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Full-Text Articles in Law

Abortion Rights Under State Constitutions: A Fifty-State Survey, Robert L. Bentlyewski May 2022

Abortion Rights Under State Constitutions: A Fifty-State Survey, Robert L. Bentlyewski

Fordham Law Review Online

The U.S. Supreme Court appears poised to overturn Roe v. Wade and its progeny, removing any federal law protection of the right to an abortion. However, numerous state supreme courts have interpreted their state constitutions to independently recognize such a right, finding their state’s equal protection, due process, and privacy rights more expansive than those at the federal level. This Essay surveys all fifty states to ascertain how much protection each state currently affords to women’s right to an abortion. Most state supreme courts have not made a determinative ruling on the issue, and a significant majority ...


Old Dilemmas, New Guises: Developing An Anti-Subordination Reading Of Students For Fair Admissions V. Harvard, Eric Szkarlat May 2022

Old Dilemmas, New Guises: Developing An Anti-Subordination Reading Of Students For Fair Admissions V. Harvard, Eric Szkarlat

Fordham Law Review Online

In 2022, the U.S. Supreme Court will again hear arguments on the constitutionality of race-conscious affirmative action in college admissions. This outcome was far from foretold: the late Justice Ruth Bader Ginsburg had suggested the Court might never take up affirmative action in admissions again. Yet after dragging its feet on granting certiorari, the Court agreed to hear Students for Fair Admissions (SFFA) v. Harvard. This time, however, the case has a substantially different and quite controversial posture. That posture centers on alleged discrimination against Asian and Pacific American (APA) students applying to college. Some APA students are divided ...


The Anomalous Issue Class, Veniamin Privalov May 2022

The Anomalous Issue Class, Veniamin Privalov

Fordham Law Review Online

The modern class action is a litigation superstar. The device’s potential for opening the courthouse doors to “small people,” holding big business accountable, and enacting sweeping reform is second to none. In recent years, however, the star has waned. Judicial hostility has made it harder for plaintiffs to certify a class while making it easier for defendants to avoid class actionsentirely. Certifying a mass tort class has become nearly impossible. Plaintiff lawyers’ creative attempts to work around these roadblocks have been shut down one after another by the Supreme Court. It is in this scorched mass litigation landscape that ...


How To Regulate Online Platforms: Why Common Carrier Doctrine Is Inappropriate To Regulate Social Networks And Alternate Approaches To Protect Rights, Edward W. Mclaughlin May 2022

How To Regulate Online Platforms: Why Common Carrier Doctrine Is Inappropriate To Regulate Social Networks And Alternate Approaches To Protect Rights, Edward W. Mclaughlin

Fordham Law Review Online

Concerns about the “concentrated control of so much speech in the hands of a few private parties” and their ability to suppress some user speech have led to calls to regulate online platforms like common carriers or public accommodations. Advocates of that regulation theorize that social media platforms host today’s public forum and are open to all comers and so should have a responsibility to be content neutral and allow all voices to be heard. Traditionally, the argument that private players, as opposed to only government actors, can violate individuals’ free speech rights was a progressive cause, but recently ...


Court Mandated Technology-Assisted Review In E-Discovery: Changes In Proportionality, Cost-Shifting, And Spoliation, Graham Streich May 2022

Court Mandated Technology-Assisted Review In E-Discovery: Changes In Proportionality, Cost-Shifting, And Spoliation, Graham Streich

Fordham Law Review Online

Burgeoning advanced technology-assisted review (TAR) methods challenge justifications for requesting parties’ burdens and litigant cooperation in e-discovery. Increasingly accurate and accessible TAR introduces novel issues in e-discovery, including determining the proportionality of discovery requests and managing information in spoliation cases. This Essay recommends reconsidering the judiciary’s role in e-discovery in light of new technology and argues that courts, particularly lower courts, need expert technical guidance to adequately address the issues e-discovery presents.


