Law Commons^™

Why Corporate Attorneys And Other Gatekeepers Should Consider Esg And Sustainability Principles, Beth Haddock, Tucker Pribor, Kate Starr

Fordham Environmental Law Review

No abstract provided.

The Role Of The Chief Executive Officer In Firm Environmental Decisions, Timothy D. Hubbard

Fordham Environmental Law Review

No abstract provided.

The Bureau Of Land Management's Infirm Compensatory Mitigation Policy, Justin Pidot

Fordham Environmental Law Review

Secretary of the Interior Ryan Zinke has described “compensatory mitigation” as “un-American” and “extortion.” In keeping with that view, on July 26, 2018, the Bureau of Land Management (“BLM”) adopted a radical new policy that disclaims statutory authority to impose compensatory mitigation measures.

Notwithstanding the aspersions the Secretary has cast, compensatory mitigation is a common-sense policy instrument that has been a mainstay of environmental and public lands policy for decades. It is a tool through which an agency authorizing private activities—drilling oil wells, filling wetlands—conditions its approval upon the implementation of measures to offset attendant environmental harms. Compensatory mitigation thereby …

The Affordable Clean Energy Rule And The Past, Present And Future Of Climate Change Regulation Of The U.S. Power Industry, David Zilberberg

Fordham Environmental Law Review

No abstract provided.

Reaching The Individual: A Proposed Federal Framework To Reduce Community-Based Greenhouse Gas Emissions, Rachel Manning

Fordham Environmental Law Review

No abstract provided.

Standing For Everyone: Sierra Club V. Morton, Supreme Court Deliberations, And A Solution To The Problem Of Environmental Standing, Scott W. Stern

Fordham Environmental Law Review

No abstract provided.

Foreword, Matthew Diller

Fordham Law Review

In 2012 our colleague Robert J. Kaczorowski published Fordham University School of Law: A History. As we read Bob’s book, discussed it, and thought about it, we realized emphatically that it not only synthesized the history of Fordham Law School in a superbly illuminating way, but that it is one of the best books to date on the history of twentieth-century legal education in America. It compellingly tells the story of American legal education through the lens of an urban law school founded to expand access to the legal profession for groups that had been shut out of the …

A Conversation With The Honorable Rosalie Silberman Abella And Dean Matthew Diller, Rosalie Silberman Abella, Matthew Diller

Fordham Law Review

DEAN MATTHEW DILLER: This year we are leading up to our celebration of 100 Years of Women at Fordham Law School. In September 1918, the Fordham Law faculty voted to admit women, and we are planning to celebrate that in style. But tonight perhaps is a bit of a teaser for that. Justice Rosalie Silberman Abella is a woman of firsts. She is the first Jewish woman to sit on the bench of the Supreme Court of Canada, and before the Supreme Court, when she was appointed to the Ontario Family Court in 1976, she became the first Jewish woman …

The Role Of Direct-Injury Government-Entity Lawsuits In The Opioid Litigation, Edgar Aliferov

Fordham Law Review

The opioid epidemic has ravaged the United States, killing over 100 Americans every day and costing the nation upward of $90 billion a year. All branches and levels of the government have pursued measures to combat the epidemic and reduce its societal costs. Perhaps the most interesting response is the emergence of direct-injury government-entity lawsuits, which seek to recover damages from opioid companies that facilitated prescription pill addictions. Cities, counties, and states across the country are suing opioid manufacturers and distributors in unprecedented numbers. This Note explores the role of direct-injury government-entity claims as compared to other forms of civil …

Forbidden Friending: A Framework For Assessing The Reasonableness Of Nonsolicitation Agreements And Determining What Constitutes A Breach On Social Media, Erin Brendel Mathews

Fordham Law Review

Social media has changed the way people conduct their day-to-day lives, both socially and professionally. Prior to the proliferation of social media, it was easier for people to keep their work lives and social lives separate if they so wished. What social media has caused people to do in recent years is to blend their personal and professional personas into one. People can choose to fill their LinkedIn connections with both their clients and their college classmates, they can be Facebook friends with their coworkers right along with their neighbors, and they can utilize social media sites to market themselves …

