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Fordham Law Review

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Understanding The Social And Cognitive Process In Law School That Creates Unhealthy Lawyers, Kathryne M. Young May 2021

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 …


Taking A Stand: Climate Change Litigants And The Viability Of Constitutional Claims, Mina Juhn May 2021

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 May 2021

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 …


Race And Policing: Some Thoughts And Suggestions For Reform, Solomon Oliver Jr. May 2021

Race And Policing: Some Thoughts And Suggestions For Reform, Solomon Oliver Jr.

Fordham Law Review

No abstract provided.


If Only I Had Known: The Challenges Of Representation, Jenny E. Carroll May 2021

If Only I Had Known: The Challenges Of Representation, Jenny E. Carroll

Fordham Law Review

No abstract provided.


Who Needs Adverse Possession?, Nadav Shoked May 2021

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 …


Affirmative Immunity: A Litigation-Based Approach To Curb Appellate Courts’ Raising Qualified Immunity Sua Sponte, Michael E. Beyda May 2021

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 …


Transgender Inmates’ Right To Gender Confirmation Surgery, Marissa Luchs May 2021

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 May 2021

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 …


Bridging The Gap: Assessing The State Of Federal Corruption Law After Kelly V. United States, Michael J. Morgan Apr 2021

Bridging The Gap: Assessing The State Of Federal Corruption Law After Kelly V. United States, Michael J. Morgan

Fordham Law Review

Political corruption in the United States has become more and more prevalent in recent years. These days it seems difficult to turn on the news without hearing accusations of a public official caught in a scandal. Despite the frequency of the corrupt acts, however, the federal government remains largely unable to hold state actors accountable. The U.S. Supreme Court has consistently overturned federal convictions of state officials charged with committing corrupt acts. The issue in these cases is not the lack of corruption or proof of the acts but rather, the lack of laws that adequately criminalize the corrupt conduct. …


The Federalist Constitution As A Project In International Law, David M. Golove, Daniel J. Hulsebosch Apr 2021

The Federalist Constitution As A Project In International Law, David M. Golove, Daniel J. Hulsebosch

Fordham Law Review

No abstract provided.


Slavery's Constitution: Rethinking The Federal Consensus, Maeve Glass Apr 2021

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 …


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 Apr 2021

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” …


Equal Footing And The States "Now Existing" Slavery And State Equality Over Time, James E. Pfander, Elena Joffroy Apr 2021

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. …


Seeking A Second Opinion: A Call For Congressional Evaluation Of Anti-Assignment Provisions In Employee Health Plans, Jordan Davis Apr 2021

Seeking A Second Opinion: A Call For Congressional Evaluation Of Anti-Assignment Provisions In Employee Health Plans, Jordan Davis

Fordham Law Review

In the health insurance context, anti-assignment provisions are contractual clauses that restrict an insured individual’s ability to assign rights due under a health plan to another party, such as a medical provider. As these provisions have become increasingly prevalent in employersponsored health plan agreements, they have effectively stripped medical providers of enforcement and litigation rights previously utilized under the Employee Retirement Income Security Act of 1974 (ERISA)—the relevant federal regulation governing employee benefit plans, including health insurance plans. This Note examines these effects in light of ERISA’s intended protections of employees participating in employer-sponsored benefit plans and considers whether congressional …


Foreword: The Federalist Constitution, David S. Schwartz Apr 2021

Foreword: The Federalist Constitution, David S. Schwartz

Fordham Law Review

No abstract provided.


Two Federalist Constitutions Of Empire, Gregory Ablavsky Apr 2021

Two Federalist Constitutions Of Empire, Gregory Ablavsky

Fordham Law Review

No abstract provided.


Without Doors: Native Nations And The Convention, Mary Sarah Bilder Apr 2021

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 Apr 2021

President Madison's Living Constitution: Fixation, Liquidation, And Constitutional Politics In The Jeffersonian Era, Saul Cornell

Fordham Law Review

No abstract provided.


