Fordham Law Review

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

List of Papers (Total 3,962)

Election Law and the Presidency: An Introduction and Overview

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...

The Court of Appeals as the Middle Child

It’s said that middle children are most likely to be forgotten in the chaos of family life. The same could be said of the U.S. Courts of Appeals, which in 2016, mark their 125th anniversary, and which are the middle child of the federal judicial family. As too few people, even academics, know, the courts of appeals were created in 1891 by the Evarts Act, more than a century after...

Defining “Accidents” in the Air: Why Tort Law Principles Are Essential to Interpret the Montreal Convention’s “Accident” Requirement

This Note examines the history of, and the reasons for, the Montreal Convention, which in part forces airlines to indemnify passengers for injuries resulting from “accidents”—a term undefined in the treaty. The Montreal Convention and the subsequent case law interpreting it demonstrate how, to qualify as an “accident,” the injury-producing incident must be causally connected to...

A Legal and Ethical Puzzle: Defense Counsel as Quasi Witness

The U.S. criminal justice system is built on the concept of an adversarial trial. The defense and prosecution present competing narratives to a neutral audience that judges whether the prosecution has proved its case beyond a reasonable doubt. In this context, defense counsel is expected to be a zealous advocate for the defendant, providing the most effective representation...

See No Fiduciary, Hear No Fiduciary: A Lawyer’s Knowledge Within Aiding and Abetting Fiduciary Breach Claims

Fiduciary liability for attorney conduct generally extends only to direct clients of legal services. Over the last few decades, however, the lawyer’s role has expanded. Following this trend, fiduciary liability also has expanded to allow third-party claims in certain limited circumstances. One example is the attorney aiding and abetting a client’s fiduciary breach claim. One of...

Show Me the Money: The CEO Pay Ratio Disclosure Rule and the Quest for Effective Executive Compensation Reform

This Note discusses past attempts to combat growing levels of executive compensation, analyzes the role of both shareholders and directors in the compensation-setting process, and discusses conflicting views concerning shareholder-director power, the disclosure mechanism, and the pay-ratio metric. Finally, this Note balances these views by proposing alterations to the CEO Pay...

Dishonest Ethical Advocacy?: False Defenses in Criminal Court

This Note examines this dilemma and recent judicial approaches to it. Judges disagree about how guilty criminal defendants should be permitted to mount defenses at trial. Some have forbidden defense counsel from knowingly advancing any false exculpatory proposition. Others have permitted guilty defense attorneys to present sincere or truthful testimony in order to bolster a...

Accidental Vitiation: The Natural and Probable Consequence of Rosemond v. United States on the Natural and Probable Consequence Doctrine

Recently, the Court decided Rosemond v. United States. In Rosemond, the Court had to determine the requisite mental state for aiding and abetting a particular federal crime. While the Court had the opportunity to weigh in on the natural and probable consequence doctrine in Rosemond, it declined to do so in footnote 7. This Note reviews the natural and probable consequence...

Consistently Inconsistent: What Is a Qualifying Investment Under Article 25 of the ICSID Convention and Why the Debate Must End

International investment has helped to pave the way for an increasingly globalized world community. Consequently, the International Centre for Settlement of Investor Disputes (ICSID)—existing under the mandate of the World Bank and with the stated purpose of increasing economic development abroad—has become the leading international arbitration mechanism currently available for...

Now Is the Time!: Challenging Resegregation and Displacement in the Age of Hypergentrification

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...

In Defense of the Dealers: Why the SEC Should Allow Substituted Compliance with the European Union for Security-Based Swap Dealers

Following the 2008–2009 financial crisis, legislators around the world enacted laws that regulated the over-the-counter (OTC) derivatives markets for the first time. These laws, though necessary, have duplicative requirements that dampen market efficiency. In the United States, the Securities and Exchange Commission is contemplating a “substituted compliance” regime with other...

Do the Second Circuit’s Legal Standards on Class Certification Incentivize Forum Shopping?: A Comparative Analysis of the Second Circuit’s Class Certification Jurisprudence

The Class Action Fairness Act altered the jurisdictional landscape of class actions by relaxing the barriers to satisfying diversity jurisdiction in federal court. As a result, plaintiffs’ attorneys frequently find themselves filing class actions in federal court, and face the critical question of where to initiate their lawsuit. Many plaintiffs’ attorneys consider the...

