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Monopolizing Free Speech, Gregory Day
Monopolizing Free Speech, Gregory Day
Fordham Law Review
The First Amendment prevents the government from suppressing speech, though individuals can ban, chill, or abridge free expression without offending the Constitution. Hardly an unintended consequence, Justice Oliver Wendell Holmes famously likened free speech to a marketplace where the responsibility of rejecting dangerous, repugnant, or worthless speech lies with the people. This supposedly maximizes social welfare on the theory that the market promotes good ideas and condemns bad ones better than the state can. Nevertheless, there is a concern that large technology corporations exercise unreasonable power in the marketplace of ideas. Because “big tech’s” ability to abridge speech lacks constitutional …
Pro Se, No Say?: The Impact Of Presumptive Mediation In The New York State Court System On Self-Represented Litigants, Sarah Konnerth
Pro Se, No Say?: The Impact Of Presumptive Mediation In The New York State Court System On Self-Represented Litigants, Sarah Konnerth
Fordham Law Review
In May 2019, the New York State Unified Court System announced its plan to refer all civil cases to various forms of alternative dispute resolution at the earliest stage of litigation. The presumptive alternative dispute resolution initiative aims to decrease costs associated with litigation, improve case outcomes, and reduce case delays. In the context of mediation, litigants, both represented and self-represented, may be seated across from each other at a table to discuss their disputes with the assistance of a neutral third party. This Note examines mediation and discusses the policy implications of a presumptive mechanism for pro se parties. …
A Public Concern: Protecting Whistleblowers Under The First Amendment, Steven Still
A Public Concern: Protecting Whistleblowers Under The First Amendment, Steven Still
Fordham Law Review
The United States has just witnessed an impeachment debate which may have far-reaching ramifications for our democratic institutions. These hostilities began with an anonymous whistleblower complaint from a government employee, disclosing what he or she believed were illegal activities directed by President Donald J. Trump. Ever since, discussion of whistleblowers has taken on greater salience in the news cycle. Today, there are a number of whistleblower statutes that protect employees who disclose knowledge of their employer’s illicit activities from workplace retaliation. Although whistleblowing is not unique to government workers, these individuals have an added layer of protection afforded to them …
Colloquium: The Judicial Role In Professional Regulation: Foreword, Bruce A. Green
Colloquium: The Judicial Role In Professional Regulation: Foreword, Bruce A. Green
Fordham Law Review
In his confirmation hearings, Chief Justice Roberts analogized judges to baseball umpires who only call balls and strikes.1 That is a questionable analogy in general, given that judges’ oversight of court proceedings goes beyond applying the law. But most especially, it is belied by judges’ role in regulating law practice, including judicial practice. With respect to lawyers, judges not only apply the law but make and enforce it. The eleven pieces in this collection, briefly introduced here, reflect the breadth of courts’ authority
Toward National Criminal Bar Admission In U.S. District Courts, Gabriel J. Chin
Toward National Criminal Bar Admission In U.S. District Courts, Gabriel J. Chin
Fordham Law Review
In the extensive litigation over bar admission in federal district courts, courts have upheld state bar membership requirements. Nevertheless, the changes to legal practice flowing from the COVID-19 pandemic—the disconnection between workplace and residence, the ability to meet and to hold court proceedings by video, and the unjustifiability of charging clients time and travel for brief, perfunctory in-person meetings and conferences that could be handled effectively and expeditiously online—will make these questions ever more serious
Access To Algorithms, Hannah Bloch-Wehba
Access To Algorithms, Hannah Bloch-Wehba
Fordham Law Review
Federal, state, and local governments increasingly depend on automated systems—often procured from the private sector—to make key decisions about civil rights and liberties. When individuals affected by these decisions seek access to information about the algorithmic methodologies that produced them, governments frequently assert that this information is proprietary and cannot be disclosed. Recognizing that opaque algorithmic governance poses a threat to civil rights and liberties, scholars have called for a renewed focus on transparency and accountability for automated decision-making. But scholars have neglected a critical avenue for promoting public accountability and transparency for automated decision-making: the law of access to …
