Law Commons^™

Nondelegation And The Legislative Versus Administrative Exactions Divide: Why Legislatively Imposed Exactions Do Not Require A More Searching Standard Of Review, Hunter Dominick

Fordham Law Review

As the United States continues to grow and urbanize, local governments have tried to manage this growth to mitigate the external impacts that new developments can cause. One method by which state and local governments seek to control growth within their borders is by imposing conditions on the issuance of building permits—otherwise known as exactions. Exactions, however, face federal constitutional limits under the Takings Clause of the Fifth Amendment, which applies to state and local governments through the Fourteenth Amendment.

In Nollan v. California Coastal Commission and Dolan v. City of Tigard, the U.S. Supreme Court restricted exactions in …

Foreword: The Legal Profession And Social Change, Atinuke O. Adediran, Bruce A. Green

Fordham Law Review

Fordham University School of Law’s Stein Center for Law and Ethics has collaborated with the Fordham Law Review every year since the late 1990s to encourage, collect, and publish scholarly writings on different aspects of the legal profession, including its norms, regulation, organization, history, and development—that is, on themes relating to what law schools loosely call “legal ethics.” The legal profession is an important subject of study for legal scholars, among others. Although one U.S. Supreme Court Justice, himself a former law professor, airily derided legal ethics as the “least analytically rigorous . . . of law-school subjects,” we dispute …

Should State Trial Courts Become Laboratories Of Upl Reform?, Bruce A. Green

Fordham Law Review

There is a growing “access to justice” movement that is principally driven by lawyers and judges. It has multiple objectives. One such objective is to make state court proceedings fairer, more reliable, and more accessible. This is important because state courts have a significant impact on peoples’ lives. They are where family members lose custody of children, where property owners obtain permission to evict tenants, where creditors are empowered to repossess people’s cars or garnish their wages, and (in some jurisdictions) where judges send people to jail to compel them to pay judgments or fees that they cannot afford to …

Children Are Constitutionally Different, But Life Without Parole And De Facto Life Sentences Are Not: Extending Graham And Miller To De Facto Life Sentences, Ellen Brink

Fordham Law Review

Under the U.S. Supreme Court’s current juvenile sentencing jurisprudence, a juvenile may legally receive a prison sentence of hundreds of years without parole in instances in which a sentence of life without parole would be unconstitutional. This illogical state of affairs is the result of the Court’s silence on whether its holdings in Graham v. Florida and Miller v. Alabama, which together limit the availability of juvenile life without parole sentences, also apply to so-called de facto life sentences. De facto life sentences are lengthy term-of-years sentences that confine offenders to prison for the majority, if not the entirety, …

Don't Pull The Trigger On New York's Concealed Carry Improvement Act: Addressing First And Second Amendment Concerns, Morgan Band

Fordham Law Review

Despite the increasing prevalence of mass shootings in the United States, the U.S. Supreme Court in New York State Rifle & Pistol Ass’n, Inc. v. Bruen struck down a 100-year-old New York statute that had restricted access to concealed carry permits. The statute had required applicants to demonstrate a “proper cause” for needing a concealed carry permit. But even if an applicant made the necessary showing, licensing officials retained discretion under the statute to decline to issue a permit. In striking down the statute, the Court distinguished between “may-issue” jurisdictions, such as New York, which give licensing officials discretion in …

Within A City's Limits: A Local Government's Power To Hold Police Officers Accountable, Josselin Aldana

Fordham Law Review

When a person’s constitutional rights are violated by a public official, such as a police officer, who acts under color of law, the official can invoke a qualified immunity defense that immunizes the official unless it is clearly established that such action is unlawful. Over the years, the qualified immunity doctrine has developed into a shield that makes it difficult for aggrieved individuals to recover when they are harmed. As a result of nationwide focus on police brutality, four states—Colorado, Connecticut, Massachusetts, and New Mexico—have modified the use of qualified immunity as a defense in state courts for individuals harmed …

Shining A Light On Rattley: The Troublesome Diligent Search Standard Undercutting New York's Freedom Of Information Law, Isaac A. Krier

Fordham Law Review

New York’s Freedom of Information Law (FOIL) provides citizens with access to the documents, statistics, and information relied on by New York State government agencies. Modeled after the federal Freedom of Information Act (FOIA), New York legislators designed the state’s “sunshine law” to promote transparency and accountability through a presumption of disclosure by requiring agencies to make all records available to the public except those specifically exempted by statute. But state agencies often rely on a separate, unceremonious reason to deny FOIL requests—they cannot find the documents. FOIL requires an agency to certify that it performed a diligent records search …

Small Gestures And Unexpectedconsequences: Textualist Interpretationsof State Antidiscrimination Lawafter Bostock V. Clayton County, Anastasia E. Lacina

