Law Commons^™

The Equal Protection Case Against Disparate U.S. Humanitarian Parole Policies For Afghans Compared To Ukrainians, Darcy Gallego

Fordham Law Review

The disparities between the U.S. government’s use of humanitarian parole in response to the humanitarian crises in Afghanistan and Ukraine are indicative of discrimination and violate the Equal Protection Clause. As such, U.S.-based relatives of Afghans should prevail in seeking accountability for the thousands of Afghans who continue to wait for protection.

First, this Note explains what immigration parole is, provides an overview of standing, equal protection, and animus, and describes how the government has used parole for Afghans and Ukrainians. Second, it compares parole for Afghans and Ukrainians and discusses recent immigration equal protection challenges. Third, it demonstrates that …

The Constitutional Limits To The Taxing Power, Ari Glogower

Fordham Law Review

The modern U.S. Supreme Court has elevated the apportionment requirement for direct taxes into the most important constitutional limitation to Congress’s taxing power. The U.S. Constitution requires that any “direct tax” must be apportioned among the states by population, which is impracticable or impossible for a tax today. The modern interpretative approach focuses on the formal categorization of the tax base, as either a “direct tax” or not. This approach could bar Congress from enacting certain taxes—such as a federal wealth tax or possibly even capital income tax reforms—simply through their formal labeling as direct taxes.

This interpretation inflates apportionment’s …

Distorted Narratives In The Treatment Program Complex, Evelyn Lia Malavé

Fordham Law Review

Problem-solving courts and alternatives to incarceration have been both celebrated as successful attempts to address the factors that lead to defendants’ involvement in the criminal legal system and critiqued as ineffective reforms that worsen mass incarceration. Specifically, critiques of the “treatment program complex” have tended to focus on how it harms defendants by exposing them to higher levels of incarceration if they fail to complete court mandates. But these critiques have failed to account for another way the treatment program complex harms defendants: by suppressing their voices regarding what kind of help they need and how they are affected by …

Plausibly Illiberal: Sua Sponte Dismissals Of Pro Se Complaints Under The Prison Litigation Reform Act, Pierce Edlich

Fordham Law Review

Over a quarter of civil litigants file suit in federal court without an attorney. Most unrepresented litigants are in prison, and many of their cases raise complex, delicate constitutional questions. The number of unrepresented litigants in federal courts rose steadily until the 1990s, when Congress passed the Prison Litigation Reform Act (PLRA) of 1995 to limit the burden of frivolous inmate litigation on federal courts. Since 1996, the PLRA has defined courts’ procedural obligations for inmate and in forma pauperis (IFP) suits, often filed pro se. The PLRA requires that courts screen and dismiss sua sponte cases that are frivolous, …

Lost At The South China Sea: A Legal Rationale For Joining Unclos, Dean Feinman

Fordham Law Review

Rising tensions in the South China Sea are a tired front of great power competition. Since President Barack Obama’s “pivot to Asia,” there has been renewed attention on growing Chinese naval power and influence, which stands to challenge the U.S. status as the world’s preeminent naval force. Despite a clear and obvious interest in maintaining a favorable global oceans regime, the United States has not ratified the United Nations Convention on the Law of the Sea (UNCLOS), the principal international instrument governing the use of the oceans. Instead, the United States argues that ratification is unnecessary because UNCLOS “embodies” customary …

Compelling Compliance: An Analysis Of Methods For Enforcing New York’S Compulsory Education Law As Applied To Haredi Yeshivas, Kaitlyn Sivertsen

Fordham Law Review

This Note explains recent findings that many of New York’s Haredi yeshivas are failing to comply with the compulsory education laws and advocacy for the state to heighten enforcement. It examines other community members’ opposition to this belief and numerous legal challenges. This Note advances legal scholarship by pointing out that although these debates regarding education and religious freedom are important, in the context of New York’s Haredi yeshivas, they are futile without also recognizing that New York’s statute does not provide for efficient means of enforcement. There is little to no existing literature on this specific issue. Thus, this …

