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Articles 61 - 90 of 503
Full-Text Articles in Entire DC Network
How Should We License Lawyers?, Cassandra Burke Robertson
How Should We License Lawyers?, Cassandra Burke Robertson
Fordham Law Review
What would a licensing regime designed around client protection look like? This Article proposes that it would include a narrower but more active judicial role. A one-size-fits-all exam would no longer control entry into the profession. The state judiciary would not be the gatekeeper for the entire legal profession; instead, its licensing role would focus on those attorneys who represent individual clients in court and those who manage client funds. But for this subset of lawyers, state judges should take a larger and more active role in overseeing the transition from student to advocate and should require greater practice readiness …
A Fiduciary Judge's Guide To Awarding Fees In Class Actions, Brian T. Fitzpatricj
A Fiduciary Judge's Guide To Awarding Fees In Class Actions, Brian T. Fitzpatricj
Fordham Law Review
It is often said that judges act as fiduciaries for the absent class members in class action litigation. If we take this seriously, how then should judges award fees to the lawyers who represent these class members? The answer is to award fees the same way rational class members would want if they could do it on their own. In this Essay, I draw on economic models and data from the market for legal representation of sophisticated clients to describe what these fee practices should look like. Although more data from sophisticated clients is no doubt needed, what we do …
Reasoned Decision-Making For Ethics Regulation, John S. Dzienkowski, John M. Golden
Reasoned Decision-Making For Ethics Regulation, John S. Dzienkowski, John M. Golden
Fordham Law Review
Many lawyers and scholars have criticized the ethics rules developed by the organized legal profession to regulate the practice of law. Complaints about processes for generating new ethics rules and ethics opinions interpreting ethics rules commonly reflect concerns about failures to engage in reasoned decision-making. Rationales for the proposed rules or the opinions proffered by bar associations, courts, or agencies are often incomplete or inadequately supported, and one must imagine that the quality of resulting rules or their interpretations often suffers. We argue that administrative law provides a model for how courts can address such concerns—a model that courts, both …
Judge's And The Deregulation Of The Lawyer's Monopoly, Jessica K. Steinberg, Et Al.
Judge's And The Deregulation Of The Lawyer's Monopoly, Jessica K. Steinberg, Et Al.
Fordham Law Review
Drawing on original data from a cross-jurisdictional investigation of the civil justice landscape, this Article shows how some judges—mired in the pro se crisis—are relying on a shadow network of nonlawyer professionals to substitute for the role counsel has traditionally played. Focusing on domestic violence courts as the primary illustration, we find that even in jurisdictions not currently contemplating regulatory reform, judges are relying on organized nonlawyer actors to prepare pleadings, offer substantive and procedural information to litigants, and provide counseling services. These nonlawyer advocates play a significant role in shaping the facts and arguments presented to the judge, which …
Evidence-Based Promulgation: The Rulemaking Process For Rules Of Professional Conduct, Emily S. Taylor Poppe
Evidence-Based Promulgation: The Rulemaking Process For Rules Of Professional Conduct, Emily S. Taylor Poppe
Fordham Law Review
This Article proceeds in three parts. Part I considers variation in the rule promulgation process across the states. Part II identifies ways in which the promulgation process might be reformed on the basis of empirical evidence. Part III considers the potential benefits and limitations to this approach and is followed by a brief conclusion
Toward National Criminal Bar Admission In U.S. District Courts, Gabriel J. Chin
Toward National Criminal Bar Admission In U.S. District Courts, Gabriel J. Chin
Fordham Law Review
In the extensive litigation over bar admission in federal district courts, courts have upheld state bar membership requirements. Nevertheless, the changes to legal practice flowing from the COVID-19 pandemic—the disconnection between workplace and residence, the ability to meet and to hold court proceedings by video, and the unjustifiability of charging clients time and travel for brief, perfunctory in-person meetings and conferences that could be handled effectively and expeditiously online—will make these questions ever more serious
Colloquium: The Judicial Role In Professional Regulation: Foreword, Bruce A. Green
Colloquium: The Judicial Role In Professional Regulation: Foreword, Bruce A. Green
Fordham Law Review
