Law Commons^™

Celebrating A Lasting Legacy: Joel R. Reidenberg, Thomas Norton

Fordham Law Review Online

No abstract provided.

Celebrating A Lasting Legacy: Joseph C. Sweeney, Constantine N. Katsoris

Fordham Law Review Online

No abstract provided.

Celebrating A Lasting Legacy: Nitza Milagros Escalera, Leah A. Hill

Fordham Law Review Online

No abstract provided.

Celebrating A Lasting Legacy: Robert J. Kaczorowski, Martin S. Flaherty

Fordham Law Review Online

No abstract provided.

Celebrating A Lasting Legacy: Thomas Schoenherr, Michael W. Martin

Fordham Law Review Online

No abstract provided.

Celebrating A Lasting Legacy: Robin Lenhardt, Kimani Paul-Emile, Jennifer Gordon

Fordham Law Review Online

No abstract provided.

Celebrating A Lasting Legacy: Richard Scott Carnell, Susan Block-Lieb

Fordham Law Review Online

No abstract provided.

Celebrating A Lasting Legacy: Marcella Silverman, Elizabeth Maresca

Fordham Law Review Online

No abstract provided.

Celebrating A Lasting Legacy: Frank Chiang, Constantine N. Katsoris

Fordham Law Review Online

No abstract provided.

Celebrating A Lasting Legacy: Michael M. Martin, Ian Weinstein

Fordham Law Review Online

No abstract provided.

Foreword And Dedication, Deborah W. Denno, Bruce A. Green

Fordham Law Review

No abstract provided.

Afrodescendants, Law, And Race In Latin America, Tanya K. Hernandez

Faculty Scholarship

Law and Society research in and about Latin America has been particularly beneficial in elucidating the gap between the ideals of racial equality laws in the region and the actual subordinated status of its racialized subjects. Some of the recurrent themes in the race-related literature have been: the limits of the Latin American emphasis on criminal law to redress discriminatory actions; the limits of multicultural constitutional reform for full political participation; the insufficiency of land reform and recognition of ethnic communal property titles; and the challenges to implementing race conscious public policies such as affirmative action. Especially illuminating have been …

Obviousness As Fact: The Issue Of Obviousness In Patent Law Should Be A Question Of Fact Reviewed With Appropriate Deference, Ted L. Field

Fordham Intellectual Property, Media and Entertainment Law Journal

One of the most common defenses that an accused infringer raises in a patent infringement lawsuit is that the patent claims at issue are invalid for obviousness. The question of obviousness is based on several factual determinations, and the U.S. Supreme Court and the U.S. Court of Appeals for the Federal Circuit should sensibly review these determinations with deference to the jury’s or trial court’s findings. But these courts instead treat the ultimate determination of obviousness as a question of law to be reviewed de novo. This Article challenges the correctness of this standard of review and argues that courts …

Real Masks And Real Name Policies: Applying Anti-Mask Case Law To Anonymous Online Speech, Margot E. Kaminski

Fordham Intellectual Property, Media and Entertainment Law Journal

The First Amendment protects anonymous speech, but the scope of that protection has been the subject of much debate. This Article adds to the discussion of anonymous speech by examining anti-mask statutes and cases as an analogue for the regulation of anonymous speech online. Anti-mask case law answers a number of questions left open by the Supreme Court. It shows that courts have used the First Amendment to protect anonymity beyond core political speech, when mask-wearing is expressive conduct or shows a nexus with free expression. This Article explores what the anti-mask cases teach us about anonymity online, including proposed …

Conflict Minerals Legislation: The Sec’S New Role As Diplomatic And Humanitarian Watchdog, Karen E. Woody

Fordham Law Review

Buried in the voluminous Dodd-Frank Wall Street Reform and Consumer Protection Act is an oft-overlooked provision requiring corporate disclosure of the use of “conflict minerals” in products manufactured by issuing corporations. This Article scrutinizes the legislative history and lobbying efforts behind the conflict minerals provision to establish that, unlike the majority of the bill, its goals are moral and political, rather than financial. Analyzing the history of disclosure requirements, the Article suggests that the presence of conflict minerals in an issuer’s product is not inherently material information and that the Dodd-Frank provision statutorily renders nonmaterial information material. The provision, therefore, …

Instructing Juries On Noneconomic Contract Damages, David A. Hoffman, Alexander S. Radus

Fordham Law Review

Gathering pattern contract jury instructions from every state, we examine jurisdictions’ treatment of noneconomic damages. While the conventional account holds that there is a uniform preference against awards of noneconomic damages, we find four different approaches in pattern instructions, with only one state explicitly prohibiting juries from considering noneconomic losses. Lay juries have considerably more freedom to award the promisee’s noneconomic damages than the hornbooks would have us believe.

