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Fordham Law School

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Supreme court

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Articles 1 - 4 of 4

Full-Text Articles in Law

Are The Federal Rules Of Evidence Unconstitutional?, Ethan J. Leib Jan 2022

Are The Federal Rules Of Evidence Unconstitutional?, Ethan J. Leib

Faculty Scholarship

The Federal Rules of Evidence (FRE) rest on an unacceptably shaky constitutional foundation. Unlike other regimes of federal rulemaking—for Civil Procedure, for Criminal Procedure, and for Appellate Procedure—the FRE rulemaking process contemplated by the Rules Enabling Act is both formally and functionally defective because Congress enacted the FRE as a statute first but purports to permit the Supreme Court to revise, repeal, and amend those laws over time, operating as a kind of supercharged administrative agency with the authority to countermand congressional statutes. Formally, this system violates the constitutionally-delineated separation of powers as announced in Chadha, Clinton, and the non-delegation …


Can The Fourth Amendment Keep People "Secure In Their Persons"?, Bruce A. Green Jan 2022

Can The Fourth Amendment Keep People "Secure In Their Persons"?, Bruce A. Green

Faculty Scholarship

No abstract provided.


Case-Linked Jurisdiction And Busybody States, Howard M. Erichson, John C.P. Goldberg, Benjamin Zipursky Jan 2020

Case-Linked Jurisdiction And Busybody States, Howard M. Erichson, John C.P. Goldberg, Benjamin Zipursky

Faculty Scholarship

No abstract provided.


What's The Difference Between A Conclusion And A Fact?, Howard M. Erichson Jan 2020

What's The Difference Between A Conclusion And A Fact?, Howard M. Erichson

Faculty Scholarship

In Ashcroft v. Iqbal, building on Bell Atlantic Corp. v. Twombly, the Supreme Court instructed district courts to treat a complaint’s conclusions differently from allegations of fact. Facts, but not conclusions, are assumed true for purposes of a motion to dismiss. The Court did little to help judges or lawyers understand this elusive distinction, and, indeed, obscured the distinction with its language. The Court said it was distinguishing “legal conclusions” from factual allegations. The application in Twombly and Iqbal, however, shows that the relevant distinction is not between law and fact, but rather between different types of factual assertions. This …