Digital Commons Network^™

Non-Network Barriers To Network Neutrality, Mark R. Patterson

Fordham Law Review

No abstract provided.

Accepting Justice Kennedy's Dare: The Future Of Integration In A Post-Pics World, Daniel Kiel

Fordham Law Review

In the wake of the most important public schools case in decades, Parents Involved in Community Schools (PICS), the future of diversity in public schools is in doubt. This period of uncertainty comes at a moment when parents, educators, and employers are demanding high quality schools that prepare students for an increasingly globalized world. Justice Anthony M. Kennedy, in his PICS concurrence, recognized this discrepancy and challenged districts to continue the important work of bringing different students together without resorting to unconstitutional means. Filling the void between what is essential to public education and what is constitutionally permissible after PICS, …

Presidential Succession: The Art Of The Possible, James E. Fleming

Fordham Law Review

This essay advocates for reforming the presidential succession system by working with the system we have, tweaking it in politically feasible ways to make it better, given an understanding of politics as the art of the possible. It defends the line of succession statute on constitutional and policy grounds before advancing recommendations for improving the succession system. The Essay calls for reforms to ensure that legislative successors are members of the president’s political party. It also suggests the creation of a vice Vice President or a body of successors appointed by the President and confirmed by the Senate

Lost Opportunity: Learning The Wrong Lesson From The Hayes-Tilden Dispute, Nathan L. Colvin, Edward B. Foley

Fordham Law Review

A clear, efficient, and fair mechanism for resolving election disputes is an important aspect of smooth presidential succession. It is also something that our Constitution has lacked from its inception, and the adverse consequences of its absence were most recently apparent in the 2000 election. The 1876 Hayes-Tilden election, which required an Electoral Commission to resolve disputes about presidential electors, was the most severe manifestation of this presidential succession gap. As such, it also should have represented the best opportunity to fix the problem.

Instead of wholesale reform and constitutional amendment, Congress spent the next eleven years focusing its energy …

Presidential Succession Scenarios In Popular Culture And History And The Need For Reform, William F. Baker, Beth A. Fitzpatrick

Fordham Law Review

This Article looks at the issue of presidential succession through the lens of the popular imagination, attempting see what in the nation’s laws needs changing. Many of the movies and television shows that have made plots or subplots out of presidential succession imagine what would happen if the president was killed in a nuclear attack (Jericho and By Dawn’s Early Light), a natural disaster (The Day After Tomorrow), or even an alien invasion (Mars Attacks!). Other common plotlines feature nefarious vice presidents or other officials seizing presidential office by murdering the chief executive or …

Presidential Disability And The Twenty-Fifth Amendment: The Difficulties Posed By Psychological Illness, Robert E. Gilbert

Fordham Law Review

This article describes occasions when presidents have suffered from psychological illness and analyzes the challenges posed by psychological illness in presidents. It begins with an explanation of the Twenty-Fifth Amendment’s provisions and an overview of significant cases of presidents suffering physical illnesses. Next, the Article turns its focus to two presidents, Franklin Pierce (1853-1857) and Calvin Coolidge (1923-1929), who suffered psychological illnesses that were perhaps even more debilitating than the physical ailments that other presidents suffered. These cases are then contrasted with President Abraham Lincoln, who, unlike Pierce and Coolidge, had a highly successful presidency despite appearing to suffer from …

Extensions On The Twenty-Fifth Amendment: The Influence Of Biological Factors On Assessments Of Impairment, Rose Mcdermott

Fordham Law Review

Because the framers of the Twenty-Fifth Amendment were so prescient in their creation of this legislation, it behooves subsequent scholars to examine additional potential concerns that would not have entered the debate forty years ago. Huge advances have been made in the area of biological and genetic medical knowledge, and this progress could not have been foreseen at the time the original Amendment was written. Yet in the interim, such information has become much more accessible. It becomes important to raise these questions moving forward because political opponents may take advantage of these new concerns, as they arise, and use …

Taking From The Twenty-Fifth Amendment: Lessons In Ensuring Presidential Continuity, Joel K. Goldstein

Fordham Law Review

The Twenty-Fifth Amendment remains the most successful effort to address continuity problems inherent in the original Constitution or which subsequently developed. Lessons from that experience may help reformers act to resolve at least some of the remaining shortcomings. In addition to its provisions, the Twenty-Fifth Amendment represents certain implicit constitutional values that should guide responses to remaining problems. Moreover, it was the product of successful legislative strategies in an area that generally resists such measures. Although all of these principles and lessons do not point in the same direction and some have limited application to the remaining issues, others should …

Remarks From Senator Birch Bayh

Fordham Law Review

These Remarks are adapted from an address given by former Senator Birch Bayh at the symposium The Adequacy of the Presidential Succession System in the 21st Century, which was held at Fordham University School of Law on April 16 and 17, 2010. Senator Bayh discusses his role as the Twenty-Fifth Amendment’s principal sponsor and describes the origins and rationales for amendment’s provisions.

