Fordham Law Review
[SJR: 0.963] [H-I: 22] [13 followers] Follow
Open Access journal
ISSN (Print) 0015-704X
Published by Fordham University [6 journals]
- Carpooling Liability?: Applying Tort Law Principles to the Joint Emergence
of Self-Driving Automobiles and Transportation Network Companies
Authors: Jacob D. Walpert
Abstract: Self-driving automobiles have emerged as the future of vehicular travel, but this innovation is not developing in isolation. Simultaneously, the popularity of transportation network companies functioning as ride-hailing and ride-sharing services have altered traditional conceptions of personal transportation. Technology companies, conventional automakers, and start-up businesses each play significant roles in fundamentally transforming transportation methods. These transformations raise numerous liability questions. Specifically, the emergence of self-driving vehicles and transportation network companies create uncertainty for the application of tort law’s negligence standard. This Note addresses technological innovations in vehicular transportation and their accompanying legislative and regulatory developments. Then, this Note discusses the implications for vicarious liability for vehicle owners, duties of care for vehicle operators, and corresponding insurance regimes. This Note also considers theoretical justifications for tort concepts including enterprise liability. Accounting for the inevitable uncertainty in applying tort law to new invention, this Note proposes a strict and vicarious liability regime with corresponding no-fault automobile insurance.
PubDate: Thu, 30 Mar 2017 13:29:41 PDT
- Updating the Social Network: How Outdated and Unclear State Legislation
Violates Sex Offenders’ First Amendment Rights
Authors: Elizabeth Tolon
Abstract: Readily available on computers, phones, tablets, or television, social media has become a necessary platform of expression for many. But, for others, social media is an inaccessible tool whose very use has criminal repercussions. To protect innocent children, many states have enacted legislation restricting sex offenders’ access to social media. Unfortunately, this legislation is often outdated, overly restrictive, and unconstitutional under the First Amendment. North Carolina has recently attracted national attention, as its statute highlights the potential constitutional issues states face in drafting such legislation. To avoid the constitutional concerns that North Carolina faces, state legislators must draft statutes narrowly and provide ample alternative channels of communication for sex offenders. This Note first analyzes current state legislation restricting sex offenders’ social media usage, focusing specifically on North Carolina’s statute. It then discusses the U.S. Supreme Court case Packingham v. North Carolina, challenging the constitutionality of North Carolina’s statute under the First Amendment. This Note explains how Packingham offers the Supreme Court an opportunity to clarify and instruct states on how to properly draft future legislation. Specifically, the Court must address what constitutes a narrowly tailored statute and what type of alternatives must be available for sex offenders whose social media access is restricted. This Note ultimately concludes that North Carolina’s statute is not narrowly tailored and does not leave ample alternative channels of communication. To help avoid these issues in the future, this Note concludes by suggesting a model statute for constitutionally restricting sex offenders’ social media use.
PubDate: Thu, 30 Mar 2017 13:29:38 PDT
- Who Put the Quo in Quid Pro Quo?: Why Courts Should Apply McDonnell ’s
“Official Act” Definition Narrowly
Authors: Adam F. Minchew
Abstract: Federal prosecutors have several tools at their disposal to bring criminal charges against state and local officials for their engagement in corrupt activity. Section 666 federal funds bribery and § 1951 Hobbs Act extortion, two such statuary tools, have coexisted for the past thirty-six years, during which time § 666 has seen an increasing share of total prosecutions while the Hobbs Act’s share of prosecutions has fallen commensurately. In the summer of 2016, the U.S. Supreme Court decided McDonnell v. United States—a decision that threatens to quicken the demise of Hobbs Act extortion in favor of § 666. If McDonnell is interpreted to apply to Hobbs Act extortion but not to § 666, we can expect the latter to become the unchallenged favorite of federal prosecutors as well as increased litigation over whether § 666 bribery contains a quid pro quo requirement. This is likely to occur given § 666’s coverage of the same corrupt behavior, expansive jurisdictional hook, and, following McDonnell, lower difficulty of proving violations within some circuits. To avoid this eventuality, lower courts should distinguish McDonnell because of its unique procedural posture and continue to apply the existing quid pro quo framework. Before meaningful change to our federal bribery statutes can take place, the courts of appeals must first find consensus over whether and when § 666 requires the government to prove the existence of a quid pro quo.
