Law Commons^™

Serving In The Master’S House: Legal Protection For In-Home Care Workers In The United States, Michael Fischl

Faculty Articles and Papers

This essay will focus on the developing forms of legal protection available in the United States to those whose principal place of work is another person’s home and who are paid to do what is broadly referred to as “care work.” The particular services vary widely – from housecleaning, to child care, to companionship and routine health care management for the elderly and the infirm – but the labor market demographics do not: This is low-wage/no-benefit work performed almost exclusively by women and primarily by women of color and of extra-national origin

Brief Of Interested Law Professors As Amici Curiae Supporting Petitioner In Brohl V. Direct Marketing Association, Richard Pomp

Faculty Articles and Papers

Amici curiae are 14 professors of law who have devoted much of their teaching and research to the area of state taxes and the role of state tax policy in our federal system. The amici are concerned with the effect of this Court’s dormant Commerce Clause jurisprudence on the development of fair and efficient state tax systems. No decision of this Court has had more effect on state sales and use tax systems than Quill Corporation v. North Dakota. We believe the Tenth Circuit properly decided the case below. But if the Court decides to grant the Direct Marketing Association’s …

The Dialectics Of Bank Capital: Regulation And Regulatory Capital Arbitrage, Erik F. Gerding

Publications

This article outlines the reasons that banks and other financial institutions engage in regulatory capital arbitrage and the techniques they use to do so. Regulatory capital arbitrage describes transactions and structures that firms use to lower the effective regulatory “tax rate” of regulatory capital requirements. To the extent that these regulations force financial institutions to internalize the externalities created by their potential insolvency (including systemic risk externalities), the incentives to engage in regulatory capital arbitrage will persist. Financial institutions employ a range of complex transactions and structures, including securitization, to engage in regulatory capital arbitrage.

The article briefly sketches how …

State Of Utah Plaintiff/Appellee V. Terianne Smith Defendant/Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2007– 2019)

Appeal from the Second District Court- Farmington, Davis County, from a conviction of one third degree felony before the Honorable Judge Robert J. Dale.

State Of Utah, Plaintiff/Respondent, Vs. Desean Michael Goins, Defendant/Petitioner., Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

Brief on Certiorari to the Utah Court of Appeals

State Of Utah, Plaintiff/Respondent, V. Zachary Rigby, Defendant/Petitioner., Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

On Writ of Certiorari to the Utah Court of Appeals

Prisons For Profit: Neoliberal Rationality's Transformation Of America's Prisons, Kelsey Clark

Senior Independent Study Theses

This project examines the dramatic changes in the American prison system that resulted from privatization and deregulation. Using Wendy Brown’s conceptualization of neoliberal rationality, this study focuses on the important neoliberal transformation that resulted in a dramatic increase in privatization of prisons. This transformation has affected more than the institutions themselves, as some argue that even individual rationality has been transformed by neoliberalism. The purpose of this study is to analyze the transformation of American prisons from publicly run to privately operated. The analysis includes how this has affected American prisons and the rationalities of those who advocate on behalf …

Dos Lagos, Llc; Mellon Valley, Roland Neil Family Limited Partnership; Roland N. Walker; And Sally Walker, Petitioners, Vs. 2010-1 Radc/Cadc Venture, Llc, Respondent., Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

Appeal from the Utah Court of Appeals

Thugs, Crooks, And Rebellious Negroes: Racist And Racialized Media Coverage Of Michael Brown And The Ferguson Demonstrations, Bryan Adamson

Faculty Articles

The article explores how the media constructs news, and offers extensive history on the adverse narrative media tropes about Black men since colonial newspapers. Through qualitative and quantitative analysis of news narratives and images, this article demonstrates how Ferguson accounts emphasized Brown’s deviance and chaos and disorder. After offering comparative analysis of White criminality and protest news narratives, the article presses upon the social effects of racist and racialized media narratives. The article examines the controversy through First Amendment free speech, hate crimes, and true threat principles as well as FCC regulation of broadcasting, and media ownership. While explicating the …

Reclaiming The Importance Of The Defendant’S Testimony: Prior Conviction Impeachment And The Fight Against Implicit Stereotyping, Anna Roberts

