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Full-Text Articles in Entire DC Network
Disability Without Documentation, Katherine A. Macfarlane
Disability Without Documentation, Katherine A. Macfarlane
Fordham Law Review
Disability exists regardless of whether a doctor has confirmed its existence. Yet in the American workplace, employees are not disabled, or entitled to reasonable accommodations, until a doctor says so. This Article challenges the assumption that requests for reasonable accommodations must be supported by medical proof of disability. It proposes an accommodation process that accepts individuals’ assessments of their disabilities and defers to their accommodation preferences. A documentation-free model is not alien to employment law. In evaluating religious accommodations, employers—and courts—take a hands-off approach to employees’ representations that their religious beliefs are sincere. Disability deserves the same deference. This Article …
Disarming Abusers And Triggering The Sixth Amendment: Are Domestic Violence Misdemeanants Guaranteed The Right To A Jury Trial?, Julia Hatheway
Disarming Abusers And Triggering The Sixth Amendment: Are Domestic Violence Misdemeanants Guaranteed The Right To A Jury Trial?, Julia Hatheway
Fordham Law Review
Domestic violence is a global issue, but in the United States it is especially lethal. Hundreds of women are shot and killed in the United States by intimate partners every year. Federal and state legislatures have enacted laws that focus on the issue of domestic violence and gun violence. In 1996, Congress passed the Lautenberg Amendment to the Gun Control Act of 1968, which permanently prohibits individuals convicted of domestic violence misdemeanors from possessing firearms. Twenty-nine states and the District of Columbia have also enacted laws that mirror the Lautenberg Amendment. In many jurisdictions, misdemeanor domestic violence convictions carry a …
The Disparate Treatment Of Rights In U.S. Trade, Desirée Leclercq
The Disparate Treatment Of Rights In U.S. Trade, Desirée Leclercq
Fordham Law Review
Rights advocates are increasingly urging U.S. trade negotiators to include new binding and sanctionable provisions that would protect human rights, women’s rights, and gender equality. Their efforts are understandable. Trade agreements have significant advantages as a process for advancing international rights. Even though Congress and the executive incorporate international environmental standards and labor rights into U.S. trade agreements, they have refused to incorporate gender rights and broader human rights. The rationale behind the United States’s disparate treatment of rights in trade has received almost no scholarly attention. That is a mistake. Using labor rights as a case study, this Article …
Collaterally Attacking The Prison Litigation Reform Act's Application To Meritorious Prisoner Civil Litigation, Melissa Benerofe
Collaterally Attacking The Prison Litigation Reform Act's Application To Meritorious Prisoner Civil Litigation, Melissa Benerofe
Fordham Law Review
Earlier this year, the Prison Litigation Reform Act (PLRA) reached its twenty-fifth birthday, reinvigorating discussion on its effects on people in prison and the U.S. criminal justice system more broadly. This Note examines how the PLRA deters and obstructs prisoners’ ability to file meritorious civil rights lawsuits regarding the conditions of their confinement. The PLRA does so primarily through four of its provisions, which this Note refers to as the “access provisions.” The access provisions include: (1) the exhaustion of administrative remedies; (2) the filing fee provision; (3) the three-strikes rule; and (4) limitations on attorney’s fees. This Note argues …
Schrems's Slippery Slope: Strengthening Governance Mechanisms To Rehabilitate Eu-U.S. Cross-Border Data Transfers After Schrems Ii, Edward W. Mclaughlin
Schrems's Slippery Slope: Strengthening Governance Mechanisms To Rehabilitate Eu-U.S. Cross-Border Data Transfers After Schrems Ii, Edward W. Mclaughlin
Fordham Law Review
In July 2020, the Court of Justice of the European Union (CJEU) invalidated the Privacy Shield Framework, the central data governance mechanism that once governed cross-border data transfers from the European Union (EU) to the United States. For the second time in five years, Europe’s top court invalidated the primary method of cross-border data transfers. Both times the CJEU found that the United States’s surveillance laws were, and remain, overbroad and fail to provide EU citizens with protections that are essentially equivalent to those guaranteed under the EU’s General Data Protection Regulation (GDPR) in light of the Charter of Fundamental …
Lgbtqia+ Public Accomodation Cases: The Battle Between Religious Freedom And Civil Rights, Jamie Reinah
Lgbtqia+ Public Accomodation Cases: The Battle Between Religious Freedom And Civil Rights, Jamie Reinah
