Law Commons^™

The Collateral Fallout From The Quest For A Unitary Executive, Harold J. Krent

Fordham Law Review

To bolster a strong “Unitary Executive,” the Roberts Court has held that Congress can neither shield a single head of an administrative agency nor an inferior officer in an independent agency from removal at will. With respect to appointments, the Roberts Court has held that adjudicative officers in many executive agencies must now be appointed either by the President or a superior officer under the President’s supervision. As a result, dissenting Justices and academics have accused the Roberts Court of expanding Article II beyond both the constitutional text—which seemingly grants Congress the discretion to structure administrative agencies as it deems …

The Case For Federal Deference To State Court Redistricting Rulings: Lessons From Ohio’S Districting Disaster, John Sullivan Baker

Fordham Law Voting Rights and Democracy Forum

In a watershed 2015 referendum, Ohioans decisively approved a state constitutional amendment that prohibited partisan gerrymandering of General Assembly districts and created the Ohio Redistricting Commission. Though the amendment mandated that the Commission draw proportional maps not primarily designed to favor or disfavor a political party, the Commission—composed of partisan elected officials—repeatedly enacted unconstitutional, heavily gerrymandered districting plans in blatant defiance of the Ohio Supreme Court.

After the Ohio Supreme Court struck down four of the Commission’s plans, leaving Ohio without state House and Senate maps just months before the 2022 general election, a group of voters sued in the …

Proceedings At An Impasse: Appealing Fugitive Disentitlement Orders Of International Defendants Under The Collateral Order Doctrine, Parker Siegel

Fordham Law Review

The doctrine of fugitive disentitlement allows federal courts to decline to entertain a defendant’s claims when that defendant is deemed a fugitive from justice. Once disentitled, defendants cannot seek relief from the judicial system until they submit to the court’s jurisdiction. But complications emerge when federal district courts disentitle non–U.S. citizens who reside outside of the United States, who are indicted for alleged misconduct committed abroad, and who attempt to dismiss charges while remaining in their home countries. Federal circuit courts of appeals are split on whether such defendants can appeal from a fugitive disentitlement ruling without submitting to the …

The Move Toward An Indigenous Virgin Islands Jurisprudence: Banks In Its Second Decade, Kristen David Adams

Fordham Law Review

In 2011, the Supreme Court of the U.S. Virgin Islands decided Banks v. International Rental & Leasing Corp. and, with that decision, introduced a new era in Virgin Islands jurisprudence that embraced a much more active role for Virgin Islands courts and a correspondingly diminished role for the American Law Institute’s restatements. This Essay examines what I will call “second-generation” decisions referencing Banks with the goal of determining whether Banks and its progeny have met, or are at least in the process of meeting, “the goal of establishing ‘an indigenous Virgin Islands jurisprudence’” set by the Banks court. Ultimately, this …

Visible And Invisible: The Case For A Territorial Reporter, Joseph T. Gasper Ii

Fordham Law Review

This Essay discusses the relative invisibility of opinions issued by America’s territorial courts. Today, there is no territorial reporter that publishes the decisions of these courts, making it difficult, if not impossible, to find territorial case law. The absence of a territorial reporter excludes Territories from the national legal community and obscures the efforts of past judges and justices who grappled with the same administrative and constitutional challenges which American Territories face today. To remedy this issue, this Essay argues that it is time for a dedicated territorial reporter.

A Modern-Day 3/5 Compromise: The Case For Finding Prison Gerrymandering Unconstitutional Under The Thirteenth Amendment, Shana Iden

Fordham Law Voting Rights and Democracy Forum

Vestiges of slavery and systemic disenfranchisement of people of color persist in the United States. One of these remnants is the practice of prison gerrymandering, which occurs when government officials count incarcerated individuals as part of the population of the prison’s location rather than the individual’s home district. This Article argues that prison gerrymandering functions as a badge of slavery that should be prohibited under the Thirteenth Amendment.

First, this Article provides background on prison gerrymandering and charts its impact through history, particularly on Black communities. Moreover, this Article analyzes how litigation under the Fourteenth Amendment has not yielded meaningful …

A Constitutional Right To Early Voting, David Schultz

Fordham Law Voting Rights and Democracy Forum

Voting is a cost-benefit decision. Individuals are more likely to vote if the benefits of doing so outweigh the disadvantages. With early voting laws eased due to the COVID-19 pandemic, the 2020 election demonstrated that turnout increases when elected officials reduce voting costs. Despite all the benefits of early voting, there is no constitutional right, and it remains a privilege that state legislatures can revoke at will.

