Digital Commons Network^™

Aligning The Stars: Institutional Convergence As Social Change, Raymond H. Brescia

Fordham Law Review

In a democracy, in which the legal and constitutional systems should reflect popular will and individual and collective self-determination are the engines through which those systems are realized, what are the means by which individuals, organizations, and social movements might bring about meaningful and sustainable social change that makes that society more just, more inclusive, and more equitable? A common understanding of how social change happens, and who can bring about that change, is represented in an oft-quoted phrase, attributed to Margaret Mead: “Never doubt that a small group of committed people can change the world: Indeed, it is the …

Avoiding Rejection: Studying When And Why State Courts Decline Certified Questions, Rachel Koehn Breland

Fordham Law Review

In December 2018, the U.S. Court of Appeals for the Sixth Circuit declared Tennessee’s punitive damages cap statute unconstitutional under the state’s constitution. Nearly five years later, however, Tennessee state courts are still reducing punitive damage awards under the statute—and they must, because the Tennessee Supreme Court has never addressed the statute’s constitutionality. See, the Sixth Circuit’s decision was merely an Erie guess as to how Tennessee courts would resolve the unsettled state law issue, and the Tennessee Supreme Court has since indicated that it would reach the opposite conclusion. But the Tennessee high court had already had an opportunity …

Rereading Pico And The Equal Protection Clause, Johany G. Dubon

Fordham Law Review

More than forty years ago, in Board of Education v. Pico, the U.S. Supreme Court considered the constitutionality of a school board’s decision to remove books from its libraries. However, the Court’s response was heavily fractured, garnering seven separate opinions. In the plurality opinion, three justices stated that the implicit corollary to a student’s First Amendment right to free speech is the right to receive information. Thus, the plurality announced that the relevant inquiry for reviewing a school’s library book removal actions is whether the school officials intended to deny students access to ideas with which the officials disagreed. …

Asymmetry Of Representation In Poor People’S Courts, Tonya L. Brito, Daniela Campos Ugaz

Fordham Law Review

This Essay examines the asymmetry of representation in poor people’s courts, specifically in child support enforcement cases involving the State. The asymmetry of representation is a common occurrence in various civil law fields, but it is notably prominent in family law, which has the highest number of unrepresented parties. As one of the authors has previously explained, we use “poor people’s courts” to refer to state civil courts that hear family, housing, administrative, and consumer cases. These courts present severe challenges to the civil justice system because they are characterized by a substantial volume of cases, socioeconomically disadvantaged litigants, and …

Ending Exemption 5 Expansion: Toward A Narrower Interpretation Of Foia’S Exemption For Inter- And Intra-Agency Memorandums, Ryan W. Miller

Fordham Law Review

The Freedom of Information Act (FOIA) creates a judicially enforceable right to access almost any record that a federal agency creates or obtains. Its crafters aimed to strike a careful balance in promoting disclosure of government records to increase transparency while still protecting the confidentiality of certain information. Although any person can request an agency record, FOIA’s nine exemptions allow agencies to withhold records if certain conditions are met. 5 U.S.C. § 552(b)(5) permits agencies to withhold “inter-agency or intra-agency memorandums or letters” that would normally be privileged in civil discovery. Through this exemption, Congress sought to prevent FOIA from …

No More Nixon: A Proposed Change To Rule 17(C) Of The Federal Rules Of Criminal Procedure, Norah Senftleber

Fordham Law Review

Today, the standard for subpoenas under Rule 17(c) of the Federal Rules of Criminal Procedure, espoused in United States v. Nixon, provides for limited, almost useless, pretrial subpoena power for criminal defendants. When subpoenaing a third party, a defendant must show (1) relevancy, (2) admissibility, and (3) specificity for documents that they have not yet gained access to. This narrow scope of Rule 17(c) has long engendered criticism from judges, scholars, and practitioners alike. Yet, Rule 17(c) has not been changed, either by judicial opinion or amendment.

Following years of criticism, the Advisory Committee on Criminal Rules (“Advisory Committee”) …

Extraordinary Punishment: Conditions Of Confinement And Compassionate Release, Meredith B. Esser

Fordham Law Review

People experience severe forms of harm while incarcerated, including medical neglect, prolonged solitary confinement, sexual and physical violence, and a host of other ills. But civil rights litigation under the Eighth Amendment—the most common vehicle through which people seek to redress these harms—presents significant practical and doctrinal barriers to incarcerated plaintiffs. Most notably, the Eighth Amendment’s “deliberate indifference” standard asks not whether a person has been harmed, but instead requires plaintiffs to demonstrate a criminally reckless mental state on the part of prison officials. Further, Eighth Amendment remedies are limited to damages or injunctions, which may not adequately redress a …

Community Responsive Public Defense, Alexis Hoag-Fordjour

Fordham Law Review

This colloquium asks us to consider how social change is influencing the legal profession and the legal profession’s response. This Essay applies these questions to organizing around criminal injustice and the response from public defenders. This Essay surfaces the work of four innovative indigent defense organizations that are engaged with and duty-bound to the communities they represent. I call this “community responsive public defense,” which is a distinct model of indigent defense whereby public defenders look to their clients and their clients’ communities to help shape advocacy, strategy, and representation.

