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Rule 26(A)(2)(B) Of The Federal Rules Of Civil Procedure: In The Interest Of Full Disclosure, Katherine A. Rocco Jan 2008

Rule 26(A)(2)(B) Of The Federal Rules Of Civil Procedure: In The Interest Of Full Disclosure, Katherine A. Rocco

Fordham Law Review

This Note examines the varying interpretations of Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, an issue currently dividing the nation's circuit courts of appeal and district courts. Interpreting the Rule for its plain meaning yields an exemption for expert witnesses who are either treating physicians or employees of a party in the case. While some courts have followed this textualist approach, more have opted for a broader interpretation, imposing the expert report requirements of Rule 26 on employee experts and treating physicians under certain circumstances. In keeping with the spirit of the Rules, courts should interpret the Rule …


Home Ownership Risk Beyond A Subprime Crisis: The Role Of Delinquency Management, Melissa B. Jacoby Jan 2008

Home Ownership Risk Beyond A Subprime Crisis: The Role Of Delinquency Management, Melissa B. Jacoby

Fordham Law Review

A surge in delinquency among risky subprime home mortgages has produced calls for front-end regulatory fixes as well as emergency foreclosure avoidance interventions. Whatever the merit of those interventions, this Essay calls for home mortgage delinquency management to be conceptualized as an enduring component of housing policy. The Essay identifies and evaluates a framework for the management of delinquency that is not limited to formal foreclosure law and includes other debtor-creditor laws such as bankruptcy, industry loss mitigation efforts, and third-party interventions such as delinquency housing counseling. The Essay also proposes that delinquency management be evaluated through the lens of …


Prudential Standing Limitations On Lanham Act False Advertising Claims, Gregory Apgar Jan 2008

Prudential Standing Limitations On Lanham Act False Advertising Claims, Gregory Apgar

Fordham Law Review

Section 43(a) of the Lanham Act provides a federal cause of action for false advertising. There is considerable disagreement among the federal circuit courts over the proper way to determine standing under this statute. Much of the disagreement centers on how the plaintiff's status as a direct competitor of the defendant should affect the standing inquiry. This Note argues that the five-factor test currently used by the U.S. Courts of Appeals for the Third, Fifth, and Eleventh Circuits is the best approach. Further, this Note argues that an allegation of a commercial injury by a direct competitor of the defendant …


From T-Shirts To Teaching: May Public Schools Constitutionally Regulate Antihomosexual Speech?, Amanda L. Houle Jan 2008

From T-Shirts To Teaching: May Public Schools Constitutionally Regulate Antihomosexual Speech?, Amanda L. Houle

Fordham Law Review

In applying the First Amendment in the public school context, courts are faced with the challenge of balancing the constitutional rights of students against the discretion of schools to control speech and conduct on school grounds. This Note focuses on the specific issue of public schools regulating antihomosexual speech. Evaluating the First Amendment rights of students expressing antihomosexual sentiment through private and school-sponsored mediums, this Note ultimately argues for a comprehensive standard permitting schools to regulate both private and school-sponsored student speech.


The Blurring Of The Lines: Children And Bans On Interracial Unions And Same-Sex Marriages, Carlos A. Ball Jan 2008

The Blurring Of The Lines: Children And Bans On Interracial Unions And Same-Sex Marriages, Carlos A. Ball

Fordham Law Review

No abstract provided.


Listening To The Interracial Canary: Contemporary Views On Interracial Relationships Among Blacks And Whites, Erica Chito Childs Jan 2008

Listening To The Interracial Canary: Contemporary Views On Interracial Relationships Among Blacks And Whites, Erica Chito Childs

Fordham Law Review

No abstract provided.


Time For Rights? Loving, Gay Marriage, And The Limits Of Legal Justice, Chandan Reddy Jan 2008

Time For Rights? Loving, Gay Marriage, And The Limits Of Legal Justice, Chandan Reddy

Fordham Law Review

No abstract provided.


"Who Killed Katie Couric?" And Other Tales From The World Of Executive Compensation Reform, Kenneth M. Rosen Jan 2008

"Who Killed Katie Couric?" And Other Tales From The World Of Executive Compensation Reform, Kenneth M. Rosen

Fordham Law Review

No abstract provided.


