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Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang 2018 University of Pennsylvania Law School

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 2018 University of Pennsylvania Law School

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 2018 UC Hastings College of Law

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 2018 University of California, Berkeley

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 2018 University of Arkansas School of Law, Fayetteville

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 ...


A Constitutional Case For Extending The Due Process Clause To Asylum Seekers: Revisiting The Entry Fiction After Boumediene, Zainab A. Cheema 2018 Fordham University School of Law

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 2018 Fordham University School of Law

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 2018 Fordham University School of Law

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 2018 Fordham University School of Law

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 ...


Immigration Blame, David S. Rubenstein 2018 Washburn University School of Law

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 2018 Seattle University School of Law

#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 ...


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

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 2018 Golden Gate University School of Law

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 Law Of Health Insurer Claims Handling In Montana, Greg Munro 2018 Alexander Blewett III School of Law at the University of Montana

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

Faculty Journal Articles & Other Writings

No abstract provided.


State Action And The Constitution's Middle Band, Louis Michael Seidman 2018 Georgetown Law

State Action And The Constitution's Middle Band, Louis Michael Seidman

Michigan Law Review

On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints.

It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there ...


Change, Creation, And Unpredictability In Statutory Interpretation: Interpretive Canon Use In The Roberts Court's First Decade, Nina A. Mendelson 2018 University of Michigan Law School

Change, Creation, And Unpredictability In Statutory Interpretation: Interpretive Canon Use In The Roberts Court's First Decade, Nina A. Mendelson

Michigan Law Review

In resolving questions of statutory meaning, the lion’s share of Roberts Court opinions considers and applies at least one interpretive canon, whether the rule against surplusage or the presumption against state law preemption. This is part of a decades-long turn toward textualist statutory interpretation in the Supreme Court. Commentators have debated how to justify canons, since they are judicially created rules that reside outside the statutory text. Earlier studies have cast substantial doubt on whether these canons can be justified as capturing congressional practices or preferences; commentators have accordingly turned toward second-order justifications, arguing that canons usefully make interpretation ...


Renovations Needed: The Fda's Floor/Ceiling Framework, Preemption, And The Opioid Epidemic, Michael R. Abrams 2018 University of Michigan Law School

Renovations Needed: The Fda's Floor/Ceiling Framework, Preemption, And The Opioid Epidemic, Michael R. Abrams

Michigan Law Review

The FDA’s regulatory framework for pharmaceuticals uses a “floor/ceiling” model: administrative rules set a “floor” of minimum safety, while state tort liability sets a “ceiling” of maximum protection. This model emphasizes premarket scrutiny but largely relies on the state common law “ceiling” to police the postapproval drug market. As the Supreme Court increasingly holds state tort law preempted by federal administrative standards, the FDA’s framework becomes increasingly imbalanced. In the face of a historic prescription medication overdose crisis, the Opioid Epidemic, this imbalance allows the pharmaceutical industry to avoid internalizing the public health costs of their opioid ...


Cabining Judicial Discretion Over Forensic Evidence With A New Special Relevance Rule, Emma F.E. Shoucair 2018 University of Michigan Law School

Cabining Judicial Discretion Over Forensic Evidence With A New Special Relevance Rule, Emma F.E. Shoucair

Michigan Law Review

Modern forensic evidence suffers from a number of flaws, including insufficient scientific grounding, exaggerated testimony, lack of uniform best practices, and an inefficacious standard for admission that regularly allows judges to admit scientifically unsound evidence. This Note discusses these problems, lays out the current landscape of forensic science reform, and suggests the addition of a new special relevance rule to the Federal Rules of Evidence (and similar rules in state evidence codes). This proposed rule would cabin judicial discretion to admit non-DNA forensic evidence by barring prosecutorial introduction of such evidence in criminal trials absent a competing defense expert or ...


Best Article Ever Written, Aaron Retteen 2018 Texas A&M University School of Law

Best Article Ever Written, Aaron Retteen

Texas A&M Law Review

This is an abstract, don't forget to add one.


Net Neutrality Powers Energy And Forestalls Climate Change, Catherine J.K. Sandoval 2018 University of San Diego

Net Neutrality Powers Energy And Forestalls Climate Change, Catherine J.K. Sandoval

San Diego Journal of Climate & Energy Law

Drawing on my experience as a Commissioner of the California Public Utilities Commission (CPUC) from January 2011 to January 2017, this Article explores the interdependence of the electricity sector and the open and neutral internet. Section II of this Article discusses the evolution of critical infrastructure laws and policies. Section III examines California’s energy loading order adopted in 2003 to increase energy reliability and protect the environment. Section IV analyzes the evolution of federal and state Smart Grid policies to infuse communications and information technologies including the internet into the energy ecosystem. Section V discusses FERC’s authorization of ...


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