Constitutional Law Commons^™

Die Deutsche Nationalversammlung Und Weimar: On The Creation Of Democracy In Weimar Germany, Jason Wendling

Honors Program: Senior Projects (Public)

This paper is a historical analysis of the creation of the Weimar Republic, as well as a political analysis of the Weimar Republic’s constitution. In reviewing both Weimar’s history as well as the constitution, I hope to inspire learners to look back to the Weimar Republic, and not focus primarily on the failures that led to the rise of the Nazi Regime, but rather celebrate the successes that the drafters of the constitution were able to achieve. I review the history of the 1918 November Revolution, the history and party programs of the three important parties of the Weimar Republic, …

Who Owns Data? Constitutional Division In Cyberspace, Dongsheng Zang

Articles

Privacy emerged as a concern as soon as the internet became commercial. In early 1995, Lawrence Lessig warned that the internet, though giving us extraordinary potential, was “not designed to protect individuals against this extraordinary potential for others to abuse.” The same technology can “destroy the very essence of what now defines individuality.” Lessig urged that “a constitutional balance will have to be drawn between these increasingly important interests in privacy, and the competing interest in collective security.” Lessig envisioned that creating property rights in data would help individuals by giving them control of their data. As utopian as property …

An Examination Of U.S. And U.K. Procedures Governing Sexual Misconduct Investigations In Universities, Marc Siegel

Cardozo International & Comparative Law Review

The note critiques the lack of a unified regulatory framework for addressing sexual misconduct in U.K. universities, contrasting it with the structured, albeit controversial, Title IX system in the U.S. It argues that the U.K.'s voluntary approach has led to inconsistent, unjust outcomes and advocates for the adoption of a comprehensive regulatory regime similar to Title IX to ensure fairness, accountability, and consistency in handling such cases.

The Court And The Private Plaintiff, Elizabeth Beske

Scholarly Articles in Law Reviews & Journals

Two seemingly irreconcilable story arcs have emerged from the Supreme Court over the past decade. First, the Court has definitively taken itself out of the business of creating private rights of action under statutes and the Constitution, decrying such moves as relics of an “ancient regime.” Thus, the Supreme Court has slammed the door on its own ability to craft rights of action under federal statutes and put Bivens, which recognized implied constitutional remedies, into an ever-smaller box. The Court has justified these moves as necessary to keep judges from overstepping their bounds and wading into the province of the …

Imperialist Immigration Reform, Cori Alonso-Yoder

Fordham Law Review

For decades, one of the most challenging domestic policy matters has been immigration reform. Dogged by controversial notions of what makes for a “desirable” immigrant and debates about enforcement and amnesty, elected officials have largely given up on achieving comprehensive, bipartisan immigration solutions. The lack of federal action has led to an outdated and impractical legal framework, with state and local lawmakers unable to step into the breach. Well over 100 years ago, the U.S. Supreme Court firmly stated that regulation of the U.S. immigration system is within the sole constitutional authority of the federal government.

Yet there is one …

Don't Pull The Trigger On New York's Concealed Carry Improvement Act: Addressing First And Second Amendment Concerns, Morgan Band

Fordham Law Review

Despite the increasing prevalence of mass shootings in the United States, the U.S. Supreme Court in New York State Rifle & Pistol Ass’n, Inc. v. Bruen struck down a 100-year-old New York statute that had restricted access to concealed carry permits. The statute had required applicants to demonstrate a “proper cause” for needing a concealed carry permit. But even if an applicant made the necessary showing, licensing officials retained discretion under the statute to decline to issue a permit. In striking down the statute, the Court distinguished between “may-issue” jurisdictions, such as New York, which give licensing officials discretion in …

License & (Gender) Registration, Please: A First Amendment Argument Against Compelled Driver's License Gender Markers, Lexi Meyer

Fordham Law Review

For as long as the United States has issued drivers’ licenses, licenses have indicated the holder’s gender in one form or another. Because drivers’ licenses are issued at the state level, states retain the authority to regulate the procedures for amending them. In some states, regulations include requirements that a transgender person undergo gender confirmation surgery before they can amend the gender marker on their driver’s license. Because many transgender people neither desire nor can afford gender confirmation surgery, these laws effectively preclude such people from obtaining gender-accurate identification. In doing so, these laws implicate multiple constitutional rights.

