Law Commons^™

Spacs, Forward-Looking Statements, And Rule 419: Is Sec Rulemaking Needed?, Nicholas Vota

St. John's Law Review

(Excerpt)

On October 8, 2020, FirstMark Horizon Acquisition Corp. (“FirstMark” or “Company”) closed an initial public offering (“IPO”) of 41,400,000 units. Each unit was priced at $10.00 and “consist[ed] of one share of Class A common stock of the Company . . . and one-third of one redeemable warrant of the Company.” Each whole warrant provided its holder with the right to purchase “one share of Class A [c]ommon [s]tock for $11.50 per share.” FirstMark generated $414,000,000 in connection with the IPO. These funds were then placed in a trust account and maintained by a trustee.

In a filing submitted …

Offshore Wind Energy Or Domestic Seafood? How The Department Of The Interior Can Facilitate Both Through Self-Binding Procedures, Adele Irwin

St. John's Law Review

(Excerpt)

The United States has many identities, including that of a coastal nation. With the largest Exclusive Economic Zone (“EEZ”) in the world, the United States has jurisdiction over more human activity in the ocean than any other country. Like people in most coastal nations, Americans are drawn to the ocean. Almost forty percent of the population lives in coastal counties that constitute less than ten percent of the nation’s land mass, and 58.3 million jobs and more than $9.5 trillion of gross domestic product are attributable to ocean resources annually. These figures have increased over time.

The diverse industries …

Statutory Interpretation And Agency Disgorgement Power, Caprice Roberts

St. John's Law Review

(Excerpt)

In recent decades, the Supreme Court has showed enhanced interest in equitable principles and remedies. What began as periodic cases featuring one jurist’s idiosyncratic and sometimes misguided interpretations has manifested a broader, significant trend. A consequential theme emerges across varied cases: a revival in the Court’s emphasis on the jurisprudence of equitable remedies. The Court’s recent and current docket continues this momentum. Scholars are tracking the developments and advocating for a system of equity; focusing on historical constraints and federal equity power; and generating a restitution revival.

What happens when obstacles foreclose claims and threaten to leave parties without …

The Intersection Of The Bankruptcy Courts And Ferc, Amanda Gazzo

Bankruptcy Research Library

(Excerpt)

In the past, the bankruptcy courts and the Federal Energy Regulatory Commission (“FERC”) have been involved in a power struggle with one another. Congress has granted bankruptcy courts exclusive authority to allow debtors to reject executory contracts in chapter 11 reorganization cases. Additionally, Congress has granted FERC authority to govern over utility entities’ filed-rates, which are sometimes contained in executory contracts. It is in this intersection, regarding executory contracts containing filed-rates, where the power struggle between the two exists.

An executory contract is a contract where both parties still have material obligations to perform under the contract. Filed-rates may …

Bring On The Chicken And Hot Oil: Reviving The Nondelegation Doctrine For Congressional Delegations To The President, Loren Jacobson

St. John's Law Review

(Excerpt)

The so-called “nondelegation doctrine” posits that Congress may not transfer its legislative power to another branch of government, and yet Congress delegates its authority routinely not only to the President, but to a whole host of other entities it has created and that are located in the executive branch, including executive branch agencies, independent agencies, commissions, and sometimes even private parties. Recognizing that “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives,” the Supreme Court of the United States …

The Emergency Next Time, Noa Ben-Asher

Faculty Publications

This Article offers a new conceptual framework to understand the connection between law and violence in emergencies. It is by now well-established that governments often commit state violence in times of national security crisis by implementing excessive emergency measures. The Article calls this type of legal violence “Emergency-Affirming Violence.” But Emergency Violence can also be committed through governmental non-action. This type of violence, which this Article calls, “Emergency-Denying Violence,” has manifested in the crisis of the COVID-19 pandemic.

The Article offers a taxonomy to better understand the phenomenon of Emergency Violence. Using 9/11 and COVID-19 as examples, the Article proposes …

Is Airbnb Polluting The Big Apple? The Impact Of Regulating The Short-Term Rental Service In New York City, Kayla Laskin

Journal of Civil Rights and Economic Development

(Excerpt)

Imagine your boss calls you into his office on a Monday morning. You think you are going to chat about the weekly agenda ahead; however, you notice the sullen look on your boss’s face. You immediately become nervous and think that no good news could possibly come from this meeting. You begin to glance over his desk and notice printouts for unemployment counseling and job listings in the area. Sheer panic begins to spread throughout your body, and then your boss states, “I’m sorry, we’re going to have to let you go.” Your stomach drops to the floor. Your …

