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Articles 31 - 60 of 66
Full-Text Articles in Law
A Constitutional Case For Extending The Due Process Clause To Asylum Seekers: Revisiting The Entry Fiction After Boumediene, Zainab A. Cheema
A Constitutional Case For Extending The Due Process Clause To Asylum Seekers: Revisiting The Entry Fiction After Boumediene, Zainab A. Cheema
Fordham Law Review
In the last two decades, the U.S. Supreme Court has actively grappled with balancing the interests of immigrant detainees and the federal government in the context of prolonged immigration detention by reconciling the statutory framework with constitutional guarantees of due process. The Court has focused on how prolonged detention without an opportunity for an individualized custody determination poses a serious constitutional threat to an alien’s liberty interest. The Court’s jurisprudence has focused, however, on aliens who have effected an entry into the United States. The constitutional entitlements of nonresidents who are detained upon presenting themselves at the border have so …
The Looming Battle For Control Of Multidistrict Litigation In Historical Perspective, Andrew D. Bradt
The Looming Battle For Control Of Multidistrict Litigation In Historical Perspective, Andrew D. Bradt
Fordham Law Review
2018 marks fifty years since the passage of the Multidistrict Litigation Act. But instead of thoughts of a golden-anniversary celebration, an old Rodney Dangerfield one-liner comes to mind: “[M]y last birthday cake looked like a prairie fire.” Indeed, after a long period of relative obscurity, multidistrict litigation (MDL) has become a subject of major controversy—and not only among scholars of procedure. For a long time, both within and beyond the rarified world of procedure scholars, MDL was perceived as the more technical, less extreme cousin of the class action, which attracted most of the controversy. My goal in this Article …
Where Breaking Glass Ceilings Leads To Glass Walls: Gender-Disparate Managerial Decision-Making Power And Authority, Bina Nayee
Fordham Law Review
Today, litigation over plainly discriminatory employment practices is much less common than it was in the two decades following Title VII’s enactment as employers have largely reformed practices that most obviously violate employment discrimination law. But many less obvious employment practices, particularly those embedded in implicit bias or unconscious sex stereotyping, remain. One example is employers’ distribution of managerial decision-making power and authority based on assumptions about sex. Although this particular employment practice has not yet been litigated, there is a strong argument that a legal challenge to this practice could succeed. This Note argues that female managers can and …
A Crispr Future For Gene-Editing Regulation: A Proposal For An Updated Biotechnology Regulatory System In An Era Of Human Genomic Editing, Tracey Tomlinson
A Crispr Future For Gene-Editing Regulation: A Proposal For An Updated Biotechnology Regulatory System In An Era Of Human Genomic Editing, Tracey Tomlinson
Fordham Law Review
Recent developments in gene-editing technology have enabled scientists to manipulate the human genome in unprecedented ways. One technology in particular, Clustered Regularly Interspaced Short Pallindromic Repeat (CRISPR), has made gene editing more precise and cost-effective than ever before. Indeed, scientists have already shown that CRISPR can eliminate genes linked to life-threatening diseases from an individual’s genetic makeup and, when used on human embryos, CRISPR has the potential to permanently eliminate hereditary diseases from the human genome in its entirety. These developments have brought great hope to individuals and their families, who suffer from genetically linked diseases. But there is a …
Open The Jail Cell Doors, Hal: A Guarded Embrace Of Pretrial Risk Assessment Instruments, Glen J. Dalakian Ii
Open The Jail Cell Doors, Hal: A Guarded Embrace Of Pretrial Risk Assessment Instruments, Glen J. Dalakian Ii
Fordham Law Review
In recent years, criminal justice reformers have focused their attention on pretrial detention as a uniquely solvable contributor to the horrors of modern mass incarceration. While reform of bail practices can take many forms, one of the most pioneering and controversial techniques is the adoption of actuarial models to inform pretrial decision-making. These models are designed to supplement or replace the unpredictable and discriminatory status quo of judicial discretion at arraignment. This Note argues that policymakers should experiment with risk assessment instruments as a component of their bail reform efforts, but only if appropriate safeguards are in place. Concerns for …
Immigration Blame, David S. Rubenstein
Immigration Blame, David S. Rubenstein
Fordham Law Review
This Article provides the first comprehensive study of blame in the U.S. immigration system. Beyond blaming migrants, we blame politicians, bureaucrats, and judges. Meanwhile, these players routinely blame each other, all while trying to avoid being blamed. As modeled here, these dynamics of “immigration blame” have catalyzing effects on the politics, policies, and structures of immigration law. Yoking key insights from a range of social sciences, this Article offers unique perspectives on the operation and design choices of the immigration system. Moreover, through a blame lens, the terms of debate over amnesty, immigration enforcement, the travel ban, sanctuary cities, and …
Learned Hand On Statutory Interpretation: Theory And Practice, Thomas W. Merrill
