Pension Forfeiture and Prosecutorial Policy-Making
March 14, 2014
The U.S. Attorney’s Office for the Southern District of New York recently announced the adoption of new policies designed to forfeit the pensions of New York state and local officials convicted of federal corruption charges. In this article, Gary Stein analyzes the SDNY’s new pension forfeiture policies in light of the long-established doctrine that the power to prescribe the punishments for federal crimes belongs exclusively to Congress. No federal statute expressly authorizes pension forfeiture as a punishment for corrupt state and local officials, and general federal forfeiture law — the principal legal basis underlying the SDNY’s new policies — does not appear to authorize forfeiture either, as pension benefits cannot, at least in the majority of cases, logically be viewed as the “proceeds” of a corrupt official’s wrongdoing. Tracing the development of pension forfeiture legislation at the federal and New York levels, the article also argues that the SDNY’s approach conflicts with congressional intent and with principles of federalism. Further, since general forfeiture law is mandatory rather than discretionary, the SDNY approach is incapable of balancing competing interests in a manner that legislation is able to accomplish. For all these reasons, the article concludes, the SDNY’s new pension forfeiture policies exceed the limits of permissible policy-making by federal prosecutors.
Irreparable Harm to Whom? Parsing Utah’s Odd Argument
March 10, 2014
In Kitchen v. Herbert, a federal judge in Utah struck down Amendment 3 to the state’s constitution, which prohibited same-sex couples from marrying. Utah rushed to stay the decision pending appeal, which would prevent same-sex couples from marrying in the interim. Although both the District Court and Court of Appeals denied the state’s request, the Supreme Court granted the stay—but not until nearly 1,300 same-sex couples had already married in Utah. In arguing in favor of a stay, Utah posited that same-sex couples would suffer an irreparable harm in the form of “dignitary losses” if they were to marry and then, when the District Court’s decision was eventually overturned on appeal, have their marriage taken away from them. This article critiques the curious logic behind the state’s argument, as well as the state’s earnestness in its concern for dignitary losses considering its decision, after the Supreme Court granted the stay, not to recognize the legal validity of the 1,300 same-sex marriages that had taken place. In the recent wave of similar challenges to same-sex marriage prohibitions taking place in many states around the country, and due to the subsequent stay requests that will surely follow, the author hopes to provide guidance to both judges and the legal community as to how to approach “dignitary loss” arguments made by states.
“People who aren’t really reporters at all, who have no professional qualifications”: Defining a Journalist and Deciding Who May Claim The Privileges
Jonathan Peters & Edson C. Tandoc, Jr.
October 8, 2013
In July, a federal appeals court ruled that a New York Times reporter must testify in the criminal trial of a former CIA officer accused of improperly disclosing classified information. In May, the DOJ confirmed it had obtained months of phone records of AP reporters and a “portfolio of information” about a Fox News correspondent. Criticism from the press and public was swift, and in response, the administration attempted to reassure the press that it would not be conscripted into the service of law enforcement. President Obama urged Congress to reintroduce a federal shield bill that would allow reporters to refuse to testify about their sources. The bill’s fate is uncertain, and it has generated a debate about the definition of a journalist. Innovations in technology have created new channels for people to communicate, complicating the effort to define a journalist. This article explicates the concept of journalist, drawing from the scholarly, legal, and industry domains. The authors hope to contribute to the ongoing debate about who may claim the legal privileges for journalists.
Substantial, Purposeful, or Material? Defining the Contours of Support for Terrorism
Paul John DeSena
July 12, 2013
Section 1021 of the 2012 National Defense Authorization Act controversially allows individuals who provide “substantial support” to terrorist organizations to be detained “until the end of the hostilities.” The Court of Appeals for the Second Circuit is currently considering a case involving its interpretation. In this Comment, Paul John DeSena analyzes the interpretation of related terms, such as “material support,” and argues that the Second Circuit should follow the lead of a prior district court decision, Gherebi v. Obama, and cabin the meaning of “substantial support” to those who directly participate in or are members of terrorist organizations.
A Response to Professors Adler and Siegel Addressing the Constitutionality of the REINS Act
Sally Katzen with Julian Ginos
April 15, 2013
Professor Sally Katzen responds to Professors Adler and Siegel, both of whom claim that the proposed REINS Act would be upheld as constitutional. Professor Katzen casts doubt on this position by offering a competing interpretation of the Act and of executive power under existing Congressional delegations of regulatory authority. Particularly, the REINS Act impermissibly interferes with the President’s duty to “take care that the laws be faithfully executed” by resurrecting a form of the legislative veto rejected by the Supreme Court in INS v. Chadha.
Responding to: Jonathan Adler, Placing “REINS” on Regulations: Assessing the Proposed REINS Act, 16 N.Y.U. J. Legis. & Pub. Pol’y 1 (2013) and Jonathan Siegel, The REINS Act and the Struggle to Control Agency Rulemaking, 16 N.Y.U. J. Legis. & Pub. Pol’y 131 (2013).
The Two-Year Law Degree: Undesirable But Perhaps Unavoidable
April 3, 2013
Professor Gillers responds to Professor Estreicher’s proposal for a two-year law degree that will qualify a graduate to take the bar examination. Professor Gillers states that while two years of law school may be sufficient to practice many types of legal work, it will put two-year graduates at a professional disadvantage. The lower knowledge base of two-year graduates will make them less attractive candidates in an already tight job market. Furthermore, even if New York allows a two-year degree to qualify for the bar exam, it will limit two-year graduates to practicing in New York only, as reciprocity from other states is not expected.
Responding to: Samuel Estreicher, The Roosevelt-Cardozo Way: The Case for Bar Eligibility After Two Years of Law School, 15 N.Y.U. J. Legis. & Pub. Pol’y 599 (2012).
Foreword: An Introduction to Quorum
Julia F. Bell and Britton A. Kovachevich
April 3, 2013
Quorum is cited as a consecutively paginated, annual volume: 2014 N.Y.U. J. Legis. & Pub. Pol’y Quorum 1.