Law Commons^™

Originalism, The Why And The What, Larry Alexander

Fordham Law Review

No abstract provided.

Meaning And Belief In Constitutional Interpretation, Andrei Marmor

Fordham Law Review

No abstract provided.

Deferentialism: A Post–Originalist Theory Of Legal Interpretation, Scott Soames

Fordham Law Review

No abstract provided.

Originalism, Vintage Or Nouveau: “He Said, She Said” Law, Tara Smith

Fordham Law Review

No abstract provided.

Meaning And Understanding In The History Of Constitutional Ideas: The Intellectual History Alternative To Originalism, Saul Cornell

Fordham Law Review

No abstract provided.

Accepting Contested Meanings, Bernadette Meyler

Fordham Law Review

No abstract provided.

The Observer Effect: National Security Litigation, Executive Policy Changes, And Judicial Deference, Ashley S. Deeks

Fordham Law Review

    The national security deference debate has reached a stalemate. Those favoring extensive deference to executive branch national security decisions celebrate the limited role courts have played in reviewing those policies. The executive, they contend, is constitutionally charged with such decisions and structurally better suited than the judiciary to make them. Those who bemoan such deference fear for individual rights and an imbalance in the separation of powers. Yet both sides assume that the courts’ role is minimal. Both sides are wrong.

    This Article shows why. While courts rarely intervene in national security disputes, the Article demonstrates that they nevertheless play …

In Bonds We Trustee: A New Contractual Mechanism To Improve Sovereign Bond Restructurings, Robert Auray

Fordham Law Review

    Governments around the world raise significant amounts of capital by issuing sovereign bonds in international financial markets. These bonds are typically purchased and traded by foreign investors who seek a profitable return on their investment. The issuing country incurs sovereign debt, which it must repay over a predetermined period of time. Occasionally, sovereigns—typically emerging market governments—become unable or unwilling to repay their sovereign debt.

    A country’s ability to repay its debt is difficult to assess given the multitude of nonfinancial factors that affect the assessment. As a result, investors are vulnerable to opportunistic defaults which can deprive them of their …

Chevron’S Flexible Agency Expertise Model: Applying The Chevron Doctrine To The Bia’S Interpretation Of The Ina’S Criminal Law–Based Aggravated Felony Provision, Michael Dorfman-Gonzalez

Fordham Law Review

    For nearly thirty years, courts have looked to the U.S. Supreme Court’s ruling in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. when reviewing a challenge to an agency’s interpretation of statutory language and determining whether deference is appropriate. Despite Chevron’s longstanding role as one of administrative law’s most important legal doctrines, no specification exists as to whether judicial deference is required when an agency interprets language outside the scope of its expertise. As a result, the Second and Third Circuits have split on the issue of whether the Bureau of Immigration Appeals’ (BIA) interpretation of the term …

Waiving Fiduciary Duties In Delaware Limited Partnerships And Limited Liability Companies, Winnifred A. Lewis

Fordham Law Review

    In corporations, like most other business associations, fiduciary duties exist to deter management from abusing their power over the owners’ property. In Delaware limited partnerships and limited liability companies, this protection can be waived in the operating agreement. This Note explores the effects of retaining or waiving fiduciary duties and how this plays out in the interpretation of operating agreements. It argues that default fiduciary duties exist for limited liability companies and limited partnerships, including those that are member managed, and it proposes a combination of disclosure and signature requirements from each limited partner or member in order for waiver …

Can Condoms Be Compelling? Examining The State Interest In Confiscating Condoms From Suspected Sex Workers, Meghan Newcomer

Fordham Law Review

    Confiscating condoms from suspected sex workers leaves them at risk for HIV/AIDS, other sexually transmitted diseases, and unwanted pregnancy. Yet, police officers in New York, Washington, D.C., and Los Angeles collect condoms from sex workers to use against them as evidence of prostitution. Sometimes, the condoms are taken solely for the purpose of harassment. These actions put sex workers at risk of contracting sexually transmitted diseases because they may continue to engage in sex work without using protection.

    In the landmark case of Griswold v. Connecticut, the U.S. Supreme Court established a fundamental privacy right in the use and …

Sunbeam: A Ray Of Hope For Trademark Licensees, Ryan Gabay

Fordham Law Review

    In the 1985 decision Lubrizol Enterprises v. Richmond Metal Finishers, the Fourth Circuit established that a licensor’s rejection of an intellectual property license under § 365 of the U.S. Bankruptcy Code terminates the licensee’s right to continue using the license. Concerned about the detrimental effects that Lubrizol would have on technological development in the United States, Congress responded swiftly by enacting the Intellectual Property Licenses in Bankruptcy Act (IPLBA), which exempted certain forms of intellectual property, such as copyrights, patents, and trade secrets, from rejection under § 365 of the Code. Trademarks, however, are notably absent from Congress’s definition …

