Law Commons^™

Reflection, Deliberation, And Dialogue: Stipanowich's Contribution To Dispute Resolution, Jacqueline Nolan-Haley .

Faculty Scholarship

No abstract provided.

Family Law For The One-Hundred-Year Life, Naomi R. Cahn, Clare Huntington, Elizabeth Scott

Faculty Scholarship

Family law is for young people. To facilitate child rearing and help spouses pool resources over a lifetime, the law obligates parents to minor children and spouses to each other. Family law’s presumption of young, financially interdependent, conjugal couples raising children privileges one family form—marriage—and centers the dependency needs of children.

This age myopia fundamentally fails older adults. Families are essential to flourishing in the last third of life, but the legal system offers neither the family forms many older adults want nor the support of family care older adults need. Racial and economic inequities, accumulated across lifetimes, exacerbate these …

Punishment Without The State, I. Bennett Capers

Faculty Scholarship

People are speaking up on social media and in other virtual spaces, sometimes to spur the criminal process, sometimes in response to the criminal system’s perceived failures, and even sometimes completely indifferent to the criminal system. People are expressing moral condemnation. They are shaming, shunning, banishing, and canceling. What are the implications of punishment through virtual spaces, in lieu of the usual—and now seemingly antiquated—space of physical courtrooms? More broadly, when all the world can become a virtual courtroom, a “place” for judgment, what are the implications for how we think about crime itself? And perhaps most importantly, if social …

Taxation And The Constitution, Reconsidered, John R. Brooks, David Gamage

Faculty Scholarship

Our current income tax is unable to address growing concentrations of financial wealth and resulting economic inequality. But reforms to address these problems—such as a wealth tax or an income tax on unrealized capital gains—are stymied by fears of unconstitutionality. The basic claim is that wealth taxes and similar reforms are “direct taxes” under the Apportionment Clauses of the Constitution, and since apportionment is not feasible, these taxes are impossible. But this claim is wrong.

This Article shows that there is in fact a long history of federal taxes similar to wealth taxes—both apportioned and uniform—and a well-developed constitutional tax …

Pauli Murray: Human Rights Visionary And Trailblazer, Darin E. W. Johnson, Catherine Powell

Faculty Scholarship

No abstract provided.

`Representing And Being Represented In Turn’ – A Symposium On Hélène Landemore’S Open Democracy, Ethan J. Leib

Faculty Scholarship

No abstract provided.

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 …

Policy Implications Of User-Generated Data Network Effects, Uri Y. Hacohen

Fordham Intellectual Property, Media and Entertainment Law Journal

User-generated data (UGD) network effects are an exciting and novel economic force. They upset conventional market competition dynamics, and they lead to the formation of dominant data platforms with market power that spans different and seemingly unrelated markets. This article explains that UGD network effects are a blessing and a curse. They provide dominant data platforms with the opportunity to generate welfare-enhancing efficiencies as well as welfare-reducing anticompetitive harms. After exploring the economic opportunities and social threats, this article explores the implications of UGD network effects on competition policy. Drawing on traditional network effects theory, this article proposes and critically …

The Case Of The Missing Device Patents, Or: Why Device Patents Matter, Erika Lietzan, Kristina M.L. Acri, Evan Weidner

Fordham Intellectual Property, Media and Entertainment Law Journal

A company that earns premarket approval of its medical device is entitled to an extension of one patent claiming the device, to make up for some of the time it spent doing premarket research. Yet, surprisingly, a mere thirteen percent of those eligible for this extension (also known as patent term “restoration”) ask for one. In contrast, most drug companies entitled to this same patent extension ask for one. In this Article, we attribute the imbalance largely to differences between the two regulatory frameworks. In brief, because the FDA classifies and regulates devices based on what they do and how …

Ukraine On My Mind: Cultural Heritage And The Current Armed Conflict, Irina Tarsis

