Digital Commons Network^™

Ability To Pay: Closing The Access To Justice Gap With Policy Solutions For Unaffordable Fines And Fees, Lauren Jones

Fordham Urban Law Journal

No abstract provided.

Prosecutorial Conduct Commissions: A Possibility For Accountability?, Rachel A. Nolan

Fordham Urban Law Journal

No abstract provided.

Emergency Relief: Modernizing Bankruptcy After Purdue And The Texas Two-Step Cases, Brandon Shirazi

Fordham Urban Law Journal

No abstract provided.

When Your Life Depends On It: Understanding And Preparing For The Credible Fear Interview, Lauren Reveal

Fordham Urban Law Journal

No abstract provided.

Liberty On Hold: The Constitutional Test And Source For Overdetention Claims, Sarya Baladi

Fordham Law Review

The persistence of overdetention—meaning continued detention after officers knew or should have known that the arrested person was entitled to release—poses major concerns about both the fundamental right against arbitrary detention and other unenumerated constitutional rights. The U.S. Supreme Court’s 1979 decision in Baker v. McCollan established a vague constitutional protection against overdetention, but it left lower courts to answer many open questions about its parameters.

Although courts agree that the Constitution prohibits law enforcement from arbitrarily detaining indefinitely an arrested person who protests their legitimate release, the application of this protection has been inconsistent across federal courts of appeals. …

Turning A Blind Eye To “Prisoner-On-Prisoner” Brawls: Why Failure-To-Protect Claims Should Proceed Under Bivens, Sophia M. Brusco

Fordham Law Review

Correctional officers have an obligation, under the Eighth Amendment and 18 U.S.C. § 4042, to protect incarcerated persons from an attack at the hands of fellow incarcerated individuals. Despite this duty, when a federal officer fails to protect an incarcerated person from attack, the viability of the victim’s claim against the offending officer is uncertain. Even though the doctrine, created in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, allows courts to infer a cause of action for damages directly from the Constitution, the U.S. Supreme Court adopted a test in Ziglar v. Abbasi that has …

Is Garcetti Too Cool For School?: Why Garcetti V. Ceballos Should Not Apply To School Teachers, Jordan Zaia

Fordham Intellectual Property, Media and Entertainment Law Journal

The First Amendment is implicated by students and teachers every day in public schools. For years, courts followed the test established in Pickering v. Board of Education to analyze free speech claims for public school teachers. However, teachers’ protections were changed in 2006 when the U.S. Supreme Court decided Garcetti v. Ceballos. Since then, the circuits have inconsistently applied this test in cases relating to education. With the circuit split and high-profile cases rising in the federal circuits, the Supreme Court may have an opportunity to resolve the issue.

This Note advocates for the Supreme Court to rule that Garcetti …

Cross-Border Data Regulatory Frameworks: Opportunities, Challenges, And A Future- Forward Agenda, Andrew D. Mitchell, Neha Mishra

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article evaluates the existing regulatory framework for cross-border data flows across Bahrain, Djibouti, Jordan, Kuwait, Morocco, Nigeria, Oman, Pakistan, Rwanda, and Saudi Arabia. A common factor among these countries is that they are members of the Digital Cooperation Organization (“DCO”). It considers how these countries have devised laws, regulations, and policies on cross-border data flows to enable digital trade, and how these instruments promote the growth of a robust digital economy, both domestically and internationally. The Article then offers policy recommendations for DCO members to consider in developing relevant laws and regulations on data flows.

These …

Melodies Manipulated: Intellectual Property & The Music Industry, Fordham Iplj

Fordham Intellectual Property, Media and Entertainment Law Journal

Marilyn Mosby, Founder and Managing Partner of Mahogany Elite Consulting, opened the IPLJ Symposium with her Keynote Address which focused on the cultural, political, and social context surrounding the use of rap lyrics as evidence in criminal prosecutions.

The opening panel, “Do You Get Déjà Vu?,” comprised of Gary Adelman, Partner, Adelman Matz PC; Linna Chen, Senior Legal Counsel, Litigation & Copyright, Spotify; and Ilene Farkas, Partner, Pryor Cashman, and was moderated by Sarah Matz, Partner, Adelman Matz PC, and Adjunct Professor at Fordham University School of Law. The panel discussed recent copyright cases, specifically Williams v. Gaye …

Originalism, Bruen, And Constitutional Insanity, Eric J. Segall

Fordham Urban Law Journal Online

No abstract provided.

Dead Bodies As Quasi-Persons, Ela A. Leshem

Faculty Scholarship

No abstract provided.

