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Articles 31 - 60 of 72
Full-Text Articles in Law
Punishing Maternal Ambivalence, Elizabeth Kukura
Punishing Maternal Ambivalence, Elizabeth Kukura
Fordham Law Review
There are certain landmarks on the road to parenthood that together comprise a cultural narrative about becoming a parent, a narrative that many aspire to emulate and that some achieve: celebrating a (heterosexual) marriage with a big wedding; a positive pregnancy test leading to overjoyed reactions; first ultrasound pictures hung on the fridge (and shared on social media); a healthy pregnancy with baby showers and nesting to prepare for the new arrival; maternity photo shoots and babymoons to celebrate the final moments before life changes; and finally, an uncomplicated labor and delivery that, in an instant, transform the couple into …
Chilling Parental Rights, Meghan M. Boone
Chilling Parental Rights, Meghan M. Boone
Fordham Law Review
Despite this clear lack of consensus as to what constitutes ideal parenting, state actors have increasingly intervened in families when they feel that a particular parenting choice is wrong. These interventions increasingly occur through the use of criminal law and punishment.5 This criminalization extends beyond prosecutions for what would traditionally be considered abuse or neglect to a wide range of parenting choices that do not rise to this level. Although many scholars have critiqued this criminalization of parenting, the focus of these critiques has centered on the harm to the families that are actually criminalized and on how a disproportionate …
Parental Social Capital And Educational Inequality, Solangel Maldonado
Parental Social Capital And Educational Inequality, Solangel Maldonado
Fordham Law Review
This Essay argues that scholars must consider the nonmonetary resources—specifically, the social capital24—that middle- and upper-income parents bring to the predominantly White schools their children attend. While scholars have recognized middle- and upper-income students as educational resources that can help bridge the achievement gap, they have yet to explore the effects of nonmonetary resources that middle- and upper-income White parents bring to predominantly White school districts, and how these resources advantage children in these schools. This Essay calls on social scientists to study these effects and urges lawmakers to support parents by (1) integrating schools and (2) funding programs that …
Unsafe & Unsound: The Future Of Supervised Injection Sites After United States V. Safehouse, Chloe Rigogne
Unsafe & Unsound: The Future Of Supervised Injection Sites After United States V. Safehouse, Chloe Rigogne
Fordham Law Review
In the past few years, the United States has experienced a dramatic increase in drug overdose deaths due to factors such as a growing prevalence of synthetic opioids like fentanyl and the strains brought on by the COVID-19 pandemic. In response to the overdose crisis, states and municipalities have started considering once-taboo harm reduction practices, including the implementation of supervised injection sites that facilitate individuals’ use of drugs under the care and supervision of medical professionals. However, supervised injection sites may run afoul of 21 U.S.C. § 856—often referred to as the “crack house” statute—a law introduced in the 1980s …
The Public/Private Distinction In Public Health: The Case Of Covid-19, Jason Jackson, Aziza Ahmed
The Public/Private Distinction In Public Health: The Case Of Covid-19, Jason Jackson, Aziza Ahmed
Fordham Law Review
In this Essay, we argue that the paradigm of the public/private distinction is implicitly operating as a primary frame in the public health response to the pandemic. The public/private distinction is particularly evident in the guidance around masking and other risk-mitigation policies and advice issued by public health agencies. This public health approach reifies the notion of the home as an exceptional private space that exists outside of the possibility of COVID-19 transmission, obscuring the reality of the high risk of transmission in some households.8 We argue that the manifestation of the public/private distinction in the COVID-19 response is deeply …
The Enduring Importance Of Parental Rights, Clare Huntington, Elizabeth Scott
The Enduring Importance Of Parental Rights, Clare Huntington, Elizabeth Scott
Fordham Law Review
Parental rights are—and should remain—the backbone of family law. State deference to parents is warranted not because parents are infallible, nor because parents own their children, but rather because parental rights, properly understood and limited, promote child wellbeing.1 This is true for several reasons, but two stand out. First, parental rights promote the stability of the parent-child relationship by restricting the state’s authority to intervene in families. This protection promotes healthy child development for all children, and it is especially important for low-income families and families of color, who are subject to intensive state scrutiny.2 Second, parental rights ensure that …
