Law Commons^™

No More Nixon: A Proposed Change To Rule 17(C) Of The Federal Rules Of Criminal Procedure, Norah Senftleber

Fordham Law Review

Today, the standard for subpoenas under Rule 17(c) of the Federal Rules of Criminal Procedure, espoused in United States v. Nixon, provides for limited, almost useless, pretrial subpoena power for criminal defendants. When subpoenaing a third party, a defendant must show (1) relevancy, (2) admissibility, and (3) specificity for documents that they have not yet gained access to. This narrow scope of Rule 17(c) has long engendered criticism from judges, scholars, and practitioners alike. Yet, Rule 17(c) has not been changed, either by judicial opinion or amendment.

Following years of criticism, the Advisory Committee on Criminal Rules (“Advisory Committee”) …

Incremental Improvement Of The Patentability Standard Of Nonobviousness, Kayla Siletti Brown

Fordham Law Review

Patents incentivize innovation, but the face of innovation has changed over the past several decades. Patent law is adapting to the radical growth of the pharmaceutical and biotechnological industries, which produce drugs and biologics respectively. Research and development in these fields is largely incremental—new products are often derived from existing products. However, patents do not protect “obvious” improvements, those that anyone skilled in the relevant scientific field could have discovered through predictable, routine work. The line between incremental R&D and routine, obvious improvements is difficult to draw. The U.S. Court of Appeals for the Federal Circuit and the Patent Trial …

Avoiding Rejection: Studying When And Why State Courts Decline Certified Questions, Rachel Koehn Breland

Fordham Law Review

In December 2018, the U.S. Court of Appeals for the Sixth Circuit declared Tennessee’s punitive damages cap statute unconstitutional under the state’s constitution. Nearly five years later, however, Tennessee state courts are still reducing punitive damage awards under the statute—and they must, because the Tennessee Supreme Court has never addressed the statute’s constitutionality. See, the Sixth Circuit’s decision was merely an Erie guess as to how Tennessee courts would resolve the unsettled state law issue, and the Tennessee Supreme Court has since indicated that it would reach the opposite conclusion. But the Tennessee high court had already had an opportunity …

Aligning The Stars: Institutional Convergence As Social Change, Raymond H. Brescia

Fordham Law Review

In a democracy, in which the legal and constitutional systems should reflect popular will and individual and collective self-determination are the engines through which those systems are realized, what are the means by which individuals, organizations, and social movements might bring about meaningful and sustainable social change that makes that society more just, more inclusive, and more equitable? A common understanding of how social change happens, and who can bring about that change, is represented in an oft-quoted phrase, attributed to Margaret Mead: “Never doubt that a small group of committed people can change the world: Indeed, it is the …

Asymmetry Of Representation In Poor People’S Courts, Tonya L. Brito, Daniela Campos Ugaz

Fordham Law Review

This Essay examines the asymmetry of representation in poor people’s courts, specifically in child support enforcement cases involving the State. The asymmetry of representation is a common occurrence in various civil law fields, but it is notably prominent in family law, which has the highest number of unrepresented parties. As one of the authors has previously explained, we use “poor people’s courts” to refer to state civil courts that hear family, housing, administrative, and consumer cases. These courts present severe challenges to the civil justice system because they are characterized by a substantial volume of cases, socioeconomically disadvantaged litigants, and …

Should State Trial Courts Become Laboratories Of Upl Reform?, Bruce A. Green

Fordham Law Review

There is a growing “access to justice” movement that is principally driven by lawyers and judges. It has multiple objectives. One such objective is to make state court proceedings fairer, more reliable, and more accessible. This is important because state courts have a significant impact on peoples’ lives. They are where family members lose custody of children, where property owners obtain permission to evict tenants, where creditors are empowered to repossess people’s cars or garnish their wages, and (in some jurisdictions) where judges send people to jail to compel them to pay judgments or fees that they cannot afford to …

(How) Can Litigation Advance Multiracial Democracy?, Olatunde C.A. Johnson

Fordham Law Review

Can rights litigation meaningfully advance social change in this moment? Many progressive or social justice legal scholars, lawyers, and advocates would argue “no.” Constitutional decisions issued by the U.S. Supreme Court thwart the aims of progressive social movements. Further, contemporary social movements often decenter courts as a primary domain of social change. In addition, a new wave of legal commentary urges progressives to de-emphasize courts and constitutionalism, not simply tactically but as a matter of democratic survival.