Faculty Articles

Implicit courtroom stereotypes are an urgent problem. When, as is disproportionately the case, trial defendants are African-American, they are vulnerable to implicit fact finder stereotypes that threaten the presumption of innocence: unconscious associations linking the defendants with violence, weaponry, and guilt. Implicit social cognition reveals that one valuable tool in combating this threat is individuating information — information that, through methods such as defendant testimony, brings an individual to unique life. Yet current case law frequently chills defendant testimony by permitting impeachment by prior conviction. Courts determining whether criminal defendants should be impeached by their prior convictions use a multi-factor …

The Changing Face Of Corporate Compliance And Corporate Governance, Sean J. Griffith, Steve Thel, Miriam Baer, Geoffrey P. Miller, Gerald Manwah, Stuart Breslow, Alan Cohen, Martin Grant, Henry Klehm Iii, Allen Meyer, Thomas C. Baxter Jr.

Fordham Journal of Corporate & Financial Law

We are pleased to present this Symposium on the revolution in corporate compliance and its evolution in the financial services industry. This is the annual symposium hosted by the Fordham Journal of Corporate & Financial Law on significant topics in the realm of business law.

The format of the symposium is as follows. It begins with an introduction by Professor Sean Griffith, followed by edited transcripts of the two panel discussions and the keynote address.

The first panel is “Revolution: Challenging Corporate Norms?” and addresses the question of whether the revolution in corporate compliance challenges the established norms of corporate …

Corporations And The 99%: Team Production Revisited, Shlomitt Azgad-Tromer

Fordham Journal of Corporate & Financial Law

This Article explores the legal manifestation of the interaction between the general public and the public corporation. Revisiting team production analysis, this Article redefines the corporate team and argues that while several constituencies indeed form part of the corporate team, others are exogenous to the corporate enterprise. Employees, suppliers and financiers contribute together to the common corporate enterprise, enjoying a long-term relational contract with the corporation, while retail consumers contract with the corporation at arm’s length, and other people living alongside the corporation do not contract with it at all. Under this organizational model, the general public may participate in …

What We Talk About When We Talk About Voting: Efficiency And The Error In Empty Voting, Patricia Beck

Fordham Journal of Corporate & Financial Law

Under the shareholder primacy model, shareholders exercise voting power because their votes are wealth maximizing and efficient. The practice of decoupling, or the strategic separation of the right to vote on a share from the economic ownership of that share, undermines this efficiency. The decoupled investor’s interests are not aligned with maximizing the value of the corporation and decoupled investors have, to the detriment of all other shareholders, used their voting power to dictate inefficient corporate decisions. This Note advocates for proxy card disclosure of decoupled shares and subsequent voiding of the decoupled votes. In this way, only those shares …

Are We Ready For The Next Financial Crisis?, Matthew Diller, Eic F. Grossman, Richard K. Kim, Richard Squire, David M. Gallagher Jr.

Fordham Journal of Corporate & Financial Law

The Symposium was held at Fordham University School of Law on October 30, 2015. It has been edited to remove minor cadences of speech that appear awkward in writing and to provide sources and references to other explanatory material with respect to certain statements made by the speakers.

World Tours And The Summer Olympics: Recent Pitfalls Under The Foreign Corrupt Practices Act In The Areas Of Gifts, Entertainment, And Travel, Jon Jordan

Fordham Journal of Corporate & Financial Law

In the spring of 2015, the United States Securities and Exchange Commission brought two significant Foreign Corrupt Practices Act cases involving gifts, entertainment, and travel. The SEC brought the case of In the Matter of FLIR Systems involving FCPA violations concerning the financing of a “world tour” of personal travel for government officials. The SEC then filed the case of In the Matter of BHP Billiton involving FCPA violations concerning the sponsored attendance of foreign officials at the 2008 Summer Olympics in Beijing. These landmark cases affirm previous guidance by the Securities and Exchange Commission and the United States Department …

Defining "Material, Nonpublic": What Should Constitute Illegal Insider Information?, Cindy A. Schipani, H. Nejat Seyhun

