Courts Commons^™

Algorithmic Models And The Freedom Of Speech, Alexander Tsesis

Fordham Law Review

Intentionality and reason are intrinsic features of the human mind that large language models (LLMs) entirely lack. Although LLMs generate natural-language sentences through algorithmic processes, autonomously produced machine speech lacks the consciousness of human speakers. This intrinsic distinction between natural persons and artificial machines is consequential to whether LLM-generated outputs are covered by the First Amendment. Scholars who equate the constitutional value of human speech with algorithmic outputs tend to emphasize the informational value of those outputs to audiences while giving insufficient attention to the absence of machine consciousness. The conscious underpinnings of thought and their relation to constitutional protections …

Joinder’S Diversity Asymmetry, Jason J. Jarvis

Fordham Law Review

In federal diversity cases, plaintiffs are barred from joining nondiverse supplemental parties or claims under 28 U.S.C. § 1367(b). Defendants, however, can expand the case without the same restriction. Section 1367(b) codified the U.S. Supreme Court’s concern in Owen Equipment & Erection Co. v. Kroger: Plaintiffs might so prefer federal court that they would “sneak” nondiverse parties in by hiding them until after diversity jurisdiction is established, only then springing them on unsuspecting courts and defendants. This Article challenges the justification for that asymmetry in three ways.

First, it explores the history of the asymmetry, starting with how joinder …

Controlling Shareholder Primacy, Naveen Thomas

Fordham Law Review

In just eight months, Delaware’s legislature upended over fifty years of corporate law. Its courts had long upheld shareholder primacy, treating shareholders equally in proportion to their ownership. But after several controversial decisions reinforced this principle, sudden amendments to the corporate code shifted the law toward a distinct paradigm: controller primacy.

While motivated by legitimate concerns, the legislation went too far, threatening to fundamentally realign corporate power and purpose. Contrary to shareholder primacy, the new regime disproportionately prioritizes controlling shareholders above all others. It authorizes contracts that cede the board’s managerial authority to controllers, insulates their self-dealing from shareholder approval …

Royal Canin And The Jurisdiction It Left Behind: The Class Action Fairness Act, Nicole Brosnan

Fordham Law Review

Royal Canin U.S.A., Inc. v. Wullschleger created waves in the federal litigation world by setting forth a new rule, declaring that a plaintiff’s amendment of a complaint following removal is capable of destroying federal jurisdiction. Prior to this case, courts generally followed the “time-of-filing rule” by which federal jurisdiction attached at the time of removal. The U.S. Supreme Court was clear that this rule applies to federal claim jurisdiction under 28 U.S.C. § 1331, but the Court remained generally silent on its application to jurisdiction under the Class Action Fairness Act.

This Note explores this lack of clarity and proposes …

Crossing The Toll Bridge: American Pipe And The Fate Of State Law Claims After Class Certification Denial In Federal Court, Alexander Schnur

Fordham Law Review

Rule 23(c)(1)(A) of the Federal Rules of Civil Procedure (FRCP) provides that, “At an early practicable time after a person sues . . . as a class representative, the court must determine by order whether to certify the action as a class action.” In American Pipe & Construction Co. v. Utah, the U.S. Supreme Court addressed the interplay of this FRCP 23(c)(1)(A) class certification decision and statutes of limitations, holding that the commencement of a putative class action suspends the statute of limitations for putative class members while class certification is pending. Over the last fifty years, the American …

Fabricating The Crime Of Undocumented Presence, Eric S. Fish, Doug Keller

Fordham Law Review

In 2025, the Trump administration’s Office of Legal Counsel (OLC) declared that it is a federal crime simply to be an undocumented immigrant. Congress has enacted no such crime. Congress has made it a crime for an immigrant to enter the United States in a manner that “eludes examination or inspection.” For nearly 100 years, this “elude” offense has been understood to occur only at the moment an immigrant enters the country. But the Trump administration’s OLC has reinterpreted this crime as a continuing offense. Under this new reading, an immigrant who entered unlawfully eludes examination until the moment of …

How Did We Get Here?, Michael J. Klarman

Fordham Law Review

President Donald J. Trump’s second administration has transgressed basic rules and norms of democracy and the rule of law in myriad ways. Below, I have laid out my own top ten list of transgressions, though others could surely have made out a good case for their own “favorites.” It would not be difficult to come up with a longer list, yet the purpose of my Levine Lecture is less to describe where we are than to explain how we got here. Following an enumeration of Trump administration transgressions, my lecture turns to two questions. First, why have traditional checks on …

