Fordham Law Review

http://ir.lawnet.fordham.edu/flr/

List of Papers (Total 3,962)

Fifty Years After the Twenty-Fifth Amendment: Recommendations for Improving the Presidential Succession System

This Report begins with an overview of the presidential succession system, particularly the Twenty-Fifth Amendment provisions. The remaining Parts describe the Clinic’s recommendations. The first Part of the Clinic recommendations discusses executive branch contingency planning and outlines two steps the White House can take to prepare for presidential inabilities. First, the...

Letting the Electrics Slide: A Constitutional Challenge to State Dealer-Franchise Laws Prohibiting Direct-to-Consumer Car Sales

Tesla Motors has a business model for its U.S. sales unlike that of all other car manufacturers: Tesla sells cars directly to consumers rather than through a system of independently owned dealers. Most car manufacturers choose not to sell cars this way because most states have dealer laws that ban direct-to-consumer sales. To use this business model, Tesla has had to win narrow...

Challenging Statutory Accommodations for Religiously Affiliated Daycares: An Application of the Third-Party Harm Doctrine

Daycare facilities are subject to a host of regulations that govern matters from basic health and safety requirements, to caregiver training, to maximum caregiver-to-child ratios. In sixteen states, however, legislation exempts religiously affiliated daycares from many of these regulations, with six states extending particularly broad exemptions. Supporters of the exemptions have...

A Vote for Clarity: Establishing a Federal Test for Intervention in Election-Related Disputes

Increasingly, state and federal courts are asked to resolve election-related disputes, as candidates are more likely than ever before to challenge some aspect of the administration of an election in court. Election-related litigation puts judges in the unfavorable position of kingmaker, forcing the court, not the people, to determine the winner of an election. When the court...

A Voice for One, or a Voice for the People: Balancing Prosecutorial Speech Protections with Community trust

Prosecutors, as representatives of the public in the criminal justice system, are the sole advocates for “the People” in a criminal case. Thus, prosecutors are expected to maintain a particular level of integrity that would ensure a fair and just representation of the People. Despite this expectation, the wide discretionary authority prosecutors hold makes it virtually impossible...

Back to the Drawing Board: Revisiting the Supreme Court's Stance on Partisan Gerrymandering

In the United States, state legislatures have drawn voting districts to achieve desired election results for hundreds of years. Dating back to the James Madison presidency, various legislatures and iterations of the U.S. Supreme Court have wrestled with the legal and constitutional issues that stem from the practice known as “gerrymandering.” While courts and legislatures have...

American Equal Protection and Global Convergence

Commentators have noted that equal protection doctrine is in a state of transformation. The nature of that transformation, however, is poorly understood. This Article offers a clearer view of the change underway. This Article is the first to reveal and synthesize three major trajectories along which the U.S. Supreme Court has begun to move. First, the Court has begun to blur the...

Taking Steel Seizure Seriously: The Iran Nuclear Agreement and the Separation of Powers

This Article examines the constitutional validity of President Obama’s decision, as part of his 2015 agreement with Iran, effectively to repeal seventeen different sanctions provisions for the fifteen-year life of the agreement. Although Congress had legislated extensively in this area, the President effected this change by entering into a “nonbinding political agreement” with...

"A Dr. Strangelove Situation": Nuclear Anxiety, Presidential Fallibility, and the Twenty-Fifth Amendment

This Article is a revisionist history of the ratification of the Twenty-Fifth Amendment, which establishes procedures for remedying a vice presidential vacancy and for addressing presidential inability. During the Cold War, questions of presidential succession and the transfer of power in the case of inability were on the public’s mind and, in 1963, these questions became more...

The Bipartisan Bayh Amendment: Republican Contributions to the Twenty-Fifth Amendment

It is appropriate that Senator Birch Bayh has been widely recognized as the author and person most responsible for the Twenty-Fifth Amendment. His work was indispensable, and he was helped by other Democrats and nonpartisan actors including the American Bar Association and John D. Feerick, among others. Yet the Amendment was also the product of bipartisan cooperation. Important...

The Twenty-Fifth Amendment and the Establishment of Medical Impairment Panels: Are the Two Safely Compatible?

The Twenty-Fifth Amendment was added to the Constitution, after years of effort, in 1967, to resolve instances of debilitating illnesses of all kinds. The Amendment’s four sections deal with: (1) vice presidential succession to the presidency; (2) replacement of the Vice President when that office becomes vacant; (3) voluntary withdrawal of the President from office and his or...

The Twenty-Fifth Amendment: A Personal Remembrance

When I left law school, I did not realize that I would have a unique opportunity to apply the learning I received on the Constitution. It all started with a newspaper item I saw describing a constitutional problem involving the disability of a President. I mentioned the subject to my college classmate, Louis Viola, who said he had a file of newspaper clippings that dealt with the...

