Law Commons^™

The Innovation & Limitation Of Arbitral Courts, Pamela K. Bookman

Faculty Scholarship

No abstract provided.

Addressing The Auditor Independence Puzzle: Regulatory Models And Proposal For Reform, Martin Gelter, Aurelio Gurrea-Martínez

Faculty Scholarship

Auditors play a major role in corporate governance and capital markets. Ex ante, auditors facilitate firms’ access to finance by fostering trust among public investors. Ex post, auditors can prevent misbehavior and prevent financial fraud by corporate insiders. In order to fulfill these goals, however, in addition to having the adequate knowledge and expertise, auditors must perform their functions in an independent manner. Unfortunately, auditors are often subject to conflicts of interest, for example, resulting from the provision of nonaudit services but also because of the mere fact of being hired and paid by the audited company. Therefore, even if …

Race, Gender And Nation In An Age Of Shifting Borders: The Unstable Prism Of Motherhood And Masculinity, Catherine Powell

Faculty Scholarship

No abstract provided.

Toward A Mission Statement For Mutual Funds In Shareholder Litigation, Sean J. Griffith, Dorothy Lund

Faculty Scholarship

This paper analyzes the conduct of mutual funds in shareholder litigation. We begin by reviewing the basic forms of shareholder litigation and the benefits such claims might offer mutual fund investors. We then investigate, though an in-depth docket review, whether and how the ten largest mutual funds participate in shareholder litigation. We find that although shareholder suits offer potential benefits, the largest mutual funds have essentially forfeited their use of litigation. This finding is particularly striking given that index funds and other long-term oriented mutual funds generally cannot sell their shares when they are dissatisfied with company performance, leaving them …

Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

The law governing children is complex, sometimes appearing almost incoherent. The relatively simple framework established in the Progressive era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, and legally incompetent beings. As children emerged as legal persons, children’s rights advocates challenged the rationale for parental authority, contending that robust parental rights often harm children. And a wave of punitive reforms in response to juvenile crime in the 1990s undermined …

Review Of Friendship In The Hebrew Bible By Saul M. Olyan, Ethan J. Leib

Faculty Scholarship

No abstract provided.

Case-Linked Jurisdiction And Busybody States, Howard M. Erichson, John C.P. Goldberg, Benjamin Zipursky

Faculty Scholarship

No abstract provided.

Defiance, Concealed Carry, And Race, Nicholas J. Johnson

Faculty Scholarship

No abstract provided.

Should Criminal Justice Reformers Care About Prosecutorial Ethics Rules?, Bruce A. Green, Ellen C. Yaroshefsky

Faculty Scholarship

No abstract provided.

Blue States, Red States: The United States?, Catherine Powell

Faculty Scholarship

No abstract provided.

Tools For Regulators In A Changing Climate: Proposed Standards, State Policies, And Case Studies From The Western Grid, Adam D. Orford

Faculty Scholarship

With climate change a present reality, governments are confronting the need to adapt their regulatory planning processes to withstand new and uncertain climate risks. This Article provides three new resources to support this essential work. First, it develops a new standard for assessing the quality of climate adaptation decisionmaking, focusing on defining the problem, quantifying adaptation benefits, and evaluating equitable distribution of risk. Second, it reviews California’s climate adaptation policy development efforts between 1988 and 2018—from the state’s early efforts to study the problem, to later attempts at statewide strategic planning, until more recent work to integrate adaptation into existing …

Deal Insurance: Representation & Warranty Insurance In Mergers & Acquisitions, Sean J. Griffith

Faculty Scholarship

Efficient contracting depends upon imposing risk on the party with superior access to information. Yet the parties in mergers and acquisitions transactions now commonly use Representation and Warranty Insurance (“RWI”) to shift this risk to a third-party insurer. Because liability and trust go together, RWI would seem to give rise to a credible commitment problem between the transacting parties, and it raises adverse selection and moral hazard problems for the insurer.