Learned Hand On Statutory Interpretation: Theory And Practice, Thomas W. Merrill
Fordham Law Review
It is a great honor to take part in the celebration of the Second Circuit’s 125th anniversary and in particular to present the Hands Lecture. The Second Circuit in the 1930s and 1940s came to be called the “Hand Court,” and during those years it established its reputation as the most admired of the U.S. circuit courts of appeals. It was called the Hand Court because two of its judges, who often formed the majority on three-judge panels, bore the surname Hand. Learned Hand is today regarded as a great common law judge, and significant attention has been given, most …
Civil Litigation Reform In The Trump Era: Threats And Opportunities Searching For Salvageable Ideas In Ficala, Howard M. Erichson
Civil Litigation Reform In The Trump Era: Threats And Opportunities Searching For Salvageable Ideas In Ficala, Howard M. Erichson
Fordham Law Review
The Fairness in Class Action Litigation Act of 2017 (FICALA) was introduced in Congress less than three weeks after Donald Trump took office as President. Supported by the U.S. Chamber of Commerce and opposed by consumer advocates and civil rights groups, the bill passed the House of Representatives one month after its introduction on a party-line vote of 220 to 201, with 220 Republicans and zero Democrats voting in favor. FICALA stalled in the Senate and, as of this writing, does not appear to be moving toward passage in its current form. But reform ideas have a way of reappearing, …
Jurisdiction In The Trump Era, Scott Dodson
Jurisdiction In The Trump Era, Scott Dodson
Fordham Law Review
The election of Donald Trump as President of the United States induced immediate speculation about how his tenure would affect various areas of the law. In civil-procedure circles, the intuition is that his status as a probusiness, antiregulation Republican seems likely to push procedural doctrine generally in pro-defendant directions. That intuition seems sound in the specific procedural subtopic of jurisdictional doctrine relating to forum selection. In this Essay, I document recent pre-Trump, pro-defendant trends in personal jurisdiction and diversity jurisdiction, and I detail how those trends impose significant burdens on plaintiffs. I then explain why the remainder of Trump’s presidency …
Cyber Babel: Finding The Lingua Franca In Cybersecurity Regulation, William Pierotti
Cyber Babel: Finding The Lingua Franca In Cybersecurity Regulation, William Pierotti
Fordham Law Review
Cybersecurity regulations have proliferated over the past few years as the significance of the threat has drawn more attention. With breaches making headlines, the public and their representatives are imposing requirements on those that hold sensitive data with renewed vigor. As high-value targets that hold large amounts of sensitive data, financial institutions are among the most heavily regulated. Regulations are necessary. However, regulations also come with costs that impact both large and small companies, their customers, and local, national, and international economies. As the regulations have proliferated so have those costs. The regulations will inevitably and justifiably diverge where different …
The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin
The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin
Fordham Law Review
This Essay reconsiders or reaffirms the Lovings’ status as civil rights icons by drawing on source material provided by the documentary The Loving Story. This nonfiction treatment of the couple and their lawsuit reveals their complexity as individuals and as a couple, the social relationships that made them desperate to live together and raise their children in Virginia, and the oppression they suffered at the hands of state actors motivated by a virulent white supremacy to make the Lovings’ desire to make a home for themselves in the state impossible. Part I briefly describes the Lovings’ struggle against Virginia’s Racial …
Enemy And Ally: Religion In Loving V. Virginia And Beyond, Leora F. Eisenstadt
Enemy And Ally: Religion In Loving V. Virginia And Beyond, Leora F. Eisenstadt
Fordham Law Review
Throughout the Loving case, religion appeared both overtly and subtly to endorse or lend credibility to the arguments against racial mixing. This use of religion is unsurprising given that supporters of slavery, white supremacy, and segregation have, for decades, turned to religion to justify their ideologies. Although these views are no longer mainstream, they have recently appeared again in arguments against same-sex marriage and gay and transgender rights generally. What is remarkable in the Loving case, however, is an alternate use of religion, not to justify white supremacy and segregation but instead to highlight the irrationality of its supporters’ claims. …
Hollywood Loving, Kevin Noble Maillard
Hollywood Loving, Kevin Noble Maillard
Fordham Law Review
In this Essay, I highlight how nongovernmental entities establish political, moral, and sexual standards through visual media, which powerfully underscores and expresses human behavior. Through the Motion Picture Production Code (the “Hays Code”) and the Code of Practices for Television Broadcasters (the “TV Code”), Americans viewed entertainment as a pre-mediated, engineered world that existed outside of claims of censorship and propaganda. This Essay critically examines the role of film and television as persuasive and integral legal actors and it considers how these sectors operate to maintain, and sometimes challenge, racial order.
