Law Commons^™

Learned Hand On Statutory Interpretation: Theory And Practice, Thomas W. Merrill

Fordham Law Review

It is a great honor to take part in the celebration of the Second Circuit’s 125th anniversary and in particular to present the Hands Lecture. The Second Circuit in the 1930s and 1940s came to be called the “Hand Court,” and during those years it established its reputation as the most admired of the U.S. circuit courts of appeals. It was called the Hand Court because two of its judges, who often formed the majority on three-judge panels, bore the surname Hand. Learned Hand is today regarded as a great common law judge, and significant attention has been ...

Civil Litigation Reform In The Trump Era: Threats And Opportunities Searching For Salvageable Ideas In Ficala, Howard M. Erichson

Fordham Law Review

The Fairness in Class Action Litigation Act of 2017 (FICALA) was introduced in Congress less than three weeks after Donald Trump took office as President. Supported by the U.S. Chamber of Commerce and opposed by consumer advocates and civil rights groups, the bill passed the House of Representatives one month after its introduction on a party-line vote of 220 to 201, with 220 Republicans and zero Democrats voting in favor. FICALA stalled in the Senate and, as of this writing, does not appear to be moving toward passage in its current form. But reform ideas have a way of ...

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

Fordham Law Review

Our aim in this Article is to leverage the archival research, data, and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, to illuminate the prospects for retrenchment in the current political landscape. In the book, we documented how an outpouring of rights-creating legislation from Democratic Congresses in the 1960s and 1970s, much of which contained provisions designed to stimulate private enforcement, prompted the conservative legal movement within the Republican Party to devise a response. Recognizing the political infeasibility of retrenching substantive rights, the movement’s strategy was to weaken the infrastructure for enforcing them ...

What We Don't Know About Class Actions But Hope To Know Soon, Jonah B. Gelbach, Deborah R. Hensler

Fordham Law Review

Legislation that would alter class action practice in the federal courts has been pending in Congress. Nearly a decade’s worth of U.S. Supreme Court cases have restricted the scope and ease of use of the class action device. Class action critics argue that class litigation is a “racket” that fails to compensate plaintiffs and instead enriches plaintiffs’ lawyers at the expense of legitimate business practices. On the other hand, defenders of class actions decry the legislative and judicial forces aligned against them, warning that trends in class action law will eviscerate the practical rights held by consumers and ...

Jurisdiction In The Trump Era, Scott Dodson

Fordham Law Review

The election of Donald Trump as President of the United States induced immediate speculation about how his tenure would affect various areas of the law. In civil-procedure circles, the intuition is that his status as a probusiness, antiregulation Republican seems likely to push procedural doctrine generally in pro-defendant directions. That intuition seems sound in the specific procedural subtopic of jurisdictional doctrine relating to forum selection. In this Essay, I document recent pre-Trump, pro-defendant trends in personal jurisdiction and diversity jurisdiction, and I detail how those trends impose significant burdens on plaintiffs. I then explain why the remainder of Trump’s ...

The Looming Battle For Control Of Multidistrict Litigation In Historical Perspective, Andrew D. Bradt

Fordham Law Review

2018 marks fifty years since the passage of the Multidistrict Litigation Act. But instead of thoughts of a golden-anniversary celebration, an old Rodney Dangerfield one-liner comes to mind: “[M]y last birthday cake looked like a prairie fire.” Indeed, after a long period of relative obscurity, multidistrict litigation (MDL) has become a subject of major controversy—and not only among scholars of procedure. For a long time, both within and beyond the rarified world of procedure scholars, MDL was perceived as the more technical, less extreme cousin of the class action, which attracted most of the controversy. My goal in ...

Unlocking The Fifth Amendment: Passwords And Encrypted Devices, Laurent Sacharoff

Fordham Law Review

Each year, law enforcement seizes thousands of electronic devices—smartphones, laptops, and notebooks—that it cannot open without the suspect’s password. Without this password, the information on the device sits completely scrambled behind a wall of encryption. Sometimes agents will be able to obtain the information by hacking, discovering copies of data on the cloud, or obtaining the password voluntarily from the suspects themselves. But when they cannot, may the government compel suspects to disclose or enter their password? This Article considers the Fifth Amendment protection against compelled disclosures of passwords—a question that has split and confused courts ...

Class Problem!: Why The Inconsistent Application Of Rule 23'S Class Certification Requirements During Overbreadth Analysis Is A Threat To Litigant Certainty, David I. Berman

Fordham Law Review

Rule 23 of the Federal Rules of Civil Procedure is home to the class action device. It is well-documented that this rule significantly impacts our legal system. As a result, the need for its effective utilization has been apparent since its introduction. Despite this, federal courts have inconsistently applied the rule during their analyses of overbroad class definitions at the class certification stage. Consequently, parties involved in such litigation have been exposed to unnecessary costs and the potential for forum shopping. Nonetheless, this judicial inconsistency has gone largely unrecognized because it does not implicate the results of class certification. Hence ...

A Constitutional Case For Extending The Due Process Clause To Asylum Seekers: Revisiting The Entry Fiction After Boumediene, Zainab A. Cheema

Fordham Law Review

In the last two decades, the U.S. Supreme Court has actively grappled with balancing the interests of immigrant detainees and the federal government in the context of prolonged immigration detention by reconciling the statutory framework with constitutional guarantees of due process. The Court has focused on how prolonged detention without an opportunity for an individualized custody determination poses a serious constitutional threat to an alien’s liberty interest. The Court’s jurisprudence has focused, however, on aliens who have effected an entry into the United States. The constitutional entitlements of nonresidents who are detained upon presenting themselves at the ...