Fordham Intellectual Property, Media and Entertainment Law Journal

The following keynote address was delivered on October 7, 2022, during the Fordham Law Intellectual Property, Media & Entertainment Law Journal Symposium, “Duplicate, Decolonize, Destroy: Current Topics in Art & Cultural Heritage.” It was prefaced by a YouTube video of “Ukrainian Folk Song ARMY REMIX | Andriy Khlyvnyuk x The Kiffness.” The upbeat remix of a folk song was performed as a collaboration between South African musical talent David Scott, known as the Kiffniss, and Andriy Khlyvnyuk, the lead singer of the Ukrainian band, Boombox (Бумбокс), who took leave from his concert tours to join the military forces of Ukraine …

Trademark Counterfeiting Enforcement Beyond Borders: The Complexities Of Enforcing Trademark Rights Extraterritorially In A Global Marketplace With Territorial-Based Enforcement, Kari Kammel, Matthew Azim-Kramer, Daniel Duquet, Lillie Patterson

Fordham Intellectual Property, Media and Entertainment Law Journal

We focus on the enforcement of trademark rights, particularly those used against counterfeiters, or those who use unauthorized trademarks of another. We examine the concept of extraterritorial enforcement of trademark rights—the extending of enforcement across national borders—and reviewing how different countries and jurisdictions view this concept or even allow it.

The By-Design Approach Revisited: Lessons From Covid-19 Contact Tracing Apps, Mickey Zar, Niva Elkin-Koren

Fordham Intellectual Property, Media and Entertainment Law Journal

This paper challenges the by-design regulatory approach by exploring the case study of Contact Tracing Apps. It aims to account for the gap between the hopes that were pinned on digital technologies and the rock of reality into which they have crashed. This gap, we argue, results from overestimating the regulatory power of technology and underestimating the co-influence of various regulatory pillars. To address this gap, it is necessary to adopt an ecosystem perspective on sociotechnical systems, where technological design is but one form of regulation. This perspective allows technological design to acquire a social meaning through interaction with other …

The Fashion Workers Act: Closing The Regulatory Loophole In The New York Fashion Industry, Kayleigh Ristuben

Fordham Intellectual Property, Media and Entertainment Law Journal

The fashion industry in New York has largely been unregulated due to a loophole in current law. This has allowed fashion models to face difficulties that would otherwise be addressed by laws regulating other occupations within the entertainment industry. The New York state senate has introduced the Fashion Workers Act which is aimed at addressing these issues and closing the regulatory loophole. This Note analyzes the existing regulatory framework in both New York and California to compare them with the proposed bill. It then uses legislative history from past regulatory attempts to anticipate and address potential industry pushback while offering …

User-Generated Data Network Effects And Market Competition Dynamics, Uri Y. Hacohen

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article defines User-Generated Data (“UGD”) network effects, distinguishes them from the more familiar concept of traditional network effects, and explores their implications for market competition dynamics. It explains that UGD network effects produce various efficiencies for digital service providers (“data platforms”) by empowering their services’ optimization, personalization, and continuous diversification. In light of these efficiencies, competition dynamics in UGD-driven markets tend to be unstable and lead to the formation of dominant multi-industry conglomerates. These processes will enhance social welfare because they are natural and efficient. Conversely, countervailing UGD network effects also empower data platforms to detect and neutralize competitive …

Theorizing Corroboration, Maggie Wittlin

Faculty Scholarship

A child makes an out-of-court statement accusing an adult of abuse. That statement is important proof, but it also presents serious reliability concerns. When deciding whether it is sufficiently reliable to be admitted, should a court consider whether the child’s statement is corroborated—whether, for example, there is medical evidence of abuse? More broadly, should courts consider corroboration when deciding whether evidence is reliable enough to be admitted at trial? Judges, rule-makers, and scholars have taken significantly divergent approaches to this question and come to different conclusions.

This Article argues that there is a key problem with using corroboration to evaluate …

Civil Justice At The Crossroads: Should Courts Authorize Nonlawyers To Practice Law?, Bruce A. Green

Faculty Scholarship

No abstract provided.

Medical Harm Without Negligence, Valerie Gutmann Koch

Fordham Law Review

In December 2019, seven women from one family underwent highly invasive surgeries based on genetic test results that indicated that each were at significant risk of developing cancer by age seventy. Subsequently, after procedures that (among other things) permanently scarred and disfigured their bodies and ended their chances of having biological children, they learned that their particular mutation was not, in fact, pathogenic.

