Constitutional Law Commons^™

Response: Diagonal Representation, Alma Magaña

Articles

A lot has been written about the crisis of indigent defense and the plethora of factors that have led to the crisis, like the lack of guidance on how indigent defense providers can most efficiently distribute their insufficient resources. This lack of guidance has left jurisdictions across the country to their own devices, resulting in a national landscape of very different models, each with its own variations of the same problems plaguing indigent defense.

A Distinct System For Presidential Succession On Inauguration Day: Getting The Most Out Of Section 3 Of The Twentieth Amendment, Brian C. Kalt

Cardozo Law Review

The current presidential-succession statute uses the same line of succession for every conceivable situation. But there are many different types of potential succession scenarios. Succession need not—and should not—be governed by a one-size-fits-all approach.

Before the Twentieth Amendment was ratified in 1933, the Constitution authorized Congress to provide only for double vacancies during the term, when there already is a President and Vice President. Recognizing this gap, Section 3 of the Twentieth Amendment empowered Congress to cover inauguration-day double vacancies: at the outset of a term, when nobody is available to become President or Vice President in the first place. …

Confronting The War On International Law In The United States, Rebecca Ingber

Online Publications

Harold Hongju Koh’s The National Security Constitution in the 21st Century is a code red threat assessment of the state of public law in America today. True to Koh’s nature, he does not leave us without hope; rather he devotes a sizeable portion of the book to calls for reform, from the legal frameworks governing war powers and intelligence to the division of labor in the national security legal bureaucracy plodding away within the deepest (secure) chambers of the executive branch itself.

Who Decides: Judges Or Experts? Loper Bright, The End Of Chevron, And It's Impact On Corporate Governance, Heyman Center On Corporate Governance, Floersheimer Center For Constitutional Democracy

2024–2025 Flyers

No abstract provided.

A Government Of The People: Popular Engagement In U.S. Constitutional Democracy, Floersheimer Center For Constitutional Democracy

2024–2025 Flyers

No abstract provided.

A Government Of The People: Popular Engagement In U.S. Constitutional Democracy, Floersheimer Center For Constitutional Democracy, Wilfred U. Codrington Iii

2024 Event Invitations

Please join us for a fascinating discussion about the place and power of the people in constitutional practice and government design, including critical areas that feature prominently in today’s public conversation in light of recent Supreme Court terms and the upcoming election.

This event will feature three panelists—Alicia Bannon (Brennan Center for Justice at NYU School of Law), Corey Brettschneider (Brown University and Fordham Law School) and Joshua Douglas (University of Kentucky J. David Rosenberg College of Law), the latter two of whom have recently published books that center the people in core matters of political decision making—in conversation with …

Table Of Contents - Cardozo Journal Of Equal Rights & Social Justice, Vol. 31, Iss. 1

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Masthead, Cardozo Journal Of Equal Rights & Social Justice, Vol. 31 (2024–25)

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Women On Death Row In The United States, Sandra Babcock, Nathalie Greenfield, Kathryn Adamson

Cardozo Law Review

This Article presents a comprehensive study of forty-eight persons sentenced to death between 1990 and 2022 who were legally recognized as women at the time of their trials. Our research is the first of its kind to conduct a holistic and intersectional analysis of the factors driving women’s death sentences. It reveals commonalities across women’s cases, delving into their experiences of motherhood, gender-based violence (“GBV”), and prior involvement with the criminal legal system. We also explore the nature of the women’s crimes of conviction, including the role of male codefendants and the state’s use of aggravating factors. Finally, we reveal …

Privacy Law’S Role In An Information Economy, Sari Mazzurco

Cardozo Law Review

What do we lose when we lose our privacy? A slew of recently enacted state laws suggest that the loss of privacy is merely a loss of individual choice in the market exchange of services for personal information. This Article argues that a loss of privacy risks something greater: the collapse of complex and fluid social identity. Without privacy, individuals cannot nurture their own senses of self because they are no longer free to try on different social roles across diverse relationships. Pervasive, private data collection threatens multifaceted selfhood by eliminating the boundaries that make social roles distinct and hindering …

Theistic Illiberal Constitutionalism: A Review Of Adrian Vermeule’S Common Good Constitutionalism, Kyron J. Huigens

Articles

Adrian Vermeule’s Common Good Constitutionalism drew a remarkable amount of attention from constitutional law scholars when it was published in 2020. About eighteen months later, Vermeule published a piece complaining that the critics had missed the point, that they had ignored the natural law jurisprudence that grounds the work. He was correct. This Review addresses Vermeule’s natural law jurisprudence, emphasizing the fact that it is a religious natural law jurisprudence. His arguments are in the tradition of ScholasticismAristotelian logic incorporated into Christian theology by St. Thomas Aquinas. Scholasticism is a remarkably weak foundation for constitutional jurisprudence. It is a vast …

