Law Commons^™

Discriminatory Intent Claims Under Section 2 Of The Voting Rights Act, Amandeep S. Grewal

Fordham Law Voting Rights and Democracy Forum

This Article addresses a new controversy over whether Section 2 of the Voting Rights Act prohibits laws that exhibit “only” discriminatory intent, in the absence of discriminatory results. Lower courts have long embraced an intent approach for Section 2. And the Department of Justice has rested its entire ongoing case against Georgia’s controversial voting bill on an intent approach.

However, this Article shows that the Supreme Court’s decision in Brnovich v. DNC effectively rejects the intent approach to Section 2. In April 2023, the Eleventh Circuit reversed its prior cases and now rejects an intent theory. This puts in peril …

Toward National Regulation Of Legal Technology: A Path Forward For Access To Justice, Drew Simshaw

Fordham Law Review

Legal technology can help close the access-to-justice gap by increasing efficiency, democratizing access to information, and helping consumers solve their own legal problems or connecting them with lawyers who can. But, without proper design, technology can also consolidate power, automate bias, and magnify inequality. The state-by-state regulation of legal services has not adapted to this emerging technology-driven landscape that is continually being reshaped by artificial intelligence–driven tools like ChatGPT. Confusion abounds concerning whether use of these technologies amounts to unauthorized practice of law, leads to discrimination, adequately protects client data, violates the duty of technological competence, or requires prohibited cross-industry …

Taking Aim At New York's Concealed Carry Improvement Act, Leo Bernabei

Fordham Law Review

In June 2022, the U.S. Supreme Court held in New York State Rifle & Pistol Ass’n v. Bruen that New York’s requirement, which mandated that applicants for concealed carry licenses show proper cause for carrying a handgun in public, violated the Second and Fourteenth Amendments. Responding to the likely increase in individuals licensed to carry handguns in the state, New York enacted the Concealed Carry Improvement Act (CCIA). This law bans all firearms from many places of public congregation, establishes a default rule that firearms are not allowed on private property without the owner or lessee’s permission, and sets additional …

Anything But Prideful: Free Speech And Conversion Therapy Bans, State-Federal Action Plans, And Rooting Out Medical Fraud, Jordan Hutt

Fordham Law Review

At a time when conversion therapy might seem archaic to many people, this practice remains prevalent across the United States and finds legal support in the halls of federal courthouses. In 2020, the U.S. Court of Appeals for the Eleventh Circuit, in Otto v. City of Boca Raton, held that two ordinances banning conversion therapy in Boca Raton and Palm Beach violated First Amendment free speech rights. Specifically, Otto held that conversion therapy bans were content-based restrictions subject to strict scrutiny. Conversely, the U.S. Courts of Appeals for the Third and Ninth Circuits’ prior decisions upheld conversion therapy bans …

Proceedings At An Impasse: Appealing Fugitive Disentitlement Orders Of International Defendants Under The Collateral Order Doctrine, Parker Siegel

Fordham Law Review

The doctrine of fugitive disentitlement allows federal courts to decline to entertain a defendant’s claims when that defendant is deemed a fugitive from justice. Once disentitled, defendants cannot seek relief from the judicial system until they submit to the court’s jurisdiction. But complications emerge when federal district courts disentitle non–U.S. citizens who reside outside of the United States, who are indicted for alleged misconduct committed abroad, and who attempt to dismiss charges while remaining in their home countries. Federal circuit courts of appeals are split on whether such defendants can appeal from a fugitive disentitlement ruling without submitting to the …

Children Are Constitutionally Different, But Life Without Parole And De Facto Life Sentences Are Not: Extending Graham And Miller To De Facto Life Sentences, Ellen Brink

Fordham Law Review

Under the U.S. Supreme Court’s current juvenile sentencing jurisprudence, a juvenile may legally receive a prison sentence of hundreds of years without parole in instances in which a sentence of life without parole would be unconstitutional. This illogical state of affairs is the result of the Court’s silence on whether its holdings in Graham v. Florida and Miller v. Alabama, which together limit the availability of juvenile life without parole sentences, also apply to so-called de facto life sentences. De facto life sentences are lengthy term-of-years sentences that confine offenders to prison for the majority, if not the entirety, …

