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Articles 1141 - 1170 of 4293
Full-Text Articles in Entire DC Network
Blanket Policies For Strip Searching Pretrial Detainees: An Interdisciplinary Argument For Reasonableness , Daphne Ha
Blanket Policies For Strip Searching Pretrial Detainees: An Interdisciplinary Argument For Reasonableness , Daphne Ha
Fordham Law Review
In 2010, the U.S. Courts of Appeals for the Third and Ninth Circuits joined the U.S. Court of Appeals for the Eleventh Circuit in upholding the constitutionality of blanket strip search policies in correctional institutions. As a result, more government officials across the country can strip search arrestees and pretrial detainees as a matter of routine procedure without any reasonable suspicion that the detainees have contraband. These detainees include individuals without criminal histories who are arrested for traffic or other minor offenses, and who have done nothing to suggest that they are attempting to smuggle contraband into correctional facilities. This …
The Modern Common Law Of Foreign Official Immunity , Beth Stephens
The Modern Common Law Of Foreign Official Immunity , Beth Stephens
Fordham Law Review
In Samantar v. Yousuf, 130 S. Ct. 2278 (2010), decided in June 2010, the U.S. Supreme Court held that the Foreign Sovereign Immunities Act (FSIA), the federal immunity statute, does not protect foreign government officials sued in U.S. courts. The decision resolved longstanding splits among the circuits and between the circuits and the Executive Branch on an issue that is key to international relations and hotly contested around the world: When are government officials immune from suit in the courts of a foreign state? The Court remanded to the lower court to determine whether common law immunity protects foreign officials …
Obama's "Czars" For Domestic Policy And The Law Of The White House Staff, Aaron J. Saiger
Obama's "Czars" For Domestic Policy And The Law Of The White House Staff, Aaron J. Saiger
Fordham Law Review
No abstract provided.
Labor Values Are First Amendment Values: Why Union Comprehensive Campaigns Are Protected Speech , Charlotte Garden
Labor Values Are First Amendment Values: Why Union Comprehensive Campaigns Are Protected Speech , Charlotte Garden
Fordham Law Review
Corporate targets of union “comprehensive campaigns” increasingly have responded by filing civil Racketeer Influenced and Corrupt Organizations Act (RICO) lawsuits alleging that unions’ speech and petitioning activities are extortionate. These lawsuits are the descendants of the Supreme Court’s unexplained treatment of much labor speech as less worthy of protection than other types of speech. Starting from the position that speech that promotes democratic discourse deserves top-tier First Amendment protection, I argue that labor speech—which plays a unique role in civil society—should be on an equal footing with civil rights speech. Thus, even if union advocacy qualifies as legal extortion, the …
A Modest Proposal: Abolishing Agency Independence In Free Enterprise Fund V. Pcaob, Neomi Rao
A Modest Proposal: Abolishing Agency Independence In Free Enterprise Fund V. Pcaob, Neomi Rao
Fordham Law Review
No abstract provided.
Another Word On The President's Statutory Authority Over Agency Action , Nina A. Mendelson
Another Word On The President's Statutory Authority Over Agency Action , Nina A. Mendelson
Fordham Law Review
No abstract provided.
Federal Power, Non-Federal Actors: The Ramifications Of Free Enterprise Fund, Harold J. Krent
Federal Power, Non-Federal Actors: The Ramifications Of Free Enterprise Fund, Harold J. Krent
Fordham Law Review
No abstract provided.
Who's In Charge? Does The President Have Directive Authority Over Agency Regulatory Decisions? , Robert V. Percival
Who's In Charge? Does The President Have Directive Authority Over Agency Regulatory Decisions? , Robert V. Percival
Fordham Law Review
No abstract provided.
Scientific Integrity: The Perils And Promise Of White House Administration , Heidi Kitrosser
Scientific Integrity: The Perils And Promise Of White House Administration , Heidi Kitrosser
Fordham Law Review
No abstract provided.
