Law Commons^™

The Politics Of Obamacare: Health Care, Money, And Ideology, Richard Kirsch

Fordham Law Review

No abstract provided.

Contract And Conditional Zoning Without Romance: A Public Choice Analysis, Philip L. Fraietta

Fordham Law Review

   The growth and development of the United States after World War II left the country needing more flexibility in zoning law. Over the past few decades, zoning has undergone drastic changes to make the process more flexible. Two methods used to meet this new demand are contract and conditional zoning. Jurisdictions are split on whether to permit contract zoning, conditional zoning, both, or neither. This is an important question that a growing number of jurisdictions have recently encountered. This Note seeks to propose potential solutions to the conflict by analyzing it through public choice theory. By applying the principles of …

Code-Ifying Copyright: An Architectural Solution To Digitally Expanding The First Sale Doctrine, Evan Hess

Fordham Law Review

   As the internet blossomed into ubiquity, piracy mushroomed with it. To control the threat, Congress passed the Digital Millennium Copyright Act (DMCA). The DMCA created a number of safeguards for copyright holders. But the DMCA purposely ignored whether copyright holders could restrict future transfers of their legally purchased work—a concept known in physical property as the “first sale doctrine.” As a result, copyright holders began using licenses to control future transfers of their digital property.

   This was not the first time copyright holders have attempted to gain greater control over their work. The history of copyright law demonstrates a pattern …

Taking Back What’S Theirs: The Recess Appointments Clause, Pro Forma Sessions, And A Political Tug-Of-War, Alexander M. Wolf

Fordham Law Review

   This Note surveys the current landscape of the Recess Appointments Clause. With the recent recess appointments of Richard Cordray to direct the Consumer Financial Protection Bureau (CFPB) and three other individuals to join the National Labor Relations Board (NLRB), came an influx of old—and new—controversy over the President’s recess appointment authority. This Note explores interpretational issues that have surrounded the Clause since its inception, as well as novel issues that have arisen with the Congress’s use of pro forma sessions in an attempt to block recess appointments and derail the executive’s agenda. The conflict over control of the appointments process …

Model Draft Of A Rule 502(D) Order, Symposium Participants

Fordham Law Review

No abstract provided.

Enter The Order, Protect The Privilege: Considerations For Courts Entering Protective Orders Under Federal Rule Of Evidence 502(D), Edwin M. Buffmire

Fordham Law Review

No abstract provided.

The Rulemakers’ Laments, Richard Marcus

Fordham Law Review

No abstract provided.

Is It Safe? The Need For State Ethical Rules To Keep Pace With Technological Advances, Ann M. Murphy

Fordham Law Review

No abstract provided.

Making Horses Drink: Conceptual Change Theory And Federal Rule Of Evidence 502, Liesa L. Richter

Fordham Law Review

No abstract provided.

The Presumption Of Constitutionality And The Individual Mandate, Gillian E. Metzger, Trevor W. Morrison

Fordham Law Review

No abstract provided.

Federalism From Federal Statutes: Health Reform, Medicaid, And The Old-Fashioned Federalists’ Gamble, Abbe R. Gluck

Fordham Law Review

No abstract provided.

The Paradox Of Counterterrorism Sunset Provisions, Emily Berman

Fordham Law Review

   Since 9/11, legislators and commentators alike have hailed expiration dates—or “sunset provisions”—as a means to moderate the government’s tendency to curtail individual freedoms in response to security crises. Sunsets advocates explain that such provisions provide Congress with an opportunity to reevaluate counterterrorism legislation after the crisis atmosphere has passed, enabling legislators to adjust any policy whose infringement on civil liberties appears, in retrospect, unjustified by its benefits.

   This Article demonstrates that, rather than guarding against the longterm entrenchment of overly robust security measures, sunsets have the opposite effect. The Article begins by illustrating that Congress’s high expectations for counterterrorism sunsets …

Warning: Shifting Liability To Manufacturers Of Brand-Name Medicines When The Harm Was Allegedly Caused By Generic Drugs Has Severe Side Effects, Victor E. Schwartz, Phil Goldberg, Cary Silverman

Fordham Law Review

   Can a product manufacturer be subject to liability for a competitor’s product? American tort law has always said, “No.” It does not matter if the products are identical. Companies are not to be their competitors’ keepers.

