Collateral estoppel is an equitable doctrine under which a court gives issue preclusive effect to findings of fact or law made in previous proceedings. The U.S. Supreme Court has recently held that under certain circumstances the determinations of administrative adjudications have collateral estoppel effect in federal court. The Court, however, did not address under which circumstances the determinations of administrative adjudications should have collateral estoppel effect in subsequent administrative adjudications. There has been little clear and consistent reasoning in lower federal courts about when collateral estoppel should apply in administrative adjudications, and administrative agencies vary widely in their application of collateral estoppel when conducting adjudications.This Note argues that neither the balancing test used to apply collateral estoppel in federal court nor the more formalistic per se rules proposed by some commentators are appropriate when applying collateral estoppel between administrative adjudications. Instead, courts should defer to agencies, granting them wide discretion to recognize or not recognize the collateral estoppel effect of prior administrative adjudications.
{"title":"Collateral Damage: When Should the Determinations of Administrative Adjudications Have Collateral Estoppel Effect in Subsequent Adjudications?","authors":"Matthew Edwin Faust","doi":"10.2139/ssrn.2739147","DOIUrl":"https://doi.org/10.2139/ssrn.2739147","url":null,"abstract":"Collateral estoppel is an equitable doctrine under which a court gives issue preclusive effect to findings of fact or law made in previous proceedings. The U.S. Supreme Court has recently held that under certain circumstances the determinations of administrative adjudications have collateral estoppel effect in federal court. The Court, however, did not address under which circumstances the determinations of administrative adjudications should have collateral estoppel effect in subsequent administrative adjudications. There has been little clear and consistent reasoning in lower federal courts about when collateral estoppel should apply in administrative adjudications, and administrative agencies vary widely in their application of collateral estoppel when conducting adjudications.This Note argues that neither the balancing test used to apply collateral estoppel in federal court nor the more formalistic per se rules proposed by some commentators are appropriate when applying collateral estoppel between administrative adjudications. Instead, courts should defer to agencies, granting them wide discretion to recognize or not recognize the collateral estoppel effect of prior administrative adjudications.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2016-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68281422","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 1977, Congress enacted the Fair Debt Collection Practices Act (FDCPA) in an effort to provide injured consumers with uniform protection against the systematically abusive practices of the debt collection industry. The FDCPA creates a private right of action for victims to sue; however, an individual who wishes to bring a private suit under the FDCPA must do so “within one-year from the date on which the violation occurs.” The effectiveness of this private right of action has been unsettled due to the circuit split over the meaning of this provision.The principal disagreement focuses on when the “violation occurs”: does it occur when the debt collector engages in the proscribed conduct, or does it occur when the consumer is actually harmed by that conduct? Moreover, if the violation occurs when the debt collector engages in the proscribed act, can a “discovery rule” apply to delay the running of the SOL until the consumer finds out what the debt collector has done? This Note explores the various analyses circuit courts apply to determine the date on which an FDCPA violation occurs.Unless federal courts adopt a uniform analysis for determining when an FDCPA violation occurs, injured consumers will continue to receive inconsistent protection under the statute. This Note proposes a two-pronged analysis for determining the date on which an FDCPA violation occurs: (1) when did the consumer’s private right of action under the FDCPA accrue; and (2) is the case one in which the equitable tolling doctrine should apply? Specifically, this Note argues that due to the remedial nature of the statute, federal courts should interpret a consumer’s private right of action under the FDCPA to accrue when he or she suffers the kind of harm for which the statute was meant to provide a private damages remedy.
