Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Criminal Law (21)
- Criminal Procedure (16)
- Law and Psychology (15)
- Tax Law (15)
- Administrative Law (10)
-
- Election Law (10)
- Evidence (10)
- Law and Society (10)
- Public Law and Legal Theory (9)
- President/Executive Department (8)
- Securities Law (8)
- Constitutional Law (7)
- Civil Procedure (5)
- Courts (5)
- Business Organizations Law (4)
- Legal Ethics and Professional Responsibility (4)
- Banking and Finance Law (3)
- Bankruptcy Law (3)
- Intellectual Property Law (3)
- International Law (3)
- Legal Profession (3)
- Torts (3)
- First Amendment (2)
- International Trade Law (2)
- Judges (2)
- Jurisdiction (2)
- Litigation (2)
- National Security Law (2)
- Antitrust and Trade Regulation (1)
- Keyword
-
- Criminal law; neuroscience; neurolaw (13)
- Tax (13)
- Evidence; hearsay; reform; rules; federal rules of evidence (10)
- Presidential election; election law; election process law (8)
- Administrative law (6)
-
- Bankruptcy (3)
- Criminal law (3)
- Agency (2)
- Federal Courts; introduction (2)
- General counsel (2)
- Regulation (2)
- Regulatory (2)
- ACCA (1)
- Administrative Law (1)
- Administrative; welfare; social security (1)
- Antitrust; Federal Courts (1)
- Appellate jurisprudence; judge; appellate law (1)
- Arbitration (1)
- Campaign Finance (1)
- Citizens United (1)
- Civil procedure (1)
- Civil procedure; statute of limitations (1)
- Class actions (1)
- Collateral Estoppel (1)
- College campus (1)
- College rape (1)
- College sexual assault (1)
- Compentence (1)
- Congress; consumer protection; Fair Debt Collection Practices Act; violation (1)
- Constitution; constitutional law; united states v. johnson; felony; felonies; violent; violence; retroactivity (1)
Articles 31 - 60 of 108
Full-Text Articles in Law
Voluntary Dismissal Of Time-Barred Claims, Danielle Calamari
Voluntary Dismissal Of Time-Barred Claims, Danielle Calamari
Fordham Law Review
Both state and federal courts have procedural rules that allow a plaintiff to voluntarily dismiss a claim without prejudice and then to refile it within the applicable statute-of-limitations period. However , a plaintiff’ s right to this procedural avenue is not absolute, and courts maintain broad discretion in deciding whether to dismiss a claim with or without prejudice. If a court allows a plaintiff to voluntarily dismiss a time-barred claim without prejudice, the plaintiff may be able to refile the claim in a jurisdiction with a longer statute of limitations. As a result, the defendant loses the ability to assert …
In Defense Of The Dealers: Why The Sec Should Allow Substituted Compliance With The European Union For Security-Based Swap Dealers, John Welling
Fordham Law Review
Following the 2008–2009 financial crisis, legislators around the world enacted laws that regulated the over-the-counter (OTC) derivatives markets for the first time. These laws, though necessary, have duplicative requirements that dampen market efficiency. In the United States, the Securities and Exchange Commission is contemplating a “substituted compliance” regime with other jurisdictions. This regime would allow market participants to comply with one jurisdiction’s requirements for certain transactions, rather than the requirements of multiple jurisdictions. This Note argues that the SEC should allow substituted compliance for OTC derivatives, but only for dealers located in the United States and European Union. Some advocate …
Neuroscience And Criminal Law: Have We Been Getting It Wrong For Centuries And Where Do We Go From Here?, Elizabeth Bennett
Neuroscience And Criminal Law: Have We Been Getting It Wrong For Centuries And Where Do We Go From Here?, Elizabeth Bennett
Fordham Law Review
Moral responsibility is the foundation of criminal law. Will the rapid developments in neuroscience and brain imaging crack that foundation—or, perhaps, shatter it completely? Although many scholars have opined on the subject, as far as I have discovered, few come from a front-line perspective.
