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Articles 1 - 30 of 66
Full-Text Articles in Law
The Problem With The “Non-Class” Class: An Urgent Call For Improved Gatekeepers In Merger Objection Litigation, Josh Molder
The Problem With The “Non-Class” Class: An Urgent Call For Improved Gatekeepers In Merger Objection Litigation, Josh Molder
Fordham Journal of Corporate & Financial Law
Until recently, class actions dominated merger objection litigation. However, plaintiff’s lawyers have constructed a “non-class” class where an individual suit can benefit from the leverage of a certified class without ever meeting the stringent class certification requirements of Federal Rules of Civil Procedure 23. This new development has initiated a shift in merger objection litigation where plaintiffs are increasingly filing individual suits instead of class actions. However, this shift has left shareholders vulnerable to collusive settlements because plaintiff’s attorneys have significant control over these suits and a strong incentive to settle quickly for a substantial fee. Additionally, corporate defendants are …
Substantive Due Process And A Comparison Of Approaches To Sexual Liberty, William Council
Substantive Due Process And A Comparison Of Approaches To Sexual Liberty, William Council
Fordham Law Review
Over 150 years ago, Congress passed and the states ratified the Fourteenth Amendment, banning states from passing or enforcing laws based on unconstitutional classifications and protecting persons in the United States from adjudication without due process. For over one hundred years, however, courts and commentators have been fighting over the Fourteenth Amendment’s Due Process Clause’s controversial protections of substantive rights. The U.S. Supreme Court has applied inconsistent methodologies to these substantive due process claims, attempting to walk a tightrope between the Court’s power to subjectively announce new rights as “fundamental” and the traditional role of the states’ plenary police powers. …
A Note On The Fordham Law Review Online Fall Issue, Novel Perspectives On Due Process, Nora Stewart
A Note On The Fordham Law Review Online Fall Issue, Novel Perspectives On Due Process, Nora Stewart
Fordham Law Review Online
2019 has seen extensive discussion of due process in the American public sphere. There is a cultural sense of eroding norms, of institutions and procedural protections under threat. In response to the central role of due process in the cultural discourse and to the publication of Ingrid Wuerth’s Article, The Due Process and Other Constitutional Rights of Foreign Nations, in the November Issue of our print edition, Fordham Law Review Online presents a Fall Issue comprised both of response pieces to Professor Wuerth’s Article and of Essays engaging other thorny questions about due process.
Are Campus Sexual Assault Tribunals Fair?: The Need For Judicial Review And Additional Due Process Protections In Light Of New Case Law, Emily D. Safko
Are Campus Sexual Assault Tribunals Fair?: The Need For Judicial Review And Additional Due Process Protections In Light Of New Case Law, Emily D. Safko
Fordham Law Review
The pervasiveness of sexual assault on college and university campuses and the schools’ failures to take sexual assault seriously have resulted in recent reforms to college campus disciplinary proceedings. The federal government has largely prompted this wave of reform through Title IX, requiring schools to employ particular policies and procedures for investigating and adjudicating sexual assault as a condition of receiving federal funds. Although the federal government’s mandates may be properly motivated, these reforms are criticized because they encourage schools to enact procedures that are heavily stacked against those accused of sexual assault. Consequently, students alleging that they have been …
Should Prosecutors Blog, Post, Or Tweet?: The Need For New Restraints In Light Of Social Media, Emily Anne Vance
Should Prosecutors Blog, Post, Or Tweet?: The Need For New Restraints In Light Of Social Media, Emily Anne Vance
Fordham Law Review
Prosecutors' extrajudicial speech is not a new problem. Indeed, prosecutors' out-of-court statements to the press and the public at large have been of concern for over a century. Consequently, ethical rules and standards have been implemented to protect defendants from undue reputational harm and to strike a balance between trial participants' right to free speech and defendants' right to due process. Although these rules and standards are periodically revised, they have not yet accounted for the differences between traditional media-for which the rules and standards were written-and social media. Recently, however, prosecutors have used social media to discuss pending cases …
Substantive Due Process And U.S. Jurisdiction Over Foreign Nationals, Jennifer K. Elsea
Substantive Due Process And U.S. Jurisdiction Over Foreign Nationals, Jennifer K. Elsea
Fordham Law Review