Sec V. Creditors: Why Sec Civil Enforcement Practice Demonstrates The Need For A Reprioritization Of Securities Fraud Claims In Bankruptcy, Sean Kelly

St. John's Law Review

(Excerpt)

This Note examines how this tension has motivated the SEC to use receiverships as a preferred vehicle to maximize recovery for defrauded security holders and, in the process, create what amounts to an SEC-run bankruptcy proceeding. The use of these receiverships has triggered a high-stakes race to the courthouse among the SEC and creditors, where mere hours can be the difference between millions in recovery and nothing at all. To end this costly race, this Note proposes a solution that seeks to harmonize securities fraud enforcement with bankruptcy law, which starts with revisiting Bankruptcy Code § 510(b) to reprioritize …

Crowdfunding Capital In The Age Of Blockchain-Based Tokens, Patricia H. Lee

St. John's Law Review

(Excerpt)

To illustrate the findings, this Article proceeds like so. Part I provides a brief history of the Reg. CF exemption law and the research findings about investment crowdfunding, generally, and digital tokens, more specifically. Next, Part II provides insights on the current state of offering blockchain-based digital tokens to unsophisticated investors and the silver linings in the data. Finally, Part III provides recommendations for a path forward in Reg. CF. First, the SEC should re-evaluate its regulatory policy in light of the proliferation of blockchain-based token offerings and gaps in funding portals, and provide additional warnings to unsophisticated investors …

A Perfect Storm: Religion, Sex, And Administrative Law, Helen M. Alvare

St. John's Law Review

(Excerpt)

In order to propose a way forward toward better sexual and reproductive health regulation, which also avoids undercutting or crossing swords with religion, this Article will proceed as follows: Part I will paint with a broad brush the current state of sexual and reproductive health problems in the United States, focusing a bit upon younger Americans to whom SRA programs are addressed. It will highlight disparities according to race and socioeconomic conditions when these obtain. These are troubling on their face, but particularly troubling today at a time of perceived heightened racial and socioeconomic class tension in the United …

Pharmaceutical Price Gouging: The Need For Direct Regulation On The Gray Market, Nicole Rende

Journal of Civil Rights and Economic Development

(Excerpt)

This Note proposes federal legislation that will ultimately shut down the Pharmaceuticals gray market. The federal government should directly regulate the gray market and the price gouging mechanisms used. Congress should pass the Fair Accountability and Innovative Research Drug Pricing Act of 2016, currently proposed. This Act will increase price transparency and provide a civil penalty for wrong doers. In addition to the passage of this Act, there needs to be a direct attack on the gray market by creating an act that does not allow companies to participate in these distributions and ultimately form monopolies. This act needs …

Inaccessible Websites Are Discriminating Against The Blind: Why Courts, Websites, And The Blind Are Looking To The Department Of Justice For Guidance, Elizabeth Sheerin

St. John's Law Review

(Excerpt)

This Note argues that Title III of the ADA should extend to websites and mobile applications as “places of public accommodation” and suggests a framework to determine which accommodations should be adopted to make websites accessible to people with visual disabilities. Specifically, it calls on Congress and the DOJ to fix this hole in the law and ensure the Act protects all persons with disabilities, as it was intended to. Part I will introduce the ADA, including its legislative history and amendments, and then will describe the standards private agencies have developed to make the Internet accessible to those …

Establishment Of The Antitrust Division Of The U.S. Department Of Justice, Gregory J. Werden

St. John's Law Review

(Excerpt)

To fill in the knowledge gaps, this Article proceeds largely in reverse chronological order. First, it reviews Order No. 2507 and related circumstances, finding clear and convincing evidence that the Order did not create the Antitrust Division. Next, the Article examines the prior tenure of AG Cummings, finding clear and convincing evidence that the Antitrust Division existed before Roosevelt became President and Cummings became AG, and that Cummings lowered the standing of the Antitrust Division within the DOJ prior to issuing Order No. 2507. Finally, the Article scours the prior history of the DOJ and determines that the Antitrust …

The Crazy Maze Of Food Labeling And Food Claims Laws, Patrick Meyer

St. John's Law Review

(Excerpt)

This Article critiques the role of the FDA in providing consumers with accurate and relevant food label information, identifies impediments in the pursuit of its mission, and offers solutions to those impediments.