Withdrawing From Congressional-Executive Agreements With The Advice And Consent Of Congress, Abigail L. Sia
Withdrawing From Congressional-Executive Agreements With The Advice And Consent Of Congress, Abigail L. Sia
Fordham Law Review
As President Donald J. Trump withdrew the United States from one international agreement after another, many began to question whether these withdrawals required congressional approval. The answer may depend on the type of agreement. Based on history and custom, it appears that the president may unilaterally withdraw from agreements concluded pursuant to the treaty process outlined in the U.S. Constitution. However, the United States also has a long history of concluding international agreements as congressional-executive agreements, which use a different approval process that does not appear in the Constitution. But while academics have spilled ink on Article II treaties for …
Restorative Justice From Prosecutors’ Perspective, Bruce A. Green, Lara Bazelon
Restorative Justice From Prosecutors’ Perspective, Bruce A. Green, Lara Bazelon
Fordham Law Review
Restorative justice processes have been promoted as an alternative to criminal adjudication for many years outside the United States and, in recent years, in the United States as well. In the United States, restorative justice processes are used in some jurisdictions in cases involving juvenile offenders or low-level, nonviolent offenses by adults, but they have rarely been used in cases of adult felony offenders charged with serious violent crimes. Whether restorative justice processes will be used more broadly depends largely on whether prosecutors become receptive to their use. A handful of newly elected “progressive prosecutors” have expressed interest in applying …
Reassessing Self-Dealing: Between No Conflict And Fairness, Andrew F. Tuch
Reassessing Self-Dealing: Between No Conflict And Fairness, Andrew F. Tuch
Fordham Law Review
Scholars have long disagreed on which of two rules is more effective when a fiduciary engages in self-dealing. Some defend the “strict” no-conflict rule, which categorically bans self-dealing. Others prefer the “flexible” and “pragmatic” fairness rule, which allows self-dealing if it is fair to beneficiaries. The centrality of this debate cannot be overstated: corporate law as a field is fundamentally concerned with self-dealing by fiduciaries. Yet a lack of firm data means that this debate has dragged on for decades, with no end in sight. This Article makes a simple but powerful point: the entire debate is somewhat misguided because, …
Public Nuisance Claims After Conagra, Steven Czak
Public Nuisance Claims After Conagra, Steven Czak
Fordham Law Review
This Note examines the continuing harms of lead-based paint and attempts by cities and states to hold manufacturers and distributors liable for abatement under the public nuisance doctrine. Such suits have stretched traditional conceptions of public nuisance, particularly on the threshold issue of whether pervasive lead paint in residences infringes on a common right held by the public. This Note reviews the major lead paint public nuisance cases from across the country. The plaintiffs were unsuccessful in each case for a variety of reasons until ten California counties prevailed in People v. ConAgra in November 2017. While subsequently reduced by …
Pornographic Deepfakes: The Case For Federal Criminalization Of Revenge Porn’S Next Tragic Act, Rebecca A. Delfino
Pornographic Deepfakes: The Case For Federal Criminalization Of Revenge Porn’S Next Tragic Act, Rebecca A. Delfino
Fordham Law Review
This could happen to you. Like millions of people worldwide, you have uploaded digital photographs of yourself to the internet through social media platforms. Your pictures aren’t sexually explicit or revealing—they depict your daily life, spending time with friends or taking “selfies” on vacation. But then someone decides they don’t like you. Using an app available on any smartphone, this antagonist clips digital images of your face from your innocuous pictures and pastes them seamlessly onto the body of a person engaged in sexually explicit acts. Without your knowledge or consent, you become the “star” of a realistic, pornographic “deepfake.” …
“Armed And Dangerous” A Half Century Later: Today’S Gun Rights Should Impact Terry’S Framework, Alexander Butwin
“Armed And Dangerous” A Half Century Later: Today’S Gun Rights Should Impact Terry’S Framework, Alexander Butwin
Fordham Law Review
