Digital Commons Network^™

Based On A True Story: The Ever-Expanding Progeny Of Rogers V. Grimaldi, Zachary Shufro

Fordham Intellectual Property, Media and Entertainment Law Journal

Trademark law limits the extent and manner to which individuals can use a surprisingly large percentage of common words in the English language. Indeed, as one empirical study of trademark registrations revealed, “when we use our language, nearly three-quarters of the time we are using a word that someone has claimed as a trademark.” Because trademark law grants a negative right to the mark-holder—that is to say, a right to prevent others from using that trademarked word in certain manners and contexts—it inherently conflicts with the First Amendment. In assessing the resulting discord from such a conflict, courts have several …

Speak Out: Verifying And Unmasking Cryptocurrency User Identity, Hadar Y. Jabotinsky, Michal Lavi

Fordham Intellectual Property, Media and Entertainment Law Journal

Terror attacks pose a serious threat to public safety and national security. New technologies assist these attacks, magnify them, and render them deadlier. The more funding terrorist organizations manage to raise, the greater their capacity to recruit members, organize, and commit terror attacks. Since the September 11, 2001 terror attacks, law enforcement agencies have increased their efforts to develop more anti-terrorism and anti-money laundering regulations, which are designed to block the flow of financing of terrorism and cut off its oxygen. However, at present, most regulatory measures focus on traditional currencies. As these restrictions become more successful, the likelihood that …

Remaking Public Defense In An Abolitionist Framework: Non-Reformist Reform And The Gideon Problem, Eli Salamon-Abrams

Fordham Urban Law Journal

No abstract provided.

Multiunit Housing And Cannabis: Good Laws Make Good Neighbors, Daniel G. Orenstein

Fordham Urban Law Journal

No abstract provided.

How State Reforms Have Mellowed Federal Enforcement Of Marijuana Prohibition, Douglas A. Berman, Alex Fraga

Fordham Urban Law Journal

No abstract provided.

Crushing The Soul Of Federal Public Defenders: The Plea Bargaining Machine’S Operation And What To Do About It, Walter I. Gonçalves, Jr.

Fordham Urban Law Journal

No abstract provided.

Understanding The Public’S Opinions Of Uav-Assisted Residential Monitoring By Police, Linda M. Merola, Ryan P. Murphy

Fordham Urban Law Journal

No abstract provided.

The Rainbow Connection: Revisiting The Mixed-Motive Summary Judgement Standard In Bostock’S Afterglow, Courtney Vice

Fordham Urban Law Journal

No abstract provided.

More Than Merit: Reframing The Debate Over Examination-Based Admissions In Public Schools, Aaron Saiger

Fordham Urban Law Journal

No abstract provided.

The Nature And Value Of Public Space (With Some Lessons From The Pandemic), Christopher Essert

Fordham Urban Law Journal

No abstract provided.

Reasonable Accommodation And Disparate Impact: Clean Shave Policy Discrimination In Today’S Workplace, Yucheng (Renee) Jiang

Fordham Urban Law Journal

No abstract provided.

Direct Liability And Veil-Piercing: When One Door Closes, Another Opens, King Fung Tsang, Katie Ng

Fordham Journal of Corporate & Financial Law

Piercing the corporate veil has been substantially limited in English law since Prest v. Petrodel. This contraction coincides with the development of the direct liability doctrine which attaches liability directly on the parent company. The authors argue that the shift from using piercing the corporate veil to direct liability is a positive development as it gives English courts a better tool to combat the abuse of separate legal personality. However, compared the English doctrines with their counterparts under the U.S. laws, it is argued that the much broader U.S. piercing doctrine makes the expansion of direct liability doctrine unnecessary in …

The Cryptic Nature Of Crypto Digital Assets Regulations: The Ripple Lawsuit And Why The Industry Needs Regulatory Clarity, Jacqueline Hennelly

Fordham Journal of Corporate & Financial Law

The tension and associated time lag between technology and regulation has been well documented. Paradigmatic of this phenomenon is the global evolution of blockchain technology and digital assets. Digital assets in the blockchain allow users to transact directly without financial intermediaries. However, the regulatory guidelines for the assets, their issuance, and the subsequent transactions are unclear. The Securities and Exchange Commission (SEC) has filed an action to apply its existing regulations and the judicial interpretations to Ripple’s issuance of XRP, its token, and Ripple’s control over subsequent user transactions of XRP. This Note uses SEC v. Ripple as a case …

The Twenty-First Annual A.A. Sommer, Jr. Lecture On Corporate, Securities & Financial Law At The Fordham Corporate Law Center, Matthew Diller, G. Jeffrey Boujoukos, Ben A. Indek, Allison Herren Lee

Fordham Journal of Corporate & Financial Law

No abstract provided.

