Constitutional Law Commons^™

More On The Varying Meanings Of “Congress” And “Legislature”, Michael Herz

Online Publications

In a recent Election Law Blog post regarding the Independent State Legislature doctrine, Rick Pildes observes that the term “Congress” in the U.S. Constitution sometimes means Congress acting alone and sometimes means Congress acting through legislation. Given that, it makes perfect sense that the term “legislature” can also sometimes mean the one and sometimes the other. I agree. This post just expands the intratextual analysis.

Weekly Pop-Up Class: Lgbtq Rights And The Crisis Of Democracy, Deborah Pearlstein, Benjamin N. Cardozo School Of Law

2022 Event Invitations

Deborah Pearlstein is Professor of Law and Co-Director of the Floersheimer Center for Constitutional Democracy. Pearlstein has repeatedly testified before Congress on topics from war powers to executive branch oversight. Her work on the U.S. Constitution, international law, and national security has appeared widely in law journals and the popular press.

Democracy Harms And The First Amendment, Deborah Pearlstein

Articles

The First Amendment tolerates—has long tolerated—the regulation of certain kinds of false speech. Indeed, regulable lies are not limited to traditionally less-protected categories of speech like defamation and commercial deception. They include an array of other established speech regulations, administered by government institutions every day, from criminal laws barring perjury and other lies to government officials, to disciplinary measures by elected bodies sanctioning members for false or otherwise objectionable speech. Yet while it is easy to identify the kinds of lies that existing doctrinal categories make regulable for the personal, physical, or reputational harms they inflict on individuals¸ it has …

Weekly Pop-Up Class: Understanding The Lgbtq+ Civil Rights Movement And Why It Matters, Kate Shaw, Benjamin N. Cardozo School Of Law

2022 Event Invitations

Cardozo Professor Kate Shaw is the Co-Director of the Floersheimer Center for Constitutional Democracy. Before joining Cardozo, she worked in the White House Counsel’s Office as a Special Assistant to the President and Associate Counsel to the President. She clerked for Justice John Paul Stevens of the U.S. Supreme Court and Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit.

Weekly Pop-Up Class: Understanding The Lgbtq+ Civil Rights Movement And Why It Matters, Rachel B. Tiven, Benjamin N. Cardozo School Of Law

2022 Event Invitations

Rachel Tiven will discuss "A History of U.S. Immigration Exclusion." Tiven is a civil rights leader turned historian. As the head of national non-profits Lambda Legal, Immigration Equality, and Immigrant Justice Corps, Tiven fought for equality for immigrants and LGBTQ/HIV+ people. Tiven has been recognized for her work by the Advocate magazine, New York County Lawyers Association and United We Dream.

Reckoning With Structural Racism In Legal Education: Methods Toward A Pedagogy Of Antiracism, Doron Samuel-Siegel

Cardozo Journal of Equal Rights & Social Justice

There is an empty quality to much of what passes as "diversity, equity, and inclusion" work in legal education. Despite a robust body ofscholarship on teaching law consistent with the goals of antiracism, many legal educators struggle to put theory into practice. This Article responds to that struggle, offering a holistic, methodical approach to a pedagogy of antiracism whose goal is twofold: create conditions in which racially minoritized students learn to their full potential, free from the harms of traditional legal education; and equip all students, regardless of identity, to contribute to the dismantlement of structural racism. Absent such pedagogy, …

Takings Property And Appropriative Water Rights, Luis Inaraja Vera

Cardozo Law Review

The Takings Clause of the Fifth Amendment to the United States Constitution provides that “private property [shall not] be taken for public use, without just compensation.”1 While courts and academics have put considerable amounts of effort into discussing the meaning of “taken” or “public use,” they have given far less attention to the phrase “private property.” Notable scholars have provided a set of definitions and frameworks to determine when a particular right qualifies as takings property. However, courts and commentators have yet to define the types of rights that are entitled to constitutional protection with sufficient precision to avoid an …

The Lord Is My Strength And My Shield: The Ecclesiastical Abstention Doctrine In In Re Diocese Of Lubbock, Kerri A. Matulis

Cardozo Law Review

No abstract provided.

Far-Fetched Uses Of Drug Detection Dog Alerts: A Case Note On United States V. Braddy, Daniel Kaseff

Cardozo Law Review

No abstract provided.

A Second Look For Children Sentenced To Die In Prison, Kathryn E. Miller

Articles

Scholars have championed “second look” statutes as a decarceral tool. Second look statutes allow certain incarcerated people to seek resentencing after having served a portion of their sentences. This Essay weighs the advantages and disadvantages of these statutes as applied to children sentenced to die in prison and argues that focusing on this small, discrete group may be a digestible entry point for more conservative states who fear widespread resentencing. Moreover, because early data indicates that children convicted of homicide and released as adults have very low recidivism rates, second look beneficiaries are likely to pose little threat to public …

Weekly Pop-Up Class: Understanding The Lgbtq+ Civil Rights Movement And Why It Matters, Dmytro Vovk, Benjamin N. Cardozo School Of Law

2022 Event Invitations

Dmytro Vovk, Cardozo Visiting Associate Professor will cover Religious Freedom and LGBTQ+ Rights: The European Court of Human Right's Perspective.

