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Faculty Scholarship

Fordham Law School

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Articles 1 - 30 of 1026

Full-Text Articles in Law

Deal Insurance: Representation & Warranty Insurance In Mergers & Acquisitions, Sean J. Griffith Jan 2020

Deal Insurance: Representation & Warranty Insurance In Mergers & Acquisitions, Sean J. Griffith

Faculty Scholarship

Efficient contracting depends upon imposing risk on the party with superior access to information. Yet the parties in mergers and acquisitions transactions now commonly use Representation and Warranty Insurance (“RWI”) to shift this risk to a third-party insurer. Because liability and trust go together, RWI would seem to give rise to a credible commitment problem between the transacting parties, and it raises adverse selection and moral hazard problems for the insurer.

This paper examines the emergence of RWI, focusing on three interrelated questions. First, how does RWI affect transactions?Second, why do transacting parties use RWI? And third, why do ...


Victims’ Rights From A Restorative Perspective, Lara Bazelon, Bruce A. Green Jan 2020

Victims’ Rights From A Restorative Perspective, Lara Bazelon, Bruce A. Green

Faculty Scholarship

The criminal adjudicatory process is meant in part to help crime victims heal. But for some crime victims, the process is re-victimizing. For decades, efforts have been made to make the criminal process fairer and more humane for victims. For example, state and federal laws are now designed to keep victims informed, allow them to be heard at sentencing, and afford them monetary restitution. But these efforts, while important, have not persuaded crime victims to trust criminal process. For example, sexual assaults remain grossly under-reported and under-prosecuted. Less than 1 percent of sexual assault crimes result in a felony conviction ...


Broken Records: Reconceptualizing Rational Basis Review To Address “Alternative Facts” In The Legislative Process, Joseph B. Landau Jan 2020

Broken Records: Reconceptualizing Rational Basis Review To Address “Alternative Facts” In The Legislative Process, Joseph B. Landau

Faculty Scholarship

In 2016, North Carolina passed “HB2,” also known as the “bathroom ban”—a law prohibiting transgender individuals from accessing public restrooms corresponding to their gender identity—based on the unfounded fear that cisgender men posing as transgender women would assault women and girls in bathrooms. Around the same time, Alabama enacted a punishing immigration law in which sponsors distorted statistics regarding the undocumented population by using the terms “Latino/Hispanic” and “illegal immigrant” interchangeably. These laws are reflective of a larger pattern. In our increasingly polarized political climate, policymakers are affirmatively distorting legislative records and promoting dubious justifications for their ...


Interpreting Contracts In A Regulatory State, Aditi Bagchi Jan 2020

Interpreting Contracts In A Regulatory State, Aditi Bagchi

Faculty Scholarship

Some scholars would limit courts to the text of written agreements when interpreting contracts on the theory that parties meant what they said, and said what they meant. Other scholars would have courts take into account the factual context surrounding contract formation. Both sides of this debate assume that contract interpretation is largely limited to reconstructing contracting parties’ intentions.

This assumption is mistaken. Since the overturning of Lochner v New York, contracting parties no longer have exclusive authority over contracts. State authority to regulate contract came at the expense of unbridled private authority. A more limited conception of contracting parties ...


Toward A Mission Statement For Mutual Funds In Shareholder Litigation, Sean J. Griffith, Dorothy Lund Jan 2020

Toward A Mission Statement For Mutual Funds In Shareholder Litigation, Sean J. Griffith, Dorothy Lund

Faculty Scholarship

This paper analyzes the conduct of mutual funds in shareholder litigation. We begin by reviewing the basic forms of shareholder litigation and the benefits such claims might offer mutual fund investors. We then investigate, though an in-depth docket review, whether and how the ten largest mutual funds participate in shareholder litigation. We find that although shareholder suits offer potential benefits, the largest mutual funds have essentially forfeited their use of litigation. This finding is particularly striking given that index funds and other long-term oriented mutual funds generally cannot sell their shares when they are dissatisfied with company performance, leaving them ...