What to Do If Simultaneous Presidential and Vice Presidential Inability Stuck Today

Dual incapacity is one of three major inability scenarios involving the Vice President that threatens the continuity of the executive branch. The current state of the law in this area, unfortunately, leaves only imperfect options for policymakers. This Article proposes that, in the event of a dual inability, the Speaker, the President pro tempore of the Senate, and the Cabinet...

Dedication to Senator Birch E. Bayh

Former U.S. Senator Birch Bayh of Indiana has been honored many times for his outstanding career in public service. Fordham University School of Law and the Fordham Law Review have been beneficiaries of his selfless service of others.

Foreword: Continuity in the Presidency: Gaps and Solutions

This symposium issue featuring a report and articles on the Twenty-Fifth Amendment and the presidential succession system is perfectly timed. Its release comes in the final month of the year that marked the fiftieth anniversary of the Twenty-Fifth Amendment’s ratification and at a moment of unprecedented public discussion of the Amendment. Yet, in Fordham Law School’s unique...

The Internet as Marketplace of Madness— and a Terrorist’s Best Friend

The panel I was assigned to, for this distinguished gathering of scholars at Fordham Law School, where I had previously been a professor for twentythree years, was given the name, “Caution Against Overreaching.” Overreaching and the caution it occasions, in this case, refer to the First Amendment, a uniquely American absolutist, legalistic obsession. For many who fixate on such...

Terrorists Are Always Muslim but Never White: At the Intersection of Critical Race Theory and Propaganda

When you hear the word “terrorist,” who do you picture? Chances are, it is not a white person. In the United States, two common though false narratives about terrorists who attack America abound. We see them on television, in the movies, on the news, and, currently, in the Trump administration. The first is that “terrorists are always (brown) Muslims.” The second is that “white...

Deference to the Plaintiff in Forum Non Conveniens Cases

This Note analyzes several cases in an effort to understand why, based on each case’s unique circumstances, the plaintiff’s choice of forum received a particular level of deference. This Note then produces a synthesized list of factors that alter the level of deference a plaintiff’s choice of forum receives under forum non conveniens analysis. An understanding of these factors...

Wild Westworld: Section 230 of the CDA and Social Networks’ Use of Machine-Learning Algorithms

This Note argues that Facebook’s services—specifically the personalization of content through machine-learning algorithms—constitute the “development” of content and as such do not qualify for § 230 immunity. This Note analyzes the evolution of § 230 jurisprudence to help inform the development of a revised framework. This framework is guided by congressional and public policy...

Terror on Your Timeline: Criminalizing Terrorist Incitement on Social Media Through Doctrinal Shift

The United States faces a barrage of threats from terrorist organizations on a daily basis. The government takes some steps to prevent these threats from coming to fruition, but not much is being done proactively. Any person can log into a social media account to preach hate and incite violence against the United States and its citizenry, and sometimes these words result in...

Reevaluating the Computer Fraud and Abuse Act: Amending the Statute to Explicitly Address the Cloud

Under the current interpretations of authorization, instances where an individual harmlessly accesses the cloud data of another user could be classified as hacking and a violation of this federal statute. As such, this Note demonstrates that all of the current interpretations of the CFAA are too broad because they could result in this nonsensical outcome. This Note accordingly...

“You Must Construct Additional Pylons”: Building a Better Framework for Esports Governance

The popularity of “esports,” also known as “electronic sports” or competitive video gaming, has exploded in recent years and captured the attention of cord-cutting millennials—often to the detriment of sports such as basketball, football, baseball, and hockey. In the United States, the commercial dominance of such traditional sports stems from decades of regulatory support...

Why Civil and Criminal Procedure Are So Different: A Forgotten History

Much has been written about the origins of civil procedure. Yet little is known about the origins of criminal procedure, even though it governs how millions of cases in federal and state courts are litigated each year. This Article’s examination of criminal procedure’s origin story questions the prevailing notion that civil and criminal procedure require different treatment. The...

Algorithmic Jim Crow

This Article contends that current immigration- and security-related vetting protocols risk promulgating an algorithmically driven form of Jim Crow. Under the “separate but equal” discrimination of a historic Jim Crow regime, state laws required mandatory separation and discrimination on the front end, while purportedly establishing equality on the back end. In contrast, an...

Social Media Accountability for Terrorist Propaganda

Terrorist organizations have found social media websites to be invaluable for disseminating ideology, recruiting terrorists, and planning operations. National and international leaders have repeatedly pointed out the dangers terrorists pose to ordinary people and state institutions. In the United States, the federal Communications Decency Act’s § 230 provides social networking...