Law Commons^™

Neutral No More: Secondary Effects Analysis And The Quiet Demise Of The Content-Neutrality Test, Mark Rienzi, Stuart Buck

Fordham Law Review

When the Supreme Court introduced the “secondary effects” doctrine to allow for zoning of adult businesses, critics fell into two camps. Some, like Justice William Brennan, predicted dire consequences for the First Amendment, particularly if the doctrine was used in political speech cases. Others, like Professor Laurence Tribe, predicted secondary effects analysis would be limited to sexually explicit speech and would not threaten the First Amendment. The modern consensus is that the doctrine has, in fact, been limited to cases about sex.

Recent cases demonstrate, however, that the impact of the secondary effects doctrine on the First Amendment has been …

Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications, Daniel B. Kelly

Fordham Law Review

The organizing principle of American succession law—testamentary freedom—gives decedents a nearly unrestricted right to dispose of property. After surveying the justifications for testamentary freedom, I examine the circumstances in which it may be socially beneficial for courts to alter wills, trusts, and other gratuitous transfers at death: imperfect information, negative externalities, and intergenerational equity. These justifications correspond with many existing limitations on the freedom of testation. Yet, disregarding donor intent to maximize the donees’ ex post interests, an increasingly common justification for intervention, is socially undesirable. Doing so ignores important ex ante considerations, including a donor’s happiness, a donor’s incentive …

The Flawed Explicit Safety Net: How Federally Sponsored Deposit Insurance Contributes To Financial Crisis, Nicholas J. Colombo

Fordham Law Review

In the spring of 2012, JPMorgan Chase and Co. (JP Morgan), one of the largest and most profitable banks in the United States, made a $6 billion mistake. The issues all began in London, with a division of JP Morgan known as the Chief Investment Office (CIO). While the CIO’s stated purpose was to use excess deposits to hedge against interest rate risk, it had in fact been responsible for earning approximately $4 billion in profits for JP Morgan over the three previous years. This all came to a screeching halt when Bruno Iksil, now known as the “London Whale,” …

The High Cost Of Child Support In Rape Cases: Finding An Evidentiary Standard To Protect Mother And Child From Welfare’S Cooperation Requirement, Aviva Nusbaum

Fordham Law Review

Indigent single parents who turn to welfare for financial support must cooperate with their state’s child support enforcement requirements before receiving some or all of their benefits. Single parents are required to provide information about the absent parent because states use the information to pursue the absent parent for child support. While child support helps reduce poverty and increase parental emotional support for children, it can also be very dangerous for some single mothers. The good cause exception exempts parents from child support enforcement when it would be contrary to the “best interests of the child.” Mothers and children who …

Agency Settlement Reviewability, Dustin Plotnick

Fordham Law Review

Administrative agency settlements have recently come under increased judicial scrutiny. Agency actions are presumptively reviewable under the Administrative Procedure Act (APA), which means they are generally subject to, among other requirements, “arbitrary and capricious” review under 5 U.S.C. § 706(2) and Motor Vehicles Manufacturing Ass’n of the United States v. State Farm Mutual Automobile Insurance Co. In contrast, the U.S. Supreme Court held in Heckler v. Chaney that agency no–action decisions are presumptively unreviewable because they are “committed to agency discretion by law” under 5 U.S.C. § 701(a)(2). Are agency settlements also presumptively unreviewable? In other words, are they more …

This Space Intentionally Left Blank: What To Do When Hearsay And Rule 106 Completeness Collide, Michael A. Hardin

Fordham Law Review

Federal Rule of Evidence 106 provides that when one party in a trial or hearing offers into evidence a portion of a statement in a misleading way, the opposing party can offer the rest, or some other portion of, that document or recorded statement at the same time if it is necessary for the factfinder to understand and contextualize the first part. Sometimes, however, the other portion, or “remainder,” would be inadmissible if it were offered by itself, either because it is hearsay or for some other reason. This leaves the court in a difficult position: Should it allow the …

Head Versus Heart: Applying Empirical Evidence About The Connection Between Child Pornography And Child Molestation To Probable Cause Analyses, Emily Weissler

Fordham Law Review

As the internet has become nearly ubiquitous, child pornography possession has become increasingly widespread. Law enforcement efforts to combat the reach of these images have become increasingly aggressive and sophisticated. Sentences have also dramatically increased. As of 2008, the mean sentence for child pornography possession was ninety–two months, with a mandatory minimum sentence of five years.

