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Fordham Law Review

2020

Articles 91 - 107 of 107

Full-Text Articles in Law

Breaking Bivens?: Falsification Claims After Ziglar V. Abassi And Reframing The Modern Bivens Doctrine, Alex Langsam Mar 2020

Breaking Bivens?: Falsification Claims After Ziglar V. Abassi And Reframing The Modern Bivens Doctrine, Alex Langsam

Fordham Law Review

The U.S. Supreme Court’s 2017 decision in Ziglar v. Abassi purported to clarify the role of the judiciary in inferring Bivens suits directly from the Constitution, rather than a federal statute. Despite this effort, uncertainty has plagued the lower courts. While the Court’s recent Bivens jurisprudence has focused on issues concerning national security, uncertainty also persists in Bivens claims in other domains. This Note examines Bivens claims seeking damages for constitutional violations by law enforcement agents who falsify evidence, lie to procure a search warrant, and commit other similar acts of misconduct. After recognizing a broad, unacknowledged circuit split on …

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A Crack In The Armor?: How The Reforms To The New York State Human Rights Law May Expose Weaknesses In Civil Rape Shield Laws, Candace Mashel Mar 2020

A Crack In The Armor?: How The Reforms To The New York State Human Rights Law May Expose Weaknesses In Civil Rape Shield Laws, Candace Mashel

Fordham Law Review

Civil rape shield laws exist to protect victims of sexual misconduct from unwarranted intrusions into their private lives as they litigate their claims. Gaps in current federal and New York State civil rape shield laws, however, mean that victims of sexual misconduct still experience significant privacy intrusions during litigation. These intrusions may have the effect of deterring victims from coming forward. Part of the reason that these gaps exist, however, is to ensure that defendants are given a fair opportunity to assert defenses. In 2019, New York revised the New York State Human Rights Law to make it easier for …

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Is There A Right To Tweet At Your President?, Nick Reade Mar 2020

Is There A Right To Tweet At Your President?, Nick Reade

Fordham Law Review

The U.S. Supreme Court has developed the public forum doctrine to protect the First Amendment rights of speakers in places of assembly and expression. The doctrine facilitates free expression by restricting the government’s ability to discriminate against or regulate speech in state- controlled public forums. In 2019, two federal courts of appeals extended the doctrine to protect speakers who express themselves in the interactive spaces that elected politicians control on their personal social media accounts. In Davison v. Randall, the Fourth Circuit held that a local official’s Facebook page was a public forum and, therefore, the official could neither …

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A Public Concern: Protecting Whistleblowers Under The First Amendment, Steven Still Mar 2020

A Public Concern: Protecting Whistleblowers Under The First Amendment, Steven Still

Fordham Law Review

The United States has just witnessed an impeachment debate which may have far-reaching ramifications for our democratic institutions. These hostilities began with an anonymous whistleblower complaint from a government employee, disclosing what he or she believed were illegal activities directed by President Donald J. Trump. Ever since, discussion of whistleblowers has taken on greater salience in the news cycle. Today, there are a number of whistleblower statutes that protect employees who disclose knowledge of their employer’s illicit activities from workplace retaliation. Although whistleblowing is not unique to government workers, these individuals have an added layer of protection afforded to them …

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Judicial Ethics In The #Metoo World, Renee Knake Jefferson Mar 2020

Judicial Ethics In The #Metoo World, Renee Knake Jefferson

Fordham Law Review

This Article examines the judicial role in professional ethics regulation through the lens of the judiciary’s own self-governance on sexual misconduct. The #MeToo movement exposed the long-enduring silence of the courts. Headlines featured judges like Alex Kozinski, who retired from the Ninth Circuit in 2018 after numerous former clerks went to the media with credible allegations of sexual misconduct. In 2019, at the instruction of Chief Justice Roberts, the federal judiciary amended the Code of Conduct for United States Judges to make clear that misconduct includes unwanted, offensive, or abusive sexual conduct and to include protections for those who report …

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Judge's And The Deregulation Of The Lawyer's Monopoly, Jessica K. Steinberg, Et Al. Mar 2020

Judge's And The Deregulation Of The Lawyer's Monopoly, Jessica K. Steinberg, Et Al.

