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Fordham Law Review

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American Courts And The Sex Blind Spot: Legitimacy And Representation, Michele Goodwin, Mariah Lindsay May 2019

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, …

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"'Male Chauvinism' Is Under Attack From All Sides At Present": Roberts V. United States Jaycees, Sex Discrimination, And The First Amendment, Linda C. Mcclain May 2019

"'Male Chauvinism' Is Under Attack From All Sides At Present": Roberts V. United States Jaycees, Sex Discrimination, And The First Amendment, Linda C. Mcclain

Fordham Law Review

This Article considers the relationship between gender equality and freedom of association. Part I begins with the Supreme Court’s recognition of the freedom of association as first articulated in NAACP v. Alabama. It shows how, in the context of race discrimination, some key civil rights victories have enlisted claims of the freedom of association, while some other victories have prevailed against such claims. Those precedents set the foundation for the Court’s decision in Jaycees, which concerned gender discrimination. Part II focuses on the role of Jaycees in drawing an analogy between the harms of gender discrimination and sexual-orientation …

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Toxic Misogyny And The Limits Of Counterspeech, Lynne Tirrell May 2019

Toxic Misogyny And The Limits Of Counterspeech, Lynne Tirrell

Fordham Law Review

Gender equality, across all the ways that we humans are engendered, is an unrealized ideal of many contemporary Americans. It is not enshrined in the U.S. Constitution, unless one interprets “men” to include women, which the Framers did not. Although passed by Congress in 1972, the Equal Rights Amendment (ERA) failed to gain the necessary thirty-eight state ratifications, and it has never become law. Thirty-five states initially ratified it between 1972 and 1977, then two more in 2017 and 2018. It remains one state short. These ratifications indicate significant social progress for women, but the progress is uneven, even within …

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Dignity And Social Meaning: Obergefell, Windsor, And Lawrence As Constitutional Dialogue, Steve Sanders Apr 2019

Dignity And Social Meaning: Obergefell, Windsor, And Lawrence As Constitutional Dialogue, Steve Sanders

Fordham Law Review

The U.S. Supreme Court’s three most important gay and lesbian rights decisions—Obergefell v. Hodges, United States v. Windsor, and Lawrence v. Texas—are united by the principle that gays and lesbians are entitled to dignity. Beyond their tangible consequences, the common constitutional evil of state bans on same-sex marriage, the federal Defense of Marriage Act, and sodomy laws was that they imposed dignitary harm. This Article explores how the gay and lesbian dignity cases exemplify the process by which constitutional law emerges from a social and cultural dialogue in which the Supreme Court actively participates. In doing …

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The Light We Shine Into The Grey: A Restorative #Metoo Solution And An Acknowledgement Of Those #Metoo Leaves In The Dark, Nora Stewart Mar 2019

The Light We Shine Into The Grey: A Restorative #Metoo Solution And An Acknowledgement Of Those #Metoo Leaves In The Dark, Nora Stewart

Fordham Law Review

In the past year and a half, American women have publicly discussed experiences of sexual assault, harassment, and—notably—grey-area misconduct in an unprecedented manner. The rhetoric of the #MeToo movement is rife with references to “shining a light” on a set of unexplored issues hitherto obscured in cultural darkness, to following women’s experiences into the grey. What is new about #MeToo, and what likely will be the through line that defines its historical importance, has been its sensitivity to nuance. The grey range of #MeToo misconduct is not a new problem. It is emphatically new, however, as a subject of public …

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Foreword: Rise Of The Machines: Artificial Intelligence, Robotics, And The Reprogramming Of Law, Deborah W. Denno, Ryan Surujnath Jan 2019

Foreword: Rise Of The Machines: Artificial Intelligence, Robotics, And The Reprogramming Of Law, Deborah W. Denno, Ryan Surujnath

Fordham Law Review

This Foreword provides an overview of Rise of the Machines: Artificial Intelligence, Robotics, and the Reprogramming of Law, a symposium hosted by the Fordham Law Review and cosponsored by the Fordham Law School’s Neuroscience and Law Center.

