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Fordham Law Review

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Full-Text Articles in Law

International Law And The Constitution: Terms Of Engagement, Foreword, Catherine Powell Jan 2008

International Law And The Constitution: Terms Of Engagement, Foreword, Catherine Powell

Fordham Law Review

No abstract provided.


The Multiracial Epiphany Of Loving, Kevin Noble Maillard Jan 2008

The Multiracial Epiphany Of Loving, Kevin Noble Maillard

Fordham Law Review

No abstract provided.


Loving Before And After The Law, Loving Before And After The Law, Angela P. Harris Jan 2008

Loving Before And After The Law, Loving Before And After The Law, Angela P. Harris

Fordham Law Review

No abstract provided.


Loving Gender Balance: Reframing Identity-Based Inequality Remedies, Darren Rosenblum Jan 2008

Loving Gender Balance: Reframing Identity-Based Inequality Remedies, Darren Rosenblum

Fordham Law Review

No abstract provided.


Misinterpreting "Sounds Of Silence": Why Courts Should Not "Imply" Congressional Preclusion Of § 1983 Constitutional Claims, Rosalie Berger Levinson Jan 2008

Misinterpreting "Sounds Of Silence": Why Courts Should Not "Imply" Congressional Preclusion Of § 1983 Constitutional Claims, Rosalie Berger Levinson

Fordham Law Review

Despite the clear text of 42 U.S.C. § 1983, its promise to protect constitutional rights has been obfuscated by the theory that Congress, by enacting civil rights laws, has "impliedly" foreclosed the historic use of § 1983 to vindicate constitutional wrongdoing. Increasingly, plaintiffs are being denied their right to vindicate constitutional wrongdoing, either because the new "preempting" federal statute does not trigger individual liability or because it makes institutional liability more difficult to establish. It is counterintuitive to believe that Congress, in an attempt to expand equality or due process, intended to cut off existing remedies for constitutional violations. Nonetheless, …


Protecting Status: The Mortgage Crisis, Eminent Domain, And The Ethic Of The Homeownership, Rachel D. Godsil, David V. Simunovich Jan 2008

Protecting Status: The Mortgage Crisis, Eminent Domain, And The Ethic Of The Homeownership, Rachel D. Godsil, David V. Simunovich

Fordham Law Review

Homeownership is in crisis. Millions of families are at risk of foreclosure as they are caught between declining housing values and rising interest payments on adjustable-rate mortgages. The primary concern for such families is not that they will become homeless—most families who lose their homes could afford to become renters—but rather that they will lose their status as homeowners. For families required to sell their property by the government’s use of eminent domain, a similar issue arises, as the “fair market value” of some homes (the standard measure of compensation) is generally not enough to allow the family to purchase …


Interpreting The Phrase "Newly Discovered Evidence": May Previously Unavailable Exculpatory Testimony Serve As The Basis For A Motion For A New Trial Under Rule 33?, Mary Ellen Brennan Jan 2008

Interpreting The Phrase "Newly Discovered Evidence": May Previously Unavailable Exculpatory Testimony Serve As The Basis For A Motion For A New Trial Under Rule 33?, Mary Ellen Brennan

Fordham Law Review

Rule 33 of the Federal Rules of Criminal Procedure permits a federal court to grant a new trial to a criminal defendant if the “interest of justice so requires,” specifying as one potential basis the availability of “newly discovered evidence.” The federal circuit courts have disagreed as to whether postconviction testimony proffered by a codefendant who had remained silent at trial may serve as the basis for a Rule 33 motion grounded on newly discovered evidence. A majority of the federal circuits, including, most recently, the U.S. Court of Appeals for the Second Circuit, have held that, while a codefendant’s …


The Progress Of Women Lawyers At Big Firms: Steadied Or Simply Studied?, Judith S. Kaye, Anne C. Reddy Jan 2008

The Progress Of Women Lawyers At Big Firms: Steadied Or Simply Studied?, Judith S. Kaye, Anne C. Reddy

Fordham Law Review

In the twenty years since now-Chief Judge Judith S. Kaye published her essay on women lawyers in big firms, interest in the subject has mushroomed, as the profession continues to grapple with issues of gender equity. This update reflects voluminous new literature and looks behind the statistics to find fresh efforts and pathways to solutions that can benefit women as well as the profession generally.


