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Wrongful Convictions, Constitutional Remedies, And Nelson V. Colorado, Michael L. Wells Apr 2018

Wrongful Convictions, Constitutional Remedies, And Nelson V. Colorado, Michael L. Wells

Fordham Law Review

The end result in Nelson will satisfy nearly everyone’s sense of basic justice, at least insofar as the monetary refund is concerned. Still, the case is interesting not for its outcome but because the Court’s analysis touches on, but fails to fully engage with, subtle and difficult questions of constitutional law. This Article examines three important aspects of the case—outside of the procedural due process balancing question—that receive little, if any, attention in the Court’s opinion. Part I shows that the Court’s procedural due process analysis skips over the logical first step and doctrinally harder question of whether Nelson had …


Ziglar V. Abbasi And The Decline Of The Right To Redress, Benjamin C. Zipursky Apr 2018

Ziglar V. Abbasi And The Decline Of The Right To Redress, Benjamin C. Zipursky

Fordham Law Review

Part I briefly describes the facts of Ziglar, its journey through the federal courts, and the Court’s treatment of it. Part II offers a commentary on Justice Kennedy’s opinion in Ziglar, focusing especially on his analysis of the reasons for and against recognizing a Bivens action and his choice to disposeof the case through a Bivens framework. I argue that his reasoning in Ziglar reflects an untenably narrow conception of the place of private rights of action in our legal system. In this respect, Part III suggests that the atrophy of Bivens in the Supreme Court exemplifies a …


Challenges Facing Judges Regarding Expert Evidence In Criminal Cases, Paul W. Grimm Mar 2018

Challenges Facing Judges Regarding Expert Evidence In Criminal Cases, Paul W. Grimm

Fordham Law Review

With regard to criminal cases, the focus of this Article, judges face significant challenges in ruling on the admissibility of expert testimony that do not occur in most civil cases. This Article starts by describing these challenges and then offers some suggestions about what can be done to address them.


A Modern Union For The Modern Economy, Jeffrey M. Hirsch, Joseph A. Seiner Mar 2018

A Modern Union For The Modern Economy, Jeffrey M. Hirsch, Joseph A. Seiner

Fordham Law Review

Membership in traditional unions has steeply declined over the past two decades. As the White House and Congress are now completely Republican controlled, there promises to be no reversal of this trend in the near future. In the face of this rejection of traditional bargaining efforts, several attempts have been made to create alternative “quasi-union” or “alt-labor” relationships between workers and employers. These arrangements represent a creative approach by workers to have their voices heard in a collective manner, though still falling far short of the traditional protections afforded by employment and labor law statutes. This Article critiques one such …


Heller‘S Collateral Damage: As-Applied Challenges To The Felon-In-Possession Prohibition, Carly Lagrotteria Mar 2018

Heller‘S Collateral Damage: As-Applied Challenges To The Felon-In-Possession Prohibition, Carly Lagrotteria

Fordham Law Review

A longstanding firearm regulation in the United States prohibits individual convicted of felonies and certain misdemeanors from possessing a firearm. Following the U.S. Supreme Court’s decision in District of Columbia v. Heller, waves of litigation challenged, among other laws, the felon-in-possession prohibition. Due to the lack of clarity in Heller and the Court’s refusal to address it, there is an unsettling circuit split over whether and how an individual can mount an as-applied challenge to the felon-in-possession prohibition. A decade after Heller, the Third Circuit upheld the first successful asapplied challenge while four circuits have denied the permissibility …


The History Of The Modern Class Action, Part Ii: Litigation And Legitimacy, 1981-1994, David Marcus Mar 2018

The History Of The Modern Class Action, Part Ii: Litigation And Legitimacy, 1981-1994, David Marcus

Fordham Law Review

The first era of the modern class action began in 1966, with revisions to Rule 23 of the Federal Rules of Civil Procedure. It ended in 1980. Significant turmoil roiled these years. Policymakers grappled with the powerful device as advocates argued over its purpose, and judges struggled to create rules for the novel litigation the remade Rule 23 generated. This Article tells the story of the class action’s second era, which stretched from 1981 to 1994. At first blush, these were quiet years. Doctrine barely changed, and until the early 1990s, policymakers all but ignored the device. Below this surface …


