Law Commons^™

Infringement Or Identification?: Nominative Fair Use And The Resale Of Luxury Goods, Jordan Phelan

Fordham Law Review

The market for luxury resale is booming and is predicted to continue its massive growth. Luxury resellers typically market and describe goods using the luxury brand’s trademarks, including the brand name and logos. Luxury brands utilize their market power to “bully” smaller resellers and often take issue with third parties using their trademarks in any context, even when the use of the mark does not encroach on the luxury brand’s share of the market. However, the doctrine of nominative fair use allows the use of a brand’s trademark when referring to that brand’s goods. An alleged infringer will be found …

The Collateral Effects Of Criminal Orders Of Protection On Parent Defendants In Cases Of Intimate Partner Violence, Isabelle Leipziger

Fordham Law Review

Intimate partner violence is a serious public health problem that affects people from all cultures, ethnicities, and socioeconomic backgrounds. Although courts have historically refused to get involved due to the intimate and private nature of these offenses, widespread reforms have led to some judicial intervention. Through the issuance of criminal orders of protection, courts have alleviated some of the difficulties associated with prosecuting cases of intimate partner violence and have provided immediate protection for victims. However, criminal orders of protection also pose significant challenges for defendants who live and co-parent with their accuser.

In New York, issuance of these orders …

The Impermissibility Of Police Deception In Juvenile Interrogations, Gina Kim

Fordham Law Review

Although perjury is a criminal offense in all states and a felony in many, law enforcement may routinely lie to suspects during interrogations. This widespread, judicially authorized practice consists of interrogators making false promises of leniency that the suspect will receive a lighter sentence in exchange for a confession, and making misrepresentations about the evidence against the suspect. Police deception in interrogations becomes even more problematic when used against juvenile suspects because the psychological vulnerability of minors may lead them to succumb to deceptive pressures and even to falsely confess.

This Note explores the debate surrounding the use of police …

Sentencing After Stash Houses: Addressing Manipulation Of The Federal Sentencing Guidelines, Elizabeth Foy Gudgel

Fordham Law Review

In the realm of undercover work, law enforcement has broad discretion to define the contours of a criminal offense. Due to quantity-based provisions in the Federal Sentencing Guidelines, federal agents or their informants may coerce an individual into a higher sentencing range by escalating their behavior to align with mandatory minimums or quantifiable offense levels. Because this type of offense is police-initiated, law enforcement has discretion to select the individuals subject to these tactics and influence their eventual sentences. The defenses of sentencing entrapment and sentencing manipulation are meant to combat this discretion. However, these defenses are rarely invoked successfully …

Second Service: 28 U.S.C. § 1448 And State Court Service Of Process After Removal, Leigh Forsyth

Fordham Law Review

28 U.S.C. § 1448 governs the requirements of process after removal, providing that when defendants are not completely or perfectly served prior to removal, plaintiffs may complete such process or service, or new process may be issued in the same manner as in cases originally filed in the district court. There remains an open question as to whether state court service issued prior to removal, but served after removal, retains its efficacy in federal court under § 1448. This open question has led to divergent interpretations among district courts, with differing consequences. As of this Note’s publication, at least twenty-seven …

Does Brady Apply To Supervised Release Revocation Hearings?, Alex Breindel

Fordham Law Review

Many federal offenders face a term of supervised release upon leaving prison. The successor to the federal parole system, supervised release places conditions upon individuals’ freedom. Violation of a condition may result in revocation of release and reimprisonment. To revoke release, the government must prove to a judge by a preponderance of the evidence that a violation occurred. At this proceeding, known as a “revocation hearing,” the individual may contest the alleged violation and present their own evidence.

Under Brady v. Maryland and its progeny, due process requires the government to disclose material exculpatory evidence to criminal defendants. This Note …

Decarceration's Inside Partners, Seema Tahir Saifee

Fordham Law Review

This Article examines a hidden phenomenon in criminal punishment. People in prison, during their incarceration, have made important—and sometimes extraordinary—strides toward reducing prison populations. In fact, stakeholders in many corners, from policy makers to researchers to abolitionists, have harnessed legal and conceptual strategies generated inside the walls to pursue decarceral strategies outside the walls. Despite this outside use of inside moves, legal scholarship has directed little attention to theorizing the potential of looking to people on the inside as partners in the long-term project of meaningfully reducing prison populations, or “decarceration.”

