The unusual role lawyer speech plays, both as the embodiment of law and as the fulfillment of professional obligations, sets it apart from that of other government employees. This article critiques two highly controversial split decisions from the United States Supreme Court ascribing minimal First Amendment protection to government lawyer speech — Connick v. Meyer and Garcetti v. Ceballos — and proposes a framework to be applied to the workplace assessment speech of government lawyers when acting as a check on the power of the regulatory state, so long as the speech does not run counter to professional ethics obligations.
律师讲话作为法律的体现和履行职业义务所起的特殊作用，使其区别于其他政府雇员。本文批评了美国最高法院将第一修正案对政府律师言论的最低限度保护(Connick v. Meyer和Garcetti v. Ceballos)这两个极具争议的分裂决定，并提出了一个框架，适用于政府律师在作为监管国家权力的检查时的工作场所评估言论，只要该言论不违背职业道德义务。
{"title":"Lawyer Speech in the Regulatory State","authors":"Renee Newman Knake","doi":"10.2139/SSRN.2821801","DOIUrl":"https://doi.org/10.2139/SSRN.2821801","url":null,"abstract":"The unusual role lawyer speech plays, both as the embodiment of law and as the fulfillment of professional obligations, sets it apart from that of other government employees. This article critiques two highly controversial split decisions from the United States Supreme Court ascribing minimal First Amendment protection to government lawyer speech — Connick v. Meyer and Garcetti v. Ceballos — and proposes a framework to be applied to the workplace assessment speech of government lawyers when acting as a check on the power of the regulatory state, so long as the speech does not run counter to professional ethics obligations.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2016-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68355656","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article reviews the empirical literature on the effects of individual income tax policy on entrepreneurship. We find no evidence of consensus, even on relatively narrow questions such as whether individual income tax rates deter or encourage entrepreneurial entry. We believe the absence of consensus reflects both the complexity of mechanisms connecting tax policy to entrepreneurial decision making and the infeasibility of employing the most reliable empirical methods, such as experiments, in this domain.
{"title":"How Individual Income Tax Policy Affects Entrepreneurship","authors":"David Clingingsmith, S. Shane","doi":"10.31235/osf.io/qwya9","DOIUrl":"https://doi.org/10.31235/osf.io/qwya9","url":null,"abstract":"This Article reviews the empirical literature on the effects of individual income tax policy on entrepreneurship. We find no evidence of consensus, even on relatively narrow questions such as whether individual income tax rates deter or encourage entrepreneurial entry. We believe the absence of consensus reflects both the complexity of mechanisms connecting tax policy to entrepreneurial decision making and the infeasibility of employing the most reliable empirical methods, such as experiments, in this domain.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2016-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69652798","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The rise of local bans on hydraulic fracturing, or “fracking,” by local governments has sparked a recent backlash in carbon-producing states. In 2015, Texas, Oklahoma, and North Carolina passed laws that forbid any city, town, or other municipal body from banning fracking or passing certain regulations on the practice, by popular vote or otherwise. Other states are likely to follow suit. This Article is the first to propose that cities and towns in those states could incorporate and enforce existing state environmental laws. By doing so, those municipalities may be able to ensure compliance with those environmental regulations by oil and gas companies and minimize some of the environmental harms associated with fracking, even when they cannot enact outright bans on the practice. Further, this Article explains why the incorporation and enforcement of state environmental laws by cities and towns — and particularly cities and towns in states that have taken away local power to enact fracking bans — should not be expressly or impliedly preempted by those laws. Indeed, taking this approach would also further important policy goals inherent in federalism and help restore voter confidence in the democratic process.
