Law Commons^™

Shall Businesses Profit If Their Owners Lose Their Souls? Examining Whether Closely Held Corporations May Seek Exemptions From The Contraceptive Mandate, Christopher S. Ross

Fordham Law Review

    May for–profit, secular corporations claim the protection of the Religious Freedom Restoration Act (RFRA)?

    This question is central to numerous lawsuits against the federal government in which business owners argue that certain regulations under the Patient Protection & Affordable Care Act substantially burden the exercise of their religion. This Note examines the threshold hurdle that for–profit business owners must clear to successfully state a claim under RFRA: the question of whether the businesses are “persons” the statute protects. This is an issue of first impression for the U.S. Supreme Court, and it has split the circuit courts of appeal.

    First, …

Mortgaging The American Dream: The Misplaced Role Of Accreditation In The Federal Student Loan System, Kathleen Negri

Fordham Law Review

    In 2013, outstanding student loan balances in the United States exceeded $994 billion. This growing volume of student debt has had far–reaching consequences for both individual borrowers and society as a whole. In many ways, the federal student loan program, available to students under the Higher Education Act (HEA), has achieved its goal of making higher education more accessible. Undergraduate college enrollment increased from 10.5 million students in 1980 to 17.6 million students in 2009. Despite the benefit of increased enrollment, however, the federal loan program has been criticized for increasing student loan debt and contributing to the “student loan …

Giving Meaning To “Meaningful Enough”: Why Trevino Requires New Counsel On Appeal, Devon Lash

Fordham Law Review

    Generally, defendants cannot raise new claims in a writ of habeas corpus unless they can accomplish the difficult task of showing that they could not have raised the claims earlier. In 2012, the U.S. Supreme Court laid out an equitable exception that allows defendants to claim—for the first time in a writ of habeas corpus—that they had an ineffective trial attorney if their failure to make a timely claim was due to a second ineffective attorney or no attorney whatsoever. The exception, however, only applied to defendants in states that required ineffective assistance claims to be brought in collateral proceedings, …

Conceptualizing And Reconceptualizing The Reporter’S Privilege In The Age Of Wikileaks, Rachel Harris

Fordham Law Review

    The examination of the reporter’s privilege in light of WikiLeaks gives rise to several imperative questions. Could WikiLeaks claim a federal reporter’s privilege if the U.S. government were to ask it to disclose the sources of its documents? Does the current federal law on reporter’s privilege adequately address new media, such as WikiLeaks? And if not, how should the law evolve to sufficiently accommodate organizations like WikiLeaks?

    This Note seeks to answer these questions. First, this Note advocates that WikiLeaks would be able to claim the privilege under current federal law. Second, this Note concludes that the current law on …

Anonymity, The Production Of Goods, And Institutional Design, Jeffrey M. Skopek

Fordham Law Review

    In this Article, I demonstrate that anonymity has been misconceived as an aspect of privacy, and that understanding this mistake reveals a powerful and underutilized set of legal tools for facilitating and controlling the production of information and other social “goods” (ranging from uncorrupted votes and campaign donations to tissue samples and funding for biomedical research). There are three core components to this analysis. First, I offer a taxonomic analysis of existing law, revealing that in areas ranging from contract and copyright to criminal law and constitutional law, the production of information and other goods is being targeted by three …

Private Law In The Gaps, Jeffrey A. Pojanowski

Fordham Law Review

    Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory.