Lower courts …

The Supreme Court Review Act: Fast-Tracking The Interbranch Dialogue And Destabilizing The Filibuster, Aaron-Andrew P. Bruhl

Faculty Publications

This Essay presents an analysis of the Supreme Court Review Act, a bill that was recently introduced in Congress. The Act would create a streamlined legislative process for bills responding to new Supreme Court decisions that interpret federal statutes or restrict constitutional rights. By facilitating legislative responses to controversial cases, the Act would promote the “dialogue” that commentators and the courts themselves have used as a model for interbranch relations. The Essay describes how the proposed Supreme Court Review Act would work, discusses some of its benefits, addresses its constitutionality, and raises some questions about its implementation and effects.

The Article Iii "Party" And The Originalist Case Against Corporate Diversity Jurisdiction, Mark Moller, Lawrence B. Solum

William & Mary Law Review

Federal courts control an outsize share of big-ticket corporate litigation. And that control rests, to a significant degree, on the Supreme Court’s extension of Article III’s Diversity of Citizenship Clause to corporations. Yet, critics have questioned the constitutionality of corporate diversity jurisdiction from the beginning.

In this Article and a previous one, we develop the first sustained critique of corporate diversity jurisdiction.

Our previous article demonstrated that corporations are not “citizens” given the original meaning of that word. But we noted this finding alone doesn’t sink general corporate diversity jurisdiction. The ranks of corporate shareholders include many undoubted “citizens.” And …

Confidentiality Over Privacy, Stacey A. Tovino

Cardozo Law Review

No abstract provided.

The Due Process Owed To Noncitizens: Standardizing The Burden In Sec. 1226(A) Bond Hearings With The Help Of Hernandez-Lara And Velasco Lopez, Sharon Shaji

Cardozo Law Review

No abstract provided.

Is Corporate Law Nonpartisan?, Ofer Eldar, Gabriel Rauterberg

Faculty Scholarship

Only rarely does the United States Supreme Court hear a case with fundamental implications for corporate law. In Carney v. Adams, however, the Supreme Court had the opportunity to address whether the State of Delaware’s requirement of partisan balance for its judiciary violates the First Amendment. Although the Court disposed of the case on other grounds, Justice Sotomayor acknowledged that the issue “will likely be raised again.” The stakes are high because most large businesses are incorporated in Delaware and thus are governed by its corporate law. Former Delaware governors and chief justices lined up to defend the state’s …

The Article Iii "Party" And The Originalist Case Against Corporate Diversity Jurisdiction, Mark Moller, Lawrence B. Solum

Faculty Scholarship

Federal courts control an outsize share of big-ticket corporate litigation. And that control rests, to a significant degree, on the Supreme Court’s extension of Article III’s Diversity of Citizenship Clause to corporations. Yet, critics have questioned the constitutionality of corporate diversity jurisdiction from the beginning.

In this Article and a previous one, we develop the first sustained critique of corporate diversity jurisdiction.

Our previous article demonstrated that corporations are not “citizens” given the original meaning of that word. But we noted this finding alone doesn’t sink general corporate diversity jurisdiction. The ranks of corporate shareholders include many undoubted “citizens.” And …

Dual Sovereignty In The U.S. Territories, Emmanuel Hiram Arnaud

Articles

This Essay examines the emergence and application of the “ultimate source” test and sheds light on the dual sovereign doctrine’s patently colonial framework, particularly highlighting the paternalistic relationship it has produced between federal and territorial prosecutorial authorities.

Pandemics And The Protection Of Privacy And Personal Information: Issues Concerning The Restriction On The Right To Privacy In Emergencies, Fumio Shimpo

Japanese Society and Culture

This article focuses on issues which need to be considered in aiming to ensure both the effectiveness of infectious disease control measures and the protection of the right to privacy from the following perspectives.

