Digital Commons Network^™

Foreign Official Immunity And The “Baseline” Problem, Chimène I. Keitner

Fordham Law Review

No abstract provided.

Notes On Official Immunity In Ats Litigation, William R. Casto

Fordham Law Review

No abstract provided.

The Supreme Court Assumes Errant Prosecutors Will Be Disciplined By Their Offices Or The Bar: Three Case Studies That Prove That Assumption Wrong, Joel B. Rudin

Fordham Law Review

No abstract provided.

Asking The Right Questions About Officer Immunity, Richard H. Fallon, Jr.

Fordham Law Review

No abstract provided.

Unsupportable And Unjustified: A Critique Of Absolute Prosecutorial Immunity, Margaret Z. Johns

Fordham Law Review

No abstract provided.

Taking Supremacy Seriously: The Contrariety Of Official Immunities, Donald L. Doernberg

Fordham Law Review

No abstract provided.

Editors’ Foreword

Fordham Law Review

No abstract provided.

Weaving Functional Brain Imaging Into The Tapestry Of Evidence: A Case For Functional Neuroimaging In Federal Criminal Courts, Adam Teitcher

Fordham Law Review

Recent advances in brain imaging technologies allow researchers to "peer inside" a defendant's brain. Although functional neuroimaging evidence is frequently used in civil litigation, federal courts have been hesitant to admit it into evidence in criminal trials. Scholars and commentators alike continue to debate the merits, detriments, and general admissibility of functional neuroimaging evidence in the criminal context. Meanwhile, federal judges repeatedly admit various forms of forensic science into evidence without evaluating them under the appropriate admissibility standards. This Note argues that this has created a double standard for evidence admissibility. Functional neuroimaging evidence may, in fact, be more scientifically …

Bringing An End To The Trend: Cutting Judicial "Approval" And "Rejection" Out Of Non-Class Mass Settlement, Alexandra N. Rothman

Fordham Law Review

In March 2010, Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York rejected a mass settlement between the City of New York and the 9/11 first responders and rescue workers. The settlement was not a class action but some ten thousand individual cases aggregated for efficiency purposes. Nonetheless, Judge Hellerstein, invoking the spirit of Rule 23(e) of the Federal Rules of Civil Procedure, which provides for judicial approval of class action settlement, decided that the initial settlement was not enough, and sent the parties back to the negotiating table. There, the parties reached …

O Sonia, Where Art Thou?: Why Justice Sotomayor's Silent "Opinion" Should Serve As Shady Grove's Holding, Craig T. Cagney

Fordham Law Review

Since the Supreme Court decided the case in 1938, Erie Railroad Co. v. Tompkins has limited the application of the Federal Rules of Civil Procedure. By changing shape, Erie has eluded the Court's attempts to curb its influence for most of the past century. Only recently, in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., did the Court manage to apply a Federal Rule over Erie's contrary command to apply state law, but that decision so divided the Court that no one opinion enjoyed the support of five Justices. The resulting confusion among the lower courts over which should …

Private Ordering With Shareholder Bylaws, D. Gordon Smith, Matthew Wright, Marcus Kai Hintze

Fordham Law Review

In this Article, we propose legal reforms to empower shareholders in public corporations. Currently,most shareholders participate in corporate governance in three ways: they vote, they sell, and they sue. We would expand the menu for shareholders in public corporations by enabling them to contract using shareholder bylaws. We contend that such private ordering will improve shareholder monitoring of managers and create laboratories of corporate governance that benefit the entire corporate governance system.

To Transfer Or Not To Transfer: Identifying And Protecting Human Rights Interests In Non-Refoulment, Vijay Padmanabhan

Fordham Law Review

Human rights law imposes upon States an absolute duty not to transfer an individual to another State where there are substantial grounds for believing he or she will be tortured or subjected to cruel, inhuman, or degrading treatment. This protection, called non-refoulement, emanates from a theory of human rights that recognizes rights fulfillment requires States to protect those within their jurisdiction from rights violations perpetrated by third parties, including other States. Generally human rights law recognizes that resource constraints and/or competing rights restrict protection duties. But such limitations have not been recognized in the non-refoulement context. In recent years the …

The Honor Of Private Law, Nathan Oman

Fordham Law Review

While combativeness is central to how our culture both experiences and conceptualizes litigation, we generally notice it only as a regrettable cost. This Article offers a less squeamish vision, one that sees in the struggle of people suing one another a morally valuable activity: the vindication of insulted honor. This claim is offered as a normative defense of a civil recourse approach to private law. According to civil recourse theorists, tort and contract law should be seen as empowering plaintiffs to act against defendants, rather than as economically optimal incentives or as a means of enforcing duties of corrective justice. …

The Philip D. Reed Lecture Series: The State Secrets Privilege And Access To Justice: What Is The Proper Balance?, The Honorable Robert D. Sack, The Honorable John D. Bates, Douglas Letter, Ben Wizner

Fordham Law Review

No abstract provided.

