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Articles 1 - 30 of 73
Full-Text Articles in Law
The Wholesale Problem With Congress: The Dangerous Decline Of Expertise In The Legislative Process, Rachel E. Barkow
The Wholesale Problem With Congress: The Dangerous Decline Of Expertise In The Legislative Process, Rachel E. Barkow
Fordham Law Review
It is no surprise to anyone that Congress has become a hyperpartisan battleground where little effort is expended to promote policies that work for Americans. While Congress has always viewed policy issues through the lens of party politics, the role of nonpartisan expertise in the legislative process is at an all-time low. The disrespect for experts is growing across society, but the decline in their use is particularly troubling in Congress because it exacerbates deficiencies that are inherent to the legislative process. Congress passes laws of general applicability and does not sit in judgment of specific applications of the law. …
Overparticipation: Designing Effective Land Use Public Processes, Anika Singh Lemar
Overparticipation: Designing Effective Land Use Public Processes, Anika Singh Lemar
Fordham Law Review
There are more opportunities for public participation in the planning and zoning process today than there were in the decades immediately after states adopted the first zoning enabling acts. As a result, today, public participation, dominated by nearby residents, drives most land use planning and zoning decisions. Enhanced public participation rights are often seen as an unqualified good, but there is a long history of public participation and community control cementing racial segregation, entrenching exclusion, and preventing the development of affordable housing in cities and suburbs alike. Integrating community engagement into an effective administrative process requires addressing the various ways …
Copyright’S Techno-Pessimist Creep, Xiyin Tang
Copyright’S Techno-Pessimist Creep, Xiyin Tang
Fordham Law Review
Government investigations and public scrutiny of Big Tech are at an all-time high. While current legal scholarship and government focus have centered overwhelmingly on whether and how antitrust law and § 230 of the Communications Decency Act can be revised to address platform dominance, scant attention has been paid to another, almost unseen attempt to regulate Big Tech: copyright law. The recent adoption in Europe of Article 17 of the Copyright Directive, which holds internet platforms liable for user-generated creative content unless they obtain costly content licenses, is the most direct example of such regulation—and may serve as precedent for …
“Community Guidelines”: The Legal Implications Of Workplace Conditions For Internet Content Moderators, Anna Drootin
“Community Guidelines”: The Legal Implications Of Workplace Conditions For Internet Content Moderators, Anna Drootin
Fordham Law Review
Content moderation is the internet’s not-so-secret, dirty little secret. Content moderators are working around the world, and around the clock, to scrub the internet of horrific content. Most moderators work for low pay and with little or no health care benefits. The content they are exposed to leaves them vulnerable to a number of different mental health issues, including post-traumatic stress disorder. Their work is often hidden from users and is de-emphasized by the technology industry. This Note explores potential solutions to the labor and employment issues inherent in content moderation work and suggests that there could be a path …
Cracking The Code: How To Prevent Copyright Termination From Upending The Proprietary And Open Source Software Markets, Grant Emrich
Cracking The Code: How To Prevent Copyright Termination From Upending The Proprietary And Open Source Software Markets, Grant Emrich
Fordham Law Review
Computer software is protected by copyright law through its underlying code, which courts have interpreted as constituting a “literary work” pursuant to the Copyright Act. Prior to including software as copyrightable subject matter, Congress established a termination right which grants original authors the ability to reclaim their copyright thirty-five years after they have transferred it. Termination was intended to benefit up-and-coming authors who faced an inherent disadvantage in the market when selling the rights to their works. In the near future, many software works will reach the thirty-five-year threshold, thus presenting courts with a novel application of termination to computer …
