Law Commons^™

The Early Bird Waits For The Worm: May Federal Judgments Be Registered Prior To Appeal?, Cristina M. Rincon

Fordham Law Review

The federal registration statute, codified at 28 U.S.C. § 1963, permits a judgment creditor to register his or her judgment in another state by simply filing a copy of the judgment with the clerk of the registering court. Registration is permitted when the judgment becomes final by appeal, when the time to appeal expires, or when the court that entered the judgment orders registration for good cause shown. The majority of courts have interpreted good cause as a showing that the judgment debtor lacks assets in the forum jurisdiction to fulfill the judgment, but possesses substantial assets in the registering …

The Dangerous Law Of Biological Race, Khiara M. Bridges

Fordham Law Review

The idea of biological race—a conception of race that postulates that racial groups are distinct, genetically homogenous units—has experienced a dramatic resurgence in popularity in recent years. It is commonly understood, however, that the U.S. Supreme Court has rejected the idea that races are genetically uniform groupings of individuals. Almost a century ago, the Court famously appeared to recognize the socially constructed nature of race. Moreover, the jurisprudence since then appears to reaffirm this disbelief: within law, race is understood to be a social construction, having no biological truth to it at all. Yet upon closer examination, the Court’s apparent …

A Three-Tiered Public Policy Approach To Copyright Misuse In The Context Of Tying Arrangements, Sandy Azer

Fordham Law Review

Over two decades since the copyright misuse doctrine was first recognized in Lasercomb America, Inc. v. Reynolds, a uniform approach for determining whether a specific behavior constitutes misuse still does not exist. Circuit courts have commonly applied two competing approaches to the misuse analysis. One approach centers on the public policy underlying copyrights; the other approach centers on antitrust principles. This Note explores relevant jurisprudence and elucidates the shortfalls of each approach. It then proposes a compromise that underscores the interplay between copyright and antitrust laws. The proposed resolution aims to provide a much–needed uniform misuse analysis that does …

Everyone’S A Little Bit Racist? Reconciling Implicit Bias And Title Vii, Christopher Cerullo

Fordham Law Review

Since its enactment as part of the Civil Rights Act of 1964, Title VII’s main purpose has been to end all forms of employment discrimination. Through a flexible judicial interpretation of Title VII that reached newly discovered forms of discrimination, and through occasional intervention by Congress to update the statute, Title VII has been largely successful in reducing and remedying instances of overt discrimination in the workplace. However, more recently, social scientists have analyzed and applied the results of Harvard’s Implicit Association Test to recognize a new form of discrimination characterized by a subconscious decisionmaking process based on intuition and …

“Undetected, Unsuspected, And Unknown”: Should We Anticipate Problems For Scientific Innovation Following Schering Corp. V. Geneva Pharmaceuticals?, Jeffrey Coleman

Fordham Law Review

Once termed the “metaphysics” of patent law, the doctrine of inherent anticipation has befuddled courts and practitioners alike for decades. Inherent anticipation refers to the notion that a previously published reference can disclose each and every limitation of a later–patented invention without expressly delineating those limitations. These (un)disclosed limitations are necessarily present, or inherent, within the previously published reference. When a previously published reference discloses a later–claimed invention expressly or inherently, the patent covering the later–claimed invention is invalid because the invention lacks novelty. Thus, the doctrine of inherent anticipation allows invalidation of a patent in whole or in part …

No Defense For Self-Defense: Determining Whether Courts Should Order Insurers To Represent Insureds Who Have Acted In Self-Defense, Alex Dzioba

Fordham Law Review

The right to defend oneself has traditionally been heavily protected by courts in all scenarios. However, the refuge that an act of self–defense provides becomes muddled in the context of an insurance agreement. State courts are split on whether an insured who claims to have acted in self–defense is entitled to legal representation and compensation from the insurer in light of an insurance contract containing an intentional injury exclusion clause. This clause is used virtually uniformly throughout the insurance industry and it has caused courts to ponder if an act of selfdefense fits within the language of such a clause, …

Sunbeam: A Ray Of Hope For Trademark Licensees, Ryan Gabay

Fordham Law Review

In the 1985 decision Lubrizol Enterprises v. Richmond Metal Finishers, the Fourth Circuit established that a licensor’s rejection of an intellectual property license under § 365 of the U.S. Bankruptcy Code terminates the licensee’s right to continue using the license. Concerned about the detrimental effects that Lubrizol would have on technological development in the United States, Congress responded swiftly by enacting the Intellectual Property Licenses in Bankruptcy Act (IPLBA), which exempted certain forms of intellectual property, such as copyrights, patents, and trade secrets, from rejection under § 365 of the Code. Trademarks, however, are notably absent from Congress’s definition …

When Is When?: 8 U.S.C. § 1226(C) And The Requirements Of Mandatory Detention, Gerard Savaresse

