Law Commons^™

Cracks In The Profession’S Monopoly Armor, Jack P. Sahl

Fordham Law Review

No abstract provided.

The Legal Profession’S Monopoly: Failing To Protect Consumers, Laurel A. Rigertas

Fordham Law Review

No abstract provided.

Overstepping Ethical Boundaries? Limitations On State Efforts To Provide Access To Justice In Family Courts, Jessica Dixon Weaver

Fordham Law Review

    Family law courts in America are overwhelmed with self-represented parties who try their best to navigate an unfamiliar territory laden with procedural and evidentiary rules. Efforts to level the playing field in these courts have resulted in state entities and judges taking on roles that previously belonged to attorneys. State supreme court judges and state agencies draft and promulgate family law forms, such as divorce pleadings and paternity acknowledgments, to provide poor citizens access to justice. While these efforts have resulted in positive outcomes for some families, reliance on the state’s imprimatur has caused significant harm to others. Upon closer …

Access To Justice Requires Access To Attorneys: Restrictions On The Practice Of Law Serve A Societal Purpose, Lisa H. Nicholson

Fordham Law Review

No abstract provided.

Anyone Can “Think Like A Lawyer”: How The Lawyers’ Monopoly On Legal Understanding Undermines Democracy And The Rule Of Law In The United States, Bridgette Dunlap

Fordham Law Review

No abstract provided.

Legal Information, The Consumer Law Market, And The First Amendment, Renee Newman Knake

Fordham Law Review

No abstract provided.

Globalization And The Monopoly Of Aba-Approved Law Schools: Missed Opportunities Or Dodged Bullets?, Carole Silver

Fordham Law Review

No abstract provided.

Defining Patent Quality, Christi J. Guerrini

Fordham Law Review

    Depending on whom you ask, the state of U.S. patent quality is either dismal or decent, in decline or on the upswing, in need of intervention or best left alone. Absent from the ongoing debate about the quality of U.S. patents, however, is much thoughtful discussion about what constitutes a patent’ “quality” in the first place. What features of a patent make it “good” in quality, what features make it “bad” in quality, and whose opinion matters? Surprisingly, scholars and policymakers have shown little interest in these questions. Yet their answers are critical to the direction of the patent agenda …

Federal Enforcement Of Police Reform, Stephen Rushin

Fordham Law Review

    Congress passed 42 U.S.C. § 14141 in an effort to combat police misconduct and incentivize proactive reform in local law enforcement agencies. The statute gives the U.S. Attorney General the power to initiate structural reform litigation against local police departments engaged in a pattern or practice of unconstitutional behavior. While academics initially praised the law’s passage, many have since worried that the Department of Justice (DOJ) has not effectively administered the measure. Little research has analyzed how the DOJ has used its authority to initiate structural police reform. Using a combination of qualitative and quantitative methods, I fill this gap …

Choosing Which Rule To Break First: An In-House Attorney Whistleblower’S Choices After Discovering A Possible Federal Securities Law Violation, Naseem Faqihi

Fordham Law Review

    The early twenty-first century has seen several instances of large-scale federal securities law violations—such as Enron, WorldCom, and the Bernie Madoff scandal—that have garnered widespread attention and heavily impacted the global economy. In each of these cases, whistleblowers tried to expose the underlying fraud. These and other scandals led to the enactment of new laws to protect whistleblowers who seek to expose these kinds of violations.

    In-house attorneys are in a special position to discover, understand, and expose their organization’s federal securities violations. However, should in-house attorneys discover misconduct, and when deciding whether or not to take action, they must …

Tinker Gone Viral: Diverging Threshold Tests For Analyzing School Regulation Of Off-Campus Digital Student Speech, Daniel Marcus-Toll

Fordham Law Review

    In the context of students’ free speech rights, courts have traditionally premised school regulatory authority on geography, deferring to school officials on campus and limiting a school’s capacity to discipline students for conduct taking place beyond school hours or property. In the contemporary setting, however, where wireless devices, mobile phones, and other communicative technologies abound, a student may affect the school environment significantly without setting foot on school property. In the absence of guidance from the U.S. Supreme Court, the limits of school authority to regulate such “off-campus” student speech are uncertain.