{"title":"One Time to Sue: The Case for a Uniform Statute of Limitations for Consumers to Sue Under the Fair Debt Collection Practices Act","authors":"Brianna Gallo","doi":"10.2139/SSRN.2717708","DOIUrl":"https://doi.org/10.2139/SSRN.2717708","url":null,"abstract":"In 1977, Congress enacted the Fair Debt Collection Practices Act (FDCPA) in an effort to provide injured consumers with uniform protection against the systematically abusive practices of the debt collection industry. The FDCPA creates a private right of action for victims to sue; however, an individual who wishes to bring a private suit under the FDCPA must do so “within one-year from the date on which the violation occurs.” The effectiveness of this private right of action has been unsettled due to the circuit split over the meaning of this provision.The principal disagreement focuses on when the “violation occurs”: does it occur when the debt collector engages in the proscribed conduct, or does it occur when the consumer is actually harmed by that conduct? Moreover, if the violation occurs when the debt collector engages in the proscribed act, can a “discovery rule” apply to delay the running of the SOL until the consumer finds out what the debt collector has done? This Note explores the various analyses circuit courts apply to determine the date on which an FDCPA violation occurs.Unless federal courts adopt a uniform analysis for determining when an FDCPA violation occurs, injured consumers will continue to receive inconsistent protection under the statute. This Note proposes a two-pronged analysis for determining the date on which an FDCPA violation occurs: (1) when did the consumer’s private right of action under the FDCPA accrue; and (2) is the case one in which the equitable tolling doctrine should apply? Specifically, this Note argues that due to the remedial nature of the statute, federal courts should interpret a consumer’s private right of action under the FDCPA to accrue when he or she suffers the kind of harm for which the statute was meant to provide a private damages remedy.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2016-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2717708","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68271326","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 Armed Career Criminal Act (ACCA) provides a fifteen-year mandatory minimum sentence in federal prison for persons with at least three prior “violent felony” convictions who are subsequently convicted of being in possession of a firearm. In Johnson v. United States, the U.S. Supreme Court struck down one portion of this statute on the ground that it was unconstitutionally vague. In addition to an enumerated list of “violent felonies” that can result in a conviction, this portion included a catchall category that defined a violent felony as a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”This Note examines whether federal prisoners, whose convictions and sentences under this now-unconstitutional prong of the ACCA were final before Johnson, and who have previously petitioned for habeas corpus, may again petition in federal court based on Johnson’s holding. In other words, the question, which has become the subject of a widening circuit split and is under review by the Supreme Court, is whether Johnson’s new rule about the unconstitutionality of the ACCA has been “made retroactive . . . by the Supreme Court” to federal prisoners seeking habeas corpus relief in federal court. This Note addresses this question and the circuit split that has emerged on the issue and concludes that Johnson has indeed been “made retroactive.” Finally, this Note offers a modified framework for assessing the retroactivity of new rules to second or successive habeas petitions.
{"title":"Using Johnson v. United States to Reframe Retroactivity for Second or Successive Collateral Challenges","authors":"Thomas H. Gabay","doi":"10.2139/SSRN.2717713","DOIUrl":"https://doi.org/10.2139/SSRN.2717713","url":null,"abstract":"The Armed Career Criminal Act (ACCA) provides a fifteen-year mandatory minimum sentence in federal prison for persons with at least three prior “violent felony” convictions who are subsequently convicted of being in possession of a firearm. In Johnson v. United States, the U.S. Supreme Court struck down one portion of this statute on the ground that it was unconstitutionally vague. In addition to an enumerated list of “violent felonies” that can result in a conviction, this portion included a catchall category that defined a violent felony as a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”This Note examines whether federal prisoners, whose convictions and sentences under this now-unconstitutional prong of the ACCA were final before Johnson, and who have previously petitioned for habeas corpus, may again petition in federal court based on Johnson’s holding. In other words, the question, which has become the subject of a widening circuit split and is under review by the Supreme Court, is whether Johnson’s new rule about the unconstitutionality of the ACCA has been “made retroactive . . . by the Supreme Court” to federal prisoners seeking habeas corpus relief in federal court. This Note addresses this question and the circuit split that has emerged on the issue and concludes that Johnson has indeed been “made retroactive.” Finally, this Note offers a modified framework for assessing the retroactivity of new rules to second or successive habeas petitions.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2016-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68271381","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}
Sentencing drug crimes and treating drug-addicted defendants often stem from contradictory theories of punishment. In the late twentieth century, courts traded rehabilitation for retributive ideals to fight the “War on Drugs.” However, beginning with the Miami-Dade Drug Court, treatment and rehabilitation have returned to the forefront of sentencing policy in traditional and alternative drug courts.Jurisdictions have implemented a variety of policies designed to treat addiction as opposed to punishing it. Community courts, such as the Red Hook Community Justice Center in Brooklyn, New York, community-panel drug courts, such as the Woodbury County Community Drug Court in Iowa, and Hawaii’s Opportunity Probation with Enforcement represent efforts to address treatment within the court system. This Note argues that certain policies are more likely to benefit drug-addicted defendants than others, including procedural justice, predictable sanctions, and an increased focus on treatment. It also posits that qualitative studies measuring long-term success of drug treatment programs should be commissioned to ensure that drug courts utilize the most effective treatment policies that promote rehabilitative ideals.