Fordham Law Review

The U.S. Supreme Court’s landmark decision in Bostock v. Clayton County expanded Title VII’s coverage of victims of sex discrimination in employment by interpreting the statute to also protect LGBTQ+ employees who were discriminated against because of their sexual orientation and/or gender identity. Although Bostock only applies precedentially to Title VII, the long and interwoven history of state antidiscrimination statutes shows that the ruling may reach beyond federal law. This Note examines state court cases that have considered whether to apply Bostock’s reasoning to the interpretation of state antidiscrimination statutes. Furthermore, this Note argues in favor of a path …

“I Am Undocumented And A New Yorker”: Affirmative City Citizenship And New York City’S Idnyc Program, Amy C. Torres

Fordham Law Review

The power to confer legal citizenship status is possessed solely by the federal government. Yet the courts and legal theorists have demonstrated that citizenship encompasses factors beyond legal status, including rights, inclusion, and political participation. As a result, even legal citizens can face barriers to citizenship, broadly understood, due to factors including their race, class, gender, or disability. Given this multidimensionality, the city, as the place where residents carry out the tasks of their daily lives, is a critical space for promoting elements of citizenship. This Note argues that recent city municipal identification-card programs have created a new form of …

Bathroom Laws As Status Crimes, Stephen Rushin, Jenny Carroll

Fordham Law Review

A growing number of American jurisdictions have considered laws that prohibit trans individuals from using bathroom facilities consistent with their gender identities. Several scholars have criticized these so-called “bathroom laws” as a form of discrimination in violation of federal law. Few scholars, though, have considered the criminal justice implications of these proposals. By analyzing dozens of proposed bathroom laws, this Article explores how many laws do more than stigmatize the trans community—they effectively criminalize it. Some of these proposed laws would establish new categories of criminal offenses for trans individuals who use bathrooms consistent with their gender identity. Others would …

Where Oil Is King, Kristen Van De Biezenbos

Fordham Law Review

Donald Trump has won the 2016 presidential election, and, based on his campaign rhetoric, it seems reasonable to anticipate that the next four years will see a rollback of federal rules and regulations originally intended to combat climate change and environmental pollution in favor of increased production of fossil fuels, including coal. This raises the question of where we can look for protection of environmental goals, if not to federal law or agencies. Unconventional solutions to energy and environmental issues may be the only way to move forward on environmental challenges in the near term. This Article suggests one such …

Updating The Social Network: How Outdated And Unclear State Legislation Violates Sex Offenders’ First Amendment Rights, Elizabeth Tolon

Fordham Law Review

Readily available on computers, phones, tablets, or television, social media has become a necessary platform of expression for many. But, for others, social media is an inaccessible tool whose very use has criminal repercussions. To protect innocent children, many states have enacted legislation restricting sex offenders’ access to social media. Unfortunately, this legislation is often outdated, overly restrictive, and unconstitutional under the First Amendment. North Carolina has recently attracted national attention, as its statute highlights the potential constitutional issues states face in drafting such legislation. To avoid the constitutional concerns that North Carolina faces, state legislators must draft statutes narrowly …

Corrupt And Unequal, Both, Lawrence Lessig

Fordham Law Review

Rick Hasen has presented the issue of money in politics as if we have to make a choice: it is either a problem of equality or it is a problem of corruption. Hasen’s long and influential career in this field has been a long and patient struggle to convince those on the corruption side of the fight (we liberals, at least, and, in an important sense, we egalitarians too) to resist the temptation to try to pass—by rendering equality arguments as corruption arguments, and to just come out of the closet. Hasen had famously declared that the corruption argument supporting …

Fighting Corruption In America And Abroad, Jed Handelsman Shugerman

Fordham Law Review

The exchanges at the symposium and these Articles highlight the gap between public opinion and legal culture on the definition of corruption and the problems that flow from that gap. Teachout’s and Lessig’s legal argument that corruption can be institutional and banal roughly corresponds with the public’s moral intuition. Conversely, Lessig’s and Hasen’s intuitive moral reaction—that corruption is the evil of quid pro quo—maps onto the legal conclusion of the U.S. Supreme Court in Citizens United v. FEC that corruption is narrowly defined as quid pro quo. Note the reversal of moral and legal positions: Teachout and Lessig’s legal …

Opening Remarks, John D. Feerick

Fordham Law Review

I salute those who have been involved in the planning of this program and will be moderating, serving on panels, and making presentations throughout the day. I am not quite sure what my present qualifications are to be the opening speaker in such an august gathering of outstanding academics, teachers, lawyers, good government leaders, public servants, and others of distinction. My work these years of my life is largely in the field of social justice and poverty. I am no stranger to the field of law reform, however.

