Supreme Court of the United States Commons^™

In Re Firstenergy Corp. Securities Litigation: Where Macquarie Meets Affiliated Ute, Elizabeth Cosenza, Amanda M. Payne

Fordham Journal of Corporate & Financial Law

The central question this Article seeks to address is whether there is any world in which the Affiliated Ute presumption can still apply to cases under Rule 10b-5(b) after the Supreme Court’s decision in Macquarie? Put differently, if only half-truths and affirmative misrepresentations remain actionable under Rule 10b-5(b), is the Basic presumption the only pathway left for securities plaintiffs? The U.S. Court of Appeals for the Sixth Circuit will likely be the first court to address this issue in In re FirstEnergy Corp. Securities Litigation. The case will test the availability of the Affiliated Ute presumption post-Macquarie in cases based …

Cryptocurrencies, Nfts, And The Expanding Definition Of "Investment Contract": Has The Sec Already Torpedoed The Howey Test?, David B. Guenther

Fordham Journal of Corporate & Financial Law

The U.S. Supreme Court in SEC v. W.J. Howey Co. in 1946 famously defined the term “investment contract”—the catch-all term in the definition of “security” in the Securities Act of 1933—to mean (1) an investment of money, (2) in a common enterprise, (3) with an expectation of profits solely from the efforts of others. While the Howey test has endured as the standard definition of an investment contract, the Howey Court did not define the term “common enterprise,” and for more than fifty years, Howey’s common enterprise prong has eroded. Since 2017, the Securities and Exchange Commission has further eroded …

The Intended And Resulting Interpretations Of Article 9 Considering The Rise Of Textualism, Cat Gassiot

Fordham Journal of Corporate & Financial Law

This Article is the first to examine the interpretive choices of judges for Article 9 of the UCC. Textualism has become one of the predominant methods of interpretation for courts across the state and federal systems in the United States. While there is a great deal of academic work on what this means for traditional statutes, there is limited discussion of the interpretive effects of textualism on the UCC, much less Article 9, which governs secured transactions. The continuity and uniformity of secured transactions jurisprudence is fundamental as it underlies bankruptcy proceedings, debt and credit financing, and commercial transactions more …

Scienter Potentia Est: The Case For The Presumption Of Use Standard In Insider Trading, Audrey Nelson

Fordham Journal of Corporate & Financial Law

Is it possible to accidentally insider trade? The Supreme Court has held that scienter is a necessary element of all § 10(b) and Rule 10b-5 actions, but the federal appeals courts are split on how the scienter requirement applies to insider trading cases. In a non-insider- trading § 10(b) case, the Supreme Court stated that § 10(b) scienter requires intentional misconduct. Although the Supreme Court has not heard a case specifically about the scienter element in the context of insider trading, those who support a use requirement claim that the § 10(b) scienter element requires the plaintiff to show that …

When Is Free Speech “Beyond” The Constitution?, Abner S. Greene

Faculty Scholarship

The constitution of a nation without a state action doctrine might limit private restriction or compulsion of speech just as it limits the state. In such a nation, “free speech beyond the constitution” might not be a particularly meaningful concept. In the United States, however, the First Amendment’s free speech clause limits only what the federal, state, and local governments may do. As a nonconstitutional policy matter, it might or might not be a good idea for the government to impose First Amendment- like restrictions on private actors or for private actors to voluntarily impose First Amendment-like restrictions on themselves. …

Per Se Non-Takings, Nestor M. Davidson, Timothy M. Mulvaney

Faculty Scholarship

In the discourse on the Takings Clause, disputes over methodology have long formed a kind of proxy war, with per se rules ordinarily underwriting strong constitutional protection for property rights and ad hoc standards more often vindicating public interests. At a moment when the Supreme Court is increasingly embracing the rules end of this rules–standards spectrum, this Article offers a novel perspective to challenge the conventional link between categorical reasoning and classical liberal conceptions of constitutional property.