{"title":"Alternative Courts and Drug Treatment: Finding a Rehabilitative Solution for Addicts in a Retributive System","authors":"Molly Webster","doi":"10.2139/SSRN.2685361","DOIUrl":"https://doi.org/10.2139/SSRN.2685361","url":null,"abstract":"Sentencing drug crimes and treating drug-addicted defendants often stem from contradictory theories of punishment. In the late twentieth century, courts traded rehabilitation for retributive ideals to fight the “War on Drugs.” However, beginning with the Miami-Dade Drug Court, treatment and rehabilitation have returned to the forefront of sentencing policy in traditional and alternative drug courts.Jurisdictions have implemented a variety of policies designed to treat addiction as opposed to punishing it. Community courts, such as the Red Hook Community Justice Center in Brooklyn, New York, community-panel drug courts, such as the Woodbury County Community Drug Court in Iowa, and Hawaii’s Opportunity Probation with Enforcement represent efforts to address treatment within the court system. This Note argues that certain policies are more likely to benefit drug-addicted defendants than others, including procedural justice, predictable sanctions, and an increased focus on treatment. It also posits that qualitative studies measuring long-term success of drug treatment programs should be commissioned to ensure that drug courts utilize the most effective treatment policies that promote rehabilitative ideals.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2015-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68254791","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 twenty states throughout the country, the government may petition for the civil commitment of detained sex offenders after they are released from prison. Although processes differ among the states, the government must generally show at a court proceeding that a detained sex offender both suffers from a mental abnormality and is dangerous and that this combination makes a detained sex offender likely to reoffend. At such court proceedings, both the government and the respondent will present evidence to either the court or the jury on these issues. As in most court proceedings, hearsay evidence is inadmissible at sex offender civil commitment hearings unless it meets sufficient indicia of reliability or fits within an established exception to the general rule against hearsay.On November 19, 2013, the New York State Court of Appeals determined that in sex offender civil commitment hearings, the best way to show that hearsay evidence regarding uncharged crimes and/or dropped charges meets sufficient indicia of reliability is to require live confrontation of the declarant. This Note argues, however, that neither the U.S. Constitution nor New York State's Civil Practice Law and Rules require live confrontation. In addition, live confrontation conflicts with the legislative intent of New York State's sex offender civil commitment statute and is detrimental to the psychological well-being of victims of sexual assault.