PubDate: Thu, 30 Mar 2017 13:29:35 PDT
- CFIUS in the Age of Chinese Investment
Authors: Patrick Griffin
Abstract: As China’s economy has developed, its companies, both state-owned and privately held, have moved to expand their operations in the United States to the point where many now seek to invest in—and on occasion, acquire—U.S. counterparts. This trend has set off alarm bells over fears that China’s unique political and economic system, which gives the state extensive influence over all corporations regardless of their ownership structure, renders such transactions national security threats. Recent hostility toward Chinese-led inbound investment is not a new trend; Congress has attempted to assert itself into the screening process undertaken by the Committee on Foreign Investment in the United States (CFIUS) since its establishment. This Note examines both the framework the U.S. government has utilized to screen potential national security threats posed by foreign investment and how the eccentricities of China’s state-capitalist system present unique challenges to that framework. It argues for an executive order to mandate CFIUS review for transactions in sensitive industries which touch upon national security issues, particularly telecommunications in an age of increasing cyberwarfare. This will prepare CFIUS to handle the challenges posed by increasing investment in the United States by Chinese corporations without needlessly constructing barriers to the same where no real security threat exists.
PubDate: Thu, 30 Mar 2017 13:29:31 PDT
- Big Budget Productions with Limited Release: Video Retention Issues with
Authors: Bradley X. Barbour
Abstract: Since 2013, there has been growing support for police body-worn cameras in the wake of several high-profile and controversial encounters between citizens and law enforcement. The federal government has justified budgetary measures funding body-worn camera programs as a means to facilitate trust between law enforcement and the public through the objectivity of video footage—a sentiment supported by many lawmakers advocating for implementation of this technology. These policy goals, however, are stymied by a deficiency of police department policies and state statutes regulating the retention of footage and close adherence of states to the precedent of Arizona v. Youngblood, which holds that the destruction of potentially exculpatory evidence by the government not committed in “bad faith” does not violate due process. This Note analyzes the current landscape of body-worn camera video retention and argues for reform at the judicial and statutory level on how footage is preserved. It argues that courts should interpret Youngblood as allowing judges to impose the sanction of missing-evidence instructions—even in the absence of bad faith—as a remedy against the destruction of body-worn camera footage that occurs because of police policies and practices that limit protection of such footage. This Note also argues that states should move quickly to create statutes regulating the time periods in which body-worn camera footage must be retained while also balancing the logistical burden that high-volume video storage imposes on police departments.
PubDate: Thu, 30 Mar 2017 13:29:28 PDT
- American Nationals and Interstitial Citizenship
Authors: Rose Cuison Villazor
Abstract: Citizenship scholarship is pervasively organized around a binary concept: there is citizenship (which is acquired at birth or through naturalization) and there is noncitizenship (which accounts for everyone else). This Article argues that this understanding is woefully incomplete. In making this argument, I tell the story of noncitizen nationals, a group referred to by this Article as American nationals. Judicially constructed in the 1900s, and codified by Congress in 1940, American nationals possess some of the rights inherent to citizenship, such as the right to enter and reside in the United States without a visa. Yet, they do not have the right to vote or to serve on a jury. Thus, contrary to the usual binary framing of citizenship, the category of American nationals suggests that many people qualify as neither citizens nor aliens. Although American national status has existed for over a century, very little is known about how this status became part of U.S. nationality law. This Article aims to reverse this oversight by exploring the legal construction of noncitizen national status and its implications for our understanding of citizenship. In so doing, this Article makes two contributions. The first and primary goal of this Article is to complete our legal historical knowledge about how law has conferred and denied citizenship. Specifically, this Article examines key congressional, judicial, and executive actions between 1898 and 1940 that led to the creation of this liminal form of political membership for Americans living in the U.S. territories. Second, this Article introduces two conceptual frameworks that flow from noncitizen national status: interstitial citizenship and unbundling citizenship. That is, American nationals disrupt the binary framing of citizenship by occupying the space between the citizen and the alien. This liminal status, which this Article calls interstitial citizenship, reveals that citizenship is far more fluid than previously appreciated. Moreover, this flexible form of citizenship suggests that the rights of citizenship may be unbundled. Notably, both interstitial citizenship and unbundling citizenship have legal and policy implications for immigration reform.
PubDate: Thu, 30 Mar 2017 13:29:25 PDT
- Where Oil Is King
Authors: Kristen van de Biezenbos
Abstract: Donald Trump has won the 2016 presidential election, and, based on his campaign rhetoric, it seems reasonable to anticipate that the next four years will see a rollback of federal rules and regulations originally intended to combat climate change and environmental pollution in favor of increased production of fossil fuels, including coal. This raises the question of where we can look for protection of environmental goals, if not to federal law or agencies. Unconventional solutions to energy and environmental issues may be the only way to move forward on environmental challenges in the near term. This Article suggests one such unconventional solution to the problems presented by the use of hydraulic fracturing (“fracking”). In response to the perceived environmental threats of fracking, many cities and towns have sought to limit it through local bans, moratoria, and regulation. However, in 2015, a number of states passed laws that forbid any city, town, or other municipal body from banning fracking or passing certain regulations on the practice. Further, the highest courts of several other states have ruled that state law preempts local restrictions on fracking. In many cases, this means that local governments must allow fracking, so the question arises as to how these governments can address environmental concerns. This Article is the first to propose that cities and towns where fracking is taking place could incorporate and enforce existing state environmental laws. By doing so, those municipalities may be able to minimize some of the environmental harms associated with fracking. Further, this Article explains why incorporation and enforcement of state-level environmental laws by cities and towns should not be expressly or impliedly preempted.
