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Full-Text Articles in Entire DC Network
Toward A Duty-Based Theory Of Executive Power, David M. Driesen
Toward A Duty-Based Theory Of Executive Power, David M. Driesen
Fordham Law Review
This article develops a duty-based theory of executive power. This theory maintains that the Constitution seeks to instill a duty in all executive branch officers to faithfully execute the law. Conversely, the Constitution’s Framers and Ratifiers did not intend to empower the President to distinctively shape the law to suit his policy preferences or those of his party. Rather, they envisioned a model of “disinterested leadership” serving rule-of-law values. Because of the Ratifiers’ and Framers’ interest in preventing abuse of executive power, the Constitution obligates executive branch officials to disobey illegal presidential directives and creates a major congressional role in …
Post-Davis Conduit Bonds: At The Intersection Of The Dormant Commerce Clause And Municipal Debt, Sean Carey
Post-Davis Conduit Bonds: At The Intersection Of The Dormant Commerce Clause And Municipal Debt, Sean Carey
Fordham Law Review
This Note addresses the constitutionality of the selective taxation of conduit bonds, a subset of municipal bonds that finance private enterprise, in the aftermath of the U.S. Supreme Court’s decision in Department of Revenue v. Davis. In Davis, the Court determined that states could tax interest earned on out-of-state municipal bonds while exempting interest earned on its own bonds without violating the Commerce Clause of the Constitution. When issuing this ruling, the Court drew a distinction between municipal bonds issued on behalf of the government and municipal bonds issued on behalf of private industry. The question of whether or not …
The Robert L. Levine Distinguished Lecture, Deepening The Legal Profession's Pro Bono Commitment To The Immigrant Poor
Fordham Law Review
No abstract provided.
The Immigration Representation Project: Meeting The Critical Needs Of Low-Wage And Indigent New Yorkers Facing Removal, Joho Annobil
The Immigration Representation Project: Meeting The Critical Needs Of Low-Wage And Indigent New Yorkers Facing Removal, Joho Annobil
Fordham Law Review
No abstract provided.
Barriers To Representation For Detained Immigrants Facing Deportation: Varick Street Detention Facility, A Case Study, Peter L. Markowitz
Barriers To Representation For Detained Immigrants Facing Deportation: Varick Street Detention Facility, A Case Study, Peter L. Markowitz
Fordham Law Review
No abstract provided.
Regulating Immigration Legal Service Provider: In Adequate Representation And Notario Fraud, Careen Shannon
Regulating Immigration Legal Service Provider: In Adequate Representation And Notario Fraud, Careen Shannon
Fordham Law Review
Immigrants are often easy prey for bogus or incompetent attorneys, "notarios," scam artists, and other bad actors who take advantage of immigrants' limited knowledge of U.S. law, lack of English fluency, and lack of cultural knowledge to charge exorbitant fees for wild promises of green cards and citizenship that the bad actors annot-or in some cases never inteded to-deliver. Such exploitation is merely a symptom, however, of the larger prolem of inadequate access to competent legal counsel by foreign nationals seeking to navigate our labyrinthine scheme of immigration laws, regulations, and policies. ontrary to popular belief, not all of these …
Representation For Immigrants: A Judge's Personal Perspective, Denny Chin
Representation For Immigrants: A Judge's Personal Perspective, Denny Chin
Fordham Law Review
No abstract provided.
