Law Commons^™

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 …

The Eighteenth Annual Albert A. Destefano Lecture On Corporate, Securities, & Financial Law At The Fordham Corporate Law Center: Corwin V. Kkr Financial Holdings Llc— An “After-Action Report”, The Honorable Joseph R. Slights Iii, Matthew Diller

Fordham Journal of Corporate & Financial Law

No abstract provided.

A New Standard For Governance: Reflections On Worker Representation In The United States, Julian Constain

Fordham Journal of Corporate & Financial Law

The contemporary state of corporate law in the United States is one that is skewed toward the archaic principle of shareholder primacy. This narrow conception of corporate purpose has resulted in governance mechanisms that tend to overlook the many stakeholders that are affected by, and, in turn, affect the bottom line of modern corporations. In the wake of the recently proposed Accountable Capitalism Act, this Note investigates the viability of adopting a system of mandated worker board representation—codetermination—in the United States. The Note employs a comparative analysis of the German and Swedish experiences with codetermination, and then evaluates the policy, …

The Power Of Distant Rewards: Driving International Innovation Through United States Patent Incentives, Richard S. Gruner

Fordham Intellectual Property, Media and Entertainment Law Journal

Technological innovation outside the United States is increasing. The United States remains the largest single source of new inventions, but the rest of the world produces most technological advances. Yet, even as innovation capacity outside the United States grows, the production of advances remains underincentivized in many developed and developing countries. Weak incentives apply to the outlier advances that are the province of patent laws. These outlier advances—typically reflecting material departures from prior technical knowledge and potentially establishing fundamentally new lines of technological development and consumer products—are particularly important components of technological development. By shortchanging incentives for outlier advances, society …

The Market For User Data, Olivier Sylvain

Fordham Intellectual Property, Media and Entertainment Law Journal

Policymakers are today far more alert than ever before to the myriad ways in which tech companies collect and distribute consumers’ data with third-party data brokers and advertisers. We can attribute this new awareness to at least two major news stories from the past six or so years. The first came in 2013, when Edward Snowden, the former National Security Agency contractor, leaked highly classified materials that revealed the ways in which United States national security officials, with the indispensable cooperation of U.S. telecommunications companies, systematically monitored telephone conversations and electronic communications of U.S. citizens and foreign nationals. The story …

Bringing Swirly Music To Life: Why Copyright Law Should Adopt Patent Law Standards For Joint Authorship Of Sound Engineers, Andrew Nietes

Fordham Intellectual Property, Media and Entertainment Law Journal

Geoff Emerick, acclaimed sound engineer for The Beatles, passed away in October of 2018. Emerick helped shape The Beatles’ sound and worked to create many of their most recognized songs, yet, under the current joint authorship standards he likely would not be considered an author of these songs. This Note details the work carried out by sound engineers in the music industry and describes how current joint authorship standards affect them. It then proposes a reinterpretation of joint authorship in the copyright statute to ease these standards by borrowing from another area of intellectual property law.

Standing Up For Stand-Up Comedy: Joke Theft And The Relevance Of Copyright Law And Social Norms In The Social Media Age, Hannah Pham

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article reveals that while social norms offer protection to stand-up comedians against joke theft within the stand-up comedy industry, they do little to prevent joke theft outside the traditional comedy community. Joke theft has risen with the increased popularity and use of social media. In particular, joke aggregators such as “The Fat Jew” take and publish on social media jokes by other comedians. In the social media world, the norms system underperforms. Norms do little to protect against joke theft by joke aggregators because they exist outside of the industry and are unaffected by norms governing stand-up comedians.

This …

“Why Do You Want My Password?”: Assessing Ultimate Control Of A Journalist’S Twitter Account Used For Work Purposes, Benjamin Halperin

Fordham Intellectual Property, Media and Entertainment Law Journal

A journalist’s value to an employer can be seen differently in the age of social media. The value to the employer is not necessarily just measured by the number of words or articles produced, or even by how much their work drives increased website traffic or increased subscriptions. In addition to generally maintaining a social media presence, journalists are often encouraged or expected to use their social media accounts. However, such accounts might be in the individual journalist’s name and might pre-date the term of employment with that specific media entity. Therefore, a debate can rise over who might “own” …

Platform Society: Copyright, Free Speech, And Sharing On Social Media Platforms, [email protected]

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Primitive Lawyer Speaks!: Thoughts On The Concepts Of International And Rabbinic Laws, Harlan G. Cohen

Faculty Scholarship

Inspired by Chaim Saiman’s brilliant book, Halakhah: The Rabbinic Idea of Law, this essay draws connections between the lived experiences of international law and Jewish law, focusing in particular on (1) the centrality of practice, (2) the search for and construction of authority in communities of practice (the “invisible college”), (3) the challenges and opportunities of fragmentation and pluralism, and (4) the difficulty translating their methods to more state-like institutions, like courts and legislation. The hope is that this testimony of one of H.L.A. Hart’s primitive lawyers can provide a fuller, more textured picture of how law might operate or …

Introduction To The Symposium On Julian Nyarko, “Giving The Treaty A Purpose: Comparing The Durability Of Treaties And Executive Agreements”, Harlan G. Cohen

Faculty Scholarship

Part of the symposium on Julian Nyarko, “Giving the Treaty a Purpose: Comparing the Durability of Treaties and Executive Agreements”

The Power Side Of The Second Amendment Question: Limited, Enumerated Powers And The Continuing Battle Over The Legitimacy Of The Individual Right To Arms, Nicholas J. Johnson

Faculty Scholarship

Roughly a decade has passed since the Supreme Court’s decision in District of Columbia v. Heller and the battle over the basic legitimacy of the right to keep and bear arms continues. A significant segment of the academy, the Bar, and the judiciary remains skeptical about the constitutional bona fides of the individual right to arms. A primary source of that skepticism is the view pressed most forcefully by professional historians that the Second Amendment had nothing to do with individual self-defense and at best protects an “individual militia right” that has no practical application in modern America. This Article …

Foreword: Rise Of The Machines: Artificial Intelligence, Robotics, And The Reprogramming Of Law, Deborah W. Denno, Ryan Surujnath

Fordham Law Review

This Foreword provides an overview of Rise of the Machines: Artificial Intelligence, Robotics, and the Reprogramming of Law, a symposium hosted by the Fordham Law Review and cosponsored by the Fordham Law School’s Neuroscience and Law Center.

