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Full-Text Articles in Law

What's The Difference Between A Conclusion And A Fact?, Howard M. Erichson Jan 2020

What's The Difference Between A Conclusion And A Fact?, Howard M. Erichson

Faculty Scholarship

In Ashcroft v. Iqbal, building on Bell Atlantic Corp. v. Twombly, the Supreme Court instructed district courts to treat a complaint’s conclusions differently from allegations of fact. Facts, but not conclusions, are assumed true for purposes of a motion to dismiss. The Court did little to help judges or lawyers understand this elusive distinction, and, indeed, obscured the distinction with its language. The Court said it was distinguishing “legal conclusions” from factual allegations. The application in Twombly and Iqbal, however, shows that the relevant distinction is not between law and fact, but rather between different types of factual assertions ...


Judicial Activism In Trial Courts, Bruce A. Green, Rebecca Roiphe Jan 2019

Judicial Activism In Trial Courts, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

No abstract provided.


Conflicted Mutual Fund Voting In Corporate Law, Sean J. Griffith, Dorothy Lund Jan 2019

Conflicted Mutual Fund Voting In Corporate Law, Sean J. Griffith, Dorothy Lund

Faculty Scholarship

Recent Delaware jurisprudence establishes a disinterested vote of shareholders as the pathway out of heightened judicial scrutiny. The stated rationale for this policy is that shareholders, the real party at interest, are better protected by the ballot box than by the courtroom. As long as informed, disinterested shareholders with an economic stake in the outcome of the vote can effectively express their preferences through voting—the court need not scrutinize the underlying transaction. Rather, it can defer to the outcome under the business judgment rule.

But shareholder voting is not always as direct as this reasoning implies. Instead, voting outcomes ...


The Changing Odds Of The Chancery Lottery, Marianna Wonder Apr 2016

The Changing Odds Of The Chancery Lottery, Marianna Wonder

Fordham Law Review

Delaware is home to the majority of shareholder class action litigations related to mergers and acquisitions (M&A). These cases usually result in settlements that provide shareholders with only disclosure in exchange for a broad release of future claims, which encompasses unknown and federal security claims. The Delaware Court of Chancery must review and approve these settlements under Delaware Rule 23(e), which has been interpreted as creating a fiduciary duty for the court to protect the interests of absent shareholders. Nevertheless, Delaware has a history of routinely approving disclosure-only settlements with laxity. Recently, members of the court have begun ...


Recovering Judicial Integrity: Toward A Duty-Focused Disqualification Jurisprudence Based On Jewish Law, Shlomo Pill Feb 2016

Recovering Judicial Integrity: Toward A Duty-Focused Disqualification Jurisprudence Based On Jewish Law, Shlomo Pill

Fordham Urban Law Journal

No abstract provided.


What Real-World Criminal Cases Tell Us About Genetics Evidence, Deborah W. Denno Jan 2013

What Real-World Criminal Cases Tell Us About Genetics Evidence, Deborah W. Denno

Faculty Scholarship

This Article, which is part of a symposium on "Law and Ethics at the Frontier of Genetic Technology," examines an unprecedented experimental study published in Science. The Science study indicated that psychopathic criminal offenders were more likely to receive lighter sentences if a judge was aware of genetic and neurobiological explanations for the offender’s psychopathy. This Article contends that the study’s conclusions derive from substantial flaws in the study’s design and methodology. The hypothetical case upon which the study is based captures just one narrow and unrepresentative component of how genetic and neurobiological information operates, and the ...


Dylan's Judgment On Judges: Power And Greed And Corruptible Seed Seem To Be All That There Is, David M. Zornow Jan 2012

Dylan's Judgment On Judges: Power And Greed And Corruptible Seed Seem To Be All That There Is, David M. Zornow

Fordham Urban Law Journal

This Article is presented in the form of an "Indictment" against judges brought by Bob Dylan, in the role of prosecutor. Indictment Part A contains a summary of Dylan's allegations against judges. Part B is background information. Part C alleges "Abuse of Power" as indictment count one. Part D alleges "Greed" as indictment count two. Part E alleges "Corruptible Seed" as indictment count three. Part F contains the indictments conclusion. Finally, the article concludes with a "Brady" letter.