Dmytro Vovk runs the Center for Rule of Law and Religion Studies at Yaroslav the Wise National Law University in Kharkiv, Ukraine. He was an expert on human rights and rule of law for USAID, OSCE/ODIHR, Council of Europe and Constitutional Commission of Ukraine.

Weekly Pop-Up Class: Understanding The Lgbtq+ Civil Rights Movement And Why It Matters: Professor Edward Stein, Benjamin N. Cardozo School Of Law

2022 Event Invitations

The first class will cover the evolution of LGBTQ+ family law in the United States and will be presented by LGBTQ+ legal expert and Cardozo Professor and former Vice Dean Edward Stein, author of The Mismeasure of Desire, The Science, Theory, and Ethics of Sexual Orientation and other scholarly works on sexual identity and the law.

A New Supreme Court Case Threatens Another Body Blow To Our Democracy, Katherine A. Shaw, Leah Litman, Carolyn Shapiro

Online Publications

When the Supreme Court overruled Roe v. Wade, the justices in the majority insisted they were merely returning the issue of abortion to the democratic process. But a case the court has announced it will hear in its October term could make that democratic process a lot less democratic.

Judges, Judging And Otherwise: Do We Ask Too Much Of State Court Judges - Or Not Enough?, Michael C. Pollack

Articles

Ask the average person to imagine what a judge does, and the answer will most likely be something right out of a courtroom from Law & Order — or Legally Blonde, Just Mercy, My Cousin Vinny, Kramer vs. Kramer, or any of the myriad law-themed movies and television shows. A judge is faced with a dispute brought by some parties and their lawyers and is charged with resolving it, whether it be a breach of contract, a tort action, a competing claim over property, a disagreement about the meaning of a statute, some accusation that someone …

The Link Between Voting Rights And The Abortion Ruling, Katherine A. Shaw, Leah Litman, Melissa Murray

Online Publications

The Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization gives states the maximum amount of freedom to restrict abortion. The decision is so sweeping that, under its logic, states could ban abortion even in cases of rape or incest; they may even be able — as the dissent notes — to prohibit abortions in circumstances in which a doctor believes the procedure is necessary to preserve the life or health of the pregnant person.

The Other Cause Of January 6, Katherine A. Shaw

Online Publications

John Eastman. Rudy Giuliani. Donald Trump himself.

These people all bear some responsibility for the events of January 6, 2021. But there is another contributing factor—an institution, not a person—whose role is regularly overlooked, and that deserves a focus in the ongoing January 6 committee hearings: the Electoral College. The Electoral College isn’t responsible for President Trump’s efforts to remain in office despite his clear loss. But it was integral to Trump’s strategy, and it has everything to do with how close he came to success.

We Clerked For Justices Scalia And Stevens. America Is Getting Heller Wrong., Katherine A. Shaw, John Bash

Online Publications

In the summer of 2008, the Supreme Court decided District of Columbia v. Heller, in which the court held for the first time that the Second Amendment protected an individual right to gun ownership. We were law clerks to Justice Antonin Scalia, who wrote the majority opinion, and Justice John Paul Stevens, who wrote the lead dissent.

Human Dignity As A Chameleon, Ariel L. Bendor, Michal Tamir

Cardozo International & Comparative Law Review

This article offers an innovative argument, according to which courts do not interpret human dignity according to an abstract theoretical position on the nature of the value only, nor subordinate themselves to the subjective purpose of the drafters of a constitution. Thus, courts-whether in the United States, where human dignity is not explicitly mentioned in the Constitution, or in countries where the right is constitutionally enshrined, such as Germany, South Africa, and Israel-interpret and apply human dignity on the basis of the entirety of the provisions of the particular constitution. Human dignity serves as a constitutional chameleon in the sense …

Leveling The Playing Field In Custody Proceedings In New York City Family Court: Enforcing The Rights Of All Parents To Notice And An Unbiased Opportunity To Enforce Their Fundamental Right To Parent Their Child, Dana Gambardella

Cardozo Journal of Equal Rights & Social Justice

The note argues that the Administration for Children's Services (ACS) in New York City systematically fails to notify non-respondent fathers, particularly Black fathers, of their rights and opportunities to participate in child welfare proceedings. This practice violates their fundamental constitutional right to parent and disproportionately affects low-income Black families, perpetuating racial and economic disparities in the child welfare system. The note advocates for systemic reforms, including increased accountability for ACS and the establishment of a private right of action for aggrieved parents.