The due process rights of suspected terrorists have played a major role in the debate about how best to engage terrorist entities after September 11, 2001. Does citizenship or immigration status have a bearing on the treatment of terrorists? Does location within or outside the United States matter? This Article explores the connection between citizenship and alienage, enemy status, allegiance, and due process rights against a backdrop of international law. It surveys the application of due process to citizens and aliens based on the location of misconduct within or outside the territory of the United States and notes the expansion …
The Future Of General Jurisdiction: The Effects Of Daimler Ag V. Bauman, Stephanie Denker
The Future Of General Jurisdiction: The Effects Of Daimler Ag V. Bauman, Stephanie Denker
Fordham Journal of Corporate & Financial Law
The Due Process Clause requires a court to have jurisdiction over a lawsuit before binding the parties to its judgment. However, before 2014, the Supreme Court had not addressed whether a court could impute a subsidiary's contacts to its parent corporation for jurisdictional purposes. Because of this oversight, the Courts of Appeals split over how to impute a subsidiary's contacts. Some courts apply the agency test, while other courts apply variations of the alter ego test. As a result, courts inconsistently asserted jurisdiction over multinational corporations, leading plaintiffs to forum shop and corporations to speculate which forums might assert jurisdiction …
Unearthing The Public Interest: Recognizing Intrastate Economic Protectionism As A Legitimate State Interest, Katharine M. Rudish
Unearthing The Public Interest: Recognizing Intrastate Economic Protectionism As A Legitimate State Interest, Katharine M. Rudish
Fordham Law Review
In Oklahoma, a person must complete sixty-credit hours of undergraduate training and embalm twenty-five bodies before being legally licensed to sell caskets in the state. In Louisiana, in order to sell caskets, one must operate a fully licensed funeral establishment, defined as a place dedicated to preparing bodies for burial. In recent years, these states and others have faced legal challenges to casket sale restrictions by individuals who wish to sell caskets directly to the public, yet who are unable to do so as they are not licensed funeral directors. Courts have grappled with whether these state regulations, which in …
Must Substantive Due Process Land Use Claims Be So “Exhaust”Ing?, Nader James Khorassani
Must Substantive Due Process Land Use Claims Be So “Exhaust”Ing?, Nader James Khorassani
Fordham Law Review
When is a land use dispute a federal case? Although some perceive challenges to zoning and land use laws as local issues ripe for local resolution, some fights over land use pose constitutional questions suitable for federal adjudication. Indeed, many zoning disputes implicate substantive due process, a federally protected constitutional guarantee. A circuit split has developed regarding when plaintiffs may assert substantive due process claims in federal court. While the First and Seventh Circuits only hear such cases when the plaintiff has first brought her substantive due process claim in state court, the Second, Third, Ninth, and Eleventh Circuits impose …
How The Establishment Clause Can Influence Substantive Due Process: Adultery Bans After Lawrence, Andrew D. Cohen
How The Establishment Clause Can Influence Substantive Due Process: Adultery Bans After Lawrence, Andrew D. Cohen
Fordham Law Review
Criminal adultery bans, despite widespread transgression and lax enforcement, remain on the books in a substantial minority of states. The landmark Lawrence v. Texas decision casts doubt on all state interference with consensual sexual activity among adults, including adultery bans. Additionally, adultery bans on their face implicate the Establishment Clause, due to adultery bans' and marriage's roots in religious doctrine and religiosity. This Note examines the constitutionality of adultery bans after Lawrence v. Texas, and proposes a novel approach to substantive due process analysis that applies Establishment Clause values. In proposing what this Note dubs the "Establishment Clause prism," through …
Beyond Lawrence V. Texas: Crafting A Fundamental Right To Sexual Privacy, Kristin Fasullo
Beyond Lawrence V. Texas: Crafting A Fundamental Right To Sexual Privacy, Kristin Fasullo
Fordham Law Review
After the watershed 2003 U.S. Supreme Court decision Lawrence v. Texas, courts are faced with the daunting task of navigating the bounds of sexual privacy in light of Lawrence’s sweeping language and unconventional structure. This Note focuses on the specific issue of state governments regulating sexual device distribution. Evaluating the substantive due process rights of sexual device retailers and users, this Note ultimately argues that the privacy interest identified in Lawrence is sufficiently broad to protect intimate decisions to engage in adult consensual sexual behavior, including the liberty to sell, purchase, and use a sexual device.
Evaluating The Mission: A Critical Review Of The History And Evolution Of The Sec Enforcement Program, Paul S. Atkins, Bradley J. Bondi
Evaluating The Mission: A Critical Review Of The History And Evolution Of The Sec Enforcement Program, Paul S. Atkins, Bradley J. Bondi
Fordham Journal of Corporate & Financial Law
No abstract provided.