U.S. Energy Sanctions And The Race To Prevent Iran From Acquiring Weapons Of Mass Destruction , Quinton Cannon Farrar
U.S. Energy Sanctions And The Race To Prevent Iran From Acquiring Weapons Of Mass Destruction , Quinton Cannon Farrar
Fordham Law Review
The United States has used economic sanctions targeting the energy sector that is so vital to Iran’s economy with varying degrees of intensity since the Iran Hostage Crisis of 1979. By and large, the sanctions did not have their intended effect. By 2010, Iran was the foremost state-sponsor of terrorism and was on the brink of acquiring the capability to develop nuclear weapons—a phenomenon that could have cataclysmic repercussions for American interests in the Middle East and beyond. In July 2010, Congress passed and President Obama signed the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010, in an effort …
Walk This Way: Do Public Sidewalks Qualify As Services, Programs, Or Activities Under Title Ii Of The Americans With Disabilities Act? , Sarah Jones
Fordham Law Review
In 2005, 54.4 million people in the United States reported some degree of disability. For many of these people—particularly the 13.5 million Americans who use wheelchairs, canes, crutches, or walkers—the issue of sidewalk accessibility is not merely one of convenience, but of civil rights and public safety. Faced with public sidewalks that are impassable due to disrepair, physical obstacles, or an absence of curb ramps, many individuals with disabilities are forced to choose between remaining housebound or traveling in the streets—posing a danger to both themselves and drivers. However, as disability activists push to resolve these shortcomings with an eye …
A Tale Of Three Sovereigns: The Nebulous Boundaries Of The Federal Government, New York State, And The Seneca Nation Of Indians Concerning State Taxation Of Indian Reservation Cigarette Sales To Non-Indians , Amanda M. Murphy
Fordham Law Review
This Note examines the conflict between New York State and the Seneca Nation of Indians regarding the taxation of cigarette sales to non-Indians on Indian reservations. In 1994, the United States Supreme Court found New York’s taxation scheme facially permissible without providing boundaries or guidance for the state’s subsequent enforcement. Seventeen years after the Court’s decision, no taxes have been collected on these sales. The issue involves conflicting spheres of federal, state, and tribal control. From 1965 to 1994, the Supreme Court balanced these competing interests, creating precedent that has failed to provide a definitive solution to this crisis. The …
The Twombly Standard And Affirmative Defenses: What Is Good For The Goose Is Not Always Good For The Gander , Anthony Gambol
The Twombly Standard And Affirmative Defenses: What Is Good For The Goose Is Not Always Good For The Gander , Anthony Gambol
Fordham Law Review
The United States district courts disagree as to whether the plausibility pleading standard for claims first described by the United States Supreme Court in Bell Atlantic Corp. v. Twombly also extends to affirmative defenses pled by defendants in federal courts. The divergent opinions result from conflicting interpretations of the language of the Federal Rules of Civil Procedure, standards of preferred practice, and notions of fairness. This Note examines the district courts’ arguments in deciding whether the Twombly standard extends to affirmative defenses. It identifies the quiddities of the courts’ reasoning through an analysis of their decisions and, based upon this …
Which Treaties Reign Supreme? The Dormant Supremacy Clause Effect Of Implemented Non-Self-Executing Treaties , Leonie W. Huang
Which Treaties Reign Supreme? The Dormant Supremacy Clause Effect Of Implemented Non-Self-Executing Treaties , Leonie W. Huang
Fordham Law Review
The Supremacy Clause includes treaties in the list of supreme laws which state judges are bound to uphold against conflicting state laws. However, as the U.S. Supreme Court most recently affirmed in Medellin v. Texas, not all Article II treaties receive this Supremacy Clause effect immediately upon ratification. Some treaties, known as non-self-executing treaties, are domestically unenforceable by United States courts until passage of federal legislation implementing the treaty. Based on this distinction between non-self-executing and self-executing treaties, courts have disagreed as to whether an implemented non-self-executing treaty can preempt state law or whether only the implementing legislation can have …
Extracting Compassion From Confusion: Sentencing Noncitizens After United States V. Booker, Francesca Brody
Extracting Compassion From Confusion: Sentencing Noncitizens After United States V. Booker, Francesca Brody
Fordham Law Review
A noncitizen facing a federal judge for sentencing confronts a demonstrably different future than an otherwise identical citizen. Deportation, immigration detention, harsher prison conditions, and a longer actual sentence may all await the noncitizen federal inmate. The U.S. Courts of Appeals have disagreed as to whether a district judge can consider those consequences in crafting a sentence under the U.S. Sentencing Guidelines. This Note argues that the circuit split results from circuit courts’ varying appellate scrutiny of sentencing decisions after United States v. Booker. To resolve the split, this Note encourages the U.S. Sentencing Commission to adopt an amendment to …
Finding The Good In Holmes's Bad Man , Marco Jimenez
Finding The Good In Holmes's Bad Man , Marco Jimenez
Fordham Law Review
This Article critically examines Oliver Wendell Holmes’s widely influential but controversial “bad man” theory of law from its inception during a speech Holmes gave for the dedication of a new hall of the Boston University School of Law in 1897, through its development over the next century, to its current influence over legal fields as diverse as contract law, tort law, and modern punitive damages jurisprudence. This Article argues that Holmes’s theory, despite its extraordinary influence, has been widely misunderstood and can be more profitably understood—by both supporters and critics alike—not as supporting the bad man but the good, by …
Arbitration Provisions: Little Darlings And Little Monsters , Stephen Friedman
Arbitration Provisions: Little Darlings And Little Monsters , Stephen Friedman
Fordham Law Review
This Article takes a new approach to resolving the growing tension between the Federal Arbitration Act (FAA) and the unconscionability doctrine. While arbitration provisions are favored under the FAA, they are viewed far more skeptically by courts applying unconscionability to refuse enforcement of one-sided arbitration provisions. This tension, which has increased dramatically in recent years, represents a major fault line in contract law. Jurisprudence and commentary on this issue have assumed that courts have the authority to apply the unconscionability doctrine to arbitration provisions. This Article refutes that assumption, taking the position that Congress, in passing the FAA, removed from …
The Preservation Obligation: Regulating And Sanctioning Pre-Litigation Spoliation In Federal Court , A. Benjamin Spencer
The Preservation Obligation: Regulating And Sanctioning Pre-Litigation Spoliation In Federal Court , A. Benjamin Spencer
Fordham Law Review
No abstract provided.