Murky Materiality & Scattered Standards: In Favor Of A More Uniform System Of Sst Disclosure Requirements, Megan Ganley
Murky Materiality & Scattered Standards: In Favor Of A More Uniform System Of Sst Disclosure Requirements, Megan Ganley
Fordham Law Review
The Securities and Exchange Commission (SEC) requires corporations to disclose their business in or with state sponsors of terrorism (SSTs). The SEC solicits these disclosures with varying standards arising under several different mechanisms. These mechanisms include the requirements of the materiality standard, the provisions of Regulation S-K, targeted inquiry in individually issued comment letters, and affirmative requirements mandated under specific legislation. Each of these mechanisms requires disclosure of slightly different information regarding SSTs with varying degrees of exactitude. This Note examines the SEC’s current SST disclosure framework, considering the benefits, as well as the criticisms, of these disclosure mandates. This …
Who Tells Their Stories?: Examining The Role, Duties, And Ethical Constraints Of The Victim’S Attorney Under Model Rule 3.6, Ksenia Matthews
Who Tells Their Stories?: Examining The Role, Duties, And Ethical Constraints Of The Victim’S Attorney Under Model Rule 3.6, Ksenia Matthews
Fordham Law Review
In U.S. criminal proceedings, the prosecution typically presents the victim’s story. However, as part of the victims’ rights movement, victims are striving to make their voices heard and tell their stories in their own words. Yet, despite the growing role victims occupy in criminal proceedings and the rights afforded to victims by the Crime Victims’ Rights Act and its state counterparts, victims still remain nonparties in criminal proceedings. As victims increasingly retain private lawyers to help navigate criminal proceedings and represent their interests, it is important to understand how these lawyers fall within the traditional two-party adversary system. Limited by …
The Risk Of Zealous Advocacy: Litigators Receiving Anonymously Disclosed Documents And The Notification Requirement, Rebecca J. Spendley
The Risk Of Zealous Advocacy: Litigators Receiving Anonymously Disclosed Documents And The Notification Requirement, Rebecca J. Spendley
Fordham Law Review
The American Bar Association (ABA) created the Model Rules of Professional Conduct to provide guidance to lawyers, courts, and the entire legal profession regarding what a lawyer’s ethical duties entail. Model Rule 4.4(b) requires a lawyer to notify opposing counsel once the receiving lawyer knows, or reasonably should know, that the documents received were inadvertently sent. The ABA, however, explicitly left documents disclosed intentionally and without authorization beyond the scope of the rules, thus leaving lawyers who receive these documents with little guidance. Courts have taken varying approaches to handling documents of this type: some analogize unauthorized disclosures to inadvertent …
Qui Tam And The Bank Secrecy Act: A Public-Private Enforcement Model To Improve Anti-Money Laundering Efforts, Giovanni Scarcella
Qui Tam And The Bank Secrecy Act: A Public-Private Enforcement Model To Improve Anti-Money Laundering Efforts, Giovanni Scarcella
Fordham Law Review
Cartels, terrorists, fraudsters, and other criminals face a problem: when they receive the proceeds from their illicit activities, how can they get this money into their bank accounts without raising regulatory eyebrows? The Bank Secrecy Act (BSA) has established a complex regulatory regime, imposing on banks the duty to assess the risks presented by their clients, to monitor the transactions they process, and to report transactions that contain indicia of money laundering and other criminal activity to the Financial Crimes Enforcement Network (FinCEN). In response, criminals utilize increasingly sophisticated means to obfuscate the origins of these transactions and disguise their …
Voting As Exclusion, Ava Ayers
Voting As Exclusion, Ava Ayers
Fordham Law Review
This Essay considers two prevalent narratives about voting. In one narrative, voting expresses the civic virtue of the voter. In another, voting is an expression of inclusion in our political community’s circle of membership. I argue that although both narratives are true, and important, there is a third narrative that shadows them both. In this third narrative, voting affirms the exclusion of millions of people from our political community. The stories we tell about voting are incomplete and, sometimes, harmful.