(1) Issues regarding the restriction of the right to privacy in emergency situations, including (i) the types of measures taken in emergency situations and issues with respect to the restriction of the right to privacy in emergency situations, (ii) the normalisation, constancy and fixation of exceptional measures in emergency situations, (iii) dual-use and use for purposes different from those originally intended, (iv) acquisition of secondary information …

Brief Of Federal Courts Professor Derek T. Muller As Amicus Curiae In Support Of Petitioners, Christopher G. Michel, Rachel G. Frank, Isabel R. Peraza, Katherine Schroeder, Derek T. Muller

Court Briefs

No. 22-824
The Synod of Bishops of the Russian Orthodox Church Outside of Russia v. Alexander Belya

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit

From the Introduction and Summary of Argument

This case presents an exceptionally important question at the intersection of civil procedure and constitutional law. Under 28 U.S.C. § 1291, federal courts of appeals have jurisdiction over appeals from “final decisions of the district courts.” That provision, which “descends from the Judiciary Act of 1789,” has long been understood to confer appellate jurisdiction over more than just …

The Constitution As A Source Of Remedial Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Equity’s Constitutional Source, Owen W. Gallogly argues that Article III is the source of a constitutional default rule for equitable remedies—specifically, that Article III’s vesting of the “judicial Power” “in Equity” empowers federal courts to afford the remedies traditionally afforded by the English Court of Chancery at the time of the Founding, and to develop such remedies in an incremental fashion. This Response questions the current plausibility of locating such a default rule in Article III, since remedies having their source in Article III would be available in federal but not state courts and would apply to state-law …

Kepastian Hukum Penyelesaian Sengketa Dengan Klausula Arbitrase Di Mahkamah Agung, Devianty Fitri, Almaududi Almaududi

Jurnal Hukum & Pembangunan

Settling disputes in court can be a time-consuming and exhausting process. Therefore, the availability of arbitration as an Alternative Dispute Resolution (ADR) is one of the efforts to achieve faster solutions and dispute resolutions. However, in some cases in the Supreme Court, there are disputes that contain arbitration clauses in the agreement, yet they are still submitted to court and decided by the court. This research aims to examine the disappearing in-depth study of legal certainty in dispute resolution with arbitration clauses by analyzing several verdicts. The method used in this study is normative juridical with a legislative and case …

Paradigma Model Legislasi Dan Tujuan Penguatan Sistem Presidensial Republik Indonesia, Aldi Yoga Hartama

Jurnal Hukum & Pembangunan

One of the five basic agreements in the constitutional amendment is to strengthen the presidential system. However, the legislative practices that have been running so far tend to move away from the character of legislation in the presidential system itself. This paper tries to suggest the dynamics of the legislative model that runs after the 2002 constitutional amendment. At the same time, it will discuss how the legislative process should be carried out in a presidential system of government and its comparison with the legislative process in a parliamentary system of government.

Pandangan John Finnis Mengenai Hukum Yang Tidak Adil, Petrus Ckl Bello

Jurnal Hukum & Pembangunan

Contemporary natural law thinker John Finnis in his book Natural Law and Natural Right published in 1980 differentiates between legal obligations and moral obligations. According to Finnis, legal obligations cannot change, while moral obligations can change, in the sense that when it comes to unjust laws, only the moral obligation to obey the unjust law is extinguished, while the legal obligation to obey the unjust law remains and is binding. For Finnis, natural law theory does not focus on the view that the law is wrong or against moral principles that cannot be called law (lex injusta non est lex), …

Peraturan Kraton Yogyakarta Yang Tak Lagi Jadul (Suatu Analisis Terhadap Pembaharuan Teknik, Format Dan Muatan Dawuh Dalem Di Kraton Yogyakarta), Rozi Beni

Jurnal Hukum & Pembangunan

In the midst of the rapid development of the conception and implementation of a modern and democratic government structure, the Ngayogyakarta Hadiningrat Sultanate was able to preserve its customary laws, including regarding governance and government structure in a monarchical system regulated in the Kraton's statutory regulations. Customary law, such as Dawuh Dalem, is often considered ancient, out of date, only important for legal historians, and other skeptical views. However, in reality, customary law is still alive with various reforms. In this normative research, we discuss the renewal of the internal statutory regulations of the Yogyakarta Palace, called Dawuh Dalem. The …

Efektivitas Pelaksanaan Pemberian Pendidikan Formal Bagi Anak-Anak Pengungsi Luar Negeri Di Kota Batam, Rina Shahriyani Shahrullah, Heru Susetyo, Lu Sudirman, Rendi Sahputra