{"title":"The Admissibility of Hearsay Evidence in New York State Sex Offender Civil Commitment Hearings After State v. Floyd Y. : Finding a Balance Between Promoting the General Welfare of Sexual Assault Victims and Providing Due Process of Law","authors":"Brittany K. Dryer","doi":"10.2139/SSRN.2668743","DOIUrl":"https://doi.org/10.2139/SSRN.2668743","url":null,"abstract":"In twenty states throughout the country, the government may petition for the civil commitment of detained sex offenders after they are released from prison. Although processes differ among the states, the government must generally show at a court proceeding that a detained sex offender both suffers from a mental abnormality and is dangerous and that this combination makes a detained sex offender likely to reoffend. At such court proceedings, both the government and the respondent will present evidence to either the court or the jury on these issues. As in most court proceedings, hearsay evidence is inadmissible at sex offender civil commitment hearings unless it meets sufficient indicia of reliability or fits within an established exception to the general rule against hearsay.On November 19, 2013, the New York State Court of Appeals determined that in sex offender civil commitment hearings, the best way to show that hearsay evidence regarding uncharged crimes and/or dropped charges meets sufficient indicia of reliability is to require live confrontation of the declarant. This Note argues, however, that neither the U.S. Constitution nor New York State's Civil Practice Law and Rules require live confrontation. In addition, live confrontation conflicts with the legislative intent of New York State's sex offender civil commitment statute and is detrimental to the psychological well-being of victims of sexual assault.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2015-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68247854","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}
Prosecutors’ out-of-court statements to the press and the public at large have been of concern for over a century. Consequently, ethical rules and standards have been implemented to protect defendants from undue reputational harm as well as to strike a balance between trial participants’ right to free speech and defendants’ right to due process. Although these rules and standards are periodically revised, they have not yet accounted for the differences between traditional media, for which the rules and standards were written, and social media. Recently, however, prosecutors have used social media to discuss pending cases and other aspects of the prosecutorial function, which has raised concern regarding how social media may magnify both the benefits and the harms associated with prosecutors’ extrajudicial statements. This Note analyzes the differences between traditional media and social media, as well as how those differences impact the effect of prosecutors’ extrajudicial speech on pending matters, the reputation of the accused, and public perception of prosecutors and the justice system as a whole. In particular, this Note focuses on the way in which social media enables prosecutors to editorialize and communicate directly with the public in a manner that traditional media forms, like print newspapers and televised broadcast, could never make possible. This Note concludes by arguing that the increased risk of harm presented by prosecutors’ use of social media to discuss pending cases and other aspects of the prosecutorial function necessitates new restraints to restore the free speech – fair trial balance and promote professionalism in the social media age.
{"title":"Should Prosecutors Blog, Post, or Tweet?: The Need for New Restraints in Light of Social Media","authors":"Emily Vance","doi":"10.2139/SSRN.2558768","DOIUrl":"https://doi.org/10.2139/SSRN.2558768","url":null,"abstract":"Prosecutors’ out-of-court statements to the press and the public at large have been of concern for over a century. Consequently, ethical rules and standards have been implemented to protect defendants from undue reputational harm as well as to strike a balance between trial participants’ right to free speech and defendants’ right to due process. Although these rules and standards are periodically revised, they have not yet accounted for the differences between traditional media, for which the rules and standards were written, and social media. Recently, however, prosecutors have used social media to discuss pending cases and other aspects of the prosecutorial function, which has raised concern regarding how social media may magnify both the benefits and the harms associated with prosecutors’ extrajudicial statements. This Note analyzes the differences between traditional media and social media, as well as how those differences impact the effect of prosecutors’ extrajudicial speech on pending matters, the reputation of the accused, and public perception of prosecutors and the justice system as a whole. In particular, this Note focuses on the way in which social media enables prosecutors to editorialize and communicate directly with the public in a manner that traditional media forms, like print newspapers and televised broadcast, could never make possible. This Note concludes by arguing that the increased risk of harm presented by prosecutors’ use of social media to discuss pending cases and other aspects of the prosecutorial function necessitates new restraints to restore the free speech – fair trial balance and promote professionalism in the social media age.