Law Commons^™

Conflict Minerals Legislation: The Sec’S New Role As Diplomatic And Humanitarian Watchdog, Karen E. Woody

Fordham Law Review

Buried in the voluminous Dodd-Frank Wall Street Reform and Consumer Protection Act is an oft-overlooked provision requiring corporate disclosure of the use of “conflict minerals” in products manufactured by issuing corporations. This Article scrutinizes the legislative history and lobbying efforts behind the conflict minerals provision to establish that, unlike the majority of the bill, its goals are moral and political, rather than financial. Analyzing the history of disclosure requirements, the Article suggests that the presence of conflict minerals in an issuer’s product is not inherently material information and that the Dodd-Frank provision statutorily renders nonmaterial information material. The provision, therefore, …

Instructing Juries On Noneconomic Contract Damages, David A. Hoffman, Alexander S. Radus

Fordham Law Review

Gathering pattern contract jury instructions from every state, we examine jurisdictions’ treatment of noneconomic damages. While the conventional account holds that there is a uniform preference against awards of noneconomic damages, we find four different approaches in pattern instructions, with only one state explicitly prohibiting juries from considering noneconomic losses. Lay juries have considerably more freedom to award the promisee’s noneconomic damages than the hornbooks would have us believe.

We substantiate this claim with an online survey experiment asking respondents about a simple contract case and instructing them using the differing pattern forms. We found that subjects routinely awarded more …

Bankrupt Estoppel: The Case For A Uniform Doctrine Of Judicial Estoppel As Applied Against Former Bankruptcy Debtors, Eric Hilmo

Fordham Law Review

This Note examines the role judicial estoppel plays in supporting the U.S. federal bankruptcy regime. Though once considered an obscure doctrine, the use of judicial estoppel to bar pursuit of previously undisclosed claims by former bankrupts has grown apace with burgeoning bankruptcy filings over the last decade. While the doctrine’s application in federal courts has evolved toward a common standard of application, state courts’ application remains idiosyncratic. The Note argues that under the established laws of judgment recognition and in light of federal courts’ sophisticated application of the doctrine, state courts should apply federal judicial estoppel standards to further national …

Functionalism’S Military Necessity Problem: Extraterritorial Habeas Corpus, Justice Kennedy, Boumediene V. Bush, And Al Maqaleh V. Gates, Richard Nicholson

Fordham Law Review

The U.S. Supreme Court has struggled over the last 150 years to definitively answer the question of whether the U.S. Constitution applies beyond the borders of the territorial United States. Because the Constitution is silent on the issue, the burden has fallen on the judiciary to establish the contours of the doctrine. At times, the Court has espoused formulistic theories limiting constitutional application to territorial sovereignty, while at others it has looked to more objective, practical solutions that reach beyond the borders.

In 2008, the Supreme Court held in Boumediene v. Bush that the application of the Suspension Clause of …

Determining Diversity Jurisdiction Of National Banks After Wachovia Bank V. Schmidt, Michael Podolsky

Fordham Law Review

Prior to the U.S. Supreme Court’s decision in Wachovia Bank v. Schmidt, some courts held, for diversity jurisdiction purposes, that national banks were citizens of each and every state in which they had a branch. In Schmidt, the Supreme Court made it clear that this approach was incorrect, but failed to provide an alternative one. Not surprisingly, in the wake of that decision another court split developed. While some courts have found that national banks are citizens only of the state listed on their charters as their main office, others have found that national banks are also citizens …

Disfavored Constitution, Passive Virtues? Linking State Constitutional Fiscal Limitations And Permissive Taxpayer Standing Doctrines, Joshua G. Urquhart

Fordham Law Review

This Article contrasts the permissive state taxpayer standing doctrines in place in most states with the restrictive federal and state taxpayer standing rules applied in federal court. It proposes a new theory to explain this disparity, arguing that ubiquitous state constitutional fiscal restrictions, which specifically limit a state government’s ability to tax, spend, and borrow, are a primary impetus in the creation and development of liberal state taxpayer standing doctrines. The Article evaluates this novel hypothesis through an empirical-historical survey of the early state taxpayer standing decisions in every permissive jurisdiction and finds that these provisions are indeed involved in …

Foreward, Joseph Landau

Fordham Law Review

On March 30, 2012, the Fordham Law Review held a daylong conference on the federal Defense of Marriage Act (DOMA), a statute enacted in 1996 with large majorities in both the House and Senate and signed into law by President Clinton. The Symposium could not have come at a better time: there have been extraordinary changes in the political dynamics surrounding relationship rights since DOMA’s enactment in 1996, when same–sex couples could not marry in any U.S. or foreign jurisdiction. Currently, same–sex couples can legally marry in six U.S. states and the District of Columbia. Nine additional states have broad …

The Solicitor General’S Office, Tradition, And Conviction, Charles Fried

Fordham Law Review

No abstract provided.