To do so, the Article excavates a vast body of law denying takings liability through rule-like reasoning, an approach the Article calls per …

From Poll Tests To The Purcell Doctrine: Merrill V. Milligan And The Precarious Preservation Of Voting Rights, Charis Franklin

Fordham Law Review

The Voting Rights Act of 1965 (“the Voting Rights Act”) is one of the primary vehicles by which plaintiffs receive injunctive relief ahead of elections. More specifically, § 2 of the Voting Rights Act allows plaintiffs to challenge gerrymandered maps before they are used in contentious elections. However, Justice Kavanaugh’s reframing of the Purcell doctrine in Merrill v. Milligan weakened § 2’s ability to interrupt the use of these maps. This Note discusses how Justice Kavanaugh’s interpretation of the Purcell doctrine recenters the doctrine on bureaucratic inconvenience rather than voter enfranchisement, restricting voters’ access to relief prior to elections. Furthermore, …

The First Religious Charter School: A Viable Option For School Choice Or Prohibited Under The State Action Doctrine And Religion Clauses?, Julia Clementi

Fordham Law Review

After the First Amendment’s Religion Clauses were ratified, church and state became increasingly divorced from one another, as practicing religion became a private activity on which the government could not encroach. This separation, however, was slow, and much credit is owed to the U.S. Supreme Court for its efforts to disentangle the two. One particular area in which the Supreme Court exercised its influence was the U.S. education system; the Court invoked the Religion Clauses and neutrality principles to rid public schools of religious influences and ensure that private religious schools could partake in government programs that were available to …

Ending Exemption 5 Expansion: Toward A Narrower Interpretation Of Foia’S Exemption For Inter- And Intra-Agency Memorandums, Ryan W. Miller

Fordham Law Review

The Freedom of Information Act (FOIA) creates a judicially enforceable right to access almost any record that a federal agency creates or obtains. Its crafters aimed to strike a careful balance in promoting disclosure of government records to increase transparency while still protecting the confidentiality of certain information. Although any person can request an agency record, FOIA’s nine exemptions allow agencies to withhold records if certain conditions are met. 5 U.S.C. § 552(b)(5) permits agencies to withhold “inter-agency or intra-agency memorandums or letters” that would normally be privileged in civil discovery. Through this exemption, Congress sought to prevent FOIA from …

The Collateral Fallout From The Quest For A Unitary Executive, Harold J. Krent

Fordham Law Review

To bolster a strong “Unitary Executive,” the Roberts Court has held that Congress can neither shield a single head of an administrative agency nor an inferior officer in an independent agency from removal at will. With respect to appointments, the Roberts Court has held that adjudicative officers in many executive agencies must now be appointed either by the President or a superior officer under the President’s supervision. As a result, dissenting Justices and academics have accused the Roberts Court of expanding Article II beyond both the constitutional text—which seemingly grants Congress the discretion to structure administrative agencies as it deems …

Police Officers, Policy, And Personnel Files: Prosecutorial Disclosure Obligations Above And Beyond Brady, Lauren Giles

Fordham Law Review

Police officers play a significant role in the criminal trial process and are unlike any other witness who will take the stand. They are trained to testify, and jurors find them more credible than other witnesses, even though officers may have more incentive to lie than the ordinary witness. Despite the role of police officers in criminal proceedings, state statutes say virtually nothing about evidence used to impeach police officers, often contained in the officer’s personnel file. Worse still, the standard for disclosing information in an officer’s personnel file varies among and within states, resulting in inconsistent Brady disclosures. This …

Americans For Prosperity Foundation V. Bonta: Protecting Free Speech And Its Implications For Campaign Finance Disclosures, Sara Lindsay Neier

Fordham Law Voting Rights and Democracy Forum

In 2021, the United States Supreme Court in Americans for Prosperity Foundation v. Bonta considered the anonymous speech rights of charitable donors against the California Attorney General’s interest in preventing wrongdoing by charitable organizations. The Court applied exacting scrutiny, a standard traditionally applied to campaign finance disclosure laws, determining that California’s requirement was facially invalid as a violation of associational rights. Bonta did not concern campaign finance, making this application of exacting scrutiny novel. This Article considers the open questions raised by Bonta regarding how exacting scrutiny should be applied and what it means for the future of campaign finance …

Discriminatory Intent Claims Under Section 2 Of The Voting Rights Act, Amandeep S. Grewal

Fordham Law Voting Rights and Democracy Forum

This Article addresses a new controversy over whether Section 2 of the Voting Rights Act prohibits laws that exhibit “only” discriminatory intent, in the absence of discriminatory results. Lower courts have long embraced an intent approach for Section 2. And the Department of Justice has rested its entire ongoing case against Georgia’s controversial voting bill on an intent approach.

