Law Commons^™

A Constitutional Right To Early Voting, David Schultz

Fordham Law Voting Rights and Democracy Forum

Voting is a cost-benefit decision. Individuals are more likely to vote if the benefits of doing so outweigh the disadvantages. With early voting laws eased due to the COVID-19 pandemic, the 2020 election demonstrated that turnout increases when elected officials reduce voting costs. Despite all the benefits of early voting, there is no constitutional right, and it remains a privilege that state legislatures can revoke at will.

Since the 2020 election, state legislatures have proposed—and enacted—hundreds of bills to change voting rules. But with the intense partisan disagreement over voting, coupled with political polarization reaching an apex, these acts restricting …

The Looming Threat Of The Independent State Legislature Theory And The Erosion Of The Voting Rights Act: It Is Time To Enshrine The Right To Vote, Javon Davis

Fordham Law Voting Rights and Democracy Forum

Over the last decade, the emergence of an imperial United States Supreme Court—currently armed with the largest conservative majority since the 1930s—has radically reshaped federal voting rights protections. During the litigation surrounding the 2020 election, however, an obscure threat reemerged. The fringe independent state legislature (“ISL”) theory is a potentially revolutionary constitutional theory that could lead to widespread voter disenfranchisement. Proponents of the theory, including Supreme Court Justices, posit, in part, that the United States Constitution vests state legislatures with plenary power to construct rules for federal elections—unbound by state constitutions and free from state judicial review.

Once a refuge …

Moore V. Harper And The Consequential Effects Of The Independent State Legislature Theory, Chase Cooper

Fordham Law Voting Rights and Democracy Forum

In December 2022, the United States Supreme Court heard oral arguments in Moore v. Harper. The case addresses whether the North Carolina Supreme Court possesses the authority to strike down a redistricting map drawn by the state legislature. Petitioners contend that the state legislature has no such authority under the United States Constitution, citing a novel interpretation of the Elections Clause known as the “independent state legislature” (“ISL”) theory. The ISL theory is not a unified theory, but rather a constellation of related doctrinal positions that revolve around a core precept: ordinary governing principles by which state courts review …

Citizen Enforcement Laws Threaten Democracy, David A. Carrillo, Stephen M. Duvernay

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Rucho In The States: Districting Cases And The Nature Of State Judicial Power, Chad M. Oldfather

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Deborah L. Rhode In Memoriam: Three Stories And Ten Life Lessons, Benjamin H. Barton

Fordham Law Review

In this Essay, Professor Benjamin H. Barton offers a heartfelt tribute to the late legal scholar, Professor Deborah L. Rhode. Professor Barton reflects on Rhode’s prolific career, which spanned areas including legal ethics, feminism and women in the law, and lawyers as leaders. He also examines Rhode’s later works, which delved into more personal topics such as character, ambition, and legacy. Through personal anecdotes and life lessons, Professor Barton honors Rhode’s legacy as a model academic, mentor, and transformative force in the legal profession.

Why The 30 Percent Mansfield Rule Can't Work: A Supply-Demand Empirical Analysis Of Leadership In The Legal Profession, Paola Cecchi-Dimeglio

Fordham Law Review

The Mansfield Rule proposes that if 30 percent of the candidate pool is drawn from underrepresented groups, then a legal workplace will become more diverse and inclusive as a result. However, across the legal profession, statistics related to the numbers of women and other underrepresented groups in leadership roles continue to paint a bleak picture of diversity and inclusion. Professor Cecchi-Dimeglio’s Essay presents a supply-demand empirical analysis of the legal profession at the leadership level, and argues that the 30 percent Mansfield Rule ultimately does not enhance diversity in the legal profession, especially in leadership positions.

