Law Commons^™

Actual Innocence In New York: The Curious Case Of People V. Hamilton, Benjamin E. Rosenberg

Res Gestae

It is rare for a case from the New York Appellate Division to be as significant as People v. Hamilton. The case, however, was the first New York appellate court decision to hold that a defendant might vacate his conviction if he could demonstrate that he was “actually innocent” of the crime of which he was charged. Although the precedential force of the decision is limited to the Second Department, trial courts throughout the state are required to follow Hamilton unless or until the appellate court in their own Department rules on the issue. Courts throughout the state are …

Stein Center News - December 2014, Stein Center For Law And Ethics

Stein Center News

No abstract provided.

From Railroads To Sand Dunes: An Examination Of The Offsetting Doctrine In Partial Takings, Louis M. Russo

Fordham Law Review

Called “shadowy at best,” the offsetting doctrine in partial takings has confused “even trained legal minds” and generated inconsistent decision after inconsistent decision. The offsetting doctrine allows certain benefits, termed special, to offset condemnation awards, while general benefits may not be offset. Courts blindly adhere to the doctrine despite its underpinnings rooted in eighteenth-century public policy, which was based on concerns of overly speculative valuation and arguably erroneous fairness, as well as incorrect interpretations of Takings Clause jurisprudence. Such adherence dramatically increases the cost of financing a takings project.

In the face of blind adherence to the doctrine, municipalities are …

Centennial Dedication: A Brief History Of The Fordham Law Review, Editors

Fordham Law Review

No abstract provided.

The Special Skills Of Advocacy, Warren E. Burger

Fordham Law Review

To commemorate our founding in 1914, the Board of Editors has selected six influential pieces published by the Law Review over the past 100 years and will republish one piece in each issue.

The third piece selected by the Board is The Special Skills of Advocacy, a lecture delivered by the late Chief Justice Warren E. Burger that is among the most cited works in the Law Review’s history. Speaking at Fordham Law School on November 26, 1973, Chief Justice Burger advocated for law schools to better prepare students for skillful courtroom advocacy, declaring that “[w]e must acknowledge, …

Symposium On The Challenges Of Electronic Evidence, Panel Discussion

Fordham Law Review

The Phillip D. Reed Lecture Series: Advisory Committee on Evidence Rules

The Case For Ehearsay, Jeffrey Bellin

Fordham Law Review

No abstract provided.

Memorandum: Hearsay Exception For Electronic Communications Of Recent Perception, Daniel J. Capra

Fordham Law Review

No abstract provided.

Importing Energy, Exporting Regulation, James W. Coleman

Fordham Law Review

This Article identifies and addresses a growing contradiction at the heart of United States energy policy. States are the traditional energy regulators and energy policy innovators—a role that has only grown more important without a settled federal climate policy. Federal regulators and market pressures, however, increasingly demand integrated national and international energy markets. Deregulation, the rise of renewable energy, the shale revolution, and new sources of motor fuel precursors like crude and ethanol have all increased interstate energy trade.

This Article shows how integrated national energy markets are driving states to regulate imported fuel and electricity based on how it …

Trade Secret Fair Use, Deepa Varadarajan

Fordham Law Review

Trade secret law arose to help companies protect confidential information (e.g., the Coca-Cola formula) from competitors seeking to copy their innovative efforts. But companies increasingly use trade secret law to block a wide swath of information from the scrutinizing eyes of consumers, public watchdog groups, and potential improvers. Companies can do this, in part, because trade secret law lacks clear limiting doctrines that consider the social benefits of unauthorized use. For example, trade secret law makes no allowance for the departing employee that uses proprietary information to create a substantially improved product or disclose public health risks.

This Article argues …

Workplace Discrimination As A Public Health Issue: The Necessity Of Title Vii Protections For Volunteers, Elizabeth R. Langton

Fordham Law Review

What constitutes an employee is a recurring issue in U.S. employment law, especially with respect to volunteers. Under Title VII, an employee is defined as “an individual employed by an employer.” The U.S. Supreme Court has found that this definition is circular and explains nothing. Given the vague statutory definition of “employee,” circuit courts are split over the correct test to determine employee status for the purposes of Title VII.

Workplace discrimination is especially toxic because the majority of the adult population spends its waking hours at work. Thus far, courts have been focused on the individual nature of workplace …

Architects Of Justice: The Prosecutor’S Role And Resolving Whether Inadmissible Evidence Is Material Under The Brady Rule, Blaise Niosi

Fordham Law Review

In Brady v. Maryland, the U.S. Supreme Court held that the prosecution has a constitutional duty to disclose evidence favorable to the defendant’s guilt or punishment upon request. The Court’s subsequent expansion of its holding in Brady has formed the “Brady rule,” which requires the prosecution to learn of and to disclose to the defendant all material exculpatory and impeachment information. The Court defined “material” as information that would cause a reasonable probability of a different trial outcome had it been disclosed.

