Law Commons^™

Adequately Representing Groups, Elizabeth Chamblee Burch

Fordham Law Review

No abstract provided.

The Governance Problem In Aggregate Litigation, Samuel Issacharoff

Fordham Law Review

   Recent developments in class action law and scholarship have forced new attention on the question of how class representation should be assessed. This Article begins with an examination of the governance problem in class action analyzed from the perspective of the customary political theories that would justify legitimate government in public and private domains. Customary accounts of democratic legitimacy or contractual voluntarism poorly capture the distinct world of the one-time aggregation of a class under court-assigned leadership. What emerges is an assessment of how various class action doctrines serve to fill the void in customary indications of legitimacy in governance. …

You Must Be This Qualified To Offer An Opinion: Permitting Law Enforcement Officers To Testify As Laypersons Under Federal Rule Of Evidence 701, Kim Channick

Fordham Law Review

   Every day, in courtrooms across the United States, law enforcement officers testify in criminal and civil trials. Often an officer is certified as an expert witness and, accordingly, can provide opinions to the court based on his or her law enforcement expertise. Other times, the officer offers testimony as a layperson. In the latter situation, Federal Rule of Evidence 701 controls the officer’s lay opinion testimony. This Rule was first adopted to remedy a problematic common law practice of universally prohibiting lay opinion testimony. As the Rule stands now, all lay witnesses, including law enforcement officers, must limit their opinions …

Social Impact Bonds And The Private Benefit Doctrine: Will Participation Jeopardize A Nonprofit’S Tax-Exempt Status?, Peter G. Dagher Jr.

Fordham Law Review

   In August 2012, the first social impact bond in the United States was implemented, introducing a revolutionary framework that aligns the incentives of the participants and provides nonprofits with a steady source of long term funding to scale up social projects. In the prevailing social impact bond structure, private investors essentially place a bet with a government agency that the selected nonprofits will accomplish measureable goals through a comprehensive project designed to reduce public costs. If the program fails to reach these goals, the investors lose the bet and their entire financial commitment to the social impact bond. If the …

Employer Monitoring Of Employee Email: Attorney-Client Privilege Should Attach To Communications That The Client Believed Were Confidential, Alex Delisi

Fordham Law Review

   Emails feel like private, confidential communications. But in the workplace, employers often retain the right to monitor every communication sent or received by an employee on an employer-owned device or network. This Note addresses the issue of whether attorney-client privilege should attach to communications made between an employee and her private attorney over a system monitored by her employer. When addressing this issue, most district and state courts apply a test that seeks to determine the reasonableness of the employee’s expectation of confidentiality in the attorney-client communication. However, courts differ in how they apply the expectation of reasonableness test, with …

Foreword: Antitrust’S Pursuit Of Purpose, Barak Orbach

Fordham Law Review

No abstract provided.

Trusts And The Origins Of Antitrust Legislation, Wayne D. Collins

Fordham Law Review

   Between 1888 and 1890, thirteen states and the federal government enacted antitrust legislation criminalizing combinations among competitors intended to control prices in the marketplace. These laws were a reaction to the increasing formation of horizontal combinations, large and small, throughout the economy in the wake of dramatically changing economic conditions since the Civil War. Through most of this period, combinations struggled to find structures that would enable them to operate effectively. Simple combinations of independent firms, although neither criminal nor tortious, were often undermined because state common law refused to enforce the contractual arrangements that would prevent members from deviating …

The Goals Of Antitrust: Welfare Trumps Choice, Joshua D. Wright, Douglas H. Ginsburg

Fordham Law Review

No abstract provided.

Making Impossible Tax Reform Possible, Susannah Camic Tahk

Fordham Law Review

       The United States has long struggled to reform its federal income tax code. Despite enthusiastic and widespread bipartisan support for tax reform laws that would eliminate special–interest loopholes, the legislative process has been paralyzed when it comes to passing these laws. This Article proposes a solution to this seemingly intractable federal tax lawmaking paralysis. This paralysis arises because tax reform spreads its benefits among broad groups while concentrating its costs on narrow ones. Political science theory accurately predicts that laws with this cost–benefit allocation will fail. However, federal lawmakers can overcome tax lawmaking paralysis by distributing tax reform’s costs and …

A Web Of Liability: Does New Cyberbullying Legislation Put Public Schools In A Sticky Situation?, Matthew Fenn

Fordham Law Review

       Bullying has long been a concern for students, parents, and schools. However, the explosion of communication technology has transformed the nature of bullying, allowing “cyberbullies” to extend their reach far beyond the physical schoolyard. This development creates uncertainty for schools, legislatures, and courts in assessing when and where schools should be permitted to regulate student behavior.