Fordham Law Review
Protections for LGBTQIA+ Americans have greatly expanded since the U.S. Supreme Court recognized marriage equality in Obergefell v. Hodges, but the debate about whether business owners can refuse to serve LGBTQIA+ couples on religious grounds has grown more bitterly divided. The free exercise of religion is a fundamental constitutional right, and it is strongly protected at both the federal and state levels. At the same time, LGBTQIA+ couples are protected from receiving unequal treatment in public places under state antidiscrimination laws. The clash between religion and LGBTQIA+ rights has culminated in a line of cases that present difficult questions …
Corporate Law's Forgotten Constituents: Reimagining Corporate Lawyering In Routine Business Contexts, Melissa E. Romanovich
Corporate Law's Forgotten Constituents: Reimagining Corporate Lawyering In Routine Business Contexts, Melissa E. Romanovich
Fordham Law Review
Although they are artificial entities, corporations are operated, managed, and represented by people. Sometimes, these people have personal interests at stake—interests that are separate and distinct from the corporation’s interests and that arise from these people acting in their corporate roles. These personal interests and related potential liabilities range from employment concerns and civil liability to criminal prosecution and imprisonment. Until now, however, the law has determined that, in most situations, a corporation’s lawyer neither represents the corporation’s constituents nor their personal interests. The corporate lawyer, therefore, has the challenging role of discharging the proper ethical and legal obligations to …
Feeling And Thinking Like A Lawyer: Cognition, Emotion, And The Practice And Progress Of Law, Susan A. Bandes
Feeling And Thinking Like A Lawyer: Cognition, Emotion, And The Practice And Progress Of Law, Susan A. Bandes
Fordham Law Review
No abstract provided.
If Only I Had Known: The Challenges Of Representation, Jenny E. Carroll
If Only I Had Known: The Challenges Of Representation, Jenny E. Carroll
Fordham Law Review
No abstract provided.
Affirmative Immunity: A Litigation-Based Approach To Curb Appellate Courts’ Raising Qualified Immunity Sua Sponte, Michael E. Beyda
Affirmative Immunity: A Litigation-Based Approach To Curb Appellate Courts’ Raising Qualified Immunity Sua Sponte, Michael E. Beyda
Fordham Law Review
Qualified immunity, to put it simply, provides public officials with immunity from civil lawsuits if they have violated an individual’s constitutional rights under their official authority and those rights were not “clearly established” at the time of the official’s actions. The doctrine has evolved into an elaborate framework that has plagued civil rights plaintiffs, as well as courts, for decades. Qualified immunity is an affirmative defense, and affirmative defenses are waived if not raised appropriately by the defendant. Moreover, issues that are not properly raised before the trial court, including affirmative defenses, are generally not considered for the first time …
Race And Policing: Some Thoughts And Suggestions For Reform, Solomon Oliver Jr.
Race And Policing: Some Thoughts And Suggestions For Reform, Solomon Oliver Jr.
Fordham Law Review
No abstract provided.
Understanding The Social And Cognitive Process In Law School That Creates Unhealthy Lawyers, Kathryne M. Young
Understanding The Social And Cognitive Process In Law School That Creates Unhealthy Lawyers, Kathryne M. Young
Fordham Law Review
Previous work on law student wellness and mental health strongly suggests that the seeds of professional unhappiness are sown in law school. Law students suffer from anxiety, depression, substance abuse, and other mental health problems at alarmingly high rates. They also leave law school with different concerns, commitments, and cognitive patterns than when they entered, emerging less hopeful, less intrinsically motivated, and more concerned with prestige than they were at the outset. So what, exactly, happens to people in law school? Although a rich body of quantitative and survey-based research on law students documents these empirical trends, surprisingly little qualitative …
Who Needs Adverse Possession?, Nadav Shoked
Who Needs Adverse Possession?, Nadav Shoked
Fordham Law Review
Adverse possession is one of property law’s most central doctrines. Yet, this Article contends, the need it answers has been largely misunderstood. Adverse possession’s doctrinal effects are clear—and stark: when its requirements are met, an owner loses her land to an invader. To explain a doctrine instituting such a radical result, scholars resort to property law’s major philosophical theories. These theories, they argue, at times demand that an owner lose her land to another person who is more committed to that land. The problem with these prevailing justifications of adverse possession, this Article shows, is that they imagine a very …
