Law Commons^™

Mandatory Narrated Ultrasounds: A First Amendment Perspective On Abortion Regulations, Abigail Tubin

Fordham Law Review

Ever since the U.S. Supreme Court recognized the right to terminate a pregnancy in Roe v. Wade, many state legislatures have passed myriad regulations intended to complicate the process of obtaining an abortion. These regulations include “informed consent” provisions, such as the mandatory narrated ultrasound, which impose strict disclosure requirements on physicians who seek to perform abortions. Since these regulations compel physicians to speak when they otherwise might not, these laws implicate the First Amendment’s Free Speech Clause. As a result, physicians looking to perform abortions have an alternative avenue, apart from the Fourteenth Amendment’s Due Process Clause, for challenging …

Errata

Fordham Law Review

No abstract provided.

The Glocal Net: Standing On Joel Reidenberg’S Shoulders, Michael Birnhack

Fordham Law Review

Information technology and digital networks are global, and information can easily cross borders. Laws, however, are territorial, local, and specific. This is the meeting of the global and the local. Imposing local laws on global technology can result in a conflict, but it may give birth to a new condition, the “glocal net”: the fusion of the global and the local. Under the condition of the glocal net, as a matter of practice, people experience the internet differently in different places around the globe. As an ideal, the glocal net would strive to enable both the global and the local …

Serious Notice: A Celebration, Discussion, And Recognition Of Joel Reidenberg’S Work On Privacy Notices And Disclosures, Tal Z. Zarsky

Fordham Law Review

This Essay pays tribute to Professor Joel Reidenberg’s rich academic career and, specifically, to his contributions to the study of privacy policies. In doing so, this Essay takes a close look at privacy policies and possible ways to effectively intermediate their content through various labeling schemes. While severely flawed, privacy policies are here to stay. Therefore, an in-depth analysis of ways to enhance their efficiency is merited. This Essay thus examines key strategies for privacy-related intermediation, obstacles, and problems arising in the process, as well as possible solutions. The analysis weaves together theoretical and empirical privacy law scholarship (much of …

Fee Retrenchment In Immigration Habeas, Seth Katsuya Endo

Fordham Law Review

For noncitizens facing removal, habeas corpus provides one of very few avenues for Article III review. For decades, habeas proceedings have been interpreted as falling under the ambit of the Equal Access to Justice Act (EAJA), which provides for the award of attorneys’ fees to prevailing parties in suits against the federal government. But this understanding is being challenged, threatening the judicial backstop to executive and legislative overreach in immigration. Reducing the ability of lawyers to recover their fees in these circumstances will reduce the number and quality of habeas challenges by individuals being detained while they await removal—a particularly …

Opening The Safety Valve: A Second Look At Compassionate Release Under The First Step Act, Michael T. Hamilton

Fordham Law Review

Under federal law, judges are generally prohibited from changing a sentence once it has been imposed. Compassionate release, to put it simply, provides a “safety valve” against this general principle, allowing federal judges to reduce a prisoner’s sentence when it is warranted by “extraordinary and compelling reasons.” For the past thirty years, statutory and bureaucratic roadblocks made compassionate release an unlikely avenue for prisoners to receive sentence reductions. With the passage of the First Step Act of 2018, the U.S. Congress made the first significant changes to the compassionate release statute in decades, permitting defendants for the first time to …

Reply Or Perish: The Federal Rule 83(A)(1) Problem With Local Rules Requiring Responses To 12(B)(6) Motions, Alexis Pawlowski

Fordham Law Review

The federal courts of appeals are divided over whether district courts have the legal authority to grant Federal Rule of Civil Procedure 12(b)(6) motions to dismiss solely for lack of reply pursuant to local rules requiring responses to motions. Seven circuits hold that district courts must always consider the merits of an unopposed Rule 12(b)(6) motion to dismiss. However, the First and D.C. Circuits allow district courts to dismiss Rule 12(b)(6) motions for lack of response pursuant to local rules in certain circumstances. The majority view is that the use of these local rules in the First and D.C. Circuits …

School Closures And Parental Control: Reinterpreting The Scope And Protection Of Parents’ Due Process Right To Direct Their Children’S Education, Timothy W. Schubert

