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Constitutional Law

Brooklyn Law School

Journal

2021

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Articles 1 - 21 of 21

Full-Text Articles in Law

Introductory Remarks: The Roberts Court And The First Amendment: An Introduction, Geoffrey R. Stone Dec 2021

Introductory Remarks: The Roberts Court And The First Amendment: An Introduction, Geoffrey R. Stone

Brooklyn Law Review

On April 9, 2021, Geoffrey R. Stone delivered the following introductory remarks at The Roberts Court and Free Speech Symposium at Brooklyn Law School. An adaptation of Geoffrey R. Stone, Free Speech in the Twenty-First Century: Ten Lessons from the Twentieth Century Lead Article (2008), Dean Stone detailed the history of the pre-Roberts Court First Amendment jurisprudence and laid the foundation for the symposium’s scholarly discourse.

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The Roberts Court—Its First Amendment Free Expression Jurisprudence: 2005­–2021, Ronald K.L. Collins, David L. Hudson Jr. Dec 2021

The Roberts Court—Its First Amendment Free Expression Jurisprudence: 2005­–2021, Ronald K.L. Collins, David L. Hudson Jr.

Brooklyn Law Review

The decisional law of the First Amendment is an area of law formulated, for the most part, by the high court of the land. At the same time, the study of free speech is equally a study in political philosophy and law. Supreme Court justices have left their mark on the First Amendment free speech doctrine and have made names for themselves in the process. This study explores the impact of Chief Justice John Roberts and the Roberts Court on the free speech doctrine. By examining the case law in this area and the justices and lawyers who craft it, …

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The Anti-Free Speech Movement, Robert Corn-Revere Dec 2021

The Anti-Free Speech Movement, Robert Corn-Revere

Brooklyn Law Review

What does it mean for the Supreme Court, under Chief Justice John Roberts, to be “good” when it comes to the First Amendment? First Amendment lawyer Robert Corn-Revere tackles this question, by looking at the history of censorship in the United States. Through a historical lens, Mr. Corn-Revere examines the arguments for regulating “bad” speech in order to promote “good” speech, and analogizes this approach to the work of early American censors like Anthony Comstock. This article examines how the history of censorship has shaped First Amendment law, and ultimately through his analysis, Mr. Corn-Revere identifies several examples of what …

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Free Speech Still Matters, Joel M. Gora Dec 2021

Free Speech Still Matters, Joel M. Gora

Brooklyn Law Review

In its first ten years, the Roberts Court proved to be the most speech protective Court in a generation, if not in our history; however, in the intervening five years, the Court has faced intense pressures, ranging from heightened criticism of its First Amendment jurisprudence to seismic changes in the makeup of the Court to very real proposals for court “packing.” Despite these powerful forces, the Roberts Court has surprisingly stayed true to its commitment to—and guardianship of—the First Amendment. Nevertheless, in the face of modern political correctness and cancel culture, free speech has rarely been in a more precarious …

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The Law Of License Plates And Other Inevitabilities Of Free Speech Context Sensitivity, William D. Araiza Dec 2021

The Law Of License Plates And Other Inevitabilities Of Free Speech Context Sensitivity, William D. Araiza

Brooklyn Law Review

This article, written for a symposium on Ronald Collins’s and Professor David Hudson’s catalogue of the Roberts Court’s First Amendment free speech jurisprudence, reconsiders the longstanding tension between rigid free speech rules and more contextual standards. It examines that debate by considering a set of relatively recent free speech cases in which the Court ostensibly adopted rigid rules, but in doing so arguably cloaked its reliance on more contextual factors by manipulating those rules. In cases dealing with national security and judicial electoral speech, the Court manipulated the strict scrutiny the Court insists applies to nearly every content-based speech restriction …

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Transcript: The Roberts Court And Free Speech Symposium, Michael T. Cahill, Joel M. Gora, Geoffrey R. Stone, Ronald K.L. Collins, David L. Hudson Jr., Floyd Abrams, Ellis Cose, Robert Corn-Revere, Genevieve Lakier, William D. Araiza, Helen Norton, Nadine Strossen, Erwin Chemerinsky Dec 2021

Transcript: The Roberts Court And Free Speech Symposium, Michael T. Cahill, Joel M. Gora, Geoffrey R. Stone, Ronald K.L. Collins, David L. Hudson Jr., Floyd Abrams, Ellis Cose, Robert Corn-Revere, Genevieve Lakier, William D. Araiza, Helen Norton, Nadine Strossen, Erwin Chemerinsky

Brooklyn Law Review

On April 9, 2021, the Brooklyn Law Review gathered a panel of First Amendment scholars for a symposium on the Roberts Court's free speech jurisprudence. This transcript captures the panelists' diverse perspectives on the free speech themes highlighted by the Roberts Court's free speech jurisprudence.

