Fordham Law Review

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

List of Papers (Total 2,934)

Reality Check: A Modest Modification to Rationalize Rule 803 Hearsay Exceptions

The Federal Rules of Evidence (or “the Rules”) identify hearsay that is admissible, notwithstanding the classic hearsay prohibition, by delineating categories of hearsay statements that may be admitted into evidence. For example, “dying declarations” of now-unavailable declarants may be admitted in homicide prosecutions or civil cases. “Excited utterances” relating to a startling ...

On Hearsay

I need to place the remarks that follow in context. And that means I need to acknowledge a number of heresies: I don’t like legal jargon; I don’t like the complexity of legal jargon; I don’t like the legal profession’s indifference to brevity; I don’t like the tendency of lawyers and judges always to be looking to the past for answers to novel questions; and I don’t consider law to ...

Forward Progress: A New Pattern Criminal Jury Instruction for Impeachment with Prior Inconsistent Statements Will Ease the Court’s Burden by Emphasizing the Prosecutor’s

In this Article, I discuss the history of Rule 801(d)(1)(A), focusing on the origins and importance of the Rule’s restrictive language. In addition, I review the current federal landscape of pattern criminal jury instructions for witness impeachment with a prior inconsistent statement. Finally, I propose a revised jury instruction designed to clarify juror confusion while ...

Prior Statements of Testifying Witnesses: Drafting Choices to Eliminate or Loosen the Strictures of the Hearsay Rule

One of the panels at the Symposium on Hearsay Reform—sponsored by the Judicial Conference Advisory Committee on Evidence Rules— considered whether the federal hearsay regime should be changed to provide for greater admissibility of prior statements of testifying witnesses. This Article is intended to provide some background to the questions addressed by the panel and to consider ...

The British Experience with Hearsay Reform: A Cautionary Tale

Among the proposals being considered by the Advisory Committee on the Federal Rules of Evidence (“the Committee”) is the scrapping of the categorical exception regime for hearsay, leaving questions of reliability and admissibility ad hoc to district court judges along the lines of Federal Rules of Evidence (FRE) 403 and 807. Over the past decades, the British have moved toward this ...

Prior Inconsistent Statements: The Simple Virtues of the Original Federal Rule

How well do hearsay rules function under the current Federal Rules of Evidence? One issue, dormant yet pulsating beneath the surface for decades, involves the admissibility of prior inconsistent statements by witnesses. The long-standing “orthodox” rule admitted the prior statement only to impeach the witness’s trial testimony; it could not be used as substantive evidence of the ...

The Hearsay Rule as a Rule of Admission Revisited

Now to substance. To intelligently analyze what changes to the hearsay rule should be considered, one needs to examine: first, the overall objectives of the field of evidence; second, the particular objectives of the Federal Rules of Evidence; third, how well the hearsay rule advances, or retards, those objectives; and finally, the sense and sensibility of any proposed changes.

The New Tate Letter: Foreign Official Immunity and the Case for a Statutory Fix

Plaintiffs sometimes bring civil lawsuits in U.S. federal courts against officials or ex-officials of foreign governments accused of committing atrocities abroad. In these types of cases, the foreign individuals will almost certainly invoke the affirmative defense of foreign official immunity. In the 2010 decision, Samantar v. Yousuf, the Supreme Court unanimously held that the ...

When “Testing the Waters” Tests the Limits of Coordination Restrictions: Revising FEC Regulations to Limit Pre-Candidacy Coordination

During the preliminary stages of the 2016 presidential election, many prospective candidates took an active role in the Super PACs that would eventually support them after they became candidates. The regulatory system in place provides clear restrictions on Super PACs’ abilities to coordinate with candidates; however, what is less clear is whether such regulations restrict the ...

One Time to Sue: The Case for a Uniform Statute of Limitations for Consumers to Sue Under the Fair Debt Collection Practices Act

In 1977, Congress enacted the Fair Debt Collection Practices Act (FDCPA) in an effort to provide injured consumers with uniform protection against the systematically abusive practices of the debt collection industry. The FDCPA created a private right of action for victims to sue; however, an individual who wishes to bring a private suit under the FDCPA must do so “within one year ...

Using Johnson v. United States to Reframe Retroactivity for Second or Successive Collateral Challenges

The Armed Career Criminal Act (ACCA) provides a fifteen-year mandatory minimum sentence in federal prison for persons with at least three prior “violent felony” convictions who are subsequently convicted of being in possession of a firearm. In Johnson v. United States, the U.S. Supreme Court struck down one portion of this statute on the ground that it was unconstitutionally vague. ...

Misconduct Risk

Financial misconduct and systemic risk are two critical issues in financial regulation today. However, for the past several years, financial misconduct and systemic risk have received markedly different treatment. After the global financial crisis, regulators responded to the traditional quantitative risks that banks pose—those found on their balance sheets and in their business ...