Fordham Law Review

When COVID-19 hit U.S. shores, it was not long until state governments shuttered both public and private schools. As the closures continued, some parents, hoping to get their children back into the classroom, challenged the constitutionality of school closures, alleging that the closures abridged their due process right to direct the upbringing of their children—commonly referred to as the Meyer-Pierce right. However, the U.S. Supreme Court has yet to articulate the contours of this right or the level of constitutional protection it commands. With little guidance from the Court, lower courts have come to differing conclusions about how to interpret …

Becoming A More Environmentally Sustainable Law Library: How Law Libraries Can Reduce Their Carbon Footprint To Help Combat Climate Change, Todd G. E. Melnick

Staff Publications

No abstract provided.

Hosting Successful "Welcome Back" Events For Your Law School Students, Kelly Leong, Gail Mcdonald

Staff Publications

No abstract provided.

Best Practices For Developing And Running Legal Tech Programs In An Academic Setting, Jennifer Dixon, Janet Kearney, Kelly Leong

Staff Publications

No abstract provided.

Work-In-Progress: A Research Framework In Fcil Teaching?, Janet Kearney

Staff Publications

No abstract provided.

Making The Case For Law Tech, Janet Kearney

Staff Publications

As the concept of a “practice-ready” attorney continues to grow in both law firms and law schools, law school libraries are meeting this need by offering programming related to legal technology. In this article, a law librarian from the United States discusses their successes and failures in creating and maintaining legal technology programming, a first step in a larger conversation on practice-ready law graduates. This article is based on a June 2021 presentation given at the annual conference of the British and Irish Association of Law Librarians.

The Public Square Has Eyes (Or Cameras): Anonymous Speech Under The First And Fourth Amendments In The Age Of Facial Recognition, Apratim Vidyarthi

Fordham Intellectual Property, Media and Entertainment Law Journal

Facial recognition technology (“FRT”)—once a futuristic fantasy—is more pervasive than ever and shows no signs of becoming less prevalent. While this technology has its upsides, it elicits the notion of an omnipresent being that is watching and tracking us all the time. FRTs encroach on the First Amendment right to anonymous speech by revealing the identity of speakers and chilling speech. Yet, First Amendment doctrine does not provide much solace, since the right to anonymous speech regulates the government’s ability to force disclosure of a speaker’s identity rather than preventing it from collecting publicly available facial data. The right to …

Ip Interrupted: Diverse Voices In Intellectual Property, Fordham Iplj

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Lowering Barriers To Entry: Youtube, Fair Use, And The Copyright Claims Board, Jamie O'Neill

Fordham Intellectual Property, Media and Entertainment Law Journal

The Internet has transformed the landscape of media production by opening the doors of creation to anyone with a computer and an idea. YouTube allows for millions of individuals to post and disseminate content at a low cost to widespread audiences. But while the barriers to entry for content creation have lowered, the barriers to the legal copyright system have remained largely unmoved since YouTube’s inception. This Note seeks to explore the exact specifications of YouTube’s copyright system, both the one mandated by law and the one created voluntarily by YouTube, in order to understand where fair use stands in …

The Ship Of Theseus: The Lanham Act, Chanel And The Secondhand Luxury Goods Market, Julie Tamerler

Fordham Intellectual Property, Media and Entertainment Law Journal

The ship wherein Theseus and the youth of Athens returned had thirty oars, and was preserved by the Athenians down even to the time of Demetrius Phale- reus, for they took away the old planks as they de- cayed, putting in new and stronger timber in their place, insomuch that this ship became a standing ex- ample among the philosophers, for the logical ques- tion of things that grow; one side holding that the ship remained the same, and the other contending that it was not the same. – Plutarch1

Bad Publicity: The Diminished Right Of Privacy In The Age Of Social Media, Kirby Shilling

