Law Commons^™

Innovative Regulatory And Financial Parameters For Advancing Carbon Capture And Storage Technologies, Zen Makuch, Slavina Georgieva & Behdeen Oraee-Mirzamani

Fordham Environmental Law Review

No abstract provided.

Lessons From Renewable Energy Diffusion For Carbon Dioxide Removal Development, Anthony E. Chavez

Fordham Environmental Law Review

No abstract provided.

Regaining Control Over The Climate Change Narrative: How To Stop Right-Wing Populism From Eroding Rule Of Law In The Climate Struggle In India, Binit Agrawal

Fordham Environmental Law Review

No abstract provided.

Textiles As A Source Of Microfiber Pollution And Potential Solutions, Lea M. Elston

Fordham Environmental Law Review

No abstract provided.

Visions Of The Republic Symposium: The People: A Pre-Primer For Critically Reevaluating Representation & Court Power In The Present, Marvin L. Astrada

Fordham Law Review Online

What exactly is an American? Who or what are the People? Is there an authentic, viable American political identity or community? Or do the deep ruptures and balkanization that seem to pervade law and politics— ranging from pandemics, national security, impeachment, and the environment, to issues of an everyday, local nature—indicate a crisis of legitimacy, cohesion, and national community?

Novel Perspectives On Due Process Symposium: Do Foreign Nations Have Constitutional Rights?, Robert J. Pushaw Jr.

Fordham Law Review Online

Clarity would be promoted by treating Article III—which primarily concerns subject matter jurisdiction over three categories of “Cases” and six types of “Controversies”— separately from Due Process issues such as personal jurisdiction. Moreover, Article III’s text and history indicate that its drafters included “Controversies . . . between a State, or the Citizens thereof, and foreign States, Citizens or Subjects” to ensure that such disputes would be resolved impartially by federal judges who, unlike their state counterparts, enjoyed tenure and salary guarantees that insulated them from political pressure.

Novel Perspectives On Due Process Symposium: The Rights Of Foreign States In The Unites States Legal System, John Harrison

Fordham Law Review Online

Professor Wuerth’s article is a significant piece of scholarship. This brief comment is devoted, not to the article’s many strengths, but to its principal doctrinal conclusion, with which I disagree. In my view, the Due Process Clause of the Fifth Amendment allows Congress to provide any rules it chooses regarding service of process on and personal jurisdiction over foreign sovereigns. That is true, at least, insofar as the judgments of U.S. courts are to be enforced against foreign sovereign assets located in the United States. The rules about personal jurisdiction over foreign sovereigns in the Foreign Sovereign Immunities Act therefore …

Novel Perspectives On Due Process Symposium: Doctrinal Redundancy And The Two Paradoxes Of Personal Jurisdiction, Robin J. Effron

Fordham Law Review Online

At several junctures, scholars have wondered what constitutional personal jurisdiction doctrine can and should add to procedural doctrines that regulate access to courts and parties’ amenability to suit in U.S. jurisdictions, and procedural doctrines that sort lawsuits into geographically suitable or appropriate locations. Professor Wuerth’s Article invites us to refocus on the question of what doctrines can and should regulate the amenability of foreign sovereigns (as well as the agencies and instrumentalities of foreign sovereigns) to suit in American courts.

Novel Perspectives On Due Process Symposium: A Commentary On Ingrid Wuerth's The Due Process And Other Constitutional Rights Of Foreign Nations, David P. Stewart

Fordham Law Review Online

Are foreign States and governments (and their state-owned enterprises) “persons” for constitutional purposes? Do they—should they—have “due process” rights under the U.S. Constitution? Ingrid Wuerth’s thoughtful and thoroughly researched article addresses those important questions from both the historical and doctrinal perspectives and proposes an innovative approach to resolving the issues. The following commentary provides additional background and context, briefly tracing the origins and history of relevant U.S. case law and noting some of the practical implications of answering the questions affirmatively or negatively, particularly in light of the various exceptions to U.S. jurisdiction under the Foreign Sovereign Immunities Act. It …

Novel Perspectives On Due Process Symposium: Foreign Nations, Constitutional Rights, And International Law, Austen Parrish

Fordham Law Review Online

Some of the more pressing issues related to global governance and world order lie at the intersection of foreign relations law, international law, and constitutional law. What role does the Constitution play in ensuring the United States lives up to the nation’s international law obligations in an evolving period of globalization? More provocatively, to what degree will the United States uphold its international legal obligations if not mandated by the Constitution? And what role do domestic courts play in enforcing these international law obligations? In this regard, the U.S. Supreme Court has not directly addressed the question of the rights, …

Novel Perspectives On Due Process Symposium: Rights, Immunities, And Sovereigns, Katherine Florey

Fordham Law Review Online

This response first looks at the historical understanding of foreign sovereign immunity and the ways in which it should inform our reading of Article III. It then considers the role that sovereign immunity protections for foreign nations currently play. It closes with a suggestion that—while the sovereign immunity regime is largely adequate to protect other nations’ interests—Professor Wuerth’s insights nonetheless have a role to play in our understanding of cases involving foreign sovereigns.

