Digital Commons Network^™

Can The Retail Investor Survive The Fiduciary Standard?, Paul R. Walsh, David W. Johns

St. John's Law Review

(Excerpt)

For the retail investor in the United States, generally two options are available for seeking professional investment advice to reach their financial goals: hiring a broker-dealer or an investment adviser. Each entity is governed under separate regulatory schemes. With the recent financial collapse and the ensuing jump to regulation, there is a push to make a uniform standard for all investment recommendations—a fiduciary standard—that would be a one-size-fits-all reaction, leading to less access and higher costs for the smaller investor. Continued regulation of more disclosure and transparency in the investment sales process, stronger requirements of the investment sales person, …

What's In A Name: The Battle Over A Uniform Fiduciary Standard For Investment Advisers And Broker-Dealers, Andrew Melnick

St. John's Law Review

(Excerpt)

This Article briefly traces the content and sources of the standards governing the conduct of investment advisers and broker-dealers. This Article then summarizes the key elements and recommendations of Dodd-Frank and the SEC Staff Study, and describes the competing visions offered by SIFMA and the Consumer Federation of America coalition in their respective letters to the SEC. This Article concludes with a few observations about particular areas—specifically on the meaning of “personalized investment advice” and the provision of ongoing advice and the duty to monitor—that the SEC should consider providing detailed guidance on. Depending on the final rules formulated …

The Fiduciary Standard: It's Not What It Is, But How It's Made, Measured, And Decided, Mercer Bullard

St. John's Law Review

(Excerpt)

This Article addresses the SEC’s fiduciary rulemaking under Section 913 of the Dodd-Frank Act, but takes a step back from the debate to frame the discussion in a more holistic context. This author’s previous article on the fiduciary standard discussed how the implementation of a fiduciary duty is largely contextual; a variety of factors other than the scope and substance of the fiduciary duty are proximately related to achieving the social benefits that the fiduciary duty is intended to create. Achieving these benefits may depend on, among other things: (1) the limiting of “investment advice” to advice regarding securities, …

A Gross Injustice: Proving Age Discrimination By Federal Employers Under The Adea In The Wake Of Gross V. Fbl Financial Services, Inc., Christine R. Lewis

St. John's Law Review

(Excerpt)

This Note argues that the “but-for” causation required under Gross should not be extended to apply to ADEA claims brought against federal employers because the reasoning of Gross does not support a broad expansion of its holding, and because a less stringent burden of proof is more appropriate in the federal employment context. Part I explains the current requirements placed on a plaintiff bringing a § 623 ADEA claim against a nonfederal employer, as laid out by the Supreme Court in Gross. Part II explores the applicability of Gross to § 633a of the ADEA, which applies to …

Paying The Toll To Be Class Member: The Impact Of The American Pipe Doctrine On Section 13 Of The Securities Act Of 1933, Bryan Denberg

St. John's Law Review

(Excerpt)

This Note argues that the three-year statute of repose in Section 13 of the 1933 Act runs uninterrupted from the bona fide offering or sale of a security and operates as an absolute bar, extinguishing claimants’ rights to bring an action after the three year period ends. Part I of this Note provides an overview of the early legislation on which the 1933 Act is based and surveys the events that led to the Act’s current form. Thereafter Part I discusses four Supreme Court cases that courts are struggling to apply consistently in the context of claims governed by …

Modern Day School Segregation: Equity, Excellence, And Equal Protection, Danielle Kasten

St. John's Law Review

(Excerpt)

This Note argues that, under existing Supreme Court precedent, academic tracking constitutes de jure segregation. It further contends that academic tracking systems need not be analyzed on a district-by-district basis because—in light of their unique history—wherever an academic tracking system creates within school segregation, it is per se unconstitutional. Part I of this Note analyzes the unique history of academic tracking, drawing parallels between academic tracking systems and segregation explicitly mandated by law. Part II outlines current Equal Protection doctrine both generally and within the unique context of schools, and explores how that doctrine has been applied to academic …

Losing All Sense Of Proportion: The Peculiar Law Of Accomplice Liability, Michael Heyman

St. John's Law Review

(Excerpt)

This Article first examines the development of complicity law, noting its common law origins. The Model Penal Code has streamlined the law, but this is not evident until we recognize the maze of terms and concepts that preceded it. Thus, I point out the complex, but flawed, categories of actors that existed at common law and the significance of the accomplice’s location and temporal relationship to the criminal event.