Residential Segregation And Interracial Marriages, Rose Cuison Villazor
Residential Segregation And Interracial Marriages, Rose Cuison Villazor
Fordham Law Review
Part I highlights recent data on racially segregated neighborhoods and low rates of interracial marriage to underscore what Russell Robinson refers to as “structural constraints” that shape and limit romantic preferences. As I discuss in this Part, many cities today continue to be racially segregated. Notably, current data demonstrate a strong correlation between low rates of interracial marriage and racially segregated neighborhoods in those cities. By contrast, contemporary studies indicate that in cities where communities are more racially and economically integrated, the rate of interracial marriages is high. Part II argues that the association between high rates of segregation and …
Lgbt Equality And Sexual Racism, Russell K. Robinson, David M. Frost
Lgbt Equality And Sexual Racism, Russell K. Robinson, David M. Frost
Fordham Law Review
Bigots such as the trial judge in Loving have long invoked religion to justify discrimination. We agree with other scholars that neither religion nor artistic freedom justifies letting businesses discriminate. However, we also want to make manifest the tension between the public posture of LGBT-rights litigants and the practices of some LGBT people who discriminate based on race in selecting partners. We argue that some white people’s aversion to dating and forming relationships with people of color is a form of racism, and this sexual racism is inconsistent with the spirit of Loving. Part I provides a review of empirical …
The Hope Of Loving And Warping Racial Progress Narratives, Jasmine Mitchell
The Hope Of Loving And Warping Racial Progress Narratives, Jasmine Mitchell
Fordham Law Review
Loving v. Virginia has been heralded as the catalyst for a “biracial baby boom.” Loving marked the end of the criminalization of miscegenation between nonwhite and white individuals and the automatic illegitimacy of mixed-race children in many states, and it heralded the beginning of the celebration of interracial families as part of a new multiracial, and eventual postracial, era. The construction of whiteness has been tied to the management of interracial sex and marriage, and Loving razed antimiscegenation laws that, in former Chief Justice Earl Warren’s words, had been “designed to maintain White Supremacy.” Today, the media relies on demographic …
Fear Of A Multiracial Planet: Loving’S Children And The Genocide Of The White Race, Reginald Oh
Fear Of A Multiracial Planet: Loving’S Children And The Genocide Of The White Race, Reginald Oh
Fordham Law Review
Part I analyzes the Loving decision striking down antimiscegenation laws and examines the segregationists’ justifications for antimiscegenation laws. Next, Part II explores the historical opposition of white segregationists to interracial marriages, families, and children and argues that the principle and practice of endogamy is a central feature of Jim Crow segregation. Finally, Part III examines the present ideology of white nationalism and shows that white nationalists oppose interracial unions and families for some of the same reasons that white segregationists opposed them. Specifically, white nationalists oppose interracial families because they are one of the main factors contributing to the so-called …
Evolution Of The Racial Identity Of Children Of Loving: Has Our Thinking About Race And Racial Issues Become Obsolete?, Kevin Brown
Fordham Law Review
I served on the panel entitled “The Children of Loving,” which for me has two connotations. First, as an African American who married a white woman twenty years after the decision, I am a child of Loving in the sense that I was in an interracial marriage. But as a father of two black-white biracial children, I am also a father of two Lovingchildren. In this Article, I focus on the latter connotation of the “Children of Loving.” In particular, I discuss the evolution of my children’s racial identities. Due to my personal connections, I can share both an academic …
Multiracial Malaise: Multiracial As A Legal Racial Category, Taunya Lovell Banks
Multiracial Malaise: Multiracial As A Legal Racial Category, Taunya Lovell Banks
Fordham Law Review
The focus of this Article is the underlying assumption of the Brookings Institution report that multiracial individuals constitute a separate racial category. My discussion of legal racial categories focuses only ongovernment “racial” definitions. Multiracial individuals should enjoy thefreedom to self-identify as they wish—and, like others, be afforded theprotections of antidiscrimination law.The question is whether a separate legal racial category is needed to provide that protection. Race in this country has been “crafted from the point of view of [white] race protection” protecting the interests of white Americans from usurpation by non whites and, unless the creation of a separate multiracial …
Pedigree Prosecution: Should A Head Of State’S Family Members Be Entitled To Immunity In Foreign Courts?, Yena Hong