The Dog That Didn't Bark: Stealth Procedures And The Erosion Of Stare Decisis In The Federal Courts Of Appeal, Amy E. Sloan
The Dog That Didn't Bark: Stealth Procedures And The Erosion Of Stare Decisis In The Federal Courts Of Appeal, Amy E. Sloan
Fordham Law Review
Informal en banc review is a procedural expedient that nine of the the thirteen federal circuits use to circumvent the requirements of formal en banc review. Panels invoke informal en banc review to overrule prior panel precdent in contravention of the law of the circuit rule, as well as to take other actions normally reserved for the full court sitting en banc. The circuits taht use informal en banc review say the procedure is to be used rarely. In practice, however, the frequency of informal in banc review is significant when compared with formal en banc review. Informal en banc …
It's Been A Privilege: Advising Patients Of The Tarasoff Duty And Its Legal Consequences For The Federal Psychotherapist-Patient Privilege, Elisia Klinka
Fordham Law Review
State laws modeled on Tarasoff v. Regents of the University of California require psychotherapists to warn potential victims of law enforcement when treating dangerous patients who make serious threats of harm to another person. In practice, many psychotherapists advise their patients who make such threats about their duty under these Tarasoff-model laws. Although they are not required to make these advisories by law, psychotherapists generaly assume that they asldo have a concomitant ethical duty to advise their patients taht such threats will not be kept confidential, as their communications normally world be. This Note looks at how these advisories affect …
The Free Jammie Movement: Is Making A File Available To Other Users Over A Peer-To-Peer Computer Network Sufficient To Infringe The Copyright Owner's 17 U.S.C. § 106(3) Distribution Right?, Ken Nicholds
Fordham Law Review
Of the thousands of lawsuits brought by the Recording Industry Association of America against individuals for sharing music files over the Internet, the case of Jammie Thomas-Rasset was the first to complete a full jury trial. The judge vacated the intial judgment against Thomas-Rasset because he found, sua sponte, that he was mistaken when he instructed the jury that making a file available over a computer network for others to download is sufficient to find infringement of the exclusive distribution right of the copyright owner under 17 U. S. C. § 106(3). This Note argues that there is no making-available …
Answering Justice Scalia's Question: Dual Sovereignty And The Sixth Amendment Right To Counsel After Texas V. Cobb And Montejo V. Louisiana, Ryan M. Yanovich
Answering Justice Scalia's Question: Dual Sovereignty And The Sixth Amendment Right To Counsel After Texas V. Cobb And Montejo V. Louisiana, Ryan M. Yanovich
Fordham Law Review
Since the U.S. Supreme Court decided Texas v. Cobb in 2001, eight courts of appeals have rached divergent conclusions as to the scope and extent of a criminal defendant's Sixth Amendment right to counsel when he is being prosecuted by multiple sovereigns, including, most recently, the U.S. Court of appeals for the Eleventh Circuit in 2008. Invariably, each circuit court purports to draw conclusive support for its holding from the plain language of Cobb. The conflict among the circuits reveals a tension between the courts; desire to balance fundamental individual and legitimate state interests, achieve uniformity and consistency in the …
Delayed Access To Generic Medicine: A Comment On The Hatch-Waxman Act And The "Approval Bottleneck, Ankur N. Patel
Delayed Access To Generic Medicine: A Comment On The Hatch-Waxman Act And The "Approval Bottleneck, Ankur N. Patel
Fordham Law Review
Prescription drug costs can be astronomical. The advent of generic drugs, which sell at substantially lower prices than their brand-name counterparts, can save consumers billions of dollars per year. The Hatch-Waxman Act, which governs the introduction of generic pharmaceuticals into the marketplace, produces an undesired side effect-the "approval bottleneck." This Comment examines the "approval bottleneck"-a potential roadbolock to the generic drug approval process, and comments on attempts to alleviate the problem. This comment suggest that developments in statutes and case law have made leaps in attempting to alleviate the "approval bottleneck" problem. The Comment evaluate these developments, which include (1) …
Some Thoughts About The Economics Of Settlement, John Bronsteen
Some Thoughts About The Economics Of Settlement, John Bronsteen
Fordham Law Review
No abstract provided.
The Public Value Of Settlement, Samuel Issacharoff, Robert H. Klonoff
The Public Value Of Settlement, Samuel Issacharoff, Robert H. Klonoff
Fordham Law Review
No abstract provided.
Three Things To Be Against ("Settlement" Not Included), Michael Moffitt
Three Things To Be Against ("Settlement" Not Included), Michael Moffitt
Fordham Law Review
No abstract provided.
Comments On Owen M. Fiss, Against Settlement (1984), Hon. Jack B. Weinstein
Comments On Owen M. Fiss, Against Settlement (1984), Hon. Jack B. Weinstein
Fordham Law Review
No abstract provided.
