Digital Commons Network^™

Health Forest Networks: A Unified Urban Response To Regional Ecosystem Degradation And The Rise Of Chronic Disease, Rachel Toker

Fordham Urban Law Journal

No abstract provided.

“The Peace,” Domestic Violence, And Firearms In The New Republic, Laura Edwards

Fordham Urban Law Journal

No abstract provided.

Time And Tradition In Second Amendment Law, Jacob D. Charles

Fordham Urban Law Journal

No abstract provided.

Rent Controls And The Erosion Of Takings-Clause Protections: A Sordid History With Recent Cause For Optimism, Sam Spiegelman

Fordham Urban Law Journal

No abstract provided.

“Takings” And “Givings” In Singapore: Land Law And Policy In The Search For Justice, Rachel Phang

Fordham Urban Law Journal

No abstract provided.

Trashing The Chasing Arrows: How New York City Can Solve Its Plastics Problem, Rachel Zhu

Fordham Urban Law Journal

No abstract provided.

Pittfalls Of Progressive Prosecution, Carissa Byrne Hessick

Fordham Urban Law Journal

No abstract provided.

Money Creation And Bank Clearing, Nadav Orian Peer

Fordham Journal of Corporate & Financial Law

Like many other countries, the U.S. money supply consists primarily of deposits created by private commercial banks. How we understand bank money creation matters enormously. We are currently witnessing a debate between two competing understandings. On the one hand, a long-standing conventional view argues that bank money creation originates in individual market transactions. Based on this understanding, the conventional view narrowly limits the scope of banking regulation to market failure correction. On the other hand, authors in a new legal literature emphasize the public aspects of bank money creation, characterizing it as a “public franchise,” a “public-private partnership,” and part …

Without Reservation: Ensuring Uniform Treatment In Bankruptcy While Keeping In Mind The Interests Of Native American Individuals And Tribes, Connor D. Hicks

Fordham Journal of Corporate & Financial Law

The Bankruptcy Code (“Code”) exists as a mechanism for good faith debtors to discharge debts and seek a “fresh start” in life and finance. 11 U.S.C. § 106(a) ensures that not only are all debtors treated uniformly, but that all creditors, including governmental creditors which may otherwise enjoy immunity from suit, are equally subject to the jurisdiction of Bankruptcy courts and bound to the provisions of the Code.

However, a recent circuit split has demonstrated one niche yet significant instance in which a debtor may not receive the same treatment as their counterparts. While § 106 contains an express waiver …

The Battle With Big Tech: Analyzing Antitrust Enforcement And Proposed Reforms, Youngjae Lee, Morgan Hagenbuch

Fordham Journal of Corporate & Financial Law

No abstract provided.

The [De]Value Of Unsubstantiated Allegations Against The Police, Francy R. Monestime

Fordham Law Review

In 2020, New York State repealed Civil Rights Law section 50-a, which formerly prohibited disclosure of police and other civil servant disciplinary records. Shortly after this repeal, New York City’s Civilian Complaint Review Board (CCRB) released thousands of records of civilian complaints for all current and former New York City police officers that dated back to 2000. The release included substantiated findings of wrongdoing and unsubstantiated records in which no wrongdoing was found. Records continue to be released in this manner following the CCRB’s investigations.

Under New York City’s Administrative Procedure Act, agencies like the CCRB must follow certain procedures …

In The Thick(Et) Of It: Addressing Biologic Patent Thickets Using The Sham Exception To Noerr-Pennington, Anna Zhou

Fordham Intellectual Property, Media and Entertainment Law Journal

A biologic patent thicket occurs when a pharmaceutical company acquires a “dense web” of patents and other intellectual property rights regarding a specific product. While applying for multiple patents is permissible, the resulting protections can have antitrust implications. In an industry like biologics, where companies can acquire patent exclusivity and regulatory exclusivity over their products, the process of continuously accumulating these exclusivities seems to be an attempt to keep biosimilars at bay. Keeping competitors out of the market drives up prices and raises questions about how these regulatory and patent pathways are being used.

