Law Commons^™

Presidential Succession And Inability: Before And After The Twenty-Fifth Amendment, John D. Feerick

Fordham Law Review

The Framers of the Constitution did not spend a great deal of time on the succession provisions, but just enough to get the nation started. The Twenty-Fifth Amendment answered questions they left open in the area of presidential inability and gave further significance to the Vice Presidency, which had been adopted almost as an afterthought. As strong as the system of presidential succession may appear, complacency can easily set in, leading to an unwillingness to confront gaps and defects that reveal themselves along the way.

Several gaps in the area of presidential inability are triggered by the absence of any …

Property In Crisis, Nestor M. Davidson, Rashmi Dyal-Chand

Fordham Law Review

Property law generally develops gradually, with doctrine slowly accreting in the interstices of daily conflict and the larger culture of property likewise emerging at a glacial pace. In times of crisis, however, fundamental questions about the nature of ownership and the balance between the individual and the state instantiated in the structure of property rise rapidly to the surface. Our current economic crisis—the deepest since the Great Depression—is no exception. This economic crisis, more than many in our history, began with property, sparked in no small measure by structural flaws in the residential market and an ownership society that advocated …

Prospective Compensation In Lieu Of A Final Injunction In Patent And Copyright Cases, H. Tomas Gomez-Arostegui

Fordham Law Review

In a 2006 decision, eBay Inc. v. MercExchange, L.L.C., the U.S. Supreme Court held that traditional equitable factors apply to injunctions in patent and copyright cases, and therefore the mere fact that a defendant has infringed a patent or a copyright does not necessarily mean a final injunction must issue. In the three years since, lower courts have denied final injunctions more frequently than before and are now struggling with what relief, if any, to give prevailing plaintiffs in lieu of an injunction. Some courts permit plaintiffs to sue again later. But most award prospective relief to plaintiffs¾sometimes a lump-sum …

The Cafa Mass Action Numerosity Requirement: Three Problems With Counting To 100, Guyon Knight

Fordham Law Review

This Note examines the mass action provision of the Class Action Fairness Act of 2005 (CAFA) and the difficulties courts have encountered when applying its seemingly simple 100-person numerosity requirement. “Mass actions” are a broad category of nonclass aggregate litigation over which CAFA extended federal jurisdiction. This Note examines three interpretations of the numerosity requirement advanced in recent cases. These interpretations have advocated, in turn, not finding a mass action when a case has more than 100 formally joined plaintiffs, recognizing the existence of a single mass action broken up among parallel suits with fewer than 100 plaintiffs, and finding …

Using Disparate Impact Analysis In Fair Housing Act Claims: Landlord Withdrawal From The Section 8 Voucher Program, Rebecca Tracy Rotem

Fordham Law Review

The Fair Housing Act (FHA) outlaws discrimination in housing based on race, color, religion, national origin, and sex. A plaintiff can win an FHA claim using a disparate impact theory by showing that the defendant’s actions had a disproportionately adverse impact on a protected class. This Note will address a circuit court split on whether a landlord can be held liable for discrimination under the FHA for withdrawing from the Section 8 voucher program. Section 8 is a government program that provides low-income citizens with vouchers to pay a portion of their rent. Many voucher recipients are minorities or persons …

Strictly Wrong As A Tax Policy: The Strict Liability Penalty Standard In Noneconomic Substance Transactions, Mik Shin-Li

Fordham Law Review

This Note analyzes the propriety of using a strict liability standard to assess tax penalties for transactions lacking economic substance. Noneconomic substance transactions lack legitimate business objectives and exist only to produce tax benefits. Under current law, the Internal Revenue Service can disallow the tax benefit claimed by the taxpayer and then assess a penalty for the taxpayer’s understatement of tax liability. In response, the taxpayer can assert a reasonable cause exception, which can serve as a defense to the penalty should the taxpayer demonstrate that he had reasonable basis for his tax position. In the last decade, numerous legislative …

The Economic Downturn And The Legal Profession, Foreword: The Great Recession And The Legal Profession, Eli Wald

Fordham Law Review

No abstract provided.

Team Of Rivals? Toward A New Model Of The Corporate Attorney-Client Relationship, David B. Wilkins

Fordham Law Review

No abstract provided.

Supply Chains And Porous Boundaries: The Disaggregation Of Legal Services, Milton C. Regan, Jr., Palmer T. Heenan

Fordham Law Review

No abstract provided.