The Illiberalization Of American Election Law: A Study In Democratic Deconsolidation, James A. Gardner
The Illiberalization Of American Election Law: A Study In Democratic Deconsolidation, James A. Gardner
Fordham Law Review
For many years, the dominant view among American election law scholars has been that the U.S. Supreme Court’s constitutional jurisprudence of democratic practice got off to a promising start during the mid-twentieth century but has since then slowly deteriorated into incoherence. In light of the United States’ recent turn toward populist authoritarianism, that view needs to be substantially revised. With the benefit of hindsight, it now appears that the Supreme Court has functioned, in its management of the constitutional jurisprudence of democracy, as a vector of infection—a kind of super-spreader of populist authoritarianism. There is, sadly, nothing unusual these days …
Election Observation Post-2020, Rebecca Green
Election Observation Post-2020, Rebecca Green
Fordham Law Review
The United States is in the midst of a crisis in confidence in elections, despite the many process protections baked into every stage of election administration. Part of the problem is that few Americans know just how rigorous the protections in place are, and most Americans have no concept of how modern elections are run. Election observation statutes are intended to provide a window for members of the public to learn about and oversee the process and to satisfy themselves that elections are fair and that outcomes are reliable. Yet in 2020, in part due to unforeseen pandemic conditions, election …
Reducing Election Litigation, Derek T. Muller
Reducing Election Litigation, Derek T. Muller
Fordham Law Review
Which candidate’s name should be listed first on a ballot? Should inactive voters’ names appear printed in polling place books? Should elections be conducted exclusively by mail? Should online voter registration be available to prospective voters? When voters sign a petition to help a candidate appear on the ballot, must the petition’s circulator reside in the state? These are the questions that ordinary election administration rules answer. There might be better or worse rules. These rules might advance one set of benefits in exchange for another set of costs. They could benefit one candidate or group over another. Like every …
The Independent State Legislature Doctrine, Michael T. Morley
The Independent State Legislature Doctrine, Michael T. Morley
Fordham Law Review
The U.S. Constitution grants authority to both regulate congressional elections and determine the manner in which a state chooses its presidential electors specifically to the legislature of each state, rather than to the state as an entity. The independent state legislature doctrine teaches that, because a legislature derives its power over federal elections directly from the Constitution in this manner, that authority differs in certain important respects from the legislature’s general police powers that it exercises under the state constitution. Although the doctrine was applied on several occasions in the nineteenth century, it largely fell into desuetude in the years …
Reforms For Presidential Candidate Death And Inability: From The Conventions To Inauguration Day, John Rogan
Reforms For Presidential Candidate Death And Inability: From The Conventions To Inauguration Day, John Rogan
Fordham Law Review
The 2020 presidential election involved several significant threats to the health and safety of the candidates. But dangers to presidential candidates and presidents-elect have been present before. Despite previous candidate vacancies and near misses, the procedures for how to address many of these contingencies have shortcomings. Some scenarios are left unaddressed. The policies for other situations might be difficult to use or could result in undemocratic outcomes. This Article discusses possible reforms for addressing disability or death of presidential candidates from the time they are nominated at their political parties’ conventions to when they are sworn into office on Inauguration …
How States Can Avoid Overcrowded Ballots But Still Protect Voter Choice, Richard Winger
How States Can Avoid Overcrowded Ballots But Still Protect Voter Choice, Richard Winger
Fordham Law Review
Since the beginning of government-printed ballots for federal and state offices in 1889, state legislatures have been wrestling with the problem of how many signatures should be required for independent candidates and new political parties to get on the ballot. Laws on this subject are very volatile; there is not a single instance in United States history in which applicable state laws were the same for two consecutive presidential elections. The volatility increased in 1968, when the U.S. Supreme Court ruled that overly strict ballot access laws for new parties and independent candidates violatetheU.S.Constitution. Sincethen,every state has been sued by …
Compulsory Voting And Black Citizenship, Ekow N. Yankah
Compulsory Voting And Black Citizenship, Ekow N. Yankah
Fordham Law Review
Protesting Black votes is part of our history of rejecting Black Americans as legitimate wielders of political power and contesting the fullness of Black citizenship. Obviously, hostility toward viewing Black Americans as deserving of the rights owed to other Americans is present in nearly every aspect of American life. But, among the oldest and most contentious hostilities—from the Civil War to Reconstruction to the Civil Rights Movement to contemporary voter suppression efforts—has been the resistance against Black votes. Any opportunity to quell this locus of racial animus calls for urgent address. Particularly, at this moment, when long-standing prophylactic measures such …
The Criminalization Of Foreign Relations, Steven Arrigg Koh
The Criminalization Of Foreign Relations, Steven Arrigg Koh
Fordham Law Review
Overcriminalization has rightly generated national condemnation among policymakers, scholars, and practitioners alike. And yet, such scholarship often assumes that the encroachment of criminal justice stops at our borders. This Article argues that our foreign relations are also at risk of overcriminalization due to overzealous prosecution, overreaching legislation, and presidential politicization—and that this may be particularly problematic when U.S. criminal justice supplants certain nonpenal U.S. foreign policies abroad. This Article proposes three key reforms—presidential distancing, prosecutorial integration, and legislative de-escalation—to assure a principled place for criminal justice in foreign relations.