Over fifty years ago, in Terry v. Ohio, the U.S. Supreme Court established a two-part framework in which police officers may, without a warrant, stop and search an individual for weapons without violating the Fourth Amendment’s protections against unreasonable searches and seizures. Officers must (1) suspect that criminal activity has occurred, or will soon occur, and (2) have a reasonable fear that the individual is “armed” and poses a threat to the responding officers or to others—i.e., “dangerous.” The second prong’s exact meaning is disputed and has created a split among the circuits as to whether merely being “armed” …
How To Explain To Your Twins Why Only One Can Be American: The Right To Citizenship Of Children Born To Same-Sex Couples Through Assisted Reproductive Technology, Lena K. Bruce
Fordham Law Review
Sections 301 and 309 of the Immigration and Nationality Act (INA) govern birthright citizenship by descent. Per the U.S. Department of State’s (DOS) interpretation of these sections, to transmit citizenship to a child, the U.S. citizen-parent must have a biological connection with the child. For couples who use assisted reproductive technology (ART) to have children, however, this means that one parent will always be barred from transmitting citizenship to their own child. This is because in ART families, at least one parent will always lack the biological connection that the DOS requires to transmit citizenship pursuant to the INA. This …
Reframing The Punishment Test Through Modern Sex Offender Legislation, Jane Ramage
Reframing The Punishment Test Through Modern Sex Offender Legislation, Jane Ramage
Fordham Law Review
Modern sex offender registration and notification laws blur the distinction between criminal and civil law. Despite being labeled as civil regulatory schemes, these laws impose severe burdens on personal liberty—burdens that we tend to associate with criminal punishment. In 2003, the U.S. Supreme Court determined that at least one sex offender registration and notification program functioned as a civil remedy rather than a criminal sanction. In upholding the Alaska Sex Offender Registration Act, the Supreme Court held that the burdens imposed by the statute did not impose additional punishment on registered sex offenders and thus did not trigger the constitutional …
The Role Of “Coordinating Discovery Attorneys” In Multidefendant Federal Criminal Cases, Hannah Silverman
The Role Of “Coordinating Discovery Attorneys” In Multidefendant Federal Criminal Cases, Hannah Silverman
Fordham Law Review
The twenty-first century’s technological revolution has shifted the practice of law, including litigation, from being primarily paper-based to paperless. To manage the increasingly complex organization and review of evidence in civil and criminal cases, attorneys outsource legal tasks, work on teams, and use discovery coordinators. This Note examines the development of court-appointed coordinating discovery attorneys and their role in multidefendant federal criminal trials involving voluminous discovery. With a background in criminal defense and electronic discovery, these lawyers provide hands-on assistance as a way to cut costs, help overburdened and underfunded defense counsel, and improve representation of criminal defendants. In 2014, …
Urbanism Under Google: Lessons From Sidewalk Toronto, Ellen P. Goodman, Julia Powles
Urbanism Under Google: Lessons From Sidewalk Toronto, Ellen P. Goodman, Julia Powles
Fordham Law Review
Cities around the world are rapidly adopting digital technologies, data analytics, and the trappings of “smart” infrastructure. These innovations are touted as solutions to help rationalize services and address rising urban challenges, whether in housing, transit, energy, law enforcement, health care, waste management, or population flow. Promises of urban innovation unite cities’ need for help with technology firms’ need for markets and are rarely subject to evidentiary burdens about projected benefits (let alone costs). For the city, being smart is about functioning better and attracting tech plaudits. For the technology company, the smart city is a way to capture the …
Artificial Intelligence, Machine Learning, And Bias In Finance: Toward Responsible Innovation, Kristin Johnson, Frank Pasquale, Jennifer Chapman
Artificial Intelligence, Machine Learning, And Bias In Finance: Toward Responsible Innovation, Kristin Johnson, Frank Pasquale, Jennifer Chapman
Fordham Law Review
According to some futurists, financial markets’ automation will substitute increasingly sophisticated, objective, analytical, model-based assessments of, for example, a borrower’s creditworthiness for direct human evaluations irrevocably tainted by bias and subject to the cognitive limits of the human brain. However, even if they do occur, such advances may violate other legal principles.