Fordham Intellectual Property, Media and Entertainment Law Journal

The “public disclosure of private facts” tort involves determining if and when publication of truthful, albeit embarrassing, facts warrant liability. Such liability inherently runs into First Amendment concerns. This Note analyzes the background of this tort, its status, and its application in different jurisdictions. Scholarship and jurisprudence have traditionally balanced the right to privacy with First Amendment guarantees by looking at different factors, including whether the disclosed information is properly described as “private” and whether it is newsworthy or a matter of legitimate public interest. However, the line between “public” and “private” has become increasingly blurred with new technology and …

Culture And Fair Use, Michael P. Goodyear

Fordham Intellectual Property, Media and Entertainment Law Journal

The intersections of race and copyright have been underexamined in legal scholarship, despite repeated calls for further scrutiny. The scholarship has so far focused primarily on identifying where copyright has fallen short in protecting the creative works of artists of color. This Article, instead, hopes to offer one viable solution for creating more inclusivity of different cultures in copyright: the approval of cultural adaptations under fair use.

Cultural adaptations—the transformation of preexisting works to reflect the cultural and social mores and norms of a different group—would appear at first glance to be prohibited as derivative works, which, under the Copyright …

Fordham Lawyer, No. 20 - Winter 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.

Subversive Legal Education:Reformist Steps Towardabolitionist Visions, Christina John, Russell G. Pearce, Aundray Jermaine Archer, Sarah Medina Camiscoli, Aron Pines, Maryam Salmanova, Vira Tarnavska

Fordham Law Review

Exclusivity in legal education divides traditional scholars, students, and impacted communities most disproportionately harmed by the legal education system. While traditional legal scholars tend to embrace traditional legal education, organic jurists—those who are historically excluded from legal education and those who educate themselves and their communities about their legal rights and realities—often reject the inaccessibility of legal education and its power. This Essay joins a team of community legal writers to imagine a set of principles for subversive legal education. Together, we—formerly incarcerated pro se litigants, paralegals for intergenerational movement lawyering initiatives, first-generation law students and lawyers, persons with years …

Small Gestures And Unexpectedconsequences: Textualist Interpretationsof State Antidiscrimination Lawafter Bostock V. Clayton County, Anastasia E. Lacina

Fordham Law Review

The U.S. Supreme Court’s landmark decision in Bostock v. Clayton County expanded Title VII’s coverage of victims of sex discrimination in employment by interpreting the statute to also protect LGBTQ+ employees who were discriminated against because of their sexual orientation and/or gender identity. Although Bostock only applies precedentially to Title VII, the long and interwoven history of state antidiscrimination statutes shows that the ruling may reach beyond federal law. This Note examines state court cases that have considered whether to apply Bostock’s reasoning to the interpretation of state antidiscrimination statutes. Furthermore, this Note argues in favor of a path …

Graffiti On Cities’ Forgotten Landscapes: An Application Of Adverse Possession Law To The Visual Artists Rights Act, Minelli E. Manoukian

Fordham Intellectual Property, Media and Entertainment Law Journal

Artists use any surface available to them as a canvas. There is the common: cloth and paper; the modern: skin; and even the illegal: buildings and privately-owned property. However, today, the cultural value that artwork instills in its community has grown, regardless of its legal status. Examples can be found in artwork created by graffiti artist Banksy, or even the urban installations of Tyree Guyton, creator of the Heidelberg Project in Detroit. Artists create masterpieces placed in plain sight that enrich the surrounding communities but often interfere with others’ property rights. However, the illegal or encroaching nature of the artwork …

The Patent Medium: Toward A Network Paradigm Of The Patent Medium, Or Cohen-Sasson

Fordham Intellectual Property, Media and Entertainment Law Journal

The modern patent system is conceived of as an information platform; it is evident in the common description of the patent system as a quid-pro-quo bargain: Society grants exclusive rights in exchange for information published by a patentee. But is there more to the patent system than merely informing others? Does the patent system also serve as a communication (and not only information) platform, namely, as a medium? Based on an interdisciplinary analysis of the patent system’s structure and features through the lenses of communication studies, this Article suggests that it does. It demonstrates how the patent system—as a medium—enables …

Physiognomic Artificial Intelligence, Luke Stark, Jevan Hutson

Fordham Intellectual Property, Media and Entertainment Law Journal

The reanimation of the pseudosciences of physiognomy and phrenology at scale through computer vision and machine learning is a matter of urgent concern. This Article—which contributes to critical data studies, consumer protection law, biometric privacy law, and antidiscrimination law—endeavors to conceptualize and problematize physiognomic artificial intelligence (“AI”) and offer policy recommendations for state and federal lawmakers to forestall its proliferation.

