Law and Politics Commons^™

Reorganizing The Administrative State: Executive Ambition And Legislative Constraint, Jordan Graber

Fordham Law Review

Beginning in the 1930s, Congress enacted a series of statutes granting presidents the authority to initiate reorganizations of the administrative state. Under these reorganization statutes, the president determined any necessary changes in agency organization and submitted a reorganization proposal to Congress, which could approve or reject the plan. Over the next fifty years, the president and Congress worked cooperatively to promote the effective and efficient functioning of the administrative state.

Despite the successful reorganization initiatives undertaken pursuant to these statutes, Congress has not conferred reorganization authority on any president in the last four decades. As a result, the organization of …

The Unitary Executive And The Federal Reserve, Lev Menand

Fordham Law Review

The U.S. Supreme Court may soon embrace an interpretation of the U.S. Constitution that would significantly expand the power of the president over federal administrators and invalidate key provisions in dozens of federal statutes. A critical question is whether this interpretation—known as the unitary executive theory (UET)—would also render unconstitutional central bank independence (CBI), an arrangement where a country’s monetary policy is formulated by a semiautonomous body of experts insulated from partisan political pressure. Several justices have suggested that it would not, and a growing scholarly literature has proposed ways for the Court to distinguish the country’s central banking apparatus …

Public Utility Law As Anti-Oligarchy Regulation, Ganesh Sitaraman

Fordham Law Review

No abstract provided.

Why Capitalism Needs Democracy And Democracy Needs Capitalism, Luigi Zingales

Fordham Law Review

No abstract provided.

Ai, Antitrust, And The Marketplace Of Ideas, Maurice E. Stucke

Fordham Law Review

No abstract provided.

The Revival Of Section 5: A Return To The Ftc’S Roots In A Time Of Democratic Crisis, Shaoul Sussman

Fordham Law Review

No abstract provided.

Winging It: Convergence, Convivencia, And Belonging Of Latina Lawyers, Verónica C. Gonzales

Fordham Law Review

No abstract provided.

Law Firm Silence, Katrina Lee

Fordham Law Review

No abstract provided.

"In Better Times": The Basis Of Representation And The Forgotten History Of The Fourteenth Amendment, Jessica I. Gorovitz

Fordham Law Review

Over the past several years, the U.S. Supreme Court has incorporated history into the analysis of unenumerated individual rights, like abortion, and enumerated ones, like the right to keep and bear arms. But it has not incorporated history into its approach to individual rights claims of racial discrimination under the Equal Protection Clause, a methodological gap the Court has left unexplained. Rather, it has held that the purpose of the Fourteenth Amendment is to prevent racial classifications, largely citing its own precedent, eschewing the Amendment’s history. This approach conflicts with section 2 of the Voting Rights Act, which requires states …

At The Crossroads: Private Litigation And The Fate Of Sections 2 And 208 Of The Voting Rights Act, Aviva D. Kohn

Fordham Law Review

For six decades, private plaintiffs have stood at the center of Voting Rights Act (VRA) enforcement, bringing an overwhelming majority of the suits challenging discriminatory voting practices nationwide. Most federal courts have allowed private plaintiffs to sue for relief under the VRA. However, in 2023 and 2025, the U.S. Court of Appeals for the Eighth Circuit broke from this pattern, holding that neither section 2 nor section 208 of the VRA permits private litigants to sue for relief. The Eighth Circuit’s decisions rest on a narrow reading of congressional intent, a rigid application of Alexander v. Sandovaland Gonzaga University …

All The King’S Lawyers, Rebecca Aviel

Fordham Law Review

No abstract provided.

Vacancies Filled By Voters’ Voices: A Call For Open Special Elections With Ranked Choice Voting In New York, Fordham Law School Rule Of Law Clinic, Dani D'Annunzio, Dawn Edelman, David Zwick

Rule of Law Clinic

New York’s special election system for filling vacancies in the U.S. House of Representatives and the State Legislature excludes voters from the candidate selection process. Instead of voters selecting nominees, political party leaders designate their parties’ respective candidates. In this report, the Fordham Law School Rule of Law Clinic recommends reforming this system by implementing open special elections using ranked choice voting. All candidates who meet petition signature requirements, regardless of party affiliation, would compete in a single election. This reform would improve participation, representation, and accountability without sacrificing efficiency.

Separation-Of-Powers Lochnerism, Andrea Scoseria Katz

Fordham Law Review

One hundred and twenty years ago, in 1905, the U.S. Supreme Court rendered one of the single most notorious opinions in history, striking down a New York labor law for violating the right to contract—a right found nowhere in the text of the Constitution. Though the era of Lochner v. New York is well past us, the judicial impulses that gave rise to the case remain. With a new champion in the Roberts Court, Lochnerism is alive and well, deployed in a new context to redefine the relationships between the president, Congress, federal agencies, and the courts.