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Hollywood Loving, Kevin Noble Maillard May 2018

Hollywood Loving, Kevin Noble Maillard

Fordham Law Review

In this Essay, I highlight how nongovernmental entities establish political, moral, and sexual standards through visual media, which powerfully underscores and expresses human behavior. Through the Motion Picture Production Code (the “Hays Code”) and the Code of Practices for Television Broadcasters (the “TV Code”), Americans viewed entertainment as a pre-mediated, engineered world that existed outside of claims of censorship and propaganda. This Essay critically examines the role of film and television as persuasive and integral legal actors and it considers how these sectors operate to maintain, and sometimes challenge, racial order.

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Prejudice, Constitutional Moral Progress, And Being “On The Right Side Of History”: Reflections On Loving V. Virginia At Fifty, Linda C. Mcclain May 2018

Prejudice, Constitutional Moral Progress, And Being “On The Right Side Of History”: Reflections On Loving V. Virginia At Fifty, Linda C. Mcclain

Fordham Law Review

Looking back at the record in Loving, this Article shows the role played by narratives of constitutional moral progress, in which the Lovings and their amici indicted Virginia’s antimiscegenation law as an “odious” relic of slavery and a present-day reflection of racial prejudice. In response, Virginia sought to distance such laws from prejudice and white supremacy by appealing to “the most recent” social science that identified problems posed by “intermarriage,” particularly for children. Such work also rejected the idea that intermarriage was a path toward progress and freedom from prejudice. This Article concludes by briefly examining the appeal to Loving …

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Residential Segregation And Interracial Marriages, Rose Cuison Villazor May 2018

Residential Segregation And Interracial Marriages, Rose Cuison Villazor

Fordham Law Review

Part I highlights recent data on racially segregated neighborhoods and low rates of interracial marriage to underscore what Russell Robinson refers to as “structural constraints” that shape and limit romantic preferences. As I discuss in this Part, many cities today continue to be racially segregated. Notably, current data demonstrate a strong correlation between low rates of interracial marriage and racially segregated neighborhoods in those cities. By contrast, contemporary studies indicate that in cities where communities are more racially and economically integrated, the rate of interracial marriages is high. Part II argues that the association between high rates of segregation and …

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“I Am Undocumented And A New Yorker”: Affirmative City Citizenship And New York City’S Idnyc Program, Amy C. Torres Oct 2017

“I Am Undocumented And A New Yorker”: Affirmative City Citizenship And New York City’S Idnyc Program, Amy C. Torres

Fordham Law Review

The power to confer legal citizenship status is possessed solely by the federal government. Yet the courts and legal theorists have demonstrated that citizenship encompasses factors beyond legal status, including rights, inclusion, and political participation. As a result, even legal citizens can face barriers to citizenship, broadly understood, due to factors including their race, class, gender, or disability. Given this multidimensionality, the city, as the place where residents carry out the tasks of their daily lives, is a critical space for promoting elements of citizenship. This Note argues that recent city municipal identification-card programs have created a new form of …

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Rethinking The Foundational Critiques Of Lawyers In Social Movements, Scott L. Cummings Apr 2017

Rethinking The Foundational Critiques Of Lawyers In Social Movements, Scott L. Cummings

Fordham Law Review

This Article argues that the current moment invites reconsideration of these critiques. The rise of new social movements—from marriage equality to Black Lives Matter to the recent mobilization against President Trump’s immigration order—and the response of a new generation of movement lawyers eager to lend support has refocused attention on the appropriate role that lawyers should play in advancing progressive social change. Rather than fall back on familiar critical themes, the time is ripe for developing a new affirmative vision.

