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Fordham Law Review

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2021

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Articles 31 - 60 of 73

Full-Text Articles in Law

Collaterally Attacking The Prison Litigation Reform Act's Application To Meritorious Prisoner Civil Litigation, Melissa Benerofe Oct 2021

Collaterally Attacking The Prison Litigation Reform Act's Application To Meritorious Prisoner Civil Litigation, Melissa Benerofe

Fordham Law Review

Earlier this year, the Prison Litigation Reform Act (PLRA) reached its twenty-fifth birthday, reinvigorating discussion on its effects on people in prison and the U.S. criminal justice system more broadly. This Note examines how the PLRA deters and obstructs prisoners’ ability to file meritorious civil rights lawsuits regarding the conditions of their confinement. The PLRA does so primarily through four of its provisions, which this Note refers to as the “access provisions.” The access provisions include: (1) the exhaustion of administrative remedies; (2) the filing fee provision; (3) the three-strikes rule; and (4) limitations on attorney’s fees. This Note argues …


Can Private Sector Unionization Be Saved?: An Analysis Of The Pro Act As A Model For Effective Nlra Reform, Christopher Adinolfi Oct 2021

Can Private Sector Unionization Be Saved?: An Analysis Of The Pro Act As A Model For Effective Nlra Reform, Christopher Adinolfi

Fordham Law Review

In February 2020, the U.S. House of Representatives passed the Protecting the Right to Organize Act (“PRO Act”), one of the most prolabor pieces of legislation since the creation of the current labor relations framework in 1935. For almost seventy-five years, the substantive text of the National Labor Relations Act (NLRA) has remained largely unchanged, despite the pervasive increase of anti-labor hostility from companies seeking to avoid the unionization of their workers. Across all stages of unionization, organizers and bargaining agents face coercive management tactics, diminished negotiating positions, the loss of collective action tools, and a National Labor Relations Board …


Disability Without Documentation, Katherine A. Macfarlane Oct 2021

Disability Without Documentation, Katherine A. Macfarlane

Fordham Law Review

Disability exists regardless of whether a doctor has confirmed its existence. Yet in the American workplace, employees are not disabled, or entitled to reasonable accommodations, until a doctor says so. This Article challenges the assumption that requests for reasonable accommodations must be supported by medical proof of disability. It proposes an accommodation process that accepts individuals’ assessments of their disabilities and defers to their accommodation preferences. A documentation-free model is not alien to employment law. In evaluating religious accommodations, employers—and courts—take a hands-off approach to employees’ representations that their religious beliefs are sincere. Disability deserves the same deference. This Article …


Schrems's Slippery Slope: Strengthening Governance Mechanisms To Rehabilitate Eu-U.S. Cross-Border Data Transfers After Schrems Ii, Edward W. Mclaughlin Oct 2021

Schrems's Slippery Slope: Strengthening Governance Mechanisms To Rehabilitate Eu-U.S. Cross-Border Data Transfers After Schrems Ii, Edward W. Mclaughlin

Fordham Law Review

In July 2020, the Court of Justice of the European Union (CJEU) invalidated the Privacy Shield Framework, the central data governance mechanism that once governed cross-border data transfers from the European Union (EU) to the United States. For the second time in five years, Europe’s top court invalidated the primary method of cross-border data transfers. Both times the CJEU found that the United States’s surveillance laws were, and remain, overbroad and fail to provide EU citizens with protections that are essentially equivalent to those guaranteed under the EU’s General Data Protection Regulation (GDPR) in light of the Charter of Fundamental …


Race And Policing: Some Thoughts And Suggestions For Reform, Solomon Oliver Jr. May 2021

Race And Policing: Some Thoughts And Suggestions For Reform, Solomon Oliver Jr.

Fordham Law Review

No abstract provided.


Investigating Pandemic Effects On Legal Academia, Meera E. Deo May 2021

Investigating Pandemic Effects On Legal Academia, Meera E. Deo

Fordham Law Review

No abstract provided.


Managing Stress, Grief, And Mental Health Challenges In The Legal Profession; Not Your Usual Law Review Article, Deborah L. Rhode May 2021

Managing Stress, Grief, And Mental Health Challenges In The Legal Profession; Not Your Usual Law Review Article, Deborah L. Rhode

Fordham Law Review

No abstract provided.


