Digital Commons Network^™

Is It Really All About Race?: Section 1985(3) Political Conspiracies In The Second Circuit And Beyond, Lee Pinzow

Fordham Law Review

    The recent scandal involving the Internal Revenue Service’s targeting of conservative Tea Party groups highlights the need for a judicial remedy to politically motivated deprivations of legally recognized rights. Section 2 of the Ku Klux Klan Act, codified as 42 U.S.C. § 1985(3), presents such a remedy.

    However, it is unclear whether the statute applies to conspiracies motivated solely by political animus. The U.S. Supreme Court in Griffin v. Breckenridge and United Brotherhood of Carpenters Local 610 v. Scott delved into the question but chose not to resolve the issue. Based on the Court’s discussion of the statute’s legislative history …

Stay Tuned: Whether Cloud-Based Service Providers Can Have Their Copyrighted Cake And Eat It Too, Amanda Asaro

Fordham Law Review

    Copyright owners have the exclusive right to perform their works publicly and the ability to license their work to others who want to share that right. Subsections 106(4) and (5) of the Copyright Act govern this exclusive public performance right, but neither subsection elaborates on what constitutes a performance made “to the public” versus one that remains private. This lack of clarity has made it difficult for courts to apply the Copyright Act consistently, especially in the face of changing technology.

    Companies like Aereo, Inc. and AereoKiller, Inc. developed novel ways to transmit content over the internet to be viewed …

Supremacy Of The Supremacy Clause: A Garamendi-Based Framework For Assessing State Law That Intersects With U.S. Foreign Policy, Alexandria R. Strauss

Fordham Law Review

    State and local governments across the United States increasingly act in areas that intersect with foreign policy. Federalism concerns and U.S. foreign relations are thus in constant tension.
    In American Insurance Ass’n v. Garamendi, the U.S. Supreme Court in 2003 both expanded and detracted from where states and localities may permissibly act in areas that touch upon foreign affairs. This Note works within the confines of Garamendi to outline four distinct categories of state action that might intersect with foreign relations. It discusses how lower courts, namely the Ninth Circuit, the Eleventh Circuit, and the Northern District of Illinois, …

Dilemmas Of Liberty, Robert S. Smith

Fordham Law Review

No abstract provided.

Contractualizing Custody, Sarah Abramowicz

Fordham Law Review

     Many scholars otherwise in favor of the enforcement of family contracts agree that parent-child relationships should continue to prove the exception to any contractualized family law regime. This Article instead questions the continued refusal to enforce contracts concerning parental rights to children’s custody. It argues that the refusal to enforce such contracts contributes to a differential treatment of two types of families: those deemed “intact”—typically consisting of two married parents and their offspring—and those deemed non-intact. Intact families are granted a degree of freedom from government intervention, provided that there is no evidence that children are in any danger of …

The Return Of Noncongruent Equal Protection, Brian Soucek

Fordham Law Review

    Contemporary equal protection doctrine touts the principle of congruence: the notion that equal protection means the same thing whether applied to state or to federal laws. The federalism-tinged equal protection analysis at the heart of Justice Kennedy’s opinion in United States v. Windsor, however, necessarily violates the congruence principle. Commentators and courts—especially those deciding how Windsor’s federalism should affect the ever-growing number of state same-sex marriage cases—have so far failed to account for Windsor’s noncongruent equal protection, much less ask whether noncongruence is generally desirable, and if so, what form it should take.
    This Article draws answers …

Agency Costs And The False Claims Act, David Farber

Fordham Law Review

The False Claims Act represents the U.S. Justice Department’s most effective tool in detecting, punishing, and deterring fraud against the government. The effectiveness of the False Claims Act is due in large part to the law’s qui tam provisions, which provide a private right of action to whistleblowers who may sue fraudsters on behalf of the government in exchange for a percentage of the recovery. The resulting relationship between the government and whistleblowers has led to increased detection and recoveries from corporate defendants who defraud and abuse government programs.
However, these whistleblower provisions also come with social costs where profit-motivated …

Reputational Injury Without A Reputational Attack: Addressing Negligence Claims For Pure Reputational Harm, Bryson Kern