Hostile Shores: Racial Exclusion Laws And The West Coast, Brendan Williams

Cardozo Journal of Equal Rights & Social Justice

The article examines the historical and ongoing racial exclusion laws on the West Coast, focusing on California, Oregon, and Washington. It argues that despite their progressive reputation, these states have a legacy of discriminatory laws targeting Chinese, Black, and Japanese populations, which has led to enduring racial inequities that persist today.

The False Allure Of The Anti-Accumulation Principle, Michael E. Herz, Kevin M. Stack

Articles

Today the executive branch is generally seen as the most dangerous branch. Many worry that the executive branch now defies or subsumes the separation of powers. In response, several Supreme Court Justices and prominent scholars assert that the very separation-of-powers principles that determine the structure of the federal government as a whole apply with full force within the executive branch. In particular, they argue that constitutional law prohibits the accumulation of more than one type of power—legislative, executive, and judicial—in the same executive official or government entity. We refer to this as the anti-accumulation principle. The consequences of this principle, …

"A Mystifying And Distorting Factor": The Electoral College And American Democracy, Katherine A. Shaw

Articles

A Review of Let the People Pick the President: The Case for Abolishing the Electoral College. By Jesse Wegman.

Inherent Judicial Authority: A Study In Creative Ambiguity, Charles M. Yablon

Cardozo Law Review

No abstract provided.

Textualism, Dynamism, And The Meaning Of "Sex", Bill Watson

Cardozo Law Review de•novo

A recent Article by Professors William N. Eskridge, Brian G. Slocum, and Stefan Th. Gries critically examines textualism, both in general and as applied in Bostock v. Clayton County. This Essay makes three points in reply. First, the authors criticize strawman versions of textualism that no mainstream legal interpreter claims to hold. Second, the authors’ examples of “societal dynamism” do not put any pressure on textualism properly understood. And third, the authors’ corpus-linguistics analysis of the word “sex” is, from a textualist perspective, irrelevant to the issue in Bostock.

Hospitality At The Center Of Dispute Resolution, Peter Block

Cardozo Journal of Conflict Resolution

My intent here is to amplify and give voice to the transformative importance of the work described in three of the Articles being published in this edition of the Cardozo Journal of Conflict Resolution. The Articles discuss restorative answers to this culture's dominant narrative of retribution. Each of these social innovations represents a form of hospitality, which is akin to the welcoming of strangers. The Articles form a strategy, in alliance with the alternative dispute resolution movement and addressing the violence against the self and others, which forms the headlines of our daily news consumption.

Speaking Arabic In Israel: "He Whose Hand Is In The Water Is Not Like Whose Hand Is In The Fire", Yael Efron, Mohammed S. Wattad

Cardozo Journal of Conflict Resolution

No abstract provided.

Keynote Address, Christopher J. Buccafusco, Jeff Kosseff

Cardozo Arts & Entertainment Law Journal

The article discusses the evolution and impact of Section 230 of the Communications Decency Act, highlighting its role in shaping internet speech and liability. It traces the law's origins, key court rulings, and current debates about its future. The speaker emphasizes the need for informed discussion to address concerns about harmful content, platform moderation, and free speech.

Standardizing State Vote-By-Mail Deadlines In Federal Elections, Jason Nagel

Cardozo Law Review de•novo

The litigation over the vote-by-mail process during the 2020 general election revealed that absentee ballot voting disputes should not be left entirely to the courts. Rather, this Note argues that Congress should utilize its constitutional Elections Clause power to standardize federal vote-by-mail processes, and proposes specific elements that Congress should include in such legislation.

Something For Nothing: Untangling A Knot Of Section 230 Solutions, Nicholas Bradley

Cardozo Law Review de•novo

Social media platforms have become the dominant public forum of the modern age but there is a big problem: they are privately owned and can moderate content however they like. This right is protected both by the First Amendment and Section 230 of the Communications Decency Act, the latter of which creates immunity from suit for platforms that exercise their right to moderate content by removing—or not removing—objectionable content. Politicians on both sides of the aisle have complained that platforms are abusing this immunity and, while they have put forward a wide variety of legislative solutions, none of them have …

Staying In The Takings Lane: The Compensation Issue In Cedar Point Nursery, Mark Kelman

Cardozo Law Review de•novo

The Supreme Court held in Cedar Point Nursery v. Hassid that a California regulation mandating that union organizers have occasional access to privately owned farms was a per se taking because it stripped the farm owners of the right to exclude. The decision almost certainly departed from prior law, and I briefly review some of the critiques of the majority opinion. But my focus is on questions that arise if one accepts the Court’s conclusion that the regulation is indeed a taking: First, I briefly discuss whether we should permit the taking so long as the owners are compensated or …