Law Commons^™

Unearthing The Public Interest: Recognizing Intrastate Economic Protectionism As A Legitimate State Interest, Katharine M. Rudish

Fordham Law Review

In Oklahoma, a person must complete sixty-credit hours of undergraduate training and embalm twenty-five bodies before being legally licensed to sell caskets in the state. In Louisiana, in order to sell caskets, one must operate a fully licensed funeral establishment, defined as a place dedicated to preparing bodies for burial. In recent years, these states and others have faced legal challenges to casket sale restrictions by individuals who wish to sell caskets directly to the public, yet who are unable to do so as they are not licensed funeral directors. Courts have grappled with whether these state regulations, which in …

Conflict Minerals Legislation: The Sec’S New Role As Diplomatic And Humanitarian Watchdog, Karen E. Woody

Fordham Law Review

Buried in the voluminous Dodd-Frank Wall Street Reform and Consumer Protection Act is an oft-overlooked provision requiring corporate disclosure of the use of “conflict minerals” in products manufactured by issuing corporations. This Article scrutinizes the legislative history and lobbying efforts behind the conflict minerals provision to establish that, unlike the majority of the bill, its goals are moral and political, rather than financial. Analyzing the history of disclosure requirements, the Article suggests that the presence of conflict minerals in an issuer’s product is not inherently material information and that the Dodd-Frank provision statutorily renders nonmaterial information material. The provision, therefore, …

Instructing Juries On Noneconomic Contract Damages, David A. Hoffman, Alexander S. Radus

Fordham Law Review

Gathering pattern contract jury instructions from every state, we examine jurisdictions’ treatment of noneconomic damages. While the conventional account holds that there is a uniform preference against awards of noneconomic damages, we find four different approaches in pattern instructions, with only one state explicitly prohibiting juries from considering noneconomic losses. Lay juries have considerably more freedom to award the promisee’s noneconomic damages than the hornbooks would have us believe.

We substantiate this claim with an online survey experiment asking respondents about a simple contract case and instructing them using the differing pattern forms. We found that subjects routinely awarded more …

Disfavored Constitution, Passive Virtues? Linking State Constitutional Fiscal Limitations And Permissive Taxpayer Standing Doctrines, Joshua G. Urquhart

Fordham Law Review

This Article contrasts the permissive state taxpayer standing doctrines in place in most states with the restrictive federal and state taxpayer standing rules applied in federal court. It proposes a new theory to explain this disparity, arguing that ubiquitous state constitutional fiscal restrictions, which specifically limit a state government’s ability to tax, spend, and borrow, are a primary impetus in the creation and development of liberal state taxpayer standing doctrines. The Article evaluates this novel hypothesis through an empirical-historical survey of the early state taxpayer standing decisions in every permissive jurisdiction and finds that these provisions are indeed involved in …

Bankrupt Estoppel: The Case For A Uniform Doctrine Of Judicial Estoppel As Applied Against Former Bankruptcy Debtors, Eric Hilmo

Fordham Law Review

This Note examines the role judicial estoppel plays in supporting the U.S. federal bankruptcy regime. Though once considered an obscure doctrine, the use of judicial estoppel to bar pursuit of previously undisclosed claims by former bankrupts has grown apace with burgeoning bankruptcy filings over the last decade. While the doctrine’s application in federal courts has evolved toward a common standard of application, state courts’ application remains idiosyncratic. The Note argues that under the established laws of judgment recognition and in light of federal courts’ sophisticated application of the doctrine, state courts should apply federal judicial estoppel standards to further national …

Functionalism’S Military Necessity Problem: Extraterritorial Habeas Corpus, Justice Kennedy, Boumediene V. Bush, And Al Maqaleh V. Gates, Richard Nicholson

Fordham Law Review

The U.S. Supreme Court has struggled over the last 150 years to definitively answer the question of whether the U.S. Constitution applies beyond the borders of the territorial United States. Because the Constitution is silent on the issue, the burden has fallen on the judiciary to establish the contours of the doctrine. At times, the Court has espoused formulistic theories limiting constitutional application to territorial sovereignty, while at others it has looked to more objective, practical solutions that reach beyond the borders.