Building on the change-making agency and revolutionary ideation inside …

Police Vehicle Searches And Racial Profiling: An Empirical Study, Griffin Edwards, Stephen Rushin

Fordham Law Review

In 1981, the U.S. Supreme Court held in New York v. Belton that police officers could lawfully search virtually anywhere in a vehicle without a warrant after the arrest of any occupant in the vehicle. Then, in 2009, the Court reversed course in Arizona v. Gant, holding that police could only engage in vehicle searches after such arrests in a smaller number of extenuating circumstances. This series of cases became a flash point for the broader debate about the regulation of policing. Law enforcement groups argued that administratively complex rules, like those established in Gant, risk officer safety. …

Planning For Emerging Threats: Rethinking The Presidential Line Of Succession, Fordham Law School Rule Of Law Clinic, Gregory Ascher, Myrna Nakhla, Colin Shea

Rule of Law Clinic

From the COVID-19 pandemic to the Ukraine war, recent events have highlighted possible threats to the continuity of presidential leadership. The presidential line of succession in the Presidential Succession Act of 1947 has several flaws. Some of the successors it designates might be ill-suited to discharge the powers of the presidency. Others concerns include its constitutionality, inappropriate incentives it might create, and the democratic legitimacy of outcomes it might produce. This report proposes several reforms to the line of succession for pre- and post-inaugural succession contingencies.

Fordham Lawyer, No. 21 - Summer/Fall 2022, Fordham Law Alumni Association, Fordham Law School

Fordham Lawyer

Fordham Lawyer magazine was first published in 1988 and continued through 2004. It returned in 2011 under Dean Michael M. Martin. The magazine shines a spotlight on faculty research, the Law School community, and the accomplishments of our alumni. No issues were published between 2004 and 2011.

Changing Hands: Recommendations To Improve New York’S System Of Gubernatorial Succession, Fordham Law School Rule Of Law Clinic, Ian Bollag-Miller, Stevenson Jean, Maryam Sheikh, Frank Tamberino

Rule of Law Clinic

Despite the frequency with which the state’s highest executive offices have changed hands, New York is unprepared to deal with a panoply of issues relating to its constitution’s gubernatorial succession provisions. In this report, the Fordham Law School Rule of Law Clinic proposes reforms to address four principal issues with the existing gubernatorial succession provisions: gubernatorial inability, gubernatorial absence, lieutenant governor replacement, and the gubernatorial line of succession.

Abortion Rights Under State Constitutions: A Fifty-State Survey, Robert L. Bentlyewski

Fordham Law Review Online

The U.S. Supreme Court appears poised to overturn Roe v. Wade and its progeny, removing any federal law protection of the right to an abortion. However, numerous state supreme courts have interpreted their state constitutions to independently recognize such a right, finding their state’s equal protection, due process, and privacy rights more expansive than those at the federal level. This Essay surveys all fifty states to ascertain how much protection each state currently affords to women’s right to an abortion. Most state supreme courts have not made a determinative ruling on the issue, and a significant majority of state constitutions …

Old Dilemmas, New Guises: Developing An Anti-Subordination Reading Of Students For Fair Admissions V. Harvard, Eric Szkarlat

Fordham Law Review Online

In 2022, the U.S. Supreme Court will again hear arguments on the constitutionality of race-conscious affirmative action in college admissions. This outcome was far from foretold: the late Justice Ruth Bader Ginsburg had suggested the Court might never take up affirmative action in admissions again. Yet after dragging its feet on granting certiorari, the Court agreed to hear Students for Fair Admissions (SFFA) v. Harvard. This time, however, the case has a substantially different and quite controversial posture. That posture centers on alleged discrimination against Asian and Pacific American (APA) students applying to college. Some APA students are divided …

The Anomalous Issue Class, Veniamin Privalov

Fordham Law Review Online

The modern class action is a litigation superstar. The device’s potential for opening the courthouse doors to “small people,” holding big business accountable, and enacting sweeping reform is second to none. In recent years, however, the star has waned. Judicial hostility has made it harder for plaintiffs to certify a class while making it easier for defendants to avoid class actionsentirely. Certifying a mass tort class has become nearly impossible. Plaintiff lawyers’ creative attempts to work around these roadblocks have been shut down one after another by the Supreme Court. It is in this scorched mass litigation landscape that commentators …

How To Regulate Online Platforms: Why Common Carrier Doctrine Is Inappropriate To Regulate Social Networks And Alternate Approaches To Protect Rights, Edward W. Mclaughlin

Fordham Law Review Online

Concerns about the “concentrated control of so much speech in the hands of a few private parties” and their ability to suppress some user speech have led to calls to regulate online platforms like common carriers or public accommodations. Advocates of that regulation theorize that social media platforms host today’s public forum and are open to all comers and so should have a responsibility to be content neutral and allow all voices to be heard. Traditionally, the argument that private players, as opposed to only government actors, can violate individuals’ free speech rights was a progressive cause, but recently conservative …

