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Full-Text Articles in Entire DC Network
Remarks, Jason Berman
Remarks, Lowell Beck
Remarks, Jessee Wegman
Substantive Due Process And A Comparison Of Approaches To Sexual Liberty, William Council
Substantive Due Process And A Comparison Of Approaches To Sexual Liberty, William Council
Fordham Law Review
Over 150 years ago, Congress passed and the states ratified the Fourteenth Amendment, banning states from passing or enforcing laws based on unconstitutional classifications and protecting persons in the United States from adjudication without due process. For over one hundred years, however, courts and commentators have been fighting over the Fourteenth Amendment’s Due Process Clause’s controversial protections of substantive rights. The U.S. Supreme Court has applied inconsistent methodologies to these substantive due process claims, attempting to walk a tightrope between the Court’s power to subjectively announce new rights as “fundamental” and the traditional role of the states’ plenary police powers. …
Natural Law Colloquium Legal Interpretation And Natural Law, Mark Greenberg
Natural Law Colloquium Legal Interpretation And Natural Law, Mark Greenberg
Fordham Law Review
No abstract provided.
Remarks, Ira Shapiro
Opening Pandora’S Jury Box, B. Samantha Helgason
Opening Pandora’S Jury Box, B. Samantha Helgason
Fordham Law Review
More than sixty years ago, the U.S. Supreme Court decided Remmer v. United States, thereby defining what procedural steps restore a defendant’s Sixth Amendment right to a fair trial in the face of a contaminated or partial jury. Remmer, a case replete with evidence of jury tampering and covert investigations, fashioned the remedy for future courts to redress allegations of jury taint. Upon making out a prima facie case, a defendant is entitled to an evidentiary hearing, at which the evidence is presumed to prejudice the defendant, and the government bears the burden of rebutting. In Remmer’s wake, however, the …
Healing A Fractured Preemption Doctrine: The Impact Of Merck Sharp & Dohme Corp. V. Albrecht On Impossibility Preemption Defenses, Elizabeth Marley
Healing A Fractured Preemption Doctrine: The Impact Of Merck Sharp & Dohme Corp. V. Albrecht On Impossibility Preemption Defenses, Elizabeth Marley
Fordham Law Review
Patient safety depends on tort litigation to identify a brand-name drug’s undisclosed risks, illuminate flaws in a drug’s design, and raise concerns that a drug requires further study before it is safe for patient use. However, since the U.S. Supreme Court’s landmark decision in Wyeth v. Levine, which permitted the plaintiff to move forward but recognized an in-principle impossibility preemption defense, drug manufacturers have shielded themselves from liability under a range of circumstances. Under this defense, federal law preempts state law tort actions against brand-name drug manufacturers in any court across the country. Yet, the scope of the impossibility preemption …
Remarks, Jon Soderstrom
Arbitration Archetypes For Enhancing Access To Justice, Jill I. Gross
Arbitration Archetypes For Enhancing Access To Justice, Jill I. Gross
Fordham Law Review
In the second half of the twentieth century, the use of arbitration proliferated in the United States as part of a greater alternative dispute resolution (ADR) movement, with the promise that using ADR processes would, among other things, enhance disputants’ access to justice. Arbitration offers disputing parties a process to resolve their dispute, which, at least in theory, is known for decreased cost, increased speed, party control, privacy, and finality. These characteristics generally enhance parties’ access to justice because, as compared to litigation, barriers to entry are lower, outcomes are delivered more quickly, substantive outcomes are more equitable, and parties …
Adr, Dynamic (In)Justice, And Achieving Access: A Foreclosure Crisis Case Study, Lydia Nussbaum
Adr, Dynamic (In)Justice, And Achieving Access: A Foreclosure Crisis Case Study, Lydia Nussbaum
Fordham Law Review
This Article proceeds in two parts. Part I argues for a dynamic, rather than fixed, conception of access to justice. It then explores how ADR processes, when placed in this dynamic framework, can create new forms of injustice and intensify preexisting ones. Part II presents a case study from the foreclosure crisis to illustrate how the features of ADR processes are especially well suited to respond to dynamic injustices. It further demonstrates how ADR design must evolve to respond to the dynamic system of (in)justice in which ADR processes operate.
