Digital Commons Network^™

The Great Disruption: How Machine Intelligence Will Transform The Role Of Lawyers In The Delivery Of Legal Services, John O. Mcginnis, Russell G. Pearce

Fordham Law Review

No abstract provided.

Defining Patent Quality, Christi J. Guerrini

Fordham Law Review

    Depending on whom you ask, the state of U.S. patent quality is either dismal or decent, in decline or on the upswing, in need of intervention or best left alone. Absent from the ongoing debate about the quality of U.S. patents, however, is much thoughtful discussion about what constitutes a patent’ “quality” in the first place. What features of a patent make it “good” in quality, what features make it “bad” in quality, and whose opinion matters? Surprisingly, scholars and policymakers have shown little interest in these questions. Yet their answers are critical to the direction of the patent agenda …

Sentencing The Why Of White Collar Crime, Todd Haugh

Fordham Law Review

    “So why did Mr. Gupta do it?” That question was at the heart of Judge Jed Rakoff’s recent sentencing of Rajat Gupta, a former Wall Street titan and the most high-profile insider-trading defendant of the past thirty years. The answer, which the court actively sought by inquiring into Gupta’s psychological motivations, resulted in a two-year sentence, eight years less than the government requested. What was it that Judge Rakoff found in Gupta that warranted such a lenient sentence? While it was ultimately unclear to the court exactly what motivated Gupta to commit such a “terrible breach of trust,” it is …

Federal Enforcement Of Police Reform, Stephen Rushin

Fordham Law Review

    Congress passed 42 U.S.C. § 14141 in an effort to combat police misconduct and incentivize proactive reform in local law enforcement agencies. The statute gives the U.S. Attorney General the power to initiate structural reform litigation against local police departments engaged in a pattern or practice of unconstitutional behavior. While academics initially praised the law’s passage, many have since worried that the Department of Justice (DOJ) has not effectively administered the measure. Little research has analyzed how the DOJ has used its authority to initiate structural police reform. Using a combination of qualitative and quantitative methods, I fill this gap …

Editors' Foreword, Editors

Fordham Law Review

No abstract provided.

Passport Revocation As Proxy Denaturalization: Examining The Yemen Cases, Ramzi Kassem

Fordham Law Review

No abstract provided.

Enforcement Of Forum-Selection Clauses In Federal Court After Atlantic Marine, Matthew J. Sorensen

Fordham Law Review

    Forum-selection clauses are important agreements that limit exposure to risk of litigation in an undesired locale. The enforcement of forum-selection clauses in the U.S. federal court system was not always certain, but today, such agreements are broadly considered enforceable. Courts, however, are split as to whether such clauses are governed by state or federal law and as to the proper procedural mechanism for enforcement. Recently, in Atlantic Marine Construction Co. v. U.S. District Court, the U.S. Supreme Court made strides toward resolving these disagreements among lower courts.

    This Note explores the history of enforcement of forum-selection clauses in federal …

Bankruptcy’S Corporate Tax Loophole, Diane Lourdes Dick

Fordham Law Review

    Imagine you are a company with a failing business that is drowning in debt. On the bright side, you also possess a very valuable asset. This asset is unique because, unlike most assets, if you liquidate the business through a Chapter 7 bankruptcy, it will be extinguished and its value will not be realized by any shareholders or creditors. On the other hand, even if you substantially liquidate the business using Chapter 11, you can, thanks to an extraordinary ambiguity in the law, preserve this valuable asset. Even better, you can direct the value of this asset to your preferred …

The Relevance Of Relevance: Section 215 Of The Usa Patriot Act And The Nsa Metadata Collection Program, Casey J. Mcgowan

Fordham Law Review

    In June 2013, a National Security Agency (NSA) contractor, Edward Snowden, leaked classified documents exposing a number of secret government programs. Among these programs was the “telephony metadata” collection program under which the government collects records from phone companies containing call record data for nearly every American. News of this program created considerable controversy and led to a wave of litigation contesting the validity of the program.

    The legality of the metadata collection program has been challenged on both constitutional and statutory grounds. The program derives its authority from Section 215 of the USA PATRIOT Act, codified as 50 U.S.C. …

The Citizenship Of Others, Muneer I. Ahmad

Fordham Law Review

No abstract provided.

Soil And Citizenship, Linda Bosniak

Fordham Law Review

No abstract provided.

