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Articles 1 - 30 of 40
Full-Text Articles in Law
Expert Knowledge, Democratic Accountability, And The Unitary Executive, Barry Sullivan
Expert Knowledge, Democratic Accountability, And The Unitary Executive, Barry Sullivan
Fordham Law Review
Proponents of the “unitary executive” theory hold that “all federal officers exercising executive power must be subject to the direct control of the President.” But how, as a constitutional matter, should such presidential control be defined, and how should it be effectuated? Unitarians are not united. Kevin H. Rhodes and Professor Steven G. Calabresi identify at least three distinct versions of the theory, which reflect a diversity of responses to those questions. The strongest or most aggressive version (which may also find the least support in the relevant jurisprudence) holds that the President may “supplant any discretionary executive action taken …
Police Officers, Policy, And Personnel Files: Prosecutorial Disclosure Obligations Above And Beyond Brady, Lauren Giles
Police Officers, Policy, And Personnel Files: Prosecutorial Disclosure Obligations Above And Beyond Brady, Lauren Giles
Fordham Law Review
Police officers play a significant role in the criminal trial process and are unlike any other witness who will take the stand. They are trained to testify, and jurors find them more credible than other witnesses, even though officers may have more incentive to lie than the ordinary witness. Despite the role of police officers in criminal proceedings, state statutes say virtually nothing about evidence used to impeach police officers, often contained in the officer’s personnel file. Worse still, the standard for disclosing information in an officer’s personnel file varies among and within states, resulting in inconsistent Brady disclosures. This …
Article Iii, The Bill Of Rights, And Administrative Adjudication, John M. Golden, Thomas H. Lee
Article Iii, The Bill Of Rights, And Administrative Adjudication, John M. Golden, Thomas H. Lee
Fordham Law Review
Modern reconsideration of legal constraints on the federal administrative state has commonly focused on agency rulemaking but seems increasingly concerned with agency adjudication. In this Essay, we provide an overview of constitutional issues implicated by administrative adjudication. We specifically explain how and why the so-called public-rights doctrine generally allows federal administrative adjudication outside private-rights actions substantially linked to traditional actions in law, equity, or admiralty. We also discuss how constitutional provisions outside Article III—including Bill of Rights protections of individuals as against the federal government—may nonetheless require a role for Article III courts even in so called public rights cases, …
The Collateral Fallout From The Quest For A Unitary Executive, Harold J. Krent
The Collateral Fallout From The Quest For A Unitary Executive, Harold J. Krent
Fordham Law Review
To bolster a strong “Unitary Executive,” the Roberts Court has held that Congress can neither shield a single head of an administrative agency nor an inferior officer in an independent agency from removal at will. With respect to appointments, the Roberts Court has held that adjudicative officers in many executive agencies must now be appointed either by the President or a superior officer under the President’s supervision. As a result, dissenting Justices and academics have accused the Roberts Court of expanding Article II beyond both the constitutional text—which seemingly grants Congress the discretion to structure administrative agencies as it deems …
The Diffuse Executive, Anya Bernstein, Cristina Rodriguez
The Diffuse Executive, Anya Bernstein, Cristina Rodriguez
Fordham Law Review
A unitary executive is an exacting ideal. It asks that all power in an administration be gathered in the person of the President, who should have full authority to determine the actions of officials and employees. Even if the President does not directly control every executive action (how could he?), when officials fail to implement presidential preferences, the unitary theory dictates that the President must have the power to remove them. The model posits a tightly organized hierarchy—every rung implementing the substantive decisions of the rung above, with orders flowing from the top: a command-and-control structure for government action. And, …
Due Process Protections For Charter School Students In Long-Term Exclusionary Discipline Proceedings, Leah E. Soloff
Due Process Protections For Charter School Students In Long-Term Exclusionary Discipline Proceedings, Leah E. Soloff
Fordham Law Review