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Broken Promesa: Why The United States Should Abandon Its Use Of The Territories Clause To Control The Local Affairs Of Puerto Rico, Julia R. Cummings Dec 2021

Broken Promesa: Why The United States Should Abandon Its Use Of The Territories Clause To Control The Local Affairs Of Puerto Rico, Julia R. Cummings

Brooklyn Law Review

Puerto Rico’s sovereignty status is an anomaly. Since the United States acquired the island in 1898, the federal government has treated Puerto Ricans differently compared to residents of its other acquired territories. The United States also exerts significant control over Puerto Rico’s local affairs, most recently through the enactment and enforcement of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) in response to the current debt crisis in Puerto Rico. This note assesses the validity of the federal government’s use of the territories clause to control local Puerto Rican affairs, examining the complex history between the United States …

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Foreword: The Free Speech Record Of The Roberts Court, William D. Araiza Dec 2021

Foreword: The Free Speech Record Of The Roberts Court, William D. Araiza

Brooklyn Law Review

On April 9, 2021, scholars gathered at Brooklyn Law School to consider the free speech themes highlighted by a catalogue of the Roberts Court’s free speech jurisprudence. The speakers provided incisive and timely insight on these themes—insight that is reflected in the catalogue and accompanying papers published in this symposium issue of the Brooklyn Law Review. This introduction provides an overview of this symposium issue and the questions presented by each article and essay.

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A Call To Replace The Apa’S Notice-And-Comment Exemption For Guidance Documents, Crystal M. Cummings Dec 2021

A Call To Replace The Apa’S Notice-And-Comment Exemption For Guidance Documents, Crystal M. Cummings

Brooklyn Law Review

Section 553 of the APA requires public “notice-and-comment” before a federal agency issues substantive rules and exempts from these procedures guidance documents that merely offer nonbinding insight and assistance on existing law. The problem of federal agencies using the notice-and-comment exemption to issue legislative rules that are legally binding has garnered considerable attention. Congressional efforts to amend the APA in response have failed and, in turn, variations have been offered on a seemingly simple fix—mandate or encourage agencies to solicit public input before issuing guidance documents. This note characterizes these proposals as overlays on the § 553(b)(A) exemption. The note …

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The Historical Diagnosis Criterion Should Not Apply: Reasonable Accommodations In Standardized Testing For Individuals With A Later Diagnosis Of Adhd, Denise Elliot Dec 2021

The Historical Diagnosis Criterion Should Not Apply: Reasonable Accommodations In Standardized Testing For Individuals With A Later Diagnosis Of Adhd, Denise Elliot

Journal of Law and Policy

There is a growing number of adults being diagnosed with ADHD who were not diagnosed in childhood, misdiagnosed, or primarily exhibited symptoms in adulthood. Notably, most of the later diagnoses of ADHD in adults are individuals pursuing some level of higher education. Some of the reasons posited for this increase in ADHD diagnoses in higher education may be attributed to increased workloads, decreased structural and community supports, misdiagnosis in childhood, masking, and racial and socioeconomic factors that overlook subpopulations like children of color, female-presenting, and gender-nonbinary children with ADHD. Unfortunately, testing agencies that administer college entrance exams, graduate school entrance …

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The Roberts Court, State Courts, And State Constitutions: Judicial Role Shopping, Ariel L. Bendor, Joshua Segev Dec 2021

The Roberts Court, State Courts, And State Constitutions: Judicial Role Shopping, Ariel L. Bendor, Joshua Segev