Recent class action litigation in the …

Solutions Still Searching For A Problem: A Call For Relevant Data To Support “Evergreening” Allegations, Erika Lietzan, Kristina Acri Née Lybecker

Fordham Intellectual Property, Media and Entertainment Law Journal

For years pharmaceutical policymaking discussions have been revolving around allegations of supposed “evergreening” by pharmaceutical companies, and policymakers have considered a range of significant policy reforms—including to antitrust law and drug regulatory law—to address this purported problem. This Article evaluates empirical data offered to substantiate “evergreening” and explains that these data—though mostly accurate—do not support proposed policy changes.

The “evergreening” claim is that by securing additional patents and FDA-related exclusivities after approval of their new drugs, brand drug companies enjoy a period of exclusivity in the market that is longer than the initial patent(s) and exclusivity on the drug would …

User-Generated Data Network Effects And Market Competition Dynamics, Uri Y. Hacohen

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article defines User-Generated Data (“UGD”) network effects, distinguishes them from the more familiar concept of traditional network effects, and explores their implications for market competition dynamics. It explains that UGD network effects produce various efficiencies for digital service providers (“data platforms”) by empowering their services’ optimization, personalization, and continuous diversification. In light of these efficiencies, competition dynamics in UGD-driven markets tend to be unstable and lead to the formation of dominant multi-industry conglomerates. These processes will enhance social welfare because they are natural and efficient. Conversely, countervailing UGD network effects also empower data platforms to detect and neutralize competitive …

Silly Gene Patent Is Not My Lover: A Retrospective Analysis Of Myriad, Stephanie Huang

Fordham Intellectual Property, Media and Entertainment Law Journal

The U.S. Supreme Court’s decision in Association for Molecular Pathology v. Myriad Genetics, Inc. established that an isolated fragment of a gene—the basic unit of heredity—is not patent-eligible subject matter while simultaneously holding that complementary DNA (cDNA) of a gene is patent-eligible subject matter. The decision has been controversial and criticized for including two holdings that are internally inconsistent from both scientific and patent law perspectives. But are the short- and long-term criticisms overstated? A decade after Myriad, the various impacts of the case remain relevant, particularly to the biotechnology and genetic testing fields.

First, this Note examines whether Myriad …

From Drawstring To Drawback: A Proposal For The Donation Alternative Program To Promote Environmental Responsibility In Fashion Act, Elliot O. Jackson

Fordham Intellectual Property, Media and Entertainment Law Journal

Given the modern interest in resold, repurposed, upcycled, and thrifted goods, the fashion industry was forced to welcome new players into its global market. In turn, these players offer new meaning to the phrase: “one man’s trash is another man’s treasure,” especially in light of post-pandemic consumer relations. Pairing creativity and innovation with existing techniques has allowed many designers, ateliers, and skilled professionals across the world to transform old or mundane goods into vibrant apparel. A worthy example of this practice is Dapper Dan’s transformation of garment bags from a high-fashion brand into upcycled or repurposed, one-of-a-kind products. The origin …

International Investment Law And Climate Justice: The Search For A Just Green Investment Order, Olabisi D. Akinkugbe, Adebayo Majekolagbe

Fordham International Law Journal

Efforts are underway to craft responses to the climate crisis within the international investment order. This Article highlights international investment law (“IIL”) and international climate law (“ICL”) as two basic governance contexts within which investment- related responses to climate change are being designed. There is, however, a multilevel—normative and institutional—dissonance between both regimes that makes for an asymmetric integration of the regimes at best, or worse still, the escalation of the injustices which have characterized both. While similar in their recognition of international investment as an important tool for responding to climate change, assumptions and approaches under both regimes are …

Evolution Of The Chinese Labor Problem In Trade And Investment Agreements: Notional Gap And Normative Necessity For Accession To Cptpp, Lizhen Zheng

