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Articles 481 - 510 of 5038
Full-Text Articles in Law
How Should We License Lawyers?, Cassandra Burke Robertson
How Should We License Lawyers?, Cassandra Burke Robertson
Fordham Law Review
What would a licensing regime designed around client protection look like? This Article proposes that it would include a narrower but more active judicial role. A one-size-fits-all exam would no longer control entry into the profession. The state judiciary would not be the gatekeeper for the entire legal profession; instead, its licensing role would focus on those attorneys who represent individual clients in court and those who manage client funds. But for this subset of lawyers, state judges should take a larger and more active role in overseeing the transition from student to advocate and should require greater practice readiness …
(In)Formal Marriage Equality, Michael J. Higdon
(In)Formal Marriage Equality, Michael J. Higdon
Fordham Law Review
In 2015, same-sex couples throughout the United States obtained formal marriage equality. But is the prospective ability to obtain marriage licenses sufficient to achieve Obergefell v. Hodges’s promise of equality? What about individuals whose same-sex relationship did not survive—either through death or dissolution—to see marriage equality become the law of the land? Or those couples who did ultimately wed but now have a marriage that appears to be artificially short when considering just how long the couple has actually been together in a marriage-like relationship? With marriage benefits conditioned not only on the fact of marriage but also the length …
Small Town, Inc.: Mischief At The Margins Of Municipal Incorporation, Robert L. Bentlyewski
Small Town, Inc.: Mischief At The Margins Of Municipal Incorporation, Robert L. Bentlyewski
Fordham Law Review
When a state creates a municipality or alters the boundaries of an existing one, there usually is little to no opportunity for judicial review of the decision. Under the centuries-old rule of construction known as Dillon’s Rule, courts consider municipal boundary making to be strictly a political matter best left to state legislatures. This sweeping deference creates opportunities for special interests or politically powerful communities to segregate towns and schools, isolate vulnerable communities, or otherwise manipulate boundaries to hoard the benefits of local government. Courts will only intervene and deem an incorporation void if the action brazenly violates a constitutional …
Policing Procedural Errors In The Lower Criminal Courts, Justin Murray
Policing Procedural Errors In The Lower Criminal Courts, Justin Murray
Fordham Law Review
The criminal justice system depends on reviewing courts to formulate norms of procedural law and to make sure those norms are actually followed in the lower courts. Yet reviewing courts are not performing either of these functions very well. No single factor can fully explain why this is the case, for there is plenty of blame to go around. But the harmless error rule is a major culprit. The conventional approach to harmless error review prohibits reversal of a defendant’s conviction or sentence, even when the law was violated during proceedings in the lower court, unless that violation influenced the …
The Harms Of Racist Online Hate Speech In The Post-Covid Working World: Expanding Employee Protections, Tatiana Hyman
The Harms Of Racist Online Hate Speech In The Post-Covid Working World: Expanding Employee Protections, Tatiana Hyman
Fordham Law Review
In one year, the COVID-19 pandemic and egregious incidents of racial violence have created significant shifts in the United States’s workplace culture and social climate. Many employers are transitioning employees to long-term or permanent remote work, and conversations about racial justice are more pervasive and divisive, especially on social media. With people spending more time at home and on the internet, hate speech has increased and inspired global conversations about curtailing its harmful effects. Unlike many other countries, the United States does not penalize hate speech. Nevertheless, its harmful effects have reached the workplace, and employers have fired employees who …
Safeguarding The Free Exercise Of Religion During The Covid-19 Pandemic, Jiwoon Kong