Since the 2020 election, state legislatures have proposed—and enacted—hundreds of bills to change voting rules. But with the intense partisan disagreement over voting, coupled with political polarization reaching an apex, these acts restricting …

Moore V. Harper And The Consequential Effects Of The Independent State Legislature Theory, Chase Cooper

Fordham Law Voting Rights and Democracy Forum

In December 2022, the United States Supreme Court heard oral arguments in Moore v. Harper. The case addresses whether the North Carolina Supreme Court possesses the authority to strike down a redistricting map drawn by the state legislature. Petitioners contend that the state legislature has no such authority under the United States Constitution, citing a novel interpretation of the Elections Clause known as the “independent state legislature” (“ISL”) theory. The ISL theory is not a unified theory, but rather a constellation of related doctrinal positions that revolve around a core precept: ordinary governing principles by which state courts review …

Rucho In The States: Districting Cases And The Nature Of State Judicial Power, Chad M. Oldfather

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Bottom-Rung Appeals, Merritt E. Mcalister

Fordham Law Review

There are “haves” and “have-nots” in the federal appellate courts, and the “haves” get more attention. For decades, the courts have used a triage regime under which they distribute judicial attention selectively: some appeals receive a lot of judicial attention, and some appeals receive barely any. What this Article reveals is that this triage system produces demonstrably unequal results, depending on the circuit handling the appeal and whether the appellant has counsel or not. Together, these two factors produce significant disparities: in one circuit, for example, an unrepresented appellant receives, on average, a decision less than a tenth the length …

Carceral Deference: Courts And Their Pro-Prison Propensities, Danielle C. Jefferis

Fordham Law Review

Judicial deference to nonjudicial state actors, as a general matter, is ubiquitous, both in the law and as a topic of legal scholarship. But “carceral deference”—judicial deference to prison officials on issues concerning the legality of prison conditions—has received far less attention in legal literature, and the focus has been almost entirely on its jurisprudential legitimacy. This Article contextualizes carceral deference historically, politically, and culturally, and it thus adds a piece that has been missing from the literature. Drawing on primary and secondary historical sources and anchoring the analysis in Bourdieu’s field theory, this Article is an important step to …

Bastions Of Independence Or Shields Of Misconduct?: Increasing Transparency In Judicial Conduct Commissions, Katarina Herring-Trott

Fordham Law Review

No abstract provided.

Race-Ing Antitrust, I. Bennett Capers, Gregory Day

Faculty Scholarship

Antitrust law has a race problem. To spot an antitrust violation, courts inquire into whether an act has degraded consumer welfare. Since anticompetitive practices are often assumed to enhance consumer welfare, antitrust offenses are rarely found. Key to this framework is that antitrust treats all consumers monolithically; that consumers are differently situated, especially along lines of race, simply is ignored.

We argue that antitrust law must disaggregate the term “consumer” to include those who disproportionately suffer from anticompetitive practices via a community welfare standard. As a starting point, we demonstrate that anticompetitive conduct has specifically been used as a tool …

Theorizing Corroboration, Maggie Wittlin

Faculty Scholarship

A child makes an out-of-court statement accusing an adult of abuse. That statement is important proof, but it also presents serious reliability concerns. When deciding whether it is sufficiently reliable to be admitted, should a court consider whether the child’s statement is corroborated—whether, for example, there is medical evidence of abuse? More broadly, should courts consider corroboration when deciding whether evidence is reliable enough to be admitted at trial? Judges, rule-makers, and scholars have taken significantly divergent approaches to this question and come to different conclusions.

