Law Commons^™

An Eyewitness Account Of Executive “Inability”, Fred F. Fielding

Fordham Law Review

In these Remarks delivered at the symposium The Adequacy of the Presidential Succession System in the 21st Century at Fordham University School of Law on April 16, 2010, Fred F. Fielding recounts the moments when he was an “eyewitness” to uses or contemplated uses of the Twenty-Fifth Amendment while serving in the White House Counsel’s Office in three administrations. When he was Deputy White House Counsel in the Nixon administration, the Twenty-Fifth Amendment’s vice presidential replacement provision was used to nominate Gerald Ford to the office. As White House Counsel during the Reagan administration, Fielding was part of discussions about …

Adequacy Of Current Succession Law In Light Of The Constitution And Policy Considerations, Benton Becker

Fordham Law Review

In this article, Gerald R. Ford’s counsel during Ford’s confirmation to the vice presidency under the Twenty-Fifth Amendment recounts the process, including investigations into Ford as part of the process and the confirmation hearings in the Senate and House of Representatives. The Article also discusses aspects of Ford’s tenure as Vice President, particularly efforts by White House officials to enlist Ford in defending President Richard Nixon amid the Watergate scandal and Ford’s response to those efforts. The Article is adapted from the author’s remarks at the symposium The Adequacy of the Presidential Succession System in the 21st Century, which …

The Theory Of Generativity, David G. Post

Fordham Law Review

No abstract provided.

Baseless Pleas: A Mockery Of Justice, Mari Byrne

Fordham Law Review

This Note addresses the ethicality of the baseless plea, a guilty plea entered by a defendant for a crime that everyone in the courtroom—judge, prosecutor, defense attorney, and defendant—knows the defendant did not commit. Used in the interest of efficiency and leniency, the baseless plea allows a defendant to plead guilty to a crime that has no basis in the facts of the case. Though used by courts in numerous jurisdictions, baseless pleas have been largely unaddressed as courts have sought to conceal the practice and as commentators have therefore failed to detect it. This Note seeks to remedy that …

Property In Crisis, Nestor M. Davidson, Rashmi Dyal-Chand

Fordham Law Review

Property law generally develops gradually, with doctrine slowly accreting in the interstices of daily conflict and the larger culture of property likewise emerging at a glacial pace. In times of crisis, however, fundamental questions about the nature of ownership and the balance between the individual and the state instantiated in the structure of property rise rapidly to the surface. Our current economic crisis—the deepest since the Great Depression—is no exception. This economic crisis, more than many in our history, began with property, sparked in no small measure by structural flaws in the residential market and an ownership society that advocated …

Notes From The New World: The Future Of The Internet, Editors' Foreword

Fordham Law Review

No abstract provided.

Remarks From Senator Birch Bayh

Fordham Law Review

These Remarks are adapted from an address given by former Senator Birch Bayh at the symposium The Adequacy of the Presidential Succession System in the 21st Century, which was held at Fordham University School of Law on April 16 and 17, 2010. Senator Bayh discusses his role as the Twenty-Fifth Amendment’s principal sponsor and describes the origins and rationales for amendment’s provisions.

Reducing Information Gaps To Reduce The Tax Gap: When Is Information Reporting Warranted?, Leandra Lederman

Fordham Law Review

A core problem for enforcement of tax laws is asymmetric information. The taxpayer knows the facts regarding the relevant transactions it engages in during the year—or at least has ready access to that information. The government is forced to play catch-up, obtaining that information either from the taxpayer or from third parties. Information reporting is routinely used to address this information gap. The government obtains information about the taxpayer’s tax situation from a third party and—equally important—the taxpayer knows that the government has received that information. This fosters taxpayer honesty. Information reporting is not a panacea, however. It imposes costs …

To Catch A Predator Or To Save His Marriage: Advocating For An Expansive Child Abuse Exception To The Marital Privileges In Federal Courts, Emily C. Aldridge

Fordham Law Review

In prosecutions for child abuse, the government’s most valuable witness is often the defendant’s spouse. Ordinarily, the marital privileges allow a witness to refuse to testify or a defendant to bar his or her spouse’s testimony. When a defendant is on trial for a crime committed against a child, however, the privileges are unavailable. Although this exception aims to serve justice on behalf of innocent children, its applicability often hinges on the relationship between perpetrator and victim. In some federal courts, the minor victim must be the child or stepchild of the defendant, while others have held the exception applicable …

Freedom, Finality, And Federal Preemption: Seeking Expanded Judicial Review Of Arbitration Awards Under State Law After Hall Street, Brian T. Burns