PubDate: Thu, 30 Mar 2017 13:29:22 PDT
- Justice and Other Crimes Evidence: The Smorgasbord Ploy
Authors: Kenneth Graham
Abstract: The smorgasbord ploy probably plays only a minor role in the admission of other crimes evidence. But it offers us a nice window into the uses and abuses of Rule 404(b) of the Federal Rules of Evidence (“the Rules”) and its state clones. Rule 404(b)’s drafters may have supposed that trial judges would look among the illustrative uses in Rule 404(b) and select the one or two that seem most apropos to the case before them. However, the practitioners of smorgasbordism do not make any choices but instead list all (or most) of the illustrative uses to support the admission of the other crimes. We can surmise the judge calculates that this will avoid appellate reversal by giving appellate judges more grounds for affirming a decision to admit other crimes evidence. Moreover, it saves work; the judge need not put in as much effort to use the ploy as she would have to in deciding which of the adversaries has analyzed admissibility correctly.
PubDate: Thu, 30 Mar 2017 13:29:18 PDT
- The Three Commandments of Amending the Federal Rules of Evidence
Authors: Victor Gold
Abstract: The Rules have been amended many times in the forty years since they were enacted. Unlike the original drafting process, which necessarily involved consideration of the Rules as a whole, each round of amendments was limited to a specific Rule or set of Rules. This particularized focus is not myopic, but unavoidable; the Rules are numerous and complex, and the time of the Advisory Committee and Congress is limited. But after more than forty years, a broader perspective is possible. The purpose of this Article is to provide a small bit of that perspective, which this Article distills into three “commandments” for amending the Rules. After a brief history of the residual exception and a description of the proposed amendment, this Article considers the extent to which that proposal complies with these commandments.
PubDate: Thu, 30 Mar 2017 13:29:15 PDT
- Expanding (or Just Fixing) the Residual Exception to the Hearsay Rule
Authors: Daniel J. Capra
Abstract: The Judicial Conference Advisory Committee on Evidence Rules (“the Committee”) has been considering whether to amend Federal Rule of Evidence 807 (known as the residual exception to the hearsay rule) to improve the way the Rule functions—and also to allow the admission of more hearsay if it is reliable. At the conference sponsored by the Committee in October, 2016—transcribed in this Fordham Law Review issue—the Committee submitted a working draft of an amendment that was vetted by the experts at the conference and reviewed favorably by most. This Article analyzes the arguments in favor of and against the reform of the residual exception and will set forth and explain the Advisory Committee’s approach to a possible amendment.
PubDate: Thu, 30 Mar 2017 13:29:11 PDT
- The Phillip D. Reed Lecture Series: Conference on Possible Amendments to
Federal Rules of Evidence 404(b), 807, and 801(D)(1)(a)
Authors: Daniel J. Capra
Abstract: PROFESSOR CAPRA: Thank you, Judge. So let’s start today with some basic details. There will be a transcript of these proceedings, and it will be published in the Fordham Law Review. I’d like to thank the Fordham Law Review for taking this on and agreeing to do it.
PubDate: Thu, 30 Mar 2017 13:29:08 PDT
- The Robert L. Levine Distinguished Lecture: A Conversation with Justice
Ruth Bader Ginsburg and Professor Aaron Saiger
Authors: Ruth Bader Ginsburg et al.
Abstract: PROFESSOR AARON SAIGER: It’s a signal honor for Fordham Law School and a personal honor for me and a pleasure to have Justice Ginsburg here tonight. We want to thank you for coming. I think I will not reiterate all of the thanks Dean Diller has offered, except to say that we are very grateful to the Levine family and deeply indebted to the students of the Law Review who have made tonight happen. The format of the evening is as follows: I will ask questions and the Justice will answer them.
PubDate: Thu, 30 Mar 2017 13:29:05 PDT
- The Williams Case
Authors: Frederick L. Kane
PubDate: Thu, 23 Mar 2017 16:38:33 PDT
- Government Ownership of Patents
Authors: Frank J. Willie
PubDate: Thu, 23 Mar 2017 16:38:29 PDT
- Obiter Dicta
PubDate: Thu, 23 Mar 2017 16:38:26 PDT
- Recent Decisions
PubDate: Thu, 23 Mar 2017 16:38:20 PDT
- Personal Tort Liability of Administrative Officials
Authors: Eugene J. Keefe
PubDate: Thu, 23 Mar 2017 16:38:14 PDT
- Book Notes
PubDate: Wed, 22 Mar 2017 11:56:29 PDT
- Book Reviews
PubDate: Wed, 22 Mar 2017 11:56:25 PDT
- Obiter Dicta
PubDate: Wed, 22 Mar 2017 11:56:21 PDT