{"title":"Where Oil Is King","authors":"Kristen van de Biezenbos","doi":"10.2139/SSRN.2739172","DOIUrl":"https://doi.org/10.2139/SSRN.2739172","url":null,"abstract":"The rise of local bans on hydraulic fracturing, or “fracking,” by local governments has sparked a recent backlash in carbon-producing states. In 2015, Texas, Oklahoma, and North Carolina passed laws that forbid any city, town, or other municipal body from banning fracking or passing certain regulations on the practice, by popular vote or otherwise. Other states are likely to follow suit. This Article is the first to propose that cities and towns in those states could incorporate and enforce existing state environmental laws. By doing so, those municipalities may be able to ensure compliance with those environmental regulations by oil and gas companies and minimize some of the environmental harms associated with fracking, even when they cannot enact outright bans on the practice. Further, this Article explains why the incorporation and enforcement of state environmental laws by cities and towns — and particularly cities and towns in states that have taken away local power to enact fracking bans — should not be expressly or impliedly preempted by those laws. Indeed, taking this approach would also further important policy goals inherent in federalism and help restore voter confidence in the democratic process.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2016-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68281627","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Plaintiffs sometimes bring civil lawsuits in U.S. federal courts against officials or ex-officials of foreign governments accused of committing atrocities abroad. In these types of cases, the foreign individuals will almost certainly invoke the affirmative defense of foreign official immunity. In the 2010 decision, Samantar v. Yousuf, the Supreme Court unanimously held that the Foreign Sovereign Immunities Act (FSIA) — a 1976 statute governing the immunity of foreign states — did not control judicial determination of a foreign individual’s request for immunity. Instead, the Court said that foreign officials may be entitled to immunity as a matter of federal common law. Because of the sensitive foreign policy implications of these types of cases, the executive branch — specifically the State Department — has aggressively asserted control over all foreign official immunity requests. In 2012, in the so-called “Rosenberg Statement” and “Koh Letter,” the Justice Department and Legal Adviser to the State Department, Harold Hongju Koh, declared that (1) federal courts must refrain from deciding any foreign official immunity request that was not first presented to the State Department and (2) it was for the Executive, not the courts, to evaluate whether a foreign individual acted in an official capacity.While the Executive is certainly the branch of government with principal responsibility for foreign affairs, the Koh Letter and Rosenberg Statement represent executive branch overreach into judicial supervision of a federal lawsuit. Judicial deference to the Executive on foreign official immunity calls may be proper; blind obedience is not. In fact, such unilateral control ultimately hurts the State Department itself, which must balance complex and countervailing foreign policy interests. So how should the Executive’s power play be answered? Despite the Supreme Court’s reference to judge- made federal common law in Samantar, this Note argues that the tug-of-war between the executive and judicial branches requires congressional action because the courts are in disarray, with some already having acquiesced to executive control. The current disorder is a striking replay of what happened in the doctrine of foreign sovereign immunity in the late 1950s and 1960s in the aftermath of the 1952 Tate Letter — an earlier dispatch from a different State Department Legal Advisor that sparked such confusion in the federal common law of foreign sovereign immunity that Congress was compelled to intervene with the FSIA. This Note concludes with a model statute that Congress should consider enacting.
