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Articles 1 - 19 of 19
Full-Text Articles in Law
Potential Liability For Misrepresentations In Residential Real Estate Transactions: Let The Broker Beware, Dawn K. Mcgee
Potential Liability For Misrepresentations In Residential Real Estate Transactions: Let The Broker Beware, Dawn K. Mcgee
Fordham Urban Law Journal
While the caveat emptor (buyer beware) theory has traditionally applied to real estate purchases, courts are continuously recognizing a brokers' duty to disclose. Some courts have found duty under an agent-principal relationship; others have found a duty as a matter of public policy, statutory language, ethics codes, or malpractice case law. Courts also differ on whether brokers have a duty to investigate the property and disclose defects. The author recognizes three issues of broker liability about which courts are divided: (1) the level of culpability required to find broker liability; (2) the basis of a real estate broker's duty to …
"Five-Hundred-Year Flood Plains" And Other Unconstitutional Challenges To The Establishment Of Community Residences For The Mentally Disabled, Robert L. Schonfeld
"Five-Hundred-Year Flood Plains" And Other Unconstitutional Challenges To The Establishment Of Community Residences For The Mentally Disabled, Robert L. Schonfeld
Fordham Urban Law Journal
This article examines the impact of state statutes and local ordinances on the establishment of community residences for the mentally disabled. While some states have policies advocating for community residences, these policies are often undermined by barriers such as neighborhood opposition and statutes and ordinances that impede development. The author analyzes the application of the equal protection clause to statutes and ordinances affecting the mental disabled, ultimately concluding that many are unconstitutional. Finally, the author discusses the impact of City of Cleburne v. Cleburne Living Center on state statutes and local ordinances that limit the establishment of community residences. The …
Over-Stuffing The Envelope: The Problems With Creative Transfer Of Development Rights, Margaret Giordano
Over-Stuffing The Envelope: The Problems With Creative Transfer Of Development Rights, Margaret Giordano
Fordham Urban Law Journal
This note examines how not-for-profit institutions and private developers are engaging in innovative transactions pushing transferable development rights (TDRs) to new extremes. The Board of Estimate has created exceptions to its own zoning laws to benefit not-for-profits, for instance, by allowing transfer of unused development rights to previously impermissible distances. This note explores whether TDR transactions involving not-for-profit organizations have set precedents that will thwart traditional urban planning objectives. The note examines the history of TDRs and recent radical applications involving Grand Central Terminal, South Street Seaport, and Old Slip. The author ultimately balances the creative applications of TDRs with …
Partaker Or Prey? Futures Commission Merchants Under Civil Rico And The Commodity Exchange Act, Robert G. Lendino
Partaker Or Prey? Futures Commission Merchants Under Civil Rico And The Commodity Exchange Act, Robert G. Lendino
Fordham Urban Law Journal
Racketeer Influenced and Corrupt Organizations Act (RICO) has a civil statutory scheme that broadly allows "any person" to recover damages if he has been injured in his business or property by reason of a defendant's violation of section 1962 the Act. While the statute was aimed at organized crime, it has been used far more against legitimate businesses. Courts continuously wrestle with the broad language of the statute. The author discusses two questions regarding the interpretation of Civil RICO that remain unanswered: whether the same entity can be the "culpable person" and the "enterprise" under Section 1962(a); and if so, …
Reconstructing The Takings Doctrine By Redefining Property And Sovereignty, John Martinez
Reconstructing The Takings Doctrine By Redefining Property And Sovereignty, John Martinez
Fordham Urban Law Journal
In 1987, the Supreme Court decided three cases involving "takings" challenges to governmental exercise of the power to control land use. This trilogy of cases affirmed the continuing validity of a three-part analytical model in addressing the takings problem: (1) is private property involved; (2) has governmental action so affected it as to require a remedy; and (3) what remedy should be provided? This Article critically examines that model and argues that the first two questions are fundamentally indistinguishable and that to treat them as distinct inquiries is unworkable. The Article then proposes a functional approach under which individuals are …
Regulatory Taking: A Contract Approach, Ross B. Lipsker, Rebecca L. Heldt
Regulatory Taking: A Contract Approach, Ross B. Lipsker, Rebecca L. Heldt
Fordham Urban Law Journal
This Article begins by defining the parameters of the fifth amendment's taking clause. The Article then reviews the various tests used in determining whether governmental action constitutes a taking, and discusses the recent Supreme Court decisions within the framework of case law as it has evolved since the Court's 1922 landmark decision, Pennsylvania Coal Co. v. Mahon. Finally, the Article suggests a formula based on well-established contract principles for analyzing the impact of land use regulation on private property interests.