A Proxy For Piety: A Closer Look At Religious Cost In The Substantial Burden Inquiry, Philip Andrew B. Wines

Fordham Law Review Online

This Comment discusses whether the Establishment Clause and “religious question” doctrine prohibit courts from considering the subjective religious harm suffered by free exercise claimants when determining if laws impose a “substantial burden” on the claimant, as defined by the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). It explores a dilemma that courts are presently facing. They must choose either to wade into constitutionally perilous theological debates to decide cases on their merits, or to defer to free exercise claimants on their own assertions of substantial burden and risk swallowing up the law …

Will Bruen Kill Cops?, Peter N. Salib, Guha Krishnamurthi

Fordham Law Review Online

Criminal procedure is a balancing act. On one hand, it must allow law enforcement officers to protect the public and themselves. On the other hand, criminal procedure must safeguard citizens’ individual constitutional rights—privacy, physical liberty, and bodily integrity. And now, the right to bear arms.

There is a serious tension here. Landmark Fourth Amendment cases like Terry v. Ohio, Pennsylvania v. Mimms, and Chimel v. California give the police wide latitude to seize firearms on the assumption that guns are dangerous. But these doctrines largely evolved before the Second Amendment’s ascendance. In District of Columbia v. Heller, …

Article Iii Standing In Federal Prosecutions Of “Victimless Crimes”, Ryan H. Nelson

Fordham Law Review Online

Plaintiffs in federal court bear the burden of proving their standing, as Article III permits inferior federal courts, after Congressional authorization, to exercise jurisdiction over “Cases” and “Controversies” alone. From these constitutional terms of art—“Cases” and “Controversies”—we derive the familiar case-or-controversy requirement of standing, including injury. These terms of art authorize Congress to empower the inferior federal courts to hear civil and criminal actions alike, but federal prosecutors have never been similarly burdened with proving the standing of the United States in federal court, including that the United States has suffered injury. This Essay examines that lapse and contends that …

Impending Peril: Rethinking The Future Of Democracy, Karen J. Greenberg

Fordham Law Voting Rights and Democracy Forum

In their new books, Anne Applebaum and Timothy Snyder explore the vulnerabilities that plague democracies globally and in the United States. Documenting the elements that threaten democracy, they share a vision of the future that demands a deepened understanding of the forces that oppose democracy—among them, corruption, disinformation and isolation. Offering visions of a more enlightened public space, and a heightened sense of empathy, they each attempt to provide a roadmap to a more equitable, just, and life-affirming future.

The Burden To Reach The Ballots: Tackling Eleventh Circuit Line-Warming Bans And Their Intersectional Harm Under An Ada Framework, Alyssa Clune

Fordham Law Voting Rights and Democracy Forum

Line-warming bans present an additional hurdle for voters across America, especially in an era of historically few polling locations and historically long lines to reach the ballot. Particularly in Eleventh Circuit states like Georgia and Florida, line-warming bans, in conjunction with long wait times, have had a disparate impact on Black communities and their ability to cast ballots in key swing districts. Nevertheless, attempts to bring racial discrimination claims against these bans have not been successful in the Eleventh Circuit. This Essay proposes a new strategy to tackle line-warming bans under an ADA framework. It analyzes the harm that these …

Reforms For Filling Vacancies In The U.S. Senate And House Of Representatives, Nora Donnelly, Alexa Green, Lea Vallone

Fordham Law Voting Rights and Democracy Forum

Many states’ laws for filling vacancies in the U.S. Senate and House of Representatives weaken democratic legitimacy. Vacancies in the House are increasingly prolonged, leaving constituents without representation for extended periods. Senate vacancies are filled more quickly, but gubernatorial appointees often gain a significant incumbency advantage when they later seek election. In this report, the Fordham Law School Rule of Law Clinic recommends holding open, nonpartisan elections, without primaries or runoffs, within three months of most Senate and House vacancies, with earlier initiation when vacancies are anticipated. The report further proposes limiting interim Senate appointments to “caretakers” who serve only …

Crypto & The Climate: Will Local & National Environmental Regulation Save Or Stifle The Cryptocurrency Boom?