Do The Second Circuit’S Legal Standards On Class Certification Incentivize Forum Shopping?: A Comparative Analysis Of The Second Circuit’S Class Certification Jurisprudence, Shrey Sharma
Fordham Law Review
The Class Action Fairness Act altered the jurisdictional landscape of class actions by relaxing the barriers to satisfying diversity jurisdiction in federal court. As a result, plaintiffs’ attorneys frequently find themselves filing class actions in federal court, and face the critical question of where to initiate their lawsuit. Many plaintiffs’ attorneys consider the favorability of legal standards when determining the forum in which to file their class action. Among other substantive and procedural considerations, the applicable class certification standards of the forum are an important forum selection factor. The Second Circuit, in particular, is a forum that plaintiffs’ attorneys might …
Seeing Voices: Potential Neuroscience Contributions To A Reconstruction Of Legal Insanity, Jane Campbell Moriarty
Seeing Voices: Potential Neuroscience Contributions To A Reconstruction Of Legal Insanity, Jane Campbell Moriarty
Fordham Law Review
Part I of this Article explains the insanity defense in the United States. Next, Part II discusses some of the brain-based research about mental illness, focusing on schizophrenia research. Then, Part III looks at traumatic brain injury and the relationship among injury, cognition, and behavior. Finally, Part IV explains how a new neuroscience-informed standard might better inform our moral decision making about legal insanity.
Young Adulthood As A Transitional Legal Category: Science, Social Change, And Justice Policy, Elizabeth S. Scott, Richard J. Bonnie, Laurence Steinberg
Young Adulthood As A Transitional Legal Category: Science, Social Change, And Justice Policy, Elizabeth S. Scott, Richard J. Bonnie, Laurence Steinberg
Fordham Law Review
This Article seeks to advance discussions about the potential implications for justice policy of recent neuroscientific, psychological, and sociological research on young adults. In doing so, we emphasize the importance of not exaggerating either the empirical findings or their policy relevance. The available research does not indicate that individuals between the ages of eighteen and twenty are indistinguishable from younger adolescents in attributes relevant to criminal offending and punishment. Thus, we are skeptical on both scientific and pragmatic grounds about the merits of the proposal by some advocates that juvenile court jurisdiction should be categorically extended to age twenty-one. But …
The Overlooked History Of Neurolaw, Francis X. Shen
The Overlooked History Of Neurolaw, Francis X. Shen
Fordham Law Review
In this Article, I argue that our field should more readily acknowledge that there is a history to law and neuroscience. A central challenge is whether, and how, we will learn from this history. I do not endeavor here to provide a comprehensive history of brain science and law but rather to highlight a series of four important, yet often overlooked, “moments.” These moments are (1) foundational medico-legal dialogue in the nineteenth and early twentieth centuries, (2) the introduction of electroencephalography evidence into the legal system in the mid- twentieth century, (3) the use of psychosurgery for violence prevention in …
The Strict Liability In Fault And The Fault In Strict Liability, John C.P. Goldberg, Benjamin C. Zipursky
The Strict Liability In Fault And The Fault In Strict Liability, John C.P. Goldberg, Benjamin C. Zipursky
Fordham Law Review
Tort scholars have long been obsessed with the dichotomy between strict liability and liability based on fault or wrongdoing. We argue that this is a false dichotomy. Torts such as battery, libel, negligence, and nuisance are wrongs, yet all are “strictly” defined in the sense of setting objective and thus quite demanding standards of conduct. We explain this basic insight under the heading of “the strict liability in fault.” We then turn to the special case of liability for abnormally dangerous activities, which at times really does involve liability without wrongdoing. Through an examination of this odd corner of tort …
Lonely Too Long: Redefining And Reforming Juvenile Solitary Confinement, Jessica Lee
Lonely Too Long: Redefining And Reforming Juvenile Solitary Confinement, Jessica Lee
Fordham Law Review
Solitary confinement is a frequently used penal tool in all fifty states against all types of offenders. However, since its development in the 1800s, solitary confinement has been found to have damaging psychological effects. Juvenile inmates in particular suffer the greatest psychological damage from solitary confinement because their brains are still in a developmental state. This has led many to propose various reforms that would either end or limit the use of solitary confinement for those under the age of eighteen. However, new neurological studies on brain development show that inmates between the ages of eighteen and twenty-five also suffer …
Introduction: Constraint, Authority, And The Rule Of Law In A Federal Circuit Court Of Appeals, John Fabian Witt
Introduction: Constraint, Authority, And The Rule Of Law In A Federal Circuit Court Of Appeals, John Fabian Witt
Fordham Law Review
Congress’ Evarts Act, signed into law in 1891, created a new Article III federal court designed almost exclusively to sit as an intermediate appellate court in between the federal trial courts and the U.S. Supreme Court. Congress created the new Evarts Act appellate courts to relieve pressure on the Supreme Court’s growing workload and to create a less arbitrary system of appeals for litigants in the federal trial courts. These twin goals of reducing the Supreme Court’s workload and establishing a meaningful right of appeal produced a set of circuit courts of appeals with a distinctively constrained new role. This, …
White Collar Crime, Robert J. Anello, Miriam L. Glaser
White Collar Crime, Robert J. Anello, Miriam L. Glaser
Fordham Law Review
This Article will address six different areas of white collar law and procedure: (1) fraud, (2) the Racketeer Influenced & Corrupt Organizations Act (RICO), (3) conspiracy, (4) public corruption, (5) white collar practice, and (6) sentencing. Many of the cases profiled in this Article have driven legal and cultural developments far beyond the federal courts, including the cases of Leona Helmsley, one of New York’s most prominent real estate moguls; the “Mafia Commission,” a take-down of the bosses of the Five Families of La Cosa Nostra; and Abscam, a massive sting operation created by the federal government to expose corrupt …
The Second Circuit And Social Justice, Matthew Diller, Alexander A. Reinert
The Second Circuit And Social Justice, Matthew Diller, Alexander A. Reinert
Fordham Law Review
This Article highlights just a few areas of law as illustrations of the Second Circuit’s jurisprudence in dealing with claims of marginalized and subordinated individuals and groups. In the area of civil rights, this Article focuses on sexual harassment law and prisoners’ rights. In the area of public benefits, this Article focuses on public assistance and the disability benefit programs of the Social Security Act.