Charter schools—public schools that are subject to minimal state regulation—often employ high levels of exclusionary discipline. Because charter schools in many states are exempt from state laws regulating school discipline, the U.S. Constitution provides charter school students their only source of protections during such disciplinary proceedings. However, the constitutional due process protections afforded to public school students in disciplinary proceedings remain a source of significant disagreement among courts. Although the U.S. Supreme Court has established that public school students must be afforded due process protections in exclusionary discipline proceedings, the Court has yet to determine what process is actually due …
Americans For Prosperity Foundation V. Bonta: Protecting Free Speech And Its Implications For Campaign Finance Disclosures, Sara Lindsay Neier
Americans For Prosperity Foundation V. Bonta: Protecting Free Speech And Its Implications For Campaign Finance Disclosures, Sara Lindsay Neier
Fordham Law Voting Rights and Democracy Forum
In 2021, the United States Supreme Court in Americans for Prosperity Foundation v. Bonta considered the anonymous speech rights of charitable donors against the California Attorney General’s interest in preventing wrongdoing by charitable organizations. The Court applied exacting scrutiny, a standard traditionally applied to campaign finance disclosure laws, determining that California’s requirement was facially invalid as a violation of associational rights. Bonta did not concern campaign finance, making this application of exacting scrutiny novel. This Article considers the open questions raised by Bonta regarding how exacting scrutiny should be applied and what it means for the future of campaign finance …
The Case For Federal Deference To State Court Redistricting Rulings: Lessons From Ohio’S Districting Disaster, John Sullivan Baker
The Case For Federal Deference To State Court Redistricting Rulings: Lessons From Ohio’S Districting Disaster, John Sullivan Baker
Fordham Law Voting Rights and Democracy Forum
In a watershed 2015 referendum, Ohioans decisively approved a state constitutional amendment that prohibited partisan gerrymandering of General Assembly districts and created the Ohio Redistricting Commission. Though the amendment mandated that the Commission draw proportional maps not primarily designed to favor or disfavor a political party, the Commission—composed of partisan elected officials—repeatedly enacted unconstitutional, heavily gerrymandered districting plans in blatant defiance of the Ohio Supreme Court.
After the Ohio Supreme Court struck down four of the Commission’s plans, leaving Ohio without state House and Senate maps just months before the 2022 general election, a group of voters sued in the …
Fertile Ground For Violent Extremists: A New Framework To Protect Military Servicemembers And Their Civil Liberties, Sarah Armstrong
Fertile Ground For Violent Extremists: A New Framework To Protect Military Servicemembers And Their Civil Liberties, Sarah Armstrong
Fordham Law Voting Rights and Democracy Forum
Veterans and active-duty members of the armed forces are popular and vulnerable targets for recruitment by alt-right and violent white extremist (“VWE”) groups. As the United States government attempts to deal with an influx of violent hate groups throughout the country, both in the civilian and military context, it must respect the civil liberties of those investigated. This is critical because prosecutors often sweep with a broad brush when investigating resistance movements, and protestors of color and from marginalized backgrounds are disproportionately targeted. Further, on a constitutional level, every American has fundamental rights that cannot be abridged. Therefore, when dealing …
Why We Can’T Have Nice Things: Equality, Proportionality, And Our Abridged Voting Rights Regime, Michael Latner
Why We Can’T Have Nice Things: Equality, Proportionality, And Our Abridged Voting Rights Regime, Michael Latner
Fordham Law Voting Rights and Democracy Forum
What constraints should the protection of political equality place on the design of electoral systems? With the exception of requiring approximate population equality across a jurisdiction’s districts, the U.S. voting rights regime accepts substantial disproportionality in voting strength. This Article addresses the current Supreme Court’s abandonment of the Second Reconstruction’s “one person, one vote” standard with regard to both racial and partisan gerrymandering, and assesses the role that Congress and political science have played in this transition. This Article argues that an unabridged voting rights regime must recognize a standard of proportional representation derived from the protection of individual political …
Discriminatory Intent Claims Under Section 2 Of The Voting Rights Act, Amandeep S. Grewal
Discriminatory Intent Claims Under Section 2 Of The Voting Rights Act, Amandeep S. Grewal
Fordham Law Voting Rights and Democracy Forum
This Article addresses a new controversy over whether Section 2 of the Voting Rights Act prohibits laws that exhibit “only” discriminatory intent, in the absence of discriminatory results. Lower courts have long embraced an intent approach for Section 2. And the Department of Justice has rested its entire ongoing case against Georgia’s controversial voting bill on an intent approach.