Open The Jail Cell Doors, Hal: A Guarded Embrace Of Pretrial Risk Assessment Instruments, Glen J. Dalakian Ii

Fordham Law Review

In recent years, criminal justice reformers have focused their attention on pretrial detention as a uniquely solvable contributor to the horrors of modern mass incarceration. While reform of bail practices can take many forms, one of the most pioneering and controversial techniques is the adoption of actuarial models to inform pretrial decision-making. These models are designed to supplement or replace the unpredictable and discriminatory status quo of judicial discretion at arraignment. This Note argues that policymakers should experiment with risk assessment instruments as a component of their bail reform efforts, but only if appropriate safeguards are in place. Concerns for ...

Where Breaking Glass Ceilings Leads To Glass Walls: Gender-Disparate Managerial Decision-Making Power And Authority, Bina Nayee

Fordham Law Review

Today, litigation over plainly discriminatory employment practices is much less common than it was in the two decades following Title VII’s enactment as employers have largely reformed practices that most obviously violate employment discrimination law. But many less obvious employment practices, particularly those embedded in implicit bias or unconscious sex stereotyping, remain. One example is employers’ distribution of managerial decision-making power and authority based on assumptions about sex. Although this particular employment practice has not yet been litigated, there is a strong argument that a legal challenge to this practice could succeed. This Note argues that female managers can ...

Cyber Babel: Finding The Lingua Franca In Cybersecurity Regulation, William Pierotti

Fordham Law Review

Cybersecurity regulations have proliferated over the past few years as the significance of the threat has drawn more attention. With breaches making headlines, the public and their representatives are imposing requirements on those that hold sensitive data with renewed vigor. As high-value targets that hold large amounts of sensitive data, financial institutions are among the most heavily regulated. Regulations are necessary. However, regulations also come with costs that impact both large and small companies, their customers, and local, national, and international economies. As the regulations have proliferated so have those costs. The regulations will inevitably and justifiably diverge where different ...

A Crispr Future For Gene-Editing Regulation: A Proposal For An Updated Biotechnology Regulatory System In An Era Of Human Genomic Editing, Tracey Tomlinson

Fordham Law Review

Recent developments in gene-editing technology have enabled scientists to manipulate the human genome in unprecedented ways. One technology in particular, Clustered Regularly Interspaced Short Pallindromic Repeat (CRISPR), has made gene editing more precise and cost-effective than ever before. Indeed, scientists have already shown that CRISPR can eliminate genes linked to life-threatening diseases from an individual’s genetic makeup and, when used on human embryos, CRISPR has the potential to permanently eliminate hereditary diseases from the human genome in its entirety. These developments have brought great hope to individuals and their families, who suffer from genetically linked diseases. But there is ...

Immigration Blame, David S. Rubenstein

Fordham Law Review

This Article provides the first comprehensive study of blame in the U.S. immigration system. Beyond blaming migrants, we blame politicians, bureaucrats, and judges. Meanwhile, these players routinely blame each other, all while trying to avoid being blamed. As modeled here, these dynamics of “immigration blame” have catalyzing effects on the politics, policies, and structures of immigration law. Yoking key insights from a range of social sciences, this Article offers unique perspectives on the operation and design choices of the immigration system. Moreover, through a blame lens, the terms of debate over amnesty, immigration enforcement, the travel ban, sanctuary cities ...

#Sowhitemale: Federal Civil Rulemaking, Brooke D. Coleman

NULR Online

116 out of 136. That is the number of white men who have served on the eighty-two-year-old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate, even in the context of the white-male-dominated legal profession. If the rules were simply a technical set of instructions made by a neutral set of experts, then perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rule-makers ...

Vol. 55, No. 07 (October 1, 2018)

Indiana Law Annotated

No abstract provided.

E-Museletter: October 2018, William Taylor Muse Law Library

Museletter

This Issue:

Phone Pods!

Research Consultations for Paper Writing

Duo Security for Law Students

New Display: The Weird and Wonderful World of Law

New Materials

Announcing: Tech Skills Workshops

The California Consumer Privacy Act Of 2018: Are Your Interests At Stake?, Katie Christensen

GGU Law Review Blog

California residents and those who do business in California are advised to stay abreast of the California Consumer Privacy Act, as there may be major textual revisions – or Federal pre-emption – before the act goes into effect on January 1, 2020.

The Hollowed Out Common Law, Sam Issacharoff, Florencia Marotta-Wurgler

New York University Law and Economics Working Papers

The electronic marketplace poses novel issues for contract law. Contracts created through browsewrap, clickwrap, and shrinkwrap (contracts whose embedded terms are only available after purchase) poorly fit doctrines that emerged from face-to-face offer and acceptance, the mutual execution of a common set of documents, or the rituals of mass market transactions involving physical fine print. Not surprisingly, these contracts of the new electronic marketplace require doctrinal elaboration. Our Article asks not about the specific resolution of new doctrinal challenges, but about how the common law of contracts will be elaborated. Specifically, the Article begins with empirical observations about the domain ...

The Law Of Health Insurer Claims Handling In Montana, Greg Munro

Faculty Journal Articles & Other Writings

No abstract provided.