The History Of An Idea, Owen M. Fiss
Love They Neighbor: Should Religious Accommodations That Negatively Affect Coworkers' Shift Preferences Constitute And Undue Harship On The Employer Under Title Vii?, Rachel M. Birnbach
Love They Neighbor: Should Religious Accommodations That Negatively Affect Coworkers' Shift Preferences Constitute And Undue Harship On The Employer Under Title Vii?, Rachel M. Birnbach
Fordham Law Review
In applying Title VII, courts are often confronted with proposed religious accommodations that would negatively affect other employees and must decide whether such an accommodation amounts to an undue hardship on the employer. However, there is a conflict among circuit courts over the scope of an employer’s duty to accommodate religious employees when doing so would negatively affect coworkers’ scheduling preferences, outside the context of a collective bargaining agreement. The conflict turns on whether courts consider any negative impact on coworkers to amount to impermissible preferential treatment, or whether they require that the defendant demonstrate a more severe impact on …
The Rights Of Divorced Lesbians: Interstate Recognition Of Child Custody Judgments In The Context Of Same-Sex Divorce, Kathryn J. Harvey
The Rights Of Divorced Lesbians: Interstate Recognition Of Child Custody Judgments In The Context Of Same-Sex Divorce, Kathryn J. Harvey
Fordham Law Review
This Note explores the issue of interstate recognition of child custody, which arises in the context of same-sex divorce. The Parental Kidnapping Prevention Act (PKPA) requires states to grant full faith and credit to all child custody orders; on the other hand, the Defense of Marriage Act (DOMA) allows states to deny full faith and credit to judgments “arising out of” same-sex marriage. This Note argues that DOMA partially repeals the PKPA, such that states need not grant full faith and credit to divorce and child custody decrees in the context of same-sex marriage. Further, this Note argues that because …
The Attorney-Client Privilege And Information Disclosed To An Attorney With The Intention That The Attorney Draft A Document To Be Released To Third Parties: Public Policy Calls For At Least The Strictest Application Of The Attorney-Client Privilege, Daniel Northrop
Fordham Law Review
The attorney-client privilege is the oldest evidentiary privilege known to the common law. It exists to encourage clients to openly communicate with their attorneys. Some commentators, however, have questioned the value of the privilege and called for its elimination. This policy debate, though unlikely to influence typical privilege disputes, is important when the application of the attorney-client privilege is unclear. One example is when a client conveys information to her attorney with the intent that the attorney draft a document to be released to a third party. This Note seeks to shed light on the arguments for and against the …
Toward Effective Implementation Of 11 U.S.C. § 522(D)(11)(E): Invigorating A Powerful Bankruptcy Exemption, Uriel Rabinovitz
Toward Effective Implementation Of 11 U.S.C. § 522(D)(11)(E): Invigorating A Powerful Bankruptcy Exemption, Uriel Rabinovitz
Fordham Law Review
This Note explores how bankruptcy courts have analyzed and applied the 11 U.S.C. § 522(d)(11)(E) bankruptcy exemption and the confusion generated by its conflicting interpretations. This Note reviews and scrutinizes the history of the Bankruptcy Law, its goals and purposes, the differences between its underlying themes, and specific mechanisms involved in the implementation of bankruptcy exemptions. With a broader understanding of the rationale behind bankruptcy laws in combination with the relevant legislative history, this Note sets the stage and advocates for an increased consistency in the analysis and application of the 11 U.S.C. § 522(d)(11)(E) exemption.
When Cows Fly: Expanding Cognizable Injury-In-Fact And Interest Group Litigation, Robert Terenzi, Jr.
When Cows Fly: Expanding Cognizable Injury-In-Fact And Interest Group Litigation, Robert Terenzi, Jr.
Fordham Law Review
This Note takes an in-depth look at standing and, specifically, the extent to which increased risk of exposure to toxins caused by a government agency’s regulations constitutes a judicially cognizable injury-in-fact. Despite over a century of case law on the topic, standing doctrine remains in flux and ill defined, largely due to the constantly changing ideological makeup of the U.S. Supreme Court. The lower courts are divided on the question of whether increased risk of future harm constitutes an injury-in-fact. Using Baur v. Veneman as a case study, this Note argues for the expansion of the definition of injury-in-fact to …
Taking Finance Seriously: How Debt Financing Distorts Bidding Outcomes In Corporate Takeovers, Robert P. Bartlett Iii
Taking Finance Seriously: How Debt Financing Distorts Bidding Outcomes In Corporate Takeovers, Robert P. Bartlett Iii
Fordham Law Review
Economic analysis of corporate takeovers has traditionally advocated legal doctrines that ensure a target company in a takeover contest is acquired by the bidder willing to pay the most for it. The reason stems from the conventional assumption that a bidder's offer price should reflect its ability to put a target's assets to productive use. This Article challenges this assumption by turning to the success of private equity firms in outbidding publicly traded, strategic bidders during the takeover wave of 2004 to 2007. Using standard valuation modeling, this Article reveals how a critical component of any bidder's valuation of a …
Alien Tort Statute Accomplice Liability Cases: Should Courts Apply The Plausibility Pleading Standard Of Bell Atlantic V. Twombly?, Amanda Sue Nichols
Alien Tort Statute Accomplice Liability Cases: Should Courts Apply The Plausibility Pleading Standard Of Bell Atlantic V. Twombly?, Amanda Sue Nichols
Fordham Law Review
When a corporation operating abroad either conspires with, or aids and abets, an oppressive regime in violating human rights, victims can seek redress in U.S. courts under the Alien Tort Statute. In assessing such claims, some courts have chosen to apply a liberal pleading standard, while others have applied a heightened pleading standard to combat frivolous lawsuits. This Note suggests that courts should apply a third standard--the plausibility standard applied to claims under section 1 of the Sherman Act by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly. This Note argues that applying that standard to Alien Tort …
From T-Shirts To Teaching: May Public Schools Constitutionally Regulate Antihomosexual Speech?, Amanda L. Houle
From T-Shirts To Teaching: May Public Schools Constitutionally Regulate Antihomosexual Speech?, Amanda L. Houle
Fordham Law Review
In applying the First Amendment in the public school context, courts are faced with the challenge of balancing the constitutional rights of students against the discretion of schools to control speech and conduct on school grounds. This Note focuses on the specific issue of public schools regulating antihomosexual speech. Evaluating the First Amendment rights of students expressing antihomosexual sentiment through private and school-sponsored mediums, this Note ultimately argues for a comprehensive standard permitting schools to regulate both private and school-sponsored student speech.
