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Articles 331 - 360 of 460

Full-Text Articles in Constitutional Law

The Future Of Sodomy , Libby Adler Jan 2005

The Future Of Sodomy , Libby Adler

Fordham Urban Law Journal

This Article celebrates Lawrence v. Texas as a tremendous advance in civil rights while also recognizing future danger signs associated with the opinion. The Article underscores four elements of the opinion which may cause danger to the pro-sex position the author endorses. The Article points to the Court's: (1) standard of review; (2) reliance on consent; (3) emphasis on privacy, and; (4) respect for dignity. Ultimately, the author warns pro-sex litigators and constituencies against complacency and warns that the words that bring them joy in Lawrence may possibly bring them pain in future opinions. The author calls for vigilance, for …

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The Unbearable “Lite”Ness Of History: American Sodomy Laws From Bowers To Lawrence And The Ramifications Of Announcing A New Past, Neil Margolies Jan 2005

The Unbearable “Lite”Ness Of History: American Sodomy Laws From Bowers To Lawrence And The Ramifications Of Announcing A New Past, Neil Margolies

Fordham Urban Law Journal

This Article

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The Dangers Of Fighting Terrorism With Technocommunitarianism: Constitutional Protections Of Free Expression, Exploration, And Unmonitored Activity In Urban Spaces, Marc Jonathan Blitz Jan 2005

The Dangers Of Fighting Terrorism With Technocommunitarianism: Constitutional Protections Of Free Expression, Exploration, And Unmonitored Activity In Urban Spaces, Marc Jonathan Blitz

Fordham Urban Law Journal

Part I of this article examines how some commentators can plausibly argue that constitutional liberty and privacy protections do not protect the individual liberty and privacy that modern individuals have come to expect in many public spaces, particularly in urban environments. Constitutional liberalism, this section points out, makes this question a difficult one, because it is marked by scrupulous neutrality towards different visions of “the good life.” In other words, the constitutional order does not condemn those who choose a communitarian way of life and favor those who prefer individualism. Rather, it tolerates both of these (and other) preferences about …

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Felon Disenfranchisement: Law, History, Policy, And Politics, George Brooks Jan 2005

Felon Disenfranchisement: Law, History, Policy, And Politics, George Brooks

Fordham Urban Law Journal

George W. Bush became the forty-third President of the United States when he won the state of Florida by 537 votes in the 2000 election. Because the election was so close, hotly-contested, and divisive, aspects of our electoral system long relegated to dusty books suddenly became topics of water cooler conversation and cocktail party chatter. Some Democrats speculate that if the nearly 600,000 felons in Florida had been allowed to vote, Al Gore would have been elected President. Felon disenfranchisement has thus become a cause celèbre among liberals. There are approximately four million felons who cannot vote nationwide. They are …

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Revenge Of Mullaney V. Wilbur: United States V. Booker And The Reassertion Of Judicial Limits On Legislative Power To Define Crimes, The, Ian Weinstein Jan 2005

Revenge Of Mullaney V. Wilbur: United States V. Booker And The Reassertion Of Judicial Limits On Legislative Power To Define Crimes, The, Ian Weinstein

Faculty Scholarship

This article offers a historically grounded account of the twists and turns in the Supreme Court's sentencing jurisprudence from the end of World War II to the Court's stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court's effort to respond to the changing political and social landscape of crime in America. In the mid 1970's, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave …

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Congress's Power To Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies The Framers Enacted , Robert J. Kaczorowski Jan 2005

Congress's Power To Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies The Framers Enacted , Robert J. Kaczorowski

Faculty Scholarship

Professor Robert Kaczorowski argues for an expansive originalist interpretation of Congressional power under the Fourteenth Amendment. Before the Civil War Congress actually exercised, and the Supreme Court repeatedly upheld plenary Congressional power to enforce the constitutional rights of slaveholders. After the Civil War, the framers of the Fourteenth Amendment copied the antebellum statutes and exercised plenary power to enforce the constitutional rights of all American citizens when they enacted the Civil Rights Act of 1866 and then incorporated the Act into the Fourteenth Amendment. The framers of the Fourteenth Amendment thereby exercised the plenary power the Rehnquist Court claims the …