       The growing number of tragic cyberbullying incidents, as well as national media coverage, has forced legislatures to take action. This has manifested itself in a number of different statutory forms and approaches. The most aggressive legislation appears to impose new duties on school districts …

The Fail-Safe Class As An Independent Bar To Class Certification, Erin L. Geller

Fordham Law Review

       In 2012, the Fifth Circuit became the first circuit court to explicitly reject an argument that a fail–safe class—a class defined in terms of the defendant’s liability—was barred from class certification under Federal Rule of Civil Procedure 23. Drawing on previous cases in which it had rejected challenges that class definitions were circular, the Fifth Circuit in In re Rodriguez outright disclaimed a prohibition against fail–safe classes. This decision diverged from the Sixth and Seventh Circuits’ proscription against certifying fail–safe classes, creating a split among the circuits.

       This Note explores this circuit split and argues that fail–safe classes must be …

Joe Camel Versus Uncle Sam: The Constitutionality Of Graphic Cigarette Warning Labels, B. Ashby Hardesty Jr.

Fordham Law Review

       According to the Surgeon General, tobacco use is the leading preventable cause of death in the United States. Smoking–related diseases kill 443,000 Americans each year, more than are killed by HIV, illegal drug use, alcohol use, motor vehicle injuries, suicides, and murders combined. To address this public health threat, Congress enacted the Family Smoking Prevention and Tobacco Control Act (TCA) in 2009, which gave the federal government unprecedented power to regulate the tobacco industry. Among its provisions, the TCA requires the U.S. Food and Drug Administration to select images that depict smoking’s deleterious effects and compels tobacco companies to display …

Creating A More Meaningful Detention Statute: Lessons Learned From Hedges V. Obama, Colby P. Horowitz

Fordham Law Review

       In 2004, the Supreme Court affirmed the President‘s power to indefinitely detain members of Al Qaeda and the Taliban. Nearly ten years later, however, the substantive parameters of executive detention remain unclear. Post–9/11 detention law has been largely shaped by the lower federal courts on a case–by–case basis as they evaluate habeas corpus petitions from detainees held at Guantanamo Bay. In 2012, as part of the National Defense Authorization Act (NDAA), Congress attempted, for the first time, to codify a substantive detention standard in section 1021. Instead of providing clarity, however, section 1021 contained ambiguous terms and created more confusion. …

Measuring A “Spiritual Stake”: How To Determine Injury-In-Fact In Challenges To Public Displays Of Religion, Ashley C. Robson

Fordham Law Review

        This Note analyzes the unique standing problem introduced by a particular set of Establishment Clause cases: those concerning nontaxpayer–based challenges to alleged “public displays” of religious symbols. This injury–in–fact problem arises due to the nature of the specific type of harm recognized by the U.S. Supreme Court in the context of religious displays: the public endorsement of religion. Due to this unusually subjective harm, it is unclear how the courts should evaluate this threshold injury–in–fact inquiry. This Note analyzes the legal conflict arising from the attempt to remain faithful to both the traditional injury–in–fact standing requirements and the endorsement test …

Institutional Design, Agency Life Cycle, And The Goals Of Competition Law, David A. Hyman, William E. Kovacic

Fordham Law Review

No abstract provided.

Against Goals, Eleanor M. Fox

Fordham Law Review

No abstract provided.

Economics And Politics: Perspectives On The Goals And Future Of Antitrust, Jonathan B. Baker

Fordham Law Review

       This Article examines the roles of economics and politics in U.S. antitrust from several perspectives. It explains why the modern debate over the economic welfare standard that enforcers and courts should pursue is unsatisfying. It connects economics with politics by describing antitrust’s economic goals as the product of a mid-twentieth century political understanding about the nature of economic regulation that continues to be accepted. To protect that understanding, it explains, antitrust rules should now be implemented using a qualified consumer welfare standard. It identifies contemporary political tensions that threaten to create regulatory gridlock or even to undermine that political understanding …

Reframing The (False?) Choice Between Purchaser Welfare And Total Welfare, Alan J. Meese

Fordham Law Review

       This Article critiques the role that the partial equilibrium trade–off paradigm plays in the debate over the definition of “consumer welfare” that courts should employ when developing and applying antitrust doctrine. The Article contends that common reliance on the paradigm distorts the debate between those who would equate “consumer welfare” with “total welfare” and those who equate consumer welfare with “purchaser welfare.” In particular, the model excludes, by fiat, the fact that new efficiencies free up resources that flow to other markets, increasing output and thus the welfare of purchasers in those markets. Moreover, the model also assumes that both …

How Antitrust Lost Its Goal, Barak Orbach

Fordham Law Review

   During the first seven decades following the enactment of the Sherman Act, competition was the uncontroversial goal of antitrust. The introduction of the consumer welfare standard led to the dissipation of “competition” as the goal of U.S. competition laws. This Essay explores how antitrust lost the goal of competition and argues that this goal should be restored. The Essay reevaluates several influential antitrust propositions. First, while “consumer welfare” was offered as a remedy for reconciling contradictions and inconsistencies in antitrust, the adoption of the consumer welfare standard sparked an enduring controversy, causing confusion and doctrinal uncertainty. In effect, the consumer …

A Traditional And Textualist Analysis Of The Goals Of Antitrust: Efficiency, Preventing Theft From Consumers, And Consumer Choice, Robert H. Lande

Fordham Law Review

   This Article ascertains the overall purpose of the antitrust statutes in two very different ways. First, it performs a traditional analysis of the legislative history of the antitrust laws by analyzing relevant legislative debates and committee reports. Second, it undertakes a textualist or “plain meaning” analysis of the purpose of the antitrust statutes, using Justice Scalia’s methodology. It does this by analyzing the meaning of key terms as they were used in contemporary dictionaries, legal treatises, common law cases, and the earliest U.S. antitrust cases, and it does this in light of the history of the relevant times.

