Courts Commons^™

Case-Linked Jurisdiction And Busybody States, Howard M. Erichson, John C.P. Goldberg, Benjamin Zipursky

Faculty Scholarship

No abstract provided.

The Innovation & Limitation Of Arbitral Courts, Pamela K. Bookman

Faculty Scholarship

No abstract provided.

Marshall As A Judge, Robert Post

Fordham Law Review

Marshall is a towering and inspirational figure in the history of American constitutional law. He changed American life forever and unquestionably for the better. But the contemporary significance of Marshall’s legacy is also, in ways that challenge present practices and beliefs, ambiguous.

American Courts And The Sex Blind Spot: Legitimacy And Representation, Michele Goodwin, Mariah Lindsay

Fordham Law Review

We argue the legacy of explicit sex bias and discrimination with relation to political rights and social status begins within government, hewn from state and federal lawmaking. As such, male lawmakers and judges conscribed a woman’s role to her home and defined the scope of her independence in the local community and broader society. Politically and legally, women were legal appendages to men—objects of male power (visà-vis their husbands and fathers). In law, women’s roles included sexual chattel to their spouses, care of the home, and producing offspring. Accordingly, women were essential in the home, as law would have it, …

How Courts In Criminal Cases Respond To Childhood Trauma, Deborah W. Denno

Faculty Scholarship

Neurobiological and epidemiological research suggests that abuse and adverse events experienced as a child can increase an adult’s risk of brain dysfunction associated with disorders related to criminality and violence. Much of this research is predictive, based on psychological evaluations of children; few studies have focused on whether or how criminal proceedings against adult defendants consider indicators of childhood trauma. This Article analyzes a subset of criminal cases pulled from an 800-case database created as part of an original, large-scale, empirical research project known as the Neuroscience Study. The 266 relevant cases are assessed to determine the extent to which, …

Contract Creep, Tal Kastner, Ethan J. Leib

Faculty Scholarship

Scholars and judges think they can address the multiple purposes and values of contract law by developing different doctrinal regimes for different transaction types. They think if we develop one track of contract doctrine for sophisticated parties and another for consumers, we can build a better world of contract: protecting private ordering for sophisticated parties and protecting consumers’ needs all at once. Given the growing enthusiasm for laying down these separate tracks and developing their infrastructures, this Article brings a necessary reality check to this endeavor by highlighting for scholars and judges how doctrine in contract law functions in fact: …

Two Roads Diverged: Statutory Interpretation By The Circuit Courts And Supreme Court In The Same Cases, Lawrence Baum, James J. Brudney

Fordham Law Review

Scholars and judges have long disagreed on whether courts of appeals construing statutes ought to adapt their use of interpretive resources to Supreme Court approaches. If circuit courts and the Supreme Court approach statutory issues in similar ways, this can perhaps provide a measure of predictability for litigants and the public while conserving judicial resources; it may also enhance perceptions of fairness in the judicial system. Such normative arguments invite—even demand—a fuller understanding of the underlying descriptive reality: whether anything approaching uniformity or consistency actually exists. This Article aims to provide that understanding. It does so through an in- depth …

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 …

Totally Class-Less?: Examining Bristol-Myer's Applicability To Class Actions, Justin A. Stone

Fordham Law Review

In June 2017, the U.S. Supreme Court tightened the specific jurisdiction doctrine when it dismissed several plaintiffs’ claims in a mass tort action against pharmaceutical company Bristol-Myers Squibb (BMS) for lack of personal jurisdiction. The action was brought in a California state court and involved several hundred plaintiffs alleging that they were injured by Plavix, a drug BMS manufactures. The Supreme Court held that California could not constitutionally exercise personal jurisdiction over BMS as to the nonresident plaintiffs, who did not have an independent connection to California. While the nonresident plaintiffs argued that California had specific jurisdiction because their claims …

Adjudication In The Age Of Disagreement, John Fabian Witt

Fordham Law Review

In the time I have here with you today I would like to offer the beginnings of an answer. It does not lie in the distance between the court’s traditions and Manton’s conduct. That would be too easy. At base, I think the answer lies in something far more subtle and interesting: the relationship between acentral tradition of the Second Circuit and one of the great questions we face as a society today. That question is how to deal with disagreement.