In Defense Of International Comity, Thomas H. Lee, Samuel Estreicher Jan 2020

In Defense Of International Comity, Thomas H. Lee, Samuel Estreicher

Faculty Scholarship

A chorus of critics, led by the late Justice Scalia, have condemned the practice of federal courts’ refraining from hearing cases over which they have subject-matter jurisdiction on the basis of international comity—respect for the governmental interests of other nations. They assail the practice as unprincipled abandonment of judicial duty and unnecessary given statutes and settled judicial doctrines that amply protect foreign governmental interests and guide the lower courts. But existing statutes and doctrines do not give adequate answers to the myriad cases in which such interests are implicated given the scope of present-day globalization and features of the ...


The Belt-And-Suspenders Canon, Ethan J. Leib, James J. Brudney Jan 2020

The Belt-And-Suspenders Canon, Ethan J. Leib, James J. Brudney

Faculty Scholarship

This Essay christens a new canon into the doctrines of statutory interpretation, one that can counter the too-powerful canon that has courts imposing norms against redundancy in their readings of statutes. Judges engaging in statutory interpretation must do a better job of recognizing how and why legislatures choose not to draft with perfect parsimony. Our Essay highlights the multifarious ways legislatures in federal and state governments self-consciously and thoughtfully – rather than regrettably and lazily – think about employing “belt-and-suspenders” efforts in their drafting practices. We then analyze in depth courts’ disparate efforts to integrate a belt-and-suspenders canon into their thinking about ...


Lying And Cheating, Or Self-Help And Civil-Disobedience?, Aditi Bagchi Jan 2020

Lying And Cheating, Or Self-Help And Civil-Disobedience?, Aditi Bagchi

Faculty Scholarship

May poor sellers lie to rich buyers? This Article argues that, under limited circumstances, sellers may indeed have a license to lie about their goods. Where sellers are losers under unjust background institutions and they reasonably believe that buyers have more than they would under just institutions, lies that result in de minimum transfers can be regarded as a kind of self-help. More generally, what we owe each other in our interpersonal interactions depends on the institutional backdrop. Consumer contract law, including its enforcement regimes, should recognize the social and political contingency of sellers’ obligations to buyers. In other contexts ...


What's The Difference Between A Conclusion And A Fact?, Howard Erichson Jan 2020

What's The Difference Between A Conclusion And A Fact?, Howard Erichson

Faculty Scholarship

No abstract provided.


Opt-In Stewardship: Toward An Optimal Delegation Of Mutual Fund Voting Authority, Sean J. Griffith Jan 2020

Opt-In Stewardship: Toward An Optimal Delegation Of Mutual Fund Voting Authority, Sean J. Griffith

Faculty Scholarship

This article offers a theory of mutual fund voting to answer when mutual funds should vote on behalf of their investors and when they should not. It argues that voting authority for mutual funds ought to depend upon: (1) whether the fund possesses a comparative information advantage, and (2) the ability of the fund to assume a common investor purpose. The strongest case for mutual fund voting is one in which high-quality information is produced and the fund is able to assume a common investor purpose. The case for mutual fund voting is weaker when low quality information is produced ...


The Adjudication Business, Pamela K. Bookman Jan 2020

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 ...


Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott Jan 2020

Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

The law governing children is complex, sometimes appearing almost incoherent. The relatively simple framework established in the Progressive era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, and legally incompetent beings. As children emerged as legal persons, children’s rights advocates challenged the rationale for parental authority, contending that robust parental rights often harm children. And a wave of punitive reforms in response to juvenile crime in the 1990s ...


Responsible A.I. Credit Scoring - A Legal Framework, Katja Langenbucher Jan 2020

Responsible A.I. Credit Scoring - A Legal Framework, Katja Langenbucher

Faculty Scholarship

No abstract provided.


Tracking Client Outcomes: A Qualitative Assessment Of Civil Legal Aid’S Use Of Outcomes Data, With Recommendations, David Udell Jan 2020

Tracking Client Outcomes: A Qualitative Assessment Of Civil Legal Aid’S Use Of Outcomes Data, With Recommendations, David Udell

Faculty Scholarship

In virtually all sectors of society, people are using data to improve what they do. Everyone, it seems, is interested in data, and is searching for best strategies to draw on its power. The stakes are high in the civil legal aid community, where strengthened advocacy can enable people to preserve their homes, their relationships with their children, their life savings, their physical and emotional well-being, and even their freedom.

