Constitutional Law Commons^™

Birthright Citizenship On Trial: Elk V. Wilkins And United States V. Wong Kim Ark, Bethany R. Berger

Cardozo Law Review

In the summer of 2015, the majority of Republican candidates for president announced their opposition to birthright citizenship. The constitutional dimensions of that right revolve around two cases decided at the end of the nineteenth century, Elk v. Wilkins (1884) and United States v. Wong Kim Ark (1898). The first held that an American Indian man born in the United States was not a citizen under the Fourteenth Amendment; the second, that a Chinese American man born in the United States was indeed a citizen under the amendment. This Article juxtaposes the history of these decisions. By showing the distinctive …

The Promise Of America, Joseph A. Greenaway Jr.

Cardozo Law Review

No abstract provided.

Keeping It In The Kitchen: An Analysis Of Intellectual Property Protection Through Trade Secrets In The Restaurant Industry, Sarah Segal

Cardozo Law Review

No abstract provided.

The Enigma Of Wynne, Edward A. Zelinsky

Articles

The five-justice Wynne majority used that case to make a major statement about the dormant Commerce Clause. In many respects, Wynne is an enigma that perpetuates an inherent problem of the Courts dormant Commerce Clause doctrine: the Court declares some ill-defined taxes as unconstitutionally discriminatory because they encourage in-state investment, while other economically equivalent taxes and government programs that similarly encourage intrastate economic activity are apparently acceptable under the dormant Commerce Clause.

Wynne is thus more important than the immediate situation it addresses, and will have consequences beyond the immediate circumstances it addresses. A decision as enigmatic as it is …

Rogachova V. Ministry Of Interior, Miriam Naor, Elyakim Rubinstein, Salim Joubran, Esther Hayut, Hanan Melcer, Isaac Amit, Neal Hendel

Translated Opinions

The Petitioners arrived in Israel from different places throughout the world, and while in Israel, underwent the conversion in an Orthodox community that did not operate within the framework of the state conversion system. The question that must be decided is whether these petitioners should be recognized as Jews for the purpose of the Law of Return. The Respondents argue that from an interpretative point of view, the Law of Return was not intended to apply to a person who converted while already living in Israel, and that a conversion performed in Israel should not be recognized unless it was …

Movement For Quality Government V. Prime Minister, Elyakim Rubinstein, Salim Joubran, Noam Sohlberg, Uzi Vogelman, Esther Hayut

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

The Petitions disputed the legal validity of the Gas Outline adopted by the Government in the framework of Government Decision 432 in regard to the treatment of the gas reserves (hereinafter: the Gas Outline). The state and the gas companies holding the franchises defended the Gas Outline.

The Supreme Court, sitting as High Court of Justice (in an expanded bench of five justices) ruled …

Reconceptualizing The Eighth Amendment: Slaves, Prisoners, And Cruel And Unusual Punishment, Alexander A. Reinert

Articles

The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application. This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination.

In particular, I …

Conservative Movement V. Be'er Sheva Religious Council, Elyakim Rubinstein, Miriam Naor, Salim Joubran

Translated Opinions

Facts: An appeal of an administrative judgment finding that there was no defect in the decision of the Beer Sheva Religious Council to prevent the Masorti (Conservative) Movement and the Movement for Progressive (Reform) Judaism from using the mikve [ritual bath – plural: mikvaot] in its jurisdiction for the purpose of their conversion ceremonies.

Held: The Court (per Deputy President E. Rubinstein, Justice S. Joubran and President M. Naor concurring) granted the appeal, holding as follows:

Inasmuch as a number of local councils that permit the immersion of converts from the official conversion system in their mikvaot, the question of …

No Better Instrument: The Necessity Of Notice And An Opportunity To Be Heard And The Due Process Deficiencies Of Nuisance Abatement, Elise Bernlohr

Cardozo Law Review

No abstract provided.

Is The Uniform Faithful Presidential Electors Act Constitutional?, Robert J. Delahunty

Cardozo Law Review de•novo

My topic is both timely and perennial: The Electoral College. More specifically, I will first discuss the constitutional problem known as the “Faithless Elector” and, then, I will attempt to solve such problem. My proposed solution is the Uniform Faithful Presidential Electors Act (UFPEA), a statute that several states have adopted.