An Ode To Rhode: In Principle And In Practice, Scott L. Cummings

Fordham Law Review

This Essay is a tribute to Professor Deborah L. Rhode by Professor Scott L. Cummings and discusses her legacy through the impact of her scholarship and leadership on both legal ethics and the community of legal ethics scholars. It reviews Deborah’s findings on pro bono in principle and in practice, revealing a Janus face—one that is built on altruism but used to benefit individual interests. This Essay shares Professor Cummings’s own experiences with Deborah as an inspirational and courageous individual who spoke truth to power to elevate the interests of those with less power and the ideal of lawyers as …

Chicken Or Egg: Diversity And Innovation In The Corporate Legal Marketplace, Michele Destefano

Fordham Law Review

Although their bank accounts might suggest otherwise, these are not the best of times for lawyers who work in the corporate legal marketplace. Instead, the trouble with lawyers in the corporate legal marketplace is that they are failing to answer two calls to action made by corporate clients, both of which are of great magnitude and importance for the future of the profession. The first call to action is one that Professor Deborah L. Rhode focused a lot of her scholarship on: the call to enhance diversity, equity, and inclusion (DE&I) in the profession. The second call to action is …

Why State Courts Should Authorize Nonlawyers To Practice Law, Bruce A. Green

Fordham Law Review

The unauthorized practice of law (“UPL”) is a crime in most states. Many scholars have criticized UPL laws as unnecessary impediments to low-income individuals’ ability to obtain legal help. Meanwhile, courts often defend these laws by analogizing the dangers posed by unlicensed legal practice to those posed by unlicensed medical practice. Chronicling two notable UPL suits to illustrate how nonlawyers may help low-income individuals seeking legal assistance and arguing that comparison to the medical profession in many ways favors liberalizing UPL enforcement, Professor Bruce Green concludes that state courts should allow nonlawyers greater freedom to provide legal assistance.

Mentored: On Leaders, Legacies, And Legal Ethics, Renee Knake Jefferson

Fordham Law Review

Professor Renee Knake Jefferson shares insights on mentorship and legal ethics gleaned from her relationship with Professor Deborah Rhode. The Essay, written as part of the Fordham Law Review colloquium in Professor Rhode’s memory, argues that the stories of women and minority lawyers—regardless of whether one had a personal relationship with them—are an unrealized, valuable source of informal mentorship. It lays the groundwork for formalizing mentorship as an ethical obligation of leaders in the legal profession and beyond.

Rhode Was Right (About Character And Fitness), Leslie C. Levin

Fordham Law Review

In this Essay, Professor Leslie C. Levin revives Professor Deborah L. Rhode’s forty-year-old critique of the character and fitness process and shows that not much has changed. Levin exposes the process’s core problems, including the lack of public information available about character and fitness decisions, the process’s subjectivity, the disconnect between information sought and future lawyer misconduct, and the deterrent effect on individuals considering a legal career. Levin proposes that task forces reexamine problematic application questions, such as those targeting decriminalized conduct and mental health, and push for more transparency and disclosure.

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 …

Law School As Straight Space, Swethaa S. Ballakrishnen

Fordham Law Review

In honoring Professor Deborah L. Rhode’s commitment to making space for the marginal in legal education and clarifying the “no-problem” problems in our midst, Professor Ballakrishnen’s Essay focuses on one strain of nonnormative experience—that of genderqueer persons—to clarify the ways in which law schools reinforce linear hierarchies of identity and performance. Professor Ballakrishnen catalogues ethnographic student interview data to highlight perspectives of genderqueer law students, the result of which suggests that “normal” professional practices in law school reinforce the rigidity of the gender binary. They conclude by suggesting that paying attention to these student subpopulations is crucial to reform legal …

The Shape Of A Life: Deborah L. Rhode In Memoriam, David Luban

Fordham Law Review

In this Essay honoring the life and work of Professor Deborah Rhode, Professor David Luban examines Professor Rhode's moral sensibility, which runs through all her writings, and situates this sensibility on a map of moral theories.