Fordham Law Review

    This Note examines the unsettled relationship between defamation and negligence. The law of defamation, through the torts of libel and slander, constitutes a well-developed and complex body of state common law and constitutional considerations. However, some claims for reputational harm may fall outside of this framework, as the law of defamation does not account for all of the ways that an individual’s reputation may be injured. Thus, plaintiffs sometimes bring negligence claims to seek redress for damage to reputation.
    When a plaintiff brings a negligence claim for pure reputational harm, the court is faced with a variety of options for …

Searching For A Harmless Alternative: Applying The Harmless Error Standard To Alternative Theory Jury Instructions, Erika A. Khalek

Fordham Law Review

Judges in federal criminal cases provide juries with instructions before the jury members retire to consider their verdict. In some situations, the judge may include alternative theories of guilt, informing the jury that it may convict a defendant of a single offense on the basis of one of several different theories. But because most juries in federal criminal trials deliver only a general verdict of either “guilty” or “not guilty,” it is usually not possible to determine the theory upon which the jury relied in reaching its decision. This lack of transparency may be problematic if the defendant appeals his …

An Officer Walks Into A Bar: Acknowledging The Need For Deterrence In Officer And Director Bars, Steven W. Shuldman

Fordham Law Review

    The U.S. Securities and Exchange Commission (SEC) is the civil regulatory agency responsible for helping to defend and protect the American investor. One significant threat to investor security occurs when an individual, acting as an officer or director, violates a fiduciary duty to his or her employer and its shareholders, risking investor money. These actions could involve insider trading, fraudulent statements in public filings, or other self-serving conduct.
    Recognizing the importance of deterring such misconduct, Congress gave the SEC the authority to bar certain individuals from serving as officers and directors of public companies. An individual should be barred if …

Fighting A Losing Battle To Win The War: Can States Combat Domestic Minor Sex Trafficking Despite Cda Preemption?, Stephanie Silvano

Fordham Law Review

    The explosion of the internet and online communication has led to an alarming increase in an existing epidemic: domestic minor sex trafficking. Sex traffickers utilize websites, such as Backpage.com, to post trafficking advertisements depicting minors, which are minimally regulated as a result of the civil immunity provision of the Communications Decency Act (47 U.S.C. § 230). This immunity provision has been interpreted broadly by the courts, granting expansive immunity to websites as both publishers and distributors of content.
    In an effort to combat minor sex trafficking at a local level, some state legislatures enacted statutes criminalizing the knowing publication of …

Toil And Trouble: How The Erie Doctrine Became Structurally Incoherent (And How Congress Can Fix It), Alan M. Trammell

Fordham Law Review

    The Erie doctrine is still a minefield. It has long been a source of frustration for scholars and students, and recent case law has exacerbated the troubles. Although other scholars have noted and criticized these developments, this Article explores a deeper systemic problem that remains undeveloped in the literature. In its present form, the Erie doctrine fails to protect any coherent vision of the structural interests that supposedly are at its core—federalism, separation of powers, and equality.

    This Article argues that Congress has the power to fix nearly all of these problems. Accordingly, it proposes a novel statute to revamp …

Protecting The Profession Or The Public? Rethinking Unauthorized-Practice Enforcement, Deborah L. Rhode, Lucy Buford Ricca

Fordham Law Review

No abstract provided.

Force And Effect: A Look At The Passport In The Context Of Citizenship, Claire Benoit

Fordham Law Review

    Citizenship provides benefits, guarantees, and protections of great value and emotional significance. The vast importance of citizenship has been referred to as the very “right to have rights.” The law creates a complex framework for how one becomes a citizen, proves citizenship, and potentially loses citizenship. This Note focuses on three documents purporting to establish proof of citizenship: the passport, the certificate of citizenship, and the certificate of naturalization. These three documents are at the center of 22 U.S.C. § 2705, a foundational proof of citizenship statute.

    Courts are split on whether § 2705 allows a person to conclusively prove …

Compliance And Claim Funding: Testing The Borders Of Lawyers’ Monopoly And The Unauthorized Practice Of Law, Michele Destefano

Fordham Law Review

No abstract provided.

