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Fordham Law Review

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Full-Text Articles in Law

When Worlds Collide: Intellectual Property At The Interface Between Systems Of Knowledge Creation, Introduction, Katherine J. Strandburg, Brett M. Frischmann, Jay P. Kesan Jan 2009

When Worlds Collide: Intellectual Property At The Interface Between Systems Of Knowledge Creation, Introduction, Katherine J. Strandburg, Brett M. Frischmann, Jay P. Kesan

Fordham Law Review

No abstract provided.


Ethical Visions Of Copyright Law, James Grimmelmann Jan 2009

Ethical Visions Of Copyright Law, James Grimmelmann

Fordham Law Review

No abstract provided.


Notes On A Geography Of Knowledge, Michael J. Madison Jan 2009

Notes On A Geography Of Knowledge, Michael J. Madison

Fordham Law Review

No abstract provided.


Interface: The Push And Pull Of Patents, Peter Lee Jan 2009

Interface: The Push And Pull Of Patents, Peter Lee

Fordham Law Review

No abstract provided.


Marks Of Rectitude, Margaret Chon Jan 2009

Marks Of Rectitude, Margaret Chon

Fordham Law Review

No abstract provided.


The Regulation Of Creativity Under The Wipo Internet Treaties, Ruth L. Okediji Jan 2009

The Regulation Of Creativity Under The Wipo Internet Treaties, Ruth L. Okediji

Fordham Law Review

No abstract provided.


Keynote Address, Harmless Use: Gleaning From Fields Of Copyrighted Works, Wendy J. Gordon, Sonia Katyal Jan 2009

Keynote Address, Harmless Use: Gleaning From Fields Of Copyrighted Works, Wendy J. Gordon, Sonia Katyal

Fordham Law Review

No abstract provided.


For-Profit Philanthropy, Dana Brakman Reiser Jan 2009

For-Profit Philanthropy, Dana Brakman Reiser

Fordham Law Review

This Essay examines Google’s adoption of the novel and unorthodox for-profit philanthropy model. Google created a division of its for-profit company that is tasked with pursuing philanthropic activities. Specifically, this division is responsible for addressing the global issues of climate change, poverty, and emerging diseases. Of course, companies have long blended philanthropic and business objectives. They make contributions, commit to corporate social responsibility, or even form as social enterprises. For-profit philanthropy, though, differs from these familiar techniques in both structure and scale. Likewise, for-profit philanthropy stands in stark contrast to the nonprofit, tax-exempt form of organization typically used by those …


Unbundling Fair Uses, Pamela Samuelson Jan 2009

Unbundling Fair Uses, Pamela Samuelson

Fordham Law Review

The copyright fair use caselaw is more coherent and more predictable than many commentators seem to believe. Fair use cases tend to fall into common patterns, or what this Article calls policy-relevant clusters. The policies underlying modern fair use law include promoting freedom of speech and of expression, the ongoing progress of authorship, learning, access to information, truth telling or truth seeking, competition, technological innovation, and the privacy and autonomy interests of users. If one analyzes putative fair uses in light of cases previously decided in the same policy cluster, it is generally possible to predict whether a use is …


The Pros And Cons Of Politically Reversible "Semisubstantive" Constitutional Rules, Dan T. Coenen Jan 2009

The Pros And Cons Of Politically Reversible "Semisubstantive" Constitutional Rules, Dan T. Coenen

Fordham Law Review

Most observers of constitutional adjudication believe that it works in an all-or-nothing way. On this view, the substance of challenged rules is of decisive importance, so that political decision makers may resuscitate invalidated laws only by way of constitutional amendment. This conception of constitutional law is incomplete. In fact, courts often use so-called “semisubstantive” doctrines that focus on the processes that nonjudicial officials have used in adopting constitutionally problematic rules. When a court strikes down a rule by using a motive-centered or legislative-findings doctrine, for example, political decision makers may revive that very rule without need for a constitutional amendment. …


The Right Remedy For The Wrongly Convicted: Judicial Sanction For Destruction Of Dna Evidence, Cynthia E. Jones Jan 2009

The Right Remedy For The Wrongly Convicted: Judicial Sanction For Destruction Of Dna Evidence, Cynthia E. Jones

