Law Commons^™

Beyond Standard Legal Positivism And "Aggressive" Natural Law: Some Thoughts On Judge O'Scannlain's "Third Way", Michael Baur

Fordham Law Review

No abstract provided.

The Natural Law In The American Tradition , Hon. Diarmuid F. O'Scannlain

Fordham Law Review

No abstract provided.

Fraud Created The Market: Presuming Reliance In Rule 10(B)-5 Primary Securities Market Fraud Litigation , Matt Silverman

Fordham Law Review

This Note addresses the circuit split regarding the “fraud created the market” presumption of reliance in Rule 10b-5 securities fraud cases. Fraud created the market was first adopted by the U.S. Court of Appeals for the Fifth Circuit in Shores v. Sklar, and applies in cases where a defendant has engaged in a “scheme to defraud” the investing public in the primary securities market. This Note first discusses Congress’s intent behind relevant securities laws, the effect presuming reliance has on the class certification process, and how the presumption of reliance has been applied in Rule 10b-5 actions by the U.S. …

Pulling The Trigger On Public Campaign Finance: The Contextual Approach To Analyzing Trigger Funds , George Lobiondo

Fordham Law Review

The unpredictable nature of electoral politics makes it difficult for public campaign financing programs to be both efficient and effective. Programs that award too much money to publicly funded candidates risk insolvency, while miserly systems cannot attract participants. Moreover, the competitiveness of any given race changes with each election cycle—what was a landslide one year might be the closest of contests next November. Several states have tried to address this dilemma by enacting “trigger” provisions that disburse extra money to publicly funded candidates only after their opponents raise or spend beyond a certain amount. These laws have faced legal challenges …

Keeping Up With Officer Jones: A Comprehensive Look At The Fourth Amendment And Gps Surveillance , Kaitlyn A. Kerrane

Fordham Law Review

Each day, individuals use technological devices to make their lives easier. One such device is the Global Positioning System (GPS), which has increasingly gained popularity in recent years. Police use of GPS in robbery, drug, murder and other investigations has also increased. Several high profile cases have brought the law enforcement uses of GPS into the public eye and elicited a public response. Warrantless installation and monitoring of these devices for up to months at a time have been challenged as unreasonable Fourth Amendment searches. The U.S. Supreme Court has not decided on the constitutional issues raised by police GPS …

The Need For Non-Discretionary Interlocutory Appellate Review In Multidistrict Litigation , Andrew S. Pollis

Fordham Law Review

Multidistrict Litigation (MDL) is a tool for managing complex litigation by transferring cases with common questions of fact to a single judge for coordinated pretrial proceedings. The subject matter of the cases can run the gamut from airplane crashes to securities fraud to environmental disasters, such as the recent BP oil spill in the Gulf of Mexico. Today, about a third of all pending civil cases in federal court are part of the MDL system. A single judge renders all the important legal decisions in each MDL, exerting outsized impact on the parties and on the evolution of the law—and …

Mortgage Modification, Equitable Subordination, And The Honest But Unfortunate Creditor, Juliet M. Moringiello

Fordham Law Review

Mortgage foreclosures are at an all-time high and property values in many parts of the country have declined precipitously. Yet bankruptcy, which is often a last resort for individuals in financial distress, provides little relief to a homeowner who finds that her mortgage debt exceeds the value of her home. The reason for bankruptcy’s inadequacy in this regard is the Bankruptcy Code’s prohibition on the modification of home mortgages, a prohibition that became part of bankruptcy law in 1978 when most home mortgage loans were thirty-year fixed rate loans made by savings and loan associations. While most secured loans can …

Alien Language: Immigration Metaphors And The Jurisprudence Of Otherness , Keith Cunningham-Parmeter

Fordham Law Review

Metaphors tell the story of immigration law. Throughout its immigration jurisprudence, the U.S. Supreme Court has employed rich metaphoric language to describe immigrants attacking nations and aliens flooding communities. This Article applies research in cognitive linguistics to critically evaluate the metaphoric construction of immigrants in the law. Three conceptual metaphors dominate legal texts: immigrants are aliens, immigration is a flood, and immigration is an invasion. In order to gauge the prevalence of these metaphors, the Article engages in a textual analysis of modern Supreme Court opinions and presents original empirical data on the incidence of alienage terminology in federal court …

The Scales Of Justice: Former Clerks Weigh In, Owen Glist

Fordham Law Review

No abstract provided.

