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Compliance Elites, Miriam H. Baer
Compliance Elites, Miriam H. Baer
Fordham Law Review
As corporate compliance has expanded its influence, so too has the status of those who implement and oversee the firm’s compliance function. Chief compliance officers (CCOs), who are often (but not exclusively) lawyers by training, increasingly boast the types of resumes one associates with elite lawyers. In many ways, this is good news for compliance. There may, however, be several downsides to a strategy of relying so heavily on a cadre of compliance elites. The aim of this Article is to discuss one of these downsides. High-performing lawyers nurture a potent, yet underexplored, cognitive blind spot. Having performed extremely well …
The “Whip Hand”: Congress’S Elections Clause Power As The Last Hope For Redistricting Reform After Rucho, Kevin Wender
The “Whip Hand”: Congress’S Elections Clause Power As The Last Hope For Redistricting Reform After Rucho, Kevin Wender
Fordham Law Review
Redistricting activists have long argued that partisan gerrymandering poses a fundamental threat to American democracy. These concerns have become particularly acute as increasingly sophisticated technologies have enabled legislators to draw highly gerrymandered maps that powerfully entrench partisan advantage. Despite these concerns, the U.S. Supreme Court, in the 2019 case of Rucho v. Common Cause, declared partisan gerrymandering to be a political issue outside the purview of the federal courts. The decision dealt a major blow to redistricting activists who, for over fifty years, had hoped that the Court would intervene to combat the drawing of electoral districts for partisan …
Loss Of Self-Control, Dual-Process Theories, And Provocation, Michal Buchhandler-Raphael
Loss Of Self-Control, Dual-Process Theories, And Provocation, Michal Buchhandler-Raphael
Fordham Law Review
Contemporary understanding of the provocation defense views the “loss of self-control” theory as the cornerstone of this partial excuse. In considering whether to reduce murder charges to manslaughter, juries and judges rely on this theory to determine if the defendant lost self-control after experiencing intense emotional arousal and if a reasonable person would have also likely lost self-control in similar circumstances. This Article questions this conventional wisdom by examining the various flaws embedded in provocation’s loss of self-control theory. It argues that the theory is both over- and underinclusive. It is overinclusive because it provides a basis for mitigation in …
Economic Inequality, Access To Law, And Mandatory Arbitration Agreements: A Comment On The Standard Conception Of The Lawyer’S Role, Sung Hui Kim
Fordham Law Review
This Article contends that these autonomy-based defenses of the standard conception cannot withstand the “economic inequality” objection. According to this objection, the moral worthiness of lawyering under the standard conception cannot be reconciled with a legal system that is so marred by gross economic inequality such that only the wealthy have access to lawyers. It can also not be reconciled with the fact that the wealthy routinely use lawyers to undermine the public interest and exploit others who cannot afford lawyers. After examining responses to the economic inequality objection, this Article concludes that these responses do not take seriously how …
Auer 2.0: The Disuniform Application Of Auer Deference After Kisor V. Wilkie, Daniel Lutfy
Auer 2.0: The Disuniform Application Of Auer Deference After Kisor V. Wilkie, Daniel Lutfy
Fordham Law Review
This Note examines how lower courts have applied Auer deference after the U.S. Supreme Court’s decision in Kisor v. Wilkie. The Court granted certiorari in Kisor to answer one question: whether to overturn the deference regimes created by Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins. The Court upheld the doctrines and clarified their reach, limits, and proper application. This Note focuses on Kisor’s holding regarding the extent judges must scrutinize a regulation before concluding it is ambiguous. Despite the Court’s attempt to explicate a standard, lower courts have demonstrated stark differences in regulatory …
Using A Hybrid Securities Test To Tackle The Problem Of Pyramid Fraud, Corey Matthews
Using A Hybrid Securities Test To Tackle The Problem Of Pyramid Fraud, Corey Matthews
Fordham Law Review
This Note examines federal securities law as a tool to deter and regulate illegal pyramid schemes. Pyramid schemes are among the most prevalent forms of consumer fraud in the United States and they victimize thousands of individuals every year. The rise of the internet and social media has made it even easier for pyramid promoters to target potential recruits, often those who are already particularly vulnerable to consumer fraud. The federal securities laws have proven to be robust regulatory tools against pyramid schemes. However, the test used by federal courts to determine whether a scheme meets the definition of a …
Forming Start-Up Companies: Who’S My Client?, Nancy J. Moore
Forming Start-Up Companies: Who’S My Client?, Nancy J. Moore
Fordham Law Review
Consider the following scenario: three individuals—a magician, a baker, and a puppeteer—want to start a business that will run birthday parties for children. The magician will put up most of the money, the baker has extensive experience with children’s birthday parties, and the puppeteer, who has an MBA, will manage the business. They meet with a lawyer to help them form a company, including advising them on such issues as choice of entity and allocation of ownership and control. Before the lawyer agrees to the representation, she must ask herself: “who will I represent?”