Fordham Law Review

Drawing on original data from a cross-jurisdictional investigation of the civil justice landscape, this Article shows how some judges—mired in the pro se crisis—are relying on a shadow network of nonlawyer professionals to substitute for the role counsel has traditionally played. Focusing on domestic violence courts as the primary illustration, we find that even in jurisdictions not currently contemplating regulatory reform, judges are relying on organized nonlawyer actors to prepare pleadings, offer substantive and procedural information to litigants, and provide counseling services. These nonlawyer advocates play a significant role in shaping the facts and arguments presented to the judge, which …

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Policing Procedural Errors In The Lower Criminal Courts, Justin Murray Mar 2020

Policing Procedural Errors In The Lower Criminal Courts, Justin Murray

Fordham Law Review

The criminal justice system depends on reviewing courts to formulate norms of procedural law and to make sure those norms are actually followed in the lower courts. Yet reviewing courts are not performing either of these functions very well. No single factor can fully explain why this is the case, for there is plenty of blame to go around. But the harmless error rule is a major culprit. The conventional approach to harmless error review prohibits reversal of a defendant’s conviction or sentence, even when the law was violated during proceedings in the lower court, unless that violation influenced the …

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The Harms Of Racist Online Hate Speech In The Post-Covid Working World: Expanding Employee Protections, Tatiana Hyman Mar 2020

The Harms Of Racist Online Hate Speech In The Post-Covid Working World: Expanding Employee Protections, Tatiana Hyman

Fordham Law Review

In one year, the COVID-19 pandemic and egregious incidents of racial violence have created significant shifts in the United States’s workplace culture and social climate. Many employers are transitioning employees to long-term or permanent remote work, and conversations about racial justice are more pervasive and divisive, especially on social media. With people spending more time at home and on the internet, hate speech has increased and inspired global conversations about curtailing its harmful effects. Unlike many other countries, the United States does not penalize hate speech. Nevertheless, its harmful effects have reached the workplace, and employers have fired employees who …

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Casting Light On The Shade: Using Securities Laws To Draw New Contours In Art Investment Regulation, Emma Snover Mar 2020

Casting Light On The Shade: Using Securities Laws To Draw New Contours In Art Investment Regulation, Emma Snover

Fordham Law Review

The disparate treatment of art investments under the Internal Revenue Code and the Securities Exchange Act of 1934 poses a problem. This disparity generates inequities among art investors and between art investors and investors in traditional securities markets. The Internal Revenue Code considers both art and traditional securities to be capital assets with no material distinction. For example, prior to the 2017 tax act, art investors could defer the realization of capital gains through like-kind exchanges of works of art under section 1031 of the Internal Revenue Code. Currently, under section 1400Z-2, an addition to the Internal Revenue Code through …

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(In)Formal Marriage Equality, Michael J. Higdon Mar 2020

(In)Formal Marriage Equality, Michael J. Higdon

Fordham Law Review

In 2015, same-sex couples throughout the United States obtained formal marriage equality. But is the prospective ability to obtain marriage licenses sufficient to achieve Obergefell v. Hodges’s promise of equality? What about individuals whose same-sex relationship did not survive—either through death or dissolution—to see marriage equality become the law of the land? Or those couples who did ultimately wed but now have a marriage that appears to be artificially short when considering just how long the couple has actually been together in a marriage-like relationship? With marriage benefits conditioned not only on the fact of marriage but also the length …

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Small Town, Inc.: Mischief At The Margins Of Municipal Incorporation, Robert L. Bentlyewski Mar 2020

Small Town, Inc.: Mischief At The Margins Of Municipal Incorporation, Robert L. Bentlyewski

Fordham Law Review

When a state creates a municipality or alters the boundaries of an existing one, there usually is little to no opportunity for judicial review of the decision. Under the centuries-old rule of construction known as Dillon’s Rule, courts consider municipal boundary making to be strictly a political matter best left to state legislatures. This sweeping deference creates opportunities for special interests or politically powerful communities to segregate towns and schools, isolate vulnerable communities, or otherwise manipulate boundaries to hoard the benefits of local government. Courts will only intervene and deem an incorporation void if the action brazenly violates a constitutional …