Judicial Power And Moral Ideology In Wartime: Shaping The Legal Process In World War I Britain , Rachel Vorspan
Judicial Power And Moral Ideology In Wartime: Shaping The Legal Process In World War I Britain , Rachel Vorspan
Faculty Scholarship
Offering a cautionary lesson of contemporary significance, the Article suggests that judicial power is not in and of itself the solution to executive infringements on due process rights in wartime. It examines the response of the British judiciary to serious threats to its institutional power during the First World War. To facilitate prosecution of the war, the government narrowed the jurisdiction of the traditional courts by eliminating jury trial, subjecting civilians to court-martial, and establishing new administrative tribunals to displace the traditional courts. Rather than remaining passive and deferential to the executive, as scholars have generally assumed, the judges moved …
Miranda, Please Report To The Principal's Office, Meg Penrose
Miranda, Please Report To The Principal's Office, Meg Penrose
Fordham Urban Law Journal
This Article addresses whether Miranda v. Arizona should apply to students interrogated by school officials during school hours. First, the article provides a brief overview of the law of minors and confessions. Next, it considers the increasing law enforcement presence on our school campuses and evaluates how this presence affects the role of school officials. Finally, the high level of cooperation between law enforcement and school officials in criminal law enforcement is considered to determine whether Miranda should apply in the principal's office.
You Have A Right To Remain Silent, Michael Avery
You Have A Right To Remain Silent, Michael Avery
Fordham Urban Law Journal
The Supreme Court will decide in the October 2002 term whether there is a cause of action under 42 U.S.C. Section 1983 based on a coercive police interrogation of a suspect in custody who has not been given Miranda warnings. The Supreme Court cannot decide that there is no cause of action under section 1983 for damages caused by coercive interrogation practices without turning its back on a large body of its own jurisprudence and on the deeply rooted cultural and political expectations of American citizens who trust that they have a meaningfu lconstitutionally protected right to remain silent when …
Due Process And Problem Solving Courts, Eric Lane
Due Process And Problem Solving Courts, Eric Lane
Fordham Urban Law Journal
This article addresses the model of the problem-solving courts, beginning with the 1989 Dade County, Florida drug court and the role of the pro-active problem solving judge as presented by Judge Lederman of the Dade County drug court. The article reviews the role of the pro-active problem-solving judge in light of the defendants due process rights. After reviewing several case studies, transcripts, and literature on the issue, the article concludes that problem-solving judging and lawyering need not be in conflict with due process standards.
Does A Marriage Really Need Sex?: A Critical Analysis Of The Gender Restriction On Marriage, Randi E. Frankle
Does A Marriage Really Need Sex?: A Critical Analysis Of The Gender Restriction On Marriage, Randi E. Frankle
Fordham Urban Law Journal
This Note discusses the issues surrounding intersex persons and the right to marry. The Comment first discusses the constitutional protection of the right to marry, intersex conditions, and case law regarding intersex, transsexual, and same-sex marriage. It further addresses the consequences for marriage when it is narrowly defined. Further, the Comment proposes an alternative solution to the one many courts have used. This solution allows an intersex person to self-designate her gender and be able to marry either a man or a woman. Finally, this Comment argues that if an intersex person can marry either a man or a woman, …
Due Process And Problem Solving Courts, Eric Lane
Due Process And Problem Solving Courts, Eric Lane
Fordham Urban Law Journal
This article addresses the model of the problem-solving courts, beginning with the 1989 Dade County, Florida drug court and the role of the pro-active problem solving judge as presented by Judge Lederman of the Dade County drug court. The article reviews the role of the pro-active problem-solving judge in light of the defendants due process rights. After reviewing several case studies, transcripts, and literature on the issue, the article concludes that problem-solving judging and lawyering need not be in conflict with due process standards.
The Natural Law Due Process Philosophy, Robert P. George
The Natural Law Due Process Philosophy, Robert P. George
Fordham Law Review
No abstract provided.
Why The New York State System For Obtaining A License To Carry A Concealed Weapon Is Unconstitutional, Suzanne Novak
Why The New York State System For Obtaining A License To Carry A Concealed Weapon Is Unconstitutional, Suzanne Novak
Fordham Urban Law Journal
The New York State administrative system for obtaining a license to carry a concealed weapon violates the state constitution and the tenets of administrative law vital to a democratic society. This article discusses the failures of the New York State administrative procedures for issuing carry licenses. In addition, this article asserts that by avoiding policy determinations, the legislature has created a system that disadvantages both individual applicants and the public at large. This article concludes that both the New York Legislature and courts must act to rectify the state's unconstitutional and undemocratic scheme for issuing carry licenses.