The Scotus Term Preview & Retrospective, Floersheimer Center For Constitutional Democracy, Wilfred U. Codrington Iii, Haiyun Damon-Feng, Elizabeth Goldman, Michael Herz, Saurabh Vishnubhakat

2024 Event Invitations

The Floersheimer Center for Constitutional Democracy invites you to the SCOTUS Term Preview & Retrospective, as part of the Cardozo School of Law’s Constitution Day program. Join Professors Wilfred Codrington, Haiyun Damon-Feng, Elizabeth Goldman, Michael Herz, and Saurabh Vishnubhakat as they discuss recent Supreme Court decisions and preview the upcoming term.

The Chronic Growing Problem: Environmental And Social Justice Concerns With Indoor Cannabis Grows, Gina S. Warren

Cardozo Law Review

The rapid legalization of recreational marijuana across states has created environmental and social justice issues, particularly with indoor cultivation. Despite its federal illegality, twenty-four states and various territories have legalized marijuana, igniting a surge in indoor cultivation that bears significant environmental and social consequences. Indoor cultivation facilities require massive energy inputs, resulting in grid strain, pollution, and an increase in greenhouse gas emissions. Moreover, the placement of these facilities often occurs in historically marginalized low-income communities, furthering environmental injustice and social harms, as these areas are disproportionately affected by the pollutants emitted from the cultivation processes, such as molds, bacteria, …

The Death Of The Gid Exclusion: Williams V. Kincaid Revitalizes The Ada For Trans Litigants, Alexandra Newman

Cardozo Law Review

Kesha Williams is a transgender woman with gender dysphoria who spent six months incarcerated in the Fairfax County Adult Detention Center in Virginia. When Williams first entered the facility, she was assigned to women’s housing and given the uniforms typically provided to female inmates. However, upon learning that Williams had not undergone transfeminine bottom surgery, prison deputies stripped Williams of her female undergarments and transferred her to the men’s side of the facility. There, Williams was harassed by other inmates, misgendered by prison deputies, and delayed in receiving medical treatment for her gender dysphoria. Following her release, Williams asserted several …

Power For The People: Recognizing The Constitutional Right To Vote For President, Charlie Martel

Cardozo Law Review

On January 6, 2021, a mob attacked the United States Capitol to overthrow the certification of the legitimately elected president and install the election loser, Donald Trump. Before this, there was another coup attempt. Trump and his team pressured state legislators and officials not to certify legitimately elected presidential electors, and to instead certify fake electors for Trump. This was based on the theory that the Constitution grants states “plenary power” to select presidential electors, even if this means cancelling citizen elections or rejecting their outcome. The coups failed—this time.

There should be no next time. The Supreme Court should …

Brief For Amici Curiae New York State Legal Scholars In Support Of Defendants-Respondents, Wilfred U. Codrington Iii, Michael Pollack

Amicus Briefs

This document presents a legal brief submitted by amici curiae in a case involving prominent Republican plaintiffs challenging the constitutionality of New York State's absentee voting provisions. The brief emphasizes the fundamental importance of voting as enshrined in the New York Constitution, particularly Article II, which guarantees suffrage to all qualified citizens. It argues that the Constitution's democracy principle supports broad access to the electoral process, countering the plaintiffs' claims that the absentee voting provisions are overly restrictive. The amici curiae assert that the legislative authority to expand voting access is consistent with the overarching democratic commitments of the Constitution. …

Race Against The Clock: A Comparative Analysis Of New York State's And Germany's Ambitious High-Voltage Transmission Sitting Laws And What New York Can Adopt From The German Model, Andrew Leahy

Cardozo International & Comparative Law Review

The note argues that New York should adopt elements of Germany's centralized regulatory model to streamline the approval and construction of high-voltage transmission lines, which are critical for meeting renewable energy goals. While both New York and Germany face similar challenges in expanding their grids, Germany's centralized approach, including federal oversight and coordinated planning, has proven more efficient. The note critiques New York's decentralized and uncoordinated process, suggesting that adopting Germany's methods could help New York meet its ambitious renewable energy targets and reduce reliance on peaker plants.

Digital Barter Taxes: A Legal Defense, Young Ran (Christine) Kim, Darien Shanske

Articles

This short essay, aimed at state legislators, defends digital barter taxes from the most common legal objections.