Court Mandated Technology-Assisted Review In E-Discovery: Changes In Proportionality, Cost-Shifting, And Spoliation, Graham Streich

Fordham Law Review Online

Burgeoning advanced technology-assisted review (TAR) methods challenge justifications for requesting parties’ burdens and litigant cooperation in e-discovery. Increasingly accurate and accessible TAR introduces novel issues in e-discovery, including determining the proportionality of discovery requests and managing information in spoliation cases. This Essay recommends reconsidering the judiciary’s role in e-discovery in light of new technology and argues that courts, particularly lower courts, need expert technical guidance to adequately address the issues e-discovery presents.

Polarizing Impact: Indigenous Consultation Under International Labor Organization Convention 169 And The Emerging Polar Shipping Industry, Danika Elizabeth Watson

Fordham Law Review Online

This Article analyzes U.S. ratification of International Labour Organization (ILO) Convention 169, Indigenous and Tribal Peoples Convention (“Convention 169” or “C. 169”), by evaluating the impact in terms of its ability to solidify its protections of the land and lifeways of Arctic Indigenous people and strengthen the United States’s position as an international leader in Arctic life, development, and policy. Part I presents the issues. Part II introduces the growth of a polar shipping industry in the context of a rapidly melting Arctic. Part III provides a brief gloss on the complex and shifting international legal framework governing Arctic sovereignty …

Recording Virtual Justice: Cameras In The Digital Courtroom, Matthew Bultman

Fordham Law Review Online

With in-person hearings limited during the COVID-19 pandemic, many courts pivoted to proceedings held over the telephone or on virtual platforms like Zoom. It appears these proceedings are here to stay, with various benefits having been realized from remote access to the courts. Remote hearings have, however, given rise to constitutional questions. This Essay focuses on one emerging issue: courts’ ability to prohibit the press and the public from recording or disseminating these proceedings. While the constitutionality of recording and broadcasting restrictions inside the real-world courtroom is established, little consideration was given to the extension of these rules to the …

Tenancies Uncommon: Limits On Representing Cotenants Pro Se, Robert L. Bentlyewski

Fordham Law Review Online

An adversary proceeding that was part of the Bernie Madoff bankruptcy litigation involved a fraud victim making a motion to represent pro se the interests of all tenants in common who co-owned an account with Madoff. This Essay analyzes and expands upon the bankruptcy court’s holding, which addressed this novel issue by finding that a tenant in common cannot represent his cotenants pro se for two reasons. First, a tenancy in common is not a legal entity that can speak with one voice. Second, one tenant in common cannot represent one or more other cotenants’ interests in litigation without joining …

Chilling Parental Rights, Meghan M. Boone

Fordham Law Review

Despite this clear lack of consensus as to what constitutes ideal parenting, state actors have increasingly intervened in families when they feel that a particular parenting choice is wrong. These interventions increasingly occur through the use of criminal law and punishment.5 This criminalization extends beyond prosecutions for what would traditionally be considered abuse or neglect to a wide range of parenting choices that do not rise to this level. Although many scholars have critiqued this criminalization of parenting, the focus of these critiques has centered on the harm to the families that are actually criminalized and on how a disproportionate …

Parenting While Black, R. A. Lenhardt

Fordham Law Review

Changes in law and policy—not to mention developments such as the COVID-19 pandemic and its devastating effects on families—raise important questions about how to define parental rights and how to best support parents and children during these challenging times. The Symposium also presented important questions about issues of race, gender, sexuality, and class in our modern context. Even more salient in this space are issues of race. Here, as in other contexts, Black families, like my grandmother’s and so many others, are the “canaries in the mine.” Their experiences provide us with important insight into the signs of danger facing …

Parentage Agreements Are Not Contracts, Gregg Strauss

Fordham Law Review

Parentage agreements are proliferating. In a fertility clinic, an egg donor, sperm donor, and gestational surrogate may agree to waive their parental rights, and the intended parents may agree to share parenthood. In a maternity ward, a birth mother may agree to acknowledge a partner as a parent. In an adoption agency, birth and adoptive parents may agree to an open adoption with ongoing visitation. In a home, a parent may agree to share parentage with a cohabitant, enabling the cohabitant to become a legal parent later after raising the child and developing parental bonds. Good reasons underlie this drift …

