Digital Commons Network^™

Making Impossible Tax Reform Possible, Susannah Camic Tahk

Fordham Law Review

       The United States has long struggled to reform its federal income tax code. Despite enthusiastic and widespread bipartisan support for tax reform laws that would eliminate special–interest loopholes, the legislative process has been paralyzed when it comes to passing these laws. This Article proposes a solution to this seemingly intractable federal tax lawmaking paralysis. This paralysis arises because tax reform spreads its benefits among broad groups while concentrating its costs on narrow ones. Political science theory accurately predicts that laws with this cost–benefit allocation will fail. However, federal lawmakers can overcome tax lawmaking paralysis by distributing tax reform’s costs and …

A Web Of Liability: Does New Cyberbullying Legislation Put Public Schools In A Sticky Situation?, Matthew Fenn

Fordham Law Review

       Bullying has long been a concern for students, parents, and schools. However, the explosion of communication technology has transformed the nature of bullying, allowing “cyberbullies” to extend their reach far beyond the physical schoolyard. This development creates uncertainty for schools, legislatures, and courts in assessing when and where schools should be permitted to regulate student behavior.

       The growing number of tragic cyberbullying incidents, as well as national media coverage, has forced legislatures to take action. This has manifested itself in a number of different statutory forms and approaches. The most aggressive legislation appears to impose new duties on school districts …

Joe Camel Versus Uncle Sam: The Constitutionality Of Graphic Cigarette Warning Labels, B. Ashby Hardesty Jr.

Fordham Law Review

       According to the Surgeon General, tobacco use is the leading preventable cause of death in the United States. Smoking–related diseases kill 443,000 Americans each year, more than are killed by HIV, illegal drug use, alcohol use, motor vehicle injuries, suicides, and murders combined. To address this public health threat, Congress enacted the Family Smoking Prevention and Tobacco Control Act (TCA) in 2009, which gave the federal government unprecedented power to regulate the tobacco industry. Among its provisions, the TCA requires the U.S. Food and Drug Administration to select images that depict smoking’s deleterious effects and compels tobacco companies to display …

Creating A More Meaningful Detention Statute: Lessons Learned From Hedges V. Obama, Colby P. Horowitz

Fordham Law Review

       In 2004, the Supreme Court affirmed the President‘s power to indefinitely detain members of Al Qaeda and the Taliban. Nearly ten years later, however, the substantive parameters of executive detention remain unclear. Post–9/11 detention law has been largely shaped by the lower federal courts on a case–by–case basis as they evaluate habeas corpus petitions from detainees held at Guantanamo Bay. In 2012, as part of the National Defense Authorization Act (NDAA), Congress attempted, for the first time, to codify a substantive detention standard in section 1021. Instead of providing clarity, however, section 1021 contained ambiguous terms and created more confusion. …

Measuring A “Spiritual Stake”: How To Determine Injury-In-Fact In Challenges To Public Displays Of Religion, Ashley C. Robson

Fordham Law Review

        This Note analyzes the unique standing problem introduced by a particular set of Establishment Clause cases: those concerning nontaxpayer–based challenges to alleged “public displays” of religious symbols. This injury–in–fact problem arises due to the nature of the specific type of harm recognized by the U.S. Supreme Court in the context of religious displays: the public endorsement of religion. Due to this unusually subjective harm, it is unclear how the courts should evaluate this threshold injury–in–fact inquiry. This Note analyzes the legal conflict arising from the attempt to remain faithful to both the traditional injury–in–fact standing requirements and the endorsement test …

Benefit Of The Doubt: Obstacles To Discovery In Claims Against Chinese Counterfeiters, Minning Yu

Fordham Law Review

       What is the proper method for U.S. litigants to obtain evidence located in a foreign country for trademark litigation in the United States? The Lanham Act authorizes trademark owners torecover profits made from the sale of goods that infringe on their trademarks. In order to account for and ultimately recover these profits, trademark owners need access to the infringers’ bank records. But access to such records can be a challenge when the infringers and their banks are located outside the United States.

       In recent years, several brand owners have instituted a series of trademark infringement lawsuits in the Southern District …

Editors’ Foreword, Editors

Fordham Law Review

No abstract provided.

Code-Ifying Copyright: An Architectural Solution To Digitally Expanding The First Sale Doctrine, Evan Hess

Fordham Law Review

   As the internet blossomed into ubiquity, piracy mushroomed with it. To control the threat, Congress passed the Digital Millennium Copyright Act (DMCA). The DMCA created a number of safeguards for copyright holders. But the DMCA purposely ignored whether copyright holders could restrict future transfers of their legally purchased work—a concept known in physical property as the “first sale doctrine.” As a result, copyright holders began using licenses to control future transfers of their digital property.