Not Enough: Human Rights In An Unequal World, Harlan G. Cohen

Faculty Scholarship

Many will read Samuel Moyn’s powerful history of the quest for social and material justice as an intended wake-up call. Rather than as a blaring alarm though, Not Enough is better read as an invitation to dream.

Barnette And Masterpiece Cakeshop: Some Unanswered Questions, Abner S. Greene

Faculty Scholarship

This symposium piece addresses three issues stemming from the Court’s Masterpiece Cakeshop case and that case’s relationship to West Virginia v. Barnette. First, it discusses the relationship between claims for exemption from laws of general applicability and as-applied claims. Second, it addresses the issue most discussed in the Cakeshop briefs and oral argument, but not ultimately resolved by the Court: what counts as compelled speech in the setting of provision of services such as custom-made wedding cakes? Third, it intervenes in the fascinating sidebar between Justice Kagan and Justice Gorsuch regarding the state commission’s refusal to sanction bakers who wouldn’t …

Statutory Interpretation As “Interbranch Dialogue”?, James J. Brudney, Ethan J. Leib

Faculty Scholarship

Much in the field of statutory interpretation is predicated on “interpretive dialogue” between courts and legislatures. Yet, the idea of such dialogue is often advanced as little more than a slogan; the dialogue that courts, legislators, and scholars are imagining too often goes unexamined and underspecified. This Article attempts to organize thinking about the ways participants and theorists conceive, and should conceive, of interbranch dialogue within statutory interpretation.

The Article itself proceeds by using a dialogic and dialectical method. It first develops various positions against “interbranch dialogue.” By invoking arguments from textualism, public choice, and positive political theory, it advances …

Physician Participation In Lethal Injection, Deborah W. Denno

Faculty Scholarship

No abstract provided.

Mdl And The Allure Of Sidestepping Litigation, Howard M. Erichson

Faculty Scholarship

No abstract provided.

The Twenty-Fifth Amendment: Its Crafting And Drafting Process, John D. Feerick

Faculty Scholarship

No abstract provided.

Science Fiction: Fictitious Experiments In Patents, Janet Freilich, Lisa L. Ouellette

Faculty Scholarship

No abstract provided.

Judicial Activism In Trial Courts, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

No abstract provided.

Centros And Defensive Regulatory Competition: Some Thoughts And A Glimpse At The Data, Martin Gelter

Faculty Scholarship

This paper looks at the phenomenon of “defensive regulatory competition” in European corporate law following Centros, Überseering and Inspire Art. In order to retain control over the corporate governing private limited entities operating within their territories and to prevent the proliferation of “foreign limited” formations, Member States have modified some of the features of their laws that company founders considers most unattractive, such as minimum capital and time-consuming incorporation procedures. The first part of the paper analyzes the market for the law governing privately held firms, drawing from the debate in the United States. The US and Europe differ in …

Abortion Talk, Clare Huntington

Faculty Scholarship

No abstract provided.

Faithful Execution And Article Ii, Andrew Kent, Ethan J. Leib, Jed Shugerman

Faculty Scholarship

Article II of the U.S. Constitution twice imposes a duty of faithful execution on the President, who must “take Care that the Laws be faithfully executed” and take an oath or affirmation to “faithfully execute the Office of President.” These Faithful Execution Clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or …

It’S About Quality: Private Confinement Facilities In Juvenile Justice, Jeffrey A. Butts, John F. Pfaff

Faculty Scholarship

The youth justice system in the United States has always depended on nongovernmental organizations to provide some of the services, supports, and sanctions for youth after juvenile court adjudication. As the use of state-operated youth confinement declined in recent years, primarily as a result of falling rates of serious juvenile crime, the relative importance of private facilities increased. The number of juveniles held in privately operated secure confinement facilities is now larger than the number confined in state institutions.

We The People: These United Divided States, Catherine Powell

Faculty Scholarship

No abstract provided.

Law & Neighborhood Names, Nestor M. Davidson, Dave Fagundes

Faculty Scholarship

This Article provides a novel investigation of how law both enables and constrains the ability of city residents to claim, name, and often rename their neighborhoods. A rich interdisciplinary dialogue in areas such as geography and sociology has emerged on the significance of place names, but this literature has largely ignored the legal dimensions of the phenomenon, with its implications for urban governance, belonging, and community conflict. This Article’s empirical exploration of the role of law in change and conflict regarding neighborhood identity thus advances the discourse both for legal scholars focused on urban dynamics and across disciplines.

From gentrification …

Prosecutors In The Court Of Public Opinion, Bruce A. Green

Faculty Scholarship

No abstract provided.

Unbundling School, Aaron J. Saiger

Faculty Scholarship

No abstract provided.

Federal Courts' Supervisory Authority In Federal Criminal Cases: The Warren Court Revolution That Might Have Been, Bruce A. Green

Faculty Scholarship

No abstract provided.