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Articles 31 - 60 of 72
Full-Text Articles in Law
Pregnancy And The First Amendment, Helen Norton
Pregnancy And The First Amendment, Helen Norton
Fordham Law Review
Suppose that you are pregnant and seated in the waiting room of a Planned Parenthood clinic, or maybe in a facility that advertises “Pregnant? We Can Help You.” This Essay discusses the First Amendment rules that apply to the government’s control of what you are about to hear. This Essay considers what First Amendment law, as applied to speech to pregnant women, would look like if the Court attended to the First Amendment interests of pregnant women themselves.
Toxic Misogyny And The Limits Of Counterspeech, Lynne Tirrell
Toxic Misogyny And The Limits Of Counterspeech, Lynne Tirrell
Fordham Law Review
Gender equality, across all the ways that we humans are engendered, is an unrealized ideal of many contemporary Americans. It is not enshrined in the U.S. Constitution, unless one interprets “men” to include women, which the Framers did not. Although passed by Congress in 1972, the Equal Rights Amendment (ERA) failed to gain the necessary thirty-eight state ratifications, and it has never become law. Thirty-five states initially ratified it between 1972 and 1977, then two more in 2017 and 2018. It remains one state short. These ratifications indicate significant social progress for women, but the progress is uneven, even within …
Free Speech And The Diverse University, Keith E. Whittington
Free Speech And The Diverse University, Keith E. Whittington
Fordham Law Review
There are those who think that free speech and inclusivity on college campuses are inconsistent. The notion that the two values are in tension with one another has become a common framing for thinking about the modern campus. A Gallup-Knight Foundation poll of college students asked respondents not only whether they valued free speech or diversity but also to choose between them and indicate which was “more important for colleges.” When forced to choose, a substantial minority of students said they would prioritize inclusivity over the freedom to express “viewpoints that are offensive” on campus. Following the Gallup-Knight poll the …
Income Disparity, Gender Equality, And Free Expression, Sylvia A. Law
Income Disparity, Gender Equality, And Free Expression, Sylvia A. Law
Fordham Law Review
In the past half century, our world has experienced a radical change comparable to the Industrial Revolution of the nineteenth century. At least five elements are key: growing disparity of human opportunity, advance of formal human rights and equality, information transformation, economic globalization, and climate change. My focus is on economic disparity and gender equality in the United States. These two issues, huge in and of themselves, interact with the other cataclysmic changes of our time.
Airbnb In New York City: Whose Privacy Rights Are Threatened By A Government Data Grab?, Tess Hofmann
Airbnb In New York City: Whose Privacy Rights Are Threatened By A Government Data Grab?, Tess Hofmann
Fordham Law Review
New York City regulators have vigorously resisted the rise of Airbnb as an alternative to traditional hotels, characterizing “home sharing” as a trend that is sucking up permanent housing in a city already facing an affordability crisis. However, laws banning short-term rentals have done little to discourage this practice, as Airbnb’s policy of keeping user information private makes it possible for illegal operators to evade law enforcement. Frustrated by this power imbalance, the New York City Council passed Local Law 146, which requires Airbnb to provide city officials with access to the names and information of its home sharing hosts …
Managing The Misinformation Marketplace: The First Amendment And The Fight Against Fake News, Daniela C. Manzi
Managing The Misinformation Marketplace: The First Amendment And The Fight Against Fake News, Daniela C. Manzi
Fordham Law Review
In recent years, fake news has overtaken the internet. Fake news publishers are able to disseminate false stories widely and cheaply on social media websites, amassing millions of likes, comments, and shares, with some fake news even “trending” on certain platforms. The ease with which a publisher can create and spread falsehoods has led to a marketplace of misinformation unprecedented in size and power. People’s vulnerability to fake news means that they are far less likely to receive accurate political information and are therefore unable to make informed decisions when voting. Because a democratic system relies on an informed populace …
Mandatory Arbitration And Sexual Harassment Claims: #Metoo- And Time's Up-Inspired Action Against The Federal Arbitration Act, Kathleen Mccullough
Mandatory Arbitration And Sexual Harassment Claims: #Metoo- And Time's Up-Inspired Action Against The Federal Arbitration Act, Kathleen Mccullough
Fordham Law Review