Harmless Constitutional Error And The Institutional Significance Of The Jury, Roger A. Fairfax, Jr. Jan 2008

Harmless Constitutional Error And The Institutional Significance Of The Jury, Roger A. Fairfax, Jr.

Fordham Law Review

Appellate harmless error review, an early twentieth-century innovation prompted by concerns of efficiency and finality, had been confined to nonconstitutional trial errors until forty years ago, when the U.S. Supreme Court extended the harmless error rule to trial errors of constitutional proportion. Even as criminal procedural protections were expanded in the latter half of the twentieth century, the harmless error rule operated to dilute the effect of many of these constitutional guarantees--the Sixth Amendment right to jury trial being no exception. However, while a trade-off between important process values and the Constitution's protection of individual rights is inherent in the …


Restoring The Grand Jury, Kevin K. Washburn Jan 2008

Restoring The Grand Jury, Kevin K. Washburn

Fordham Law Review

Though it is enshrined in the Constitution, the grand jury is one of the least respected institutions in American criminal justice today. Scholars regard the grand jury just as doctors regard the appendix: an organic part of our constitutional makeup, but not of much use. While scholars have proposed reforms, most of them seem only loosely related to the fundamental purpose of the grand jury. In an era of plea bargains, the grand jury can serve a crucial role in insuring popular legitimacy in the criminal justice system. In light of the criticism, however, the grand jury seems to be …


Upstairs, Downstairs: Subnational Incorporation Of International Human Rights Law At The End Of An Era, Martha F. Davis Jan 2008

Upstairs, Downstairs: Subnational Incorporation Of International Human Rights Law At The End Of An Era, Martha F. Davis

Fordham Law Review

No abstract provided.


Explaining Away The Obvious: The Infeasibility Of Characterizing The Second Amendment As A Nonindividual Right, George A. Mocsary Jan 2008

Explaining Away The Obvious: The Infeasibility Of Characterizing The Second Amendment As A Nonindividual Right, George A. Mocsary

Fordham Law Review

Although the Second Amendment of the U.S. Constitution has guaranteed the right to keep and bear arms for more than 200 years, the U.S. Supreme Court has never formally declared to whom the right belongs. Each side of the gun debate--one holding that the Amendment guarantees a right to individuals, the other that states possess the right--supports its position with ostensibly solid precedential, historical, and textual arguments. This Note approaches the issue from the opposite direction, asking how many precedential, historical, and textual obstacles each side must explain away and examining the relative strength of those explanations. Under this analysis, …


Rule 26(A)(2)(B) Of The Federal Rules Of Civil Procedure: In The Interest Of Full Disclosure, Katherine A. Rocco Jan 2008

Rule 26(A)(2)(B) Of The Federal Rules Of Civil Procedure: In The Interest Of Full Disclosure, Katherine A. Rocco

Fordham Law Review

This Note examines the varying interpretations of Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, an issue currently dividing the nation's circuit courts of appeal and district courts. Interpreting the Rule for its plain meaning yields an exemption for expert witnesses who are either treating physicians or employees of a party in the case. While some courts have followed this textualist approach, more have opted for a broader interpretation, imposing the expert report requirements of Rule 26 on employee experts and treating physicians under certain circumstances. In keeping with the spirit of the Rules, courts should interpret the Rule …


Prudential Standing Limitations On Lanham Act False Advertising Claims, Gregory Apgar Jan 2008

Prudential Standing Limitations On Lanham Act False Advertising Claims, Gregory Apgar

Fordham Law Review

Section 43(a) of the Lanham Act provides a federal cause of action for false advertising. There is considerable disagreement among the federal circuit courts over the proper way to determine standing under this statute. Much of the disagreement centers on how the plaintiff's status as a direct competitor of the defendant should affect the standing inquiry. This Note argues that the five-factor test currently used by the U.S. Courts of Appeals for the Third, Fifth, and Eleventh Circuits is the best approach. Further, this Note argues that an allegation of a commercial injury by a direct competitor of the defendant …


Waiting In Immigration Limbo: The Federal Court Split Over Suits To Compel Action On Stalled Adjustment Of Status Applications, Lauren E. Sasser Jan 2008

Waiting In Immigration Limbo: The Federal Court Split Over Suits To Compel Action On Stalled Adjustment Of Status Applications, Lauren E. Sasser

Fordham Law Review

This Note explores the conflict surrounding federal courts' authority to hear injunctive suits from adjustment of status applicants demanding U.S. Citizenship and Immigration Services action on significantly delayed applications. The conflict turns on whether the agency has a duty to adjudicate applications properly before it, whether it must do so in a reasonable time, and whether any statutes preclude jurisdiction. The Note argues that the agency has a duty to adjudicate applications properly before it in a reasonable time. When it violates that duty, applicants should have legal recourse in all jurisdictions.


