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Full-Text Articles in Entire DC Network
Managing The Misinformation Marketplace: The First Amendment And The Fight Against Fake News, Daniela C. Manzi
Managing The Misinformation Marketplace: The First Amendment And The Fight Against Fake News, Daniela C. Manzi
Fordham Law Review
In recent years, fake news has overtaken the internet. Fake news publishers are able to disseminate false stories widely and cheaply on social media websites, amassing millions of likes, comments, and shares, with some fake news even “trending” on certain platforms. The ease with which a publisher can create and spread falsehoods has led to a marketplace of misinformation unprecedented in size and power. People’s vulnerability to fake news means that they are far less likely to receive accurate political information and are therefore unable to make informed decisions when voting. Because a democratic system relies on an informed populace …
"'Male Chauvinism' Is Under Attack From All Sides At Present": Roberts V. United States Jaycees, Sex Discrimination, And The First Amendment, Linda C. Mcclain
"'Male Chauvinism' Is Under Attack From All Sides At Present": Roberts V. United States Jaycees, Sex Discrimination, And The First Amendment, Linda C. Mcclain
Fordham Law Review
This Article considers the relationship between gender equality and freedom of association. Part I begins with the Supreme Court’s recognition of the freedom of association as first articulated in NAACP v. Alabama. It shows how, in the context of race discrimination, some key civil rights victories have enlisted claims of the freedom of association, while some other victories have prevailed against such claims. Those precedents set the foundation for the Court’s decision in Jaycees, which concerned gender discrimination. Part II focuses on the role of Jaycees in drawing an analogy between the harms of gender discrimination and sexual-orientation …
Free Speech And The Diverse University, Keith E. Whittington
Free Speech And The Diverse University, Keith E. Whittington
Fordham Law Review
There are those who think that free speech and inclusivity on college campuses are inconsistent. The notion that the two values are in tension with one another has become a common framing for thinking about the modern campus. A Gallup-Knight Foundation poll of college students asked respondents not only whether they valued free speech or diversity but also to choose between them and indicate which was “more important for colleges.” When forced to choose, a substantial minority of students said they would prioritize inclusivity over the freedom to express “viewpoints that are offensive” on campus. Following the Gallup-Knight poll the …
Production Liability, Aditi Bagchi
Production Liability, Aditi Bagchi
Fordham Law Review
It is well known that many consumer goods are produced under dangerous working conditions. Employers that directly supervise the production of these goods evade enforcement. Activists and scholars have argued that we must hold the manufacturers and retailers that purchase goods made in sweatshops accountable. However, there has been little movement toward such accountability. Responsibility for the conditions under which goods are made—what I call “production liability”—entails assigning responsibility for workers to firms that do not directly employ them. Production liability, therefore, conflicts with deep intuitions about the boundaries of individual responsibility. This Article offers a moral and economic defense …
Airbnb In New York City: Whose Privacy Rights Are Threatened By A Government Data Grab?, Tess Hofmann
Airbnb In New York City: Whose Privacy Rights Are Threatened By A Government Data Grab?, Tess Hofmann
Fordham Law Review
New York City regulators have vigorously resisted the rise of Airbnb as an alternative to traditional hotels, characterizing “home sharing” as a trend that is sucking up permanent housing in a city already facing an affordability crisis. However, laws banning short-term rentals have done little to discourage this practice, as Airbnb’s policy of keeping user information private makes it possible for illegal operators to evade law enforcement. Frustrated by this power imbalance, the New York City Council passed Local Law 146, which requires Airbnb to provide city officials with access to the names and information of its home sharing hosts …
Mandatory Arbitration And Sexual Harassment Claims: #Metoo- And Time's Up-Inspired Action Against The Federal Arbitration Act, Kathleen Mccullough
Mandatory Arbitration And Sexual Harassment Claims: #Metoo- And Time's Up-Inspired Action Against The Federal Arbitration Act, Kathleen Mccullough
Fordham Law Review
The rise of the #MeToo movement and Time’s Up campaign has brought the issue of sexual harassment into the national spotlight. Equal Employment Opportunity Commission filings for sexual harassment claims have increased 13 percent since the start of the #MeToo movement, and a little over a year since its creation on January 1, 2018, the Time’s Up Legal Defense Fund has received 4139 requests for representation in sexual harassment claims. However, the U.S. Supreme Court has interpreted the Federal Arbitration Act to enforce mandatory arbitration clauses for employment claims, including sexual harassment claims—an interpretation that prohibits employees from pursuing litigation …
Free Money, But Not Tax-Free: A Proposal For The Tax Treatment Of Cryptocurrency Hard Forks, Danhui Xu
Free Money, But Not Tax-Free: A Proposal For The Tax Treatment Of Cryptocurrency Hard Forks, Danhui Xu
