

Faculty Scholarship

The Electoral College effectively disenfranchises voters who live outside the few states that decide presidential elections. This report endorses a change in the way electoral votes are allocated to ensure that Americans’ votes receive the same weight. States should sign on to the National Popular Vote Interstate Compact, an agreement among states to allocate their electoral votes to the winner of the national popular vote. Ranked choice voting should also be employed to ensure that candidates receive majority support.

This report was researched and written during the 2018-2019 academic year by students in Fordham Law School’s Democracy and the Constitution …

Enforcing The Intent Of The Constitution’S Foreign And Domestic Emoluments Clauses, James Auchincloss, Megha Dharia, Krysia Lenzo

Faculty Scholarship

The Constitution’s Foreign and Domestic Emoluments Clauses are meant to prevent corruption and conflicts of interest. The Foreign Emoluments Clause prohibits some federal officials, including the president, from receiving payments or other benefits from foreign governments, while the Domestic Emoluments Clause bans the president from receiving payments other than the office’s salary from the federal and state governments. To enforce the clauses, this report recommends requiring the president to divest from business interests and increasing powers to investigate and punish violations of the clauses.

This report was researched and written during the 2018-2019 academic year by students in Fordham Law …

Evidentiary Irony And The Incomplete Rule Of Completeness: A Proposal To Amend Federal Rule Of Evidence 106, Daniel J. Capra, Liesa L. Richte

Faculty Scholarship

No abstract provided.

Against Prosecutors, I. Bennett Capers

Faculty Scholarship

No abstract provided.

When Prosecutors Politick: Progressive Law Enforcers Then And Now, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

A new and recognizable group of reform-minded prosecutors has assumed the mantle of progressive prosecution. The term is hard to define in part because its adherents embrace a diverse set of policies and priorities. In comparing the contemporary movement with Progressive Era prosecutors, this Article has two related goals. First, it seeks to better define progressive prosecution. Second, it uses a historical comparison to draw some lessons for the current movement. Both groups of prosecutors were elected on a wave of popular support. Unlike today’s mainstream prosecutors who tend to campaign and labor in relative obscurity, these two sets of …

The New Tax Legislative And Regulatory Process, Rebecca Kysar

Faculty Scholarship

This paper compares the enactment and implementation process for the 2017 Tax Cuts and Jobs Act (TCJA) to prior tax reform acts, as well as situates it within other developments in the legislative process more generally. It details how the 2017 enactment process solidifies reconciliation as the primary vehicle for the enactment of major tax measures, a trend nearly two decades in the making. The ambitious scope of the TCJA, as well as the rushed and partisan reconciliation process by which it was enacted, has led to ambiguities and instability in the legislation. These features have, in turn, posed an …

The “Welfare Queen” Goes To The Polls: Race-Based Fractures In Gender Politics And Opportunities For Intersectional Coalitions, Catherine Powell, Camille Gear Rich

Faculty Scholarship

No abstract provided.

Korematzu, Hirabayashi, And The Second Monster, Eric L. Muller

Faculty Publications

It is a trope at least as old as Beowulf: the unexpected second monster. Beowulf arrives in Heorot to take on Grendel, the demon who has been terrorizing the Ring-Danes’ mead-hall. He bests the monster in battle and Grendel slinks off, one-armed and bloodied, to die. The Ring-Danes honor Beowulf with a great banquet; he has slaughtered their nemesis and there is much to celebrate. Full of mead and a newfound sense of safety, the revelers drift off to sleep. That is when a terrible new monster bursts upon the scene—Grendel’s mother, the beast that brought Grendel into the …

A Poetics Of Violence: Representations Of Violence As Storytelling And World-Building Tools Of The Theater, Richard Gilbert

Dissertations

This dissertation explores how representations of violence do dramaturgical work in theatrical production. Playwrights write scenes of violence, and directors and designers stage them, with specific dramaturgical goals in mind. The project of this work is to develop a theoretical framework for understanding how productions use representations of violence. Ideally, that framework will be of use both to critics seeking to analyze productions with violence and to practitioners who want to more consciously shape their own use of violence.

Representations of violence create a sudden change in the audience's affective experience of the fictional world. I call that sudden change …

Perceived Threat And Left-Wing Authoritarianism: The Effect Of Framing On Persuasive Messages, James Donald Mcfarland

Graduate Student Theses, Dissertations, & Professional Papers

Past research reveals a strong connection between feeling threatened and Right-Wing Authoritarianism (RWA). This relationship is considered to be an integral part of authoritarianism and the nature of its presence in the left-leaning populace is still being fully explored. This study examined the relationship between perceived threat and Left-Wing Authoritarianism (LWA) through the framing of persuasive messages. Participants (n = 256) were recruited through Amazon’s Mechanical Turk (MTurk) and given a list of reward- or threat-framed statements concerning the possible ramifications of voting in future elections and then asked to rate the quality and persuasiveness of the respective statements. …

Digitizing The Corporeal: The Affect Of Mediatized Elements In Theatrical Performance, Kurtis Layne Hassinger

Graduate Student Theses, Dissertations, & Professional Papers

This paper explores the affect of digital media in live performance. The research is generated from work with integrated digital media in Carol Ann Duffy's 2015 adaptation of Everyman as well as Samuel Beckett's radio play Cascando. Through experimentation and implementation of motion tracking digital elements and actor-manipulated sonic and visual digital media achieved with MIDI and OSC mapping, I explore the embodiment of performances by actors when their various characters are represented on the physical as well as the digital stage simultaneously.

The research interrogates digital media in storytelling when actors can manipulate imagery and language in real time …

A Snapshot Of Care: Creating Models Of Care For Individuals Included In The Terry Collection, Felicia Robyn Sparozic

Graduate Student Theses, Dissertations, & Professional Papers

Utilizing the bioarchaeology of care model, this research formulates a model of care based on ethnohistorical and skeletal markers of pathologic conditions. The index of care is the method used to create models of care, and this requires social, cultural, economic, environmental, and mortuary contexts to determine the resources required to aid a person through injury or disability. This paper investigates the impact of known medical, occupational, and morgue records that accompanied each selected individual in the skeletal collection. This additional information, beyond what is gained from skeletal analysis, generates a complex model of care. A more complex model of …