Fordham Law Review最新文献

{"title":"Taking Steel Seizure Seriously: The Iran Nuclear Agreement and the Separation of Powers","authors":"S. Estreicher, S. Menashi","doi":"10.2139/SSRN.2903574","DOIUrl":"https://doi.org/10.2139/SSRN.2903574","url":null,"abstract":"This article examines the constitutional validity of President Obama's decision, as part of his 2015 agreement with Iran, effectively to repeal 17 different sanctions laws for the 15-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 and by aggregating individual waiver provisions in the sanctions laws into an-across-the-board waiver of sanctions. We argue that the commitments made by the President in the Iran agreement violate a fundamental separation-of-powers limit on executive power—what we term \"the Steel Seizure principle,\" after the Youngstown Steel Seizure Case. As the Supreme Court reaffirmed in the Steel Seizure Case, the President does not have lawmaking power even where national-security and foreign-relations concerns are at stake. A vast literature has grown around the Steel Seizure Case, especially the influential concurring opinion by Justice Robert Jackson. Yet relatively little attention has been paid to the majority view of the Justices that President Truman’s seizure order was unlawful not because it contravened any express statutory prohibition but because it flouted the congressional \"plan\" for addressing the particular policy issue. This central aspect of the Steel Seizure Case highlights what is particularly problematic about President Obama's decision to aggregate authorities in the sanctions laws and to commit the United States to an across-the-board waiver of nuclear-related sanctions pursuant to his agreement with Iran. The President treated the waiver provisions as an invitation to end the congressionally prescribed sanctions regime for addressing Iran's nuclear weapons program and to replace it with his own non-sanctions regime for addressing the same issue. Yet the President lacks the unilateral power to overturn Congress's prescribed policy and to replace it with his own.The President is both an agent and, particularly in the foreign relations area, can be viewed as a co-principal with Congress. The Steel Seizure principle highlights the limits of the co-principal conception of the President. Once Congress has developed a legislative framework for a subject matter, that framework occupies the field; the President's role becomes one of a responsible agent. In the Iran sanctions laws, Congress provided bounded waiver authority, acting responsibly to allow limited executive discretion rather than requiring the President to seek new legislation each time flexibility was needed. It did not, however, invite the President to override the sanctions framework altogether, as occurred in connection with the Iran nuclear agreement. An emergent literature in administrative law has praised Congress's delegation of waiver authority to the executive branch as providing needed flexibility and other policy benefits. Yet that literature recognizes that the President's exercise of waiver authority must be","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45208127","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Terrorist Incitement on the Internet","authors":"A. Tsesis","doi":"10.1017/9781108539463.008","DOIUrl":"https://doi.org/10.1017/9781108539463.008","url":null,"abstract":"","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2017-11-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/9781108539463.008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49458109","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"American Equal Protection and Global Convergence","authors":"H. Lau, Hillary Li","doi":"10.2139/SSRN.3065274","DOIUrl":"https://doi.org/10.2139/SSRN.3065274","url":null,"abstract":"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 line that it previously drew between facial discrimination and disparate impact. Second, the Court has begun to collapse its previously established tiered standards for reviewing discrimination. These two trajectories combine to produce a third trajectory of change: by blurring the distinction between facial discrimination and disparate impact, and by collapsing tiered review, the United States’ equal protection doctrine is converging with equality jurisprudence from peer jurisdictions abroad. \u0000After describing these changes, we argue that the collective wisdom of foreign jurisdictions should serve as persuasive authority encouraging the United States to continue along its current trajectories of doctrinal reform. We contend that foreign jurisdictions have served as laboratories of doctrinal innovation from which the United States could learn.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2017-11-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41976455","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Why Limits on Contributions to Super PACS Should Survive Citizens United","authors":"A. Alschuler, L. Tribe, Norman L. Eisen, Richard W. Painter","doi":"10.2139/SSRN.3015462","DOIUrl":"https://doi.org/10.2139/SSRN.3015462","url":null,"abstract":"Soon after the Supreme Court decided Citizens United v. FEC, the D.C. Circuit held all limits on contributions to super PACs unconstitutional. Its decision in SpeechNow.org v. FEC created a regime in which contributions to candidates are limited but in which contributions to less responsible groups urging votes for these candidates are unbounded. No legislator voted for this system of campaign financing, and the judgment that the Constitution requires it is astonishing. Forty-two years ago, Buckley v. Valeo held that Congress could limit contributions to candidates because these contributions are corrupting or create an appearance of corruption. According to the D.C. Circuit, however, Congress may not prohibit multi-million-dollar contributions to satellite campaigns because these contributions do not create even an appearance of corruption. \u0000The D.C. Circuit said that a single sentence of the Citizens United opinion compelled its result. It wrote, “In light of the Court’s holding as a matter of law that independent expenditures do not corrupt or create the appearance of corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption.” \u0000This Article contends that, contrary to the D.C. Circuit’s reasoning, contributions to super PACs can corrupt even when expenditures by these groups do not. Moreover, the statement