Reviving Reliance, Ann M. Lipton

Fordham Law Review

This Article explores the misalignment between the disclosure requirements of the federal securities laws and the private causes of action available to investors to enforce those requirements. Historically, federally mandated disclosures were designed to allow investors to set an appropriate price for publicly traded securities. Today’s disclosures, however, also enable stockholders to participate in corporate governance and act as a check on managerial misbehavior. To enforce these requirements, investors’ chief option is a claim under the general antifraud statute, section 10(b) of the Securities Exchange Act of 1934. But courts are deeply suspicious of investors’ attempts to use the Act …

Affirming Firm Sanctions: The Authority To Sanction Law Firms Under 28 U.S.C. § 1927, Vincent J. Margiotta

Fordham Law Review

A circuit split exists as to whether 28 U.S.C. § 1927 allows for an award of sanctions against nonattorneys or nonrepresentatives. Five federal courts of appeals—the Second, Third, Eighth, Eleventh, and the District of Columbia Circuits—hold that, to further the purpose of 28 U.S.C. § 1927, courts have the authority to sanction a law firm for the conduct of its attorneys, in addition to the authority to sanction individual officers of the court. The Sixth, Seventh, and Ninth Circuits disagree, concluding that the statute allows federal courts to sanction only individuals—“attorney[s] or other person[s] admitted to conduct cases in any …

The Doxing Dilemma: Seeking A Remedy For The Malicious Publication Of Personal Information, Julia M. Macallister

Fordham Law Review

In recent years, malevolent actors have seized upon a new tool to harass, silence, threaten, and injure people online: doxing—the malicious publication of personal identifying information like a home address. Although doxing is an online tool, it causes concrete and serious harm to victims by moving harassment from the Internet to the physical world. Congress and state legislatures have begun to address different forms of cyberharassment. However, no effective and consistent legal remedy for doxing currently exists. This Note examines and critiques current federal and state schemes, and it ultimately proposes that lower federal courts should adopt a new intent …

It’S Time For An Intervention!: Resolving The Conflict Between Rule 24(A)(2) And Article Iii Standing, Gregory R. Manring

Fordham Law Review

This Note argues that federal courts should employ an approach that is more related to maintaining the benefits of Rule 24 without running afoul of Article III—a task the yes-or-no approach is ill equipped to handle. Ultimately, an approach that is based on employing a standing analysis only where the Case or Controversy Clause is implicated anew allows the greatest access to the intervention device without running the risk of entertaining nonjusticiable disputes.

The Doxing Dilemma: Seeking A Remedy For The Malicious Publication Of Personal Information, Julia M. Macallister

Fordham Law Review

In recent years, malevolent actors have seized upon a new tool to harass, silence, threaten, and injure people online: doxing—the malicious publication of personal identifying information like a home address. Although doxing is an online tool, it causes concrete and serious harm to victims by moving harassment from the Internet to the physical world. Congress and state legislatures have begun to address different forms of cyberharassment. However, no effective and consistent legal remedy for doxing currently exists. This Note examines and critiques current federal and state schemes, and it ultimately proposes that lower federal courts should adopt a new intent …

It’S Time For An Intervention!: Resolving The Conflict Between Rule 24(A)(2) And Article Iii Standing, Gregory R. Manring

Fordham Law Review

This Note argues that federal courts should employ an approach that is more related to maintaining the benefits of Rule 24 without running afoul of Article III—a task the yes-or-no approach is ill equipped to handle. Ultimately, an approach that is based on employing a standing analysis only where the Case or Controversy Clause is implicated anew allows the greatest access to the intervention device without running the risk of entertaining nonjusticiable disputes.

The Robert L. Levine Distinguished Lecture: A Conversation With Justice Ruth Bader Ginsburg And Professor Aaron Saiger, Ruth Bader Ginsburg, Aaron Saiger

Fordham Law Review

PROFESSOR AARON SAIGER: It’s a signal honor for Fordham Law School and a personal honor for me and a pleasure to have Justice Ginsburg here tonight. We want to thank you for coming. I think I will not reiterate all of the thanks Dean Diller has offered, except to say that we are very grateful to the Levine family and deeply indebted to the students of the Law Review who have made tonight happen. The format of the evening is as follows: I will ask questions and the Justice will answer them.

Protean Statutory Interpretation In The Courts Of Appeals, James J. Brudney, Lawrence Baum

Faculty Scholarship

This Article is the first in-depth empirical and doctrinal analysis of differences in statutory interpretation between the courts of appeals and the Supreme Court. It is also among the first to anticipate how the Supreme Court’s interpretive approach may shift with the passing of Justice Scalia.

We begin by identifying factors that may contribute to interpretive divergence between the two judicial levels, based on their different institutional structures and operational realities. In doing so, we discuss normative implications that may follow from the prospect of such interpretive divergence. We then examine how three circuit courts have used dictionaries and legislative …

Preface: One Hundred Twenty-Five Years Of The U.S. Court Of Appeals For The Second Circuit: A Brief Project Overview, Robert A. Katzmann

Fordham Law Review

An important part of that 125th anniversary examination is found in the pages that follow: essays by prominent lawyers of the Second Circuit about some of the vital areas of law emanating from our court. Much gratitude is due to the editors of the Fordham Law Review; Michael Cardozo and Bettina Plevan, who painstakingly oversaw the issue; and to the lawyers who contributed their thinking and writings. Six articles have been specially drafted on: First Amendment/civil liberties, by Floyd Abrams; white collar crime, by Robert J. Anello and Miriam L. Glaser; antitrust, by Saul P. Morgenstern, Jennifer B. Patterson, …