Bringing together two …

Equality In Sentencing Mitigation, John B. Meixner Jr.

Fordham Law Review

As guilty-plea rates have skyrocketed, sentencing has become an increasingly important part of criminal procedure. With judges often wielding significant discretion at sentencing, a key question is how judges interpret mitigation: evidence about the defendant’s background or the case that supports a reduced sentence. Past empirical research—both experimental and in real-world cases—indicates that mitigation plays an important role in determining sentences. But does mitigation help everyone, or does it reinforce inequalities that frequently infect other areas of criminal procedure? Do low-income Black defendants with appointed counsel benefit from sentencing mitigation as much as wealthier White defendants with private attorneys? Do …

Red, White-, And Blue-Collar Crime: Federal Sentencing Practices Among White-Collar And Blue-Collar Offenders, Henna Judge

Fordham Law Review

Under the current federal sentencing regime, district courts exercise immense amounts of discretion when sentencing. Though strict adherence to the U.S. Sentencing Commission Guidelines (the “Guidelines”) was once mandatory, courts must now use these Guidelines as an advisory starting point and make a series of fact-specific determinations when sentencing a defendant. Though judicial discretion in this realm aids in preventing undue reliance on Guidelines-range recommendations that can lack nuance, it also invites bias.

In recent years, scholars and courts alike have called attention to a potential disparity in the way blue-collar and white-collar offenders are sentenced. This Note examines relevant …

Oligarchy, State, And Cryptopia, Julie E. Cohen

Fordham Law Review

Theoretical accounts of power in networked digital environments typically do not give systematic attention to the phenomenon of oligarchy—to extreme concentrations of material wealth deployed to obtain and protect durable personal advantage. The biggest technology platform companies are dominated to a singular extent by a small group of very powerful and extremely wealthy men who have played uniquely influential roles in structuring technological development in particular ways that align with their personal beliefs and who now wield unprecedented informational, sociotechnical, and political power. Developing an account of oligarchy and, more specifically, of tech oligarchy within contemporary political economy therefore has …

Competition, Comity, And Confusion: Reconciling The Ftaia’S Import Exclusion With Its Direct Effects Provision, Elliot Lam

Fordham Law Review

The debate surrounding the Sherman Act’s extraterritorial scope represents a tension between two competing objectives: protecting the U.S. economy from foreign anticompetitive conduct on one hand and respecting the sovereign authority of other nation-states on the other. Applying U.S. law abroad risks undermining sovereign authority by regulating foreign economies, though such regulation appears necessary in some cases to protect U.S. consumers.

Congress’s attempt to square these objectives through enacting the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) failed to settle the matter. The statute left courts with two new questions: how to distinguish “import” from “nonimport” commerce, and how …

The Roberts Court Paradox, John C. P. Goldberg, Benjamin C. Zipursky

Fordham Law Review

As perhaps the most conservative Supreme Court of the past century, the Roberts Court regularly touts its commitment to traditional ideals, including the rule of law. Yet Trump v. United States seems ready to place presidents entirely or largely above the law by granting them absolute or near absolute immunity from criminal prosecutions for official conduct. And Trump is not a one-off: from judicial recusal to qualified immunity to due process decisions, the Court frequently seems to display indifference to values of accountability and impartiality that have long been thought integral to the rule of law. What is going on? …

“Shipping” Away The Captive Audience Meeting, Nathan Kakalec

Fordham Law Review

On November 14, 2024, the National Labor Relations Board (NLRB) overturned seventy-six years of labor law precedent by banning captive audience meetings in Amazon.com Services LLC. Captive audience meetings, mandatory meetings where employers discuss unionization with their employees, were a powerful anti-union tool used by employers to coerce their employees into rejecting unionization. The NLRB argues that captive audience meetings are inconsistent with § 7 and § 8 of the National Labor Relations Act (NLRA). Employers reject the NLRB’s assertion and contend that banning captive audience meetings infringes on their First Amendment right to communicate their views on unionization. …

Conservative Legal Advocacy Organizations And Constitutional Change In The Roberts Court, Ann Southworth

Fordham Law Review

No abstract provided.

Democratic Self-Defense, Claudia E. Haupt

Fordham Law Review

Four U.S. states recently took diametrically opposed approaches to address fundamental problems that their respective state legislatures identified in the online speech environment. While controversial legislation in Florida and Texas sought to limit the ability of platforms to remove users or content, New York and California passed laws ultimately aimed at curbing hate speech and other forms of abuse on platforms. In isolation, each of these legislative approaches raises significant First Amendment concerns, and all are likely insufficient to address the problems posed by online speech. But what if the impetus behind these laws were combined into a unified regulatory …

Alternatives To Delaware? Evaluating Corporate Law In Nevada, Texas, And Wyoming, Joseph Landau, Bailey Swartz, Anthony Rickey, Robert Ragazzo, Benjamin Edwards, George A. Mocsary

Fordham Journal of Corporate & Financial Law

No abstract provided.