In his confirmation hearings, Chief Justice Roberts analogized judges to baseball umpires who only call balls and strikes.1 That is a questionable analogy in general, given that judges’ oversight of court proceedings goes beyond applying the law. But most especially, it is belied by judges’ role in regulating law practice, including judicial practice. With respect to lawyers, judges not only apply the law but make and enforce it. The eleven pieces in this collection, briefly introduced here, reflect the breadth of courts’ authority
The Role Of “Coordinating Discovery Attorneys” In Multidefendant Federal Criminal Cases, Hannah Silverman
The Role Of “Coordinating Discovery Attorneys” In Multidefendant Federal Criminal Cases, Hannah Silverman
Fordham Law Review
The twenty-first century’s technological revolution has shifted the practice of law, including litigation, from being primarily paper-based to paperless. To manage the increasingly complex organization and review of evidence in civil and criminal cases, attorneys outsource legal tasks, work on teams, and use discovery coordinators. This Note examines the development of court-appointed coordinating discovery attorneys and their role in multidefendant federal criminal trials involving voluminous discovery. With a background in criminal defense and electronic discovery, these lawyers provide hands-on assistance as a way to cut costs, help overburdened and underfunded defense counsel, and improve representation of criminal defendants. In 2014, …
Lawmakers As Job Buyers, Edward W. De Barbieri
Lawmakers As Job Buyers, Edward W. De Barbieri
Fordham Law Review
In 2013, Washington State authorized the largest state tax incentive for private industry in U.S. history. It is not remarkable for a state legislature to use tax benefits to retain a major employer—in this case, the global aerospace manufacturer Boeing. Laws across all states and thousands of cities routinely incentivize companies such as Amazon to relocate or remain in particular areas. Notably, however, Washington did not recover any of the subsidies it authorized despite Boeing’s significant post-incentive workforce reductions. This story leads to several important questions: (1) How effective are state and local legislatures at influencing business-location decisions?; (2) Do …
Airbnb In New York City: Whose Privacy Rights Are Threatened By A Government Data Grab?, Tess Hofmann
Airbnb In New York City: Whose Privacy Rights Are Threatened By A Government Data Grab?, Tess Hofmann
Fordham Law Review
New York City regulators have vigorously resisted the rise of Airbnb as an alternative to traditional hotels, characterizing “home sharing” as a trend that is sucking up permanent housing in a city already facing an affordability crisis. However, laws banning short-term rentals have done little to discourage this practice, as Airbnb’s policy of keeping user information private makes it possible for illegal operators to evade law enforcement. Frustrated by this power imbalance, the New York City Council passed Local Law 146, which requires Airbnb to provide city officials with access to the names and information of its home sharing hosts …
Institutional Independence: Lawyers And The Administrative State, Melissa Mortazavi
Institutional Independence: Lawyers And The Administrative State, Melissa Mortazavi
Fordham Law Review
The institutional structure where federal government lawyers practice is fraught with political and economic pressures that undermine the ability of lawyers to exercise independent professional judgment. A lack of candid legal advice in this space not only removes a pivotal fail-safe between legal and illegal state action but also precariously imbalances the powerful administrative state, exposing it to undue political influence. For these reasons, this Article argues that structural changes to administrative institutions must be made to support and nurture lawyers’ ability to independently determine the bounds of legality. Previous scholarship has examined the role of professional independence for lawyers …
Lawyers In Government Service—A Foreword, Bruce A. Green
Lawyers In Government Service—A Foreword, Bruce A. Green
Fordham Law Review
Lawyers in government serve in many different roles, both representational and nonrepresentational. Some represent the federal, state, or local government, a particular governmental entity (such as a department of consumer affairs) or agency (such as the NLRB), or public officials in their official capacity. These lawyers render a range of legal services and act as litigators, negotiators, drafters, and counselors. Other lawyers in government serve in nonrepresentative capacities; for example, as elected or appointed officials or as their aides. Scholarship on government lawyers addresses these varied roles and functions from varied perspectives, drawing on different bodies of law and legal …
Mr. Try-It Goes To Washington: Law And Policy At The Agricultural Adjustment Administration, Daniel R. Ernst
Mr. Try-It Goes To Washington: Law And Policy At The Agricultural Adjustment Administration, Daniel R. Ernst