Model Or Anti-Model? U.S. Regulatory Takings Doctrine In Foreign Jurisdictions, Melanie Benesh

Cardozo Journal of International and Comparative Law

Canada and Australia have taken a different approach to regulatory takings than Peru, despite some similarities among the countries. Like Peru, Canada and Australia both have IIAs with the United States. Like Peru, both have also addressed regulatory takings issues in their domestic jurisprudence since signing those IIAs. And like Peru, both Canada and Australia have looked to U.S. regulatory takings doctrine while developing their own domestic jurisprudence. However, unlike Peru, Canada and Australia have both ultimately decided that the U.S. regulatory takings doctrine would not be viable in their constitutional and political systems. They view U.S. regulatory takings doctrine …

The War On American Diplomacy: Isis, Al-Qaeda, And Taliban's Sustained Attacks On Peaceful U.S. Missions Abroad, Justus Reid Weiner

Cardozo Journal of Conflict Resolution

According to the American Foreign Service Association, seventy-six U.S. diplomats were killed between the years of 1973 and 2013 during peaceful missions abroad, amounting to over forty deaths. These diplomats were beacons of peace in their respective regions, maintaining peaceful relations amongst each other's countries and mitigating conflict without the use of violence. Continued attacks on diplomats are a demonstration of violence not only against them as individuals, but against peace around the globe. The most obvious way to resolve this conflict is to acknowledge the innumerous terror attacks that have taken place and take active steps to resolve the …

Back Down To Bullying? The Detrimental Effects Of Zero Tolerance Policies On Bullied Adolescents, Devon L. Disiena

Cardozo Journal of Equal Rights & Social Justice

The note critiques zero tolerance policies in schools, arguing that they disproportionately harm bullied adolescents by failing to consider their circumstances, leading to unjust disciplinary actions and discouraging victims from seeking help. It advocates for legislative reforms, particularly in New York, to include self-defense as a mitigating factor in disciplinary decisions.

The Ninth Circuit's Decision In Von Saher V. Norton Simon Museum Of Art At Pasadena: The Invocation Of The Act Of State Doctrine And Its Implications For Future Nazi-Stolen Art Claims, Erica Wolf

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Patent System Manipulation: Hedge Funds Abusing Ipr, Poor Patent Quality & Pharmaceutical Monopolies, Kenneth J. Costa

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Road To Adopting And Implementing Systemic Disclosure Changes In The Dallas County District Attorney’S Office, Susan Hawk, Patricia J. Cummings

Cardozo Law Review de•novo

Discovery and Brady are currently two of the most discussed and debated topics in our criminal justice system. Americans have become more and more aware of the number of individuals convicted and incarcerated for crimes they did not commit. In 2007, in a very bold and innovative move, the Dallas County District Attorney’s Office created the Conviction Integrity Unit (CIU) to reexamine questionable convictions to determine if a particular defendant was in fact guilty.

A Hurdle Too High: The Unconstitutionality Of Mandatory Ultrasounds Under Casey's Undue Burden Standard, Katarzyna Kordas

Cardozo Journal of Equal Rights & Social Justice

The article argues that mandatory ultrasound laws impose an undue burden on women seeking abortions, violating the constitutional standard established in Planned Parenthood v. Casey. These laws, often enacted to dissuade women from proceeding with abortions, are deemed medically unnecessary and unconstitutional as they obstruct women's reproductive rights.

Thou Shall Not Adopt: Sexual Orientation Discrimination In The Adoption Process, Peter Gallucci

Cardozo Journal of Equal Rights & Social Justice

The note addresses the issue of sexual orientation discrimination in the adoption process, highlighting how religious-based adoption agencies often deny services to LGBTQ+ couples, despite the growing need for foster care placements. It critiques current laws that permit such discrimination and proposes an enhanced version of the Every Child Deserves a Family Act to ensure equal adoption rights while mitigating the impact on states and foster children.