Understanding The Social And Cognitive Process In Law School That Creates Unhealthy Lawyers, Kathryne M. Young May 2021

Understanding The Social And Cognitive Process In Law School That Creates Unhealthy Lawyers, Kathryne M. Young

Fordham Law Review

Previous work on law student wellness and mental health strongly suggests that the seeds of professional unhappiness are sown in law school. Law students suffer from anxiety, depression, substance abuse, and other mental health problems at alarmingly high rates. They also leave law school with different concerns, commitments, and cognitive patterns than when they entered, emerging less hopeful, less intrinsically motivated, and more concerned with prestige than they were at the outset. So what, exactly, happens to people in law school? Although a rich body of quantitative and survey-based research on law students documents these empirical trends, surprisingly little qualitative …


Affirmative Immunity: A Litigation-Based Approach To Curb Appellate Courts’ Raising Qualified Immunity Sua Sponte, Michael E. Beyda May 2021

Affirmative Immunity: A Litigation-Based Approach To Curb Appellate Courts’ Raising Qualified Immunity Sua Sponte, Michael E. Beyda

Fordham Law Review

Qualified immunity, to put it simply, provides public officials with immunity from civil lawsuits if they have violated an individual’s constitutional rights under their official authority and those rights were not “clearly established” at the time of the official’s actions. The doctrine has evolved into an elaborate framework that has plagued civil rights plaintiffs, as well as courts, for decades. Qualified immunity is an affirmative defense, and affirmative defenses are waived if not raised appropriately by the defendant. Moreover, issues that are not properly raised before the trial court, including affirmative defenses, are generally not considered for the first time …


The Sunset Of The Holocaust Expropriated Art Recovery Act Of 2016 And The Rise Of The Demand And Refusal Rule, Fallon S. Sheridan May 2021

The Sunset Of The Holocaust Expropriated Art Recovery Act Of 2016 And The Rise Of The Demand And Refusal Rule, Fallon S. Sheridan

Fordham Law Review

During World War II, hundreds of thousands of works of art were confiscated by Nazis under the direction of Adolf Hitler or sold for less than market value by members of the Jewish community fleeing Nazi Germany. Shockingly, an estimated 100,000 of the 600,000 works that were taken are still missing today. In recognition of the need for laws that adequately assist original owners (and their heirs) in recovering these works of art, the U.S. Congress passed the Holocaust Expropriated Art Recovery Act of 2016 (“the HEAR Act”). The HEAR Act supplanted state statutes of limitations for Naziconfiscated artwork with …


Clean Water Act Jurisdiction Over Groundwater Discharges After County Of Maui V. Hawaii Wildlife Fund, Jocelyn Lee May 2021

Clean Water Act Jurisdiction Over Groundwater Discharges After County Of Maui V. Hawaii Wildlife Fund, Jocelyn Lee

Fordham Law Review

The Clean Water Act is the principal federal law aimed at controlling pollution of the nation’s water resources, yet it does not provide comprehensive oversight of pollutants entering groundwater, the subsurface water that often feeds into rivers, lakes, and oceans. This Note examines a recent Supreme Court decision, County of Maui v. Hawaii Wildlife Fund, which appeared to endorse a theory of federal regulation of groundwater discharges under the Clean Water Act. County of Maui established a “functional equivalent” standard, under which a discharge through groundwater is subject to the Clean Water Act’s permitting requirements if it is the functional …


What Juries Really Think: Practical Guidance For Future Trial Lawyers, Amy J. St. Eve May 2021

What Juries Really Think: Practical Guidance For Future Trial Lawyers, Amy J. St. Eve

Fordham Law Review

No abstract provided.


The Awakening: The Impact Of Covid-19, Racial Upheaval, And Political Polarization On Black Women Lawyers, Tsedale M. Melaku May 2021

The Awakening: The Impact Of Covid-19, Racial Upheaval, And Political Polarization On Black Women Lawyers, Tsedale M. Melaku

Fordham Law Review

No abstract provided.