Property In Crisis, Nestor M. Davidson, Rashmi Dyal-Chand

Fordham Law Review

Property law generally develops gradually, with doctrine slowly accreting in the interstices of daily conflict and the larger culture of property likewise emerging at a glacial pace. In times of crisis, however, fundamental questions about the nature of ownership and the balance between the individual and the state instantiated in the structure of property rise rapidly to the surface. Our current economic crisis—the deepest since the Great Depression—is no exception. This economic crisis, more than many in our history, began with property, sparked in no small measure by structural flaws in the residential market and an ownership society that advocated …

Prospective Compensation In Lieu Of A Final Injunction In Patent And Copyright Cases, H. Tomas Gomez-Arostegui

Fordham Law Review

In a 2006 decision, eBay Inc. v. MercExchange, L.L.C., the U.S. Supreme Court held that traditional equitable factors apply to injunctions in patent and copyright cases, and therefore the mere fact that a defendant has infringed a patent or a copyright does not necessarily mean a final injunction must issue. In the three years since, lower courts have denied final injunctions more frequently than before and are now struggling with what relief, if any, to give prevailing plaintiffs in lieu of an injunction. Some courts permit plaintiffs to sue again later. But most award prospective relief to plaintiffs¾sometimes a lump-sum …

To Catch A Predator Or To Save His Marriage: Advocating For An Expansive Child Abuse Exception To The Marital Privileges In Federal Courts, Emily C. Aldridge

Fordham Law Review

In prosecutions for child abuse, the government’s most valuable witness is often the defendant’s spouse. Ordinarily, the marital privileges allow a witness to refuse to testify or a defendant to bar his or her spouse’s testimony. When a defendant is on trial for a crime committed against a child, however, the privileges are unavailable. Although this exception aims to serve justice on behalf of innocent children, its applicability often hinges on the relationship between perpetrator and victim. In some federal courts, the minor victim must be the child or stepchild of the defendant, while others have held the exception applicable …

The Cafa Mass Action Numerosity Requirement: Three Problems With Counting To 100, Guyon Knight

Fordham Law Review

This Note examines the mass action provision of the Class Action Fairness Act of 2005 (CAFA) and the difficulties courts have encountered when applying its seemingly simple 100-person numerosity requirement. “Mass actions” are a broad category of nonclass aggregate litigation over which CAFA extended federal jurisdiction. This Note examines three interpretations of the numerosity requirement advanced in recent cases. These interpretations have advocated, in turn, not finding a mass action when a case has more than 100 formally joined plaintiffs, recognizing the existence of a single mass action broken up among parallel suits with fewer than 100 plaintiffs, and finding …

The Economic Downturn And The Legal Profession, Foreword: The Great Recession And The Legal Profession, Eli Wald

Fordham Law Review

No abstract provided.

Team Of Rivals? Toward A New Model Of The Corporate Attorney-Client Relationship, David B. Wilkins

Fordham Law Review

No abstract provided.

Supply Chains And Porous Boundaries: The Disaggregation Of Legal Services, Milton C. Regan, Jr., Palmer T. Heenan

Fordham Law Review

No abstract provided.

The Paradoxes Of Pro Bono, Richard Abel

Fordham Law Review

No abstract provided.

Managing Pro Bono: Doing Well By Doing Better, Scott L. Cummings, Deborah L. Rhode

Fordham Law Review

No abstract provided.

Skeptical Internationalism: A Study Of Whether International Law Is Law, Joshua Kleinfeld

Fordham Law Review

Should international law be understood as a form of law at all? The premise here is that if we are to get some purchase on that question, we should consult the experience of international law in operation. The analysis proceeds in two steps. First, the Article takes up the litigation connected to the Israeli/West Bank barrier, asking whether that case was or could have been addressed in such a way as to keep faith with minimal principles of legality. It wasn’t, the Article finds, but it could have been. Second, the Article specifies four values that are constitutive elements of …

Who Is Secure?: A Framework For Arizona V. Gant, David S. Chase

Fordham Law Review

In April 2009, the U.S. Supreme Court in Arizona v. Gant narrowed the scope of an automobile search incident to arrest. Prior to Gant, officers were permitted to search the entire automobile passenger compartment incident to the arrest of a vehicle occupant for any offense. The Gant Court rejected this broad interpretation and limited officers’ ability to search to two circumstances: (1) when an arrestee is unsecured and within reaching distance of the vehicle or (2) when it is reasonable for officers to believe the vehicle might contain evidence related to the crime of the arrest. The Gant decision raises …