Antitrust Jurisprudence In The Second Circuit, Saul P. Morgenstern, Jennifer B. Patterson, Terri A. Mazur
Antitrust Jurisprudence In The Second Circuit, Saul P. Morgenstern, Jennifer B. Patterson, Terri A. Mazur
Fordham Law Review
A running thread through Second Circuit antitrust jurisprudence is a willingness to examine market participants’ real-world conduct and the consequences of that conduct in seeking out the balance between incentivizing robust competition and protecting the market—and ultimately consumers—from distortions caused by anticompetitive conduct. This Article collects and describes rulings that reflect such themes in Second Circuit antitrust jurisprudence. The court’s long history in this substantive space, its likely continued exposure to critical antitrust questions, and the importance of this area of the law to our national economy assure that others will be examining and shedding further light on the Second …
The Second Circuit And The Development Of Intellectual Property Law: The First 125 Years, Kenneth A. Plevan
The Second Circuit And The Development Of Intellectual Property Law: The First 125 Years, Kenneth A. Plevan
Fordham Law Review
The Second Circuit has had a profound impact on copyright law. Judge Learned Hand’s decision in Nichols v. Universal Pictures Corp. helped define for later generations the fundamental idea/expression dichotomy. The transformative use doctrine has not been without its critics, but other leading decisions have helped write the rules of the road for the e-commerce era, both in the copyright and trademark contexts, as well as the right of publicity, albeit a creation of state statutory law, is generally considered an area of intellectual property and is covered in this article. Law school catalogs usually include trade secret law within …
Securities And Financial Regulation In The Second Circuit, Karen Patton Seymour
Securities And Financial Regulation In The Second Circuit, Karen Patton Seymour
Fordham Law Review
The Second Circuit has long been the country’s preeminent court in the field of securities and financial regulation. The reputation of the Second Circuit in the realm of securities has been so great that other courts, including the Supreme Court, often mention by name the particular judges that decided a given Second Circuit precedent to justify their reliance on that decision. Many courts have long looked to its jurisprudence for guidance in deciding novel or complex securities law issues. This article tracks the Second Circuit’s significant role in developing civil enforcement mechanisms for federal securities laws and making criminal prosecution …
Introduction From The Editors Of Volume 84, Hopi Costello, Matthew Geyer, Brandon Ruben
Introduction From The Editors Of Volume 84, Hopi Costello, Matthew Geyer, Brandon Ruben
Fordham Law Review
The U.S. Court of Appeals for the Second Circuit has always held special significance for the Fordham Law Review’s student members. Ennobled by the examples of Fordham Law School and Fordham Law Review alumni Judge Irving Kaufman, Judge William Mulligan, Judge Joseph McLaughlin, and, most recently, Judge Denny Chin, the student members of the Fordham Law Review strive to impact our profession at its highest levels. It is thus with great pleasure and pride that four current students on the Fordham Law Review join this intellectual lineage by contributing the notes written for this commemorative issue, eaching tackles recent …
Supervised Release, Sex-Offender Treatment Programs, And Substantive Due Process, Max B. Bernstein
Supervised Release, Sex-Offender Treatment Programs, And Substantive Due Process, Max B. Bernstein
Fordham Law Review
This Note argues that mandated PPG testing should be eliminated as a condition of federal supervised release. The test infringes on a constitutionally protected liberty interest against unwanted bodily intrusions and, as only the Second Circuit has held, any condition of supervised release that infringes on a constitutionally protected right may be mandated only where it is narrowly tailored to serve a compelling government interest. Because there are a number of viable, less intrusive alternatives, PPG testing as it stands today is not narrowly tailored enough to serve a compelling government interest.
