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Rhetoric And Reality In The Tax Law Of Charity, Linda Sugin
Rhetoric And Reality In The Tax Law Of Charity, Linda Sugin
Fordham Law Review
This Article contrasts the rhetoric of public benefit connected to charity in the law with the reality of private control of charitable organizations. It argues that the tension between the rhetoric and reality have produced norms of entitlement that undermine taxation. It offers an approach to the role of charity under the law by defining the obligations of government in a just society, qualifying the economic framework dominant in the literature concerning charities, and identifying what private charity can achieve that governments cannot. This Article concludes by endorsing the charitable deduction in the tax law on terms consistent with this …
Liberalism, Philanthropy, And Praxis: Realigning The Philanthropy Of The Republic And The Social Teaching Of The Church, Rob Atkinson
Liberalism, Philanthropy, And Praxis: Realigning The Philanthropy Of The Republic And The Social Teaching Of The Church, Rob Atkinson
Fordham Law Review
This Article seeks a common ground for theists of the Abrahamist religious faiths and agnostics in the Socratic philosophical tradition on the role that the liberal state should play in advancing the two coordinate aims of traditional philanthropy: helping society’s least well off and advancing the highest forms of human excellence. It focuses particularly on Abrahamists who are orthodox Catholics and Socratics who are left-liberals, distinguishing their broad views on the liberal state’s proper philanthropic role from the far narrower views of libertarians and other right-liberals. It concludes that adherents of Catholic Social Teaching and advocates of secular left-liberalism can …
Job Creationism, Victor Fleischer
Job Creationism, Victor Fleischer
Fordham Law Review
Does a low tax rate on entrepreneurial income create jobs? Tax scholars view this question as empirical in nature. But for many policymakers, voters, and even some academics, the relationship between taxes and entrepreneurship is a matter of faith. If there is a question, it is one of ideological commitment, not evidence and reason. Consider the ease with which politicians claim that tax cuts for entrepreneurs and investors create jobs and fuel economic growth. This claim would appear to be a falsifiable claim subject to empirical observation and testing. But evidence in support of the claim is, in fact, hard …
The Social Boundaries Of Corporate Taxation, Sloan G. Speck
The Social Boundaries Of Corporate Taxation, Sloan G. Speck
Fordham Law Review
This Article argues that, while important, efficiency considerations should not function as the sole arbiter of the boundary between corporate and conduit tax treatment. First, classical corporate taxation is, in many ways, deeply embedded within a larger network of legal and social meanings. Classical corporate taxation operates in concert with, rather than separately from, these legal and social meanings. For this reason, the rules governing entities’ tax classification should take these interrelationships into account, if not as a primary norm, then as a secondary consideration when empirical or other uncertainties preclude a clear choice based on efficiency. The social boundaries …
Perpetuating Inequality By Taxing Wealth, Goldburn P. Maynard Jr.
Perpetuating Inequality By Taxing Wealth, Goldburn P. Maynard Jr.
Fordham Law Review
This Article attempts to correct this shortcoming in the progressive argument by returning narrative to its central place in the estate tax debate. Drawing on psychological insights, I hope to underscore the difficulty of the effort to preserve progressive taxation and combat wealth inequality.
The Curious Beginnings Of The Capital Gains Tax Preference, Ajay K. Mehrotra, Julia C. Ott
The Curious Beginnings Of The Capital Gains Tax Preference, Ajay K. Mehrotra, Julia C. Ott
Fordham Law Review
Despite the importance of the capital gains tax preference, and the controversy it often evokes, there has been relatively little serious scholarly attention paid to the historical development of this highly significant tax provision. This Article seeks to move beyond the normative and presentist concerns for or against the tax preference to recount the empirical beginnings and early twentieth-century development of this important tax law. In exploring the curious beginnings of the capital gains tax preference, this brief Article has several aims. First, its main goal is to show that the preference is not a timeless or transhistorical concept, but …
Foreword: We Are What We Tax, Mary Louise Fellows, Grace Heinecke, Linda Sugin
Foreword: We Are What We Tax, Mary Louise Fellows, Grace Heinecke, Linda Sugin
Fordham Law Review
On November 12 and 13, 2015, the Fordham Law Review hosted a symposium entitled We Are What We Tax. We invited scholars with a wide array of expertise inside and outside of the tax arena to consider how tax laws have shaped public and private institutions, cultural norms and hierarchies, and societal values.