Direct Democracy And The Electoral College: Can A Popular Initiative Change How A State Appoints Its Electors?, Michael Mclaughlin Jan 2008

Direct Democracy And The Electoral College: Can A Popular Initiative Change How A State Appoints Its Electors?, Michael Mclaughlin

Fordham Law Review

This Note explores the constitutionality of a proposed popular initiative in California that would direct the manner in which the state appoints presidential electors. Article II, Section 1, Clause 2 of the U.S. Constitution gives the state legislature the power to direct the manner in which the state appoints its presidential electors. The issue presented in this Note is whether a popular initiative qualifies as a “state legislature” under Article II, Section 1, Clause 2. To answer this question, this Note first examines the history of the Elector Appointment Clause, with respect to the Electoral College and in light of …


Are Storylines Patentable? Testing The Boundaries Of Patentable Subject Matter, Anu R. Sawkar Jan 2008

Are Storylines Patentable? Testing The Boundaries Of Patentable Subject Matter, Anu R. Sawkar

Fordham Law Review

This Note examines doctrinal issues relating to the patentability of nonphysical inventions by assessing a proposal to patent storylines for use in books and movies. Analyzing recent and historical case law regarding the limits of patentable subject matter, this Note identifies four points of doctrinal tension whose resolution will determine the extent to which nonphysical inventions, such as the storyline proposal, are patentable. This Note suggests how the U.S. Court of Appeals for the Federal Circuit should resolve these tensions in upcoming cases and proposes boundaries for the patentability of nonphysical inventions.


Reconciling Morse With Brandenburg, Steven Penaro Jan 2008

Reconciling Morse With Brandenburg, Steven Penaro

Fordham Law Review

This Note examines Morse v. Frederick in connection with the Brandenburg v. Ohio test governing speech that advocates unlawful acts. In Morse, the U.S. Supreme Court devised a new test that gives school officials the power to restrict student speech promoting the use of illegal drugs. However, in Brandenburg, the Supreme Court held that speech must be struck down if the speaker intends to incite imminent lawless action and that speech is likely to produce such action. This Note argues that a relaxed application of the Brandenburg standard would be useful in prohibiting student drug speech within a school setting.


Should Preemption Apply In A Pharmaceutical Context? An Analysis Of The Preemption Debate And What Regulatory Compliance Statutes Contribute To The Discussion, Jennifer A. Surprenant Jan 2008

Should Preemption Apply In A Pharmaceutical Context? An Analysis Of The Preemption Debate And What Regulatory Compliance Statutes Contribute To The Discussion, Jennifer A. Surprenant

Fordham Law Review

Should the Food and Drug Administration (FDA)’s determination that a product is safe negate a private litigant’s cause of action under state law in all circumstances, unless the FDA determines that the manufacturer withheld relevant information regarding the safety of the product? This Note concludes that such federal preemption is proper because the FDA is fully capable of making a determination regarding the adequacy of the information disclosed by a pharmaceutical manufacturer without state interference. Additionally, such interference on the state level hinders the FDA’s objectives and effective functioning. Thus, determinations about the adequacy of the information provided to the …


International Law And The Constitution: Terms Of Engagement, Foreword, Catherine Powell Jan 2008

International Law And The Constitution: Terms Of Engagement, Foreword, Catherine Powell

Fordham Law Review

No abstract provided.


Upstairs, Downstairs: Subnational Incorporation Of International Human Rights Law At The End Of An Era, Martha F. Davis Jan 2008

Upstairs, Downstairs: Subnational Incorporation Of International Human Rights Law At The End Of An Era, Martha F. Davis

Fordham Law Review

No abstract provided.


American Ideals & Human Rights: Findings From New Public Opinion Research By The Opportunity Agenda, Alan Jenkins, Kevin Shawn Hsu Jan 2008

American Ideals & Human Rights: Findings From New Public Opinion Research By The Opportunity Agenda, Alan Jenkins, Kevin Shawn Hsu

Fordham Law Review

No abstract provided.


The Role Of International Bodies In Influencing U.S. Policy To End Violence Against Women, Lenora M. Lapidus Jan 2008

The Role Of International Bodies In Influencing U.S. Policy To End Violence Against Women, Lenora M. Lapidus

Fordham Law Review

No abstract provided.


Keynote Address, A Community Of Reason And Rights, Harold Hongju Koh, William Michael Treanor Jan 2008

Keynote Address, A Community Of Reason And Rights, Harold Hongju Koh, William Michael Treanor

Fordham Law Review

No abstract provided.