Blaming The Victim: The Admissibility Of Sexual History In Homicides, Joan L. Brown
Blaming The Victim: The Admissibility Of Sexual History In Homicides, Joan L. Brown
Fordham Urban Law Journal
This Note analyzes whether legislation analogous to rape-shield statutes should be enacted to limit testimony concerning the prior sexual history of a murder victim. The Note discusses the historical development of rape-shield statutes and the policies underlying their enactment, examines the constitutional of rape-shield statutes, and discusses the rationale behind state court decisions upholding the constitutionality of rape-shield statutes. The Note then considers whether existing law concerning the right of privacy and testimonial privileges may be construed to enable the family members of a murder victim to prevent the exposure of a deceased victim's sexual past. Based upon this analysis, …
Insiders, Options And The Fiduciary Principle: A Rule 10b-5 Loophole, Eric B. Lesser
Insiders, Options And The Fiduciary Principle: A Rule 10b-5 Loophole, Eric B. Lesser
Fordham Urban Law Journal
This Note analyzes transactions involving the purchase and sale of option contracts by an insider possessing material nonpublic information to determine whether the insider violates section 10(b) or Rule 10(b)(5). This Note presents an overview of the framework of Rule 10(b)(5) and, in particular, its enforcement in insider trading cases, and then examines the differing views espoused by courts regarding the duty of disclosure. A general discussion of options and the options market is then provided. Finally, this Note illustrates the loophole by presenting a typical options scenario and then suggests applications of insider trading law the effectively closes the …
The Unanimous Acquittal Instruction: A Rational Approach To Instructing Jurors On Lesser Included Offenses, David Y. Atlas
The Unanimous Acquittal Instruction: A Rational Approach To Instructing Jurors On Lesser Included Offenses, David Y. Atlas
Fordham Urban Law Journal
This Note proposes that all courts embrace the unanimous acquittal instruction because it encourages the jury to engage in an effective and conscientious deliberative process. The disagreement instruction not only fosters imprudent decision making, but also invites the jury to abuse its power to render a compromise verdict and thus is a wholly inappropriate method for instructing jurors on their consideration of lesser included offenses. Part II of this Note explores the background of the lesser offense doctrine, the elements of each instruction and the rationale behind recent judicial precedent in this area. Part III sets forth empirical research on …
The Homeless: Judicial Intervention On Behalf Of A Politically Powerless Group, Neil V. Mckittrick
The Homeless: Judicial Intervention On Behalf Of A Politically Powerless Group, Neil V. Mckittrick
Fordham Urban Law Journal
The "new" homeless are more diverse, encompassing more minorities, women, younger people, and more families. This Article argues first, that judicial intervention on behalf of the homeless is necessary and appropriate because the homeless constitute a politically powerless group and second, that comprehensive legislation, beyond that which has been enacted thus far, is necessary to address the causes of the problem.
Hindering The Progress Of Science: The Use Of The Patent System To Regulate Research On Genetically Altered Animals, Robert B. Kambic
Hindering The Progress Of Science: The Use Of The Patent System To Regulate Research On Genetically Altered Animals, Robert B. Kambic
Fordham Urban Law Journal
This Note considers whether genetically altered animals should be protected by patents and discusses the ramifications of a congressionally imposed moratorium on the issuance of animal patents. The Note discusses the purpose of the patent system and analyzes case law concerning patents on living organisms, examines the controversy surrounding the patenting of altered animals, and contains a discussion of the PTO's role in issuing an ethically controversial patent. The Note concludes that the PTO was correct in determining that genetically altered animals are patentable subject matter.
