Volume 83 is proud to present the newly elected board of editors for Volume 84 of the Fordham Law Review!

Fighting Corruption in America and Abroad

Friday, March 6, 2015
9:00 a.m.—4:30 p.m.

This full-day symposium will focus on defining corruption and initiatives to regulate it within the United States, internationally, and in foreign countries.  The symposium will include a keynote address delivered by Preet Bharara, U.S. Attorney for the Southern District of New York, and four panel discussions among legal academics, prosecutors, defense lawyers, economists, and political philosophers.

For full schedule and registration:

law.fordham.edu/corruption

    The Board of Editors for Volume 83 thanks the former editors and staff of the Fordham Law Review, first published in the fall of 1914, for the century-long tradition of excellence achieved through their service.

    To commemorate our founding in 1914, the Board of Editors has selected six influential pieces published by the Law Review over the past 100 years and will republish one piece in each issue.

    The fourth piece selected by the Board is Our Administrative System of Criminal Justice, an article written by Gerard E. Lynch that is among the most cited works in the Law Review’s history.  This article illustrates how the practice of plea bargaining blurs the boundaries between adversarial and inquisitorial criminal justice systems.

   Judge Lynch now sits on the Second Circuit having eventually succeeded the late Judge Joseph M. McLaughlin, who also is honored in the pages of this book for the permanent mark he left on Fordham Law School and the Law Review.  We think it is fitting that the Law Review feature two of the many contributions that judges of the Second Circuit have made to legal education and scholarship in this issue.

    It is with great respect and appreciation that we dedicate this issue of the Fordham Law Review to the Honorable Joseph M. McLaughlin:  judge, dean, professor, author, and mentor.

    John D. Feerick is a Professor of Law at Fordham University School of Law, where he served as Dean from 1982 to 2002. In addition, he is the founder and senior counsel of the Feerick Center for Social Justice at the Law School. He delivered these remarks as part of a tribute to the Honorable Joseph M. McLaughlin on February 4, 2014, at Fordham Law School.

    Constantine Katsoris is the Wilkinson Professor of Law at the Fordham University School of Law. He delivered these remarks as part of a tribute to the Honorable Joseph M. McLaughlin on February 4, 2014, at Fordham Law School.

    Judge Cathy Seibel is a United States District Judge for the Southern District of New York.  She delivered these remarks as part of a tribute to the Honorable Joseph M. McLaughlin on February 4, 2014 at Fordham Law School.

    Matthew T. McLaughlin is a partner at Venable LLP and a graduate of Fordham University School of Law.   He delivered these remarks as part of a tribute to his father, the Hon. Joseph M. McLaughlin, on February 4, 2014 at Fordham Law School.

    How much deference—or what kind—should courts give to longstanding agency interpretations of statutes? Surprisingly, courts and scholars lack a coherent answer to this question. Legal scholars long have assumed that longstanding agency statutory interpretations are treated with heightened deference on judicial review, and federal courts sometimes have made statements suggesting that this is the case. But in practice, federal court review of longstanding agency interpretations—at both the U.S. Supreme Court and courts of appeals—turns out to be surprisingly erratic. Reviewing courts sometimes note the longevity of an agency’s statutory interpretation as a plus factor in their deference analysis but at other times completely ignore or dismiss an agency interpretation’s longevity. Moreover, judicial rhetoric about the relevance of longevity in the review of agency statutory interpretations is inconsistent from case to case.

    What makes this doctrinal incoherence particularly remarkable is that courts usually care much more about the predictability of statutory interpretations and about upsetting settled institutional practices. In fact, in two analogous contexts—judicial interpretations of statutes and historical executive branch practice in the constitutional arena—courts accord strong precedential effect, or a presumption of correctness, to established legal constructions. This Article provides the first detailed study of federal court treatment of longstanding agency statutory interpretations, illuminating doctrinal inconsistencies and examining longevity-related factors that both favor and disfavor deference. The Article also compares federal courts’ chaotic treatment of longstanding agency statutory interpretations with the precedential effect that courts give to longstanding judicial interpretations of statutes and the historical “gloss” effect that courts give to past executive practice in constitutional interpretation. Ultimately, the Article argues that longstanding agency interpretations of statutes are at least as deserving of heightened judicial deference and that, at a minimum, federal courts’ disparate treatment of such interpretations—without acknowledging or justifying the distinction—is troubling. The Article advocates that longstanding agency interpretations should be entitled to precedential effect by reviewing courts and outlines how such an approach might work.