Fordham International Law Journal

China’s perspective on labor regulation has impeded its integration into the global market. Although evidence indicates an attempt to assimilate to the dominant global markets’ perspectives, major challenges in labor exist. This article will assess the manner and likelihood that China will overcome these challenges to join critical trade agreements and partnerships, with the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”) as the latest analytical sample. The main issue is how China can prove its compliance with CPTPP labor provisions rather than bargaining over the division of relevant rights or obligations. China’s linkage efforts with free trade agreements and …

The Need For An International Tribunal On The Crime Of Aggression Regarding The Situation In Ukraine, Jennifer Trahan

Fordham International Law Journal

This Essay examines the imperative need to prosecute the crime of aggression being committed against Ukraine and doing so through an international tribunal created on the recommendation of the UN General Assembly. It also makes the case for amending the Rome Statute of the International Criminal Court to expand jurisdiction over the crime of aggression to cover future similar situations. Both are critically important in order to enforce the core norm against the use of force within the UN Charter through the regime of individual criminal responsibility. The Essay also briefly explores the paralysis caused within the UN Security Council …

Binding Hercules: A Proposal For Bench Trials, Maggie Wittlin

Faculty Scholarship

Should the Federal Rules of Evidence apply at bench trials? By their own terms, they apply, but courts have been reluctant to enforce them on themselves with the same rigor that they enforce them on juries. Scholarship on the issue has been mixed. Although McCormick deemed the rules of evidence "absurdly inappropriate" outside of the jury context, more recently, scholars have suggested that many reasons for imposing exclusionary rules on jurors also apply to judges. Yet practical problems persist. For one, once judge evaluate the admissibility of evidence, they can’t “unring the bell” and ignore evidence they've decided to exclude. …

Theorizing Corroboration, Maggie Wittlin

Faculty Scholarship

A child makes an out-of-court statement accusing an adult of abuse. That statement is important proof, but it also presents serious reliability concerns. When deciding whether it is sufficiently reliable to be admitted, should a court consider whether the child’s statement is corroborated—whether, for example, there is medical evidence of abuse? More broadly, should courts consider corroboration when deciding whether evidence is reliable enough to be admitted at trial? Judges, rule-makers, and scholars have taken significantly divergent approaches to this question and come to different conclusions.

This Article argues that there is a key problem with using corroboration to evaluate …

Should Prosecutors Be Expected To Rectify Wrongful Convictions, Bruce A. Green

Faculty Scholarship

In 2008, the American Bar Association amended the Model Rules of Professional Conduct to address prosecutors’ post-conviction conduct. Model Rules 3.8(g) and (h) establish the remedial steps a prosecutor must take after achieving a criminal conviction when confronted with significant new evidence of an injustice. They require prosecutors to disclose the new exculpatory evidence and to take reasonable steps to initiate an investigation, and if clear and convincing evidence then establishes the convicted defendant’s innocence, the prosecutors’ office must take reasonable steps to rectify the injustice. Since then, 24 state judiciaries have adopted versions of one or both rules. Although …

The Indecisions Of 1789: Inconstant Originalism And Strategic Ambiguity, Jed H. Shugerman

Faculty Scholarship

The unitary executive theory relies on the First Congress and an ostensible “Decision of 1789” as an originalist basis for unconditional presidential removal power. In light of new evidence, the First Congress was undecided on any constitutional theory and retreated to ambiguity in order to compromise and move on to other urgent business.