How Long Is Too Long?: Conflicting State Responses To De Facto Life Without Parole Sentences After Graham V. Florida And Miller V. Alabama, Kelly Scavone

Fordham Law Review

    A juvenile offender waits for sentencing while a court calculates his life expectancy and determines the point at which his sentence effectively becomes his entire life. This is the scenario posed by recent U.S. Supreme Court decisions that have struck down life without parole (LWOP) sentences for most juvenile offenders but have left open the possibility of lengthy term-of-years sentences. Consecutive term-of-years sentences may leave many juvenile offenders in prison for the majority of their lives despite the holdings in Miller v. Alabama and Graham v. Florida that juveniles are different and more capable of reform than most adult offenders. …

Anyone Can “Think Like A Lawyer”: How The Lawyers’ Monopoly On Legal Understanding Undermines Democracy And The Rule Of Law In The United States, Bridgette Dunlap

Fordham Law Review

No abstract provided.

Legal Information, The Consumer Law Market, And The First Amendment, Renee Newman Knake

Fordham Law Review

No abstract provided.

Tinker Gone Viral: Diverging Threshold Tests For Analyzing School Regulation Of Off-Campus Digital Student Speech, Daniel Marcus-Toll

Fordham Law Review

    In the context of students’ free speech rights, courts have traditionally premised school regulatory authority on geography, deferring to school officials on campus and limiting a school’s capacity to discipline students for conduct taking place beyond school hours or property. In the contemporary setting, however, where wireless devices, mobile phones, and other communicative technologies abound, a student may affect the school environment significantly without setting foot on school property. In the absence of guidance from the U.S. Supreme Court, the limits of school authority to regulate such “off-campus” student speech are uncertain.

    Several courts have permitted school discipline in response …

Regulating The Militia Well: Evaluating Choices For State And Municipal Regulators Post-Heller, Benjamin H. Weissman

Fordham Law Review

    Until its 2008 decision in District of Columbia v. Heller, the U.S. Supreme Court had never struck down any firearm restrictions as violating the Second Amendment of the U.S. Constitution. In Heller, the majority held that the Second Amendment’s text and original public meaning protect an individual’s right to keep and bear arms for self-defense in the home. Both proponents and opponents of gun control regulation saw the Heller decision as ushering in a new era of Second Amendment jurisprudence.

    On the one hand, Justice Antonin Scalia’s opinion for the majority in Heller was seen as a vindication …

Foreword: The Profession’S Monopoly And Its Core Values, W. Bradley Wendel

Fordham Law Review

No abstract provided.

The Monopoly Myth And Other Tales About The Superiority Of Lawyers, Leslie C. Levin

Fordham Law Review

No abstract provided.

Cracks In The Profession’S Monopoly Armor, Jack P. Sahl

Fordham Law Review

No abstract provided.

Hemispheres Apart, A Profession Connected, Dana Remus

Fordham Law Review

No abstract provided.

The Legal Profession’S Monopoly: Failing To Protect Consumers, Laurel A. Rigertas

Fordham Law Review

No abstract provided.

Overstepping Ethical Boundaries? Limitations On State Efforts To Provide Access To Justice In Family Courts, Jessica Dixon Weaver

Fordham Law Review

    Family law courts in America are overwhelmed with self-represented parties who try their best to navigate an unfamiliar territory laden with procedural and evidentiary rules. Efforts to level the playing field in these courts have resulted in state entities and judges taking on roles that previously belonged to attorneys. State supreme court judges and state agencies draft and promulgate family law forms, such as divorce pleadings and paternity acknowledgments, to provide poor citizens access to justice. While these efforts have resulted in positive outcomes for some families, reliance on the state’s imprimatur has caused significant harm to others. Upon closer …

Access To Justice Requires Access To Attorneys: Restrictions On The Practice Of Law Serve A Societal Purpose, Lisa H. Nicholson

Fordham Law Review

No abstract provided.

What Do We Talk About When We Talk About Control?, Anthony J. Sebok

Fordham Law Review

No abstract provided.

The Future Of Big Law: Alternative Legal Service Providers To Corporate Clients, John S. Dzienkowski

Fordham Law Review

No abstract provided.

The Lawyer’S Monopoly—What Goes And What Stays, Benjamin H. Barton

Fordham Law Review

    We live in a time of unprecedented changes for American lawyers, probably the greatest changes since the Great Depression. That period saw the creation of the lawyer’s monopoly through a series of regulatory modifications. Will we see the same following the Great Recession? Formally, no. This Article predicts that formal lawyer regulation in 2023 will look remarkably similar to lawyer regulation in 2013. This is because lawyer regulators will not want to rock the boat in the profession or in law schools during a time of roil.

    Informally, yes! We are already seeing a combination of computerization, outsourcing, and nonlawyer …