Taking A Stand: Climate Change Litigants And The Viability Of Constitutional Claims, Mina Juhn
Taking A Stand: Climate Change Litigants And The Viability Of Constitutional Claims, Mina Juhn
Fordham Law Review
In response to the accelerating effects of global warming, individuals and citizen groups in the United States have brought suit against the federal government to challenge the adequacy of existing climate change policies. Though statutory and tort claims comprise the bulk of these actions, plaintiffs have begun alleging that government inaction on climate change violates constitutional and fundamental rights. In these matters, the federal judiciary generally applies threshold justiciability doctrines, such as standing and the political question doctrine, to deny judicial review. This Note examines the reasoning behind the judiciary’s application of these doctrines and evaluates the appropriate scope of …
Clean Water Act Jurisdiction Over Groundwater Discharges After County Of Maui V. Hawaii Wildlife Fund, Jocelyn Lee
Clean Water Act Jurisdiction Over Groundwater Discharges After County Of Maui V. Hawaii Wildlife Fund, Jocelyn Lee
Fordham Law Review
The Clean Water Act is the principal federal law aimed at controlling pollution of the nation’s water resources, yet it does not provide comprehensive oversight of pollutants entering groundwater, the subsurface water that often feeds into rivers, lakes, and oceans. This Note examines a recent Supreme Court decision, County of Maui v. Hawaii Wildlife Fund, which appeared to endorse a theory of federal regulation of groundwater discharges under the Clean Water Act. County of Maui established a “functional equivalent” standard, under which a discharge through groundwater is subject to the Clean Water Act’s permitting requirements if it is the functional …
Transgender Inmates’ Right To Gender Confirmation Surgery, Marissa Luchs
Transgender Inmates’ Right To Gender Confirmation Surgery, Marissa Luchs
Fordham Law Review
The Eighth Amendment prohibits cruel and unusual punishment. It ensures that the state’s power to punish is exercised within the bounds of evolving standards of human decency. At the time of its enactment in 1791, the Eighth Amendment merely protected against torture and other physically barbarous treatments. However, as society’s standards of decency changed, so too did the scope of the Eighth Amendment. Today, among other protections, the Eighth Amendment mandates that prisons provide inmates with adequate conditions of confinement. This includes an obligation on the part of the prison to provide adequate medical care. But a great deal of …
The Sunset Of The Holocaust Expropriated Art Recovery Act Of 2016 And The Rise Of The Demand And Refusal Rule, Fallon S. Sheridan
The Sunset Of The Holocaust Expropriated Art Recovery Act Of 2016 And The Rise Of The Demand And Refusal Rule, Fallon S. Sheridan
Fordham Law Review
During World War II, hundreds of thousands of works of art were confiscated by Nazis under the direction of Adolf Hitler or sold for less than market value by members of the Jewish community fleeing Nazi Germany. Shockingly, an estimated 100,000 of the 600,000 works that were taken are still missing today. In recognition of the need for laws that adequately assist original owners (and their heirs) in recovering these works of art, the U.S. Congress passed the Holocaust Expropriated Art Recovery Act of 2016 (“the HEAR Act”). The HEAR Act supplanted state statutes of limitations for Naziconfiscated artwork with …
Foreword: The Federalist Constitution, David S. Schwartz
Foreword: The Federalist Constitution, David S. Schwartz
Fordham Law Review
No abstract provided.
The Federalist Constitution As A Project In International Law, David M. Golove, Daniel J. Hulsebosch
The Federalist Constitution As A Project In International Law, David M. Golove, Daniel J. Hulsebosch
Fordham Law Review
No abstract provided.
Executive Power And The Rule Of Law In The Marshall Court: A Rereading Of Little V. Barreme And Murray V. Schooner Charming Betsy, Jane Manners
Fordham Law Review
This Essay uses two 1804 opinions by Chief Justice John Marshall to explicate a world in which understandings of executive power and the rule of law were very different from those that predominate today. Scholars have misread Little v. Barreme and Murray v. Schooner Charming Betsy, this Essay argues, because they apply modern assumptions about the balance of power between Congress and the executive that do not fit the Marshall Court’s constitutional vision. Contemporary interpretations read Little for the propositions that the president’s inherent wartime power may be limited by statute and that early American jurists rejected officers’ “good faith” …
Reframing Article I, Section 8, Richard Primus
Reframing Article I, Section 8, Richard Primus
Fordham Law Review
No abstract provided.
