Digital Commons Network^™

Bending The Investment Advisers Act's Regulatory Arc, Joseph A. Franco

Fordham Journal of Corporate & Financial Law

The Investment Advisers Act of 1940 (“IAA”) and its regulatory purview have changed dramatically over the life of the statute. The statute began as a simple registration scheme with barebones conduct integrity prohibitions for wealth managers and purveyors of investment newsletters. Although the statute’s original minimalist cast was deficient, the IAA’s regulatory scope has undergone a fundamental transformation, both in terms of the expanding class of advisers covered by the statute’s substantive provisions and the statute’s expansive structural integrity requirements. Over a span of decades, the IAA’s focus has been reoriented so that it is directed at least as much, …

Emerging Circuit Split Over Modification Of Mortgages On Multi-Use Real Properties, Michal Zabadal

Fordham Journal of Corporate & Financial Law

For many decades, healthy levels of residential mortgage loans (“RMLs”) and their regulation have been among the major drivers of the economy. Because of the importance of RMLs for the condition of the national financial system and the general well-being of the society, it is essential that lenders are reasonably incentivized to originate these loans. A well-designed promise of higher recovery on RMLs in times of distress can be a compelling motivator. The Bankruptcy Code seeks to deliver on that promise by treating RMLs more favorably. It does that by barring the debtor-in-bankruptcy from modifying a claim secured by a …

The Seventh Circuit Missed The Bullseye In Walleye, Peter Rosenberg

Fordham Journal of Corporate & Financial Law

The structure of agency relationships in a transaction should have no bearing on the outcome when the only difference between two hypothetical transactions is solely the facial structure. In the same vein, investor protection is at the forefront of the securities laws; commonly used limiting language for market announcements should not be enough to absolve a company from fraudulent disclosures, e.g., “preliminary results.”

In Walleye Trading LLC v. AbbVie, Inc., a Seventh Circuit decision, the Court did the opposite and found that, based on pleadings at the motion to dismiss stage, an issuer is not liable for the misstatements …

Who Makes Esg? Understanding Stakeholders In The Esg Debate, Matthew Diller, Stephanie Betts, Lorenzo Corte, David M. Silk, Scott V. Simpson, Lisa M. Fairfax, Carmen X. W. Lu, David H. Webber, Leo E. Strine, Jr., Sean J. Griffith

Fordham Journal of Corporate & Financial Law

No abstract provided.

The Virus, Risk, And Commercial Mortgage-Backed Securities: Examining Dodd-Frank’S Impact In The Midst Of A Pandemic, Owen Haney

Fordham Journal of Corporate & Financial Law

When lawmakers sought to reshape the financial industry through the passage of the Dodd-Frank Act in 2010, they specifically attacked the “moral hazard” in the asset-backed securities market that they believed was partly responsible for the collapse of global financial markets. Congress identified several practices in asset-backed securitizations that posed a risk to the world economy. In particular, regulators believed that the “originate-to-distribute” model, whereby loan originators—those parties armed with the best knowledge regarding the quality of the loans in the transaction and who consequently set underwriting standards—could sell off the loans without bearing any risk should those borrowers (homeowners …

Fixing Esg: Are Mandatory Esg Disclosures The Solution To Misleading Ratings?, Javier El-Hage

Fordham Journal of Corporate & Financial Law

This Note provides an overview of the debate around the current state of ESG disclosure practices, and the perceived need for the SEC to establish a system of mandatory ESG disclosures. Part I explores the inherent difficulty of defining ESG, the problematic nature of quantifying and measuring ESG factors, and the tools currently being used by market-leading ratings firms and investment vehicles. In particular, this part addresses the inconsistencies of ESG self-reporting, the influence of this practice on the ensuing ratings, and the potential for investors to be misled as a result.