Journal of Law and Policy

In this Article we reveal a dual dilemma, both material and institutional, that the Supreme Court in its current composition faces when reviewing liberal state court decisions based on the state constitution. The Article further describes substantive and procedural tactics that the Court adopts to address this dilemma, and illustrates the arguments by analyzing a number of recent Supreme Court decisions. The two dilemmas, the combination of which serve as a “power multiplier,” of sorts, have arisen following the last three appointments to the Supreme Court, which resulted in a solid majority of conservative Justices nominated by Republican presidents. One …

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Without A Voice, Without A Forum: Finding Iirira Section 1252(G) Unconstitutional, Amanda Simms Dec 2021

Without A Voice, Without A Forum: Finding Iirira Section 1252(G) Unconstitutional, Amanda Simms

Brooklyn Law Review

The Federal Tort Claims Act (FTCA) abrogates sovereign immunity in certain circumstances to allow private individuals, regardless of citizenship, to sue the United States for specific torts committed by government officials. Yet when two lawful permanent residents—located in different parts of the country—separately tried to sue the government for wrongful removal, one court dismissed the suit for lack of subject matter jurisdiction while the other court did not. These decisions, though reaching opposite conclusions, both relied on federal immigration statute 8 U.S.C. § 1252(g) in order to determine whether judicial review of immigrants’ removal orders is precluded. This note argues …

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High Time For A Change: How The Relationship Between Signatory Countries And The United Nations Conventions Governing Narcotic Drugs Must Adapt To Foster A Global Shift In Cannabis Law, Alexander Clementi Dec 2021

High Time For A Change: How The Relationship Between Signatory Countries And The United Nations Conventions Governing Narcotic Drugs Must Adapt To Foster A Global Shift In Cannabis Law, Alexander Clementi

Brooklyn Journal of International Law

Since the early 1970’s, the inclusion of cannabis and its byproducts in the United Nations Single Convention on Narcotic Drugs has mandated a strict prohibition on cultivation and use of the substance, which has led to a largely global practice of criminalization and imprisonment of anyone found to be in its possession. Yet recently, mostly in response to growing public health concerns, countries like Uruguay, Portugal, The Netherlands, Canada, and the United States have enacted laws which seek to decriminalize or even legalize cannabis use and possession. Yet, cannabis remains classified as a Schedule IV narcotic under the Single Convention, …

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Digital Privacy Rights And Cloud Act Agreements, Tim Cochrane Dec 2021

Digital Privacy Rights And Cloud Act Agreements, Tim Cochrane

Brooklyn Journal of International Law

The United States (US) and United Kingdom (UK) will soon bring into force a new international law enforcement data sharing ‘CLOUD Act agreement’ (US-UK Agreement), the first of its kind under the Clarifying Lawful Overseas Use of Data Act 2018 (CLOUD Act). These agreements enable law enforcement in one state to directly request data from service providers based in the other state. They respond to long-standing concerns with the main mechanism for obtaining overseas data, mutual legal assistance (MLA). The US and UK claim the US-UK Agreement will significantly speed up data access relative to MLA while “respecting privacy and …

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The Good, The Bad, And The Historically Anti-Semitic: An Analytical Comparison Of Anti-Hate Laws In Germany And The United States, Jamie Rauch Dec 2021

The Good, The Bad, And The Historically Anti-Semitic: An Analytical Comparison Of Anti-Hate Laws In Germany And The United States, Jamie Rauch

Brooklyn Journal of International Law

Confronted every day with drastically increasing accounts of hate crimes and hate speech, nations’ legislators have routinely tried and subsequently failed to implement effective legislation capable of curbing the hatred epidemic currently sweeping the globe. This failure is due in large part to the lack of a universal stance on hate crime regulation and criminalization. Two countries in particular, the United States and Germany, embody two diametrically opposing approaches taken by nations in the present-day war on hate speech. This Note explores the dramatic dichotomy between the legislative framework surrounding the regulation of hate speech in these two countries. This …

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How Artificial Intelligence Machines Can Legally Become Inventors: An Examination Of And Solution To The Decision On Dabus, Justyn Millamena Dec 2021

How Artificial Intelligence Machines Can Legally Become Inventors: An Examination Of And Solution To The Decision On Dabus, Justyn Millamena

Journal of Law and Policy

With proliferation of Artificial Intelligence research and development, it is foreseeable that these machines will invent many new patentable technologies. However, the United States Patent and Trademark Office recently deemed a patent application incomplete for listing an AI machine as the inventor. If the USPTO’s decision is not corrected, the patent system will be in danger because many fraudulent patent applications that list incorrect inventors will be filed. This would drastically change existing and settled inventorship jurisprudence and might endanger the patent protection over such patents. This Note argues that the USPTO’s reasons for not allowing the Artificial Intelligence machine …

