Law and Society Commons^™

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 …

Remarks, Ellen Germain

Fordham Law Review

No abstract provided.

Seeing The Humanity In Each Object: Finding Justice Amid The Law, Gideon Taylor, Ruth J. Weinberger

Fordham Law Review

The restitution of Nazi-looted cultural and religious property remains an important aspect of providing a measure of justice for Holocaust victims and their heirs. The United States has played a leading role, from early postwar restitution efforts to shaping international principles, such as the Washington Conference Principles on Nazi-Confiscated Art (the “Washington Conference Principles”), the Terezin Declaration, and the recent Best Practices for the Washington Conference Principles. Yet restitution within the United States continues to rely largely on litigation, with varying outcomes and limited provenance research compared to some European countries. The following Essay examines America’s contributions and challenges and …

Oligarchy, State, And Cryptopia, Julie E. Cohen

Fordham Law Review

Theoretical accounts of power in networked digital environments typically do not give systematic attention to the phenomenon of oligarchy—to extreme concentrations of material wealth deployed to obtain and protect durable personal advantage. The biggest technology platform companies are dominated to a singular extent by a small group of very powerful and extremely wealthy men who have played uniquely influential roles in structuring technological development in particular ways that align with their personal beliefs and who now wield unprecedented informational, sociotechnical, and political power. Developing an account of oligarchy and, more specifically, of tech oligarchy within contemporary political economy therefore has …

Corporeal Property And The Limits Of Nagpra, M. Alexander Pearl

Fordham Law Review

No abstract provided.

The Hcpo Way: Resolving Claims Through Cooperation, Anna Rubin

Fordham Law Review

The Nazi regime systematically stripped Jews and other persecuted groups of property through a framework of laws that gave their spoliation a veneer of legality. Postwar restitution programs, though groundbreaking in their efforts to provide individual victims with either compensation or the return of their property, were hampered by strict legal limitations, inconsistent procedures, and the slow pace of resolution. Contemporary restitution efforts increasingly recognize that legal avenues alone cannot fully redress these injustices. This Essay examines the work of the Holocaust Claims Processing Office (HCPO) of the New York State Department of Financial Services, which has developed a model …

Recalibrating Risk Under Dobbs, Yvonne Lindgren, Michelle Oberman

Fordham Law Review

In response to mounting evidence of the devastating harms patients have experienced under abortion bans, abortion opponents and the Supreme Court of Texas have argued that the bans are clear but that doctors are willfully refusing to provide care. Instead of reforming the bans, they argue that doctors should be sued in medical malpractice for their failure to meet the standard of care. This Article interrogates that claim, investigating whether the crisis in reproductive healthcare that has resulted from delayed and denied care can be remedied by suing doctors. Specifically, can medical malpractice litigation provide guardrails against the erosion in …

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 …

When The Screen Lies: Navigating Privacy And Publicity In An Ai World, Nancy M. Menagh

Fordham Law Review

A key issue of the 2023 SAG-AFTRA strike was the use of generative AI in the entertainment industry and, more specifically, the creation of uncanny digital replicas of performers being used without their knowledge or consent. Since then, concerns have only intensified around the unauthorized creation and use of digital replicas and the ease with which they can be made and disseminated online. Currently, there is a patchwork of state laws that attempt to target these issues, but they have proven ineffective against the challenges presented by digital replicas.

This Note analyzes the problems digital replicas have raised in the …

Abortion Travel Restrictions Under The Dormant Commerce Clause After National Pork Producers Council V. Ross, Katherine Bartley

Fordham Law Review

Since Dobbs v. Jackson Women’s Health Organization, twelve states have banned abortion entirely, and seven states have banned abortion earlier in pregnancy than the standard set in Roe v. Wade. As abortion access dwindles, patients increasingly cross state lines to seek reproductive healthcare. In response, antiabortion state officials and lawmakers have made efforts to restrict interstate travel for abortion care.

This Note examines abortion travel restrictions under the “Dormant” Commerce Clause doctrine, which limits state laws that burden interstate commerce. In 2023, the U.S. Supreme Court affirmed but narrowed the judge-made doctrine in National Pork Producers Council v. …

“Shipping” Away The Captive Audience Meeting, Nathan Kakalec

Fordham Law Review

On November 14, 2024, the National Labor Relations Board (NLRB) overturned seventy-six years of labor law precedent by banning captive audience meetings in Amazon.com Services LLC. Captive audience meetings, mandatory meetings where employers discuss unionization with their employees, were a powerful anti-union tool used by employers to coerce their employees into rejecting unionization. The NLRB argues that captive audience meetings are inconsistent with § 7 and § 8 of the National Labor Relations Act (NLRA). Employers reject the NLRB’s assertion and contend that banning captive audience meetings infringes on their First Amendment right to communicate their views on unionization. …

Law Jobs: Professional Regulation, The Division Of Legal Labor, And Institutional Change, Emily S. Taylor Poppe

Fordham Law Review

No abstract provided.

