Law and Society Commons^™

Foreword, Deborah W. Denno, Erica Valencia-Graham

Fordham Law Review

This Foreword overviews an unprecedented Symposium on these wide ranging topics titled The New AI: The Legal and Ethical Implications of ChatGPT and Other Emerging Technologies. Hosted by the Fordham Law Review and cosponsored by Fordham University School of Law’s Neuroscience and Law Center on November 3, 2023, the Symposium brought together attorneys, judges, professors, and scientists to explore the opportunities and risks presented by AI, especially GenAI like ChatGPT. The discussion raised complex questions concerning AI sentience and personal privacy, as well as the future of legal ethics, education, and employment. Although the AI industry uniformly predicts ever more …

Aligning The Stars: Institutional Convergence As Social Change, Raymond H. Brescia

Fordham Law Review

In a democracy, in which the legal and constitutional systems should reflect popular will and individual and collective self-determination are the engines through which those systems are realized, what are the means by which individuals, organizations, and social movements might bring about meaningful and sustainable social change that makes that society more just, more inclusive, and more equitable? A common understanding of how social change happens, and who can bring about that change, is represented in an oft-quoted phrase, attributed to Margaret Mead: “Never doubt that a small group of committed people can change the world: Indeed, it is the …

Community Responsive Public Defense, Alexis Hoag-Fordjour

Fordham Law Review

This colloquium asks us to consider how social change is influencing the legal profession and the legal profession’s response. This Essay applies these questions to organizing around criminal injustice and the response from public defenders. This Essay surfaces the work of four innovative indigent defense organizations that are engaged with and duty-bound to the communities they represent. I call this “community responsive public defense,” which is a distinct model of indigent defense whereby public defenders look to their clients and their clients’ communities to help shape advocacy, strategy, and representation.

Methodologically, this Essay relies primarily on qualitative interviews with leaders …

De Jure Separate And Unequal Treatment Of The People Of Puerto Rico And The U.S. Territories, Natalie Gomez-Velez

Fordham Law Review

Current efforts to dismantle systemic racism in the United States are often met with the argument that legally sanctioned inequality is a thing of the past. Yet despite progress toward formal legal equality, racism and discrimination in the United States exist not only as the effects of past laws and systems—they exist presently in current laws and systems as well. Current U.S. law discriminates against U.S. territories and their residents with respect to citizenship status, voting rights and representation, and equal access to benefits, among other things.

This Essay examines such separate and unequal treatment using the recent case, United …

Representing Noncitizens In The Context Of Legal Instability And Adverse Detention Precedent, Nancy Morawetz

Fordham Law Review

This Essay addresses three structural aspects of immigration law that have shifted in recent years and present important challenges for delivering adequate representation. Although the Katzmann study group’s many initiatives have shored up access to counsel in immigration courts and for immigration applications, the ground has been shifting under our feet. This Essay discusses three (of many) phenomena that make it harder than ever to lawyer on behalf of noncitizens. The first is the rise of red-state lawsuits that lead to enormous unpredictability about the agency rules under which lawyers can expect to operate. The second is the individuation and …

Policy By The People, For The People:Designing Responsiveregulation And Buildingdemocratic Power, Scott L. Cummings, Doug Smith

Fordham Law Review

Policymaking in American democracy is often a process that happens to people rather than by them. This is especially the case with respect to policy that affects people with less power in low-income communities and communities of color. Urban policy, in particular, has historically been driven by business elites and white homeowners’ interests, which have shaped exclusionary policies, such as redlining and single-family zoning— etching racial and economic segregation into the fabric of city space. Even when outsider interest groups and social movement organizations gain enough power to shape the policy agenda, give input into the content of policy, and …

Choose Your Words Carefully: Reimagining Retaliatory Arrest After Nieves V. Bartlett, Ryan Hor

Fordham Law Review

In the summer of 2020, the United States experienced potentially its largest ever social movement in the protests against racial inequality. Predictably, protestors clashed with law enforcement officers, often leading to arrests. Arrested individuals could bring § 1983 retaliatory arrest claims alleging that the officers deprived them of their First Amendment right to free speech. Such claims underline the tension between two vital interests: free speech and law enforcement effectiveness. In 2019, the U.S. Supreme Court decided Nieves v. Bartlett, which crafted a new framework for retaliatory arrest claims that consequently diminished a plaintiff’s chance to prevail and recover …

People’S Electric: Engaged Legal Education At Rutgers-Newark Law School In The 1960s And 1970s, George W. Conk

Fordham Urban Law Journal

No abstract provided.