Novel Perspectives On Due Process Symposium: Questioning The Constitutional Rights Of Foreign Nations, Donald Earl Childress Iii

Fordham Law Review Online

This response evaluates whether Professor Wuerth’s reading of the Constitution is correct. In so doing, this response considers the original understanding of these provisions, the law of nations as understood during the founding era, and Supreme Court case law close to the time of the founding. As explained below, I conclude that it is questionable that the Constitution extends rights to foreign nations.

Novel Perspectives On Due Process Symposium: Constructing The Original Scope Of Constitutional Rights, Nathan S. Chapman

Fordham Law Review Online

This response argues that Wuerth’s paper illustrates the most persuasive way to go about the task—one question at a time, with an emphasis on conventional legal materials and forms of argumentation. Some questions will call for especially imaginative constructions. This does not render them irrelevant, but it does caution some modesty about the extent to which they ought to trump competing constructions arising from practice and precedent. Despite her reluctance, then, Wuerth’s methods are entirely consistent with a confident originalism.

Novel Perspectives On Due Process Symposium: Punishment Without Process: “Victim Impact” Proceedings For Dead Defendants, Bruce A. Green, Rebecca Roiphe

Fordham Law Review Online

When women accuse powerful men of sexual assault, there is increasing public pressure to resolve any doubts in the accusers’ favor before the criminal process is over, if not from the outset. Private individuals and institutions often do so without worrying about due process, but it is different for the trial court, where the presumption of innocence is supposed to apply. This is especially true where public shaming and the accompanying reputational consequences already constitute a kind of punishment. Although they may be sympathetic to accusers, especially those whose cause is championed by a strong and popular social movement, courts …

Novel Perspectives On Due Process Symposium: Uncoupling Habeas Corpus And Due Process, Jonathan G. D’Errico

Fordham Law Review Online

This exploration concludes by finding that select elements of the Due Process Clause persist even during suspension and thus restrict otherwise forbidden Executive action. Part I overviews the scope of the Great Writ and the effect of its suspension. Part II details two conflicting views of the writ’s relationship with the constitutional demands of due process. Finally, Part III asserts that suspension quiets some facets of the Due Process Clause but does not entirely extinguish the right to procedural due process.

A Note On The Fordham Law Review Online Fall Issue, Novel Perspectives On Due Process, Nora Stewart

Fordham Law Review Online

2019 has seen extensive discussion of due process in the American public sphere. There is a cultural sense of eroding norms, of institutions and procedural protections under threat. In response to the central role of due process in the cultural discourse and to the publication of Ingrid Wuerth’s Article, The Due Process and Other Constitutional Rights of Foreign Nations, in the November Issue of our print edition, Fordham Law Review Online presents a Fall Issue comprised both of response pieces to Professor Wuerth’s Article and of Essays engaging other thorny questions about due process.

Breaking Bivens?: Falsification Claims After Ziglar V. Abassi And Reframing The Modern Bivens Doctrine, Alex Langsam

Fordham Law Review

The U.S. Supreme Court’s 2017 decision in Ziglar v. Abassi purported to clarify the role of the judiciary in inferring Bivens suits directly from the Constitution, rather than a federal statute. Despite this effort, uncertainty has plagued the lower courts. While the Court’s recent Bivens jurisprudence has focused on issues concerning national security, uncertainty also persists in Bivens claims in other domains. This Note examines Bivens claims seeking damages for constitutional violations by law enforcement agents who falsify evidence, lie to procure a search warrant, and commit other similar acts of misconduct. After recognizing a broad, unacknowledged circuit split on …

Selecting Scrutiny In Compelled-Speech Cases Involving Non-Commercial Expression: The Formulaic Landscape Of A Strict Scrutiny World After Becerra And Janus, And A First Amendment Interests-And-Values Alternative, Clay Calvert

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article examines how courts select the standard of scrutiny—strict, intermediate, or something akin to rational basis—in compelled-speech disputes following the United States Supreme Court’s 2018 rulings in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. The compelled-speech doctrine provides individuals and entities with a qualified First Amendment right not to be forced by the government to convey messages under certain circumstances. This principle sometimes is referred to as an unenumerated First Amendment right not to speak. The Article concentrates on compelled-speech mandates involving non-commercial expression in …