Chief Legal Officer 5.0, Omari Scott Simmons
Chief Legal Officer 5.0, Omari Scott Simmons
Fordham Law Review
This Essay builds upon the business-lawyer value-creation literature by analyzing the contemporary CLO and argues for an enhanced CLO role. It emphasizes the sometimes ignored and underemphasized demand-side considerations involved in the provision of legal services. These demand- side considerations will help to predict the competencies and expanded skill sets CLOs will need to navigate the challenging contemporary business environment. Part I of this Essay discusses CLOs’ sophisticated purchasing competencies. It explores how CLOs have revolutionized legal service provision by addressing problems stemming from information asymmetries between the client corporation and external legal service providers. Part II examines how the …
Getting In And Out Of The House: The Worlds Of In-House Counsel, Big Law, And Emerging Career Trajectories Of In-House Lawyers, Eli Wald
Fordham Law Review
The traditional story of in-house counsel is of a transformation and triumph over “Big Law” in a zero-sum game for power, prestige, and money. That story, however, is inaccurate descriptively, prescriptively, and normatively. Descriptively, in-house lawyers were part of the legal elite dominating corporate counseling before large law firms first rose to power and prominence. In-house counsel then lost ground and the position of general counsel to Big Law lawyers between the 1940s and 1970s, only to mount an impressive comeback to elite status beginning in the 1970s. Yet the in-house comeback was not a simple power struggle with Big …
Faithless Electors: Keeping The Ties That Bind, Scott Eckl
Faithless Electors: Keeping The Ties That Bind, Scott Eckl
Fordham Law Review
Every four years, the United States chooses a president and vice president. Millions of Americans exercise the right to vote, believing that they are voting for the candidates of their choice. In actuality, 538 relatively unknown party insiders known as electors officially choose the president a month later in fifty-one obscure meetings. Most of the time, these electors mirror the popular votes. However, whether these electors are required to do so and whether the states can enforce laws requiring them to do so are open questions. The Tenth Circuit recently declared statutes that bind electors unconstitutional. A few months before …
State Courts, The Right To Vote, And The Democracy Canon, Rebecca Guthrie
State Courts, The Right To Vote, And The Democracy Canon, Rebecca Guthrie
Fordham Law Review
Entire elections can be determined by the way a state judge chooses to interpret an election statute. And yet, there has been little scholarly attention on how judges construe statutes regulating elections at the state level. This Note begins to redress that lack of attention by undertaking an in-depth analysis of one interpretive tool historically invoked by state courts. The “Democracy Canon” is a substantive canon urging courts to liberally construe election statutes in favor of voter enfranchisement. By conducting a review of both historical and modern references to the Democracy Canon by state courts, this Note argues that courts …
Judicial Ethics In The #Metoo World, Renee Knake Jefferson
Judicial Ethics In The #Metoo World, Renee Knake Jefferson
Fordham Law Review
This Article examines the judicial role in professional ethics regulation through the lens of the judiciary’s own self-governance on sexual misconduct. The #MeToo movement exposed the long-enduring silence of the courts. Headlines featured judges like Alex Kozinski, who retired from the Ninth Circuit in 2018 after numerous former clerks went to the media with credible allegations of sexual misconduct. In 2019, at the instruction of Chief Justice Roberts, the federal judiciary amended the Code of Conduct for United States Judges to make clear that misconduct includes unwanted, offensive, or abusive sexual conduct and to include protections for those who report …
Chief Justice Roberts's Hard Look Review, Nikol Oydanich
Chief Justice Roberts's Hard Look Review, Nikol Oydanich
Fordham Law Review
The U.S. Supreme Court’s 1983 decision in Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co. announced a framework for judicial review of agency actions that are challenged as arbitrary and capricious. The decision, however, left two significant questions unresolved: How much political influence in agency decisionmaking is too much to fail judicial review? And may a reviewing court scrutinize the agency’s substantive policy choice or not? This Note argues that Department of Commerce v. New York and Department of Homeland Security v. Regents of the University of California—the Court’s most recent applications of State Farm—settle …
