Constitutional Law Commons^™

The Equity Docket, Thomas P. Schmidt, Kellen R. Funk

Faculty Scholarship

The Supreme Court has two sides. On its ordinary docket, the Court answers questions of law after briefing and oral argument. On its extraordinary docket, the Court fields applications from litigants asking it to equitably set the status of a new law or executive action while a lawsuit is pending. Only a decade ago, the equity side was an obscure backwater of Supreme Court practice; today it is where the Court confronts some of the most contested and consequential public law disputes. This aspect of the Court’s work has taken on various labels — the shadow docket, emergency docket, interim …

Chevron Usa Inc. V. Plaquemines Parish: Did The Removal Clarification Act Of 2011 Abrogate The “Causal Nexus” Requirement For Removal Pursuant To 28 U.S.C. § 1442—The Federal Officers Removal Statute?, E. Farish Percy

Cardozo Law Review

On June 16, 2025, the Supreme Court granted certiorari in Chevron USA, Inc. v. Plaquemines Parish to address whether the causal-nexus requirement survived the Removal Clarification Act of 2011’s amendment to 28 U.S.C. § 1442, the federal officer removal statute (FORS). The consolidated cases before the court include some of the more than forty civil cases that were brought by Louisiana parishes against various oil companies seeking to hold them responsible for the loss and deterioration of Louisiana’s coastal wetlands caused by the oil companies’ alleged violations of a Louisiana state permitting law. The cases were filed in 2013 and …

Territorial Inequality In A Warming World: The Icj’S Climate Opinion And The Future Of Self-Determination For Puerto Rico, Ashley Olita Nemeth

Cardozo Law Review

This Article examines how climate change and Puerto Rico’s territorial status operate as mutually reinforcing constraints on the archipelago’s right to self-determination. While Puerto Rico is highly exposed to intensifying climate impacts, its status as an unincorporated U.S. territory limits its ability to respond, resulting in federal control over fiscal policy, disaster recovery, and economic regulation, as well as exclusion from international climate finance mechanisms. Together, these structural limitations create a “climate-colonial feedback loop” in which environmental harm deepens political and economic dependency, further undermining adaptive capacity and autonomous development. The Article advances a two-part analysis. First, it demonstrates how …

Rewriting Downes V. Bidwell, Rose Cuison-Villazor

Cardozo Law Review

This Essay engages in a thought experiment. Employing the “rewriting” approach to Supreme Court cases recently used by legal scholars, this Essay provides an alternative version of the case considered most important among the Insular Cases—Downes v. Bidwell—where the Supreme Court adopted the territorial incorporation doctrine to hold that Puerto Rico is “foreign to the United States in a domestic sense.” To this day, Downes and the other Insular Cases serve as precedent for the proposition that the constitutional rights of U.S. territorial residents may be treated differently. But how would the Supreme Court have ruled if it employed Critical …

Empire By Gaslight, Christina D. Ponsa-Kraus

Cardozo Law Review

This Article argues that the constitutional law of U.S. colonialism as it applies to Puerto Rico should be understood as a form of collective gaslighting. The United States has been gaslighting Puerto Ricans for a century-and-a-quarter. By defining their constitutional status as a series of contradictions—starting with defining Puerto Rico as “foreign,” but only in a “domestic sense”—the federal government has caused Puerto Ricans to question their capacity to judge their own reality, thereby solidifying U.S. power over the island and undermining Puerto Rican resistance. Not only has the United States been gaslighting Puerto Ricans since annexation, but it has …

Doctrinal Interregnum In The Law Of United States Territories, Anthony M. Ciolli

Cardozo Law Review

The past decade witnessed an unprecedented renaissance in interest in the constitutional treatment of U.S. territories. Once derided as “a marginal debate about marginal places” or “‘a footnote within a footnote’ of an already niche field,” law journals published a staggering seventy articles between 2022 and 2023 focused on the law of the territories. The American Bar Association, whose founder Simeon Baldwin played an instrumental role in laying the foundations for the racist Insular Cases, and which itself actively discriminated against the territories for more than a century, passed numerous resolutions repudiating many of its past positions. Even Congress, after …

How Did We Get Here?, Michael J. Klarman

Fordham Law Review

President Donald J. Trump’s second administration has transgressed basic rules and norms of democracy and the rule of law in myriad ways. Below, I have laid out my own top ten list of transgressions, though others could surely have made out a good case for their own “favorites.” It would not be difficult to come up with a longer list, yet the purpose of my Levine Lecture is less to describe where we are than to explain how we got here. Following an enumeration of Trump administration transgressions, my lecture turns to two questions. First, why have traditional checks on …

