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Fordham Law Review

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Full-Text Articles in Law

Who Will Watch The Watchers?: Enacting A Corporate Observing Board To Increase Consideration Of Stakeholder Interests, Zachary Needle Nov 2020

Who Will Watch The Watchers?: Enacting A Corporate Observing Board To Increase Consideration Of Stakeholder Interests, Zachary Needle

Fordham Law Review

Modern U.S. corporate law has compelled corporate directors to make decisions that maximize share value regardless of the effect they have on the firm’s other stakeholders, like employees, creditors, and suppliers. While shareholder primacy is the norm in the United States, there are competing theories, mainly the stakeholder model, that have cognizable influence not only in the United States but also in foreign states. Both theories have their drawbacks, but the “short-termism” associated with shareholder primacy can damage a firm’s health. Directors make decisions that benefit the firm in the short term but often wipe out long-term value. This Note …


Withdrawing From Congressional-Executive Agreements With The Advice And Consent Of Congress, Abigail L. Sia Nov 2020

Withdrawing From Congressional-Executive Agreements With The Advice And Consent Of Congress, Abigail L. Sia

Fordham Law Review

As President Donald J. Trump withdrew the United States from one international agreement after another, many began to question whether these withdrawals required congressional approval. The answer may depend on the type of agreement. Based on history and custom, it appears that the president may unilaterally withdraw from agreements concluded pursuant to the treaty process outlined in the U.S. Constitution. However, the United States also has a long history of concluding international agreements as congressional-executive agreements, which use a different approval process that does not appear in the Constitution. But while academics have spilled ink on Article II treaties for …


Remarks, Lowell Beck Oct 2020

Remarks, Lowell Beck

Fordham Law Review

No abstract provided.


Remarks, Jason Berman Oct 2020

Remarks, Jason Berman

Fordham Law Review

No abstract provided.


Remarks, Akhil Reed Amar Oct 2020

Remarks, Akhil Reed Amar

Fordham Law Review

No abstract provided.


The Twenty-Fifth Amendment—In The Words Of Birch Bayh, Its Principal, John D. Feerick Oct 2020

The Twenty-Fifth Amendment—In The Words Of Birch Bayh, Its Principal, John D. Feerick

Fordham Law Review

No abstract provided.


Birch Bayh And The Twenty-Fifth Amendment: Lessons In Leadership, Joel K. Goldstein Oct 2020

Birch Bayh And The Twenty-Fifth Amendment: Lessons In Leadership, Joel K. Goldstein

Fordham Law Review

No abstract provided.


Healing A Fractured Preemption Doctrine: The Impact Of Merck Sharp & Dohme Corp. V. Albrecht On Impossibility Preemption Defenses, Elizabeth Marley Oct 2020

Healing A Fractured Preemption Doctrine: The Impact Of Merck Sharp & Dohme Corp. V. Albrecht On Impossibility Preemption Defenses, Elizabeth Marley

Fordham Law Review

Patient safety depends on tort litigation to identify a brand-name drug’s undisclosed risks, illuminate flaws in a drug’s design, and raise concerns that a drug requires further study before it is safe for patient use. However, since the U.S. Supreme Court’s landmark decision in Wyeth v. Levine, which permitted the plaintiff to move forward but recognized an in-principle impossibility preemption defense, drug manufacturers have shielded themselves from liability under a range of circumstances. Under this defense, federal law preempts state law tort actions against brand-name drug manufacturers in any court across the country. Yet, the scope of the impossibility preemption …


Action, Affiliation, And A Duty Of Care: Physicians’ Liability In Nontraditional Settings, Saniya Suri Oct 2020

Action, Affiliation, And A Duty Of Care: Physicians’ Liability In Nontraditional Settings, Saniya Suri

Fordham Law Review

As healthcare delivery options drastically expand and change, patients and physicians continue to interact in unique ways. These interactions have become more complex and unconventional, challenging courts to establish whether a duty of care exists between the physician and patient in these new situations. Courts that answer this duty question affirmatively do so either by applying a more capacious understanding of the traditional physicianpatient relationship or by deeming foreseeability of harm and reliance sufficient under certain circumstances, even in the absence of an actual physician-patient relationship. This Note investigates this unresolved duty question in two contexts: curbside consultations—when a physician …


Foreword, John D. Feerick, John Rogan Oct 2020

Foreword, John D. Feerick, John Rogan

Fordham Law Review

No abstract provided.


Remarks, Pj Mode Oct 2020

Remarks, Pj Mode

Fordham Law Review

No abstract provided.