Anything You Can Use, I Can Use Better: Examining The Contours Of Fair Use As An Affirmative Defense For Theatre Artists, Creators, And Producers, Benjamin Reiser

Fordham Intellectual Property, Media and Entertainment Law Journal

Broadway is booming. In a post-Hamilton world, ticket sales and attendance records for the commercial theatre industry continue to break season after season. At the same time (and perhaps not so coincidentally), litigation against theatre artists, creators, and producers has surged, especially in the realm of copyright infringement. Many theatre professionals accused of infringement in recent years have employed the doctrine of fair use—codified at 17 U.S.C. § 107—as an affirmative defense against such claims. This Note explores cases involving theatre professionals in which fair use was examined and contends that they collectively reflect broader historical trends in fair …

Cda 230 For A Smart Internet, Madeline Byrd, Katherine J. Strandburg

Fordham Law Review

This Article analyzes CDA 230 liability in light of the evolution of smart services employing data-driven personalized models of user behavior. As an illustrative case study, we discuss discrimination claims against Facebook’s ad-targeting platform, relying on recent empirical studies5 and litigation documents for factual background.

Liability For Ai Decision-Making: Some Legal And Ethical Considerations, Iria Giuffrida

Fordham Law Review

The creation and commercialization of these systems raise the question of how liability risks will play out in real life. However, as technical advancements have outpaced legal actions, it is unclear how the law will treat AI systems. This Article briefly addresses the legal ramifications and liability risks associated with reliance on—or delegation to—AI systems, and it sketches a framework suggesting how we can address the question of whether AI merits a new approach to deal with the liability challenges it raises when humans remain “in” or “on” the loop.

Urbanism Under Google: Lessons From Sidewalk Toronto, Ellen P. Goodman, Julia Powles

Fordham Law Review

Cities around the world are rapidly adopting digital technologies, data analytics, and the trappings of “smart” infrastructure. These innovations are touted as solutions to help rationalize services and address rising urban challenges, whether in housing, transit, energy, law enforcement, health care, waste management, or population flow. Promises of urban innovation unite cities’ need for help with technology firms’ need for markets and are rarely subject to evidentiary burdens about projected benefits (let alone costs). For the city, being smart is about functioning better and attracting tech plaudits. For the technology company, the smart city is a way to capture the …

Artificial Intelligence, Machine Learning, And Bias In Finance: Toward Responsible Innovation, Kristin Johnson, Frank Pasquale, Jennifer Chapman

Fordham Law Review

According to some futurists, financial markets’ automation will substitute increasingly sophisticated, objective, analytical, model-based assessments of, for example, a borrower’s creditworthiness for direct human evaluations irrevocably tainted by bias and subject to the cognitive limits of the human brain. However, even if they do occur, such advances may violate other legal principles.

Artificial Intelligence, Finance, And The Law, Tom C.W. Lin

Fordham Law Review

Artificial intelligence is an existential component of modern finance. The progress and promise realized and presented by artificial intelligence in finance has been thus far remarkable. It has made finance cheaper, faster, larger, more accessible, more profitable, and more efficient in many ways. Yet for all the significant progress and promise made possible by financial artificial intelligence, it also presents serious risks and limitations. This Article offers a study of those risks and limitations—the ways artificial intelligence and misunderstandings of it can harm and hinder law, finance, and society. It provides a broad examination of inherent and structural risks and …

Artificial Intelligence In Pharmaceuticals, Biologics, And Medical Devices: Present And Future Regulatory Models, David W. Opderbeck

Fordham Law Review

Artificial intelligence (AI) and AI-assisted technologies are set to transform the pharmaceutical, biologic, and medical device industries. AI is accelerating a convergence in the pharmaceutical and medical device industries and, in the health-care industry more broadly, is similar to the convergence of the media, entertainment, and communications industries.