Polarizing Impact: Indigenous Consultation Under International Labor Organization Convention 169 And The Emerging Polar Shipping Industry, Danika Elizabeth Watson May 2022

Polarizing Impact: Indigenous Consultation Under International Labor Organization Convention 169 And The Emerging Polar Shipping Industry, Danika Elizabeth Watson

Fordham Law Review Online

This Article analyzes U.S. ratification of International Labour Organization (ILO) Convention 169, Indigenous and Tribal Peoples Convention (“Convention 169” or “C. 169”), by evaluating the impact in terms of its ability to solidify its protections of the land and lifeways of Arctic Indigenous people and strengthen the United States’s position as an international leader in Arctic life, development, and policy. Part I presents the issues. Part II introduces the growth of a polar shipping industry in the context of a rapidly melting Arctic. Part III provides a brief gloss on the complex and shifting international legal framework governing ...


Recording Virtual Justice: Cameras In The Digital Courtroom, Matthew Bultman May 2022

Recording Virtual Justice: Cameras In The Digital Courtroom, Matthew Bultman

Fordham Law Review Online

With in-person hearings limited during the COVID-19 pandemic, many courts pivoted to proceedings held over the telephone or on virtual platforms like Zoom. It appears these proceedings are here to stay, with various benefits having been realized from remote access to the courts. Remote hearings have, however, given rise to constitutional questions. This Essay focuses on one emerging issue: courts’ ability to prohibit the press and the public from recording or disseminating these proceedings. While the constitutionality of recording and broadcasting restrictions inside the real-world courtroom is established, little consideration was given to the extension of these rules to the ...


Tenancies Uncommon: Limits On Representing Cotenants Pro Se, Robert L. Bentlyewski May 2022

Tenancies Uncommon: Limits On Representing Cotenants Pro Se, Robert L. Bentlyewski

Fordham Law Review Online

An adversary proceeding that was part of the Bernie Madoff bankruptcy litigation involved a fraud victim making a motion to represent pro se the interests of all tenants in common who co-owned an account with Madoff. This Essay analyzes and expands upon the bankruptcy court’s holding, which addressed this novel issue by finding that a tenant in common cannot represent his cotenants pro se for two reasons. First, a tenancy in common is not a legal entity that can speak with one voice. Second, one tenant in common cannot represent one or more other cotenants’ interests in litigation without ...


Chilling Parental Rights, Meghan M. Boone May 2022

Chilling Parental Rights, Meghan M. Boone

Fordham Law Review

Despite this clear lack of consensus as to what constitutes ideal parenting, state actors have increasingly intervened in families when they feel that a particular parenting choice is wrong. These interventions increasingly occur through the use of criminal law and punishment.5 This criminalization extends beyond prosecutions for what would traditionally be considered abuse or neglect to a wide range of parenting choices that do not rise to this level. Although many scholars have critiqued this criminalization of parenting, the focus of these critiques has centered on the harm to the families that are actually criminalized and on how a ...


Fertility, Immigration, And Public Support For Parenting, Eleanor Brown, Naomi Cahn, June Carbone May 2022

Fertility, Immigration, And Public Support For Parenting, Eleanor Brown, Naomi Cahn, June Carbone

Fordham Law Review

As this Essay shows, the fertility discourse of the last half century deals with the profound effects that come from the transformation of the economy and the place of modern families within it. Discussions of race and class have been an important—and, often, pernicious—part of a transformation in family values, as the upper-middle-class efforts to channel ever greater investment into children have increased economic inequality and contributed to racial, ideological, and gender division. We see the convergence in fertility rates as an indication that, at a practical level, a much larger part of the country is embracing the ...


Covid-19 And The Perils Of Free-Market Parenting: Why It Is Past Time For The United States To Install Government Supports For Families, Maxine Eichner May 2022

Covid-19 And The Perils Of Free-Market Parenting: Why It Is Past Time For The United States To Install Government Supports For Families, Maxine Eichner

Fordham Law Review

U.S. public policy has for decades rested on the expectation that parents will privately provide the cash and conditions their children need. This expectation is exceptional: most other wealthy countries’ public policies support children through a mix of public and private funds. The COVID-19 pandemic, however, radically changed U.S. policy. The severe economic dislocation that resulted led Congress to pass a series of measures that funneled trillions of public dollars to families and parents. Whether these measures should represent a temporary deviation from the nation’s free-market expectations during an unprecedented emergency or the first step in a ...