Safeguarding The Free Exercise Of Religion During The Covid-19 Pandemic, Jiwoon Kong
Fordham Law Review
Religious worship is fundamentally rooted in physical and intimate interactions. For instance, the Bible calls on Christian congregations to physically gather, receive the Lord’s Supper, sing praises, and confess their sins directly before ordained ministers. However, as the highly contagious and airborne COVID-19 disease relentlessly swept across the nation, religious establishments balanced fundamental religious traditions with the inherent dangers of carrying out such traditions. Inevitably, the free exercise of religion faces an unprecedented challenge as governors continue to enact executive orders limiting in-person religious worship gatherings. The jurisprudence thus far has shown alarming inconsistency in the protection of free exercise …
Conference On Best Practices For Managing Daubert Questions
Conference On Best Practices For Managing Daubert Questions
Fordham Law Review
Most of our faculty have meaningful disciplinary training outside of law including doctrinal training in multiple fields. Our faculty holds secondary appointments in many schools and departments on campus including biology, chemistry, economics, history, management, medicine, political science, psychiatry, radiology, and sociology, and we are home to a unique PhD program in law and economics, as well as a law and neuroscience program funded by the MacArthur Foundation. As a school, we therefore believe we are a logical host for you and your work, and we are thrilled that you are here with us. And speaking personally, I’m particularly pleased …
Pro Se, No Say?: The Impact Of Presumptive Mediation In The New York State Court System On Self-Represented Litigants, Sarah Konnerth
Pro Se, No Say?: The Impact Of Presumptive Mediation In The New York State Court System On Self-Represented Litigants, Sarah Konnerth
Fordham Law Review
In May 2019, the New York State Unified Court System announced its plan to refer all civil cases to various forms of alternative dispute resolution at the earliest stage of litigation. The presumptive alternative dispute resolution initiative aims to decrease costs associated with litigation, improve case outcomes, and reduce case delays. In the context of mediation, litigants, both represented and self-represented, may be seated across from each other at a table to discuss their disputes with the assistance of a neutral third party. This Note examines mediation and discusses the policy implications of a presumptive mechanism for pro se parties. …
A Public Concern: Protecting Whistleblowers Under The First Amendment, Steven Still
A Public Concern: Protecting Whistleblowers Under The First Amendment, Steven Still
Fordham Law Review
The United States has just witnessed an impeachment debate which may have far-reaching ramifications for our democratic institutions. These hostilities began with an anonymous whistleblower complaint from a government employee, disclosing what he or she believed were illegal activities directed by President Donald J. Trump. Ever since, discussion of whistleblowers has taken on greater salience in the news cycle. Today, there are a number of whistleblower statutes that protect employees who disclose knowledge of their employer’s illicit activities from workplace retaliation. Although whistleblowing is not unique to government workers, these individuals have an added layer of protection afforded to them …
A Fiduciary Judge's Guide To Awarding Fees In Class Actions, Brian T. Fitzpatricj
A Fiduciary Judge's Guide To Awarding Fees In Class Actions, Brian T. Fitzpatricj
Fordham Law Review
It is often said that judges act as fiduciaries for the absent class members in class action litigation. If we take this seriously, how then should judges award fees to the lawyers who represent these class members? The answer is to award fees the same way rational class members would want if they could do it on their own. In this Essay, I draw on economic models and data from the market for legal representation of sophisticated clients to describe what these fee practices should look like. Although more data from sophisticated clients is no doubt needed, what we do …
Chief Justice Roberts's Hard Look Review, Nikol Oydanich
Chief Justice Roberts's Hard Look Review, Nikol Oydanich
Fordham Law Review