This Essay considers the continuing role of rights litigation, using the litigation over race-conscious affirmative action as an illustration. Courts are a key …

Charging Abortion, Milan Markovic

Fordham Law Review

As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in antiabortion states have pledged to not enforce antiabortion laws, whereas others are targeting even out-of-state providers. This post-Dobbs reality, wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney, has received minimal scrutiny from legal scholars.

Prosecutors have broad charging discretion, …

“Major” Challenges For Lower Courts: Inconsistent Applications Of The Major Questions Doctrine In Lower Courts After West Virginia V. Environmental Protection Agency, Sarah A. Schmoyer

Fordham Law Review

Under the major questions doctrine, an agency requires clear congressional authorization to regulate on an issue of major national significance. Although a version of the doctrine has existed for several years, its rise in importance is recent. The U.S. Supreme Court invoked the doctrine by name for the first time in 2022 in West Virginia v. Environmental Protection Agency, warning that in certain “extraordinary cases,” the “history and the breadth” and the “economic and political significance” of the agency action may “provide a reason to hesitate” before accepting the agency’s authority. West Virginia has since inspired a wave of …

Extraordinary Punishment: Conditions Of Confinement And Compassionate Release, Meredith B. Esser

Fordham Law Review

People experience severe forms of harm while incarcerated, including medical neglect, prolonged solitary confinement, sexual and physical violence, and a host of other ills. But civil rights litigation under the Eighth Amendment—the most common vehicle through which people seek to redress these harms—presents significant practical and doctrinal barriers to incarcerated plaintiffs. Most notably, the Eighth Amendment’s “deliberate indifference” standard asks not whether a person has been harmed, but instead requires plaintiffs to demonstrate a criminally reckless mental state on the part of prison officials. Further, Eighth Amendment remedies are limited to damages or injunctions, which may not adequately redress a …

Foreword: The Legal Profession And Social Change, Atinuke O. Adediran, Bruce A. Green

Fordham Law Review

Fordham University School of Law’s Stein Center for Law and Ethics has collaborated with the Fordham Law Review every year since the late 1990s to encourage, collect, and publish scholarly writings on different aspects of the legal profession, including its norms, regulation, organization, history, and development—that is, on themes relating to what law schools loosely call “legal ethics.” The legal profession is an important subject of study for legal scholars, among others. Although one U.S. Supreme Court Justice, himself a former law professor, airily derided legal ethics as the “least analytically rigorous . . . of law-school subjects,” we dispute …

Community Responsive Public Defense, Alexis Hoag-Fordjour

Fordham Law Review

This colloquium asks us to consider how social change is influencing the legal profession and the legal profession’s response. This Essay applies these questions to organizing around criminal injustice and the response from public defenders. This Essay surfaces the work of four innovative indigent defense organizations that are engaged with and duty-bound to the communities they represent. I call this “community responsive public defense,” which is a distinct model of indigent defense whereby public defenders look to their clients and their clients’ communities to help shape advocacy, strategy, and representation.

Methodologically, this Essay relies primarily on qualitative interviews with leaders …

Come, Let Us Reason Together, Hon. Kent A. Jordan, James J. Brudney

Jurist in Residence Lectures

In his lecture, Judge Kent A. Jordan emphasizes the critical importance of civil discourse in addressing complex legal and social issues. He explores the dangers of abandoning reasoned debate for heated rhetoric and the negative impacts this can have on the legal profession and society at large.

Holograms Are Taking Over The World! An Analysis On Legal Implications Holograms Pose In Right Of Publicity And Copyright Law, Marie A. Kessel

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Use Of Clearview Ai To Support Warrants Violates The Fourth Amendment, Kevin Johnson

Fordham Intellectual Property, Media and Entertainment Law Journal

Social media platforms encouraged millions of Americans to post hundreds of photos of themselves on the Internet. Clearview AI, a tool that harnesses “publicly available” online images for facial recognition, violated those platforms’ terms of service to collect those photos and in doing so de-anonymized millions of Americans. This Note examines the Fourth Amendment implications of law enforcement’s use of Clearview AI and its compatibility with constitutional protections. This Note argues that the use of Clearview AI by police to support warrant applications runs afoul of established legal standards by analyzing the evolution of Fourth Amendment ju …

Offshore Wind: A Comparative Of The United States And Norway

Fordham Environmental Law Review

No abstract provided.