The rise of the #MeToo movement and Time’s Up campaign has brought the issue of sexual harassment into the national spotlight. Equal Employment Opportunity Commission filings for sexual harassment claims have increased 13 percent since the start of the #MeToo movement, and a little over a year since its creation on January 1, 2018, the Time’s Up Legal Defense Fund has received 4139 requests for representation in sexual harassment claims. However, the U.S. Supreme Court has interpreted the Federal Arbitration Act to enforce mandatory arbitration clauses for employment claims, including sexual harassment claims—an interpretation that prohibits employees from pursuing litigation …
Production Liability, Aditi Bagchi
Production Liability, Aditi Bagchi
Fordham Law Review
It is well known that many consumer goods are produced under dangerous working conditions. Employers that directly supervise the production of these goods evade enforcement. Activists and scholars have argued that we must hold the manufacturers and retailers that purchase goods made in sweatshops accountable. However, there has been little movement toward such accountability. Responsibility for the conditions under which goods are made—what I call “production liability”—entails assigning responsibility for workers to firms that do not directly employ them. Production liability, therefore, conflicts with deep intuitions about the boundaries of individual responsibility. This Article offers a moral and economic defense …
Free Money, But Not Tax-Free: A Proposal For The Tax Treatment Of Cryptocurrency Hard Forks, Danhui Xu
Free Money, But Not Tax-Free: A Proposal For The Tax Treatment Of Cryptocurrency Hard Forks, Danhui Xu
Fordham Law Review
Cryptocurrency has attracted extraordinary attention as one of the greatest financial innovations in recent years. Equally noticeable are the increasingly frequent cryptocurrency events, such as hard forks. Put simply, a cryptocurrency hard fork happens when a single cryptocurrency splits in two, which results in original coin owners receiving free forked coins. Such hard forks have resulted in billions of dollars distributed to U.S. taxpayers. Despite ongoing regulatory efforts, to date, the Internal Revenue Service (IRS) has yet to take a clear position on the tax treatment of cryptocurrency hard forks. The lack of useful guidance when filing tax returns has …
Guilt By Genetic Association: The Fourth Amendment And The Search Of Private Genetic Databases By Law Enforcement, Claire Abrahamson
Guilt By Genetic Association: The Fourth Amendment And The Search Of Private Genetic Databases By Law Enforcement, Claire Abrahamson
Fordham Law Review
Over the course of 2018, a number of suspects in unsolved crimes have been identified through the use of GEDMatch, a public online genetic database. Law enforcement’s use of GEDMatch to identify suspects in cold cases likely does not constitute a search under the Fourth Amendment because the genetic information hosted on the website is publicly available. Transparency reports from direct-to-consumer (DTC) genetic testing providers like 23andMe and Ancestry suggest that federal and state officials may now be requesting access to private genetic databases as well. Whether law enforcement’s use of private DTC genetic databases to search for familial relatives …
Gender Equality And The First Amendment: Foreword, Jeanmarie Fenrich, Benjamin C. Zipursky, Danielle Keats Citron
Gender Equality And The First Amendment: Foreword, Jeanmarie Fenrich, Benjamin C. Zipursky, Danielle Keats Citron
Fordham Law Review
Gender equality demands equal opportunity to speak and be heard. Yet, in recent years, the clash between equality and free speech in the context of gender has intensified—in the media, the workplace, college campuses, and the political arena, both online and offline. The internet has given rise to novel First Amendment issues that particularly affect women, such as nonconsensual pornography, online harassment, and online privacy. On November 1–2, 2018, the Fordham Law Review brought together scholars and practicing lawyers from around the nation to address many of the pressing challenges facing feminists and free speech advocates today. The Symposium was …
"'Male Chauvinism' Is Under Attack From All Sides At Present": Roberts V. United States Jaycees, Sex Discrimination, And The First Amendment, Linda C. Mcclain
"'Male Chauvinism' Is Under Attack From All Sides At Present": Roberts V. United States Jaycees, Sex Discrimination, And The First Amendment, Linda C. Mcclain
Fordham Law Review
This Article considers the relationship between gender equality and freedom of association. Part I begins with the Supreme Court’s recognition of the freedom of association as first articulated in NAACP v. Alabama. It shows how, in the context of race discrimination, some key civil rights victories have enlisted claims of the freedom of association, while some other victories have prevailed against such claims. Those precedents set the foundation for the Court’s decision in Jaycees, which concerned gender discrimination. Part II focuses on the role of Jaycees in drawing an analogy between the harms of gender discrimination and sexual-orientation …
When Law Frees Us To Speak, Danielle Keats Citron, Jonathon W. Penney
When Law Frees Us To Speak, Danielle Keats Citron, Jonathon W. Penney
Fordham Law Review