that the D.C. Circuit took as its premise was dictum, and the Supreme Court did not mean this statement to be taken in the way the D.C. Circuit took it. \u0000The Supreme Court’s long-standing distinction between contribution limits and expenditure limits does not rest on the untenable proposition that candidates cannot be corrupted by funds paid to and spent on their behalf by others. Rather, Buckley noted five differences between contributions and expenditures. A review of these differences makes clear that contributions to super PACs cannot be distinguished from the contributions to candidates whose limitation the Court upheld. \u0000The ultimate question posed by Buckley is whether super PAC contributions create a sufficient appearance of corruption to justify their limitation. This Article reviews the statements of candidates of both parties in the 2016 presidential election, the views of Washington insiders, and public opinion polls. It shows that SpeechNow has sharpened class divisions and helped to tear America apart. \u0000he Justice Department did not seek Supreme Court review of the SpeechNow decision. In a statement that belongs on a historic list of wrong predictions, Attorney General Holder explained that the decision would “affect only a small subset of federally regulated contributions.” Although eight years have passed since SpeechNow, the Supreme Court has not decided whether the Constitution guarantees the right to give unlimited funds to super PACs. A final section of this Article describes the efforts of members of Congress and candidates for Congress to bring ","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2017-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49246173","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Terrorizing Advocacy and the First Amendment: Free Expression and the Fallacy of Mutual Exclusivity","authors":"Martin H. Redish, M. J. Fisher","doi":"10.2139/SSRN.3001025","DOIUrl":"https://doi.org/10.2139/SSRN.3001025","url":null,"abstract":"Recent concern about modern terrorists’ attempts to induce ideologically-driven violence has given rise to a First Amendment dilemma. Some conclude that to preserve our free speech tradition, unlawful advocacy must be protected absent the imminent danger of harm. Others argue that traditional First Amendment protection must be suspended in the specific context of terrorist speech to prevent potentially violent catastrophes. We seek to resolve this dilemma by recognizing a new hybrid category called “terrorizing advocacy.” This is a type of traditionally protected public unlawful advocacy that simultaneously exhibits the unprotected pathologies of true threats. When a speaker urges a willing listener to commit violence against an intended victim who is an intended recipient of the speaker’s advocacy, the speech constitutes a blend of protected persuasive and unprotected coercive speech. We propose a new multi-factor test designed to balance these competing elements in a manner that protects unlawful advocacy when appropriate but suppresses inherently coercive threats where they dominate the expression. In this manner we have recognized an inherent duality of two types of criminal speech when to date courts and scholars have implicitly assumed the mutual exclusivity of unlawful advocacy and true threats doctrine.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2017-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48281405","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Lawyers’ Ethics Beyond the Vanishing Trial: Unrepresented Claimants, De Facto Aggregations, Arbitration Mandates. And Privatized Processes","authors":"J. Resnik","doi":"10.2139/SSRN.2919396","DOIUrl":"https://doi.org/10.2139/SSRN.2919396","url":null,"abstract":"Trials are a vivid variable in the world of litigation, as reflected in the title of this colloquium, Civil Litigation Ethics at a Time of Vanishing Trials. In this Introduction, I argue that the challenges for lawyers loom larger than those reflected in the declining rate of trials. More facets of contemporary dispute resolution need to be engaged when contemplating the topics and roles that legal ethics must address in the decades to come. \u0000Millions of litigants appear in civil cases without attorneys. When clients are represented, they are often grouped by judges and lawyers into aggregates, created through a variety of methods, both formal and informal. Trial rates are down; one in one hundred federal civil cases goes to trial. Less in focus is that case filings are also flattening. \u0000To the extent people do go to court, they are often greeted by mandates to resolve disputes privately. Courts are now venues in which public adjudication has taken a back seat to alternative dispute resolution, which generally occurs outside the public purview. In short, vanishing trials are but a piece of the privatization and relocation of process. Dispute diffusion captures the eclipse of adjudication in courts as the central paradigm of government-based dispute resolution. \u0000Can and will lawyers impose regulation on themselves in response? Ought regulations be placed instead in statutes and court rules? And what shape should such provisions take, with what potential impact on the norms of lawyering and the body politic? This colloquium offers a series of essays responding to aspects of these new and daunting challenges.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2017-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45411161","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Mens Rea and Methamphetamine: High Time for a Modern Doctrine Acknowledging the Neuroscience of Addiction.","authors":"Meredith Cusick","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>In American criminal law, actus non facit reum, nisi mens sit rea, \"an act does not make one guilty, without a guilty mind.