Fordham Law Review
Cryptocurrency has attracted extraordinary attention as one of the greatest financial innovations in recent years. Equally noticeable are the increasingly frequent cryptocurrency events, such as hard forks. Put simply, a cryptocurrency hard fork happens when a single cryptocurrency splits in two, which results in original coin owners receiving free forked coins. Such hard forks have resulted in billions of dollars distributed to U.S. taxpayers. Despite ongoing regulatory efforts, to date, the Internal Revenue Service (IRS) has yet to take a clear position on the tax treatment of cryptocurrency hard forks. The lack of useful guidance when filing tax returns has …
Institutional Independence: Lawyers And The Administrative State, Melissa Mortazavi
Institutional Independence: Lawyers And The Administrative State, Melissa Mortazavi
Fordham Law Review
The institutional structure where federal government lawyers practice is fraught with political and economic pressures that undermine the ability of lawyers to exercise independent professional judgment. A lack of candid legal advice in this space not only removes a pivotal fail-safe between legal and illegal state action but also precariously imbalances the powerful administrative state, exposing it to undue political influence. For these reasons, this Article argues that structural changes to administrative institutions must be made to support and nurture lawyers’ ability to independently determine the bounds of legality. Previous scholarship has examined the role of professional independence for lawyers …
Law And Nonlegal Norms In Government Lawyers' Ethics: Discretion Meets Legitimacy, W. Bradley Wendel
Law And Nonlegal Norms In Government Lawyers' Ethics: Discretion Meets Legitimacy, W. Bradley Wendel
Fordham Law Review
This Essay is about the role of unwritten norms in the ethical decisionmaking of government lawyers. Because the ethical obligations of lawyers, including government lawyers, are closely tied to the legal rights and obligations of clients, this analysis necessarily depends on understanding the relationship between written law and unwritten norms. As we all know, however, written law leaves gaps, ambiguities, and zones of unregulated discretion. Prosecutors in the United States, for example, have virtually unreviewable discretion to decide who to investigate and charge, what charges to bring, and whether to offer immunity in exchange for cooperation. No one has a …
Fosta: A Hostile Law With A Human Cost, Lura Chamberlain
Fosta: A Hostile Law With A Human Cost, Lura Chamberlain
Fordham Law Review
The Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”) rescinded legal immunity for websites that intentionally host user-generated advertisements for sex trafficking. However, Congress’s mechanism of choice to protect sex-trafficking victims has faced critique and backlash from advocates for those involved in commercial sex, who argue that FOSTA’s broad legislative language does far more to harm sex workers—a group distinct from sex-trafficking victims—than it does to end sex trafficking, chilling significant protected speech in the process. These critics posit that FOSTA’s results toward eradicating sex trafficking have been negligible and that its chief outcome has …
May Federal Prosecutors Take Direction From The President?, Bruce A. Green, Rebecca Roiphe
May Federal Prosecutors Take Direction From The President?, Bruce A. Green, Rebecca Roiphe
Fordham Law Review
Suppose the president sought to serve as prosecutor-in-chief, telling prosecutors when to initiate or dismiss criminal charges in individual cases and making other discretionary decisions that are normally reserved to trained professionals familiar with the facts, law, and traditions of the U.S. Department of Justice. To what extent may prosecutors follow the president’s direction? In recent presidential administrations, the president has respected prosecutorial independence; while making policy decisions, the president deferred to the Attorney General and subordinate federal prosecutors to conduct individual criminal cases. In a recent article, we argued that this is as it should be because the president …
Hidden Nondefense: Partisanship In State Attorneys General Amicus Briefs And The Need For Transparency, Lisa F. Grumet
Hidden Nondefense: Partisanship In State Attorneys General Amicus Briefs And The Need For Transparency, Lisa F. Grumet
Fordham Law Review
In all fifty states, the State Attorney General (SAG)—as the state’s chief legal officer—is charged with defending state laws that are challenged in court. If an SAG declines to defend or challenges a state law on the ground that it is unconstitutional—an action scholars describe as “nondefense”— the SAG ordinarily will disclose this decision to the public. This Essay discusses a hidden form of nondefense that can occur when SAGs file amicus curiae briefs on behalf of their states in matters before the U.S. Supreme Court. Surprisingly, some SAGs have joined multistate amicus briefs that support invalidating other states’ laws …
All Watched Over By Machines Of Loving Grace: Border Searches Of Electronic Devices In The Digital Age, Sean O'Grady
All Watched Over By Machines Of Loving Grace: Border Searches Of Electronic Devices In The Digital Age, Sean O'Grady
Fordham Law Review