Robot, Inc.: Personhood For Autonomous Systems?, Gerhard Wagner

Fordham Law Review

Since the invention of the steam engine, technological progress has served as a driver of innovation for liability systems. Pertinent examples include the arrival of the railway and the introduction of motor-powered vehicles. Today, the digital revolution challenges established legal axioms more fundamentally than technological innovations from earlier times. The development of robots and other digital agents operating with the help of artificial intelligence will transform many, if not all, product markets. It will also blur the distinction between goods and services and call into question the existing allocation of responsibility between manufacturers and suppliers on one side and owners, …

Power, Process, And Automated Decision-Making, Ari Ezra Waldman

Fordham Law Review

Automated decision-making systems based on “big data”–powered algorithms and machine learning are just as prone to mistakes, biases, and arbitrariness as their human counterparts. The result is a technologically driven decision-making process that seems to defy interrogation, analysis, and accountability and, therefore, undermines due process.

Mestizaje/Mesticagem: Racism & Citizenship In Latin America, Tanya Hernandez, Yuko Miki, Nitza Escalera

Posters

Maloney Library lecture series, Behind the Book

"'Male Chauvinism' Is Under Attack From All Sides At Present": Roberts V. United States Jaycees, Sex Discrimination, And The First Amendment, Linda C. Mcclain

Fordham Law Review

This Article considers the relationship between gender equality and freedom of association. Part I begins with the Supreme Court’s recognition of the freedom of association as first articulated in NAACP v. Alabama. It shows how, in the context of race discrimination, some key civil rights victories have enlisted claims of the freedom of association, while some other victories have prevailed against such claims. Those precedents set the foundation for the Court’s decision in Jaycees, which concerned gender discrimination. Part II focuses on the role of Jaycees in drawing an analogy between the harms of gender discrimination and sexual-orientation …

Gender Equality And The First Amendment: Foreword, Jeanmarie Fenrich, Benjamin C. Zipursky, Danielle Keats Citron

Fordham Law Review

Gender equality demands equal opportunity to speak and be heard. Yet, in recent years, the clash between equality and free speech in the context of gender has intensified—in the media, the workplace, college campuses, and the political arena, both online and offline. The internet has given rise to novel First Amendment issues that particularly affect women, such as nonconsensual pornography, online harassment, and online privacy. On November 1–2, 2018, the Fordham Law Review brought together scholars and practicing lawyers from around the nation to address many of the pressing challenges facing feminists and free speech advocates today. The Symposium was …

When Law Frees Us To Speak, Danielle Keats Citron, Jonathon W. Penney

Fordham Law Review

A central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyberharassment and sexualprivacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, the law has an equally important expressive role. In this Article, we highlight law’s capacity to shape social norms and behavior through education. We focus on a neglected dimension of law’s expressive role: its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We …

American Courts And The Sex Blind Spot: Legitimacy And Representation, Michele Goodwin, Mariah Lindsay

Fordham Law Review

We argue the legacy of explicit sex bias and discrimination with relation to political rights and social status begins within government, hewn from state and federal lawmaking. As such, male lawmakers and judges conscribed a woman’s role to her home and defined the scope of her independence in the local community and broader society. Politically and legally, women were legal appendages to men—objects of male power (visà-vis their husbands and fathers). In law, women’s roles included sexual chattel to their spouses, care of the home, and producing offspring. Accordingly, women were essential in the home, as law would have it, …

Pregnancy And The First Amendment, Helen Norton

Fordham Law Review

Suppose that you are pregnant and seated in the waiting room of a Planned Parenthood clinic, or maybe in a facility that advertises “Pregnant? We Can Help You.” This Essay discusses the First Amendment rules that apply to the government’s control of what you are about to hear. This Essay considers what First Amendment law, as applied to speech to pregnant women, would look like if the Court attended to the First Amendment interests of pregnant women themselves.

