Law Commons^™

The Public’S Companies, Andrew K. Jennings

Fordham Journal of Corporate & Financial Law

This Essay uses a series of survey studies to consider how public understandings of public and private companies map into urgent debates over the role of the corporation in American society. Does a social-media company, for example, owe it to its users to follow the free-speech principles embodied in the First Amendment? May corporate managers pursue environmental, social, and governance (“ESG”) policies that could reduce short-term or long-term profits? How should companies respond to political pushback against their approaches to free expression or ESG?

The studies’ results are consistent with understandings that both public and private companies have greater public …

Policing "Bad" Mothers, I. Bennett Capers

Faculty Scholarship

Jessamine Chan’s The School for Good Mothers — a speculative novel about a mother who abandons her child for a few hours and is required to attend a school for good mothers to regain custody — may not be a great book, but it is a good yarn, and a page turner, and thought-provoking. Thought-provoking, because to measure her fitness to be a mother, the protagonist is assigned a robot doppelganger of her child — one that is sentient, one that seems almost real, one that might even pass the Turing test, and one that she is required not only …

Ocularcentrism And Deepfakes: Should Seeing Be Believing?, Katrina G. Geddes

Fordham Intellectual Property, Media and Entertainment Law Journal

The pernicious effects of misinformation were starkly exposed on January 6, 2021, when a violent mob of protestors stormed the nation’s capital, fueled by false claims of election fraud. As policymakers wrestle with various proposals to curb misinformation online, this Article highlights one of the root causes of our vulnerability to misinformation, specifically, the epistemological prioritization of sight above all other senses (“ocularcentrism”). The increasing ubiquity of so-called “deepfakes”—hyperrealistic, digitally altered videos of events that never occurred—has further exposed the vulnerabilities of an ocularcentric society, in which technology-mediated sight is synonymous with knowledge. This Article traces the evolution of visual …

Technocapital@Biglaw.Com, Bruce A. Green, Carole Silver

Faculty Scholarship

The transformative potential of technology in legal practice is well recognized. But wholly apart from how law firms actually use technology is the question of what law firms say about how they use and relate to technology—in particular, how law firms communicate whether technology matters and has value in what they do. In the past, firms in the BigLaw category, especially at the top echelon, have grounded their reputations on the credentials and achievements of their lawyers. In this paper, we explore whether elite law firms use technology similarly by describing it as an additional tool of inter-firm competition—a sort …

Responsible A.I. Credit Scoring - A Legal Framework, Katja Langenbucher

Faculty Scholarship

No abstract provided.

Care For A Sample? De Minimis, Fair Use, Blockchain, And An Approach To An Affordable Music Sampling System For Independent Artists, Sean M. Corrado

Fordham Intellectual Property, Media and Entertainment Law Journal

Thanks, in part, to social media and the digital streaming age of music, independent artists have seen a rise in popularity and many musicians have achieved mainstream success without the affiliation of a major record label. Alongside the growth of independent music has come the widespread use of music sampling. Sampling, which was once depicted as a crime perpetrated by hip-hop artists, is now prevalent across charttopping hits from all genres. Artists have used sampling as a tool to integrate cultures, eras, and styles of music while experimenting with the bounds of musical creativity. Artists whose works are sampled have …

Decoding Smart Contracts: Technology, Legitimacy, & Legislative Uniformity, Jared Arcari

Fordham Journal of Corporate & Financial Law

Blockchain technology is increasingly permeating the everyday lives of countless people. Applications of the cutting-edge technology range from secured banking to tracking mortgage titles. A particular blockchain technology, dubbed “smart contracts,” has the potential to revolutionize how individuals and companies securely contract with each other. Smart contracts, however, are not widely employed, mainly because potential users are uncertain of their enforceability as contracts under existing state contract laws. Similar skepticism slowed the acceptance of electronic signatures in the late 1990s, but was resolved ultimately through a model uniform act recognizing electronic signatures’ effectiveness across interstate borders. This Note proposes a …

Fintech Industrial Banks And Beyond: How Banking Innovations Affect The Federal Safety Net, Cinar Oney

Fordham Journal of Corporate & Financial Law

The FinTech industry has been utilizing technological innovations to provide services traditionally offered by the banking and financial industry. Until now, many FinTech firms engaging in these activities had non-bank state licenses. The uncertainties surrounding their current business models and the desire to expand the operations led some of these firms to apply for industrial bank charters. An industrial bank charter is one of the few ways for a commercial firm to control a depository institution and allows FinTech firms to retain their technological investments that are not directly related to banking. However, access of these industrial banks to the …

Content Providers’ Secondary Liability: A Social Network Perspective, Michal Lavi

Fordham Intellectual Property, Media and Entertainment Law Journal

Recent technological developments allow Internet users to disseminate ideas to a large audience. These technological advances empower individuals and promote important social objectives. However, they also create a setting for speech-related torts, harm, and abuse. One legal path to deal with online defamation turns to the liability of online content providers who facilitate the harmful exchanges. The possibility of bringing them to remove defamatory content and collecting damages from them attracted a great deal of attention in scholarly work, court decisions, and regulations. Different countries established different legal regimes. The United States allows an extensive shield—an overall immunity, as it …

Disruptive Technology And Securities Regulation, Chris Brummer

Fordham Law Review

Nowhere has disruptive technology had a more profound impact than in financial services—and yet nowhere do academics and policymakers lack a coherent theory of the phenomenon more, much less a coherent set of regulatory prescriptions. Part of the challenge lies in the varied channels through which innovation upends market practices. Problems also lurk in the popular assumption that securities regulation operates against the backdrop of stable market gatekeepers like exchanges, broker-dealers, and clearing systems—a fact scenario increasingly out of sync in twenty-first-century capital markets.

