Law Commons^™

An Empirical Survey Of International Commercial Arbitration Cases In The Us District Court For The Southern District Of New York, 1970-2014, Vera Korzun, Thomas H. Lee

Fordham International Law Journal

This Article identifies and organizes the circumstances in which national courts play a role in international commercial arbitrations— border crossings. It then records and analyzes empirical data of these border crossings in cases filed in a key national court for international arbitration-related litigation: the US District Court for the Southern District of New York. Data were collected from the date of entry into force for the United States of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) on December 29, 1970 to September 15, 2014. Based on interpretation of these data, …

Criminal Records And Immigration: Comparing The United States And The European Union, Dimitra Blitsa, Lauryn P. Gouldin, James B. Jacobs, Elena Larrauri

Fordham International Law Journal

Because the revolution in information technology has made individual criminal history records more comprehensive, efficient, and retrievable, an individual’s criminal history has become an ever more crucial marker of character and public identity. The broad range of collateral consequences of criminal convictions has become a very salient issue for criminal justice scholars and reformers. A single criminal conviction can trigger thousands of potentially applicable restrictions, penalties, or other civil disabilities. There is no better example of this phenomenon than immigration law and policy, where developments in data storage and retrieval converge with opposition to immigration, especially to immigrants who bear …

Isis, Boko Haram, And The Human Right To Freedom From Slavery Under Islamic Law, Bernard K. Freamon

Fordham International Law Journal

There is now a worldwide consensus on the firm existence of a human right to freedom from slavery. This consensus gives rise to what was thought to be an irrefutable argument that the right to be free from slavery is a jurisprudential universal, with no competent legal system or government able to deny its existence or permit derogation from its tenets. This argument is now being tested by the ideologies, policies, and actions of Muslim insurgencies in Iraq, Syria, and Nigeria, each claiming that the enslavement of non-believing combatants and war captives and slave trading in such persons is permitted …

"Gatting" The New Climate Treaty Right: Leveraging Energy Subsidies To Promote Multilateralism, Deepa Badrinarayana

Fordham International Law Journal

In a previous paper, Trading Up Kyoto: A Proposal for Amending the Protocol, I argued that not only do international trade rules, specifically the operation of the World Trade Organization ("WTO") agreements, hinder international climate change treaty negotiations, but also that applying exceptions to circumvent trade rules is doctrinally difficult and normatively unsettling, primarily because of WTO jurisprudence, the colorable intent of nations that are violating WTO rules in the guise of mitigating climate change, and the challenges to creating environmental exceptions to trade rules to facilitate emissions reduction. To illustrate this point, I focused on ongoing trade disputes involving …

“To Assemble Together For Their Common Good”: History, Ethnography, And The Original Meanings Of The Rights Of Assembly And Speech, Saul Cornell

Fordham Law Review

The Whiskey Rebellion is not generally a major focus in constitutional histories or casebooks. Given this fact, it is hardly surprising that the 1795 case Respublica v. Montgomery seldom figures as more than a minor footnote in scholarly writing about early American constitutional development, if it receives any attention at all. The case has little precedential value for modern First Amendment doctrine and only obliquely implicates larger jurisprudential questions about the rights of assembly and freedom of expression. In strictly doctrinal terms, Montgomery is primarily about the obligation of a justice of the peace to put down a riot, not …

(Don't) Take Another Little Piece Of My Immunity, Baby: The Application Of Agency Principles To Claims Of Foreign Sovereign Immunity, Daniel P. Roy Iii

Fordham Law Review

This Note examines the split among the federal circuit courts regarding the application of agency principles to claims of foreign sovereign immunity. Specifically, a minority of courts have applied the doctrine of apparent authority in determining whether a sovereign is bound by the acts of its agents. The majority of courts have, however, declined to apply the doctrine, holding that only actual authority is sufficient to bind sovereigns to their agents’ acts. This Note examines the policy ramifications of the minority view through the lens of sovereign debt litigation, especially those conducted by so-called vulture funds, and ultimately concludes that …

Network Neutrality And Consumer Demand For “Better Than Best Efforts” Traffic Management, Rob Frieden

Fordham Intellectual Property, Media and Entertainment Law Journal

INTRODUCTION The Internet increasingly offers a preferred medium for access to video and other types of high value content that may require Internet Service Providers (“ISPs”) to use special efforts to ensure superior quality of service (“QOS”). ISPs have made substantial investments in infrastructure upgrades to satisfy growing demand for networks capable of delivering bandwidth intensive traffic at higher transmission speeds. Additionally, they work to accommodate consumer expectations of having content access anytime, anywhere, through any medium, via any device, and in any screen presentation format. Early adopters of new video delivery technologies rely on both wireline and wireless alternatives …