Fordham Law Review
In December 1933, Jerome Frank, the general counsel of the Agricultural Adjustment Administration (AAA) but better known for writing Law and the Modern Mind (1930), a sensational attack on legal formalism, told an audience at the Association of American Law Schools a parable about two lawyers in the New Deal, each required to interpret the same ambiguous language of a statute. The first lawyer, “Mr. Absolute,” reasoned from the text and canons of statutory interpretation without regard for the desirability of the outcome. “Mr. Try-It,” in contrast, began with the outcome he thought desirable. He then said to himself, “The …
Law And Nonlegal Norms In Government Lawyers' Ethics: Discretion Meets Legitimacy, W. Bradley Wendel
Law And Nonlegal Norms In Government Lawyers' Ethics: Discretion Meets Legitimacy, W. Bradley Wendel
Fordham Law Review
This Essay is about the role of unwritten norms in the ethical decisionmaking of government lawyers. Because the ethical obligations of lawyers, including government lawyers, are closely tied to the legal rights and obligations of clients, this analysis necessarily depends on understanding the relationship between written law and unwritten norms. As we all know, however, written law leaves gaps, ambiguities, and zones of unregulated discretion. Prosecutors in the United States, for example, have virtually unreviewable discretion to decide who to investigate and charge, what charges to bring, and whether to offer immunity in exchange for cooperation. No one has a …
Full Cost In Translation: Awarding Expert Witness Fees In Copyright Litigation, Nicholas Vennekotter
Full Cost In Translation: Awarding Expert Witness Fees In Copyright Litigation, Nicholas Vennekotter
Fordham Law Review
When deciding whether to bring or defend against copyright infringement claims, the cost of litigation plays a critical role in the minds of potential litigants. The cost of retaining experts, particularly, is a large factor in this calculus. Although U.S. courts generally require each party to cover the cost of their own legal fees during litigation, the Copyright Act of 1976 permits courts, in their discretion, to allow the prevailing party to recover “full costs.” Yet, the language “full costs” is considered ambiguous, which leads to inconsistent awards of costs among the appellate courts. The circuits disagree whether the Copyright …
History And Harvard Law School, Bruce A. Kimball, Daniel R. Coquillette
History And Harvard Law School, Bruce A. Kimball, Daniel R. Coquillette
Fordham Law Review
In their seminal article, Alfred Konefsky and John Henry Schlegel saw institutional histories of law schools as the graveyard of academic reputations. So why write institutional histories? Due to the leadership of Robert Kaczorowski and William Nelson, and the generosity of Fordham University School of Law and New York University School of Law, an important conference took place between July 2 and July 4, 2018, at New York University’s Villa La Pietra outside of Florence. The purpose was to encourage good institutional history and to define its value. We had recently published the first volume of a new history of …
A Conversation With The Honorable Rosalie Silberman Abella And Dean Matthew Diller, Rosalie Silberman Abella, Matthew Diller
A Conversation With The Honorable Rosalie Silberman Abella And Dean Matthew Diller, Rosalie Silberman Abella, Matthew Diller
Fordham Law Review
DEAN MATTHEW DILLER: This year we are leading up to our celebration of 100 Years of Women at Fordham Law School. In September 1918, the Fordham Law faculty voted to admit women, and we are planning to celebrate that in style. But tonight perhaps is a bit of a teaser for that. Justice Rosalie Silberman Abella is a woman of firsts. She is the first Jewish woman to sit on the bench of the Supreme Court of Canada, and before the Supreme Court, when she was appointed to the Ontario Family Court in 1976, she became the first Jewish woman …
Study Group On Immigrant Representation: The First Decade, Robert A. Katzmann
Study Group On Immigrant Representation: The First Decade, Robert A. Katzmann
Fordham Law Review
All of us here have a common goal: ensuring adequate legal representation of the immigrant poor. A courtroom has multiple players with different roles, but all would agree that adequate legal representation of the parties is essential to the fair and effective administration of justice. Deficient representation frustrates the work of courts and ill serves litigants. All too often, and throughout the country, courts that address immigration matters must contend with such a breakdown in legal representation, a crisis of massive proportions with severe, tragic costs to immigrants and their families. For our nation’s immigrants, the urgent need for competent …
Universal Representation, Lindsay Nash
Universal Representation, Lindsay Nash
Fordham Law Review