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2015-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68203397","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}
Fourth Amendment law is sorely in need of reform. To paraphrase Justice Sotomayor’s concurrence in United States v. Jones, the idea that people have no expectation of privacy in information voluntarily shared with third-parties — the foundation of the widely reviled “third-party doctrine” — makes little sense in the digital age.In truth, however, it is not just the third-party doctrine that needs retooling today. It is the Fourth Amendment’s general approach to the problem of “shared information.” Under existing law, if A shares information with B, A runs the risk of “misplaced trust” — the risk that B will disclose the information to law enforcement. Although the misplaced trust rule makes sense as a default, it comes under strain in cases where A and B have no relationship of trust and the only reason that A shares information with B is to obtain a socially valuable (and practically indispensable) service. In such cases, I argue that the doctrine should treat B as an “information fiduciary” and analyze B’s cooperation with law enforcement — whether voluntary or compelled — as a Fourth Amendment search.The argument develops in three parts. Part I demonstrates that the Court has already identified two settings — if only implicitly — where fiduciary-style protections are necessary to safeguard constitutional privacy: medical care and hotels. When A is a patient and B is a doctor, and, likewise, when A is a guest and B is a hotel manager, the Court has been reluctant to apply the “misplaced trust” rule. Rightly so: the principle is mismatched to the underlying relationship. From there, Part II fleshes out the normative argument. Put simply, we do not “trust” information fiduciaries, in the everyday sense, at all. So it makes little sense — normatively, or even semantically — to speak of trust being “misplaced.” Rather, the information is held for the benefit of the sharing party, and its use should be constrained by implied duties of care and loyalty. Finally, Part III lays the groundwork for determining who are “Fourth Amendment fiduciaries.” The Article concludes by exploring various practical metrics that courts might adopt to answer this question.
第四修正案亟需改革。套用大法官索托马约尔(Sotomayor)在“美国诉琼斯案”(United States v. Jones)中达成的共识，人们对自愿与第三方分享信息的隐私没有任何期望——这是广受诟病的“第三方原则”的基础——在数字时代几乎没有意义。然而，事实上，今天需要重新调整的不仅仅是第三方原则。这是第四修正案对“共享信息”问题的一般处理方法。根据现行法律，如果A与B共享信息，A就有“错置信任”的风险——即B将信息泄露给执法部门的风险。虽然错置信任规则作为默认值是有意义的，但在a和B没有信任关系的情况下，它会受到压力，而a与B共享信息的唯一原因是获得有社会价值(实际上是必不可少的)的服务。在这种情况下，我认为该原则应将B视为“信息受托人”，并将B与执法部门的合作——无论是自愿的还是被迫的——分析为第四修正案的搜查。本文的论述分为三个部分。第一部分表明，法院已经确定了两种情况——如果只是隐晦地——信托式的保护对于保护宪法隐私权是必要的:医疗保健和酒店。当A是病人而B是医生时，同样地，当A是客人而B是酒店经理时，法院一直不愿适用“错位信任”规则。这是正确的:原则与潜在的关系不匹配。在此基础上，第二部分充实了规范性论证。简而言之，我们根本不“信任”日常意义上的信息受托人。因此，从规范上，甚至从语义上讲，说信任“错位”是没有意义的。相反，信息是为了共享方的利益而持有的，其使用应受到隐含的谨慎和忠诚义务的约束。最后，第三部分为确定谁是“第四修正案受托人”奠定了基础。文章最后探讨了法院可能采用的各种实用指标来回答这个问题。
{"title":"Fourth Amendment Fiduciaries","authors":"Kiel Brennan-Marquez","doi":"10.2139/SSRN.2572052","DOIUrl":"https://doi.org/10.2139/SSRN.2572052","url":null,"abstract":"Fourth Amendment law is sorely in need of reform. To paraphrase Justice Sotomayor’s concurrence in United States v. Jones, the idea that people have no expectation of privacy in information voluntarily shared with third-parties — the foundation of the widely reviled “third-party doctrine” — makes little sense in the digital age.In truth, however, it is not just the third-party doctrine that needs retooling today. It is the Fourth Amendment’s general approach to the problem of “shared information.” Under existing law, if A shares information with B, A runs the risk of “misplaced trust” — the risk that B will disclose the information to law enforcement. Although the misplaced trust rule makes sense as a default, it comes under strain in cases where A and B have no relationship of trust and the only reason that A shares information with B is to obtain a socially valuable (and practically indispensable) service. In such cases, I argue that the doctrine should treat B as an “information