Output Effect Of Private Antitrust Enforcement, Sinchit Lai

Fordham Journal of Corporate & Financial Law

A growing body of literature evaluates the impact of antitrust laws on economic growth. Most of these empirical studies identify a positive impact; however, the existing literature only studies the effect of the existence of antitrust laws, but not their enforcement. To fill this gap in the literature, this Article uses private antitrust case filing numbers to examine the growth effect. Employing U.S. data and, after addressing endogeneity, using a two-stage least squares (2SLS) regression analysis, I identify a negative and robust association between private enforcement and output on a national level in the short run over the period from …

Spac The Deck: Why The Control Exerted By Spac Sponsors Subjects De-Spac Transactions To Entire Fairness Review, Aj Harris

Fordham Journal of Corporate & Financial Law

Special purpose acquisition companies (SPACs), otherwise known as blank check companies, are corporations created to raise capital from investors with the express purpose of using such capital to acquire an already existing business. Much like a traditional merger, the transaction between the SPAC and the target company (formally called the “Initial Business Combination” or colloquially the “de- SPAC transaction”) is highly scrutinized in shareholder litigation. However, Delaware courts have not definitively established under which standard these de-SPAC transactions should be reviewed. This Note examines the SPAC structure, evaluates the arguments for the respective standards, and ultimately concludes that Delaware courts …

Peeking Into The House Of Cards: Money Laundering, Luxury Real Estate, And The Necessity Of Data Verification For The Corporate Transparency Act’S Beneficial Ownership Registry, S. Alexandra Bieler

Fordham Journal of Corporate & Financial Law

It is estimated that $800 billion to $2 trillion are laundered globally every year, funding the schemes of bad actors and terrorists alike. These astronomical sums are moved around the world without detection; this is in large part due to the ease with which anonymous shell companies, typically limited liability companies (LLCs), can be created, particularly in the United States. America is one of the most egregious enablers of this practice because most states require little to no information about the person ultimately controlling the entity, known as the “beneficial owner.” Working through an LLC, bad actors often turn to …

Does Cryptocurrency Staking Fall Under Sec Jurisdiction?, Nicholas E. Gonzalez

Fordham Journal of Corporate & Financial Law

Bitcoin, the first blockchain and cryptocurrency (crypto), launched in 2009 when the Bitcoin network opened to the public. A blockchain is a digital ledger technology where transactions are aggregated and permanently recorded into blocks of information. Maintenance of a blockchain is typically conducted by decentralized managers who own and operate network computers (“Nodes”) and serve the functions normally handled by central intermediaries to validate and confirm transactions. All Nodes follow a blockchain protocol. In Bitcoin’s and most cryptos’ cases, this protocol is known as a Proof- of-Work protocol which requires a large amount of energy consumption. Consequently, Proof-of-Stake protocols (“PoS”) …

Failed Analogies: Justice Thomas’S Concurrence In Biden V. Knight First Amendment Institute, Sarah S. Seo

Fordham Intellectual Property, Media and Entertainment Law Journal

Twenty-six years ago, twenty-six words created the internet. Section 230 of the Communications Decency Act is a short, yet powerful, provision that notably protects social media platforms, among other interactive computer services, from liability for content created by third-party users. At the time of its enactment, Section 230 aimed to encourage the robust growth of the then-nascent internet while protecting it from government regulation. More recently, however, it has been wielded by Big Tech companies like Twitter and Facebook to prevent any liability for real-world harms that stem from virtual interactions conducted over their platforms.

Although the Supreme Court has …

Algorithms And Misinformation: The Constitutional Implications Of Regulating Microtargeting, Talia Bulka

Fordham Intellectual Property, Media and Entertainment Law Journal

The increased popularity of social media in recent years has brought with it unwanted consequences. Most notably, the world is experiencing a widespread epidemic of online misinformation and disinformation. In the form of news stories and advertisements, false information about candidates like Joe Biden, Hillary Clinton, and Donald Trump has spread over Facebook, Instagram, Twitter, and TikTok. Since false information is often more sensational than the truth, this information is reposted and shared until it reaches millions of people. However, the real culprit of this misinformation phenomenon is microtargeting—algorithms that exploit users’ personal information and previous media interactions to target …

I See Dead Patents: How Bugs In The Patent System Keep Expired Patents Alive, Dinis Cheian

Fordham Intellectual Property, Media and Entertainment Law Journal

One of the most important days in the life of a patent is the day it dies.

