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Articles 1 - 22 of 22
Full-Text Articles in Law
The Executive Branch Anticanon, Deborah Pearlstein
The Executive Branch Anticanon, Deborah Pearlstein
Articles
Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past …
Response Letter To Chairman Mcgovern On Remote Voting, Deborah Pearlstein
Response Letter To Chairman Mcgovern On Remote Voting, Deborah Pearlstein
Testimony
Letter sent to Congressman Jim McGovern, Chair of the House Rules Committee. This letter has been entered into the Congressional Record.
"I read with interest an article by Mssrs. Mark Strand and Tim Lang introduced into the record during yesterday’s hearing of the House Rules Committee on H. Res. 965 - Authorizing remote voting by proxy in the House of Representatives. Having written elsewhere in detail about my conviction that the rules change under consideration readily passes constitutional muster, I am grateful for the opportunity to explain why the Strand and Lang position fails to persuade."
Letter To Chairman Mcgovern On Remote Voting, Deborah Pearlstein
Letter To Chairman Mcgovern On Remote Voting, Deborah Pearlstein
Testimony
Letter written to Congressman Jim McGovern, Chair of the House Rules Committee. This letter has been entered into the Congressional Record.
As a professor of constitutional law, and a scholar who has written extensively on separation of powers issues in U.S. Government, I believe adopting procedures to allow for remote voting under these extraordinary circumstances is not only lawful, but essential to the maintenance of our constitutional democracy. Recognizing that specific procedures for remote voting may still be in development, the analysis offered here focuses foremost on the broad scope of Congress’ constitutional authority to regulate its voting procedures.
Getting Past The Imperial Presidency, Deborah Pearlstein
Getting Past The Imperial Presidency, Deborah Pearlstein
Articles
In an age in which the “imperial presidency” seems to have reached its apex, perhaps most alarmingly surrounding the use of military force, conventional wisdom remains fixed that constitutional and international law play a negligible role in constraining executive branch decision-making in this realm. Yet as this Article explains, the factual case that supports the conventional view, based largely on highly selected incidents of presidential behavior, is meaningless in any standard empirical sense. Indeed, the canonical listing of presidential decisions to use force without prior authorization feeds a compliance-centered focus on the study of legal constraint rooted in long-since abandoned …
2013 Cardozo Life (Fall), Benjamin N. Cardozo School Of Law
2013 Cardozo Life (Fall), Benjamin N. Cardozo School Of Law
Cardozo Life
Table of Contents:
Campus News, page 3
Clinics News, page 16
Faculty Briefs, page 18
Felix Wu, page 22
Booting Up, page 24
Michel Rosenfeld, page 36
Legal Style, page 40
Our New York, page 44
Peter Markowitz, page 46
Alumni News & Class Notes, page 58
Floyd Abrams, page 68
Asking The First Question: Reframing Bivens After Minneci, Alexander A. Reinert, Lumen N. Mulligan
Asking The First Question: Reframing Bivens After Minneci, Alexander A. Reinert, Lumen N. Mulligan
Articles
In Minneci v. Pollard, decided in January 2012, the Supreme Court refused to recognize a Bivens v. Six Unknown Federal Narcotics Agents suit against employees of a privately run federal prison because state tort law provided an alternative remedy, thereby adding a federalism twist to what had been strictly a separation-of-powers debate. In this Article, we show why this new state-law focus is misguided. We first trace the Court’s prior alternative-remedies-to-Bivens holdings, illustrating that this history is one narrowly focused on separation of powers at the federal level. Minneci’s break with this tradition raises several concerns. On a …
Abandoning Recess Appointments: A Comment On Hartnett (And Others), Michael Herz
Abandoning Recess Appointments: A Comment On Hartnett (And Others), Michael Herz
Articles
No abstract provided.
Private Parties As Defendants In Civil Rights Litigation: Introduction, Myriam Gilles
Private Parties As Defendants In Civil Rights Litigation: Introduction, Myriam Gilles
Articles
No abstract provided.