Populists In Power And Constitutional Counternarratives, Giuseppe Martinico

Cardozo Law Review

In this essay I shall comment on A Pluralist Theory of Constitutional Justice by Professor Michel Rosenfeld, by developing three points that have to do with the legacy of Carl Schmitt’s constitutional theory. The first is about the progressive weaponization of constitutional law that characterizes what I call the populist constitutional counternarrative. In particular, I will explore how populists in power use constitutional law. The second point has to do with the notion of constituent power in a context of comprehensive pluralism. The third point is about the relationship between constitutionalism and political theology. The intuition behind this is that …

The Birth Of The Civil Death Penalty And The Expansion Of Forced Adoptions: Reassessing The Concept Of Termination Of Parental Rights In Light Of Its History, Purposes, And Current Efficacy, Chris Gottlieb

Cardozo Law Review

The legal construct of termination of parental rights—the act of permanently severing the legal relationship between parent and child—is deeply embedded in contemporary American child welfare law. Indeed, since the passage of the Adoption and Safe Families Act of 1997 (ASFA), it can fairly be said that our entire foster care system is structured around the threat of terminating parental rights. From the day a child is taken into state-supervised care, the clock begins ticking toward the possible permanent destruction of the parent-child relationship. In response to the financial incentives in ASFA that reward states for terminating parents’ rights, states …

Enhancing Public Access To Agency Law, Bernard Bell, Cary Coglianese, Michael Herz, Margaret Kwoka, Orly Lobel

Articles

A just, democratic society governed by the rule of law requires that the law be available, not hidden. This principle extends to legal materials produced by administrative agencies, all of which should be made widely accessible to the public. Federal agencies in the United States do disclose online many legal documents—sometimes voluntarily, sometimes in compliance with statutory requirements. But the scope and consistency of these disclosures leaves considerable room for improvement. After conducting a year-long study for the Administrative Conference of the United States, we identified seventeen possible statutory amendments that would improve proactive online disclosure of agency legal materials. …

1l Final Review Sessions, Cardozo Asian Pacific American Law Students Association, Cardozo Office Of Student Services & Advising

2023–2024 Flyers

Con Law - April 8, 2024

Property - April 10, 2024

Contracts - April 15, 2024

Criminal Law - April 17, 2024

The State Of 2nd Amendment Litigation: A Conversation With Everytown Law On U.S. V. Rahimi, Cardozo Public Interest Law Student Association, Cardozo American Constitution Society (Acs)

2023–2024 Flyers

No abstract provided.

Legislating Courts, Michael C. Pollack

Articles

No abstract provided.

The Future Of “History And Tradition”: The First Amendment Implication Of Bruen, The Floersheimer Center For Constitutional Democracy

2023–2024 Flyers

No abstract provided.

The 2024 Cardozo Colloquium On Global And Constitutional Theory, Benjamin N. Cardozo School Of Law

2024 Event Invitations

The US Supreme Court is currently experiencing a significant decrease in public approval, as are several courts in many other parts of the world, such as the Israel Supreme Court and top courts in various Eastern European countries. At the same time, in certain other parts of the world, such as Western Europe, constitutional courts persist as well integrated and are widely perceived as trustworthy guarantors of workable checks and balances. The Colloquium will explore what accounts for these differences and whether the various crises concerning judicial review arise from similar or different types of circumstances. To what extent are …

The 2024 Cardozo Colloquium On Global And Constitutional Theory Presents: Linda Greenhouse On The Roberts Court, Benjamin N. Cardozo School Of Law

2024 Event Invitations

Join Linda Greenhouse, Senior Research Scholar in Law at Yale Law School, to discuss the exceptional trajectory of the Roberts Court. Greenhouse is also a Pulitzer Prize-winning reporter who has covered the United States Supreme Court for nearly three decades for The New York Times.

Prepared Testimony To The Committee On Homeland Security United States House Of Representatives, Deborah Pearlstein

Testimony

Sham Impeachment “Hearing” #2

Issue: Border Security & Immigration

Dobbs And Democracy, Melissa Murray, Katherine A. Shaw

Articles

In Dobbs v. Jackson Women’s Health Organization, Justice Alito justified the decision to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey with an appeal to democracy. He insisted that it was “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This invocation of democracy had undeniable rhetorical power: it allowed the Dobbs majority to lay waste to decades’ worth of precedent, while rebutting charges of judicial imperialism and purporting to restore the people’s voices. This Article interrogates Dobbs’s claim to vindicate principles of democracy, examining both the intellectual pedigree …

Conceptual Schemes/Frameworks And Their Relation To Law: A New Argument For Separation Of Church And State, Vincent J. Samar

Cardozo Journal of Equal Rights & Social Justice

A central question that arises when interpreting the U.S. Constitution is which theory of interpretation is the best? In his recent book, "How to Interpret the Constitution," Cass Sunstein reviews various theories of constitutional interpretation currently in vogue and then offers what he believes would be the best approach going forward. In this Article, I want to take up a more basic question presupposed by the very idea of a theory of interpretation. That is, whether it is even possible to arrive at more than a provisional understanding of what would be the best interpretation in any given area of …