Digital Commons Network^™

Autonomous Systems & International Norms, Charles J. Dunlap Jr., Richard Jordan, Elsa Kania, Michael Klare

Faculty Scholarship

No abstract provided.

Genetic Evidence, Maoa, And State V. Yepez, Nita A. Farahany, Roderick T. Kennedy, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

The Costs And Benefits Of Forensics, Brandon L. Garrett

Faculty Scholarship

Supreme Court Justice Louis Brandeis famously wrote that states can be laboratories for experimentation in law and policy. Disappointingly, however, the actual laboratories that states and local governments run are not a home for experimentation. We do not have adequate information about either the costs or the benefits of forensic testing or allocation of resources. Increased spending and expansion of crime laboratories has perversely accompanied growing backlogs. Poor quality control has resulted in a series of audits and even closures of crime laboratories. In response to these problems, however, some laboratories and some entire states have developed new approaches toward …

Genetic Race? Dna Ancestry Tests, Racial Identity, And The Law, Trina Jones, Jessica L. Roberts

Faculty Scholarship

Can genetic tests determine race? Americans are fascinated with DNA ancestry testing services like 23andMe and AncestryDNA. Indeed, in recent years, some people have changed their racial identity based upon DNA ancestry tests and have sought to use test results in lawsuits and for other strategic purposes. Courts may be similarly tempted to use genetic ancestry in determining race. In this Essay, we examine the ways in which DNA ancestry tests may affect contemporary understandings of racial identity. We argue that these tests are poor proxies for race because they fail to reflect the social, cultural, relational, and experiential norms …

Covid-19'S Impact On Students With Disabilities In Under-Resourced School Districts, Crystal Grant

Faculty Scholarship

This Essay explores the plight of students with disabilities during the COVID-19 pandemic, particularly those enrolled in under-resourced school districts. To address these ongoing disparities, remediate student regression, and prevent further educational loss, we must act quickly to get resources to the students who need it most and to guide districts towards using these resources effectively. This Essay questions whether federal and state governments are truly committed to creatively examining the current special education framework and adopting solutions that will prioritize expanding access to resources for students with disabilities. These solutions include an immediate advancement of funds to aid states …

Commentary On Meritor Savings Bank, Fsb V. Vinson, Trina Jones

Faculty Scholarship

No abstract provided.

Juvenile Life Without Parole In North Carolina, Ben Finholt, Brandon L. Garrett, Karima Modjadidi, Kristen M. Renberg

Faculty Scholarship

Life without parole (LWOP) is “an especially harsh punishment for a juvenile,” as the U.S. Supreme Court noted in Graham v. Florida. The United States is the only country in the world that imposes juvenile life without parole (JLWOP) sentences. Many of these individuals were sentenced during a surge in LWOP sentencing in the 1990s. In the past decade, following several Supreme Court rulings eliminating mandatory sentences of LWOP for juvenile offenders, such sentencing has declined. This Article aims to empirically assess the rise and then the fall in JLWOP sentencing in a leading sentencing state, North Carolina, to better …

The Modern Architecture Of Religious Freedom As A Fundamental Right, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Broken Records: Reconceptualizing Rational Basis Review To Address “Alternative Facts” In The Legislative Process, Joseph 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 policy goals—that is, …

Women Law Deans, Gender Sidelining, And Presumptions Of Incompetence, Laura M. Padilla

Faculty Scholarship

Discussions of presumptions of incompetence and gender sidelining all address challenges that women, especially women of color, face in leadership roles. This Article explores these topics in the context of law deans.

This Article starts with updated data on the number of women law deans, including women of color, and demonstrates increased numbers of both women and women of color in deanships. It then shifts to plausible explanations for this growth: some optimistic and some more skeptical. It may be no coincidence that as the job became less desirable, women were appointed in greater numbers.

Next, this Article provides narrative …

Correlates Of Poor Medication Adherence In Chronic Psychotic Disorders, Martha Sajatovic, Carol Blixen, Michelle E. Aebi, Betsy Wilson, Christopher J. Burant, Kristin A. Cassidy, Jennifer B. Levine

Faculty Scholarship

Background Chronic psychotic disorders (CPDs) occur worldwide and cause significant burden. Poor medication adherence is pervasive, but has not been well studied in sub-Saharan Africa. Aims This cross-sectional survey of 100 poorly adherent Tanzanian patients with CPD characterised clinical features associated with poor adherence. Method Descriptive statistics characterised demographic and clinical variables, including barriers to adherence, adherence behaviours and attitudes, and psychiatric symptoms. Measures included the Tablets Routine Questionnaire, Drug Attitudes Inventory, the Brief Psychiatric Rating Scale, the Clinical Global Impressions scale, the Alcohol Use Disorders Identification Test and Alcohol, Smoking and Substance Involvement Screening Test. The relationship between adherence …

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, …

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. …

Special Education Disparities Are Social Determinants Of Health: A Role For Medical-Legal Partnerships, Karen Bonuck, Leah Hill

Faculty Scholarship

Problem: Education is a key social determinant of health. The federal Individuals with Disabilities Education Act (IDEA) purportedly affords children the right to a free and appropriate education. Yet, racial, ethnic, and economic disparities exist regarding appropriate identification and classification of children with needs for special education, and access to services.

