Law Commons^™

Reconciling Ripley And Joye: A Fact-Sensitive Analysis Of Petition-Year And Pre-Petition-Year Income Tax Claims In Chapter 13 Bankruptcies, Janicelynn J. Asamoto

Fordham Law Review

Parties to a chapter 13 bankruptcy often contest the status and dischargeability of income tax claims, especially when proofs of claim for these taxes are filed late. Prepetition claims that are filed late may be discharged once the debtor successfully completes a chapter 13 repayment plan. Taxing authorities, however, often allege that these liabilities represent nondischargeable postpetition claims that have "become payable" after the bankruptcy petition was filed. Courts have resolved this issue in conflicting ways: while some have found that taxes "become payable" at the end of the taxable year, most have ruled that the tax return's due date …

The Unforeseen Costs Of Going To Trial: The Vitality Of 212(C) Relief For Lawful Permanent Residents Convicted By Trial, Mark J. Difiore

Fordham Law Review

Before 1996, a Lawful Permanent Resident (LPR) who was made deportable by a criminal conviction could apply for discretionary relief from deportation under section 212(c) of the Immigration and Nationality Act. This relief, commonly known as "212(c) relief," was repealed in 1996. In 2001, the Supreme Court confronted the issue of whether an LPR with a pre-1996 deportable conviction could apply for 212(c) relief in his later post-repeal removal proceedings. The Court decided that an LPR who pleaded guilty to his pre-1996 conviction could still apply for 212(c) relief following the 1996 repeal. The status of those LPRs who were …

Consider The Source: When The Harasser Is The Boss

Fordham Law Review

In Consider the Source, Susan Grover and Kim Piro argue for a change in the analysis that courts apply to determine whether actionable workplace harassment has occurred. They identify a gap in current doctrine, which allows courts to ignore the status of the harasser as co-worker or supervisor. The authors argue that harassment at the hands of a supervisor is necessarily more severe and pervasive than the same harassment by a co- worker. As a result, they recommend that the harasser's identity as a supervisor or co-worker be treated as a necessary consideration when courts assess whether actionable harassment has …

Property Is A Two-Way Street: Personal Copyright Use And Implied Authorization

Fordham Law Review

When we use the Internet, we know that copyright law limits our freedom. We know, for example, that downloading popular music is legally risky. Those who want to get moralistic about it argue that illegal downloading violates a "property" right of the copyright holder. But what about our property rights in our computers? Even if copyright is a form of property, it maintains a parallel existence as an intrusion upon property rights. This intrusion is increasingly a part of daily life, as copyright's literal scope sweeps broadly enough to threaten a range of everyday activities that social norms rega rd …

From Eugenics To The “New” Genetics: “The Play's The Thing”, Karen H. Rothenberg

Fordham Law Review

No abstract provided.

The Federal Information Security Management Act Of 2002: A Potemkin Village, Daniel M. White

Fordham Law Review

Due to the daunting possibilities of cyberwarfare, and the ease with which cyberattacks may be conducted, the United Nations has warned that the next world war could be initiated through worldwide cyberattacks between countries. In response to the growing threat of cyberwarfare and the increasing importance of information security, Congress passed the Federal Information Security Management Act of 2002 (FISMA). FISMA recognizes the importance of information security to the national economic and security interests of the United States. However, this Note argues that FISMA has failed to significantly bolster information security, primarily because FISMA treats information security as a technological …

Preemption, Patchwork Immigration Laws, And The Potential For Brown Sundown Towns, Maria Marulanda

Fordham Law Review

The raging debate about comprehensive immigration reform is ripe ground to overhaul federal exclusivity in the immigration context and move toward a cooperative federal and state-local model. The proliferation of immigration-related ordinances at the state and local level reflects “lawful” attempts to enforce immigration law to conserve limited resources for citizens and legal residents. Although the federal immigration statutes contemplate state and local involvement, the broad federal preemption model used to analyze immigration laws displaces many state-local ordinances, resulting in frustration at the inability to enforce the community’s resolve that is manifested through violence against Latino immigrants. Broad federal preemption …