The Philip F. Reed Lecture Series, Panel Discussion, Sanctions In Electronic Discovery Cases: Views From The Judges, Hon. John M. Facciola, Hon. Elizabeth D. Laporte, Hon. Loretta A. Preska, Hon. Shira A. Scheindlin Jan 2009

The Philip F. Reed Lecture Series, Panel Discussion, Sanctions In Electronic Discovery Cases: Views From The Judges, Hon. John M. Facciola, Hon. Elizabeth D. Laporte, Hon. Loretta A. Preska, Hon. Shira A. Scheindlin

Fordham Law Review

No abstract provided.


An Analysis Of The Judicial Panel On Multidistrict Litigation's Selection Of Transferee District And Judge, Daniel A. Richards Jan 2009

An Analysis Of The Judicial Panel On Multidistrict Litigation's Selection Of Transferee District And Judge, Daniel A. Richards

Fordham Law Review

When civil cases involving one or more common questions of fact are pending in multiple district courts, 28 U.S.C. § 1407 empowers the Judicial Panel on Multidistrict Litigation (JPML) to centralize the cases in a single district court for pretrial proceedings. If the JPML chooses to centralize a multidistrict action, it possesses broad discretion to select a transferee district and judge. While many litigants believe that the selection of one transferee district or judge over another can significantly impact the outcome of the litigation, they often describe the JPML’s rationale supporting selection as opaque and the resulting selection ...


Does Medellin Matter?, Janet Koven Levit Jan 2008

Does Medellin Matter?, Janet Koven Levit

Fordham Law Review

No abstract provided.


What Makes A Good Appointive System For The Selection Of State Court Judges: The Vision Of The Symposium, Norman L. Greene Jan 2007

What Makes A Good Appointive System For The Selection Of State Court Judges: The Vision Of The Symposium, Norman L. Greene

Fordham Urban Law Journal

This Article contains two parts. First, it sets forth the context of the symposium, including reflections on how judges are being selected now through the elective process, the need for a better approach to judicial selection, and the particular climate in New York at the time of the symposium and thereafter. The New York discussion will focus on the district court and Second Circuit decisions in Lopez Torres v. New York State Board of Elections, which exposed and struck down as unconstitutional New York’s scheme for selecting certain trial court judges, under which political party leaders dictated judicial selection ...


Enhancing Diversity In An Appointive System Of Selecting Judges, Leo M. Romero Jan 2007

Enhancing Diversity In An Appointive System Of Selecting Judges, Leo M. Romero

Fordham Urban Law Journal

This Article examines the different measures that states, with a particular focus on New Mexico, have adopted in order to enhance diversity in their appointive systems and proposes ways to structure an appointive system that gives due consideration to concerns about diversity. This Article concludes that an appointive system should be designed to require consideration of diversity in the composition of nominating commissions and in the evaluation of applicants.


The Secret Life Of Judges, Dennis Jacobs Jan 2007

The Secret Life Of Judges, Dennis Jacobs

Fordham Law Review

No abstract provided.


Rethinking Judicial Nominating Commissions: Independence, Accountability, And Public Support , Joseph A. Colquitt Jan 2007

Rethinking Judicial Nominating Commissions: Independence, Accountability, And Public Support , Joseph A. Colquitt

Fordham Urban Law Journal

The Article focuses on one of the pillars of the judicial appointive process, the judicial nominating commission, suggesting that all jurisdictions should have judicial nominating commissions. A judicial nominating commission exists to screen and select nominees for judgeships. This article envisions and describe a system that more likely will result in selecting the right person for the bench.


Help Wanted: Is There A Better Way To Select Judges?, Luke Bierman Jan 2007

Help Wanted: Is There A Better Way To Select Judges?, Luke Bierman

Fordham Urban Law Journal

This article gives an anecdotal account of the authors attempt to apply for a position as a State Court Judge that he saw posted in the newspaper. The article uses the job posting concept as a starting point to argue that the system of judicial appointment in New York needs to be reworked and there needs to be new and creative solutions brought into the discussion.