Fordham Law Review
States tread carefully in international affairs to maintain mutual respect for sovereignty. In today’s legal order, a head of state is the sovereign state personified. Until the twentieth century, heads of state did not routinely travel outside of their respective domains. Consequently, mutual respect for foreign sovereigns was usually implemented in national courts by recognition of immunity for diplomats and public vessels—paradigmatically, warships. Today, heads of state often travel to other countries, and it is increasingly accepted as customary international law that a head of state cannot be sued or prosecuted in a foreign court on the basis of any …
Loving’S Legacy: Decriminalization And The Regulation Of Sex And Sexuality, Melissa Murray
Loving’S Legacy: Decriminalization And The Regulation Of Sex And Sexuality, Melissa Murray
Fordham Law Review
2017 marked the fiftieth anniversary of Loving v. Virginia, the landmark Supreme Court decision that invalidated bans on miscegenation and interracial marriages. In the years since Loving was decided, it remains a subject of intense scholarly debate and attention. The conventional wisdom suggests that the Court’s decision in Loving was hugely transformative— decriminalizing interracial marriages and relationships and removing the most pernicious legal barriers to such couplings. But other developments suggest otherwise. If we shift our lens from marriages to other areas of the law—child custody cases, for example—Loving’s legacy seems less rosy. In the years preceding and following Loving, …
Prejudice, Constitutional Moral Progress, And Being “On The Right Side Of History”: Reflections On Loving V. Virginia At Fifty, Linda C. Mcclain
Prejudice, Constitutional Moral Progress, And Being “On The Right Side Of History”: Reflections On Loving V. Virginia At Fifty, Linda C. Mcclain
Fordham Law Review
Looking back at the record in Loving, this Article shows the role played by narratives of constitutional moral progress, in which the Lovings and their amici indicted Virginia’s antimiscegenation law as an “odious” relic of slavery and a present-day reflection of racial prejudice. In response, Virginia sought to distance such laws from prejudice and white supremacy by appealing to “the most recent” social science that identified problems posed by “intermarriage,” particularly for children. Such work also rejected the idea that intermarriage was a path toward progress and freedom from prejudice. This Article concludes by briefly examining the appeal to Loving …
More Than Love: Eugenics And The Future Of Loving V. Virginia, Osagie K. Obasogie
More Than Love: Eugenics And The Future Of Loving V. Virginia, Osagie K. Obasogie
Fordham Law Review
This Symposium is dedicated to celebrating how Loving v. Virginia paved the way for greater acceptance of multiracial families and interracial intimacy. Loving is largely understood as a case that rejected the bigotry and hatred experienced by interracial couples and affirmed the idea that law supports love across racial lines. With this narrative comes the popular understanding that Loving stands for the notion that love conquers all. This idea has shaped other legal strategies and social movements, such as the effort to have same-sex marriage legally recognized. Thus, Loving is thought of as drawing attention to the importance of romantic …
Race And Assisted Reproduction: Implications For Population Health, Aziza Ahmed
Race And Assisted Reproduction: Implications For Population Health, Aziza Ahmed
Fordham Law Review
This Article emerges from Fordham Law Review’s Symposium on the fiftieth anniversary of Loving v. Virginia, the case that found antimiscegenation laws unconstitutional. Inspired by the need to interrogate the regulation of race in the context of family, this Article examines the diffuse regulatory environment around assisted reproductive technology (ART) that shapes procreative decisions and the inequalities that these decisions may engender. ART both centers biology and raises questions about how we imagine our racial futures in the context of family, community, and nation. Importantly, ART demonstrates how both the state and private actors shape family formation along racial lines. …
Unstitching Scarlet Letters?: Prosecutorial Discretion And Expungement, Brian M. Murray
Unstitching Scarlet Letters?: Prosecutorial Discretion And Expungement, Brian M. Murray
Fordham Law Review
This Article argues that scholarly discussions about prosecutorial discretion need to extend their focus beyond the exercise of prosecutorial judgment pretrial or questions of factual and legal guilt. Given that the primary role of the prosecutoris to do “justice,” this Article calls for increased attention to the exercise of discretion after the guilt phase is complete, specifically in the context of expungement of nonconviction andconviction information. It offers a framework for exercising such discretion and, in doing so, hopes to initiate additional conversation about the role of prosecutors during the phases that follow arrest and prosecution.