Part I of this Article traces the history of U.S. food labeling and health claims laws. Current food laws and their regulation have developed over time. The first federal legislation was passed in the early 1900s. The food laws of today have certainly been influenced by past food laws, which were largely a reaction to societal events. A brief summary of the historical development of our nation’s …

Increasing Investor Protection Through Improving Hedge Fund Valuation, Deirdre Farrell

St. John's Law Review

(Excerpt)

This Note examines the current hedge fund regulations in the United States and in Europe, and proposes ways for regulators to improve hedge fund valuation in the United States to increase investor protection. Although valuation issues affect all pooled investment vehicles that invest in illiquid, difficult-to-value assets, this Note focuses only on the valuation systems of hedge funds.

Part I gives an overview of hedge funds in general—their structure and the major stakeholders involved. Part II summarizes the valuation process and its associated issues. Part III describes recent regulatory changes in the United States affecting hedge funds, including the …

Endangered Deference: Separation Of Powers And Judicial Review Of Agency Interpretation, Kathryn M. Baldwin

St. John's Law Review

(Excerpt)

This Note proceeds in four parts: Part I consists of a brief history of the development of agency deference doctrine. Part II examines the decline of deference from the perspective of all three branches of government: the overuse by the executive agency that catalyzed deference’s denouement, the underuse by the United States Supreme Court and renewed separation of powers challenges, and the parallel assault from Congress under the pending SOPRA. Part III addresses the proposed de novo review standard and highlights the deficiencies in that solution, emphasizing instead the tools that Congress already employs to meaningfully check agency interpretations. …

'Deriving' An Understanding Of The Extraterritorial Applicability Of The Commodity Exchange Act, Gabrielle Schwartz

St. John's Law Review

(Excerpt)

This Note argues that courts should return to using a holistic approach, similar to the traditional “conducts” and “effects” test previously used by courts to analyze extraterritorial securities and commodities claims, to assess claims brought under the CEA. Furthermore, this Note argues that both the Commodity Futures Trading Commission and private individuals including foreign plaintiffs, should be permitted to bring these claims to uphold Congress’s intent in establishing a regulatory regime and maintaining the integrity of the international derivatives market. Part I discusses the history of derivative regulation and how both court decisions and statutory changes have created the …

Fighting For Your Life In America: A Study Of "Right To Try" Laws Throughout The Country, Danielle Delgrosso

St. John's Law Review

(Excerpt)

This Note argues that there should be a federal statute granting terminally ill patients access to experimental drugs, but that the Trickett Wendler Act, as written is not the proper vehicle for change. An ideal congressional “Right to Try” statute should be crafted to make experimental drugs realistically obtainable for terminally ill patients while protecting those patients and their quality of life. The Trickett Wendler Act’s weaknesses prevent it from reaching this objective because it is too deferential to already unclear state Right to Try laws. Part I explores the right to try movement generally, explaining what a “right …

Epistemic Peerhood In The Law, R. George Wright

St. John's Law Review

(Excerpt)

We thus have, at this point, a preliminary sense of the importance of some possible choices in deciding whose voices and participation should be taken seriously, as that of our epistemic peers, in deciding legal questions. This Article addresses these preliminary understandings in several legal contexts. We can do so most profitably on the basis of a better, fuller, and more specific understanding of the crucial idea of epistemic peerhood. It is thus the idea of epistemic peerhood itself that this Article addresses immediately below.

The Enforcement Of Irs Summonses And Section 7609, Madeline Tusa

St. John's Law Review

(Excerpt)

This Note argues that because the Tenth Circuit decision ignores important policy concerns dealing with the efficiency of the IRS, failing to comply with notice requirements under Section 7609(a) should be analyzed under the totality of the circumstances standard. Part I discusses the history and development of Section 7609(a) and notice requirements for third-party summonses in IRS investigations. Part II outlines the general requirements for the enforcement of an IRS summons and how Section 7609(a) is analyzed in light of those requirements. Part III discusses the current circuit split and the significance of each respective court’s holdings and reasoning. …

The Intelligible Principle: How It Briefly Lived, Why It Died, And Why It Desperately Needs Revival In Today's Administrative State, Meaghan Dunigan

St. John's Law Review

(Excerpt)

This Note addresses the flaws in the current intelligible principle standard and proposes a new three-part standard that would better revitalize the intelligible principle as it was first articulated almost a century ago. This Note concedes that while legislative delegation in any form is a violation of the original meaning of the nondelegation doctrine, our society and the growth of administrative agencies removed any chance of having our laws created solely by Congress. What can happen, and what this Note proposes, is for the Supreme Court to adopt a new intelligible principle standard that scales back the amount of …

The Horizons Of Antitrust, Richard M. Steuer

St. John's Law Review

(Excerpt)

Critics have been complaining that there are too few jobs in America and too much inequality. They have been calling for broadening the goals of antitrust and, at the very least, for more antitrust enforcement. More enforcement could be expected to have an impact on the concentration of power and on jobs, but even recalibrating the goals of antitrust law cannot, by itself, realistically be considered a panacea for eliminating unemployment or inequality overnight.