Books Received

Fordham Law Review

No abstract provided.

The Statutory Disorganization Of The Inferior Courts Of New York City , James Randall Creel

Fordham Law Review

No abstract provided.

Don't Blame Me, Blame The Financial Crisis: A Survey Of Dismissal Rulings In 10b-5 Suits For Subprime Securities Losses, Christopher J. Miller

Fordham Law Review

This Note surveys thirty-four district court decisions on motions to dismiss in actions brought under SEC Rule 10b-5 for losses suffered during the recent financial crisis. This Note focuses on issues of scienter and loss causation, the elements of a 10b-5 claim most likely to be affected by a market-wide downturn. In the opinions surveyed, successfully pleading scienter proved the biggest hurdle for plaintiffs in surviving a motion to dismiss, and this Note proceeds to analyze the factors that influenced whether a district court found scienter to be adequately pleaded. This Note also examines efforts by both plaintiffs and defendants …

Presidential Succession And Inability: Before And After The Twenty-Fifth Amendment, John D. Feerick

Fordham Law Review

The Framers of the Constitution did not spend a great deal of time on the succession provisions, but just enough to get the nation started. The Twenty-Fifth Amendment answered questions they left open in the area of presidential inability and gave further significance to the Vice Presidency, which had been adopted almost as an afterthought. As strong as the system of presidential succession may appear, complacency can easily set in, leading to an unwillingness to confront gaps and defects that reveal themselves along the way.

Several gaps in the area of presidential inability are triggered by the absence of any …

Using Disparate Impact Analysis In Fair Housing Act Claims: Landlord Withdrawal From The Section 8 Voucher Program, Rebecca Tracy Rotem

Fordham Law Review

The Fair Housing Act (FHA) outlaws discrimination in housing based on race, color, religion, national origin, and sex. A plaintiff can win an FHA claim using a disparate impact theory by showing that the defendant’s actions had a disproportionately adverse impact on a protected class. This Note will address a circuit court split on whether a landlord can be held liable for discrimination under the FHA for withdrawing from the Section 8 voucher program. Section 8 is a government program that provides low-income citizens with vouchers to pay a portion of their rent. Many voucher recipients are minorities or persons …

Strictly Wrong As A Tax Policy: The Strict Liability Penalty Standard In Noneconomic Substance Transactions, Mik Shin-Li

Fordham Law Review

This Note analyzes the propriety of using a strict liability standard to assess tax penalties for transactions lacking economic substance. Noneconomic substance transactions lack legitimate business objectives and exist only to produce tax benefits. Under current law, the Internal Revenue Service can disallow the tax benefit claimed by the taxpayer and then assess a penalty for the taxpayer’s understatement of tax liability. In response, the taxpayer can assert a reasonable cause exception, which can serve as a defense to the penalty should the taxpayer demonstrate that he had reasonable basis for his tax position. In the last decade, numerous legislative …

The Rule 10b-5 Suit: Loss Causation Pleading Standards In Private Securities Fraud Claims After Dura Pharmaceuticals, Inc. V. Broudo, Evan Hill

Fordham Law Review

In 2005, the U.S. Supreme Court decided Dura Pharmaceuticals, Inc. v. Broudo. The Court held that a plaintiff alleging securities fraud must prove that a defendant’s misrepresentation caused actual economic loss. The Dura decision put to rest the loss causation standard applied by several U.S. courts of appeals, which allowed plaintiffs to merely plead that a misrepresentation caused an artificially inflated purchase price. However, in Dura’s wake, the circuit courts have fashioned divergent standards with respect to pleading loss causation. The courts currently apply pleading standards ranging from the lenient and generally applicable Federal Rule of Civil Procedure 8(a) to …

Introduction, William Michael Treanor

Fordham Law Review

In view of the profound importance of questions of presidential succession and the lack of attention paid to them, this issue of the Fordham Law Review is, very simply, a great public service. It presents the papers produced by The Adequacy of the Presidential Succession System in the 21st Century Symposium, which was held at Fordham Law School on April 16 and April 17, 2010. Sitting in the audience during the Symposium and listening to the papers presented here, I was struck by how many gaps there are in our current system and what dangers those gaps pose.