Fordham Law Review

Over the past several decades, immigration law has come to resemble criminal law in a number of ways. Most significantly, the current statutory regime allows the U.S. Attorney General (AG) to detain noncitizens during their removal proceedings. Ordinarily, the AG may detain noncitizens subject to removal so long as the AG provides an individualized bond hearing to assess whether the noncitizen poses a flight risk or a danger to the community. Pursuant to 8 U.S.C. § 1226(c), however, the AG must detain and hold without bond any noncitizen who has committed qualifying offenses “when the alien is released” from criminal …

A New Split On Old Age: Preclusion Of § 1983 Claims And The Adea, Emer M. Stack

Fordham Law Review

In 1967, Congress enacted the Age Discrimination in Employment Act (ADEA) to combat employer bias against older workers and to reject the idea that the job performance of all employees declines with age. The ADEA provides a statutory scheme for addressing age discrimination against employees aged forty years and older. Some older workers, however, have turned instead to the Equal Protection Clause of the Fourteenth Amendment, using § 1983 claims as a means of relief.

A six–to–one circuit split has emerged as to whether the ADEA is the exclusive remedy for age discrimination or whether an aggrieved older worker can …

Colorblind Constitutionalism, Randall Kennedy

Fordham Law Review

No abstract provided.

Foreward, Howard M. Erichson, Benjamin C. Zipursky

Fordham Law Review

No abstract provided.

Adequately Representing Groups, Elizabeth Chamblee Burch

Fordham Law Review

No abstract provided.

The Governance Problem In Aggregate Litigation, Samuel Issacharoff

Fordham Law Review

Recent developments in class action law and scholarship have forced new attention on the question of how class representation should be assessed. This Article begins with an examination of the governance problem in class action analyzed from the perspective of the customary political theories that would justify legitimate government in public and private domains. Customary accounts of democratic legitimacy or contractual voluntarism poorly capture the distinct world of the one-time aggregation of a class under court-assigned leadership. What emerges is an assessment of how various class action doctrines serve to fill the void in customary indications of legitimacy in governance. …

The Political Justification For Group Litigation, Alexandra D. Lahav

Fordham Law Review

No abstract provided.

“Helpless” Groups, Troy A. Mckenzie

Fordham Law Review

No abstract provided.

Ethical Issues In Mass Tort Plaintiffs’ Representation: Beyond The Aggregate Settlement Rule, Nancy J. Moore

Fordham Law Review

Those who have addressed ethics issues for plaintiffs’ lawyers in mass tort litigation have focused on possible reform of the aggregate settlement rule to facilitate global settlements. This Article addresses a broader range of ethical issues, including (1) application of the general conflicts of interest rule to both client-client and client-lawyer conflicts; (2) unresolved issues concerning the interpretation of the current aggregate settlement rule, including the need to disclose client names and the applicability of the rule to court-approved settlements and formula or matrix allocations; and (3) the ability of lawyers to voluntarily withdraw from representing plaintiffs who reject an …

Social Impact Bonds And The Private Benefit Doctrine: Will Participation Jeopardize A Nonprofit’S Tax-Exempt Status?, Peter G. Dagher Jr.

Fordham Law Review

In August 2012, the first social impact bond in the United States was implemented, introducing a revolutionary framework that aligns the incentives of the participants and provides nonprofits with a steady source of long term funding to scale up social projects. In the prevailing social impact bond structure, private investors essentially place a bet with a government agency that the selected nonprofits will accomplish measureable goals through a comprehensive project designed to reduce public costs. If the program fails to reach these goals, the investors lose the bet and their entire financial commitment to the social impact bond. If the …

The Justiciability Of State Consumer Protection Claims In Federal Courts: A Study Of Named Plaintiffs Who Cease Using The Disputed Product Yet Seek Injunctive Relief, Meaghan Millan

Fordham Law Review

In recent years, there has been an increase in consumer protection class action litigation in federal courts. These suits arise from a group of consumers who have felt deceived by a particular product, ceased using that product, and then tried to sue a defendant manufacturer through state consumer protection statutes. Often, these individuals seek to enjoin the defendant’s use of an allegedly unfair business practice, such as “all natural” labeling. Since the plaintiff no longer uses the product, however, many district courts have refused to recognize that they may be at risk of a future injury and have held that …

Plea Bargaining In The Dark: The Duty To Disclose Exculpatory Brady Evidence During Plea Bargaining, Michael Nasser Petegorsky

Fordham Law Review

Ninety-seven percent of federal convictions are the result of guilty pleas. Despite the criminal justice system’s reliance on plea bargaining, the law regarding the prosecution’s duty to disclose certain evidence during this stage of the judicial process is unsettled. The Supreme Court’s decision in Brady v. Maryland requires the prosecution to disclose evidence that establishes the defendant’s factual innocence during a trial. Some courts apply this rule during plea bargaining and require the disclosure of material exculpatory evidence before the entry of a guilty plea. Other courts have held or suggested that the prosecution may suppress exculpatory evidence during plea …

Anonymity In Cyberspace: Judicial And Legislative Regulations, Sophia Qasir

Fordham Law Review

Historically, the scope of constitutional protections for fundamental rights has evolved to keep pace with new social norms and new technology. Internet speech is on the rise. The First Amendment protects an individual’s right to speak anonymously, but to what extent does it protect a right to anonymous online speech? This question is difficult because the government must balance the fundamental nature of speech rights with the potential dangers associated with anonymous online speech, including defamation, invasion of privacy, and intentional infliction of emotional distress. While lower courts have held that there is a right to anonymous online speech, they …