Seila Law’s strict separation-of-powers argument depends on indefeasibility (i.e., Congress may not set limits or conditions on the president’s power of civil removal). In fact, few members of the First Congress defended or even discussed indefeasibility. Only nine of fifty-four participating representatives explicitly endorsed the presidentialist view …

Bottom-Rung Appeals, Merritt E. Mcalister

Fordham Law Review

There are “haves” and “have-nots” in the federal appellate courts, and the “haves” get more attention. For decades, the courts have used a triage regime under which they distribute judicial attention selectively: some appeals receive a lot of judicial attention, and some appeals receive barely any. What this Article reveals is that this triage system produces demonstrably unequal results, depending on the circuit handling the appeal and whether the appellant has counsel or not. Together, these two factors produce significant disparities: in one circuit, for example, an unrepresented appellant receives, on average, a decision less than a tenth the length …

Command And Control: Operationalizing The Unitary Executive, Gary Lawson

Fordham Law Review

The concept of the unitary executive is written into the Constitution by virtue of Article II’s vesting of the “executive Power” in the President and not in executive officers created by Congress. Defenders and opponents alike of the “unitary executive” often equate the idea of presidential control of executive action with the power to remove executive personnel. But an unlimitable presidential removal power cannot be derived from the vesting of executive power in the President for the simple reason that it would not actually result in full presidential control of executive action, as the actions of now-fired subordinates would still …

Representing Noncitizens In The Context Of Legal Instability And Adverse Detention Precedent, Nancy Morawetz

Fordham Law Review

This Essay addresses three structural aspects of immigration law that have shifted in recent years and present important challenges for delivering adequate representation. Although the Katzmann study group’s many initiatives have shored up access to counsel in immigration courts and for immigration applications, the ground has been shifting under our feet. This Essay discusses three (of many) phenomena that make it harder than ever to lawyer on behalf of noncitizens. The first is the rise of red-state lawsuits that lead to enormous unpredictability about the agency rules under which lawyers can expect to operate. The second is the individuation and …

Harsh Creditor Remedies And The Role Of The Redeemer, Christopher D. Hampson

Fordham Law Review

The concept of the judgment-proof or collection-proof debtor is fundamental to our understanding of civil law and of what distinguishes it from criminal law. But when civil creditors can threaten unduly harsh or cruel debt collection measures (whether legally or not), they extend their reach into the pockets of those whom this Article calls “redeemers,” third parties with a familial or quasi-familial relationship to civil debtors who have reason to pay on their behalf. This Article examines four such measures—imprisonment, homelessness, destitution, and deportation—remedies that sound like they come from another time and place, but which are threatened by some …

Nondomination And The Ambitions Of Employment Law, Aditi Bagchi

Faculty Scholarship

There is something missing in existing discussions of domination. While republican theory and critical legal theory each have contributed significantly to our understanding of domination, their focus on structural relationships and group subordination can leave out of focus the individual wrongs that make up domination, each of which is an unjustified exercise of power by one person over another. Private law (supported by private law theory) plays an important role in filling out our pictures of domination and the role of the state in limiting it. Private law allows us to recognize domination in wrongs by one person against another, …

The Uncertain Judge, Courtney M. Cox

Faculty Scholarship

The intellectually honest judge faces a very serious problem about which little has been said. It is this: What should a judge do when she knows all the relevant facts, laws, and theories of adjudication, but still remains uncertain about what she ought to do? Such occasions will arise, for whatever her preferred theory about how she ought to decide a given case—what I will call her preferred “jurisprudence”— she may harbor lingering doubts that a competing jurisprudence is correct instead. And sometimes, these competing jurisprudences provide conflicting guidance. When that happens, what should she do?

Drawing on emerging debates …

Disclosing Corporate Diversity, Atinuke O. Adediran

Faculty Scholarship

This Article’s central claim is that disclosures can be used instrumentally to increase diversity in corporate America in terms of race, gender, sexual orientation, and disability. Until recently, scholars and policymakers have underappreciated this possibility because diversity was often omitted from the larger Environmental, Social, and Governance (“ESG”) disclosures context, even though, as this Article empirically shows, public companies make diversity disclosures in that context.

Diversity disclosures are important not only for shareholders’ interests in transparency, but also for the benefit of other stakeholders, including employees, customers, and the communities in which companies operate, who want to know whether companies …