Who Is At The Table? Interpreting Disclosure Requirements For Ad Hoc Groups Of Institutional Investors Under Federal Rule Of Bankruptcy Procedure 2019, James M. Shea, Jr. Jan 2008

Who Is At The Table? Interpreting Disclosure Requirements For Ad Hoc Groups Of Institutional Investors Under Federal Rule Of Bankruptcy Procedure 2019, James M. Shea, Jr.

Fordham Law Review

This Note explores Federal Rule of Bankruptcy Procedure 2019's disclosure requirements when hedge funds and other institutional investors appear as groups in Chapter 11 cases. In particular, this Note traces the history of Rule 2019 and the various corporate reorganization mechanisms to explain the split between two bankruptcy courts on whether these groups constitute “committees” under Rule 2019. This Note cites the fundamental differences between these groups and protective committees--the committees charged with representing security holders under federal equity receiverships. Hence, ad hoc groups do not have to make detailed disclosures of each individual transaction, disclosure that would be required …


Longing For Loving, Katherine M. Franke Jan 2008

Longing For Loving, Katherine M. Franke

Fordham Law Review

No abstract provided.


The Blurring Of The Lines: Children And Bans On Interracial Unions And Same-Sex Marriages, Carlos A. Ball Jan 2008

The Blurring Of The Lines: Children And Bans On Interracial Unions And Same-Sex Marriages, Carlos A. Ball

Fordham Law Review

No abstract provided.


Structural Dimensions Of Romantic Preferences, Russell K. Robinson Jan 2008

Structural Dimensions Of Romantic Preferences, Russell K. Robinson

Fordham Law Review

No abstract provided.


The Unregulables? The Perilous Confluence Of Hedge Funds And Credit Derivatives, Noah L. Wynkoop Jan 2008

The Unregulables? The Perilous Confluence Of Hedge Funds And Credit Derivatives, Noah L. Wynkoop

Fordham Law Review

This Note examines credit derivatives, hedge funds, and the increase in systemic risk that results from the combination of the two. The issues considered include what method of regulation--entity, transaction, or self-regulation--provides the form and amount of disclosure that best addresses the risk that the markets as a whole will be affected by a financial shock. Emphasizing the role of traders and efficient capital markets, this Note proposes that a system of disclosure for derivatives similar to the Trade Reporting and Compliance Engine, or TRACE, system for corporate bonds would prevent rapid repricings that have the potential to shock the …


On The Face Of It? Establishing Jurisdiction On Claims To Compel Arbitration Under Section 4 Of The Faa, Leda Moloff Jan 2008

On The Face Of It? Establishing Jurisdiction On Claims To Compel Arbitration Under Section 4 Of The Faa, Leda Moloff

Fordham Law Review

Section 4 of the Federal Arbitration Act enables a party with an arbitration agreement to bring suit to compel arbitration if the dispute between parties is brought in court. The U.S. Courts of Appeals are split over how to establish jurisdiction when faced with a claim to compel arbitration. The disagreement centers on whether the court may “look through” to the underlying claim between parties to establish jurisdiction or whether establishment of jurisdiction must comply with the well-pleaded complaint rule, a rule requiring the petitioner to state the reason for jurisdiction on the face of their complaint to compel arbitration. …


Scolded: Can An Attorney Appeal A District Court's Order Finding Professional Misconduct?, Carla R. Pasquale Jan 2008

Scolded: Can An Attorney Appeal A District Court's Order Finding Professional Misconduct?, Carla R. Pasquale

Fordham Law Review

This Note addresses the split among the United States courts of appeals over whether an attorney can appeal a district court’s finding that he or she has acted unprofessionally, even when there is no monetary sanction imposed. After discussing the U.S. Constitution’s Article III “case or controversy” requirement and a district court’s power to sanction attorneys, this Note dissects the circuit split. It argues that attorneys should have standing to appeal a court’s finding of unprofessional conduct because this type of sanction can cause irreparable harm to an attorney’s professional reputation and thus to the attorney’s business.