English Reforms To Judicial Selection: Comparative Lessons For American States? , Judith L. Maute Jan 2007

English Reforms To Judicial Selection: Comparative Lessons For American States? , Judith L. Maute

Fordham Urban Law Journal

This article offers a brief comparative look at American and British jurisprudential pending selection reforms, and argues that American states could improve their appointive systems by incorporating modern personnel recruitment and hiring practices. To restore public confidence in the courts, people must believe that judges exercise legitimate authority, undistorted by personal or partisan preferences. Beyond changes to the structural selection process in the Constitutional Reform Act, the extended conversations are bringing about foundational cultural shifts in the role of judges and their manner of selection. We could learn much from Britain’s modernized appointive system that aims to be open ...


Designing An Appointive System: The Key Issues, G. Alan Tarr Jan 2007

Designing An Appointive System: The Key Issues, G. Alan Tarr

Fordham Urban Law Journal

This article contains a selection of advice on how to improve the judicial selection system. The article explains that reconsideration of the judicial appointive systems must include both the broadly theoretical and the intensely practical. It should identify the key questions that must be addressed in creating a system of judicial appointment, elaborate and defend the principles that should guide choices among alternative appointive systems, and clarify how those principles can be translated into institutional arrangements that will advance the goal of a quality judiciary. This reconsideration should also take seriously the arguments and claims of those who oppose the ...


A Cancer On The Republic: The Assault Upon Impartiality Of State Courts And The Challenge To Judicial Selection, Donald L. Burnett Jan 2007

A Cancer On The Republic: The Assault Upon Impartiality Of State Courts And The Challenge To Judicial Selection, Donald L. Burnett

Fordham Urban Law Journal

This Article examines judicial impartiality in the context of the state courts. Section I endeavors to show how impartial state courts are essential to fulfilling the constitutional guarantees of a republican form of government and of due process and equal protection of the law. Section II describes the current assault upon the impartiality of state courts, and Section III suggests several ways in which this cancer on the republic can be slowed or reversed—by specific actions within, or related to, the judicial selection process.


A Tribute To Hon. George Bundy Smith -- Colleague, Teacher, And Friend, Judith S. Kaye Jan 2007

A Tribute To Hon. George Bundy Smith -- Colleague, Teacher, And Friend, Judith S. Kaye

Fordham Urban Law Journal

A tribute to Judge George Bundy Smith, discussing his work ethic both as a judge, professor, and mentor, his principles as a jurist, and his personal qualities.


A Tribute To Hon. George Bundy Smith -- A Remarkable Jurist And A Remarkable Man, Cornett Lewers Jan 2007

A Tribute To Hon. George Bundy Smith -- A Remarkable Jurist And A Remarkable Man, Cornett Lewers

Fordham Urban Law Journal

A tribute to George Bundy Smith, emphasizing his contributions to The Metropolitan Black Bar Association and the Metropolitan Black Bar Scholarship Fund, as well as his past work as a civil rights protester, and an accomplished jurist.


A View From The Ground: A Reform Group’S Perspective On The Ongoing Effort To Achieve Merit Selection Of Judges, Shira J. Goodman, Lynn A. Marks Jan 2007

A View From The Ground: A Reform Group’S Perspective On The Ongoing Effort To Achieve Merit Selection Of Judges, Shira J. Goodman, Lynn A. Marks

Fordham Urban Law Journal

This article describes the history of judicial selection in the state of Pennsylvania. It describes the judicial selection reform movement and the growth of the organization Pennsylvanians for Modern Courts ("PMC") which devises solutions to meet the various challenges to judicial integrity in Pennsylvania. It focuses on the merit system that PMC has been trying to achieve for Pennsylvania's appellate courts.


On The Validity And Vitality Of Arizona’S Judicial Merit Selection System: Past, Present, And Future, Mark I. Harrison, Sara S. Greene, Keith Swisher, Meghan H. Grabel Jan 2007

On The Validity And Vitality Of Arizona’S Judicial Merit Selection System: Past, Present, And Future, Mark I. Harrison, Sara S. Greene, Keith Swisher, Meghan H. Grabel

Fordham Urban Law Journal

This Article demonstrates that merit selection is functioning commendably in Arizona and, for the most part, provides the public with a judicial selection process far more informative and generally superior to “traditional elections.” Part I of this Article sketches the history of Arizona’s merit selection of judges and its previous state-wide judicial election system. Part II discusses and analyzes attacks on merit selection and, in addition, assesses the effect of the Judicial Performance Review program initiated in 1992 to enhance the efficacy of the merit selection system. Finally, Part III describes the current status of merit selection in Arizona ...