原告有时会在美国联邦法院对被控在国外犯下暴行的外国政府官员或前官员提起民事诉讼。在这类案件中，外国个人几乎肯定会援引外国官员豁免的肯定性辩护。在2010年的Samantar诉Yousuf案判决中，最高法院一致认为，1976年制定的《外国主权豁免法》(Foreign Sovereign immunity Act，简称FSIA)对外国个人豁免请求的司法裁定不具有约束力。相反，法院表示，根据联邦普通法，外国官员可能有权享有豁免。由于这类案件对外交政策的敏感影响，行政部门——特别是国务院——积极主张控制所有外国官员的豁免请求。2012年，在所谓的《罗森博格声明》(Rosenberg Statement)和《高信》(Koh Letter)中，司法部和国务院法律顾问高洪洙(Harold Hongju Koh)宣布，(1)联邦法院必须避免对未首先提交给国务院的任何外国官员豁免请求作出裁决;(2)应由行政部门而不是法院来评估一名外国人是否以官方身份行事。虽然行政部门当然是政府的一个部门，主要负责外交事务，但Koh信函和罗森伯格声明代表了行政部门对联邦诉讼的司法监督越权。司法尊重行政部门对外国官员豁免的要求可能是适当的;盲目的服从不是。事实上，这种单边控制最终会伤害国务院本身，因为国务院必须平衡复杂的、相互抵消的外交政策利益。那么，如何回答行政部门的权力游戏呢?尽管最高法院在萨曼塔尔案中引用了法官制定的联邦普通法，但本报告认为，行政部门和司法部门之间的拉锯战需要国会采取行动，因为法院处于混乱状态，有些法院已经默许了行政控制。当前的混乱是20世纪50年代末和60年代外国主权豁免理论中发生的事情的惊人重演，1952年泰特信(Tate Letter)的后果是另一位国务院法律顾问早些时候发出的一份信函，该信函在外国主权豁免的联邦普通法中引发了如此混乱，以至于国会被迫干预FSIA。本说明最后提出了国会应考虑颁布的示范法规。
{"title":"The New Tate Letter: Foreign Official Immunity and the Case for a Statutory Fix","authors":"Luke Ryan","doi":"10.2139/SSRN.2716195","DOIUrl":"https://doi.org/10.2139/SSRN.2716195","url":null,"abstract":"Plaintiffs sometimes bring civil lawsuits in U.S. federal courts against officials or ex-officials of foreign governments accused of committing atrocities abroad. In these types of cases, the foreign individuals will almost certainly invoke the affirmative defense of foreign official immunity. In the 2010 decision, Samantar v. Yousuf, the Supreme Court unanimously held that the Foreign Sovereign Immunities Act (FSIA) — a 1976 statute governing the immunity of foreign states — did not control judicial determination of a foreign individual’s request for immunity. Instead, the Court said that foreign officials may be entitled to immunity as a matter of federal common law. Because of the sensitive foreign policy implications of these types of cases, the executive branch — specifically the State Department — has aggressively asserted control over all foreign official immunity requests. In 2012, in the so-called “Rosenberg Statement” and “Koh Letter,” the Justice Department and Legal Adviser to the State Department, Harold Hongju Koh, declared that (1) federal courts must refrain from deciding any foreign official immunity request that was not first presented to the State Department and (2) it was for the Executive, not the courts, to evaluate whether a foreign individual acted in an official capacity.While the Executive is certainly the branch of government with principal responsibility for foreign affairs, the Koh Letter and Rosenberg Statement represent executive branch overreach into judicial supervision of a federal lawsuit. Judicial deference to the Executive on foreign official immunity calls may be proper; blind obedience is not. In fact, such unilateral control ultimately hurts the State Department itself, which must balance complex and countervailing foreign policy interests. So how should the Executive’s power play be answered? Despite the Supreme Court’s reference to judge- made federal common law in Samantar, this Note argues that the tug-of-war between the executive and judicial branches requires congressional action because the courts are in disarray, with some already having acquiesced to executive control. The current disorder is a striking replay of what happened in the doctrine of foreign sovereign immunity in the late 1950s and 1960s in the aftermath of the 1952 Tate Letter — an earlier dispatch from a different State Department Legal Advisor that sparked such confusion in the federal common law of foreign sovereign immunity that Congress was compelled to intervene with the FSIA. This Note concludes with a model statute that Congress should consider enacting.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2016-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68269712","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Data security breaches, which compromise private consumer information, seem to be an ever-increasing threat. To stem this tide, the Federal Trade Commission (FTC) has been using its authority to enforce the prohibition against unfair business practices under Section 5 of the Federal Trade Commission Act (Section 5) to hold companies accountable when they fail to employ data security measures that could prevent breaches. Specifically, the FTC brings enforcement actions where it finds that companies have failed to implement “reasonable” data security measures. However, companies and scholars argue that the FTC has not provided adequate notice of what data security practices it considers “reasonable” for the purposes of Section 5.This Note first explains and critically analyzes several existing proposals that seek to bring clarity to the FTC’s application of its unfairness authority in the data security context. Then, this Note proposes a novel solution that encourages the FTC to explicitly outline its minimum data security requirements via nonlegislative rulemaking. Additionally, this Note contends that any FTC rulemaking should incorporate a principle of proportionality to ensure that companies know what data security measures they should implement based on the relative sensitivity of the consumer data that they retain. Lastly, this Note suggests that the FTC should also incorporate a safe harbor provision so that compliant companies know that, by following the FTC’s guidelines, they will be immune from Section 5 enforcement actions.