Circuit courts have confronted child pornography search warrant applications based mainly upon a prior child molestation conviction or enticement of a minor. Evaluating similar fact patterns, the Second, Sixth, and Ninth Circuits have held that child molestation or child enticement cannot be used to …

9(B) Or Not 9(B)? That Is The Question: How To Plead Negligent Misrepresentation In The Post-Twombly Era, Andrew Todres

Fordham Law Review

Perhaps nothing is more important to a litigant bringing an action in federal court than knowing the relevant pleading standard for his or her underlying claims. Ever since the inception of the Federal Rules of Civil Procedure, one of two pleading standards have applied to common law claims: the Rule 8(a)(2) standard, requiring a short and plain statement demonstrating entitlement to relief, or the Rule 9(b) standard, demanding that allegations of fraud or mistake be pled with particularity. At the intersection of these two pleading standards is the common law claim of negligent misrepresentation. Courts across the country have long …

A Game Changer? The Impact Of Padilla V. Kentucky On The Collateral Consequences Rule And Ineffective Assistance Of Counsel Claims, Joanna Rosenberg

Fordham Law Review

The Sixth Amendment entitles a criminal defendant to effective assistance of counsel when deciding whether to plead guilty. Defense counsel, therefore, must ensure that his client understands the direct consequences of the plea: the nature of the criminal charge and the sentence. However, pursuant to the traditional collateral consequences rule employed by most courts, counsel has no Sixth Amendment obligation to warn that criminal defendant of so–called collateral consequences, such as mandatory sex offender registration, civil commitment, or ineligibility for parole. Prior to 2010, deportation was also considered a collateral consequence of a guilty plea in most jurisdictions.

In Padilla …

The Inclusiveness Of The New Originalism, James E. Fleming

Fordham Law Review

No abstract provided.

The Early Bird Waits For The Worm: May Federal Judgments Be Registered Prior To Appeal?, Cristina M. Rincon

Fordham Law Review

The federal registration statute, codified at 28 U.S.C. § 1963, permits a judgment creditor to register his or her judgment in another state by simply filing a copy of the judgment with the clerk of the registering court. Registration is permitted when the judgment becomes final by appeal, when the time to appeal expires, or when the court that entered the judgment orders registration for good cause shown. The majority of courts have interpreted good cause as a showing that the judgment debtor lacks assets in the forum jurisdiction to fulfill the judgment, but possesses substantial assets in the registering …

Editors’ Foreword, Editors

Fordham Law Review

No abstract provided.

The Gravitational Force Of Originalism, Randy E. Barnett

Fordham Law Review

In Part I of this Article, I describe four aspects of the New Originalism: First, New Originalism is about identifying the original public meaning of the Constitution rather than the original Framers’ intent. Second, the interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry. Third, there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed. Finally, distinguishing between the activities of interpretation and construction identifies the limit of the New Originalism, which is only a theory of interpretation. In …

On What Distinguishes New Originalism From Old: A Jurisprudential Take, Mitchell N. Berman, Kevin Toh

Fordham Law Review

No abstract provided.

Meaning And Belief In Constitutional Interpretation, Andrei Marmor

Fordham Law Review

No abstract provided.

Deferentialism: A Post–Originalist Theory Of Legal Interpretation, Scott Soames

Fordham Law Review

No abstract provided.

Originalism, Vintage Or Nouveau: “He Said, She Said” Law, Tara Smith

Fordham Law Review

No abstract provided.

The New Originalism And The Uses Of History, Jack M. Balkin

Fordham Law Review

Central to the new originalism is the distinction between constitutional interpretation and constitutional construction. Interpretation tries to determine the Constitution’s original communicative content, while construction builds out doctrines, institutions, and practices over time. Most of the work of constitutional lawyers and judges is constitutional construction.

The distinction between interpretation and construction has important consequences for constitutional theory. In particular, it has important consequences for longstanding debates about how lawyers use history and should use history.

First, construction, not interpretation, is the central case of constitutional argument, and most historical argument occurs in the construction zone.

Second, although people often associate …

Meaning And Understanding In The History Of Constitutional Ideas: The Intellectual History Alternative To Originalism, Saul Cornell

Fordham Law Review

No abstract provided.

Original Meaning, Precedent, And Popular Sovereignty?: Whittington Et Al. V. Lincoln Et Al., Leslie F. Goldstein

Fordham Law Review

No abstract provided.

Accepting Contested Meanings, Bernadette Meyler

Fordham Law Review

No abstract provided.

The Observer Effect: National Security Litigation, Executive Policy Changes, And Judicial Deference, Ashley S. Deeks

Fordham Law Review

The national security deference debate has reached a stalemate. Those favoring extensive deference to executive branch national security decisions celebrate the limited role courts have played in reviewing those policies. The executive, they contend, is constitutionally charged with such decisions and structurally better suited than the judiciary to make them. Those who bemoan such deference fear for individual rights and an imbalance in the separation of powers. Yet both sides assume that the courts’ role is minimal. Both sides are wrong.