Fordham Environmental Law Review

As cryptocurrencies continue to gain traction among mainstream investors and consumers, regulators and lobbyists are increasingly taking note of the potential environmental impacts of the industry. At its core, the process of mining new currency for virtual wallets is energy intensive, which can place strains on electrical grids and accelerate the impacts of climate change. However, these effects are felt very differently depending on what source of electricity the mining operation utilizes and the methodology behind the specific currency. These variable factors are on the minds of legislators and regulators as public pressure to better understand and regulate the industry …

A Shifting Focus: How Algal Turf Scrubbers (Ats) In Natural Waterways Can Prevent Toxic Blooms And Could Save The Algae Energy Industry

Fordham Environmental Law Review

Biofuels have generated global interest among oil companies and governments. In particular, algal biofuels are slated to be more promising than traditional biofuel feedstocks, like corn and sugarcane, which are simultaneously cultivated as food products. However, the drawbacks of harvesting algae on a large industrial scale has led to intense criticism. Most critics focus on issues of sustainability, scalability of production, and the legal and ethical concerns of genetically modified crops. New research in cyanobacteria, however, illustrates algae’s potential to produce clean electricity in addition to oil, ethanol, and gasoline. Moreover, using Algal Turf Scrubbers (“ATS”) in natural waterways offers …

Why We Need A Constitutional Right To Healthy Environment In Canada

Fordham Environmental Law Review

The increasing demand for constitutional recognition of the right to a healthy environment (‘RTHE’) has been a matter of public concern and debate in many countries, including Canada.2 This paper asks, will a constitutional RTHE within the Canadian Constitution add any value when statutes already exist to protect the environment (and thereby health)? The present environmental statutes work towards protecting the environment, and by protecting the environment, public health can be protected.3 Together, both of them form a ‘healthy environment’, ie., an environment that fosters a healthy life.4 This paper will argue that there is additional value in recognizing a …

The Contemporary Case For Consumer Expectations: Reevaluating The Evolution Of The Original Defect Standard And Its Place In Modern Products Litigation, Alyssa Clune

Fordham Law Review

The consumer expectations standard for design defect has been the subject of fierce debate since its inception. Though many see it as the test that best reflects the plaintiff-friendly goals of products liability, others critique it as vague, outdated, and ripe for jury misuse. Once the primary test for design defect under the Restatement (Second) of Torts, the consumer expectations test has since been rejected by the Restatement (Third) of Torts, and its use has been eliminated or restricted in approximately half of all states in favor of the risk-utility test. Much of the reasoning behind this growing rejection revolves …

Section 1983 And Voting Rights: A Case Study On The Materiality Provision And The Future Of Private Enforcement, Paul Feingold

Fordham Law Review

A recent ruling by the U.S. Court of Appeals for the Eighth Circuit stating that § 2 of the Voting Rights Act of 1965 is not enforceable by private litigants under an implied private right of action has many voting rights advocates rightfully concerned about the future of federal voting rights protections. Indeed, that ruling appears partly motivated by signals from the U.S. Supreme Court. However, not all hope is lost. In Health and Hospital Corp. of Marion County v. Talevski, the Supreme Court recently reaffirmed its Gonzaga University v. Doe test for enforcing a statute under § 1983. …

(Synthetic) Stump Speech: Crafting Generative Ai Disclosure Regulations For Political Advertisements, Alex Paget