Lonely Too Long: Redefining and Reforming Juvenile Solitary Confinement

Solitary confinement is a frequently used penal tool in all fifty states against all types of offenders. However, since its development in the 1800s, solitary confinement has been found to have damaging psychological effects. Juvenile inmates in particular suffer the greatest psychological damage from solitary confinement because their brains are still in a developmental state...

Sound the Alarm: Limitations of Liability in Alarm Service Contracts

Home and business owners increasingly rely on alarm systems to protect against theft and property damage. When a burglary or fire occurs and an alarm service customer discovers that the alarm company negligently failed to call the police or fire department, the customer understandably would expect redress for the company’s failure to provide its service. Many customers would be...

Voluntary Dismissal of Time-Barred Claims

Both state and federal courts have procedural rules that allow a plaintiff to voluntarily dismiss a claim without prejudice and then to refile it within the applicable statute-of-limitations period. However , a plaintiff’ s right to this procedural avenue is not absolute, and courts maintain broad discretion in deciding whether to dismiss a claim with or without prejudice. If a...

The Strict Liability in Fault and the Fault in Strict Liability

Tort scholars have long been obsessed with the dichotomy between strict liability and liability based on fault or wrongdoing. We argue that this is a false dichotomy. Torts such as battery, libel, negligence, and nuisance are wrongs, yet all are “strictly” defined in the sense of setting objective and thus quite demanding standards of conduct. We explain this basic insight under...

Revitalizing SEC Rule 14a-8’s Ordinary Business Exclusion: Preventing Shareholder Micromanagement by Proposal

Who decides what products a company should sell, what prices it should charge, and so on? Is it the board of directors, the top management team, or the shareholders? In large corporations, of course, the answer is the top management team operating under the supervision of the board. As for the shareholders, they traditionally have had no role in these sort of operational...

Too Sick to Be Executed: Shocking Punishment and the Brain

Capital punishment, to be lawfully delivered, must occur without needless cruelty. Cruelty, defined in the setting of punishment, will naturally evolve with the maturation of civil society. Cruel punishment will always be a relative standard, and punishment cannot exceed what is morally shocking. In the setting of public executions, observers and victims share an aspect of the...

The Overlooked History of Neurolaw

In this Article, I argue that our field should more readily acknowledge that there is a history to law and neuroscience. A central challenge is whether, and how, we will learn from this history. I do not endeavor here to provide a comprehensive history of brain science and law but rather to highlight a series of four important, yet often overlooked, “moments.” These moments are...

Young Adulthood as a Transitional Legal Category: Science, Social Change, and Justice Policy

This Article seeks to advance discussions about the potential implications for justice policy of recent neuroscientific, psychological, and sociological research on young adults. In doing so, we emphasize the importance of not exaggerating either the empirical findings or their policy relevance. The available research does not indicate that individuals between the ages of...

Neuroscience and the Civil/Criminal Daubert Divide

This Article speculates on the course of neuroscience-as-proof with an eye toward the actual admissibility standards that will govern the acceptance of such evidence by courts, not just as a matter of formal law but also as a function of historical custom. Given the legal system’s spotty record with scientific evidence—which is to say, both the demonstrated willingness of the...

Seeing Voices: Potential Neuroscience Contributions to a Reconstruction of Legal Insanity

Part I of this Article explains the insanity defense in the United States. Next, Part II discusses some of the brain-based research about mental illness, focusing on schizophrenia research. Then, Part III looks at traumatic brain injury and the relationship among injury, cognition, and behavior. Finally, Part IV explains how a new neuroscience-informed standard might better...

When Empathy Bites Back: Cautionary Tales from Neuroscience for Capital Sentencing

This Article examines the implications of emerging neuroscientific findings regarding empathy for capital trials. We have approached this task with caution because neuroscientists’ understanding of the human brain is still evolving. As with any new field, if neuroscience is completely trusted before it is thoroughly tested, there is a risk of embracing the new phrenology. Given...

A Perspective on the Potential Role of Neuroscience in the Court

This Article presents some lessons learned while offering expert testimony on neuroscience in courts. As a biomedical investigator participating in cutting-edge research with clinical and mentoring responsibilities, Dr. Ruben Gur, Ph.D., became involved in court proceedings rather late in his career. Based on the success of Dr. Gur and other research investigators of his...

Neuroscience and Sentencing

This symposium comes at a propitious time for me. I am reviewing the sentences I was obliged to give to hundreds of men—mostly African American men—over the course of a seventeen-year federal judicial career. As I have written elsewhere, I believe that 80 percent of the sentences that I imposedwereunfair,unjust,anddisproportionate. EverythingthatIthought was important—that...