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Due Process Without Judicial Process?: Antiadversarialism In American Legal Culture, Norman W. Spaulding Apr 2017

Due Process Without Judicial Process?: Antiadversarialism In American Legal Culture, Norman W. Spaulding

Fordham Law Review

For decades now, American scholars of procedure and legal ethics have remarked upon the death of the jury trial. If jury trial is not in fact dead as an institution for the resolution of disputes, it is certainly “vanishing.” Even in complex litigation, courts tend to facilitate nonadjudicative resolutions—providing sites for aggregation, selection of counsel, fact gathering, and finality (via issue and claim preclusion)—rather than trial on the merits in any conventional sense of the term. In some high-stakes criminal cases and a fraction of civil cases, jury trial will surely continue well into the twenty-first century. Wall-to-wall media coverage …

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Demosprudence On Trial: Ethics For Movement Lawyers, In Ferguson And Beyond, Justin Hansford Apr 2017

Demosprudence On Trial: Ethics For Movement Lawyers, In Ferguson And Beyond, Justin Hansford

Fordham Law Review

This Article suggests that although civil litigation remains a viable tool, the vanishing trial has limited impact on movement lawyers because we can use the law to promote social change outside of the courtroom. The demosprudence framework helps us to understand this process. By applying this framework to the movement lawyering context, movement lawyers can adapt to the void in voice created by the vanishing trial in civil litigation and still help the movement.

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Civil Trials: A Film Illusion?, Taunya L. Banks Apr 2017

Civil Trials: A Film Illusion?, Taunya L. Banks

Fordham Law Review

As Judge Elrod’s comments suggest, the most well-known courtroom film classics, like 12 Angry Men, Anatomy of a Murder, or Witness for the Prosecution are about criminal trials. This fact may be unimportant because the distinction between criminal and civil trial films often is lost on the general public. Unanswered is whether the distinction between criminal and civil trials is important when determining the impact of the decline in real-life civil trials on American popular culture and courtroom films in particular. This question is the focus of this Article.

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Rethinking The Foundational Critiques Of Lawyers In Social Movements, Scott L. Cummings Apr 2017

Rethinking The Foundational Critiques Of Lawyers In Social Movements, Scott L. Cummings

Fordham Law Review

This Article argues that the current moment invites reconsideration of these critiques. The rise of new social movements—from marriage equality to Black Lives Matter to the recent mobilization against President Trump’s immigration order—and the response of a new generation of movement lawyers eager to lend support has refocused attention on the appropriate role that lawyers should play in advancing progressive social change. Rather than fall back on familiar critical themes, the time is ripe for developing a new affirmative vision.

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Demosprudence On Trial: Ethics For Movement Lawyers, In Ferguson And Beyond, Justin Hansford Apr 2017

Demosprudence On Trial: Ethics For Movement Lawyers, In Ferguson And Beyond, Justin Hansford

Fordham Law Review

This Article suggests that although civil litigation remains a viable tool, the vanishing trial has limited impact on movement lawyers because we can use the law to promote social change outside of the courtroom. The demosprudence framework helps us to understand this process. By applying this framework to the movement lawyering context, movement lawyers can adapt to the void in voice created by the vanishing trial in civil litigation and still help the movement.

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Civil Trials: A Film Illusion?, Taunya L. Banks Apr 2017

Civil Trials: A Film Illusion?, Taunya L. Banks

Fordham Law Review

As Judge Elrod’s comments suggest, the most well-known courtroom film classics, like 12 Angry Men, Anatomy of a Murder, or Witness for the Prosecution are about criminal trials. This fact may be unimportant because the distinction between criminal and civil trial films often is lost on the general public. Unanswered is whether the distinction between criminal and civil trials is important when determining the impact of the decline in real-life civil trials on American popular culture and courtroom films in particular. This question is the focus of this Article.

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Due Process Without Judicial Process?: Antiadversarialism In American Legal Culture, Norman W. Spaulding Apr 2017

Due Process Without Judicial Process?: Antiadversarialism In American Legal Culture, Norman W. Spaulding

Fordham Law Review

For decades now, American scholars of procedure and legal ethics have remarked upon the death of the jury trial. If jury trial is not in fact dead as an institution for the resolution of disputes, it is certainly “vanishing.” Even in complex litigation, courts tend to facilitate nonadjudicative resolutions—providing sites for aggregation, selection of counsel, fact gathering, and finality (via issue and claim preclusion)—rather than trial on the merits in any conventional sense of the term. In some high-stakes criminal cases and a fraction of civil cases, jury trial will surely continue well into the twenty-first century. Wall-to-wall media coverage …

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A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan S. Fortney Jan 2017