{"title":"Moving Beyond 'Reasonable': Clarifying the FTC's Use of Its Unfairness Authority in Data Security Enforcement Actions","authors":"T. Deal","doi":"10.2139/SSRN.2727818","DOIUrl":"https://doi.org/10.2139/SSRN.2727818","url":null,"abstract":"Data security breaches, which compromise private consumer information, seem to be an ever-increasing threat. To stem this tide, the Federal Trade Commission (FTC) has been using its authority to enforce the prohibition against unfair business practices under Section 5 of the Federal Trade Commission Act (Section 5) to hold companies accountable when they fail to employ data security measures that could prevent breaches. Specifically, the FTC brings enforcement actions where it finds that companies have failed to implement “reasonable” data security measures. However, companies and scholars argue that the FTC has not provided adequate notice of what data security practices it considers “reasonable” for the purposes of Section 5.This Note first explains and critically analyzes several existing proposals that seek to bring clarity to the FTC’s application of its unfairness authority in the data security context. Then, this Note proposes a novel solution that encourages the FTC to explicitly outline its minimum data security requirements via nonlegislative rulemaking. Additionally, this Note contends that any FTC rulemaking should incorporate a principle of proportionality to ensure that companies know what data security measures they should implement based on the relative sensitivity of the consumer data that they retain. Lastly, this Note suggests that the FTC should also incorporate a safe harbor provision so that compliant companies know that, by following the FTC’s guidelines, they will be immune from Section 5 enforcement actions.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2016-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68276822","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Federal Arbitration Act (FAA) provides the legal framework to render international and interstate arbitration agreements judicially enforceable in the United States. In furtherance of that goal, it provides that if a party initiates litigation rather than arbitration of an arbitrable dispute, either party may request that the court stay the litigation pending arbitration. There is currently a split among the circuit courts in this country as to whether § 3 of the FAA requires a court under these circumstances to stay the suit or whether it has the discretion to dismiss the suit altogether.In Katz v. Cellco Partnership, the United States Court of Appeals for the Second Circuit, a leading U.S. court in creating and shaping domestic and international arbitration law, recently sided with the majority of sister circuits in holding that § 3 requires a court to stay the litigation pending arbitration. This Note argues that the proper interpretation of FAA § 3 does indeed require a stay and proposes that the Supreme Court adopt the Second Circuit’s reasoning. Further, it argues that the mandatory-stay approach is consistent with the plain meaning of the statute, as well as important policy objectives: (1) providing the pro-arbitration framework Congress intended when passing the FAA, as the Supreme Court has repeatedly underscored; (2) foreclosing interlocutory appeals of dismissals that stall arbitrations; (3) rejecting docket management as a grounds for dismissal; and (4) avoiding the general uncertainty and unpredictability of dismissals.