This Article shows why. While courts rarely intervene in national security disputes, the Article demonstrates that they nevertheless play …

In Bonds We Trustee: A New Contractual Mechanism To Improve Sovereign Bond Restructurings, Robert Auray

Fordham Law Review

Governments around the world raise significant amounts of capital by issuing sovereign bonds in international financial markets. These bonds are typically purchased and traded by foreign investors who seek a profitable return on their investment. The issuing country incurs sovereign debt, which it must repay over a predetermined period of time. Occasionally, sovereigns—typically emerging market governments—become unable or unwilling to repay their sovereign debt.

A country’s ability to repay its debt is difficult to assess given the multitude of nonfinancial factors that affect the assessment. As a result, investors are vulnerable to opportunistic defaults which can deprive them of their …

Not Interested? A Trustee Lacks “Party In Interest” Standing To Move For An Extension Of The Nondischargeability Bar Date On Behalf Of Creditors, Stephen C. Behymer

Fordham Law Review

Chapter 7 bankruptcy is designed to provide a financially distressed debtor with a “fresh start.” Towards that end, an individual debtor’s debts are typically discharged during the case. A creditor has only a short window of time in which to object to the dischargeability of its claims. This bar date can only be extended for cause and upon the application of a “party in interest.” Occasionally, a trustee will move for such an extension on behalf of the creditors. There is a split, however, between the Fourth and Sixth Circuits regarding whether a trustee is a “party in interest” and, …

Chevron’S Flexible Agency Expertise Model: Applying The Chevron Doctrine To The Bia’S Interpretation Of The Ina’S Criminal Law–Based Aggravated Felony Provision, Michael Dorfman-Gonzalez

Fordham Law Review

For nearly thirty years, courts have looked to the U.S. Supreme Court’s ruling in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. when reviewing a challenge to an agency’s interpretation of statutory language and determining whether deference is appropriate. Despite Chevron’s longstanding role as one of administrative law’s most important legal doctrines, no specification exists as to whether judicial deference is required when an agency interprets language outside the scope of its expertise. As a result, the Second and Third Circuits have split on the issue of whether the Bureau of Immigration Appeals’ (BIA) interpretation of the term …

Waiving Fiduciary Duties In Delaware Limited Partnerships And Limited Liability Companies, Winnifred A. Lewis

Fordham Law Review

In corporations, like most other business associations, fiduciary duties exist to deter management from abusing their power over the owners’ property. In Delaware limited partnerships and limited liability companies, this protection can be waived in the operating agreement. This Note explores the effects of retaining or waiving fiduciary duties and how this plays out in the interpretation of operating agreements. It argues that default fiduciary duties exist for limited liability companies and limited partnerships, including those that are member managed, and it proposes a combination of disclosure and signature requirements from each limited partner or member in order for waiver …

Can Condoms Be Compelling? Examining The State Interest In Confiscating Condoms From Suspected Sex Workers, Meghan Newcomer

Fordham Law Review

Confiscating condoms from suspected sex workers leaves them at risk for HIV/AIDS, other sexually transmitted diseases, and unwanted pregnancy. Yet, police officers in New York, Washington, D.C., and Los Angeles collect condoms from sex workers to use against them as evidence of prostitution. Sometimes, the condoms are taken solely for the purpose of harassment. These actions put sex workers at risk of contracting sexually transmitted diseases because they may continue to engage in sex work without using protection.

In the landmark case of Griswold v. Connecticut, the U.S. Supreme Court established a fundamental privacy right in the use and …

Originalism: A Critical Introduction, Keith E. Whittington

Fordham Law Review

The theory of originalism is now well into its second wave. Originalism first came to prominence in the 1970s and 1980s as conservative critics reacted to the decisions of the Warren Court, and the Reagan Administration embraced originalism as a check on judicial activism. A second wave of originalism has emerged since the late 1990s, responding to earlier criticisms and reconsidering earlier assumptions and conclusions. This Article assesses where originalist theory currently stands. It outlines the points of agreement and disagreement within the recent originalist literature and highlights the primary areas of continuing separation between originalists and their critics.

Originalism, The Why And The What, Larry Alexander

Fordham Law Review

No abstract provided.

Originalism And Constitutional Construction, Lawrence B. Solum

Fordham Law Review

Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. The interpretation–construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the nineteenth and twentieth centuries, marks the difference between these two activities.

This Article advances two central claims about constitutional construction. First, constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual: …