The border search exception to the Fourth Amendment has historically given the U.S. government the right to conduct suspicionless searches of the belongings of any individual crossing the border. The federal government relies on the border search exception to search and detain travelers’ electronic devices at the border without a warrant or individualized suspicion. The government’s justification for suspicionless searches of electronic devices under the traditional border search exception for travelers’ property has recently been called into question in a series of federal court decisions. In March 2013, the Ninth Circuit in United States v. Cotterman became the first federal …
Differentiating Legislative From Nonlegislative Rules: An Empirical And Qualitative Analysis, Nadav D. Ben Zur
Differentiating Legislative From Nonlegislative Rules: An Empirical And Qualitative Analysis, Nadav D. Ben Zur
Fordham Law Review
The elusive distinction between legislative rules and nonlegislative rules has frustrated courts, motivated voluminous scholarly debate, and ushered in a flood of litigation against administrative agencies. In the absence of U.S. Supreme Court guidance on the proper demarcating line, circuit courts have adopted various tests to ascertain a rule’s proper classification. This Note analyzes all 241 cases in which a circuit court has used one or more of the enunciated tests to differentiate legislative from nonlegislative rules. These opinions come from every one of the thirteen circuits and span the period of the early 1950s through 2018. This Note identifies …
Dignity And Social Meaning: Obergefell, Windsor, And Lawrence As Constitutional Dialogue, Steve Sanders
Dignity And Social Meaning: Obergefell, Windsor, And Lawrence As Constitutional Dialogue, Steve Sanders
Fordham Law Review
The U.S. Supreme Court’s three most important gay and lesbian rights decisions—Obergefell v. Hodges, United States v. Windsor, and Lawrence v. Texas—are united by the principle that gays and lesbians are entitled to dignity. Beyond their tangible consequences, the common constitutional evil of state bans on same-sex marriage, the federal Defense of Marriage Act, and sodomy laws was that they imposed dignitary harm. This Article explores how the gay and lesbian dignity cases exemplify the process by which constitutional law emerges from a social and cultural dialogue in which the Supreme Court actively participates. In doing …
Legal Dilemmas Facing White House Counsel In The Trump Administration: The Costs Of Public Disclosure Of Fisa Requests, Peter Margulies
Legal Dilemmas Facing White House Counsel In The Trump Administration: The Costs Of Public Disclosure Of Fisa Requests, Peter Margulies
Fordham Law Review
Not every presidential administration can forge a new brand of government lawyering. Historically, government lawyering has swung between two poles: (1) dialogic lawyering, which stresses reasoned elaboration, respect for institutions, and continuity with unwritten norms embodied in past practice; and (2) insular lawyering, which entails opaque definitions, disregard of other institutions, and departures from unwritten norms. Because President Trump regularly signals his disdain for institutions, such as the intelligence community, and unwritten norms, such as prosecutorial independence, senior lawyers in the White House have added a new mode of legal representation that entails ad hoc adjustments to President Trump’s mercurial …
Professionals, Politicos, And Crony Attorneys General: A Historical Sketch Of The U.S. Attorney General As A Case For Structural Independence, Jed Handelsman Shugerman
Professionals, Politicos, And Crony Attorneys General: A Historical Sketch Of The U.S. Attorney General As A Case For Structural Independence, Jed Handelsman Shugerman
Fordham Law Review
Historically, the office of the U.S. Attorney General has been identified as “quasi-judicial” or having “quasi-judicial” aspects. Other parts of the Department of Justice (DOJ) have also been described as quasi-judicial, such as the Office of Legal Counsel and the Solicitor General. A glance at a list of past attorneys general seems to confirm this judicial aspiration in practice. Nine attorneys general became U.S. Supreme Court justices, and others were notably judicious and professional in their tenure in the office. Of course, there are some infamous examples of unprofessional cronyism—the appointment of friends or associates to positions of authority, without …
Disagreeing Over Agreements: A Cross-Sectional Analysis Of No-Poaching Agreements In The Franchise Sector, Catherine E. Schaefer
Disagreeing Over Agreements: A Cross-Sectional Analysis Of No-Poaching Agreements In The Franchise Sector, Catherine E. Schaefer
Fordham Law Review
In October 2016, the Department of Justice Antitrust Division announced its intent to proceed criminally against parties to no-poaching agreements, or agreements between or among employers not to hire each other’s workers. Consequently, a wave of class action antitrust lawsuits has raised questions about the legality of no-poaching or no-hire provisions that certain franchised food businesses use. Fast-food restaurant chains, including McDonald’s, Carl’s Jr., and Pizza Hut, have recently found themselves embroiled in such litigation. This Note examines prior antitrust litigation involving no-poaching agreements between companies and discusses the differences and similarities between these cases and the cases involving franchised …
Reevaluating School Searches Following School-To-Prison Pipeline Reforms, Josh Gupta-Kagan
Reevaluating School Searches Following School-To-Prison Pipeline Reforms, Josh Gupta-Kagan
Fordham Law Review