Purpose: This article first highlights gaps and disparities in special educational services, and their structural linkage to poverty. The second section describe the first years of a medical–legal collaboration between a University Center of Excellence in Developmental Disabilities (UCEDD) and Fordham University, focused on special education.

Key Points: The …

Tools For Regulators In A Changing Climate: Proposed Standards, State Policies, And Case Studies From The Western Grid, Adam D. Orford

Faculty Scholarship

With climate change a present reality, governments are confronting the need to adapt their regulatory planning processes to withstand new and uncertain climate risks. This Article provides three new resources to support this essential work. First, it develops a new standard for assessing the quality of climate adaptation decisionmaking, focusing on defining the problem, quantifying adaptation benefits, and evaluating equitable distribution of risk. Second, it reviews California’s climate adaptation policy development efforts between 1988 and 2018—from the state’s early efforts to study the problem, to later attempts at statewide strategic planning, until more recent work to integrate adaptation into existing …

Injustice And The Disappearance Of Discretionary Detention Under Trump: Detaining Low Risk Immigrants Without Bond, Robert Koulish, Kate Evans

Faculty Scholarship

This Report demonstrates that the Immigration and Customs Enforcement (ICE) violates legal requirements to provide immigrants with an individualized custody determination. Trump’s enforcement policies brought a surge of low-risk immigrants into ICE custody. The detention risk tool was supposed to train officers and strongly discourage them from detaining low-risk immigrants who posed no harm to society and were not a flight risk. Data received pursuant to FOIA show the opposite result. ICE has failed to perform the individualized assessment and restrict its use of civil detention to only those whose high levels of dangerousness and risk of flight justify their …

Sandra Day O’Connor’S "First" Principles: A Constructive Vision For An Angry Nation, Lisa Kern Griffin

Faculty Scholarship

During her 25-year tenure on the Supreme Court, Justice Sandra Day O’Connor cast the decisive votes to resolve the most emotional debates, yet she maintained collegiality among the Justices and retained the public’s high regard. A recent biography by historian and journalist Evan Thomas chronicles her extraordinary personal qualities, remarkable professional journey, and constructive brand of patriotism. This book review essay describes a legacy in three parts: a lived example of how to thrive in the face of challenges, a jurisprudence driven by the courage to make compromises, and a theory about the long game of American democracy. First reintroduces …

The Long Tail Of World War Ii: Jus Post Bellum In Contemporary East Asia, Timothy Webster

Faculty Scholarship

The shadow of World War II still looms over East Asia. Unlike the West, issues of state accountability, corporate liability, and individual reparation roil the victims, governments, and civil society organizations. It stills form a critical, often controversial, backdrop for international relations among China, Japan, Korea, and other Asian nations. This chapter fills an important gap by focusing on jus post bellum outside of the West. The chapter examines the results, motivations, and achievements of civil litigation, namely approximately one hundred World War II reparations lawsuits filed in Japan. In so doing, it answers three related questions. Why does World …

Dehumanization “Because Of Sex”: The Multiaxial Approach To The Title Vii Rights Of Sexual Minorities, Shirley Lin

Faculty Scholarship

No abstract provided.

The Incentives Of Private Prisons, John F. Pfaff

Faculty Scholarship

No abstract provided.

International Dispute Resolution And Access To Justice: Comparative Law Perspectives, Jacqueline Nolan-Haley

Faculty Scholarship

No abstract provided.

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 undermined …

What Should Presidential Candidates Tell Us About Themselves? Proposals For Improving Transparency In Presidential Campaigns, Megha Dharia, Rikki Lavine, Ryan Partelow, James Auchincloss, Krysia Lenzo

Faculty Scholarship

Elections are at the foundation of our democracy, but voters sometimes cast their ballots without critical information about presidential candidates. This report calls for requirements that candidates release more personal financial information, including five years of tax returns, and undergo criminal and intelligence background checks. The report also advocates for a system allowing candidates to submit to voluntary medical exams with some results released to the public.