   This was not the first time copyright holders have attempted to gain greater control over their work. The history of copyright law demonstrates a pattern …

Taking Back What’S Theirs: The Recess Appointments Clause, Pro Forma Sessions, And A Political Tug-Of-War, Alexander M. Wolf

Fordham Law Review

   This Note surveys the current landscape of the Recess Appointments Clause. With the recent recess appointments of Richard Cordray to direct the Consumer Financial Protection Bureau (CFPB) and three other individuals to join the National Labor Relations Board (NLRB), came an influx of old—and new—controversy over the President’s recess appointment authority. This Note explores interpretational issues that have surrounded the Clause since its inception, as well as novel issues that have arisen with the Congress’s use of pro forma sessions in an attempt to block recess appointments and derail the executive’s agenda. The conflict over control of the appointments process …

Model Draft Of A Rule 502(D) Order, Symposium Participants

Fordham Law Review

No abstract provided.

Making Horses Drink: Conceptual Change Theory And Federal Rule Of Evidence 502, Liesa L. Richter

Fordham Law Review

No abstract provided.

The Presumption Of Constitutionality And The Individual Mandate, Gillian E. Metzger, Trevor W. Morrison

Fordham Law Review

No abstract provided.

Federalism From Federal Statutes: Health Reform, Medicaid, And The Old-Fashioned Federalists’ Gamble, Abbe R. Gluck

Fordham Law Review

No abstract provided.

The Paradox Of Counterterrorism Sunset Provisions, Emily Berman

Fordham Law Review

   Since 9/11, legislators and commentators alike have hailed expiration dates—or “sunset provisions”—as a means to moderate the government’s tendency to curtail individual freedoms in response to security crises. Sunsets advocates explain that such provisions provide Congress with an opportunity to reevaluate counterterrorism legislation after the crisis atmosphere has passed, enabling legislators to adjust any policy whose infringement on civil liberties appears, in retrospect, unjustified by its benefits.

   This Article demonstrates that, rather than guarding against the longterm entrenchment of overly robust security measures, sunsets have the opposite effect. The Article begins by illustrating that Congress’s high expectations for counterterrorism sunsets …

Warning: Shifting Liability To Manufacturers Of Brand-Name Medicines When The Harm Was Allegedly Caused By Generic Drugs Has Severe Side Effects, Victor E. Schwartz, Phil Goldberg, Cary Silverman

Fordham Law Review

   Can a product manufacturer be subject to liability for a competitor’s product? American tort law has always said, “No.” It does not matter if the products are identical. Companies are not to be their competitors’ keepers.

   Nevertheless, over the past few years, three courts have overturned this fundamental of tort law, holding that a manufacturer of a brand-name prescription drug can be subject to liability even when a plaintiff alleges that he or she was harmed by a generic drug made by the brand-name manufacturer’s competitor. Most courts, including four federal courts of appeal and dozens of federal district and …

Rule 10b-5(B) Enforcement Actions In Light Of Janus: Making The Case For Agency Deference, Matthew P. Wynne

Fordham Law Review

   This Note addresses whether the Supreme Court’s recent decision in Janus Capital Group, Inc. v. First Derivative Traders applies to the Securities and Exchange Commission (SEC), and, if not, whether the SEC’s own interpretation of Rule 10b-5 should be entitled to deference in future SEC enforcement actions. Since its promulgation in 1942, Rule 10b-5 has been the subject of much debate, particularly regarding the scope of the private right of action that courts have interpreted the rule to imply. Having acknowledged that an implied right exists, the Supreme Court quickly began to limit Rule 10b-5 claims of private plaintiffs, citing …

Evidence Rule 502: The Solution To The Privilege-Protection Puzzle In The Digital Era, John M. Barkett

Fordham Law Review

No abstract provided.

Night Of The Living Dead Hand: The Individual Mandate And The Zombie Constitution, Gary Lawson

Fordham Law Review

No abstract provided.

The Politics Of Obamacare: Health Care, Money, And Ideology, Richard Kirsch

Fordham Law Review

No abstract provided.