Currently, a circuit court split exists regarding whether evidence is material for purposes of the Brady …

Three Steps Forward: Shared Regulatory Space, Deference, And The Role Of The Court, Amanda Shami

Fordham Law Review

When a party files suit challenging the legitimacy of an agency’s interpretation of its governing statute, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. instructs courts to defer to the agency’s interpretation where (1) the court has found that Congress had not foreclosed the agency’s interpretation, and (2) the agency’s interpretation was a reasonable or permissible exercise of its authority. However, sometimes Congress enacts statutes delegating authority over a given regulatory space to more than one agency. When two agencies have shared authority under the same regulatory scheme, those agencies may disagree regarding the interpretation of certain provisions that …

Should Neither Wind Nor Rain Nor Hurricane Keep Victims From Recovery? Examining The Tort And Insurance Systems’ Ability To Compensate Hurricane Victims, Kathleen A. Zink

Fordham Law Review

Large-scale natural disasters, such as hurricanes, wreak tremendous havoc, causing billions of dollars in damages. Those who suffer serious damage may turn to their insurance providers or the tort system for compensation. But, both the tort and insurance systems present serious limitations to a hurricane victim’s recovery. This Note analyzes the goals and criticisms of these two systems to determine which compensates hurricane victims best. In light of its analysis, this Note ultimately concludes that neither system satisfactorily compensates victims. Yet, tort could play some role in hurricane-related damage. Tort law could effectively deter negligent behavior by imposing liability on …

The Court As Gatekeeper: Preventing Unreliable Pretrial Ediscovery From Jeopardizing A Reliable Fact-Finding Process, Daniel K. Gelb

Fordham Law Review

No abstract provided.

The Adverse Inference Instruction After Revised Rule 37(E): An Evidence-Based Proposal, Shira A. Sheindlin, Natalie M. Orr

Fordham Law Review

No abstract provided.

Two Tests Unite To Resolve The Tension Between The First Amendment And The Right Of Publicity, Dora Georgescu

Fordham Law Review

The right of publicity is an established legal doctrine that grants individuals the exclusive right to control the commercial use of their image. Though it has many important and laudable uses, one unfortunate consequence of the right of publicity is that it restricts artists’ abilities to portray real persons in their works. In so doing, the right of publicity directly conflicts with the First Amendment protections of an individual’s freedom of expression.

While the U.S. Supreme Court addressed this tension in Zacchini v. Scripps-Howard Broadcasting Co., the Court did not create a clear standard for balancing the interests of …

Centennial Dedication: A Brief History Of The Fordham Law Review, Editors

Fordham Law Review

No abstract provided.

The President’S Plan Respecting The Supreme Court, Ignatius M. Wilkinson

Fordham Law Review

To commemorate our founding in 1914, the Board of Editors has selected six influential pieces published by the Law Review over the past 100 years and will republish one piece in each issue.

The second piece selected by the Board is the testimony of Ignatius M. Wilkinson, the fourth and longest-serving dean of Fordham Law School (1923–1954), to the Judicial Committee of the U.S. Senate. Speaking to the Committee on the Judiciary, Wilkinson criticized the Franklin D. Roosevelt Judiciary Reorganization Bill of 1937 because it would “undermine the independence of the courts” and “shake[] the foundations of our constitutional structure.” …

Foreword: Chevron At 30: Looking Back And Looking Forward, Peter M. Shane, Christopher J. Walker

Fordham Law Review

No abstract provided.

Chevron And Skidmore In The Workplace: Unhappy Together, James J. Brudney

Fordham Law Review

No abstract provided.

The Three Phases Of Mead, Kristin E. Hickman

Fordham Law Review

No abstract provided.

Improving Agencies’ Preemption Expertise With Chevmore Codification , Kent Barnett

Fordham Law Review

No abstract provided.

Federalism At Step Zero, Miriam Seifter

Fordham Law Review

No abstract provided.

Chevron’S Generality Principles, Emily Hammond

Fordham Law Review

No abstract provided.

Chevron Deference, The Rule Of Law, And Presidential Influence In The Administrative State, Peter M. Shane

Fordham Law Review

No abstract provided.

Chevron Inside The Regulatory State: An Empirical Assessment, Christopher J. Walker

Fordham Law Review

No abstract provided.

Chevron At The Roberts Court: Still Failing After All These Years, Jack M. Beermann

Fordham Law Review

No abstract provided.

Step Zero After City Of Arlington, Thomas W. Merrill

Fordham Law Review

No abstract provided.

Inherit The Cloud: The Role Of Private Contracts In Distributing Or Deleting Digital Assets At Death, Natalie M. Banta

Fordham Law Review

We live in a world permeated with technology. Through our online accounts we write emails, we store pictures, videos, and documents, we pay bills and conduct financial transactions, we buy digital books and music, and we manage loyalty programs. Digital assets have quickly replaced physical letters, pictures, books, compact discs, and documents stored in filing cabinets and shoeboxes. The emergence of digital assets raises pressing questions regarding the treatment of digital assets at an account holder’s death. Unlike digital assets’ physical counterparts, an account holder does not control the ultimate fate of digital assets. Instead, digital assets are controlled by …