Reconciling Originalism And The History Of The Public Use Clause, Emily A. Johnson

Fordham Law Review

The history of the Fifth Amendment’s Takings Clause is virtually nonexistent. For at least the last century, the U.S. Supreme Court has interpreted its public use language broadly, allowing takings for the purposes of rectifying urban blight, facilitating land redistribution, and most recently, in Kelo v. City of New London, promoting economic benefit. In that case, Justice Thomas dissented vigorously, arguing that the Kelo Court had strayed from the original meaning of public use and urging it to return to requiring actual use by the public when property is condemned. In light of Justice Thomas’s argument that the Court had …

A World Without Internet: A New Framework For Analyzing A Supervised Release Condition That Restricts Computer And Internet Access, Gabriel Gillett

Fordham Law Review

This Note explores whether a condition of supervised release that restricts computer and Internet access violates the doctrine of unconstitutional conditions. Although a circuit split has developed regarding the scope of a permissible restriction, as Courts of Appeals have been inundated with cases challenging the validity of these technology restrictions, no court has yet viewed these limits through the lens of the doctrine of unconstitutional conditions. This Note begins with a discussion of the First Amendment and the theory of unconstitutional conditions, tracing their respective developments in cases relating to prisoners, speech, and the Internet age. Next, it synthesizes the …

The More You Gain, The More You Lose: Sentencing Insider Trading Under The U.S. Sentencing Guidelines, Danielle Demasi Chattin

Fordham Law Review

Insider trading defendants are sentenced under the general economic crime provisions of the U.S. Sentencing Guidelines. These provisions provide a chart, which prescribes a gradually increasing offense level based on “the gain resulting from the offense.” Only two circuit courts have yet to define “gain” for sentencing purposes, resulting in a split in methodology. Due to the tremendous weight the Guidelines place on the amount of “gain” when calculating a sentence, the potential result of using different methodologies to calculate “gain” is the difference between freedom and years of incarceration. This Note examines the problems involved with both of the …

Sex, Threats, And Absent Victims: The Lessons Of Regina V. Bedingfield For Modern Confrontation And Domestic Violence Cases, Aviva Orenstein

Fordham Law Review

In 2004, Crawford v. Washington, authored by Justice Scalia, revolutionized the law of confrontation by requiring that, aside from two discrete exceptions, all testimonial statements (those made with the expectation that they will serve to prosecute the accused) be subject to cross-examination. This new interpretation of the Sixth Amendment’s Confrontation Clause has profoundly affected domestic violence cases, making it much harder to prosecute them successfully. Although Justice Scalia’s approach to confrontation is new, it is strikingly similar to the analysis in Regina v. Bedingfield, a notorious English murder case, which excluded from the evidence an alleged statement by the murder …

Panel Six: Transcripts (Including Voir Dire Transcripts), The Honorable John Koeltl, The Honorable Gary Lancaster, The Honorable Randolph Treece, Victor Kovner

Fordham Law Review

No abstract provided.

Panel Five: Cooperation And Plea Agreements—Judges' Roundtable, The Hnorable Steven Merryday, The Honorable Raymond Dearie, The Honorable Loretta Preska, The Honorable K. Michael Moore

Fordham Law Review

No abstract provided.

Panel Four: Cooperation And Plea Agreements—Professors & Practitioners, The Hnorable Steven Merryday, Caren Myers Morrison, Gerald Shargel, Barbara Sale

Fordham Law Review

No abstract provided.

Panel Three: Implementation—What Methods, If Any, Can Be Employed To Promote The Existing Rules' Attempts To Protect Private Identifier Information From Internet Access?, The Honorable Ronald Leighton, Joe Cecil, Michael Ishakian, Edward Felten

Fordham Law Review

No abstract provided.

Panel Two: Should There Be Remote Public Access To Court Filings In Immigration Cases?, The Honorable Robert Hinkle, David Mccraw, Daniel Kanstroom, Eleanor Acer

Fordham Law Review

No abstract provided.