This Article argues that there is a key problem with using corroboration to evaluate …

District Court En Bancs, Maggie Gardner

Fordham Law Review

Despite the image of the solitary federal district judge, there is a long but quiet history of federal district courts deciding cases en banc. District court en bancs predate the development of en banc rehearings by the federal courts of appeals and have been used to address some of the most pressing issues before federal courts over the last one hundred years: Prohibition prosecutions, bankruptcies during the Great Depression, labor unrest in the 1940s, protracted desegregation cases, asbestos litigation, and the constitutionality of the U.S. Sentencing Guidelines, to name a few. This Article gathers more than 140 examples of voluntary …

Returning To The Statutory Text: Why The Language Of Section 13(B) Requires Courts To Narrowly Construe The Ftc’S Ability To Obtain Injunctive Relief, Christopher Halm

Fordham Journal of Corporate & Financial Law

The Federal Trade Commission (FTC) enforces over 70 laws in the areas of antitrust and consumer protection, and one valuable tool to support their enforcement is Section 13(b) of the Federal Trade Commission Act (“Section 13(b)”). Section 13(b), among other features, grants the FTC authority to seek an injunction in district court against any defendant that is “about to violate” one or more of those laws. For the past three decades, courts have adopted a permissive judicial interpretation of that language, authorizing injunctions against defendants when the allegedly impending violations were only “likely to recur” based on past misconduct. This …

How Experts Have Dominated The Neuroscience Narrative In Criminal Cases For Twelve Decades: A Warning For The Future, Deborah W. Denno

Faculty Scholarship

Phineas Gage, the man who survived impalement by a rod through his head in 1848, is considered “one of the great medical curiosities of all time.” While expert accounts of Gage's post-accident personality changes are often wildly damning and distorted, recent research shows that Gage mostly thrived, despite his trauma. Studying past cases such as Gage’s helps us imagine—and prepare for—a future of law and neuroscience in which scientific debates over the brain’s functions remain fiery, and experts divisively control how we characterize brain-injured defendants.

This Article examines how experts have long dominated the neuroscience narrative in U.S. criminal cases, …

Free-Ing Criminal Justice, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Aba Model Rule 8.4(G), Discriminatory Speech, And The First Amendment, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

No abstract provided.

Arbitral Courts, Pamela K. Bookman

Faculty Scholarship

In recent years, states from Delaware to Dubai have been establishing something in between courts and arbitration, what this Article calls “arbitral courts.” Arbitral courts mimic arbitration’s traditional features. They hire internationally well-regarded judges who may also work as arbitrators. They claim the neutrality, expertise, and sometimes the privacy and confidentiality of international arbitration. Unlike arbitration, however, they bind third parties, develop law, and wield the power of the state.

This Article identifies, theorizes, and explores the significance of these new arbitral courts. Arbitral courts unsettle traditional distinctions between public and private adjudication. Their appearance has significant consequences not only …

The Right To Strike As Customary International Law, James J. Brudney

Faculty Scholarship

No abstract provided.

Halliburton Ii At Four: Has It Changed The Outcome Of Class Certification Decisions?, Noah Weingarten

Fordham Journal of Corporate & Financial Law

The U.S. Supreme Court's decision in Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258 (2014) (Halliburton II) appeared to give corporate defendants a new tool to defeat class certification in the context of securities fraud class action litigation: rebutting the requisite presumption of reliance by showing a lack of "price impact"-a term that Halliburton II used to describe whether the price of an allegedly affected company's stock went up or down. However, based on an empirical study of pre- versus post-Halliburton II class certification decisions, it appears that the outcomes of class certification decisions have become even …

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

Faculty Scholarship

No abstract provided.

The Innovation & Limitation Of Arbitral Courts, Pamela K. Bookman

Faculty Scholarship

No abstract provided.

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 …

The Adjudication Business, Pamela K. Bookman

Faculty Scholarship

The recent proliferation of international commercial courts around the world is changing the global business of adjudication. The rise of these courts also challenges the traditional accounts of the competitive relationship between and among courts and arbitral tribunals for this business. London and New York have long been considered the forum of choice in international commercial contracts—whether parties opt for litigation or arbitration. More recently, however, English-language-friendly international commercial courts have been established in China (2018), Singapore (2015), Qatar (2009), Dubai (2004), the Netherlands (2019), Germany (2018), France (2010), and beyond.

The emerging scholarship addressing these new courts tends to …

Marshall As A Judge, Robert Post

Fordham Law Review

Marshall is a towering and inspirational figure in the history of American constitutional law. He changed American life forever and unquestionably for the better. But the contemporary significance of Marshall’s legacy is also, in ways that challenge present practices and beliefs, ambiguous.

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, …