Domestic Violence As A Factor In Child Custody Determinations: Considering Coercive Control, Lisa A. Tucker
Domestic Violence As A Factor In Child Custody Determinations: Considering Coercive Control, Lisa A. Tucker
Fordham Law Review
Many states1 have begun formally to recognize coercive control2 as a form of domestic violence in several contexts: criminal domestic violence cases,3 civil motions for protection from abuse,4 and child removal proceedings.5 This Essay argues, however, that while new laws recognizing coercive control may be noble and well-meaning, they are unlikely to increase support for mothers who have been victims of coercive control abuse and now seek custody of their children. In fact, this Essay argues, the codification of these laws may do more harm than good; by taking power away from men—and coercive control is practiced almost exclusively by …
Fertility, Immigration, And Public Support For Parenting, Eleanor Brown, Naomi Cahn, June Carbone
Fertility, Immigration, And Public Support For Parenting, Eleanor Brown, Naomi Cahn, June Carbone
Fordham Law Review
As this Essay shows, the fertility discourse of the last half century deals with the profound effects that come from the transformation of the economy and the place of modern families within it. Discussions of race and class have been an important—and, often, pernicious—part of a transformation in family values, as the upper-middle-class efforts to channel ever greater investment into children have increased economic inequality and contributed to racial, ideological, and gender division. We see the convergence in fertility rates as an indication that, at a practical level, a much larger part of the country is embracing the new family …
From Empathy Gap To Reparations: An Analysis Of Caregiving, Criminalization, And Family Empowerment, Charisa Smith
From Empathy Gap To Reparations: An Analysis Of Caregiving, Criminalization, And Family Empowerment, Charisa Smith
Fordham Law Review
America’s legacy of violent settler colonialism and racial capitalism reveals a misunderstood and neglected civil rights concern: the forced separation of families of color and unwarranted state intrusion upon caregiving through criminalization and surveillance. The War on Drugs, the Opioid Crisis, and the COVID-19 pandemic are a few examples demonstrating the precariousness of our nation’s collective empathy well toward caregivers and our tattered social safety net. In fact, these instances illuminate what this Essay coins an “empathy gap” in perception when the general public, policy makers, and the mainstream media view similarly situated families with different identities. Ironically, the COVID-19 …
Parenting While Black, R. A. Lenhardt
Parenting While Black, R. A. Lenhardt
Fordham Law Review
Changes in law and policy—not to mention developments such as the COVID-19 pandemic and its devastating effects on families—raise important questions about how to define parental rights and how to best support parents and children during these challenging times. The Symposium also presented important questions about issues of race, gender, sexuality, and class in our modern context. Even more salient in this space are issues of race. Here, as in other contexts, Black families, like my grandmother’s and so many others, are the “canaries in the mine.” Their experiences provide us with important insight into the signs of danger facing …
Catching Up To A New Normal: The Effects Of Shifting Industry Standards On Contract Interpretation, Karen Chen
Catching Up To A New Normal: The Effects Of Shifting Industry Standards On Contract Interpretation, Karen Chen
Fordham Law Review
During the COVID-19 pandemic, industries around the world were forced to adapt to a new way of life dictated by rising public health concerns. The pandemic’s rapid spread left parties struggling to determine whether contractual performance would be excused or reinterpreted. Issues of prevailing industry standards arose and brought into question the point at which parties and courts should define these standards. While some parties argued that industry standards at the time of contract formation are determinative of performance, others claimed that their agreement referenced industry standards that had changed and that, therefore, their performance obligations had changed as well. …
The Federal Rules Of Pro Se Procedure, Andrew Hammond
The Federal Rules Of Pro Se Procedure, Andrew Hammond
Fordham Law Review