Part II of the Note explores the possible …

Mark Of The Devil: The University As Brand Bully, James Boyle, Jennifer Jenkins

Fordham Intellectual Property, Media and Entertainment Law Journal

In recent years, universities have been accused in news stories of becoming “trademark bullies,” entities that use their trademarks to harass and intimidate beyond what the law can reasonably be interpreted to allow. Universities have also intensified efforts to gain expansive new marks. The Ohio State University’s attempt to trademark the word “the” is probably the most notorious. There has also been criticism of universities’ attempts to use their trademarks to police clearly legal speech about their activities. But beyond provocative anecdotes, how can one assess whether a particular university is truly bullying, since there are entirely legitimate reasons for …

Democratizing Platform Privacy, Sari Mazzurco

Fordham Intellectual Property, Media and Entertainment Law Journal

The online platform political economy—that is, the interrelationship of economic and political power in the exchange of online services for personal information—has endowed platforms with overwhelming power to determine consumers’ information privacy. Mainstream legal scholarship on information privacy has focused largely on an economic problem: individual consumers do not obtain their “optimal” level of privacy due to a bevy of market failures. This Article presents the political issue: that platforms’ hegemonic control over consumers’ information privacy renders the rules they impose illegitimate from a democratic perspective. It argues platform hegemony over consumers’ information privacy is a political problem, in the …

Free Speech In The Modern Age, [email protected]

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Abridging The Fifth Amendment: Compelled Decryption, Passwords, & Biometrics, Raila Cinda Brejt

Fordham Intellectual Property, Media and Entertainment Law Journal

Technological developments change the way we perform tasks by creating more efficient solutions to old problems and giving rise to opportunities not previously possible. Advances in communications technology have made the world feel smaller and more accessible. These changes also affect the methodology of both criminal activity and the investigative procedures of law enforcement. Our fundamental rights are challenged as judges and state actors try to strike the perfect balance between longstanding values and contemporary problems. This Note considers the Fifth Amendment challenges that arise when law enforcement attempts to obtain evidence from a criminal defendant’s encrypted device. This Note …

Targeting Exceptions, Michal Lavi

Fordham Intellectual Property, Media and Entertainment Law Journal

On May 26, 2020, the forty-fifth President of the United States, Donald Trump, tweeted: “There is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent. Mail boxes will be robbed, ballots will be forged & even illegally printed out & fraudulently signed.” Later that same day, Twitter appended an addendum to the President’s tweets so viewers could “get the facts” about California’s mail-in ballot plans and provided a link. In contrast, Facebook’s CEO Mark Zuckerberg refused to take ac- tion on President Trump’s posts. Only when it came to Trump’s support of the Capitol riot did …

The Duty To Take Precautions In Hostilities, And The Disobeying Of Orders: Should Robots Refuse?, Francis Grimal, Michael J. Pollard

Fordham International Law Journal

No abstract provided.

The (Joseph) Stories Of Newmyer And Cover: Hero Or Tragedy?, Jed H. Shugerman

Faculty Scholarship

Kent Newmyer’s classics Supreme Court Justice Joseph Story: Statesman of the Old Republic and John Marshall and the Heroic Age of the Supreme Court are important stories about the architects and heroes of the rule of law in America. In Newmyer’s account, Story played a crucial role preserving the republic and building a legal nation out of rival states, and Newmyer’s Story is fundamentally important for students of American history. But in Robert Cover’s account in Justice Accused on northern judges’ deference to slavery, Story is an anti-hero. Sometimes Story stayed silent. In Prigg v. Pennsylvania, Story overvalued formalistic comity. …

Anti-Carceral Futures: A Comparative Perspective Of Restorative And Transformative Justice Practices In The United States And New Zealand, Hannah Goodman

Fordham International Law Journal

No abstract provided.

Enforcement Of Non-Monetary Judgments In Common Law Jurisdictions: Is The Time Ripe?, King Fung Tsang & Tsz Wai Wong

Fordham International Law Journal

No abstract provided.

Promoting, Regulating, And Enforcing Human Rights Through International Investment Law And Isds, Crina Baltag & Ylli Dautaj

Fordham International Law Journal

No abstract provided.

The Racial Architecture Of Criminal Justice, I. Bennett Capers

Faculty Scholarship

One of the pleasures of contributing to symposia—especially symposia where each contribution is brief—is the ability to engage in new explorations, test new ideas, and offer new provocations. I do that now in this essay about race, architecture, and criminal justice. I begin by discussing how race is imbricated in the architecture of courthouses, the quintessential place of supposed justice. I then take race and architecture a step further. If we think of architecture expansively—Lawrence Lessig’s definition of architecture as “the physical world as we find it” comes to mind—then it becomes clear that race is also imbricated in the …

Experiential Leadership: Teaching Collaboration Through A Shared Leadership Model, Paul Radvany

Faculty Scholarship

No abstract provided.

