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Articles 1 - 30 of 64
Full-Text Articles in Law
Regulating Direct-To-Consumer Genetic Testing: Protecting The Consumer Without Quashing A Medical Revolution, Jennifer A. Gniady
Regulating Direct-To-Consumer Genetic Testing: Protecting The Consumer Without Quashing A Medical Revolution, Jennifer A. Gniady
Fordham Law Review
This Note examines the existing gaps in regulating genetic tests that are sold directly to consumers and the arguments for and against greater regulation. It advocates adopting an approach that shores up existing regulation of the accuracy of genetic tests under the Food and Drug Administration and Clinical Laboratory Improvement Amendment, while continuing to promote an open market for selling tests directly to consumers. The Note looks to a variety of additional mechanisms for providing further consumer protections such as incentives for voluntary participation in the Food and Drug Administration approval process, an expanded watchdog role for professional organizations, and …
The Progress Of Women Lawyers At Big Firms: Steadied Or Simply Studied?, Judith S. Kaye, Anne C. Reddy
The Progress Of Women Lawyers At Big Firms: Steadied Or Simply Studied?, Judith S. Kaye, Anne C. Reddy
Fordham Law Review
In the twenty years since now-Chief Judge Judith S. Kaye published her essay on women lawyers in big firms, interest in the subject has mushroomed, as the profession continues to grapple with issues of gender equity. This update reflects voluminous new literature and looks behind the statistics to find fresh efforts and pathways to solutions that can benefit women as well as the profession generally.
Taking Finance Seriously: How Debt Financing Distorts Bidding Outcomes In Corporate Takeovers, Robert P. Bartlett Iii
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.
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 …
Turf Wars: Street Gangs And The Outer Limits Of Rico's "Affecting Commerce" Requirement, Frank D'Angelo
Turf Wars: Street Gangs And The Outer Limits Of Rico's "Affecting Commerce" Requirement, Frank D'Angelo
Fordham Law Review
In response to the increasingly vast economic impact of organized crime, Congress in 1970 enacted the Racketeer Influenced and Corrupt Organizations Act (RICO) to provide federal prosecutors additional tools to combat such crime. RICO requires that enterprises whose members are charged with violating the Act must “affect interstate commerce.” Courts have held that RICO may be applied to enterprises with no economic motivation so long as they minimally affect interstate commerce. However, given the Act's economic history and interstate commerce element, its application to noneconomic intrastate enterprises presents a special problem. This Note argues that, consistent with relevant Commerce Clause …
Explaining Away The Obvious: The Infeasibility Of Characterizing The Second Amendment As A Nonindividual Right, George A. Mocsary
Explaining Away The Obvious: The Infeasibility Of Characterizing The Second Amendment As A Nonindividual Right, George A. Mocsary
Fordham Law Review
Although the Second Amendment of the U.S. Constitution has guaranteed the right to keep and bear arms for more than 200 years, the U.S. Supreme Court has never formally declared to whom the right belongs. Each side of the gun debate--one holding that the Amendment guarantees a right to individuals, the other that states possess the right--supports its position with ostensibly solid precedential, historical, and textual arguments. This Note approaches the issue from the opposite direction, asking how many precedential, historical, and textual obstacles each side must explain away and examining the relative strength of those explanations. Under this analysis, …
Alien Tort Statute Accomplice Liability Cases: Should Courts Apply The Plausibility Pleading Standard Of Bell Atlantic V. Twombly?, Amanda Sue Nichols
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 …
Rule 26(A)(2)(B) Of The Federal Rules Of Civil Procedure: In The Interest Of Full Disclosure, Katherine A. Rocco
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
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 …
Erisa, Agency Costs, And The Future Of Health Care In The United States, John Bronsteen, Brendan S. Maher, Peter K. Stris
Erisa, Agency Costs, And The Future Of Health Care In The United States, John Bronsteen, Brendan S. Maher, Peter K. Stris
Fordham Law Review
Because so many Americans receive health insurance through their employers, the Employee Retirement Income Security Act (ERISA) of 1974 plays a dominant role in the delivery of health care in the United States. The ERISA system enables employers and insurers to save money by providing inadequate health care to employees, thereby creating incentives for these agents to act contrary to the interests of their principals. Such agency costs play a significant role in the current health care crisis and require attention when considering reform. We evaluate the two major health care reform movements by exploring the extent to which each …
Prudential Standing Limitations On Lanham Act False Advertising Claims, Gregory Apgar
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
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.