Yet, in the civil legal aid community, awareness of the power of data is just beginning to take root. Traditionally, civil legal aid has been thinly funded, with little infrastructure ...


May Class Counsel Also Represent Lead Plaintiffs?, Bruce A. Green, Andrew Kent Jan 2020

May Class Counsel Also Represent Lead Plaintiffs?, Bruce A. Green, Andrew Kent

Faculty Scholarship

For decades, courts and commentators have been aware that the potential for conflicting interests among the class representatives, class counsel, and absent class members is inherent in the class action device. Notwithstanding this realization and a substantial amount of scholarly and judicial commentary on class conflicts, one kind of conflict has not received due attention: the conflict that inevitably arises when class counsel also represents class members as individuals. We demonstrate that this conflict— so common to be almost invisible—arises from the very beginning of a putative class representation, and may create a fraught situation for a lawyer concurrently ...


Risk-Averse Contract Interpretation, Aditi Bagchi Jan 2019

Risk-Averse Contract Interpretation, Aditi Bagchi

Faculty Scholarship

No abstract provided.


Prophetic Patents, Janet Freilich Jan 2019

Prophetic Patents, Janet Freilich

Faculty Scholarship

In most contexts, making up data is forbidden — considered fraudulent or even immoral. Not so in patents. Patents often contain experimental data and it is perfectly acceptable for these experiments to be entirely fictional. These so-called “prophetic examples” are not only explicitly permitted by both the Patent and Trademark Office and federal courts, but are considered almost equivalent to factual data in patent doctrine. Though prophetic examples are thought to be common, there are no studies of these experiments, no explanation for why fictional data are allowed in patents, and no evaluation of the practice.

Here, I provide the first ...


The New State Preemption, The Future Of Home Rule, And The Illinois Experience, Nestor Davidson, Laurie Reynolds Jan 2019

The New State Preemption, The Future Of Home Rule, And The Illinois Experience, Nestor Davidson, Laurie Reynolds

Faculty Scholarship

This article examines the rise of new forms of state preemption of local government legal authority in states across the nation, a trend that is prompting scholars, advocates, and officials to re-examine the underlying nature of home rule. The article lays out core components of a new approach to home rule that might remedy contemporary shortcomings in the doctrine, then reflects on lessons for reforming home rule from the Illinois experience.


Barnette And Masterpiece Cakeshop: Some Unanswered Questions, Abner S. Greene Jan 2019

Barnette And Masterpiece Cakeshop: Some Unanswered Questions, Abner S. Greene

Faculty Scholarship

This symposium piece addresses three issues stemming from the Court’s Masterpiece Cakeshop case and that case’s relationship to West Virginia v. Barnette. First, it discusses the relationship between claims for exemption from laws of general applicability and as-applied claims. Second, it addresses the issue most discussed in the Cakeshop briefs and oral argument, but not ultimately resolved by the Court: what counts as compelled speech in the setting of provision of services such as custom-made wedding cakes? Third, it intervenes in the fascinating sidebar between Justice Kagan and Justice Gorsuch regarding the state commission’s refusal to sanction ...


Neuroscience And The Personalization Of Criminal Law, Deborah W. Denno Jan 2019

Neuroscience And The Personalization Of Criminal Law, Deborah W. Denno

Faculty Scholarship

While objective standards of reasonableness permeate most legal disciplines, criminal law has trended toward personalization since the 1960s, when the Model Penal Code introduced conceptions of mental states based on Freudian psychoanalytic theory. Today, advancements in neuroscience offer previously inconceivable insights into living brain structures and damage. This Essay contends that a criminal justice system that uses personalizing neuroscientific evidence will yield better outcomes. This Essay contributes two unique tools to the personalized law debate. First are the results of my two-decade-long Neuroscience Study, in which I have compiled eight hundred criminal cases that addressed neuroscientific evidence in any capacity ...