The Enduring Importance Of Parental Rights, Clare Huntington, Elizabeth Scott May 2022

The Enduring Importance Of Parental Rights, Clare Huntington, Elizabeth Scott

Fordham Law Review

Parental rights are—and should remain—the backbone of family law. State deference to parents is warranted not because parents are infallible, nor because parents own their children, but rather because parental rights, properly understood and limited, promote child wellbeing.1 This is true for several reasons, but two stand out. First, parental rights promote the stability of the parent-child relationship by restricting the state’s authority to intervene in families. This protection promotes healthy child development for all children, and it is especially important for low-income families and families of color, who are subject to intensive state scrutiny.2 ...


The Public/Private Distinction In Public Health: The Case Of Covid-19, Jason Jackson, Aziza Ahmed May 2022

The Public/Private Distinction In Public Health: The Case Of Covid-19, Jason Jackson, Aziza Ahmed

Fordham Law Review

In this Essay, we argue that the paradigm of the public/private distinction is implicitly operating as a primary frame in the public health response to the pandemic. The public/private distinction is particularly evident in the guidance around masking and other risk-mitigation policies and advice issued by public health agencies. This public health approach reifies the notion of the home as an exceptional private space that exists outside of the possibility of COVID-19 transmission, obscuring the reality of the high risk of transmission in some households.8 We argue that the manifestation of the public/private distinction in the ...


Multi-Parent Families, Real And Imagined, Courtney G. Joslin, Douglas Nejaime May 2022

Multi-Parent Families, Real And Imagined, Courtney G. Joslin, Douglas Nejaime

Fordham Law Review

This piece is the first in a series on functional parenthood growing out of an empirical study of all electronically available cases from the last forty years decided under functional parent doctrines, including cases that feature more than two parental figures.20 Our goal is to provide a more empirically grounded understanding of the circumstances under which a child may have functional parents, including situations in which a child has more than two parents, and an accurate assessment of the range of factual contexts in which courts may be asked to adjudicate the issue. We supply a more comprehensive and ...


Parenting While Black, R. A. Lenhardt May 2022

Parenting While Black, R. A. Lenhardt

Fordham Law Review

Changes in law and policy—not to mention developments such as the COVID-19 pandemic and its devastating effects on families—raise important questions about how to define parental rights and how to best support parents and children during these challenging times. The Symposium also presented important questions about issues of race, gender, sexuality, and class in our modern context. Even more salient in this space are issues of race. Here, as in other contexts, Black families, like my grandmother’s and so many others, are the “canaries in the mine.” Their experiences provide us with important insight into the signs ...


Parental Social Capital And Educational Inequality, Solangel Maldonado May 2022

Parental Social Capital And Educational Inequality, Solangel Maldonado

Fordham Law Review

This Essay argues that scholars must consider the nonmonetary resources—specifically, the social capital24—that middle- and upper-income parents bring to the predominantly White schools their children attend. While scholars have recognized middle- and upper-income students as educational resources that can help bridge the achievement gap, they have yet to explore the effects of nonmonetary resources that middle- and upper-income White parents bring to predominantly White school districts, and how these resources advantage children in these schools. This Essay calls on social scientists to study these effects and urges lawmakers to support parents by (1) integrating schools and (2) funding ...


From Empathy Gap To Reparations: An Analysis Of Caregiving, Criminalization, And Family Empowerment, Charisa Smith May 2022

From Empathy Gap To Reparations: An Analysis Of Caregiving, Criminalization, And Family Empowerment, Charisa Smith

Fordham Law Review

America’s legacy of violent settler colonialism and racial capitalism reveals a misunderstood and neglected civil rights concern: the forced separation of families of color and unwarranted state intrusion upon caregiving through criminalization and surveillance. The War on Drugs, the Opioid Crisis, and the COVID-19 pandemic are a few examples demonstrating the precariousness of our nation’s collective empathy well toward caregivers and our tattered social safety net. In fact, these instances illuminate what this Essay coins an “empathy gap” in perception when the general public, policy makers, and the mainstream media view similarly situated families with different identities. Ironically ...


Parentage Agreements Are Not Contracts, Gregg Strauss May 2022

Parentage Agreements Are Not Contracts, Gregg Strauss

Fordham Law Review

Parentage agreements are proliferating. In a fertility clinic, an egg donor, sperm donor, and gestational surrogate may agree to waive their parental rights, and the intended parents may agree to share parenthood. In a maternity ward, a birth mother may agree to acknowledge a partner as a parent. In an adoption agency, birth and adoptive parents may agree to an open adoption with ongoing visitation. In a home, a parent may agree to share parentage with a cohabitant, enabling the cohabitant to become a legal parent later after raising the child and developing parental bonds. Good reasons underlie this drift ...