Fordham University School Of Law: A Case Study Of Legal Education In Twentieth-Century America, Robert J. Kaczorowski

Fordham Law Review

This paper focuses on three themes that shaped legal education in twentieth-century America and roughly organizes the topics of this conference. These themes emerged when I was researching and writing the history of Fordham University School of Law. Consequently, I will discuss Fordham’s history as a case study focused on the following themes: 1. The importance of university relations and funding to enhancing the quality of a law school; 2. The importance of scholarship and the changing nature of scholarship in legal education; and 3. The importance of diversity and the changing nature of diversity in legal education.

History And Harvard Law School, Bruce A. Kimball, Daniel R. Coquillette

Fordham Law Review

In their seminal article, Alfred Konefsky and John Henry Schlegel saw institutional histories of law schools as the graveyard of academic reputations. So why write institutional histories? Due to the leadership of Robert Kaczorowski and William Nelson, and the generosity of Fordham University School of Law and New York University School of Law, an important conference took place between July 2 and July 4, 2018, at New York University’s Villa La Pietra outside of Florence. The purpose was to encourage good institutional history and to define its value. We had recently published the first volume of a new history of …

Subsidiarity And Federalism: The Relationship Between Law Schools And Their Universities, John Sexton

Fordham Law Review

In his book on the history of Fordham University School of Law, Bob Kaczorowski does not take an explicit position on how decision-making authority on matters ranging from resource utilization to curriculum development should be allocated between a law school and its university. Rather, he offers in detail a story and extensive evidence that tends to reflect and support the view traditionally taken by the American Bar Association (ABA), the vast majority of law faculty, and most law school deans on the subject: listen, you folks over there at the university—we know what we are doing, so just leave us …

The Importance Of Scholarship To Law School Excellence, William E. Nelson

Fordham Law Review

As we have learned from Dan Coquillette, Bob Kaczorowski, and John Sexton, access to substantial funding is undoubtedly a prerequisite for a law school to enjoy excellence. Funding, that is, is a necessary, but not sufficient condition for excellence. Something else—intellectual vision—is also required.

Essay: Developing Appropriate Standards For Achieving Diversity In Faculty Appointments, Guido Calabresi

Fordham Law Review

I am writing today to talk about diversity within law school faculties. And when I say “diversity,” I mean all sorts of diversities, not just the ones that most of those who address the issue tend to focus on. I have, for many years, been thinking about the different types of diversities that seem crucial to a law school, and the appropriate ways of achieving them. Part I lists the categories of diversity that I think are important to considering diversity within law school faculties. It then indicates a problem that inheres with this list. Part II suggests how different …

Women In The Legal Academy: A Brief History Of Feminist Legal Theory, Robin West

Fordham Law Review

Women’s entry into the legal academy in significant numbers—first as students, then as faculty—was a 1970s and 1980s phenomenon. During those decades, women in law schools struggled: first, for admission and inclusion as individual students on a formally equal footing with male students; then for parity in their numbers in classes and on faculties; and, eventually, for some measure of substantive equality across various parameters, including their performance and evaluation both in and in front of the classroom, as well as in the quality of their experiences as students and faculty members and in the benefits to be reaped from …

Second Mode Inclusion Claims In The Law Schools, Kenneth W. Mack

Fordham Law Review

During the past half-decade, law school student demands for changes in legal education to address issues of diversity and inclusion have both proliferated and grown insistent. Although the demands are somewhat varied, they have sometimes stretched far beyond the admission and hiring of more students and faculty from minority groups. Students have advocated for basic changes in the way that law schools operate in order to make them more inclusive of groups that have been historically marginalized within these institutions.