Beyond Citizens United, Nicholas Almendares, Catherine Hafer
Beyond Citizens United, Nicholas Almendares, Catherine Hafer
Fordham Law Review
The doctrine announced in Citizens United rendered most efforts to regulate campaign financing unconstitutional. We argue, however, that the doctrine allows for a novel approach to the concerns inherent in campaign financing that does not directly infringe on political speech, because it operates later in the process, after the election. This approach allows us to address a broad range of these issues and to do so with legal tools that are readily available. We describe two applications of our approach in this Article. First, we argue that courts should use a modified rational basis review when a law implicates the …
Registered Savings Plans And The Making Of Middle-Class Canada: Toward A Performative Theory Of Tax Policy, Lisa Philipps
Registered Savings Plans And The Making Of Middle-Class Canada: Toward A Performative Theory Of Tax Policy, Lisa Philipps
Fordham Law Review
Campaigning politicians and elected governments across Canada’s political spectrum strive to position themselves as defenders of the middle class. This is to be expected given the large proportion of the Canadian population that self-identifies as middle class. Since the term lacks precision, it is a claim that can accommodate a wide range of policy proposals. Tax policy serves as a prime vehicle for making this appeal to middle-class voters. Undoubtedly, any tax reform proposal can be examined critically to evaluate its likely distributional impacts and how well these map onto specific definitions of the middle class. This Article attempts, however, …
No Misrepresentation Needed: Excepting Discharge For Actual Fraud Under 11 U.S.C. § 523 Without Misrepresentation, Morgan Green
No Misrepresentation Needed: Excepting Discharge For Actual Fraud Under 11 U.S.C. § 523 Without Misrepresentation, Morgan Green
Fordham Law Review
Imagine buying a game from a seller and promising to repay him at a later date. However, instead of repayment, you decide to give the game to your friend, who in turn allows you to use it. Then your friend declares bankruptcy to discharge the price of the game from his debts, thus allowing you both to use it without paying. This repayment runaround is the issue that the First and Fifth Circuits were asked to decide in two recent cases. Specifically, the question was whether a debt incurred by “actual fraud” may be discharged by the recipient of the …
Keeping Shareholder Activism Alive: A Comparative Approach To Outlawing Dead Hand Proxy Puts In Delaware, Danielle A. Rapaccioli
Keeping Shareholder Activism Alive: A Comparative Approach To Outlawing Dead Hand Proxy Puts In Delaware, Danielle A. Rapaccioli
Fordham Law Review
Current trends in shareholder activism have brought to light the competing interests of management and stockholders. With a rise in shareholder activism, firms are continuing to include change in control provisions, known as proxy puts, in their debt agreements to counter activist success. Recent litigation regarding the use of these provisions has created a debate as to whether these provisions are valid under Delaware law. Moreover, companies and lending institutions have morphed these provisions into a more restrictive form, known as “dead hand proxy puts.” The controversy analyzed in this Note arises out of the use of dead hand proxy …
Time, Due Process, And Representation: An Empirical And Legal Analysis Of Continuances In Immigration Court, David Hausman, Jayashri Srikantiah
Time, Due Process, And Representation: An Empirical And Legal Analysis Of Continuances In Immigration Court, David Hausman, Jayashri Srikantiah
Fordham Law Review
Since 2014, U.S. immigration courts have expedited the cases of many children and families fleeing persecution in Mexico and Central America. This Article conducts an empirical and legal analysis of this policy, revealing that reasonable time between immigration court hearings is necessary to protect the statutory and constitutional rights to legal representation. A large majority of immigrants facing deportation- including those part of the recent surge of children and families from Central America and Mexico-appear at their first deportation hearing without a lawyer, often because they cannot afford one. When an immigrant appears without a lawyer and does not expressly …