   Nevertheless, over the past few years, three courts have overturned this fundamental of tort law, holding that a manufacturer of a brand-name prescription drug can be subject to liability even when a plaintiff alleges that he or she was harmed by a generic drug made by the brand-name manufacturer’s competitor. Most courts, including four federal courts of appeal and dozens of federal district and …

Avoiding Double Recovery: Assessing Liquidated Damages In Private Wage And Hour Actions Under The Fair Labor Standards Act And The New York Labor Law, Alexander J. Callen

Fordham Law Review

   Wage and hour cases are common in New York, yet courts calculate damages inconsistently when plaintiffs pursue their unpaid wages under both federal and state law. Overlapping provisions of the Fair Labor Standards Act and the New York Labor Law both authorize private actions for the recovery of certain unpaid wages, and each also provides an additional 100 percent of the unpaid wages as liquidated damages unless the employer establishes a good-faith defense. Given these similarities, New York wage and hour cases regularly flirt with the double recovery doctrine, which prevents plaintiffs from receiving duplicative awards.

   Historically, courts in the …

Let The Punishment Fit The Crime: Sanctioning Absent Class Members For Failure To Respond To Postcertification Discovery Requests, Elizabeth A. Kalenik

Fordham Law Review

   Courts rarely allow defendants to take discovery of absent class members after class action certification. However, if a court does permit such discovery and some absentees fail to respond, should the court sanction the nonresponsive absentees? Under what circumstances should the court dismiss the nonresponsive absentees? When considering whether and what sanctions to impose, courts make a decision about the rights and role of absentees in class actions.

   This Note examines postcertification absentee discovery sanctions through a discussion of group litigation. Next, it analyzes the reasoning of courts that have dismissed absentees, declined to dismiss absentees, and imposed other sanctions …

Rule 10b-5(B) Enforcement Actions In Light Of Janus: Making The Case For Agency Deference, Matthew P. Wynne

Fordham Law Review

   This Note addresses whether the Supreme Court’s recent decision in Janus Capital Group, Inc. v. First Derivative Traders applies to the Securities and Exchange Commission (SEC), and, if not, whether the SEC’s own interpretation of Rule 10b-5 should be entitled to deference in future SEC enforcement actions. Since its promulgation in 1942, Rule 10b-5 has been the subject of much debate, particularly regarding the scope of the private right of action that courts have interpreted the rule to imply. Having acknowledged that an implied right exists, the Supreme Court quickly began to limit Rule 10b-5 claims of private plaintiffs, citing …

Panel Discussion: Reinvigorating Rule 502, Panel Discussion

Fordham Law Review

No abstract provided.

Evidence Rule 502: The Solution To The Privilege-Protection Puzzle In The Digital Era, John M. Barkett

Fordham Law Review

No abstract provided.

Foreword, Howard M. Erichson, Benjamin C. Zipursky

Fordham Law Review

No abstract provided.

Bankrupt Estoppel: The Case For A Uniform Doctrine Of Judicial Estoppel As Applied Against Former Bankruptcy Debtors, Eric Hilmo

Fordham Law Review

   This Note examines the role judicial estoppel plays in supporting the U.S. federal bankruptcy regime. Though once considered an obscure doctrine, the use of judicial estoppel to bar pursuit of previously undisclosed claims by former bankrupts has grown apace with burgeoning bankruptcy filings over the last decade. While the doctrine’s application in federal courts has evolved toward a common standard of application, state courts’ application remains idiosyncratic. The Note argues that under the established laws of judgment recognition and in light of federal courts’ sophisticated application of the doctrine, state courts should apply federal judicial estoppel standards to further national …

Valuing Privacy, Youngjae Lee

Fordham Law Review

No abstract provided.

A Conversation With Justice Sandra Day O’Connor And Judge Judith S. Kaye, Hon. Sandra Day O'Connor, Hon. Judith S. Kaye

Fordham Law Review

No abstract provided.