Hate Speech In Constitutional Jurisprudence: A Comparative Analysis, Michel Rosenfeld
Hate Speech In Constitutional Jurisprudence: A Comparative Analysis, Michel Rosenfeld
Articles
The United States protects much hate speech that is banned in other Western constitutional democracies and under international human rights covenants and conventions. In the United States, only hate speech that leads to "incitement to violence" can be constitutionally restricted, while under the alternative approach found elsewhere, bans properly extend to hate speech leading to "incitement to hatred." The article undertakes a comparative analysis in light of changes brought by new technologies, such as the internet, which allow for worldwide spread of protected hate speech originating in the United States. After evaluating the respective doctrines, arguments and values involved, the …
Intergroup Rivalry, Anti-Competitive Conduct And Affirmative Action, Michelle Adams
Intergroup Rivalry, Anti-Competitive Conduct And Affirmative Action, Michelle Adams
Articles
Significant research in social science describes racial inequality as grounded in notions of group identity and group conflict. Sociologists and social psychologists who study discrimination and prejudice have moved away from theories that explain prejudice solely as a problem of individual perception, and toward theories that view individual cognitive processes as related to group membership. While present social science yields no consensus view, there is a striking emphasis in the current literature on group identity theories as "powerful determinants of behavior." These theories, which stress the importance of prejudice as a group-based phenomenon and focus on "social-structural theories of group …
Solving The Apprendi Puzzle, Kyron Huigens
Are Tax "Benefits" For Religious Institutions Constitutionally Dependent On Benefits For Secular Entities?, Edward A. Zelinsky
Are Tax "Benefits" For Religious Institutions Constitutionally Dependent On Benefits For Secular Entities?, Edward A. Zelinsky
Articles
The Supreme Court generally conditions tax exemptions, deductions, and exclusions for religious organizations and activities upon the simultaneous extension of such benefits to secular institutions and undertakings. The Court's position flows logically from its acceptance of the premise that tax exemptions, deductions, and exclusions constitute subsidies. However, the "subsidy" label is usually deployed in a conclusory and unconvincing fashion. The First Amendment is best understood as permitting governments to refrain from taxation to accommodate the autonomy of religious actors and activities; hence, tax benefits extended solely to religious institutions should pass constitutional muster as recognition of that autonomy.
Comment: Human Rights, Nationalism, And Multiculturalism In Rhetoric, Ethics, And Politics: A Pluralist Critique, Michel Rosenfeld
Comment: Human Rights, Nationalism, And Multiculturalism In Rhetoric, Ethics, And Politics: A Pluralist Critique, Michel Rosenfeld
Articles
No abstract provided.
It Is Lawyers We Are Funding: A Constitutional Challenge To The 1996 Restrictions On The Legal Services Corporation, Jessica A. Roth
It Is Lawyers We Are Funding: A Constitutional Challenge To The 1996 Restrictions On The Legal Services Corporation, Jessica A. Roth
Articles
No abstract provided.
Justices At Work: An Introduction, Michel Rosenfeld
An Introduction To Mandatory Hiv Screening Of Newborns: A Child’S Welfare In Conflict With Its Mother’S Constitutional Rights—False Dichotomies Make Bad Law, Paris R. Baldacci
An Introduction To Mandatory Hiv Screening Of Newborns: A Child’S Welfare In Conflict With Its Mother’S Constitutional Rights—False Dichotomies Make Bad Law, Paris R. Baldacci
Articles
No abstract provided.
The Identity Of The Constitutional Subject, Michel Rosenfeld
The Identity Of The Constitutional Subject, Michel Rosenfeld
Articles
No abstract provided.
Rewiring The First Amendment: Meaning, Content And Public Broadcasting, Donald W. Hawthorne, Monroe E. Price
Rewiring The First Amendment: Meaning, Content And Public Broadcasting, Donald W. Hawthorne, Monroe E. Price
Articles
No abstract provided.
Executive Autonomy, Judicial Authority And The Rule Of Law: Reflections On Constitutional Interpretation And The Separation Of Powers, Michel Rosenfeld
Executive Autonomy, Judicial Authority And The Rule Of Law: Reflections On Constitutional Interpretation And The Separation Of Powers, Michel Rosenfeld
Articles
No abstract provided.
Justice Brennan, The Constitution, And Modern American Liberalism, David Rudenstine
Justice Brennan, The Constitution, And Modern American Liberalism, David Rudenstine
Articles
No abstract provided.
Preface, Monroe E. Price
The Exclusionary Rule: A Disputation, Peter Lushing