"Obvious To Try": A Proper Patentability Standard In The Pharmaceutical Arts?, Andrew V. Trask
"Obvious To Try": A Proper Patentability Standard In The Pharmaceutical Arts?, Andrew V. Trask
Fordham Law Review
Pharmaceutical research often entails making small modifications to candidate drug molecules--modifications that might be deemed “obvious to try”--and then studying the largely unpredictable, yet critical, resulting biological effects. Recognizing this characteristic unpredictability, the U.S. Court of Appeals for the Federal Circuit has traditionally upheld the patentability of obvious-to-try pharmaceutical inventions. This approach has been challenged, however, by the U.S. Supreme Court's 2007 decision in KSR International Co. v. Teleflex Inc. This Note reviews the history of the obvious-to-try test and considers the Federal Circuit's post-KSR inconsistency regarding obviousness in the pharmaceutical arts. This Note argues that KSR does not permit …
Forty Years Of Loving: Confronting Issues Of Race, Sexuality, And The Family In The Twenty-First Century, Introduction, Robin A. Lenhardt, Elizabeth B. Cooper, Sheila R. Foster, Sonia K. Katyal
Forty Years Of Loving: Confronting Issues Of Race, Sexuality, And The Family In The Twenty-First Century, Introduction, Robin A. Lenhardt, Elizabeth B. Cooper, Sheila R. Foster, Sonia K. Katyal
Fordham Law Review
No abstract provided.
Time For Rights? Loving, Gay Marriage, And The Limits Of Legal Justice, Chandan Reddy
Time For Rights? Loving, Gay Marriage, And The Limits Of Legal Justice, Chandan Reddy
Fordham Law Review
No abstract provided.
The Intersection Of 42 U.S.C. § 1983 And The Individuals With Disabilities Education Act, Suzanne Solomon
The Intersection Of 42 U.S.C. § 1983 And The Individuals With Disabilities Education Act, Suzanne Solomon
Fordham Law Review
This Note reviews the history, structure, and purpose of 42 U.S.C. § 1983 and the Individuals with Disabilities Education Act (IDEA). It then describes how the two statutes intersect and interact. Next, this Note examines the existing split in the U.S. Courts of Appeals regarding the availability of § 1983 as a remedy for violations of the IDEA. This Note ultimately contends that Congress intended § 1983 suits to prevail under the IDEA and argues that school districts will be deterred from violating the statute's provisions if such suits are allowed to proceed.
Should Preemption Apply In A Pharmaceutical Context? An Analysis Of The Preemption Debate And What Regulatory Compliance Statutes Contribute To The Discussion, Jennifer A. Surprenant
Should Preemption Apply In A Pharmaceutical Context? An Analysis Of The Preemption Debate And What Regulatory Compliance Statutes Contribute To The Discussion, Jennifer A. Surprenant
Fordham Law Review
Should the Food and Drug Administration (FDA)’s determination that a product is safe negate a private litigant’s cause of action under state law in all circumstances, unless the FDA determines that the manufacturer withheld relevant information regarding the safety of the product? This Note concludes that such federal preemption is proper because the FDA is fully capable of making a determination regarding the adequacy of the information disclosed by a pharmaceutical manufacturer without state interference. Additionally, such interference on the state level hinders the FDA’s objectives and effective functioning. Thus, determinations about the adequacy of the information provided to the …