We substantiate this claim with an online survey experiment asking respondents about a simple contract case and instructing them using the differing pattern forms. We found that subjects routinely awarded more …

Bankrupt Estoppel: The Case For A Uniform Doctrine Of Judicial Estoppel As Applied Against Former Bankruptcy Debtors, Eric Hilmo

Fordham Law Review

This Note examines the role judicial estoppel plays in supporting the U.S. federal bankruptcy regime. Though once considered an obscure doctrine, the use of judicial estoppel to bar pursuit of previously undisclosed claims by former bankrupts has grown apace with burgeoning bankruptcy filings over the last decade. While the doctrine’s application in federal courts has evolved toward a common standard of application, state courts’ application remains idiosyncratic. The Note argues that under the established laws of judgment recognition and in light of federal courts’ sophisticated application of the doctrine, state courts should apply federal judicial estoppel standards to further national …

Functionalism’S Military Necessity Problem: Extraterritorial Habeas Corpus, Justice Kennedy, Boumediene V. Bush, And Al Maqaleh V. Gates, Richard Nicholson

Fordham Law Review

The U.S. Supreme Court has struggled over the last 150 years to definitively answer the question of whether the U.S. Constitution applies beyond the borders of the territorial United States. Because the Constitution is silent on the issue, the burden has fallen on the judiciary to establish the contours of the doctrine. At times, the Court has espoused formulistic theories limiting constitutional application to territorial sovereignty, while at others it has looked to more objective, practical solutions that reach beyond the borders.

In 2008, the Supreme Court held in Boumediene v. Bush that the application of the Suspension Clause of …

Determining Diversity Jurisdiction Of National Banks After Wachovia Bank V. Schmidt, Michael Podolsky

Fordham Law Review

Prior to the U.S. Supreme Court’s decision in Wachovia Bank v. Schmidt, some courts held, for diversity jurisdiction purposes, that national banks were citizens of each and every state in which they had a branch. In Schmidt, the Supreme Court made it clear that this approach was incorrect, but failed to provide an alternative one. Not surprisingly, in the wake of that decision another court split developed. While some courts have found that national banks are citizens only of the state listed on their charters as their main office, others have found that national banks are also citizens …

Disfavored Constitution, Passive Virtues? Linking State Constitutional Fiscal Limitations And Permissive Taxpayer Standing Doctrines, Joshua G. Urquhart

Fordham Law Review

This Article contrasts the permissive state taxpayer standing doctrines in place in most states with the restrictive federal and state taxpayer standing rules applied in federal court. It proposes a new theory to explain this disparity, arguing that ubiquitous state constitutional fiscal restrictions, which specifically limit a state government’s ability to tax, spend, and borrow, are a primary impetus in the creation and development of liberal state taxpayer standing doctrines. The Article evaluates this novel hypothesis through an empirical-historical survey of the early state taxpayer standing decisions in every permissive jurisdiction and finds that these provisions are indeed involved in …

Foreward, Joseph Landau

Fordham Law Review

On March 30, 2012, the Fordham Law Review held a daylong conference on the federal Defense of Marriage Act (DOMA), a statute enacted in 1996 with large majorities in both the House and Senate and signed into law by President Clinton. The Symposium could not have come at a better time: there have been extraordinary changes in the political dynamics surrounding relationship rights since DOMA’s enactment in 1996, when same–sex couples could not marry in any U.S. or foreign jurisdiction. Currently, same–sex couples can legally marry in six U.S. states and the District of Columbia. Nine additional states have broad …

The Solicitor General’S Office, Tradition, And Conviction, Charles Fried

Fordham Law Review

No abstract provided.

Interpretive Schizophrenia: How Congressional Standing Can Solve The Enforce-But-Not-Defend Problem, Abner S. Greene

Fordham Law Review

No abstract provided.

The Obama Administration’S Decision To Defend Constitutional Equality Rather Than The Defense Of Marriage Act, Dawn Johnsen

Fordham Law Review

No abstract provided.

Doma And Presidential Discretion: Interpreting And Enforcing Federal Law, Joseph Landau

Fordham Law Review

No abstract provided.

The Moral Complexity Of Cause Lawyers Within The State, David Luban

Fordham Law Review

No abstract provided.

Cause Lawyers Inside The State, Douglas Nejaime

Fordham Law Review

No abstract provided.

“Two Parts Of The Landscape Of Family In America”: Maintaining Both Spousal And Domestic Partner Employee Benefits For Both Same-Sex And Different-Sex Couples, Nancy D. Polikoff

Fordham Law Review

No abstract provided.

Involuntary Imports: Williams, Lutwak, The Defense Of Marriage Act, Federalism, And “Thick” And “Thin” Conceptions Of Marriage, Lynn D. Wardle

Fordham Law Review

No abstract provided.

Collegiality And Individual Dignity, Tobias Barrington Wolff

Fordham Law Review

No abstract provided.