Introduction: Constraint, Authority, And The Rule Of Law In A Federal Circuit Court Of Appeals, John Fabian Witt

Fordham Law Review

Congress’ Evarts Act, signed into law in 1891, created a new Article III federal court designed almost exclusively to sit as an intermediate appellate court in between the federal trial courts and the U.S. Supreme Court. Congress created the new Evarts Act appellate courts to relieve pressure on the Supreme Court’s growing workload and to create a less arbitrary system of appeals for litigants in the federal trial courts. These twin goals of reducing the Supreme Court’s workload and establishing a meaningful right of appeal produced a set of circuit courts of appeals with a distinctively constrained new role. This, …

Introduction From The Editors Of Volume 84, Hopi Costello, Matthew Geyer, Brandon Ruben

Fordham Law Review

The U.S. Court of Appeals for the Second Circuit has always held special significance for the Fordham Law Review’s student members. Ennobled by the examples of Fordham Law School and Fordham Law Review alumni Judge Irving Kaufman, Judge William Mulligan, Judge Joseph McLaughlin, and, most recently, Judge Denny Chin, the student members of the Fordham Law Review strive to impact our profession at its highest levels. It is thus with great pleasure and pride that four current students on the Fordham Law Review join this intellectual lineage by contributing the notes written for this commemorative issue, eaching tackles recent …

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 discussing the …

Are Campus Sexual Assault Tribunals Fair?: The Need For Judicial Review And Additional Due Process Protections In Light Of New Case Law, Emily D. Safko

Fordham Law Review

The pervasiveness of sexual assault on college and university campuses and the schools’ failures to take sexual assault seriously have resulted in recent reforms to college campus disciplinary proceedings. The federal government has largely prompted this wave of reform through Title IX, requiring schools to employ particular policies and procedures for investigating and adjudicating sexual assault as a condition of receiving federal funds. Although the federal government’s mandates may be properly motivated, these reforms are criticized because they encourage schools to enact procedures that are heavily stacked against those accused of sexual assault. Consequently, students alleging that they have been …

Pro Bono Legal Services: The Silent Majority—A Twenty-Five Year Retrospective, Victor Marrero

Fordham Urban Law Journal

No abstract provided.

The Case For Court-Based Document Assembly Programs: A Review Of The New York State Court System's "Diy" Forms, Rochelle Klempner

Fordham Urban Law Journal

No abstract provided.

A Sum Uncertain: Preserving Due Process And Preventing Default Judgments In Consumer Debt Buyer Lawsuits In New York, Conor P. Duffy

Fordham Urban Law Journal

No abstract provided.

Inherent National Sovereignty Constitutionalism: An Original Understanding Of The U.S. Constitution, Robert J. Kaczorowski

Faculty Scholarship

No abstract provided.

The Concept Of The Speech Platform: Walker V. Texas Division, Abner S. Greene

Faculty Scholarship

In Walker, the Court deemed Texas’ specialty license plate program government speech, and thus applied no First Amendment review to the state’s refusal to allow a Confederate battle flag specialty plate, even though the reason for the refusal was that the plate was offensive. The dissent considered this unconstitutional viewpoint discrimination in a limited public forum. This article argues that the Walker result was correct, but for the wrong reason. Government should have the power to forbid hateful or vulgar speech from limited public forums such as specialty or vanity license plates, transit ads, and after-school extracurricular activities, even though …

Longstanding Agency Interpretations, Anita S. Krishnakumar

Fordham Law Review

    How much deference—or what kind—should courts give to longstanding agency interpretations of statutes? Surprisingly, courts and scholars lack a coherent answer to this question. Legal scholars long have assumed that longstanding agency statutory interpretations are treated with heightened deference on judicial review, and federal courts sometimes have made statements suggesting that this is the case. But in practice, federal court review of longstanding agency interpretations—at both the U.S. Supreme Court and courts of appeals—turns out to be surprisingly erratic. Reviewing courts sometimes note the longevity of an agency’s statutory interpretation as a plus factor in their deference analysis but at …

The Philip D. Reed Lecture Series: Judicial Records Forum, Panel Discussion

Fordham Law Review

    This Panel Discussion of the Judicial Records Forum was held on June 4, 2014, at Fordham University School of Law. The Judicial Records Forum focuses on issues involving the creation and management of judicial records and access to judicial records in the digital age.
    The transcript of the Panel Discussion has been lightly edited and represents the panelists’ individual views only, and in no way reflects those of their affiliated firms, organizations, law schools, or the judiciary.