Law Commons^™

Confessions Of Womanhood, Geeta Tewari

Faculty Scholarship

No abstract provided.

Piracy And Due Process, Andrew Kent

Faculty Scholarship

No abstract provided.

The Jury And Empire: The Insular Cases And The Anti-Jury Movement In The Gilded Age And Progressive Era, Andrew Kent

Faculty Scholarship

This Article argues that there was an important causal link, to date unrecognized, between the widespread dissatisfaction with the jury in the United States during the Gilded Age and Progressive era among many elite lawyers and judges and choices by U.S. policymakers and jurists about colonial governance in Puerto Rico and the Philippines. The story starts with the Insular Cases-landmark Supreme Court decisions from the early twentieth century holding that jury rights and some other constitutional guarantees did not apply in Puerto Rico and the Philippines until and unless Congress had taken decisive action to "incorporate" the territories into the …

The Problem Of Monopolies & Corporate Public Corruption, Zephyr Teachout

Faculty Scholarship

No abstract provided.

Christians And Pagans, Abner S. Greene

Faculty Scholarship

No abstract provided.

Execution Methods In A Nutshell, Deborah W. Denno

Faculty Scholarship

No abstract provided.

Learning To Live With Judicial Partisanship: A Response To Cassandra Burke Robertson, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

No abstract provided.

Confidentiality In Patent Dispute Resolution: Antitrust Implications, Mark R. Patterson

Faculty Scholarship

nformation is crucial to the functioning of the patent system, as it is for other markets. Nevertheless, patent licensing terms are often subject to confidentiality agreements. On the one hand, this is not surprising: sellers and buyers do not normally publicize the details of their transactions. On the other hand, explicit confidentiality agreements are not common in other markets, and they may be particularly problematic for patents.

Several United States Supreme Court cases have condemned agreements that suppress market information, and those cases could be applied to confidentiality agreements in the patent context. Of course, confidentiality may sometimes be pro-competitive, …

Character Assassination: Amending Federal Rule Of Evidence 404(B) To Protect Criminal Defendants, Daniel J. Capra, Liesa L. Richter

Faculty Scholarship

No abstract provided.

Reaching To Restructure Across Borders (Without Over-Reaching), Even After Brexit, Susan Block-Lieb

Faculty Scholarship

Is there such a thing as “good” forum shopping? Courts and commentators have begun to articulate the “virtues” of at least some forum shopping, including forum shopping to resolve corporate insolvency or financial distress whether on a domestic or global basis. Especially within the European Union (EU), acceptance has grown of debtors’ efforts to qualify as eligible to access the forum best able to resolve their financial difficulties, even where the efforts involve substantial “fact shifting,” so long as these efforts occurred transparently and were neither abusive nor in bad faith. Growing acceptance of such efforts is partly the result …

Immigration As Commerce: A New Look At The Federal Immigration Power And The Constitution, Jennifer Gordon

Faculty Scholarship

The relationship of immigration law to the Constitution has long been incoherent. One result is that there is little clarity on the appropriate standard of review for constitutional violations when aspects of immigration law and policy are challenged in the federal courts. This Article advances the Commerce Clause as the anchor of a new understanding of the link between the government's immigration power and the Constitution. Despite the extensive early history of the Foreign Commerce Clause as the presumed source of the immigration power, it plays almost no role in immigration jurisprudence today, and few scholars have seriously considered its …

Also, No, Ethan J. Leib

Faculty Scholarship

No abstract provided.

Blackness As Disability?, Kimani Paul-Emile

Faculty Scholarship

No abstract provided.

Competitive Philanthropy: Charitable Naming Rights, Inequality And Social Norms, Linda Sugin

Faculty Scholarship

Income inequality today is at a high not seen since the 1920s, and one way the very richest display their wealth is through charitable giving. Gifts in excess of $100 million are no longer rare, and in return for their mega-gifts, the biggest donors get their names on buildings, an astonishingly valuable benefit that the tax law ignores. The law makes no distinction between a gift of $100 and a gift of $100 million. This article argues that the tax law of charity should focus on the very rich and harness the culture of philanthropy among the elite. The law …

The Social Meaning Of The Tax Cuts And Jobs Act, Linda Sugin

Faculty Scholarship

This Essay exposes the moral messages implicit in the Tax Cuts and Jobs Act (TCJA). It argues that the legislation reflects values that were not openly debated or discussed in the legislative process, but are crucial to the distributional effects of the law. The TCJA reduces progressivity and increases deficits because it favors traditional families, prefers capital to labor income, treats people as detached from each other, makes charity the narrow concern of the rich, and privileges the acquisition of assets. Fairness in taxation depends on explicitly identifying social values that produce economic justice and purposely designing the law to …

John Marshall’S Long Game. Review Of John Marshall: The Man Who Made The Supreme Court By Richard Brookhiser, Marc Arkin

Faculty Scholarship

No abstract provided.