However, this Article shows that the Supreme Court’s decision in Brnovich v. DNC effectively rejects the intent approach to Section 2. In April 2023, the Eleventh Circuit reversed its prior cases and now rejects an intent theory. This puts in peril …
Taking Aim At New York's Concealed Carry Improvement Act, Leo Bernabei
Taking Aim At New York's Concealed Carry Improvement Act, Leo Bernabei
Fordham Law Review
In June 2022, the U.S. Supreme Court held in New York State Rifle & Pistol Ass’n v. Bruen that New York’s requirement, which mandated that applicants for concealed carry licenses show proper cause for carrying a handgun in public, violated the Second and Fourteenth Amendments. Responding to the likely increase in individuals licensed to carry handguns in the state, New York enacted the Concealed Carry Improvement Act (CCIA). This law bans all firearms from many places of public congregation, establishes a default rule that firearms are not allowed on private property without the owner or lessee’s permission, and sets additional …
Children Are Constitutionally Different, But Life Without Parole And De Facto Life Sentences Are Not: Extending Graham And Miller To De Facto Life Sentences, Ellen Brink
Fordham Law Review
Under the U.S. Supreme Court’s current juvenile sentencing jurisprudence, a juvenile may legally receive a prison sentence of hundreds of years without parole in instances in which a sentence of life without parole would be unconstitutional. This illogical state of affairs is the result of the Court’s silence on whether its holdings in Graham v. Florida and Miller v. Alabama, which together limit the availability of juvenile life without parole sentences, also apply to so-called de facto life sentences. De facto life sentences are lengthy term-of-years sentences that confine offenders to prison for the majority, if not the entirety, …
Confronting Carpenter: Rethinking The Third-Party Doctrine And Location Information, Charlie Brownstein
Confronting Carpenter: Rethinking The Third-Party Doctrine And Location Information, Charlie Brownstein
Fordham Law Review
The third-party doctrine enables law enforcement officers to obtain personal information shared with third parties without a warrant. In an era of highly accessible technology, individuals’ location information is consistently being transmitted to third parties. Due to the third-party doctrine, this shared information has been available to law enforcement, without the individual knowing or having an opportunity to challenge this availability. Law enforcement has utilized this doctrine to obtain comprehensive information regarding individuals’ whereabouts over long periods of time.
The U.S. Supreme Court recently limited the reach of the third-party doctrine regarding location data held by cellphone providers. However, this …
Misunderstanding Meriwether, Brian Soucek, Ryan Chen
Misunderstanding Meriwether, Brian Soucek, Ryan Chen
Fordham Law Review
Meriwether v. Hartop is widely seen as one of the most important academic freedom and transgender rights cases of recent years. Whether praising it as a victory for free speech or condemning it as a threat to educational equality, commentators across the political spectrum have agreed on one thing: the U.S. Court of Appeals for the Sixth Circuit did something big when it held that professors at public universities have a First Amendment right to misgender their students in class. But contrary to popular belief, Meriwether held no such thing. In fact, the Sixth Circuit could not have held what …
Anything But Prideful: Free Speech And Conversion Therapy Bans, State-Federal Action Plans, And Rooting Out Medical Fraud, Jordan Hutt
Fordham Law Review
At a time when conversion therapy might seem archaic to many people, this practice remains prevalent across the United States and finds legal support in the halls of federal courthouses. In 2020, the U.S. Court of Appeals for the Eleventh Circuit, in Otto v. City of Boca Raton, held that two ordinances banning conversion therapy in Boca Raton and Palm Beach violated First Amendment free speech rights. Specifically, Otto held that conversion therapy bans were content-based restrictions subject to strict scrutiny. Conversely, the U.S. Courts of Appeals for the Third and Ninth Circuits’ prior decisions upheld conversion therapy bans …
Voting Rights And The Electoral Process: Resolving Representation Issues Due To Felony Disenfranchisement And Prison Gerrymandering, Andrew Calabrese, Tim Gordon, Tianyi Lu
Voting Rights And The Electoral Process: Resolving Representation Issues Due To Felony Disenfranchisement And Prison Gerrymandering, Andrew Calabrese, Tim Gordon, Tianyi Lu
Fordham Law Voting Rights and Democracy Forum
No abstract provided.