Jewish Lawyers And The Labor Movement, Catherine L. Fisk

Fordham Law Review

No abstract provided.

A World-Threatening Feeling: Grief, Moral Injury, And Institutional Loss In Rural Courts, Michele Statz

Fordham Law Review

No abstract provided.

The Illusion Of Inclusion: The False Promise Of The New Governance Project For Content Moderation, Brenda Dvoskin

Fordham Law Review

Because private companies now control the most prominent communication platforms, the most pressing question in the field of content moderation is how to ensure that the governance of public discourse responds to public values. The prevailing approach, given that the state cannot regulate speech directly, is that state regulation can be substituted with audited self-regulation, broad stakeholder participation, and negotiated rulemaking. In this model, which this Article refers to as the “new governance model for content moderation,” companies include advocates as representatives of the public in their processes to govern online speech. Ideally, they negotiate policy goals and share responsibility …

Company Districts, C.J. Suglia

Fordham Journal of Corporate & Financial Law

Special districts that are owned or controlled by private entities and act almost uniformly like a company town can be dubbed a “company district.” These special districts, similar to historical company towns, have autonomy over the districts, control the local government, and only have to answer to the state government. Historical company towns like Pullman, Illinois and Hershey, Pennsylvania had almost canonical command over the land within their boundaries. Company districts operate their business similar to a company town—in a city that the private entity controls, but do not have employees living on-site. Company districts benefit by being immune to …

Alternatives To Delaware? Evaluating Corporate Law In Nevada, Texas, And Wyoming, Joseph Landau, Bailey Swartz, Anthony Rickey, Robert Ragazzo, Benjamin Edwards, George A. Mocsary

Fordham Journal of Corporate & Financial Law

No abstract provided.

Chronically Online: Apportioning Liability In Social Media Litigation Based On User Engagement, Rebecca Vangelos

Fordham Law Review

The average American teenager spends nearly five hours on social media every day. This result is by design: social media platforms like Instagram, Snapchat, and TikTok deploy persuasive technologies—including infinite scroll, personalized content recommendation feeds, and dark patterns—to capture and retain teen attention. These intentional design features exploit adolescent vulnerabilities to foster social media dependency. Accordingly, a growing body of scientific evidence links the extensive use of social media to the teen mental health crisis in the United States.

Despite these negative effects, social media companies have largely evaded accountability for the harm they have caused to teens. Recent lawsuits …

Foreword, Deborah W. Denno, Erica Valencia-Graham

Fordham Law Review

This Foreword overviews an unprecedented Symposium on these wide ranging topics titled The New AI: The Legal and Ethical Implications of ChatGPT and Other Emerging Technologies. Hosted by the Fordham Law Review and cosponsored by Fordham University School of Law’s Neuroscience and Law Center on November 3, 2023, the Symposium brought together attorneys, judges, professors, and scientists to explore the opportunities and risks presented by AI, especially GenAI like ChatGPT. The discussion raised complex questions concerning AI sentience and personal privacy, as well as the future of legal ethics, education, and employment. Although the AI industry uniformly predicts ever more …

Aligning The Stars: Institutional Convergence As Social Change, Raymond H. Brescia

Fordham Law Review

In a democracy, in which the legal and constitutional systems should reflect popular will and individual and collective self-determination are the engines through which those systems are realized, what are the means by which individuals, organizations, and social movements might bring about meaningful and sustainable social change that makes that society more just, more inclusive, and more equitable? A common understanding of how social change happens, and who can bring about that change, is represented in an oft-quoted phrase, attributed to Margaret Mead: “Never doubt that a small group of committed people can change the world: Indeed, it is the …

Community Responsive Public Defense, Alexis Hoag-Fordjour

Fordham Law Review

This colloquium asks us to consider how social change is influencing the legal profession and the legal profession’s response. This Essay applies these questions to organizing around criminal injustice and the response from public defenders. This Essay surfaces the work of four innovative indigent defense organizations that are engaged with and duty-bound to the communities they represent. I call this “community responsive public defense,” which is a distinct model of indigent defense whereby public defenders look to their clients and their clients’ communities to help shape advocacy, strategy, and representation.