Second, I show the harm wrought by this natural and probable consequence, or common design, doctrine. Magnifying the problematic issues of general complicity law, it extends accomplice liability to establish …

The 2011 Bernstein Lecture At St. John's University School Of Law, Paul A. Crotty

St. John's Law Review

No abstract provided.

Honor And Destruction: The Conflicted Object In Moral Rights Law, Sonya G. Bonneau

St. John's Law Review

(Excerpt)

Part I offers an overview of traditional moral rights theory, particularly the right of integrity, and outlines relevant strains of law and culture that preceded the enactment of VARA. Part II discusses how VARA functions as a statute that mediates artists’ rights through the physical object, and how the deliberate synthesis of preservation theory with orthodox moral rights philosophy hamstrings both ends. Part III identifies cultural assumptions embedded in three prominent attributes of the art object conceptualized as protected under VARA—material, cultural, and transcendent—and discusses their conflicting impulses in the law. Finally, Part IV concludes that the “object model,” …

Legally Blind: Hyperadversarialism, Brady Violations, And The Prosecutorial Organizational Culture, Hadar Aviram

St. John's Law Review

(Excerpt)

Part I presents the problem through an analysis of the opinion of the Court, Justice Scalia’s concurrence, and Justice Ginsburg’s dissent. Part II shows the role played by causation and culpability in framing the responsibility of prosecutors in discovery proceedings. Part III discusses the implications of discovery violations for § 1983 suits, in contrast to their role in direct and collateral review of the conviction itself. Part IV presents evidence from a solid body of literature in sociology and political science, explaining why the debate misses the essential understanding of how prosecutorial offices work. Part V tackles the thorny …

We're On A Mission From God: Properly Interpreting Rluipa's "Equal Terms" Provision, Daniel Mazzella

St. John's Law Review

(Excerpt)

This Note argues that the interpretations given to the “equal terms” provision thus far are incorrect, and that a better approach is to compare secular and religious assemblies and institutions on the basis of their purposes. Part One of this Note provides the background to RLUIPA from Sherbert to the Act’s enactment. In Part Two, Midrash, Lighthouse, and River of Life are presented in chronological order and each circuit’s test is analyzed. In Part Three, the provision’s plain text and its placement in the larger statutory scheme are analyzed in accordance with standard canons of construction. The …

In The Best Interests Of No One: How New York's "Best Interest Of The Child" Law Violates Parents' Fundamental Right To The Care, Custody, And Control Of Their Children, Nicole Lapsatis

St. John's Law Review

(Excerpt)

This Note argues that New York State’s procedure for determining custody disputes allows a judge to abridge parents’ fundamental right to the care, custody, and control of their children without evidence of a compelling justification. Specifically, this Note argues that because of New York’s nebulous standard for determining what is the best interest of the child, more often than not, a judge is forced to substitute personal value judgments and biases to compensate for the lack of clear guidance provided to judges in order to determine what is in the child’s best interests. A judge, after attempting to overcome …

He Said, She Said: Sex Crime Prosecutions And Spousal Privileges Under The Federal Rules Of Evidence, Jennifer Kelly

St. John's Law Review

(Excerpt)

This Note argues that federal courts, in considering the applicability of either the spousal communications privilege or the adverse testimonial privilege, should look to the type of crime alleged against the defendant and should carve out an exception rendering these privileges unavailable wherever the defendant has been charged with a sex crime, regardless of the victim’s age or relationship to the defendant. This Note discusses and explains the uniquely heinous nature of such crimes, their markedly devastating effects on victims, and the inherent challenges and difficulties in successful prosecution, in order to emphasize the importance of allowing them special …

The Importance Of Legal Context And Other Considerations In Assessing The Suitability Of Negotiation, Mediation, Arbitration And Litigation In Resolving Effectively Domestic And International Disputes (Employment Disputes And Beyond), Guido Carducci

St. John's Law Review

(Excerpt)

The six sets of considerations examined in this Article take such variety into account and focus on factors that are meaningful for all disputes, though in different proportions. The minimum requirement for the purpose of such considerations is that the dispute relies on a disagreement in fact and in law, not merely in fact. In today’s highly regulated society, the law is most often present although an individual may not perceive it correctly in facing a dispute.