It was …

A Modern Father Of Our Constitution: An Interview With Former Senator Birch Bayh

Fordham Law Review

Following the death of President John F. Kennedy in 1963, Birch Bayh, then a freshman Senator from Indiana, undertook a remarkable campaign to amend the U.S. Constitution and address gaps in our system of presidential succession. The effort to ratify the Twenty-Fifth Amendment was orderly, swift, and effective. In leading this campaign, Senator Bayh took his first step in becoming the only American since the Founding Fathers to draft more than one amendment to the Constitution. As part of this Symposium, the Fordham Law Review sought to merge constitutional theory with historical context and the practicalities of lawmaking surrounding the …

An Eyewitness Account Of Executive “Inability”, Fred F. Fielding

Fordham Law Review

In these Remarks delivered at the symposium The Adequacy of the Presidential Succession System in the 21st Century at Fordham University School of Law on April 16, 2010, Fred F. Fielding recounts the moments when he was an “eyewitness” to uses or contemplated uses of the Twenty-Fifth Amendment while serving in the White House Counsel’s Office in three administrations. When he was Deputy White House Counsel in the Nixon administration, the Twenty-Fifth Amendment’s vice presidential replacement provision was used to nominate Gerald Ford to the office. As White House Counsel during the Reagan administration, Fielding was part of discussions about …

Adequacy Of Current Succession Law In Light Of The Constitution And Policy Considerations, Benton Becker

Fordham Law Review

In this article, Gerald R. Ford’s counsel during Ford’s confirmation to the vice presidency under the Twenty-Fifth Amendment recounts the process, including investigations into Ford as part of the process and the confirmation hearings in the Senate and House of Representatives. The Article also discusses aspects of Ford’s tenure as Vice President, particularly efforts by White House officials to enlist Ford in defending President Richard Nixon amid the Watergate scandal and Ford’s response to those efforts. The Article is adapted from the author’s remarks at the symposium The Adequacy of the Presidential Succession System in the 21st Century, which …

Freedom, Finality, And Federal Preemption: Seeking Expanded Judicial Review Of Arbitration Awards Under State Law After Hall Street, Brian T. Burns

Fordham Law Review

When the U.S. Supreme Court decided Hall Street Associates, L.L.C. v. Mattel, Inc. in March 2008, the Court held that under the Federal Arbitration Act (FAA), parties to an arbitration agreement may not contractually expand the grounds for judicial review of an arbitration award beyond the grounds enumerated in the FAA. In dicta, however, the Court expressly left open the possibility that parties nonetheless may obtain expanded review by relying on state arbitration law, rather than the FAA. This Note examines the availability of contractually expanded review under state law and addresses the question of whether, in light of Hall …

Matters Of Public Safety And The Current Quarrel Over The Scope Of The Quarles Exception To Miranda, Rorie A. Norton

Fordham Law Review

In October 1984, the Burger Court set forth an exception to the Miranda doctrine in New York v. Quarles permitting officers to intentionally abstain from administering Miranda warnings to suspects where a threat to the safety of the public or officers exists. However, latent ambiguity arising from the Quarles decision authored by Justice William Rehnquist has resulted in a split among the federal courts of appeals as to what constitutes a “public safety threat.” Some courts broadly extend the Quarles exception to inherently dangerous situations, including the threat of an officer mishandling an undiscovered weapon. Other courts narrowly apply Quarles …

Multidisciplinary Practice Redux: Globalization, Core Values, And Reviving The Mdp Debate In America, Paul D. Paton

Fordham Law Review

No abstract provided.

The Changing Professional Landscape Of Large Law Firms, Glass Ceilings And Dead Ends: Professional Ideologies, Gender Stereotypes, And The Future Of Women Lawyers At Large Law Firms, Eli Wald

Fordham Law Review

No abstract provided.

The Internet Is A Semicommons, James Grimmelmann

Fordham Law Review

No abstract provided.