Panel One: General Discussion On Privacy And Public Access To Court Files, The Honorable Reena Raggi, Daniel J. Capra, Joel Reidenberg, Ronald Hedges

Fordham Law Review

No abstract provided.

Distinguished Jurist Panel: Insights And Perspectives On The History And Development Of Human Rights Norms, Richard Goldstone, Fausto Pocar

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

Moderator: Linda Carter, Professor of Law and Director, Legal Infrastructure and International Justice Institute, University of the Pacific, McGeorge School of Law

The extensive experience of the distinguished international jurists on this panel with human rights law and related fields will form the basis for insights and perspectives into the history and development of human rights norms. The panelists will examine the current importation of human rights norms into other areas of law and predictions for future development.

Mexico's Dilemma: Workers' Rights Or Workers' Comparative Advantage In The Age Of Globalization?, Ranko Shiraki Oliver

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

Moderator: Raquel Aldana, Professor of Law and Director, Inter-American Program, University of the Pacific, McGeorge School of Law

For at least the last two decades, Latin American nations have grappled with whether and how to reform their labor codes as a response to liberalizing policies promoted by international financial institutions and-or multilateral and more recently regional trade agreements. The debate has rightly encountered tensions around several competing goals, including ones for global economic integration, the individual and collective rights of workers, and demands from employers from greater flexibilization of laws in developing nations. As well, deep disagreements have surfaced around …

Corporations And The European Convention On Human Rights, Winfried Van Den Muijsenbergh, Sam Rezai

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

Moderator: Franklin Gevurtz, Distinguished Professor and Scholar and Director, Global Center for Business & Development, University of the Pacific, McGeorge School of Law

This panel will examine the incorporation of international human rights norms into state and national corporate law and principles of corporate governance. The “Protect, Respect and Remedy Framework” adopted by the U.N. Human Rights Council in 2008 renders myopic the notion that national and sub-national laws on corporate governance and the liabilities of corporate officials can ignore international human rights norms, since this framework invokes both the state duty to protect against human rights abuses by third …

Human Rights And Delaware Corporate Law, David Millon

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

Moderator: Franklin Gevurtz, Distinguished Professor and Scholar and Director, Global Center for Business & Development, University of the Pacific, McGeorge School of Law

This panel will examine the incorporation of international human rights norms into state and national corporate law and principles of corporate governance. The “Protect, Respect and Remedy Framework” adopted by the U.N. Human Rights Council in 2008 renders myopic the notion that national and sub-national laws on corporate governance and the liabilities of corporate officials can ignore international human rights norms, since this framework invokes both the state duty to protect against human rights abuses by third …

From Institutional Misalignments To Socially Sustainable Governance: The Guiding Principles For The Implementation Of The United Nations' "Protect, Respect And Remedy" And The Construction Of Interbysystemic Global Governance, Larry Catá Backer

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

Moderator: Franklin Gevurtz, Distinguished Professor and Scholar and Director, Global Center for Business & Development, University of the Pacific, McGeorge School of Law

This panel will examine the incorporation of international human rights norms into state and national corporate law and principles of corporate governance. The “Protect, Respect and Remedy Framework” adopted by the U.N. Human Rights Council in 2008 renders myopic the notion that national and sub-national laws on corporate governance and the liabilities of corporate officials can ignore international human rights norms, since this framework invokes both the state duty to protect against human rights abuses by third …

Federal Rule Of Evidence 703: The Back Door And The Confrontation Clause, Ten Years Later, Ian Volek

Fordham Law Review

Federal Rule of Evidence 703 allows experts to form opinions using information that is not admitted at trial, and even on evidence that is inadmissible. In 2000, Rule 703 was amended to emphasize that it did not serve as an exception to the other rules of evidence. When experts rely on inadmissible evidence, the evidence can only be disclosed for the limited purpose of assisting the jury to evaluate the expert’s opinion, and only if the probative value of the evidence substantially outweighs its prejudicial effect. This Note reviews the application of Rule 703 before and after the 2000 amendment. …