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How Much Protection Do Injunctions Against Enforcement Of Allegedly Unconstitutional Statutes Provide?, Vikram David Amar Jan 2004

How Much Protection Do Injunctions Against Enforcement Of Allegedly Unconstitutional Statutes Provide?, Vikram David Amar

Fordham Urban Law Journal

This essay addresses the unresolved effects of preliminary injunctions issued by federal district courts in response to legislation that is possibly unconstitutional. More problematically, set against the backdrop of the "Partial Birth Abortion Ban Act of 2003," the essay asks whether an individual who violates the contested statute after receiving a preliminary injunction from a federal district court may be prosecuted if the statute is later upheld as constitutional. The essay analyzes competing arguments by Justice Stevens and Justice Marshall in Edgar v. MITE Corp., which involved a federal preliminary injunction against enforcement of a state statute. Siding with Justice …

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Lethal Experimentation On Human Beings: Roe's Effect On Bioethics, William L. Saunders, Jr. Jan 2004

Lethal Experimentation On Human Beings: Roe's Effect On Bioethics, William L. Saunders, Jr.

Fordham Urban Law Journal

Beginning with the assumption that human life begins at conception, this article explores the problematic terrain accompanying embryonic stem cell research and human cloning. "Lethal Experimentation on Human Beings," as enumerated in the article's title, refers to experimentation on and the removal of stem cells from human embryos, both of which "kill" a human being. The article warns that the holding in Roe v. Wade, which recognizes only a qualified government interest in unborn life, has obscured a pressing need for proponents of embryonic stem cell research to prove why society's interest in this research outweighs the rights of the …

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What Lawrence V. Texas Says About The History And Future Of Reproductive Rights, Cynthia Dailard Jan 2004

What Lawrence V. Texas Says About The History And Future Of Reproductive Rights, Cynthia Dailard

Fordham Urban Law Journal

This article explores the ways in which the court's recognition of a broad zone of personal liberty in Lawrence v. Texas may serve to strengthen a woman's constitutionally protected reproductive rights in future Supreme Court decisions. Part of the author's analysis focuses on using particular Justices' opinions (and dissents) to predict the direction of future challenges to abortion rights in front of the Supreme Court.

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Winter Count: Taking Stock Of Abortion Rights After Casey And Carhart, Caitlin E. Borgmann Jan 2004

Winter Count: Taking Stock Of Abortion Rights After Casey And Carhart, Caitlin E. Borgmann

Fordham Urban Law Journal

This article outlines the current landscape of the constitutional right to abortion established in Roe v. Wade. Analyzing the court's holdings in Planned Parenthood v. Casey and Stenberg v. Carhart, the author details the ways in which recognition of a government interest in potential life at any stage in a pregnancy, as well as the lofty "undue burden" standard in analyzing policies that hinder access to abortion, have eroded this right. Finally, the author stresses the Supreme Court cases' disparate impact on the abortion rights of low-income and rural dwelling women.

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Casey And Its Impact On Abortion Regulation, Michael F. Moses Jan 2004

Casey And Its Impact On Abortion Regulation, Michael F. Moses

Fordham Urban Law Journal

Given the Supreme Court's shift from a strict scrutiny standard to an "undue burden" standard in Planned Parenthood v. Casey, this article advocates for application of the standard in a way that is deferential to state legislatures. The author finds a number of problems with the holding in Casey for which it seeks judicial and legislative action: the undue burden standard is vague; it is unclear whether the burden should be upon everyone or "some people"; and the holding allows court to strike laws that have not gone into effect, therefore evidence of their impact is "speculative."