A Crack In The Armor?: How The Reforms To The New York State Human Rights Law May Expose Weaknesses In Civil Rape Shield Laws, Candace Mashel
A Crack In The Armor?: How The Reforms To The New York State Human Rights Law May Expose Weaknesses In Civil Rape Shield Laws, Candace Mashel
Fordham Law Review
Civil rape shield laws exist to protect victims of sexual misconduct from unwarranted intrusions into their private lives as they litigate their claims. Gaps in current federal and New York State civil rape shield laws, however, mean that victims of sexual misconduct still experience significant privacy intrusions during litigation. These intrusions may have the effect of deterring victims from coming forward. Part of the reason that these gaps exist, however, is to ensure that defendants are given a fair opportunity to assert defenses. In 2019, New York revised the New York State Human Rights Law to make it easier for …
Is There A Right To Tweet At Your President?, Nick Reade
Is There A Right To Tweet At Your President?, Nick Reade
Fordham Law Review
The U.S. Supreme Court has developed the public forum doctrine to protect the First Amendment rights of speakers in places of assembly and expression. The doctrine facilitates free expression by restricting the government’s ability to discriminate against or regulate speech in state- controlled public forums. In 2019, two federal courts of appeals extended the doctrine to protect speakers who express themselves in the interactive spaces that elected politicians control on their personal social media accounts. In Davison v. Randall, the Fourth Circuit held that a local official’s Facebook page was a public forum and, therefore, the official could neither …
Reasoned Decision-Making For Ethics Regulation, John S. Dzienkowski, John M. Golden
Reasoned Decision-Making For Ethics Regulation, John S. Dzienkowski, John M. Golden
Fordham Law Review
Many lawyers and scholars have criticized the ethics rules developed by the organized legal profession to regulate the practice of law. Complaints about processes for generating new ethics rules and ethics opinions interpreting ethics rules commonly reflect concerns about failures to engage in reasoned decision-making. Rationales for the proposed rules or the opinions proffered by bar associations, courts, or agencies are often incomplete or inadequately supported, and one must imagine that the quality of resulting rules or their interpretations often suffers. We argue that administrative law provides a model for how courts can address such concerns—a model that courts, both …
The Flsa's Bristol-Myers Squibb Problem, Adam Drake
The Flsa's Bristol-Myers Squibb Problem, Adam Drake
Fordham Law Review
Three years after Bristol-Myers Squibb Co. v. Superior Court, in which the U.S. Supreme Court held that a California state court lacked personal jurisdiction over the claims of out-of-state plaintiffs, the ultimate scope of the holding remains unclear. Having reasoned that permitting jurisdiction over out-of-state plaintiffs’ claims would infringe on the sovereignty of those plaintiffs’ home states, the Court left open the question whether its holding applies to out-of-state plaintiffs in federal causes of action. Predictably, defendants have subsequently argued that the Court’s decision in Bristol-Myers Squibb applies to federal causes of action and bars federal courts from exerting …
Breaking Bivens?: Falsification Claims After Ziglar V. Abassi And Reframing The Modern Bivens Doctrine, Alex Langsam
Breaking Bivens?: Falsification Claims After Ziglar V. Abassi And Reframing The Modern Bivens Doctrine, Alex Langsam
Fordham Law Review
The U.S. Supreme Court’s 2017 decision in Ziglar v. Abassi purported to clarify the role of the judiciary in inferring Bivens suits directly from the Constitution, rather than a federal statute. Despite this effort, uncertainty has plagued the lower courts. While the Court’s recent Bivens jurisprudence has focused on issues concerning national security, uncertainty also persists in Bivens claims in other domains. This Note examines Bivens claims seeking damages for constitutional violations by law enforcement agents who falsify evidence, lie to procure a search warrant, and commit other similar acts of misconduct. After recognizing a broad, unacknowledged circuit split on …
Casting Light On The Shade: Using Securities Laws To Draw New Contours In Art Investment Regulation, Emma Snover
Casting Light On The Shade: Using Securities Laws To Draw New Contours In Art Investment Regulation, Emma Snover