{"title":"Oh, Won't You Stay with Me?: Determining Whether § 3 of the FAA Requires a Stay in Light of Katz v. Cellco Partnership","authors":"Alessandra Rose Johnson","doi":"10.2139/SSRN.2722331","DOIUrl":"https://doi.org/10.2139/SSRN.2722331","url":null,"abstract":"The Federal Arbitration Act (FAA) provides the legal framework to render international and interstate arbitration agreements judicially enforceable in the United States. In furtherance of that goal, it provides that if a party initiates litigation rather than arbitration of an arbitrable dispute, either party may request that the court stay the litigation pending arbitration. There is currently a split among the circuit courts in this country as to whether § 3 of the FAA requires a court under these circumstances to stay the suit or whether it has the discretion to dismiss the suit altogether.In Katz v. Cellco Partnership, the United States Court of Appeals for the Second Circuit, a leading U.S. court in creating and shaping domestic and international arbitration law, recently sided with the majority of sister circuits in holding that § 3 requires a court to stay the litigation pending arbitration. This Note argues that the proper interpretation of FAA § 3 does indeed require a stay and proposes that the Supreme Court adopt the Second Circuit’s reasoning. Further, it argues that the mandatory-stay approach is consistent with the plain meaning of the statute, as well as important policy objectives: (1) providing the pro-arbitration framework Congress intended when passing the FAA, as the Supreme Court has repeatedly underscored; (2) foreclosing interlocutory appeals of dismissals that stall arbitrations; (3) rejecting docket management as a grounds for dismissal; and (4) avoiding the general uncertainty and unpredictability of dismissals.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2016-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68273259","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In Morrison v. National Australia Bank Ltd. the Supreme Court disseminated a two-step test to determine the extraterritorial reach of all federal statutes, radically shifting the application of U.S. laws. Nowhere has this decision caused more upheaval than in the context of analyzing claims under the Racketeering Influenced and Corrupt Organizations Act (RICO): while courts have reached broad agreement that RICO does not apply extraterritorially, courts disagree over the proper standard to determine when a RICO case is domestic or foreign. This Note explores RICO’s origins, the statute’s legislative history, and the evolution of RICO’s extraterritorial application in Morrison’s shadow. This Note then sifts through the conflicting approaches employed by courts faced with RICO cases involving foreign elements before ultimately advocating an alternative approach that accurately applies the Supreme Court’s Morrison decision and faithfully embodies RICO’s legislative history and intent.
在莫里森诉澳大利亚国民银行案(Morrison v. National Australia Bank Ltd.)中，最高法院推广了一种两步测试法，以确定所有联邦法规的治外法权，从根本上改变了美国法律的适用范围。在分析根据《受敲诈勒索影响和腐败组织法》(RICO)提出的索赔时，这一决定引起的动荡最大:虽然法院已达成广泛共识，认为RICO不适用治外法权，但法院在确定RICO案件是国内案件还是国外案件的适当标准上存在分歧。本文探讨了RICO的起源，法规的立法历史，以及RICO在莫里森阴影下的域外适用的演变。在最终倡导一种准确适用最高法院莫里森判决并忠实体现RICO立法历史和意图的替代方法之前，本文将筛选法院在面对涉及外国要素的RICO案件时所采用的相互冲突的方法。
{"title":"Containing the Uncontainable: Drawing RICO's Border with the Presumption Against Extraterritoriality","authors":"Miranda Lievsay","doi":"10.2139/ssrn.2719853","DOIUrl":"https://doi.org/10.2139/ssrn.2719853","url":null,"abstract":"In Morrison v. National Australia Bank Ltd. the Supreme Court disseminated a two-step test to determine the extraterritorial reach of all federal statutes, radically shifting the application of U.S. laws. Nowhere has this decision caused more upheaval than in the context of analyzing claims under the Racketeering Influenced and Corrupt Organizations Act (RICO): while courts have reached broad agreement that RICO does not apply extraterritorially, courts disagree over the proper standard to determine when a RICO case is domestic or foreign. This Note explores RICO’s origins, the statute’s legislative history, and the evolution of RICO’s extraterritorial application in Morrison’s shadow. This Note then sifts through the conflicting approaches employed by courts faced with RICO cases involving foreign elements before ultimately advocating an alternative approach that accurately applies the Supreme Court’s Morrison decision and faithfully embodies RICO’s legislative history and intent.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2016-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68272283","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
To prevent some of the causes of the 2008-09 financial crisis, legislators around the world enacted laws that regulated the markets for over-the-counter (OTC) derivatives for the first time. These laws, though necessary, have duplicative requirements that dampen market efficiency. In the United States, the Securities and Exchange Commission (SEC) is contemplating a “substituted compliance” regime with other jurisdictions that would allow industry participants to comply with only one jurisdiction’s requirements for certain transactions. This Note argues that the SEC should allow substituted compliance for OTC derivatives, but only for dealers transacting with European partners. Some advocate for substituted compliance in a broad sense. These arguments, however, overlook nuances of the SEC’s announced approach. Others argue that the SEC should avoid the concept altogether. Ultimately, if the SEC allows substituted compliance narrowly and thoughtfully, it could preserve the economic benefits of an American financial market, while preventing some causes of the most recent financial crisis.