Multidisciplinary Practice Redux: Globalization, Core Values, And Reviving The Mdp Debate In America, Paul D. Paton

Fordham Law Review

No abstract provided.

The Changing Professional Landscape Of Large Law Firms, Glass Ceilings And Dead Ends: Professional Ideologies, Gender Stereotypes, And The Future Of Women Lawyers At Large Law Firms, Eli Wald

Fordham Law Review

No abstract provided.

Managing Pro Bono: Doing Well By Doing Better, Scott L. Cummings, Deborah L. Rhode

Fordham Law Review

No abstract provided.

Getting A Fix On Cocaine Sentencing Policy: Reforming The Sentencing Scheme Of The Anti-Drug Abuse Act Of 1986, Alyssa L. Beaver

Fordham Law Review

The now-infamous “War on Drugs” campaign of the 1980s culminated in the adoption of the Anti-Drug Abuse Act of 1986, which included a provision for a one-hundred-to-one sentencing ratio of powder cocaine to crack cocaine. This ratio provides that the penalty for a crime involving five or ten grams of crack cocaine is equivalent to the sentence for a crime involving five hundred or one thousand grams of powder cocaine. This structure has led to a racial disparity in sentencing because African Americans are more often charged with a crack cocaine offense than Caucasians, who are usually indicted for powder …

The Rule 10b-5 Suit: Loss Causation Pleading Standards In Private Securities Fraud Claims After Dura Pharmaceuticals, Inc. V. Broudo, Evan Hill

Fordham Law Review

In 2005, the U.S. Supreme Court decided Dura Pharmaceuticals, Inc. v. Broudo. The Court held that a plaintiff alleging securities fraud must prove that a defendant’s misrepresentation caused actual economic loss. The Dura decision put to rest the loss causation standard applied by several U.S. courts of appeals, which allowed plaintiffs to merely plead that a misrepresentation caused an artificially inflated purchase price. However, in Dura’s wake, the circuit courts have fashioned divergent standards with respect to pleading loss causation. The courts currently apply pleading standards ranging from the lenient and generally applicable Federal Rule of Civil Procedure 8(a) to …

The Theory Of Generativity, David G. Post

Fordham Law Review

No abstract provided.

The Fourth Quadrant, Jonathan Zittrain

Fordham Law Review

No abstract provided.

The Compatibility Of Patent Law And The Internet, Jeanne C. Fromer

Fordham Law Review

No abstract provided.

The Internet Is A Semicommons, James Grimmelmann

Fordham Law Review

No abstract provided.

Non-Network Barriers To Network Neutrality, Mark R. Patterson

Fordham Law Review

No abstract provided.

Accepting Justice Kennedy's Dare: The Future Of Integration In A Post-Pics World, Daniel Kiel

Fordham Law Review

In the wake of the most important public schools case in decades, Parents Involved in Community Schools (PICS), the future of diversity in public schools is in doubt. This period of uncertainty comes at a moment when parents, educators, and employers are demanding high quality schools that prepare students for an increasingly globalized world. Justice Anthony M. Kennedy, in his PICS concurrence, recognized this discrepancy and challenged districts to continue the important work of bringing different students together without resorting to unconstitutional means. Filling the void between what is essential to public education and what is constitutionally permissible after PICS, …

Behind The Music: Determining The Relevant Constitutional Standard For Statutory Damages In Copyright Infringement Suits, Colin Morrissey

Fordham Law Review

Record labels have brought thousands of copyright infringement lawsuits against individuals engaged in the online downloading and distribution of music. As these lawsuits work their way through the court system, a debate has emerged over the constitutionality of the large statutory damage awards some juries have awarded. In arguing that the copyright statute results in unconstitutional damage awards, commentators as well as defendants accused of copyright infringement contend that courts should apply the rigorous standard of review for punitive damages that the U.S. Supreme Court adopted in BMW of North America v. Gore to find large statutory damage awards unconstitutional. …

Judge Or Jury? Determining Deception Or Misrepresentation Under The Fair Debt Collection Practices Act, Christian Stueben

Fordham Law Review

This Note explores the conflict among the federal circuit courts as to whether a judge or jury should decide if the language contained in a collection letter is false, misleading, or deceptive to the least sophisticated consumer under the Fair Debt Collection Practices Act (FDCPA). Some circuits, such as the Second and Ninth Circuits, hold that this issue is a question of law, appropriate for the judge to decide. In contrast, the Seventh Circuit finds this to be a question of fact, and requires the plaintiff to submit extrinsic evidence in the form of professional surveys in order to reach …