Make America Fake Again?: Banning Deepfakes Of Federal Candidates In Political Advertisements Under The First Amendment, Sophie Loewenstein

Fordham Law Review

In recent years, artificial intelligence (AI) technology has developed rapidly. Accompanying this advancement in sophistication and accessibility are various societal benefits and risks. For example, political campaigns and political action committees have begun to use AI in advertisements to generate deepfakes of opposing candidates to influence voters. Deepfakes of political candidates interfere with voters’ ability to discern falsity from reality and make informed decisions at the ballot box. As a result, these deepfakes pose a threat to the integrity of elections and the existence of democracy. Despite the dangers of deepfakes, regulating false political speech raises significant First Amendment questions. …

From Poll Tests To The Purcell Doctrine: Merrill V. Milligan And The Precarious Preservation Of Voting Rights, Charis Franklin

Fordham Law Review

The Voting Rights Act of 1965 (“the Voting Rights Act”) is one of the primary vehicles by which plaintiffs receive injunctive relief ahead of elections. More specifically, § 2 of the Voting Rights Act allows plaintiffs to challenge gerrymandered maps before they are used in contentious elections. However, Justice Kavanaugh’s reframing of the Purcell doctrine in Merrill v. Milligan weakened § 2’s ability to interrupt the use of these maps. This Note discusses how Justice Kavanaugh’s interpretation of the Purcell doctrine recenters the doctrine on bureaucratic inconvenience rather than voter enfranchisement, restricting voters’ access to relief prior to elections. Furthermore, …

Spies, Trolls, And Bots: Combating Foreign Election Interference In The Marketplace Of Ideas, Nahal Kazemi

Fordham Law Voting Rights and Democracy Forum

Foreign disinformation operations on social media pose a significant and rapidly evolving risk, particularly when aimed at American elections. We must urgently and effectively address this form of election interference. This Article examines potential responses to those risks, through a review of the unique characteristics, both practical and legal, of political advertising on social media platforms. This Article analyzes proposed legislative responses to foreign disinformation, noting that no single proposed law to date adequately addresses the threats and challenges posed by foreign disinformation. This Article considers the election law landscape in which the proposed laws would operate. It evaluates the …

Fraudulent Vote Dilution, Jason Marisam

Fordham Law Voting Rights and Democracy Forum

In recent years, the Republican Party and conservative groups have brought lawsuits that advance a novel type of voting claim, which this Article calls fraudulent vote dilution. This claim asserts that an election rule is unconstitutional because it makes it too easy to cast fraudulent ballots that, when tabulated, will dilute the strength of valid and honest ballots. With the 2024 election nearing, the Republican Party may again test fraudulent vote dilution claims in court, as it seeks injunctions to make liberal election rules stricter in ways that make it harder for Democratic voters to cast ballots. This Article advances …

Petition For Redress Or Telephonic Harassment? When Calling The Government Is A Crime, Daniel Caballero

Fordham Law Voting Rights and Democracy Forum

The telephone has enabled significant enhancements in communication. However, it has also brought with it abuses. One of these is telephonic harassment. The states and the federal government have passed laws that criminalize this inappropriate and psychologically harmful use of telephones. This Article assumes that these laws are constitutional when the caller harasses an ordinary citizen. But the First Amendment protects the right to petition the government for redress of grievances. So, what happens when the caller is both petitioning the government and intending to harass a government official? Does the First Amendment protect telephonic harassment of a public official? …

Aligning The Stars: Institutional Convergence As Social Change, Raymond H. Brescia

Fordham Law Review

In a democracy, in which the legal and constitutional systems should reflect popular will and individual and collective self-determination are the engines through which those systems are realized, what are the means by which individuals, organizations, and social movements might bring about meaningful and sustainable social change that makes that society more just, more inclusive, and more equitable? A common understanding of how social change happens, and who can bring about that change, is represented in an oft-quoted phrase, attributed to Margaret Mead: “Never doubt that a small group of committed people can change the world: Indeed, it is the …

Expecting Medication Surveillance, Jennifer D. Oliva

Fordham Law Review

In response to federal financial incentives and mandates, all fifty states, the District of Columbia, and three U.S. territories administer electronic prescription drug monitoring programs (PDMPs). Federal and state policymakers justified the implementation and enhancement of ubiquitous prescription drug monitoring by contending that expansive state drug surveillance was a necessary weapon in the war against the American drug overdose crisis. As is often the case with tools designed for law enforcement surveillance, however, PDMPs have proven susceptible to mission creep. Although pioneer PDMPs were paper-based systems that limited their surveillance to a narrow class of heavily regulated controlled substances, modern …

Tele-Induction Of Buprenorphine For Opioid Use Disorder: Regulatory Flux And Public Confusion, Stacey A. Tovino

Fordham Law Review

No abstract provided.