(Don't) Take Another Little Piece of My Immunity, Baby: The Application of Agency Principles to Claims of Foreign Sovereign Immunity

This Note examines the split among the federal circuit courts regarding the application of agency principles to claims of foreign sovereign immunity. Specifically, a minority of courts have applied the doctrine of apparent authority in determining whether a sovereign is bound by the acts of its agents. The majority of courts have, however, declined to apply the doctrine, holding ...

Behind Enemy Phone Lines: Insider Trading, Parallel Enforcement, and Sharing the Fruits of Wiretaps

Two key trends were present in the successful prosecution of Raj Rajaratnam and his coconspirators in one of the largest insider-trading conspiracies in history: the use of wiretaps to investigate and prosecute insider trading and a joint effort between the Department of Justice (DOJ) and the Securities & Exchange Commission (SEC) to conduct the investigation. Despite the close ...

Tortured Language: Lawful Permanent Residents and the 212(h) Waiver

Recent amendments to the Immigration and Nationality Act have greatly expanded the grounds for removal of lawful permanent residents (LPRs) and, at the same time, constricted judicial review of agency decisions to deport immigrants. Language added to the 212(h) waiver of inadmissibility has increased the number of LPRs that are now ineligible for relief from removal by barring ...

Pay the Troll Toll: The Patent Troll Model Is Fundamentally at Odds with the Patent System's Goal of Innovation and Competition

Patent litigation has multiplied sixfold since the 1980s, with the last few years seeing an unprecedented number of patent lawsuits. When an inventor receives a patent, the U.S. Constitution grants him a monopoly for a limited number of years to reward him for his investment of time and resources and to incentivize him to continue innovating, which ultimately benefits society. ...

The Proper Standard of Review for Required Party Determinations Under Federal Rule of Civil Procedure 19

Rule 19 of the Federal Rules of Civil Procedure, concerning the required joinder of parties, ensures that all parties with an interest in an action are joined in the litigation. At any time during the suit, a court may determine that an absent party has a specific interest that requires its presence in the dispute. When the court cannot join the absent party, however, the court ...

Outsourcing the Law: History and the Disciplinary Limits of Constitutional Reasoning

Debates about the use of history in constitutional interpretation find their primary nourishment in the originalism debate. This has generated a vast amount of literature, but also narrowed the terms of the debate. Originalism is a normative commitment wrapped in a questionable methodological confidence. Regardless of the multiple forms originalism takes, originalists are confident ...

Historicism and Holism: Failures of Originalist Translation

For as long as the U.S. Constitution has existed, Americans have appealed to the history of its creation to interpret its meaning. But only since the advent of originalism—the well-known constitutional theory that requires interpreting the Constitution today in accordance with its original meaning—has historical study been so immediately implicated by constitutional interpretation. ...

“To Assemble Together for Their Common Good”: History, Ethnography, and the Original Meanings of the Rights of Assembly and Speech

The Whiskey Rebellion is not generally a major focus in constitutional histories or casebooks. Given this fact, it is hardly surprising that the 1795 case Respublica v. Montgomery seldom figures as more than a minor footnote in scholarly writing about early American constitutional development, if it receives any attention at all. The case has little precedential value for modern ...

Historians and the New Originalism: Contextualism, Historicism, and Constitutional Meaning

Toward that end, this Foreword addresses three matters. First, it considers why the use of history in constitutional interpretation is inescapable. Next, it suggests that the Essays in this forum do not go far enough in debunking the idea of “public meaning” originalism as a serious alternative to previous approaches. Finally, the balance of this Foreword reviews the also perhaps ...

History, Governmental Structure, and Politics: Defining the Scope of Local Board of Health Power

Local boards of health often issue regulations that have broad effects that surpass the borders of the city or county to which they apply. Promulgation of such rules by board of health members appointed by the executive branch implicates separation of powers concerns; because such regulations may so extensively burden a locality’s citizens, it may be more appropriate for elected ...

Felonious, Erroneous, It’s All Odious: A Story of Debt Gone Wrong

Iraq is paying off debt from Saddam Hussein’s rule. South Africa is paying off debt obligations incurred under apartheid rule. Argentina is renegotiating debts that can be traced back to a de facto military-civilian regime that was ousted in 1976. There are numerous examples in which sovereigns are paying off debts that previous governing regimes incurred while oppressing their ...

Enforcing Immigration Equity

Congressional amendments to the immigration code in the 1990s significantly broadened grounds for removal while nearly eradicating opportunities for discretionary relief. The result has been a radical transformation of immigration law. In particular, the constriction of equitable discretion as an adjudicative tool has vested a new and critical responsibility in enforcement ...