Law Commons^™

Originalism: A Critical Introduction, Keith E. Whittington

Fordham Law Review

The theory of originalism is now well into its second wave. Originalism first came to prominence in the 1970s and 1980s as conservative critics reacted to the decisions of the Warren Court, and the Reagan Administration embraced originalism as a check on judicial activism. A second wave of originalism has emerged since the late 1990s, responding to earlier criticisms and reconsidering earlier assumptions and conclusions. This Article assesses where originalist theory currently stands. It outlines the points of agreement and disagreement within the recent originalist literature and highlights the primary areas of continuing separation between originalists and their critics.

Originalism, The Why And The What, Larry Alexander

Fordham Law Review

No abstract provided.

Originalism And Constitutional Construction, Lawrence B. Solum

Fordham Law Review

Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. The interpretation–construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the nineteenth and twentieth centuries, marks the difference between these two activities.

This Article advances two central claims about constitutional construction. First, constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual: …

The New Originalism And The Foreign Affairs Constitution, Andrew Kent

Fordham Law Review

No abstract provided.

Commencement Address, Preet Bharara

Res Gestae

No abstract provided.

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.

Stein Center News - September 2013, Stein Center For Law And Ethics

Stein Center News

No abstract provided.

Eric M. Berman, P.C. V. Dba Asset Holding Corp., Carolyn Coffey, Theodora Galacatos, Claudia Wilner

Amicus Briefs

No abstract provided.

Appropriation And Transformation, Darren Hudson Hick

Fordham Intellectual Property, Media and Entertainment Law Journal

The recent decision in Cariou v. Prince has reinvigorated a pressing issue for the contemporary movement of appropriation art: how can art which is defined by its taking from other artworks hope to survive in the world of copyright? In this article, I consider the legal history leading to the Cariou case, including a series of suits brought against appropriation artist Jeff Koons, as well as strategies proposed by several theorists for accommodating appropriation art within the law. Unfortunately, largely due to vagaries of the law and the misunderstood nature of appropriation art, the matter remains unresolved. I argue that, …

Signs And Portents In Cyberspace: The Rise Of Jus Internet As New Order In International Law, Roy Balleste, Joanna Kulesza

Fordham Intellectual Property, Media and Entertainment Law Journal

Today, having sufficient access to the Internet's information has arguably become a prerequisite for the enjoyment of human life. The Internet has become a center for human literacy and has the potential to offer numerous kinds of instruction at lower costs and with higher quality than previous media could offer. This Article will argue that the concept of a "cybered Westphalian age," as a cure to all threats in the Internet, has the potential to do more harm than good. The international community is now faced with a possible policy shift from the current state of the Internet, which is …

The Need For Patent-Centric Standard Of Antitrust Review To Evaluate Reverse Payment Settlements, Tania Khatibifar

Fordham Intellectual Property, Media and Entertainment Law Journal

Reverse payment settlements have ignited a firestorm debate among all affected parties: consumer groups, brand-name pharmaceutical companies, generic manufacturers, pharmaceutical wholesalers and retailers, lawmakers, executive agencies, and the federal courts. The Federal Trade Commission (“FTC”) has waged a decade-long battle against such private settlements of pharmaceutical patent litigation as illegal market-sharing agreements, with skirmishes among the circuits trending in favor of the settling parties until recently. The Third Circuit’s recent decision in In re K-Dur Antitrust Litigation unsettled this trend, and the Supreme Court granted the FTC’s petition for a writ of certiorari in a separate case on the issue …

Navigating Unfamiliar Terrain: Reconciling Conflicting Impressions Of China’S Intellectual Property Regime In An Effort To Aid Foreign Right Holders, Matthew A. Marcucci

Fordham Intellectual Property, Media and Entertainment Law Journal

While imperial China was a notably inventive place, formal intellectual property protections analogous to those in the West failed to emerge there of their own accord. The deep influence of Confucianism on imperial Chinese society brought about a culture that subordinated individual desires to group harmony and perceived original creations as products not of individual people but of the society to which they belonged. Moreover, Confucianism's influence on education and literature rendered verbatim copying not merely an accepted practice but a fundamental aspect of scholarship. Buddhism's close connection to the emergence of printing in China also served to delay by …

The Supreme Court And Patents: Moving Toward A Postmodern Vision “Progress”?, Simone A. Rose

Fordham Intellectual Property, Media and Entertainment Law Journal

This paper challenges the traditional “modernist” view that incentive-centered patent protection is essential to meet the constitutional mandate of providing exclusive rights for limited times to inventors in order to “promote progress of the useful Arts.” For a modernist society, industrial/economic growth is one of the key dimensions for measuring forward-moving progress. As modernists, we advocate that a robust exclusive rights scheme for inventors is necessary to incentivize research anddevelopment, which in turn stimulates economic growth and promotes progress. This is currently the “grand narrative” of patent law. Applying this narrative, Congress, the Patent and Trademark Office (PTO), and the …

Reexamining Two Pesos, Qualitex, & Wal-Mart: A Different Approach…Or Perhaps Just Old Abercrombie Wine In A New Bottle?, Russ Versteeg

Fordham Intellectual Property, Media and Entertainment Law Journal

In Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205 (2000), the United States Supreme Court held that, in order for a product design to be protectable under § 43(a) of the Lanham Act, the product design must first acquire a secondary meaning. Writing for the Court, Justice Scalia, reasoned that consumers, as a rule, do not expect a product’s design to serve as an indicator of source. The Court stated that product designs, like colors, do not ordinarily operate as source indicators, and that is why the Court established its rule that a product design must acquire a …

Shutting Down The Turbine: How The News Industry And News Aggregators Can Coexist In A Post-Barclays V. Theflyonthewall.Com World, Nicole Marimon

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Stein Center News - May 2013, Stein Center For Law And Ethics

Stein Center News

No abstract provided.

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 …

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 …

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.