The New Laboratories Of Democracy, Gerald S. Dickinson
The New Laboratories Of Democracy, Gerald S. Dickinson
Fordham Law Voting Rights and Democracy Forum
No abstract provided.
Manufacturing Uncertainty In Constitutional Law, Ari Ezra Waldman
Manufacturing Uncertainty In Constitutional Law, Ari Ezra Waldman
Fordham Law Review
Civil rights litigation is awash in misinformation. Litigants have argued that abortion causes cancer, that gender-affirming hormone therapy for adolescents is irreversible, and that in-person voter fraud is a massive problem. But none of that is true. The conventional scholarly account about law and misinformation, disinformation, and dubious claims of fact focuses on the power of legislatures and amici to engage in perfunctory fact-finding and to rely on “alternative facts” or outright falsehoods to justify laws that harm and restrict the rights of marginalized populations. At the same time, the literature suggests that judges and the law are inundated with …
Imperialist Immigration Reform, Cori Alonso-Yoder
Imperialist Immigration Reform, Cori Alonso-Yoder
Fordham Law Review
For decades, one of the most challenging domestic policy matters has been immigration reform. Dogged by controversial notions of what makes for a “desirable” immigrant and debates about enforcement and amnesty, elected officials have largely given up on achieving comprehensive, bipartisan immigration solutions. The lack of federal action has led to an outdated and impractical legal framework, with state and local lawmakers unable to step into the breach. Well over 100 years ago, the U.S. Supreme Court firmly stated that regulation of the U.S. immigration system is within the sole constitutional authority of the federal government.
Yet there is one …
License & (Gender) Registration, Please: A First Amendment Argument Against Compelled Driver's License Gender Markers, Lexi Meyer
Fordham Law Review
For as long as the United States has issued drivers’ licenses, licenses have indicated the holder’s gender in one form or another. Because drivers’ licenses are issued at the state level, states retain the authority to regulate the procedures for amending them. In some states, regulations include requirements that a transgender person undergo gender confirmation surgery before they can amend the gender marker on their driver’s license. Because many transgender people neither desire nor can afford gender confirmation surgery, these laws effectively preclude such people from obtaining gender-accurate identification. In doing so, these laws implicate multiple constitutional rights.
Lower courts …
Don't Pull The Trigger On New York's Concealed Carry Improvement Act: Addressing First And Second Amendment Concerns, Morgan Band
Don't Pull The Trigger On New York's Concealed Carry Improvement Act: Addressing First And Second Amendment Concerns, Morgan Band
Fordham Law Review
Despite the increasing prevalence of mass shootings in the United States, the U.S. Supreme Court in New York State Rifle & Pistol Ass’n, Inc. v. Bruen struck down a 100-year-old New York statute that had restricted access to concealed carry permits. The statute had required applicants to demonstrate a “proper cause” for needing a concealed carry permit. But even if an applicant made the necessary showing, licensing officials retained discretion under the statute to decline to issue a permit. In striking down the statute, the Court distinguished between “may-issue” jurisdictions, such as New York, which give licensing officials discretion in …
Looks Matter On Social Media: How Should Courts Determine Whether A Public Official Operates Their Social Media Account Under Color Of State Law?, John B. Tsimis
Fordham Law Review
The widespread use of social media has presented a novel legal landscape for the application of constitutionally protected rights—particularly the First Amendment’s protection of free speech. The First Amendment prohibits the government from excluding citizens from a public forum on the basis of their viewpoints. Public officials acting under color of state law similarly may not use the authority of their offices to deprive citizens of their First Amendment rights.