Bank Liability Under The Antiterrorism Act: The Mental State Requirement Under § 2333(A), Olivia G. Chalos
Bank Liability Under The Antiterrorism Act: The Mental State Requirement Under § 2333(A), Olivia G. Chalos
Fordham Law Review
This Note specifically addresses the jurisdictional split on the mental state requirement necessary to hold a defendant liable under the ATA. This Note explores the current judicial interpretations of the statute and concludes that, as the statute stands, the Second Circuit best interprets the mental state requirement for § 2333(a) claims predicated on a violation of material support laws. This Note proposes, however, that Congress should amend the ATA to clarify the state-of-mind requirement and should only allow for a cause of action where a bank manifests heightened culpability through intentional wrongdoing in the provision of financial services to foreign …
Insta-Appropriation: Finding Boundaries For The Second Circuit’S Fair Use Doctrine After Campbell, Anna Schuler
Insta-Appropriation: Finding Boundaries For The Second Circuit’S Fair Use Doctrine After Campbell, Anna Schuler
Fordham Law Review
Copyright law’s current fair use landscape is riddled with unclear standards and old considerations forced upon new media. This is especially problematic in the context of digital appropriation of art from online social media platforms—an issue highlighted by Richard Prince’s exhibit “New Portraits,” in which he appropriated strangers’ Instagram photos for his own profit. Unless this situation is remedied, digital content creators will effectively lose their statutory copyright protections. Thus, when considering digital appropriation cases, courts should require a transformation of content rather than purpose, should elevate the weight of the fourth statutory factor, and should reinstate the “comment upon” …
Free Speech And Civil Liberties In The Second Circuit, Floyd Abrams
Free Speech And Civil Liberties In The Second Circuit, Floyd Abrams
Fordham Law Review
Much of the development of First Amendment law in the United States has occurred as a result of American courts rejecting well-established principles of English law. The U.S. Supreme Court has frequently rejected English law, permitting far more public criticism of the judiciary than would be countenanced in England, rejecting English libel law as being insufficiently protective of freedom of expression and holding that even hateful speech directed at minorities receives the highest level of constitutional protection. The Second Circuit has played a major role in the movement away from the strictures of the law as it existed in the …
Shining The Light A Little Brighter: Should Item 303 Serve As A Basis For Liability Under Rule 10b-5?, Lauren M. Mastronardi
Shining The Light A Little Brighter: Should Item 303 Serve As A Basis For Liability Under Rule 10b-5?, Lauren M. Mastronardi
Fordham Law Review
This Note discusses a securities disclosure issue stemming from a split between the Second Circuit and the Ninth Circuit. The question presented is whether failure to comply with a disclosure requirement created by Item 303 of Regulation S-K can provide a basis for liability under section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. The Ninth Circuit held that such violation does not provide a basis for liability. Conversely, in Stratte-McClure v. Morgan Stanley, the Second Circuit explicitly disagreed with the Ninth Circuit and concluded that this violation may serve as a basis for liability. This …
Preface: One Hundred Twenty-Five Years Of The U.S. Court Of Appeals For The Second Circuit: A Brief Project Overview, Robert A. Katzmann
Preface: One Hundred Twenty-Five Years Of The U.S. Court Of Appeals For The Second Circuit: A Brief Project Overview, Robert A. Katzmann
Fordham Law Review
An important part of that 125th anniversary examination is found in the pages that follow: essays by prominent lawyers of the Second Circuit about some of the vital areas of law emanating from our court. Much gratitude is due to the editors of the Fordham Law Review; Michael Cardozo and Bettina Plevan, who painstakingly oversaw the issue; and to the lawyers who contributed their thinking and writings. Six articles have been specially drafted on: First Amendment/civil liberties, by Floyd Abrams; white collar crime, by Robert J. Anello and Miriam L. Glaser; antitrust, by Saul P. Morgenstern, Jennifer B. Patterson, …
Threats Against America: The Second Circuit As Arbiter Of National Security Law, David Raskin
Threats Against America: The Second Circuit As Arbiter Of National Security Law, David Raskin
Fordham Law Review
For nearly 100 years, the U.S. Court of Appeals for the Second Circuit has been a leading force in defining and resolving the uniquely thorny issues that arise at the intersection of individual liberty and national security. The court’s decisions in this arena are characterized by its willingness to tackle difficult questions and its skill in balancing the needs of the government with the rights of the accused to ensure fundamental fairness in the ages of espionage and terror.