Methodologically, this Essay relies primarily on qualitative interviews with leaders …

Incremental Improvement Of The Patentability Standard Of Nonobviousness, Kayla Siletti Brown

Fordham Law Review

Patents incentivize innovation, but the face of innovation has changed over the past several decades. Patent law is adapting to the radical growth of the pharmaceutical and biotechnological industries, which produce drugs and biologics respectively. Research and development in these fields is largely incremental—new products are often derived from existing products. However, patents do not protect “obvious” improvements, those that anyone skilled in the relevant scientific field could have discovered through predictable, routine work. The line between incremental R&D and routine, obvious improvements is difficult to draw. The U.S. Court of Appeals for the Federal Circuit and the Patent Trial …

(How) Can Litigation Advance Multiracial Democracy?, Olatunde C.A. Johnson

Fordham Law Review

Can rights litigation meaningfully advance social change in this moment? Many progressive or social justice legal scholars, lawyers, and advocates would argue “no.” Constitutional decisions issued by the U.S. Supreme Court thwart the aims of progressive social movements. Further, contemporary social movements often decenter courts as a primary domain of social change. In addition, a new wave of legal commentary urges progressives to de-emphasize courts and constitutionalism, not simply tactically but as a matter of democratic survival.

This Essay considers the continuing role of rights litigation, using the litigation over race-conscious affirmative action as an illustration. Courts are a key …

Should State Trial Courts Become Laboratories Of Upl Reform?, Bruce A. Green

Fordham Law Review

There is a growing “access to justice” movement that is principally driven by lawyers and judges. It has multiple objectives. One such objective is to make state court proceedings fairer, more reliable, and more accessible. This is important because state courts have a significant impact on peoples’ lives. They are where family members lose custody of children, where property owners obtain permission to evict tenants, where creditors are empowered to repossess people’s cars or garnish their wages, and (in some jurisdictions) where judges send people to jail to compel them to pay judgments or fees that they cannot afford to …

Regulating The Public Defender Identity, Irene Oritseweyinmi Joe

Fordham Law Review

The public defender institution has trouble meeting its mission. This is partly because, despite the specific and clear purpose of representing indigent defendants in criminal proceedings, public defender offices rely on various centering principles to meet this objective. The institution falters if it chooses a centering principle that unwittingly complicates its ability to meet the institution’s central mission. For public defender leaders tasked with developing and maintaining an institutional identity for a particular office, neither legal nor professional regulations supply the type of considerations that guarantee that an adopted identity will comply with core institutional responsibilities. This project seeks to …

Charging Abortion, Milan Markovic

Fordham Law Review

As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in antiabortion states have pledged to not enforce antiabortion laws, whereas others are targeting even out-of-state providers. This post-Dobbs reality, wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney, has received minimal scrutiny from legal scholars.

Prosecutors have broad charging discretion, …

“Major” Challenges For Lower Courts: Inconsistent Applications Of The Major Questions Doctrine In Lower Courts After West Virginia V. Environmental Protection Agency, Sarah A. Schmoyer

Fordham Law Review

Under the major questions doctrine, an agency requires clear congressional authorization to regulate on an issue of major national significance. Although a version of the doctrine has existed for several years, its rise in importance is recent. The U.S. Supreme Court invoked the doctrine by name for the first time in 2022 in West Virginia v. Environmental Protection Agency, warning that in certain “extraordinary cases,” the “history and the breadth” and the “economic and political significance” of the agency action may “provide a reason to hesitate” before accepting the agency’s authority. West Virginia has since inspired a wave of …

Eliminating Rule 609 To Provide A Fair Opportunity To Defend Against Criminal Charges: A Proposal To The Advisory Committee On The Federal Rules Of Evidence, Jeffrey Bellin

Fordham Law Review

Federal Rule of Evidence 609 authorizes the admission of prior convictions to impeach criminal defendants who testify. And in this important and uniquely damaging application, the [r]ule’s logic fails, distorting American trials and depriving defendants of a fair opportunity to defend against the charges. The Advisory Committee [on Evidence Rules (the “Advisory Committee”)] should propose the elimination of Rule 609 and prohibit cross-examination with specific instances of a criminal defendant’s past conduct when those instances are unrelated to the defendant’s testimony and unconnected to the case.