Physiognomic AI, as this Article contends, is the practice of using computer software and related systems to infer or create hierarchies of an individual’s body composition, protected class status, perceived character, capabilities, and future social outcomes based on their physical …

The Legal Character And Practical Implementation Of A Trips Waiver For Covid-19 Vaccines, Andrew D. Mitchell, Antony Taubman, Theodore Samlidis

Fordham Intellectual Property, Media and Entertainment Law Journal

Almost two years after initial proposals for a COVID-19 waiver of TRIPS obligations, a Ministerial decision adopted at the 12th Ministerial Conference in June 2022 waived obligations under Article 31(f) and the System for pharmaceutical export under the TRIPS Annex, and clarified existing options under TRIPS for increasing access to COVID-19 vaccines. As support for a more expansive pandemic waiver continues and WTO waivers remain legitimate mechanisms under WTO law, further waivers may be contemplated as viable options to address obstacles identified in the current pandemic or future health crises. This article explores what additional options are or may be …

“Fair” In The Future? Long-Term Limitations Of The Supreme Court’S Use Of Incrementalism In Fair Use Jurisprudence, Jonathan Alexander Fisher

Fordham Intellectual Property, Media and Entertainment Law Journal

April 2021 marked the most recent instance of the Supreme Court discussing copyright law, and more specifically fair use, in Google LLC v. Oracle America, Inc. The April 2021 decision notably resolved the case solely on fair use grounds, avoiding a difficult question as to the copyrightability of computer code that generates software user interfaces. By resolving this specific case in this manner, the Supreme Court’s actions seemingly confirm a pattern among fair use cases in which rulings made “narrowly” on the unique factual predicate often produce unclear applications within the “broader” context of fair use. Given the flexible, judge-made …

Laws In Conversation: What The First Amendment Can Teach Us About Section 230, Haley Griffin

Fordham Intellectual Property, Media and Entertainment Law Journal

As the law surrounding regulation of online intermediaries developed, the First Amendment and Section 230 emerged as two central players. Though different bodies of law, their jurisprudence intersects at several points: both display procedural interactions, implicate free speech concerns, apply to intermediaries engaged in publisher and editorial behaviors, and consider good faith and scienter. However, despite these commonalities, discussion of the First Amendment and Section 230 has largely been siloed.

This Note places First Amendment and Section 230 jurisprudence in conversation with one another to determine which specific intermediary behaviors are addressed by each law. Although many cases discuss “traditional …

Based On A True Story: The Ever-Expanding Progeny Of Rogers V. Grimaldi, Zachary Shufro

Fordham Intellectual Property, Media and Entertainment Law Journal

Trademark law limits the extent and manner to which individuals can use a surprisingly large percentage of common words in the English language. Indeed, as one empirical study of trademark registrations revealed, “when we use our language, nearly three-quarters of the time we are using a word that someone has claimed as a trademark.” Because trademark law grants a negative right to the mark-holder—that is to say, a right to prevent others from using that trademarked word in certain manners and contexts—it inherently conflicts with the First Amendment. In assessing the resulting discord from such a conflict, courts have several …

Speak Out: Verifying And Unmasking Cryptocurrency User Identity, Hadar Y. Jabotinsky, Michal Lavi

Fordham Intellectual Property, Media and Entertainment Law Journal

Terror attacks pose a serious threat to public safety and national security. New technologies assist these attacks, magnify them, and render them deadlier. The more funding terrorist organizations manage to raise, the greater their capacity to recruit members, organize, and commit terror attacks. Since the September 11, 2001 terror attacks, law enforcement agencies have increased their efforts to develop more anti-terrorism and anti-money laundering regulations, which are designed to block the flow of financing of terrorism and cut off its oxygen. However, at present, most regulatory measures focus on traditional currencies. As these restrictions become more successful, the likelihood that …