    Several courts have permitted school discipline in response …

Regulating The Militia Well: Evaluating Choices For State And Municipal Regulators Post-Heller, Benjamin H. Weissman

Fordham Law Review

    Until its 2008 decision in District of Columbia v. Heller, the U.S. Supreme Court had never struck down any firearm restrictions as violating the Second Amendment of the U.S. Constitution. In Heller, the majority held that the Second Amendment’s text and original public meaning protect an individual’s right to keep and bear arms for self-defense in the home. Both proponents and opponents of gun control regulation saw the Heller decision as ushering in a new era of Second Amendment jurisprudence.

    On the one hand, Justice Antonin Scalia’s opinion for the majority in Heller was seen as a vindication …

Editors' Foreword, Editors

Fordham Law Review

No abstract provided.

The Citizenship Of Others, Muneer I. Ahmad

Fordham Law Review

No abstract provided.

Substantive Due Process And U.S. Jurisdiction Over Foreign Nationals, Jennifer K. Elsea

Fordham Law Review

    The due process rights of suspected terrorists have played a major role in the debate about how best to engage terrorist entities after September 11, 2001. Does citizenship or immigration status have a bearing on the treatment of terrorists? Does location within or outside the United States matter? This Article explores the connection between citizenship and alienage, enemy status, allegiance, and due process rights against a backdrop of international law. It surveys the application of due process to citizens and aliens based on the location of misconduct within or outside the territory of the United States and notes the expansion …

Passport Revocation As Proxy Denaturalization: Examining The Yemen Cases, Ramzi Kassem

Fordham Law Review

No abstract provided.

Detention After The Aumf, Stephen I. Vladeck

Fordham Law Review

No abstract provided.

Comity Concerns Are No Joke: Recognition Of Foreign Judgments Under Dormant Foreign Affairs Preemption, Marc P. Epstein

Fordham Law Review

    This Note gives the legal background of the doctrine of dormant foreign affairs preemption, examines the laws governing the recognition of foreign judgments under the lens of dormant foreign affairs preemption, and argues that courts should adopt an objective standard for future dormant foreign affairs preemption cases.

    Dormant foreign affairs preemption is premised on the idea that the federal government should have exclusive control over foreign affairs. The doctrine allows courts to preempt state laws in some cases where there is no conflicting federal policy or statute. The U.S. Supreme Court has only once held a state statute unconstitutional under …

Ascertainability In The Third Circuit: Name That Class Member, Daniel Luks

Fordham Law Review

    The 1966 amendment of Rule 23 provided plaintiffs with an extremely powerful procedural device. Since then, much controversy has surrounded Rule 23. Judges have often shown hostility towards certification of frivolous class actions that result in large fees for attorneys but little recovery for class members. The Third Circuit has recently used the requirement that a class be ascertainable to create an extremely high bar for certification of small-claims consumer class actions. Such class actions in the Third Circuit are essentially fruitless unless a plaintiff can individually identify all potential class members prior to class certification. The Third Circuit is …

Sovereign Bankruptcy: Why Now And Why Not In The Imf, Molly Ryan

Fordham Law Review

    As the Eurozone sovereign debt crisis that began in 2009 continues to run its course, leaving massive economic dislocation in its wake, and as NML Capital, Ltd. v. Republic of Argentina makes its way to the U.S. Supreme Court, this Note discusses the timely and persistent problem of sovereign debt crises and the many impediments to their orderly resolution. This Note evaluates various proposals for dealing with sovereign debt-crisis resolution and concludes that a multilateral treaty-based sovereign bankruptcy regime, institutionally independent from the International Monetary Fund, offers the best solution.