Liability For Ai Decision-Making: Some Legal And Ethical Considerations, Iria Giuffrida
Liability For Ai Decision-Making: Some Legal And Ethical Considerations, Iria Giuffrida
Fordham Law Review
The creation and commercialization of these systems raise the question of how liability risks will play out in real life. However, as technical advancements have outpaced legal actions, it is unclear how the law will treat AI systems. This Article briefly addresses the legal ramifications and liability risks associated with reliance on—or delegation to—AI systems, and it sketches a framework suggesting how we can address the question of whether AI merits a new approach to deal with the liability challenges it raises when humans remain “in” or “on” the loop.
Robot, Inc.: Personhood For Autonomous Systems?, Gerhard Wagner
Robot, Inc.: Personhood For Autonomous Systems?, Gerhard Wagner
Fordham Law Review
Since the invention of the steam engine, technological progress has served as a driver of innovation for liability systems. Pertinent examples include the arrival of the railway and the introduction of motor-powered vehicles. Today, the digital revolution challenges established legal axioms more fundamentally than technological innovations from earlier times. The development of robots and other digital agents operating with the help of artificial intelligence will transform many, if not all, product markets. It will also blur the distinction between goods and services and call into question the existing allocation of responsibility between manufacturers and suppliers on one side and owners, …
Power, Process, And Automated Decision-Making, Ari Ezra Waldman
Power, Process, And Automated Decision-Making, Ari Ezra Waldman
Fordham Law Review
Automated decision-making systems based on “big data”–powered algorithms and machine learning are just as prone to mistakes, biases, and arbitrariness as their human counterparts. The result is a technologically driven decision-making process that seems to defy interrogation, analysis, and accountability and, therefore, undermines due process.
The Due Process And Other Constitutional Rights Of Foreign Nations, Ingrid Wuerth
The Due Process And Other Constitutional Rights Of Foreign Nations, Ingrid Wuerth
Fordham Law Review
The rights of foreign states under the U.S. Constitution are becoming more important as the actions of foreign states and foreign state-owned enterprises expand in scope and the legislative protections to which they are entitled contract. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation of powers nor by due process. As a matter of policy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals but to deny categorically such protections to foreign states. Careful analysis shows that the conventional …
Milkovich, #Metoo, And “Liars”: Defamation Law And The Fact-Opinion Distinction, Pooja Bhaskar
Milkovich, #Metoo, And “Liars”: Defamation Law And The Fact-Opinion Distinction, Pooja Bhaskar
Fordham Law Review
Since the start of the #MeToo movement, sexual assault survivors have increasingly turned defamation law against their alleged assaulters. In these #MeToo defamation cases, an alleged victim publicly claims that another person, usually someone of considerable wealth and fame, sexually assaulted them. The alleged assaulter then calls their accuser a liar, causing their accuser to sue their alleged assaulter for defamation. These cases have consistently raised an element of the defamation analysis that has long challenged courts: distinguishing between statements of actionable “fact” and nonactionable “opinion.” #MeToo defamation cases raise the question of whether an alleged assaulter’s claim that their …
A “Justified Need” For The Constitutionality Of “Good Cause” Concealed Carry Provisions, Andrew Kim
A “Justified Need” For The Constitutionality Of “Good Cause” Concealed Carry Provisions, Andrew Kim
Fordham Law Review
The U.S. Supreme Court’s landmark decision in District of Columbia v. Heller held that the prohibition of handguns in the home was unconstitutional and the Court extended this holding to the states through the Fourteenth Amendment in McDonald v. City of Chicago. Through these cases, the Court clarified that the core of the Second Amendment was self-defense. However, it did not specify the scope of this self-defense “core” and left the lower courts with room for interpretation—for example, it is unclear whether and to what extent the Second Amendment applies to the public space. Furthermore, the Supreme Court did …
See No Evil, Hear No Evil: Applying The Sight And Sound Separation Protection To All Youths Who Are Tried As Adults In The Criminal Justice System, Lauren Knoke
Fordham Law Review