Interpretive Schizophrenia: How Congressional Standing Can Solve The Enforce-But-Not-Defend Problem, Abner S. Greene

Fordham Law Review

No abstract provided.

The Obama Administration’S Decision To Defend Constitutional Equality Rather Than The Defense Of Marriage Act, Dawn Johnsen

Fordham Law Review

No abstract provided.

Doma And Presidential Discretion: Interpreting And Enforcing Federal Law, Joseph Landau

Fordham Law Review

No abstract provided.

The Moral Complexity Of Cause Lawyers Within The State, David Luban

Fordham Law Review

No abstract provided.

Cause Lawyers Inside The State, Douglas Nejaime

Fordham Law Review

No abstract provided.

“Two Parts Of The Landscape Of Family In America”: Maintaining Both Spousal And Domestic Partner Employee Benefits For Both Same-Sex And Different-Sex Couples, Nancy D. Polikoff

Fordham Law Review

No abstract provided.

Involuntary Imports: Williams, Lutwak, The Defense Of Marriage Act, Federalism, And “Thick” And “Thin” Conceptions Of Marriage, Lynn D. Wardle

Fordham Law Review

No abstract provided.

Collegiality And Individual Dignity, Tobias Barrington Wolff

Fordham Law Review

No abstract provided.

Recognizing The Right To Petition For Victims Of Domestic Violence, Tamara L. Kuennen

Fordham Law Review

Like any citizen, a victim of domestic violence (DV) may call the police for help when she needs it. And yet, when a victim calls the police, she not only seeks law enforcement assistance but also invokes her constitutional right to seek one of the most fundamental services the government can provide—protection from harm. That right, recently described by the Supreme Court as “essential to freedom,” is the right “to petition the Government for a redress of grievances” guaranteed by the First Amendment.

This Article argues that a combination of law and policy initiatives produces negative collateral consequences for DV …

Unconstitutional Animus, Susannah W. Pollvogt

Fordham Law Review

It is well established that animus can never constitute a legitimate state interest for purposes of equal protection analysis. But neither precedent nor scholarship has stated conclusively how animus is properly defined, what counts as evidence of animus in any given case, or the precise doctrinal significance of a finding of animus. The U.S. Supreme Court has explicitly addressed the question of animus only a handful of times, and these cases do not appear to be particularly congruent with one another, at least on the surface. Further, while a number of scholars have discussed animus in terms of moral philosophy, …

A Call To Action—Examining Nepal’S Post-Conflict Strategy Toward Persons Accused Of Gross Human Rights Abuses, Jennifer Chiang

Fordham Law Review

This Note analyzes Nepal’s attempts to establish accountability and the rule of law in the aftermath of its ten-year civil war. It compares Nepal’s treatment of persons implicated in gross human rights violations with the international human rights legal framework surrounding a state’s international obligations, particularly in its use of transitional justice mechanisms. It argues that Nepal’s failure to bring either administrative sanctions or criminal prosecutions against officials accused of human rights abuses—and its reliance instead on truth commissions—undermines the rule of law and violates the country’s international human rights obligations.

But Is It Just? The Inability For Current Adjudicatory Standards To Provide “Just Compensation” For Creeping Expropriations, Shain Corey

Fordham Law Review

In hopes of promoting foreign direct investment, the world has experienced an influx of bilateral investment treaties over the past twenty years. One protection these treaties afford to foreign investors is the guarantee of “just compensation” if the host government expropriates their investment, either directly or indirectly. Extensive jurisprudence exists discussing how a tribunal determines “just compensation” in cases of expropriation; however, these methods have historically revolved around valuing direct expropriations. While tribunals use these same methods to value indirect expropriations, analysis of these adjudications, particularly in the cases of a creeping expropriation, result in inconsistent and unpredictable outcomes

This …

Unclear Authority, Unclear Futures: Challenges To State Legislation Providing In-State Tuition Benefits To Undocumented Students Pursuing Higher Education, Julia R. Kim

Fordham Law Review

Exercising its federal power to regulate immigration, Congress has responded to illegal immigration by enacting deterrent legislation that includes provisions denying public benefits to undocumented immigrants. One of these provisions, 8 U.S.C. § 1623, explicitly bars states from providing postsecondary education benefits to undocumented immigrants on the basis of in-state residency. As a consequence, undocumented young adults—many of whom grew up and received their primary and secondary education in the United States—are effectively barred from pursuing higher education by their ineligibility for in-state tuition rates and financial aid. Some states, however, have evaded the § 1623 bar by providing undocumented …

Funding Conditions And Free Speech For Hiv/Aids Ngos: He Who Pays The Piper Cannot Always Call The Tune, Alexander P. Wentworth-Ping

Fordham Law Review

The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act pledges billions of dollars to fund NGOs combating the HIV/AIDS epidemic but requires recipients to adopt a policy explicitly opposing prostitution and sex trafficking. A possible recipient NGO confronts a tough decision: adopt an affirmative statement against prostitution and sex trafficking to accept the funds, alienating a vital partner in its efforts to eradicate HIV/AIDS; or deny the funds to speak its own message, though without the benefit of government assistance.