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The Rise Of Ada Title Iii: How Congress And The Department Of Justice Can Solve Predatory Litigation, Sarah E. Zehentner Sep 2021

The Rise Of Ada Title Iii: How Congress And The Department Of Justice Can Solve Predatory Litigation, Sarah E. Zehentner

Brooklyn Law Review

The Americans with Disabilities Act (ADA) was enacted in 1990 to afford equal opportunities for individuals with disabilities. Title III of the ADA, specifically, was enacted to afford disabled individuals equal access to places of public accommodation. When the ADA was enacted, the internet was still in its infancy and Congress did not contemplate the need for governing accessibility to websites of public accommodations. Today, the internet has become embedded in virtually every aspect of our lives, yet there are still millions of disabled individuals who are unable to equally access the websites of American businesses. With the ADA being …

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A Half-Built House: The Substantial Similarity Analysis Split In Architectural Copyright Infringement Cases, Madison V. Smiley Sep 2021

A Half-Built House: The Substantial Similarity Analysis Split In Architectural Copyright Infringement Cases, Madison V. Smiley

Brooklyn Law Review

The path to extending copyright protection to architectural works in the United States has not come without its challenges, especially as the federal courts continue to muddle through complicated and varying case law to determine whether architectural works infringement has occurred in a given dispute. Applying a uniform approach to analyze substantial similarity in a way that effectively protects architectural works across the federal circuits is necessary to fulfill the legislative intent and the constitutional intent of copyright protection. Likewise, a uniform approach will clarify the level of copyright protection that architectural works are permitted to receive in the United …

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A Firm Pillar Of Local Justice: The Failures Of The New York Town And Village Justice Courts Supporting Statewide Adoption Of The District Court Model, Noah Sexton Jun 2021

A Firm Pillar Of Local Justice: The Failures Of The New York Town And Village Justice Courts Supporting Statewide Adoption Of The District Court Model, Noah Sexton

Journal of Law and Policy

Town and village justice courts have been the center of municipal law, both civil and criminal, since the mid-nineteenth century. However, in the modern world, they have become corrupt, poorly managed institutions, creating issues involving procedural integrity and civil rights. In order to remedy these failures and modernize the New York State Unified Court System, state legislators must look to the district court model as it currently exists in Nassau and Eastern Suffolk Counties. The district court model offers several benefits, including the imposition of educational and experiential requirements for judges, the creation of internal and external oversight institutions, the …

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“A Dollar Ain’T Much If You’Ve Got It”: Freeing Modern-Day Poll Taxes From Anderson-Burdick, Lydia Saltzbart Jun 2021

“A Dollar Ain’T Much If You’Ve Got It”: Freeing Modern-Day Poll Taxes From Anderson-Burdick, Lydia Saltzbart

Journal of Law and Policy

How much should it cost to vote in the United States? The answer is clear from the Supreme Court’s landmark opinion in Harper v. Virginia State Board of Elections—nothing. Yet more than fifty years later, many U.S. voters must jump over financial hurdles to access the franchise. These hurdles have withstood judicial review because the Court has drifted away from Harper and has instead applied the more deferential Anderson-Burdick analysis to modern poll tax claims—requiring voters to demonstrate how severely the cost burdens them. As a result, direct and indirect financial burdens on the vote have proliferated. Millions of voters …

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“More Than Tangential”: When Does The Public Have A Right To Access Judicial Records?, Jordan Elias Jun 2021

“More Than Tangential”: When Does The Public Have A Right To Access Judicial Records?, Jordan Elias

Journal of Law and Policy

 Public accountability requires open proceedings and access to documents filed with the courts. The strong policy favoring access to judicial records creates a presumption against sealing documents without a compelling reason.  The Ninth Circuit Court of Appeals recently held that this presumption of access arises when a proceeding relates “more than tangentially” to the merits. This is a low standard under which many types of motions qualify for the compelling reasons test.  With too much litigation occurring in secret, courts can use the “more than tangential” standard proactively to keep electronic case dockets available to citizens.

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