Fordham Law Review

Many state innocence protection statutes give courts the power to impose appropriate sanctions when biological evidence needed for postconviction DNA testing is wrongly destroyed by the government. Constitutional claims based on wrongful evidence destruction are governed by the virtually insurmountable “bad faith” standard articulated in Arizona v. Youngblood. The wrongful destruction of DNA evidence in contravention of state innocence protection laws, however, should be governed by the standards used to adjudicate other “access to evidence” violations in criminal cases, including disclosures mandated by the rules of criminal procedure, the Jencks Act, and Brady v. Maryland. Under the “access to evidence” …


Adding Insult To Injury? The Untoward Impact Of Requiring More Than De Minimus Injury In An Eighth Amendment Excessive Force Case, Robyn D. Hoffman Jan 2009

Adding Insult To Injury? The Untoward Impact Of Requiring More Than De Minimus Injury In An Eighth Amendment Excessive Force Case, Robyn D. Hoffman

Fordham Law Review

This Note explores the conflict over whether a prisoner must suffer more than de minimis injury to sustain an Eighth Amendment excessive force claim. It examines this conflict against the backdrop of the various standards the U.S. Supreme Court adopted in its Eighth Amendment prison conditions jurisprudence between 1976 and 1992, principally focusing on the 1992 Hudson v. McMillian decision. Moreover, this Note considers the intersection of “the evolving standards of decency,” the “hands-off doctrine,” and the Eighth Amendment injury requirement. Ultimately, this Note advocates that excessive force—when meted out as punishment—violates the Eighth Amendment’s prohibition on cruel and unusual …


Untying Our Hands: The Case For Uniform Personal Jurisdiction Over "Libel Tourists", Todd W. Moore Jan 2009

Untying Our Hands: The Case For Uniform Personal Jurisdiction Over "Libel Tourists", Todd W. Moore

Fordham Law Review

This Note analyzes the growing trend of “Libel Tourism,” wherein a plaintiff files a defamation lawsuit in a foreign forum primarily to avail himself of its plaintiff-friendly libel laws. Many critics of the practice argue that (1) such claims can effectively circumvent the First Amendment to the U.S. Constitution, and (2) U.S. courts should be able to adjudicate the enforceability of such foreign judgments in the United States. In light of recent legislative developments, this Note focuses with particularity on whether, and in what instances, U.S. courts may assert personal jurisdiction over libel tourists for the purpose of issuing such …


Hedges Or Thickets: Protecting Investors From Hedge Fund Managers' Conflicts Of Interest, Ryan Sklar Jan 2009

Hedges Or Thickets: Protecting Investors From Hedge Fund Managers' Conflicts Of Interest, Ryan Sklar

Fordham Law Review

This Note examines the conflicts of interest that hedge fund managers face and the negative effects that these conflicts can have on hedge fund investors. Taking a bifurcated approach, this Note analyzes the regulation of hedge funds at both the federal and state level, focusing specifically on the regulation of conflict transactions. With an emphasis on the retailization of the hedge fund industry, this Note demonstrates the inadequacy of the safeguards from such conflicts of interest that the law currently affords investors. Given the public interest in protecting the growing number of “ordinary” investors who indirectly invest in hedge funds, …


Third-Party Consent Searches After Randolph: The Circuit Split Over Police Removal Of An Objecting Tenant, Matthew W. J. Webb Jan 2009

Third-Party Consent Searches After Randolph: The Circuit Split Over Police Removal Of An Objecting Tenant, Matthew W. J. Webb

Fordham Law Review

In Georgia v. Randolph, the U.S. Supreme Court held that, where two occupants of a home disagree over whether to grant police permission to search, the “physically present co-occupant’s stated refusal to permit entry prevails.” Courts are now split, however, over whether police may nevertheless conduct a warrantless search with the consent of one resident after a co-occupant who expressly denies consent is arrested and removed by the police. This Note examines the rationales of those U.S. courts of appeals that have confronted these circumstances and ultimately concludes that the Supreme Court’s complicated—and sometimes contradictory—Fourth Amendment jurisprudence does not offer …


Best Evidence And The Wayback Machine: Toward A Workable Authentication Standard For Archived Internet Evidence, Deborah R. Eltgroth Jan 2009

Best Evidence And The Wayback Machine: Toward A Workable Authentication Standard For Archived Internet Evidence, Deborah R. Eltgroth