The Role Of Reliance In Stare Decisis Doctrine, Rochelle Hestnas

Fordham Law Review

The U.S. Supreme Court’s recent treatment of reliance interests in stare decisis doctrine is in flux. The Court has overruled long-standing precedent such as Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey with scant analysis as to how reliance interests factor into stare decisis doctrine, despite continuing to name reliance as a factor that should be considered. Arguments for whether and how reliance interests deserve protection are inherently challenging because it cannot be the case that every precedent should stand. Using Dobbs v. Jackson Women’s Health Organization as a case study, this Note analyzes the Court’s claim …

The Alien Enemies Act Of 1798, Andrew Kent

Fordham Law Review

For the first time since World War II—and for the first time ever outside a formally declared war—an American president has invoked the Alien Enemies Act of 1798 to detain and deport noncitizens. Enacted during the Quasi-War with France, the Act’s operative language remains largely unchanged today. In March 2025, President Donald J. Trump proclaimed that members of the Venezuelan gang Tren de Aragua present in the United States are “alien enemies,” asserting that their activities, allegedly coordinated with President Nicolás Maduro’s government, constitute an “invasion” or “predatory incursion” within the meaning of the statute. Litigation challenging the invocation of …

News That Will Not Break: How The First And Fourth Amendments Can Jointly Protect The Press From Secret Government Intrusions Into Newsgathering, Julianna Margolin

Fordham Law Review

The modern constitutional and statutory framework permits the U.S. government to obtain journalists’ confidential source information and work product by secretly serving third-party service providers with subpoenas. While the First Amendment protects journalists and the Fourth Amendment guards against unreasonable government searches, new technology and the involvement of third parties complicate the balance between independent newsgathering and government access.

This Note examines reporters’ privilege jurisprudence stemming from the seminal U.S. Supreme Court decision Branzburg v. Hayes, which declined to recognize a categorical privilege. This Note also explores the subpoena power in the digital age as it converges with privacy …

Public Libraries, Limited Forums: Critiquing The Fifth Circuit’S Decision In Little V. Llano County, Spencer Emelia Petrick-Knoll

Fordham Law Review

Conflicts over the collections of public libraries have become increasingly frequent in the twenty-first century. In 2025, the Fifth Circuit held that library collections are government speech, thereby preventing patrons from challenging book removals. This Note critiques that decision and analyzes which First Amendment doctrine should govern the curation decisions of a public library. It examines the historical evolution of the public library and First Amendment doctrine to argue for classification of the public library’s collection as a limited public forum. This classification allows libraries to make reasonable, viewpoint-neutral decisions about retaining books in their collections while ensuring that viewpoint …

Lord Of All I Survey: United States As Imperial Trustee Of The Insular Territories, Dolace Mclean

Cardozo Law Review

This Article examines the language of colonization established in the seminal Supreme Court case of Downes v. Bidwell, which has resulted in America’s five existing overseas territories becoming long-term colonies of the United States. Downes was decided in 1901, and it set up the U.S. Supreme Court’s Insular Cases jurisprudence in which the territories are considered unincorporated into the United States and therefore are subject to Congress’s plenary authority through the Territorial Clause of the U.S. Constitution. The U.S. Supreme Court has had a few opportunities to overrule the Insular Cases but has declined to do so. This Article argues …

Weird Cops (Agency Police), Farhang Heydari

Vanderbilt Law School Faculty Publications

The police badge has migrated deep into the administrative state. Parks, schools, transit, housing, revenue, conservation, insurance, and gaming agencies now field tens of thousands of sworn “Agency Police”—often with full arrest powers despite missions far removed from general public safety. The footprint of these officers is significant and expanding, outpacing the growth of traditional law enforcement. Far from being limited to certain communities, Agency Police attract support across the political spectrum, from law-and-order policymakers to reformers. And yet, Agency Police are largely ignored in legal scholarship. The result is that a large slice of U.S. criminal enforcement is poorly …

Constitutional War Powers: Law & Strategy From The Revolution To Cyberconflict, Matthew C. Waxman

Faculty Books

Many believe that the power to start wars is the most important issue of constitutional war powers-and perhaps the most important issue of constitutional law altogether. Yet this fixation on the power to start wars obscures equally important questions. Who has the power to prepare for war, deter it, conduct it, decide its aims, or end it? Although many democracies wrestle with these constitutional questions, the United States stands apart in that no other written constitution has had to function over time across such dramatic transformations in national military power and radical swings in strategy for wielding it. To show …

