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Articles 1 - 15 of 15
Full-Text Articles in Law
“Armed And Dangerous” A Half Century Later: Today’S Gun Rights Should Impact Terry’S Framework, Alexander Butwin
“Armed And Dangerous” A Half Century Later: Today’S Gun Rights Should Impact Terry’S Framework, Alexander Butwin
Fordham Law Review
Over fifty years ago, in Terry v. Ohio, the U.S. Supreme Court established a two-part framework in which police officers may, without a warrant, stop and search an individual for weapons without violating the Fourth Amendment’s protections against unreasonable searches and seizures. Officers must (1) suspect that criminal activity has occurred, or will soon occur, and (2) have a reasonable fear that the individual is “armed” and poses a threat to the responding officers or to others—i.e., “dangerous.” The second prong’s exact meaning is disputed and has created a split among the circuits as to whether merely being “armed” …
The Due Process And Other Constitutional Rights Of Foreign Nations, Ingrid Wuerth
The Due Process And Other Constitutional Rights Of Foreign Nations, Ingrid Wuerth
Fordham Law Review
The rights of foreign states under the U.S. Constitution are becoming more important as the actions of foreign states and foreign state-owned enterprises expand in scope and the legislative protections to which they are entitled contract. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation of powers nor by due process. As a matter of policy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals but to deny categorically such protections to foreign states. Careful analysis shows that the conventional …
A “Justified Need” For The Constitutionality Of “Good Cause” Concealed Carry Provisions, Andrew Kim
A “Justified Need” For The Constitutionality Of “Good Cause” Concealed Carry Provisions, Andrew Kim
Fordham Law Review
The U.S. Supreme Court’s landmark decision in District of Columbia v. Heller held that the prohibition of handguns in the home was unconstitutional and the Court extended this holding to the states through the Fourteenth Amendment in McDonald v. City of Chicago. Through these cases, the Court clarified that the core of the Second Amendment was self-defense. However, it did not specify the scope of this self-defense “core” and left the lower courts with room for interpretation—for example, it is unclear whether and to what extent the Second Amendment applies to the public space. Furthermore, the Supreme Court did …
Regulating Habit-Forming Technology, Kyle Langvardt
Regulating Habit-Forming Technology, Kyle Langvardt
Fordham Law Review
Tech developers, like slot machine designers, strive to maximize the user’s “time on device.” They do so by designing habit-forming products— products that draw consciously on the same behavioral design strategies that the casino industry pioneered. The predictable result is that most tech users spend more time on device than they would like, about five hours of phone time a day, while a substantial minority develop life-changing behavioral problems similar to problem gambling. Other countries have begun to regulate habit-forming tech, and American jurisdictions may soon follow suit. Several state legislatures today are considering bills to regulate “loot boxes,” a …
Third-Party Bankruptcy Releases: An Analysis Of Consent Through The Lenses Of Due Process And Contract Law, Dorothy Coco
Third-Party Bankruptcy Releases: An Analysis Of Consent Through The Lenses Of Due Process And Contract Law, Dorothy Coco
Fordham Law Review
Bankruptcy courts disagree on the use of third-party releases in Chapter 11 bankruptcy plans, the different factors that circuit courts consider when deciding whether to approve a third-party release, and the impact of the various consent definitions on whether a release is or should be binding on the creditor. Affirmative consent, “deemed consent,” and silence are important elements in this discussion. Both contract law and due process provide lenses to evaluate consent definitions to determine whether nondebtor third-party releases should bind certain creditor groups. This Note proposes a solution that follows an affirmative consent approach to protect against due process …
The Twenty-Fifth Amendment: Law, History, And Recommendations For Reform, John D. Feerick, John Rogan
The Twenty-Fifth Amendment: Law, History, And Recommendations For Reform, John D. Feerick, John Rogan
Miscellaneous
Handout for The Twenty-Fifth Amendment: Law, History, and Recommendations for Reform.
