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.
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
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
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-
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.