    This Article’s analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …

In The Service Of Others: From Rose Hill To Lincoln Center, Constantine N. Katsoris

Fordham Law Review

At the start of the 2014 to 2015 academic year, Fordham University School of Law will begin classes at a brand new, state–of–the–art building located adjacent to the Lincoln Center for the Performing Arts. This new building will be the eighth location for Fordham Law School in New York City. From its start at Rose Hill in the Bronx, New York, to its various locations in downtown Manhattan, and finally, to its two locations at Lincoln Center, the law school’s education and values have remained constant: legal excellence through public service. This Article examines the law school’s rich history in …

Redefining En Banc Review In The Federal Courts Of Appeals, Alexandra Sadinsky

Fordham Law Review

Every circuit has the ability to review cases en banc. Hearing cases en banc allows the full circuit court to overturn a decision reached by a three–judge panel. Due to the decreasing probability of U.S. Supreme Court intervention, the circuit court is often the court of last resort in the ordinary life of a case, thereby amplifying the importance of en banc review. Despite its significance, many critics contend that en banc review is inefficient and rarely granted.

Each circuit has enacted its own rules governing en banc procedure. These rules have both slight and significant differences from one another …

Putting The Legal Profession’S Monopoly On The Practice Of Law In A Global Context, Laurel S. Terry

Fordham Law Review

When considering the proper scope of the U.S. legal profession’s monopoly, regulators and commentators may find it useful to compare the scope of the U.S. monopoly with the legal profession monopolies found in other countries. This Article surveys what we know—and do not know—about the scope of the monopoly in countries other than the United States. The Article finds that the state of knowledge on this topic is relatively undeveloped, that the scope of the U.S. legal profession’s monopoly appears to be larger than the scope of the monopoly found in some other countries, but that the “conventional wisdom” may …

Meta Rights, Charlotte Garden

Fordham Law Review

Are individuals entitled to notice of their constitutional rights or assistance in exercising those rights? In most contexts, the answer is no. Yet, there are some important exceptions, in which the U.S. Supreme Court has held that special circumstances call for notice and procedural protections designed to facilitate rights invocations. This Article refers to these entitlements as “meta rights”—rights that protect rights. The most famous of these is the Miranda warning, which notifies suspects of their Fifth Amendment rights to silence and an attorney. There are others as well—among them, the First Amendment right of individuals represented by public sector …

Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications, Daniel B. Kelly

Fordham Law Review

    The organizing principle of American succession law—testamentary freedom—gives decedents a nearly unrestricted right to dispose of property. After surveying the justifications for testamentary freedom, I examine the circumstances in which it may be socially beneficial for courts to alter wills, trusts, and other gratuitous transfers at death: imperfect information, negative externalities, and intergenerational equity. These justifications correspond with many existing limitations on the freedom of testation. Yet, disregarding donor intent to maximize the donees’ ex post interests, an increasingly common justification for intervention, is socially undesirable. Doing so ignores important ex ante considerations, including a donor’s happiness, a donor’s incentive …

Agency Settlement Reviewability, Dustin Plotnick

Fordham Law Review

    Administrative agency settlements have recently come under increased judicial scrutiny. Agency actions are presumptively reviewable under the Administrative Procedure Act (APA), which means they are generally subject to, among other requirements, “arbitrary and capricious” review under 5 U.S.C. § 706(2) and Motor Vehicles Manufacturing Ass’n of the United States v. State Farm Mutual Automobile Insurance Co. In contrast, the U.S. Supreme Court held in Heckler v. Chaney that agency no–action decisions are presumptively unreviewable because they are “committed to agency discretion by law” under 5 U.S.C. § 701(a)(2). Are agency settlements also presumptively unreviewable? In other words, are they more …

Neutral No More: Secondary Effects Analysis And The Quiet Demise Of The Content-Neutrality Test, Mark Rienzi, Stuart Buck

Fordham Law Review

    When the Supreme Court introduced the “secondary effects” doctrine to allow for zoning of adult businesses, critics fell into two camps. Some, like Justice William Brennan, predicted dire consequences for the First Amendment, particularly if the doctrine was used in political speech cases. Others, like Professor Laurence Tribe, predicted secondary effects analysis would be limited to sexually explicit speech and would not threaten the First Amendment. The modern consensus is that the doctrine has, in fact, been limited to cases about sex.

