Legal Remedies Commons^™

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 …

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 …

The Revival Of Section 5: A Return To The Ftc’S Roots In A Time Of Democratic Crisis, Shaoul Sussman

Fordham Law Review

No abstract provided.

At The Crossroads: Private Litigation And The Fate Of Sections 2 And 208 Of The Voting Rights Act, Aviva D. Kohn

Fordham Law Review

For six decades, private plaintiffs have stood at the center of Voting Rights Act (VRA) enforcement, bringing an overwhelming majority of the suits challenging discriminatory voting practices nationwide. Most federal courts have allowed private plaintiffs to sue for relief under the VRA. However, in 2023 and 2025, the U.S. Court of Appeals for the Eighth Circuit broke from this pattern, holding that neither section 2 nor section 208 of the VRA permits private litigants to sue for relief. The Eighth Circuit’s decisions rest on a narrow reading of congressional intent, a rigid application of Alexander v. Sandovaland Gonzaga University …

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 …

Opening Remarks, Gideon Taylor

Fordham Law Review

No abstract provided.

When The Taxpayers Are Not Innocent: The Need For Punitive Damages Against Municipalities Under The Fair Housing Act, Charlotte Saltzman

Fordham Law Review

Combatting housing discrimination by municipalities is a core function of the Fair Housing Act (FHA). Courts disagree, however, as to whether punitive damages can be awarded against municipal defendants. The purpose of this Note is twofold. First, it compares the Second Circuit’s recent decision in Gilead Community Services, Inc. v. Town of Cromwell, which held that punitive damages were appropriate against the Town of Cromwell, with the reasoning of district courts that came to the opposite conclusion in reliance on § 1983 precedent. Second, notwithstanding the sufficiency of the statutory analysis, it evaluates the public policy concerns of awarding …

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 …

Fixing The Fix: The Case For Unifying The Remedial Framework Of Apa Rulemaking Challenges, Dea Devlin

Fordham Law Review

Vacatur is the default remedy for successful administrative rulemaking challenges brought under the Administrative Procedure Act (APA). Yet its broad and sweeping effects raise critical questions regarding its appropriateness as a one-size-fits-all remedy. Unlike injunctive relief, which is subject to a rigorous heightened standard, and remand without vacatur, which has a comparable standard of its own, vacatur is routinely awarded without similar scrutiny, leading to inconsistencies in the judicial application of remedies in APA challenges.

Although vacatur can provide a plaintiff with relief, its award conflicts with underlying principles of equity and proportionality. In rulemaking challenges, vacatur can create regulatory …

When Prenatal Care Becomes A Crime, Casey Hunter

Fordham Law Review

For decades, pregnant women have increasingly faced criminalization for their actions and conduct during pregnancy, with Alabama emerging as a focal point due to its aggressive use of section 26-15-3.2: Chemical Endangerment of Exposing a Child to an Environment in Which Controlled Substances Are Produced or Distributed. Originally intended to protect children from the dangers of methamphetamine labs, this law has been reinterpreted to prosecute pregnant women who test positive for controlled substances. Central to these prosecutions are positive drug tests obtained from prenatal health records, causing many women to avoid prenatal care for fear of legal consequences.

This Note …

Pitching For Reform: Cangrejeros' Push To Level The Legal Playing Field By Challenging Baseball's Antitrust Exemption, Justin P. Chaljub

Fordham Journal of Corporate & Financial Law

For over one-hundred years, professional baseball has enjoyed an antitrust exemption unique among American major sports leagues, stemming from Supreme Court decisions in Federal Baseball and its progeny. This exemption has significantly influenced the evolution and structure of Major League Baseball (MLB). Despite extensive criticism and challenges for judicial and legislative reform, the exemption persists today.

However, new efforts have emerged to comprehensively disrupt this framework. In 2023, Nostalgic Partners was brought and structured to reach the U.S. Supreme Court. Plaintiffs anticipated they would lose at the lower court levels and garnered widespread support for the Court to grant a …

The Exit Theory Of Judicial Appraisal, William J. Carney, Keith Sharfman

Fordham Journal of Corporate & Financial Law

For many years, we and other commentators have observed the problem with allowing judges wide discretion to fashion appraisal awards to dissenting shareholders based on widely divergent, expert valuation evidence submitted by the litigating parties. The results of this discretionary approach to valuation have been to make appraisal litigation less predictable and therefore more costly and likely. While this has been beneficial to professionals who profit from corporate valuation litigation, it has been harmful to shareholders, making deals costlier and less likely to be completed.