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Writing On The Wall Of Separation: Understanding The Public Posting Of Religious Duties And Sectarian Versions Of Sacred Texts As An Establishment Clause Violation In Ten Commandment Cases, David C. Pollack Jan 2004

Writing On The Wall Of Separation: Understanding The Public Posting Of Religious Duties And Sectarian Versions Of Sacred Texts As An Establishment Clause Violation In Ten Commandment Cases, David C. Pollack

Fordham Urban Law Journal

This Note seeks an answer to the question of whether public displays of the Ten Commandments violate the Establishment Clause of the Constitution. In analyzing this question the author first explains the language of the traditional and American hybrid form of the Decalogue. From there, the author describes the three part standard the Supreme Court adopted in Lemon v. Kurtzman to analyze possible violations of the Establishment Clause. Once this framework is in place, the Note lays out how courts have split in their determinations of whether public displays of the Ten Commandments, both the traditional and hybrid models, is …

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Supreme Court Of The United States As Quasi-International Tribunal: Reclaiming The Court's Original And Exclusive Jurisdiction Over Treaty-Based Suits By Foreign States Against States, The, Thomas H. Lee Jan 2004

Supreme Court Of The United States As Quasi-International Tribunal: Reclaiming The Court's Original And Exclusive Jurisdiction Over Treaty-Based Suits By Foreign States Against States, The, Thomas H. Lee

Faculty Scholarship

The thesis of this Article is that the Constitution vests in the Supreme Court original and exclusive jurisdiction over suits brought by foreign states against States alleging violation of ratified treaties of the United States. The basis for non-immunity in suits by foreign states is the same theory of ratification consent that is presumed to justify suits against States by other States or the United States. Just as the States by ratifying the Constitution agreed to suits in the national court by other States and the national sovereign to ensure domestic peace, they agreed to suits by foreign states in …

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Is There A First Amendment Defense For Bush V. Gore , Abner S. Greene Jan 2004

Is There A First Amendment Defense For Bush V. Gore , Abner S. Greene

Faculty Scholarship

Could so many well-established scholars be wrong? Is it possible that Bush v. Gore is defensible, after all? The two pillars of the decision-the Equal Protection Clause justification for the merits holding and the "safe harbor" remedial ruling - indeed seem weak. The alternative merits view-that the Florida Supreme Court had engaged in statutory amendment under the guise of statutory interpretation, thus violating Article II of the federal Constitution-runs aground against the plausible (albeit not necessarily correct) readings of the state high court. If one agrees that these merits and remedial arguments are indefensible, then mustn't one agree with the …

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You Have A Right To Remain Silent, Michael Avery Jan 2003

You Have A Right To Remain Silent, Michael Avery

Fordham Urban Law Journal

The Supreme Court will decide in the October 2002 term whether there is a cause of action under 42 U.S.C. Section 1983 based on a coercive police interrogation of a suspect in custody who has not been given Miranda warnings. The Supreme Court cannot decide that there is no cause of action under section 1983 for damages caused by coercive interrogation practices without turning its back on a large body of its own jurisprudence and on the deeply rooted cultural and political expectations of American citizens who trust that they have a meaningfu lconstitutionally protected right to remain silent when …

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The Usa Patriot Act: Civil Liberties, The Media, And Public Opinion, Lisa Finnegan Abdolian, Harold Takooshian Jan 2003

The Usa Patriot Act: Civil Liberties, The Media, And Public Opinion, Lisa Finnegan Abdolian, Harold Takooshian

Fordham Urban Law Journal

This Essay offers an examination of the legal provision of the USA Patriot Act. It then looks at the distinct shift in U.S. media reporting on this legislation over time, and in-depth public opinion findings on people's mixed views of post-9/11 civil liberties. This Essay concludes that media coverage of events is best accompanied by tracking polls, to chart how much and why the U.S. public is coalescing or further dividing on issues of individual liberties during crisis.