This Article focuses on a previously under-recognized problem: what happens when a patient’s previously classified pathogenic variant is downgraded to uncertain (or even benign) status? Intuitively, it might seem that the genetic testing company, the surgeons, or …

Second-Best Free Exercise, Christopher C. Lund

Fordham Law Review

The future of the Free Exercise Clause is up in the air. Thirty years ago, in Employment Division v. Smith, the Supreme Court held the Free Exercise Clause only protected against religious discrimination and did not require exemptions from neutral and generally applicable laws.

Yet despite having an official rule against religious exemptions, the Roberts Court has somehow managed to give religious exemptions in case after case. This illustrates Smith’s waning power—the case has become more of an obstacle for courts to work around than a precedent for courts to obey. But these victories have also come to …

Within A City's Limits: A Local Government's Power To Hold Police Officers Accountable, Josselin Aldana

Fordham Law Review

When a person’s constitutional rights are violated by a public official, such as a police officer, who acts under color of law, the official can invoke a qualified immunity defense that immunizes the official unless it is clearly established that such action is unlawful. Over the years, the qualified immunity doctrine has developed into a shield that makes it difficult for aggrieved individuals to recover when they are harmed. As a result of nationwide focus on police brutality, four states—Colorado, Connecticut, Massachusetts, and New Mexico—have modified the use of qualified immunity as a defense in state courts for individuals harmed …

Let's Get Real: Weak Artificial Intelligence Has Free Speech Rights, James B. Garvey

Fordham Law Review

The right to free speech is a strongly protected constitutional right under the First Amendment to the U.S. Constitution. In 2010, the U.S. Supreme Court significantly expanded free speech protections for corporations in Citizens United v. FEC. This case prompted the question: could other nonhuman actors also be eligible for free speech protection under the First Amendment? This inquiry is no longer a mere intellectual exercise: sophisticated artificial intelligence (AI) may soon be capable of producing speech. As such, there are novel and complex questions surrounding the application of the First Amendment to AI. Some commentators argue that AI …

Arbitration And Finra's Customer Code: A Tailored Approach To When A Forum Selection Clause May Supersede Finra Rule 12200, Peter Giovine

Fordham Law Review

This Note examines a circuit split concerning whether forum selection clauses supersede Financial Industry Regulatory Authority (FINRA) Rule 12200, which requires FINRA members to arbitrate customer disputes upon the customer’s request. The U.S. Courts of Appeals for the Second and Ninth Circuits have upheld a waiver of the right to arbitrate even when arbitration is not explicitly mentioned in a forum selection clause. The U.S. Courts of Appeals for the Third and Fourth Circuits, on the other hand, have held that a forum selection clause that does not explicitly mention arbitration does not supersede FINRA Rule 12200. This Note explores …

Closing The Door On Permanent Incorrigibility: Juvenile Life Without Parole After Jones V. Mississippi, Juliet Liu

Fordham Law Review

In April 2021, the U.S. Supreme Court decided Jones v. Mississippi, its latest opinion in a line of cases addressing when, if ever, a child should be sentenced to life in prison with no hope of parole or release. Although Jones purported to resolve division among lower courts over the findings that a sentencing court must make about a child defendant’s character and prospects for reform and rehabilitation, the decision will likely lead to further disagreement among courts.

This Note argues that although the Supreme Court’s jurisprudence has protected children from harsh sentences, it has also opened a Pandora’s …

The Prison Mailbox Rule: Can Represented Incarcerated Litigants Benefit?, Nico Corti

Fordham Law Review

In 1988, the U.S. Supreme Court created the “Prison Mailbox Rule,” which assesses the timeliness of incarcerated litigants’ filings based on the day they hand them to prison authorities. The rule reduces the structural barriers to filing while imprisoned. Although Houston v. Lack highlighted the unique challenges that pro se incarcerated litigants face, the Prison Mailbox Rule’s subsequent federal codifications did not limit its benefits to pro se litigants, despite purportedly “reflecting” the Houston decision. Federal circuit courts of appeal today are split on whether represented people in prison can benefit from the Prison Mailbox Rule, leaving both litigants and …