Fordham Law Review

This Note addresses the use of archived Internet content obtained via the Wayback Machine, a service provided by the Internet Archive that accesses the largest online digital collection of archived Web pages in the world. Given the dynamic nature of the World Wide Web, Internet content is constantly changed, amended, and removed. As a result, interim versions of Web pages have limited life spans. The Internet Archive indexes and stores Web pages to allow researchers to access discarded or since-altered versions. In the legal profession, archived Web pages have become an increasingly helpful form of proof. Intellectual property enforcers have …


What The Right Hand Gives: Prohibitive Interpretations Of The State Constitutional Right To Bail, Ariana Lindermayer Jan 2009

What The Right Hand Gives: Prohibitive Interpretations Of The State Constitutional Right To Bail, Ariana Lindermayer

Fordham Law Review

Most state constitutions include a right-to-bail provision, commonly phrased, “All persons shall be bailable by sufficient sureties except for [certain offenses] when the proof of guilt is evident or the presumption great.” This Note examines conflicting interpretations of the effect this provision has on the cases excluded from its guarantee—specifically, certain offenses when the proof is evident or presumption great. Some courts read this provision to be silent regarding the excepted cases, allowing the legislature and judiciary to decide whether to permit bail. Others reason that the plain language of this right to bail is prohibitive with respect to the …


Protections For Electronic Communications: The Stored Communications Act And The Fourth Amendment, Alexander Scolnik Jan 2009

Protections For Electronic Communications: The Stored Communications Act And The Fourth Amendment, Alexander Scolnik

Fordham Law Review

As e-mail and other forms of electronic communications began becoming widely used, Congress recognized the need to protect these new forms of communication from impermissible intrusion. Unsure whether the flexible approach to determining the extent of Fourth Amendment protections as announced in Katz v. United States would extend to electronic communications, Congress enacted the Electronic Communications Privacy Act (ECPA) to ensure a baseline level of protection. This Note argues that the Fourth Amendment does extend to electronic communications and, therefore, the provisions of the ECPA that allow the government to access certain electronic communications without a search warrant are unconstitutional.


A Close Look At Adea Mixed-Motives Claims And Gross V. Fbl Financial Services, Inc., Leigh A. Van Ostrand Jan 2009

A Close Look At Adea Mixed-Motives Claims And Gross V. Fbl Financial Services, Inc., Leigh A. Van Ostrand

Fordham Law Review

In Gross v. FBL Financial Services, Inc., the U.S. Supreme Court held that a plaintiff bringing a claim for disparate treatment under the Age Discrimination in Employment Act (ADEA) could not shift the burden of persuasion to the defendant, even after the plaintiff had established that age was a motivating factor in the defendant’s adverse employment decision. Prior to Gross, ADEA plaintiffs had two available frameworks to prove claims for intentional age discrimination: the three-prong McDonnell Douglas Corp. v. Green framework that creates an inference of discrimination using a prima facie case, and the burden-shifting, “mixed-motives” analysis laid out in …


An Analysis Of The Judicial Panel On Multidistrict Litigation's Selection Of Transferee District And Judge, Daniel A. Richards Jan 2009

An Analysis Of The Judicial Panel On Multidistrict Litigation's Selection Of Transferee District And Judge, Daniel A. Richards

Fordham Law Review

When civil cases involving one or more common questions of fact are pending in multiple district courts, 28 U.S.C. § 1407 empowers the Judicial Panel on Multidistrict Litigation (JPML) to centralize the cases in a single district court for pretrial proceedings. If the JPML chooses to centralize a multidistrict action, it possesses broad discretion to select a transferee district and judge. While many litigants believe that the selection of one transferee district or judge over another can significantly impact the outcome of the litigation, they often describe the JPML’s rationale supporting selection as opaque and the resulting selection decision as …


The Robert L. Levine Distinguished Lecture, Deepening The Legal Profession's Pro Bono Commitment To The Immigrant Poor Jan 2009

The Robert L. Levine Distinguished Lecture, Deepening The Legal Profession's Pro Bono Commitment To The Immigrant Poor

Fordham Law Review

No abstract provided.


The Representational And Counseling Needs Of The Immigrant Poor, Jennifer L. Colyer, Sarah French Russell, Robert E. Juceam, Lewis J. Liman Jan 2009

The Representational And Counseling Needs Of The Immigrant Poor, Jennifer L. Colyer, Sarah French Russell, Robert E. Juceam, Lewis J. Liman

Fordham Law Review

No abstract provided.