This Article explains how technological innovation “disrupts” not only capital markets but also the exercise of …

Stay Tuned: Whether Cloud-Based Service Providers Can Have Their Copyrighted Cake And Eat It Too, Amanda Asaro

Fordham Law Review

Copyright owners have the exclusive right to perform their works publicly and the ability to license their work to others who want to share that right. Subsections 106(4) and (5) of the Copyright Act govern this exclusive public performance right, but neither subsection elaborates on what constitutes a performance made “to the public” versus one that remains private. This lack of clarity has made it difficult for courts to apply the Copyright Act consistently, especially in the face of changing technology.

Companies like Aereo, Inc. and AereoKiller, Inc. developed novel ways to transmit content over the internet to be viewed …

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 …

Failing Expectations: Fourth Amendment Doctrine In The Era Of Total Surveillance, Olivier Sylvain

Faculty Scholarship

Today’s reasonable expectation test and the third-party doctrine have little to nothing to offer by way of privacy protection if users today are at least conflicted about whether transactional noncontent data should be shared with third parties, including law enforcement officials. This uncertainty about how to define public expectation as a descriptive matter has compelled courts to defer to legislatures to find out what public expectation ought to be more as a matter of prudence than doctrine. Courts and others presume that legislatures are far better than courts at defining public expectations about emergent technologies.This Essay argues that the reasonable …

Technology And Intellectual Property: Out Of Sync Or Hope For The Future?, Bradford L. Smith

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Crying Over The Cache: Why Technology Has Compromised The Uniform Application Of Child Pornography Laws, Katie Gant

Fordham Law Review

As thousands of individuals surf the internet daily, every image on every web page is saved automatically to their computer’s cache, absent user direction. Sections 2252(a)(2) and 2252(a)(4)(B) of Title 18 of the U.S. Code criminalize knowing possession and knowing receipt of child pornography images. For the defendant who intentionally saves illicit images to his computer, the cache simply verifies already-proven knowing possession or receipt. However, for the defendant who only views child pornography online, the presence of images in the cache may not be enough to prove knowledge beyond a reasonable doubt. How can the prosecution prove a defendant …

Sampling, Looping, And Mashing . . . Oh My!: How Hip Hop Music Is Scratching More Than The Surface Of Copyright Law, Tonya M. Evans

Fordham Intellectual Property, Media and Entertainment Law Journal

This article examines the deleterious impact of copyright law on music creation. It highlights hip hop music as an example of a genre significantly and negatively impacted by 1) the per se infringement rule applied in some instances to cases involving unauthorized sampling of sound recordings; and 2) traditional (and arguably erroneous) assumptions in copyright law and policy of independent creation and Romantic authorship. For decades hip hop producers have relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works. Specifically, cuttin’ and scratchin’, digital sampling, looping and (most recently) …

Struggling With Sunshine: Analyzing The Impact Of Technology On Compliance With Open Government Laws Using Florida As A Case Study, Sandra F. Chance, Christine M. Locke

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Google-Nsa Alliance: Developing Cybersecurity Policy At Internet Speed, Stephanie A. Devos

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Theory Of Generativity, David G. Post

Fordham Law Review

No abstract provided.

The Fourth Quadrant, Jonathan Zittrain

Fordham Law Review

No abstract provided.

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

Fordham Law Review

No abstract provided.

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

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, …

Notes On A Geography Of Knowledge, Michael J. Madison

Fordham Law Review

No abstract provided.

Commercial Free And Open Source Software: Knowledge Production, Hybrid Appropriability, And Patents, Greg R. Vetter

Fordham Law Review

No abstract provided.

Transferring Innovation, Jay P. Kesan

Fordham Law Review

No abstract provided.

User Innovator Community Norms: At The Bounds Between Academic And Industry Research, Katherine J. Strandburg

Fordham Law Review

No abstract provided.

Fair Use: Its Application, Limitations And Future. , Sonia Katyal, Paul Aiken, Laura Quilter, David O. Carson, John, Jr. G. Palfrey, Hugh C. Hansen

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Congress, The Courts, And New Technologies: A Response To Professor Solove , Orin S. Kerr

Fordham Law Review

No abstract provided.

Risk Management For The Age Of Information – The New Financial Order: Risk In The 21st Century, Robert J. Shiller, Princeton University Press, 2003, Michael Pereira

Fordham Journal of Corporate & Financial Law

No abstract provided.