The U.S. Supreme Court held in New Jersey v. T.L.O. that school officials could search students without a warrant and with only reasonable suspicion, not probable cause, because of schools’ need for discipline and the relationship between educators and students. That case belongs to a body of Fourth Amendment cases involving, in T.L.O.’s terms, “special needs, beyond the normal need for law enforcement.” What Fourth Amendment standard, then, governs searches involving one of the roughly 20,000 school resource officers (SROs) in American schools? Most state courts to decide the issue in the 1990s and 2000s found that T.L.O. applied to …
Policing The Admissibility Of Body Camera Evidence, Jeffrey Bellin, Shevarma Pemberton
Policing The Admissibility Of Body Camera Evidence, Jeffrey Bellin, Shevarma Pemberton
Fordham Law Review
Body cameras are sweeping the nation and becoming, along with the badge and gun, standard issue for police officers. These cameras are intended to ensure accountability for abusive police officers. But, if history is any guide, the videos they produce will more commonly be used to prosecute civilians than to document abuse. Further, knowing that the footage will be available as evidence, police officers have an incentive to narrate body camera videos with descriptive oral statements that support a later prosecution. Captured on an official record that exclusively documents the police officer’s perspective, these statements—for example, “he just threw something …
The Light We Shine Into The Grey: A Restorative #Metoo Solution And An Acknowledgement Of Those #Metoo Leaves In The Dark, Nora Stewart
The Light We Shine Into The Grey: A Restorative #Metoo Solution And An Acknowledgement Of Those #Metoo Leaves In The Dark, Nora Stewart
Fordham Law Review
In the past year and a half, American women have publicly discussed experiences of sexual assault, harassment, and—notably—grey-area misconduct in an unprecedented manner. The rhetoric of the #MeToo movement is rife with references to “shining a light” on a set of unexplored issues hitherto obscured in cultural darkness, to following women’s experiences into the grey. What is new about #MeToo, and what likely will be the through line that defines its historical importance, has been its sensitivity to nuance. The grey range of #MeToo misconduct is not a new problem. It is emphatically new, however, as a subject of public …
The Courier Conundrum: The High Costs Of Prosecuting Low-Level Drug Couriers And What We Can Do About Them, Adam B. Weber
The Courier Conundrum: The High Costs Of Prosecuting Low-Level Drug Couriers And What We Can Do About Them, Adam B. Weber
Fordham Law Review
Since the United States declared its “War on Drugs,” federal enforcement of drug-trafficking crimes has led to increased incarceration and longer prison sentences. Many low-level drug couriers and drug mules have suffered disproportionately from these policies; they face mandatory punishments that vastly exceed their culpability. Drug couriers often lack substantial ties to drug-trafficking organizations, which generally recruit vulnerable individuals to act as couriers and mules. By using either threats of violence or promises of relatively small sums of money, these organizations convince recruits to overlook the substantial risks that drug couriers face. The current policies of pursuing harsh punishments for …
Back To The Future: Permitting Habeas Petitions Based On Intervening Retroactive Case Law To Alter Convictions And Sentences, Lauren Casale
Back To The Future: Permitting Habeas Petitions Based On Intervening Retroactive Case Law To Alter Convictions And Sentences, Lauren Casale
Fordham Law Review
In 1948, Congress enacted 28 U.S.C. § 2255, which authorizes a motion for federal prisoners to “vacate, set aside or correct” their sentences, with the goal of improving judicial efficiency in collateral review. Section 2255(e), known as the “savings clause,” allows federal inmates to challenge the validity of their imprisonments with writs of habeas corpus if § 2255 motions are “inadequate or ineffective to test the legality of [their] detention[s].” Due to the U.S. Supreme Court’s and Congress’s silence regarding what suffices as “inadequate or ineffective,” the circuit courts have adopted varied standards. The Sixth and Seventh Circuits hold that …
Saved By Labell: Local Taxation Of Video Streaming Services, Salvatore Cocchiaro
Saved By Labell: Local Taxation Of Video Streaming Services, Salvatore Cocchiaro
Fordham Law Review
Over the last few years, Netflix and other video streaming services have erupted to become a preeminent form of entertainment for millennials and the public at large. With traditional forms of entertainment waning, video streaming services represent a novel source of revenue for cities. Local governments currently have numerous tax approaches that may be used to cover these services. Different cities and states have taken distinctive approaches to taxing these services. Certain jurisdictions tax them in line with traditional pay-TV providers under utility taxes, while other jurisdictions tax them under sales or amusement taxes. This Note considers these different approaches, …
Conference On Proposed Amendments: Experts, The Rules Of Completeness, And Sequestration Of Witnesses
Fordham Law Review
This conference was held on October 19, 2018, at University of Denver Sturm College of Law under the sponsorship of the Judicial Conference Advisory Committee on Evidence Rules. The transcript has been lightly edited. It represents the panelists’ individual views only and in no way reflects those of their affiliated firms, organizations, law schools, or the judiciary.