A central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyberharassment and sexualprivacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, the law has an equally important expressive role. In this Article, we highlight law’s capacity to shape social norms and behavior through education. We focus on a neglected dimension of law’s expressive role: its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We …
American Courts And The Sex Blind Spot: Legitimacy And Representation, Michele Goodwin, Mariah Lindsay
American Courts And The Sex Blind Spot: Legitimacy And Representation, Michele Goodwin, Mariah Lindsay
Fordham Law Review
We argue the legacy of explicit sex bias and discrimination with relation to political rights and social status begins within government, hewn from state and federal lawmaking. As such, male lawmakers and judges conscribed a woman’s role to her home and defined the scope of her independence in the local community and broader society. Politically and legally, women were legal appendages to men—objects of male power (visà-vis their husbands and fathers). In law, women’s roles included sexual chattel to their spouses, care of the home, and producing offspring. Accordingly, women were essential in the home, as law would have it, …
Mr. Try-It Goes To Washington: Law And Policy At The Agricultural Adjustment Administration, Daniel R. Ernst
Mr. Try-It Goes To Washington: Law And Policy At The Agricultural Adjustment Administration, Daniel R. Ernst
Fordham Law Review
In December 1933, Jerome Frank, the general counsel of the Agricultural Adjustment Administration (AAA) but better known for writing Law and the Modern Mind (1930), a sensational attack on legal formalism, told an audience at the Association of American Law Schools a parable about two lawyers in the New Deal, each required to interpret the same ambiguous language of a statute. The first lawyer, “Mr. Absolute,” reasoned from the text and canons of statutory interpretation without regard for the desirability of the outcome. “Mr. Try-It,” in contrast, began with the outcome he thought desirable. He then said to himself, “The …
May Federal Prosecutors Take Direction From The President?, Bruce A. Green, Rebecca Roiphe
May Federal Prosecutors Take Direction From The President?, Bruce A. Green, Rebecca Roiphe
Fordham Law Review
Suppose the president sought to serve as prosecutor-in-chief, telling prosecutors when to initiate or dismiss criminal charges in individual cases and making other discretionary decisions that are normally reserved to trained professionals familiar with the facts, law, and traditions of the U.S. Department of Justice. To what extent may prosecutors follow the president’s direction? In recent presidential administrations, the president has respected prosecutorial independence; while making policy decisions, the president deferred to the Attorney General and subordinate federal prosecutors to conduct individual criminal cases. In a recent article, we argued that this is as it should be because the president …
Hidden Nondefense: Partisanship In State Attorneys General Amicus Briefs And The Need For Transparency, Lisa F. Grumet
Hidden Nondefense: Partisanship In State Attorneys General Amicus Briefs And The Need For Transparency, Lisa F. Grumet
Fordham Law Review
In all fifty states, the State Attorney General (SAG)—as the state’s chief legal officer—is charged with defending state laws that are challenged in court. If an SAG declines to defend or challenges a state law on the ground that it is unconstitutional—an action scholars describe as “nondefense”— the SAG ordinarily will disclose this decision to the public. This Essay discusses a hidden form of nondefense that can occur when SAGs file amicus curiae briefs on behalf of their states in matters before the U.S. Supreme Court. Surprisingly, some SAGs have joined multistate amicus briefs that support invalidating other states’ laws …
Daca, Government Lawyers, And The Public Interest, Stephen Lee, Sameer M. Ashar
Daca, Government Lawyers, And The Public Interest, Stephen Lee, Sameer M. Ashar
Fordham Law Review
On June 15, 2012, the Obama administration announced a significant change in immigration policy: Homeland Security Secretary Janet Napolitano began to instruct immigration officials to defer enforcement actions against those noncitizens who would likely be eligible for relief under the DREAM Act, should Congress choose to pass it. This program, which came to be known as Deferred Action for Childhood Arrivals (DACA), has become the most significant immigration-benefits program in a generation. Not since Congress passed a comprehensive reform bill in 1986, which included a pathway to citizenship, has an immigration program so quickly and positively changed the lives of …
Legal Dilemmas Facing White House Counsel In The Trump Administration: The Costs Of Public Disclosure Of Fisa Requests, Peter Margulies
Legal Dilemmas Facing White House Counsel In The Trump Administration: The Costs Of Public Disclosure Of Fisa Requests, Peter Margulies
Fordham Law Review