Moving Beyond “Reasonable”: Clarifying The Ftc’S Use Of Its Unfairness Authority In Data Security Enforcement Actions, Timothy E. Deal
Moving Beyond “Reasonable”: Clarifying The Ftc’S Use Of Its Unfairness Authority In Data Security Enforcement Actions, Timothy E. Deal
Fordham Law Review
Data security breaches, which compromise private consumer information, seem to be an ever-increasing threat. To stem this tide, the Federal Trade Commission (FTC) has relied upon its authority to enforce the prohibition against unfair business practices under section 5 of the Federal Trade Commission Act (“section 5”) to hold companies accountable when they fail to employ data security measures that could prevent breaches. Specifically, the FTC brings enforcement actions when it finds that companies have failed to implement “reasonable” data security measures. However, companies and scholars argue that the FTC has not provided adequate notice of which data security practices …
Foreword: Lawyering In The Regulatory State, Nancy J. Moore
Foreword: Lawyering In The Regulatory State, Nancy J. Moore
Fordham Law Review
The authors use a variety of methodologies, including traditional legal analysis, as well as empirical and historical research. Finally, they focus on such diverse issues as the role of agencies in facilitating access to justice, the lawyer’s role as gatekeeper in agency litigation and regulatory compliance, and the unique role of the in-house lawyer, both private and public. Taken together, they open a large window on the complex work of many lawyers who are often overlooked in the legal profession’s literature.
Nothing Could Be Finer?: The Role Of Agency General Counsel In North And South Carolina, Elizabeth Chambliss, Dana Remus
Nothing Could Be Finer?: The Role Of Agency General Counsel In North And South Carolina, Elizabeth Chambliss, Dana Remus
Fordham Law Review
This Article examines the role of agency general counsel in North and South Carolina. The two states offer a rich comparative context for research on agency general counsel. Though closely linked in both name and culture, they have different executive structures and recent political histories, and the agency counseling function has evolved and is currently organized in different ways. These structural and political differences at the state level illuminate commonalities and differences at the agency level and provide an accessible starting point for broader state-level research. Part I examines the structural evolution of the agency general counsel position and the …
Communication And Competence For Self-Representation, E. Lea Johnston
Communication And Competence For Self-Representation, E. Lea Johnston
Fordham Law Review
In Indiana v. Edwards, the U.S. Supreme Court held that states may impose a higher competency standard for self-representation than to stand trial in criminal cases. While the Court articulated a number of interests relevant to representational competence, it left to states the difficult task of formulating an actual competence standard. This Article offers the first examination and assessment of the constitutionality of state standards post-Edwards. It reveals that seven states have endorsed a representational competence standard with a communication component. Additionally, twenty states have embraced vague, capacious standards that could consider communication skills. In applying these standards, states …
Guns And Drugs, Benjamin Levin
Guns And Drugs, Benjamin Levin
Fordham Law Review
This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, this Article uses as its test case the criminal regulation of gun possession. This Article identifies and distills three lines of drug war criticism and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, this Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social and economic costs of mass …
Recalling The Lawyers: The Nhtsa, Gm, And The Chevrolet Cobalt, Bernard W. Bell
Recalling The Lawyers: The Nhtsa, Gm, And The Chevrolet Cobalt, Bernard W. Bell
Fordham Law Review
This Article summarizes product safety and vehicle safety law and recounts General Motors Company’s (GM) response to the Cobalt ignition switch defect, paying particular attention to the actions of GM’s in-house and outside counsel. This Article then considers the legality and prudence of a regulatory agency’s imposition of gatekeeping responsibilities on such counsel.