Guilt By Genetic Association: The Fourth Amendment And The Search Of Private Genetic Databases By Law Enforcement, Claire Abrahamson
Guilt By Genetic Association: The Fourth Amendment And The Search Of Private Genetic Databases By Law Enforcement, Claire Abrahamson
Fordham Law Review
Over the course of 2018, a number of suspects in unsolved crimes have been identified through the use of GEDMatch, a public online genetic database. Law enforcement’s use of GEDMatch to identify suspects in cold cases likely does not constitute a search under the Fourth Amendment because the genetic information hosted on the website is publicly available. Transparency reports from direct-to-consumer (DTC) genetic testing providers like 23andMe and Ancestry suggest that federal and state officials may now be requesting access to private genetic databases as well. Whether law enforcement’s use of private DTC genetic databases to search for familial relatives …
Dignity And Social Meaning: Obergefell, Windsor, And Lawrence As Constitutional Dialogue, Steve Sanders
Dignity And Social Meaning: Obergefell, Windsor, And Lawrence As Constitutional Dialogue, Steve Sanders
Fordham Law Review
The U.S. Supreme Court’s three most important gay and lesbian rights decisions—Obergefell v. Hodges, United States v. Windsor, and Lawrence v. Texas—are united by the principle that gays and lesbians are entitled to dignity. Beyond their tangible consequences, the common constitutional evil of state bans on same-sex marriage, the federal Defense of Marriage Act, and sodomy laws was that they imposed dignitary harm. This Article explores how the gay and lesbian dignity cases exemplify the process by which constitutional law emerges from a social and cultural dialogue in which the Supreme Court actively participates. In doing …
Fosta: A Hostile Law With A Human Cost, Lura Chamberlain
Fosta: A Hostile Law With A Human Cost, Lura Chamberlain
Fordham Law Review
The Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”) rescinded legal immunity for websites that intentionally host user-generated advertisements for sex trafficking. However, Congress’s mechanism of choice to protect sex-trafficking victims has faced critique and backlash from advocates for those involved in commercial sex, who argue that FOSTA’s broad legislative language does far more to harm sex workers—a group distinct from sex-trafficking victims—than it does to end sex trafficking, chilling significant protected speech in the process. These critics posit that FOSTA’s results toward eradicating sex trafficking have been negligible and that its chief outcome has …
All Watched Over By Machines Of Loving Grace: Border Searches Of Electronic Devices In The Digital Age, Sean O'Grady
All Watched Over By Machines Of Loving Grace: Border Searches Of Electronic Devices In The Digital Age, Sean O'Grady
Fordham Law Review
The border search exception to the Fourth Amendment has historically given the U.S. government the right to conduct suspicionless searches of the belongings of any individual crossing the border. The federal government relies on the border search exception to search and detain travelers’ electronic devices at the border without a warrant or individualized suspicion. The government’s justification for suspicionless searches of electronic devices under the traditional border search exception for travelers’ property has recently been called into question in a series of federal court decisions. In March 2013, the Ninth Circuit in United States v. Cotterman became the first federal …
Back To The Future: Permitting Habeas Petitions Based On Intervening Retroactive Case Law To Alter Convictions And Sentences, Lauren Casale
Back To The Future: Permitting Habeas Petitions Based On Intervening Retroactive Case Law To Alter Convictions And Sentences, Lauren Casale
Fordham Law Review
In 1948, Congress enacted 28 U.S.C. § 2255, which authorizes a motion for federal prisoners to “vacate, set aside or correct” their sentences, with the goal of improving judicial efficiency in collateral review. Section 2255(e), known as the “savings clause,” allows federal inmates to challenge the validity of their imprisonments with writs of habeas corpus if § 2255 motions are “inadequate or ineffective to test the legality of [their] detention[s].” Due to the U.S. Supreme Court’s and Congress’s silence regarding what suffices as “inadequate or ineffective,” the circuit courts have adopted varied standards. The Sixth and Seventh Circuits hold that …
50 Years After The 25th Amendment: How To Improve Presidential Succession, Second Fordham University School Of Law Clinic On Presidential Succession
50 Years After The 25th Amendment: How To Improve Presidential Succession, Second Fordham University School Of Law Clinic On Presidential Succession
Reports
Pamphlet summarizing the Second Succession Clinic's recommendations.
The Fourth Amendment And Technological Exceptionalism After Carpenter: A Case Study On Hash-Value Matching, Denae Kassotis
The Fourth Amendment And Technological Exceptionalism After Carpenter: A Case Study On Hash-Value Matching, Denae Kassotis
Fordham Intellectual Property, Media and Entertainment Law Journal
The Fourth Amendment has long served as a barrier between the police and the people; ensuring the government acts reasonably in combating crime. Fourth Amendment jurisprudence is more dynamic than other constitutional guarantees, and has undergone periodic shifts to account for technological and cultural changes. The Supreme Court’s 2018 decision in United States v. Carpenter marks the most recent jurisprudential shift, as the Court departed from the well-settled reasonable expectation of privacy test to account for a new technology (CSLI records). This Note examines Carpenter’s impact on future Fourth Amendment cases, using another novel surveillance technique, hash-value matching, as a …
Deconstitutionalizing Dewey, Aaron J. Saiger
Deconstitutionalizing Dewey, Aaron J. Saiger
Faculty Scholarship
No abstract provided.
Hardball Vs. Beanball: Identifying Fundamentally Antidemocratic Tactics, Jed H. Shugerman
Hardball Vs. Beanball: Identifying Fundamentally Antidemocratic Tactics, Jed H. Shugerman
Faculty Scholarship
The “constitutional hardball” metaphor used by legal scholars and political scientists illuminates an important phenomenon in American politics, but it obscures a crisis in American democracy. In baseball, hardball encompasses legitimate tactics: pitching inside to brush a batter back but not injure, hard slides, hard tags. Baseball fans celebrate hardball. Many of the constitutional hardball maneuvers previously identified by scholars have been legitimate, if aggressive, constitutional political moves. But the label “hardball” has been interpreted too broadly to include illegitimate, fundamentally undemocratic tactics. I suggest a different baseball metaphor for such tactics: beanball, pitches meant to injure and knock out …