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Does A Marriage Really Need Sex?: A Critical Analysis Of The Gender Restriction On Marriage, Randi E. Frankle Jan 2003

Does A Marriage Really Need Sex?: A Critical Analysis Of The Gender Restriction On Marriage, Randi E. Frankle

Fordham Urban Law Journal

This Note discusses the issues surrounding intersex persons and the right to marry. The Comment first discusses the constitutional protection of the right to marry, intersex conditions, and case law regarding intersex, transsexual, and same-sex marriage. It further addresses the consequences for marriage when it is narrowly defined. Further, the Comment proposes an alternative solution to the one many courts have used. This solution allows an intersex person to self-designate her gender and be able to marry either a man or a woman. Finally, this Comment argues that if an intersex person can marry either a man or a woman, …

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Crime, Gun Control, And The Batf: The Political Economy Of Law Enforcement, Jim F. Couch, Wiliam F. Shughart Ii Jan 2003

Crime, Gun Control, And The Batf: The Political Economy Of Law Enforcement, Jim F. Couch, Wiliam F. Shughart Ii

Fordham Urban Law Journal

The Bureau of Alcohol, Tobacco and Firearms ("BATF"), an agency of the United States Treasury Department, has wide-ranging law enforcement responsibilities, which include the investigation of crimes involving guns, explosives, and illicit drugs. Its execution of these duties has been the subject of considerable controversy. This Study reports evidence that the law enforcement activities of the BAFT are influenced by both public-spirited and bureaucratic motives. The evidence presented in this Study contributes to a rethinking of the public-interest paradigm.

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Life, Liberty, And The Pursuit Of Terrorists: An In-Depth Analysis Of The Government's Right To Classify United States Citizens Suspected Of Terrorism As Enemy Combatants And Try Those Enemy Combatants By Military Comission, Amanda Schaffer Jan 2003

Life, Liberty, And The Pursuit Of Terrorists: An In-Depth Analysis Of The Government's Right To Classify United States Citizens Suspected Of Terrorism As Enemy Combatants And Try Those Enemy Combatants By Military Comission, Amanda Schaffer

Fordham Urban Law Journal

This Comment explores the government's right to treat citizens as enemy combatants and whether their trials should be by military commissions or by the non-military criminal justice system. It gives background information and explains the source of the government's right to determine enemy combatant status and to use military commissions. This Comment also describes the distinctions between a military trial and a regular criminal trial and explains the status of two cases regarding American citizens declared to be enemy combatants. The Comment goes on to explain why the government wants to use military commissions to try terrorists and the advantages …

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Old Whine In A New Battle: Pragmatic Approaches To Balancing The Twenty-First Amendment, The Dormant Commerce Clause, And The Direct Shipping Of Wine , Gordon Eng Jan 2003

Old Whine In A New Battle: Pragmatic Approaches To Balancing The Twenty-First Amendment, The Dormant Commerce Clause, And The Direct Shipping Of Wine , Gordon Eng

Fordham Urban Law Journal

This Note examines the tension between the Twenty-First Amendment to the United States Constitution and the Dormant Commerce Clause, with respect to state regulations governing of out-of-state direct shipment of wine to consumers. The Constitution is not clear about where the boundaries of the Commerce Clause lie when Congress has not explicitly addressed an issue. This Note first recognizes the importance of history with respect to the Twenty-First Amendment. It further examines recent court decisions, identifying four approaches taken by federal courts to address this issue and the distinguishing factors that influence the courts' final holdings. Finally, this Note offers …

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The Scope Of Police Questioning During A Routine Traffic Stop: Do Questions Outside The Scope Of The Original Justification For The Stop Create Impermissible Seizures If They Do Not Prolong The Stop? , Bill Lawrence Jan 2003

The Scope Of Police Questioning During A Routine Traffic Stop: Do Questions Outside The Scope Of The Original Justification For The Stop Create Impermissible Seizures If They Do Not Prolong The Stop? , Bill Lawrence