This short essay begins by setting out the proposed rule change alongside a proposed …

Correcting Federal Rule Of Evidence 404 To Clarify The Inadmissibility Of Character Evidence, Hillel J. Bavli

Fordham Law Review

Courts misinterpret Federal Rule of Evidence 404(b)(2) as an exception to Rule 404(b)(1)’s prohibition on character evidence rather than a mere clarification that emphasizes the permissibility of other-acts evidence whose relevance does not rely on propensity reasoning. This misinterpretation turns the rule against character evidence on its head by effectively replacing Rule 404 with a Rule 403 balancing—and one that incorrectly treats character inferences as probative rather than prejudicial, thereby favoring admissibility rather than exclusion. Consequently, as currently interpreted, Rule 404(b)(2) generates substantial unpredictability and verdicts based on conduct not at issue in a case.

I therefore propose that the …

Improving Lawyers & Lives: How Immigrant Justice Corps Built A Model For Quality Representation While Empowering Recent Law School And College Graduates And The Immigrant Communities Whom They Serve, Jojo Annobil, Elizabeth Gibson

Fordham Law Review

The late Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit formed a study group in 2008 called the Study Group on Immigrant Representation to assess the scope of the problem and find a solution. The study group determined that the representation crisis was an issue “of both quality and quantity” and that the two most important variables for a successful outcome in a case were having counsel and not being detained. To address this need, the study group established two innovative programs: the New York Immigrant Family Unity Project (NYIFUP), the first public defender …

Institutional Liability For Sexual Violence In Prisons Based On Theaided-By-Agency Theory, Tori Klevan

Fordham Law Review

Sexual assault perpetrated by correctional officers in prisons and jails is a pervasive problem in women’s correctional facilities. However, victims who choose to pursue a civil action rarely recover damages for their injuries because our legal system fails to provide adequate options for relief. This failure leaves victims uncompensated and disincentivizes correctional institutions from implementing effective preventative measures. Part of the reason for this failure is that most U.S. courts refuse to hold employers liable for sexual violence committed by their employees. They find that employers cannot be held liable for the tortious conduct of their employees unless the conduct …

Expert Knowledge, Democratic Accountability, And The Unitary Executive, Barry Sullivan

Fordham Law Review

Proponents of the “unitary executive” theory hold that “all federal officers exercising executive power must be subject to the direct control of the President.” But how, as a constitutional matter, should such presidential control be defined, and how should it be effectuated? Unitarians are not united. Kevin H. Rhodes and Professor Steven G. Calabresi identify at least three distinct versions of the theory, which reflect a diversity of responses to those questions. The strongest or most aggressive version (which may also find the least support in the relevant jurisprudence) holds that the President may “supplant any discretionary executive action taken …

Concerted Civic Administration, Peter M. Shane

Fordham Law Review

With the benefit of hindsight, the Roberts Court’s decision in Free Enterprise Fund v. Public Company Accounting Oversight Board marked the arrival in the U.S. Supreme Court of what has aptly been called the “separation-of-powers counterrevolution.” For the first time in history, the Court voided statutory criteria limiting the removability of a subordinate officer by a principal officer within the executive branch. Since then, the Court has crafted an increasingly complex separation-of-powers jurisprudence aimed at protecting the President’s supposed Article II authority to control subordinate administrators. Underlying this jurisprudence is the Court’s supposition that, constitutionally speaking, executive branch administrators “wield …

The President's Fourth Branch?, Bijal Shah

Fordham Law Review

Unitary executive theory has taken hold of the administrative state, motivated by the view that agencies constitute a rogue fourth branch of government. Emboldened by the U.S. Supreme Court, the President has begun to interfere with administrative accountability to important criteria including statutory procedural requirements that impact both public participation and administrative due process, the expectation that agencies engage neutral expertise to implement the law, and the obligations of judicial review. As a result, this Essay argues, rather than constituting a fourth branch that is unaccountable to the President, the administrative state has been encouraged by the President and courts …

To Mint Or Not To Mint: Non-Fungible Tokens And The Right Of Publicity, Hannah Bobek

Fordham Law Review

Non-fungible tokens (NFTs) allow for authentication and ownership of digital assets, which are notable features in the virtual world given the infiniteness of internet content. The emergence of this novel technology, however, has raised challenges, especially regarding enforcement of the right of publicity. This Note addresses how litigators have approached right of publicity violations arising from NFTs and how courts might respond to future violations that this technology is capable of facilitating. Legal scholars and commentators argue that certain features of NFTs pose pronounced threats to the right of publicity, namely the technology’s novelty, democratized nature, anonymization of creators, transferability …

Police Officers, Policy, And Personnel Files: Prosecutorial Disclosure Obligations Above And Beyond Brady, Lauren Giles