However, this Article shows that the Supreme Court’s decision in Brnovich v. DNC effectively rejects the intent approach to Section 2. In April 2023, the Eleventh Circuit reversed its prior cases and now rejects an intent theory. This puts in peril …

Anything But Prideful: Free Speech And Conversion Therapy Bans, State-Federal Action Plans, And Rooting Out Medical Fraud, Jordan Hutt

Fordham Law Review

At a time when conversion therapy might seem archaic to many people, this practice remains prevalent across the United States and finds legal support in the halls of federal courthouses. In 2020, the U.S. Court of Appeals for the Eleventh Circuit, in Otto v. City of Boca Raton, held that two ordinances banning conversion therapy in Boca Raton and Palm Beach violated First Amendment free speech rights. Specifically, Otto held that conversion therapy bans were content-based restrictions subject to strict scrutiny. Conversely, the U.S. Courts of Appeals for the Third and Ninth Circuits’ prior decisions upheld conversion therapy bans …

Presidential Election Disruptions: Balancing The Rule Of Law And Emergency Response, Jason D'Andrea, Sonia Montejano, Matthew Vaughan

Fordham Law Voting Rights and Democracy Forum

Unexpected disruptions, such as natural disasters and terrorist attacks, could interfere with presidential elections. In this report, the Fordham Law School Rule of Law Clinic advances recommendations for how states should implement the federal law that allows them to extend the time for voting in response to catastrophic events. States should authorize local and state-level officials to trigger extensions, while providing for expedited judicial review of those decisions, whether to grant or deny additional voting time. By dispersing decision-making authority and ensuring prompt judicial oversight, these reforms aim to protect voters’ ability to cast ballots and to guard against the …

Candidates Of Their Choice? Paradoxical Impact Of The Voting Rights Act In Virginia, Mark E. Rush

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Title I Of The Civil Rights Act In Contemporary Voting Rights Litigation, Helen L. Brewer

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

The New Laboratories Of Democracy, Gerald S. Dickinson

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

A Government Of Laws And Not Of Men: Why Justice Brandeis Was Right To Assume Congress Can Restrain The President's Removal Power, Danielle Rosenblum

Fordham Law Voting Rights and Democracy Forum

Since the Founding, the extent of the president’s power to remove executive officials from office remains unsettled. While the Appointments Clause in Article II, Section 2 empowers Congress to participate in the hiring of executive officials, the United States Constitution’s text is silent on whether Congress can limit the president’s ability to fire such employees. The debate on the proper scope of the president’s removal power is significant because it serves as a proxy for a larger constitutional question: whether constraints on presidential power advance or sit in tension with democracy. This Article argues that Justice Brandeis was right to …

A Constitutional Right To Early Voting, David Schultz

Fordham Law Voting Rights and Democracy Forum

Voting is a cost-benefit decision. Individuals are more likely to vote if the benefits of doing so outweigh the disadvantages. With early voting laws eased due to the COVID-19 pandemic, the 2020 election demonstrated that turnout increases when elected officials reduce voting costs. Despite all the benefits of early voting, there is no constitutional right, and it remains a privilege that state legislatures can revoke at will.

Since the 2020 election, state legislatures have proposed—and enacted—hundreds of bills to change voting rules. But with the intense partisan disagreement over voting, coupled with political polarization reaching an apex, these acts restricting …

The Looming Threat Of The Independent State Legislature Theory And The Erosion Of The Voting Rights Act: It Is Time To Enshrine The Right To Vote, Javon Davis

Fordham Law Voting Rights and Democracy Forum

Over the last decade, the emergence of an imperial United States Supreme Court—currently armed with the largest conservative majority since the 1930s—has radically reshaped federal voting rights protections. During the litigation surrounding the 2020 election, however, an obscure threat reemerged. The fringe independent state legislature (“ISL”) theory is a potentially revolutionary constitutional theory that could lead to widespread voter disenfranchisement. Proponents of the theory, including Supreme Court Justices, posit, in part, that the United States Constitution vests state legislatures with plenary power to construct rules for federal elections—unbound by state constitutions and free from state judicial review.

Once a refuge …

Moore V. Harper And The Consequential Effects Of The Independent State Legislature Theory, Chase Cooper

Fordham Law Voting Rights and Democracy Forum

In December 2022, the United States Supreme Court heard oral arguments in Moore v. Harper. The case addresses whether the North Carolina Supreme Court possesses the authority to strike down a redistricting map drawn by the state legislature. Petitioners contend that the state legislature has no such authority under the United States Constitution, citing a novel interpretation of the Elections Clause known as the “independent state legislature” (“ISL”) theory. The ISL theory is not a unified theory, but rather a constellation of related doctrinal positions that revolve around a core precept: ordinary governing principles by which state courts review …

Rucho In The States: Districting Cases And The Nature Of State Judicial Power, Chad M. Oldfather