Presidential Succession Scenarios In Popular Culture And History And The Need For Reform, William F. Baker, Beth A. Fitzpatrick

Fordham Law Review

This Article looks at the issue of presidential succession through the lens of the popular imagination, attempting see what in the nation’s laws needs changing. Many of the movies and television shows that have made plots or subplots out of presidential succession imagine what would happen if the president was killed in a nuclear attack (Jericho and By Dawn’s Early Light), a natural disaster (The Day After Tomorrow), or even an alien invasion (Mars Attacks!). Other common plotlines feature nefarious vice presidents or other officials seizing presidential office by murdering the chief executive or …

Extensions On The Twenty-Fifth Amendment: The Influence Of Biological Factors On Assessments Of Impairment, Rose Mcdermott

Fordham Law Review

Because the framers of the Twenty-Fifth Amendment were so prescient in their creation of this legislation, it behooves subsequent scholars to examine additional potential concerns that would not have entered the debate forty years ago. Huge advances have been made in the area of biological and genetic medical knowledge, and this progress could not have been foreseen at the time the original Amendment was written. Yet in the interim, such information has become much more accessible. It becomes important to raise these questions moving forward because political opponents may take advantage of these new concerns, as they arise, and use …

Presidential Succession: The Art Of The Possible, James E. Fleming

Fordham Law Review

This essay advocates for reforming the presidential succession system by working with the system we have, tweaking it in politically feasible ways to make it better, given an understanding of politics as the art of the possible. It defends the line of succession statute on constitutional and policy grounds before advancing recommendations for improving the succession system. The Essay calls for reforms to ensure that legislative successors are members of the president’s political party. It also suggests the creation of a vice Vice President or a body of successors appointed by the President and confirmed by the Senate

Taking From The Twenty-Fifth Amendment: Lessons In Ensuring Presidential Continuity, Joel K. Goldstein

Fordham Law Review

The Twenty-Fifth Amendment remains the most successful effort to address continuity problems inherent in the original Constitution or which subsequently developed. Lessons from that experience may help reformers act to resolve at least some of the remaining shortcomings. In addition to its provisions, the Twenty-Fifth Amendment represents certain implicit constitutional values that should guide responses to remaining problems. Moreover, it was the product of successful legislative strategies in an area that generally resists such measures. Although all of these principles and lessons do not point in the same direction and some have limited application to the remaining issues, others should …

Remarks From Senator Birch Bayh

Fordham Law Review

These Remarks are adapted from an address given by former Senator Birch Bayh at the symposium The Adequacy of the Presidential Succession System in the 21st Century, which was held at Fordham University School of Law on April 16 and 17, 2010. Senator Bayh discusses his role as the Twenty-Fifth Amendment’s principal sponsor and describes the origins and rationales for amendment’s provisions.

Lost Opportunity: Learning The Wrong Lesson From The Hayes-Tilden Dispute, Nathan L. Colvin, Edward B. Foley

Fordham Law Review

A clear, efficient, and fair mechanism for resolving election disputes is an important aspect of smooth presidential succession. It is also something that our Constitution has lacked from its inception, and the adverse consequences of its absence were most recently apparent in the 2000 election. The 1876 Hayes-Tilden election, which required an Electoral Commission to resolve disputes about presidential electors, was the most severe manifestation of this presidential succession gap. As such, it also should have represented the best opportunity to fix the problem.

Instead of wholesale reform and constitutional amendment, Congress spent the next eleven years focusing its energy …

To Catch A Predator Or To Save His Marriage: Advocating For An Expansive Child Abuse Exception To The Marital Privileges In Federal Courts, Emily C. Aldridge

Fordham Law Review

In prosecutions for child abuse, the government’s most valuable witness is often the defendant’s spouse. Ordinarily, the marital privileges allow a witness to refuse to testify or a defendant to bar his or her spouse’s testimony. When a defendant is on trial for a crime committed against a child, however, the privileges are unavailable. Although this exception aims to serve justice on behalf of innocent children, its applicability often hinges on the relationship between perpetrator and victim. In some federal courts, the minor victim must be the child or stepchild of the defendant, while others have held the exception applicable …

The Risk Of Risk Management, Stephan Landsman

Fordham Law Review

No abstract provided.