At the same time, other countries already have broader goals written into their own laws, including their competition laws, which protect jobs and limit foreign …

Church Participation In Federal Communications Commission Licensing And Administration, Mark E. Chopko, Katherine G. Grincewich

The Catholic Lawyer

No abstract provided.

Legal Implications Of Int 0467-2014, The New York City "Mascot Law" Bill: Commentary, Legal Arguments And Loopholes To Consider, Joseph Fan

Journal of Civil Rights and Economic Development

No abstract provided.

Longstanding Agency Interpretations, Anita S. Krishnakumar

Faculty Publications

How much deference — or what kind — should courts give to longstanding agency interpretations of statutes? Surprisingly, courts and scholars lack a coherent answer to this question. Legal scholars long have assumed that longstanding agency statutory interpretations are treated with heightened deference on judicial review, and federal courts sometimes have made statements suggesting that this is the case. But in practice, federal court review of longstanding agency interpretations — at both the Court of Appeals and the U.S. Supreme Court levels — turns out to be surprisingly erratic. Reviewing courts sometimes note the longevity of an agency’s statutory interpretation …

Dislocation And Relocation: Women In The Federal Prison System And Repurposing Fci Danbury For Men, Anna Arons, Katherine Culver, Emma Kaufman, Jennifer Yun, Hope Metcalf, Megan Quattlebaum, Judith Resnik

Faculty Publications

(Excerpt)

This Report tracks the lack of progress in keeping federal prison space in the Northeast available for women and the impact of the absence of bed-spaces for women on the implementation of federal policies committed to reducing over-incarceration. The problems began in the summer of 2013, when the federal Bureau of Prisons (BOP) announced plans to transform its only prison for women in the Northeast—FCI Danbury—into a facility for men. The BOP explained that this self-described “mission change” was a response to the need to provide more low-security beds for male prisoners.

Punctuated Equilibrium: A Model For Administrative Evolution, Naomi Mezey, Mark C. Niles

Faculty Publications

(Excerpt)

In 1972, paleontologists Niles Eldredge and Stephen Jay Gould published a paper that challenged the conventional understanding of the nature and rate of biological evolution. Addressing the absence of support in the fossil record for the accepted model of species change, the scholars observed that significant genetic development within a single species did not appear to follow the kind of gradual path that Charles Darwin had postulated. Instead, they concluded that "the great majority of species appear with geological abruptness in the fossil record and then persist in stasis until their extinction." They observed that species evolution is much …

Representation Reinforcement: A Legislative Solution To A Legislative Process Problem, Anita S. Krishnakumar

Faculty Publications

One of the most valuable—and disturbing—insights offered by public choice theory has been the recognition that wealthy, well-organized interests with narrow, intense preferences often dominate the legislative process while diffuse, unorganized interests go under-represented. Responding to this insight, legal scholars in the fields of statutory interpretation and administrative law have suggested that the solution to the problem of representational inequality lies with the courts. Indeed, over the past two decades, scholars in these fields have offered up a host of John Hart Ely-inspired representation reinforcing "canons of construction," designed to encourage judges to use their role as statutory interpreters to …

Sec Enforcement Of Attorney Up-The-Ladder Reporting Rules: An Analysis Of Institutional Contraints, Norms, And Biases, Michael A. Perino

Faculty Publications

In their paper and in their earlier comments to the SEC on the proposed attorney reporting rules, Professors Cramton, Cohen and Koniak do an excellent job recounting the genesis of the attorney reporting requirements in the Sarbanes-Oxley Act, describing the SEC's proposed and final rules and critiquing the rule's triggering mechanism and now apparently shelved noisy withdrawal requirement. Their case study of the recent Spiegel, Inc. independent examiner's report is a particularly useful vehicle for examining the practical implications of the SEC's policy and drafting choices. Although I was a member of a committee that submitted comments opposed to noisy …

On The Hijacking Of Airplanes (And Agencies): The Faa, "Agency Capture," And Airline Security, Mark C. Niles

Faculty Publications

(Excerpt)

On September 11, 2001, millions of Americans watched in awe and horror as over a period of less than two hours, a succession of commercial airliners crashed first into the two World Trade Center towers in New York City, and then into the Pentagon in suburban Virginia. As government officials and news organizations scrambled in the first hours after the events to gather information, possible explanations for the crashes were offered. One theory was the obvious assumption that the planes had all been hijacked by "terrorists" using some kind of weapons (guns, bombs) that had presumably been smuggled onto …