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan S. Fortney

Fordham Law Review

Using this broad connotation of justice, this Article questions whether many victims of legal malpractice are denied access to justice. In writing about the regulatory function of legal malpractice as a tort, Professor John Leubsdorf argues that legal malpractice relates to three important functions of the law of lawyering: “[D]elineating the duties of lawyers, creating appropriate incentives and disincentives for lawyers in their dealings with clients and others, and providing access to remedies for those injured by improper lawyer behavior.” Arguably, persons injured by lawyer misconduct are denied access to justice if our civil liability system does not provide them …

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A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan S. Fortney Jan 2017

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan S. Fortney

Fordham Law Review

Using this broad connotation of justice, this Article questions whether many victims of legal malpractice are denied access to justice. In writing about the regulatory function of legal malpractice as a tort, Professor John Leubsdorf argues that legal malpractice relates to three important functions of the law of lawyering: “[D]elineating the duties of lawyers, creating appropriate incentives and disincentives for lawyers in their dealings with clients and others, and providing access to remedies for those injured by improper lawyer behavior.” Arguably, persons injured by lawyer misconduct are denied access to justice if our civil liability system does not provide them …

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Election Law And The Presidency: An Introduction And Overview, Jerry H. Goldfeder Dec 2016

Election Law And The Presidency: An Introduction And Overview, Jerry H. Goldfeder

Fordham Law Review

Americans now fully appreciate that presidential candidates are vying for a majority of the Electoral College votes, rather than the individual votes of constituents. Modern campaigns are organized around this goal, and commentators are focused on this reality. As a result, there has been an increased cry to reform the electoral process. After all, if every other public official in the land is elected by receiving more votes than their competitors, why should the President of the United States be elected in this apparently undemocratic fashion? The process appears even more unusual in that electors are chosen pursuant to state …

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Third-Party And Independent Presidential Candidates: The Need For A Runoff Mechanism, Edward B. Foley Dec 2016

Third-Party And Independent Presidential Candidates: The Need For A Runoff Mechanism, Edward B. Foley

Fordham Law Review

Consider what 2016 might have looked like if this better electoral system had been in place. Bloomberg then could have entered the race without risking being a spoiler. In a three-way race—Bloomberg, Clinton, and Trump—Bloomberg might have fizzled out, leaving a two-way race between Clinton and Trump. Since that is essentially how the election ended up anyway, the country would have been no worse off for having had a chance to consider Bloomberg as an alternative. But suppose, however, with Trump’s candidacy spinning out of control in a series of unacceptable comments (as it appeared to do in early August),11 …

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Ramshackle Federalism: America’S Archaic And Dysfunctional Presidential Election System, Anthony J. Gaughan Dec 2016

Ramshackle Federalism: America’S Archaic And Dysfunctional Presidential Election System, Anthony J. Gaughan

Fordham Law Review

Accordingly, this Article proposes five sensible and achievable reforms to modernize the presidential election system. Each requires Congress and the federal government to play a much more proactive role in the presidential election system. The Constitution may be founded on federalist principles, but excessive decentralization is not serving us well in presidential election administration. In an age of tumultuous and accelerating change, the presidential election system must be modernized to meet the needs of twenty-first century America.

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Now Is The Time!: Challenging Resegregation And Displacement In The Age Of Hypergentrification, Bethany Y. Li Dec 2016

Now Is The Time!: Challenging Resegregation And Displacement In The Age Of Hypergentrification, Bethany Y. Li

Fordham Law Review

Gentrification is reaching a tipping point of resegregating urban space in global cities like New York and San Francisco, often spurred by seemingly neutral government policies. The displacement resulting from gentrification forces low-income people from their homes into areas of concentrated poverty. Low-income communities consequently lose space, place, social capital, and cultural wealth that residents and small businesses have spent decades building up. This Article argues that communities at this tipping point must integrate litigation strategies directly aimed at stemming the adverse impacts of gentrification. Community organizing is integral to antidisplacement efforts, but litigation—and its injunctive powers—should play a larger …

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Reforming The Contested Convention: Rethinking The Presidential Nomination Process, Michael T. Morley Dec 2016