Avoiding Double Recovery: Assessing Liquidated Damages In Private Wage And Hour Actions Under The Fair Labor Standards Act And The New York Labor Law, Alexander J. Callen

Fordham Law Review

   Wage and hour cases are common in New York, yet courts calculate damages inconsistently when plaintiffs pursue their unpaid wages under both federal and state law. Overlapping provisions of the Fair Labor Standards Act and the New York Labor Law both authorize private actions for the recovery of certain unpaid wages, and each also provides an additional 100 percent of the unpaid wages as liquidated damages unless the employer establishes a good-faith defense. Given these similarities, New York wage and hour cases regularly flirt with the double recovery doctrine, which prevents plaintiffs from receiving duplicative awards.

   Historically, courts in the …

Contract And Conditional Zoning Without Romance: A Public Choice Analysis, Philip L. Fraietta

Fordham Law Review

   The growth and development of the United States after World War II left the country needing more flexibility in zoning law. Over the past few decades, zoning has undergone drastic changes to make the process more flexible. Two methods used to meet this new demand are contract and conditional zoning. Jurisdictions are split on whether to permit contract zoning, conditional zoning, both, or neither. This is an important question that a growing number of jurisdictions have recently encountered. This Note seeks to propose potential solutions to the conflict by analyzing it through public choice theory. By applying the principles of …

Let The Punishment Fit The Crime: Sanctioning Absent Class Members For Failure To Respond To Postcertification Discovery Requests, Elizabeth A. Kalenik

Fordham Law Review

   Courts rarely allow defendants to take discovery of absent class members after class action certification. However, if a court does permit such discovery and some absentees fail to respond, should the court sanction the nonresponsive absentees? Under what circumstances should the court dismiss the nonresponsive absentees? When considering whether and what sanctions to impose, courts make a decision about the rights and role of absentees in class actions.

   This Note examines postcertification absentee discovery sanctions through a discussion of group litigation. Next, it analyzes the reasoning of courts that have dismissed absentees, declined to dismiss absentees, and imposed other sanctions …

Panel Discussion: Reinvigorating Rule 502, Panel Discussion

Fordham Law Review

No abstract provided.

Enter The Order, Protect The Privilege: Considerations For Courts Entering Protective Orders Under Federal Rule Of Evidence 502(D), Edwin M. Buffmire

Fordham Law Review

No abstract provided.

The Rulemakers’ Laments, Richard Marcus

Fordham Law Review

No abstract provided.

Is It Safe? The Need For State Ethical Rules To Keep Pace With Technological Advances, Ann M. Murphy

Fordham Law Review

No abstract provided.

Bankrupt Estoppel: The Case For A Uniform Doctrine Of Judicial Estoppel As Applied Against Former Bankruptcy Debtors, Eric Hilmo

Fordham Law Review

   This Note examines the role judicial estoppel plays in supporting the U.S. federal bankruptcy regime. Though once considered an obscure doctrine, the use of judicial estoppel to bar pursuit of previously undisclosed claims by former bankrupts has grown apace with burgeoning bankruptcy filings over the last decade. While the doctrine’s application in federal courts has evolved toward a common standard of application, state courts’ application remains idiosyncratic. The Note argues that under the established laws of judgment recognition and in light of federal courts’ sophisticated application of the doctrine, state courts should apply federal judicial estoppel standards to further national …

A Conversation With Justice Sandra Day O’Connor And Judge Judith S. Kaye, Hon. Sandra Day O'Connor, Hon. Judith S. Kaye

Fordham Law Review

No abstract provided.

Functionalism’S Military Necessity Problem: Extraterritorial Habeas Corpus, Justice Kennedy, Boumediene V. Bush, And Al Maqaleh V. Gates, Richard Nicholson

Fordham Law Review

   The U.S. Supreme Court has struggled over the last 150 years to definitively answer the question of whether the U.S. Constitution applies beyond the borders of the territorial United States. Because the Constitution is silent on the issue, the burden has fallen on the judiciary to establish the contours of the doctrine. At times, the Court has espoused formulistic theories limiting constitutional application to territorial sovereignty, while at others it has looked to more objective, practical solutions that reach beyond the borders.

   In 2008, the Supreme Court held in Boumediene v. Bush that the application of the Suspension Clause of …

Determining Diversity Jurisdiction Of National Banks After Wachovia Bank V. Schmidt, Michael Podolsky

Fordham Law Review

   Prior to the U.S. Supreme Court’s decision in Wachovia Bank v. Schmidt, some courts held, for diversity jurisdiction purposes, that national banks were citizens of each and every state in which they had a branch. In Schmidt, the Supreme Court made it clear that this approach was incorrect, but failed to provide an alternative one. Not surprisingly, in the wake of that decision another court split developed. While some courts have found that national banks are citizens only of the state listed on their charters as their main office, others have found that national banks are also citizens …