Not every presidential administration can forge a new brand of government lawyering. Historically, government lawyering has swung between two poles: (1) dialogic lawyering, which stresses reasoned elaboration, respect for institutions, and continuity with unwritten norms embodied in past practice; and (2) insular lawyering, which entails opaque definitions, disregard of other institutions, and departures from unwritten norms. Because President Trump regularly signals his disdain for institutions, such as the intelligence community, and unwritten norms, such as prosecutorial independence, senior lawyers in the White House have added a new mode of legal representation that entails ad hoc adjustments to President Trump’s mercurial …
Professionals, Politicos, And Crony Attorneys General: A Historical Sketch Of The U.S. Attorney General As A Case For Structural Independence, Jed Handelsman Shugerman
Professionals, Politicos, And Crony Attorneys General: A Historical Sketch Of The U.S. Attorney General As A Case For Structural Independence, Jed Handelsman Shugerman
Fordham Law Review
Historically, the office of the U.S. Attorney General has been identified as “quasi-judicial” or having “quasi-judicial” aspects. Other parts of the Department of Justice (DOJ) have also been described as quasi-judicial, such as the Office of Legal Counsel and the Solicitor General. A glance at a list of past attorneys general seems to confirm this judicial aspiration in practice. Nine attorneys general became U.S. Supreme Court justices, and others were notably judicious and professional in their tenure in the office. Of course, there are some infamous examples of unprofessional cronyism—the appointment of friends or associates to positions of authority, without …
Dignity And Social Meaning: Obergefell, Windsor, And Lawrence As Constitutional Dialogue, Steve Sanders
Dignity And Social Meaning: Obergefell, Windsor, And Lawrence As Constitutional Dialogue, Steve Sanders
Fordham Law Review
The U.S. Supreme Court’s three most important gay and lesbian rights decisions—Obergefell v. Hodges, United States v. Windsor, and Lawrence v. Texas—are united by the principle that gays and lesbians are entitled to dignity. Beyond their tangible consequences, the common constitutional evil of state bans on same-sex marriage, the federal Defense of Marriage Act, and sodomy laws was that they imposed dignitary harm. This Article explores how the gay and lesbian dignity cases exemplify the process by which constitutional law emerges from a social and cultural dialogue in which the Supreme Court actively participates. In doing …
Institutional Independence: Lawyers And The Administrative State, Melissa Mortazavi
Institutional Independence: Lawyers And The Administrative State, Melissa Mortazavi
Fordham Law Review
The institutional structure where federal government lawyers practice is fraught with political and economic pressures that undermine the ability of lawyers to exercise independent professional judgment. A lack of candid legal advice in this space not only removes a pivotal fail-safe between legal and illegal state action but also precariously imbalances the powerful administrative state, exposing it to undue political influence. For these reasons, this Article argues that structural changes to administrative institutions must be made to support and nurture lawyers’ ability to independently determine the bounds of legality. Previous scholarship has examined the role of professional independence for lawyers …
It Is Emphatically The Province And Duty Of State Courts To Say What Tort Law Is, Sijin Choi
It Is Emphatically The Province And Duty Of State Courts To Say What Tort Law Is, Sijin Choi
Fordham Law Review
Following the U.S. Supreme Court’s 2011 decision in PLIVA, Inc. v. Mensing, consumers of generic prescription drugs suffering from unwarnedof side effects largely remain without an avenue of legal recourse due to their inability to sue their own manufacturers. But in the pursuit for legal redress, some generic plaintiffs have pursued a narrow window of liability by bringing failure-to-warn claims, sounding in negligence, against the manufacturer responsible for producing the brand-name equivalent of the generic drug. Such claims rest on the rationale that the sui generis federal regulatory scheme governing the prescription drug industry furnishes an inextricable nexus between …
Reevaluating School Searches Following School-To-Prison Pipeline Reforms, Josh Gupta-Kagan
Reevaluating School Searches Following School-To-Prison Pipeline Reforms, Josh Gupta-Kagan
Fordham Law Review
The U.S. Supreme Court held in New Jersey v. T.L.O. that school officials could search students without a warrant and with only reasonable suspicion, not probable cause, because of schools’ need for discipline and the relationship between educators and students. That case belongs to a body of Fourth Amendment cases involving, in T.L.O.’s terms, “special needs, beyond the normal need for law enforcement.” What Fourth Amendment standard, then, governs searches involving one of the roughly 20,000 school resource officers (SROs) in American schools? Most state courts to decide the issue in the 1990s and 2000s found that T.L.O. applied to …
Disagreeing Over Agreements: A Cross-Sectional Analysis Of No-Poaching Agreements In The Franchise Sector, Catherine E. Schaefer