Sensationalism Falling Through The Cracks: Why The Legal Profession Must Broaden Ethical Standards For Legal Commentators, A. Augustus Lasala

Fordham Intellectual Property, Media and Entertainment Law Journal

INTRODUCTION Whether it was O.J. Simpson, Casey Anthony, or Scott Peterson, history has shown that Americans love an exciting criminal trial. As a result, in the United States, the coverage and analysis of high-publicity criminal cases is ever-growing, creating many opportunities for attorneys to work in media as legal commentators. The term “legal commentator” has no precise definition, but generally entails attorneys making statements in the media that contain legal analysis. When attorneys speak in the media they simultaneously act in two roles: as a licensed attorney who has professional responsibilities and as a journalist who must meet viewership requirements. …

Internet Privacy Enforcement After Net Neutrality, Thomas B. Norton

Fordham Intellectual Property, Media and Entertainment Law Journal

In March 2015, the Federal Communications Commission reclassified broadband Internet access service providers as “common carriers” subject to obligations under Title II of the Communications Act. One such obligation is to comply with the Act’s section 222 privacy provisions. As a result of reclassification, the Federal Communications Commission claims privacy enforcement jurisdiction over a broad swath of companies that formerly fell within the Federal Trade Commission’s regulatory reach. The Federal Trade Commission and industry players have been outwardly critical of this effect. This Note explores the resulting tension between the two agencies and proposes potential resolutions for it.

Restoring The Seven Year Rule In The Music Industry, Kathryn Rosenberg

Fordham Intellectual Property, Media and Entertainment Law Journal

INTRODUCTION The United States boasts a bigger entertainment industry than any other country, with Los Angeles regarded as the entertainment capital of the world. Accounts differ as to the explanation for California’s rise to entertainment prominence. One version attributes the flocking to the west coast as a product of Cecil B. DeMille’s last-minute location change for The Squaw Man in 1914 to Los Angeles; but, by 1910, movies had already been filmed in the area. Another explanation focuses on Thomas Edison, who operated in New York and New Jersey, and exerted a significant amount of control over the industry in …

Historians And The New Originalism: Contextualism, Historicism, And Constitutional Meaning, Martin S. Flaherty

Fordham Law Review

Toward that end, this Foreword addresses three matters. First, it considers why the use of history in constitutional interpretation is inescapable. Next, it suggests that the Essays in this forum do not go far enough in debunking the idea of “public meaning” originalism as a serious alternative to previous approaches. Finally, the balance of this Foreword reviews the also perhaps inescapable misuses of history that constitutional interpretation invites and considers the type of misuse that public meaning originalism represents.

Historicism And Holism: Failures Of Originalist Translation, Jonathan Gienapp

Fordham Law Review

For as long as the U.S. Constitution has existed, Americans have appealed to the history of its creation to interpret its meaning. But only since the advent of originalism—the well-known constitutional theory that requires interpreting the Constitution today in accordance with its original meaning—has historical study been so immediately implicated by constitutional interpretation. Despite potential, though, for meaningful exchange between originalists and historians, little has taken place. That originalism plays an ever-growing role in contemporary political culture only makes the lack of dialogue all the more unfortunate.

Outsourcing The Law: History And The Disciplinary Limits Of Constitutional Reasoning, Helen Irving

Fordham Law Review

Debates about the use of history in constitutional interpretation find their primary nourishment in the originalism debate. This has generated a vast amount of literature, but also narrowed the terms of the debate. Originalism is a normative commitment wrapped in a questionable methodological confidence. Regardless of the multiple forms originalism takes, originalists are confident that the meaning (in the sense of intention) that animated the framing of the Constitution can be ascertained and, indeed, that they can ascertain it. The debate has largely focused, then, on whether modern-day scholars and jurists can ascertain original historical meaning or, alternatively, whether they …

Disruptive Technology And Securities Regulation, Chris Brummer

Fordham Law Review

Nowhere has disruptive technology had a more profound impact than in financial services—and yet nowhere do academics and policymakers lack a coherent theory of the phenomenon more, much less a coherent set of regulatory prescriptions. Part of the challenge lies in the varied channels through which innovation upends market practices. Problems also lurk in the popular assumption that securities regulation operates against the backdrop of stable market gatekeepers like exchanges, broker-dealers, and clearing systems—a fact scenario increasingly out of sync in twenty-first-century capital markets.

