Fordham Law Review

http://ir.lawnet.fordham.edu/flr/

List of Papers (Total 1,542)

Deference to the Plaintiff in Forum Non Conveniens Cases

This Note analyzes several cases in an effort to understand why, based on each case’s unique circumstances, the plaintiff’s choice of forum received a particular level of deference. This Note then produces a synthesized list of factors that alter the level of deference a plaintiff’s choice of forum receives under forum non conveniens analysis. An understanding of these factors ...

Reevaluating the Computer Fraud and Abuse Act: Amending the Statute to Explicitly Address the Cloud

Under the current interpretations of authorization, instances where an individual harmlessly accesses the cloud data of another user could be classified as hacking and a violation of this federal statute. As such, this Note demonstrates that all of the current interpretations of the CFAA are too broad because they could result in this nonsensical outcome. This Note accordingly ...

Social Media Accountability for Terrorist Propaganda

Terrorist organizations have found social media websites to be invaluable for disseminating ideology, recruiting terrorists, and planning operations. National and international leaders have repeatedly pointed out the dangers terrorists pose to ordinary people and state institutions. In the United States, the federal Communications Decency Act’s § 230 provides social networking ...

Free Speech and the Confluence of National Security and Internet Exceptionalism

In this Article, I argue that, notwithstanding these contemporary developments, the Court got it mostly right in Brandenburg. Or, I want to at least suggest that it is premature to reconstruct the Brandenburg test to address perceived changes in our global environment. For the most part, Brandenburg has succeeded in mediating the balance between protecting political or ideological ...

Reflections on the Challenge of Inez Moore: Family Integrity in the Wake of Mass Incarceration

The U.S. Supreme Court case Moore v. City of East Cleveland has long been celebrated as affirming constitutional rights related to family integrity. The Moore holding specifically confirmed the Court’s obligation to scrutinize housing ordinances that regulate a traditional family’s household composition. By comparison and extension, one might assume that alternative family ...

Complex Kinship Networks in Fragile Families

This Article examines the complex kinship networks in families that experience multiple-partner fertility. Part I begins with a broad examination of the dramatic changes to the American family that have occurred over the past half century. Part I then highlights the broad diversity of forms present in today’s families, the evolving nature of American families, and how a two-tiered ...

Paying Too Dearly for a Whistle: Properly Protecting Internal Whistleblowers

In light of substantial disagreement among the circuits on which types of whistleblowers Dodd-Frank intends to protect, and newly proposed legislation which suggests a solution, this Note inspects Dodd-Frank’s whistleblower protections in an effort to better explain which types of Business Organizations whistleblowers should and should not be protected. This Note briefly outlines ...

The Bellwether Settlement

This Article examines the use of bellwether mediation in mass litigation. Bellwether mediations are different from bellwether trials,” a practice where parties choose a representative sample of cases for trial to determine how to resolve a much larger number of similar cases. In bellwether mediations, the parties instead rely on a representative sample of settlement outcomes ...

Constraining Monitors

Part I of this Article explains the failure of recent attempts by courts and legislators to constrain monitor behavior. Part II then argues that one reason for the lack of monitorship regulation lies in the reluctance of bar associations to oversee quasi-legal behavior. It then explains why reputation appears to be the primary factor reigning in monitor behavior today. Part III ...

What Does It Mean to Say That Procedure Is Political?

Procedure is not the first field of law to face controversy along these lines. Law’s independence from politics, in both its descriptive and normative aspects, is a century long legal challenge.9 This Article aims to clarify what we mean when we characterize procedure as political, as well as to understand some of the harms generated by failing to confront and acknowledge the ...

Closure Provisions in MDL Settlements

Closure has value in mass litigation. Defendants often insist on it as a condition of settlement, and plaintiffs who can deliver it may be able to command a premium. But in multidistrict litigation (MDL), which currently makes up over one-third of the federal docket, closure depends on individual claimants deciding to participate in a global settlement. Accordingly, MDL settlement ...