\" Both actus reus and mens rea are required to justify criminal liability. The Model Penal Code's (MPC) section on culpability has been especially influential on mens rea analysis. An issue of increasing importance in this realm arises when an offensive act is committed while the actor is under the influence of drugs. Several legal doctrines address the effect of intoxication on mental state, including the MPC, limiting or eliminating its relevance to the mens rea analysis. Yet these doctrines do not differentiate between intoxication and addiction. Neuroscience research reveals that drug addiction results in catastrophic damage to the brain resulting in cognitive and behavioral deficits. Methamphetamine addiction is of particular interest to criminal law because it causes extensive neural destruction and is associated with impulsive behavior, violent crime, and psychosis. Furthermore, research has revealed important distinctions between the effects of acute intoxication and addiction. These findings have implications for the broader doctrine of mens rea and, specifically, the intoxication doctrines. This Note argues for the adoption of an addiction doctrine that acknowledges the effect of addiction on mens rea that is distinct from doctrines of intoxication.</p>","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2017-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"34887048","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Big Budget Productions with Limited Release: Video Retention Issues with Body-Worn Cameras","authors":"Bradley X. Barbour","doi":"10.2139/SSRN.2913796","DOIUrl":"https://doi.org/10.2139/SSRN.2913796","url":null,"abstract":"Since 2013, there has been growing support for police body-worn cameras in the wake of several high profile and controversial encounters between citizens and law enforcement. The federal government has justified budgetary measures funding body-worn camera programs as a means to facilitate trust between law enforcement and the public through the objectivity of video footage — a sentiment supported by many lawmakers advocating for implementation of this technology. \u0000These policy goals, however, are stymied by a deficiency of police department policies and state statutes regulating the retention of footage, and close adherence of states to the precedent of Arizona v. Youngblood, which holds that the destruction of potentially exculpatory evidence by the government not committed in “bad faith” does not violate due process. This Note analyzes the current landscape of body-worn camera video retention, and argues for reform at the judicial and statutory level on how footage is preserved. It argues that courts should interpret Youngblood as allowing judges to impose the sanction of “missing evidence instructions” — even in the absence of “bad faith” — as a remedy against the destruction of body-worn camera footage that occurs because of police policies and practices that limit protection of such footage. This Note also argues that states should move quickly to create statutes regulating the time periods in which body-worn camera footage must be retained, while also balancing the logistical burden that widespread video storage imposes on police departments.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2017-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2913796","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45958093","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Third-Party and Independent Presidential Candidates: The Need for a Runoff Mechanism","authors":"E. Foley","doi":"10.2139/SSRN.2795124","DOIUrl":"https://doi.org/10.2139/SSRN.2795124","url":null,"abstract":"This paper reviews the history of presidential elections, those in the nineteenth as well as the twentieth centuries, make the case that third-party candidates have determined which major-party candidate won the election far more frequently than is usually recognized. It is not just Ralph Nader in 2000, but many other instances, most especially the three-way split between Wilson, Roosevelt, and Taft in 1912. Based on this history, the paper argues that America needs some sort of runoff mechanism for presidential elections, either a second-round system like that employed by France and most other democracies with presidential (rather than parliamentary) governments, or Instant Runoff Voting. The paper then explains why and how, in the absence of a constitutional amendment, it would be feasible for each state to make its own independent determination to use Instant Runoff Voting pursuant to its authority under Article Two of the U.S. Constitution to determine the method of appointing the state's presidential electors.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2016-10-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2795124","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68330187","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"'Natural Born' Disputes in the 2016 Presidential Election","authors":"Derek T. Muller","doi":"10.2139/SSRN.2828329","DOIUrl":"https://doi.org/10.2139/SSRN.2828329","url":null,"abstract":"The 2016 presidential election brought forth new disputes concerning the definition of a \"natural born citizen.\" The most significant challenges surrounded the eligibility of Senator Ted Cruz, born in Canada to a Cuban father and an American mother. Administrative challenges and litigation in court revealed deficiencies in the procedures for handling such disputes. This paper exhaustively examines these challenges and identifies three significant complications arising out of these disputes.First, agencies tasked with administering elections and reviewing challenges to candidate eligibility often construed their own jurisdiction broadly, but good reasons exist for construing such jurisdiction narrowly given ample political and legal opportunities to review candidates' qualifications. while litigation in federal court usually led to swift dismissal on a procedural ground, challenges in state proceedings sometimes led to broad — and incorrect — pronouncements about the power to scrutinize the eligibility of presidential candidates. Third, decision makers repeatedly mused about how useful it would be if the Supreme Court offered a clear definition of a \"natural born citizen.\" This suggests that executive and judicial actors are uncomfortable with non-federal judicial resolution of a constitutional claim like this one.Finally, this Article offers a recommendation. After three consecutive presidential election cycles with time-consuming and costly litigation, it may well be time to amend the Constitution and abolish the natural born citizen requirement. Amending the Constitution is admittedly no simple task. But perhaps an uncontroversial amendment would find broad support in order to avoid delays and legal challenges seen in recent presidential primaries and elections.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2016-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68362628","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}