Lawyering Within The Domain Of Expertise, David Mcgowan
Lawyering Within The Domain Of Expertise, David Mcgowan
Fordham Law Review
This Article uses the history of patent prosecution to assess the relationship between the practice of law and the claim of an administrative agency to possess and to employ expertise.
The Laws Of Agency Lawyering, George M. Cohen
The Laws Of Agency Lawyering, George M. Cohen
Fordham Law Review
The great variety of agency rules governing lawyers raises interesting questions that are worth exploring. This Article begins that exploration. Part I lays the groundwork by briefly examining how the ABA Model Rules treat regulatory lawyering to raise the question of what regulatory gaps the agency rules might be expected to fill. Part II sets forth several possible theories of agency rule variation. Part III compares agency rules along a number of dimensions, examines some similarities and differences across agencies as well as between the agency rules and the Model Rules, and offers speculations about what may be driving the …
Lawyers In The Shadow Of The Regulatory State: Transnational Governance On Business And Human Rights, Milton C. Regan Jr., Kath Hall
Lawyers In The Shadow Of The Regulatory State: Transnational Governance On Business And Human Rights, Milton C. Regan Jr., Kath Hall
Fordham Law Review
Lawyers are beginning to play an important role in strengthening the system of transnational governance that regulates business and human rights. In setting the background to our discussion of lawyers’ role in this context, Part I of this Article provides a general overview of the emergence of the transnational governance regime. Part II then describes some of the governance instruments that attempt to prevent and rectify the adverse human rights impacts of business activities. Part III discusses the extent to which lawyers are advising their business clients on human rights issues, the factors that may inhibit or encourage the provision …
Ethics For Examiners, Daniel J. Bussel
Ethics For Examiners, Daniel J. Bussel
Fordham Law Review
The inquisitorial bankruptcy examiner is sui generis in our system. He faces unique ethical quandaries and considerations, which require a code of ethics tailored to his role if he is to achieve fully the promise of improving Chapter 11 through the introduction of inquisitorial investigative methods. This Article attempts to point the way toward guidelines that will regulate the conduct of examiners to mitigate real, potential, and perceived abuses.
Lawyer Speech In The Regulatory State, Renee Newman Knake
Lawyer Speech In The Regulatory State, Renee Newman Knake
Fordham Law Review
A lawyer’s speech as advisor and advocate not only holds First Amendment value for the client and for the public, but also for the functioning of American democracy. This is supported both by foundational values undergirding the First Amendment as well as Supreme Court doctrine. This Article builds upon that analysis to posit that lawyers for the regulatory state ought not to be treated as government employees for purposes of the First Amendment when engaged in speech about workplace conditions related to curbing abuse of power, corruption, or other illegality. While this position runs counter to the existing precedent of …
Oh, Won't You Stay With Me?: Determining Whether § 3 Of The Faa Requires A Stay In Light Of Katz V. Cellco Partnership, Alessandra Rose Johnson
Oh, Won't You Stay With Me?: Determining Whether § 3 Of The Faa Requires A Stay In Light Of Katz V. Cellco Partnership, Alessandra Rose Johnson
Fordham Law Review
The Federal Arbitration Act (FAA) provides the legal framework to render international and interstate arbitration agreements judicially enforceable in the United States. In furtherance of that goal, it provides that, if a party initiates litigation rather than arbitration of an arbitrable dispute, either party may request that the court stay the litigation pending resolution in an arbitration proceeding. The U.S. courts of appeals are currently split as to whether § 3 of the FAA requires a court under these circumstances to stay the action or whether the court has the discretion to dismiss the action altogether. In Katz v. Cellco …
Are Campus Sexual Assault Tribunals Fair?: The Need For Judicial Review And Additional Due Process Protections In Light Of New Case Law, Emily D. Safko