The Myth Of The Reliability Test, Brandon L. Garret, Chris Fabricant Mar 2018

The Myth Of The Reliability Test, Brandon L. Garret, Chris Fabricant

Fordham Law Review

The U.S. Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., and subsequent revisions to Federal Rule of Evidence 702, was supposed to usher a reliability revolution. This modern test for admissibility of expert evidence is sometimes described as a reliability test. Critics, however, have pointed out that judges continue to routinely admit unreliable evidence, particularly in criminal cases, including flawed forensic techniques that have contributed to convictions of innocent people later exonerated by DNA testing. This Article examines whether Rule 702 is in fact functioning as a reliability test, focusing on forensic evidence used in criminal cases …


How Daubert And Its Progeny Have Failed Criminalistics Evidence And A Few Things The Judiciary Could Do About It., David H. Kaye Mar 2018

How Daubert And Its Progeny Have Failed Criminalistics Evidence And A Few Things The Judiciary Could Do About It., David H. Kaye

Fordham Law Review

Part I documents how courts have failed to faithfully apply Daubert’s criteria for scientific validity to this type of evidence. It describes how ambiguities and flaws in the terminology adopted in Daubert combinedwith the opaqueness of forensic-science publications and standards have been exploited to shield some test methods from critical judicial analysis. Simply desisting from these avoidance strategies would be an improvement. Part II notes how part of the U.S. Supreme Court’s opinion in Kumho Tire Co. v. Carmichael has enabled courts to lower the bar for what is presented as scientific evidence by mistakenly maintaining that there is …


Fixing Rule 702: The Pcast Report And Steps To Ensure The Reliability Of Forensic Feature-Comparison Methods In The Criminal Courts, Eric S. Lander Mar 2018

Fixing Rule 702: The Pcast Report And Steps To Ensure The Reliability Of Forensic Feature-Comparison Methods In The Criminal Courts, Eric S. Lander

Fordham Law Review

In response to PCAST’s recommendation, the Standing Advisory Committee on Evidence Rules convened a meeting on forensic expert testimony, Daubert, and Rule 702 on October 27, 2017, at Boston College Law School to inform itself about the issues.22 The meeting included presentations by twenty-six speakers (including myself) and discussion among the attendees. The purpose of this Article is to summarize aspects of the PCAST report relevant to its recommendation to the Standing Advisory Committee on Evidence Rules and to propose a path forward with respect to Rule 702.


Deceptively Simple: Framing, Intuition, And Judicial Gatekeeping Of Forensic Feature-Comparison Methods Evidence, Jane Campbell Moriarty Mar 2018

Deceptively Simple: Framing, Intuition, And Judicial Gatekeeping Of Forensic Feature-Comparison Methods Evidence, Jane Campbell Moriarty

Fordham Law Review

This Article explains how courts have skirted the reliability problem of FCM evidence and argues that judges perceive the question of FCM evidence to be a simple problem that cross-examination can solve. Relying on insights from cognitive science to help explain the resistance of the courts to FCM evidence challenges, the Article urges courts to recognize the complexity of FCM evidence and refocus on the danger such evidence poses for continued wrongful conviction. By framing the admissibility of FCM evidence as an “easy” question, courts are relying on heuristics—that is, shortcuts—to solve complex problems. As this Article explains, using heuristics …


The Duty To Investigate And The Availability Of Expert Witnesses, Stephen A. Saltzburg Mar 2018

The Duty To Investigate And The Availability Of Expert Witnesses, Stephen A. Saltzburg

Fordham Law Review

To assess the likelihood that the proposed rule will assure better representation for criminal defendants, this Article proceeds as follows: Part I provides a general review of the effective assistance of counsel standard. Next, Part II focuses on the specific duty of defense counsel to investigate. Part III then examines the constitutional right of indigent criminal defendants to have expert assistance at government expense. Part IV proceeds to examine proposed Rule 707 and argues that it will not accomplish its purpose unless criminal defendants and their counsel have access to expert resources that match those relied upon by the government. …


Civil Procedure And The Ministerial Exception, Peter J. Smith, Robert W. Tuttle Mar 2018

Civil Procedure And The Ministerial Exception, Peter J. Smith, Robert W. Tuttle

Fordham Law Review

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the U.S. Supreme Court recognized a ministerial exception to the ordinary rules of employer liability. The Court also concluded that the exception operates as an affirmative defense rather than a jurisdictional bar. This conclusion raises quite significant questions about how courts should address the exception in the course of litigation. This Article posits that courts should approach these procedural questions in light of the underlying justification for the ministerial exception. The exception reflects a longstanding constitutional limitation on the competence of courts to resolve “strictly and purely ecclesiastical” questions. To …


Beyond Microsoft: A Legislative Solution To The Sca’S Extraterritoriality Problem, Andrew Kirschenbaum Mar 2018

Beyond Microsoft: A Legislative Solution To The Sca’S Extraterritoriality Problem, Andrew Kirschenbaum

