Fordham Law Review最新文献

{"title":"Conflict Minerals Legislation: The SEC's New Role as Diplomatic and Humanitarian Watchdog","authors":"Karen E. Woody","doi":"10.2139/SSRN.2182025","DOIUrl":"https://doi.org/10.2139/SSRN.2182025","url":null,"abstract":"Buried in the voluminous Dodd-Frank Wall Street Reform and Consumer Protection Act is an oft-overlooked provision requiring corporate disclosure of the use of “conflict minerals” in products manufactured by issuing corporations. This article scrutinizes the legislative history and lobbying efforts behind the conflict minerals provision to establish that, unlike the majority of the bill, its goals are moral and political, rather than financial. Analyzing the history of disclosure requirements, the article suggests that the presence of conflict minerals in a company’s product is not inherently material information, and that the Dodd-Frank provision statutorily renders non-material information material. The provision, thus, forces the SEC to expand beyond its congressional mandate of protecting investors and ensuring capital formation by requiring issuers engage in additional non-financial disclosures in order to meet the provision’s humanitarian and diplomatic aims. Further, the article posits that the conflict minerals provision is a wholly ineffective means to accomplish its stated humanitarian goals, and likely will cause more harm than good in the Democratic Republic of Congo. In conclusion, this article proposes that a more efficient regulatory model for conflict minerals is the Clean Diamond Trade Act and the Kimberley Process Certification Scheme.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2182025","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67971319","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}

{"title":"Originalism and the Aristotelian Tradition: Virtue’s Home in Originalism","authors":"Lee J. Strang","doi":"10.2139/SSRN.1912681","DOIUrl":"https://doi.org/10.2139/SSRN.1912681","url":null,"abstract":"A concept fundamental to philosophy – virtue – is, with a few notable exceptions, absent from scholarship on constitutional interpretation generally, and originalism in particular. Furthermore, common perceptions of both virtue ethics and originalism have prevented exploration of how incorporating virtue ethics’ insights may make originalism a better theory of constitutional interpretation. This Article fills that void by explaining the many ways in which concepts from virtue ethics are compatible with an originalist theory of constitutional interpretation. More importantly, I show that originalism is more normatively attractive and descriptively accurate when it takes on board virtue ethics’ insights. Originalism must articulate virtue’s role in constitutional interpretation for a number of reasons. First, incorporating the concept of virtue into originalism will give it greater explanatory power. For example, adding the concept of virtue to the mix helps originalism embrace ideals such as judicial craftsmanship. Second, incorporating the concept of virtue into originalism makes originalism more normatively attractive. Originalism has transformed over the past thirty years. Most importantly, originalism has come to acknowledge judicial discretion in constitutional adjudication. An originalism that incorporates the lessons of virtue ethics is able to preserve originalism as a viable theory of constitutional interpretation while, at the same time, continuing to acknowledge judicial discretion. An originalism that incorporates virtue ethics’ insights will give the Constitution’s original meaning its due. Simultaneously, it also gives other factors – such as the practical workability of legal doctrine – their due, all in their proper proportion.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2011-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67781238","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}