Fordham Law Review

When the U.S. Supreme Court decided Hall Street Associates, L.L.C. v. Mattel, Inc. in March 2008, the Court held that under the Federal Arbitration Act (FAA), parties to an arbitration agreement may not contractually expand the grounds for judicial review of an arbitration award beyond the grounds enumerated in the FAA. In dicta, however, the Court expressly left open the possibility that parties nonetheless may obtain expanded review by relying on state arbitration law, rather than the FAA. This Note examines the availability of contractually expanded review under state law and addresses the question of whether, in light of Hall …

Matters Of Public Safety And The Current Quarrel Over The Scope Of The Quarles Exception To Miranda, Rorie A. Norton

Fordham Law Review

In October 1984, the Burger Court set forth an exception to the Miranda doctrine in New York v. Quarles permitting officers to intentionally abstain from administering Miranda warnings to suspects where a threat to the safety of the public or officers exists. However, latent ambiguity arising from the Quarles decision authored by Justice William Rehnquist has resulted in a split among the federal courts of appeals as to what constitutes a “public safety threat.” Some courts broadly extend the Quarles exception to inherently dangerous situations, including the threat of an officer mishandling an undiscovered weapon. Other courts narrowly apply Quarles …

Team Of Rivals? Toward A New Model Of The Corporate Attorney-Client Relationship, David B. Wilkins

Fordham Law Review

No abstract provided.

Supply Chains And Porous Boundaries: The Disaggregation Of Legal Services, Milton C. Regan, Jr., Palmer T. Heenan

Fordham Law Review

No abstract provided.

Multidisciplinary Practice Redux: Globalization, Core Values, And Reviving The Mdp Debate In America, Paul D. Paton

Fordham Law Review

No abstract provided.

The Changing Professional Landscape Of Large Law Firms, Glass Ceilings And Dead Ends: Professional Ideologies, Gender Stereotypes, And The Future Of Women Lawyers At Large Law Firms, Eli Wald

Fordham Law Review

No abstract provided.

Who Is Secure?: A Framework For Arizona V. Gant, David S. Chase

Fordham Law Review

In April 2009, the U.S. Supreme Court in Arizona v. Gant narrowed the scope of an automobile search incident to arrest. Prior to Gant, officers were permitted to search the entire automobile passenger compartment incident to the arrest of a vehicle occupant for any offense. The Gant Court rejected this broad interpretation and limited officers’ ability to search to two circumstances: (1) when an arrestee is unsecured and within reaching distance of the vehicle or (2) when it is reasonable for officers to believe the vehicle might contain evidence related to the crime of the arrest. The Gant decision raises …

The Rocky Path For Private Directors General: Procedure, Politics, And The Uncertain Future Of Eu Antitrust Damages Actions, Marc A. Sittenreich

Fordham Law Review

For the better part of the past decade, the European Commission has engaged in a dialogue with European Union (EU) citizens and businesses in an attempt to strengthen an almost nonexistent private competition enforcement system. In the United States, where private antitrust lawsuits are most prevalent, litigation is justified on the grounds of both deterrence and compensation. While the Commission wants to make private damages actions the primary vehicle for the compensation of aggrieved parties, recent political pressure has made EU officials claim that government enforcement will remain the predominant means for the deterrence of EU antitrust violations. Furthermore, many …

The Fourth Quadrant, Jonathan Zittrain

Fordham Law Review

No abstract provided.

The Internet Is A Semicommons, James Grimmelmann

Fordham Law Review

No abstract provided.

Non-Network Barriers To Network Neutrality, Mark R. Patterson

Fordham Law Review

No abstract provided.

Accepting Justice Kennedy's Dare: The Future Of Integration In A Post-Pics World, Daniel Kiel

Fordham Law Review

In the wake of the most important public schools case in decades, Parents Involved in Community Schools (PICS), the future of diversity in public schools is in doubt. This period of uncertainty comes at a moment when parents, educators, and employers are demanding high quality schools that prepare students for an increasingly globalized world. Justice Anthony M. Kennedy, in his PICS concurrence, recognized this discrepancy and challenged districts to continue the important work of bringing different students together without resorting to unconstitutional means. Filling the void between what is essential to public education and what is constitutionally permissible after PICS, …

Presidential Succession Scenarios In Popular Culture And History And The Need For Reform, William F. Baker, Beth A. Fitzpatrick

Fordham Law Review

This Article looks at the issue of presidential succession through the lens of the popular imagination, attempting see what in the nation’s laws needs changing. Many of the movies and television shows that have made plots or subplots out of presidential succession imagine what would happen if the president was killed in a nuclear attack (Jericho and By Dawn’s Early Light), a natural disaster (The Day After Tomorrow), or even an alien invasion (Mars Attacks!). Other common plotlines feature nefarious vice presidents or other officials seizing presidential office by murdering the chief executive or …