Wyoming’S Judicial Selection Process: Is It Getting The Job Done?, Marilyn S. Kite Jan 2007

Wyoming’S Judicial Selection Process: Is It Getting The Job Done?, Marilyn S. Kite

Fordham Urban Law Journal

This article explains Wyoming’s commission based judicial selection process, studies how it has performed over the years, and looks to see what lessons we can learn from that history, and consider how it can be improved. Throughout this Article, the focus will be on what attributes of a judicial selection system best result in an independent, accountable, and vibrant judiciary.


A Tribute To Hon. George Bundy Smith, William Michael Treanor Jan 2007

A Tribute To Hon. George Bundy Smith, William Michael Treanor

Fordham Urban Law Journal

Opening remarks at ceremony honoring Judge George Bundy Smith, including anecdotes from past students, an overview of Judge Smith's career and accomplishments, and a recognition of distinguished guests in the audience.


Managing Electronic Discovery: Views From The Judges, Lee H. Rosenthal, James C. Francis, Daniel J. Capra Jan 2007

Managing Electronic Discovery: Views From The Judges, Lee H. Rosenthal, James C. Francis, Daniel J. Capra

Fordham Law Review

No abstract provided.


Beyond Quality: First Principles In Judicial Selection And Their Application To A Commission-Based Selection System, Jeffrey D. Jackson Jan 2007

Beyond Quality: First Principles In Judicial Selection And Their Application To A Commission-Based Selection System, Jeffrey D. Jackson

Fordham Urban Law Journal

This article discusses the principles that the judicial system should advance in the selection of its judges. In addition to judicial quality, there are five other “first principles” that should be advanced in an optimal selection system: independence, accountability, representativeness, legitimacy, and transparency.


How The Pickers Pick: Finding A Set Of Best Practices For Judicial Nominating Commissions, Rachel Paine Caufield Jan 2007

How The Pickers Pick: Finding A Set Of Best Practices For Judicial Nominating Commissions, Rachel Paine Caufield

Fordham Urban Law Journal

This article discusses the history and development of judicial selection in the states. It examines the 'merit selection' system of judicial appointment and the role of nominating commissions. The article concludes with a section of recommendations for the best practices that should be formally written down and adopted by nominating commissions.


Rethinking Judicial Selection: A Critical Appraisal Of Appointive Selection For State Court Judges, John D. Feerick Jan 2007

Rethinking Judicial Selection: A Critical Appraisal Of Appointive Selection For State Court Judges, John D. Feerick

Fordham Urban Law Journal

Transcript of the keynote address delivered at Fordham University School of law on April 7, 2006. The speaker discusses the various shortcomings in the judicial selection methodology in New York State and what he and others have thought of as solutions for the problems.


Judicial Performance Review: A Balance Between Judicial Independence And Public Accountability, Jean E. Dubofsky Jan 2007

Judicial Performance Review: A Balance Between Judicial Independence And Public Accountability, Jean E. Dubofsky

Fordham Urban Law Journal

This article discusses judicial appointment and judicial independence in Colorado. The article argues that in Colorado, the independence of the judiciary needs to be protected, perhaps more than at any other time in the state’s history. While public accountability is important, it is achieved through the executive and legislative branches of the government. The courts function best if judges are free to decide each case without regard to how the general public might put a thumb on the scales of justice. To the degree that judicial performance commissions can protect judicial independence, while providing voters in retention elections with ...


Enriching Judicial Independence: Seeking To Improve The Retention Vote Phase Of An Appointive Selection System, John F. Irwin, Daniel L. Real Jan 2007

Enriching Judicial Independence: Seeking To Improve The Retention Vote Phase Of An Appointive Selection System, John F. Irwin, Daniel L. Real

Fordham Urban Law Journal

This article discusses the problems and potential solutions with the system of judicial appointment in the state of Nebraska. The article focuses on how improving public awareness about the existing system, its goals, and its current weaknesses, and implementing steps to address those weaknesses, will help to keep everyone moving toward the best possible system. While changing attitudes and interest in judicial retention elections is certainly not an easy task, it is only through seeking such change that reformers of an elective retention system can hope to near its potential effectiveness.