Disbursement Of Insurance Money Covering An Insured's Legal Expenses As Incurred, Arthur P. Xanthos
Disbursement Of Insurance Money Covering An Insured's Legal Expenses As Incurred, Arthur P. Xanthos
Fordham Urban Law Journal
In the Southern District of New York, Pepsico, Inc. v. Continental Casualty Co. held that the D & O insurance carrier was obligated to pay the insured's costs as they accrue, subject to reimbursement should adjudication show that there were no grounds for coverage. This Note proposes that the Pepsico rule favoring the insured is the more judicious view regarding interim payments. This Note discusses the differing interpretations of D & O policy defense cost clauses, and then analyzes the Pepsico rule from the standpoints of reasonable expectations, contract interpretation and unconscionability. After comparing D & O insurance with standard …
"Warranty Of Security" In New York: A Landlord's Duty To Provide Security Precautions In Residential Buildings Under The Implied Warranty Of Habitability, Christine Hagan
"Warranty Of Security" In New York: A Landlord's Duty To Provide Security Precautions In Residential Buildings Under The Implied Warranty Of Habitability, Christine Hagan
Fordham Urban Law Journal
Although New York lower courts have held that security precautions are an essential element in making an apartment habitable, the New York Court of Appeals has not yet spoken on this issue. Therefore, in the absence of legislative clarification, the extent of security mandated under New York's warranty of habitability is uncertain. This Note examines the development of the warranty of habitability to include security precautions and discusses the status of a "warranty of security" in New York. The Note then proposes guidelines to determine whether a New York landlord has breached a duty to provide adequate security under section …
Securities Arbitration After Mcmahon, Constantine N. Katsoris
Securities Arbitration After Mcmahon, Constantine N. Katsoris
Fordham Urban Law Journal
In Shearson/American Express, Inc. v. McMahon, the Supreme Court decided that federal securities claims under the Securities Exchange Act of 1934 (1934 Act or Exchange Act) are arbitrable. Since McMahon, there has been a flurry of activity in, and focus upon, the general area of arbitration of public securities disputes. This activity has generated particular interest in such subjects as: arbitration forums; pre-trial procedures and discovery; remedies and relief; composition of panels; training, background and evaluation of arbitrators; and the rendering of written opinions. In discussing many of these areas, this Article will track the history of securities arbitration before …
Architectural Malpractice: Toward An Equitable Rule For Determining When The Statute Of Limitations Begins To Run, Jeffrey R. Cruz
Architectural Malpractice: Toward An Equitable Rule For Determining When The Statute Of Limitations Begins To Run, Jeffrey R. Cruz
Fordham Urban Law Journal
In the past thirty years, the architectural profession has been characterized by dramatic changes in both its legal liabilities and in its relationship with other members of the construction industry. With the recent abrogation of the privity doctrine, strangers to architectural contracts may now sue in tort and architects inevitably find themselves in a multitude of lawsuits. This Note discusses the contractual nature of the owner/architect relationship and the judicial attempts to analogize to relationships in other professions, and then considers the prevailing judicial theories as to when a cause of action accrues against architects and against professionals in general. …
Protecting The Parental Rights Of Incarcerated Mothers Whose Children Are In Foster Care: Proposed Changes To New York's Terminaton Of Parental Rights Law, Philip M. Genty
Fordham Urban Law Journal
This Article examines the parental rights of incarcerated mothers under New York's foster care and termination of parental rights laws. It describes the foster care system in New York, the grounds for a termination of parental rights proceeding, and the problems that persist despite New York's legislative reforms. After examining these problems, the author proposes several legislative solutions, which include: (1) improving incarcerated parents' access to court proceedings; and (2) requiring social services agencies and prison officials to provide the services necessary to maintain and strengthen the parents' parental relationships. This Article concludes that, while New York has enacted legislation …
Wrongful Birth And Wrongful Life Actions Arising From Negligent Genetic Counseing: The Need For Legislation Supporting Reproductive Choice, Kathryn J. Jankowski
Wrongful Birth And Wrongful Life Actions Arising From Negligent Genetic Counseing: The Need For Legislation Supporting Reproductive Choice, Kathryn J. Jankowski
Fordham Urban Law Journal
The Note discusses wrongful birth and wrongful life actions arising from negligent genetic counseling and explains why they should be recognized statutorily. It details the technological advances in the field of genetics and their implications for the legal duty imposed upon the medical profession. The author traces the judicial developments that led to the gradual recognition of wrongful birth actions and the refusal to recognize wrongful life actions, as well as the recent legislation that has barred both wrongful birth and wrongful life actions. The author proposes a model statute based on the following policy considerations: (1) procreative choice is …
Broker-Dealer Responsibility In Reguation D Transacctions, Matthew Joonho Jeon
Broker-Dealer Responsibility In Reguation D Transacctions, Matthew Joonho Jeon
Fordham Urban Law Journal
The Note examines the responsibilities that a broker-dealer has under section 12(2) of the Securities Act of 1933, in Regulation D transactions. The author concludes that because the private placement market for securities generally consists of those persons who are sophisticated and knowledgeable in financial matters, these investors do not need the full protection of the Securities Act's registration requirements. Consequently, broker-dealers involved in Regulation D transactions should not be required to exercise "due diligence."
Res Gestae, The Present Sense Impression Exception And Extrinsic Corroboration Under Federal Rules Of Evidence 803(1) And Its State Counterparts, William Gorman Passannante
Res Gestae, The Present Sense Impression Exception And Extrinsic Corroboration Under Federal Rules Of Evidence 803(1) And Its State Counterparts, William Gorman Passannante
Fordham Urban Law Journal
This Note presents an overview of the hearsay rule and its general historical development, as well as background on the history of the res gestae doctrine to provide a clearer understanding of the Federal Rules discussed. It examines the current analysis of the three Rule 803 hearsay exceptions, and compares the requirements of external corroboration of hearsay statements under each of Rules 803(1), (2) and (3) to illustrate some inconsistencies in the application of these rules. The author concludes that it is essential that a concise and historically consistent method of applying the present sense impression exception be used, and …