The Cost Of Free Speech: Resolving The Wedding Vendor Divide, Victoria Cappucci
The Cost Of Free Speech: Resolving The Wedding Vendor Divide, Victoria Cappucci
Fordham Law Review
As marriage equality becomes fully realized in the United States, business proprietors increasingly refuse to service same-sex weddings on religious grounds. However, at the same time, state laws protect same-sex couples from discrimination in places open to the public. Such competing values have resulted in a line of “wedding vendor” cases. As the cases continue to proliferate, this Note examines when, and to what extent, the otherwise equally important values of free expression and equality should trump one another. This Note analyzes First Amendment compelled speech claims within the line of wedding vendor cases: specifically, whether wedding goods and services …
Are Two Minorities Equal To One?: Minority Coalition Groups And Section 2 Of The Voting Rights Act, Kevin Sette
Are Two Minorities Equal To One?: Minority Coalition Groups And Section 2 Of The Voting Rights Act, Kevin Sette
Fordham Law Review
Following Jim Crow, vote dilution is the second-generation barrier standing between minority voters and the polls. Section 2 of the Voting Rights Act of 1965 (VRA) protects racial and language minorities from these vote dilution practices. To sustain a section 2 claim, a protected “class of citizens” must satisfy the criteria laid out by the U.S. Supreme Court in Thornburg v. Gingles. First, the class must constitute the majority of a hypothetical single-member voting district. Second, the class must be politically cohesive. Third, the minority class’s preferred candidate must be defeated by a white majority voting bloc. What the …
Arbitrarily Selecting Black Arbitrators, Michael Z. Green
Arbitrarily Selecting Black Arbitrators, Michael Z. Green
Fordham Law Review
Calls for increased diversity among arbitrators have surged with the growth of the employer movement, so-called mandatory arbitration, which requires employees to agree to arbitrate employment discrimination matters as a condition of employment. Despite good-faith efforts by neutral service providers, civil rights organizations, bar associations, and employer and employee groups to identify and address the need for more diverse arbitrators in mandatory arbitration, many commentators still lament that this diversity problem reflects negatively on access to justice. With the #MeToo movement’s focus in recent years on the lack of a public and transparent resolution for sexual harassment matters, as well …
To “Otherwise Make Unavailable”: Tenant Screening Companies’ Liability Under The Fair Housing Act’S Disparate Impact Theory, Shivangi Bhatia
To “Otherwise Make Unavailable”: Tenant Screening Companies’ Liability Under The Fair Housing Act’S Disparate Impact Theory, Shivangi Bhatia
Fordham Law Review
Tenant screening companies present information to housing providers on prospective tenants’ criminal and eviction histories in the form of background screening reports. These screening reports disproportionately impact racial and gender minorities. Two opposing views exist on whether courts should interpret the Fair Housing Act to cover the discriminatory practices and policies of tenant screening companies. Some believe that background screening reports are a vital part of the housing industry, while others criticize them for their inaccurate, misleading, and discriminatory nature. This Note proposes that, moving forward, courts should interpret § 3604(a) and § 3604(b) of the Fair Housing Act to …
American Diversity In International Arbitration: A New Arbitration Story Or Evidence Of Things Not Seen, Benjamin G. Davis
American Diversity In International Arbitration: A New Arbitration Story Or Evidence Of Things Not Seen, Benjamin G. Davis
Fordham Law Review
This Essay suggests that the unseen presence of blacks and other underrepresented groups (such as women, minorities, LGBTQ individuals, and persons with disabilities) in the shadows of the development of international arbitration law in the United States helps us to see that diversity, while unrecognized, has been inherent in American international arbitration for hundreds of years.