In recent years, more than a quarter of all federal civil cases were filed by people without legal representation. Yet, the Federal Rules of Civil Procedure refer to pro se litigants only once, and the U.S. Supreme Court has not considered in over a decade the question of what process is due to unrepresented civil litigants. Many judicial opinions in these cases go unpublished, and many are never appealed. Instead, the task of developing rules for pro se parties has taken place inside our federal district courts, whose piecemeal and largely unnoticed local rulemaking governs thousands of such litigants each …
Covid-19 And The Perils Of Free-Market Parenting: Why It Is Past Time For The United States To Install Government Supports For Families, Maxine Eichner
Covid-19 And The Perils Of Free-Market Parenting: Why It Is Past Time For The United States To Install Government Supports For Families, Maxine Eichner
Fordham Law Review
U.S. public policy has for decades rested on the expectation that parents will privately provide the cash and conditions their children need. This expectation is exceptional: most other wealthy countries’ public policies support children through a mix of public and private funds. The COVID-19 pandemic, however, radically changed U.S. policy. The severe economic dislocation that resulted led Congress to pass a series of measures that funneled trillions of public dollars to families and parents. Whether these measures should represent a temporary deviation from the nation’s free-market expectations during an unprecedented emergency or the first step in a long-term shift toward …
Foreword, Bennett Capers, Bruce A. Green
Foreword, Bennett Capers, Bruce A. Green
Fordham Law Review
Is there such a thing as subversive lawyering? And if so, what is it? These are the questions that motivate this colloquium issue. To be sure, other, similar terms exist and have been explicated. Movement lawyering. Rebellious lawyering. Resistance lawyering. Indeed,we were particularly inspired by Daniel Farbman’s article Resistance Lawyering, in which he uncovers the stories of abolitionist lawyers who, confronting the Fugitive Slave Act of 1850, “employed every means at their disposal to frustrate, delay, and dismantle the system within which they were practicing.” But still, we wondered if subversive lawyering might be something different. Something akin to resistance …
Progressive Prosecutors Are Not Trying To Dismantle The Master’S House, And The Master Wouldn’T Let Them Anyway, Paul Butler
Progressive Prosecutors Are Not Trying To Dismantle The Master’S House, And The Master Wouldn’T Let Them Anyway, Paul Butler
Fordham Law Review
The first thing to note about Audre Lorde’s famous phrase “the master’s tools will never dismantle the master’s house” is that it cannot literally be true. If tools can dismantle the master’s house, the master’s own tools would be good as anyone’s. The main problem would not be that the tools don’t work, but rather how to get them to the people who most need the master’s house dismantled—the enslaved ones. But the considerable work that the phrase does in social justice movements and critical theory is figurative rather than literal. It is usually intended as a rebuke of liberal …
A Commons In The Master’S House, Daniel Farbman
A Commons In The Master’S House, Daniel Farbman
Fordham Law Review
Almost everyone who reads these words is an institutional insider in some form. Those of us who aspire toward transformation, liberation, and resistance from our institutional settings are forced to confront Audre Lorde’s striking admonition that “the master’s tools will never dismantle the master’s house.” For some, finding themselves in the master’s house is a spur towards purism—a rejection of institutional power in search of a “pure” remove from which to critique it. For others, it is a dispiriting check on their aspirations and an invitation to sullen fatalism. This Essay questions whether we are bound to the hard consequences …
When We Fight, We Win: Eviction Defense As Subversive Lawyering, Eloise Lawrence
When We Fight, We Win: Eviction Defense As Subversive Lawyering, Eloise Lawrence
Fordham Law Review
This Essay will examine the “sword and shield” model in action to explore the meaning of “subversive lawyering” in the housing context, particularly in eviction defense. In this model, we—the lawyers and law students— provide the “shield” (i.e., legal defense), while the organizers and members of grassroots housing justice organizations provide the “sword” (i.e., public pressure and protest). The lawyers are shielding tenants and foreclosed homeowners in the courts, which allows these “defendants” to simultaneously work with organizers to take necessary extralegal actions to ensure they are protected from displacement.