   Both approaches …

The Essence Of Antitrust: Protecting Consumers And Small Suppliers From Anticompetitive Conduct, John B. Kirkwood

Fordham Law Review

   The goals of antitrust law continue to be debated because there is no single goal that is unambiguously correct. There is one goal, however, that now commands wider support than any other: protecting consumers and small suppliers from anticompetitive conduct—conduct that creates market power, transfers wealth from consumers or small suppliers, and fails to provide them with compensating benefits. This goal is the predominant objective in the legislative histories, it is broadly supported by the American people, it is easier to administer than a total welfare standard, and it is now espoused by the majority of courts.

   Proponents of total …

Implementing Antitrust’S Welfare Goals, Herbert Hovenkamp

Fordham Law Review

No abstract provided.

Welfare Standards In U.S. And E.U. Antitrust Enforcement , Roger D. Blair, D. Daniel Sokol

Fordham Law Review

   The potential goals of antitrust are numerous. Goals matter to antitrust. We believe that it is total welfare rather than consumer welfare that should drive antitrust analysis. We use this Article as an opportunity to explore both a comparative analysis of welfare standards across E.U. and U.S. competition systems and the impact of welfare standards on global antitrust systemwide welfare.

   In this Article, we analyze two types of situations in which there would be a different outcome based on the goal implemented. One scenario involves resale price maintenance (RPM). For RPM, we argue that even if there were a different …

Antitrust’S Democracy Deficit, Harry First, Spencer Weber Waller

Fordham Law Review

No abstract provided.

Should Competition Policy Promote Happiness?, Maurice E. Stucke

Fordham Law Review

    What, if anything, are the implications of the happiness economics literature on competition policy? This Article first examines whether competition policy should promote (or at least not impede) citizens’ opportunities to increase well–being. It next surveys the happiness literature on five key issues: (i) What constitutes well–being; (ii) How do you measure well–being; (iii) What increases well–being; (iv) Do people want to be happy; and (v) Can and should the government promote total well–being? Although the happiness literature does not provide an analytical framework for analyzing routine antitrust issues, this does not mean that competition officials should discount or ignore …

Merger Settlement And Enforcement Policy For Optimal Deterrence And Maximum Welfare, Steven C. Salop

Fordham Law Review

       Merger enforcement today relies on settlements more than litigation to resolve anticompetitive concerns. The impact of settlement policy on welfare and the proper goals of settlement policy are highly controversial. Some argue that gun–shy agencies settle for too little, while others argue that agencies use their power to delay to extract overreaching settlement terms, even when mergers are not welfare reducing. This Article uses decision theory to throw light on this controversy. The goal of this Article is to formulate and analyze agency merger enforcement and settlement commitment policies in the face of imperfect information, litigation costs, and delay risks …

A Substantive Right To Class Proceedings: The False Conflict Between The Faa And Nlra, Michael D. Schwartz

Fordham Law Review

       In recent decades, the U.S. Supreme Court’s Federal Arbitration Act jurisprudence has greatly expanded the scope of enforceable arbitration agreements. In AT&T Mobility LLC v. Concepcion, decided in 2011, the Court held that a class arbitration waiver in a consumer contract was enforceable, despite state law to the contrary. In January 2012, the National Labor Relations Board ruled that, despite the Court’s holding in Concepcion, class waivers in employment arbitration agreements are unenforceable due to employees’ right under the National Labor Relations Act to engage in concerted activity. However, nearly all federal and state courts that have subsequently …

Benefit Of The Doubt: Obstacles To Discovery In Claims Against Chinese Counterfeiters, Minning Yu

Fordham Law Review

       What is the proper method for U.S. litigants to obtain evidence located in a foreign country for trademark litigation in the United States? The Lanham Act authorizes trademark owners torecover profits made from the sale of goods that infringe on their trademarks. In order to account for and ultimately recover these profits, trademark owners need access to the infringers’ bank records. But access to such records can be a challenge when the infringers and their banks are located outside the United States.

       In recent years, several brand owners have instituted a series of trademark infringement lawsuits in the Southern District …

Editors’ Foreword, Editors

Fordham Law Review

No abstract provided.

Night Of The Living Dead Hand: The Individual Mandate And The Zombie Constitution, Gary Lawson

Fordham Law Review

No abstract provided.