Reconstructing State Republics, Francesca L. Procaccini
Reconstructing State Republics, Francesca L. Procaccini
Fordham Law Review
Our national political dysfunction is rooted in constitutionally dysfunctional states. States today are devolving into modern aristocracies through laws that depress popular control, entwine wealth and power, and insulate incumbents from democratic oversight and accountability. These unrepublican states corrupt the entire United States. It is for this reason that the Constitution obligates the United States to restore ailing states to their full republican strength. But how? For all its attention to process, the Constitution is silent on how the United States may exercise its sweeping Article IV power to “guarantee to every State in this Union a Republican Form of …
“The Rule Of The Strong, Not The Rule Of Law”: Reexamining Implicit Divestiture After Mcgirt V. Oklahoma, Joseph Palandrani
“The Rule Of The Strong, Not The Rule Of Law”: Reexamining Implicit Divestiture After Mcgirt V. Oklahoma, Joseph Palandrani
Fordham Law Review
In McGirt v. Oklahoma, the U.S. Supreme Court found that the boundaries of the Muscogee (Creek) Nation, which were set in 1866 and which encompass a large swath of present-day Oklahoma, remain intact. Although non-Indigenous people had settled on the land in droves by the early twentieth century, the Court held that the land remains “Indian Country” until Congress explicitly indicates otherwise. Because Congress never so indicated, the reservation is undiminished. McGirt marked a massive shift in the Court’s approach to the question of whether reservation boundaries remain in force; demographic history had previously figured prominently in the Court’s rulings …
Equal Footing And The States "Now Existing" Slavery And State Equality Over Time, James E. Pfander, Elena Joffroy
Equal Footing And The States "Now Existing" Slavery And State Equality Over Time, James E. Pfander, Elena Joffroy
Fordham Law Review
This Essay reexamines the question whether the Constitution empowered Congress to ban slavery in the territories. We explore that question by tracking two proposed additions to the Constitution, one that would empower Congress to ban the migration and importation of enslaved persons to all new states and territories and one that would oblige Congress to admit new states on an equal footing with the old. We show that the Federalists supported and the Convention adopted the migration provision, enabling Congress to restrict slavery to the states “now existing.” But the Federalists opposed and the Convention rejected the equal footing doctrine. …
Slavery's Constitution: Rethinking The Federal Consensus, Maeve Glass
Slavery's Constitution: Rethinking The Federal Consensus, Maeve Glass
Fordham Law Review
For at least half a century, scholars of the early American Constitution By recovering this genealogy and expanding our map of the founding, this Essay offers a more complete view of the origins of one of the oldest and most consequential rules of constitutional union. In doing so, it allows us to see the institution of racial slavery not simply as one confined to a single section of the South and upheld by its peculiar doctrine of states’ rights but as a fundamentally American institution, one upheld by a rule of federal and state inaction in the face of slavery’s …
The Other Madison Problem, David S. Schwartz, John Mikhail
The Other Madison Problem, David S. Schwartz, John Mikhail
Fordham Law Review
The conventional view of legal scholars and historians is that James pursue a fresh and more accurate assessment of Madison and his constitutional legacy, particularly with respect to slavery. Madison was the “father” or “major architect” of the Constitution, whose unrivaled authority entitles his interpretations of the Constitution to special weight and consideration. This view greatly exaggerates Madison’s contribution to the framing of the Constitution and the quality of his insight into the main problem of federalism that the Framers tried to solve. Perhaps most significantly, it obstructs our view of alternative interpretations of the original Constitution with which Madison …
Presidential Removal: The Marbury Problem And The Madison Solutions, Jed Handelsman Shugerman
Presidential Removal: The Marbury Problem And The Madison Solutions, Jed Handelsman Shugerman
Fordham Law Review
No abstract provided.
Two Federalist Constitutions Of Empire, Gregory Ablavsky
Two Federalist Constitutions Of Empire, Gregory Ablavsky
Fordham Law Review
No abstract provided.
Without Doors: Native Nations And The Convention, Mary Sarah Bilder
Without Doors: Native Nations And The Convention, Mary Sarah Bilder
Fordham Law Review
No abstract provided.
President Madison's Living Constitution: Fixation, Liquidation, And Constitutional Politics In The Jeffersonian Era, Saul Cornell
President Madison's Living Constitution: Fixation, Liquidation, And Constitutional Politics In The Jeffersonian Era, Saul Cornell
Fordham Law Review
No abstract provided.