Lightening The Load: Whether The Burden Of Proof For Overcoming A Patent's Presumption Of Validity Should Be Lowered, Kristen Dietly

Fordham Law Review

Patents fuel innovation and are becoming an ever-more important form of protection in this technological age. Society also has a vested interest in only valid patents being issued and enforced. Patents are presumed valid once they are issued and also currently enjoy the application of a heavy burden of proof—clear and convincing evidence—to overcome that presumption when their validity is questioned at trial. This burden has started to be questioned as the U.S. Patent and Trademark Office becomes more taxed by the increasing influx of patent applications. Current precedent conflicts with past precedent and with general principles of administrative law. …

Notes From The New World: The Future Of The Internet, Editors' Foreword

Fordham Law Review

No abstract provided.

The Compatibility Of Patent Law And The Internet, Jeanne C. Fromer

Fordham Law Review

No abstract provided.

Dna And Due Process, Brandon L. Garrett

Fordham Law Review

The U.S. Supreme Court in District Attorney’s Office v. Osborne confronted novel and complex constitutional questions regarding the postconviction protections offered to potentially innocent convicts. Two decades after DNA testing exonerated the first inmate in the United States, the Court heard its first claim by a convict seeking DNA testing that could prove innocence. I argue that, contrary to early accounts, the Court did not reject a constitutional right to postconviction DNA testing. Despite language suggesting the Court would not “constitutionalize the issue” by announcing an unqualified freestanding right, Chief Justice Roberts’s majority opinion proceeded to carefully fashion an important, …

Baseless Pleas: A Mockery Of Justice, Mari Byrne

Fordham Law Review

This Note addresses the ethicality of the baseless plea, a guilty plea entered by a defendant for a crime that everyone in the courtroom—judge, prosecutor, defense attorney, and defendant—knows the defendant did not commit. Used in the interest of efficiency and leniency, the baseless plea allows a defendant to plead guilty to a crime that has no basis in the facts of the case. Though used by courts in numerous jurisdictions, baseless pleas have been largely unaddressed as courts have sought to conceal the practice and as commentators have therefore failed to detect it. This Note seeks to remedy that …

Behind The Music: Determining The Relevant Constitutional Standard For Statutory Damages In Copyright Infringement Suits, Colin Morrissey

Fordham Law Review

Record labels have brought thousands of copyright infringement lawsuits against individuals engaged in the online downloading and distribution of music. As these lawsuits work their way through the court system, a debate has emerged over the constitutionality of the large statutory damage awards some juries have awarded. In arguing that the copyright statute results in unconstitutional damage awards, commentators as well as defendants accused of copyright infringement contend that courts should apply the rigorous standard of review for punitive damages that the U.S. Supreme Court adopted in BMW of North America v. Gore to find large statutory damage awards unconstitutional. …

Judge Or Jury? Determining Deception Or Misrepresentation Under The Fair Debt Collection Practices Act, Christian Stueben

Fordham Law Review

This Note explores the conflict among the federal circuit courts as to whether a judge or jury should decide if the language contained in a collection letter is false, misleading, or deceptive to the least sophisticated consumer under the Fair Debt Collection Practices Act (FDCPA). Some circuits, such as the Second and Ninth Circuits, hold that this issue is a question of law, appropriate for the judge to decide. In contrast, the Seventh Circuit finds this to be a question of fact, and requires the plaintiff to submit extrinsic evidence in the form of professional surveys in order to reach …

New York: The Next Mecca For Judgment Creditors? An Analysis Of Koehler V. Bank Of Bermuda Ltd., Damien H. Weinstein

Fordham Law Review

New York may have just become a great place to be a judgment creditor. In the summer of 2009, the Court of Appeals of New York handed down its decision in Koehler v. Bank of Bermuda Ltd. In Koehler, the court upheld a turnover order directing a garnishee to transfer a nonresident judgment debtor’s assets, deposited in a Bermuda bank, into New York. Under Koehler, assets anywhere in the world may now be garnishable in New York so long as the garnishee is subject to the state’s jurisdiction. This decision greatly broadens New York courts’ power to enforce judgments by …

Foreword: Reflections On The Adjudication-Settlement Divide, Howard M. Erichson

Fordham Law Review

No abstract provided.

Reexamining The Arguments In Owen M. Fiss, Against Settlement, Kenneth R. Feinberg

Fordham Law Review

No abstract provided.