In Search Of Nationhood At The Founding, Jonathan Ginenapp Apr 2021

In Search Of Nationhood At The Founding, Jonathan Ginenapp

Fordham Law Review

No abstract provided.


The Unwritten Constitution For Admitting States, Roderick M. Hills Jr. Apr 2021

The Unwritten Constitution For Admitting States, Roderick M. Hills Jr.

Fordham Law Review

The United States has experimented with several different constitutions for adding states. Of all of these regimes, the shortest lived was also the one selected by the Federalist drafters of the Constitution. Under this regime, Article IV, Section 3 bestowed on Congress broad power to govern new territories as colonies of the original states, allowing Congress to place any conditions that they pleased on their admissions. This regime was created by Federalists, like Gouvernour Morris, who were suspicious of Scots-Irish frontiersmen and eager to settle western territory using land companies who would insure that new settlers were deferential to Federalist …


Article Ix, Article Iii, And The First Congress: The Original Constitutional Plan For The Federal Courts, 1787-1792, Thomas H. Lee Apr 2021

Article Ix, Article Iii, And The First Congress: The Original Constitutional Plan For The Federal Courts, 1787-1792, Thomas H. Lee

Fordham Law Review

No abstract provided.


The Other Madison Problem, David S. Schwartz, John Mikhail Apr 2021

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 …


Reframing Article I, Section 8, Richard Primus Apr 2021

Reframing Article I, Section 8, Richard Primus

Fordham Law Review

No abstract provided.


Presidential Removal: The Marbury Problem And The Madison Solutions, Jed Handelsman Shugerman Apr 2021

Presidential Removal: The Marbury Problem And The Madison Solutions, Jed Handelsman Shugerman

Fordham Law Review

No abstract provided.


Reconstructing State Republics, Francesca L. Procaccini Apr 2021

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 …


Blind Justice And Just Arbitrators: Understanding The Federal Arbitration Act’S Evident Partiality Standard, Heather Cameron Apr 2021

Blind Justice And Just Arbitrators: Understanding The Federal Arbitration Act’S Evident Partiality Standard, Heather Cameron

Fordham Law Review

Arbitral awards are intended to be binding on parties who subject their disputes to arbitration. However, an arbitrator’s bias in favor of one of the parties is one of the few grounds on which a party can object to such an award. The standard used to evaluate such bias is known as “evident partiality.” This Note examines two commonly used standards—referred to in this Note as the “possible impression” standard and the “likely actual bias” standard—deployed by U.S. courts to define evident partiality and determine whether the requirements for vacating an arbitral award have been fulfilled. This Note advocates that …


Inoculating Title Vii: The “Undue Hardship” Standard And Employer-Mandated Vaccination Policies, Mary-Lauren Miller Apr 2021

Inoculating Title Vii: The “Undue Hardship” Standard And Employer-Mandated Vaccination Policies, Mary-Lauren Miller

Fordham Law Review

The widespread administration of a vaccine is essential to bringing an end to the COVID-19 pandemic. Employers can contribute to this goal by requiring employees to be vaccinated. The ability of employers to impose vaccine mandates is theoretically limited in part by Title VII of the Civil Rights Act of 1964, which requires employers to accommodate religious employees unless doing so would impose an “undue hardship” on the employer. Under the current interpretation of undue hardship, employers typically cannot face legal liability for denying accommodations to employees refusing to receive an employer-mandated vaccine on religious grounds, though some employers may …


“The Rule Of The Strong, Not The Rule Of Law”: Reexamining Implicit Divestiture After Mcgirt V. Oklahoma, Joseph Palandrani Apr 2021

“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 …


Symposium: Mental Health And The Legal Profession: Foreword And Dedication, Deborah W. Denno, Bruce A. Green Jan 2021

Symposium: Mental Health And The Legal Profession: Foreword And Dedication, Deborah W. Denno, Bruce A. Green

Fordham Law Review

No abstract provided.