Law Commons^™

Chevron’S Generality Principles, Emily Hammond

Fordham Law Review

No abstract provided.

Chevron Inside The Regulatory State: An Empirical Assessment, Christopher J. Walker

Fordham Law Review

No abstract provided.

Chevron At The Roberts Court: Still Failing After All These Years, Jack M. Beermann

Fordham Law Review

No abstract provided.

Step Zero After City Of Arlington, Thomas W. Merrill

Fordham Law Review

No abstract provided.

Inherit The Cloud: The Role Of Private Contracts In Distributing Or Deleting Digital Assets At Death, Natalie M. Banta

Fordham Law Review

    We live in a world permeated with technology. Through our online accounts we write emails, we store pictures, videos, and documents, we pay bills and conduct financial transactions, we buy digital books and music, and we manage loyalty programs. Digital assets have quickly replaced physical letters, pictures, books, compact discs, and documents stored in filing cabinets and shoeboxes. The emergence of digital assets raises pressing questions regarding the treatment of digital assets at an account holder’s death. Unlike digital assets’ physical counterparts, an account holder does not control the ultimate fate of digital assets. Instead, digital assets are controlled by …

Not Just For Products Liability: Applying The Economic Loss Rule Beyond Its Origins, Danielle Sawaya

Fordham Law Review

    Most litigants, if given the chance, prefer to assert tort theories to recover their economic losses, rather than rely on the remedies provided under contract law. This is primarily because plaintiffs have the potential to recover more damages under tort law than contract law. However, most courts have adopted a doctrine known as the economic loss rule to bar plaintiffs from asserting certain tort theories to recover for their economic loss. Although the economic loss rule may seem like an easy way to maintain the boundary between tort law and contract law, confusion abounds when courts attempt to determine the …

Agency Costs And The False Claims Act, David Farber

Fordham Law Review

The False Claims Act represents the U.S. Justice Department’s most effective tool in detecting, punishing, and deterring fraud against the government. The effectiveness of the False Claims Act is due in large part to the law’s qui tam provisions, which provide a private right of action to whistleblowers who may sue fraudsters on behalf of the government in exchange for a percentage of the recovery. The resulting relationship between the government and whistleblowers has led to increased detection and recoveries from corporate defendants who defraud and abuse government programs.
However, these whistleblower provisions also come with social costs where profit-motivated …

Reputational Injury Without A Reputational Attack: Addressing Negligence Claims For Pure Reputational Harm, Bryson Kern

Fordham Law Review

    This Note examines the unsettled relationship between defamation and negligence. The law of defamation, through the torts of libel and slander, constitutes a well-developed and complex body of state common law and constitutional considerations. However, some claims for reputational harm may fall outside of this framework, as the law of defamation does not account for all of the ways that an individual’s reputation may be injured. Thus, plaintiffs sometimes bring negligence claims to seek redress for damage to reputation.
    When a plaintiff brings a negligence claim for pure reputational harm, the court is faced with a variety of options for …

Searching For A Harmless Alternative: Applying The Harmless Error Standard To Alternative Theory Jury Instructions, Erika A. Khalek

Fordham Law Review

Judges in federal criminal cases provide juries with instructions before the jury members retire to consider their verdict. In some situations, the judge may include alternative theories of guilt, informing the jury that it may convict a defendant of a single offense on the basis of one of several different theories. But because most juries in federal criminal trials deliver only a general verdict of either “guilty” or “not guilty,” it is usually not possible to determine the theory upon which the jury relied in reaching its decision. This lack of transparency may be problematic if the defendant appeals his …

An Officer Walks Into A Bar: Acknowledging The Need For Deterrence In Officer And Director Bars, Steven W. Shuldman

Fordham Law Review

    The U.S. Securities and Exchange Commission (SEC) is the civil regulatory agency responsible for helping to defend and protect the American investor. One significant threat to investor security occurs when an individual, acting as an officer or director, violates a fiduciary duty to his or her employer and its shareholders, risking investor money. These actions could involve insider trading, fraudulent statements in public filings, or other self-serving conduct.
    Recognizing the importance of deterring such misconduct, Congress gave the SEC the authority to bar certain individuals from serving as officers and directors of public companies. An individual should be barred if …