Fordham Journal of Corporate & Financial Law

It has been over fifty years since the United States Securities and Exchange Commission held that insider trading on material, nonpublic information is illegal, and despite the passage of the Insider Trading Sanctions Act in 1984, Insider Trading and Securities Fraud Enforcement Act in 1988, and the Sarbanes-Oxley Act of 2002, there is still no clear definition of “material, nonpublic information.” This Article argues that the ambiguity of what constitutes illegal insider information enables corporate insiders to engage in profitable transactions without legal consequences. Furthermore, we argue and provide evidence that the necessity of showing a tipper’s personal benefit creates …

Can't Live With Them, Can't Live Without Them: How Mini-Cfpas And Surety Bonds Could Make A World With Debt Settlement Companies More Bearable, Jasmine S. Chean

Fordham Journal of Corporate & Financial Law

Debt settlement companies can offer a simple and valuable means of resolving consumer debt. However, many debt settlement companies choose to engage in unfair, deceptive, or abusive acts and practices at the expense of desperate debt-ridden consumers, making it an unrealistic option of debt relief. Due to the unfair, deceptive, and abusive acts and practices by some debt settlement companies, the regulatory regime has been trending towards increased regulation. However, the lack of enforcement and severity of existing regulations causes persistent problems in the debt settlement industry, resulting in increased consumer debt instead of consumer debt relief. This Note advocates …

The Fifteenth Annual Albert A. Destefano Lecture On Corporate, Securities, & Financial Law At The Fordham Corporate Law Center, Frederick H. Alexander, Chris Cernich, Mark Lebovitch, Norman M. Monhait, Andrew J. Pincus

Fordham Journal of Corporate & Financial Law

No abstract provided.

Sunlight Bylaws And Reciprocal Disclosures, Grace Lee Mead

Fordham Journal of Corporate & Financial Law

Publicly-traded companies have the power to pass sunlight bylaws to address hedge fund activism. Sunlight bylaws would require activist hedge funds to publicly disclose any strategic proposals and their financial interests in companies earlier and at thresholds lower than current securities laws. Sunlight bylaws would also require disclosure of additional information, including: (1) the percentage of the fund’s portfolio invested in the company; (2) the fund manager’s compensation; (3) the fund manager’s investment in the fund; (4) the fund’s portfolio turnover; and (5) the fund’s prior holding periods after any announcements of an ownership interest and a strategic proposal. Academic …

The Overstated Absolute Priority Rule, Stephen J. Lubben

Fordham Journal of Corporate & Financial Law

No abstract provided.

Private Equity's Overleveraging Of Portfolio Companies, Sophia Agathis

Fordham Journal of Corporate & Financial Law

With record-low interest rates, private equity has seen unparalleled activity in recent years. Though thriving, private equity firms have proved to be guilty of overleveraging their portfolio companies as general partners. The results of overleveraging have been varied. At one end, firms seem dedicated to a portfolio company’s restructuring, investing further and pledging more capital in hopes of future growth. At the other end, firms wishing to exit their investment, redeem debt previously given to a portfolio company at a premium and engage in a quick sale thereafter, leaving that company unable to satisfy its future obligations. Firms that engage …

A Single Call: The Need To Amend The Parent-Subsidiary Relationship Under The Ftaia In View Of Motorola Mobility, Catherine E. Cognetti

Fordham Journal of Corporate & Financial Law

In Motorola Mobility, LLC v. AU Optronics Corporation, the Seventh Circuit dismissed Motorola’s Sherman Act claims under the Foreign Trade Antitrust Improvement Act. In doing so, they held that Motorola’s American parent corporation was a separate entity from their foreign subsidiaries, and thus barred from bringing suit under the indirect purchaser doctrine. The effect of the Seventh Circuit’s decision precluded injured purchasers from recovering damages under the Sherman Act—Motorola’s subsidiaries could not sue because their injuries occurred abroad, while Motorola could not sue because it did not make direct purchases from the antitrust violators.

Courts have often considered a parent …

Keeping Up With New Legal Titles, Beau Steenken

Law Faculty Scholarly Articles

In this book review, Beau Steenken discusses Legal Research Methods by Michael D. Murray & Christy H. DeSanctis.