Justice Through Pragmatism And Process: A Tribute To Judge Denny Chin, Frank H. Wu

Fordham Law Review

No abstract provided.

Judge Denny Chin: A Student Of The Law, John D. Feerick

Fordham Law Review

No abstract provided.

Listening To Victims , Jayne W. Barnard

Fordham Law Review

No abstract provided.

Vol. 41, No. 10 (November 7, 2011)

Indiana Law Annotated

No abstract provided.

Checking The Staats: How Long Is Too Long To Give Adequate Public Notice In Broadening Reissue Patent Applications?, David M. Longo Ph.D., Ryan P. O’Quinn Ph.D.

Duke Law & Technology Review

A classic property rights question looms large in the field of patent law: where do the rights of inventors end and the rights of the public begin? The right of inventors to modify the scope of their claimed inventions, even after the patent issues, is in direct tension with the concepts of public notice and the public domain. The Patent Act currently permits broadening of claims so long as a reissue application demonstrating intent to broaden is filed within two years of the original patent issue. Over the years, however, this relatively straightforward statutory provision has sparked numerous disputes over …

November 5, 2011: What Is The Origin Of The Separation Of Church And State?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What is the Origin of the Separation of Church and State?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Advising Clients After Critical Legal Studies And The Torture Memos, Milan Markovic

Faculty Scholarship

One of the most fundamental tasks attorneys perform is to advise clients as to what the law is. Yet, Model Rule 2.1 (“Rule 2.1”), the chief ethical rule addressing attorneys qua advisors, is rarely enforced in the absence of other ethical violations. Although attorneys comply with the ethical rules for reasons apart from a fear of being sanctioned, it is often against the self-interest of attorneys to “exercise independent professional judgment and render candid advice” as contemplated by Rule 2.1. When attorneys calculate that their legal advice is unlikely to be challenged, they may be prone to advance tendentious legal …

A Social Justice Perspective On The Role Of Copyright In Realizing International Human Rights, Steven D. Jamar

McGeorge School of Law Global Center for Business and Development Annual Symposium

Moderator: Michael Mireles, Associate Professor of Law, University of the Pacific, McGeorge School of Law

This panel will examine the impact of human rights norms on substantive intellectual property law. The focus of the panel is whether intellectual property law is adequately flexible to provide access to knowledge, in the form of primary and secondary materials as well as scientific materials, access to medicines, and access to food, such as seeds. The panel will further explore whether any flexibilities incorporated into intellectual property law harm the incentives provided by that law, including an analysis of parallel importation.

Indian Patent Law And Trips: Redrawing The Flexibility Framework In The Context Of Public Policy And Health, V. K. Unni

McGeorge School of Law Global Center for Business and Development Annual Symposium

Moderator: Michael Mireles, Associate Professor of Law, University of the Pacific, McGeorge School of Law

This panel will examine the impact of human rights norms on substantive intellectual property law. The focus of the panel is whether intellectual property law is adequately flexible to provide access to knowledge, in the form of primary and secondary materials as well as scientific materials, access to medicines, and access to food, such as seeds. The panel will further explore whether any flexibilities incorporated into intellectual property law harm the incentives provided by that law, including an analysis of parallel importation.

Get The Balance Right!: Squaring Access With Patent Protection, Kristen Jakobsen Osenga

McGeorge School of Law Global Center for Business and Development Annual Symposium

Moderator: Michael Mireles, Associate Professor of Law, University of the Pacific, McGeorge School of Law

This panel will examine the impact of human rights norms on substantive intellectual property law. The focus of the panel is whether intellectual property law is adequately flexible to provide access to knowledge, in the form of primary and secondary materials as well as scientific materials, access to medicines, and access to food, such as seeds. The panel will further explore whether any flexibilities incorporated into intellectual property law harm the incentives provided by that law, including an analysis of parallel importation.