Mdl And The Allure Of Sidestepping Litigation, Howard M. Erichson Jan 2019

Mdl And The Allure Of Sidestepping Litigation, Howard M. Erichson

Faculty Scholarship

No abstract provided.


The Twenty-Fifth Amendment: Its Crafting And Drafting Process, John D. Feerick Jan 2019

The Twenty-Fifth Amendment: Its Crafting And Drafting Process, John D. Feerick

Faculty Scholarship

No abstract provided.


Judicial Activism In Trial Courts, Bruce A. Green, Rebecca Roiphe Jan 2019

Judicial Activism In Trial Courts, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

No abstract provided.


British Home Stores Collapse: The Case For An Employee Derivative Claim, Martin Gelter, Neshat Safari Jan 2019

British Home Stores Collapse: The Case For An Employee Derivative Claim, Martin Gelter, Neshat Safari

Faculty Scholarship

British Home Stores collapsed led 11,000 employees to lose their jobs and faced substantial cuts to their pension with a £571 million pension deficit. In light of the BHS scandal, the UK Government has proposed a set of corporate governance reforms to strengthen the employee voice. Although the government’s approach towards strengthening the employees’ protection is well intentioned, we argue that without providing a derivative claim right for employees, these measures will likely have little impact in practice. Hence we suggest that to safeguard the employees’ interest in the company and to enhance the overall protection of the ...


Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott Jan 2019

Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

The law governing children is complex, sometimes appearing almost incoherent. The relatively simple framework established in the Progressive era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, and legally incompetent beings. As children emerged as legal persons, children’s rights advocates challenged the rationale for parental authority, contending that robust parental rights often harm children. And a wave of punitive reforms in response to juvenile crime in the 1990s ...


Congress And The Independence Of Federal Law Enforcement, Andrew Kent Jan 2019

Congress And The Independence Of Federal Law Enforcement, Andrew Kent

Faculty Scholarship

Not since the Nixon presidency has the issue of the professional neutrality and independence of federal law enforcement from White House interference or misuse been such a pressing issue. This Article describes the problem, details Congress’s important role in responding to it during the 1970s, and makes specific recommendations for Congress today. As important background, this Article recounts the abuses of the Hoover era at the Federal Bureau of Investigation (“FBI”), and the ways the Nixon White House sought to both impede and corrupt the Department of Justice (“DOJ”) and the FBI. It then describes what an engaged Congress ...


How Should Organizations Support Trainees In The Face Of Patient Bias?, Kimani Paul-Emile Jan 2019

How Should Organizations Support Trainees In The Face Of Patient Bias?, Kimani Paul-Emile

Faculty Scholarship

Some patients degrade, belittle, or harass clinicians and students based on their social identity characteristics, such as their race, gender, ethnicity, or religion. Some patients even refuse care. While this kind of behavior is difficult for all health care workers, it presents unique challenges for trainees. This article offers concrete protocols for supporting trainees when such patient encounters occur, including assessment, debriefing with affected staff, convening team meetings, event tracking, data collection, and initiating organizational cultural changes.


Five Myths About Prison, John F. Pfaff Jan 2019

Five Myths About Prison, John F. Pfaff

Faculty Scholarship

No abstract provided.


Deconstitutionalizing Dewey, Aaron Jay Saiger Jan 2019

Deconstitutionalizing Dewey, Aaron Jay Saiger

Faculty Scholarship

No abstract provided.


Apis And Your Privacy, N. Cameron Russell Jan 2019

Apis And Your Privacy, N. Cameron Russell

Faculty Scholarship

Application programming interfaces, or APIs, have been the topic of much recent discussion. Newsworthy events, including those involving Facebook’s API and Cambridge Analytica obtaining information about millions of Facebook users, have highlighted the technical capabilities of APIs for prominent websites and mobile applications. At the same time, media coverage of ways that APIs have been misused has sparked concern for potential privacy invasions and other issues of public policy. This paper seeks to educate consumers on how APIs work and how they are used within popular websites and mobile apps to gather, share, and utilize data.

APIs are used ...