The Workers' Constitution, Luke Norris
The Workers' Constitution, Luke Norris
Fordham Law Review
This Article argues that the National Labor Relations Act of 1935, Social Security Act of 1935, and Fair Labor Standards Act of 1938 should be understood as a “workers’ constitution.” The Article tells the history of how a connected wave of social movements responded to the insecurity that wage earners faced after the Industrial Revolution and Great Depression by working with government officials to bring about federal collective bargaining rights, wage and hour legislation, and social security legislation. It argues that the statutes are tied together as a set of “small c” constitutional commitments in both their histories and theory. …
Election Law And White Identity Politics, Joshua S. Sellers
Election Law And White Identity Politics, Joshua S. Sellers
Fordham Law Review
The role of race in American politics looms large in several election law doctrines. Regrettably, though, these doctrines’ analyses of race, racial identity, and the relationships between race and politics often lack sophistication, historical context, or foresight. The political status quo is treated as race-neutral, when in fact it is anything but. Specifically, the doctrines rely upon sanguine theories of democracy uncorrupted by white identity–based political calculations, while in fact such calculations, made on the part of both voters and political parties, are pervasive. In this Article, I appraise the doctrine pertaining to majority-minority voting districts, racial gerrymandering doctrine, the …
The "Uncontroversial" Controversy In Compelled Commercial Disclosures, Lauren Fowler
The "Uncontroversial" Controversy In Compelled Commercial Disclosures, Lauren Fowler
Fordham Law Review
Federal and state administrative agencies increasingly advance public health goals through the use of mandatory disclosures, like warning labels on cigarettes, that are intended to both inform and influence consumer decisions. However, the standard for determining whether these requirements violate a commercial speaker’s First Amendment rights is unsettled. In Zauderer v. Office of Disciplinary Counsel, the U.S. Supreme Court adopted a test that defers to the government’s determination that the compelled disclosure of “factual and uncontroversial information” is justified. Since Zauderer was decided, lower courts have disagreed about the meaning of “uncontroversial.” A recent Supreme Court case, National Institute …
Full Cost In Translation: Awarding Expert Witness Fees In Copyright Litigation, Nicholas Vennekotter
Full Cost In Translation: Awarding Expert Witness Fees In Copyright Litigation, Nicholas Vennekotter
Fordham Law Review
When deciding whether to bring or defend against copyright infringement claims, the cost of litigation plays a critical role in the minds of potential litigants. The cost of retaining experts, particularly, is a large factor in this calculus. Although U.S. courts generally require each party to cover the cost of their own legal fees during litigation, the Copyright Act of 1976 permits courts, in their discretion, to allow the prevailing party to recover “full costs.” Yet, the language “full costs” is considered ambiguous, which leads to inconsistent awards of costs among the appellate courts. The circuits disagree whether the Copyright …
Two Roads Diverged: Statutory Interpretation By The Circuit Courts And Supreme Court In The Same Cases, Lawrence Baum, James J. Brudney
Two Roads Diverged: Statutory Interpretation By The Circuit Courts And Supreme Court In The Same Cases, Lawrence Baum, James J. Brudney
Fordham Law Review
Scholars and judges have long disagreed on whether courts of appeals construing statutes ought to adapt their use of interpretive resources to Supreme Court approaches. If circuit courts and the Supreme Court approach statutory issues in similar ways, this can perhaps provide a measure of predictability for litigants and the public while conserving judicial resources; it may also enhance perceptions of fairness in the judicial system. Such normative arguments invite—even demand—a fuller understanding of the underlying descriptive reality: whether anything approaching uniformity or consistency actually exists. This Article aims to provide that understanding. It does so through an in- depth …