Fordham Law Review
The disparate treatment of art investments under the Internal Revenue Code and the Securities Exchange Act of 1934 poses a problem. This disparity generates inequities among art investors and between art investors and investors in traditional securities markets. The Internal Revenue Code considers both art and traditional securities to be capital assets with no material distinction. For example, prior to the 2017 tax act, art investors could defer the realization of capital gains through like-kind exchanges of works of art under section 1031 of the Internal Revenue Code. Currently, under section 1400Z-2, an addition to the Internal Revenue Code through …
The Race To The Top To Reduce Prosecutorial Misconduct, Adam M. Gershowitz
The Race To The Top To Reduce Prosecutorial Misconduct, Adam M. Gershowitz
Fordham Law Review
This Essay offers an unconventional approach to detering prosecutorial misconduct. Trial judges should use their inherent authority to forbid prosecutors from appearing and handling cases in their courtrooms until the prosecutors have completed training on Brady v. Maryland, Batson v. Kentucky, and other types of prosecutorial misconduct. If a single trial judge in a medium-sized or large jurisdiction imposes training prerequisites on prosecutors, it could set off a race to the top that encourages other judges to adopt similar (or perhaps even more rigorous) training requirements. A mandate that prosecutors receive ethics training before handling any cases is comparable to …
State Court Diversity And Attorney Discipline, Nancy Leong
State Court Diversity And Attorney Discipline, Nancy Leong
Fordham Law Review
State supreme courts are the ultimate arbiters of attorney behavior for members of the state bar. While state supreme courts generally oversee an office of attorney regulation that handles the intake, investigation, and some adjudication of disciplinary complaints, each state supreme court is potentially the final decision maker regarding possible sanctions for attorney behavior. In many states, however, the state supreme court bar is substantially less diverse along lines of race and gender than the state bar it regulates
Judges' Ethical Duties To Ensure Fair Treatment Of Indigent Parties, Tom Lininger
Judges' Ethical Duties To Ensure Fair Treatment Of Indigent Parties, Tom Lininger
Fordham Law Review
In this Essay, I will argue that the American Bar Association (ABA) Model Code of Judicial Conduct (“the Model Code”) should more squarely address the challenges faced by low-income litigants. Amendments should make clear that judges have a duty to ensure the fair treatment of the indigent in the U.S. legal system.
Playing By The Rule: How Aba Model Rule 8.4(G) Can Regulate Jury Exclusion, Anna Offit
Playing By The Rule: How Aba Model Rule 8.4(G) Can Regulate Jury Exclusion, Anna Offit
Fordham Law Review
Discrimination during voir dire remains a critical impediment to empaneling juries that reflect the diversity of the United States. While various solutions have been proposed, scholars have largely overlooked ethics rules as an instrument for preventing discriminatory behavior during jury selection. Focusing on American Bar Association Model Rule of Professional Conduct 8.4(g), which regulates professional misconduct, this Article argues that ethics rules may, under certain conditions, deter the exclusionary practices of legal actors. Part I examines the specific history, evolution, and application of revised Model Rule 8.4(g). Part II delves into the ways that ethics rules in general, despite their …
Evidence-Based Promulgation: The Rulemaking Process For Rules Of Professional Conduct, Emily S. Taylor Poppe
Evidence-Based Promulgation: The Rulemaking Process For Rules Of Professional Conduct, Emily S. Taylor Poppe
Fordham Law Review
This Article proceeds in three parts. Part I considers variation in the rule promulgation process across the states. Part II identifies ways in which the promulgation process might be reformed on the basis of empirical evidence. Part III considers the potential benefits and limitations to this approach and is followed by a brief conclusion
How Should We License Lawyers?, Cassandra Burke Robertson
How Should We License Lawyers?, Cassandra Burke Robertson
Fordham Law Review