Courts are split on whether the Leadership Act’s policy requirement places an unconstitutional condition on federal funds that requires …

Missing Links In The President’S Evolution On Same-Sex Marriage, Saikrishna Bangalore Prakash

Fordham Law Review

No abstract provided.

Enron, Doma, And Spousal Privileges: Rethinking The Marriage Plot, Bennett Capers

Fordham Law Review

No abstract provided.

A Gate Forever Closed? Retiring Immigration Law’S Post-Departure Bar, Jonathan H. Ross

Fordham Law Review

Immigration law’s “post-departure bar” destroys the jurisdiction of either an immigration judge or the Board of Immigration Appeals to hear a motion to reopen or reconsider filed by an alien who is no longer physically within the country. This Note examines the current conflict between the federal circuits regarding the post-departure bar and why the circuits that have decided to strike down the bar in the cases before them have ruled in line with certain trends present in recent Supreme Court immigration cases.

Conflict between the circuits has arisen because the governing statute, the Illegal Immigration Reform and Immigrant Responsibility …

Plain Reading, Subtle Meaning: Rethinking The Ioia And The Immunity Of International Organizations, George B. Adams Iii

Fordham Law Review

Immunity is freedom from liability, and as such, it can quite literally provide a “get out of jail free” card. In the United States, international organizations face uncertainty about the scope of their immunity, which is provided by the International Organizations Immunities Act (IOIA). The D.C. Circuit has found that international organizations enjoy absolute immunity under the IOIA. Conversely, the Third Circuit recently held that international organizations are only entitled to restrictive immunity, which limits immunity to claims involving an organization’s public acts and does not exempt them from suits based on their commercial or private conduct.

This Note contends …

A Remedy Foreclosed? Mortgage Foreclosure And The Fair Debt Collection Practices Act, Richard D. Gage

Fordham Law Review

During the Global Financial Crisis, millions of homeowners received foreclosure notices. Many of these notices were sent by attorneys, and informed consumers of an impending mortgage foreclosure. Courts are split on whether foreclosures must conform with the Fair Debt Collection Practices Act (FDCPA). In order to be subject to the FDCPA, an entity must meet the statutory definition of “debt collector.” Courts struggle with whether foreclosure attorneys fall under this definition. This Note examines this conflict, and suggests a fact-sensitive framework for evaluating whether foreclosure attorneys are debt collectors.

The “Peripheral Plaintiff”: Duty Determinations In Take-Home Asbestos Cases, Yelena Kotlarsky

Fordham Law Review

Since the 1970s, litigation concerning the dangers of asbestos in the workplace has transformed from a few workers’ compensation claims to hundreds of thousands of lawsuits against companies in nearly every industry. While the typical plaintiff in these claims is an employee injured while handling asbestos at the worksite, a new class of “peripheral plaintiffs” has recently emerged. These plaintiffs consist of family members who are exposed to asbestos after inhaling the dust that saturates an employee’s person and clothing. The family members then bring claims against the employers and the owners of the premises claiming that they were negligent …

Track Me Maybe: The Fourth Amendment And The Use Of Cell Phone Tracking To Facilitate Arrest, Jeremy H. Rothstein

Fordham Law Review

Police use of technology to locate and track criminal suspects has drawn increasing attention from courts, commentators, and the public. In United States v. Jones, the Supreme Court held that police installation of a GPS tracking device on a suspect’s vehicle constituted a search under the Fourth Amendment. Less attention has been paid to police tracking of cell phones—a far more common practice. Police can now locate a cell phone within several feet, using either GPS or information taken from cell towers.

In August 2011, the government asked a federal magistrate judge in Maryland to allow thirty days of …

The Representative Equality Principle: Disaggregating The Equal Protection Intent Standard, Bertrall L. Ross Ii

Fordham Law Review

Challenges under the Equal Protection Clause require proof of intentional discrimination. Though rarely questioned by legal scholars or the courts, that conventional account cannot explain the success of equal protection challenges to electoral structures that dilute the vote of racial minorities. In the Supreme Court’s most recent decisions on vote dilution, the Court has invalidated local electoral structures under the Equal Protection Clause to the extent that they deprive African Americans of the opportunity for effective representation in the political process. The Court has reached its decisions despite the absence of any proof of intentional discrimination in the adoption of …