Misunderstanding Meriwether, Brian Soucek, Ryan Chen

Fordham Law Review

Meriwether v. Hartop is widely seen as one of the most important academic freedom and transgender rights cases of recent years. Whether praising it as a victory for free speech or condemning it as a threat to educational equality, commentators across the political spectrum have agreed on one thing: the U.S. Court of Appeals for the Sixth Circuit did something big when it held that professors at public universities have a First Amendment right to misgender their students in class. But contrary to popular belief, Meriwether held no such thing. In fact, the Sixth Circuit could not have held what …

Confronting Carpenter: Rethinking The Third-Party Doctrine And Location Information, Charlie Brownstein

Fordham Law Review

The third-party doctrine enables law enforcement officers to obtain personal information shared with third parties without a warrant. In an era of highly accessible technology, individuals’ location information is consistently being transmitted to third parties. Due to the third-party doctrine, this shared information has been available to law enforcement, without the individual knowing or having an opportunity to challenge this availability. Law enforcement has utilized this doctrine to obtain comprehensive information regarding individuals’ whereabouts over long periods of time.

The U.S. Supreme Court recently limited the reach of the third-party doctrine regarding location data held by cellphone providers. However, this …

The Federal Rules Of Emojis: A Proposed Framework For Handling Emoji Evidence In Trial Contexts, Marilyn Hurzeler

Fordham Law Review

Emojis are 3,633 ubiquitous symbols-as-communication used by 92 percent of internet users. These tiny yet influential pieces of evidence hold the power to complete, enhance, mitigate, and flip the meaning of surrounding text. Consequently, court references to emojis have grown exponentially in the last five years. As emojis have become a cornerstone of digital discourse, courts have increasingly encountered the significant impact of emojis on parties’ legal claims. A guide for handling of emoji evidence under the Federal Rules of Evidence (FRE), therefore, is important to afford proper treatment to this relatively new evidentiary form.

This Note discusses how the …

Between Scylla And Charybdis: Addressing Software Patent Eligibility In Early-Stage Litigation, Pooja Krishnan

Fordham Law Review

The U.S. Supreme Court’s decision in Alice Corp. v. CLS Bank International established a two-step inquiry for determining the eligibility of a patent claim for protection. The test has faced criticism for its inconsistency, particularly when evaluating software-related patents. These inconsistencies are exacerbated when the test is applied during the early stages of litigation to address motions made under Federal Rules of Civil Procedure 12(b)(6) and 12(c), as the test often requires an in-depth technical analysis of the claims.

First, this Note examines the current approach to software patent eligibility and the various points of inconsistencies and tension. This Note …

2023-2024 Fordham Law School Faculty Bibliography, Fordham Law School

Faculty Bibliography

Bibliography of Fordham Law School faculty publications in print from July 2023-June 2024.

Voting Rights And The Electoral Process: Resolving Representation Issues Due To Felony Disenfranchisement And Prison Gerrymandering, Andrew Calabrese, Tim Gordon, Tianyi Lu

Fordham Law Voting Rights and Democracy Forum

Felony disenfranchisement and prison gerrymandering distort democratic representation by excluding incarcerated and formerly incarcerated individuals from political participation while artificially inflating representation in prison-hosting districts. In this report, the Fordham Law School Rule of Law Clinic recommends restoring voting rights to individuals with felony convictions once they are released from prison and ending prison-based gerrymandering by counting incarcerated persons with a certain number of years left in their sentences as residents of the districts where they intend to reside after their release, in addition to other reforms to effectively carry out these policies.

Third Parties And The Electoral College: How Ranked Choice Voting Can Stop The Third-Party Disruptor Effect, Hillary Bendert, Jacqueline Hayes, Kevin Ruane

Fordham Law Voting Rights and Democracy Forum

Third-party candidates have at times altered the outcomes of presidential elections by drawing votes away from major-party candidates. This “disruptor” effect is largely a product of states’ winner-take-all allocation of electoral votes, which awards all of a state’s electors to the plurality winner. The system discourages support for third-party candidates and can produce results that fail to reflect majority preferences. This report by the Fordham Law School Rule of Law Clinic recommends that states adopt ranked-choice voting for presidential elections to ensure that winners command majority support. It also outlines complementary reforms, including best practices for implementing ranked-choice voting and …

Presidential Election Disruptions: Balancing The Rule Of Law And Emergency Response, Jason D'Andrea, Sonia Montejano, Matthew Vaughan