fiduciary” and analyze B’s cooperation with law enforcement — whether voluntary or compelled — as a Fourth Amendment search.The argument develops in three parts. Part I demonstrates that the Court has already identified two settings — if only implicitly — where fiduciary-style protections are necessary to safeguard constitutional privacy: medical care and hotels. When A is a patient and B is a doctor, and, likewise, when A is a guest and B is a hotel manager, the Court has been reluctant to apply the “misplaced trust” rule. Rightly so: the principle is mismatched to the underlying relationship. From there, Part II fleshes out the normative argument. Put simply, we do not “trust” information fiduciaries, in the everyday sense, at all. So it makes little sense — normatively, or even semantically — to speak of trust being “misplaced.” Rather, the information is held for the benefit of the sharing party, and its use should be constrained by implied duties of care and loyalty. Finally, Part III lays the groundwork for determining who are “Fourth Amendment fiduciaries.” The Article concludes by exploring various practical metrics that courts might adopt to answer this question.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2015-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2572052","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68209076","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 attorney-client privilege protects confidential legal communications between a party and her attorney from being used against her, thus encouraging full and frank attorney-client communication. It is a venerable evidentiary principle of American jurisprudence. Unsurprisingly, prosecutors may not eavesdrop on inmate-attorney visits or phone calls or read inmate-attorney postal mail. Courts are currently divided, however, as to whether or not they can forbid prosecutors from reading inmate-attorney email.This Note explores the cases that address whether federal prosecutors may read inmates’ legal email. As courts have unanimously held, because inmates know that the Bureau of Prisons (BOP) monitors all their email, their legal email is unprivileged. In addition, all courts have rejected the argument that prosecutors reading inmates’ legal email impermissibly restricts inmates’ Sixth Amendment right of access to counsel. Accordingly, despite questioning the practice’s propriety, four courts have ruled that there is no legal basis to prevent prosecutors from reading inmate-attorney email. Two courts, however, pursuant to no clear authority, prevented the prosecutors from doing so.This Note argues that prosecutors should abstain from reading inmate- attorney email as a matter of self-regulation because this behavior unjustifiably chills inmate-attorney communication. In addition, this Note asserts that BOP’s email monitoring policy unconstitutionally restricts inmates’ Sixth Amendment right of access to counsel, a challenge prisoners’ rights advocates have yet to bring. In cases where BOP’s email monitoring policy is not at issue, or where a court seeks to avoid a constitutional decision, this Note concludes that courts should prevent prosecutors from reading inmates’ legal email by exercising their delegated authority to enforce Rules of Professional Conduct. Specifically, courts should invoke Rule 8.4(d), which prohibits attorneys from engaging in conduct prejudicial to the administration of justice.
{"title":"Should the Medium Affect the Message? Legal and Ethical Implications of Prosecutors Reading Inmate-Attorney Email","authors":"B. P. Ruben","doi":"10.2139/SSRN.2548436","DOIUrl":"https://doi.org/10.2139/SSRN.2548436","url":null,"abstract":"The attorney-client privilege protects confidential legal communications between a party and her attorney from being used against her, thus encouraging full and frank attorney-client communication. It is a venerable evidentiary principle of American jurisprudence. Unsurprisingly, prosecutors may not eavesdrop on inmate-attorney visits or phone calls or read inmate-attorney postal mail. Courts are currently divided, however, as to whether or not they can forbid prosecutors from reading inmate-attorney email.This Note explores the cases that address whether federal prosecutors may read inmates’ legal email. As courts have unanimously held, because inmates know that the Bureau of Prisons (BOP) monitors all their email, their legal email is unprivileged. In addition, all courts have rejected the argument that prosecutors reading inmates’ legal email impermissibly restricts inmates’ Sixth Amendment right of access to counsel. Accordingly, despite questioning the practice’s propriety, four courts have ruled that there is no legal basis to prevent prosecutors from reading inmate-attorney email. Two courts, however, pursuant to no clear authority, prevented the prosecutors from