The Role Of Reliance In Stare Decisis Doctrine, Rochelle Hestnas

Fordham Law Review

The U.S. Supreme Court’s recent treatment of reliance interests in stare decisis doctrine is in flux. The Court has overruled long-standing precedent such as Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey with scant analysis as to how reliance interests factor into stare decisis doctrine, despite continuing to name reliance as a factor that should be considered. Arguments for whether and how reliance interests deserve protection are inherently challenging because it cannot be the case that every precedent should stand. Using Dobbs v. Jackson Women’s Health Organization as a case study, this Note analyzes the Court’s claim …

The Alien Enemies Act Of 1798, Andrew Kent

Fordham Law Review

For the first time since World War II—and for the first time ever outside a formally declared war—an American president has invoked the Alien Enemies Act of 1798 to detain and deport noncitizens. Enacted during the Quasi-War with France, the Act’s operative language remains largely unchanged today. In March 2025, President Donald J. Trump proclaimed that members of the Venezuelan gang Tren de Aragua present in the United States are “alien enemies,” asserting that their activities, allegedly coordinated with President Nicolás Maduro’s government, constitute an “invasion” or “predatory incursion” within the meaning of the statute. Litigation challenging the invocation of …

Splitting The Baby: Determining The Causation Standard In Family And Medical Leave Act Retaliation Claims, Eliana C. Singer

Fordham Law Review

The Family and Medical Leave Act (FMLA) guarantees employees unpaid leave following certain qualifying events. The FMLA not only provides substantive rights but also prohibits retaliation against employees who exercise those rights. When employees face unlawful retaliation, they can bring retaliation claims against their employers. However, there is disagreement among courts as to how to evaluate these claims. More precisely, courts are split concerning whether employees must prove their use of leave was a but-for cause of retaliation, or merely that it was one of an employer’s mixed motives for retaliating. The U.S. Courts of Appeals for the Second and …

From Claiborne To Climate: Anti-Esg Boycott Legislation And Corporate First Amendment Rights, Ingrid Tjendro

Fordham Law Review Online

Since 2021, at least twenty-one states have enacted laws targeting financial institutions and companies that incorporate environmental, social, and governance (ESG) considerations into their business practices. This Comment examines the First Amendment implications of one specific category of such legislation—state anti-ESG boycott statutes—and argues that they constitute an unconstitutional suppression of protected corporate speech and association.

Drawing on traditional anti-boycott jurisprudence, including NAACP v. Claiborne Hardware Co. and Rumsfeld v. Forum for Academic and Institutional Rights, Inc., and the circuit split over anti-Israel boycott legislation, this Comment centers on the recent decision in American Sustainable Business Council v. Hegar …

The Quiet Revival Of The Effective Vindication Of Rights Doctrine, Myriam Gilles

Fordham Law Review

The U.S. Supreme Court’s 2013 decision in American Express v. Italian Colors Restaurantwas widely seen as the death knell for the “effective vindication of rights” doctrine—a judicially created rule that arbitration agreements are enforceable only “so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum.” By upholding a class action–banning arbitration provision that rendered arbitration economically irrational, Italian Colors appeared to extinguish any meaningful limits on the enforcement of arbitration agreements.

But reports of the doctrine’s demise were premature. This Article uncovers how, in the decade since Italian Colors, lower …

Foreign Judgments In U.S. Courts, Yanbai Andrea Wang

Fordham Law Review

American law on foreign judgments is at an inflection point. For over a century, the doctrine has been shaped by concerns about outgoing U.S. judgments seeking asset collection in the civil law countries of continental Europe. But shifting trade flows and changing litigation tactics have carved a new landscape, demanding a return to foreign judgments law’s conceptual and doctrinal underpinnings. This Article first maps the new landscape, in which China is rapidly rising as a foremost foreign judgments interlocutor. Meanwhile, litigants are increasingly pursuing parallel litigation in multiple countries. The impact of incoming judgments and the interactions between related litigations …

Reorganizing The Administrative State: Executive Ambition And Legislative Constraint, Jordan Graber

Fordham Law Review

Beginning in the 1930s, Congress enacted a series of statutes granting presidents the authority to initiate reorganizations of the administrative state. Under these reorganization statutes, the president determined any necessary changes in agency organization and submitted a reorganization proposal to Congress, which could approve or reject the plan. Over the next fifty years, the president and Congress worked cooperatively to promote the effective and efficient functioning of the administrative state.

