Law Commons^™

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photos for preservation, there appears to be no industrywide plan for doing so, meaning that countless thousands of unpublished—but historically valuable—photos are at risk of destruction as cost-cutting newspapers eliminate their libraries, sell off their buildings, or go out of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. …

Ai Voice Enters The Copyright Regime: Proposal Of A Three-Part Framework, Prachi Patel

Fordham Intellectual Property, Media and Entertainment Law Journal

We are told that our voice is one of the most powerful tools we have. However, is it just as powerful if it can be replicated? Artificial intelligence has developed to the point where it can create an exact clone of a person’s voice. While there have been many advancements in this field, there are few laws that address artificial intelligence and its use. Artificial intelligence has been used to create artificial voices of well-known figures, both deceased and alive, some without their consent. This creates a need to balance the incentivization of technological development and the protection of an …

Good Lawyers, Good Sports?: The Professional Identity Of Sports Lawyers Representing Not-For-Profit Entities, Bruce A. Green

Faculty Scholarship

ABA accreditation standards require law schools to develop students’ professional identity, including by encouraging “an intentional exploration of” the legal profession’s “values [and] guiding principles.” This Essay invites legal academia as well as practitioners to explore issues of legal ethics, professionalism, and, especially, professional identity in the context of a new area of legal practice: sports lawyers’ representation of “NIL collectives,” which are not-for-profit entities that college boosters establish to enable college athletes to benefit financially from their name, image and likeness (“NIL”). The work of sports lawyers advising NIL collectives offers an interesting case study for considering how professional …

The Marketplace Of Ideas Mandate: What The Postal Power Requires From Congress In The Age Of Ai, Kevin Frazier

Fordham Intellectual Property, Media and Entertainment Law Journal

Given the impending glut of AI-altered content that threatens to distort the flow of information on social media platforms, this Article comes at an inflection point. Absent the widespread adoption of a historically-accurate understanding of the obligation of the federal government to facilitate the spread of news and views on current affairs, the public may soon lose its ability to speak, listen, and learn to the extent required by a functioning deliberative democracy.

This is not hyperbole. By 2026, experts forecast that “synthetic” information may account for ninety-percent of online content. The anticipated deluge of AI-altered …

Time To Abolish The Dea: Evaluating The Agency’S Failures And Calling For Community Investments, Ifetayo Harvey

Fordham Law Review

No abstract provided.

A Major Question For The Sec: Analyzing Constitutional Limits On Regulatory Authority, Matthew Diller, Meredith Berger, Samuel W. Buell, John M. Golden, Suzanne Ashley, Coy Garrison, Aaron Saiger, Suman Naishadham, Mary Jo White

Fordham Journal of Corporate & Financial Law

No abstract provided.

Why Do Banks Fail Together? Evidence From Executive Compensation, Deniz Anginer, Jinjing Liu, Cindy A. Schipani, H. Nejat Seyhun

Fordham Journal of Corporate & Financial Law

Recent bank failures have elicited extensive interest about the causes, focusing on incompetence of bank executives, policymakers, bank regulators and supervisors and even uninsured depositors. Yet, before we can prescribe solutions to bank failures, we need to identify the correct causes of the underlying problems. We argue that the problem is not so much with incompetence of executives, depositors, or regulators per se, but rather with managerial incentives.

We provide both a conceptual basis as well as empirical evidence to show that bank executives have incentives to increase systemic risks in order to maximize the benefits of bank bailouts. Consequently, …

A Bona Fide Dispute: Can Bankrupt Debtors Sell Assets Free And Clear Of Federal Civil Forfeiture Claims?, Joseph Peter Gomez

Fordham Journal of Corporate & Financial Law

Auctions are wheeling-dealing extravaganzas in which frenzies of bidders fight over shiny objects. What would happen if the government busted down the doors of the auction house, took the shiny objects, and sold them online? An asset sale through section 363(b) of the Bankruptcy Code provides a court-supervised opportunity to maximize economic value for the bankruptcy estate. To sell estate assets, the debtor must either (1) pay off each creditor holding an interest in the assets or (2) strip the creditor’s interest and attach it to the proceeds of the sale. When the government asserts a civil forfeiture claim against …

Another Major Question: The Department Of Labor Should Retire The Tiebreaker Rule And Reemploy Pecuniary Language In Erisa, Brandon Chesner