"A Trial Of Strength In Scenes Of Violence": Building A Case For The Prenatal Rights Of Willing Fathers Towards Custody, Anton Sorkin

Cardozo Journal of Equal Rights & Social Justice

In the 1920s, family law jurisprudence saw the development of a fundamental right to direct the upbringing and education of children by parents. However, in the aftermath of Roe v. Wade, the Supreme Court began a trajectory that culminated in what would amount to a total deprivation of a father's prenatal rights despite an absence of judicial review of these matters. This evolution has created a grave injustice and a violation of the rule of law, in addition to facilitating the breakdown offamily oneness in our culture. While proponents like Lynne Marie Kohm, Michael J Higdon, Mary Totz, and Matthew …

The Second Circuit And Social Justice, Matthew Diller, Alexander A. Reinert

Articles

The Second Circuit is renowned for its landmark rulings in fields such as white collar crime and securities law — bread and butter issues growing out of Wall Street’s preeminence in the financial landscape of the nation. At the same time, the Second Circuit has a long tradition of breaking new ground on issues of social justice. Unlike some circuit courts which have reputations in the area of social justice built around one or two fields, such as the Fifth Circuit’s pioneering role in civil rights litigation or the Ninth Circuit’s focus on immigration, there is no one area of …

Justice Scalia, The 2016 Presidential Election, And The Future Of Church-State Relations, Marci A. Hamilton

Articles

No abstract provided.

Threshold Liberty, Dawinder S. Sidhu

Cardozo Law Review

The Supreme Court's Thirteenth Amendment precedent is no longer sustainable. For starters, that precedent - which holds that the Amendment prohibits the "badges and incidents" of slavery, and that Congress has the power to "rationally" determine what constitutes a "badge or incident" of slavery - raises serious federalism and separation of powers concerns. To make matters worse, the Court itself has recently restricted the enforcement provisions of the Fourteenth Amendment (in City of Boerne v. Flores) and Fifteenth Amendment (in Shelby County v. Holder), rendering the generous bounds of the Thirteenth Amendment enforcement power an outlier among the …

Taxing Legalized Marijuana: How Courts Should Treat Drug Tax Statutes In Light Of The Fifth Amendment's Self-Incrimination Clause And Executive Non-Enforcement Of The Controlled Substances Act, Joseph A. Goldstein

Cardozo Law Review

No abstract provided.

Title Ix Giveth And The Religious Exemption Taketh Away: How The Religious Exemption Eviscerates The Protection Afforded Transgender Students Under Title Ix, Amanda Bryk

Cardozo Law Review

No abstract provided.

Doe V. Friedman, Neal Hendel, Anat Baron, Uri Shoham

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

A transgender woman ended her life, and, in documents she left behind, she made clear that she wished for her body to be cremated and that most of her ashes be scattered at sea and some be buried in a place for her memory. In her will she asked that the First Respondent act to execute her wishes – this, among others, because she …

Hamed V. Military Commander In The West Bank, Miriam Naor, Hanan Melcer, Noam Sohlberg

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Petitions against the forfeiture and demolition orders that were issued for the homes of Palestinians who are suspected of perpetrating murderous attacks, pursuant to the authority of the Commander of the IDF Forces in the Judea and Samaria area under Regulation 119 of the Defence (Emergency) Regulations.

The High Court of Justice (per President M. Naor, Justices H. Melcer and N. Sohlberg concurring) …

Hashavim H.P.S. Business Information, Ltd. V. The Courts' Administration, Elyakim Rubinstein, Esther Hayut, Uzi Vogelman

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

This case concerned a petition challenging the decision of the Courts Administration (the Respondent) making access to its judgment database contingent upon signing a “guarantee” that comprised, inter alia, a prohibition upon indexing the information in a manner that would allow it to be found through web search engines such as Google and Bing. The Petitioner is a commercial company whose primary activity is …

Fighting The Tofu: Law And Politics In Scholarship And Adjudication, Stephen M. Feldman

Cardozo Public Law, Policy & Ethics Journal

Law professors and political scientists often aim to deny, control, or otherwise tame the dynamic interactions of law and politics that are integral to adjudication. The University of Chicago Law Review recently published an issue containing two such articles: Charles L. Barzun's Impeaching Precedent and Eric A. Posner and Adrian Vermeule's Inside or Outside the System. Both articles sought to police the boundary between law and politics, between the internal and external. The two articles, however, struggled to reach that shared goal in strikingly different and ultimately irreconcilable ways, both of which were unavailing. And that is my point: …

Taking Care While Doing Right By The Fourth Amendment: A Pragmatic Approach To The Community Caretaker Exception, Mark Goreczny

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

The Eminent Domain Path Out Of A Public Pension Crisis, Adam Riff

Cardozo Law Review

No abstract provided.