Fordham Law Review
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Open Access journal
ISSN (Print) 0015-704X
Published by Fordham University [6 journals]
- Defining “Accidents” in the Air: Why Tort Law Principles Are Essential
to Interpret the Montreal Convention’s “Accident” Requirement
Authors: Alexa West
Abstract: This Note examines the history of, and the reasons for, the Montreal Convention, which in part forces airlines to indemnify passengers for injuries resulting from “accidents”—a term undefined in the treaty. The Montreal Convention and the subsequent case law interpreting it demonstrate how, to qualify as an “accident,” the injury-producing incident must be causally connected to the plane’s operation. Importantly, the causal connection’s adequacy should be evaluated according to American tort jurisprudence even though the accident requirement itself is an exception to general tort law. This Note focuses on a particular type of injury-producing event, a copassenger tort, because of its interesting causal nature that exemplifies the contrast between decisions using tort law and those rendered under the Convention.
PubDate: Tue, 28 Feb 2017 18:15:28 PST
- A Legal and Ethical Puzzle: Defense Counsel as Quasi Witness
Authors: Elizabeth Slater
Abstract: The U.S. criminal justice system is built on the concept of an adversarial trial. The defense and prosecution present competing narratives to a neutral audience that judges whether the prosecution has proved its case beyond a reasonable doubt. In this context, defense counsel is expected to be a zealous advocate for the defendant, providing the most effective representation possible in light of the evidence presented by the government. However, there are occasions outside of trial where defense counsel’s traditional role changes and she is asked to disclose, not to the jury, but to the court, personal opinions and knowledge about her client and the attorney-client relationship. This Note argues that during these occasions, defense counsel becomes a “quasi witness.” Even though she is not presenting testimony at trial, she is still providing information about her client to the judge. Indeed, the duties of confidentiality and loyalty that defense counsel owes her client are pitted against those she owes the court, spawning a serious ethical dilemma. This Note examines this dilemma and the potential damage that it can cause to the attorney-client relationship. Ultimately, this Note proposes several mechanisms for limiting the disclosures needed from defense counsel but argues that now that the category of quasi witness has been identified, a more profound debate within the profession is warranted.
PubDate: Tue, 28 Feb 2017 18:15:24 PST
- See No Fiduciary, Hear No Fiduciary: A Lawyer’s Knowledge Within Aiding
and Abetting Fiduciary Breach Claims
Authors: Brinkley Rowe
Abstract: Fiduciary liability for attorney conduct generally extends only to direct clients of legal services. Over the last few decades, however, the lawyer’s role has expanded. Following this trend, fiduciary liability also has expanded to allow third-party claims in certain limited circumstances. One example is the attorney aiding and abetting a client’s fiduciary breach claim. One of the key requirements for liability under this claim is the attorney’s knowledge of his client’s fiduciary relationship with the third party alleging the breach. Within those jurisdictions that have accepted the claim, there are two approaches to the knowledge element. The first is the constructive knowledge standard that permits liability if the attorney knew or reasonably should have known of the fiduciary relationship. The second approach is the actual knowledge standard that requires overt and obvious evidence of fiduciary knowledge. In addition to these standards, a third approach ignores the knowledge element entirely: the qualified immunity standard that protects attorneys against third-party liability as long as the conduct falls within an attorney-client relationship. This Note argues for the rejection of constructive knowledge and adoption of either the qualified immunity or actual knowledge standard for numerous doctrinal and policy reasons while maintaining the claim’s original policy goals.
PubDate: Tue, 28 Feb 2017 18:15:20 PST
- Show Me the Money: The CEO Pay Ratio Disclosure Rule and the Quest for
Effective Executive Compensation Reform
Authors: Biagio Marino
Abstract: This Note discusses past attempts to combat growing levels of executive compensation, analyzes the role of both shareholders and directors in the compensation-setting process, and discusses conflicting views concerning shareholder-director power, the disclosure mechanism, and the pay-ratio metric. Finally, this Note balances these views by proposing alterations to the CEO Pay Ratio Disclosure Rule that preserve the long-standing corporate structure, while also offering shareholders an accountability mechanism to enhance the Rule’s intended results.