Despite the successful reorganization initiatives undertaken pursuant to these statutes, Congress has not conferred reorganization authority on any president in the last four decades. As a result, the organization of …

Antitrust, Vampires And Bloody Acquisitions, Theodosia Stavroulaki

Fordham Law Review

Private equity has rapidly seized control of large swaths of the U.S. healthcare system. This Essay argues that its takeover is not a story of efficiency or innovation but one of extraction. Drawing on a substantial body of research, it shows that private equity acquisitions are associated with rising healthcare costs, inferior care, reduced access to essential services, and deteriorating working conditions for physicians and nurses—harms that fall most heavily on marginalized communities.

These outcomes are not accidental. They stem from the private equity business model, which relies on leveraged buyouts, aggressive cost cutting, and roll-up strategies designed to generate …

Lawless Antitrust, John M. Newman

Fordham Law Review

No abstract provided.

Winging It: Convergence, Convivencia, And Belonging Of Latina Lawyers, Verónica C. Gonzales

Fordham Law Review

No abstract provided.

All The King’S Lawyers, Rebecca Aviel

Fordham Law Review

No abstract provided.

Against The Drafter: An Empirical And Theoretical Analysis Of The Doctrine Of Contra Proferentem, Farshad Ghodoosi, Tal Kastner

Fordham Law Review

Contra proferentem, the enduring maxim that directs courts to interpret an ambiguity in a contract against its drafter, appears simple on its face. Although it might be best known as a fundamental principle of insurance law, contra proferentem figures in courts’ interpretation of a range of contract types. As an interpretive rule of thumb that parties can easily override with a simple contract provision, the doctrine and its boilerplate antidote seem to offer a straightforward means to facilitate private ordering—a central goal of contract law.

However, neither courts’ application of the doctrine in case law nor contract drafters’ treatment …

Recalibrating Deference In Sentencing, Meghana Nemali

Fordham Law Review

The U.S. Sentencing Commission (the “Commission”) is responsible for promoting consistency, transparency, and fairness in federal sentencing. In pursuit of this mandate, the Commission publishes the U.S. Sentencing Guidelines (the “Guidelines”), which are accompanied by official commentary. In Stinson v. United States, the U.S. Supreme Court endowed the commentary with controlling authority. However, nearly three decades later, the Court in Kisor v. Wilkie granted courts greater discretion in deciding whether to defer to the commentary. Moreover, in 2024, the Court eliminated the absolute deference regime for administrative agency determinations in Loper Bright Enterprises v. Raimondo. As a result, …

Clean Hands, Dirty Money, And The Codification Of Sec Disgorgement, Stephanie Palma

Fordham Law Review

Disgorgement is the U.S. Securities and Exchange Commission’s (SEC) most powerful enforcement tool and among its most controversial. For decades, federal courts treated disgorgement in securities enforcement actions as an equitable remedy, a view that the U.S. Supreme Court confirmed in Liu v. SEC. Months after Liu, Congress passed the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, which codified disgorgement in SEC enforcement actions. The codification of disgorgement sparked a circuit split between the U.S. Courts of Appeals for the Fifth and Second Circuits over whether Congress created a new statutory form of …

Not So Firmly Settled: How The Inconsistent Jurisprudence Of The Firm Resettlement Bar Serves As A Tool For Asylum Seeker Exclusion, Caroline V. Garrido

Fordham Law Review

The firm resettlement bar to asylum, designed to limit protections to those without refuge elsewhere, has become a source of inconsistency, confusion, and exclusion in U.S. asylum law. Circuit courts have adopted two different approaches for determining whether an asylum seeker has firmly resettled in a third country. Despite the Board of Immigration Appeals’ attempt to unify these approaches through the introduction of a burden-shifting framework, courts remain divided, and there is no clear guidance on what constitutes firm resettlement. This Note argues that this lack of guidance has led to inconsistent court holdings and interpretations that conflict with the …

Red, White-, And Blue-Collar Crime: Federal Sentencing Practices Among White-Collar And Blue-Collar Offenders, Henna Judge

Fordham Law Review

Under the current federal sentencing regime, district courts exercise immense amounts of discretion when sentencing. Though strict adherence to the U.S. Sentencing Commission Guidelines (the “Guidelines”) was once mandatory, courts must now use these Guidelines as an advisory starting point and make a series of fact-specific determinations when sentencing a defendant. Though judicial discretion in this realm aids in preventing undue reliance on Guidelines-range recommendations that can lack nuance, it also invites bias.