Fordham Law Review

The Stored Communications Act governs U.S. law enforcement’s access to cloud data, but the statute is ill equipped to handle the global nature of the modern internet. A pending U.S. Supreme Court case, United States v. Microsoft, raises the question whether a warrant under the statute may be used to reach across international borders to obtain data that is stored in another country, regardless of the user’s nationality. While the Court will determine whether this is an impermissible extraterritorial application of the current law, many have called for a legislative resolution to this issue. Due to the insufficiency of …


The “Unwelcome Obligation”: Why Neither State Nor Federal Courts Should Draw District Lines, Sara N. Nordstrand Mar 2018

The “Unwelcome Obligation”: Why Neither State Nor Federal Courts Should Draw District Lines, Sara N. Nordstrand

Fordham Law Review

In recent years, the judiciary’s inability to hold state legislatures accountable for partisan gerrymanders has encouraged state governments to draw legislative and congressional district lines with high partisan advantage, thereby allowing a political party to acquire seats in numbers disproportionate to their popular support. In 2017, the U.S. Supreme Court granted certiorari on two partisan gerrymandering cases: Gill v. Whitford and Benisek v. Lamone. Although the Court might articulate a judicially manageable standard to determine when a districting plan is politically fair, other methods to prevent federal courts from creating district maps that perpetuate partisan bias exist. This Note …


A New Model For Oversight Of Commercial Activities By Nonprofits?, Jannon Stein Mar 2018

A New Model For Oversight Of Commercial Activities By Nonprofits?, Jannon Stein

Fordham Law Review

This Note discusses a New Jersey tax case, Fields v. Trustees of Princeton University, that settled in 2016 after motion practice. The plaintiffs were twenty-eight municipal taxpayers in Princeton who challenged Princeton University’s entire property-tax exemption on the ground that the way the University distributed royalty payments from patents to faculty inventors and licensed these patents in joint ventures and other partnerships ran afoul of the “profit test” that applies to educational property-tax exemptions in New Jersey. This Note uses this litigation to discuss a potential conflict between the Bayh-Dole Act, which encourages academic patent development, and such profit …


Krupski And Relation Back For Claims Against John Doe Defendants, Meg Tomlinson Mar 2018

Krupski And Relation Back For Claims Against John Doe Defendants, Meg Tomlinson

Fordham Law Review

Federal Rule of Civil Procedure 15(c)(1)(C) governs amendments that change the party or naming of a party in a pleading after the statute of limitations has run. Many courts have found amendments identifying defendants previously named as John Doe to be outside the scope of the rule, holding that a lack of knowledge does not constitute a mistake under Rule 15. In 2010, however, the U.S. Supreme Court refocused the relation back inquiry on what the party to be brought in by amendment knew or should have known within the limitations period—away from what the plaintiff knew or should have …


Loving Lessons: White Supremacy, Loving V. Virginia, And Disproportionality In The Child Welfare System, Leah A. Hill Jan 2018

Loving Lessons: White Supremacy, Loving V. Virginia, And Disproportionality In The Child Welfare System, Leah A. Hill

Fordham Law Review

Part I of this Article introduces a brief discussion of the history of antimiscegenation laws and, specifically, their prevalence in the Commonwealth of Virginia during the 1950s. Next, Part II sets forth a short commentary about the Lovings’ triumph over antimiscegenation. Part III then details the Lovings’ judicial hurdles against the state, which argued that its antimiscegenation laws were enacted, in part, to prevent child abuse and thus served legitimate state interests. Part IV argues that the remnants of the white supremacist ideology at the center of Loving appear in our modern child welfare system, which has long been plagued …


The New Writs Of Assistance, Ian Samuel Jan 2018

The New Writs Of Assistance, Ian Samuel

Fordham Law Review

The providers of network services (and the makers of network devices) know an enormous amount about our lives. Because they do, these network intermediaries are being asked with increasing frequency to assist the government in solving crimes or gathering intelligence. Given how much they know about us, if the government can secure the assistance of these intermediaries, it will enjoy a huge increase in its theoretical capacity for surveillance—the ability to learn almost anything about anyone. This has the potential to create serious social harm, even assuming that the government continues to adhere to ordinary democratic norms and the rule …


Implicit Racial Biases In Prosecutorial Summations: Proposing An Integrated Response, Praatika Prasad Jan 2018

Implicit Racial Biases In Prosecutorial Summations: Proposing An Integrated Response, Praatika Prasad