Fordham Journal of Corporate & Financial Law

The Employee Retirement Income Security Act of 1974 (“ERISA”) soon turns 50. Instead of celebrating with cake, retirees and future retirees alike get to witness a new chapter in the debate over the consideration of Environmental, Social, or Governance (“ESG”) factors in investing with plan assets. As employees cross the bridge into retirement, they look to their 401(k)s and pension plans for peace of mind, for it is ERISA that has been working silently in the background establishing minimum standards, practices, and fiduciary duties to protect participants. In recent years, the U.S. Department of Labor (“DOL”) has passed three regulations—two …

Speech Without Speakers: Eliminating Artificial Barriers To Pleading Corporate Scienter In Securities Fraud Claims, Jennifer Ligansky

Fordham Journal of Corporate & Financial Law

To successfully plead securities fraud claims under Rule 10b–5, the Private Securities Litigation Reform Act (“PSLRA”) requires that plaintiff-investors raise a “strong inference” that the defendant acted with scienter when issuing a false statement. But pleading scienter presents a challenging issue when the defendant is not a person, but an entity. When the defendant is a corporation, U.S. Circuit Courts of Appeals have adopted different approaches for determining whether the plaintiff has pleaded a strong inference of scienter. Some circuits hold that plaintiffs can raise a strong inference of corporate scienter only if the complaint identifies a speaker who knew …

The Lease Of All Evils: How A Middle-Ground Approach Can Resolve The Bankruptcy Code Conflict Between Section 363(F) Sales And Section 365(H) Lessee Protections, Kate Christensen

Fordham Journal of Corporate & Financial Law

The Fifth Circuit’s recent decision in In re Royal St. Bistro, LLC has awakened an unsettled issue in the Bankruptcy Code that has divided the bankruptcy community for over two decades. The question examined by the Fifth Circuit was whether a non-debtor lessee with a right to continued possession through section 365(h) of the Bankruptcy Code loses this right if the debtor-lessor can sell its property “free and clear” under section 363(f). While early decisions held that section 365(h) always protects lessees against debtors’ free and clear sales, some subsequent decisions created a circuit split by ruling that section 365(h) …

Minutes Are Worth The Minutes: Good Documentation Practices Improve Board Deliberations And Reduce Regulatory And Litigation Risk, Given As The 21st Annual Destefano Lecture, Leo E. Strine Jr.

Fordham Journal of Corporate & Financial Law

This Essay, originally the basis for the 21st Annual Albert A. DeStefano Lecture on Corporate, Securities & Financial Law given on February 27, 2024, at Fordham University School of Law, addresses the importance of good corporate minuting and board documentation practices. Using lessons from Delaware cases where the quality of these practices has determined the outcome of motions and cases, this Essay identifies effective and efficient practices to better address this decidedly not sexy, but unquestionably essential, corporate governance task. The recent Delaware cases underscore the importance of quality and timely documentation of board decision-making, the material benefits of doing …

Corporate Esg Falls Short: Systemic Anti-Black Racism And Inequality Should Be Addressed Through A Cumulative Integrated Approach, Ferrell L. Littlejohn

Fordham Journal of Corporate & Financial Law

In the 1896 case Plessy v. Ferguson, the Supreme Court endorsed the “separate but equal” doctrine, essentially codifying racial segregation. This decision guaranteed that systemic racism would permeate every fabric of society despite the abolition of slavery. Recently, many corporate institutions have pledged to actively support the fight against systemic racism through their environmental, social, and governance (“ESG”) initiatives. Corporate stakeholders have actively advocated for these initiatives, particularly in response to recent scholarship revealing the significant involvement of capitalist institutions in historical slavery, and the continued perpetuation of anti-Black racism. Nevertheless, such initiatives, for example, internal diversity, equity, and …

Marijuana And The Tyrannies Of Scheduling, Robert A. Mikos

Fordham Law Review

No abstract provided.

Expecting Medication Surveillance, Jennifer D. Oliva

Fordham Law Review

In response to federal financial incentives and mandates, all fifty states, the District of Columbia, and three U.S. territories administer electronic prescription drug monitoring programs (PDMPs). Federal and state policymakers justified the implementation and enhancement of ubiquitous prescription drug monitoring by contending that expansive state drug surveillance was a necessary weapon in the war against the American drug overdose crisis. As is often the case with tools designed for law enforcement surveillance, however, PDMPs have proven susceptible to mission creep. Although pioneer PDMPs were paper-based systems that limited their surveillance to a narrow class of heavily regulated controlled substances, modern …

Proxy Taxes: Taxing The Wrong Person Can Be The Right Policy, Linda Sugin

Faculty Scholarship

Congress seems unable to fix the inequities and inefficiencies that riddle the tax law. This article suggests such a new strategy for building a better tax system that Congress should find politically possible. It proposes taxing the wrong taxpayer for the right reasons-to raise revenue and improve fairness. It introduces a conceptual and theoretical framework for provisions that are already in the Internal Revenue Code, explaining why they should be understood as examples of "proxy taxes," and proposes that proxy taxes can solve many intractable problems in the law.