Domestic Violence As A Factor In Child Custody Determinations: Considering Coercive Control, Lisa A. Tucker May 2022

Domestic Violence As A Factor In Child Custody Determinations: Considering Coercive Control, Lisa A. Tucker

Fordham Law Review

Many states1 have begun formally to recognize coercive control2 as a form of domestic violence in several contexts: criminal domestic violence cases,3 civil motions for protection from abuse,4 and child removal proceedings.5 This Essay argues, however, that while new laws recognizing coercive control may be noble and well-meaning, they are unlikely to increase support for mothers who have been victims of coercive control abuse and now seek custody of their children. In fact, this Essay argues, the codification of these laws may do more harm than good; by taking power away from men—and coercive control is ...


The Federal Rules Of Pro Se Procedure, Andrew Hammond May 2022

The Federal Rules Of Pro Se Procedure, Andrew Hammond

Fordham Law Review

In recent years, more than a quarter of all federal civil cases were filed by people without legal representation. Yet, the Federal Rules of Civil Procedure refer to pro se litigants only once, and the U.S. Supreme Court has not considered in over a decade the question of what process is due to unrepresented civil litigants. Many judicial opinions in these cases go unpublished, and many are never appealed. Instead, the task of developing rules for pro se parties has taken place inside our federal district courts, whose piecemeal and largely unnoticed local rulemaking governs thousands of such litigants ...


Criminal Justice Expertise, Benjamin Levin May 2022

Criminal Justice Expertise, Benjamin Levin

Fordham Law Review

For decades, commentators have adopted a story of mass incarceration’s rise as caused by “punitive populism.” Growing prison populations, expanding criminal codes, and raced and classed disparities in enforcement result from “pathological politics”: voters and politicians act in a vicious feedback loop, driving more criminal law and punishment. The criminal system’s problems are political. But how should society solve these political problems? Scholars often identify two kinds of approaches: (1) the technocratic, which seeks to wrest power from irrational and punitive voters, replacing electoral politics with agencies and commissions, and (2) the democratic, which treats criminal policy as ...


Catching Up To A New Normal: The Effects Of Shifting Industry Standards On Contract Interpretation, Karen Chen May 2022

Catching Up To A New Normal: The Effects Of Shifting Industry Standards On Contract Interpretation, Karen Chen

Fordham Law Review

During the COVID-19 pandemic, industries around the world were forced to adapt to a new way of life dictated by rising public health concerns. The pandemic’s rapid spread left parties struggling to determine whether contractual performance would be excused or reinterpreted. Issues of prevailing industry standards arose and brought into question the point at which parties and courts should define these standards. While some parties argued that industry standards at the time of contract formation are determinative of performance, others claimed that their agreement referenced industry standards that had changed and that, therefore, their performance obligations had changed as ...


Unsafe & Unsound: The Future Of Supervised Injection Sites After United States V. Safehouse, Chloe Rigogne May 2022

Unsafe & Unsound: The Future Of Supervised Injection Sites After United States V. Safehouse, Chloe Rigogne

Fordham Law Review

In the past few years, the United States has experienced a dramatic increase in drug overdose deaths due to factors such as a growing prevalence of synthetic opioids like fentanyl and the strains brought on by the COVID-19 pandemic. In response to the overdose crisis, states and municipalities have started considering once-taboo harm reduction practices, including the implementation of supervised injection sites that facilitate individuals’ use of drugs under the care and supervision of medical professionals. However, supervised injection sites may run afoul of 21 U.S.C. § 856—often referred to as the “crack house” statute—a law introduced ...


Punishing Maternal Ambivalence, Elizabeth Kukura May 2022

Punishing Maternal Ambivalence, Elizabeth Kukura

Fordham Law Review

There are certain landmarks on the road to parenthood that together comprise a cultural narrative about becoming a parent, a narrative that many aspire to emulate and that some achieve: celebrating a (heterosexual) marriage with a big wedding; a positive pregnancy test leading to overjoyed reactions; first ultrasound pictures hung on the fridge (and shared on social media); a healthy pregnancy with baby showers and nesting to prepare for the new arrival; maternity photo shoots and babymoons to celebrate the final moments before life changes; and finally, an uncomplicated labor and delivery that, in an instant, transform the couple into ...