In this Article, we propose to end the problem of discretionary judicial valuation by tracing …

Harsh Creditor Remedies And The Role Of The Redeemer, Christopher D. Hampson

Fordham Law Review

The concept of the judgment-proof or collection-proof debtor is fundamental to our understanding of civil law and of what distinguishes it from criminal law. But when civil creditors can threaten unduly harsh or cruel debt collection measures (whether legally or not), they extend their reach into the pockets of those whom this Article calls “redeemers,” third parties with a familial or quasi-familial relationship to civil debtors who have reason to pay on their behalf. This Article examines four such measures—imprisonment, homelessness, destitution, and deportation—remedies that sound like they come from another time and place, but which are threatened by some …

Pain Mismanagement: The Opioid Problem In The Nfl, Dylan Mcgowan

Fordham Intellectual Property, Media and Entertainment Law Journal

In 2014 and 2015, two groups of former National Football League (“NFL”) players brought lawsuits against the NFL for its handling and distribution of opioids and other dangerous painkillers. While neither lawsuit has succeeded in its goal of addressing the painkiller problem, they brought to light the broken pain management culture of the NFL and the health risks these medications pose to both active and former players. Addressing the opioid problem should be a top priority for the NFL and the National Football League Players’ Association (“NFLPA”). This Note examines the pain management crisis in the NFL, and analyzes the …

Regulating Prosecutors’ Courtroom Misconduct, Bruce A. Green

Faculty Scholarship

Trial prosecutors’ visible misbehavior, such as improper questioning of witnesses and improper jury arguments, may not seem momentous. Sometimes, the improprieties are simply the product of poor training or overenthusiasm. In many cases, they pass unremarked. As the Chicago Eight trial illustrated, trial prosecutors’ improprieties may also be overshadowed by the excesses of other trial participants—the witnesses, the defendants, the defense lawyers, or even the trial judge. And when noticed, prosecutors’ trial misbehavior can ordinarily be remedied, and then restrained, by a capable trial judge. It is little wonder that disciplinary authorities, having bigger fish to fry, are virtually indifferent …

Patent Clutter, Janet Freilich

Faculty Scholarship

Patent claims are supposed to clearly and succinctly describe the patented invention, and only the patented invention. This Article hypothesizes that a substantial amount of language in patent claims is in fact not about the core invention, which may contribute to well-documented problems with patent claims. I analyze the claims of 40,000 patents and applications, and document the proliferation of “clutter”—language in patent claims that is not about the invention. Although claims are supposed to be exclusively about the invention, clutter appears across industries and makes up approximately 25% of claim language. Patent clutter may contribute several major problems in …

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 …

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 …

Saving Charitable Settlements, Christine P. Bartholomew

Fordham Law Review

    This Article defies the conventional wisdom that all charitable distributions from a class action settlement fund are types of cy pres. Instead, it proposes a radical delineation between “cy pres remainders” (meaning settlement funds left over after individual monetary distributions) and “charitable settlements” (meaning money initially distributed to charities as part of class action settlements). While both have cy pres roots, these two settlement structures have been conflated, jeopardizing the potential utility of charitable settlements. After articulating more precise nomenclature for these distinct distribution methods, this Article justifies why we must preserve charitable settlements. This defense is particularly …

The Circuit Split On Title Vii Personal Supervisor Liability, Ming K. Ayvas

Fordham Urban Law Journal

This Note examines the competing rationales for and against individual supervisor liability under Title VII, and concludes that supervisor liability is the better reasoned view. It explains how courts construe the term "employer" to either allow or disallow direct supervisor liability. It discusses the rationales for and against individual supervisor liability. It concludes that individual supervisor liability is the better reasoned view, on construction, policy and comparative grounds, and proposes joint and several liability for supervisors and employers in all Title VII cases, which will clarify when respondeat superior liability is appropriate under Title VII. This proposal will deter Title …

Measuring Damages In Survival Actions For Tortious Death , Michael M. Martin

Faculty Scholarship

Survival statutes have been adopted to avoid the effect of common law rules preventing claims for the tortious death of a human being. These statutes give the personal representative such causes of action on behalf of the decedent's estate as the decedent would have had were he still alive. The question the statutes do not answer, however, is the effect of the death of a party on the measure of damages. The Washington Supreme Court's decision in Warner v. McCaughan illustrates the problem. Warner arose out of the death of a twenty-one year old college student. Alleging that the death …