Digital Commons Network^™

Enron, Doma, And Spousal Privileges: Rethinking The Marriage Plot, Bennett Capers

Fordham Law Review

No abstract provided.

Track Me Maybe: The Fourth Amendment And The Use Of Cell Phone Tracking To Facilitate Arrest, Jeremy H. Rothstein

Fordham Law Review

   Police use of technology to locate and track criminal suspects has drawn increasing attention from courts, commentators, and the public. In United States v. Jones, the Supreme Court held that police installation of a GPS tracking device on a suspect’s vehicle constituted a search under the Fourth Amendment. Less attention has been paid to police tracking of cell phones—a far more common practice. Police can now locate a cell phone within several feet, using either GPS or information taken from cell towers.

   In August 2011, the government asked a federal magistrate judge in Maryland to allow thirty days of …

Fordham Lawyer, No. 3 - Fall 2012, Fordham Law Alumni Association, Fordham Law School

Fordham Lawyer

Fordham Lawyer magazine was first published in 1988 and continued through 2004. It returned in 2011 under Dean Michael M. Martin. The magazine shines a spotlight on faculty research, the Law School community, and the accomplishments of our alumni. No issues were published between 2004 and 2011.

Getting To “Exempt!”: Putting The Rubber Stamp On Section 501(C)(3)’S Political Activity Prohibition, Michael Fresco

Fordham Law Review

No abstract provided.

Whither Fairness? In Search Of A Jurisdictional Test After J. Mcintyre Machinery V. Nicastro, Peter R. Bryce

Fordham Law Review

No abstract provided.

Comparative Perspectives On Lawyer Regulation: An Agenda For Reform In The United States And Canada, Deborah L. Rhode, Alice Woolley

Fordham Law Review

No abstract provided.

Privatizing Professionalism: Client Control Of Lawyers’ Ethics, Christopher J. Whelan, Neta Ziv

Fordham Law Review

No abstract provided.

The Growth Of Social Media Norms And The Governments' Attempts At Regulation, Alexandra Paslawsky

Fordham International Law Journal

No abstract provided.

Subsidizing Hate: A Proposal To Reform The Internal Revenue Service's Methodology Test, Alex Reed

Fordham Journal of Corporate & Financial Law

Although a wide variety of organizations may qualify as tax-exempt public charities, reform is needed to ensure that hate groups masquerading as educational organizations do not receive preferential tax treatment. Since 1986, the Internal Revenue Service has utilized a methodology test to determine when advocacy of a particular viewpoint may be deemed educational so as to qualify the underlying organization as a public charity. Because Service has been reluctant to apply the test rigorously, however, a number of hate groups have been able to obtain charitable status under the guise of operating as legitimate educational organizations. This Article argues that …

The Community Prosecutor: Questions Of Professional Discretion, Bruce A. Green, Alafair S. Burke

Faculty Scholarship

No abstract provided.

Funding Port-Related Infrastructure And Development: The Current Debate And Proposed Reform, Christopher T. Cook

Fordham Urban Law Journal

Given the lack of consensus and certainty in how funding should best be generated to meet critical infrastructure and development needs, this Note proposes an amendment to the Shipping Act to provide port authorities with the express power to impose fees for the construction, operation, and maintenance of qualifying port-related infrastructure and development initiatives. The amendment would effectively spread the costs specific to qualifying initiatives over the useful life of the project. Part I discusses the relevant provisions and judicial standards associated with the Tonnage Clause and Shipping Act. Part II addresses the efforts by both Congress and port authorities …

Hybrid Entities: Distributing Profits With A Purpose, Heather Sertial

Fordham Journal of Corporate & Financial Law

This Note elaborates on the introduction of a new legal structure for organizations known as the “hybrid entity.” A hybrid encompasses aspects of both the for-profit model, to generate revenue; as well as the nonprofit model, to distribute funds to a community in need. The objective of this Note is to offer a structural guide to entrepreneurs who are interested in this new model. This Note first examines the limitations of for-profits that would like to contribute to social goals, as well as the limitations of nonprofits that wish to increase their revenues. This Note then discusses two current statutory …

Protecting The Space To Be Unveiled: Why France's Full Veil Ban Does Not Violate The European Convention On Human Rights, Bridgette Dunlap

Fordham International Law Journal

No abstract provided.