The Solicitor General And Confession Of Error, Neal Kumar Katyal

Fordham Law Review

solicitor general, error, federal litigation

Lawyering For Groups: The Case Of American Indian Tribal Attorneys, Kristen A. Carpenter, Eli Wald

Fordham Law Review

Lawyering for groups, broadly defined as the legal representation of a client who is not an individual, is a significant and booming phenomenon. Encompassing the representation of governments, corporations, institutions, peoples, classes, communities, and causes, lawyering for groups is what many, if not most, lawyers do. And yet, the dominant theory of law practice—the Standard Conception, with its principles of zealous advocacy, nonaccountability, and professional role-based morality—and the rules of professional conduct that codify it, continue to be premised on the basic antiquated assumption that the paradigmatic client-attorney relationship is between an individual client and an individual attorney. The result …

The Geography Of Revlon-Land, Stephen M. Bainbridge

Fordham Law Review

In Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., the Delaware Supreme Court explained that, when a target board of directors enters Revlon-land, the board’s role changes from that of “defenders of the corporate bastion to auctioneers charged with getting the best price for the stockholders at a sale of the company.”

Unfortunately, the Court’s colorful metaphor obfuscated some serious doctrinal problems. What standards of judicial review applied to director conduct outside the borders of Revlon-land? What standard applied to director conduct falling inside Revlon-land’s borders? And when did one enter that mysterious country?

By the …

You Must Be This Qualified To Offer An Opinion: Permitting Law Enforcement Officers To Testify As Laypersons Under Federal Rule Of Evidence 701, Kim Channick

Fordham Law Review

Every day, in courtrooms across the United States, law enforcement officers testify in criminal and civil trials. Often an officer is certified as an expert witness and, accordingly, can provide opinions to the court based on his or her law enforcement expertise. Other times, the officer offers testimony as a layperson. In the latter situation, Federal Rule of Evidence 701 controls the officer’s lay opinion testimony. This Rule was first adopted to remedy a problematic common law practice of universally prohibiting lay opinion testimony. As the Rule stands now, all lay witnesses, including law enforcement officers, must limit their opinions …

Employer Monitoring Of Employee Email: Attorney-Client Privilege Should Attach To Communications That The Client Believed Were Confidential, Alex Delisi

Fordham Law Review

Emails feel like private, confidential communications. But in the workplace, employers often retain the right to monitor every communication sent or received by an employee on an employer-owned device or network. This Note addresses the issue of whether attorney-client privilege should attach to communications made between an employee and her private attorney over a system monitored by her employer. When addressing this issue, most district and state courts apply a test that seeks to determine the reasonableness of the employee’s expectation of confidentiality in the attorney-client communication. However, courts differ in how they apply the expectation of reasonableness test, with …

Across The Border And Back Again: Immigration Status And The Article 12 “Well-Settled” Defense, Michael Singer

Fordham Law Review

The Hague Convention on the Civil Aspects of International Child Abduction is a multilateral international treaty designed to effectively govern the return of children abducted (often by a parent) and taken to a foreign country. In most cases, if the “left-behind” parent applies for relief under the Convention within a year of the abduction, the child must be returned to the country of origin for a custody hearing. If, however, the application for return is made more than one year after abduction and the child is now “well-settled” in their new environment, the application may be denied under the well-settled …

Foreword: Antitrust’S Pursuit Of Purpose, Barak Orbach

Fordham Law Review

No abstract provided.

Institutional Design, Agency Life Cycle, And The Goals Of Competition Law, David A. Hyman, William E. Kovacic

Fordham Law Review

No abstract provided.

Economics And Politics: Perspectives On The Goals And Future Of Antitrust, Jonathan B. Baker

Fordham Law Review

This Article examines the roles of economics and politics in U.S. antitrust from several perspectives. It explains why the modern debate over the economic welfare standard that enforcers and courts should pursue is unsatisfying. It connects economics with politics by describing antitrust’s economic goals as the product of a mid-twentieth century political understanding about the nature of economic regulation that continues to be accepted. To protect that understanding, it explains, antitrust rules should now be implemented using a qualified consumer welfare standard. It identifies contemporary political tensions that threaten to create regulatory gridlock or even to undermine that political understanding …

Reframing The (False?) Choice Between Purchaser Welfare And Total Welfare, Alan J. Meese

Fordham Law Review

This Article critiques the role that the partial equilibrium trade–off paradigm plays in the debate over the definition of “consumer welfare” that courts should employ when developing and applying antitrust doctrine. The Article contends that common reliance on the paradigm distorts the debate between those who would equate “consumer welfare” with “total welfare” and those who equate consumer welfare with “purchaser welfare.” In particular, the model excludes, by fiat, the fact that new efficiencies free up resources that flow to other markets, increasing output and thus the welfare of purchasers in those markets. Moreover, the model also assumes that both …