Catholic University Law Review
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Open Access journal
ISSN (Print) 0008-8390
Published by Catholic University of America [2 journals]
- The Potential Effect of the Department of Labor’s New Fiduciary Rule on
Broker-Dealers and the Middle Income Retirement Investors Who Rely on Them
Authors: Nadia Yoon
Abstract: On April 6, 2016, the U.S. Department of Labor issued a final rule aimed at increasing the reach of the definition of fiduciary status under the Employee Retirement Income Security Act of 1974 (ERISA). This rule closed a loophole that had allowed broker-dealers to avoid becoming investment advisers under ERISA, allowing them to provide bad advice to their retirement clients without disclosing material conflicts of interest. This note begins by laying out the fiduciary rules and standards under ERISA and the U.S. Securities and Exchange Commission’s oversight regime before the final rule. It then lays out the relevant details of the rule and its Best Interest Contract Exemption. Next, it analyzes how the rule has changed the fiduciary standards for broker-dealers. Finally, it concludes by exploring the potential impact the final rule may have for middle-income investors and some criticisms the Department of Labor received during the rule’s open comment period.
PubDate: Tue, 17 Jan 2017 19:10:16 PST
- Personal Jurisdiction in Hatch-Waxman Cases
Authors: Michael Marusak
Abstract: The Hatch-Waxman Act drastically altered the way pioneer and generic pharmaceutical manufacturers litigate patent infringement disputes, allowing generic manufacturers to submit an abbreviated new drug application (ANDA) to the FDA, which states that it intends make a chemical equivalent of a patent owner’s drug. When the ANDA is accompanied by a Paragraph IV certification, representing that the generic intends to market the drug before the patent’s expiration because it believes the patent is invalid or will not be infringed by the generic’s drug, the ANDA submission itself creates an “artificial” act of infringement. With the Supreme Court’s recent tightening of general personal jurisdiction, many pioneers seeking to litigate these “artificial” infringement claims relied on a theory of specific personal jurisdiction to bring suits against defendants in their chosen forums. Consequently, it is important that courts hearing these cases clearly understand how they must apply the prongs of the specific jurisdiction “minimum contacts” analysis. However, in the decades following the Supreme Court’s decision in Helicopteros, which introduced the so-called “nexus” test – the requirement that courts must determine whether the litigation “arises from or relates to” the defendant’s contacts with a forum – the Supreme Court has provided frustrating little guidance for interpreting this requirement, leaving it up to lower courts to decide their preferred approach. This lack of guidance is particularly problematic in Paragraph IV cases, because the litigation is “artificial,” arising almost out of thin air when the generic submits an ANDA. Thus, a defendant’s contacts with a forum in these cases are, by nature, much more tenuous than a typical defendant’s contacts in a typical infringement suit.This Comment reviews a recent case decided by the Federal Circuit, Acorda Therapeutics, Inc. v. Mylan Pharmaceuticals, Inc., in which the Federal Circuit considered the “nexus” requirement within the context of a Paragraph IV case, but failed to provide the type of clarity that Paragraph IV cases desperately need. Furthermore, this Comment argues that the public policy considerations behind the Hatch-Waxman Act support a permissive interpretation of the Helicopteros “nexus” requirement in Paragraph IV cases, and urges the Federal Circuit to adopt the “sliding scale” test favored in other circuits for these types of suits in the future.
PubDate: Tue, 17 Jan 2017 19:10:12 PST
- A-R-C-G- Is Not the Solution For Domestic Violence Victims
Authors: Lizbeth Chow
Abstract: For over fifteen years, U.S. immigration authorities and courts have grappled with the idea of domestic violence as a basis for asylum. But in 2014, the Board of Immigration Appeals (BIA) issued a decision indicating that victims of domestic violence may qualify for asylum. This Comment assesses the BIA’s decision and concludes that it is ultimately ineffective. This Comment further suggests that the only practical solution is for Congress to intervene. This Comment first provides a brief historical overview of asylum law to help elucidate the purpose of asylum law. It also provides an in-depth review of the elements needed to establish a successful asylum claim and surveys how previous domestic violence-based claims have fared. Next, this Comment examines and appraises various existing proposals for addressing the issue of domestic violence-based asylum. Finally, this Comment proposes two possible changes to the refugee definition that would more adequately address the issue of domestic violence-based asylum. This Comment also anticipatorily rebuts the argument that granting asylum to domestic violence victims, as a matter of law, would lead to a drastic increase in this type of asylum application. This Comment concludes that the decision in In re A-R-C-G- does not provide an adequate solution for domestic violence victims seeking asylum. Moreover, it is time for the United States to amend its refugee definition to explicitly extend protection (via asylum) to domestic violence victims.
