Law Commons^™

Police Officers, Policy, And Personnel Files: Prosecutorial Disclosure Obligations Above And Beyond Brady, Lauren Giles

Fordham Law Review

Police officers play a significant role in the criminal trial process and are unlike any other witness who will take the stand. They are trained to testify, and jurors find them more credible than other witnesses, even though officers may have more incentive to lie than the ordinary witness. Despite the role of police officers in criminal proceedings, state statutes say virtually nothing about evidence used to impeach police officers, often contained in the officer’s personnel file. Worse still, the standard for disclosing information in an officer’s personnel file varies among and within states, resulting in inconsistent Brady disclosures. This …

Misunderstanding Meriwether, Brian Soucek, Ryan Chen

Fordham Law Review

Meriwether v. Hartop is widely seen as one of the most important academic freedom and transgender rights cases of recent years. Whether praising it as a victory for free speech or condemning it as a threat to educational equality, commentators across the political spectrum have agreed on one thing: the U.S. Court of Appeals for the Sixth Circuit did something big when it held that professors at public universities have a First Amendment right to misgender their students in class. But contrary to popular belief, Meriwether held no such thing. In fact, the Sixth Circuit could not have held what …

Anything But Prideful: Free Speech And Conversion Therapy Bans, State-Federal Action Plans, And Rooting Out Medical Fraud, Jordan Hutt

Fordham Law Review

At a time when conversion therapy might seem archaic to many people, this practice remains prevalent across the United States and finds legal support in the halls of federal courthouses. In 2020, the U.S. Court of Appeals for the Eleventh Circuit, in Otto v. City of Boca Raton, held that two ordinances banning conversion therapy in Boca Raton and Palm Beach violated First Amendment free speech rights. Specifically, Otto held that conversion therapy bans were content-based restrictions subject to strict scrutiny. Conversely, the U.S. Courts of Appeals for the Third and Ninth Circuits’ prior decisions upheld conversion therapy bans …

Manufacturing Uncertainty In Constitutional Law, Ari Ezra Waldman

Fordham Law Review

Civil rights litigation is awash in misinformation. Litigants have argued that abortion causes cancer, that gender-affirming hormone therapy for adolescents is irreversible, and that in-person voter fraud is a massive problem. But none of that is true. The conventional scholarly account about law and misinformation, disinformation, and dubious claims of fact focuses on the power of legislatures and amici to engage in perfunctory fact-finding and to rely on “alternative facts” or outright falsehoods to justify laws that harm and restrict the rights of marginalized populations. At the same time, the literature suggests that judges and the law are inundated with …

Cultural Identity And Territorial Autonomy: U.S. Virgin Islands Jurisprudence And The Insular Cases, Dolace Mclean

Fordham Law Review

This Essay utilizes the lens of postcolonial theory to analyze the development of U.S. Virgin Islands jurisprudence. This Essay asserts that the United States’s acquisition of the territory served the purpose of helping to construct an American narrative of moving from colony to colonial power that surpassed its European forebears. The colonial narrative is fractured by instances of the Supreme Court of the Virgin Islands re-narrating territorial space by utilizing legal principles that are informed by local cultural expressions. Consequently, Virgin Islands jurisprudence is transformed from “colonial dependent” to “postcolonial independent” based on intersectional, progressive principles.

License & (Gender) Registration, Please: A First Amendment Argument Against Compelled Driver's License Gender Markers, Lexi Meyer

Fordham Law Review

For as long as the United States has issued drivers’ licenses, licenses have indicated the holder’s gender in one form or another. Because drivers’ licenses are issued at the state level, states retain the authority to regulate the procedures for amending them. In some states, regulations include requirements that a transgender person undergo gender confirmation surgery before they can amend the gender marker on their driver’s license. Because many transgender people neither desire nor can afford gender confirmation surgery, these laws effectively preclude such people from obtaining gender-accurate identification. In doing so, these laws implicate multiple constitutional rights.

Lower courts …

De Jure Separate And Unequal Treatment Of The People Of Puerto Rico And The U.S. Territories, Natalie Gomez-Velez

Fordham Law Review

Current efforts to dismantle systemic racism in the United States are often met with the argument that legally sanctioned inequality is a thing of the past. Yet despite progress toward formal legal equality, racism and discrimination in the United States exist not only as the effects of past laws and systems—they exist presently in current laws and systems as well. Current U.S. law discriminates against U.S. territories and their residents with respect to citizenship status, voting rights and representation, and equal access to benefits, among other things.

This Essay examines such separate and unequal treatment using the recent case, United …

Looks Matter On Social Media: How Should Courts Determine Whether A Public Official Operates Their Social Media Account Under Color Of State Law?, John B. Tsimis

Fordham Law Review

The widespread use of social media has presented a novel legal landscape for the application of constitutionally protected rights—particularly the First Amendment’s protection of free speech. The First Amendment prohibits the government from excluding citizens from a public forum on the basis of their viewpoints. Public officials acting under color of state law similarly may not use the authority of their offices to deprive citizens of their First Amendment rights.

However, the application of this protection in the context of social media has been inconsistent across federal circuit courts. Although these courts agree that viewpoint discrimination by the government on …

An Employment Discrimination Class Action By Any Other Name, Ryan H. Nelson

Fordham Law Review

In a few years, four out of every five nonunion workers in America will have been forced by their employers to sign an individual arbitration agreement as a condition of employment. This new reality, coupled with the U.S. Supreme Court’s fealty to compelled arbitration and cramped reading of Rule 23 of the Federal Rules of Civil Procedure (“Rule 23”), has killed the employment discrimination class action. But that does not imply the death of collective redress for workers suffering from discrimination. In that spirit, this Article engages in two analyses to keep equal employment opportunity alive at scale.

First, it …

The Reality Of Materiality: Why A Heightened Adversity Standard Has No Place In Title Vii Discrimination Claims, Abigail Mccabe

Fordham Law Review

Title VII of the Civil Rights Act of 1964 forbids discrimination in the workplace. Except, according to certain lower courts’ limiting interpretations, for when it does not. Circuit courts have spent decades imposing an extratextual materiality requirement onto Title VII in contravention of its broad remedial purpose. Accordingly, countless victims of discrimination are unable to seek recourse because their alleged harm was purportedly too insignificant to constitute actionable discrimination under Title VII. This materiality requirement not only presents an additional substantive hurdle for plaintiffs, but also leads to inconsistency and unpredictability, as each circuit fumbles to define what conduct is …

A Living Legacy: The Katzmann Study Group On Immigrant Representation, The Honorable Denny Chin

Fordham Law Review

On March 9, 2023, hundreds of individuals—including immigration lawyers, advocates, government officials, academics, journalists, and philanthropists—gathered for a symposium at Fordham University School of Law entitled Looking Back and Looking Forward: Fifteen Years of Advancing Immigrant Representation. The symposium was organized by the Fordham Law Review and sponsored by law school centers and clinics, nonprofit organizations, and the Katzmann Study Group on Immigrant Representation (the “Study Group”). For members of the Study Group, the day was particularly poignant because several sessions at the symposium honored the life and accomplishments of the Hon. Robert A. Katzmann, the Study Group’s founder and …