What would a licensing regime designed around client protection look like? This Article proposes that it would include a narrower but more active judicial role. A one-size-fits-all exam would no longer control entry into the profession. The state judiciary would not be the gatekeeper for the entire legal profession; instead, its licensing role would focus on those attorneys who represent individual clients in court and those who manage client funds. But for this subset of lawyers, state judges should take a larger and more active role in overseeing the transition from student to advocate and should require greater practice readiness …
(In)Formal Marriage Equality, Michael J. Higdon
(In)Formal Marriage Equality, Michael J. Higdon
Fordham Law Review
In 2015, same-sex couples throughout the United States obtained formal marriage equality. But is the prospective ability to obtain marriage licenses sufficient to achieve Obergefell v. Hodges’s promise of equality? What about individuals whose same-sex relationship did not survive—either through death or dissolution—to see marriage equality become the law of the land? Or those couples who did ultimately wed but now have a marriage that appears to be artificially short when considering just how long the couple has actually been together in a marriage-like relationship? With marriage benefits conditioned not only on the fact of marriage but also the length …
Small Town, Inc.: Mischief At The Margins Of Municipal Incorporation, Robert L. Bentlyewski
Small Town, Inc.: Mischief At The Margins Of Municipal Incorporation, Robert L. Bentlyewski
Fordham Law Review
When a state creates a municipality or alters the boundaries of an existing one, there usually is little to no opportunity for judicial review of the decision. Under the centuries-old rule of construction known as Dillon’s Rule, courts consider municipal boundary making to be strictly a political matter best left to state legislatures. This sweeping deference creates opportunities for special interests or politically powerful communities to segregate towns and schools, isolate vulnerable communities, or otherwise manipulate boundaries to hoard the benefits of local government. Courts will only intervene and deem an incorporation void if the action brazenly violates a constitutional …
Policing Procedural Errors In The Lower Criminal Courts, Justin Murray
Policing Procedural Errors In The Lower Criminal Courts, Justin Murray
Fordham Law Review
The criminal justice system depends on reviewing courts to formulate norms of procedural law and to make sure those norms are actually followed in the lower courts. Yet reviewing courts are not performing either of these functions very well. No single factor can fully explain why this is the case, for there is plenty of blame to go around. But the harmless error rule is a major culprit. The conventional approach to harmless error review prohibits reversal of a defendant’s conviction or sentence, even when the law was violated during proceedings in the lower court, unless that violation influenced the …
The Harms Of Racist Online Hate Speech In The Post-Covid Working World: Expanding Employee Protections, Tatiana Hyman
The Harms Of Racist Online Hate Speech In The Post-Covid Working World: Expanding Employee Protections, Tatiana Hyman
Fordham Law Review
In one year, the COVID-19 pandemic and egregious incidents of racial violence have created significant shifts in the United States’s workplace culture and social climate. Many employers are transitioning employees to long-term or permanent remote work, and conversations about racial justice are more pervasive and divisive, especially on social media. With people spending more time at home and on the internet, hate speech has increased and inspired global conversations about curtailing its harmful effects. Unlike many other countries, the United States does not penalize hate speech. Nevertheless, its harmful effects have reached the workplace, and employers have fired employees who …
Safeguarding The Free Exercise Of Religion During The Covid-19 Pandemic, Jiwoon Kong
Safeguarding The Free Exercise Of Religion During The Covid-19 Pandemic, Jiwoon Kong
Fordham Law Review
Religious worship is fundamentally rooted in physical and intimate interactions. For instance, the Bible calls on Christian congregations to physically gather, receive the Lord’s Supper, sing praises, and confess their sins directly before ordained ministers. However, as the highly contagious and airborne COVID-19 disease relentlessly swept across the nation, religious establishments balanced fundamental religious traditions with the inherent dangers of carrying out such traditions. Inevitably, the free exercise of religion faces an unprecedented challenge as governors continue to enact executive orders limiting in-person religious worship gatherings. The jurisprudence thus far has shown alarming inconsistency in the protection of free exercise …