Habeas Corpus, Protection, And Extraterritorial Constitutional Rights, Andrew Kent

Faculty Scholarship

This short essay is an exchange with Professor Steve Vladeck's about my Article entitled: Boumediene, Munaf, and the Supreme Court’s Misreading of the Insular Cases, 97 Iowa Law Review 101 (2011). My Article showed that the Supreme Court’s landmark ruling in Boumediene v. Bush relied on a demonstrably incorrect understanding of key precedents known as the Insular Cases, which arose from actions of the United States military and the new civil governments of the islands acquired by the United States at the turn of the twentieth century — Puerto Rico, the Philippines, Hawaii, and for a time Cuba. This reply …

Why Proportionality Matters, Youngjae Lee

Faculty Scholarship

No abstract provided.

A Nation Of One? Community Standards In The Internet Era, Noah Hertz-Bunzl

Fordham Intellectual Property, Media and Entertainment Law Journal

This note examines tensions between the community standards doctrine in First Amendment obscenity law and nationwide prosecutions of internet obscenity. The note focuses on recent cases on the topic, especially in the Supreme Court and the Ninth Circuit Court of Appeals.

Dead Again: The Latest Demise Of The Confrontation Clause, Michael D. Cicchini

Fordham Law Review

In Crawford v. Washington, the Supreme Court abandoned its Roberts “reliability” approach to the right of confrontation. The Court conceded that the Roberts decision had killed the Confrontation Clause by: (1) impermissibly tying the right of confrontation to the rule against hearsay; (2) inappropriately allowing pretrial determinations of reliability to replace actual cross-examination at trial; (3) relying too heavily on malleable, multi-factor balancing tests; and (4) completely failing to constrain judicial discretion. Since Crawford, however, the Court has decided Davis v. Washington and Michigan v. Bryant. Unfortunately, in the course of deciding those cases the Court has once again killed …

Foreword: Root Causes Of The Pro Se Prisoner Litigation Crisis, Michael W. Martin

Fordham Law Review

No abstract provided.

Seeking A Clearer Picture: Assessing The Appropriate Regulatory Framework For Broadband Video Distribution , Adam B. Vanwagner

Fordham Law Review

This Note examines the appropriate regulatory framework for the distribution of commercial video content over broadband networks. As online video providers such as Netflix and Hulu expand, they are beginning to compete directly with the video services of major cable and telecommunications companies. Frequently, these companies also serve as a customer’s Internet service provider, leaving them in the position of carrying these competitive services over their broadband networks. This conflict has led to calls for regulation that would protect nascent online video services from feared anticompetitive actions by the major providers. In April 2010, against the backdrop of this expanding …

Walk This Way: Do Public Sidewalks Qualify As Services, Programs, Or Activities Under Title Ii Of The Americans With Disabilities Act? , Sarah Jones

Fordham Law Review

In 2005, 54.4 million people in the United States reported some degree of disability. For many of these people—particularly the 13.5 million Americans who use wheelchairs, canes, crutches, or walkers—the issue of sidewalk accessibility is not merely one of convenience, but of civil rights and public safety. Faced with public sidewalks that are impassable due to disrepair, physical obstacles, or an absence of curb ramps, many individuals with disabilities are forced to choose between remaining housebound or traveling in the streets—posing a danger to both themselves and drivers. However, as disability activists push to resolve these shortcomings with an eye …

Just A Soul Whose Intentions Are Good? The Relevance Of A Defendant's Subjective Intent In Defining A “Destructive Device” Under The National Firearms Act

Fordham Law Review

This Note addresses the three-way circuit split among the U.S. Courts of Appeals over when, and to what extent, a court may consider a defendant's subjective intent in defining a "destructive device" under the National Firearms Act. The circuit split centers on the Act's ambiguous reference to intent in its definition of a destructive device, which is a statutorily prohibited firearm. After discussing the Act's legislative history and development, this Note considers the role of mens rea in National Firearms Act cases. It next addresses the disagreement among the Courts of Appeals, first detailing three cases that give rise to …

Preemption, Patchwork Immigration Laws, And The Potential For Brown Sundown Towns, Maria Marulanda