doing so.This Note argues that prosecutors should abstain from reading inmate- attorney email as a matter of self-regulation because this behavior unjustifiably chills inmate-attorney communication. In addition, this Note asserts that BOP’s email monitoring policy unconstitutionally restricts inmates’ Sixth Amendment right of access to counsel, a challenge prisoners’ rights advocates have yet to bring. In cases where BOP’s email monitoring policy is not at issue, or where a court seeks to avoid a constitutional decision, this Note concludes that courts should prevent prosecutors from reading inmates’ legal email by exercising their delegated authority to enforce Rules of Professional Conduct. Specifically, courts should invoke Rule 8.4(d), which prohibits attorneys from engaging in conduct prejudicial to the administration of justice.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2015-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68199975","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 False Claims Act represents the U.S. Justice Department’s most effective tool in detecting, punishing, and deterring fraud against the government. The effectiveness of the False Claims Act is due in large part to the law’s qui tam provisions, which provide a private right of action to whistleblowers who may sue fraudsters on behalf of the government in exchange for a percentage of the recovery. The resulting relationship between the government and whistleblowers has led to increased detection and recoveries from corporate defendants who defraud and abuse government programs. However, these whistleblower provisions also come with social costs where profit-motivated private enforcers bring frivolous claims and overenforce. Unlike much of the literature to date, this Note uses an agency-cost approach to analyze these qui tam provisions. This approach allows for an exploration of the incentives created by the qui tam provisions, the associated social benefits and costs, and possible reforms that augment these benefits and reduce unnecessary costs. Specifically, this Note argues that clearly defined incentives for whistleblowers and corporate defendants, along with a requirement that settlements be publicly filed and include admissions of wrongdoing, will reduce agency costs involved with private enforcement under the False Claims Act.
《虚假申报法》是美国司法部在发现、惩罚和阻止针对政府的欺诈行为方面最有效的工具。《虚假申报法》(False Claims Act)的有效性在很大程度上要归功于该法律的集体诉讼条款(qui - team provisions)，该条款为举报人提供了一种私人诉讼权利，他们可以代表政府起诉欺诈者，以换取一定比例的赔偿。由此产生的政府与举报人之间的关系导致了对欺诈和滥用政府项目的企业被告的侦查和追讨的增加。然而，这些举报人条款也带来了社会成本，因为出于利润动机的私人执法者会提出无聊的索赔，并过度执法。与迄今为止的许多文献不同，本说明使用代理成本方法来分析这些共同条款。这种方法允许探索由对等条款产生的激励，相关的社会效益和成本，以及增加这些效益和减少不必要成本的可能改革。具体而言，本文认为，明确界定对举报人和企业被告的激励措施，以及和解协议必须公开提交并包括承认不当行为的要求，将降低《虚假申报法》下私人执法所涉及的代理成本。
{"title":"Agency Costs and the False Claims Act","authors":"David Farber","doi":"10.2139/SSRN.2382682","DOIUrl":"https://doi.org/10.2139/SSRN.2382682","url":null,"abstract":"The False Claims Act represents the U.S. Justice Department’s most effective tool in detecting, punishing, and deterring fraud against the government. The effectiveness of the False Claims Act is due in large part to the law’s qui tam provisions, which provide a private right of action to whistleblowers who may sue fraudsters on behalf of the government in exchange for a percentage of the recovery. The resulting relationship between the government and whistleblowers has led to increased detection and recoveries from corporate defendants who defraud and abuse government programs. However, these whistleblower provisions also come with social costs where profit-motivated private enforcers bring frivolous claims and overenforce. Unlike much of the literature to date, this Note uses an agency-cost approach to analyze these qui tam provisions. This approach allows for an exploration of the incentives created by the qui tam provisions, the associated social benefits and costs, and possible reforms that augment these benefits and reduce unnecessary costs. Specifically, this Note argues that clearly defined incentives for whistleblowers and corporate defendants, along with a requirement that settlements be publicly filed and include admissions of wrongdoing, will reduce agency costs involved with private enforcement under the False Claims Act.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2014-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68163812","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}