Fordham Urban Law Journal

The issue this Note addresses is whether a police officer, during a routine traffic stop, violates a person's Fourth Amendment rights when the officer's questions stray from the original reason for the stop. Resolution of the issue pits privacy concerns against the state's interest in effective law enforcement. With circuits split over the issue, and the Supreme Court not yet plainly ruling on it, this Note aims to provide a narrow solution to the problem.Part I explains the Fourth Amendment reasonableness standard and discusses the line of Supreme Court cases from Terry v. Ohio14 to Florida v. Bostick 5 that …

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Picture Perfect: A Critical Analysis Of The Debate On The 2002 Help America Vote Act, Gabrielle B. Ruda Jan 2003

Picture Perfect: A Critical Analysis Of The Debate On The 2002 Help America Vote Act, Gabrielle B. Ruda

Fordham Urban Law Journal

This Comment examines whether the Anti-Fraud provision provides a fair scheme for the identification process during voter registration, or if it inherently violates certain fundamental rights and freedoms of American citizens who wish to cast their ballot. This Comment conducts a historical assessment of the institution of voting, examines the standard of review used by courts to determine whether a law violates a citizen's constitutional right to vote and analyzes whether the Anti-Fraud provision is the appropriate means required to achieve its stated objective of decreasing voter fraud. This Comment argues that discriminatory infringements on voting rights need to be …

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The (Un)Favorable Judgment Of History: Deportation Hearings, The Palmer Raids, And The Meaning Of History, Harlan G. Cohen Jan 2003

The (Un)Favorable Judgment Of History: Deportation Hearings, The Palmer Raids, And The Meaning Of History, Harlan G. Cohen

Faculty Scholarship

As Americans respond to the events of September 11, 2001, they are being forced to contemplate their place in American history-past, present, and future. This has become particularly stark in the fight over secret deportation hearings. Following September 11, Attorney General John Ashcroft announced that the deportation hearings of "special interest" aliens would be closed to the public. Applying Richmond Newspapers's two-pronged logic-and-experience test, the Third and Sixth Circuits subsequently split over the constitutionality of the blanket closure. At the heart of their disagreement was the scarce history of deportation hearings and whether such hearings had been closed in the …

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Trying To Fit An Oval Shaped Island Into A Square Constitution: Arguments For Puerto Rican Statehood, Jose D. Roman Jan 2002

Trying To Fit An Oval Shaped Island Into A Square Constitution: Arguments For Puerto Rican Statehood, Jose D. Roman

Fordham Urban Law Journal

This Comment focuses on the limits placed on Puerto Rico under the United States Constitution and concludes that Puerto Rico must become the 51st state to improve its status under the Constitution. It explores Puerto Rico's relationship with the United States and its unusual position under the Constitution. This Comment then examines the voting rights issues facing Puerto Ricans, including a First Circuit case which denied Puerto Ricans the right to vote in presidential elections. The Comment concludes that this case was correctly decided and the Supreme Court, in other decisions, has only recognized a limited right to vote under …

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September 11, 2001: The Constitution During Crisis: A New Perspective, Lori Sachs Jan 2002

September 11, 2001: The Constitution During Crisis: A New Perspective, Lori Sachs

Fordham Urban Law Journal

This Comment examines how the United States should react to the threat of domestic terrorism while maintaining citizens' civil liberties in the wake of the events on September 11, 2001. The Comment first compares and contrasts three classic theories of democracy: constitutional democracy, representative democracy and deliberative democracy. It next describes how representative and constitutional democracy were applied during the Japanese internment during World War II. Part III compares the Japanese internment to the challenges after the September 11 attacks and analyzes the roles different branches should have in protecting civil liberties. Finally, the Comment recommends applying a theory of …

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Redeeming The Welshed Guarantee: A Scheme For Achieving Justiciability, Ethan J. Leib Jan 2002

Redeeming The Welshed Guarantee: A Scheme For Achieving Justiciability, Ethan J. Leib