The following six sets of considerations include, it is submitted, most of the essential factors that enable users to understand what dispute …

A Comparative Assessment Of Labor And Employment Dispute Resolution In The United States And United Kingdom From 2006 Through 2011, David L. Gregory, Michael Harary

St. John's Law Review

(Excerpt)

This Article traces the law governing employment dispute resolution systems in the international economic crisis through the lens of economic statistics, one of the most compelling events in employment law today—involving the Boeing company, and ObamaCare. The latter part of this short piece discusses the legislative changes effected by the United Kingdom in the realm of ADR as related to labor disputes from July 2006 to July 2011 and a new resolution by the United Kingdom, the Dispute Resolution Commitment, professing a positive trend toward the formal adoption of ADR as a best practice for the United Kingdom government.

A Century And Half Century Of Advance And Retreat: The Ebbs And Flows Of Workplace Democracy, William B. Gould Iv

St. John's Law Review

(Excerpt)

Unions and collective bargaining are not dinosaurs in 2011 as some would wish. The broad trend of these past 200 years, let alone 150, in the political arena suggests that democratic principles in the workplace are not easily eviscerated.

This then is our challenge. It is not a new challenge, though the past 150 years since our Civil War have produced institutions and dynamics of which we did not think of just a few years ago— representative democracy, freedom of association, and a quest for equality. Next year is tomorrow. In a very different form, this is what WBG …

Keynote Address: The Moral Dimension Of Employment Dispute Resolution, Theodore J. St. Antoine

St. John's Law Review

(Excerpt)

Here I am first going to take a quick tour of some of the world’s great texts, sacred and profane, on dispute resolution, especially through methods chosen by the parties themselves. Then I shall look at a few of the systems that have been created across the globe to settle employment disputes, and what they may have to teach us about the most appropriate procedures. Because so many courts or public tribunals around the world have become overwhelmed by the volume of today’s litigation, much of my emphasis will be on alternative dispute resolution (“ADR”). Finally, I should like …

Hydraulic Fracturing In The Marcellus Shale: The Need For Legislative Amendments To New York's Mineral Resources Law, Patrick Siler

St. John's Law Review

(Excerpt)

In the interest of maximizing the efficacy of the law’s stated policy objectives—a greater recovery of gas, protection of the correlative rights of property owners, and the full protection of the rights of all persons, including producers and the general public—and minimizing the need for court action in addressing potential conflicts, this Note concludes by recommending the following discrete amendments to the current regulatory framework. First, the legislature should adopt a more comprehensive definition of waste that includes environmental waste and disposal. Second, legislators must reconcile the conflict between landowners’ rights and the practice of compulsory integration in one …

Restoring The Balance Between Immigration Self-Reporting Requirements And The Fifth Amendment, Sheena Kelley

St. John's Law Review

(Excerpt)

This Note argues that the test currently relied on to maintain this balance is no longer effective and must be replaced. Part I analyzes the history of immigration law and limitations on Fifth Amendment protections. Part I also examines the legislative history of 8 U.S.C. § 1324(a)(2)(B)(iii) and its intended use as an anti-smuggling statute. Part II discusses the factors used by courts to evaluate Fifth Amendment claims and courts’ treatment of various reporting provisions. This Part also discusses how these factors, as they are currently applied by the courts, no longer adequately protect individuals’ Fifth Amendment rights. Part …

Cutting The Financial Fat From The Failing Firm Defense: Refocusing The Failing Firm Defense On Antitrust Law, Kyle Digangi

St. John's Law Review

(Excerpt)

This Note proposes that the failing firm defense be strengthened to an “Assets Exiting Defense,” which would allow an otherwise anticompetitive merger to go forward only if there are no other alternative purchasers that would make the acquisition less anticompetitive and if the target firm’s assets would exit the relevant market without the acquisition. A stronger “Assets Exiting Defense” that focuses exclusively on antitrust principles is necessary because in a distressed economy, the current failing firm defense could become an escape hatch for anticompetitive transactions involving firms that are only in financial distress. This Note argues that the assets …