This paper examines the emergence of RWI, focusing on three interrelated questions. First, how does RWI affect transactions?Second, why do transacting parties use RWI? And third, why do insurers …

The Belt-And-Suspenders Canon, Ethan J. Leib, James J. Brudney

Faculty Scholarship

This Essay christens a new canon into the doctrines of statutory interpretation, one that can counter the too-powerful canon that has courts imposing norms against redundancy in their readings of statutes. Judges engaging in statutory interpretation must do a better job of recognizing how and why legislatures choose not to draft with perfect parsimony. Our Essay highlights the multifarious ways legislatures in federal and state governments self-consciously and thoughtfully – rather than regrettably and lazily – think about employing “belt-and-suspenders” efforts in their drafting practices. We then analyze in depth courts’ disparate efforts to integrate a belt-and-suspenders canon into their …

Lying And Cheating, Or Self-Help And Civil-Disobedience?, Aditi Bagchi

Faculty Scholarship

May poor sellers lie to rich buyers? This article argues that, under limited circumstances, sellers may indeed have a license to lie about their goods. Where sellers are losers under unjust background institutions and they reasonably believe that buyers have more than they would under just institutions, lies that result in de minimum transfers can be regarded as a kind of self-help. More generally, what we owe each other in our interpersonal interactions depends on the institutional backdrop. Consumer contract law, including its enforcement regimes, should recognize the social and political contingency of sellers’ obligations to buyers. In other contexts, …

Interpreting Contracts In A Regulatory State, Aditi Bagchi

Faculty Scholarship

Some scholars would limit courts to the text of written agreements when interpreting contracts on the theory that parties meant what they said, and said what they meant. Other scholars would have courts take into account the factual context surrounding contract formation. Both sides of this debate assume that contract interpretation is largely limited to reconstructing contracting parties’ intentions.

This assumption is mistaken. Since the overturning of Lochner v New York, contracting parties no longer have exclusive authority over contracts. State authority to regulate contract came at the expense of unbridled private authority. A more limited conception of contracting …

What's The Difference Between A Conclusion And A Fact?, Howard M. Erichson

Faculty Scholarship

In Ashcroft v. Iqbal, building on Bell Atlantic Corp. v. Twombly, the Supreme Court instructed district courts to treat a complaint’s conclusions differently from allegations of fact. Facts, but not conclusions, are assumed true for purposes of a motion to dismiss. The Court did little to help judges or lawyers understand this elusive distinction, and, indeed, obscured the distinction with its language. The Court said it was distinguishing “legal conclusions” from factual allegations. The application in Twombly and Iqbal, however, shows that the relevant distinction is not between law and fact, but rather between different types of factual assertions. This …

In Defense Of International Comity, Thomas H. Lee, Samuel Estreicher

Faculty Scholarship

A chorus of critics, led by the late Justice Scalia, have condemned the practice of federal courts’ refraining from hearing cases over which they have subject-matter jurisdiction on the basis of international comity—respect for the governmental interests of other nations. They assail the practice as unprincipled abandonment of judicial duty and unnecessary given statutes and settled judicial doctrines that amply protect foreign governmental interests and guide the lower courts. But existing statutes and doctrines do not give adequate answers to the myriad cases in which such interests are implicated given the scope of present-day globalization and features of the U.S. …

Tracking Client Outcomes: A Qualitative Assessment Of Civil Legal Aid’S Use Of Outcomes Data, With Recommendations, David Udell, Amy Widman

Faculty Scholarship

In virtually all sectors of society, people are using data to improve what they do. Everyone, it seems, is interested in data, and is searching for best strategies to draw on its power. The stakes are high in the civil legal aid community, where strengthened advocacy can enable people to preserve their homes, their relationships with their children, their life savings, their physical and emotional well-being, and even their freedom.

Yet, in the civil legal aid community, awareness of the power of data is just beginning to take root. Traditionally, civil legal aid has been thinly funded, with little infrastructure …

May Class Counsel Also Represent Lead Plaintiffs?, Bruce A. Green, Andrew Kent

Faculty Scholarship

For decades, courts and commentators have been aware that the potential for conflicting interests among the class representatives, class counsel, and absent class members is inherent in the class action device. Notwithstanding this realization and a substantial amount of scholarly and judicial commentary on class conflicts, one kind of conflict has not received due attention: the conflict that inevitably arises when class counsel also represents class members as individuals. We demonstrate that this conflict— so common to be almost invisible—arises from the very beginning of a putative class representation, and may create a fraught situation for a lawyer concurrently representing …

The Mainstreaming Of Sex Workers' Rights As Human Rights, Chi Adanna Mgbako

Faculty Scholarship

No abstract provided.