{"title":"In Defense of the Dealers: Why the SEC Should Allow Substituted Compliance with the European Union for Security-Based Swap Dealers","authors":"J. Welling","doi":"10.2139/SSRN.2724815","DOIUrl":"https://doi.org/10.2139/SSRN.2724815","url":null,"abstract":"To prevent some of the causes of the 2008-09 financial crisis, legislators around the world enacted laws that regulated the markets for over-the-counter (OTC) derivatives for the first time. These laws, though necessary, have duplicative requirements that dampen market efficiency. In the United States, the Securities and Exchange Commission (SEC) is contemplating a “substituted compliance” regime with other jurisdictions that would allow industry participants to comply with only one jurisdiction’s requirements for certain transactions. This Note argues that the SEC should allow substituted compliance for OTC derivatives, but only for dealers transacting with European partners. Some advocate for substituted compliance in a broad sense. These arguments, however, overlook nuances of the SEC’s announced approach. Others argue that the SEC should avoid the concept altogether. Ultimately, if the SEC allows substituted compliance narrowly and thoughtfully, it could preserve the economic benefits of an American financial market, while preventing some causes of the most recent financial crisis.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2016-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68274874","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Our adversary criminal justice system aims to acquit the innocent and convict the guilty. In order to facilitate these just outcomes, the ethics rules governing attorney conduct call upon criminal defense counsel to defend their clients with the utmost loyalty and zeal while taking care never to engage in dishonesty, fraud, or misrepresentation. Defense attorneys rarely know to a certainty if their clients are innocent or guilty. But when they do, these competing ethical duties present a pressing dilemma: how and when, if at all, do the rules of professional conduct permit or even require an attorney knowingly to defend a guilty client?This Note examines the false defense dilemma and recent judicial approaches to it. The federal judiciary is in disagreement on the extent to which guilty criminal defendants can mount defenses at trial. Some judges would forbid defense counsel from advancing any exculpatory proposition that the attorney knows to be false. Others would permit guilty defendants to present sincere or truthful testimony intended to convince the fact finder of a falsehood. Finally, still others have signaled more general comfort with the notion that an attorney knowingly can pursue an acquittal on behalf of a guilty client without violating ethics rules.This Note seeks to resolve the issue by parsing the range of false defense tactics that defense counsel may seek to employ in court and evaluating the propriety of each under the relevant Model Rules of Professional Conduct. It reads the Model Rules in the context of the adversary system’s twin aims to seek truth and safeguard individual rights; defines and introduces specific false defenses; and offers detailed, context-specific recommendations for courts and attorneys seeking to evaluate knowingly false defenses as they occur in the real world. In short, rather than accepting or rejecting knowingly false defenses across the board, this Note concludes that the Model Rules best are read to permit them in certain circumstances and prohibit them in others.Specifically, this Note distinguishes false defense tactics that adduce or rely on evidence known to be false from those that do not: the former violate the Model Rules, while the latter comport with them and serve to ensure the adversary system’s proper function. This distinction accounts for important ethical differences between false defense tactics and provides a workable and practical framework by which courts can determine precisely how defense counsel should be permitted or prohibited to advocate on behalf of a guilty client.