How much deference — or what kind — should courts give to longstanding agency interpretations of statutes? Surprisingly, courts and scholars lack a coherent answer to this question. Legal scholars long have assumed that longstanding agency statutory interpretations are treated with heightened deference on judicial review, and federal courts sometimes have made statements suggesting that this is the case. But in practice, federal court review of longstanding agency interpretations — at both the Court of Appeals and the U.S. Supreme Court levels — turns out to be surprisingly erratic. Reviewing courts sometimes note the longevity of an agency’s statutory interpretation as a plus factor in their deference analysis, but at other times completely ignore or dismiss an agency interpretation’s longevity. Moreover, judicial rhetoric about the relevance of longevity in the review of agency statutory interpretations is inconsistent from case to case. What makes this doctrinal incoherence particularly remarkable is that courts usually care much more about the predictability of statutory interpretations and about upsetting settled institutional practices. In fact, in two analogous contexts — judicial interpretations of statutes and historical executive branch practice in the constitutional arena — courts accord strong precedential effect, or a presumption of correctness, to established legal constructions. This Article provides the first detailed study of federal court treatment of longstanding agency statutory interpretations — illuminating doctrinal inconsistencies and examining longevity-related factors that both favor and disfavor deference. The Article also compares federal courts’ chaotic treatment of longstanding agency statutory interpretations with the precedential effect that courts give to longstanding judicial interpretations of statutes and the historical “gloss” effect that courts give to past executive practice in constitutional interpretation. Ultimately, the Article argues that longstanding agency interpretations of statutes are at least as deserving of heightened judicial deference and that, at a minimum, federal courts’ disparate treatment of such interpretations — without acknowledging or justifying the distinction — is troubling. The Article advocates that longstanding agency interpretations should be entitled to precedential effect by reviewing courts and outlines how such an approach might work.
{"title":"Longstanding Agency Interpretations","authors":"Anita S. Krishnakumar","doi":"10.2139/SSRN.2224066","DOIUrl":"https://doi.org/10.2139/SSRN.2224066","url":null,"abstract":"How much deference — or what kind — should courts give to longstanding agency interpretations of statutes? Surprisingly, courts and scholars lack a coherent answer to this question. Legal scholars long have assumed that longstanding agency statutory interpretations are treated with heightened deference on judicial review, and federal courts sometimes have made statements suggesting that this is the case. But in practice, federal court review of longstanding agency interpretations — at both the Court of Appeals and the U.S. Supreme Court levels — turns out to be surprisingly erratic. Reviewing courts sometimes note the longevity of an agency’s statutory interpretation as a plus factor in their deference analysis, but at other times completely ignore or dismiss an agency interpretation’s longevity. Moreover, judicial rhetoric about the relevance of longevity in the review of agency statutory interpretations is inconsistent from case to case. What makes this doctrinal incoherence particularly remarkable is that courts usually care much more about the predictability of statutory interpretations and about upsetting settled institutional practices. In fact, in two analogous contexts — judicial interpretations of statutes and historical executive branch practice in the constitutional arena — courts accord strong precedential effect, or a presumption of correctness, to established legal constructions. This Article provides the first detailed study of federal court treatment of longstanding agency statutory interpretations — illuminating doctrinal inconsistencies and examining longevity-related factors that both favor and disfavor deference. The Article also compares federal courts’ chaotic treatment of longstanding agency statutory interpretations with the precedential effect that courts give to longstanding judicial interpretations of statutes and the historical “gloss” effect that courts give to past executive practice in constitutional interpretation. Ultimately, the Article argues that longstanding agency interpretations of statutes are at least as deserving of heightened judicial deference and that, at a minimum, federal courts’ disparate treatment of such interpretations — without acknowledging or justifying the distinction — is troubling. The Article advocates that longstanding agency interpretations should be entitled to precedential effect by reviewing courts and outlines how such an approach might work.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2014-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68005014","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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