Afrodescendants, Law, And Race In Latin America, Tanya K. Hernandez

Faculty Scholarship

Law and Society research in and about Latin America has been particularly beneficial in elucidating the gap between the ideals of racial equality laws in the region and the actual subordinated status of its racialized subjects. Some of the recurrent themes in the race-related literature have been: the limits of the Latin American emphasis on criminal law to redress discriminatory actions; the limits of multicultural constitutional reform for full political participation; the insufficiency of land reform and recognition of ethnic communal property titles; and the challenges to implementing race conscious public policies such as affirmative action. Especially illuminating have been …

What Should Presidential Candidates Tell Us About Themselves? Proposals For Improving Transparency In Presidential Campaigns, Megha Dharia, Rikki Lavine, Ryan Partelow, James Auchincloss, Krysia Lenzo

Faculty Scholarship

Elections are at the foundation of our democracy, but voters sometimes cast their ballots without critical information about presidential candidates. This report calls for requirements that candidates release more personal financial information, including five years of tax returns, and undergo criminal and intelligence background checks. The report also advocates for a system allowing candidates to submit to voluntary medical exams with some results released to the public.

This report was researched and written during the 2018-2019 academic year by students in Fordham Law School’s Democracy and the Constitution Clinic, which is focused on developing non-partisan recommendations to strengthen the nation’s …

Toward An Independent Administration Of Justice: Proposals To Insulate The Department Of Justice From Improper Political Interference, Rebecca Cho, Louis Cholden-Brown, Marcello Figueroa

Faculty Scholarship

The rule of law is undermined when political and personal interests motivate criminal prosecutions. This report advances proposals for ensuring that the federal criminal justice system is administered uniformly based on the facts and the law. It recommends a law preventing the president from interfering in specific prosecutions, another law establishing responsibilities for prosecutors who receive improper orders, and new conflict of interest regulations for Department of Justice officials.

This report was researched and written during the 2018-2019 academic year by students in Fordham Law School’s Democracy and the Constitution Clinic, which is focused on developing non-partisan recommendations to strengthen …

Presidents Must Be Elected Popularly: Examining Proposals And Identifying The Natural Endpoint Of Electoral College Reform, Gianni Mascioli, Caroline Kane, Meira Nagel, Michael Mcgarry, Ezra Medina, Jenny Brejt, Siobhan D'Angelo

Faculty Scholarship

The Electoral College effectively disenfranchises voters who live outside the few states that decide presidential elections. This report endorses a change in the way electoral votes are allocated to ensure that Americans’ votes receive the same weight. States should sign on to the National Popular Vote Interstate Compact, an agreement among states to allocate their electoral votes to the winner of the national popular vote. Ranked choice voting should also be employed to ensure that candidates receive majority support.

This report was researched and written during the 2018-2019 academic year by students in Fordham Law School’s Democracy and the Constitution …

Enforcing The Intent Of The Constitution’S Foreign And Domestic Emoluments Clauses, James Auchincloss, Megha Dharia, Krysia Lenzo

Faculty Scholarship

The Constitution’s Foreign and Domestic Emoluments Clauses are meant to prevent corruption and conflicts of interest. The Foreign Emoluments Clause prohibits some federal officials, including the president, from receiving payments or other benefits from foreign governments, while the Domestic Emoluments Clause bans the president from receiving payments other than the office’s salary from the federal and state governments. To enforce the clauses, this report recommends requiring the president to divest from business interests and increasing powers to investigate and punish violations of the clauses.

This report was researched and written during the 2018-2019 academic year by students in Fordham Law …

Evidentiary Irony And The Incomplete Rule Of Completeness: A Proposal To Amend Federal Rule Of Evidence 106, Daniel J. Capra, Liesa L. Richte

Faculty Scholarship

No abstract provided.

International Dispute Resolution And Access To Justice: Comparative Law Perspectives, Jacqueline Nolan-Haley

Faculty Scholarship

No abstract provided.

The Incentives Of Private Prisons, John F. Pfaff

Faculty Scholarship

No abstract provided.

Against Prosecutors, I. Bennett Capers

Faculty Scholarship

No abstract provided.

When Prosecutors Politick: Progressive Law Enforcers Then And Now, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

A new and recognizable group of reform-minded prosecutors has assumed the mantle of progressive prosecution. The term is hard to define in part because its adherents embrace a diverse set of policies and priorities. In comparing the contemporary movement with Progressive Era prosecutors, this Article has two related goals. First, it seeks to better define progressive prosecution. Second, it uses a historical comparison to draw some lessons for the current movement. Both groups of prosecutors were elected on a wave of popular support. Unlike today’s mainstream prosecutors who tend to campaign and labor in relative obscurity, these two sets of …