Fordham Law Review

Synthetic media, or content generated using artificial intelligence, has begun to infect political advertising. Federal legislation has spent most of its time stalled in committees, but states and online platforms have rapidly implemented regulations. Although synthetic media may pose harms through voter manipulation and democratic distortion, it also can lower campaign costs and more vividly illustrate conceptions of a political choice’s consequences. Some governments and commentators have sought to prohibit the most harmful forms, while others have focused more on transparent approaches to regulation. In the face of yet another contentious election cycle, the question of how to ensure choices …

Ethical Guardrails To Unbounded Procedure, Seth Katsuya Endo

Fordham Law Review

Civil lawsuits in federal courts—especially class actions and multidistrict litigation (MDL)—can be messy and complicated, calling for pragmatic interventions that lie beyond what is explicitly addressed by the existing rules. And flexibility is part of the genius of the Federal Rules of Civil Procedure. On the other hand, unbounded discretion and innovation in procedure can lead to illegitimate exercises of power, bias, democratic nonaccountability, and other serious harms. But the choice is not between providing individual courts with nearly limitless authority to experiment with procedure or having a set of rigid rules. Instead, there is a third path: district judges …

Surviving Lender Violence: The Case For Resuscitating Contractual Good Faith In New York, Zachary T. Hanusek

Fordham Law Review

In recent years, lender violence has become the preferred term for a rapidly developing restructuring market centered on the premise that a subset of lenders in a syndicate can increase their own recovery prospects at the expense of the remaining lenders in their group by engaging in a so-called “liability-management transaction.” This term evokes images of rival factions of corporate lenders engaging in physical combat. Although these hyper-technical restructurings certainly fall short of the barbarity the label suggests, the reality is that lenders participating in the so-called violence can siphon hundreds of millions of dollars away from nonparticipating lenders and …

Tactical Restructurings, Diane Lourdes Dick

Fordham Law Review

The traditional legal account of a corporate debtor’s journey into and through bankruptcy reorganization naturally focuses on legal rights and entitlements, such as obligations arising under the debtor’s existing agreements and rights articulated in the U.S. Bankruptcy Code. But the traditional legal account does little to probe why these prior agreements and transactions were entered into in the first place, and how they interact with the bankruptcy system to generate predictable outcomes. Rather, the traditional legal account applies a presumption that the debtor’s financial characteristics, qualities, and features (what this Article calls “restructuring attributes”) are not premeditated, at least insofar …

Surviving The Rule Of Reason: An Antitrust Analysis Of Employment Noncompetes, Erin Lee

Fordham Law Review

When the Federal Trade Commission (FTC) issued a rule banning noncompete agreements as unfair methods of competition, it reinvigorated debates regarding the purpose of federal antitrust law. At its core, federal antitrust law seeks to preserve a competitive economy and promote new entry into the marketplace, primarily to protect consumer interest. Under President Biden’s administration, the FTC has increased its efforts to expand the scope of antitrust protection beyond consumer welfare by applying it to other public policy concerns, such as employee mobility. The FTC points to noncompete agreements as detrimental constraints to employees’ economic freedoms. In practice, employment noncompetes …

Make America Fake Again?: Banning Deepfakes Of Federal Candidates In Political Advertisements Under The First Amendment, Sophie Loewenstein

Fordham Law Review

In recent years, artificial intelligence (AI) technology has developed rapidly. Accompanying this advancement in sophistication and accessibility are various societal benefits and risks. For example, political campaigns and political action committees have begun to use AI in advertisements to generate deepfakes of opposing candidates to influence voters. Deepfakes of political candidates interfere with voters’ ability to discern falsity from reality and make informed decisions at the ballot box. As a result, these deepfakes pose a threat to the integrity of elections and the existence of democracy. Despite the dangers of deepfakes, regulating false political speech raises significant First Amendment questions. …

Bridging The False Certification Gap: Why “Resulting From” In The 2010 Aks Amendment Requires But-For Causation, Alexandra Wildman

Fordham Law Review

Before 2010, violators of the Anti-Kickback Statute (AKS) could avoid False Claims Act (FCA) liability if claims for items or services borne of their kickback scheme were submitted to federal healthcare programs by a third party. In 2010, as part of the Affordable Care Act (ACA), Congress attempted to close this loophole in the FCA by amending the AKS. Under the amendment’s terms, claims submitted to federal healthcare programs for items or services “resulting from” an AKS scheme are false for the purposes of establishing FCA liability, regardless of who submitted the claims.