If Only I Had Known: The Challenges Of Representation, Jenny E. Carroll May 2021

If Only I Had Known: The Challenges Of Representation, Jenny E. Carroll

Fordham Law Review

No abstract provided.


Widening The Lens, Sharpening The Focus: Mental Health And The Legal Profession, Bernice Donald, Alex Bransford May 2021

Widening The Lens, Sharpening The Focus: Mental Health And The Legal Profession, Bernice Donald, Alex Bransford

Fordham Law Review

No abstract provided.


Feeling And Thinking Like A Lawyer: Cognition, Emotion, And The Practice And Progress Of Law, Susan A. Bandes May 2021

Feeling And Thinking Like A Lawyer: Cognition, Emotion, And The Practice And Progress Of Law, Susan A. Bandes

Fordham Law Review

No abstract provided.


The Rage Of A Privileged Class, Gregory S. Parks, Julia Doyle May 2021

The Rage Of A Privileged Class, Gregory S. Parks, Julia Doyle

Fordham Law Review

No abstract provided.


Transgender Inmates’ Right To Gender Confirmation Surgery, Marissa Luchs May 2021

Transgender Inmates’ Right To Gender Confirmation Surgery, Marissa Luchs

Fordham Law Review

The Eighth Amendment prohibits cruel and unusual punishment. It ensures that the state’s power to punish is exercised within the bounds of evolving standards of human decency. At the time of its enactment in 1791, the Eighth Amendment merely protected against torture and other physically barbarous treatments. However, as society’s standards of decency changed, so too did the scope of the Eighth Amendment. Today, among other protections, the Eighth Amendment mandates that prisons provide inmates with adequate conditions of confinement. This includes an obligation on the part of the prison to provide adequate medical care. But a great deal of …


Who Needs Adverse Possession?, Nadav Shoked May 2021

Who Needs Adverse Possession?, Nadav Shoked

Fordham Law Review

Adverse possession is one of property law’s most central doctrines. Yet, this Article contends, the need it answers has been largely misunderstood. Adverse possession’s doctrinal effects are clear—and stark: when its requirements are met, an owner loses her land to an invader. To explain a doctrine instituting such a radical result, scholars resort to property law’s major philosophical theories. These theories, they argue, at times demand that an owner lose her land to another person who is more committed to that land. The problem with these prevailing justifications of adverse possession, this Article shows, is that they imagine a very …


Taking A Stand: Climate Change Litigants And The Viability Of Constitutional Claims, Mina Juhn May 2021

Taking A Stand: Climate Change Litigants And The Viability Of Constitutional Claims, Mina Juhn

Fordham Law Review

In response to the accelerating effects of global warming, individuals and citizen groups in the United States have brought suit against the federal government to challenge the adequacy of existing climate change policies. Though statutory and tort claims comprise the bulk of these actions, plaintiffs have begun alleging that government inaction on climate change violates constitutional and fundamental rights. In these matters, the federal judiciary generally applies threshold justiciability doctrines, such as standing and the political question doctrine, to deny judicial review. This Note examines the reasoning behind the judiciary’s application of these doctrines and evaluates the appropriate scope of …


Without Doors: Native Nations And The Convention, Mary Sarah Bilder Apr 2021

Without Doors: Native Nations And The Convention, Mary Sarah Bilder

Fordham Law Review

No abstract provided.


In Search Of Nationhood At The Founding, Jonathan Ginenapp Apr 2021

In Search Of Nationhood At The Founding, Jonathan Ginenapp

Fordham Law Review

No abstract provided.


Equal Footing And The States "Now Existing" Slavery And State Equality Over Time, James E. Pfander, Elena Joffroy Apr 2021

Equal Footing And The States "Now Existing" Slavery And State Equality Over Time, James E. Pfander, Elena Joffroy

Fordham Law Review

This Essay reexamines the question whether the Constitution empowered Congress to ban slavery in the territories. We explore that question by tracking two proposed additions to the Constitution, one that would empower Congress to ban the migration and importation of enslaved persons to all new states and territories and one that would oblige Congress to admit new states on an equal footing with the old. We show that the Federalists supported and the Convention adopted the migration provision, enabling Congress to restrict slavery to the states “now existing.” But the Federalists opposed and the Convention rejected the equal footing doctrine. …


Reframing Article I, Section 8, Richard Primus Apr 2021

Reframing Article I, Section 8, Richard Primus

Fordham Law Review

No abstract provided.