Disagreeing Over Agreements: A Cross-Sectional Analysis Of No-Poaching Agreements In The Franchise Sector, Catherine E. Schaefer
Fordham Law Review
In October 2016, the Department of Justice Antitrust Division announced its intent to proceed criminally against parties to no-poaching agreements, or agreements between or among employers not to hire each other’s workers. Consequently, a wave of class action antitrust lawsuits has raised questions about the legality of no-poaching or no-hire provisions that certain franchised food businesses use. Fast-food restaurant chains, including McDonald’s, Carl’s Jr., and Pizza Hut, have recently found themselves embroiled in such litigation. This Note examines prior antitrust litigation involving no-poaching agreements between companies and discusses the differences and similarities between these cases and the cases involving franchised …
Lawyers In Government Service—A Foreword, Bruce A. Green
Lawyers In Government Service—A Foreword, Bruce A. Green
Fordham Law Review
Lawyers in government serve in many different roles, both representational and nonrepresentational. Some represent the federal, state, or local government, a particular governmental entity (such as a department of consumer affairs) or agency (such as the NLRB), or public officials in their official capacity. These lawyers render a range of legal services and act as litigators, negotiators, drafters, and counselors. Other lawyers in government serve in nonrepresentative capacities; for example, as elected or appointed officials or as their aides. Scholarship on government lawyers addresses these varied roles and functions from varied perspectives, drawing on different bodies of law and legal …
All Watched Over By Machines Of Loving Grace: Border Searches Of Electronic Devices In The Digital Age, Sean O'Grady
All Watched Over By Machines Of Loving Grace: Border Searches Of Electronic Devices In The Digital Age, Sean O'Grady
Fordham Law Review
The border search exception to the Fourth Amendment has historically given the U.S. government the right to conduct suspicionless searches of the belongings of any individual crossing the border. The federal government relies on the border search exception to search and detain travelers’ electronic devices at the border without a warrant or individualized suspicion. The government’s justification for suspicionless searches of electronic devices under the traditional border search exception for travelers’ property has recently been called into question in a series of federal court decisions. In March 2013, the Ninth Circuit in United States v. Cotterman became the first federal …
Law And Nonlegal Norms In Government Lawyers' Ethics: Discretion Meets Legitimacy, W. Bradley Wendel
Law And Nonlegal Norms In Government Lawyers' Ethics: Discretion Meets Legitimacy, W. Bradley Wendel
Fordham Law Review
This Essay is about the role of unwritten norms in the ethical decisionmaking of government lawyers. Because the ethical obligations of lawyers, including government lawyers, are closely tied to the legal rights and obligations of clients, this analysis necessarily depends on understanding the relationship between written law and unwritten norms. As we all know, however, written law leaves gaps, ambiguities, and zones of unregulated discretion. Prosecutors in the United States, for example, have virtually unreviewable discretion to decide who to investigate and charge, what charges to bring, and whether to offer immunity in exchange for cooperation. No one has a …
Differentiating Legislative From Nonlegislative Rules: An Empirical And Qualitative Analysis, Nadav D. Ben Zur
Differentiating Legislative From Nonlegislative Rules: An Empirical And Qualitative Analysis, Nadav D. Ben Zur
Fordham Law Review
The elusive distinction between legislative rules and nonlegislative rules has frustrated courts, motivated voluminous scholarly debate, and ushered in a flood of litigation against administrative agencies. In the absence of U.S. Supreme Court guidance on the proper demarcating line, circuit courts have adopted various tests to ascertain a rule’s proper classification. This Note analyzes all 241 cases in which a circuit court has used one or more of the enunciated tests to differentiate legislative from nonlegislative rules. These opinions come from every one of the thirteen circuits and span the period of the early 1950s through 2018. This Note identifies …
Fosta: A Hostile Law With A Human Cost, Lura Chamberlain
Fosta: A Hostile Law With A Human Cost, Lura Chamberlain
Fordham Law Review
The Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”) rescinded legal immunity for websites that intentionally host user-generated advertisements for sex trafficking. However, Congress’s mechanism of choice to protect sex-trafficking victims has faced critique and backlash from advocates for those involved in commercial sex, who argue that FOSTA’s broad legislative language does far more to harm sex workers—a group distinct from sex-trafficking victims—than it does to end sex trafficking, chilling significant protected speech in the process. These critics posit that FOSTA’s results toward eradicating sex trafficking have been negligible and that its chief outcome has …