Secret Faits Accomplis: Declination Decisions, Nonprosecution Agreements, And The Crime Victim’S Right To Confer, Zulkifl M. Zargar Oct 2020

Secret Faits Accomplis: Declination Decisions, Nonprosecution Agreements, And The Crime Victim’S Right To Confer, Zulkifl M. Zargar

Fordham Law Review

The state’s monopoly power over the institution of prosecution is a feature as familiar as any in the American criminal justice system. That the criminal proceeding is between the state and the defendant leaves little doubt as to the identities of the victimized interest and the offender. But, in avenging societal harm alone, the criminal process treats another victim—the crime victim— as an outcast. Beginning in the 1970s, the victim’s rights movement mobilized to address this institutional neglect, and, by most accounts, it has triumphed. Federal and state victim’s rights laws now empower victims to attend criminal proceedings, deliver impact …


Remarks, Katherine Bayh Oct 2020

Remarks, Katherine Bayh

Fordham Law Review

No abstract provided.


Remarks, Patrick Leahy Oct 2020

Remarks, Patrick Leahy

Fordham Law Review

No abstract provided.


Senator Birch Bayh’S Contributions To Women’S Rights, Panel Panel Oct 2020

Senator Birch Bayh’S Contributions To Women’S Rights, Panel Panel

Fordham Law Review

No abstract provided.


Remarks, Ira Shapiro Oct 2020

Remarks, Ira Shapiro

Fordham Law Review

No abstract provided.


Remarks, Jon Soderstrom Oct 2020

Remarks, Jon Soderstrom

Fordham Law Review

No abstract provided.


Remarks, Jessee Wegman Oct 2020

Remarks, Jessee Wegman

Fordham Law Review

No abstract provided.


Natural Law Colloquium Legal Interpretation And Natural Law, Mark Greenberg Oct 2020

Natural Law Colloquium Legal Interpretation And Natural Law, Mark Greenberg

Fordham Law Review

No abstract provided.


The Support-Or-Advocacy Clauses, Richard Primus, Cameron O. Kistler Oct 2020

The Support-Or-Advocacy Clauses, Richard Primus, Cameron O. Kistler

Fordham Law Review

Two little known clauses of a Reconstruction-era civil rights statute are potentially powerful weapons for litigators seeking to protect the integrity of federal elections. For the clauses to achieve their potential, however, the courts will need to settle correctly a contested question of statutory interpretation: do the clauses create substantive rights, or do they merely create remedies for substantive rights specified elsewhere? The correct answer is that the clauses create substantive rights.


Substantive Due Process And A Comparison Of Approaches To Sexual Liberty, William Council Oct 2020

Substantive Due Process And A Comparison Of Approaches To Sexual Liberty, William Council

Fordham Law Review

Over 150 years ago, Congress passed and the states ratified the Fourteenth Amendment, banning states from passing or enforcing laws based on unconstitutional classifications and protecting persons in the United States from adjudication without due process. For over one hundred years, however, courts and commentators have been fighting over the Fourteenth Amendment’s Due Process Clause’s controversial protections of substantive rights. The U.S. Supreme Court has applied inconsistent methodologies to these substantive due process claims, attempting to walk a tightrope between the Court’s power to subjectively announce new rights as “fundamental” and the traditional role of the states’ plenary police powers. …


Opening Pandora’S Jury Box, B. Samantha Helgason Oct 2020

Opening Pandora’S Jury Box, B. Samantha Helgason

Fordham Law Review

More than sixty years ago, the U.S. Supreme Court decided Remmer v. United States, thereby defining what procedural steps restore a defendant’s Sixth Amendment right to a fair trial in the face of a contaminated or partial jury. Remmer, a case replete with evidence of jury tampering and covert investigations, fashioned the remedy for future courts to redress allegations of jury taint. Upon making out a prima facie case, a defendant is entitled to an evidentiary hearing, at which the evidence is presumed to prejudice the defendant, and the government bears the burden of rebutting. In Remmer’s wake, however, the …


Online Resources And Family Cases: Access To Justice In Implementation Of A Plan, Kristen M. Blankley May 2020

Online Resources And Family Cases: Access To Justice In Implementation Of A Plan, Kristen M. Blankley

Fordham Law Review

This Article discusses access to justice in the implementation of orders in family cases. Parenting, financial, and other types of family court orders may last up to eighteen or twenty-one years in the case of minor children or longer in the case of protected adults. In the case of financial obligations, these orders set forth ongoing requirements to make monthly payments (such as child support, alimony, and medical expense reimbursements) and to maintain other financial obligations (such as maintaining health insurance, daycare expenses, and payment of costs for extracurricular activities). Most importantly, these court orders allocate parenting time, which may …


The Dark Side Of Consensus And Creativity: What Mediators Of Mass Disputes Need To Know About Agency Risks, Howard M. Erichson May 2020

The Dark Side Of Consensus And Creativity: What Mediators Of Mass Disputes Need To Know About Agency Risks, Howard M. Erichson

Fordham Law Review

This Essay looks at how mediators describe their role, and it asks whether—in negotiations to resolve mass disputes—the mindset and skill set of mediators may sometimes exacerbate rather than mitigate risks of self- serving conduct by lawyers. The Essay applies general concerns about class settlements and nonclass settlements to the particular problem of mass dispute mediation.