Methodologically, this Essay relies primarily on qualitative interviews with leaders …

Expecting Medication Surveillance, Jennifer D. Oliva

Fordham Law Review

In response to federal financial incentives and mandates, all fifty states, the District of Columbia, and three U.S. territories administer electronic prescription drug monitoring programs (PDMPs). Federal and state policymakers justified the implementation and enhancement of ubiquitous prescription drug monitoring by contending that expansive state drug surveillance was a necessary weapon in the war against the American drug overdose crisis. As is often the case with tools designed for law enforcement surveillance, however, PDMPs have proven susceptible to mission creep. Although pioneer PDMPs were paper-based systems that limited their surveillance to a narrow class of heavily regulated controlled substances, modern …

Interpretive Divergence In The New York Court Of Appeals, Ethan J. Leib

Faculty Scholarship

This Article focuses attention on the New York Court of Appeals, which is decidedly formalist about contract interpretation but decidedly contextualist about statutory interpretation. It explores some recent exemplary cases to show where the New York Court of Appeals tends to land in what turns out to be, for this court at least, two different battlefields in the law of interpretation. Finding that there is “interpretive divergence” between statutory and contract cases, the Article then reflects on the practice of divergence more generally, revisiting assumptions about why anyone might have thought harmonization was sensible in the first place.

De Jure Separate And Unequal Treatment Of The People Of Puerto Rico And The U.S. Territories, Natalie Gomez-Velez

Fordham Law Review

Current efforts to dismantle systemic racism in the United States are often met with the argument that legally sanctioned inequality is a thing of the past. Yet despite progress toward formal legal equality, racism and discrimination in the United States exist not only as the effects of past laws and systems—they exist presently in current laws and systems as well. Current U.S. law discriminates against U.S. territories and their residents with respect to citizenship status, voting rights and representation, and equal access to benefits, among other things.

This Essay examines such separate and unequal treatment using the recent case, United …

Representing Noncitizens In The Context Of Legal Instability And Adverse Detention Precedent, Nancy Morawetz

Fordham Law Review

This Essay addresses three structural aspects of immigration law that have shifted in recent years and present important challenges for delivering adequate representation. Although the Katzmann study group’s many initiatives have shored up access to counsel in immigration courts and for immigration applications, the ground has been shifting under our feet. This Essay discusses three (of many) phenomena that make it harder than ever to lawyer on behalf of noncitizens. The first is the rise of red-state lawsuits that lead to enormous unpredictability about the agency rules under which lawyers can expect to operate. The second is the individuation and …

Policy By The People, For The People:Designing Responsiveregulation And Buildingdemocratic Power, Scott L. Cummings, Doug Smith

Fordham Law Review

Policymaking in American democracy is often a process that happens to people rather than by them. This is especially the case with respect to policy that affects people with less power in low-income communities and communities of color. Urban policy, in particular, has historically been driven by business elites and white homeowners’ interests, which have shaped exclusionary policies, such as redlining and single-family zoning— etching racial and economic segregation into the fabric of city space. Even when outsider interest groups and social movement organizations gain enough power to shape the policy agenda, give input into the content of policy, and …

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 …

People’S Electric: Engaged Legal Education At Rutgers-Newark Law School In The 1960s And 1970s, George W. Conk

Fordham Urban Law Journal

No abstract provided.

Anything You Can Use, I Can Use Better: Examining The Contours Of Fair Use As An Affirmative Defense For Theatre Artists, Creators, And Producers, Benjamin Reiser

Fordham Intellectual Property, Media and Entertainment Law Journal

Broadway is booming. In a post-Hamilton world, ticket sales and attendance records for the commercial theatre industry continue to break season after season. At the same time (and perhaps not so coincidentally), litigation against theatre artists, creators, and producers has surged, especially in the realm of copyright infringement. Many theatre professionals accused of infringement in recent years have employed the doctrine of fair use—codified at 17 U.S.C. § 107—as an affirmative defense against such claims. This Note explores cases involving theatre professionals in which fair use was examined and contends that they collectively reflect broader historical trends in fair …

Liability For Ai Decision-Making: Some Legal And Ethical Considerations, Iria Giuffrida

Fordham Law Review

The creation and commercialization of these systems raise the question of how liability risks will play out in real life. However, as technical advancements have outpaced legal actions, it is unclear how the law will treat AI systems. This Article briefly addresses the legal ramifications and liability risks associated with reliance on—or delegation to—AI systems, and it sketches a framework suggesting how we can address the question of whether AI merits a new approach to deal with the liability challenges it raises when humans remain “in” or “on” the loop.