The State’S Right To Evidence And Duties Of Citizenship, Youngjae Lee

Faculty Scholarship

No abstract provided.

Judges In The 21st Century: Confidence Lost?, Bruce A. Green, Leslie C. Levin

Faculty Scholarship

No abstract provided.

Tort Theory, Private Attorneys General, And State Action: From Mass Torts To Texas S.B. 8, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

Late twentieth-century tort theory was dominated by scholars who regarded tort law as primarily a means employed by government to deter anti-social conduct. On this model, tort plaintiffs are cast as private attorneys general whose lawsuits promote safety. Tort theorists today better appreciate that this approach obscures crucial respects in which tort law is private law–law that empowers persons who have been wronged to redress the wrongs done to them. But in practice there is a continued failure to perceive the ways in which the deterrence model has shaped and distorted views of tort law, as evidenced by the terms …

Future Sex, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Venturing East: The Involvement Of The International Criminal Court In Post-Soviet Countries And Its Impact On Domestic Processes, Dr. Iryna Marchuk, Aloka Wanigasuriya

Fordham International Law Journal

No abstract provided.

Combatting Iuu Fishing And Improving The Long-Term Conservation Of Fish Stocks: Increasing Transparency In Regional Fisheries Management Organizations, Chris Wold

Fordham International Law Journal

No abstract provided.

Tactical Nuclear Weapons Cannot Comply With The Law Of Armed Conflict, Evan Richardson

Fordham International Law Journal

No abstract provided.

Culture Clash: The Sociology Of Wto Precedent, Harlan G. Cohen

Faculty Scholarship

Thanks to the United States, the WTO Appellate Body can no longer hear appeals. Having blocked all appointments to the body, the United States has left its bench empty, with no members to fulfill its role. Among the United States’ justifications: The Appellate Body’s adoption of an apparent doctrine of precedent.

This chapter takes a deeper look at the fight over precedent at the WTO, both as a case study in the emergence and operation of precedent within international law and as a microcosm of the cultural conflicts playing out within the WTO. The chapter develops an account of precedent …

An Absolute Power, Or A Power Absolutely In Need Of Reform? Proposals To Reform The Presidential Pardon Power, Milana Bretgoltz, Albert Ford, Alicia Serrani

Faculty Scholarship

The presidential pardon power can serve valuable purposes, but the lack of checks on the power invites abuses. This report calls for laws and executive orders to curtail misuses of the pardon power. Congress should pass laws banning the president from pardoning himself or herself and issuing pardons for conduct that has not yet occurred. Executive orders should set detailed procedures for considering pardons and require reports to Congress if the president pardons a family member or close associate.

Takings Localism, Nestor M. Davidson, Timothy M. Mulvaney

Faculty Scholarship

Conflicts over “sanctuary” cities, minimum wage laws, and genderneutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.

Takings jurisprudence looks to the states to mediate most tensions between individual property rights and community needs, as the takings federalism literature recognizes. Takings challenges, however, often involve local governments. If the doctrine privileges the democratic process to resolve most takings claims, then, that critical process is a largely local …

[email protected], Bruce A. Green, Carole Silver

Faculty Scholarship

The transformative potential of technology in legal practice is well recognized. But wholly apart from how law firms actually use technology is the question of what law firms say about how they use and relate to technology—in particular, how law firms communicate whether technology matters and has value in what they do. In the past, firms in the BigLaw category, especially at the top echelon, have grounded their reputations on the credentials and achievements of their lawyers. In this paper, we explore whether elite law firms use technology similarly by describing it as an additional tool of inter-firm competition—a sort …

Fiduciary Law And The Law Of Public Office, Ethan J. Leib, Andrew Kent

Faculty Scholarship

A law of public office crystallized in Anglo-American law in the seventeenth and eighteenth centuries. This body of law—defined and enforced through a mix of oaths, statutes, criminal and civil case law, impeachments, and legislative investigations—imposed core duties on holders of public executive offices: officials needed to serve the public good, not their own private interests; were barred from acting ultra vires; could often be required to account to the public for their conduct in office; and needed to act with impartiality, honesty, and diligence. Officeholding came to be viewed as conditional, with officers removable for misdeeds. These substantive duties …