Fordham Law Review

Police officers play a significant role in the criminal trial process and are unlike any other witness who will take the stand. They are trained to testify, and jurors find them more credible than other witnesses, even though officers may have more incentive to lie than the ordinary witness. Despite the role of police officers in criminal proceedings, state statutes say virtually nothing about evidence used to impeach police officers, often contained in the officer’s personnel file. Worse still, the standard for disclosing information in an officer’s personnel file varies among and within states, resulting in inconsistent Brady disclosures. This …

Article Iii, The Bill Of Rights, And Administrative Adjudication, John M. Golden, Thomas H. Lee

Fordham Law Review

Modern reconsideration of legal constraints on the federal administrative state has commonly focused on agency rulemaking but seems increasingly concerned with agency adjudication. In this Essay, we provide an overview of constitutional issues implicated by administrative adjudication. We specifically explain how and why the so-called public-rights doctrine generally allows federal administrative adjudication outside private-rights actions substantially linked to traditional actions in law, equity, or admiralty. We also discuss how constitutional provisions outside Article III—including Bill of Rights protections of individuals as against the federal government—may nonetheless require a role for Article III courts even in so called public rights cases, …

The Federal Circuit’S Experimental Prism, Jeremy W. Bock

Fordham Law Review

Whether the U.S. Court of Appeals for the Federal Circuit is succeeding in its role as the steward of decisional patent law has been the subject of considerable debate and many empirical studies for the past forty years. Based on these studies, some observers have expressed skepticism of the utility of that court’s exclusive, nationwide jurisdiction over patent appeals. But the substantial body of empirical literature on the Federal Circuit has been viewed largely from a single vantage point, one that attributes any negative or undesirable outcomes to the court’s specialization. This Article argues that there is another way to …

The Collateral Fallout From The Quest For A Unitary Executive, Harold J. Krent

Fordham Law Review

To bolster a strong “Unitary Executive,” the Roberts Court has held that Congress can neither shield a single head of an administrative agency nor an inferior officer in an independent agency from removal at will. With respect to appointments, the Roberts Court has held that adjudicative officers in many executive agencies must now be appointed either by the President or a superior officer under the President’s supervision. As a result, dissenting Justices and academics have accused the Roberts Court of expanding Article II beyond both the constitutional text—which seemingly grants Congress the discretion to structure administrative agencies as it deems …

The Diffuse Executive, Anya Bernstein, Cristina Rodriguez

Fordham Law Review

A unitary executive is an exacting ideal. It asks that all power in an administration be gathered in the person of the President, who should have full authority to determine the actions of officials and employees. Even if the President does not directly control every executive action (how could he?), when officials fail to implement presidential preferences, the unitary theory dictates that the President must have the power to remove them. The model posits a tightly organized hierarchy—every rung implementing the substantive decisions of the rung above, with orders flowing from the top: a command-and-control structure for government action. And, …

Due Process Protections For Charter School Students In Long-Term Exclusionary Discipline Proceedings, Leah E. Soloff

Fordham Law Review

Charter schools—public schools that are subject to minimal state regulation—often employ high levels of exclusionary discipline. Because charter schools in many states are exempt from state laws regulating school discipline, the U.S. Constitution provides charter school students their only source of protections during such disciplinary proceedings. However, the constitutional due process protections afforded to public school students in disciplinary proceedings remain a source of significant disagreement among courts. Although the U.S. Supreme Court has established that public school students must be afforded due process protections in exclusionary discipline proceedings, the Court has yet to determine what process is actually due …

Toward National Regulation Of Legal Technology: A Path Forward For Access To Justice, Drew Simshaw

Fordham Law Review

Legal technology can help close the access-to-justice gap by increasing efficiency, democratizing access to information, and helping consumers solve their own legal problems or connecting them with lawyers who can. But, without proper design, technology can also consolidate power, automate bias, and magnify inequality. The state-by-state regulation of legal services has not adapted to this emerging technology-driven landscape that is continually being reshaped by artificial intelligence–driven tools like ChatGPT. Confusion abounds concerning whether use of these technologies amounts to unauthorized practice of law, leads to discrimination, adequately protects client data, violates the duty of technological competence, or requires prohibited cross-industry …

Taking Aim At New York's Concealed Carry Improvement Act, Leo Bernabei

Fordham Law Review

In June 2022, the U.S. Supreme Court held in New York State Rifle & Pistol Ass’n v. Bruen that New York’s requirement, which mandated that applicants for concealed carry licenses show proper cause for carrying a handgun in public, violated the Second and Fourteenth Amendments. Responding to the likely increase in individuals licensed to carry handguns in the state, New York enacted the Concealed Carry Improvement Act (CCIA). This law bans all firearms from many places of public congregation, establishes a default rule that firearms are not allowed on private property without the owner or lessee’s permission, and sets additional …