Jurnal Hukum & Pembangunan

The entire responsibility for all children in Indonesia lies with the government, and it extends to all children in Indonesia, not only those who are Indonesian nationals but also includes children who are refugees from foreign countries. One of the fundamental rights regulated by the laws and the Convention on the Rights of the Child ratified by Indonesia is the right to receive appropriate education (formal, non-formal, and informal education). This research aims to analyze the implementation of formal education fulfillment for refugee children in Batam City, especially those accommodated at Hotel Kolekta. Therefore, the research questions are as follows: …

Pelestarian Ekosistem: Urgensi Pengaturan Sanksi Pemulihan Bagi Spesies Dalam Kejahatan Terhadap Satwa Liar, Britha Mahanani Dian Utami

Jurnal Hukum & Pembangunan

Law Number 5 of 1990 concerning the Conservation of Natural Resources and Ecosystems has never been revised while the development of science and technology has influenced a paradigm shift in the protection of biodiversity. The proposal of Commission IV of the House of Representatives to propose a revision of Law Number 5 of 1990 was approved in the Plenary Session as a 2021 Priority Bill. However, in the draft Biodiversity Conservation Bill, recovery is still oriented towards the recovery of the area, while not yet regulating recovery for species that are victims of crime. This paper argues that the regulation …

Strategi Burden & Salvage: Formula Yuridik Untuk Terapi Doktrinal, Phobia Pajak Karbon, Herman Bakir

Jurnal Hukum & Pembangunan

This text introduces the burden & salvage doctrine, a formula providing an alternative path to develop a solid lex specialis within the realm of Pigouvian tax. It promotes a type of “juridical therapy” for the Indonesian government to overcome their excessive “fear” of carbon taxes, which had led them to surrender and revoke the program until the end of President Joko Widodo’s tenure Method: Data was gathered online using the World Wide Web’s search features to their fullest potential. Findings: Carbon tax should ideally be established by the legislation of the lex specialis type, characterized by the burden and salvage …

Evolusi Hukum Cybercrime Dalam Perkembangan Hukum Dalam Dunia Digital, Isra Ruddin, Subhan Zein Sgn

Jurnal Hukum & Pembangunan

This research explores the evolution of cybercrime law in the face of developments in information and communication technology (ICT) over the last few decades. The development of digital technology has provided countless benefits, but has also given rise to increasingly complex threats in the form of cyberattacks and cybercrime. The aim of this research is to investigate how cybercrime law has evolved in response to changes in ICT and how these developments have influenced the effectiveness of cybercrime law enforcement. This research also analyzes the role of cross-border cooperation in cybercrime law enforcement and how developments in international law have …

Clifford Awarded Ostrom Fellowship, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

A 2L from Indianapolis has been awarded a prestigious graduate fellowship from The Ostrom Workshop at Indiana University.

Nick Clifford will begin a one-year Ostrom Fellowship in Fall 2023.

Justices Search For A Clear Rule For Confessions In Joint Trials, Jeffrey Bellin

Popular Media

No abstract provided.

Misuse Of Originalism: The Legal Landscape Of The 2nd Amendment Post-Bruen, American Constitution Society, Cardozo Public Interest Law Students Association

2022–2023 Flyers

No abstract provided.

The 22nd International Advocate For Peace Award, Cardozo Journal Of Conflict Resolution

2023 Event Invitations

The Cardozo Journal of Conflict Resolution presents the International Advocate for Peace (IAP) Award to an individual, organization or group that is exemplary in the field of conflict resolution.

This year, the Journal presents the IAP Award to Gloria Steinem, who has dedicated her life to standing up to power and seeking ways to bring about peaceful change. Ms. Steinem has fought tirelessly in support of marginalized people everywhere, campaigning for the Equal Rights Amendment to the United States Constitution, protesting the South African apartheid system, and more recently working alongside Cardozo Law students at the Lenape Center to address …

A Government Of Laws And Not Of Men: Why Justice Brandeis Was Right To Assume Congress Can Restrain The President's Removal Power, Danielle Rosenblum

Fordham Law Voting Rights and Democracy Forum

Since the Founding, the extent of the president’s power to remove executive officials from office remains unsettled. While the Appointments Clause in Article II, Section 2 empowers Congress to participate in the hiring of executive officials, the United States Constitution’s text is silent on whether Congress can limit the president’s ability to fire such employees. The debate on the proper scope of the president’s removal power is significant because it serves as a proxy for a larger constitutional question: whether constraints on presidential power advance or sit in tension with democracy. This Article argues that Justice Brandeis was right to …