Law Commons^™

Voting Rights And The Electoral Process: Resolving Representation Issues Due To Felony Disenfranchisement And Prison Gerrymandering, Andrew Calabrese, Tim Gordon, Tianyi Lu

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Third Parties And The Electoral College: How Ranked Choice Voting Can Stop The Third-Party Disruptor Effect, Hillary Bendert, Jacqueline Hayes, Kevin Ruane

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Presidential Election Disruptions: Balancing The Rule Of Law And Emergency Response, Jason D'Andrea, Sonia Montejano, Matthew Vaughan

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Candidates Of Their Choice? Paradoxical Impact Of The Voting Rights Act In Virginia, Mark E. Rush

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Title I Of The Civil Rights Act In Contemporary Voting Rights Litigation, Helen L. Brewer

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

The New Laboratories Of Democracy, Gerald S. Dickinson

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Epic Fail: Harkenrider V. Hochul And New York's 2022 Misadventure In "Independent" Redistricting, Richard Briffault

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

De Jure Separate And Unequal Treatment Of The People Of Puerto Rico And The U.S. Territories, Natalie Gomez-Velez

Fordham Law Review

Current efforts to dismantle systemic racism in the United States are often met with the argument that legally sanctioned inequality is a thing of the past. Yet despite progress toward formal legal equality, racism and discrimination in the United States exist not only as the effects of past laws and systems—they exist presently in current laws and systems as well. Current U.S. law discriminates against U.S. territories and their residents with respect to citizenship status, voting rights and representation, and equal access to benefits, among other things.

This Essay examines such separate and unequal treatment using the recent case, United …

Cultural Identity And Territorial Autonomy: U.S. Virgin Islands Jurisprudence And The Insular Cases, Dolace Mclean

Fordham Law Review

This Essay utilizes the lens of postcolonial theory to analyze the development of U.S. Virgin Islands jurisprudence. This Essay asserts that the United States’s acquisition of the territory served the purpose of helping to construct an American narrative of moving from colony to colonial power that surpassed its European forebears. The colonial narrative is fractured by instances of the Supreme Court of the Virgin Islands re-narrating territorial space by utilizing legal principles that are informed by local cultural expressions. Consequently, Virgin Islands jurisprudence is transformed from “colonial dependent” to “postcolonial independent” based on intersectional, progressive principles.

Now On Display: In-Line Linking In The Age Of The Server Test, Sonia Autret

Fordham Law Review

In 2007, the U.S. Court of Appeals for the Ninth Circuit adopted a new interpretation of 17 U.S.C. § 106(5), which codifies the display right of the Copyright Act of 1976. In Perfect 10 v. Amazon.com, the Ninth Circuit read § 106(5) to mean that creative works made visible on web pages through in-line linking, an architectural pillar of modern web design, would not infringe on a copyright owner’s display right if the work was not actually copied onto the website’s server. Since its adoption, this approach—known as the Server Test—has been lauded by search engine providers and web …

Independent Contractors & Noncompetition Covenants: A Modified Approach, Matthew J. Sandor

Fordham Law Review

This Note examines the way in which noncompetition covenants should be applied to independent contractors. An increasing portion of the American labor force is now employed outside the traditional employer-employee context. Today, nearly sixty million American workers are categorized as independent contractors, with many subject to noncompetition covenants that restrict their ability to participate in the labor market freely. In response to this dramatic change, state courts and legislatures have used a variety of approaches in enforcing noncompetes in the independent contractor context. These approaches run the gamut, with some states liberally construing noncompetes against independent contractors while others have …

Looks Matter On Social Media: How Should Courts Determine Whether A Public Official Operates Their Social Media Account Under Color Of State Law?, John B. Tsimis

Fordham Law Review

The widespread use of social media has presented a novel legal landscape for the application of constitutionally protected rights—particularly the First Amendment’s protection of free speech. The First Amendment prohibits the government from excluding citizens from a public forum on the basis of their viewpoints. Public officials acting under color of state law similarly may not use the authority of their offices to deprive citizens of their First Amendment rights.

However, the application of this protection in the context of social media has been inconsistent across federal circuit courts. Although these courts agree that viewpoint discrimination by the government on …

Dual Sovereignty In The U.S. Territories, Emmanuel Hiram Arnaud

Fordham Law Review

This Essay examines the emergence and application of the "ultimate source" test and sheds light on the dual sovereign doctrine’s patently colonial framework, particularly highlighting the paternalistic relationship it has produced between federal and territorial prosecutorial authorities.

Imperialist Immigration Reform, Cori Alonso-Yoder

Fordham Law Review

For decades, one of the most challenging domestic policy matters has been immigration reform. Dogged by controversial notions of what makes for a “desirable” immigrant and debates about enforcement and amnesty, elected officials have largely given up on achieving comprehensive, bipartisan immigration solutions. The lack of federal action has led to an outdated and impractical legal framework, with state and local lawmakers unable to step into the breach. Well over 100 years ago, the U.S. Supreme Court firmly stated that regulation of the U.S. immigration system is within the sole constitutional authority of the federal government.