The U.S. Supreme Court’s 1983 decision in Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co. announced a framework for judicial review of agency actions that are challenged as arbitrary and capricious. The decision, however, left two significant questions unresolved: How much political influence in agency decisionmaking is too much to fail judicial review? And may a reviewing court scrutinize the agency’s substantive policy choice or not? This Note argues that Department of Commerce v. New York and Department of Homeland Security v. Regents of the University of California—the Court’s most recent applications of State Farm—settle …
A Crack In The Armor?: How The Reforms To The New York State Human Rights Law May Expose Weaknesses In Civil Rape Shield Laws, Candace Mashel
A Crack In The Armor?: How The Reforms To The New York State Human Rights Law May Expose Weaknesses In Civil Rape Shield Laws, Candace Mashel
Fordham Law Review
Civil rape shield laws exist to protect victims of sexual misconduct from unwarranted intrusions into their private lives as they litigate their claims. Gaps in current federal and New York State civil rape shield laws, however, mean that victims of sexual misconduct still experience significant privacy intrusions during litigation. These intrusions may have the effect of deterring victims from coming forward. Part of the reason that these gaps exist, however, is to ensure that defendants are given a fair opportunity to assert defenses. In 2019, New York revised the New York State Human Rights Law to make it easier for …
Reasoned Decision-Making For Ethics Regulation, John S. Dzienkowski, John M. Golden
Reasoned Decision-Making For Ethics Regulation, John S. Dzienkowski, John M. Golden
Fordham Law Review
Many lawyers and scholars have criticized the ethics rules developed by the organized legal profession to regulate the practice of law. Complaints about processes for generating new ethics rules and ethics opinions interpreting ethics rules commonly reflect concerns about failures to engage in reasoned decision-making. Rationales for the proposed rules or the opinions proffered by bar associations, courts, or agencies are often incomplete or inadequately supported, and one must imagine that the quality of resulting rules or their interpretations often suffers. We argue that administrative law provides a model for how courts can address such concerns—a model that courts, both …
Breaking Bivens?: Falsification Claims After Ziglar V. Abassi And Reframing The Modern Bivens Doctrine, Alex Langsam
Breaking Bivens?: Falsification Claims After Ziglar V. Abassi And Reframing The Modern Bivens Doctrine, Alex Langsam
Fordham Law Review
The U.S. Supreme Court’s 2017 decision in Ziglar v. Abassi purported to clarify the role of the judiciary in inferring Bivens suits directly from the Constitution, rather than a federal statute. Despite this effort, uncertainty has plagued the lower courts. While the Court’s recent Bivens jurisprudence has focused on issues concerning national security, uncertainty also persists in Bivens claims in other domains. This Note examines Bivens claims seeking damages for constitutional violations by law enforcement agents who falsify evidence, lie to procure a search warrant, and commit other similar acts of misconduct. After recognizing a broad, unacknowledged circuit split on …
Casting Light On The Shade: Using Securities Laws To Draw New Contours In Art Investment Regulation, Emma Snover
Casting Light On The Shade: Using Securities Laws To Draw New Contours In Art Investment Regulation, Emma Snover
Fordham Law Review
The disparate treatment of art investments under the Internal Revenue Code and the Securities Exchange Act of 1934 poses a problem. This disparity generates inequities among art investors and between art investors and investors in traditional securities markets. The Internal Revenue Code considers both art and traditional securities to be capital assets with no material distinction. For example, prior to the 2017 tax act, art investors could defer the realization of capital gains through like-kind exchanges of works of art under section 1031 of the Internal Revenue Code. Currently, under section 1400Z-2, an addition to the Internal Revenue Code through …
Judge's And The Deregulation Of The Lawyer's Monopoly, Jessica K. Steinberg, Et Al.
Judge's And The Deregulation Of The Lawyer's Monopoly, Jessica K. Steinberg, Et Al.