PubDate: Tue, 28 Feb 2017 18:15:16 PST
- Dishonest Ethical Advocacy?: False Defenses in Criminal Court
Authors: Joshua A. Liebman
Abstract: This Note examines this dilemma and recent judicial approaches to it. Judges disagree about how guilty criminal defendants should be permitted to mount defenses at trial. Some have forbidden defense counsel from knowingly advancing any false exculpatory proposition. Others have permitted guilty defense attorneys to present sincere or truthful testimony in order to bolster a falsehood. And still others have signaled more general comfort with the idea that an attorney aggressively can pursue an acquittal on behalf of a guilty client. This Note seeks to resolve this issue by parsing the range of false defense tactics available to attorneys and evaluating the propriety of each under the Model Rules of Professional Conduct. This Note reads the Model Rules in the context of the adversary system’s twin aims to seek truth and safeguard individual rights; it defines and categorizes specific false defense tactics; and it offers practical, context-specific recommendations to courts and attorneys evaluating knowingly false defenses as they occur in the real world.
PubDate: Tue, 28 Feb 2017 18:15:12 PST
- Accidental Vitiation: The Natural and Probable Consequence of Rosemond v.
United States on the Natural and Probable Consequence Doctrine
Authors: Evan Goldstick
Abstract: Recently, the Court decided Rosemond v. United States. In Rosemond, the Court had to determine the requisite mental state for aiding and abetting a particular federal crime. While the Court had the opportunity to weigh in on the natural and probable consequence doctrine in Rosemond, it declined to do so in footnote 7. This Note reviews the natural and probable consequence doctrine, its reception by courts and commentators, and the Court’s holding in Rosemond. This Note then applies the holding of Rosemond to several federal cases that employed the doctrine to determine whether, despite footnote 7, the doctrine survives Rosemond. Ultimately, this Note concludes the doctrine does not survive and that such a result is desirable in light of the doctrine’s incompatibility with basic principles of AngloAmerican criminal law.
PubDate: Tue, 28 Feb 2017 18:15:06 PST
- Consistently Inconsistent: What Is a Qualifying Investment Under Article
25 of the ICSID Convention and Why the Debate Must End
Authors: Jeremy Marc Exelbert
Abstract: International investment has helped to pave the way for an increasingly globalized world community. Consequently, the International Centre for Settlement of Investor Disputes (ICSID)—existing under the mandate of the World Bank and with the stated purpose of increasing economic development abroad—has become the leading international arbitration mechanism currently available for settling disputes arising out of such investments. It is unsettling, therefore, that the interpretation of “investment” within article 25 of the ICSID Convention (the provision that determines whether an ICSID tribunal may exercise jurisdiction over a dispute) has given rise to a unique interpretive controversy because the ICSID Convention fails to define “investment.” Accordingly, ICSID tribunals (bound neither by precedent nor a definition of “investment” contained within the ICSID Convention) have interpreted the term inconsistently, providing a source of unpredictability for investors and host countries alike, as they are unable to adequately ascertain whether an investment in their eyes is an investment that qualifies for ICSID protection. Given the associated risks with international investment generally, such unpredictability unnecessarily increases the costs of foreign investment, impeding efficient economic growth abroad. An unfortunate consequence of this controversy is that many ICSID tribunals have taken an investor-centric view, going so far as to exercise jurisdiction over activities that directly contravene the ICSID Convention’s stated purpose.
PubDate: Tue, 28 Feb 2017 18:15:01 PST
- Now Is the Time!: Challenging Resegregation and Displacement in the Age of
Authors: Bethany Y. Li
Abstract: Gentrification is reaching a tipping point of resegregating urban space in global cities like New York and San Francisco, often spurred by seemingly neutral government policies. The displacement resulting from gentrification forces low-income people from their homes into areas of concentrated poverty. Low-income communities consequently lose space, place, social capital, and cultural wealth that residents and small businesses have spent decades building up. This Article argues that communities at this tipping point must integrate litigation strategies directly aimed at stemming the adverse impacts of gentrification. Community organizing is integral to antidisplacement efforts, but litigation—and its injunctive powers—should play a larger role in protecting residents in hypergentrified neighborhoods. Using a rezoning that spurred gentrification in New York City’s Chinatown and Lower East Side as a case study, this Article considers how the Fair Housing Act, state constitutions, and a new vision of property law could counter the negative and often racially discriminatory effects of gentrification on low-income communities.