Access To Justice And Dispute Resolution Across Cultures, Sukhsimranjit Singh
Access To Justice And Dispute Resolution Across Cultures, Sukhsimranjit Singh
Fordham Law Review
There is a saying in the United States: the justice one receives is the justice one can afford. All too often, this saying proves true for both lower- and middle-class individuals. For the greatly impoverished, the access to justice crisis is twofold: part of the problem is knowing when to seek legal help and another is ensuring adequate delivery of legal assistance on request. Middle- class individuals face a different challenge, as they surpass the income threshold for free civil public legal aid but cannot afford the rising costs of conventional litigation. The problem persists across different cultures. This Article …
How Mediation Contributes To The “Justice Gap” And Possible Technological Fixes, Ellen Waldman
How Mediation Contributes To The “Justice Gap” And Possible Technological Fixes, Ellen Waldman
Fordham Law Review
This Essay’s basic premise is that mediation, as it currently is presented to pro se parties in the lower courts, risks significant depredations of justice. This risk flows directly from the ethics rules that either discourage or outright forbid mediators from providing disputants with exactly the information they need to make informed judgments as they bargain over housing, time with children, and scarce financial resources.
Convictions As Guilt, Anna Roberts
Convictions As Guilt, Anna Roberts
Fordham Law Review
A curious tension exists in scholarly discourse about the criminal legal system. On the one hand, a copious body of work exposes a variety of facets of the system that jeopardize the reliability of convictions. These include factors whose influence is pervasive: the predominance of plea bargaining, for example, and the subordination of the defense. On the other hand, scholars often discuss people who have criminal convictions in a way that appears to assume crime commission. This apparent assumption obscures crucial failings of the system, muddies the role of academia, and, given the unequal distribution of criminal convictions, risks compounding …
Disaggregating The Two Prongs Of Article 13(B) Of The Hague Convention To Cover Unsafe And Unstable Situations, Lauren Cleary
Disaggregating The Two Prongs Of Article 13(B) Of The Hague Convention To Cover Unsafe And Unstable Situations, Lauren Cleary
Fordham Law Review
The Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”) is a treaty designed to coordinate a uniform response to international child abductions. It establishes a civil remedy for a left-behind parent seeking the return of his or her child after the child has been wrongfully removed to or retained in another state that is also a party to the Convention. The Convention requires the courts of a signatory state to order the prompt return of a wrongfully removed or retained child to his or her state of habitual residence unless the responding party can prove that …
A Unitary Theory Of Strict Deference, Zach Huffman
A Unitary Theory Of Strict Deference, Zach Huffman
Fordham Law Review
Agencies can interpret ambiguous statutes and regulations due to their expertise in executing complex regulatory schemes and the presumption that, for certain issues, Congress prefers agencies, not courts, to retain such power. This proposition is commonly referred to as agency deference. A recent U.S. Supreme Court case, Kisor v. Wilkie, challenged a core principle of agency deference called Auer deference, which allows agencies to interpret ambiguous regulations so long as the agency’s interpretation of the regulation is not plainly erroneous or inconsistent with the regulation as a whole. While the justices vigorously debated whether Auer v. Robbins should have …
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?”
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 …
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 …
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 …
Foreword: Corporate Lawyers: Ethical And Practical Lawyering With Vanishing Gatekeeper Liability, Marc I. Steinberg
Foreword: Corporate Lawyers: Ethical And Practical Lawyering With Vanishing Gatekeeper Liability, Marc I. Steinberg
Fordham Law Review
As the articles in this Colloquium illustrate, the role of the corporate lawyer—both as in-house and outside counsel—is instrumental in effectuating ethical lawyering, sound corporate governance practices, and law compliance. These timely contributions that are summarized at a later point in this Article comprise a valuable resource to assess the functions, obligations, and perceptions of the corporate attorney, as well as the public policy ramifications of counsel’s conduct.
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 …
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 …
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 …