American law treats youths within the criminal justice system with contrasting impulses. In some cases, the law deems youths worthy of special protections and places them within the juvenile justice system. In other situations, however, it views youths as posing distinct dangers and funnels them into justice systems designed for adults. So long as youths remain under the jurisdiction of the juvenile justice system, they are afforded the protections of the Juvenile Justice and Delinquency Prevention Act (JJDPA). One of the JJDPA’s core protections, sight and sound separation, aims to prevent youths from having any visual or spoken exchanges with …
Intellectual Property Law And The Right To Repair, Leah Chan Grinvald, Ofer Tur-Sinai
Intellectual Property Law And The Right To Repair, Leah Chan Grinvald, Ofer Tur-Sinai
Fordham Law Review
This Article posits that intellectual property law should accommodate consumers’ right to repair their products. In recent years, there has been a growing push towards state legislation that would provide consumers with a “right to repair” their products. Currently, twenty states have pending legislation that would require product manufacturers to make available replacement parts and repair manuals. Unfortunately, though, this legislation has stalled in many of the states. Manufacturers have been lobbying the legislatures to stop the enactment of these repair laws based on different concerns, including how these laws may impinge on their intellectual property rights. Indeed, a right …
Marshall As A Judge, Robert Post
Marshall As A Judge, Robert Post
Fordham Law Review
Marshall is a towering and inspirational figure in the history of American constitutional law. He changed American life forever and unquestionably for the better. But the contemporary significance of Marshall’s legacy is also, in ways that challenge present practices and beliefs, ambiguous.
Lawmakers As Job Buyers, Edward W. De Barbieri
Lawmakers As Job Buyers, Edward W. De Barbieri
Fordham Law Review
In 2013, Washington State authorized the largest state tax incentive for private industry in U.S. history. It is not remarkable for a state legislature to use tax benefits to retain a major employer—in this case, the global aerospace manufacturer Boeing. Laws across all states and thousands of cities routinely incentivize companies such as Amazon to relocate or remain in particular areas. Notably, however, Washington did not recover any of the subsidies it authorized despite Boeing’s significant post-incentive workforce reductions. This story leads to several important questions: (1) How effective are state and local legislatures at influencing business-location decisions?; (2) Do …
Regulating Habit-Forming Technology, Kyle Langvardt
Regulating Habit-Forming Technology, Kyle Langvardt
Fordham Law Review
Tech developers, like slot machine designers, strive to maximize the user’s “time on device.” They do so by designing habit-forming products— products that draw consciously on the same behavioral design strategies that the casino industry pioneered. The predictable result is that most tech users spend more time on device than they would like, about five hours of phone time a day, while a substantial minority develop life-changing behavioral problems similar to problem gambling. Other countries have begun to regulate habit-forming tech, and American jurisdictions may soon follow suit. Several state legislatures today are considering bills to regulate “loot boxes,” a …
Third-Party Bankruptcy Releases: An Analysis Of Consent Through The Lenses Of Due Process And Contract Law, Dorothy Coco
Third-Party Bankruptcy Releases: An Analysis Of Consent Through The Lenses Of Due Process And Contract Law, Dorothy Coco
Fordham Law Review
Bankruptcy courts disagree on the use of third-party releases in Chapter 11 bankruptcy plans, the different factors that circuit courts consider when deciding whether to approve a third-party release, and the impact of the various consent definitions on whether a release is or should be binding on the creditor. Affirmative consent, “deemed consent,” and silence are important elements in this discussion. Both contract law and due process provide lenses to evaluate consent definitions to determine whether nondebtor third-party releases should bind certain creditor groups. This Note proposes a solution that follows an affirmative consent approach to protect against due process …
Breaking Up The Focus On Relationships For Nonpecuniary Insider Trading Personal Benefits, Bradley Larkin
Breaking Up The Focus On Relationships For Nonpecuniary Insider Trading Personal Benefits, Bradley Larkin
Fordham Law Review
In 1983, the U.S. Supreme Court adopted the “personal benefit” requirement as an objective test for insider trading to help determine when confidential information is tipped for an improper purpose. Under this test, a tipper acts improperly by receiving a personal benefit for sharing confidential, nonpublic information, even if the tipper does not trade using the information. For instance, when a tipper leaks confidential information to a trading friend or relative, the tipper benefits personally because this amounts to trading on the confidential information and then gifting the profits. The personal benefit requirement is applied differently among the circuits, however, …