Fordham Law Review
Drawing on original data from a cross-jurisdictional investigation of the civil justice landscape, this Article shows how some judges—mired in the pro se crisis—are relying on a shadow network of nonlawyer professionals to substitute for the role counsel has traditionally played. Focusing on domestic violence courts as the primary illustration, we find that even in jurisdictions not currently contemplating regulatory reform, judges are relying on organized nonlawyer actors to prepare pleadings, offer substantive and procedural information to litigants, and provide counseling services. These nonlawyer advocates play a significant role in shaping the facts and arguments presented to the judge, which …
Judicial Ethics In The #Metoo World, Renee Knake Jefferson
Judicial Ethics In The #Metoo World, Renee Knake Jefferson
Fordham Law Review
This Article examines the judicial role in professional ethics regulation through the lens of the judiciary’s own self-governance on sexual misconduct. The #MeToo movement exposed the long-enduring silence of the courts. Headlines featured judges like Alex Kozinski, who retired from the Ninth Circuit in 2018 after numerous former clerks went to the media with credible allegations of sexual misconduct. In 2019, at the instruction of Chief Justice Roberts, the federal judiciary amended the Code of Conduct for United States Judges to make clear that misconduct includes unwanted, offensive, or abusive sexual conduct and to include protections for those who report …
State Court Diversity And Attorney Discipline, Nancy Leong
State Court Diversity And Attorney Discipline, Nancy Leong
Fordham Law Review
State supreme courts are the ultimate arbiters of attorney behavior for members of the state bar. While state supreme courts generally oversee an office of attorney regulation that handles the intake, investigation, and some adjudication of disciplinary complaints, each state supreme court is potentially the final decision maker regarding possible sanctions for attorney behavior. In many states, however, the state supreme court bar is substantially less diverse along lines of race and gender than the state bar it regulates
Judges' Ethical Duties To Ensure Fair Treatment Of Indigent Parties, Tom Lininger
Judges' Ethical Duties To Ensure Fair Treatment Of Indigent Parties, Tom Lininger
Fordham Law Review
In this Essay, I will argue that the American Bar Association (ABA) Model Code of Judicial Conduct (“the Model Code”) should more squarely address the challenges faced by low-income litigants. Amendments should make clear that judges have a duty to ensure the fair treatment of the indigent in the U.S. legal system.
Playing By The Rule: How Aba Model Rule 8.4(G) Can Regulate Jury Exclusion, Anna Offit
Playing By The Rule: How Aba Model Rule 8.4(G) Can Regulate Jury Exclusion, Anna Offit
Fordham Law Review
Discrimination during voir dire remains a critical impediment to empaneling juries that reflect the diversity of the United States. While various solutions have been proposed, scholars have largely overlooked ethics rules as an instrument for preventing discriminatory behavior during jury selection. Focusing on American Bar Association Model Rule of Professional Conduct 8.4(g), which regulates professional misconduct, this Article argues that ethics rules may, under certain conditions, deter the exclusionary practices of legal actors. Part I examines the specific history, evolution, and application of revised Model Rule 8.4(g). Part II delves into the ways that ethics rules in general, despite their …
Evidence-Based Promulgation: The Rulemaking Process For Rules Of Professional Conduct, Emily S. Taylor Poppe
Evidence-Based Promulgation: The Rulemaking Process For Rules Of Professional Conduct, Emily S. Taylor Poppe
Fordham Law Review
This Article proceeds in three parts. Part I considers variation in the rule promulgation process across the states. Part II identifies ways in which the promulgation process might be reformed on the basis of empirical evidence. Part III considers the potential benefits and limitations to this approach and is followed by a brief conclusion
The Flsa's Bristol-Myers Squibb Problem, Adam Drake
The Flsa's Bristol-Myers Squibb Problem, Adam Drake
Fordham Law Review
Three years after Bristol-Myers Squibb Co. v. Superior Court, in which the U.S. Supreme Court held that a California state court lacked personal jurisdiction over the claims of out-of-state plaintiffs, the ultimate scope of the holding remains unclear. Having reasoned that permitting jurisdiction over out-of-state plaintiffs’ claims would infringe on the sovereignty of those plaintiffs’ home states, the Court left open the question whether its holding applies to out-of-state plaintiffs in federal causes of action. Predictably, defendants have subsequently argued that the Court’s decision in Bristol-Myers Squibb applies to federal causes of action and bars federal courts from exerting …
Monopolizing Free Speech, Gregory Day
Monopolizing Free Speech, Gregory Day
Fordham Law Review