Framing Middle-Class Insecurity: Tax And The Ideology Of Unequal Economic Growth, Martha T. Mccluskey
Framing Middle-Class Insecurity: Tax And The Ideology Of Unequal Economic Growth, Martha T. Mccluskey
Fordham Law Review
This Article first explains how the prevailing discourse frames federal tax support for the middle class as either consumption or redistribution, both of which appear to be essentially unproductive and potentially destructive. Second, this Article examines the expansion of state and local tax support for elite private capital. In contrast to tax support favoring the middle class, this upper-class support is accepted widely as necessary for productive economic development. Operating below the radar of prominent tax debates, this state and local tax policy reveals more starkly and perversely how prevailing views of tax rationalize inequality and austerity. This Article concludes …
Up The Chute, Down The Ladder: Shifting Priorities Through Structured Dismissals In Bankruptcy, Bethany K. Smith
Up The Chute, Down The Ladder: Shifting Priorities Through Structured Dismissals In Bankruptcy, Bethany K. Smith
Fordham Law Review
In a structured dismissal of a Chapter 11 bankruptcy case, a bankruptcy court approves case dismissal alongside a stakeholder agreement as to the manner in which the estate is to be dealt with once the case has been dismissed. Such orders are controversial in that they are not explicitly authorized through the U.S. Bankruptcy Code (“the Code”) and are especially controversial where the accompanying agreement seeks to distribute estate property in contravention of the priority scheme laid out in § 507 of the Code. Where the agreement violates this so-called waterfall payment method, bankruptcy courts are faced with difficult questions: …
Registered Savings Plans And The Making Of Middle-Class Canada: Toward A Performative Theory Of Tax Policy, Lisa Philipps
Registered Savings Plans And The Making Of Middle-Class Canada: Toward A Performative Theory Of Tax Policy, Lisa Philipps
Fordham Law Review
Campaigning politicians and elected governments across Canada’s political spectrum strive to position themselves as defenders of the middle class. This is to be expected given the large proportion of the Canadian population that self-identifies as middle class. Since the term lacks precision, it is a claim that can accommodate a wide range of policy proposals. Tax policy serves as a prime vehicle for making this appeal to middle-class voters. Undoubtedly, any tax reform proposal can be examined critically to evaluate its likely distributional impacts and how well these map onto specific definitions of the middle class. This Article attempts, however, …
No Misrepresentation Needed: Excepting Discharge For Actual Fraud Under 11 U.S.C. § 523 Without Misrepresentation, Morgan Green
No Misrepresentation Needed: Excepting Discharge For Actual Fraud Under 11 U.S.C. § 523 Without Misrepresentation, Morgan Green
Fordham Law Review
Imagine buying a game from a seller and promising to repay him at a later date. However, instead of repayment, you decide to give the game to your friend, who in turn allows you to use it. Then your friend declares bankruptcy to discharge the price of the game from his debts, thus allowing you both to use it without paying. This repayment runaround is the issue that the First and Fifth Circuits were asked to decide in two recent cases. Specifically, the question was whether a debt incurred by “actual fraud” may be discharged by the recipient of the …
Foreword: We Are What We Tax, Mary Louise Fellows, Grace Heinecke, Linda Sugin
Foreword: We Are What We Tax, Mary Louise Fellows, Grace Heinecke, Linda Sugin
Fordham Law Review
On November 12 and 13, 2015, the Fordham Law Review hosted a symposium entitled We Are What We Tax. We invited scholars with a wide array of expertise inside and outside of the tax arena to consider how tax laws have shaped public and private institutions, cultural norms and hierarchies, and societal values.
Perpetuating Inequality By Taxing Wealth, Goldburn P. Maynard Jr.
Perpetuating Inequality By Taxing Wealth, Goldburn P. Maynard Jr.
Fordham Law Review
This Article attempts to correct this shortcoming in the progressive argument by returning narrative to its central place in the estate tax debate. Drawing on psychological insights, I hope to underscore the difficulty of the effort to preserve progressive taxation and combat wealth inequality.
Job Creationism, Victor Fleischer
Job Creationism, Victor Fleischer
Fordham Law Review
Does a low tax rate on entrepreneurial income create jobs? Tax scholars view this question as empirical in nature. But for many policymakers, voters, and even some academics, the relationship between taxes and entrepreneurship is a matter of faith. If there is a question, it is one of ideological commitment, not evidence and reason. Consider the ease with which politicians claim that tax cuts for entrepreneurs and investors create jobs and fuel economic growth. This claim would appear to be a falsifiable claim subject to empirical observation and testing. But evidence in support of the claim is, in fact, hard …