In 2008, the Supreme Court held in Boumediene v. Bush that the application of the Suspension Clause of …

Determining Diversity Jurisdiction Of National Banks After Wachovia Bank V. Schmidt, Michael Podolsky

Fordham Law Review

Prior to the U.S. Supreme Court’s decision in Wachovia Bank v. Schmidt, some courts held, for diversity jurisdiction purposes, that national banks were citizens of each and every state in which they had a branch. In Schmidt, the Supreme Court made it clear that this approach was incorrect, but failed to provide an alternative one. Not surprisingly, in the wake of that decision another court split developed. While some courts have found that national banks are citizens only of the state listed on their charters as their main office, others have found that national banks are also citizens …

Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen

Fordham Law Review

In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in a …

Valuing Privacy, Youngjae Lee

Fordham Law Review

No abstract provided.

A Conversation With Justice Sandra Day O’Connor And Judge Judith S. Kaye, Hon. Sandra Day O'Connor, Hon. Judith S. Kaye

Fordham Law Review

No abstract provided.

A Pillar Of Democracy: Reflections On The Role And Work Of The Constitutional Court Of South Africa, Kate O’Regan

Fordham Law Review

No abstract provided.

Enron, Doma, And Spousal Privileges: Rethinking The Marriage Plot, Bennett Capers

Fordham Law Review

No abstract provided.

Foreward, Joseph Landau

Fordham Law Review

On March 30, 2012, the Fordham Law Review held a daylong conference on the federal Defense of Marriage Act (DOMA), a statute enacted in 1996 with large majorities in both the House and Senate and signed into law by President Clinton. The Symposium could not have come at a better time: there have been extraordinary changes in the political dynamics surrounding relationship rights since DOMA’s enactment in 1996, when same–sex couples could not marry in any U.S. or foreign jurisdiction. Currently, same–sex couples can legally marry in six U.S. states and the District of Columbia. Nine additional states have broad …

The Solicitor General’S Office, Tradition, And Conviction, Charles Fried

Fordham Law Review

No abstract provided.

Missing Links In The President’S Evolution On Same-Sex Marriage, Saikrishna Bangalore Prakash

Fordham Law Review

No abstract provided.

Interpretive Schizophrenia: How Congressional Standing Can Solve The Enforce-But-Not-Defend Problem, Abner S. Greene

Fordham Law Review

No abstract provided.

The Obama Administration’S Decision To Defend Constitutional Equality Rather Than The Defense Of Marriage Act, Dawn Johnsen

Fordham Law Review

No abstract provided.

Doma And Presidential Discretion: Interpreting And Enforcing Federal Law, Joseph Landau

Fordham Law Review

No abstract provided.

The Moral Complexity Of Cause Lawyers Within The State, David Luban

Fordham Law Review

No abstract provided.

Cause Lawyers Inside The State, Douglas Nejaime

Fordham Law Review

No abstract provided.

“Two Parts Of The Landscape Of Family In America”: Maintaining Both Spousal And Domestic Partner Employee Benefits For Both Same-Sex And Different-Sex Couples, Nancy D. Polikoff

Fordham Law Review

No abstract provided.

Involuntary Imports: Williams, Lutwak, The Defense Of Marriage Act, Federalism, And “Thick” And “Thin” Conceptions Of Marriage, Lynn D. Wardle

Fordham Law Review

No abstract provided.

Collegiality And Individual Dignity, Tobias Barrington Wolff

Fordham Law Review

No abstract provided.

Recognizing The Right To Petition For Victims Of Domestic Violence, Tamara L. Kuennen

Fordham Law Review

Like any citizen, a victim of domestic violence (DV) may call the police for help when she needs it. And yet, when a victim calls the police, she not only seeks law enforcement assistance but also invokes her constitutional right to seek one of the most fundamental services the government can provide—protection from harm. That right, recently described by the Supreme Court as “essential to freedom,” is the right “to petition the Government for a redress of grievances” guaranteed by the First Amendment.

