Fordham Law Review最新文献

The opioid epidemic has ravaged the United States, killing over 100 Americans every day and costing the nation upward of $90 billion a year. All branches and levels of the government have pursued measures to combat the epidemic and reduce its societal costs. Perhaps the most interesting response is the emergence of direct-injury government-entity lawsuits, which seek to recover damages from opioid companies that facilitated prescription pill addictions. Cities, counties, and states across the country are suing opioid manufacturers and distributors in unprecedented numbers. This Note explores the role of direct-injury government-entity claims as compared to other forms of civil litigation employed in the opioid crisis. It highlights the obstacles faced by parens patriae actions, individual lawsuits, class actions, and aggregate actions in general. This Note argues that direct injury government claims have important advantages over other forms of civil litigation because they overcome certain defenses related to victim blame worthiness and because they function as inherently representative actions that bypass the certification requirements of traditional aggregate actions.

When feminists began advocating for rape reform in the 1970s, the rape message was clear: rape was not a crime to be taken seriously because women lie. After decades of criminal law reform, the legal requirement that a woman vigorously resist a man's sexual advances to prove that she was raped has largely disappeared from the statute books, and, in theory, rape shield laws make a woman's prior sexual history irrelevant. Yet, despite what the law dictates, rape law reforms have not had a "trickle-down" effect, where changes in law lead to changes in attitude. Women are still believed to be vindictive shrews so police continue to code rape allegations as "unfounded," and prosecutors continue to elect not to prosecute many rape cases. To many, "no" can sometimes still mean "yes." In short, criminal law reforms have only marginally succeeded at deterring rape and increasing conviction rates for rape. At the same time, criminal law reforms have entrenched gender norms and endorsed the message that acquaintance rapes are less worthy of harsh punishment. This Article argues against further ex post criminal law reforms and posits that efforts should shift to ex ante public health interventions. This Article draws from recent successful experiences with public health interventions in destigmatizing AIDS and denormalizing tobacco and advocates for a robust public health campaign to denormalize rape. It presents a detailed proposal for changing rape messaging, denormalizing rape, and ensuring better outcomes for victims.

Bullying has long been a concern for students, parents, teachers, and school administrators. But technological advances--including the internet, cell phones, and social media--have transformed the nature of bullying and allow "cyberbullies" to extend their reach far beyond the schoolhouse gate. The U.S. Supreme Court established that schools may regulate on-campus speech if the speech creates a substantial disruption of, or material interference with, school activities. However, the Court has yet to rule on a school’s ability to regulate students' off-campus bullying speech. This Note examines how various courts have approached the issue, analyzes the current circuit split, and ultimately proposes that schools should have the authority to discipline students for off-campus bullying speech.

"Wrongful birth" is a controversial medical malpractice claim raised by the mother of a child born with a disability against a medical professional whose failure to provide adequate prenatal information denied her the chance to abort. Plaintiff-mothers are required to testify that, but for the defendant's negligence, they would have terminated their pregnancy. Accordingly, alongside pro-life activists, disability rights advocates have opposed "wrongful birth" claims for stigmatizing and discriminating against people with disabilities by framing their very existence as a harm. Despite plaintiff-mothers' need for caretaking resources, scholars have recommended solutions ranging from the wholesale elimination of the wrongful birth claim to the curtailment of damages. To the extent scholars and the media have acknowledged mothers in the wrongful birth discourse at all, often it has been to blame and shame them for allegedly rejecting their children. They have paid little attention to the ways wrongful birth jurisprudence forces mothers to disavow their children in court, and thereby to forfeit the "good mother" ideal, in exchange for the possibility of securing necessary resources for their children. Commentators who question plaintiff-mothers' maternal devotion exacerbate the psychological toll the law already imposes. This Article shifts the blame from mothers to the legal system. While wrongful birth proceedings portray mothers' feelings about their children as categorically negative, real life accounts and social science findings reveal the true paradoxical experiences of all mothers, including plaintiff-mothers raising children with disabilities. To acknowledge this complex reality and mitigate the emotional strain of bringing a wrongful birth claim, this Article proposes several legal reforms: (1) broadening the analysis of emotional distress to reflect and legitimize mothers' paradoxical feelings about their children; (2) reframing the harm to mothers as loss of reproductive choice rather than as the birth of a flawed child and, accordingly, expanding available economic damages to include plaintiff-mothers' unexpected childcare responsibilities; and (3) educating plaintiffs' attorneys to empathize with the emotional aspects of mothers' litigation experiences and to counsel mothers accordingly. Today's approach to "wrongful birth" claims, which both stigmatizes disability and strains caretakers, demands urgent reform.