The Tin Man Needs A Heart: A Proposed Framework For The Regulation Of Bioprinted Organs, Linda Foit
The Tin Man Needs A Heart: A Proposed Framework For The Regulation Of Bioprinted Organs, Linda Foit
Fordham Law Review
Each day, seventeen people die in the United States while waiting for an organ transplant. At least part of this need could be met by bioprinting, a technology that allows the on-demand production of custom-sized organs from a patient’s own cells. The field of bioprinting is progressing rapidly: the first bioprinted organs have already entered the clinic. Yet, developers of bioprinted organs face significant uncertainty as to how their potentially lifesaving products will be regulated—and by which government agency. Such regulatory uncertainty has the potential to decrease investment and stifle innovation in this promising technological field. This Note examines how …
“Kung Flu”: A History Of Hostility And Violence Against Asian Americans, Denny Chin, Kathy Hirata Chin
“Kung Flu”: A History Of Hostility And Violence Against Asian Americans, Denny Chin, Kathy Hirata Chin
Fordham Law Review
The COVID-19 pandemic “first became real” for most Americans in March 2020. Since then,a wave of anti-Asian hatred and violence has swept the country, as more than 10,000 “hate incidents” have been reported against Asian Americans and Pacific Islanders (AAPIs), including the 2021 killing of six Asian American women in the Atlanta area. The videos of senseless attacks against AAPIs, many of whom were older and vulnerable, were horrific and disturbing. But what is perhaps more disturbing is that this is nothing new, for there is a long history of hostility and violence against Asian Americans in this country, a …
Teacher Prayer In Public Schools, Maya Syngal Mcgrath
Teacher Prayer In Public Schools, Maya Syngal Mcgrath
Fordham Law Review
When American citizens elect to work in government positions, they relinquish certain free speech rights granted by the First Amendment. In Garcetti v. Ceballos, the U.S. Supreme Court ruled that when public employees make statements pursuant to their government job duties, they do not speak as citizens for First Amendment purposes. As such, they are not constitutionally insulated from employer discipline. Determining whether public employees speak as a result of, or in accordance with, their official responsibilities can be difficult, and one government job has proven more challenging than most: the public school teacher. In 2021, the Ninth Circuit …
Slowing Down Accelerated Approval: Examining The Role Of Industry Influence, Patient Advocacy Organizations, And Political Pressure On Fda Drug Approval, Stephanie Diu
Fordham Law Review
The U.S. Food and Drug Administration (FDA) has been revered as the gold standard in pharmaceutical safety and efficacy review since the 1960s. More recently, partly in response to the HIV/AIDS epidemic and the pressing need for new treatments, the FDA established an accelerated approval process to hasten the review of new drug applications so that drugs could be approved and brought to market as soon as possible. Although accelerated approval has led to the availability of new treatments for patients with few other options, this Note argues that, today, the FDA grants accelerated approval too hastily and may be …
No Justice, No Pleas: Subverting Mass Incarceration Through Defendant Collective Action, Andrew Manuel Crespo
No Justice, No Pleas: Subverting Mass Incarceration Through Defendant Collective Action, Andrew Manuel Crespo
Fordham Law Review
The American penal system is a system of massive, racially unjust incarceration. It is also, to quote the U.S. Supreme Court, a “system of pleas.” The latter drives the former, as coercive plea bargaining makes it possible for the state to do two things that are otherwise hard to pull off at once: increase convictions and sentence lengths. Mass incarceration is a predictable result. But while plea bargaining is intensely coercive when leveraged against individuals, the system of pleas has a structural weak point. That Achilles’ heel is exposed once we see people facing prosecution not as isolated individuals but …
Disaggregating Legislative Intent, Jesse M. Cross
Disaggregating Legislative Intent, Jesse M. Cross
Fordham Law Review
In statutory interpretation, theorists have long argued that the U.S. Congress is a “they,” not an “it.” Under this view, Congress is plural and nonhierarchical, and so it is incapable of forming a single, institutional intent. Textualists contend that this vision of Congress means interpreters must move away from concerns about intent altogether, and that they instead should speak in the register of textualism and its associated constitutional values, such as notice and congressional incentivization. However, even if legislators’ intentions never coalesce into an institutional intent, a disaggregated-intent theory of legislation remains possible. Under this theory, statutes are understood as …
The Political And Social Change Driven By Protest: The Need To Reform The Anti-Riot Act And Examine Anti-Riot Provisions, Ronald E. Britt Ii
The Political And Social Change Driven By Protest: The Need To Reform The Anti-Riot Act And Examine Anti-Riot Provisions, Ronald E. Britt Ii
Fordham Law Review