Rape Messaging, Alena Allen

Fordham Law Review

When feminists began advocating for rape reform in the 1970s, the rape message was clear: rape was not a crime to be taken seriously because women lie. After decades of criminal law reform, the legal requirement that a woman vigorously resist a man’s sexual advances to prove that she was raped has largely disappeared from the statute books, and, in theory, rape shield laws make a woman’s prior sexual history irrelevant. Yet, despite what the law dictates, rape law reforms have not had a “trickle-down” effect, where changes in law lead to changes in attitude. Women are still believed to …

Executive Power, Drone Executions, And The Due Process Rights Of American Citizens, Jonathan G. D'Errico

Fordham Law Review

Few conflicts have tested the mettle of procedural due process more than the War on Terror. Although fiery military responses have insulated the United States from another 9/11, the Obama administration’s 2011 drone execution of a U.S. citizen allegedly associated with al-Qaeda without formal charges or prosecution sparked public outrage. Judicial recognition that this nonbattlefield execution presented a plausible procedural due process claim ignited questions which continue to smolder today: What are the limits of executive war power? What constitutional privileges do American citizens truly retain in the War on Terror? What if the executive erred in its judgment and …

Public Dollars, Private Discrimination: Protecting Lgbt Students From School Voucher Discrimination, Adam Mengler

Fordham Law Review

More than a dozen states operate school voucher programs, which allow parents to apply state tax dollars to their children’s private school tuition. Many schools that participate in voucher programs are affiliated with religions that disapprove of homosexuality. As such, voucher-accepting schools across the country have admissions policies that discriminate against LGBT students and students with LGBT parents. Little recourse exists for students who suffer discrimination at the hands of voucher-accepting schools. This Note considers two ways to provide protection from such discrimination for LGBT students and ultimately argues that the best route is for an LGBT student to bring …

Lady Justice Cannot Hear Your Prayers, Deborah Ogali

Fordham Law Review

The Islamic finance industry continues to grow quickly as the appetite for everything, from Sharia-compliant home mortgages and car loans to sophisticated financial products, increases. This growth has triggered an interest in sukuk, bond-like financial instruments. And while the international market for sukuk has long been dominated by foreign issuers and English law, the attraction of a niche market compatible with U.S. federal and international securities laws may propel increased participation by U.S. issuers and investors who wish to transact under U.S. federal and state laws. As with all Islamic financial products, sukuk transactions inherently pose a Sharia compliance risk. …

You Say Intrastate, I Say Interstate: Why We Should Call The Whole Thing Off, Andrew Wiktor

Fordham Law Review

As society evolves, so do criminals. In the early twentieth century, America embraced the automobile, passed the Volstead Act, and created a national highway program. These developments inadvertently paved the way for interstate criminal enterprise. Infamous gangsters such as Al Capone were able to operate large-scale racketeering syndicates without fear of being prosecuted for two primary reasons: (1) states lacked jurisdiction, resources, or both to go after such criminals, and (2) there was no federal criminal statute to fill the gap left by the states. But as criminals evolve, so does society. In 1961, Congress, at the urging of Attorney …

A Dollar For Your Thoughts: Determining Whether Nominal Damages Prevent An Otherwise Moot Case From Being An Advisory Opinion, Maura B. Grealish

Fordham Law Review

This Note examines whether nominal damages should sustain an otherwise moot constitutional claim. A majority of circuit courts have held that a lone claim for nominal damages is sufficient. A minority of circuit courts have determined that nominal damages are insufficient because there is no practical effect in determining such a case. The courts in the minority analogize nominal damages to declaratory judgments and justify their rulings on the basis of judicial economy. This Note proposes that the minority rule is impermissible under current precedent from the U.S. Supreme Court. However, this Note also proposes that the majority rule be …

Study Group On Immigrant Representation: The First Decade, Robert A. Katzmann

Fordham Law Review

All of us here have a common goal: ensuring adequate legal representation of the immigrant poor. A courtroom has multiple players with different roles, but all would agree that adequate legal representation of the parties is essential to the fair and effective administration of justice. Deficient representation frustrates the work of courts and ill serves litigants. All too often, and throughout the country, courts that address immigration matters must contend with such a breakdown in legal representation, a crisis of massive proportions with severe, tragic costs to immigrants and their families. For our nation’s immigrants, the urgent need for competent …