Family Courts As Certifying Agencies: When Family Courts Can Certify U Visa Applications For Survivors Of Intimate Partner Violence, Sylvia Lara Altreuter
Family Courts As Certifying Agencies: When Family Courts Can Certify U Visa Applications For Survivors Of Intimate Partner Violence, Sylvia Lara Altreuter
Fordham Law Review
Undocumented intimate partner violence survivors living in the UnitedStates have limited options for immigration relief. One of the only avenuesopen to them is the U Visa: a nonimmigrant visa established by the BatteredImmigrant Women Protection Act of 2000. To apply for a U Visa, a survivormust prove to immigration authorities that she was the victim of a crime;suffered substantial abuse; and was, is,or is likely to be helpful in theinvestigation of her abuser. The statute requires that all U Visa applicationsbe certified by an appropriate officialwho testifies to the applicant’shelpfulness with the investigation. This certification is a tremendous obstaclefor survivors: …
Regulating Search Warrant Execution Procedure For Stored Electronic Communications, Sara J. Dennis
Regulating Search Warrant Execution Procedure For Stored Electronic Communications, Sara J. Dennis
Fordham Law Review
Electronic communication services, from email, to social media, tomessaging applications, have not only dramatically changed daily life but have also had a profound impact on criminal investigations and procedure.The often large volume of electronically stored information has led to a two-step process for search warrant execution, codified in Federal Criminal Procedure Rule 41. When conducting a search pursuant to Rule 41, law enforcement often retains both responsive items—materials that fall within the scope of the warrant—and nonresponsive materials—intermingled items that can be searched, but ultimately exceed the scope of the warrant. This possession of nonresponsive material creates a tension between …
Reconciling The Volcker Rule With The Dodd-Frank Act’S Objectives: How To Best Combat Systemic Risk, Michael Leonidas Nester
Reconciling The Volcker Rule With The Dodd-Frank Act’S Objectives: How To Best Combat Systemic Risk, Michael Leonidas Nester
Fordham Law Review
This Note examines the Dodd-Frank Act’s ban on proprietary trading and on banks sponsoring hedge funds and private equity funds, known as the Volcker Rule. This Rule has been a point of contention since the Act was passed in 2010. Some argue that the ban is either a detriment to bond market liquidity or is unnecessary because a tenuous nexus exists between proprietary trading and true causes of the 2008 financial crisis. Proponents cite the role of proprietary trading in the crisis and the inherent risk that banks accept when engaging in such trading. The controversy surrounding the Volcker Rule …
Courts Have Gone Overboard In Applying The Maritime Drug Law Enforcement Act, Elaina Aquila
Courts Have Gone Overboard In Applying The Maritime Drug Law Enforcement Act, Elaina Aquila
Fordham Law Review
The Maritime Drug Law Enforcement Act (MDLEA), enacted through Congress’s power to “define and punish . . . Felonies Committed on the high Seas,” prosecutes individuals for drug trafficking “on board” vessels. Individuals often raise jurisdictional defenses in U.S. courts when prosecuted under MDLEA, and scholarship in the area argues about whether the Constitution permits MDLEA to reach drug traffickers who are on the high seas. Recently, courts have begun using MDLEA to prosecute foreign nationals located in a foreign nation who are not on board a vessel as conspirators. However, no court has fully examined Congress’s authority to enact …
When A Wrongful Birth Claim May Not Be Wrong: Race, Inequality, And The Cost Of Blackness, Kimani Paul-Emile
When A Wrongful Birth Claim May Not Be Wrong: Race, Inequality, And The Cost Of Blackness, Kimani Paul-Emile
Fordham Law Review
The year 2017 marked the fiftieth anniversary of the Loving v. Virginia decision, in which a unanimous U.S. Supreme Court struck down as unconstitutional laws prohibiting interracial marriage. Today, when we consider interracial loving, we tend to envision romantic relationships. What is often overlooked, however, is the relationship between parent and child: among the most intimate of relationships. A primary reason for this oversight may be that we do not often conceptualize the parent and child relationship as an interracial space. Indeed, although most people select their romantic partners, few are afforded the opportunity to select their children outside of …