Why Isn’T Congress More Corrupt?: A Preliminary Inquiry, Richard L. Hasen

Fordham Law Review

In the aftermath of the indictment of New York State Assembly Speaker Sheldon Silver on corruption charges, law professor (and recent reformist gubernatorial candidate) Zephyr Teachout published an op-ed in the New York Times entitled “Legalized Bribery.” In it, she argued that campaign contributions are a “gateway drug” to bribes and that politicians are “pre- corrupted” by taking campaign contributions and doing favors for contributors. She wants campaign finance limits, public financing, and limits on outside income for legislators. Although Teachout used powerful rhetoric and suggested worthy reforms, I see her as offering an empirical hypothesis about the relationship between …

Love, Equality, And Corruption, Zephyr Teachout

Fordham Law Review

What is corruption? Unless one takes an absolute (and hard to defend) view of words’ meanings—there is a fixed meaning, it cannot differ—this question can mean different things. What has it meant in the past? What has it meant to judges? What social function does the word play? Does it have any meaning at all, or is it just another word for a different idea? Does the meaning it had historically have any coherence? Does the meaning it has now have any coherence? What do most people think it means? What do most scholars think, or most lawyers, …

Criminal Corruption: Why Broad Definitions Of Bribery Make Things Worse, Albert W. Alschuler

Fordham Law Review

Although the law of bribery may look profoundly underinclusive, the push to expand it usually should be resisted. This Article traces the history of two competing concepts of bribery—the “intent to influence” concept (a concept initially applied only to gifts given to judges) and the “illegal contract” concept. It argues that, when applied to officials other than unelected judges, “intent to influence” is now an untenable standard. This standard cannot be taken literally. This Article defends the Supreme Court’s refusal to treat campaign contributions as bribes in the absence of an “explicit” quid pro quo and its refusal to read …

Cross-Border Corruption Enforcement: A Case For Measured Coordination Among Multiple Enforcement Authorities, Jay Holtmeier

Fordham Law Review

The steady increase in cooperation and information sharing among governments is a trend commonly noted in discussions of current anticorruption enforcement. There is no shortage of evidence to support this observation. In 2013 and 2014 alone, the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) recognized the cooperation and assistance of foreign law enforcement authorities in at least twenty-three actions brought under the U.S. Foreign Corrupt Practices Act (FCPA or “the Act”). U.S. enforcement authorities—once the world’s primary anticorruption enforcers—increasingly can and do rely on the help of their international counterparts and are pursuing more investigations that run …

The Uncomfortable Truths And Double Standards Of Bribery Enforcement, Mike Koehler

Fordham Law Review

In recent years, Foreign Corrupt Practices Act (FCPA) enforcement has become a top priority for the U.S. government, and government enforcement officials have stated that “we in the United States are in a unique position to spread the gospel of anti-corruption” and that FCPA enforcement ensures not only that the United States “is on the right side of history, but also that it has a hand in advancing that history.”

However, the FCPA is not the only statute in the federal criminal code concerning bribery. Rather, the FCPA was modeled in large part after the U.S. domestic bribery statute, and …

The “Demand Side” Of Transnational Bribery And Corruption: Why Leveling The Playing Field On The Supply Side Isn’T Enough, Lucinda A. Low, Sarah R. Lamoree, John London

Fordham Law Review

The domestic and international legal framework for combating bribery and corruption (“ABC laws”), including both private and public corrupt practices that are transnational (cross border) in character, has dramatically expanded over the last twenty years. Despite these developments, major gaps remain. This Article examines one of the largest systemic gaps: the absence of effective tools to control the demand side of transnational bribery and corruption—the corrupt solicitation of a benefit—especially when it involves a public official.

Keynote Address, Preet Bharara

Fordham Law Review

Thank you, professor, for that introduction. It was quite the introduction. It is true my brother started a very successful online diaper company. It was mentioned that we do not have enough followers on our Twitter feed. My brother is a much more clever member of the family. My recollection is that when he started that company, he had a slogan—he and some folks came up with this slogan for the diaper company—which was—and it was emblazoned on a t-shirt which was one of the few perks of being related to somebody who started a company, and I from time …

Time For An Update: A New Framework For Evaluating Chapter 9 Bankruptcies, Michael J. Deitch

Fordham Law Review

Municipal bankruptcies have been making national news since the “Great Recession.” Municipalities like Stockton, Vallejo, and Jefferson County gained notoriety for the record scale of their bankruptcy filings, only to be surpassed by Detroit shortly thereafter as the largest and most populous municipal bankruptcy filing. Historically, municipal bankruptcy occurred infrequently, leaving the nuances of many critical issues, including insolvency, asset utilization, and good faith, unexplored in case law. For example, how should a bankruptcy court analyze Detroit’s cityowned art museum that houses billions of dollars of art when bondholders, pensioners, and other unsecured creditors have unpaid claims? And how should …