Fordham Law Review

Racial bias has evolved from the explicit racism of the Jim Crow era to amore subtle and difficult-to-detect form: implicit racial bias. Implicit racial biases exist unconsciously and include negative racial stereotypes andassociations. Everyone, including actors in the criminal justice system who believe themselves to be fair, possess these biases. Although inaccessible through introspection, implicit biases can easily be triggered through language. When trials involve Black defendants, prosecutors’ summations increasingly include racial themes that could trigger jurors’ implicit biases, lead to the perpetuation of unfair stereotypes, and contribute to racial injustice and disparate outcomes. This Note examines and critiques the …


Foreword, Robin A. Lenhardt, Tanya K. Hernandez, Kimani Paul-Emile Jan 2018

Foreword, Robin A. Lenhardt, Tanya K. Hernandez, Kimani Paul-Emile

Fordham Law Review

This Foreword provides an overview of Fifty Years of Loving v. Virginia and the Continued Pursuit of Racial Equality, a symposium hosted by the Fordham Law Review and cosponsored by the Fordham Law School Center on Race, Law & Justice. Even fifty years later, Loving provides ample foundation for an inquiry into the operation of race and racial inequality in the United States, which touches on the queries outlined above, as well as many others. In our view, a symposium focused on Loving makes a significant contribution by deepening scholarly analysis of that decision and by explicating the kinds of …


Challenging Statutory Accommodations For Religiously Affiliated Daycares: An Application Of The Third-Party Harm Doctrine, Bronwyn Roantree Dec 2017

Challenging Statutory Accommodations For Religiously Affiliated Daycares: An Application Of The Third-Party Harm Doctrine, Bronwyn Roantree

Fordham Law Review

Daycare facilities are subject to a host of regulations that govern matters from basic health and safety requirements, to caregiver training, to maximum caregiver-to-child ratios. In sixteen states, however, legislation exempts religiously affiliated daycares from many of these regulations, with six states extending particularly broad exemptions. Supporters of the exemptions have justified them on constitutional grounds, arguing that state oversight of religiously affiliated daycares violates the Free Exercise Clause of the First Amendment. Recent reporting has revealed that though children have been seriously injured or have died while in the care of religiously affiliated daycares exempted from regulations, challenges to …


Foreword: Continuity In The Presidency: Gaps And Solutions, Matthew Diller Dec 2017

Foreword: Continuity In The Presidency: Gaps And Solutions, Matthew Diller

Fordham Law Review

This symposium issue featuring a report and articles on the Twenty-Fifth Amendment and the presidential succession system is perfectly timed. Its release comes in the final month of the year that marked the fiftieth anniversary of the Twenty-Fifth Amendment’s ratification and at a moment of unprecedented public discussion of the Amendment. Yet, in Fordham Law School’s unique history with the Twenty-Fifth Amendment, auspicious timing is not unusual.


American Equal Protection And Global Convergence, Holning Lau, Hillary Li Dec 2017

American Equal Protection And Global Convergence, Holning Lau, Hillary Li

Fordham Law Review

Commentators have noted that equal protection doctrine is in a state of transformation. The nature of that transformation, however, is poorly understood. This Article offers a clearer view of the change underway. This Article is the first to reveal and synthesize three major trajectories along which the U.S. Supreme Court has begun to move. First, the Court has begun to blur the line that it previously drew between facial discrimination and disparate impact. Second, the Court has begun to collapse its previously established tiered standards for reviewing discrimination. These two trajectories combine to produce a third trajectory of change: by …


Back To The Drawing Board: Revisiting The Supreme Court's Stance On Partisan Gerrymandering, Robert Colton Dec 2017

Back To The Drawing Board: Revisiting The Supreme Court's Stance On Partisan Gerrymandering, Robert Colton

Fordham Law Review

In the United States, state legislatures have drawn voting districts to achieve desired election results for hundreds of years. Dating back to the James Madison presidency, various legislatures and iterations of the U.S. Supreme Court have wrestled with the legal and constitutional issues that stem from the practice known as “gerrymandering.” While courts and legislatures have, at times, been successful in eliminating some of the more sinister uses of the tactic, such as racially motivated district-line drawing, gerrymandering inspired by partisan motives remains. Continual improvements in technology coupled with an increasingly divided political culture mean that partisan gerrymandering is at …


Fifty Years After The Twenty-Fifth Amendment: Recommendations For Improving The Presidential Succession System, Second Fordham University School Of Law Clinic On Presidential Succession Dec 2017

Fifty Years After The Twenty-Fifth Amendment: Recommendations For Improving The Presidential Succession System, Second Fordham University School Of Law Clinic On Presidential Succession