First Amendment Speech Protections In A Post-Dobbs World: Providing Instruction On Instructional Speech, Samantha Mitchell

Fordham Law Review

In its June 2022 opinion, Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, thus revoking the constitutional right to abortion. As states continue to pass laws outlawing abortion to varying degrees, not only has Dobbs led to uncertainty for medical professionals and those who might want to seek an abortion, but it has also prompted questions for internet users across the world. May an organization or an individual post instructions on the internet regarding how to obtain an abortion if a resident of a …

Rationalizing Relatedness: Understanding Personal Jurisdiction's Relatedness Prong In The Wake Of Bristol-Myers Squibb And Ford Motor Co., Anthony Petrosino

Fordham Law Review

Ford Motor Co. v. Montana Eighth Judicial District Court marked a watershed in the U.S. Supreme Court’s personal jurisdiction jurisprudence. There, the Court came to a reasonable conclusion: Ford, a multinational conglomerate carrying on extensive business throughout the United States, was subject to personal jurisdiction in states where it maintained substantial contacts that were related to the injuries that prompted the suits. This was so, even though the business it conducted in those states was not the direct cause of the suit. While justifying that conclusion, however, the Court drastically altered the personal jurisdiction inquiry’s relatedness prong, which concerns whether …

Memorandum From The Office Of Legal Counsel On Presidential Succession, Department Of Justice. Office Of Legal Counsel.

Executive Branch Materials

Department of Justice Office of Legal Counsel Memorandum on presidential succession issued during the administration of President Dwight D. Eisenhower. Roy E. Brownell II secured this document from the papers of Attorney General Herbert Brownell at the Eisenhower Presidential Library.

Gamestopped: How Robinhood’S Gamestop Trading Halt Reveals The Complexities Of Retail Investor Protection, Neal F. Newman

Fordham Journal of Corporate & Financial Law

Should brokers have the unfettered right to restrict investor trading? GameStop, a brick-and-mortar video game retailer, had been experiencing declining revenues since 2016. However, GameStop saw its share price climb almost 1000 percent in the span of a one- week period from January 21, 2021 to January 27, 2021 due to retail investors buying significant amounts of GameStop shares during that period. Melvin Capital, a hedge fund, ended up losing billions as they were betting that GameStop shares would lose value instead of increase—a practice referred to as short selling. On January 28, 2021, brokers inexplicably halted trading on GameStop …

Exhuming Nondelegation . . . Intelligibly, Zachary R.S. Zajdel

Fordham Journal of Corporate & Financial Law

Whether by avalanche or a thousand cuts, the intelligible principle test may be awaiting its untimely demise at the behest of a reinvigorated nondelegation movement. Perhaps looking to speed up the decomposition, the Fifth Circuit in Jarkesy v. Securities and Exchange Commission struck down the SEC’s discretion to pursue enforcement actions with its own Administrative Law Judges or in federal court as unconstitutionally delegated legislative power. This Note posits that Jarkesy was rightly decided but rife with uncompelling reasoning. Establishing this requires a detour into the meaning of the Necessary and Proper Clause, the significance of the separation of powers, …

The Exit Theory Of Judicial Appraisal, William J. Carney, Keith Sharfman

Fordham Journal of Corporate & Financial Law

For many years, we and other commentators have observed the problem with allowing judges wide discretion to fashion appraisal awards to dissenting shareholders based on widely divergent, expert valuation evidence submitted by the litigating parties. The results of this discretionary approach to valuation have been to make appraisal litigation less predictable and therefore more costly and likely. While this has been beneficial to professionals who profit from corporate valuation litigation, it has been harmful to shareholders, making deals costlier and less likely to be completed.

In this Article, we propose to end the problem of discretionary judicial valuation by tracing …

Money Creation And Bank Clearing, Nadav Orian Peer

Fordham Journal of Corporate & Financial Law

Like many other countries, the U.S. money supply consists primarily of deposits created by private commercial banks. How we understand bank money creation matters enormously. We are currently witnessing a debate between two competing understandings. On the one hand, a long-standing conventional view argues that bank money creation originates in individual market transactions. Based on this understanding, the conventional view narrowly limits the scope of banking regulation to market failure correction. On the other hand, authors in a new legal literature emphasize the public aspects of bank money creation, characterizing it as a “public franchise,” a “public-private partnership,” and part …

From Tether To Terra: The Current Stablecoin Ecosystem And The Failure Of Regulators, Mary E. Burke