Fordham Law Voting Rights and Democracy Forum

Unexpected disruptions, such as natural disasters and terrorist attacks, could interfere with presidential elections. In this report, the Fordham Law School Rule of Law Clinic advances recommendations for how states should implement the federal law that allows them to extend the time for voting in response to catastrophic events. States should authorize local and state-level officials to trigger extensions, while providing for expedited judicial review of those decisions, whether to grant or deny additional voting time. By dispersing decision-making authority and ensuring prompt judicial oversight, these reforms aim to protect voters’ ability to cast ballots and to guard against the …

Candidates Of Their Choice? Paradoxical Impact Of The Voting Rights Act In Virginia, Mark E. Rush

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Title I Of The Civil Rights Act In Contemporary Voting Rights Litigation, Helen L. Brewer

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

The New Laboratories Of Democracy, Gerald S. Dickinson

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Epic Fail: Harkenrider V. Hochul And New York's 2022 Misadventure In "Independent" Redistricting, Richard Briffault

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Dirty Dancing: Is The Texas Two-Step A Bad Faith Filing?, Katharine H. O'Neill

Fordham Law Review

The Texas Two-Step is both a style of line dancing and a legal maneuver used by several large, profitable companies to enable a newly created entity to access the bankruptcy system and, thus, discharge the tort liabilities of its predecessor. This type of filing has been criticized by some as a tool used by healthy companies to evade responsibility for their tortious conduct and lauded by others as an efficient means to achieve a global resolution of crushing mass tort liability. Whether Texas Two-Step filings may properly access the bankruptcy courts is a question governed by § 1112(b) of the …

Criminalizing Threats Against Schools: A Divergence Of Mens Rea And Punishment Severity In Recent State Legislation, Max Kaufman

Fordham Law Review

School shootings occur on a regular basis in the United States. Fear of the next school shooting leads schools to take any potential threat of violence seriously, but responding to a threat can be extremely disruptive to a school’s operations and the community that it serves. In the last five years, nine state legislatures have attempted to deter these threats by specifically criminalizing threats of violence against schools.

Despite the proximity in time in which these states enacted school threat statutes, these laws diverge in two important ways: First, the nine statutes employ several different mens rea requirements. Second, these …

Forum Selection Provisions And The Preclusion Of Derivative Claims Under Section 14(A) Of The Securities Exchange Act: Should Federal Courts Intervene?, Noah P. Mathews

Fordham Law Review

This Note examines whether a forum selection provision in a corporation’s bylaws that requires shareholders to bring derivative claims in the Delaware Court of Chancery is enforceable when invoked by directors to dismiss derivative claims under the Securities Exchange Act (the “Exchange Act”)—claims over which federal courts have exclusive jurisdiction. In Seafarers Pension Plan ex rel. Boeing Co. v. Bradway, the U.S. Court of Appeals for the Seventh Circuit held that enforcing this type of bylaw would violate the act’s antiwaiver provision, which voids any stipulation that allows a person to waive compliance with the act. In Lee ex …

The President's Subjective And Objective Legal Obligations, Shalev Gad Roisman

Fordham Law Review

Congress has granted the President enormous power. This is well known, but how we are to assess the legality of exercises of such power still is not. Put simply, there is no clear framework to understand the legality of presidential exercises of statutory power. Scholars have noticed this and, in response, have largely turned to administrative law for guidance. This turn to administrative law is somewhat intuitive but misguided.

Administrative law is a highly reticulated body of law that has developed over decades to regulate executive branch agencies, not the President. It has focused on legitimizing agency power in the …

Manufacturing Uncertainty In Constitutional Law, Ari Ezra Waldman

Fordham Law Review

Civil rights litigation is awash in misinformation. Litigants have argued that abortion causes cancer, that gender-affirming hormone therapy for adolescents is irreversible, and that in-person voter fraud is a massive problem. But none of that is true. The conventional scholarly account about law and misinformation, disinformation, and dubious claims of fact focuses on the power of legislatures and amici to engage in perfunctory fact-finding and to rely on “alternative facts” or outright falsehoods to justify laws that harm and restrict the rights of marginalized populations. At the same time, the literature suggests that judges and the law are inundated with …