Book Review: Nuclear Weapons And International Law, Existential Risks Of Nuclear War And Deterrence Through A Legal Lense, 2 Volumes, Second Edition, By Charles J. Moxley Jr. (2024), Roger S. Clark

Fordham International Law Journal

No abstract provided.

The Jack Daniel’S Dialogues, Michael Grynberg

Fordham Intellectual Property, Media and Entertainment Law Journal

Jack Daniel’s Properties, Inc. v. VIP Products LLC threatened to upend the balance between trademark rights and expressive freedom. While not going as far as it might have, the opinion limits the ability of defendants to resist trademark claims that target artistic or noncommercial speech.

As important as this result is, we should not overlook a fundamental preliminary question. How could a dog chew toy that mocks Jack Daniel’s whiskey be the basis of a viable trademark infringement claim? Answering that question requires discussing deep issues within modern trademark law.

These antecedent questions were not directly before the Court, but …

Executive Power, The Royal Prerogative, And The Founders’ Presidency, Andrew Kent

Faculty Scholarship

The original meaning of the opening clause of Article II of the Constitution— which vests “[t]he executive power ... in a President of the United States”—has been debated inconclusively for over 200 years. As originalism gains ground as an interpretive theory in U.S. courts, and the U.S. executive branch continues to read the clause very expansively, often by making claims about original meaning, an intense scholarly debate has raged in recent decades about the Clause. A cohort of influential originalist scholars read the Executive Power Clause as a broad grant of war, foreign affairs, and national security power supposedly considered …

The Marketplace Of Ideas Mandate: What The Postal Power Requires From Congress In The Age Of Ai, Kevin Frazier

Fordham Intellectual Property, Media and Entertainment Law Journal

Given the impending glut of AI-altered content that threatens to distort the flow of information on social media platforms, this Article comes at an inflection point. Absent the widespread adoption of a historically-accurate understanding of the obligation of the federal government to facilitate the spread of news and views on current affairs, the public may soon lose its ability to speak, listen, and learn to the extent required by a functioning deliberative democracy.

This is not hyperbole. By 2026, experts forecast that “synthetic” information may account for ninety-percent of online content. The anticipated deluge of AI-altered …

Time To Abolish The Dea: Evaluating The Agency’S Failures And Calling For Community Investments, Ifetayo Harvey

Fordham Law Review

No abstract provided.

Can Crt Save Dei?: Workplace Diversity, Equity & Inclusion In The Shadow Of Anti-Affirmative Action, Tanya K. Hernandez

Faculty Scholarship

Just four years after the nation’s summer of 2020 protests—sparked by the murder of George Floyd— culminated in a racial reckoning in which many organizations across the country instituted racial equity measures and policies, legislators across the nation are enacting anti-Critical Race Theory (CRT) bans in a seeming backlash to this advocacy for racial justice. The bans simultaneously mischaracterize CRT as anti-White discrimination while strategically conflating it with workplace diversity, equity, and inclusion (DEI) initiatives. Further inflaming the racially hostile public discourse is the U.S. Supreme Court’s recent decision in Students for Fair Admissions v. Harvard (2023), which greatly narrows …

Foreword: With People Struggling And The Law Failing, What Are The Solutions To The Access To Justice Crisis In America?, David S. Udell

Fordham Urban Law Journal

No abstract provided.

Measures Of Justice: Researching And Evaluating Lay Legal Assistance Programs, Tanina Rostain, James Teufel

Fordham Urban Law Journal

No abstract provided.

A People-Centered Approach To Designing And Evaluating Community Justice Worker Programs In The United States, Matthew Burnett, Rebecca L. Sandefur

Fordham Urban Law Journal

No abstract provided.

Establishing A Right To Food For “Justice”-Impacted People: An Abolitionist Strategy To Build Community, Sustainability, And Small Business In The United States, Elissa Underwood Marek

Fordham Urban Law Journal

No abstract provided.

Do Not Resurrect The Draft: The Current Recruiting Crisis And Why The United States Should Sustain The All-Volunteer Force, Marcanthony Parrino

Fordham Urban Law Journal

No abstract provided.

Why Do Banks Fail Together? Evidence From Executive Compensation, Deniz Anginer, Jinjing Liu, Cindy A. Schipani, H. Nejat Seyhun

Fordham Journal of Corporate & Financial Law

Recent bank failures have elicited extensive interest about the causes, focusing on incompetence of bank executives, policymakers, bank regulators and supervisors and even uninsured depositors. Yet, before we can prescribe solutions to bank failures, we need to identify the correct causes of the underlying problems. We argue that the problem is not so much with incompetence of executives, depositors, or regulators per se, but rather with managerial incentives.