{"title":"Rights, Capabilities and the Good Society","authors":"R. West","doi":"10.4324/9781315251240-5","DOIUrl":"https://doi.org/10.4324/9781315251240-5","url":null,"abstract":"In Part I this essay explores and then criticizes the two major arguments behind the conventional wisdom that rights undermine efforts to secure a state role in ensuring the material preconditions for a good society, and therefore, the material preconditions for the development of those human capabilities essential to a fully human life. I conclude in this part that this understanding of rights is mistaken. In Part II, I urge that the pragmatic argument put forward by rights critics and some welfare advocates for forgoing rights-talk and rights-rhetoric also fails: there are very real costs, both in theory and in law, in deciding to forgo putting the case for the state's obligation to provide minimal material goods in terms of rights. In Part III, I briefly describe two core rights that a refashioned liberal state, understood as a vehicle for protecting not just the liberty but also the capabilities of citizens, should recognize: first, a right to be protected against private violence, and second, a right of caregivers to give care to dependents without incurring the risk of severe impoverishment or subordination – a right, to use the provocative phrase coined by the philosopher Eva Kittay, to doulia. Both rights, I think, are directly entailed by the state's obligation to provide the minimal preconditions for the development of those fundamental human capabilities that are themselves essential to a fully human life. Both rights however, could be and should be conceived in the most traditionally liberal terms. The first such right – the right to protection against private violence – although now disfavored in United States rights discourse, seems fully authorized by both the liberal tradition and the American Constitution itself. The second right for which I will argue – the right to provide care to dependents has no similar basis of support in either liberal theory or American constitutionalism. It is not incompatible with either, however, and is at least arguably required by the deepest commitments of both. The right to protection and the right to care are rights that can be framed in liberal terms, and both rights would go a long way toward securing for individual citizens the minimal preconditions of a good society.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2011-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70640511","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}

{"title":"The Honor of Private Law","authors":"Nathan B. Oman","doi":"10.2139/SSRN.1792467","DOIUrl":"https://doi.org/10.2139/SSRN.1792467","url":null,"abstract":"While combativeness is central to how our culture both experiences and conceptualizes litigation, we generally notice it only as a regrettable cost. This Article offers a less squeamish vision, one that sees in the struggle of people suing one another a morally valuable activity: The vindication of insulted honor. This claim is offered as a normative defense of a civil recourse approach to private law. According to civil recourse theorists, tort and contract law should be seen as empowering plaintiffs to act against defendants, rather than as economically optimal incentives or as a means of enforcing duties of corrective justice. The justification of civil recourse must answer three questions. First, under what circumstances – if any – is one justified in acting or retaliating against a wrongdoer? Second, under what circumstances does the state have reasons for providing a mechanism for such action? Finally, how are the answers to these questions related to the current structure of our private law? This Article offers the vindication of wronged honor as an answer to these three questions. First, I establish the historical connection between honor and litigation by looking at the quintessential honor practice, dueling. Then I argue that the vindication of honor is normatively attractive. I do this by divorcing the idea of honor from unsavory associations with violence and aristocracy, showing how it can be made congruent with certain core modern concerns. In particular, when insulted parties act against wrongdoers, they reestablish the position of respect and equality that the insult upset. I then show how having the state provide plaintiffs with a means of vindicating their honor avoids making the political community complicit in the humiliation of its citizens and provides those citizens with a means of exercising their agency in ways that provide a foundation for self-respect. Finally, I show those areas of private law where honor operates most powerfully as a justification for providing recourse through the courts while acknowledging that it operates less powerfully as a reason in other areas.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2011-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67746329","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}

{"title":"Giving Arbitration Some Credit: The Enforceability of Arbitration Clauses Under the Credit Repair Organizations Act","authors":"Genevieve Hanft","doi":"10.2139/SSRN.1753756","DOIUrl":"https://doi.org/10.2139/SSRN.1753756","url":null,"abstract":"This Student Note addresses the unresolved question of the enforceability of arbitration agreements under the Credit Repair Organizations Act. While the Third and Eleventh Circuits have enforced such agreements, finding that the CROA does not preclude arbitration, the Ninth Circuit has refused to enforce these arbitration clauses, finding that the CROA entitles plaintiffs to a judicial forum. This conflict arises against a backdrop of debate over mandatory arbitration agreements between consumers and businesses. Scholars and legislators alike have argued that such agreements are unjust. A refusal to enforce such agreements, however, would fly in the face of the Supreme Court’s clear mandate to lower courts to enforce arbitration agreements. This Note examines the current circuit split over the enforceability of arbitration agreements under the Credit Repair Organizations Act in the context of both consumer protection law and relevant arbitration jurisprudence. Part I discusses the development of consumer protection law and the enactment of the Credit Repair Organizations Act, and examines the statute in detail. Part II describes the history and procedure of arbitration and examines the development of the Supreme Court’s policy regarding arbitration. Part III then analyzes the circuit split over the enforceability of arbitration agreements under the Credit Repair Organizations Act and the arguments for and against enforcing mandatory consumer arbitration clauses. Part IV advocates for the enforcement of such arbitration agreements, presenting several reasons why consumers will not be harmed by the enforcement of such agreements. Finally, Part IV proposes a simple solution to the problem: the elimination of credit repair organizations.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67734440","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}