Universal Representation, Lindsay Nash

Fordham Law Review

In an era in which there is little good news for immigrant communities and even holding the line has become an ambitious goal, one progressive project has continued to gain steam: the movement to provide universal representation for noncitizens in removal proceedings. This effort, initially born out of a pilot project in New York City, has generated a host of replication projects throughout the nation and holds the promise of even broader expansion. But as it grows, this effort must confront challenges from within: the sort-of supporters who want to limit this representation system’s coverage in a number of ways, …

Auer Deference: Doubling Down On Delegation's Defects, Ronald A. Cass

Fordham Law Review

Together with the better-known Chevron deference rule, the doctrine articulated in Auer v. Robbins two decades ago—which makes reasonable administrative constructions of ambiguous administrative rules binding on courts in most circumstances—has become a focal point for concerns about the expanding administrative state. Auer deference, even more than Chevron deference, enlarges administrative authority in ways that are at odds with basic constitutional structures and due process requirements. Objections to Auer have provided cogent reasons for why courts should not grant deference to administrative interpretations merely because an agency’s rule is unclear. The most commonly voiced objections, however, do not explain why …

"Wrongful Birth" Claims And The Paradox Of Parenting A Child With A Disability, Sofia Yakren

Fordham Law Review

“Wrongful birth” is a controversial medical malpractice claim raised by the mother of a child born with a disability against a medical professional whose failure to provide adequate prenatal information denied her the chance to abort. Plaintiff-mothers are required to testify that, but for the defendant’s negligence, they would have terminated their pregnancy. Accordingly, alongside pro-life activists, disability rights advocates have opposed “wrongful birth” claims for stigmatizing and discriminating against people with disabilities by framing their very existence as a harm. Despite plaintiff-mothers’ need for caretaking resources, scholars have recommended solutions ranging from the wholesale elimination of the wrongful birth …

Home Rules: The Case For Local Administrative Procedure, Casey Adams

Fordham Law Review

Administrative law is critical to the modern practice of governance. Administrative rules fill the gaps in statutes left open by lawmakers, allow agencies to exercise legislative grants of authority and discretion, and give agencies with subject-matter expertise and frontline experience the opportunity to promulgate detailed standards and requirements in their designated issue areas. Adjudication allows an agency to dispose of matters and disputes formally before it, whether under its rules or another source of law. While agencies at every level of government—federal, state, and local— engage in administrative action, legal scholarship on administrative law is almost exclusively focused on the …

Children Are Crying And Dying While The Supreme Court Is Hiding: Why Public Schools Should Have Broad Authority To Regulate Off-Campus Bullying "Speech", Jennifer Butwin

Fordham Law Review

Bullying has long been a concern for students, parents, teachers, and school administrators. But technological advances—including the internet, cell phones, and social media—have transformed the nature of bullying and allow “cyberbullies” to extend their reach far beyond the schoolhouse gate. The U.S. Supreme Court established that schools may regulate on-campus speech if the speech creates a substantial disruption of, or material interference with, school activities. However, the Court has yet to rule on a school’s ability to regulate students’ off-campus bullying speech. This Note examines how various courts have approached the issue, analyzes the current circuit split, and ultimately proposes …

A Fair Use To Remember: Restoring Application Of The Fair Use Doctrine To Strengthen Copyright Law And Disarm Abusive Copyright Litigation, Lauren Gorab

Fordham Law Review

The primary goal of copyright law is to benefit the public. By rewarding authors with exclusive rights, such as the power to enforce copyright infringement, copyright protection is the means through which copyright law accomplishes this goal. Another way that copyright law pursues its goal is through the fair use doctrine—an invaluable utilitarian limit on copyright protection. However, fair use is, among other things, vague. The current application of fair use as an affirmative defense magnifies the doctrine’s problems and makes copyright law hospitable to abusive copyright litigation. Current proposals in this area of reform target either fair use or …