PubDate: Tue, 17 Jan 2017 19:10:08 PST
- Tears in Heaven: Religiously and Culturally Sensitive Laws for Preventing
the Next Pandemic
Authors: Eloisa C. Rodriguez-Dod et al.
Abstract: This Article argues that laws created to curtail the spread of deadly contagious diseases need to be drafted and implemented in ways that maximize acceptance of an affected communities’ cultural and religious beliefs. When laws are put in place that are inconsistent with community mores, the overall goal of stopping an epidemic is threatened. Communities often distrust government and other relief organizations who mandate rules and regulations that impinge their religious and cultural beliefs; thus, these regulations geared at helping communities can paradoxically undermine the goal of preventing the spread of infectious disease.This Article focuses on the need for public health officials to accommodate the religious and cultural practices of communities impacted by serious health epidemics when developing effective emergency procedures. The authors explores the role of governmental authorities in preventing the spread of contagious diseases during public health emergencies by reviewing constitutional, state, and international laws and regulations that may apply during infectious disease threats. It also addresses how religious and cultural practices should be accommodated in light of the West Africa Ebola crisis and the Sin Nombre outbreak in the United States. It describes survivors’ legal rights regarding human remains and the importance of religious and cultural death rituals. Further, this Article sets forth a proposal, taking into account ethical and policy considerations, and ultimately proposes an interdisciplinary and proactive approach to development of laws and regulations to create a system that is adaptable, acceptable to the community, and scientifically sound.
PubDate: Tue, 17 Jan 2017 19:10:04 PST
- Poverty, the Great Unequalizer: Improving the Delivery System for Civil
Authors: Latonia Haney Keith
Abstract: When individuals in the United States face civil justice issues, they are not entitled to legal counsel and therefore must secure paid counsel, proceed pro se or qualify for free legal assistance. As a result of the economic downturn, the number of Americans who are unable to afford legal counsel is now at an all-time high. In response to this ever-widening justice gap, the public interest community has launched multiple initiatives to supplement the underfunded legal aid system. Though valiant, this article argues that this approach has unfortunately created a complex, fragmented and overlapping delivery system for legal aid. This article first provides an understanding of the current civil legal landscape, especially as it impacts low-income and modest-means Americans. This article then examines the many initiatives developed as a means of closing the justice gap and whether such initiatives have helped or harmed underserved populations. Finally, this article proposes three specific reforms – the development of a comprehensive triage mechanism, the infusion of business process improvement within legal aid organizations and the creation of legal information exchange organizations – all of which, if implemented, will make great strides toward streamlining the delivery system for civil legal aid.
PubDate: Tue, 17 Jan 2017 19:10:00 PST
- Siting Technology, Land-Use Energized
Authors: Steven Ferrey
Abstract: Jurisdiction for the siting of electric power plants is vested in the fifty states, four territories, and thousands of local governments. Further complicating this scheme is federal government’s exclusive authority over certain transactions originating from these facilities. Against this backdrop of often divergent and conflicting laws, this article compiles a multijurisdictional review of the jurisdictional issues surrounding the regulation of electric power. Employing multiple state by state surveys, this paper compares electric power siting laws, the interactions between federal, state, and municipal authorities, and the mechanics of regulatory structures across the United States.
PubDate: Tue, 17 Jan 2017 19:09:56 PST
PubDate: Tue, 17 Jan 2017 19:09:44 PST