Presidential Disability And The Twenty-Fifth Amendment: The Difficulties Posed By Psychological Illness, Robert E. Gilbert

Fordham Law Review

This article describes occasions when presidents have suffered from psychological illness and analyzes the challenges posed by psychological illness in presidents. It begins with an explanation of the Twenty-Fifth Amendment’s provisions and an overview of significant cases of presidents suffering physical illnesses. Next, the Article turns its focus to two presidents, Franklin Pierce (1853-1857) and Calvin Coolidge (1923-1929), who suffered psychological illnesses that were perhaps even more debilitating than the physical ailments that other presidents suffered. These cases are then contrasted with President Abraham Lincoln, who, unlike Pierce and Coolidge, had a highly successful presidency despite appearing to suffer from …

Extensions On The Twenty-Fifth Amendment: The Influence Of Biological Factors On Assessments Of Impairment, Rose Mcdermott

Fordham Law Review

Because the framers of the Twenty-Fifth Amendment were so prescient in their creation of this legislation, it behooves subsequent scholars to examine additional potential concerns that would not have entered the debate forty years ago. Huge advances have been made in the area of biological and genetic medical knowledge, and this progress could not have been foreseen at the time the original Amendment was written. Yet in the interim, such information has become much more accessible. It becomes important to raise these questions moving forward because political opponents may take advantage of these new concerns, as they arise, and use …

Presidential Succession: The Art Of The Possible, James E. Fleming

Fordham Law Review

This essay advocates for reforming the presidential succession system by working with the system we have, tweaking it in politically feasible ways to make it better, given an understanding of politics as the art of the possible. It defends the line of succession statute on constitutional and policy grounds before advancing recommendations for improving the succession system. The Essay calls for reforms to ensure that legislative successors are members of the president’s political party. It also suggests the creation of a vice Vice President or a body of successors appointed by the President and confirmed by the Senate

Taking From The Twenty-Fifth Amendment: Lessons In Ensuring Presidential Continuity, Joel K. Goldstein

Fordham Law Review

The Twenty-Fifth Amendment remains the most successful effort to address continuity problems inherent in the original Constitution or which subsequently developed. Lessons from that experience may help reformers act to resolve at least some of the remaining shortcomings. In addition to its provisions, the Twenty-Fifth Amendment represents certain implicit constitutional values that should guide responses to remaining problems. Moreover, it was the product of successful legislative strategies in an area that generally resists such measures. Although all of these principles and lessons do not point in the same direction and some have limited application to the remaining issues, others should …

Lost Opportunity: Learning The Wrong Lesson From The Hayes-Tilden Dispute, Nathan L. Colvin, Edward B. Foley

Fordham Law Review

A clear, efficient, and fair mechanism for resolving election disputes is an important aspect of smooth presidential succession. It is also something that our Constitution has lacked from its inception, and the adverse consequences of its absence were most recently apparent in the 2000 election. The 1876 Hayes-Tilden election, which required an Electoral Commission to resolve disputes about presidential electors, was the most severe manifestation of this presidential succession gap. As such, it also should have represented the best opportunity to fix the problem.

Instead of wholesale reform and constitutional amendment, Congress spent the next eleven years focusing its energy …

Combat Veterans, Mental Health Issues, And The Death Penalty: Addressing The Impact Of Post-Traumatic Stress Disorder And Traumatic Brain Injury, Anthony E. Giardino

Fordham Law Review

More than 1.5 million Americans have participated in combat operations in Iraq and Afghanistan over the past seven years. Some of these veterans have subsequently committed capital crimes and found themselves in our nation’s criminal justice system. This Essay argues that combat veterans suffering from post-traumatic stress disorder or traumatic brain injury at the time of their offenses should not be subject to the death penalty. Offering mitigating evidence regarding military training, post-traumatic stress disorder, and traumatic brain injury presents one means that combat veterans may use to argue for their lives during the sentencing phase of their trials. Alternatively, …

Post-Davis Conduit Bonds: At The Intersection Of The Dormant Commerce Clause And Municipal Debt, Sean Carey

Fordham Law Review

This Note addresses the constitutionality of the selective taxation of conduit bonds, a subset of municipal bonds that finance private enterprise, in the aftermath of the U.S. Supreme Court’s decision in Department of Revenue v. Davis. In Davis, the Court determined that states could tax interest earned on out-of-state municipal bonds while exempting interest earned on its own bonds without violating the Commerce Clause of the Constitution. When issuing this ruling, the Court drew a distinction between municipal bonds issued on behalf of the government and municipal bonds issued on behalf of private industry. The question of whether or not …

Foreword: Reflections On The Adjudication-Settlement Divide, Howard M. Erichson

Fordham Law Review

No abstract provided.