    U.S. agencies routinely base their domestic regulations on international considerations, such as the benefits of coordinating American and foreign standards or the foreign policy advantages of a particular policy. I refer to this phenomenon as the internationalization of agency actions. This Article examines what the internationalization of agency actions means for agency decision-making processes, institutional design, and legal doctrine. It creates a stylized model of how agencies determine whether to coordinate their standards with foreign regulations. Among other institutional design findings, it shows that court opinions that reduce the stringency of judicial review when agencies implement internationally coordinated standards make such coordination more likely to occur, but they simultaneously deprive the executive of bargaining power because U.S. agencies cannot credibly threaten that any coordinated agreement must align more closely with U.S. values or risk being overturned in U.S. courts. This Article also develops a taxonomy of international factors relied on by agencies and applies that taxonomy to help clarify the doctrinal issue of whether and when agencies can use international factors to justify their actions in court. This taxonomical approach shows how the Supreme Court’s opinion in Massachusetts v. EPA can reasonably be read to allow agencies to invoke a far broader range of foreign policy rationales than some prevailing views suggest.

    The Foreign Commerce Clause has been lost, subsumed by its interstate cousin, and overshadowed in foreign relations by the treaty power. Consistent with its original purpose and the implied, but unrefined view asserted by the judiciary, this Article articulates a broader and deeper Foreign Commerce power than is popularly understood. It reframes doctrinal considerations for a reinvigorated Foreign Commerce Clause—both as an independent power and in alliance with other coordinate foreign affairs powers—and demonstrates that increasing global complexity and interdependence makes broad and deep federal authority under this power crucial to effective and efficient action in matters of national concern.

    Since the U.S. Supreme Court began limiting the exercise of peremptory challenges to safeguard potential jurors from discrimination, it has faced a nearly impossible task. The Court has attempted to safeguard a juror’s equal protection rights without eradicating the peremptory challenge’s ability to preserve a criminal defendant’s right to an impartial jury. Under the current legal framework, it is not certain whether either constitutional right is adequately protected. This Note examines the history of the Supreme Court’s limitation on peremptory challenges. It then discusses the current federal circuit split over whether peremptory challenges should be further limited. Finally, this Note concludes that the existing framework’s application should be extended and restricted to more effectively protect the constitutional rights at issue.

    Since 2011, the U.S. Supreme Court has granted certiorari three times on the question of whether disparate impact liability is cognizable under the Fair Housing Act (FHA). The first two times, the parties settled. The question is before the Court once again in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., and this time the parties seem unlikely to settle.

    Disparate impact liability in the civil rights context entails liability for actions that have a discriminatory effect, regardless of an actor’s motive. Under the FHA, this can translate into liability for actions that make housing disproportionately unavailable for persons of a protected class or actions that tend to increase or maintain segregated housing patterns.

    All eleven federal circuit courts that have addressed the question agree that disparate impact claims are cognizable under the FHA. In addition, in the spring of 2013, the U.S. Department of Housing and Urban Development (HUD) promulgated a rule that standardizes the burdens of proof for disparate impact claims under the FHA and specifically states for the first time in a formal administrative rule that disparate impact claims are cognizable under the FHA.

    The promulgation of HUD’s disparate impact rule means that this time around the Supreme Court must give heightened deference to an interpretation of the FHA that authorizes disparate impact claims. This Note argues that despite the near-unanimity of the circuit courts’ interpretation of the FHA, the fate of disparate impact claims under the FHA was anything but certain prior to the promulgation of the HUD rule. The HUD rule makes it much more likely that the FHA disparate impact standard will survive, and this Note argues that it should.

    Illegal reentry into the United States by previously removed aliens is a major problem that has risen steadily in recent years. 8 U.S.C. § 1326(a) punishes such aliens. Specifically, § 1326(a) provides for criminal fines or imprisonment (or both) of any previously removed alien who enters, attempts to enter, or is “found in” the United States at any time after his or her initial removal.

    What does it mean to be “found in” the United States in violation of § 1326(a)? The easy case is when a previously removed alien surreptitiously reenters the United States illegally, remains in the United States undetected for some time, and is then physically found by U.S. officials within the country’s borders. But, what happens when a previously removed alien surreptitiously reenters the United States illegally and remains undetected by U.S. officials until that alien subsequently attempts to leave the country and is involuntarily returned to the United States by foreign officials after physically crossing into that foreign territory? Should these aliens be considered “found in” the United States?