The Immigration Representation Project: Meeting The Critical Needs Of Low-Wage And Indigent New Yorkers Facing Removal, Joho Annobil Jan 2009

The Immigration Representation Project: Meeting The Critical Needs Of Low-Wage And Indigent New Yorkers Facing Removal, Joho Annobil

Fordham Law Review

No abstract provided.


A View From The Immigration Bench, Noel Brennan Jan 2009

A View From The Immigration Bench, Noel Brennan

Fordham Law Review

No abstract provided.


Disclosure, Deception, And Deep-Packet Inspection: The Role Of The Federal Trade Commission Act's Deceptive Conduct Prohibitions In The Net Neutrality Debate, Catherine J. K. Sandoval Jan 2009

Disclosure, Deception, And Deep-Packet Inspection: The Role Of The Federal Trade Commission Act's Deceptive Conduct Prohibitions In The Net Neutrality Debate, Catherine J. K. Sandoval

Fordham Law Review

This article examines a largely unexplored fronteir in the "Net Neutrality" debate: the Federal Trade Commisiion (FTC) Act's proscriptions against deceptive conduct as a legal limit on Internet Service Provider (ISP) discrimination against Internet traffic. ISP discrimination against certain types of Internet traffic has blossomed since 2005 when the Federal Communications COmmission (FCC), with the Supreme Court's blessings in NCTA v. Brand X and FCC, relieved ISP's from common carrier regulations that prohibited discrimination and reclassified ISPs as "information service providers." This Artcile argues taht the Internet's architecture and codes presumed common carriage, indicating that the Internet's design and industry …


The Dog That Didn't Bark: Stealth Procedures And The Erosion Of Stare Decisis In The Federal Courts Of Appeal, Amy E. Sloan Jan 2009

The Dog That Didn't Bark: Stealth Procedures And The Erosion Of Stare Decisis In The Federal Courts Of Appeal, Amy E. Sloan

Fordham Law Review

Informal en banc review is a procedural expedient that nine of the the thirteen federal circuits use to circumvent the requirements of formal en banc review. Panels invoke informal en banc review to overrule prior panel precdent in contravention of the law of the circuit rule, as well as to take other actions normally reserved for the full court sitting en banc. The circuits taht use informal en banc review say the procedure is to be used rarely. In practice, however, the frequency of informal in banc review is significant when compared with formal en banc review. Informal en banc …


Where Were The Accountants? Deepening Insolvency As A Means Of Ensuring Accountants' Presence When Corporate Turmoil Materializes, Lauren Colasacco Jan 2009

Where Were The Accountants? Deepening Insolvency As A Means Of Ensuring Accountants' Presence When Corporate Turmoil Materializes, Lauren Colasacco

Fordham Law Review

Managerial fraud and corporate mismanagement are pervasive in today's economic climate. Previously healthy coporation find themselves in economic turmoil and even in the throes of bankruptcy. Oftentimes these corporate failures can be prevented through responsible management and proper gatekeeping. Accountants, as vital intermediaries between corporations and the parties they do business with, ensure the credibility of corporate financial statements. This gatekeeping function cannot be underestimated. Accountants have the power to prevent corporation from taking on unnecessary debt via misstatements of corporate financial health. This Note proposes that the tort of deepening insolvency is a method of ensuring that accountants, by …


Some Thoughts About The Economics Of Settlement, John Bronsteen Jan 2009

Some Thoughts About The Economics Of Settlement, John Bronsteen

Fordham Law Review

No abstract provided.


Revisiting Against Settlement: Some Reflections On Dispute Resolution And Public Values, Amy J. Cohen Jan 2009

Revisiting Against Settlement: Some Reflections On Dispute Resolution And Public Values, Amy J. Cohen

Fordham Law Review

Critics of Owen Fiss’s famous 1984 Against Settlement widely assumed that he indicted alternative dispute resolution (ADR) as intrinsically incapable of promoting public values. This essay, however, suggests that Fiss offered a socially and historically contingent prediction about ADR’s potential to undermine popular commitments to redistributive justice during a period of intense economic liberalization in the United States. To support this rereading, the essay considers how Fiss envisioned the promotion of public values in a different space and time—specifically in international contexts at the turn of this century. Here, he endorsed decentralized, deliberative, and extrajudicial processes, even if he did …


The Public Value Of Settlement, Samuel Issacharoff, Robert H. Klonoff Jan 2009

The Public Value Of Settlement, Samuel Issacharoff, Robert H. Klonoff

Fordham Law Review

No abstract provided.