Interpretation Of Human Rights For The Protection Of The Environment In The European Court Of Human Rights, Svitlana Kravchenko, John E. Bonine

McGeorge School of Law Global Center for Business and Development Annual Symposium

Moderator: Rachael Salcido, Professor of Law, University of the Pacific, McGeorge School of Law

The Stockholm Declaration, adopted at the 1972 United Nations Conference on the Human Environment, explicitly recognized the link between human rights and protection of the environment, proclaiming that “Both aspects of man’s environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights—even the right to life itself.” More recent international developments point to the potential utility of using human rights norms as a catalyst for actions to protect the environment at the state level. Indeed, many countries …

Holland V. Florida: A Prisoner’S Last Chance, Attorney Error, And The Antiterrorism And Effective Death Penalty Act’S One-Year Statute Of Limitations Period For Federal Habeas Corpus Review, Marni Von Wilpert

Fordham Law Review

No abstract provided.

Promoting Residential Integration Through The Fair Housing Act: Are Qui Tam Actions A Viable Method Of Enforcing “Affirmatively Furthering Fair Housing” Violations?, Matthew J. Termine

Fordham Law Review

No abstract provided.

The Possibility Of Transfer(?): A Comprehensive Approach To The International Criminal Tribunal For Rwanda’S Rule 11bis To Permit Transfer To Rwandan Domestic Courts, Jesse Melman

Fordham Law Review

No abstract provided.

Toward A Functional Alternative To Courtroom Adjudication: The Federal Arbitration Act And Third Party Document Discovery, Sara Rosenberg

Fordham Law Review

No abstract provided.

Federal Rule Of Evidence 804(B)(1)’S “Similar Motive” Test And The Admissibility Of Grand Jury Testimony Against The Government, Brandon Berkowski

Fordham Law Review

No abstract provided.

A Contractual Approach To Shareholder Oppression Law, Benjamin Means

Fordham Law Review

No abstract provided.

Cftc V. Gibraltar Monetary Corp. And Vicarious Liability Under The Commodity Exchange Act, Jason E. Friedman

Fordham Law Review

This Comment analyzes CFTC v. Gibraltar Monetary Corp., a 2009 decision in which the U.S. Court of Appeals for the Eleventh Circuit introduced a control requirement into the Commodity Exchange Act's vicarious liability provision. In so doing, the court rejected the U.S. Commodity Futures Trading Commission's long-held totality of the circumstances approach, in which any one factor, including control, is not dispositive of an agency relationship. This decision has created an undesirable situation in which retail foreign exchange dealers and futures commission merchants need not investigate the character of their introducing entities before retaining them, allowing them to easily avoid …

The Lawyer's “Prisoner's Dilemma”: Duty And Self-Defense In Postconviction Ineffectiveness Claims, Jenna C. Newmark

Fordham Law Review

Many criminal defendants who face significant sentences and are unsuccessful on appeal petition for collateral habeas corpus relief. One common ground for postconviction relief is that defense counsel was unconstitutionally ineffective before, during, or after trial. This presents an ethical dilemma for those defense attorneys who have withdrawn from representation and are accused of being ineffective. Should an accused lawyer disclose confidential client information to the prosecution in self- defense against these claims? Or should the lawyer, even in the face of attacks on his work, help his former client in substantiating ineffectiveness claims? Lawyers and courts must balance the …

How The Establishment Clause Can Influence Substantive Due Process: Adultery Bans After Lawrence, Andrew D. Cohen

Fordham Law Review

Criminal adultery bans, despite widespread transgression and lax enforcement, remain on the books in a substantial minority of states. The landmark Lawrence v. Texas decision casts doubt on all state interference with consensual sexual activity among adults, including adultery bans. Additionally, adultery bans on their face implicate the Establishment Clause, due to adultery bans' and marriage's roots in religious doctrine and religiosity. This Note examines the constitutionality of adultery bans after Lawrence v. Texas, and proposes a novel approach to substantive due process analysis that applies Establishment Clause values. In proposing what this Note dubs the "Establishment Clause prism," through …

Just A Soul Whose Intentions Are Good? The Relevance Of A Defendant's Subjective Intent In Defining A “Destructive Device” Under The National Firearms Act

Fordham Law Review

This Note addresses the three-way circuit split among the U.S. Courts of Appeals over when, and to what extent, a court may consider a defendant's subjective intent in defining a "destructive device" under the National Firearms Act. The circuit split centers on the Act's ambiguous reference to intent in its definition of a destructive device, which is a statutorily prohibited firearm. After discussing the Act's legislative history and development, this Note considers the role of mens rea in National Firearms Act cases. It next addresses the disagreement among the Courts of Appeals, first detailing three cases that give rise to …