{"title":"The Internet is a Semicommons","authors":"James Grimmelmann","doi":"10.31228/osf.io/znhdx","DOIUrl":"https://doi.org/10.31228/osf.io/znhdx","url":null,"abstract":"The Internet is a semicommons. Private property in servers and network links coexists with a shared communications platform. This distinctive combination both explains the Internet's enormous success and illustrates some of its recurring problems.Building on Henry Smith's theory of the semicommons in the medieval open-field system, this essay explains how the dynamic interplay between private and common uses on the Internet enables it to facilitate worldwide sharing and collaboration without collapsing under the strain of misuse. It shows that key technical features of the Internet, such as its layering of protocols and the Web's division into distinct \"sites,\" respond to the characteristic threats of strategic behavior in a semicommons. An extended case study of the Usenet distributed messaging system shows that not all semicommons on the Internet succeed; the continued success of the Internet depends on our ability to create strong online communities that can manage and defend the infrastructure on which they rely. Private and common both have essential roles to play in that task, a lesson recognized in David Post's and Jonathan Zittrain's recent books on the Internet.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2010-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69641273","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}

{"title":"Team of Rivals? Toward a New Model of the Corporate Attorney/Client Relationship","authors":"D. Wilkins","doi":"10.1093/CLP/62.1.478","DOIUrl":"https://doi.org/10.1093/CLP/62.1.478","url":null,"abstract":"At the heart of the traditional understanding of the lawyer's role stands a simple but powerful assumption: That the attorney/client relationship is essentially one of agency. In this paper, I argue that notwithstanding its pedigree and intuitive appeal, this traditional assumption is no longer an appropriate template for the relationship between large companies and their primary outside law firms. My claim is both descriptive and normative. Using a variety of data including the results of an on-going study of the legal purchasing decisions of large US companies, I argue that a series of recent trends - the \"convergence\" of law firm relationships by companies, \"consolidation\" among firms, increasing integration and information exchange both within and across organizational boundaries, and a surprising amount of turnover among in-house lawyers - are leading companies and firms to enter into relationships that look more like the kind of strategic alliances or partnerships that companies often have with their other important suppliers than the principal-agent relationship envisioned by the traditional model. Borrowing a phrase that has been used to describe the long-term strategic partnerships between Japanese automakers and their suppliers, I call these new relationships \"legal keiretsus\".Rather than emphasizing the typical principal-agent \"logic of power\" where stronger actors attempt to gain by coercing their exchange partners into an asymmetric distribution of value, these new legal keiretsus rely on a \"logic of embeddedness\" that seeks to encourage reciprocity and mutual trust to produce joint gains that will be fairly distributed between the parties. This new logic, however, arguably threatens the ability of outside counsel to function as public-regarding gatekeepers. Although these concerns are legitimate, I will argue that the logic of embeddedness is no more corrosive of public regarding values than the logic of power that now typifies the relationship between companies and their outside firms. Indeed, this logic has the potential to be significantly less corrosive - particularly if we move away from an ethical and regulatory structures based on a principal-agent model that serves only to entrench the ability of powerful corporate-principals to impose their will on increasingly vulnerable lawyer-agents. I conclude by identifying questions for future research, particularly in light of the current economic crisis, recent initiatives such as the American Corporate Counsel Association's Value Challenge, and the growing tendency among corporate clients to focus on the \"department\" or \"team\" level when making legal purchasing decisions.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2009-12-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/62.1.478","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60871295","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}