“Proxy taxes,” as defined in this article, impose liability on taxpayers …

The Notes You Don’T Play: An Empirical Analysis Of The Ninth Circuit’S Filtration Problem In Music Copyright Cases, Robert D. Capodilupo

Fordham Intellectual Property, Media and Entertainment Law Journal

The Ninth Circuit’s approach to music copyright cases has failed to provide artists with a clear landscape of the boundaries of copyright protection for creative works. Perhaps most disconcerting is the doctrine’s lack of rigid guidance as to which elements of a composition are protected by copyright. Since the court’s controversial ruling in Williams v. Gaye, which showcased the court’s failure to differentiate between protectable and unprotectable musical elements, the literature has taken a greater interest in analyzing the effects of this muddied doctrine. In their 2019 article, Christopher Jon Sprigman and Samantha Fink Hedrick theorize how the doctrine of …

Forming A More Perfect Union With Blockchains And Nfts: Why The United States Should Embrace An E-Government, Alexandria Labaro

Fordham Intellectual Property, Media and Entertainment Law Journal

This Note analyzes blockchain and non-fungible token (“NFT”) technology in the government, emphasizing the benefits of technological integration for improved data security and streamlined bureaucratic processes. It follows the growing popularity of “e-government” practices across the globe and considers factors associated with integrating blockchain and NFT technology in U.S. governmental procedures.

Misappropriation Of Drawing Power (Free-Riding) In Trademarks, Tony Bortolin

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article advances the cause of action regarding the Misappropriation of Drawing Power (“free-riding”). It is a form of anti-dilution, along the lines of European Union laws regarding parasitism, and is analogous to other laws such as the protection of personality rights. It could also help settle long-standing debates in the trademark field, such as those regarding dilution by blurring, initial-interest confusion, comparative advertising, and whether and how to protect marks beyond the geographical scope of the plaintiff’s sales (such as protecting U.S. marks used internationally).

Business Empire To Patent Umpire: Amazon And The Ascent Of Platform Patent Adjudication, Shih-Wei Chao

Fordham Intellectual Property, Media and Entertainment Law Journal

A trend in patent law is mounting, one which this Article refers to as Platform Patent Adjudication. Amazon’s Patent Evaluation Express (“APEX”) now allows patent owners and sellers to resolve infringement disputes without using courts, and even without traditional alternative dispute resolution mechanisms like arbitration or mediation, but instead entirely within the platform setting. Amazon touts, and many practitioners agree, that its procedure is much less expensive and much quicker than litigating in court. But why is Amazon doing this? And why have other platforms not done this before? This Article takes a step back to examine the conditions and …

Foreign Intelligence Surveillance Act Section 702: The Good, The Bad, And A Proposal To Make It Less Ugly, Kevin Burns

Fordham Intellectual Property, Media and Entertainment Law Journal

Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) has been controversial since its inception. Created to allow intelligence collection against targeted foreign persons, electronic surveillance under Section 702 casts a wide net, often capturing communications sent to or by United States persons. Opponents point to the invasion of privacy such collection presents, and to the well-documented abuse and biased use of Section 702 data against U.S. citizens. This Note argues that despite this, Section 702 is a vital tool in the fight against terrorism and drug trafficking and the case against Section 702 is weaker than it appears. This …

A Glance Not Taken—When Claim Interpretation Ignores The Best Evidence, David R. Soucy, Esq.

