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Articles 1 - 9 of 9
Full-Text Articles in Law
The Executive Branch Anticanon, Deborah Pearlstein
The Executive Branch Anticanon, Deborah Pearlstein
Faculty Articles
Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past …
The 14th Amendment And Me: How I Learned Not To Give Up On The 14th Amendment, Robert Chang
The 14th Amendment And Me: How I Learned Not To Give Up On The 14th Amendment, Robert Chang
Faculty Articles
No abstract provided.
A Knock On Knick's Revival Of Federal Takings Litigation, Stewart Sterk, Michael C. Pollack
A Knock On Knick's Revival Of Federal Takings Litigation, Stewart Sterk, Michael C. Pollack
Faculty Articles
In Knick v. Township of Scott, the United States Supreme Court held that a landowner who claimed to have suffered a taking at the hands of state or local officials could seek redress in federal court without the need to first seek compensation through state proceedings. This holding raises serious theoretical and practical concerns. On the theoretical side, Knick rests on the implicit assumption that states separate powers among branches of government in the same way the federal government does. It also relies on a second assumption: that relegating taking claims to state court makes them unique. Neither is …
The Myth Of Personal Liability: Who Pays When Bivens Claims Succeed, James E. Pfander, Alexander A. Reinert, Joanna C. Schwartz
The Myth Of Personal Liability: Who Pays When Bivens Claims Succeed, James E. Pfander, Alexander A. Reinert, Joanna C. Schwartz
Faculty Articles
In Bivens v. Six Unknown Named Agents, the Supreme Court held that federal law creates a right to sue federal officials for Fourth Amendment violations. For the last three decades, however, the Court has cited the threat of individual liability and the burden of government indemnification on agency budgets as twin bases for narrowing the right of victims to secure redress under Bivens. In its most recent decisions, Ziglar v. Abbasi and Hernandez v. Mesa, the Court said much to confirm that it now views personal liability less as a feature of the Bivens liability rule than …
The Wealth Tax: Apportionment, Federalism, And Constitutionality, Alex Zhang
The Wealth Tax: Apportionment, Federalism, And Constitutionality, Alex Zhang
Faculty Articles
Proposals of wealth taxation as a mechanism to combat economic inequality and raise revenue for welfare programs have dominated recent political debate. Despite extensive academic commentary, questions surrounding the constitutionality of a wealth tax remain unresolved. Previous scholarly approaches have drawn a dichotomy between two key cases. Supporters of the wealth tax emphasize Hylton's functional rule for identifying direct taxes, which must be apportioned under the Constitution, and reject Pollock, which invalidated the federal income tax on the grounds that it was a direct tax. Opponents of the wealth tax, in contrast, argue that Pollock, rather than …
Disappropriation, Matthew B. Lawrence
Disappropriation, Matthew B. Lawrence
Faculty Articles
In recent years, Congress has repeatedly failed to appropriate funds necessary to honor legal commitments (or entitlements) that are themselves enacted in permanent law. The Appropriations Clause has forced the government to defy legislative command and break such commitments, with destructive results for recipients and the rule of law. This Article is the first to address this poorly understood phenomenon, which it labels a form of “disappropriation.”
The Article theorizes recent high-profile disappropriations as one probabilistic consequence of Congress’s decision to create permanent legislative payment commitments that the government cannot honor without periodic, temporary appropriations. Such partially temporary programs include …
Speech Inequality After Janus V. Afscme, Charlotte Garden
Speech Inequality After Janus V. Afscme, Charlotte Garden
Faculty Articles
This Article explores the growing divide between the Roberts Court’s treatment of the free speech rights of wealthy individuals and corporations in campaign finance cases as compared to its treatment of the rights of public-sector labor unions and their members. First, it highlights some internal contradictions in the Janus Court’s analysis. Then, it discusses the growing—yet mostly ignored—divergence in the Court’s treatment of corporate and labor speakers with respect to the use of market influence to achieve political influence.The Article has two Parts. In Part I, I explain how the Court reached its decision in Janus before critiquing the decision’s …
Historical Foundations And Enduring Fundamentals Of American Religious Freedom, John Witte Jr.
Historical Foundations And Enduring Fundamentals Of American Religious Freedom, John Witte Jr.
Faculty Articles
For all of their failures and shortcomings, the eighteenth-century founders did indeed begin on the right “path” toward a free society, and today, Americans enjoy a good deal of religious, civil, and political freedom as a consequence. American principles of religious freedom have had a profound influence around the globe, and they now figure prominently in a number of national constitutions and international human rights instruments issued by political and religious bodies.
To be sure, as Adams predicted, there has always been a “glorious uncertainty of the law” of religious liberty and a noble diversity of understandings of its details. …
Critical Developments In Housing Policy, Kat Meyers, Cheryl Gonzales, Edward Josephson, Andrew Scherer, Michael C. Pollack
Critical Developments In Housing Policy, Kat Meyers, Cheryl Gonzales, Edward Josephson, Andrew Scherer, Michael C. Pollack
Faculty Articles
The 2019 Cardozo Journal of Equal Rights and Social Justice Symposium, Critical Developments in NY Housing Policy, brought leaders in NYC housing law to campus for a discussion on recent changes to tenants’ rights in the 2019 New York Housing Stability and Tenant Protection Act.
The event began with a keynote introduction by Kat Meyers, Staff Attorney in the Law Reform Unit of the Legal Aid Society, explaining the context of the new laws.
After a short break, Cardozo's Professor Pollack moderated a panel with participants Honorable Cheryl Gonzales, Supervising Judge in Kings County, Edward Josephson, Director of Litigation …