One Person, How Many Votes? Measuring Prison Malapportionment, Ian Bollag-Miller

Fordham Law Voting Rights and Democracy Forum

“One-person, one-vote” is a fundamental principle of democracy. In practice, however, vote distribution among population groups is often less than equal. Even in established democracies, prison malapportionment—the distribution of legislative seats by counting incarcerated people in their prisons’ districts rather than their home districts—is one example of a practice that distorts voter representation. Prison malapportionment allows less populous districts that house prisons to maximize their voting power at the expense of more densely populated districts from which many incarcerated people previously lived. While there has been significant scholarship on the causes and effects of prison malapportionment, there is no standard …

Depoliticizing The Supreme Court Through Term Limits: A Worthwhile Reform Effort, Kara King

Fordham Law Voting Rights and Democracy Forum

The United States Supreme Court is in a legitimacy crisis. Americans are losing faith in the Supreme Court as an independent branch of government. As a result, policymakers and academics have put forth several proposals to reform the Court. The concept of an eighteen-year term limit maintains some bipartisan support and stands out as the most likely reform. This Article argues that term limits could help depoliticize the nomination process, bring greater stability to the Court, and restore confidence in the Court.

Taking History Seriously: Marjorie Taylor Greene, Reflections On Progressive Lawyering, And Section 3 Of The Fourteenth Amendment, Andrew G. Celli Jr.

Fordham Law Voting Rights and Democracy Forum

History has lessons to teach, and lawyers can learn from and use history in ways other than by cherry-picking from it. This Article contends that, while American history may be vexed, progressive lawyers can fully embrace history and hold it up into the light for consideration, all in service of progressive ends.

This Article describes a recent litigation that illustrates the point. In March 2022, the Author, together with other lawyers and a non-partisan pro-democracy group, represented voters from Georgia’s fourteenth congressional district in their effort to disqualify U.S. Representative Marjorie Taylor Greene from the Georgia ballot—based upon Section 3 …

Updating Anderson-Burdick To Evaluate Partisan Election Manipulation, Andrew Vazquez

Fordham Law Voting Rights and Democracy Forum

This Article analyzes jurisprudence concerning the judicial review of election laws. It suggests that the United States Supreme Court’s approach should acknowledge the realities of political partisanship when reviewing challenged laws and regulations. Specifically, this Article proposes a judicial test to evaluate election laws for partisan biases using factors modeled on those employed by the Court in Gingles v. Thornburg. Simply put, the manipulation of election laws to pursue partisan advantages poses the greatest threat to our democracy. Accordingly, this Article concludes that protecting our democracy from election practices that benefit one party over another in the guise of …

An Anniversary Best Uncelebrated: The 75th Year Of The Presidential Succession Act Of 1947, Roy E. Brownell Ii, John Rogan

Fordham Law Voting Rights and Democracy Forum

On July 18, 1947, President Harry Truman signed the Presidential Succession Act into law. The 1947 Act placed the Speaker of the House and the Senate president pro tempore in the presidential line of succession. Seventy-five years later, the statute needs major revision. Although the 1947 Act has not been used, the nation’s good fortune may change at any moment, especially given ever-present threats to the health and safety of the president and vice president.

This Article argues that Congress should revise the 1947 law in several ways, most notably by making Cabinet secretaries, in most circumstances, the immediate successors …

Increasing Voter Investment In American Democracy: Proposals For Reform, Adam Drake

Fordham Law Voting Rights and Democracy Forum

Millions of Americans choose to stay home every election cycle. Polling suggests that these nonvoters are either apathetic with respect to the democratic process or feel alienated from the United States government. Reforms to the democratic system should focus on alleviating these sentiments, ultimately encouraging more voters to show up to the polls. As turnout increases, so too does the legitimacy and stability of the U.S. government.

With that goal in mind, this Article advocates for a five- prong approach to reforming the electoral system. The first proposed step is to eliminate unnecessary barriers to voting by establishing federal automatic …

Making It Harder To Challenge Election Districting, Erwin Chemerinsky

Fordham Law Voting Rights and Democracy Forum

No abstract provided.