Let Justice Flow Like Water: The Role Of Moral Arugument In Constitutional Interpretation , David L. Fitzgerald
Let Justice Flow Like Water: The Role Of Moral Arugument In Constitutional Interpretation , David L. Fitzgerald
Fordham Law Review
No abstract provided.
Preserving Procedural Due Process For Legal Immigrans Receiving Food Stamps In Light Of The Personal Responsibility Act Of 1996, Todd G. Cosenza
Preserving Procedural Due Process For Legal Immigrans Receiving Food Stamps In Light Of The Personal Responsibility Act Of 1996, Todd G. Cosenza
Fordham Law Review
No abstract provided.
Assisted Suicide, The Due Process Clause And "Fidelity In Translation", Willard C. Shih
Assisted Suicide, The Due Process Clause And "Fidelity In Translation", Willard C. Shih
Fordham Law Review
No abstract provided.
Can Punitive Damages Withstand A Due Process Challenge After Bankers Life & Casualty Co. V. Crenshaw And Browning-Ferris Industries Of Vermont V. Kelco Disposal?, Sanjit S. Shah
Fordham Urban Law Journal
This Note will consider whether punitive damages can withstand a constitutional challenge brought under the Due Process Clause of the fourteenth amendment. Part II of the Note examines how courts have resolved procedural due process and traditional vagueness challenges to exemplary damage awards. This section also discusses Justice O'Connor's approach to the vagueness doctrine, and the possibility that substantive due process may affect jury discretion to award punitive damages. Part III discusses why punitive damages do not violate the Due Process Clause. This Note concludes that punitive damages are not unconstitutional on procedural due process, fundamental fairness, or traditional vagueness …
Bias And The Loudermill Hearing: Due Process Or Lip Service To Federal Law?, Robert, Jr. F. Maslan
Bias And The Loudermill Hearing: Due Process Or Lip Service To Federal Law?, Robert, Jr. F. Maslan
Fordham Law Review
No abstract provided.
Private Prosecutors In Criminal Contempt Actions Under Rule 42(B) Of The Federal Rules Of Criminal Procedure, Patrcia Moran
Private Prosecutors In Criminal Contempt Actions Under Rule 42(B) Of The Federal Rules Of Criminal Procedure, Patrcia Moran
Fordham Law Review
No abstract provided.
The Trademark Counterfeiting Act Of 1984: A Sensible Legislative Response To The Ills Of Commercial Counterfeiting, Brian J. Kearney
The Trademark Counterfeiting Act Of 1984: A Sensible Legislative Response To The Ills Of Commercial Counterfeiting, Brian J. Kearney
Fordham Urban Law Journal
This student note explores the recently passed Trademark Counterfeit Act of 1984, viewing it in the context of ever-growing counterfeiting of commercial, agricultural, and aeronautical trademarks. The author examines the history of US trademark regulation, beginning with the Lanham Act of 1946, and then predicts the effects the 1984 Act will have on commercial practice, antitrust law, the sale of goods on the "gray market," and due process implications. The author concludes that though ex parte remedies will be necessary to maintain trademark practices, the 1984 Act does not represent any sort of infringement on due process or commercial practice, …
Union Affiliations And The Rights Of Nonunion Employees, Edward J. O'Connell
Union Affiliations And The Rights Of Nonunion Employees, Edward J. O'Connell
Fordham Law Review
No abstract provided.
Due Process: Application Of The Parratt Doctrine To Random And Unauthorized Deprivations Of Life And Liberty, Harold C. Geary
Due Process: Application Of The Parratt Doctrine To Random And Unauthorized Deprivations Of Life And Liberty, Harold C. Geary
Fordham Law Review
No abstract provided.
The Right Of Undocumented Aliens Against Their Employers, Floyd G. Cottrell
The Right Of Undocumented Aliens Against Their Employers, Floyd G. Cottrell
Fordham Urban Law Journal
Undocumented aliens who seek to enforce their rights against their employer in state court will often face deportation. An undocumented alien is vulnerable to discriminatory treatment in the workplace, and abusive employment practices, which may often incentivize employers to hire undocumented aliens. This Note exams the legal issues surrounding the employment of undocumented aliens. In particular, the validity of state regulation is examined in light of the rights guaranteed to undocumented aliens under the fourteenth amendment to the United States Constitution, granting due process. The author argues that state welfare benefits should not be denied to undocumented aliens, nor should …