Fighting A Losing Battle To Win The War: Can States Combat Domestic Minor Sex Trafficking Despite Cda Preemption?, Stephanie Silvano

Fordham Law Review

    The explosion of the internet and online communication has led to an alarming increase in an existing epidemic: domestic minor sex trafficking. Sex traffickers utilize websites, such as Backpage.com, to post trafficking advertisements depicting minors, which are minimally regulated as a result of the civil immunity provision of the Communications Decency Act (47 U.S.C. § 230). This immunity provision has been interpreted broadly by the courts, granting expansive immunity to websites as both publishers and distributors of content.
    In an effort to combat minor sex trafficking at a local level, some state legislatures enacted statutes criminalizing the knowing publication of …

Supremacy Of The Supremacy Clause: A Garamendi-Based Framework For Assessing State Law That Intersects With U.S. Foreign Policy, Alexandria R. Strauss

Fordham Law Review

    State and local governments across the United States increasingly act in areas that intersect with foreign policy. Federalism concerns and U.S. foreign relations are thus in constant tension.
    In American Insurance Ass’n v. Garamendi, the U.S. Supreme Court in 2003 both expanded and detracted from where states and localities may permissibly act in areas that touch upon foreign affairs. This Note works within the confines of Garamendi to outline four distinct categories of state action that might intersect with foreign relations. It discusses how lower courts, namely the Ninth Circuit, the Eleventh Circuit, and the Northern District of Illinois, …

Centennial Dedication: A Brief History Of The Fordham Law Review, Editors

Fordham Law Review

No abstract provided.

Des And A Proposed Theory Of Enterprise Liability, Naomi Sheiner

Fordham Law Review

    To commemorate our founding in 1914, the Board of Editors has selected six influential pieces published by the Law Review over the past 100 years and will republish one piece in each issue.
    The first piece selected by the Board is DES and a Proposed Theory of Enterprise Liability. This Comment, written in 1978 by Fordham Law Review staff member Naomi Sheiner, helped to pioneer the concept of enterprise liability. It has been cited by nearly 250 scholarly articles and in more than 100 cases, including Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980), the leading case …

Contractualizing Custody, Sarah Abramowicz

Fordham Law Review

     Many scholars otherwise in favor of the enforcement of family contracts agree that parent-child relationships should continue to prove the exception to any contractualized family law regime. This Article instead questions the continued refusal to enforce contracts concerning parental rights to children’s custody. It argues that the refusal to enforce such contracts contributes to a differential treatment of two types of families: those deemed “intact”—typically consisting of two married parents and their offspring—and those deemed non-intact. Intact families are granted a degree of freedom from government intervention, provided that there is no evidence that children are in any danger of …

The Return Of Noncongruent Equal Protection, Brian Soucek

Fordham Law Review

    Contemporary equal protection doctrine touts the principle of congruence: the notion that equal protection means the same thing whether applied to state or to federal laws. The federalism-tinged equal protection analysis at the heart of Justice Kennedy’s opinion in United States v. Windsor, however, necessarily violates the congruence principle. Commentators and courts—especially those deciding how Windsor’s federalism should affect the ever-growing number of state same-sex marriage cases—have so far failed to account for Windsor’s noncongruent equal protection, much less ask whether noncongruence is generally desirable, and if so, what form it should take.
    This Article draws answers …

The Internet Of Things: Building Trust And Maximizing Benefits Through Consumer Control, Julie Brill

Fordham Law Review

    The Internet of Things is one of the fastest growing facets of a world that is becoming more data intensive. Connecting cars, appliances, and even clothing to the internet promises to deliver convenience, safety, and, through analysis of the torrent of additional data generated, potential solutions to some of our most intractable problems. But turning on this data flood also creates privacy and security risks for consumers, challenging us to consider how to apply basic privacy principles to the Internet of Things. A wide range of stakeholders—technologists, lawyers, industry leaders, and others—has a role to play in meeting this challenge.

Hemispheres Apart, A Profession Connected, Dana Remus

Fordham Law Review

No abstract provided.

The Future Of Big Law: Alternative Legal Service Providers To Corporate Clients, John S. Dzienkowski

Fordham Law Review

No abstract provided.