Yet there is one …

Judicial Antifederalism, Anthony M. Ciolli

Fordham Law Review

The United States has a colonies problem. The more than 3.5 million Americans who live in the U.S. territories of American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands lack some of the most fundamental rights and protections, such as the right to vote. This is due to a series of decisions decided more than a century ago, collectively known as the Insular Cases, in which the U.S. Supreme Court held that the “half-civilized,” “savage,” “ignorant and lawless” “alien races” that inhabited America’s overseas territories were not entitled to the same constitutional rights and …

Visible And Invisible: The Case For A Territorial Reporter, Joseph T. Gasper Ii

Fordham Law Review

This Essay discusses the relative invisibility of opinions issued by America’s territorial courts. Today, there is no territorial reporter that publishes the decisions of these courts, making it difficult, if not impossible, to find territorial case law. The absence of a territorial reporter excludes Territories from the national legal community and obscures the efforts of past judges and justices who grappled with the same administrative and constitutional challenges which American Territories face today. To remedy this issue, this Essay argues that it is time for a dedicated territorial reporter.

The Case Against The Debt Tax, Vijay Raghavan

Fordham Law Review

Americans are increasingly agitating for debt relief. In the last decade, there have been national campaigns to cancel student debt, credit card debt, and mortgage debt. These national campaigns have paralleled local efforts to cancel taxi medallion debt, carceral debt, and lunch debt. But as the public increasingly pursues broad-scale debt relief outside bankruptcy, they face an important institutional obstacle: canceled debt is generally taxable.

The taxability of canceled debt is often raised by opponents as an objection to broad debt cancellation and potentially discounts the value of any debt relief. The conventional account for why we tax canceled debt …

The Move Toward An Indigenous Virgin Islands Jurisprudence: Banks In Its Second Decade, Kristen David Adams

Fordham Law Review

In 2011, the Supreme Court of the U.S. Virgin Islands decided Banks v. International Rental & Leasing Corp. and, with that decision, introduced a new era in Virgin Islands jurisprudence that embraced a much more active role for Virgin Islands courts and a correspondingly diminished role for the American Law Institute’s restatements. This Essay examines what I will call “second-generation” decisions referencing Banks with the goal of determining whether Banks and its progeny have met, or are at least in the process of meeting, “the goal of establishing ‘an indigenous Virgin Islands jurisprudence’” set by the Banks court. Ultimately, this …

Concepts Of Citizenship In The Controversy About Constitutional Citizenship For People Born In U.S. Territories, Janet M. Calvo

Fordham Law Review

In 2019, the District of Utah in Fitisemanu v. United States rejected the Insular Cases and held that persons born in American Samoa acquired Fourteenth Amendment constitutional citizenship at birth. The Tenth Circuit reversed through an analysis that attempted to “repurpose” the Insular Cases. This Essay discusses the differing concepts of citizenship presented in Fitisemanu, which raise significant questions about the nature and import of American constitutional citizenship. The Supreme Court’s recent denial of certiorari in Fitisemanu unfortunately leaves these questions unresolved, further continuing the second-class status of individuals born in the territories and underscores the uncertainty of …

License & (Gender) Registration, Please: A First Amendment Argument Against Compelled Driver's License Gender Markers, Lexi Meyer

Fordham Law Review

For as long as the United States has issued drivers’ licenses, licenses have indicated the holder’s gender in one form or another. Because drivers’ licenses are issued at the state level, states retain the authority to regulate the procedures for amending them. In some states, regulations include requirements that a transgender person undergo gender confirmation surgery before they can amend the gender marker on their driver’s license. Because many transgender people neither desire nor can afford gender confirmation surgery, these laws effectively preclude such people from obtaining gender-accurate identification. In doing so, these laws implicate multiple constitutional rights.

Lower courts …

Don't Pull The Trigger On New York's Concealed Carry Improvement Act: Addressing First And Second Amendment Concerns, Morgan Band

Fordham Law Review

Despite the increasing prevalence of mass shootings in the United States, the U.S. Supreme Court in New York State Rifle & Pistol Ass’n, Inc. v. Bruen struck down a 100-year-old New York statute that had restricted access to concealed carry permits. The statute had required applicants to demonstrate a “proper cause” for needing a concealed carry permit. But even if an applicant made the necessary showing, licensing officials retained discretion under the statute to decline to issue a permit. In striking down the statute, the Court distinguished between “may-issue” jurisdictions, such as New York, which give licensing officials discretion in …

