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Constitutional Law

Fordham Law School

Series

Supreme court

Publication Year

Articles 1 - 5 of 5

Full-Text Articles in Law

Are The Federal Rules Of Evidence Unconstitutional?, Ethan J. Leib Jan 2022

Are The Federal Rules Of Evidence Unconstitutional?, Ethan J. Leib

Faculty Scholarship

The Federal Rules of Evidence (FRE) rest on an unacceptably shaky constitutional foundation. Unlike other regimes of federal rulemaking—for Civil Procedure, for Criminal Procedure, and for Appellate Procedure—the FRE rulemaking process contemplated by the Rules Enabling Act is both formally and functionally defective because Congress enacted the FRE as a statute first but purports to permit the Supreme Court to revise, repeal, and amend those laws over time, operating as a kind of supercharged administrative agency with the authority to countermand congressional statutes. Formally, this system violates the constitutionally-delineated separation of powers as announced in Chadha, Clinton, and the non-delegation …


A Flawed Case Against Black Self-Defense, Nicholas J. Johnson Jan 2022

A Flawed Case Against Black Self-Defense, Nicholas J. Johnson

Faculty Scholarship

No abstract provided.


Protecting The Supreme Court: Why Safeguarding The Judiciary’S Independence Is Crucial To Maintaining Its Legitimacy, Isabella Abelite, Evelyn Michalos, John Rogue Jan 2021

Protecting The Supreme Court: Why Safeguarding The Judiciary’S Independence Is Crucial To Maintaining Its Legitimacy, Isabella Abelite, Evelyn Michalos, John Rogue

Faculty Scholarship

The stability of the Supreme Court’s size and procedures is a critical source of legitimacy, but reforms might protect the Court’s independence from politics. Perceptions among members of the public that justices are political actors harms the rule of law. This report discusses reforms to ensure that each president receives the same number of appointments to the Supreme Court. The report also considers how to guarantee each nominee a Senate hearing and reforms to the retirement stage of justices’ tenures.


Deconstitutionalizing Dewey, Aaron J. Saiger Jan 2019

Deconstitutionalizing Dewey, Aaron J. Saiger

Faculty Scholarship

No abstract provided.


Reasonable Doubt And Moral Elements, Youngjae Lee Jan 2016

Reasonable Doubt And Moral Elements, Youngjae Lee

Faculty Scholarship

The law is axiomatic. In order to convict a person of a crime, every element of the crime with which he is charged must be proven beyond a reasonable doubt. This Article argues that this fundamental proposition of American criminal law is wrong. Two types of elements are typically found in crime definitions: factual elements and moral elements. Proving factual elements involves answering questions about historical facts—that is, questions about what happened. By contrast, proving moral elements—such as “reckless,” “unjustifiable,” “without consent,” or “cruel”—involves answering questions not only about what happened but also about the evaluative significance of what happened. …