This Article argues that a combination of law and policy initiatives produces negative collateral consequences for DV …

Unconstitutional Animus, Susannah W. Pollvogt

Fordham Law Review

It is well established that animus can never constitute a legitimate state interest for purposes of equal protection analysis. But neither precedent nor scholarship has stated conclusively how animus is properly defined, what counts as evidence of animus in any given case, or the precise doctrinal significance of a finding of animus. The U.S. Supreme Court has explicitly addressed the question of animus only a handful of times, and these cases do not appear to be particularly congruent with one another, at least on the surface. Further, while a number of scholars have discussed animus in terms of moral philosophy, …

A Call To Action—Examining Nepal’S Post-Conflict Strategy Toward Persons Accused Of Gross Human Rights Abuses, Jennifer Chiang

Fordham Law Review

This Note analyzes Nepal’s attempts to establish accountability and the rule of law in the aftermath of its ten-year civil war. It compares Nepal’s treatment of persons implicated in gross human rights violations with the international human rights legal framework surrounding a state’s international obligations, particularly in its use of transitional justice mechanisms. It argues that Nepal’s failure to bring either administrative sanctions or criminal prosecutions against officials accused of human rights abuses—and its reliance instead on truth commissions—undermines the rule of law and violates the country’s international human rights obligations.

But Is It Just? The Inability For Current Adjudicatory Standards To Provide “Just Compensation” For Creeping Expropriations, Shain Corey

Fordham Law Review

In hopes of promoting foreign direct investment, the world has experienced an influx of bilateral investment treaties over the past twenty years. One protection these treaties afford to foreign investors is the guarantee of “just compensation” if the host government expropriates their investment, either directly or indirectly. Extensive jurisprudence exists discussing how a tribunal determines “just compensation” in cases of expropriation; however, these methods have historically revolved around valuing direct expropriations. While tribunals use these same methods to value indirect expropriations, analysis of these adjudications, particularly in the cases of a creeping expropriation, result in inconsistent and unpredictable outcomes

This …

Unclear Authority, Unclear Futures: Challenges To State Legislation Providing In-State Tuition Benefits To Undocumented Students Pursuing Higher Education, Julia R. Kim

Fordham Law Review

Exercising its federal power to regulate immigration, Congress has responded to illegal immigration by enacting deterrent legislation that includes provisions denying public benefits to undocumented immigrants. One of these provisions, 8 U.S.C. § 1623, explicitly bars states from providing postsecondary education benefits to undocumented immigrants on the basis of in-state residency. As a consequence, undocumented young adults—many of whom grew up and received their primary and secondary education in the United States—are effectively barred from pursuing higher education by their ineligibility for in-state tuition rates and financial aid. Some states, however, have evaded the § 1623 bar by providing undocumented …

Funding Conditions And Free Speech For Hiv/Aids Ngos: He Who Pays The Piper Cannot Always Call The Tune, Alexander P. Wentworth-Ping

Fordham Law Review

The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act pledges billions of dollars to fund NGOs combating the HIV/AIDS epidemic but requires recipients to adopt a policy explicitly opposing prostitution and sex trafficking. A possible recipient NGO confronts a tough decision: adopt an affirmative statement against prostitution and sex trafficking to accept the funds, alienating a vital partner in its efforts to eradicate HIV/AIDS; or deny the funds to speak its own message, though without the benefit of government assistance.

Courts are split on whether the Leadership Act’s policy requirement places an unconstitutional condition on federal funds that requires …

A Gate Forever Closed? Retiring Immigration Law’S Post-Departure Bar, Jonathan H. Ross

Fordham Law Review

Immigration law’s “post-departure bar” destroys the jurisdiction of either an immigration judge or the Board of Immigration Appeals to hear a motion to reopen or reconsider filed by an alien who is no longer physically within the country. This Note examines the current conflict between the federal circuits regarding the post-departure bar and why the circuits that have decided to strike down the bar in the cases before them have ruled in line with certain trends present in recent Supreme Court immigration cases.

Conflict between the circuits has arisen because the governing statute, the Illegal Immigration Reform and Immigrant Responsibility …