Fordham Law Review

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

List of Papers (Total 3,019)

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 ...

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 ...

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, at ...

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 Iran ...

"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 her ...

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 ...

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 ...

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 ...

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 ...

Terrorizing Advocacy and the First Amendment: Free Expression and the Fallacy of Mutual Exclusivity

Traditional free speech doctrine is inadequate to account for modern terrorist speech. Unprotected threats and substantially protected lawful advocacy are not mutually exclusive. This Article proposes recognizing a new hybrid category of speech called “terrorizing advocacy.” This is a type of traditionally protected public advocacy of unlawful conduct that simultaneously exhibits ...

Government Speech and the War on Terror

This Article examines how the government’s speech in the War on Terror can threaten free speech, equal protection, and due process values. It focuses primarily on the constitutional harms threatened by the government’s speech itself (what some call a form of “soft law”), rather than on situations in which the government’s speech may be evidence of a constitutionally impermissible ...

Free Speech and National Security Bootstraps

It is troubling that courts treat administrative designations—specifically, both FTO determinations and information classification—as bootstraps by which to yank speech restrictions from the clutches of probing judicial scrutiny. This Article builds on existing scholarly critiques to identify and examine the common thread of national security bootstrapping that runs through both ...

Free Speech and the Confluence of National Security and Internet Exceptionalism

In this Article, I argue that, notwithstanding these contemporary developments, the Court got it mostly right in Brandenburg. Or, I want to at least suggest that it is premature to reconstruct the Brandenburg test to address perceived changes in our global environment. For the most part, Brandenburg has succeeded in mediating the balance between protecting political or ideological ...

Terrorist Incitement on the Internet

I organized this symposium to advance understanding of how terrorist communications drive and influence social, political, religious, civil, literary, and artistic conduct. Viewing terrorist speech through wide prisms of law, culture, and contemporary media can provide lawmakers, adjudicators, and administrators a better understanding of how to contain and prevent the exploitation ...

Adjudication in the Age of Disagreement

In the time I have here with you today I would like to offer the beginnings of an answer. It does not lie in the distance between the court’s traditions and Manton’s conduct. That would be too easy. At base, I think the answer lies in something far more subtle and interesting: the relationship between acentral tradition of the Second Circuit and one of the great questions we face ...

“I Am Undocumented and a New Yorker”: Affirmative City Citizenship and New York City’s IDNYC Program

The power to confer legal citizenship status is possessed solely by the federal government. Yet the courts and legal theorists have demonstrated that citizenship encompasses factors beyond legal status, including rights, inclusion, and political participation. As a result, even legal citizens can face barriers to citizenship, broadly understood, due to factors including their race, ...

Affirming Firm Sanctions: The Authority to Sanction Law Firms Under 28 U.S.C. § 1927

A circuit split exists as to whether 28 U.S.C. § 1927 allows for an award of sanctions against nonattorneys or nonrepresentatives. Five federal courts of appeals—the Second, Third, Eighth, Eleventh, and the District of Columbia Circuits—hold that, to further the purpose of 28 U.S.C. § 1927, courts have the authority to sanction a law firm for the conduct of its attorneys, in ...

The Total Takings Myth

For almost thirty-five years, the U.S. Supreme Court has attempted to carve out a total takings doctrine within its regulatory takings jurisprudence. Most regulatory takings claims are evaluated under the “ad hoc” threefactor test first articulated in Penn Central Transportation Co. v. City of New York. Exceedingly few of these claims are successful. But the Court has identified ...