The right to join in peaceful assembly and petition is critical to an effective democracy and is at the core of the First Amendment. The assault of peaceful protestors in the pursuit of racial justice is not a new phenomenon, and legislators at the federal and state levels have drafted anti-riot provisions as a measure to target protestors they deem an existential threat to American society. As these provisions have become increasingly prevalent in light of the protests following the murders of Breonna Taylor and George Floyd, they have the likelihood of severely chilling the effect on protestors’ right to …
Racial Allies, Atinuke O. Adediran
Racial Allies, Atinuke O. Adediran
Fordham Law Review
Racial allies are white individuals and institutions that actively work to dismantle systems of racial inequality and the consequences of poverty that disproportionately impact communities of color and that are willing to both confer and share power with members of subjugated groups. There is no other sector of the legal profession that professes to be racial allies more than individuals and institutions within the public interest law sector. Yet, these institutions that address structural racism and disproportionately serve communities of color appear not to share power with racial and ethnic minorities. The public interest law sector has been at the …
Dedication: Center On Asian Americans And The Law, Kamala Harris
Dedication: Center On Asian Americans And The Law, Kamala Harris
Fordham Law Review
Asian American history has been defined by attorneys and activists who have fought to ensure that Asian Americans are recognized as Americans— not as the “other,” not as “them,” but as “us.” From their efforts to fight against the Chinese Exclusion Act, to correcting the wrongs of the Japanese-American incarceration, it is essential that we learn about the role of Asian Americans and the law. Accordingly, I write to recognize the historic launch of the Center on Asian Americans and the Law at Fordham University School of Law—the first of its kind in the country. Its founding is both timely …
Serious Notice: A Celebration, Discussion, And Recognition Of Joel Reidenberg’S Work On Privacy Notices And Disclosures, Tal Z. Zarsky
Serious Notice: A Celebration, Discussion, And Recognition Of Joel Reidenberg’S Work On Privacy Notices And Disclosures, Tal Z. Zarsky
Fordham Law Review
This Essay pays tribute to Professor Joel Reidenberg’s rich academic career and, specifically, to his contributions to the study of privacy policies. In doing so, this Essay takes a close look at privacy policies and possible ways to effectively intermediate their content through various labeling schemes. While severely flawed, privacy policies are here to stay. Therefore, an in-depth analysis of ways to enhance their efficiency is merited. This Essay thus examines key strategies for privacy-related intermediation, obstacles, and problems arising in the process, as well as possible solutions. The analysis weaves together theoretical and empirical privacy law scholarship (much of …
Class Action Boundaries, Daniel Wilf-Townsend
Class Action Boundaries, Daniel Wilf-Townsend
Fordham Law Review
In recent years, some judges have begun doubting—and at times denying— their jurisdiction in class actions whose membership crosses state lines. This doubt has followed from the U.S. Supreme Court’s significant tightening of personal jurisdiction doctrine, which has led many to argue that courts no longer have jurisdiction over the claims of unnamed class members unless those claims have some independent relationship with the forum state. Such an argument raises foundational questions about due process and federalism, and has significant implications for the size, location, and feasibility of many class actions. This Article argues that what it terms the “state-border …
Reply Or Perish: The Federal Rule 83(A)(1) Problem With Local Rules Requiring Responses To 12(B)(6) Motions, Alexis Pawlowski
Reply Or Perish: The Federal Rule 83(A)(1) Problem With Local Rules Requiring Responses To 12(B)(6) Motions, Alexis Pawlowski
Fordham Law Review
The federal courts of appeals are divided over whether district courts have the legal authority to grant Federal Rule of Civil Procedure 12(b)(6) motions to dismiss solely for lack of reply pursuant to local rules requiring responses to motions. Seven circuits hold that district courts must always consider the merits of an unopposed Rule 12(b)(6) motion to dismiss. However, the First and D.C. Circuits allow district courts to dismiss Rule 12(b)(6) motions for lack of response pursuant to local rules in certain circumstances. The majority view is that the use of these local rules in the First and D.C. Circuits …
Mandatory Narrated Ultrasounds: A First Amendment Perspective On Abortion Regulations, Abigail Tubin
Mandatory Narrated Ultrasounds: A First Amendment Perspective On Abortion Regulations, Abigail Tubin
Fordham Law Review
Ever since the U.S. Supreme Court recognized the right to terminate a pregnancy in Roe v. Wade, many state legislatures have passed myriad regulations intended to complicate the process of obtaining an abortion. These regulations include “informed consent” provisions, such as the mandatory narrated ultrasound, which impose strict disclosure requirements on physicians who seek to perform abortions. Since these regulations compel physicians to speak when they otherwise might not, these laws implicate the First Amendment’s Free Speech Clause. As a result, physicians looking to perform abortions have an alternative avenue, apart from the Fourteenth Amendment’s Due Process Clause, for challenging …