The First Amendment prevents the government from suppressing speech, though individuals can ban, chill, or abridge free expression without offending the Constitution. Hardly an unintended consequence, Justice Oliver Wendell Holmes famously likened free speech to a marketplace where the responsibility of rejecting dangerous, repugnant, or worthless speech lies with the people. This supposedly maximizes social welfare on the theory that the market promotes good ideas and condemns bad ones better than the state can. Nevertheless, there is a concern that large technology corporations exercise unreasonable power in the marketplace of ideas. Because “big tech’s” ability to abridge speech lacks constitutional …
Is There A Right To Tweet At Your President?, Nick Reade
Is There A Right To Tweet At Your President?, Nick Reade
Fordham Law Review
The U.S. Supreme Court has developed the public forum doctrine to protect the First Amendment rights of speakers in places of assembly and expression. The doctrine facilitates free expression by restricting the government’s ability to discriminate against or regulate speech in state- controlled public forums. In 2019, two federal courts of appeals extended the doctrine to protect speakers who express themselves in the interactive spaces that elected politicians control on their personal social media accounts. In Davison v. Randall, the Fourth Circuit held that a local official’s Facebook page was a public forum and, therefore, the official could neither …
Restorative Justice From Prosecutors’ Perspective, Bruce A. Green, Lara Bazelon
Restorative Justice From Prosecutors’ Perspective, Bruce A. Green, Lara Bazelon
Fordham Law Review
Restorative justice processes have been promoted as an alternative to criminal adjudication for many years outside the United States and, in recent years, in the United States as well. In the United States, restorative justice processes are used in some jurisdictions in cases involving juvenile offenders or low-level, nonviolent offenses by adults, but they have rarely been used in cases of adult felony offenders charged with serious violent crimes. Whether restorative justice processes will be used more broadly depends largely on whether prosecutors become receptive to their use. A handful of newly elected “progressive prosecutors” have expressed interest in applying …
Toward National Criminal Bar Admission In U.S. District Courts, Gabriel J. Chin
Toward National Criminal Bar Admission In U.S. District Courts, Gabriel J. Chin
Fordham Law Review
In the extensive litigation over bar admission in federal district courts, courts have upheld state bar membership requirements. Nevertheless, the changes to legal practice flowing from the COVID-19 pandemic—the disconnection between workplace and residence, the ability to meet and to hold court proceedings by video, and the unjustifiability of charging clients time and travel for brief, perfunctory in-person meetings and conferences that could be handled effectively and expeditiously online—will make these questions ever more serious
Withdrawing From Congressional-Executive Agreements With The Advice And Consent Of Congress, Abigail L. Sia
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 …
Colloquium: The Judicial Role In Professional Regulation: Foreword, Bruce A. Green
Colloquium: The Judicial Role In Professional Regulation: Foreword, Bruce A. Green
Fordham Law Review
In his confirmation hearings, Chief Justice Roberts analogized judges to baseball umpires who only call balls and strikes.1 That is a questionable analogy in general, given that judges’ oversight of court proceedings goes beyond applying the law. But most especially, it is belied by judges’ role in regulating law practice, including judicial practice. With respect to lawyers, judges not only apply the law but make and enforce it. The eleven pieces in this collection, briefly introduced here, reflect the breadth of courts’ authority
Access To Algorithms, Hannah Bloch-Wehba
Access To Algorithms, Hannah Bloch-Wehba
Fordham Law Review
Federal, state, and local governments increasingly depend on automated systems—often procured from the private sector—to make key decisions about civil rights and liberties. When individuals affected by these decisions seek access to information about the algorithmic methodologies that produced them, governments frequently assert that this information is proprietary and cannot be disclosed. Recognizing that opaque algorithmic governance poses a threat to civil rights and liberties, scholars have called for a renewed focus on transparency and accountability for automated decision-making. But scholars have neglected a critical avenue for promoting public accountability and transparency for automated decision-making: the law of access to …
Avoiding Market Definition Under Section 1 Of The Sherman Act, Johnny Shaw
Avoiding Market Definition Under Section 1 Of The Sherman Act, Johnny Shaw
Fordham Law Review
The 2018 U.S. Supreme Court decision in Ohio v. American Express Co. was at odds with a trend among antitrust commentators and enforcement authorities away from dependence on formal market definition as part of plaintiffs’ burden of proof. Reliance on market definition as a dispositive issue has been ubiquitous in antitrust cases, but the costs from errors, inefficiency, and uncertainty inherent in that approach are glaring. The issue is ripe for clarification, and this Note suggests a new rule to that end. The proposed rule aims to delineate a set of cases in which formal market definition can confidently be …