    The Ninth Circuit has answered this question in the affirmative twice, while the Second Circuit has declined to consider such aliens to be “found in” the United States in violation of § 1326(a). This Note argues that the federal courts should adopt the Second Circuit’s holding for numerous legal and policy reasons that are consistent with major U.S. Supreme Court and circuit court decisions that have shaped U.S. immigration law since the beginning of the twentieth century.

    The attorney-client privilege protects confidential legal communications between a party and her attorney from being used against her, thus encouraging full and frank attorney-client communication. It is a venerable evidentiary principle of American jurisprudence. Unsurprisingly, prosecutors may not eavesdrop on inmate-attorney visits or phone calls or read inmate-attorney postal mail. Courts are currently divided, however, as to whether or not they can forbid prosecutors from reading inmate- attorney email.

    This Note explores the cases that address whether federal prosecutors may read inmates’ legal email. As courts have unanimously held, because inmates know that the Bureau of Prisons (BOP) monitors all their email, their legal email is unprivileged. In addition, all courts have rejected the argument that prosecutors reading inmates’ legal email impermissibly restricts inmates’ Sixth Amendment right of access to counsel. Accordingly, despite questioning the practice’s propriety, four courts have ruled that there is no legal basis to prevent prosecutors from reading inmate-attorney email. Two courts, however, pursuant to no clear authority, prevented the prosecutors from doing so.

    This Note argues that prosecutors should abstain from reading inmate- attorney email as a matter of self-regulation because this behavior unjustifiably chills inmate-attorney communication. In addition, this Note asserts that BOP’s email monitoring policy unconstitutionally restricts inmates’ Sixth Amendment right of access to counsel, a challenge prisoners’ rights advocates have yet to bring. In cases where BOP’s email monitoring policy is not at issue, or where a court seeks to avoid a constitutional decision, this Note concludes that courts should prevent prosecutors from reading inmates’ legal email by exercising their delegated authority to enforce Rules of Professional Conduct. Specifically, courts should invoke Rule 8.4(d), which prohibits attorneys from engaging in conduct prejudicial to the administration of justice.

    The rise of vulture fund investing in sovereign bonds has created additional hurdles to successful restructuring in an already fragile ad hoc process. Recent litigation in NML Capital, Ltd. v. Argentina has proven courts’ willingness to utilize powers of equity to enforce a ratable payment interpretation of the pari passu clause—the equal treatment provision commonly found in sovereign bond contracts—creating much uncertainty on how the ruling will affect future restructuring efforts. By looking to the tension in interpretations of the pari passu clause, discrepancies in remedial relief awarded, and international institutions’ proposed solutions, this Note analyzes the role of the pari passu clause as a tool for holdout creditors to disrupt restructurings. This Note argues for a contractual solution targeted at preventing vulture fund investors from access to pari passu injunctive relief coupled with creative restructuring strategies for outstanding bonds awaiting maturity. This resolution seeks to retain some protection for traditional holdout creditors while disincentivizing investments made with intent to derail restructurings from the start.

    Unlike debtors in the domestic bankruptcy system, sovereigns have no overarching mechanism to facilitate a successful restructuring when their debt burden becomes unsustainable. Using the pari passu clause as a means to enjoin payment to restructured bondholders leaves sovereign debtors with little recourse but to cede to the demands of holdout creditors and can have a devastating long-term impact on the sovereign’s capacity to rebuild debt sustainability. On the other hand, removing pari passu injunctive relief strips holdout creditors of a valuable enforcement mechanism and can leave sovereigns unrestrained. This Note balances these concerns by advocating for a solution that diminishes vulture creditor leverage that can obstruct a restructuring, while otherwise preserving creditor rights against unfair or coercive exchange terms.

    This Panel Discussion of the Judicial Records Forum was held on June 4, 2014, at Fordham University School of Law. The Judicial Records Forum focuses on issues involving the creation and management of judicial records and access to judicial records in the digital age.
    The transcript of the Panel Discussion has been lightly edited and represents the panelists’ individual views only, and in no way reflects those of their affiliated firms, organizations, law schools, or the judiciary.