{"title":"When cows fly: expanding cognizable injury-in-fact and interest group litigation.","authors":"Robert Terenzi","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This Note takes an in-depth look at standing and, specifically, the extent to which increased risk of exposure to toxins caused by a government agency's regulations constitutes a judicially cognizable injury-in-fact. Despite over a century of case law on the topic, standing doctrine remains in flux and ill defined, largely due to the constantly changing ideological makeup of the U.S. Supreme Court. The lower courts are divided on the question of whether increased risk of future harm constitutes an injury-in-fact. Using Baur v. Veneman as a case study, this Note argues for the expansion of the definition of injury-in-fact to include potential future injuries that result from a specific government policy.</p>","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2009-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"28783450","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}

{"title":"It's been a privilege: advising patients of the Tarasoff duty and its legal consequences for the federal psychotherapist-patient privilege.","authors":"Elisha Klinka","doi":"10.2139/SSRN.1470849","DOIUrl":"https://doi.org/10.2139/SSRN.1470849","url":null,"abstract":"State laws modeled on Tarasoff v. Regents of the University of California require psychotherapists to warn potential victims or law enforcement when treating dangerous patients who make serious threats of harm to another person. In practice, many psychotherapists advise their patients who make such threats about their duty under these Tarasoff-model laws. Although they are not required to make these advisories by law, psychotherapists generally assume that they also have a concomitant ethical duty to advise their patients that such threats will not be kept confidential, as their communications normally would be. This Note looks at how these advisories affect the status of privilege for subsequent threatening statements relayed to a psychotherapist. It explores the opposing views in the federal circuit courts regarding whether such an advisory precludes the existence of privilege for subsequent statements, or whether the advisory operates as a waiver to the privilege. This Note argues that threats communicated to a psychotherapist after an advisory about a psychotherapist's Tarasoff duty cannot be considered privileged if the patient intended for the threat to be passed on to a third party. Psychotherapists must now be aware of the possible legal consequences regarding the patients' diminished expectation of confidentiality and lack of privilege following such advisories. In order to act in their patients' best interest, psychotherapists should educate themselves about the scope of a Tarasoff duty in their applicable states and should consider alternative intervention techniques that could reduce dangerous patients' risk of harm. Psychotherapists should continue to follow professional ethical guidelines about advising patients of the limits of confidentiality, but implement techniques that evidence the patients' true intent about confidentiality, in order to bolster the patients' possible privilege claims later on and minimize harm to the treatment relationship.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2009-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1470849","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68184659","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}

{"title":"It's been a privilege: advising patients of the Tarasoff duty and its legal consequences for the federal psychotherapist-patient privilege.","authors":"Elisha Klinka","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>State laws modeled on Tarasoff v. Regents of the University of California require psychotherapists to warn potential victims or law enforcement when treating dangerous patients who make serious threats of harm to another person. In practice, many psychotherapists advise their patients who make such threats about their duty under these Tarasoff-model laws. Although they are not required to make these advisories by law, psychotherapists generally assume that they also have a concomitant ethical duty to advise their patients that such threats will not be kept confidential, as their communications normally would be. This Note looks at how these advisories affect the status of privilege for subsequent threatening statements relayed to a psychotherapist. It explores the opposing views in the federal circuit courts regarding whether such an advisory precludes the existence of privilege for subsequent statements, or whether the advisory operates as a waiver to the privilege. This Note argues that threats communicated to a psychotherapist after an advisory about a psychotherapist's Tarasoff duty cannot be considered privileged if the patient intended for the threat to be passed on to a third party. Psychotherapists must now be aware of the possible legal consequences regarding the patients' diminished expectation of confidentiality and lack of privilege following such advisories. In order to act in their patients' best interest, psychotherapists should educate themselves about the scope of a Tarasoff duty in their applicable states and should consider alternative intervention techniques that could reduce dangerous patients' risk of harm. Psychotherapists should continue to follow professional ethical guidelines about advising patients of the limits of confidentiality, but implement techniques that evidence the patients' true intent about confidentiality, in order to bolster the patients' possible privilege claims later on and minimize harm to the treatment relationship.</p>","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2009-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"28529179","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}