Toxic Misogyny And The Limits Of Counterspeech, Lynne Tirrell

Fordham Law Review

Gender equality, across all the ways that we humans are engendered, is an unrealized ideal of many contemporary Americans. It is not enshrined in the U.S. Constitution, unless one interprets “men” to include women, which the Framers did not. Although passed by Congress in 1972, the Equal Rights Amendment (ERA) failed to gain the necessary thirty-eight state ratifications, and it has never become law. Thirty-five states initially ratified it between 1972 and 1977, then two more in 2017 and 2018. It remains one state short. These ratifications indicate significant social progress for women, but the progress is uneven, even within …

Free Speech And The Diverse University, Keith E. Whittington

Fordham Law Review

There are those who think that free speech and inclusivity on college campuses are inconsistent. The notion that the two values are in tension with one another has become a common framing for thinking about the modern campus. A Gallup-Knight Foundation poll of college students asked respondents not only whether they valued free speech or diversity but also to choose between them and indicate which was “more important for colleges.” When forced to choose, a substantial minority of students said they would prioritize inclusivity over the freedom to express “viewpoints that are offensive” on campus. Following the Gallup-Knight poll the …

Income Disparity, Gender Equality, And Free Expression, Sylvia A. Law

Fordham Law Review

In the past half century, our world has experienced a radical change comparable to the Industrial Revolution of the nineteenth century. At least five elements are key: growing disparity of human opportunity, advance of formal human rights and equality, information transformation, economic globalization, and climate change. My focus is on economic disparity and gender equality in the United States. These two issues, huge in and of themselves, interact with the other cataclysmic changes of our time.

Dignity And Social Meaning: Obergefell, Windsor, And Lawrence As Constitutional Dialogue, Steve Sanders

Fordham Law Review

The U.S. Supreme Court’s three most important gay and lesbian rights decisions—Obergefell v. Hodges, United States v. Windsor, and Lawrence v. Texas—are united by the principle that gays and lesbians are entitled to dignity. Beyond their tangible consequences, the common constitutional evil of state bans on same-sex marriage, the federal Defense of Marriage Act, and sodomy laws was that they imposed dignitary harm. This Article explores how the gay and lesbian dignity cases exemplify the process by which constitutional law emerges from a social and cultural dialogue in which the Supreme Court actively participates. In doing …

"All The Women Are White, All The Blacks Are Men, But Some Of Us Are Brave", R.A. Lenhardt, Kimani Paul-Emile

Fordham Law Review Online

In 1982, African American feminists, writers, and educators Gloria T. Hull, Patricia Bell Scott, and Barbara Smith co-edited a foundational volume of essays designed to map a program for African American women’s studies and research on issues ranging from racial bias and sexism, to homophobia entitled: “All the Women Are White, All the Blacks are Men, But Some of Us Are Brave.” We reflected on that volume when we accepted the Fordham Law Review’s invitation to take part in its Online symposium honoring 100 years of women at Fordham Law School.

Family Law's Exclusions, Clare Huntington

Fordham Law Review Online

As Fordham Law School commemorates the hundredth anniversary of women in its ranks, the school is also acknowledging the ways it has excluded women. For this special Issue celebrating scholarship by the women of Fordham, I see a similar theme echoing in my work. From my first article, published soon after I graduated from law school, through my most recent work, I have identified and explored the exclusions riddling family law.

The Light We Shine Into The Grey: A Restorative #Metoo Solution And An Acknowledgement Of Those #Metoo Leaves In The Dark, Nora Stewart

Fordham Law Review

In the past year and a half, American women have publicly discussed experiences of sexual assault, harassment, and—notably—grey-area misconduct in an unprecedented manner. The rhetoric of the #MeToo movement is rife with references to “shining a light” on a set of unexplored issues hitherto obscured in cultural darkness, to following women’s experiences into the grey. What is new about #MeToo, and what likely will be the through line that defines its historical importance, has been its sensitivity to nuance. The grey range of #MeToo misconduct is not a new problem. It is emphatically new, however, as a subject of public …