Reforming The Contested Convention: Rethinking The Presidential Nomination Process, Michael T. Morley

Fordham Law Review

The presidential nomination process could be substantially improved through a few minor tweaks that would reduce unnecessary uncertainty, bolster its democratic underpinnings, and improve the connections among its various components. First, certain fundamental rules governing national conventions should be determined well in advance of the presidential nominating process, before any primaries or caucuses are held or delegates selected, and not be subject to change or suspension at the convention itself. Second, parties should enhance the democratic moorings of their national conventions by requiring presidential candidates to win a greater number of presidential preference votes to be placed into nomination. Third, …

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Rethinking Presidential Eligibility, Eugene D. Mazo Dec 2016

Rethinking Presidential Eligibility, Eugene D. Mazo

Fordham Law Review

Many aspiring American Presidents have had their candidacies challenged for failing to meet the Constitution’s eligibility requirements. Although none of these challenges have ever been successful, they have sapped campaigns of valuable resources and posed a threat to several ambitious men. This Article examines several notable presidential eligibility challenges and explains why they have often been unsuccessful. The literature on presidential eligibility traditionally has focused on the Eligibility Clause, which enumerates the age, residency, and citizenship requirements that a President must satisfy before taking office. By contrast, very little of it examines how a challenge to one’s candidacy impacts a …

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“Natural Born” Disputes In The 2016 Presidential Election, Derek T. Muller Dec 2016

“Natural Born” Disputes In The 2016 Presidential Election, Derek T. Muller

Fordham Law Review

The 2016 presidential election brought forth new disputes concerning the definition of “natural born Citizen.” The most significant challenges surrounded the eligibility of Senator Ted Cruz, born in Canada to a Cuban father and an American mother. Unlike challenges to President Barack Obama’s eligibility, which largely turned on conspiratorial facts, challenges to Cruz’s eligibility turned principally on the law and garnered more serious attention concerning a somewhat cryptic constitutional clause. Understandably, much attention focused on the definition of “natural born citizen” and whether candidates like Cruz qualified. Administrative challenges and litigation in court revealed deficiencies in the procedures for handling …

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Does The Constitution Provide More Ballot Access Protection For Presidential Elections Than For U.S. House Elections?, Richard Winger Dec 2016

Does The Constitution Provide More Ballot Access Protection For Presidential Elections Than For U.S. House Elections?, Richard Winger

Fordham Law Review

Both the U.S. Constitution and The Federalist Papers suggest that voters ought to have more freedom to vote for the candidate of their choice for the U.S. House of Representatives than they do for the President or the U.S. Senate. Yet, strangely, for the last thirty-three years, the U.S. Supreme Court and lower courts have ruled that the Constitution gives voters more freedom to vote for the candidate of their choice in presidential elections than in congressional elections. Also, state legislatures, which have been writing ballot access laws since 1888, have passed laws that make it easier for minor-party and …

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Time To End Presidential Caucuses, Sean J. Wright Dec 2016

Time To End Presidential Caucuses, Sean J. Wright

Fordham Law Review

Following the 2016 election cycle, there will be a great opportunity to implement reform. A major change should be to move away from presidential caucuses. They persist with, in the words of John Oliver, “complex, opaque rules.” These complex rules, which include participating in person for over an hour, negatively impacts participation in the electoral process. For example, in 2012, “participation rates in the Republican Party’s caucuses averaged 3 percent.” 3 percent. Compellingly, PolitiFact has observed that “[c]aucuses and delegate math can be incredibly confusing, and the arcane party structures don’t reflect how most people assume presidential selection works.” Yet, …

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Inside Lawyers: Friends Or Gatekeepers?, Sung Hui Kim Apr 2016

Inside Lawyers: Friends Or Gatekeepers?, Sung Hui Kim

Fordham Law Review

Part I of this Article sets the stage by contrasting two alternative proposals to reform the inside lawyer's role—my reform and Hamermesh's counterreform. Part II discusses the primary empirical disagreements between the two approaches. Part III interrogates the propriety and the utility of invoking the “lawyer as friend” analogy as a model to guide inside counsel's relationships with managers.

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