Arbitration Archetypes For Enhancing Access To Justice, Jill I. Gross May 2020

Arbitration Archetypes For Enhancing Access To Justice, Jill I. Gross

Fordham Law Review

In the second half of the twentieth century, the use of arbitration proliferated in the United States as part of a greater alternative dispute resolution (ADR) movement, with the promise that using ADR processes would, among other things, enhance disputants’ access to justice. Arbitration offers disputing parties a process to resolve their dispute, which, at least in theory, is known for decreased cost, increased speed, party control, privacy, and finality. These characteristics generally enhance parties’ access to justice because, as compared to litigation, barriers to entry are lower, outcomes are delivered more quickly, substantive outcomes are more equitable, and parties …


Adr, Dynamic (In)Justice, And Achieving Access: A Foreclosure Crisis Case Study, Lydia Nussbaum May 2020

Adr, Dynamic (In)Justice, And Achieving Access: A Foreclosure Crisis Case Study, Lydia Nussbaum

Fordham Law Review

This Article proceeds in two parts. Part I argues for a dynamic, rather than fixed, conception of access to justice. It then explores how ADR processes, when placed in this dynamic framework, can create new forms of injustice and intensify preexisting ones. Part II presents a case study from the foreclosure crisis to illustrate how the features of ADR processes are especially well suited to respond to dynamic injustices. It further demonstrates how ADR design must evolve to respond to the dynamic system of (in)justice in which ADR processes operate.


Does Adr Feel Like Justice?, Jennifer W. Reynolds May 2020

Does Adr Feel Like Justice?, Jennifer W. Reynolds

Fordham Law Review

This Article contends that modern conflict spectacles, fueled by snap disputing dynamics and foisted upon the polity through media and social media, are so far afield from traditional ADR principles and practices that they may keep ADR from “feeling” like justice to many people. How people feel about alternative practices and processes will have an impact on whether they avail themselves of those methods in their own disputes. In other words, even if we had widely available, high-quality, and free ADR services available to everyone, we might still have an access to justice problem because those services would not be …


The Cost Of Free Speech: Resolving The Wedding Vendor Divide, Victoria Cappucci May 2020

The Cost Of Free Speech: Resolving The Wedding Vendor Divide, Victoria Cappucci

Fordham Law Review

As marriage equality becomes fully realized in the United States, business proprietors increasingly refuse to service same-sex weddings on religious grounds. However, at the same time, state laws protect same-sex couples from discrimination in places open to the public. Such competing values have resulted in a line of “wedding vendor” cases. As the cases continue to proliferate, this Note examines when, and to what extent, the otherwise equally important values of free expression and equality should trump one another. This Note analyzes First Amendment compelled speech claims within the line of wedding vendor cases: specifically, whether wedding goods and services …


Measuring “Access To Justice” In The Rush To Digitize, Amy J. Schmitz May 2020

Measuring “Access To Justice” In The Rush To Digitize, Amy J. Schmitz

Fordham Law Review

Access to Justice (A2J) is the hot topic of the day, energizing Twitter and judges alike. Meanwhile, professors and policymakers join in song, singing the praises of online dispute resolution (ODR) as means for expanding A2J. This is because ODR uses technology to allow for online claim diagnosis, negotiation, and mediation without the time, money, and stress of traditional court processes. Indeed, courts are now moving traffic ticket, condominium, landlord/tenant, personal injury, debt collection, and even divorce claims online. The hope is that online triage and dispute resolution systems will provide means for obtaining remedies for self-represented litigants (SRLs) and …


Are Two Minorities Equal To One?: Minority Coalition Groups And Section 2 Of The Voting Rights Act, Kevin Sette May 2020

Are Two Minorities Equal To One?: Minority Coalition Groups And Section 2 Of The Voting Rights Act, Kevin Sette

Fordham Law Review

Following Jim Crow, vote dilution is the second-generation barrier standing between minority voters and the polls. Section 2 of the Voting Rights Act of 1965 (VRA) protects racial and language minorities from these vote dilution practices. To sustain a section 2 claim, a protected “class of citizens” must satisfy the criteria laid out by the U.S. Supreme Court in Thornburg v. Gingles. First, the class must constitute the majority of a hypothetical single-member voting district. Second, the class must be politically cohesive. Third, the minority class’s preferred candidate must be defeated by a white majority voting bloc. What the …