Instructing Juries On Noneconomic Contract Damages, David A. Hoffman, Alexander S. Radus

Fordham Law Review

   Gathering pattern contract jury instructions from every state, we examine jurisdictions’ treatment of noneconomic damages. While the conventional account holds that there is a uniform preference against awards of noneconomic damages, we find four different approaches in pattern instructions, with only one state explicitly prohibiting juries from considering noneconomic losses. Lay juries have considerably more freedom to award the promisee’s noneconomic damages than the hornbooks would have us believe.

   We substantiate this claim with an online survey experiment asking respondents about a simple contract case and instructing them using the differing pattern forms. We found that subjects routinely awarded more …

Disfavored Constitution, Passive Virtues? Linking State Constitutional Fiscal Limitations And Permissive Taxpayer Standing Doctrines, Joshua G. Urquhart

Fordham Law Review

   This Article contrasts the permissive state taxpayer standing doctrines in place in most states with the restrictive federal and state taxpayer standing rules applied in federal court. It proposes a new theory to explain this disparity, arguing that ubiquitous state constitutional fiscal restrictions, which specifically limit a state government’s ability to tax, spend, and borrow, are a primary impetus in the creation and development of liberal state taxpayer standing doctrines. The Article evaluates this novel hypothesis through an empirical-historical survey of the early state taxpayer standing decisions in every permissive jurisdiction and finds that these provisions are indeed involved in …

Conflict Minerals Legislation: The Sec’S New Role As Diplomatic And Humanitarian Watchdog, Karen E. Woody

Fordham Law Review

   Buried in the voluminous Dodd-Frank Wall Street Reform and Consumer Protection Act is an oft-overlooked provision requiring corporate disclosure of the use of “conflict minerals” in products manufactured by issuing corporations. This Article scrutinizes the legislative history and lobbying efforts behind the conflict minerals provision to establish that, unlike the majority of the bill, its goals are moral and political, rather than financial. Analyzing the history of disclosure requirements, the Article suggests that the presence of conflict minerals in an issuer’s product is not inherently material information and that the Dodd-Frank provision statutorily renders nonmaterial information material. The provision, therefore, …

Functionalism’S Military Necessity Problem: Extraterritorial Habeas Corpus, Justice Kennedy, Boumediene V. Bush, And Al Maqaleh V. Gates, Richard Nicholson

Fordham Law Review

   The U.S. Supreme Court has struggled over the last 150 years to definitively answer the question of whether the U.S. Constitution applies beyond the borders of the territorial United States. Because the Constitution is silent on the issue, the burden has fallen on the judiciary to establish the contours of the doctrine. At times, the Court has espoused formulistic theories limiting constitutional application to territorial sovereignty, while at others it has looked to more objective, practical solutions that reach beyond the borders.

   In 2008, the Supreme Court held in Boumediene v. Bush that the application of the Suspension Clause of …

Determining Diversity Jurisdiction Of National Banks After Wachovia Bank V. Schmidt, Michael Podolsky

Fordham Law Review

   Prior to the U.S. Supreme Court’s decision in Wachovia Bank v. Schmidt, some courts held, for diversity jurisdiction purposes, that national banks were citizens of each and every state in which they had a branch. In Schmidt, the Supreme Court made it clear that this approach was incorrect, but failed to provide an alternative one. Not surprisingly, in the wake of that decision another court split developed. While some courts have found that national banks are citizens only of the state listed on their charters as their main office, others have found that national banks are also citizens …

Unearthing The Public Interest: Recognizing Intrastate Economic Protectionism As A Legitimate State Interest, Katharine M. Rudish

Fordham Law Review

   In Oklahoma, a person must complete sixty-credit hours of undergraduate training and embalm twenty-five bodies before being legally licensed to sell caskets in the state. In Louisiana, in order to sell caskets, one must operate a fully licensed funeral establishment, defined as a place dedicated to preparing bodies for burial. In recent years, these states and others have faced legal challenges to casket sale restrictions by individuals who wish to sell caskets directly to the public, yet who are unable to do so as they are not licensed funeral directors. Courts have grappled with whether these state regulations, which in …

Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen

Fordham Law Review

   In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in a …

A Pillar Of Democracy: Reflections On The Role And Work Of The Constitutional Court Of South Africa, Kate O’Regan

Fordham Law Review

No abstract provided.