The Political Morality Of Convergence In Contract, Aditi Bagchi

Faculty Scholarship

One of the most interesting recent developments in contract law has been an academic and political effort to integrate private law. The proposed Common European Sales Law was ultimately withdrawn, and a series of setbacks, including the British referendum to exit the EU, has recast the politics of convergence. But it remains an objective for many European scholars. This essay considers the wisdom of convergence on a single law of transactions from the perspective of philosophical contract theory. The essay proceeds by disaggregating the rights at stake in contract law. It characterises the formal right to contract and describes its …

Cities As A Source Of Consumers’ Financial Empowerment, Susan Block-Lieb

Faculty Scholarship

No abstract provided.

A Taxonomy Of Striker Replacements, James J. Brudney

Faculty Scholarship

No abstract provided.

Why Michigan V. Epa Requires That The Meaning Of The Cost/Rationality Nexus Be Clarified, Daniele Bertolini, Carolina Arlota

Fordham Environmental Law Review

This article examines the recent decision in Michigan v. EPA, in which the U.S. Supreme Court held that the EPA acted unreasonably in not considering costs at the listing phase of the regulation of power plants’ emissions under a specific provision of the Clear Air Act (CAA). In Michigan, the Court interpreted the applicable statutory provision based on the principles of rational administrative decision-making, thereby establishing a connection between cost consideration by administrative agencies and the principles of reasonable exercise of administrative discretion. We contend that Michigan failed to properly appreciate the logical and axiological connection between cost …

Blueprint For Survival: A New Paradigm For International Environmental Emergencies, Claire Wright

Fordham Environmental Law Review

No abstract provided.

Presidential Executive Orders Duel Over Floodplain Definition As S.E. Florida Prepares For Sea Level Rise, Brion Blackwelder

Fordham Environmental Law Review

No abstract provided.

A Just Transition: Why Transitioning Workers Into A New Clean Energy Economy Should Be At The Center Of Climate Change Policies, J. Mijin Cha

Fordham Environmental Law Review

With a hostile federal administration, states must take up the fight against climate change. Shortly after the United States withdrew from the Paris Climate Accord, governors from several states announced efforts to meet the targets. This article argues that state level climate actions must consider the economic consequences of climate policy. A shift away from fossil fuels is a fundamentally necessary step in the fight against climate change. However, the economic impact of this shift will be felt most acutely by fossil fuel workers and communities, many of which are already facing economic hardships. Attention and resources must be focused …

Watershed Based Policy Tools For Reducing Nutrient Flows To Surface Waters: Addressing Nutrient Enrichment And Harmful Algal Blooms In The United States, John A. Hoornbeek, Joshua Filla, Soumya Yalamanchili

Fordham Environmental Law Review

No abstract provided.

Toward Civil Rights Enforcement In The Environmental Justice Context - Step One: Acknowledging The Problem, Marianne Engelman Lado

Fordham Environmental Law Review

No abstract provided.

A Tale Of Two Trade Powers: Balancing Investor-State Dispute Settlement And Environmental Risk Between The European Union And United States In A Changing Political Climate, Sarah Ben-Moussa

Fordham Environmental Law Review

No abstract provided.

Eminent Domain And Oil Pipelines: A Slippery Path For Federal Regulation, Natalie M. Jensen

Fordham Environmental Law Review

No abstract provided.

Venture Capital Contract Design: An Empirical Analysis Of The Connection Between Bargaining Power And Venture Financing Contract Terms, Spencer Williams

Fordham Journal of Corporate & Financial Law

This Article presents an empirical analysis of the connection between bargaining power and contract design using an original dataset of over 5,500 equity and debt venture financings from 2004–2015. Using the total supply of venture capital in the U.S. as a measure of relative bargaining power between entrepreneurs and investors, this Article finds that venture capital supply has a statistically significant relationship with price and non-price terms in both equity and debt financings. These results contradict one of three theoretical accounts of bargaining power and support the other two.

A Novel Approach To Defining "Whistleblower" In Dodd-Frank, Ian A. Engoron

Fordham Journal of Corporate & Financial Law

Following the Financial Crisis of 2008, trust in the financial industry was at an all-time low as the American taxpayer was forced to bailout the very same institutions responsible for their suffering. In response, Congress passed Dodd-Frank in 2010 to ensure another crisis like 2008 never happen again. Section 78u-6 of the Act provides incentives and protections for whistleblowers who report violations of securities laws. In recent years there has been a divide among circuit courts over the question of whether employees who report violations internally to their bosses—and not directly to the SEC—are protected by the Act. Currently, the …

Proxy Access And Optimal Standardization In Corporate Governance: An Empirical Analysis, Reilly S. Steel

Fordham Journal of Corporate & Financial Law

According to the conventional wisdom, “one size does not fit all” in corporate governance. Firms are heterogeneous with respect to their governance needs, implying that the optimal corporate governance structure must also vary from firm to firm. This one-size-does-not-fit-all axiom has featured prominently in arguments against numerous corporate law regulatory initiatives, including the SEC’s failed Rule 14a-11—an attempt to impose mandatory, uniform “proxy access” on all public companies—which the D.C. Circuit struck down for inadequate cost–benefit analysis.

This Article presents an alternative theory as to the role of standardization in corporate governance—in which investors prefer standardized terms—and empirical …