PubDate: Tue, 28 Feb 2017 18:14:58 PST
- Fair or Foul?: SEC Administrative Proceedings and Prospects for Reform
Through Removal Legislation
Authors: Joseph A. Grundfest
Abstract: This Article catalogues the long list of criticisms of the Commission’s administrative proceedings. It also evaluates data describing the outcome of litigated matters and finds that, with the exception of insider trading cases, the Commission has an exceptionally high and statistically indistinguishable record of success in administrative and federal court proceedings alike. The data thus seem not to support the view that the Commission has a generalized home-court advantage in administrative proceedings. Nonetheless, the Commission’s virtually unfettered discretion in forum selection decisions, when it can assign cases to a forum that it controls, raises a plethora of institutional design concerns.
PubDate: Tue, 28 Feb 2017 18:14:55 PST
- Time to End Presidential Caucuses
Authors: Sean J. Wright
Abstract: Following the 2016 election cycle, there will be a great opportunity to implement reform. A major change should be to move away from presidential caucuses. They persist with, in the words of John Oliver, “complex, opaque rules.” These complex rules, which include participating in person for over an hour, negatively impacts participation in the electoral process. For example, in 2012, “participation rates in the Republican Party’s caucuses averaged 3 percent.” 3 percent. Compellingly, PolitiFact has observed that “[c]aucuses and delegate math can be incredibly confusing, and the arcane party structures don’t reflect how most people assume presidential selection works.” Yet, we want voters to understand the process and to feel engaged. For these reasons, and the others discussed in this Article, it is time to end states’ use of the presidential caucuses to select party nominees.
PubDate: Tue, 28 Feb 2017 18:14:52 PST
- Does the Constitution Provide More Ballot Access Protection for
Presidential Elections Than for U.S. House Elections?
Authors: Richard Winger
Abstract: Both the U.S. Constitution and The Federalist Papers suggest that voters ought to have more freedom to vote for the candidate of their choice for the U.S. House of Representatives than they do for the President or the U.S. Senate. Yet, strangely, for the last thirty-three years, the U.S. Supreme Court and lower courts have ruled that the Constitution gives voters more freedom to vote for the candidate of their choice in presidential elections than in congressional elections. Also, state legislatures, which have been writing ballot access laws since 1888, have passed laws that make it easier for minor-party and independent candidates to get on the ballot for President than for the U.S. House. As a result, voters in virtually every state invariably have far more choices on their general election ballots for the President than they do for the House. This Article argues that the right of a voter to vote for someone other than a Democrat or a Republican for the House is just as important as a voter’s right to do so for President, and that courts should grant more ballot access protection to minor-party and independent candidates for the House.
PubDate: Tue, 28 Feb 2017 18:14:48 PST
- “Natural Born” Disputes in the 2016 Presidential Election
Authors: Derek T. Muller
Abstract: The 2016 presidential election brought forth new disputes concerning the definition of “natural born Citizen.” The most significant challenges surrounded the eligibility of Senator Ted Cruz, born in Canada to a Cuban father and an American mother. Unlike challenges to President Barack Obama’s eligibility, which largely turned on conspiratorial facts, challenges to Cruz’s eligibility turned principally on the law and garnered more serious attention concerning a somewhat cryptic constitutional clause. Understandably, much attention focused on the definition of “natural born citizen” and whether candidates like Cruz qualified. Administrative challenges and litigation in court revealed deficiencies in the procedures for handling such disputes. This paper exhaustively examines these challenges, identifies three significant complications arising out of these disputes, and urges a solution for future presidential elections.
PubDate: Tue, 28 Feb 2017 18:14:45 PST
- Reforming the Contested Convention: Rethinking the Presidential Nomination
Authors: Michael T. Morley
Abstract: The presidential nomination process could be substantially improved through a few minor tweaks that would reduce unnecessary uncertainty, bolster its democratic underpinnings, and improve the connections among its various components. First, certain fundamental rules governing national conventions should be determined well in advance of the presidential nominating process, before any primaries or caucuses are held or delegates selected, and not be subject to change or suspension at the convention itself. Second, parties should enhance the democratic moorings of their national conventions by requiring presidential candidates to win a greater number of presidential preference votes to be placed into nomination. Third, state parties should tie the various components of the presidential nomination process more closely together by adopting a blend of the Democratic and Republican Parties’ current approaches. When a candidate is allotted national convention delegates based on the results of a presidential preference vote, the candidate should have a voice in selecting those delegates, and those delegates in turn should be bound to vote for that candidate, at least during the first round of voting at the national convention.