Protecting Against An Unable President: Reforms For Invoking The 25th Amendment And Overseeing Presidential Nuclear Launch Authority, Louis Cholden-Brown, Daisy De Wolff, Marcello Figueroa, Kathleen Mccullough

Faculty Scholarship

The immense powers of the presidency and the vast array of global threats demand a physically and mentally capable president. To help ensure able presidential leadership, this report advocates reforms related to the 25th Amendment, including proposals for an “other body” to act with the vice president in certain circumstances to declare the president unable and a mechanism for officials to report concerns about the president’s capacity. The report also recommends new checks on the president’s authority to use nuclear weapons, such as procedures for notifying top national security officials when use is contemplated.

This report was researched and written …

What Should Presidential Candidates Tell Us About Themselves? Proposals For Improving Transparency In Presidential Campaigns, Megha Dharia, Rikki Lavine, Ryan Partelow, James Auchincloss, Krysia Lenzo

Faculty Scholarship

Elections are at the foundation of our democracy, but voters sometimes cast their ballots without critical information about presidential candidates. This report calls for requirements that candidates release more personal financial information, including five years of tax returns, and undergo criminal and intelligence background checks. The report also advocates for a system allowing candidates to submit to voluntary medical exams with some results released to the public.

This report was researched and written during the 2018-2019 academic year by students in Fordham Law School’s Democracy and the Constitution Clinic, which is focused on developing non-partisan recommendations to strengthen the nation’s …

Why The House Of Representatives Must Be Expanded And How Today’S Congress Can Make It Happen, Caroline Kane, Gianni Mascioli, Michael Mcgarry, Meira Nagel

Faculty Scholarship

The House of Representatives was designed to expand alongside the country’s population—yet its membership stopped growing a century ago. Larger and, in some cases, unequal sized congressional districts have left Americans with worse representation, including in the Electoral College, which allocates electors partially on the size of states’ House delegations. This report recommends tying the House’s size to the cube root of the nation’s population, which would lead to 141 more seats. It also calls for an approach to drawing districts that would eliminate gerrymandering.

This report was researched and written during the 2018-2019 academic year by students in Fordham …

Toward An Independent Administration Of Justice: Proposals To Insulate The Department Of Justice From Improper Political Interference, Rebecca Cho, Louis Cholden-Brown, Marcello Figueroa

Faculty Scholarship

The rule of law is undermined when political and personal interests motivate criminal prosecutions. This report advances proposals for ensuring that the federal criminal justice system is administered uniformly based on the facts and the law. It recommends a law preventing the president from interfering in specific prosecutions, another law establishing responsibilities for prosecutors who receive improper orders, and new conflict of interest regulations for Department of Justice officials.

This report was researched and written during the 2018-2019 academic year by students in Fordham Law School’s Democracy and the Constitution Clinic, which is focused on developing non-partisan recommendations to strengthen …

Presidents Must Be Elected Popularly: Examining Proposals And Identifying The Natural Endpoint Of Electoral College Reform, Gianni Mascioli, Caroline Kane, Meira Nagel, Michael Mcgarry, Ezra Medina, Jenny Brejt, Siobhan D'Angelo

Faculty Scholarship

The Electoral College effectively disenfranchises voters who live outside the few states that decide presidential elections. This report endorses a change in the way electoral votes are allocated to ensure that Americans’ votes receive the same weight. States should sign on to the National Popular Vote Interstate Compact, an agreement among states to allocate their electoral votes to the winner of the national popular vote. Ranked choice voting should also be employed to ensure that candidates receive majority support.

This report was researched and written during the 2018-2019 academic year by students in Fordham Law School’s Democracy and the Constitution …

Enforcing The Intent Of The Constitution’S Foreign And Domestic Emoluments Clauses, James Auchincloss, Megha Dharia, Krysia Lenzo

Faculty Scholarship

The Constitution’s Foreign and Domestic Emoluments Clauses are meant to prevent corruption and conflicts of interest. The Foreign Emoluments Clause prohibits some federal officials, including the president, from receiving payments or other benefits from foreign governments, while the Domestic Emoluments Clause bans the president from receiving payments other than the office’s salary from the federal and state governments. To enforce the clauses, this report recommends requiring the president to divest from business interests and increasing powers to investigate and punish violations of the clauses.

This report was researched and written during the 2018-2019 academic year by students in Fordham Law …