This Article explains how technological innovation “disrupts” not only capital markets but also the exercise of …

Pay The Troll Toll: The Patent Troll Model Is Fundamentally At Odds With The Patent System's Goal Of Innovation And Competition, Grace Heinecke

Fordham Law Review

Patent litigation has multiplied sixfold since the 1980s, with the last few years seeing an unprecedented number of patent lawsuits. When an inventor receives a patent, the U.S. Constitution grants him a monopoly for a limited number of years to reward him for his investment of time and resources and to incentivize him to continue innovating, which ultimately benefits society. However, the emergence of a litigious character, deemed the “patent troll,” has led to the patent system’s hindrance of innovation, a result that is at odds with the primary goal of patent law. Patent trolls exploit weaknesses in the patent …

Tortured Language: Lawful Permanent Residents And The 212(H) Waiver, Julianne Lee

Fordham Law Review

Recent amendments to the Immigration and Nationality Act have greatly expanded the grounds for removal of lawful permanent residents (LPRs) and, at the same time, constricted judicial review of agency decisions to deport immigrants. Language added to the 212(h) waiver of inadmissibility has increased the number of LPRs that are now ineligible for relief from removal by barring certain LPRs from applying for a waiver if, since the date of their admission, they have committed an aggravated felony or have failed to accrue seven years of continuous presence. The controversy discussed in this Note stems from differing interpretations of this …

Behind Enemy Phone Lines: Insider Trading, Parallel Enforcement, And Sharing The Fruits Of Wiretaps, Alexandra N. Mogul

Fordham Law Review

Two key trends were present in the successful prosecution of Raj Rajaratnam and his coconspirators in one of the largest insider-trading conspiracies in history: the use of wiretaps to investigate and prosecute insider trading and a joint effort between the Department of Justice (DOJ) and the Securities & Exchange Commission (SEC) to conduct the investigation. Despite the close working relationship between the DOJ and the SEC, the DOJ never disclosed the fruits of the wiretaps to the SEC, presumably due to its belief that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (as amended, the …

Tone Deaf To The Past: More Qualms About Public Meaning Originalism, Jack Rakove

Fordham Law Review

With some apologies for a vast degree of oversimplification, let us stipulate that there are two main forms of originalism. One is known as “semantic” or “public meaning” originalism. Its leading advocates include Lawrence Solum, Keith Whittington, and Randy Barnett (professional friends, all). The leading premise of semantic originalism is that the meaning of the constitutional text—or, more specifically, of its individual clauses—was fixed at the moment of its adoption. Under this view, the goal of constitutional interpretation is to recover that original meaning, and the best way to do that pivots on reconstructing how an informed reader, whether a …

Appropriate(D) Moments, Richard Chused

Fordham Intellectual Property, Media and Entertainment Law Journal

INTRODUCTION Quietly reading a book by a window in your apartment isn’t necessarily a “private” act. Many living in densely packed locations like Manhattan inevitably wonder whether eyes peering through telescopes or watching digital camera screens find them, linger for a time, capture images or generate fantasies about who and what they are. That appropriation reality popped into public view in 2013 when Martha and Matthew Foster discovered images of themselves and their children, Delaney and James, in Arne Svenson’s photography exhibition The Neighbors mounted at the Julie Saul Gallery in the Chelsea district of Manhattan. The Fosters lived in …

Not "Fit" For Hire: The United States And France On Weight Discrimination In Employment, Michael L. Huggins

Fordham International Law Journal

Part I will examine past and present attitudes regarding obesity in US society and will discuss the employment challenges obese individuals face because of weight discrimination. Further, Part I will survey US statutory laws at the federal, state, and local levels that currently protect against particular instances of weight discrimination. In sum, this Part aims to provide the current legal and social landscape in the United States for protecting individuals against employment discrimination based on their weight. Part II will look at France’s cultural bias against obesity and its laws against physical appearance discrimination. Part II then will analyze French …

Bringing In A New Scale: Proposing A Global Metric Of Internet Censorship, Philip Chwee

Fordham International Law Journal

Part I of this Note provides an overview of Internet censorship and international law, including the different approaches and theories behind Internet censorship. Part I.A discusses the development of the ICCPR and its application to the Internet. Next, Part I.B-D provides an in-depth overview of the Internet censorship models of three different countries: the United States, the United Kingdom, and China. Part II examines each country’s Internet censorship model under Article 19 of the ICCPR, considering Article 19(3)’s three-part test and requirements established by recent UN reports interpreting them. The analysis will also examine each country’s copyright laws under Article …

The Effect Of The United Nations Convention Against Torture On The Scope Of Habeas Review In The Context Of International Extradition, Evan King

Fordham International Law Journal

This Note considers the law underlying the question addressed in Trinidad: can habeas courts review an extraditee’s Article Three claims? In turn, this Note considers how courts should interpret the CAT in the extradition context. Part I explores the important conceptual components of the question posed in Trinidad,including US extradition practice, habeas petitions in extradition proceedings, and the CAT’s implementation in the United States. Building on this, Part II examines competing interpretations of Article Three claims in US courts, highlighting how these claims touch on much deeper issues that remain unsettled by several hundred years of habeas corpus jurisprudence. Finally, …