Fordham Journal of Corporate & Financial Law

The Tether controversy and Terra crash have placed stablecoins in the regulatory spotlight. Stablecoins are often portrayed as posing systemic risks to financial markets, with some pundits labelling them “the villain of the finance world.” Global regulatory bodies, namely the International Monetary Fund (IMF) and the Bank of International Settlement (BIS), and political leaders, including the Biden Administration, have all called for stablecoin regulation. These officials allege that stablecoins’ structure, combined with their exponential growth, pose a unique risk to global markets. Before the May 2022 Terra crash, government reports superficially treated stablecoins by exclusively focusing on asset-backed coins. Post …

Renewing Faith In Antitrust: Unveiling The Hidden Network Behind Pharmaceutical Product Hopping, Victoria Field

Fordham Journal of Corporate & Financial Law

Patents grant time-limited market exclusivity to drug manufacturers, meaning that other companies are prohibited from copying and selling the patented pharmaceutical. This allows manufacturers to lawfully charge monopoly prices. Generic competition starts at the expiration of the patent. To maintain coveted monopoly power, manufacturers often release an alternative formulation of the drug with a fresh patent that enjoys continued market exclusivity. Manufacturers who can convert their consumer base to the new formulation can continue charging peak prices. This process, called “product hopping,” has been the target of significant antitrust inquiry, with mixed results.

A product hop may be the result …

Hired By A Machine: Can A New York City Law Enforce Algorithmic Fairness In Hiring Practices?, Lindsey Fuchs

Fordham Journal of Corporate & Financial Law

Workplace antidiscrimination laws must adapt to address today’s technological realities. If left underregulated, the rapidly expanding role of Artificial Intelligence (“AI”) in hiring practices has the danger of creating new, more obscure modes of discrimination. Companies use these tools to reduce the duration and costs of hiring and potentially attract a larger pool of qualified applicants for their open positions. But how can we guarantee that these hiring tools yield fair outcomes when deployed? These issues are just starting to be addressed at the federal, state, and city levels. This Note tackles whether a new city law can be improved …

Blacking Out Congressional Insider Trading: Overlaying A Corporate Mechanism Upon Members Of Congress And Their Staff To Curtail Illegal Profiting, Nicholas Gervasi

Fordham Journal of Corporate & Financial Law

Congressional insider trading involves members of Congress or their staff trading on material, nonpublic information attained while executing their official responsibilities. This type of private profit-making, while in a government role, casts doubt on the efficacy and impartiality of lawmakers to regulate companies they hold shares of. Egregious acts of illegal profiting from insider trading based on information entrusted to the government escape prosecution and liability due to fundamental gaps in the common law and the Congress specific statutes lack enforcement. Recent calls on Congress by the public and multiple bipartisan proposed bills in both chambers have begun to address …

The Battle With Big Tech: Analyzing Antitrust Enforcement And Proposed Reforms, Youngjae Lee, Morgan Hagenbuch

Fordham Journal of Corporate & Financial Law

No abstract provided.

Without Reservation: Ensuring Uniform Treatment In Bankruptcy While Keeping In Mind The Interests Of Native American Individuals And Tribes, Connor D. Hicks

Fordham Journal of Corporate & Financial Law

The Bankruptcy Code (“Code”) exists as a mechanism for good faith debtors to discharge debts and seek a “fresh start” in life and finance. 11 U.S.C. § 106(a) ensures that not only are all debtors treated uniformly, but that all creditors, including governmental creditors which may otherwise enjoy immunity from suit, are equally subject to the jurisdiction of Bankruptcy courts and bound to the provisions of the Code.

However, a recent circuit split has demonstrated one niche yet significant instance in which a debtor may not receive the same treatment as their counterparts. While § 106 contains an express waiver …

Exploring Financial Data Protection And Civil Liberties In An Evolved Digital Age, Amanda Lindner

Fordham Journal of Corporate & Financial Law

There is no comprehensive financial privacy law that can protect consumers from a company’s collection sharing and selling of consumer data. The most recent federal financial privacy law, the Gramm-Leach-Bliley Act (“GLBA”), was enacted by Congress over 20 years ago. Vast technological and financial changes have occurred since 1999, and financial privacy law is due for an upgrade.

As a result, loopholes exist where companies can share financial data without being subject to laws or regulations. Additionally, federal financial privacy related laws provide little to no recourse for consumers to self-remediate with litigation, also known as a private right of …