PubDate: Tue, 28 Feb 2017 18:14:42 PST
- Rethinking Presidential Eligibility
Authors: Eugene D. Mazo
Abstract: Many aspiring American Presidents have had their candidacies challenged for failing to meet the Constitution’s eligibility requirements. Although none of these challenges have ever been successful, they have sapped campaigns of valuable resources and posed a threat to several ambitious men. This Article examines several notable presidential eligibility challenges and explains why they have often been unsuccessful. The literature on presidential eligibility traditionally has focused on the Eligibility Clause, which enumerates the age, residency, and citizenship requirements that a President must satisfy before taking office. By contrast, very little of it examines how a challenge to one’s candidacy impacts a presidential campaign. This Article seeks to fill this gap. It also offers a modest proposal: Congress should pass legislation defining exactly who is eligible to be President and also implement procedural rules that would expedite presidential eligibility cases for review to the Supreme Court.
PubDate: Tue, 28 Feb 2017 18:14:39 PST
- Ramshackle Federalism: America’s Archaic and Dysfunctional
Presidential Election System
Authors: Anthony J. Gaughan
Abstract: Accordingly, this Article proposes five sensible and achievable reforms to modernize the presidential election system. Each requires Congress and the federal government to play a much more proactive role in the presidential election system. The Constitution may be founded on federalist principles, but excessive decentralization is not serving us well in presidential election administration. In an age of tumultuous and accelerating change, the presidential election system must be modernized to meet the needs of twenty-first century America.
PubDate: Tue, 28 Feb 2017 18:14:33 PST
- Third-Party and Independent Presidential Candidates: The Need for a Runoff
Authors: Edward B. Foley
Abstract: Consider what 2016 might have looked like if this better electoral system had been in place. Bloomberg then could have entered the race without risking being a spoiler. In a three-way race—Bloomberg, Clinton, and Trump—Bloomberg might have fizzled out, leaving a two-way race between Clinton and Trump. Since that is essentially how the election ended up anyway, the country would have been no worse off for having had a chance to consider Bloomberg as an alternative. But suppose, however, with Trump’s candidacy spinning out of control in a series of unacceptable comments (as it appeared to do in early August),11 the American electorate might have preferred a head-to-head matchup between Bloomberg and Clinton, rather than one between Trump and Clinton. Maybe Clinton would have beaten Bloomberg in that head-to-head matchup. That is fine; that is a democratic choice reflecting the preference of the electorate. But maybe Bloomberg would have beaten Clinton. We will never know, because the actual system in place was not designed to enable the American electorate to have that choice. In this respect, the existing system is deficient. It deprives the American electorate of an option it should have. The purpose of this Article is to offer a repair for this deficiency.
PubDate: Tue, 28 Feb 2017 18:14:30 PST
- Election Law and the Presidency: An Introduction and Overview
Authors: Jerry H. Goldfeder
Abstract: Americans now fully appreciate that presidential candidates are vying for a majority of the Electoral College votes, rather than the individual votes of constituents. Modern campaigns are organized around this goal, and commentators are focused on this reality. As a result, there has been an increased cry to reform the electoral process. After all, if every other public official in the land is elected by receiving more votes than their competitors, why should the President of the United States be elected in this apparently undemocratic fashion? The process appears even more unusual in that electors are chosen pursuant to state law rather than according to any standardized national rules. For example, Maine and Nebraska voters choose their electors by a combination of statewide and congressional district results, while the remaining forty-eight states and Washington, D.C., award their electors to the candidate who wins statewide. Further, all states award their electors to the candidate with a plurality of votes—irrespective of the margin of victory.8 However peculiar the American presidential election system appears, it is exactly how our Founders wanted it.
PubDate: Tue, 28 Feb 2017 18:14:24 PST
- The Court of Appeals as the Middle Child
Authors: Raymond Lohier
Abstract: It’s said that middle children are most likely to be forgotten in the chaos of family life. The same could be said of the U.S. Courts of Appeals, which in 2016, mark their 125th anniversary, and which are the middle child of the federal judicial family. As too few people, even academics, know, the courts of appeals were created in 1891 by the Evarts Act, more than a century after the Constitution and the First Judiciary Act. The history of the courts of appeals has accordingly hovered somewhat uneasily next to that of the U.S. Supreme Court and the district courts. Setting aside the rare times when an appellate court strikes down or stays an important national statute or program, our work remains largely below the radar of American public debate. In contrast to our sibling Article III courts, district and Supreme, our intermediate appellate character is stunted in three different ways.
PubDate: Tue, 28 Feb 2017 18:14:20 PST