“Undetected, Unsuspected, And Unknown”: Should We Anticipate Problems For Scientific Innovation Following Schering Corp. V. Geneva Pharmaceuticals?, Jeffrey Coleman

Fordham Law Review

    Once termed the “metaphysics” of patent law, the doctrine of inherent anticipation has befuddled courts and practitioners alike for decades. Inherent anticipation refers to the notion that a previously published reference can disclose each and every limitation of a later–patented invention without expressly delineating those limitations. These (un)disclosed limitations are necessarily present, or inherent, within the previously published reference. When a previously published reference discloses a later–claimed invention expressly or inherently, the patent covering the later–claimed invention is invalid because the invention lacks novelty. Thus, the doctrine of inherent anticipation allows invalidation of a patent in whole or in part …

The Dangerous Law Of Biological Race, Khiara M. Bridges

Fordham Law Review

    The idea of biological race—a conception of race that postulates that racial groups are distinct, genetically homogenous units—has experienced a dramatic resurgence in popularity in recent years. It is commonly understood, however, that the U.S. Supreme Court has rejected the idea that races are genetically uniform groupings of individuals. Almost a century ago, the Court famously appeared to recognize the socially constructed nature of race. Moreover, the jurisprudence since then appears to reaffirm this disbelief: within law, race is understood to be a social construction, having no biological truth to it at all. Yet upon closer examination, the Court’s apparent …

A Three-Tiered Public Policy Approach To Copyright Misuse In The Context Of Tying Arrangements, Sandy Azer

Fordham Law Review

    Over two decades since the copyright misuse doctrine was first recognized in Lasercomb America, Inc. v. Reynolds, a uniform approach for determining whether a specific behavior constitutes misuse still does not exist. Circuit courts have commonly applied two competing approaches to the misuse analysis. One approach centers on the public policy underlying copyrights; the other approach centers on antitrust principles. This Note explores relevant jurisprudence and elucidates the shortfalls of each approach. It then proposes a compromise that underscores the interplay between copyright and antitrust laws. The proposed resolution aims to provide a much–needed uniform misuse analysis that does …

No Defense For Self-Defense: Determining Whether Courts Should Order Insurers To Represent Insureds Who Have Acted In Self-Defense, Alex Dzioba

Fordham Law Review

    The right to defend oneself has traditionally been heavily protected by courts in all scenarios. However, the refuge that an act of self–defense provides becomes muddled in the context of an insurance agreement. State courts are split on whether an insured who claims to have acted in self–defense is entitled to legal representation and compensation from the insurer in light of an insurance contract containing an intentional injury exclusion clause. This clause is used virtually uniformly throughout the insurance industry and it has caused courts to ponder if an act of selfdefense fits within the language of such a clause, …

Everyone’S A Little Bit Racist? Reconciling Implicit Bias And Title Vii, Christopher Cerullo

Fordham Law Review

    Since its enactment as part of the Civil Rights Act of 1964, Title VII’s main purpose has been to end all forms of employment discrimination. Through a flexible judicial interpretation of Title VII that reached newly discovered forms of discrimination, and through occasional intervention by Congress to update the statute, Title VII has been largely successful in reducing and remedying instances of overt discrimination in the workplace. However, more recently, social scientists have analyzed and applied the results of Harvard’s Implicit Association Test to recognize a new form of discrimination characterized by a subconscious decisionmaking process based on intuition and …

Colorblind Constitutionalism, Randall Kennedy

Fordham Law Review

No abstract provided.

A New Split On Old Age: Preclusion Of § 1983 Claims And The Adea, Emer M. Stack

Fordham Law Review

    In 1967, Congress enacted the Age Discrimination in Employment Act (ADEA) to combat employer bias against older workers and to reject the idea that the job performance of all employees declines with age. The ADEA provides a statutory scheme for addressing age discrimination against employees aged forty years and older. Some older workers, however, have turned instead to the Equal Protection Clause of the Fourteenth Amendment, using § 1983 claims as a means of relief.

    A six–to–one circuit split has emerged as to whether the ADEA is the exclusive remedy for age discrimination or whether an aggrieved older worker can …

When Is When?: 8 U.S.C. § 1226(C) And The Requirements Of Mandatory Detention, Gerard Savaresse

Fordham Law Review

    Over the past several decades, immigration law has come to resemble criminal law in a number of ways. Most significantly, the current statutory regime allows the U.S. Attorney General (AG) to detain noncitizens during their removal proceedings. Ordinarily, the AG may detain noncitizens subject to removal so long as the AG provides an individualized bond hearing to assess whether the noncitizen poses a flight risk or a danger to the community. Pursuant to 8 U.S.C. § 1226(c), however, the AG must detain and hold without bond any noncitizen who has committed qualifying offenses “when the alien is released” from criminal …