Substantive Due Process And U.S. Jurisdiction Over Foreign Nationals, Jennifer K. Elsea

Fordham Law Review

    The due process rights of suspected terrorists have played a major role in the debate about how best to engage terrorist entities after September 11, 2001. Does citizenship or immigration status have a bearing on the treatment of terrorists? Does location within or outside the United States matter? This Article explores the connection between citizenship and alienage, enemy status, allegiance, and due process rights against a backdrop of international law. It surveys the application of due process to citizens and aliens based on the location of misconduct within or outside the territory of the United States and notes the expansion …

Citizenship And Protection, Andrew Kent

Fordham Law Review

    This Article discusses the role of U.S. citizenship in determining who would be protected by the Constitution, other domestic laws, and the courts. Traditionally, within the United States, both noncitizens and citizens have had more or less equal civil liberties protections. But outside the sovereign territory of the United States, noncitizens have historically lacked such protections. This Article sketches the traditional rules that demarcated the boundaries of protection, then addresses the functional and normative justifications for the very different treatment of noncitizens depending on whether or not they were present within the United States.

The Nsa In Global Perspective: Surveillance, Human Rights, And International Counterterrorism, Peter Margulies

Fordham Law Review

No abstract provided.

Expatriating Terrorists, Peter J. Spiro

Fordham Law Review

No abstract provided.

Detention After The Aumf, Stephen I. Vladeck

Fordham Law Review

No abstract provided.

The Boston Bombers, Leti Volpp

Fordham Law Review

No abstract provided.

Function Over Form: Bringing The Fixation Requirement Into The Modern Era, Megan Carpenter, Steven Hetcher

Fordham Law Review

    This Article examines the ways that contemporary creativity challenges copyright’s fixation requirement. In this Article, we identify concrete problems with the fixation requirement, both practically and in light of the fundamental purpose and policy behind copyright law, and argue for a change that would amend the fixation requirement to better function in the modern era.

    Specifically, we conclude that a fair appraisal of the justifications for the fixation requirement provides little, if any, rationale for fixation except to the extent that fixation helps to separate idea from expression in determining the “metes and bounds” of creative expression. Recent case law …

Comity Concerns Are No Joke: Recognition Of Foreign Judgments Under Dormant Foreign Affairs Preemption, Marc P. Epstein

Fordham Law Review

    This Note gives the legal background of the doctrine of dormant foreign affairs preemption, examines the laws governing the recognition of foreign judgments under the lens of dormant foreign affairs preemption, and argues that courts should adopt an objective standard for future dormant foreign affairs preemption cases.

    Dormant foreign affairs preemption is premised on the idea that the federal government should have exclusive control over foreign affairs. The doctrine allows courts to preempt state laws in some cases where there is no conflicting federal policy or statute. The U.S. Supreme Court has only once held a state statute unconstitutional under …

Ascertainability In The Third Circuit: Name That Class Member, Daniel Luks

Fordham Law Review

    The 1966 amendment of Rule 23 provided plaintiffs with an extremely powerful procedural device. Since then, much controversy has surrounded Rule 23. Judges have often shown hostility towards certification of frivolous class actions that result in large fees for attorneys but little recovery for class members. The Third Circuit has recently used the requirement that a class be ascertainable to create an extremely high bar for certification of small-claims consumer class actions. Such class actions in the Third Circuit are essentially fruitless unless a plaintiff can individually identify all potential class members prior to class certification. The Third Circuit is …

Unlimited Data?: Placing Limits On Searching Cell Phone Data Incident To A Lawful Arrest, Thomas Rosso

Fordham Law Review

    The “search incident to arrest exception” is one of several exceptions to the general requirement that police must obtain a warrant supported by probable cause before conducting a search. Under the exception, an officer may lawfully search an arrestee’s person and the area within the arrestee’s immediate control without a warrant or probable cause, so long as the search is conducted contemporaneously with the lawful arrest. The U.S. Supreme Court has justified the exception based on the need for officers to discover and remove any weapons or destructible evidence that may be within the arrestee’s reach. Additionally, the Court has …

Sovereign Bankruptcy: Why Now And Why Not In The Imf, Molly Ryan

Fordham Law Review

    As the Eurozone sovereign debt crisis that began in 2009 continues to run its course, leaving massive economic dislocation in its wake, and as NML Capital, Ltd. v. Republic of Argentina makes its way to the U.S. Supreme Court, this Note discusses the timely and persistent problem of sovereign debt crises and the many impediments to their orderly resolution. This Note evaluates various proposals for dealing with sovereign debt-crisis resolution and concludes that a multilateral treaty-based sovereign bankruptcy regime, institutionally independent from the International Monetary Fund, offers the best solution.