Getting Beyond The Crossfire Phenomenon: A Militant Moderate's Take On The Role Of Foreign Authority In Constitutional Interpretation, Melissa A. Waters Jan 2008

Getting Beyond The Crossfire Phenomenon: A Militant Moderate's Take On The Role Of Foreign Authority In Constitutional Interpretation, Melissa A. Waters

Fordham Law Review

No abstract provided.


Lower Courts And Constitutional Comparativism, Roger P. Alford Jan 2008

Lower Courts And Constitutional Comparativism, Roger P. Alford

Fordham Law Review

No abstract provided.


Humanity Law: A New Interpretive Lens On The International Sphere, Ruti Teitel Jan 2008

Humanity Law: A New Interpretive Lens On The International Sphere, Ruti Teitel

Fordham Law Review

No abstract provided.


The Corporate Governance And Public Policy Implications Of Activist Distressed Debt Investing, Michelle M. Harner Jan 2008

The Corporate Governance And Public Policy Implications Of Activist Distressed Debt Investing, Michelle M. Harner

Fordham Law Review

Activist institutional investors traditionally have invested in a company's equity to try to influence change at the company. Some of these investors, however, are now purchasing a company's debt for this same purpose. They may seek to change a company's management and board personnel, operational strategies, asset holding, or capital structure. The Chapter 11 bankruptcy cases of Allied Holdings, Inc. and its affiliates exemplify the stategies of activist distressed debt investors. In the Allied cases, Yucaipa Companies, a distressed debt investor, puchased approximately 66% of Allied's outstanding general unsecured bond debt. Yucaipa used this debt position to exert significant influence …


Protecting Status: The Mortgage Crisis, Eminent Domain, And The Ethic Of The Homeownership, Rachel D. Godsil, David V. Simunovich Jan 2008

Protecting Status: The Mortgage Crisis, Eminent Domain, And The Ethic Of The Homeownership, Rachel D. Godsil, David V. Simunovich

Fordham Law Review

Homeownership is in crisis. Millions of families are at risk of foreclosure as they are caught between declining housing values and rising interest payments on adjustable-rate mortgages. The primary concern for such families is not that they will become homeless—most families who lose their homes could afford to become renters—but rather that they will lose their status as homeowners. For families required to sell their property by the government’s use of eminent domain, a similar issue arises, as the “fair market value” of some homes (the standard measure of compensation) is generally not enough to allow the family to purchase …


Intentional Sex Torts, Deana Pollard Sacks Jan 2008

Intentional Sex Torts, Deana Pollard Sacks

Fordham Law Review

Intentional tort law generally protects personal autonomy and self-determination vigorously by requiring fair disclosure before consent to physical contact is considered voluntary and valid. A glaring exception exists regarding consent to sexual relations. Although American law historically has provided remedies for fraudulent or other tortious inducement of sexual relations, current sex tort jurisprudence offers virtually no protection. The law’s contemporary “caveat emptor” approach to cases of sexual autonomy infringement is inappropriate because it departs from fundamental principles of intentional tort doctrine. In addition, the current law supports a “false” norm that sexual misappropriation is acceptable. Current law fails to protect …


Interpreting The Phrase "Newly Discovered Evidence": May Previously Unavailable Exculpatory Testimony Serve As The Basis For A Motion For A New Trial Under Rule 33?, Mary Ellen Brennan Jan 2008

Interpreting The Phrase "Newly Discovered Evidence": May Previously Unavailable Exculpatory Testimony Serve As The Basis For A Motion For A New Trial Under Rule 33?, Mary Ellen Brennan

Fordham Law Review

Rule 33 of the Federal Rules of Criminal Procedure permits a federal court to grant a new trial to a criminal defendant if the “interest of justice so requires,” specifying as one potential basis the availability of “newly discovered evidence.” The federal circuit courts have disagreed as to whether postconviction testimony proffered by a codefendant who had remained silent at trial may serve as the basis for a Rule 33 motion grounded on newly discovered evidence. A majority of the federal circuits, including, most recently, the U.S. Court of Appeals for the Second Circuit, have held that, while a codefendant’s …


Taking Finance Seriously: How Debt Financing Distorts Bidding Outcomes In Corporate Takeovers, Robert P. Bartlett Iii Jan 2008

Taking Finance Seriously: How Debt Financing Distorts Bidding Outcomes In Corporate Takeovers, Robert P. Bartlett Iii