Lawyering For Groups: The Case Of American Indian Tribal Attorneys, Kristen A. Carpenter, Eli Wald

Fordham Law Review

   Lawyering for groups, broadly defined as the legal representation of a client who is not an individual, is a significant and booming phenomenon. Encompassing the representation of governments, corporations, institutions, peoples, classes, communities, and causes, lawyering for groups is what many, if not most, lawyers do. And yet, the dominant theory of law practice—the Standard Conception, with its principles of zealous advocacy, nonaccountability, and professional role-based morality—and the rules of professional conduct that codify it, continue to be premised on the basic antiquated assumption that the paradigmatic client-attorney relationship is between an individual client and an individual attorney. The result …

The Political Justification For Group Litigation, Alexandra D. Lahav

Fordham Law Review

No abstract provided.

“Helpless” Groups, Troy A. Mckenzie

Fordham Law Review

No abstract provided.

Ethical Issues In Mass Tort Plaintiffs’ Representation: Beyond The Aggregate Settlement Rule, Nancy J. Moore

Fordham Law Review

   Those who have addressed ethics issues for plaintiffs’ lawyers in mass tort litigation have focused on possible reform of the aggregate settlement rule to facilitate global settlements. This Article addresses a broader range of ethical issues, including (1) application of the general conflicts of interest rule to both client-client and client-lawyer conflicts; (2) unresolved issues concerning the interpretation of the current aggregate settlement rule, including the need to disclose client names and the applicability of the rule to court-approved settlements and formula or matrix allocations; and (3) the ability of lawyers to voluntarily withdraw from representing plaintiffs who reject an …

The Geography Of Revlon-Land, Stephen M. Bainbridge

Fordham Law Review

   In Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., the Delaware Supreme Court explained that, when a target board of directors enters Revlon-land, the board’s role changes from that of “defenders of the corporate bastion to auctioneers charged with getting the best price for the stockholders at a sale of the company.”

   Unfortunately, the Court’s colorful metaphor obfuscated some serious doctrinal problems. What standards of judicial review applied to director conduct outside the borders of Revlon-land? What standard applied to director conduct falling inside Revlon-land’s borders? And when did one enter that mysterious country?

   By the …

The Justiciability Of State Consumer Protection Claims In Federal Courts: A Study Of Named Plaintiffs Who Cease Using The Disputed Product Yet Seek Injunctive Relief, Meaghan Millan

Fordham Law Review

   In recent years, there has been an increase in consumer protection class action litigation in federal courts. These suits arise from a group of consumers who have felt deceived by a particular product, ceased using that product, and then tried to sue a defendant manufacturer through state consumer protection statutes. Often, these individuals seek to enjoin the defendant’s use of an allegedly unfair business practice, such as “all natural” labeling. Since the plaintiff no longer uses the product, however, many district courts have refused to recognize that they may be at risk of a future injury and have held that …

Anonymity In Cyberspace: Judicial And Legislative Regulations, Sophia Qasir

Fordham Law Review

   Historically, the scope of constitutional protections for fundamental rights has evolved to keep pace with new social norms and new technology. Internet speech is on the rise. The First Amendment protects an individual’s right to speak anonymously, but to what extent does it protect a right to anonymous online speech? This question is difficult because the government must balance the fundamental nature of speech rights with the potential dangers associated with anonymous online speech, including defamation, invasion of privacy, and intentional infliction of emotional distress. While lower courts have held that there is a right to anonymous online speech, they …

Plea Bargaining In The Dark: The Duty To Disclose Exculpatory Brady Evidence During Plea Bargaining, Michael Nasser Petegorsky

Fordham Law Review

   Ninety-seven percent of federal convictions are the result of guilty pleas. Despite the criminal justice system’s reliance on plea bargaining, the law regarding the prosecution’s duty to disclose certain evidence during this stage of the judicial process is unsettled. The Supreme Court’s decision in Brady v. Maryland requires the prosecution to disclose evidence that establishes the defendant’s factual innocence during a trial. Some courts apply this rule during plea bargaining and require the disclosure of material exculpatory evidence before the entry of a guilty plea. Other courts have held or suggested that the prosecution may suppress exculpatory evidence during plea …

Across The Border And Back Again: Immigration Status And The Article 12 “Well-Settled” Defense, Michael Singer

Fordham Law Review

   The Hague Convention on the Civil Aspects of International Child Abduction is a multilateral international treaty designed to effectively govern the return of children abducted (often by a parent) and taken to a foreign country. In most cases, if the “left-behind” parent applies for relief under the Convention within a year of the abduction, the child must be returned to the country of origin for a custody hearing. If, however, the application for return is made more than one year after abduction and the child is now “well-settled” in their new environment, the application may be denied under the well-settled …

The Solicitor General And Confession Of Error, Neal Kumar Katyal

Fordham Law Review

solicitor general, error, federal litigation