Tribute To Judge Duffy | Honorable Kevin Thomas Duffy, Loretta A. Preska Apr 2022

Tribute To Judge Duffy | Honorable Kevin Thomas Duffy, Loretta A. Preska

Fordham Law Review Online

It is a joy and an honor to write a few words about our beloved former colleague, Judge Kevin Thomas Duffy. Believe me when I tell you that behind that seemingly gruff exterior resided one of the greatest ladies men of the Western World. Kevin was a dedicated colleague to everyone, but his comradery with women was particularly special.


Tribute To Judge Duffy | Clerk Recollections, Stories, And Vignettes, Judge Duffy's Former Clerks Apr 2022

Tribute To Judge Duffy | Clerk Recollections, Stories, And Vignettes, Judge Duffy's Former Clerks

Fordham Law Review Online

In his forty-four years on the bench, Judge Duffy had sixty-five law clerks, each with their own stories about his inimitable courtroom presence, keen intellect, tremendous heart, and unique sense of humor. In addition to the longer tributes, we wanted to include at least a small sampling of the rich variety of heartfelt remembrances of Kevin Thomas Duffy (“KTD”) that have been shared among his scores of clerks since the Judge’s passing. We also asked our clerk community for the five words that come to mind when they think of the Judge. We have included a Word Cloud that ...


Tribute To Judge Duffy | A View From Below, Denis J. Mcinerney Apr 2022

Tribute To Judge Duffy | A View From Below, Denis J. Mcinerney

Fordham Law Review Online

It is only natural that different people (clerks, colleagues, court reporters, lawyers, marshals, parties, et cetera) saw KTD differently (as a humorist, a “no nonsense” judge, a loyal friend, an iconoclast, an enigma, et cetera). I am deeply honored, as one of the Judge’s sons-at-law, to offer just a glimpse into what it was like to be within his orbit with a few illustrations of his unique manner and mind.


Tribute To Judge Duffy | A Prayer For St. Kevin, Meghan Silhan Mastrocovi Apr 2022

Tribute To Judge Duffy | A Prayer For St. Kevin, Meghan Silhan Mastrocovi

Fordham Law Review Online

Judge Duffy’s clerks benefitted from invaluable legal lessons. In my case, I was lucky enough to help him prepare for four sittings on the Ninth Circuit, where he regularly sat by designation. Each sitting presented a heavy caseload, and we lived and breathed the cases during those weeks. He wrote strong dissents. On one occasion, he aptly convinced the panel to adopt his proposed dissent as the majority opinion. We celebrated the occasion with chocolate ice cream. To be sure, the moments that resonate most are not the legal ones, but those found in the ordinary moments spent with ...


Tribute To Judge Duffy | Kevin Thomas Duffy: I Never Called Him Kevin . . ., Charles Labella Apr 2022

Tribute To Judge Duffy | Kevin Thomas Duffy: I Never Called Him Kevin . . ., Charles Labella

Fordham Law Review Online

Where to begin . . . Clerking for KTD was my first job after graduating from Fordham Law. I was a kid in the law working with a tenured professor who was also the chair of the department. The first lesson was that you worked with KTD. While many of my fellow graduates who were working as clerks were working for a particular judge, I didn’t work for KTD, as he was quick to remind me, I worked with him. It was a collaboration. While I knew nothing really, he insisted we worked as a team. That was the first lesson and ...


Tribute To Judge Duffy | A Law Clerk’S Remembrance Of The Honorable Kevin Thomas Duffy, Tom Lenhart Apr 2022

Tribute To Judge Duffy | A Law Clerk’S Remembrance Of The Honorable Kevin Thomas Duffy, Tom Lenhart

Fordham Law Review Online

I had the privilege to serve as the first law clerk to The Honorable Kevin Thomas Duffy—known forever to me simply as “the Judge.” In the fall of 1972, we both started new careers: Judge Duffy, as a federal district judge in the U.S. District Court for the Southern District of New York, and me as a newly minted lawyer just out of law school.