Ignoring Information Quality, Janet Freilich Apr 2021

Ignoring Information Quality, Janet Freilich

Fordham Law Review

Entry into the patent system is guarded by an examination process to screen out applications that impose undue costs on the public without commensurate benefit. To do this, patent examiners rely heavily on various pieces of information—both provided by the patent applicant and independently discovered by the examiner—to assess whether an application should be granted. This Article shows that there are few mechanisms at the U.S. Patent and Trademark Office for questioning the veracity of this information, even though it may be incorrect. Rather, patent examination often assumes that existence of information equals accuracy of information. Consequently, examiners may rely …


Bridging The Gap: Assessing The State Of Federal Corruption Law After Kelly V. United States, Michael J. Morgan Apr 2021

Bridging The Gap: Assessing The State Of Federal Corruption Law After Kelly V. United States, Michael J. Morgan

Fordham Law Review

Political corruption in the United States has become more and more prevalent in recent years. These days it seems difficult to turn on the news without hearing accusations of a public official caught in a scandal. Despite the frequency of the corrupt acts, however, the federal government remains largely unable to hold state actors accountable. The U.S. Supreme Court has consistently overturned federal convictions of state officials charged with committing corrupt acts. The issue in these cases is not the lack of corruption or proof of the acts but rather, the lack of laws that adequately criminalize the corrupt conduct. …


“The Rule Of The Strong, Not The Rule Of Law”: Reexamining Implicit Divestiture After Mcgirt V. Oklahoma, Joseph Palandrani Apr 2021

“The Rule Of The Strong, Not The Rule Of Law”: Reexamining Implicit Divestiture After Mcgirt V. Oklahoma, Joseph Palandrani

Fordham Law Review

In McGirt v. Oklahoma, the U.S. Supreme Court found that the boundaries of the Muscogee (Creek) Nation, which were set in 1866 and which encompass a large swath of present-day Oklahoma, remain intact. Although non-Indigenous people had settled on the land in droves by the early twentieth century, the Court held that the land remains “Indian Country” until Congress explicitly indicates otherwise. Because Congress never so indicated, the reservation is undiminished. McGirt marked a massive shift in the Court’s approach to the question of whether reservation boundaries remain in force; demographic history had previously figured prominently in the Court’s rulings …


Slavery's Constitution: Rethinking The Federal Consensus, Maeve Glass Apr 2021

Slavery's Constitution: Rethinking The Federal Consensus, Maeve Glass

Fordham Law Review

For at least half a century, scholars of the early American Constitution By recovering this genealogy and expanding our map of the founding, this Essay offers a more complete view of the origins of one of the oldest and most consequential rules of constitutional union. In doing so, it allows us to see the institution of racial slavery not simply as one confined to a single section of the South and upheld by its peculiar doctrine of states’ rights but as a fundamentally American institution, one upheld by a rule of federal and state inaction in the face of slavery’s …


The Federalist Constitution As A Project In International Law, David M. Golove, Daniel J. Hulsebosch Apr 2021

The Federalist Constitution As A Project In International Law, David M. Golove, Daniel J. Hulsebosch

Fordham Law Review

No abstract provided.


Executive Power And The Rule Of Law In The Marshall Court: A Rereading Of Little V. Barreme And Murray V. Schooner Charming Betsy, Jane Manners Apr 2021

Executive Power And The Rule Of Law In The Marshall Court: A Rereading Of Little V. Barreme And Murray V. Schooner Charming Betsy, Jane Manners

Fordham Law Review

This Essay uses two 1804 opinions by Chief Justice John Marshall to explicate a world in which understandings of executive power and the rule of law were very different from those that predominate today. Scholars have misread Little v. Barreme and Murray v. Schooner Charming Betsy, this Essay argues, because they apply modern assumptions about the balance of power between Congress and the executive that do not fit the Marshall Court’s constitutional vision. Contemporary interpretations read Little for the propositions that the president’s inherent wartime power may be limited by statute and that early American jurists rejected officers’ “good faith” …