In an era in which there is little good news for immigrant communities and even holding the line has become an ambitious goal, one progressive project has continued to gain steam: the movement to provide universal representation for noncitizens in removal proceedings. This effort, initially born out of a pilot project in New York City, has generated a host of replication projects throughout the nation and holds the promise of even broader expansion. But as it grows, this effort must confront challenges from within: the sort-of supporters who want to limit this representation system’s coverage in a number of ways, …
Civil Litigation Reform In The Trump Era: Threats And Opportunities Searching For Salvageable Ideas In Ficala, Howard M. Erichson
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 reappearing, …
Family Courts As Certifying Agencies: When Family Courts Can Certify U Visa Applications For Survivors Of Intimate Partner Violence, Sylvia Lara Altreuter
Family Courts As Certifying Agencies: When Family Courts Can Certify U Visa Applications For Survivors Of Intimate Partner Violence, Sylvia Lara Altreuter
Fordham Law Review
Undocumented intimate partner violence survivors living in the UnitedStates have limited options for immigration relief. One of the only avenuesopen to them is the U Visa: a nonimmigrant visa established by the BatteredImmigrant Women Protection Act of 2000. To apply for a U Visa, a survivormust prove to immigration authorities that she was the victim of a crime;suffered substantial abuse; and was, is,or is likely to be helpful in theinvestigation of her abuser. The statute requires that all U Visa applicationsbe certified by an appropriate officialwho testifies to the applicant’shelpfulness with the investigation. This certification is a tremendous obstaclefor survivors: …
"Encroachments And Oppressions": The Corporatization Of Procedure And The Decline Of Rule Of Law, J. Maria Glover
"Encroachments And Oppressions": The Corporatization Of Procedure And The Decline Of Rule Of Law, J. Maria Glover
Fordham Law Review
This Article begins by providing a brief account of the corporatization of procedure through judicial decision-making and noting some of the detrimental effects it has had on the preservation of rule of law and access to justice. Part II goes on to explore how the judiciary does not retain full control over procedure and how corporate entities have little care for whether a procedural reform simply cuts back at litigation or goes further and cuts back at judicial power and the judicial role itself. To illustrate these points, Part II examines the most recent attempt at “procedural reform” by corporate …
Family Law And The New Access To Justice, Rebecca Aviel
Family Law And The New Access To Justice, Rebecca Aviel
Fordham Law Review
This Article explores whether the optimistic prospect suggested by this experience—of reform that promotes rather than inhibits access-to-justice values—is inherently limited to family law. Does the experience with family court reform offer insights that transfer to other contexts, or is family law simply too exceptional? On the one hand, family law disputes are unique in some truly important ways. It is difficult, for example, to conceive of a convincing analogue for postdivorce parenting, and what we mean by “justice” can be fundamentally different for domestic-relations litigants than for others. On the other hand, reform in family court has been driven …
The History Of The Modern Class Action, Part Ii: Litigation And Legitimacy, 1981-1994, David Marcus
The History Of The Modern Class Action, Part Ii: Litigation And Legitimacy, 1981-1994, David Marcus
Fordham Law Review
The first era of the modern class action began in 1966, with revisions to Rule 23 of the Federal Rules of Civil Procedure. It ended in 1980. Significant turmoil roiled these years. Policymakers grappled with the powerful device as advocates argued over its purpose, and judges struggled to create rules for the novel litigation the remade Rule 23 generated. This Article tells the story of the class action’s second era, which stretched from 1981 to 1994. At first blush, these were quiet years. Doctrine barely changed, and until the early 1990s, policymakers all but ignored the device. Below this surface …
The Internet As Marketplace Of Madness— And A Terrorist’S Best Friend, Thane Rosenbaum
The Internet As Marketplace Of Madness— And A Terrorist’S Best Friend, Thane Rosenbaum
Fordham Law Review
The panel I was assigned to, for this distinguished gathering of scholars at Fordham Law School, where I had previously been a professor for twentythree years, was given the name, “Caution Against Overreaching.” Overreaching and the caution it occasions, in this case, refer to the First Amendment, a uniquely American absolutist, legalistic obsession. For many who fixate on such matters, the government must never be allowed to trample upon the unfettered free speech rights guaranteed under America’s first, and most favorite, Amendment.
