Law Commons^™

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 …

Citizen Soldiers And The Foundation Fusion Of Masculinity, Citizenship, And Military Service, Jamie Abrams, Nickole Durbin

Articles in Law Reviews & Other Academic Journals

Sarah Livingston Jay famously toasted revelers in 1783: "May all our citizens be soldiers, and all our soldiers citizens." This toast conveyed "a foundational fusion" within our republican government tradition-coupling military service, citizenship, and masculinities.' The Akron Law School's conference on the 100th anniversary of the passage of the Nineteenth Amendment offered the chance to fight the eulogization of the Nineteenth Amendment and explore its modern relevance. This paper concludes that the Nineteenth Amendment cannot be understood without connecting it to broader conceptions of citizenship, masculinities, and military service, thus revealing its ongoing relevance to military inclusion and integration.

In …

Is The Constitution’S Convention For Proposing Amendments A “Mystery”? Overlooked Evidence In The Narrative Of Uncertainty, Robert G. Natelson

Marquette Law Review

Since the 1960s, leading academics and other commentators have claimed that the composition and protocols of the Constitution’s “Convention for proposing Amendments” are unknowable, subject to congressional control, or both. Today those claims are on a collision course with growing public sentiment for an amendments convention to address federal dysfunction.

The Constitutionality Of The Self-Pardon And Its Compatibility With Lockean Prerogative, Michael Kelley

NYLS Law Review

No abstract provided.

Symposium: The Puzzling And Troubling Grant In Kisor, Gillian E. Metzger

Faculty Scholarship

From one perspective, the Supreme Court’s decision to grant review in Kisor v. Wilkie is not surprising. Dating back at least to Justice Antonin Scalia’s 2011 concurrence in Talk America v. Michigan Bell Telephone Co., through Decker v. Northwest Environmental Defense Center in 2013 and Perez v. Mortgage Bankers Association in 2015, there’s been growing interest on the Supreme Court’s conservative wing in overturning Auer deference, or the doctrine that an agency’s interpretation of its own regulation is “controlling unless plainly erroneous or inconsistent with the regulation.” The campaign to overturn Auer v. Robbins then stalled, with the court denying …

War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman

Faculty Scholarship

This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer less …

Rucho Is Right – But For The Wrong Reasons, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In Rucho v. Common Cause, the Supreme Court ended its long struggle to formulate constitutional standards to regulate political gerrymandering by declaring that it was not up to the job. The Court held that it could come up with no manageable standards governing the controversy and that it therefore posed a nonjusticiable political question.

In this brief comment, I attempt defend this outcome. The task is not easy, and I hope that the reader will at least give me some points for degree of difficulty. There is no denying that partisan gerrymandering is a very serious evil and there …

Invisible Article Iii Delinquency: History, Mystery, And Concerns About "Federal Juvenile Courts", Mae C. Quinn, Levi T. Bradford

Journal Articles

This essay is the second in a two-part series focused on our nation’s invisible juvenile justice system—one that operates under the legal radar as part of the U.S. Constitution’s Article III federal district court system. The first publication, Article III Adultification of Kids: History, Mystery, and Troubling Implications of Federal Youth Transfers, examined the little-known practice of prosecuting children as adults in federal courts. This paper will look at the related phenomenon of juvenile delinquency matters that are filed and pursued in our nation’s federal court system. To date, most scholarship evaluating youth prosecution has focused on our country’s juvenile …

New York City Property Taxes And Appeals: A Systemic Subversion Of Constitutional Rights, Phoenix Marino

NYLS Law Review

No abstract provided.

Diploma Privilege And The Constitution, Claudia Angelos, Sara Berman, Mary Lu Bilek, Carol L. Chomsky, Andrea Anne Curcio, Marsha Griggs, Joan W. Howarth, Eileen R. Kaufman, Deborah Jones Merritt, Patricia Salkin, Judith W. Wegner

All Faculty Scholarship

The COVID-19 pandemic and resulting shutdowns are affecting every aspect of society. The legal profession and the justice system have been profoundly disrupted at precisely the time when there is an unprecedented need for legal services to deal with a host of legal issues generated by the pandemic, including disaster relief, health law, insurance, labor law, criminal justice, domestic violence, and civil rights. The need for lawyers to address these issues is great but the prospect of licensing new lawyers is challenging due to the serious health consequences of administering the bar examination during the pandemic.

State Supreme Courts are …

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 …

Constitutional Scholars As Constitutional Actors, Liora Lazarus

All Faculty Publications

Few constitutional scholars would dispute that Carl Schmitt played a legitimating role in the downfall of the Weimar Republic, or that Albert Venn Dicey has defined the UK and other commonwealth constitutions. Why then is there no general conception of constitutional scholars as constitutional actors? It is now well established that ‘to understand how our Constitution and laws are practised, it is necessary to study and understand many more institutions in the system than simply the Judiciary’ While the focus has broadened to include a range of constitutional office holders and institutions, little has been said about the role and …

Eighty Years Of Federalism Forbearance: Rationing, Resignation, And The Rule Of Law, Gil Seinfeld

Reviews

Andrew Coan’s book, Rationing the Constitution, offers a novel account of the forces that drive Supreme Court decisions across a wide array of highly controversial, vitally important areas of law. The project is ambitious. It endeavors to improve our understanding of forces that constrain the form and, ultimately, the substance of our constitutional law along each of its major axes: federalism, the separation of powers, and individual rights. I think it succeeds. The book’s central claim—that familiar (but underexplored) institutional constraints and background norms sharply limit the range of choices available to the Court when it is called upon to …

The Ratchet Wreck: Equality’S Leveling Down Problem, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Constitutional equality law has a two-way ratchet problem. When someone demonstrates that a government policy treats her unequally, the injury can be remedied by improving things for the claimant, but it can also be remedied by leaving the claimant’s status unchanged while making things worse for the people advantaged by the policy. If a court chooses the latter option, it diminishes the welfare of some people while arguably not improving welfare of anyone else. Why is that a good idea?

Courts have often attempted to avoid hard questions like these by leveling up – that is by allowing advantaged persons …