Legalist Verses Realist Accounts Of United States V. Skrmetti, Neil S. Siegel

Faculty Scholarship

Although the Supreme Court is increasingly adopting an understanding of sex discrimination that is biologically focused and/or formalistic, this Article argues that the Court does not consistently apply that conception when doing so benefits transgender Americans. The Court’s conclusion in United States v. Skrmetti that no facial sex classification exists in Tennessee’s law banning gender-affirming care for transgender—but not cisgender—minors is irreconcilable with its conclusion five years earlier in Bostock v. Clayton County that Title VII’s prohibition on sex discrimination prohibits employers from firing employees just because they are transgender. Perhaps tellingly, only Justice Gorsuch, Bostock’s author, and Chief Justice …

Empire By Gaslight, Christina D. Ponsa-Kraus

Faculty Scholarship

This Article argues that the constitutional law of U.S. colonialism as it applies to Puerto Rico should be understood as a form of collective gaslighting. The United States has been gaslighting Puerto Ricans for a century-and-a-quarter. By defining their constitutional status as a series of contradictions — starting with defining Puerto Rico as “foreign,” but only in a “domestic sense” — the federal government has caused Puerto Ricans to question their capacity to judge their own reality, thereby solidifying U.S. power over the island and undermining Puerto Rican resistance.

Not only has the United States been gaslighting Puerto Ricans since …

Haruskan Debitur Mengatakan "Ya"? Menyoal Persetujuan Debitur Dalam Pengalihan Piutang Oleh Bank, Ihsanuddin Nursyie

Jurnal Hukum & Pembangunan

Financial Services Authority Regulation No. 26 of 2024 concerning the Expansion of Banking Business Activities requires the inclusion of an assignment of receivables clause in credit agreements and, where such a clause is not provided, requires the debtor’s consent before the assignment is carried out. This article analyzes the appropriateness of debtor consent as a protection instrument in the assignment of receivables through cessie. This research employs a doctrinal legal method by analyzing legislation, legal doctrines, and relevant literature. The findings indicate that debtor consent is not an inherent requirement of cessie, while the risks to debtor protection are more …

Gagasan Kode Etik Untuk Mantan Hakim Konstitusi: Perbandingan Dengan Federal Constitutional Court Jerman, Ryan Muthiara Wasti, Fitra Arsil, Aidul Fitriciada Azhari, Fatmawati Fatmawati

Jurnal Hukum & Pembangunan

One aspect of evaluating the Constitutional Court, which has been in existence since 2003, is the issue of ethical compliance. Although a code of ethics for constitutional judges currently exists, it applies only to sitting constitutional judges. In reality, however, many former constitutional judges frequently act as parties in cases heard by the Constitutional Court. The author found that there are still former Constitutional Court judges who have served as parties—either as principals or as legal representatives. Although there is no explicit prohibition, the involvement of former constitutional judges in case proceedings raises the potential for conflicts of interest and …

Mengenal Hcch 1970 Taking Evidence Abroad Convention, Priskila Pratita Penasthika

Jurnal Hukum & Pembangunan

Since mid-2023, the Supreme Court of the Republic of Indonesia has prioritised the strengthening and harmonisation of Indonesian civil procedural law to better align with international practices and standards. This initiative seeks to enhance the competitiveness of Indonesian judicial institutions in resolving commercial disputes through acceding to relevant private international law instruments. The HCCH 1970 Evidence Convention is among the key private international law instruments identified by the Supreme Court as a priority for Indonesia's accession. Nonetheless, academic literature in the Indonesian language on private international law instruments, particularly those issued by the Hague Conference on Private International Law (HCCH), …

Pengenaan Data Provisioning Fee Sistem Layanan Informasi Keuangan (Slik) Terhadap Lembaga Pengelola Informasi Perkreditan: Tinjauan Implikasi Prinsip Resiprokal Dan Aspek Keadilan Dalam Pungutan Otoritas Jasa Keuangan, Gumelar Taufik Yugo Rahmanto, Gunardi Sa Lumbantoruan, Henry Darmawan Hutagaol

Jurnal Hukum & Pembangunan

The dual system model in the implementation of credit information in Indonesia makes the relationship between the Financial Services Authority (OJK) as a public credit registry and the Credit Information Management Institution (LPIP) as a private credit bureau interesting to observe. In particular, the relationship is related to access to the Financial Information Service System (SLIK), which is one of the data sources used by LPIP in carrying out its activities. This study aims to examine the implication of the principle of reciprocity in the exchange of credit information through SLIK, as well as the fairness aspect of the imposition …