We provide both a conceptual basis as well as empirical evidence to show that bank executives have incentives to increase systemic risks in order to maximize the benefits of bank bailouts. Consequently, …

Speech Without Speakers: Eliminating Artificial Barriers To Pleading Corporate Scienter In Securities Fraud Claims, Jennifer Ligansky

Fordham Journal of Corporate & Financial Law

To successfully plead securities fraud claims under Rule 10b–5, the Private Securities Litigation Reform Act (“PSLRA”) requires that plaintiff-investors raise a “strong inference” that the defendant acted with scienter when issuing a false statement. But pleading scienter presents a challenging issue when the defendant is not a person, but an entity. When the defendant is a corporation, U.S. Circuit Courts of Appeals have adopted different approaches for determining whether the plaintiff has pleaded a strong inference of scienter. Some circuits hold that plaintiffs can raise a strong inference of corporate scienter only if the complaint identifies a speaker who knew …

Public Confidence, Judges, And Politics On And Off The Bench, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

Public confidence in the judiciary is at a low point. There are multiple reasons for the public’s waning faith in judges, but the perception that they are merely politicians in robes plays a significant part. This article analyzes the politicization of the judiciary and argues that while ideology invariably affects judicial decisionmaking, the professional identity of judges limits its impact. A commitment to judicial norms and processes as well as a concern for professional reputation serve as a real break on partisan loyalty and affiliation. The task is to preserve and promote this professional identity and convey to the public …

Expecting Medication Surveillance, Jennifer D. Oliva

Fordham Law Review

In response to federal financial incentives and mandates, all fifty states, the District of Columbia, and three U.S. territories administer electronic prescription drug monitoring programs (PDMPs). Federal and state policymakers justified the implementation and enhancement of ubiquitous prescription drug monitoring by contending that expansive state drug surveillance was a necessary weapon in the war against the American drug overdose crisis. As is often the case with tools designed for law enforcement surveillance, however, PDMPs have proven susceptible to mission creep. Although pioneer PDMPs were paper-based systems that limited their surveillance to a narrow class of heavily regulated controlled substances, modern …

Proxy Taxes: Taxing The Wrong Person Can Be The Right Policy, Linda Sugin

Faculty Scholarship

Congress seems unable to fix the inequities and inefficiencies that riddle the tax law. This article suggests such a new strategy for building a better tax system that Congress should find politically possible. It proposes taxing the wrong taxpayer for the right reasons-to raise revenue and improve fairness. It introduces a conceptual and theoretical framework for provisions that are already in the Internal Revenue Code, explaining why they should be understood as examples of "proxy taxes," and proposes that proxy taxes can solve many intractable problems in the law.

“Proxy taxes,” as defined in this article, impose liability on taxpayers …

The Notes You Don’T Play: An Empirical Analysis Of The Ninth Circuit’S Filtration Problem In Music Copyright Cases, Robert D. Capodilupo

Fordham Intellectual Property, Media and Entertainment Law Journal

The Ninth Circuit’s approach to music copyright cases has failed to provide artists with a clear landscape of the boundaries of copyright protection for creative works. Perhaps most disconcerting is the doctrine’s lack of rigid guidance as to which elements of a composition are protected by copyright. Since the court’s controversial ruling in Williams v. Gaye, which showcased the court’s failure to differentiate between protectable and unprotectable musical elements, the literature has taken a greater interest in analyzing the effects of this muddied doctrine. In their 2019 article, Christopher Jon Sprigman and Samantha Fink Hedrick theorize how the doctrine of …

A Glance Not Taken—When Claim Interpretation Ignores The Best Evidence, David R. Soucy, Esq.

Fordham Intellectual Property, Media and Entertainment Law Journal

A little-known but longstanding rule of patent law is that the article “a” means one or more than one when recited within a patent claim. But the commonly understood meaning of “a” is a numerosity of just one. The case of Salazar v. AT&T Mobility is about the misapplication of the patent law general rule of indefinite articles to find that the term “a microprocessor” means just one microchip. That fundamental tenet states that “a” means one or more than one, unless a patentee disavowed that meaning as evidenced by: (1) other language of the claims (i.e., dependent …

Good Readers, Good Writers, And Ai: Tool, Collaborator, Author?, Katherine Jung

Fordham Intellectual Property, Media and Entertainment Law Journal

Artificial Intelligence (“AI”) systems have revolutionized the world of creative writing. Beyond providing simple grammar or spelling assistance, the most advanced of these systems can now play a collaborative role in the writing process, increasing productivity while pushing content in new and surprising directions. AI-generated creativity raises compelling questions in the context of copyright law, which has long been predicated on the assumption of human authorship. The capacity of AI to one day generate writing at a level of mastery on par with human beings complicates traditional notions of creativity, the protection of which the entire copy …