    The status quo—messy, inefficient, and unpredictable ad hoc negotiations—has consistently …

Shall Businesses Profit If Their Owners Lose Their Souls? Examining Whether Closely Held Corporations May Seek Exemptions From The Contraceptive Mandate, Christopher S. Ross

Fordham Law Review

    May for–profit, secular corporations claim the protection of the Religious Freedom Restoration Act (RFRA)?

    This question is central to numerous lawsuits against the federal government in which business owners argue that certain regulations under the Patient Protection & Affordable Care Act substantially burden the exercise of their religion. This Note examines the threshold hurdle that for–profit business owners must clear to successfully state a claim under RFRA: the question of whether the businesses are “persons” the statute protects. This is an issue of first impression for the U.S. Supreme Court, and it has split the circuit courts of appeal.

    First, …

Giving Meaning To “Meaningful Enough”: Why Trevino Requires New Counsel On Appeal, Devon Lash

Fordham Law Review

    Generally, defendants cannot raise new claims in a writ of habeas corpus unless they can accomplish the difficult task of showing that they could not have raised the claims earlier. In 2012, the U.S. Supreme Court laid out an equitable exception that allows defendants to claim—for the first time in a writ of habeas corpus—that they had an ineffective trial attorney if their failure to make a timely claim was due to a second ineffective attorney or no attorney whatsoever. The exception, however, only applied to defendants in states that required ineffective assistance claims to be brought in collateral proceedings, …

Conceptualizing And Reconceptualizing The Reporter’S Privilege In The Age Of Wikileaks, Rachel Harris

Fordham Law Review

    The examination of the reporter’s privilege in light of WikiLeaks gives rise to several imperative questions. Could WikiLeaks claim a federal reporter’s privilege if the U.S. government were to ask it to disclose the sources of its documents? Does the current federal law on reporter’s privilege adequately address new media, such as WikiLeaks? And if not, how should the law evolve to sufficiently accommodate organizations like WikiLeaks?

    This Note seeks to answer these questions. First, this Note advocates that WikiLeaks would be able to claim the privilege under current federal law. Second, this Note concludes that the current law on …

Anonymity, The Production Of Goods, And Institutional Design, Jeffrey M. Skopek

Fordham Law Review

    In this Article, I demonstrate that anonymity has been misconceived as an aspect of privacy, and that understanding this mistake reveals a powerful and underutilized set of legal tools for facilitating and controlling the production of information and other social “goods” (ranging from uncorrupted votes and campaign donations to tissue samples and funding for biomedical research). There are three core components to this analysis. First, I offer a taxonomic analysis of existing law, revealing that in areas ranging from contract and copyright to criminal law and constitutional law, the production of information and other goods is being targeted by three …

Private Law In The Gaps, Jeffrey A. Pojanowski

Fordham Law Review

    Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory.

    This Article’s analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …

Putting The Legal Profession’S Monopoly On The Practice Of Law In A Global Context, Laurel S. Terry

Fordham Law Review

When considering the proper scope of the U.S. legal profession’s monopoly, regulators and commentators may find it useful to compare the scope of the U.S. monopoly with the legal profession monopolies found in other countries. This Article surveys what we know—and do not know—about the scope of the monopoly in countries other than the United States. The Article finds that the state of knowledge on this topic is relatively undeveloped, that the scope of the U.S. legal profession’s monopoly appears to be larger than the scope of the monopoly found in some other countries, but that the “conventional wisdom” may …

Meta Rights, Charlotte Garden

Fordham Law Review

Are individuals entitled to notice of their constitutional rights or assistance in exercising those rights? In most contexts, the answer is no. Yet, there are some important exceptions, in which the U.S. Supreme Court has held that special circumstances call for notice and procedural protections designed to facilitate rights invocations. This Article refers to these entitlements as “meta rights”—rights that protect rights. The most famous of these is the Miranda warning, which notifies suspects of their Fifth Amendment rights to silence and an attorney. There are others as well—among them, the First Amendment right of individuals represented by public sector …

In The Service Of Others: From Rose Hill To Lincoln Center, Constantine N. Katsoris

Fordham Law Review

At the start of the 2014 to 2015 academic year, Fordham University School of Law will begin classes at a brand new, state–of–the–art building located adjacent to the Lincoln Center for the Performing Arts. This new building will be the eighth location for Fordham Law School in New York City. From its start at Rose Hill in the Bronx, New York, to its various locations in downtown Manhattan, and finally, to its two locations at Lincoln Center, the law school’s education and values have remained constant: legal excellence through public service. This Article examines the law school’s rich history in …