{"title":"Dishonest Ethical Advocacy?: False Defenses in Criminal Court","authors":"Joshua A. Liebman","doi":"10.2139/SSRN.2728447","DOIUrl":"https://doi.org/10.2139/SSRN.2728447","url":null,"abstract":"Our adversary criminal justice system aims to acquit the innocent and convict the guilty. In order to facilitate these just outcomes, the ethics rules governing attorney conduct call upon criminal defense counsel to defend their clients with the utmost loyalty and zeal while taking care never to engage in dishonesty, fraud, or misrepresentation. Defense attorneys rarely know to a certainty if their clients are innocent or guilty. But when they do, these competing ethical duties present a pressing dilemma: how and when, if at all, do the rules of professional conduct permit or even require an attorney knowingly to defend a guilty client?This Note examines the false defense dilemma and recent judicial approaches to it. The federal judiciary is in disagreement on the extent to which guilty criminal defendants can mount defenses at trial. Some judges would forbid defense counsel from advancing any exculpatory proposition that the attorney knows to be false. Others would permit guilty defendants to present sincere or truthful testimony intended to convince the fact finder of a falsehood. Finally, still others have signaled more general comfort with the notion that an attorney knowingly can pursue an acquittal on behalf of a guilty client without violating ethics rules.This Note seeks to resolve the issue by parsing the range of false defense tactics that defense counsel may seek to employ in court and evaluating the propriety of each under the relevant Model Rules of Professional Conduct. It reads the Model Rules in the context of the adversary system’s twin aims to seek truth and safeguard individual rights; defines and introduces specific false defenses; and offers detailed, context-specific recommendations for courts and attorneys seeking to evaluate knowingly false defenses as they occur in the real world. In short, rather than accepting or rejecting knowingly false defenses across the board, this Note concludes that the Model Rules best are read to permit them in certain circumstances and prohibit them in others.Specifically, this Note distinguishes false defense tactics that adduce or rely on evidence known to be false from those that do not: the former violate the Model Rules, while the latter comport with them and serve to ensure the adversary system’s proper function. This distinction accounts for important ethical differences between false defense tactics and provides a workable and practical framework by which courts can determine precisely how defense counsel should be permitted or prohibited to advocate on behalf of a guilty client.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2016-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2728447","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68276726","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Solitary confinement is a frequently used penal tool in all fifty states against all types of offenders. However, since its development in the 1800s, solitary confinement has been found to have damaging psychological effects. Juvenile inmates in particular suffer the greatest psychological damage from solitary confinement because their brains are still in a developmental state. This has led many to propose various reforms that would either end or limit the use of solitary confinement for those under the age of eighteen. However, new neurological studies on brain development show that inmates between the ages of eighteen and twenty-five also suffer similar psychological harms and therefore should be included in these reforms. Pulling from these new neurological studies, this Note proposes federal legislation that would limit the use of solitary confinement for inmates under the age of twenty-five.
{"title":"Lonely Too Long: Redefining and Reforming Juvenile Solitary Confinement.","authors":"Jessica A Lee","doi":"10.2139/SSRN.2715909","DOIUrl":"https://doi.org/10.2139/SSRN.2715909","url":null,"abstract":"Solitary confinement is a frequently used penal tool in all fifty states against all types of offenders. However, since its development in the 1800s, solitary confinement has been found to have damaging psychological effects. Juvenile inmates in particular suffer the greatest psychological damage from solitary confinement because their brains are still in a developmental state. This has led many to propose various reforms that would either end or limit the use of solitary confinement for those under the age of eighteen. However, new neurological studies on brain development show that inmates between the ages of eighteen and twenty-five also suffer similar psychological harms and therefore should be included in these reforms. Pulling from these new neurological studies, this Note proposes federal legislation that would limit the use of solitary confinement for\u0000inmates under the age of twenty-five.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2016-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68269565","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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