Assessing The Human Right To Water And Sanitation In International Law And The Conflict In The Nile Basin

Fordham Environmental Law Review

Ethiopia’s construction and operation of the Grand Ethiopian

Renaissance Dam (GERD) on the Blue Nile has intensified the long-

standing water conflict involving Ethiopia, Egypt, and Sudan, and

highlights the urgent need for a new legal framework for the Nile

Basin’s governance. This article traces the history of the international

human right to water and sanitation and previous attempts to govern

water use in the Nile Basin. We argue that outdated colonial-era

treaties, which Egypt and Sudan insist on using as a baseline for

negotiations, are a significant obstacle to resolving the Nile conflict

and managing the region’s water resources …

Debts And Desertion: Bankruptcy Law And The Orphan Well Crisis

Fordham Environmental Law Review

The issue of orphan wells—unplugged and unproductive oil and

gas wells with no responsible operator—poses a significant

environmental and public health threat in the United States. The scale

of this crisis is alarming: there are over 120,000 documented orphan

wells and potentially millions more undocumented. These wells are

often significant sources of methane emissions and other toxins that

exacerbate climate change and endanger the health of surrounding

communities. This paper examines the orphan well crisis, exploring

how wells become orphaned and the environmental and health

impacts associated with them. Furthermore, it delves into how the

situation is likely to worsen …

Juror Privacy Via Anonymity, Jayne S. Ressler

Fordham Law Review

Anonymous juries delivered verdicts in the hush-money criminal trial of Donald J. Trump, as well as both of E. Jean Carroll’s defamation cases against him. After the defamation cases concluded, the judge cautioned the jurors against ever publicly revealing their identities. This was sound advice, as recent doxing, threats of violence, and online posts filled with hatred and vitriol illustrate the dangers facing American jurors. The scholarly literature analyzing anonymous juries focuses primarily on the propriety of their use in criminal cases to protect jurors from physical harm. Missing from the conversation, however, is an examination of anonymity’s role in …

Liberty On Hold: The Constitutional Test And Source For Overdetention Claims, Sarya Baladi

Fordham Law Review

The persistence of overdetention—meaning continued detention after officers knew or should have known that the arrested person was entitled to release—poses major concerns about both the fundamental right against arbitrary detention and other unenumerated constitutional rights. The U.S. Supreme Court’s 1979 decision in Baker v. McCollan established a vague constitutional protection against overdetention, but it left lower courts to answer many open questions about its parameters.

Although courts agree that the Constitution prohibits law enforcement from arbitrarily detaining indefinitely an arrested person who protests their legitimate release, the application of this protection has been inconsistent across federal courts of appeals. …

Turning A Blind Eye To “Prisoner-On-Prisoner” Brawls: Why Failure-To-Protect Claims Should Proceed Under Bivens, Sophia M. Brusco

Fordham Law Review

Correctional officers have an obligation, under the Eighth Amendment and 18 U.S.C. § 4042, to protect incarcerated persons from an attack at the hands of fellow incarcerated individuals. Despite this duty, when a federal officer fails to protect an incarcerated person from attack, the viability of the victim’s claim against the offending officer is uncertain. Even though the doctrine, created in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, allows courts to infer a cause of action for damages directly from the Constitution, the U.S. Supreme Court adopted a test in Ziglar v. Abbasi that has …

Political Neutrality In The Rules Of International Sports Federations: Compatible With Fundamental Freedoms?, Ilias Bantekas

Fordham Intellectual Property, Media and Entertainment Law Journal

International sports federations celebrate and impose strict political neutrality in their institutional rules. Such neutrality is inconsistent with the individual rights of athletes to freedom of expression and peaceful assembly. The contractual basis of such restriction is irrelevant because fundamental rights are constitutionally entrenched and cannot be limited by contract or law, save for if the expression incites to violence, hatred, discrimination or is otherwise inconsistent with criminal law. There is no empirical evidence suggesting that restricting the political expression of influential athletes leads to generalized political or other violence. Instead, it is clear that international sports federations, and particularly …

Is Garcetti Too Cool For School?: Why Garcetti V. Ceballos Should Not Apply To School Teachers, Jordan Zaia

Fordham Intellectual Property, Media and Entertainment Law Journal

The First Amendment is implicated by students and teachers every day in public schools. For years, courts followed the test established in Pickering v. Board of Education to analyze free speech claims for public school teachers. However, teachers’ protections were changed in 2006 when the U.S. Supreme Court decided Garcetti v. Ceballos. Since then, the circuits have inconsistently applied this test in cases relating to education. With the circuit split and high-profile cases rising in the federal circuits, the Supreme Court may have an opportunity to resolve the issue.