Ripple Effect: The Sec's Major Questions Doctrine Problem, Matt Donovan

Fordham Law Review

Crypto assets and blockchain technology have the potential to create unprecedented equitable access to financial institutions. Despite this potential, there is a robust debate regarding federal agencies’ jurisdiction over the novel asset class. Without clear statutory guidelines, federal agencies have been forced to resolve this debate through the rulemaking process. However, agency rules regarding jurisdiction over crypto assets could be scrutinized by a reviewing court under the major questions doctrine. Once highly deferential to agency rules, the U.S. Supreme Court in recent terms has repeatedly struck down agency rules when an agency claims an unheralded power to regulate an issue …

Close Enough To Stand?: Reconsidering The Fair Debt Collection Practices Act's Relationship With The Right To Privacy, Ryan Karerat

Fordham Law Review

With the passage of the Fair Debt Collection Practices Act (FDCPA) in 1977, Congress created a private right of action through which consumers could sue debt collectors for overzealous and improper conduct traceable to their debt collection efforts. FDCPA violations can abridge a consumer’s rights under the statute without producing tangible economic or physical injury. As a result, many plaintiffs bringing claims under the FDCPA plead different theories of intangible harm to establish the required injury in fact conferring Article III standing to file suit in federal court. To establish that they have suffered an injury in fact, a plaintiff …

Imperialist Immigration Reform, Cori Alonso-Yoder

Fordham Law Review

For decades, one of the most challenging domestic policy matters has been immigration reform. Dogged by controversial notions of what makes for a “desirable” immigrant and debates about enforcement and amnesty, elected officials have largely given up on achieving comprehensive, bipartisan immigration solutions. The lack of federal action has led to an outdated and impractical legal framework, with state and local lawmakers unable to step into the breach. Well over 100 years ago, the U.S. Supreme Court firmly stated that regulation of the U.S. immigration system is within the sole constitutional authority of the federal government.

Yet there is one …

Visible And Invisible: The Case For A Territorial Reporter, Joseph T. Gasper Ii

Fordham Law Review

This Essay discusses the relative invisibility of opinions issued by America’s territorial courts. Today, there is no territorial reporter that publishes the decisions of these courts, making it difficult, if not impossible, to find territorial case law. The absence of a territorial reporter excludes Territories from the national legal community and obscures the efforts of past judges and justices who grappled with the same administrative and constitutional challenges which American Territories face today. To remedy this issue, this Essay argues that it is time for a dedicated territorial reporter.

De Jure Separate And Unequal Treatment Of The People Of Puerto Rico And The U.S. Territories, Natalie Gomez-Velez

Fordham Law Review

Current efforts to dismantle systemic racism in the United States are often met with the argument that legally sanctioned inequality is a thing of the past. Yet despite progress toward formal legal equality, racism and discrimination in the United States exist not only as the effects of past laws and systems—they exist presently in current laws and systems as well. Current U.S. law discriminates against U.S. territories and their residents with respect to citizenship status, voting rights and representation, and equal access to benefits, among other things.

This Essay examines such separate and unequal treatment using the recent case, United …

Cultural Identity And Territorial Autonomy: U.S. Virgin Islands Jurisprudence And The Insular Cases, Dolace Mclean

Fordham Law Review

This Essay utilizes the lens of postcolonial theory to analyze the development of U.S. Virgin Islands jurisprudence. This Essay asserts that the United States’s acquisition of the territory served the purpose of helping to construct an American narrative of moving from colony to colonial power that surpassed its European forebears. The colonial narrative is fractured by instances of the Supreme Court of the Virgin Islands re-narrating territorial space by utilizing legal principles that are informed by local cultural expressions. Consequently, Virgin Islands jurisprudence is transformed from “colonial dependent” to “postcolonial independent” based on intersectional, progressive principles.

Now On Display: In-Line Linking In The Age Of The Server Test, Sonia Autret

Fordham Law Review

In 2007, the U.S. Court of Appeals for the Ninth Circuit adopted a new interpretation of 17 U.S.C. § 106(5), which codifies the display right of the Copyright Act of 1976. In Perfect 10 v. Amazon.com, the Ninth Circuit read § 106(5) to mean that creative works made visible on web pages through in-line linking, an architectural pillar of modern web design, would not infringe on a copyright owner’s display right if the work was not actually copied onto the website’s server. Since its adoption, this approach—known as the Server Test—has been lauded by search engine providers and web …