The Lawyer’S Monopoly—What Goes And What Stays, Benjamin H. Barton

Fordham Law Review

    We live in a time of unprecedented changes for American lawyers, probably the greatest changes since the Great Depression. That period saw the creation of the lawyer’s monopoly through a series of regulatory modifications. Will we see the same following the Great Recession? Formally, no. This Article predicts that formal lawyer regulation in 2023 will look remarkably similar to lawyer regulation in 2013. This is because lawyer regulators will not want to rock the boat in the profession or in law schools during a time of roil.

    Informally, yes! We are already seeing a combination of computerization, outsourcing, and nonlawyer …

The Great Disruption: How Machine Intelligence Will Transform The Role Of Lawyers In The Delivery Of Legal Services, John O. Mcginnis, Russell G. Pearce

Fordham Law Review

No abstract provided.

Toil And Trouble: How The Erie Doctrine Became Structurally Incoherent (And How Congress Can Fix It), Alan M. Trammell

Fordham Law Review

    The Erie doctrine is still a minefield. It has long been a source of frustration for scholars and students, and recent case law has exacerbated the troubles. Although other scholars have noted and criticized these developments, this Article explores a deeper systemic problem that remains undeveloped in the literature. In its present form, the Erie doctrine fails to protect any coherent vision of the structural interests that supposedly are at its core—federalism, separation of powers, and equality.

    This Article argues that Congress has the power to fix nearly all of these problems. Accordingly, it proposes a novel statute to revamp …

Sentencing The Why Of White Collar Crime, Todd Haugh

Fordham Law Review

    “So why did Mr. Gupta do it?” That question was at the heart of Judge Jed Rakoff’s recent sentencing of Rajat Gupta, a former Wall Street titan and the most high-profile insider-trading defendant of the past thirty years. The answer, which the court actively sought by inquiring into Gupta’s psychological motivations, resulted in a two-year sentence, eight years less than the government requested. What was it that Judge Rakoff found in Gupta that warranted such a lenient sentence? While it was ultimately unclear to the court exactly what motivated Gupta to commit such a “terrible breach of trust,” it is …

Protecting The Profession Or The Public? Rethinking Unauthorized-Practice Enforcement, Deborah L. Rhode, Lucy Buford Ricca

Fordham Law Review

No abstract provided.

Force And Effect: A Look At The Passport In The Context Of Citizenship, Claire Benoit

Fordham Law Review

    Citizenship provides benefits, guarantees, and protections of great value and emotional significance. The vast importance of citizenship has been referred to as the very “right to have rights.” The law creates a complex framework for how one becomes a citizen, proves citizenship, and potentially loses citizenship. This Note focuses on three documents purporting to establish proof of citizenship: the passport, the certificate of citizenship, and the certificate of naturalization. These three documents are at the center of 22 U.S.C. § 2705, a foundational proof of citizenship statute.

    Courts are split on whether § 2705 allows a person to conclusively prove …

Foreword: The Profession’S Monopoly And Its Core Values, W. Bradley Wendel

Fordham Law Review

No abstract provided.

What Do We Talk About When We Talk About Control?, Anthony J. Sebok

Fordham Law Review

No abstract provided.

Compliance And Claim Funding: Testing The Borders Of Lawyers’ Monopoly And The Unauthorized Practice Of Law, Michele Destefano

Fordham Law Review

No abstract provided.

How Long Is Too Long?: Conflicting State Responses To De Facto Life Without Parole Sentences After Graham V. Florida And Miller V. Alabama, Kelly Scavone

Fordham Law Review

    A juvenile offender waits for sentencing while a court calculates his life expectancy and determines the point at which his sentence effectively becomes his entire life. This is the scenario posed by recent U.S. Supreme Court decisions that have struck down life without parole (LWOP) sentences for most juvenile offenders but have left open the possibility of lengthy term-of-years sentences. Consecutive term-of-years sentences may leave many juvenile offenders in prison for the majority of their lives despite the holdings in Miller v. Alabama and Graham v. Florida that juveniles are different and more capable of reform than most adult offenders. …

The Monopoly Myth And Other Tales About The Superiority Of Lawyers, Leslie C. Levin

Fordham Law Review

No abstract provided.