The Responsibilities Of Lead Lawyers And Judges In Multidistrict Litigation , Charles Silver
The Responsibilities Of Lead Lawyers And Judges In Multidistrict Litigation , Charles Silver
Fordham Law Review
No abstract provided.
The Parallel Law Of Lawyering In Civil Litigation , Andrew Perlman
The Parallel Law Of Lawyering In Civil Litigation , Andrew Perlman
Fordham Law Review
No abstract provided.
Two Views Of The Class Action , Alexandra D. Lahav
Two Views Of The Class Action , Alexandra D. Lahav
Fordham Law Review
No abstract provided.
Taking The Business Out Of Work Product, Michele Destefano Beardslee
Taking The Business Out Of Work Product, Michele Destefano Beardslee
Fordham Law Review
No abstract provided.
Fiduciaries And Fees: Preliminary Thoughts, Lynn A. Baker, Charles Silver
Fiduciaries And Fees: Preliminary Thoughts, Lynn A. Baker, Charles Silver
Fordham Law Review
No abstract provided.
Originalism And Natural Law, Brian T. Fitzpatrick
Originalism And Natural Law, Brian T. Fitzpatrick
Fordham Law Review
No abstract provided.
Beyond Standard Legal Positivism And "Aggressive" Natural Law: Some Thoughts On Judge O'Scannlain's "Third Way", Michael Baur
Beyond Standard Legal Positivism And "Aggressive" Natural Law: Some Thoughts On Judge O'Scannlain's "Third Way", Michael Baur
Fordham Law Review
No abstract provided.
The Natural Law In The American Tradition , Hon. Diarmuid F. O'Scannlain
The Natural Law In The American Tradition , Hon. Diarmuid F. O'Scannlain
Fordham Law Review
No abstract provided.
Fraud Created The Market: Presuming Reliance In Rule 10(B)-5 Primary Securities Market Fraud Litigation , Matt Silverman
Fraud Created The Market: Presuming Reliance In Rule 10(B)-5 Primary Securities Market Fraud Litigation , Matt Silverman
Fordham Law Review
This Note addresses the circuit split regarding the “fraud created the market” presumption of reliance in Rule 10b-5 securities fraud cases. Fraud created the market was first adopted by the U.S. Court of Appeals for the Fifth Circuit in Shores v. Sklar, and applies in cases where a defendant has engaged in a “scheme to defraud” the investing public in the primary securities market. This Note first discusses Congress’s intent behind relevant securities laws, the effect presuming reliance has on the class certification process, and how the presumption of reliance has been applied in Rule 10b-5 actions by the U.S. …
Pulling The Trigger On Public Campaign Finance: The Contextual Approach To Analyzing Trigger Funds , George Lobiondo
Pulling The Trigger On Public Campaign Finance: The Contextual Approach To Analyzing Trigger Funds , George Lobiondo
Fordham Law Review
The unpredictable nature of electoral politics makes it difficult for public campaign financing programs to be both efficient and effective. Programs that award too much money to publicly funded candidates risk insolvency, while miserly systems cannot attract participants. Moreover, the competitiveness of any given race changes with each election cycle—what was a landslide one year might be the closest of contests next November. Several states have tried to address this dilemma by enacting “trigger” provisions that disburse extra money to publicly funded candidates only after their opponents raise or spend beyond a certain amount. These laws have faced legal challenges …
Keeping Up With Officer Jones: A Comprehensive Look At The Fourth Amendment And Gps Surveillance , Kaitlyn A. Kerrane
Keeping Up With Officer Jones: A Comprehensive Look At The Fourth Amendment And Gps Surveillance , Kaitlyn A. Kerrane
Fordham Law Review
Each day, individuals use technological devices to make their lives easier. One such device is the Global Positioning System (GPS), which has increasingly gained popularity in recent years. Police use of GPS in robbery, drug, murder and other investigations has also increased. Several high profile cases have brought the law enforcement uses of GPS into the public eye and elicited a public response. Warrantless installation and monitoring of these devices for up to months at a time have been challenged as unreasonable Fourth Amendment searches. The U.S. Supreme Court has not decided on the constitutional issues raised by police GPS …
The Need For Non-Discretionary Interlocutory Appellate Review In Multidistrict Litigation , Andrew S. Pollis
The Need For Non-Discretionary Interlocutory Appellate Review In Multidistrict Litigation , Andrew S. Pollis
Fordham Law Review
Multidistrict Litigation (MDL) is a tool for managing complex litigation by transferring cases with common questions of fact to a single judge for coordinated pretrial proceedings. The subject matter of the cases can run the gamut from airplane crashes to securities fraud to environmental disasters, such as the recent BP oil spill in the Gulf of Mexico. Today, about a third of all pending civil cases in federal court are part of the MDL system. A single judge renders all the important legal decisions in each MDL, exerting outsized impact on the parties and on the evolution of the law—and …