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The Flsa's Bristol-Myers Squibb Problem, Adam Drake Mar 2020

The Flsa's Bristol-Myers Squibb Problem, Adam Drake

Fordham Law Review

Three years after Bristol-Myers Squibb Co. v. Superior Court, in which the U.S. Supreme Court held that a California state court lacked personal jurisdiction over the claims of out-of-state plaintiffs, the ultimate scope of the holding remains unclear. Having reasoned that permitting jurisdiction over out-of-state plaintiffs’ claims would infringe on the sovereignty of those plaintiffs’ home states, the Court left open the question whether its holding applies to out-of-state plaintiffs in federal causes of action. Predictably, defendants have subsequently argued that the Court’s decision in Bristol-Myers Squibb applies to federal causes of action and bars federal courts from exerting …

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Chief Justice Roberts's Hard Look Review, Nikol Oydanich Mar 2020

Chief Justice Roberts's Hard Look Review, Nikol Oydanich

Fordham Law Review

The U.S. Supreme Court’s 1983 decision in Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co. announced a framework for judicial review of agency actions that are challenged as arbitrary and capricious. The decision, however, left two significant questions unresolved: How much political influence in agency decisionmaking is too much to fail judicial review? And may a reviewing court scrutinize the agency’s substantive policy choice or not? This Note argues that Department of Commerce v. New York and Department of Homeland Security v. Regents of the University of California—the Court’s most recent applications of State Farm—settle …

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Restorative Justice From Prosecutors’ Perspective, Bruce A. Green, Lara Bazelon Jan 2020

Restorative Justice From Prosecutors’ Perspective, Bruce A. Green, Lara Bazelon

Fordham Law Review

Restorative justice processes have been promoted as an alternative to criminal adjudication for many years outside the United States and, in recent years, in the United States as well. In the United States, restorative justice processes are used in some jurisdictions in cases involving juvenile offenders or low-level, nonviolent offenses by adults, but they have rarely been used in cases of adult felony offenders charged with serious violent crimes. Whether restorative justice processes will be used more broadly depends largely on whether prosecutors become receptive to their use. A handful of newly elected “progressive prosecutors” have expressed interest in applying …

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Toward National Criminal Bar Admission In U.S. District Courts, Gabriel J. Chin Jan 2020

Toward National Criminal Bar Admission In U.S. District Courts, Gabriel J. Chin

Fordham Law Review

In the extensive litigation over bar admission in federal district courts, courts have upheld state bar membership requirements. Nevertheless, the changes to legal practice flowing from the COVID-19 pandemic—the disconnection between workplace and residence, the ability to meet and to hold court proceedings by video, and the unjustifiability of charging clients time and travel for brief, perfunctory in-person meetings and conferences that could be handled effectively and expeditiously online—will make these questions ever more serious

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Access To Algorithms, Hannah Bloch-Wehba Jan 2020

Access To Algorithms, Hannah Bloch-Wehba

Fordham Law Review

Federal, state, and local governments increasingly depend on automated systems—often procured from the private sector—to make key decisions about civil rights and liberties. When individuals affected by these decisions seek access to information about the algorithmic methodologies that produced them, governments frequently assert that this information is proprietary and cannot be disclosed. Recognizing that opaque algorithmic governance poses a threat to civil rights and liberties, scholars have called for a renewed focus on transparency and accountability for automated decision-making. But scholars have neglected a critical avenue for promoting public accountability and transparency for automated decision-making: the law of access to …

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Withdrawing From Congressional-Executive Agreements With The Advice And Consent Of Congress, Abigail L. Sia Jan 2020

Withdrawing From Congressional-Executive Agreements With The Advice And Consent Of Congress, Abigail L. Sia

Fordham Law Review

As President Donald J. Trump withdrew the United States from one international agreement after another, many began to question whether these withdrawals required congressional approval. The answer may depend on the type of agreement. Based on history and custom, it appears that the president may unilaterally withdraw from agreements concluded pursuant to the treaty process outlined in the U.S. Constitution. However, the United States also has a long history of concluding international agreements as congressional-executive agreements, which use a different approval process that does not appear in the Constitution. But while academics have spilled ink on Article II treaties for …

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