The Federal Rules Of Pro Se Procedure, Andrew Hammond

Fordham Law Review

In recent years, more than a quarter of all federal civil cases were filed by people without legal representation. Yet, the Federal Rules of Civil Procedure refer to pro se litigants only once, and the U.S. Supreme Court has not considered in over a decade the question of what process is due to unrepresented civil litigants. Many judicial opinions in these cases go unpublished, and many are never appealed. Instead, the task of developing rules for pro se parties has taken place inside our federal district courts, whose piecemeal and largely unnoticed local rulemaking governs thousands of such litigants each …

Criminal Justice Expertise, Benjamin Levin

Fordham Law Review

For decades, commentators have adopted a story of mass incarceration’s rise as caused by “punitive populism.” Growing prison populations, expanding criminal codes, and raced and classed disparities in enforcement result from “pathological politics”: voters and politicians act in a vicious feedback loop, driving more criminal law and punishment. The criminal system’s problems are political. But how should society solve these political problems? Scholars often identify two kinds of approaches: (1) the technocratic, which seeks to wrest power from irrational and punitive voters, replacing electoral politics with agencies and commissions, and (2) the democratic, which treats criminal policy as insufficiently responsive …

Catching Up To A New Normal: The Effects Of Shifting Industry Standards On Contract Interpretation, Karen Chen

Fordham Law Review

During the COVID-19 pandemic, industries around the world were forced to adapt to a new way of life dictated by rising public health concerns. The pandemic’s rapid spread left parties struggling to determine whether contractual performance would be excused or reinterpreted. Issues of prevailing industry standards arose and brought into question the point at which parties and courts should define these standards. While some parties argued that industry standards at the time of contract formation are determinative of performance, others claimed that their agreement referenced industry standards that had changed and that, therefore, their performance obligations had changed as well. …

Punishing Maternal Ambivalence, Elizabeth Kukura

Fordham Law Review

There are certain landmarks on the road to parenthood that together comprise a cultural narrative about becoming a parent, a narrative that many aspire to emulate and that some achieve: celebrating a (heterosexual) marriage with a big wedding; a positive pregnancy test leading to overjoyed reactions; first ultrasound pictures hung on the fridge (and shared on social media); a healthy pregnancy with baby showers and nesting to prepare for the new arrival; maternity photo shoots and babymoons to celebrate the final moments before life changes; and finally, an uncomplicated labor and delivery that, in an instant, transform the couple into …

Parental Social Capital And Educational Inequality, Solangel Maldonado

Fordham Law Review

This Essay argues that scholars must consider the nonmonetary resources—specifically, the social capital24—that middle- and upper-income parents bring to the predominantly White schools their children attend. While scholars have recognized middle- and upper-income students as educational resources that can help bridge the achievement gap, they have yet to explore the effects of nonmonetary resources that middle- and upper-income White parents bring to predominantly White school districts, and how these resources advantage children in these schools. This Essay calls on social scientists to study these effects and urges lawmakers to support parents by (1) integrating schools and (2) funding programs that …

The Public/Private Distinction In Public Health: The Case Of Covid-19, Jason Jackson, Aziza Ahmed

Fordham Law Review

In this Essay, we argue that the paradigm of the public/private distinction is implicitly operating as a primary frame in the public health response to the pandemic. The public/private distinction is particularly evident in the guidance around masking and other risk-mitigation policies and advice issued by public health agencies. This public health approach reifies the notion of the home as an exceptional private space that exists outside of the possibility of COVID-19 transmission, obscuring the reality of the high risk of transmission in some households.8 We argue that the manifestation of the public/private distinction in the COVID-19 response is deeply …

Fertility, Immigration, And Public Support For Parenting, Eleanor Brown, Naomi Cahn, June Carbone

Fordham Law Review

As this Essay shows, the fertility discourse of the last half century deals with the profound effects that come from the transformation of the economy and the place of modern families within it. Discussions of race and class have been an important—and, often, pernicious—part of a transformation in family values, as the upper-middle-class efforts to channel ever greater investment into children have increased economic inequality and contributed to racial, ideological, and gender division. We see the convergence in fertility rates as an indication that, at a practical level, a much larger part of the country is embracing the new family …

Covid-19 And The Perils Of Free-Market Parenting: Why It Is Past Time For The United States To Install Government Supports For Families, Maxine Eichner

Fordham Law Review

U.S. public policy has for decades rested on the expectation that parents will privately provide the cash and conditions their children need. This expectation is exceptional: most other wealthy countries’ public policies support children through a mix of public and private funds. The COVID-19 pandemic, however, radically changed U.S. policy. The severe economic dislocation that resulted led Congress to pass a series of measures that funneled trillions of public dollars to families and parents. Whether these measures should represent a temporary deviation from the nation’s free-market expectations during an unprecedented emergency or the first step in a long-term shift toward …