Are Campus Sexual Assault Tribunals Fair?: The Need For Judicial Review And Additional Due Process Protections In Light Of New Case Law, Emily D. Safko
Fordham Law Review
The pervasiveness of sexual assault on college and university campuses and the schools’ failures to take sexual assault seriously have resulted in recent reforms to college campus disciplinary proceedings. The federal government has largely prompted this wave of reform through Title IX, requiring schools to employ particular policies and procedures for investigating and adjudicating sexual assault as a condition of receiving federal funds. Although the federal government’s mandates may be properly motivated, these reforms are criticized because they encourage schools to enact procedures that are heavily stacked against those accused of sexual assault. Consequently, students alleging that they have been …
The Conscious Parallelism Of Wolf Packs: Applying The Antitrust Conspiracy Framework To Section 13(D) Activist Group Formation, William R. Tevlin
The Conscious Parallelism Of Wolf Packs: Applying The Antitrust Conspiracy Framework To Section 13(D) Activist Group Formation, William R. Tevlin
Fordham Law Review
Section 13(d) of the Williams Act requires all persons and groups that acquire 5 percent or more of an issuer’s outstanding stock to disclose their holdings to the Securities and Exchange Commission. Whether a group is formed under section 13(d) often is unclear. The legal precedent is ambiguous; courts give more weight to certain forms of circumstantial evidence than others without explaining why. With the substantial increase of hedge fund activism—in particular, the wolf pack tactic—further clarity or uniformity is necessary. A “wolf pack” is a loose association of hedge funds that employs parallel activist strategies toward a target corporation …
The Hearsay Rule As A Rule Of Admission Revisited, Ronald J. Allen
The Hearsay Rule As A Rule Of Admission Revisited, Ronald J. Allen
Fordham Law Review
Now to substance. To intelligently analyze what changes to the hearsay rule should be considered, one needs to examine: first, the overall objectives of the field of evidence; second, the particular objectives of the Federal Rules of Evidence; third, how well the hearsay rule advances, or retards, those objectives; and finally, the sense and sensibility of any proposed changes.
Reality Check: A Modest Modification To Rationalize Rule 803 Hearsay Exceptions, Liesa L. Richter
Reality Check: A Modest Modification To Rationalize Rule 803 Hearsay Exceptions, Liesa L. Richter
Fordham Law Review
The Federal Rules of Evidence (or “the Rules”) identify hearsay that is admissible, notwithstanding the classic hearsay prohibition, by delineating categories of hearsay statements that may be admitted into evidence. For example, “dying declarations” of now-unavailable declarants may be admitted in homicide prosecutions or civil cases. “Excited utterances” relating to a startling event also may be admitted for their truth. The purported justification for admitting certain categories of hearsay rests upon the inherent reliability of human statements uttered in certain contexts, as well as litigants’ need for crucial evidence to build cases.
The Philip D. Reed Lecture Series: Symposium On Hearsay Reform, Panel Discussion
The Philip D. Reed Lecture Series: Symposium On Hearsay Reform, Panel Discussion
Fordham Law Review
This Panel Discussion was held on October 9, 2015, at John Marshall Law School. This transcript of the Panel Discussion has been lightly edited and represents the panelists’ individual views only and in no way reflects those of their affiliated firms, organizations, law schools, or the judiciary.
The British Experience With Hearsay Reform: A Cautionary Tale, Mark S. Brodin
The British Experience With Hearsay Reform: A Cautionary Tale, Mark S. Brodin
Fordham Law Review
Among the proposals being considered by the Advisory Committee on the Federal Rules of Evidence (“the Committee”) is the scrapping of the categorical exception regime for hearsay, leaving questions of reliability and admissibility ad hoc to district court judges along the lines of Federal Rules of Evidence (FRE) 403 and 807. Over the past decades, the British have moved toward this approach, and it is the purpose of this Article to identify the lessons that can be learned from that experience, especially with regard to criminal prosecutions and the right of confrontation.