An Uncertain Participant: Victim Input And The Black Box Of Discretionary Parole Release, Noah Epstein
An Uncertain Participant: Victim Input And The Black Box Of Discretionary Parole Release, Noah Epstein
Fordham Law Review
Little is understood about the parole release process, as state parole boards predominately operate with incredible discretion and keep their deliberations and rationales hidden from public view. Even less is understood about the intersection of the inscrutable parole release decision-making process and victim rights. As the victim rights movement mobilized in the 1970s, victims, instead of remaining passive witnesses, came to wield significant influence over the release decision process. Today, victim participation in parole proceedings is increasing as most parole boards proclaim how important victims’ voices are and, in turn, actively incorporate victim input into their release calculus. Yet, it …
Stronger Than Ever: New York’S Rent Stabilization System Survives Another Legal Challenge, Charles K. Gehnrich
Stronger Than Ever: New York’S Rent Stabilization System Survives Another Legal Challenge, Charles K. Gehnrich
Fordham Law Review
The fate of New York’s rent stabilization laws (RSL) directly concerns millions of New York City residents who take shelter in the protection of the RSL from the hardships and unfair business practices that accompany an unregulated housing market during a housing crisis. After the New York State Legislature made these tenant protections stronger than ever before in 2019, affected landlords responded by petitioning the courts to dismantle the entire rent regulation regime. A federal district court in the Eastern District of New York rejected the landlords’ broad constitutional challenge in Community Housing Improvement Project v. City of New York …
Choose Your Words Carefully: Reimagining Retaliatory Arrest After Nieves V. Bartlett, Ryan Hor
Choose Your Words Carefully: Reimagining Retaliatory Arrest After Nieves V. Bartlett, Ryan Hor
Fordham Law Review
In the summer of 2020, the United States experienced potentially its largest ever social movement in the protests against racial inequality. Predictably, protestors clashed with law enforcement officers, often leading to arrests. Arrested individuals could bring § 1983 retaliatory arrest claims alleging that the officers deprived them of their First Amendment right to free speech. Such claims underline the tension between two vital interests: free speech and law enforcement effectiveness. In 2019, the U.S. Supreme Court decided Nieves v. Bartlett, which crafted a new framework for retaliatory arrest claims that consequently diminished a plaintiff’s chance to prevail and recover …
Media Consolidation & Political Polarization: Reviewing The National Television Ownership Rule, Mary R. Hornak
Media Consolidation & Political Polarization: Reviewing The National Television Ownership Rule, Mary R. Hornak
Fordham Law Review
Local television plays an important role in the democratic society. The medium is viewed as being trustworthy, and it is accessible and uniquely situated to report on matters of local interest. Among other roles, the Federal Communications Commission (FCC) regulates firms’ ownership interests in the media through regulations that permit a certain degree of consolidation at both the local and national levels. Since 1996, Congress has mandated that the FCC regularly review broadcast media ownership regulations. Originally, this requirement mandated biennial review. In 2004, however, Congress revised the mandate, requiring review on a quadrennial basis and excluding from such review …
Cacophony Or Concerto?: Analyzing The Applicability Of The Wiretap Act’S Party Exception For Duplicate Get Requests, David Koenig
Cacophony Or Concerto?: Analyzing The Applicability Of The Wiretap Act’S Party Exception For Duplicate Get Requests, David Koenig
Fordham Law Review
The Electronic Communications Privacy Act (“Wiretap Act”) prohibits the intentional interception of an electronic communication. However, “parties to a communication” can intercept a communication without Wiretap Act liability. Parties include the intended recipients of a communication. When internet users navigate the internet, they communicate with websites using GET requests. The users’ GET requests call out to websites and websites respond by providing the websites’ content to the users. During this process, websites receive user data. This data can include information about the website visited, the search terms used to locate the website, and referral data identifying the last web page …
Free And Fair: Judicial Intervention In Elections Beyond The Purcell Principle And Anderson-Burdick Balancing, Danika Elizabeth Watson
Free And Fair: Judicial Intervention In Elections Beyond The Purcell Principle And Anderson-Burdick Balancing, Danika Elizabeth Watson
Fordham Law Review
The United States’s politically charged 2020 federal election, conducted in the midst of a global pandemic, seismically shook the fault lines of state and local elections administration nationwide. Voters, candidates, parties, states, and political campaigns brought hundreds of claims to the courts, seeking judicial intervention to protect equity in their voting rights. The 2020 pandemic election cases demonstrated that Equal Protection claims relying on the Anderson-Burdick balancing test are both overly reliant on judicial discretion and highly vulnerable to invalidation under the Purcell principle. This Note examines the equal protection challenges raised in courts throughout the country in 2020 to …