Fordham Law Review

The raging debate about comprehensive immigration reform is ripe ground to overhaul federal exclusivity in the immigration context and move toward a cooperative federal and state-local model. The proliferation of immigration-related ordinances at the state and local level reflects “lawful” attempts to enforce immigration law to conserve limited resources for citizens and legal residents. Although the federal immigration statutes contemplate state and local involvement, the broad federal preemption model used to analyze immigration laws displaces many state-local ordinances, resulting in frustration at the inability to enforce the community’s resolve that is manifested through violence against Latino immigrants. Broad federal preemption …

A World Without Internet: A New Framework For Analyzing A Supervised Release Condition That Restricts Computer And Internet Access, Gabriel Gillett

Fordham Law Review

This Note explores whether a condition of supervised release that restricts computer and Internet access violates the doctrine of unconstitutional conditions. Although a circuit split has developed regarding the scope of a permissible restriction, as Courts of Appeals have been inundated with cases challenging the validity of these technology restrictions, no court has yet viewed these limits through the lens of the doctrine of unconstitutional conditions. This Note begins with a discussion of the First Amendment and the theory of unconstitutional conditions, tracing their respective developments in cases relating to prisoners, speech, and the Internet age. Next, it synthesizes the …

Panel One: General Discussion On Privacy And Public Access To Court Files, The Honorable Reena Raggi, Daniel J. Capra, Joel Reidenberg, Ronald Hedges

Fordham Law Review

No abstract provided.

Broken Borders, Broken Laws: Aligning Crime And Punishment Under Section 2l1.1(B)(7) Of The U.S. Sentencing Guidelines, Genevieve Quinn

Fordham Law Review

Despite the intensifying militarization of the United States’ borders, roughly 4,000 undocumented immigrants attempt to cross into the U.S. each day. Increased border security has not stopped the flow; rather, it has diverted migrants’ journeys into the most perilous stretches of borderlands and coastlines. In response, migrants increasingly rely on human smugglers to guide them across the border, even in the face of the well-known risks of injury and death. Under section 2L1.1(b)(7) of the U.S. Sentencing Guidelines, defendants convicted of smuggling illegal immigrants are subject to a sentence enhancement for any bodily injury or death that occurs. The Guidelines …

Unsupportable And Unjustified: A Critique Of Absolute Prosecutorial Immunity, Margaret Z. Johns

Fordham Law Review

No abstract provided.

Protecting The Erisa Whistleblower: The Reach Of Section 510 Of Erisa, Adam B. Gartner

Fordham Law Review

Congress passed the Employee Retirement Income Security Act of 1974 (ERISA) to ensure the protection of private employee benefits. In doing so, Congress created uniform national standards for the administration of private employee benefit plans. Section 510 of ERISA affords some protection to whistleblowers who report ERISA violations. There is uncertainty, however, about whether section 510 protects a whistleblower who complains directly to his or her employer, or whether protection is limited to an individual who makes a report externally. Some circuit courts have held that section 510 protects all ERISA whistleblowers, while others have held that section 510's protections …

History Redux: The Unheard Voices Of Domestic Violence Victims, A Comment On Aviva Orenstein’S Sex, Threats And Absent Victims, Myrna S. Raeder

Res Gestae

No abstract provided.

Hats Off To Claire Flom: Education And The Importance Of Being Involved , Judith S. Kaye

Fordham Urban Law Journal

This transcript of the Claire Flom lecture covers primarily two themes—the importance of early intervention, and the importance of people getting involved with the public school system and in their children - and other children's education The lecture applies these concepts first to children with special education needs and then to adolescents, kids at the brink of adulthood. The article argues that early intervening early is key to both populations and that neglected learning difficulties only worsen with the passage of time.

From Sounds Bites To Sound Policy: Reclaiming The High Ground In Criminal Justice Policy-Making, Anthony C. Thompson

Fordham Urban Law Journal

In this article, the author contemplates the way the criminal justice system is portrayed in the media and suggests how the media's emphasis on "sound bites" - which makes it difficult to separate fact from hype - has had significant policy ramifications. The author makes a point of exploring the many ways that conceptions of crime are formed and influenced, as well as how the media has shaped legislation. In the author's opinion, in order to curb the excessive influence of most mainstream representations of the criminal justice system, there must be some mechanism for oversight of both the media …