Worst Decision Of The Eu Court Of Justice: The Alrosa Judgment In Context And The Future Of Commitment Decisions, Frederic Jenny

Fordham International Law Journal

This Article details the evolution of the commitment decisions, analyzes the logic and the consequences of the Alrosa Court judgment, and offers some suggestions on how to establish a better equilibrium between the legitimate objective of promoting the effectiveness of the Commission by allowing it enough flexibility to end cases when competition could be restored rapidly and without major expense thanks to the cooperation of investigated firms, while respecting the necessity to ensure that the effectiveness of enforcement remains compatible with three goals: developing a robust competition law jurisprudence to ensure legal predictability, particularly in abuse of dominance cases; ensuring …

Ending Female Genital Mutilation & Child Marriage In Tanzania, Lisa Avalos, Naima Farrell, Rebecca Stellato, Marc Werner

Fordham International Law Journal

This Article analyzes the current practices of FGM and child marriage in Tanzania and makes a number of recommendations for eliminating these severe human rights violations. Part I identifies the relevant forms of gender-based violence and discusses how they are practiced and related. Part II addresses applicable international and domestic legal authority, identifying potential gaps in domestic legal protection for young girls. Part III proposes several promising legal and policy strategies, both international and domestic, to reduce the practices of child marriage and FGM in Tanzania. Ultimately, some or all of these measures must be implemented to help bring an …

Corrupt And Unequal, Both, Lawrence Lessig

Fordham Law Review

Rick Hasen has presented the issue of money in politics as if we have to make a choice: it is either a problem of equality or it is a problem of corruption. Hasen’s long and influential career in this field has been a long and patient struggle to convince those on the corruption side of the fight (we liberals, at least, and, in an important sense, we egalitarians too) to resist the temptation to try to pass—by rendering equality arguments as corruption arguments, and to just come out of the closet. Hasen had famously declared that the corruption argument supporting …

Enforcing Immigration Equity, Jason A. Cade

Fordham Law Review

Congressional amendments to the immigration code in the 1990s significantly broadened grounds for removal while nearly eradicating opportunities for discretionary relief. The result has been a radical transformation of immigration law. In particular, the constriction of equitable discretion as an adjudicative tool has vested a new and critical responsibility in enforcement officials to implement rigid immigration rules in a normatively defensible way, primarily through the use of prosecutorial discretion. This Article contextualizes recent executive enforcement actions within this scheme and argues that the Obama Administration’s targeted use of limited enforcement resources and implementation of initiatives such as Deferred Action for …

Fighting Corruption In America And Abroad, Jed Handelsman Shugerman

Fordham Law Review

The exchanges at the symposium and these Articles highlight the gap between public opinion and legal culture on the definition of corruption and the problems that flow from that gap. Teachout’s and Lessig’s legal argument that corruption can be institutional and banal roughly corresponds with the public’s moral intuition. Conversely, Lessig’s and Hasen’s intuitive moral reaction—that corruption is the evil of quid pro quo—maps onto the legal conclusion of the U.S. Supreme Court in Citizens United v. FEC that corruption is narrowly defined as quid pro quo. Note the reversal of moral and legal positions: Teachout and Lessig’s legal …

Opening Remarks, John D. Feerick

Fordham Law Review

I salute those who have been involved in the planning of this program and will be moderating, serving on panels, and making presentations throughout the day. I am not quite sure what my present qualifications are to be the opening speaker in such an august gathering of outstanding academics, teachers, lawyers, good government leaders, public servants, and others of distinction. My work these years of my life is largely in the field of social justice and poverty. I am no stranger to the field of law reform, however.

Why Isn’T Congress More Corrupt?: A Preliminary Inquiry, Richard L. Hasen

Fordham Law Review

In the aftermath of the indictment of New York State Assembly Speaker Sheldon Silver on corruption charges, law professor (and recent reformist gubernatorial candidate) Zephyr Teachout published an op-ed in the New York Times entitled “Legalized Bribery.” In it, she argued that campaign contributions are a “gateway drug” to bribes and that politicians are “pre- corrupted” by taking campaign contributions and doing favors for contributors. She wants campaign finance limits, public financing, and limits on outside income for legislators. Although Teachout used powerful rhetoric and suggested worthy reforms, I see her as offering an empirical hypothesis about the relationship between …

Love, Equality, And Corruption, Zephyr Teachout

Fordham Law Review

What is corruption? Unless one takes an absolute (and hard to defend) view of words’ meanings—there is a fixed meaning, it cannot differ—this question can mean different things. What has it meant in the past? What has it meant to judges? What social function does the word play? Does it have any meaning at all, or is it just another word for a different idea? Does the meaning it had historically have any coherence? Does the meaning it has now have any coherence? What do most people think it means? What do most scholars think, or most lawyers, …