State Judges And The Right To Vote, Joshua A. Douglas

Law Faculty Scholarly Articles

State courts are paramount in defining the constitutional right to vote. This primacy of state courts exists in part because the right to vote is a state-based right protected under state constitutions. In addition, election administration is largely state-driven, with states regulating most of the rules for casting and counting ballots. State law thus guarantees—and state courts interpret—the voting rights that we cherish so much as a society. State courts that issue rulings broadly defining the constitutional right to vote best protect the most fundamental right in our democracy; state decisions that constrain voting to a narrower scope do harm …

Why Tax Wealth Transfers?: A Philosophical Analysis, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

The one-hundredth anniversary of the estate tax provides an ideal moment to reflect on the role of wealth transfer taxation in the larger scheme of the U.S. tax system. Wealth and income inequality are at historically high levels, and the responses to these issues are often reduced to a simplistic political dichotomy of “right” versus “left.” The multitude of views of the American people cannot be reduced to such simple generalities without losing important nuances. This Article identifies three general categories of political philosophical viewpoints that are commonly endorsed by both politicians and everyday Americans, and then examines the current …

Copyright In Pantomime, Brian L. Frye

Law Faculty Scholarly Articles

Why does the Copyright Act specifically provide for the protection of “pantomimes”? This Article shows that the Copyright Act of 1976 amended the subject matter of copyright to include pantomimes simply in order to conform it to the Berne Convention for the Protection of Literary and Artistic Works. It further shows that the Berlin Act of 1909 amended the Berne Convention to provide for copyright protection of “les pantomimes” and “entertainments in dumb show” in order to ensure copyright protection of silent motion pictures. Unfortunately, the original purpose of providing copyright protection to '“pantomimes” was forgotten. This Article argues that …

The Sec's Regulation A+: Small Business Goes Under The Bus Again, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

Title IV of the JOBS Act, which is entitled "Small Company Capital Formation," requires the Securities and Exchange Commission to adopt new rules regarding offerings under Regulation A. The Commission has now adopted its final regulations implementing Title IV and providing a new regulatory regime for exempt offerings under Section 3(b) of the Securities Act of 1933. The new regime is generally referred to as Regulation A+.

Unfortunately, history and empirical data regarding the use of Regulation A and Regulation D strongly suggest that the final Regulation A+ rules are unlikely to provide any material relief for small businesses in …

The Future Of The Cadillac Tax, Kathryn L. Moore

Law Faculty Scholarly Articles

The Affordable Care Act includes a 40 percent excise tax on high-cost employer-sponsored health care coverage. Often referred to as the “Cadillac tax,” this excise tax is one of the most controversial elements of the Affordable Care Act.

Currently scheduled to go into effect in 2020, the Cadillac tax poses serious challenges and uncertainty for employers. On the one hand, recent estimates suggest that the Cadillac tax may hit as many as 20 percent of employers with health care plans in 2020. On the other hand, there is a serious question as to whether the tax will be repealed before …

Utilitarianism And Wealth Transfer Taxation, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

This article is the third in a series examining the continued relevance and philosophical legitimacy of the United States wealth transfer tax system from within a particular philosophical perspective. The article examines the utilitarianism of John Stuart Mill and his philosophical progeny and distinguishes the philosophical approach of utilitarianism from contemporary welfare economics, primarily on the basis of the concept of "utility" in each approach. After explicating the utilitarian criteria for ethical action, the article goes on to think through what Mill's utilitarianism says about the taxation of wealth and wealth transfers, the United States federal wealth transfer tax system …

A “Checklist Manifesto” For Election Day: How To Prevent Mistakes At The Polls, Joshua A. Douglas

Law Faculty Scholarly Articles

Mistakes happen—especially at the polls on Election Day. To fix this complex problem inherent in election administration, this Article proposes the use of simple checklists. Errors occur in every election, yet many of them are avoidable. Poll workers should have easy-to-use tools to help them on Election Day as they handle throngs of voters. Checklists can assist poll workers in pausing during a complex process to avoid errors. This is a simple idea with a big payoff: fewer lost votes, shorter lines at the polls, a reduction in post-election litigation, and smoother election administration. Further, unlike many other suggested election …