Lawyers' Ethics Beyond The Vanishing Trial: Unrepresented Claimaints, De Facto Aggregations, Arbitration Mandates, And Privatized Processes, Judith Resnik
Fordham Law Review
Trials are a vivid variable in the world of litigation, as reflected in the title of this colloquium, Civil Litigation Ethics at a Time of Vanishing Trials. The conveners have wisely drawn attention to the disjuncture between legal ethics and today’s litigation world. In this Introduction, I argue that the challenges for lawyers loom larger than those reflected in the declining rate of trials. More facets of contemporary dispute resolution need to be engaged when contemplating the topics and roles that legal ethics need to address in the decades to come.
Closure Provisions In Mdl Settlements, D. Theodore Rave
Closure Provisions In Mdl Settlements, D. Theodore Rave
Fordham Law Review
Closure has value in mass litigation. Defendants often insist on it as a condition of settlement, and plaintiffs who can deliver it may be able to command a premium. But in multidistrict litigation (MDL), which currently makes up over one-third of the federal docket, closure depends on individual claimants deciding to participate in a global settlement. Accordingly, MDL settlement designers often include terms designed to encourage claimants to opt in to the settlement and discourage them from continuing to litigate. Some of these terms have been criticized as unduly coercive and as benefiting the negotiating parties—the defendant and the lead …
Lawyers' Ethics Beyond The Vanishing Trial: Unrepresented Claimaints, De Facto Aggregations, Arbitration Mandates, And Privatized Processes, Judith Resnik
Fordham Law Review
Trials are a vivid variable in the world of litigation, as reflected in the title of this colloquium, Civil Litigation Ethics at a Time of Vanishing Trials. The conveners have wisely drawn attention to the disjuncture between legal ethics and today’s litigation world. In this Introduction, I argue that the challenges for lawyers loom larger than those reflected in the declining rate of trials. More facets of contemporary dispute resolution need to be engaged when contemplating the topics and roles that legal ethics need to address in the decades to come.
Busting Up The Pretrial Industry, Andrew S. Pollis
Busting Up The Pretrial Industry, Andrew S. Pollis
Fordham Law Review
While some argue that “[r]eturning to a trial model would be a significant step toward fulfilling the traditional expectations for the federal courts,” that step backward is unlikely to occur. But I agree that fixes are in order, and I offer two. First, we should consider requiring at least some parties to engage in early settlement evaluation—ideally before extensive discovery gets underway—by submitting cases to summary jury trials and imposing consequences on parties who choose to disregard the results. Second, we should allocate a greater percentage of judicial resources to discovery management through the routine appointment of special masters to …
Closure Provisions In Mdl Settlements, D. Theodore Rave
Closure Provisions In Mdl Settlements, D. Theodore Rave
Fordham Law Review
Closure has value in mass litigation. Defendants often insist on it as a condition of settlement, and plaintiffs who can deliver it may be able to command a premium. But in multidistrict litigation (MDL), which currently makes up over one-third of the federal docket, closure depends on individual claimants deciding to participate in a global settlement. Accordingly, MDL settlement designers often include terms designed to encourage claimants to opt in to the settlement and discourage them from continuing to litigate. Some of these terms have been criticized as unduly coercive and as benefiting the negotiating parties—the defendant and the lead …