    The status quo—messy, inefficient, and unpredictable ad hoc negotiations—has consistently …

Unlimited Data?: Placing Limits On Searching Cell Phone Data Incident To A Lawful Arrest, Thomas Rosso

Fordham Law Review

    The “search incident to arrest exception” is one of several exceptions to the general requirement that police must obtain a warrant supported by probable cause before conducting a search. Under the exception, an officer may lawfully search an arrestee’s person and the area within the arrestee’s immediate control without a warrant or probable cause, so long as the search is conducted contemporaneously with the lawful arrest. The U.S. Supreme Court has justified the exception based on the need for officers to discover and remove any weapons or destructible evidence that may be within the arrestee’s reach. Additionally, the Court has …

Enforcement Of Forum-Selection Clauses In Federal Court After Atlantic Marine, Matthew J. Sorensen

Fordham Law Review

    Forum-selection clauses are important agreements that limit exposure to risk of litigation in an undesired locale. The enforcement of forum-selection clauses in the U.S. federal court system was not always certain, but today, such agreements are broadly considered enforceable. Courts, however, are split as to whether such clauses are governed by state or federal law and as to the proper procedural mechanism for enforcement. Recently, in Atlantic Marine Construction Co. v. U.S. District Court, the U.S. Supreme Court made strides toward resolving these disagreements among lower courts.

    This Note explores the history of enforcement of forum-selection clauses in federal …

Function Over Form: Bringing The Fixation Requirement Into The Modern Era, Megan Carpenter, Steven Hetcher

Fordham Law Review

    This Article examines the ways that contemporary creativity challenges copyright’s fixation requirement. In this Article, we identify concrete problems with the fixation requirement, both practically and in light of the fundamental purpose and policy behind copyright law, and argue for a change that would amend the fixation requirement to better function in the modern era.

    Specifically, we conclude that a fair appraisal of the justifications for the fixation requirement provides little, if any, rationale for fixation except to the extent that fixation helps to separate idea from expression in determining the “metes and bounds” of creative expression. Recent case law …

Bankruptcy’S Corporate Tax Loophole, Diane Lourdes Dick

Fordham Law Review

    Imagine you are a company with a failing business that is drowning in debt. On the bright side, you also possess a very valuable asset. This asset is unique because, unlike most assets, if you liquidate the business through a Chapter 7 bankruptcy, it will be extinguished and its value will not be realized by any shareholders or creditors. On the other hand, even if you substantially liquidate the business using Chapter 11, you can, thanks to an extraordinary ambiguity in the law, preserve this valuable asset. Even better, you can direct the value of this asset to your preferred …

The Relevance Of Relevance: Section 215 Of The Usa Patriot Act And The Nsa Metadata Collection Program, Casey J. Mcgowan

Fordham Law Review

    In June 2013, a National Security Agency (NSA) contractor, Edward Snowden, leaked classified documents exposing a number of secret government programs. Among these programs was the “telephony metadata” collection program under which the government collects records from phone companies containing call record data for nearly every American. News of this program created considerable controversy and led to a wave of litigation contesting the validity of the program.

    The legality of the metadata collection program has been challenged on both constitutional and statutory grounds. The program derives its authority from Section 215 of the USA PATRIOT Act, codified as 50 U.S.C. …

Soil And Citizenship, Linda Bosniak

Fordham Law Review

No abstract provided.

Citizenship And Protection, Andrew Kent

Fordham Law Review

    This Article discusses the role of U.S. citizenship in determining who would be protected by the Constitution, other domestic laws, and the courts. Traditionally, within the United States, both noncitizens and citizens have had more or less equal civil liberties protections. But outside the sovereign territory of the United States, noncitizens have historically lacked such protections. This Article sketches the traditional rules that demarcated the boundaries of protection, then addresses the functional and normative justifications for the very different treatment of noncitizens depending on whether or not they were present within the United States.

The Nsa In Global Perspective: Surveillance, Human Rights, And International Counterterrorism, Peter Margulies

Fordham Law Review

No abstract provided.

Expatriating Terrorists, Peter J. Spiro

Fordham Law Review

No abstract provided.

The Boston Bombers, Leti Volpp

Fordham Law Review

No abstract provided.