In recent years, scholars and courts alike have called attention to a potential disparity in the way blue-collar and white-collar offenders are sentenced. This Note examines relevant …

Separation-Of-Powers Lochnerism, Andrea Scoseria Katz

Fordham Law Review

One hundred and twenty years ago, in 1905, the U.S. Supreme Court rendered one of the single most notorious opinions in history, striking down a New York labor law for violating the right to contract—a right found nowhere in the text of the Constitution. Though the era of Lochner v. New York is well past us, the judicial impulses that gave rise to the case remain. With a new champion in the Roberts Court, Lochnerism is alive and well, deployed in a new context to redefine the relationships between the president, Congress, federal agencies, and the courts.

Bringing together two …

Settling On A Standard: Reviewing The Right To Self-Representation, Lauren Lipson

Fordham Law Review

Courts appoint counsel for indigent criminal defendants who cannot afford legal representation to uphold their Sixth Amendment rights. In its seminal waiver case, Faretta v. California, the U.S. Supreme Court elevated the corollary right—the right to self-representation—to constitutional status. In dicta, the Court created a standard by which defendants must waive their right to counsel “knowingly and intelligently” to proceed pro se. The Court subsequently sculpted the right to self-representation as it came to standby counsel and mental competency, but it never prescribed a precise waiver colloquy for district court judges to administer, causing the Faretta colloquy to look …

Federal Courts, Class Actions, And The Jurisdictional Void, Courtney T. Welch

Fordham Law Review

To invoke the jurisdiction of a federal court, a plaintiff must satisfy the requirements of Article III. Among other things, Article III requires a plaintiff to have and maintain personal stake throughout the lifespan of the litigation. Though a simple premise, this constitutional requirement has a complicated history. This is especially true as applied to class action lawsuits, where plaintiffs bring claims both on behalf of themselves and other harmed individuals.

The U.S. Supreme Court has applied flexible rules to some—but not all—of Article III’s requirements in class actions. The breadth of this flexibility, though, is uncertain. Accordingly, so too …

Competition, Comity, And Confusion: Reconciling The Ftaia’S Import Exclusion With Its Direct Effects Provision, Elliot Lam

Fordham Law Review

The debate surrounding the Sherman Act’s extraterritorial scope represents a tension between two competing objectives: protecting the U.S. economy from foreign anticompetitive conduct on one hand and respecting the sovereign authority of other nation-states on the other. Applying U.S. law abroad risks undermining sovereign authority by regulating foreign economies, though such regulation appears necessary in some cases to protect U.S. consumers.

Congress’s attempt to square these objectives through enacting the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) failed to settle the matter. The statute left courts with two new questions: how to distinguish “import” from “nonimport” commerce, and how …

Defining “Cases” Or “Controversies”: A Fundamental Confusion In Article Iii Standing Doctrine And Its Consequences In Multi-Plaintiff Litigation, Dominic Signa

Fordham Law Review

The United States Supreme Court has addressed the absolute core requirements of standing under Article III of the U.S. Constitution on several occasions. However, the Court has not clearly articulated what purpose standing serves relative to Article III’s limitations on the exercise of judicial power to only “cases” or “controversies,” and this has led to major downstream effects in the realm of multi plaintiff litigation. Specifically, the Court has not explained whether standing is meant to ensure (1) that all potential plaintiffs demonstrate that they are properly parties to the same case or controversy before a federal court or (2) …

The Roberts Court Paradox, John C. P. Goldberg, Benjamin C. Zipursky

Fordham Law Review

As perhaps the most conservative Supreme Court of the past century, the Roberts Court regularly touts its commitment to traditional ideals, including the rule of law. Yet Trump v. United States seems ready to place presidents entirely or largely above the law by granting them absolute or near absolute immunity from criminal prosecutions for official conduct. And Trump is not a one-off: from judicial recusal to qualified immunity to due process decisions, the Court frequently seems to display indifference to values of accountability and impartiality that have long been thought integral to the rule of law. What is going on? …

Emotionally Unstable: Addressing Emotional Distress As A Concrete Injury In Data Breach Cases Post-Transunion, Anna P. Cox

Fordham Law Review

Data breaches and data breach litigation are exponentially on the rise. Plaintiffs whose information is stolen in a data breach often claim emotional distress for fear of future harm the data breach may cause. However, plaintiffs who bring suit in federal court must show that they have suffered an injury in fact for purposes of Article III standing before a federal court will exercise jurisdiction. The U.S. Supreme Court’s decision in TransUnion LLC v. Ramirez requires that plaintiffs who seek money damages under a theory of risk of future harm show that they have suffered a present concrete injury to …