Fordham Law Review

Economic analysis of corporate takeovers has traditionally advocated legal doctrines that ensure a target company in a takeover contest is acquired by the bidder willing to pay the most for it. The reason stems from the conventional assumption that a bidder's offer price should reflect its ability to put a target's assets to productive use. This Article challenges this assumption by turning to the success of private equity firms in outbidding publicly traded, strategic bidders during the takeover wave of 2004 to 2007. Using standard valuation modeling, this Article reveals how a critical component of any bidder's valuation of a …


Harmless Constitutional Error And The Institutional Significance Of The Jury, Roger A. Fairfax, Jr. Jan 2008

Harmless Constitutional Error And The Institutional Significance Of The Jury, Roger A. Fairfax, Jr.

Fordham Law Review

Appellate harmless error review, an early twentieth-century innovation prompted by concerns of efficiency and finality, had been confined to nonconstitutional trial errors until forty years ago, when the U.S. Supreme Court extended the harmless error rule to trial errors of constitutional proportion. Even as criminal procedural protections were expanded in the latter half of the twentieth century, the harmless error rule operated to dilute the effect of many of these constitutional guarantees--the Sixth Amendment right to jury trial being no exception. However, while a trade-off between important process values and the Constitution's protection of individual rights is inherent in the …


Alien Tort Statute Accomplice Liability Cases: Should Courts Apply The Plausibility Pleading Standard Of Bell Atlantic V. Twombly?, Amanda Sue Nichols Jan 2008

Alien Tort Statute Accomplice Liability Cases: Should Courts Apply The Plausibility Pleading Standard Of Bell Atlantic V. Twombly?, Amanda Sue Nichols

Fordham Law Review

When a corporation operating abroad either conspires with, or aids and abets, an oppressive regime in violating human rights, victims can seek redress in U.S. courts under the Alien Tort Statute. In assessing such claims, some courts have chosen to apply a liberal pleading standard, while others have applied a heightened pleading standard to combat frivolous lawsuits. This Note suggests that courts should apply a third standard--the plausibility standard applied to claims under section 1 of the Sherman Act by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly. This Note argues that applying that standard to Alien Tort …


Trying Cases Related To Allegations Of Terrorism: Judges' Roundtable, Hon. Marcia G. Cooke, Hon. Gerald Ellis Rosen, Hon. Leonard Burke Sand, Hon. Shira A. Scheindlin Jan 2008

Trying Cases Related To Allegations Of Terrorism: Judges' Roundtable, Hon. Marcia G. Cooke, Hon. Gerald Ellis Rosen, Hon. Leonard Burke Sand, Hon. Shira A. Scheindlin

Fordham Law Review

No abstract provided.


Proposing A Uniform Remedial Approach For Undocumented Workers Under Federal Employment Discrimination Law, Craig Robert Senn Jan 2008

Proposing A Uniform Remedial Approach For Undocumented Workers Under Federal Employment Discrimination Law, Craig Robert Senn

Fordham Law Review

Given the recent influxes of undocumented workers who have entered the United States in order to obtain employment, the issue of their remedial rights under federal employment discrimination law has become highly significant. Under Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), and/or the Age Discrimination in Employment Act (ADEA), these remedies could include back pay, front pay (in lieu of reinstatement), compensatory damages, punitive damages, liquidated damages, and/or reasonable attorneys’ fees, as applicable. At present, there is no uniform judicial approach for determining the monetary remedial rights of the millions of undocumented workers under …


Revisiting The Legal Standards That Govern Requests To Sterilize Profoundly Incompetent Children: In Light Of The "Ashley Treatment," Is A New Standard Appropriate?, Christine Ryan Jan 2008

Revisiting The Legal Standards That Govern Requests To Sterilize Profoundly Incompetent Children: In Light Of The "Ashley Treatment," Is A New Standard Appropriate?, Christine Ryan

Fordham Law Review

This Note discusses the recent controversy surrounding a six-year-old girl named Ashley, whose parents chose to purposefully stunt her growth and remove her reproductive organs for nonmedical reasons. A federal investigation determined that Ashley’s rights had been violated because doctors performed the procedure, now referred to as the “Ashley Treatment,” without first obtaining a court order. However, the investigation did not make any conclusions regarding whether the “Ashley Treatment” could present a legally permissible treatment option in the future. After discussing the constitutional rights that the “Ashley Treatment” implicates and the current legal standards in place, this Note examines how …