Excessive Judicialization, Extralegal Interventions, And Violent Insurrection: A Snapshot Of Our 59th Presidential Election, Jerry H. Goldfeder
Excessive Judicialization, Extralegal Interventions, And Violent Insurrection: A Snapshot Of Our 59th Presidential Election, Jerry H. Goldfeder
Fordham Law Review
The Symposium included in this issue of the Fordham Law Review provides scholars and lawyers with the opportunity to think about some of the most provocative issues related to the way we elect our chief executive. When first conceived, this Symposium was meant to expand and elevate the discourse. Many of the participating authors have thought and written about these matters for years. It was our hope that, after fifty-nine presidential elections, we could shape the debate—and perhaps reform the law—for our next presidential election, our country’s sixtieth. Little did we realize at the inception of this project that the …
A Roadmap For Foreign Official Immunity Cases In U.S. Courts, William S. Dodge, Chimène I. Keitner
A Roadmap For Foreign Official Immunity Cases In U.S. Courts, William S. Dodge, Chimène I. Keitner
Fordham Law Review
This Article provides a roadmap for cases involving foreign official immunity in U.S. courts. In 2010, the U.S. Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) does not govern the immunity of foreign officials. Since Samantar, dozens of decisions have addressed questions of foreign official immunity. Yet, U.S. courts often seem lost. They frequently fail to engage with the customary international law rules of foreign official immunity, instead reaching back to an outdated provision of the 1965 Restatement (Second) of Foreign Relations Law. Courts are divided on how much deference to give …
The Disparate Treatment Of Rights In U.S. Trade, Desirée Leclercq
The Disparate Treatment Of Rights In U.S. Trade, Desirée Leclercq
Fordham Law Review
Rights advocates are increasingly urging U.S. trade negotiators to include new binding and sanctionable provisions that would protect human rights, women’s rights, and gender equality. Their efforts are understandable. Trade agreements have significant advantages as a process for advancing international rights. Even though Congress and the executive incorporate international environmental standards and labor rights into U.S. trade agreements, they have refused to incorporate gender rights and broader human rights. The rationale behind the United States’s disparate treatment of rights in trade has received almost no scholarly attention. That is a mistake. Using labor rights as a case study, this Article …
Disability Without Documentation, Katherine A. Macfarlane
Disability Without Documentation, Katherine A. Macfarlane
Fordham Law Review
Disability exists regardless of whether a doctor has confirmed its existence. Yet in the American workplace, employees are not disabled, or entitled to reasonable accommodations, until a doctor says so. This Article challenges the assumption that requests for reasonable accommodations must be supported by medical proof of disability. It proposes an accommodation process that accepts individuals’ assessments of their disabilities and defers to their accommodation preferences. A documentation-free model is not alien to employment law. In evaluating religious accommodations, employers—and courts—take a hands-off approach to employees’ representations that their religious beliefs are sincere. Disability deserves the same deference. This Article …
Can Private Sector Unionization Be Saved?: An Analysis Of The Pro Act As A Model For Effective Nlra Reform, Christopher Adinolfi
Can Private Sector Unionization Be Saved?: An Analysis Of The Pro Act As A Model For Effective Nlra Reform, Christopher Adinolfi
Fordham Law Review
In February 2020, the U.S. House of Representatives passed the Protecting the Right to Organize Act (“PRO Act”), one of the most prolabor pieces of legislation since the creation of the current labor relations framework in 1935. For almost seventy-five years, the substantive text of the National Labor Relations Act (NLRA) has remained largely unchanged, despite the pervasive increase of anti-labor hostility from companies seeking to avoid the unionization of their workers. Across all stages of unionization, organizers and bargaining agents face coercive management tactics, diminished negotiating positions, the loss of collective action tools, and a National Labor Relations Board …
Disarming Abusers And Triggering The Sixth Amendment: Are Domestic Violence Misdemeanants Guaranteed The Right To A Jury Trial?, Julia Hatheway
Disarming Abusers And Triggering The Sixth Amendment: Are Domestic Violence Misdemeanants Guaranteed The Right To A Jury Trial?, Julia Hatheway
Fordham Law Review
Domestic violence is a global issue, but in the United States it is especially lethal. Hundreds of women are shot and killed in the United States by intimate partners every year. Federal and state legislatures have enacted laws that focus on the issue of domestic violence and gun violence. In 1996, Congress passed the Lautenberg Amendment to the Gun Control Act of 1968, which permanently prohibits individuals convicted of domestic violence misdemeanors from possessing firearms. Twenty-nine states and the District of Columbia have also enacted laws that mirror the Lautenberg Amendment. In many jurisdictions, misdemeanor domestic violence convictions carry a …