An Objective Approach To Obscenity In The Digital Age, Ryan J. Adams

St. John's Law Review

(Excerpt)

This Note argues for an objective approach to international comparative law using the Hofstede Study as a guideline. Part I charts the modern history of obscenity jurisprudence, starting with Miller and going up to the current circuit split. Part II analyzes the problems of Miller and its progeny. Part III briefly considers the problems of the Ninth Circuit’s “national community” approach, applying arguments from Part II. Finally, Part IV identifies a methodology derived from the Eighth Amendment’s “evolving standards of decency” test which uses objective criteria to guide the development of a national standard which is informed by international …

Clinton, Campaigns, And Corporate Expenditures: The Supreme Court's Recent Decision In Citizen's United And Its Impact On Corporate Political Influence, Glen M. Vogel

St. John's Law Review

(Excerpt)

In order to effectively analyze the impact of the Court’s holding in this controversial 5-4 decision, this article will discuss the following: Part I will discuss the case law and regulatory history of campaign finance law in the United States over the past one-hundred years; Part II will look at the campaign finance law at issue in Citizens United—the McCain-Feingold Act—and some of its critical components; Part III will look at the background of the Citizens United case and the Court’s holding, along with some of its practical implications; Part IV will examine some lesser discussed aspects of …

Is Systemic Risk Prevention The New Paradigm? A Proposal To Expand Investor Protection Principles To The Hedge Fund Industry, Cary Martin

St. John's Law Review

(Excerpt)

Part I of this Article describes the basic hedge fund structure, explains the benefits that hedge funds can provide to the national securities markets and highlights the controversies that are frequently associated with these investment vehicles. Part II explains why the Dodd-Frank Act is mostly focused on systemic risk prevention as opposed to investor protection, and gives a broad overview of its relevant provisions. It also demonstrates that the Dodd-Frank Act does little to increase investor protection. For example, with respect to preventing hedge fund fraud, the exemptions provided under the act will limit the SEC’s ability to detect …

Chapter 11 Reorganization And The Fair And Equitable Standard: How The Absolute Priority Rule Applies To All Nonprofit Entities, Pamela Foohey

St. John's Law Review

(Excerpt)

The remainder of this Article proceeds in two stages. First, Parts II, III, and IV provide the background necessary to develop the theory. Part II chronicles the development of the fair and equitable standard and the absolute priority rule. This history is important to understanding the interconnectedness of the rule with the standard. Part III details the key functions of the absolute priority rule and the rule’s application to for-profit entities, with an emphasis on concerns regarding its compatibility with close corporations. This review highlights how courts’ current application of the absolute priority rule to nonprofits contravenes the rule’s …

Two Too Many: Third Party Beneficiaries Of Warranties Under The Uniform Commercial Code, Jennifer Camero

St. John's Law Review

(Excerpt)

This Article surveys and analyzes the current version of section 2-318 and suggests improvements so that section 2-318 produces more uniform and equitable results that better facilitate interstate commerce in today’s complex commercial environment. Part I discusses the historical genesis of section 2- 318, specifically the common law concept of privity and its progression to the current version of section 2-318. Part II expounds upon certain issues with section 2-318 as currently drafted, which include lack of uniformity and lack of remedy for a valid breach of warranty claim. Part III establishes how the courts have begun eroding the …

Cases And Materials On Criminal Law (Book Review), G. Robert Ellegaard

St. John's Law Review

No abstract provided.

Attorneys Exempt From Filing Certificate Of Partnership, Catherine Greenfield

St. John's Law Review

No abstract provided.

The Selective Service And Training Act Of 1940, Alexander Vitale

St. John's Law Review

No abstract provided.

Unemployment Insurance--Benefits--Distinction Between An Employee And An Independent Contractor (In Re Morton, 284 N.Y. 167 (1940)), St. John's Law Review

St. John's Law Review

No abstract provided.

Subversive Activity As A Cause Of Ineligibility For The Civil Service, Lawrence D. Bell

St. John's Law Review

No abstract provided.