    Recent cases demonstrate, however, that the impact of the secondary effects doctrine on the First Amendment has been …

The Flawed Explicit Safety Net: How Federally Sponsored Deposit Insurance Contributes To Financial Crisis, Nicholas J. Colombo

Fordham Law Review

    In the spring of 2012, JPMorgan Chase and Co. (JP Morgan), one of the largest and most profitable banks in the United States, made a $6 billion mistake. The issues all began in London, with a division of JP Morgan known as the Chief Investment Office (CIO). While the CIO’s stated purpose was to use excess deposits to hedge against interest rate risk, it had in fact been responsible for earning approximately $4 billion in profits for JP Morgan over the three previous years. This all came to a screeching halt when Bruno Iksil, now known as the “London Whale,” …

This Space Intentionally Left Blank: What To Do When Hearsay And Rule 106 Completeness Collide, Michael A. Hardin

Fordham Law Review

    Federal Rule of Evidence 106 provides that when one party in a trial or hearing offers into evidence a portion of a statement in a misleading way, the opposing party can offer the rest, or some other portion of, that document or recorded statement at the same time if it is necessary for the factfinder to understand and contextualize the first part. Sometimes, however, the other portion, or “remainder,” would be inadmissible if it were offered by itself, either because it is hearsay or for some other reason. This leaves the court in a difficult position: Should it allow the …

The High Cost Of Child Support In Rape Cases: Finding An Evidentiary Standard To Protect Mother And Child From Welfare’S Cooperation Requirement, Aviva Nusbaum

Fordham Law Review

    Indigent single parents who turn to welfare for financial support must cooperate with their state’s child support enforcement requirements before receiving some or all of their benefits. Single parents are required to provide information about the absent parent because states use the information to pursue the absent parent for child support. While child support helps reduce poverty and increase parental emotional support for children, it can also be very dangerous for some single mothers. The good cause exception exempts parents from child support enforcement when it would be contrary to the “best interests of the child.” Mothers and children who …

A Game Changer? The Impact Of Padilla V. Kentucky On The Collateral Consequences Rule And Ineffective Assistance Of Counsel Claims, Joanna Rosenberg

Fordham Law Review

    The Sixth Amendment entitles a criminal defendant to effective assistance of counsel when deciding whether to plead guilty. Defense counsel, therefore, must ensure that his client understands the direct consequences of the plea: the nature of the criminal charge and the sentence. However, pursuant to the traditional collateral consequences rule employed by most courts, counsel has no Sixth Amendment obligation to warn that criminal defendant of so–called collateral consequences, such as mandatory sex offender registration, civil commitment, or ineligibility for parole. Prior to 2010, deportation was also considered a collateral consequence of a guilty plea in most jurisdictions.

    In Padilla …

9(B) Or Not 9(B)? That Is The Question: How To Plead Negligent Misrepresentation In The Post-Twombly Era, Andrew Todres

Fordham Law Review

    Perhaps nothing is more important to a litigant bringing an action in federal court than knowing the relevant pleading standard for his or her underlying claims. Ever since the inception of the Federal Rules of Civil Procedure, one of two pleading standards have applied to common law claims: the Rule 8(a)(2) standard, requiring a short and plain statement demonstrating entitlement to relief, or the Rule 9(b) standard, demanding that allegations of fraud or mistake be pled with particularity. At the intersection of these two pleading standards is the common law claim of negligent misrepresentation. Courts across the country have long …

Head Versus Heart: Applying Empirical Evidence About The Connection Between Child Pornography And Child Molestation To Probable Cause Analyses, Emily Weissler

Fordham Law Review

    As the internet has become nearly ubiquitous, child pornography possession has become increasingly widespread. Law enforcement efforts to combat the reach of these images have become increasingly aggressive and sophisticated. Sentences have also dramatically increased. As of 2008, the mean sentence for child pornography possession was ninety–two months, with a mandatory minimum sentence of five years.