Broken Borders, Broken Laws: Aligning Crime And Punishment Under Section 2l1.1(B)(7) Of The U.S. Sentencing Guidelines, Genevieve Quinn

Fordham Law Review

Despite the intensifying militarization of the United States’ borders, roughly 4,000 undocumented immigrants attempt to cross into the U.S. each day. Increased border security has not stopped the flow; rather, it has diverted migrants’ journeys into the most perilous stretches of borderlands and coastlines. In response, migrants increasingly rely on human smugglers to guide them across the border, even in the face of the well-known risks of injury and death. Under section 2L1.1(b)(7) of the U.S. Sentencing Guidelines, defendants convicted of smuggling illegal immigrants are subject to a sentence enhancement for any bodily injury or death that occurs. The Guidelines …

Timing Is Everything: Markets, Loss, And Proof Of Causation In Fraud On The Market Actions, Andrew M. Erdlen

Fordham Law Review

Plaintiffs in securities fraud class actions must prove that defendants’ misconduct caused the investors’ losses. The U.S. Supreme Court’s 2011 decision in Erica P. John Fund, Inc. v. Halliburton Co. reaffirmed that loss causation is a quintessential merits issue that must be decided at trial. In three recent trials, juries have held defendants liable with findings of fact that are inconsistent with the Supreme Court’s doctrinal framework for securities fraud causation. This Note examines these verdicts and encourages the courts to depart from the common law of fraud and tighten the meaning of causation. To do this, courts must adhere …

Fcpa Sanctions: Too Big To Debar?, Drury D. Stevenson, Nicholas J. Wagoner

Fordham Law Review

The Foreign Corrupt Practices Act (FCPA) criminalizes bribery of foreign government officials. The frequency of enforcement actions and severity of fines levied against corporations under the FCPA have significantly increased in the last few years. There is an ongoing problem, however, with the sanctions for FCPA violations: enforcement authorities (the Department of Justice and the Securities and Exchange Commission) and contracting officials have limited themselves to fines, civil penalties, and occasional imprisonment of individual violators. Debarment from future federal government contracts, even temporarily, is an unused sanction for FCPA violations, even though Congress provided for this punishment by statute. Debarment …

The “Right” Redd Framework: National Laws That Best Protect Indigenous Rights In A Global Redd Regime, Stephanie Baez

Fordham Law Review

This Note focuses on Reducing Emissions from Deforestation and Forest Degradation (REDD), an international framework that aims to curb carbon emissions by reducing deforestation. While international negotiators discuss the environmental benefits of REDD, which will likely be implemented in the Kyoto Protocol’s post-2012 commitment period, forest-dwelling indigenous communities worry that REDD will destroy their livelihoods. Countries with high deforestation rates, such as Brazil and Indonesia, have already implemented a number of voluntary REDD pilot projects and are currently creating legal frameworks to address the complexities of REDD. This Note compares the legal frameworks of Brazil and Indonesia in terms of …

The Intersection Of Tort And Environmental Law: Where The Twains Should Meet And Depart, Mark Latham, Victor E. Schwartz, Christopher E. Appel

Fordham Law Review

The explosion of environmental statutes over the past forty years, giving rise to the field of environmental law, has created a critical and evolving question in our legal system as to how this comparatively new field of law intersects with the common law of torts. Defining the proper role of tort law in remedying environmental injuries is an important matter of public policy; the answer will determine what the tort system can and cannot achieve, inform what it should and should not achieve, and clarify which common law enforcement areas are actually voids. This information assists the judiciary on its …

The Lone Miscreant, The Self-Training Prosecutor, And Other Fictions: A Comment On Connick V. Thompson, Susan A. Bandes

Fordham Law Review

No abstract provided.

Frankfurter’S Champion: Justice Powell, Monell, And The Meaning Of “Color Of Law”, David Jacks Achtenberg

Fordham Law Review

No abstract provided.