Waiting In Immigration Limbo: The Federal Court Split Over Suits To Compel Action On Stalled Adjustment Of Status Applications, Lauren E. Sasser
Waiting In Immigration Limbo: The Federal Court Split Over Suits To Compel Action On Stalled Adjustment Of Status Applications, Lauren E. Sasser
Fordham Law Review
This Note explores the conflict surrounding federal courts' authority to hear injunctive suits from adjustment of status applicants demanding U.S. Citizenship and Immigration Services action on significantly delayed applications. The conflict turns on whether the agency has a duty to adjudicate applications properly before it, whether it must do so in a reasonable time, and whether any statutes preclude jurisdiction. The Note argues that the agency has a duty to adjudicate applications properly before it in a reasonable time. When it violates that duty, applicants should have legal recourse in all jurisdictions.
Who Is At The Table? Interpreting Disclosure Requirements For Ad Hoc Groups Of Institutional Investors Under Federal Rule Of Bankruptcy Procedure 2019, James M. Shea, Jr.
Who Is At The Table? Interpreting Disclosure Requirements For Ad Hoc Groups Of Institutional Investors Under Federal Rule Of Bankruptcy Procedure 2019, James M. Shea, Jr.
Fordham Law Review
This Note explores Federal Rule of Bankruptcy Procedure 2019's disclosure requirements when hedge funds and other institutional investors appear as groups in Chapter 11 cases. In particular, this Note traces the history of Rule 2019 and the various corporate reorganization mechanisms to explain the split between two bankruptcy courts on whether these groups constitute “committees” under Rule 2019. This Note cites the fundamental differences between these groups and protective committees--the committees charged with representing security holders under federal equity receiverships. Hence, ad hoc groups do not have to make detailed disclosures of each individual transaction, disclosure that would be required …
"Obvious To Try": A Proper Patentability Standard In The Pharmaceutical Arts?, Andrew V. Trask
"Obvious To Try": A Proper Patentability Standard In The Pharmaceutical Arts?, Andrew V. Trask
Fordham Law Review
Pharmaceutical research often entails making small modifications to candidate drug molecules--modifications that might be deemed “obvious to try”--and then studying the largely unpredictable, yet critical, resulting biological effects. Recognizing this characteristic unpredictability, the U.S. Court of Appeals for the Federal Circuit has traditionally upheld the patentability of obvious-to-try pharmaceutical inventions. This approach has been challenged, however, by the U.S. Supreme Court's 2007 decision in KSR International Co. v. Teleflex Inc. This Note reviews the history of the obvious-to-try test and considers the Federal Circuit's post-KSR inconsistency regarding obviousness in the pharmaceutical arts. This Note argues that KSR does not permit …
Forty Years Of Loving: Confronting Issues Of Race, Sexuality, And The Family In The Twenty-First Century, Introduction, Robin A. Lenhardt, Elizabeth B. Cooper, Sheila R. Foster, Sonia K. Katyal
Forty Years Of Loving: Confronting Issues Of Race, Sexuality, And The Family In The Twenty-First Century, Introduction, Robin A. Lenhardt, Elizabeth B. Cooper, Sheila R. Foster, Sonia K. Katyal
Fordham Law Review
No abstract provided.
Longing For Loving, Katherine M. Franke
The Blurring Of The Lines: Children And Bans On Interracial Unions And Same-Sex Marriages, Carlos A. Ball
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
Listening To The Interracial Canary: Contemporary Views On Interracial Relationships Among Blacks And Whites, Erica Chito Childs
Fordham Law Review
No abstract provided.
Structural Dimensions Of Romantic Preferences, Russell K. Robinson
Structural Dimensions Of Romantic Preferences, Russell K. Robinson
Fordham Law Review
No abstract provided.
Time For Rights? Loving, Gay Marriage, And The Limits Of Legal Justice, Chandan Reddy
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
"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
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
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.
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
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
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 …
Reconciling Morse With Brandenburg, Steven Penaro
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.
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 …
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
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 …
Can The Trustee Recover? Imputation Of Fraud To Bankruptcy Trustees In Suits Against Third-Party Service Providers, Samuel C. Wasserman
Can The Trustee Recover? Imputation Of Fraud To Bankruptcy Trustees In Suits Against Third-Party Service Providers, Samuel C. Wasserman
Fordham Law Review
Corporate fraud has become a familiar headline over the last decade and has forced several companies whose managers have committed that fraud to file for bankruptcy. In these cases, a trustee will often be appointed to represent and manage the bankruptcy estate. This trustee is vested with the rights of the debtor corporation upon filing and may try to sue third-party service providers (e.g., accounting firms, law firms, investment banks) for conspiring in, or negligently failing to detect, the fraud. Federal and state courts have disagreed over whether the bankruptcy trustee should be permitted to recover damages from these third …