    Circuit courts have confronted child pornography search warrant applications based mainly upon a prior child molestation conviction or enticement of a minor. Evaluating similar fact patterns, the Second, Sixth, and Ninth Circuits have held that child molestation or child enticement cannot be used to …

Editors’ Foreword, Editors

Fordham Law Review

No abstract provided.

Originalism: A Critical Introduction, Keith E. Whittington

Fordham Law Review

      The theory of originalism is now well into its second wave. Originalism first came to prominence in the 1970s and 1980s as conservative critics reacted to the decisions of the Warren Court, and the Reagan Administration embraced originalism as a check on judicial activism. A second wave of originalism has emerged since the late 1990s, responding to earlier criticisms and reconsidering earlier assumptions and conclusions. This Article assesses where originalist theory currently stands. It outlines the points of agreement and disagreement within the recent originalist literature and highlights the primary areas of continuing separation between originalists and their critics.

The Gravitational Force Of Originalism, Randy E. Barnett

Fordham Law Review

    In Part I of this Article, I describe four aspects of the New Originalism: First, New Originalism is about identifying the original public meaning of the Constitution rather than the original Framers’ intent. Second, the interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry. Third, there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed. Finally, distinguishing between the activities of interpretation and construction identifies the limit of the New Originalism, which is only a theory of interpretation. In …

Originalism And Constitutional Construction, Lawrence B. Solum

Fordham Law Review

    Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. The interpretation–construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the nineteenth and twentieth centuries, marks the difference between these two activities.

    This Article advances two central claims about constitutional construction. First, constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual: …

On What Distinguishes New Originalism From Old: A Jurisprudential Take, Mitchell N. Berman, Kevin Toh

Fordham Law Review

No abstract provided.

The New Originalism And The Foreign Affairs Constitution, Andrew Kent

Fordham Law Review

No abstract provided.

Original Meaning, Precedent, And Popular Sovereignty?: Whittington Et Al. V. Lincoln Et Al., Leslie F. Goldstein

Fordham Law Review

No abstract provided.

Not Interested? A Trustee Lacks “Party In Interest” Standing To Move For An Extension Of The Nondischargeability Bar Date On Behalf Of Creditors, Stephen C. Behymer

Fordham Law Review

    Chapter 7 bankruptcy is designed to provide a financially distressed debtor with a “fresh start.” Towards that end, an individual debtor’s debts are typically discharged during the case. A creditor has only a short window of time in which to object to the dischargeability of its claims. This bar date can only be extended for cause and upon the application of a “party in interest.” Occasionally, a trustee will move for such an extension on behalf of the creditors. There is a split, however, between the Fourth and Sixth Circuits regarding whether a trustee is a “party in interest” and, …

The Early Bird Waits For The Worm: May Federal Judgments Be Registered Prior To Appeal?, Cristina M. Rincon

Fordham Law Review

    The federal registration statute, codified at 28 U.S.C. § 1963, permits a judgment creditor to register his or her judgment in another state by simply filing a copy of the judgment with the clerk of the registering court. Registration is permitted when the judgment becomes final by appeal, when the time to appeal expires, or when the court that entered the judgment orders registration for good cause shown. The majority of courts have interpreted good cause as a showing that the judgment debtor lacks assets in the forum jurisdiction to fulfill the judgment, but possesses substantial assets in the registering …

The Inclusiveness Of The New Originalism, James E. Fleming

Fordham Law Review

No abstract provided.

The New Originalism And The Uses Of History, Jack M. Balkin

Fordham Law Review

    Central to the new originalism is the distinction between constitutional interpretation and constitutional construction. Interpretation tries to determine the Constitution’s original communicative content, while construction builds out doctrines, institutions, and practices over time. Most of the work of constitutional lawyers and judges is constitutional construction.

    The distinction between interpretation and construction has important consequences for constitutional theory. In particular, it has important consequences for longstanding debates about how lawyers use history and should use history.

    First, construction, not interpretation, is the central case of constitutional argument, and most historical argument occurs in the construction zone.

    Second, although people often associate …