This report was researched and written during the 2018-2019 academic year by students in Fordham Law School’s Democracy and the Constitution Clinic, which is focused on developing non-partisan recommendations to strengthen the nation’s …

Protecting Against An Unable President: Reforms For Invoking The 25th Amendment And Overseeing Presidential Nuclear Launch Authority, Louis Cholden-Brown, Daisy De Wolff, Marcello Figueroa, Kathleen Mccullough

Faculty Scholarship

The immense powers of the presidency and the vast array of global threats demand a physically and mentally capable president. To help ensure able presidential leadership, this report advocates reforms related to the 25th Amendment, including proposals for an “other body” to act with the vice president in certain circumstances to declare the president unable and a mechanism for officials to report concerns about the president’s capacity. The report also recommends new checks on the president’s authority to use nuclear weapons, such as procedures for notifying top national security officials when use is contemplated.

This report was researched and written …

Possibility And Constraint In The Lives Of Young Rural Workers In The Us: The Psychology Of Working And Post-Trauma Vocational Trajectories, Donna M. San Antonio Dr.

Faculty Scholarship

Work and wellness have long been linked in the field of psychology, but few researchers have studied this topic with rural emerging adults without a high school diploma. Overall, rural areas in the United States have higher rates of poverty and lower educational attainment than nonrural areas. This narrative inquiry illuminates how precariousness in home and school contexts influenced the work trajectories and aspirations of ten 20- to 25-year-old research participants. Findings contribute to the psychology of working theory by illuminating the individual and contextual factors that generated possibility and constraint in the lives of young workers with limited education …

The End Of Antitrust History Revisited, Lina M. Khan

Faculty Scholarship

This Review engages Tim Wu’s book, The Curse of Bigness, to explain the significance of the current rupture in antitrust and to situate it within a broader intellectual trajectory. Debates over the foundational purpose of antitrust are not new, and examining how this latest clash fits alongside previous contestations is essential for understanding what has yielded the current contestability and assessing the competing visions.

Part I of this Review summarizes Wu’s chief contributions in his recent work, focusing on three tenets that form the basis of the book. Part II offers an analytic breakdown of the overhaul in antitrust …

Power In Human Rights Advocate And Rightsholder Relationships: Critiques, Reforms, And Challenges, Sarah Knuckey, Benjamin Hoffman, Jeremy Perelman, Gulika Reddy, Alejandra Ancheita, Meetali Jain

Faculty Scholarship

Human rights advocacy can construct passive “victims,” objectify or displace rightsholders and affected communities, and contribute to their disempowerment. In response to critiques – made by rightsholders, activists, and scholars alike – about the values and effects of such disempowering advocacy models, many advocates are increasingly prioritizing an understanding of these dynamics and reforming practice to better center and support the agency of directly affected individuals and groups. However, the tactics and modalities of these efforts are under-examined in scholarly literature, and many human rights advocates lack access to adequate documentation of tactics and spaces for peer learning. In this …

Judicial Credibility, Bert I. Huang

Faculty Scholarship

Do people believe a federal court when it rules against the government? And does such judicial credibility depend on the perceived political affiliation of the judge? This study presents a survey experiment addressing these questions, based on a set of recent cases in which both a judge appointed by President George W. Bush and a judge appointed by President Bill Clinton declared the same Trump Administration action to be unlawful. The findings offer evidence that, in a politically salient case, the partisan identification of the judge – here, as a “Bush judge” or “Clinton judge” – can influence the credibility …

Brief Of Amici Curiae Scholars Of The Constitutional Rights And Interests Of Children In Support Of Respondents, Angela Onwuachi-Willig, Catherine E. Smith, Tanya Washington Hicks, Lauren Fontana, Jessica Dixon Weaver, Cary Martin Shelby

Faculty Scholarship

This Brief of Amici Curiae Scholars of the Constitutional Rights and Interests of Children in Support of Respondents filed in Fulton v. City of Philadelphia makes two points. First, a categorical exemption, based on religious beliefs rather than foster children’s needs, does not serve the best interests of children and violates the government’s duty to foster youth. Such an exemption needlessly restricts the pool of prospective foster parents, increasing the risk of a greater number of children being confined to long-term, institutional care. The reduction of same-sex foster parents would also have a disproportionate impact on “special needs” and LGBT …

The Common Law Inside A Social Hierarchy: Power Or Reason?, Katharine B. Silbaugh

Faculty Scholarship

Anita Bernstein argues that the common law gives women, too, the right to say no to what they do not want. She demonstrates that the common law is a far-reaching defense of condoned self-regard, a system that allows individuals to place their own interests above the interests of others, particularly when seeking to exclude others. She, therefore, places in the common law a right to protection from rape and a near-absolute right to expel a pregnancy. Bernstein reasons that women’s exclusion from the common law right to say no was a mistake produced by their absence from the judiciary. This …