The moment a patent dies, the patent owner loses her monopoly over her invention, ending the stream of income generated by that patent. Without an enforceable patent to protect the invention, the competitors and public can freely buy and sell copycat products that compete with the patent owner’s. Consumers reap the rewards in the form of more options and lower prices.

Normally, those potential competitors must wait exactly twenty years from the date the patent application is filed with the United States Patent …

On The Propertization Of Data And The Harmonization Imperative, Luis Miguel M. Del Rosario

Fordham Law Review

The digital age has paved the way for unforeseen and unconscionable harms. Recent experiences with security breaches, surveillance programs, and mass disinformation campaigns have taught us that unchecked data collection, use, retention, and transfer have the potential to affect everything from health-care access to national security. And they have shown the growing need for a solution that addresses this proliferation of intangible collective harms. This Note champions data propertization—the process of establishing a bundle of rights in data comparable to those that comprise property interests—as the proper method for preventing and redressing data harms. More specifically, this Note analyzes Illinois’s …

Re-Defining Particular Social Group In The United States: Looking To International Guidance In The Wake Of The Matter Of A-B- Vacatur, Grace Carney

Fordham International Law Journal

No abstract provided.

The Institutions Of Family Law, Clare Huntington

Faculty Scholarship

Family law scholarship is thriving, with scholars using varied methodologies to analyze intimate partner violence, cohabitation, child maltreatment, juvenile misconduct, and child custody, to name but a few areas of study. Despite the richness of this discourse, however, most family law scholars ignore a key tool deployed in virtually every other legal-academic domain: institutional analysis.

This methodology, which plays a foundational role in legal scholarship, focuses on four basic questions. Scholars often begin empirically, identifying the specific legal, social, and economic institutions that shape an area of legal regulation. Beyond descriptive accounts, scholars analyze how authority is and should be …

Lowering The Stakes Of The Employment Contract, Aditi Bagchi

Faculty Scholarship

Every country has to make hard choices about the distribution of entitlements. But employers control the entitlements that individual Americans enjoy to a far greater extent than those in other rich democracies. In this Essay, I argue that, in the absence of the political consensus necessary to deliver state solutions to political questions, employers here are assigned an exaggerated role in employees’ lives. Government incentives for and directives to employers have become a strategy of political deflection. The effect has been to raise the stakes of employment well beyond the scope of those terms and conditions that relate to attracting …

Retrospective Risk Allocation, Aditi Bagchi

Faculty Scholarship

No abstract provided.

Paths To Downstream Innovation, Janet Freilich

Faculty Scholarship

No abstract provided.

Derailing The Deference Lockstep, Aaron J. Saiger

Faculty Scholarship

Key voices, most prominently that of Justice Neil Gorsuch, have embraced the position that the Chevron doctrine, under which federal courts defer to an agency’s reasonable interpretation of its organizing statutes, is incompatible with the judicial duty to “say what the law is.” These voices include several state supreme courts, which have held (often citing Justice Gorsuch) that state-court deference to state agency interpretations likewise impinges upon the fundamental duty of state judges to decide, on their own, what state law is.

This Article urges states to resist the uncritical importation into state law of antideference arguments based on the …

The Dilemma Of Liberal Pluralism, Abner S. Greene

Faculty Scholarship

Supporters of reproductive rights and of queer rights may sometimes live in harmony with advocates for religious exemptions. But sometimes these goals conflict. This Article explores this tension as a matter of liberal democratic theory and U.S. constitutional law, offering a case for seeing a robust pluralism as contained within a proper understanding of the liberal democratic state. The state’s claimed authority may be the starting point, but just as the modern state was born in decentralized religious toleration, so should the modern state accommodate religious and other views of the good that compete with the state’s own views. The …

Removal Of Context: Blackstone, Limited Monarchy, And The Limits Of Unitary Originalism, Jed H. Shugerman

Faculty Scholarship

The Supreme Court's recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a “removal of context.” This article focuses on the “executive power” part of the Vesting Clause and particularly the unitary theorists' misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England’s limited monarchy: the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a “royal prerogative" or a default royal power. The …