Fordham Law Review

This Report begins with an overview of the presidential succession system, particularly the Twenty-Fifth Amendment provisions. The remaining Parts describe the Clinic’s recommendations. The first Part of the Clinic recommendations discusses executive branch contingency planning and outlines two steps the White House can take to prepare for presidential inabilities. First, the Clinic recommends that the President determine in advance situations where the Vice President should act as President under the Twenty-Fifth Amendment’s voluntary transfer provision at Section 3. Such a “prospective declaration of inability” would allow for transfers of power during emergencies when the Cabinet is not easily reachable to …


What To Do If Simultaneous Presidential And Vice Presidential Inability Struck Today, Roy E. Brownell Ii Dec 2017

What To Do If Simultaneous Presidential And Vice Presidential Inability Struck Today, Roy E. Brownell Ii

Fordham Law Review

Dual incapacity is one of three major inability scenarios involving the Vice President that threatens the continuity of the executive branch. The current state of the law in this area, unfortunately, leaves only imperfect options for policymakers. This Article proposes that, in the event of a dual inability, the Speaker, the President pro tempore of the Senate, and the Cabinet should meet and then jointly declare that the Speaker is Acting President until either the President or Vice President regains capacity. At the same time, the Speaker—as the new Acting President—the President pro tempore, and the Cabinet should request that …


The Bipartisan Bayh Amendment: Republican Contributions To The Twenty-Fifth Amendment, Joel K. Goldstein Dec 2017

The Bipartisan Bayh Amendment: Republican Contributions To The Twenty-Fifth Amendment, Joel K. Goldstein

Fordham Law Review

It is appropriate that Senator Birch Bayh has been widely recognized as the author and person most responsible for the Twenty-Fifth Amendment. His work was indispensable, and he was helped by other Democrats and nonpartisan actors including the American Bar Association and John D. Feerick, among others. Yet the Amendment was also the product of bipartisan cooperation. Important provisions were based on work done during the administration of President Dwight D. Eisenhower, and Eisenhower and his Attorney General, Herbert Brownell, played important roles in supporting Bayh’s proposal as did other Republicans in and out of Congress. Republicans like Representative Richard …


"A Dr. Strangelove Situation": Nuclear Anxiety, Presidential Fallibility, And The Twenty-Fifth Amendment, Rebecca C. Lubot Dec 2017

"A Dr. Strangelove Situation": Nuclear Anxiety, Presidential Fallibility, And The Twenty-Fifth Amendment, Rebecca C. Lubot

Fordham Law Review

This Article is a revisionist history of the ratification of the Twenty-Fifth Amendment, which establishes procedures for remedying a vice presidential vacancy and for addressing presidential inability. During the Cold War, questions of presidential succession and the transfer of power in the case of inability were on the public’s mind and, in 1963, these questions became more urgent in the shadow of the Cuban Missile Crisis. Traditional legal histories of the Amendment argue that President John F. Kennedy’s assassination was both the proximate and prime factor in the development of the Amendment, but they do not account for the pervasive …


A Voice For One, Or A Voice For The People: Balancing Prosecutorial Speech Protections With Community Trust, Immanuel Kim Dec 2017

A Voice For One, Or A Voice For The People: Balancing Prosecutorial Speech Protections With Community Trust, Immanuel Kim

Fordham Law Review

Prosecutors, as representatives of the public in the criminal justice system, are the sole advocates for “the People” in a criminal case. Thus, prosecutors are expected to maintain a particular level of integrity that would ensure a fair and just representation of the People. Despite this expectation, the wide discretionary authority prosecutors hold makes it virtually impossible to regulate their conduct. Furthermore, the First Amendment of the U.S. Constitution protects many expressions of viewpoints, and such protections extend—albeit to a limited degree—to prosecutors, thereby giving them even more discretion in how they decide to handle their own cases. Nonetheless, the …


A Vote For Clarity: Establishing A Federal Test For Intervention In Election-Related Disputes, Ben Klein Dec 2017

A Vote For Clarity: Establishing A Federal Test For Intervention In Election-Related Disputes, Ben Klein

Fordham Law Review

Increasingly, state and federal courts are asked to resolve election-related disputes, as candidates are more likely than ever before to challenge some aspect of the administration of an election in court. Election-related litigation puts judges in the unfavorable position of kingmaker, forcing the court, not the people, to determine the winner of an election. When the court intervenes in an election dispute, the public may perceive the court’s intervention as a political act that decreases the legitimacy of the winning candidate and the election system as a whole. Moreover, research reveals that judicial decision-making at both the state and federal …