This Note advocates for the Supreme Court to rule that Garcetti …

Cross-Border Data Regulatory Frameworks: Opportunities, Challenges, And A Future- Forward Agenda, Andrew D. Mitchell, Neha Mishra

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article evaluates the existing regulatory framework for cross-border data flows across Bahrain, Djibouti, Jordan, Kuwait, Morocco, Nigeria, Oman, Pakistan, Rwanda, and Saudi Arabia. A common factor among these countries is that they are members of the Digital Cooperation Organization (“DCO”). It considers how these countries have devised laws, regulations, and policies on cross-border data flows to enable digital trade, and how these instruments promote the growth of a robust digital economy, both domestically and internationally. The Article then offers policy recommendations for DCO members to consider in developing relevant laws and regulations on data flows.

These …

Anti-Drag Laws And Free Speech: The First Amendment Case For Protecting Drag, Dr. Joel Timmer

Fordham Intellectual Property, Media and Entertainment Law Journal

In 2023, there were six federal court cases involving anti-drag laws or government denials of permission to hold drag shows on public property. All but one of these cases concluded that drag shows constituted expressive conduct protected by the First Amendment. Four of the cases involved challenges to recently enacted anti-drag laws, and in each of those cases, the courts found the laws to violate the First Amendment on multiple grounds, including not being narrowly tailored to achieve their purpose, as well as being vague and overbroad. However, one court, ruling on a denial of permission to …

Minecraft As A Teaching Tool: Online Experiential Learning For The Law School Classroom, Maria Jose Schmidt-Kessen, Stina Teilmann-Lock, Florence Villesèche, Andrea Wallace

Fordham Intellectual Property, Media and Entertainment Law Journal

The Article explores the potential use of Minecraft for experiential learning in higher education. In theory and in practice, intellectual property (IP) questions increasingly arise around if or how digital art can be owned, shared, and reused, as well as how digital realities interact with the various legal regimes. In its sandbox environment, Minecraft allows players to explore these questions through collective co-creation and creative decision-making pertaining to the subsequent re-use of their digital creations. Players become better equipped to reflect on the process of copying, creating, and exploiting their digital creations using the legal tools offered by IP law, …

Melodies Manipulated: Intellectual Property & The Music Industry, Fordham Iplj

Fordham Intellectual Property, Media and Entertainment Law Journal

Marilyn Mosby, Founder and Managing Partner of Mahogany Elite Consulting, opened the IPLJ Symposium with her Keynote Address which focused on the cultural, political, and social context surrounding the use of rap lyrics as evidence in criminal prosecutions.

The opening panel, “Do You Get Déjà Vu?,” comprised of Gary Adelman, Partner, Adelman Matz PC; Linna Chen, Senior Legal Counsel, Litigation & Copyright, Spotify; and Ilene Farkas, Partner, Pryor Cashman, and was moderated by Sarah Matz, Partner, Adelman Matz PC, and Adjunct Professor at Fordham University School of Law. The panel discussed recent copyright cases, specifically Williams v. Gaye …

Dead Bodies As Quasi-Persons, Ela A. Leshem

Faculty Scholarship

No abstract provided.

The Jack Daniel’S Dialogues, Michael Grynberg

Fordham Intellectual Property, Media and Entertainment Law Journal

Jack Daniel’s Properties, Inc. v. VIP Products LLC threatened to upend the balance between trademark rights and expressive freedom. While not going as far as it might have, the opinion limits the ability of defendants to resist trademark claims that target artistic or noncommercial speech.

As important as this result is, we should not overlook a fundamental preliminary question. How could a dog chew toy that mocks Jack Daniel’s whiskey be the basis of a viable trademark infringement claim? Answering that question requires discussing deep issues within modern trademark law.

These antecedent questions were not directly before the Court, but …

Photographic Memory: Expanding “News Deserts” Threaten To Erase The Visual Record Of Contemporary American History, Frank D. Lomonte, Lila Greenberg

Fordham Intellectual Property, Media and Entertainment Law Journal

As local newspapers close their doors across America, one of the unheralded casualties of their demise may be the loss of the institutional memory of their communities. Photo morgues maintained by newsroom librarians are an invaluable reference for researchers and filmmakers seeking to trace the visual history of localities. While some forward-thinking news organizations have donated their archival photos for preservation, there appears to be no industrywide plan for doing so, meaning that countless thousands of unpublished—but historically valuable—photos are at risk of destruction as cost-cutting newspapers eliminate their libraries, sell off their buildings, or go out of business entirely. …