De-Class-Ifying Microtargeted Political Advertising, Jacob Kovacs-Goodman

Fordham Law Voting Rights and Democracy Forum

In contemporary American politics, Big Tech companies provide sophisticated advertising interfaces that enable anyone to target specific voters by demographic. These companies defend their tools as “neutral” to evade culpability for discriminatory ads. Yet, such microtargeted advertising presents a significant threat to democracy. This Article advances a possible two-pronged solution to bar online platforms from targeting political ads based on a user’s protected class. First, this Article promotes a largely unexplored tactic: extending Title II of the Civil Rights Act into the digital space so that behavior that would be impermissibly discriminatory offline is not permitted online. Second, this Article …

A Government Of Laws And Not Of Men: Why Justice Brandeis Was Right To Assume Congress Can Restrain The President's Removal Power, Danielle Rosenblum

Fordham Law Voting Rights and Democracy Forum

Since the Founding, the extent of the president’s power to remove executive officials from office remains unsettled. While the Appointments Clause in Article II, Section 2 empowers Congress to participate in the hiring of executive officials, the United States Constitution’s text is silent on whether Congress can limit the president’s ability to fire such employees. The debate on the proper scope of the president’s removal power is significant because it serves as a proxy for a larger constitutional question: whether constraints on presidential power advance or sit in tension with democracy. This Article argues that Justice Brandeis was right to …

A Modern-Day 3/5 Compromise: The Case For Finding Prison Gerrymandering Unconstitutional Under The Thirteenth Amendment, Shana Iden

Fordham Law Voting Rights and Democracy Forum

Vestiges of slavery and systemic disenfranchisement of people of color persist in the United States. One of these remnants is the practice of prison gerrymandering, which occurs when government officials count incarcerated individuals as part of the population of the prison’s location rather than the individual’s home district. This Article argues that prison gerrymandering functions as a badge of slavery that should be prohibited under the Thirteenth Amendment.

First, this Article provides background on prison gerrymandering and charts its impact through history, particularly on Black communities. Moreover, this Article analyzes how litigation under the Fourteenth Amendment has not yielded meaningful …

A Constitutional Right To Early Voting, David Schultz

Fordham Law Voting Rights and Democracy Forum

Voting is a cost-benefit decision. Individuals are more likely to vote if the benefits of doing so outweigh the disadvantages. With early voting laws eased due to the COVID-19 pandemic, the 2020 election demonstrated that turnout increases when elected officials reduce voting costs. Despite all the benefits of early voting, there is no constitutional right, and it remains a privilege that state legislatures can revoke at will.

Since the 2020 election, state legislatures have proposed—and enacted—hundreds of bills to change voting rules. But with the intense partisan disagreement over voting, coupled with political polarization reaching an apex, these acts restricting …

The Looming Threat Of The Independent State Legislature Theory And The Erosion Of The Voting Rights Act: It Is Time To Enshrine The Right To Vote, Javon Davis

Fordham Law Voting Rights and Democracy Forum

Over the last decade, the emergence of an imperial United States Supreme Court—currently armed with the largest conservative majority since the 1930s—has radically reshaped federal voting rights protections. During the litigation surrounding the 2020 election, however, an obscure threat reemerged. The fringe independent state legislature (“ISL”) theory is a potentially revolutionary constitutional theory that could lead to widespread voter disenfranchisement. Proponents of the theory, including Supreme Court Justices, posit, in part, that the United States Constitution vests state legislatures with plenary power to construct rules for federal elections—unbound by state constitutions and free from state judicial review.

Once a refuge …

Moore V. Harper And The Consequential Effects Of The Independent State Legislature Theory, Chase Cooper

Fordham Law Voting Rights and Democracy Forum

In December 2022, the United States Supreme Court heard oral arguments in Moore v. Harper. The case addresses whether the North Carolina Supreme Court possesses the authority to strike down a redistricting map drawn by the state legislature. Petitioners contend that the state legislature has no such authority under the United States Constitution, citing a novel interpretation of the Elections Clause known as the “independent state legislature” (“ISL”) theory. The ISL theory is not a unified theory, but rather a constellation of related doctrinal positions that revolve around a core precept: ordinary governing principles by which state courts review …

Citizen Enforcement Laws Threaten Democracy, David A. Carrillo, Stephen M. Duvernay

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Rucho In The States: Districting Cases And The Nature Of State Judicial Power, Chad M. Oldfather

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Deborah L. Rhode In Memoriam: Three Stories And Ten Life Lessons, Benjamin H. Barton

Fordham Law Review

In this Essay, Professor Benjamin H. Barton offers a heartfelt tribute to the late legal scholar, Professor Deborah L. Rhode. Professor Barton reflects on Rhode’s prolific career, which spanned areas including legal ethics, feminism and women in the law, and lawyers as leaders. He also examines Rhode’s later works, which delved into more personal topics such as character, ambition, and legacy. Through personal anecdotes and life lessons, Professor Barton honors Rhode’s legacy as a model academic, mentor, and transformative force in the legal profession.