However, the application of this protection in the context of social media has been inconsistent across federal circuit courts. Although these courts agree that viewpoint discrimination by the government on …
Judicial Antifederalism, Anthony M. Ciolli
Judicial Antifederalism, Anthony M. Ciolli
Fordham Law Review
The United States has a colonies problem. The more than 3.5 million Americans who live in the U.S. territories of American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands lack some of the most fundamental rights and protections, such as the right to vote. This is due to a series of decisions decided more than a century ago, collectively known as the Insular Cases, in which the U.S. Supreme Court held that the “half-civilized,” “savage,” “ignorant and lawless” “alien races” that inhabited America’s overseas territories were not entitled to the same constitutional rights and …
Concepts Of Citizenship In The Controversy About Constitutional Citizenship For People Born In U.S. Territories, Janet M. Calvo
Concepts Of Citizenship In The Controversy About Constitutional Citizenship For People Born In U.S. Territories, Janet M. Calvo
Fordham Law Review
In 2019, the District of Utah in Fitisemanu v. United States rejected the Insular Cases and held that persons born in American Samoa acquired Fourteenth Amendment constitutional citizenship at birth. The Tenth Circuit reversed through an analysis that attempted to “repurpose” the Insular Cases. This Essay discusses the differing concepts of citizenship presented in Fitisemanu, which raise significant questions about the nature and import of American constitutional citizenship. The Supreme Court’s recent denial of certiorari in Fitisemanu unfortunately leaves these questions unresolved, further continuing the second-class status of individuals born in the territories and underscores the uncertainty of …
A Government Of Laws And Not Of Men: Why Justice Brandeis Was Right To Assume Congress Can Restrain The President's Removal Power, Danielle Rosenblum
A Government Of Laws And Not Of Men: Why Justice Brandeis Was Right To Assume Congress Can Restrain The President's Removal Power, Danielle Rosenblum
Fordham Law Voting Rights and Democracy Forum
Since the Founding, the extent of the president’s power to remove executive officials from office remains unsettled. While the Appointments Clause in Article II, Section 2 empowers Congress to participate in the hiring of executive officials, the United States Constitution’s text is silent on whether Congress can limit the president’s ability to fire such employees. The debate on the proper scope of the president’s removal power is significant because it serves as a proxy for a larger constitutional question: whether constraints on presidential power advance or sit in tension with democracy. This Article argues that Justice Brandeis was right to …
A Modern-Day 3/5 Compromise: The Case For Finding Prison Gerrymandering Unconstitutional Under The Thirteenth Amendment, Shana Iden
Fordham Law Voting Rights and Democracy Forum
Vestiges of slavery and systemic disenfranchisement of people of color persist in the United States. One of these remnants is the practice of prison gerrymandering, which occurs when government officials count incarcerated individuals as part of the population of the prison’s location rather than the individual’s home district. This Article argues that prison gerrymandering functions as a badge of slavery that should be prohibited under the Thirteenth Amendment.
First, this Article provides background on prison gerrymandering and charts its impact through history, particularly on Black communities. Moreover, this Article analyzes how litigation under the Fourteenth Amendment has not yielded meaningful …
A Constitutional Right To Early Voting, David Schultz
A Constitutional Right To Early Voting, David Schultz
Fordham Law Voting Rights and Democracy Forum
Voting is a cost-benefit decision. Individuals are more likely to vote if the benefits of doing so outweigh the disadvantages. With early voting laws eased due to the COVID-19 pandemic, the 2020 election demonstrated that turnout increases when elected officials reduce voting costs. Despite all the benefits of early voting, there is no constitutional right, and it remains a privilege that state legislatures can revoke at will.
Since the 2020 election, state legislatures have proposed—and enacted—hundreds of bills to change voting rules. But with the intense partisan disagreement over voting, coupled with political polarization reaching an apex, these acts restricting …
The Looming Threat Of The Independent State Legislature Theory And The Erosion Of The Voting Rights Act: It Is Time To Enshrine The Right To Vote, Javon Davis
Fordham Law Voting Rights and Democracy Forum
Over the last decade, the emergence of an imperial United States Supreme Court—currently armed with the largest conservative majority since the 1930s—has radically reshaped federal voting rights protections. During the litigation surrounding the 2020 election, however, an obscure threat reemerged. The fringe independent state legislature (“ISL”) theory is a potentially revolutionary constitutional theory that could lead to widespread voter disenfranchisement. Proponents of the theory, including Supreme Court Justices, posit, in part, that the United States Constitution vests state legislatures with plenary power to construct rules for federal elections—unbound by state constitutions and free from state judicial review.
Once a refuge …
Citizen Enforcement Laws Threaten Democracy, David A. Carrillo, Stephen M. Duvernay
Citizen Enforcement Laws Threaten Democracy, David A. Carrillo, Stephen M. Duvernay
Fordham Law Voting Rights and Democracy Forum
No abstract provided.