Although the amendment widened the FCA liability …

2024-2025 Fordham Law School Faculty Bibliography, Fordham Law School Library

Faculty Bibliography

Bibliography of Fordham Law School faculty publications in print from July 2024-June 2025.

State Laws For Administering Presidential Elections: Recommendations And Considerations For Reform, Fordham Law School Rule Of Law Clinic, Seamus Crowley, Molly Johnston, Alexander Paget, William Russell

Rule of Law Clinic

States have a critical role in administering presidential elections, and there are currently a range of emergent challenges that they must confront. In this report, the Fordham Law School Rule of Law Clinic outlines reform recommendations and considerations to assist states in crafting their presidential election administration policies in key areas, including (1) implementation of provisions of the federal Electoral Count Reform Act; (2) preparation for natural or human-caused election disruptions; (3) prevention of faithless and fake electors; (4) accommodation of third-party and independent candidates; and (5) preparation for implementation of the National Popular Vote Interstate Compact.

Regulatory Takings In Climate Change: Geo- Engineering One’S Way Around The Fifth Amendment, Noah Chase

Fordham Environmental Law Review

Picture yourself as the owner of a small business located in the downtown area of a large city; your business consists of a shop and an adjoining parking lot. A new regulation has just been passed which requires any owner of property within the city limits to paint all roofs and parking areas with a new reflective coating, in order to reduce the heat which is absorbed by such structures. The idea of closing your business down for this time, along with other connected issues, scares you, and you begin to wonder if your local government truly has your best …

Arizona V. Navajo Nation And Systemic Failures In The Tribal Water Allocation Scheme, Jennifer Horkovich

Fordham Environmental Law Review

When the United States Supreme Court’s decision in Arizona v. Navajo Nation was published in June 2023, Indian Country was hardly surprised with the Court’s ruling. There, the Court found that the United States had no affirmative duty to affirmatively protect the Navajo Nation’s water rights under the 1868 Treaty.1 The Court was clear: the treaty is insufficient for the Navajo’s current water needs, but the judiciary is unable to step in to find relief.2 This decision is another in a long series of cases on water allocation and the federal reserved water right, where tribes have been unable to …

Environmental Protection, Sustainability And The Prevention Of Satellite Collisions In Outer Space, Yun Zhao

Fordham Environmental Law Review

With space commercialization and privatization continuing apace, more space objects are expected to be launched and put into operation in the future, adding to the already large number of defunct satellites and space debris present in outer space. Hence, serious study should be devoted to possible mechanisms for dealing with potential collisions in outer space for the purpose of realizing environmental protection and space sustainability. In view of the inadequacy of the existing legal regime, this article explores possible such mechanisms (including a preventive mechanism, avoidance mechanism and compensation mechanism) from the perspective of interdependence theory and puts forward a …

Deepfakes Reach The Advisory Committee On Evidence Rules, Daniel J. Capra

Fordham Law Review

A number of articles have been written in the last couple of years about the evidentiary challenges posed by “deepfakes”—inauthentic videos and audios generated by artificial intelligence (AI) in such a way as to appear to be genuine. You are probably aware of some of the widely distributed examples, such as: (1) Pope Francis wearing a Balenciaga jacket; (2) Jordan Peele’s video showing President Barack Obama speaking and saying things that President Obama never said; (3) Nancy Pelosi speaking while appearing to be intoxicated; and (4) Robert DeNiro’s de-aging in The Irishman.

The evidentiary risk posed by deepfakes is …