Fordham Intellectual Property, Media and Entertainment Law Journal

A little-known but longstanding rule of patent law is that the article “a” means one or more than one when recited within a patent claim. But the commonly understood meaning of “a” is a numerosity of just one. The case of Salazar v. AT&T Mobility is about the misapplication of the patent law general rule of indefinite articles to find that the term “a microprocessor” means just one microchip. That fundamental tenet states that “a” means one or more than one, unless a patentee disavowed that meaning as evidenced by: (1) other language of the claims (i.e., dependent …

Good Readers, Good Writers, And Ai: Tool, Collaborator, Author?, Katherine Jung

Fordham Intellectual Property, Media and Entertainment Law Journal

Artificial Intelligence (“AI”) systems have revolutionized the world of creative writing. Beyond providing simple grammar or spelling assistance, the most advanced of these systems can now play a collaborative role in the writing process, increasing productivity while pushing content in new and surprising directions. AI-generated creativity raises compelling questions in the context of copyright law, which has long been predicated on the assumption of human authorship. The capacity of AI to one day generate writing at a level of mastery on par with human beings complicates traditional notions of creativity, the protection of which the entire copy …

Algorithmic Dead Hands: What Is Dead May Never Die, Zachary L. Catanzaro

Fordham Intellectual Property, Media and Entertainment Law Journal

Can we transcend death? By harnessing large language models and the invasive data harvesting of surveillance capitalism, AI systems now offer testators unprecedented posthumous control over property and heirs. These algorithmic ‘dead hands’ promise a seductive form of digital immortality, but if left unchecked, they threaten to spawn a novel breed of perpetuities. This technology risks birthing a digitized techno-feudal Necrocracy marked by inalienable property, extreme wealth consolidation, and the dead’s perpetual dominion over the living.

While modern reforms have weakened the common law’s traditional hostility to dead hand control, these reforms failed to anticipate technologically embodied intentionality persisting beyond …

A Trade-Off In Smart Contract Arbitration; Sacrificing Arbitrators’ Anonymity For Transparency?, Bahadir Köksal

Fordham Intellectual Property, Media and Entertainment Law Journal

The recent growth in blockchain usage has substantially affected the number of transactions executed via smart contracts. In parallel, the number of transactions will likely increase the number of disputes that arise from these smart transactions. Some innovative arbitration platforms have emerged in response to the urgent need for a tailor-made dispute resolution mechanism. These platforms tend to promote the anonymity of arbitrators because of their decentralized nature and secured proceedings. Does the anonymity of arbitrators’ identities and skills increase the transparency in smart contract arbitration? And to what extent can the anonymity of arbitrators be sacrificed for more transparent …

Toward Best Practices For Trade-Security Measures, Harlan G. Cohen

Faculty Scholarship

The global economy is increasingly being weaponized. Citing security concerns from traditional defence to economic competitiveness, health emergency, and climate crisis, states are turning to sanctions, tariffs, export controls, investment screening, and subsidies. But while economic statecraft is becoming common, rules remain scarce. Questions about notice, duration, proportionality, harm minimization, compensation, retaliation, and/or rebalancing lack clear answers and seem almost theoretical. Once, we might have hoped the World Trade Organization (WTO) would play a role in developing such rules. But in the absence of an Appellate Body and in the face of state rejections of review, WTO’s deliberative processes have …

Correcting Federal Rule Of Evidence 404 To Clarify The Inadmissibility Of Character Evidence, Hillel J. Bavli

Fordham Law Review

Courts misinterpret Federal Rule of Evidence 404(b)(2) as an exception to Rule 404(b)(1)’s prohibition on character evidence rather than a mere clarification that emphasizes the permissibility of other-acts evidence whose relevance does not rely on propensity reasoning. This misinterpretation turns the rule against character evidence on its head by effectively replacing Rule 404 with a Rule 403 balancing—and one that incorrectly treats character inferences as probative rather than prejudicial, thereby favoring admissibility rather than exclusion. Consequently, as currently interpreted, Rule 404(b)(2) generates substantial unpredictability and verdicts based on conduct not at issue in a case.

I therefore propose that the …

Eliminating Rule 609 To Provide A Fair Opportunity To Defend Against Criminal Charges: A Proposal To The Advisory Committee On The Federal Rules Of Evidence, Jeffrey Bellin

Fordham Law Review

Federal Rule of Evidence 609 authorizes the admission of prior convictions to impeach criminal defendants who testify. And in this important and uniquely damaging application, the [r]ule’s logic fails, distorting American trials and depriving defendants of a fair opportunity to defend against the charges. The Advisory Committee [on Evidence Rules (the “Advisory Committee”)] should propose the elimination of Rule 609 and prohibit cross-examination with specific instances of a criminal defendant’s past conduct when those instances are unrelated to the defendant’s testimony and unconnected to the case.

This short essay begins by setting out the proposed rule change alongside a proposed …

Psychedelics, Psychosocial Support, And Psychotherapy: Why It Matters For The Law, Ethics, And Business Of Medical Psychedelic Use, I. Glenn Cohen

Fordham Law Review

No abstract provided.