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

First Amendment Speech Protections In A Post-Dobbs World: Providing Instruction On Instructional Speech, Samantha Mitchell

Fordham Law Review

In its June 2022 opinion, Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, thus revoking the constitutional right to abortion. As states continue to pass laws outlawing abortion to varying degrees, not only has Dobbs led to uncertainty for medical professionals and those who might want to seek an abortion, but it has also prompted questions for internet users across the world. May an organization or an individual post instructions on the internet regarding how to obtain an abortion if a resident of a …

Rationalizing Relatedness: Understanding Personal Jurisdiction's Relatedness Prong In The Wake Of Bristol-Myers Squibb And Ford Motor Co., Anthony Petrosino

Fordham Law Review

Ford Motor Co. v. Montana Eighth Judicial District Court marked a watershed in the U.S. Supreme Court’s personal jurisdiction jurisprudence. There, the Court came to a reasonable conclusion: Ford, a multinational conglomerate carrying on extensive business throughout the United States, was subject to personal jurisdiction in states where it maintained substantial contacts that were related to the injuries that prompted the suits. This was so, even though the business it conducted in those states was not the direct cause of the suit. While justifying that conclusion, however, the Court drastically altered the personal jurisdiction inquiry’s relatedness prong, which concerns whether …

Let's Get Real: Weak Artificial Intelligence Has Free Speech Rights, James B. Garvey

Fordham Law Review

The right to free speech is a strongly protected constitutional right under the First Amendment to the U.S. Constitution. In 2010, the U.S. Supreme Court significantly expanded free speech protections for corporations in Citizens United v. FEC. This case prompted the question: could other nonhuman actors also be eligible for free speech protection under the First Amendment? This inquiry is no longer a mere intellectual exercise: sophisticated artificial intelligence (AI) may soon be capable of producing speech. As such, there are novel and complex questions surrounding the application of the First Amendment to AI. Some commentators argue that AI …

Depoliticizing The Supreme Court Through Term Limits: A Worthwhile Reform Effort, Kara King

Fordham Law Voting Rights and Democracy Forum

The United States Supreme Court is in a legitimacy crisis. Americans are losing faith in the Supreme Court as an independent branch of government. As a result, policymakers and academics have put forth several proposals to reform the Court. The concept of an eighteen-year term limit maintains some bipartisan support and stands out as the most likely reform. This Article argues that term limits could help depoliticize the nomination process, bring greater stability to the Court, and restore confidence in the Court.

Taking History Seriously: Marjorie Taylor Greene, Reflections On Progressive Lawyering, And Section 3 Of The Fourteenth Amendment, Andrew G. Celli Jr.

Fordham Law Voting Rights and Democracy Forum

History has lessons to teach, and lawyers can learn from and use history in ways other than by cherry-picking from it. This Article contends that, while American history may be vexed, progressive lawyers can fully embrace history and hold it up into the light for consideration, all in service of progressive ends.

This Article describes a recent litigation that illustrates the point. In March 2022, the Author, together with other lawyers and a non-partisan pro-democracy group, represented voters from Georgia’s fourteenth congressional district in their effort to disqualify U.S. Representative Marjorie Taylor Greene from the Georgia ballot—based upon Section 3 …

Updating Anderson-Burdick To Evaluate Partisan Election Manipulation, Andrew Vazquez

Fordham Law Voting Rights and Democracy Forum

This Article analyzes jurisprudence concerning the judicial review of election laws. It suggests that the United States Supreme Court’s approach should acknowledge the realities of political partisanship when reviewing challenged laws and regulations. Specifically, this Article proposes a judicial test to evaluate election laws for partisan biases using factors modeled on those employed by the Court in Gingles v. Thornburg. Simply put, the manipulation of election laws to pursue partisan advantages poses the greatest threat to our democracy. Accordingly, this Article concludes that protecting our democracy from election practices that benefit one party over another in the guise of …

Increasing Voter Investment In American Democracy: Proposals For Reform, Adam Drake

Fordham Law Voting Rights and Democracy Forum

Millions of Americans choose to stay home every election cycle. Polling suggests that these nonvoters are either apathetic with respect to the democratic process or feel alienated from the United States government. Reforms to the democratic system should focus on alleviating these sentiments, ultimately encouraging more voters to show up to the polls. As turnout increases, so too does the legitimacy and stability of the U.S. government.

With that goal in mind, this Article advocates for a five- prong approach to reforming the electoral system. The first proposed step is to eliminate unnecessary barriers to voting by establishing federal automatic …