Faculty Scholarship

In this article, I suggest that Congress re-pass its progressive legislation under the jurisdictional basis of its Guarantee Clause power. While arguments for justiciability continue to be made, a pragmatic way to achieve it has not been spelled out. Part II will lay out versions of republicanism I hope to see discussed in the context of the Guarantee Clause. Part III will explore republicanism's excessive attention on the courts, recommending the aforementioned approach of Jeremy Waldron. Part IV will briefly suggest how some of the legislation recently curtailed by the Supreme Court might be justified under a theory of legislative, …

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Do As I Say And Not As I Do: Dickerson, Constitutional Common Law And The Imperial Supreme Court, Kevin Mcnamee Jan 2001

Do As I Say And Not As I Do: Dickerson, Constitutional Common Law And The Imperial Supreme Court, Kevin Mcnamee

Fordham Urban Law Journal

This Comment examines the Supreme Court's Miranda jurisprudence through the lens of the "constitutional common law" theory, which suggests that the Supreme Court has crafted a large body of subconstitutional rules that are not compelled by the text of the Constitution but serve to protect values implicit in the text. As a result, such rules are subject to the limitations of modification and nullification by later courts. After presenting the characteristics of the constitutional common law theory and its relationship to federalism and separation of powers, the author suggests that the theory can explain the erosion of Miranda decision's brightline …

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Freedom Of Expression In New York State: What Remains Of People Ex Rel. Arcara V. Cloud Books, Inc.?, Jeremy J. Bethel Jan 2001

Freedom Of Expression In New York State: What Remains Of People Ex Rel. Arcara V. Cloud Books, Inc.?, Jeremy J. Bethel

Fordham Urban Law Journal

This Note explores the decline of People ex rel. Arcara in New York State jurisprudence over the last decade. It first describes traditional and contemporary methods of testing free expression infringements, including a discussion of federal minimum standards, and protection expansions implemented by the New York Court of Appeals. Next, it describes the effect of federal "secondary effects" jurisprudence upon the People ex rel. Arcara standard, and how that encounter skewed lower court application of that standard for all cases involving "content-neutral" infringement of protected speech. Finally, it examines the illogical consequences of the court of appeals' method of deciding …

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Do The Clothes Make The Man? Implications Of A Witness' Status In The Determination Of Probable Cause, Jessica Ward Jan 2001

Do The Clothes Make The Man? Implications Of A Witness' Status In The Determination Of Probable Cause, Jessica Ward

Fordham Urban Law Journal

This Note examines police determination of probable cause based on witness credibility. It first sets out the probable cause standard and details the relevant probable cause case law and the policy considerations behind the Fourth Amendment. Next, it examines different types of witnesses the police encounter and analyzes whether the status of the witness implies more or less credibility. Finally, it evaluates the factors that officers apply in their determination of witness credibility. This Note concludes that the status of the witness should not be determinative, but rather should be just one of the factors the police take into account …

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Examining The Lautenberg Amendment In The Civilian And Military Contexts: Congressional Overreaching, Statutory Vagueness, Ex Post Facto Violations, And Implementation Flaws, Jessica A. Golden Jan 2001

Examining The Lautenberg Amendment In The Civilian And Military Contexts: Congressional Overreaching, Statutory Vagueness, Ex Post Facto Violations, And Implementation Flaws, Jessica A. Golden

Fordham Urban Law Journal

The Lautenberg Amendment to the Gun Control Act of 1968 was passed in 1996 with the purpose of preventing gun-related domestic violence. The Lautenberg Amendment's passage raises unique commerce clause issues, and the amendment is possibly unconstitutional. Part I of the article examines the Commerce Clause (and Tenth Amendment) challenges to the Lautenberg Amendment. It provides the history of cases thus far failing to successfully challenge the constitutionality of the Lautenberg Amendment. It then discusses the Supreme Court's decision in Morrison v. Olson, that struck down the civil remedies provision of the Violence Against Women Act as a violation of …

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