Reconciling Morse With Brandenburg, Steven Penaro Jan 2008

Reconciling Morse With Brandenburg, Steven Penaro

Fordham Law Review

This Note examines Morse v. Frederick in connection with the Brandenburg v. Ohio test governing speech that advocates unlawful acts. In Morse, the U.S. Supreme Court devised a new test that gives school officials the power to restrict student speech promoting the use of illegal drugs. However, in Brandenburg, the Supreme Court held that speech must be struck down if the speaker intends to incite imminent lawless action and that speech is likely to produce such action. This Note argues that a relaxed application of the Brandenburg standard would be useful in prohibiting student drug speech within a school setting.


Revisiting The Legal Standards That Govern Requests To Sterilize Profoundly Incompetent Children: In Light Of The "Ashley Treatment," Is A New Standard Appropriate?, Christine Ryan Jan 2008

Revisiting The Legal Standards That Govern Requests To Sterilize Profoundly Incompetent Children: In Light Of The "Ashley Treatment," Is A New Standard Appropriate?, Christine Ryan

Fordham Law Review

This Note discusses the recent controversy surrounding a six-year-old girl named Ashley, whose parents chose to purposefully stunt her growth and remove her reproductive organs for nonmedical reasons. A federal investigation determined that Ashley’s rights had been violated because doctors performed the procedure, now referred to as the “Ashley Treatment,” without first obtaining a court order. However, the investigation did not make any conclusions regarding whether the “Ashley Treatment” could present a legally permissible treatment option in the future. After discussing the constitutional rights that the “Ashley Treatment” implicates and the current legal standards in place, this Note examines how …


Can The Trustee Recover? Imputation Of Fraud To Bankruptcy Trustees In Suits Against Third-Party Service Providers, Samuel C. Wasserman Jan 2008

Can The Trustee Recover? Imputation Of Fraud To Bankruptcy Trustees In Suits Against Third-Party Service Providers, Samuel C. Wasserman

Fordham Law Review

Corporate fraud has become a familiar headline over the last decade and has forced several companies whose managers have committed that fraud to file for bankruptcy. In these cases, a trustee will often be appointed to represent and manage the bankruptcy estate. This trustee is vested with the rights of the debtor corporation upon filing and may try to sue third-party service providers (e.g., accounting firms, law firms, investment banks) for conspiring in, or negligently failing to detect, the fraud. Federal and state courts have disagreed over whether the bankruptcy trustee should be permitted to recover damages from these third …


American Ideals & Human Rights: Findings From New Public Opinion Research By The Opportunity Agenda, Alan Jenkins, Kevin Shawn Hsu Jan 2008

American Ideals & Human Rights: Findings From New Public Opinion Research By The Opportunity Agenda, Alan Jenkins, Kevin Shawn Hsu

Fordham Law Review

No abstract provided.


"Federalizing" Immigration Law: International Law As A Limitation On Congress's Power To Legislate In The Field Of Immigration, Shayana Kadidal Jan 2008

"Federalizing" Immigration Law: International Law As A Limitation On Congress's Power To Legislate In The Field Of Immigration, Shayana Kadidal

Fordham Law Review

No abstract provided.


The Role Of International Bodies In Influencing U.S. Policy To End Violence Against Women, Lenora M. Lapidus Jan 2008

The Role Of International Bodies In Influencing U.S. Policy To End Violence Against Women, Lenora M. Lapidus

Fordham Law Review

No abstract provided.


The Four Freedoms: Good Neighbors Make Good Law And Good Policy In A Time Of Insecurity, Mark R. Shulman Jan 2008

The Four Freedoms: Good Neighbors Make Good Law And Good Policy In A Time Of Insecurity, Mark R. Shulman

Fordham Law Review

No abstract provided.


Getting Beyond The Crossfire Phenomenon: A Militant Moderate's Take On The Role Of Foreign Authority In Constitutional Interpretation, Melissa A. Waters Jan 2008

Getting Beyond The Crossfire Phenomenon: A Militant Moderate's Take On The Role Of Foreign Authority In Constitutional Interpretation, Melissa A. Waters

Fordham Law Review

No abstract provided.