Busting Up the Pretrial Industry

While some argue that “[r]eturning to a trial model would be a significant step toward fulfilling the traditional expectations for the federal courts,” that step backward is unlikely to occur. But I agree that fixes are in order, and I offer two. First, we should consider requiring at least some parties to engage in early settlement evaluation—ideally before extensive discovery ...

A Tort in Search of a Remedy: Prying Open the Courthouse Doors for Legal Malpractice Victims

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 ...

Settlement in the Absence of Anticipated Adjudication

This Article begins with an account of the lawyer’s role in settlement in what we might call the traditional litigation scenario—that is, litigation in which settlement negotiations are conducted in the shadow of anticipated adjudication. This Article then considers four scenarios in which the anticipation of adjudication is altered—resource inadequacy, judicial settlement ...

Rethinking the Foundational Critiques of Lawyers in Social Movements

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 ...

Mass Torts and the Pursuit of Ethical Finality

Judges, lawyers, and academics largely agree that comprehensive finality is a central goal of mass tort litigation and settlements. More controversial is whether such finality is normatively preferable, inherently ethically problematic, or can be achieved through nonclass aggregate settlements without running afoul of the existing ethics rules. This Article joins this important ...

Constraining Monitors

Part I of this Article explains the failure of recent attempts by courts and legislators to constrain monitor behavior. Part II then argues that one reason for the lack of monitorship regulation lies in the reluctance of bar associations to oversee quasi-legal behavior. It then explains why reputation appears to be the primary factor reigning in monitor behavior today. Part III ...

Restraining Lawyers: From “Cases” to “Tasks”

These regulatory and market mechanisms for restraining lawyers share a common thread but differ in their purposes, efficacy, and fairness. Despite these differences, the growing intensity of their focus, and their possible amplification of each other, suggest the possibility of the emergence of new professional norms that call on litigators to think more deeply and inclusively ...

The Public Believes Predispute Binding Arbitration Clauses Are Unjust: Ethical Implications for Dispute-System Design in the Time of Vanishing Trials

Drawing on these findings, we discuss the pressing need for a wider ethic that applies to transactional attorneys who design binding arbitration clauses within adhesion contracts. We also draw lessons from behavioral legal ethics and social psychology. These lessons reveal that this wider ethic may be endangered by the situational influences that currently operate within law firms ...

Busting Up the Pretrial Industry

While some argue that “[r]eturning to a trial model would be a significant step toward fulfilling the traditional expectations for the federal courts,” that step backward is unlikely to occur. But I agree that fixes are in order, and I offer two. First, we should consider requiring at least some parties to engage in early settlement evaluation—ideally before extensive discovery ...

Mass Torts and the Pursuit of Ethical Finality

Judges, lawyers, and academics largely agree that comprehensive finality is a central goal of mass tort litigation and settlements. More controversial is whether such finality is normatively preferable, inherently ethically problematic, or can be achieved through nonclass aggregate settlements without running afoul of the existing ethics rules. This Article joins this important ...

Mens Rea and Methamphetamine: High Time for a Modern Doctrine Acknowledging the Neuroscience of Addiction

Neuroscience research reveals that drug addiction results in catastrophic damage to the brain resulting in cognitive and behavioral deficits. Methamphetamine addiction is of particular interest to criminal law because it causes extensive neural destruction and is associated with impulsive behavior, violent crime, and psychosis. Furthermore, research has revealed important ...

The Fourth Amendment, CSLI Tracking, and the Mosaic Theory

This Note explores the CSLI debate by analyzing the circuit courts’ decisions, scholars’ disagreement with those decisions, and the alternative approaches offered to protect and evaluate CSLI records. This Note concludes that warrantless CSLI monitoring should be analyzed under the “mosaic theory” of the Fourth Amendment. In support, it argues that this theory best addresses the ...

The Doxing Dilemma: Seeking a Remedy for the Malicious Publication of Personal Information

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 ...